B. Gosselin v. The Supers. of N. Manheim Twp., Schuylkill County, PA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Barbara Gosselin, Trustee for :

the Living Trust of Clarence :

K. Shuey, :

Appellant :

:

v. : No. 531 C.D. 2018

: Argued: November 13, 2019

The Supervisors of North Manheim :

Township, Schuylkill County, :

Pennsylvania :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COHN JUBELIRER FILED: May 28, 2021

This appeal requires that we interpret a restrictive covenant on a 35-year-old

subdivision plan, which states that “Lots 1, 2 and 5” (the Lots) will not be sold before

the installation of roadways and storm water management improvements. Where

the entire 56.7-acre tract of land (the Parcel), which includes the Lots and an almost

1

This case was assigned to the opinion writer before Judge Brobson succeeded Judge

Leavitt as President Judge.

50-acre residue, would be transferred as one tax parcel, we must determine whether

the owner is required to first install the roadways and storm water management

improvements. After careful review, in light of the particular facts of this case and

the context in which the restrictive covenant arose, and strictly construing the

restriction against the party seeking its enforcement, as we must, we find that

requiring the roadways and improvements to be built will not further the purpose of

the restrictive covenant and is unreasonable. We therefore reverse the trial court.

I. BACKGROUND

Barbara Gosselin, Trustee (Trustee) for the Living Trust (Trust) of Clarence

K. Shuey (Shuey), appeals from the Schuylkill County Common Pleas Court’s (trial

court) March 14, 2018 Order granting the Supervisors of North Manheim

Township’s (Township) cross-motion for summary judgment (Township’s Motion)

and denying Trustee’s summary judgment motion (Trustee’s Motion). Shuey2

created the Trust on October 4, 2000. The last non-cash asset is the Parcel, which

was originally part of a 65-acre tract of land, located in North Manheim Township,

Schuylkill County. In 1986, the Township approved the Subdivision Plan submitted

by Shuey and his wife (the Shueys), seeking to subdivide a portion of the 65-acre

tract into five smaller lots for an industrial park as follows: Lot No. 1 – 1.5 acres;

Lot No. 2 – 1.88 acres; Lot No. 3 – 4.34 acres; Lot No. 4 – 4.02 acres; and Lot No.

5 – 3.33 acres.3 (Trial Court’s Findings of Fact (FOF) ¶ 9; Reproduced Record

2

Shuey died on December 31, 2005.

3

There exists a slight discrepancy in the stated lot sizes between those in the trial court’s

Findings of Fact and those in the Subdivision Plan. The Subdivision Plan describes the lot sizes

as: Lot No. 1 – 1.53 acres; Lot No. 2 – 1.88 acres; Lot No. 3 – 4.34 acres; Lot No. 4 – 4.03 acres;

and Lot No. 5 – 3.37 acres. (Reproduced Record at 218a.)

2

(R.R.) at 185a.4) The Subdivision Plan did not address the remaining acreage

(Residue). Lot Nos. 3 and 4, which were subsequently sold and developed, have

access to a public roadway, which runs adjacent thereto. (R.R. at 218a.) Lot Nos.

1, 2, and 5 do not have direct access to an existing public roadway. According to

the Township Secretary, in an attempt to remedy the access issue and to prevent any

resulting runoff, a Note was added to the Subdivision Plan. The Note, which Shuey

accepted, states, “Lots 1, 2 and 5 will not be sold prior to the installation of the

proposed roadway shown hereon and the associated storm water management

required to facilitate the roadway drainage in accordance with the latest . . .

Township Zoning and Subdivision Ordinance.” (Id. at 218a.) The Lots are located

on the edge of the Parcel, and one of the proposed roadways, running north to south,

appears to bisect Lot Nos. 1 and 2 from Lot No. 5, while the other proposed roadway,

running east to west, appears to bisect Lot No. 1 from Lot No. 2. (Id. at 217a-18a.)

In 1999, the Shueys transferred the Parcel to a revocable trust. In 2001, the Parcel

was transferred from the revocable trust to the Trust, and the Township did not

enforce the Note during either of those transfers. The Lots have otherwise never

been sold or separated from the Parcel and remain part of the Parcel, which is taxed

as one entity.

In 2013, Trustee informed the Township that she was attempting to sell the

entire Parcel, which consists of the Lots and the Residue. The Township responded

that it interpreted the Note as prohibiting the sale of the Lots, whether individually

4

Although Rule 2173 of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 2173,

requires the reproduced record to be numbered in Arabic figures followed by a small “a,” the

Reproduced Record here only utilizes Arabic figures. We cite to the Reproduced Record in the

proper format.

3

or as part of the Parcel, until the Trust installed the proposed roadways and the

associated required storm water management improvements.

On June 30, 2014, Trustee filed a complaint in the trial court and subsequently

filed an Amended Complaint on January 29, 2015, seeking a declaration that the

Note only requires construction of the proposed roads and accompanying storm

water management if the Lots are to be sold separately from the Parcel.5 Therein,

Trustee alleged that the Trust needs to sell the Parcel so that it can distribute the cash

value to the Trust’s beneficiaries, who ranged in age from 76 to 85 years old at the

time of the Amended Complaint, and one of whom had already died.6 (Amended

Complaint (Am. Compl.) ¶¶ 15-17.) According to the Amended Complaint, the

Trust has faced hardship in its attempts to sell the Parcel, as the Township’s position

“has had the effect of chilling the sale of the property,” (id. ¶ 21), because

prospective buyers have all “lost interest in purchasing the property after” learning

of the Township’s interpretation of the Note, (id. ¶ 18).7 Trustee estimated that

paving the road and making the associated storm water improvements under the

restrictive covenant would cost the Trust at least $180,000. (Id. ¶ 12.)

After the pleadings closed and following discovery, Trustee and the Township

filed their respective Motions, which were filed in lieu of a bench trial. (Trial Court’s

March 14, 2018 Opinion (Op.) at 1; R.R. at 183a.) On March 4, 2018, the trial court

5

In the Amended Complaint, Trustee also brought a claim for monetary damages against

the Township for intentional interference with contractual and prospective contractual relations.

This count was dismissed based upon the Township’s preliminary objections. Trustee does not

challenge the dismissal of this count on appeal.

6

This beneficiary’s share of the Trust was left to her five children.

7

Trustee averred in the Amended Complaint that she received a written offer to purchase

the Parcel as recently as October 2014, but the offer was contingent upon “resolution of installation

of road issue . . . so that [prospective purchaser] . . . could buy [the] entire [] [P]arcel and [not] be

responsible to install road, unless he was to sell [L]ots 1, 2 or 5 separately.” (Am. Compl. ¶ 20(K)

(quoting written offer).)

4

granted the Township’s Motion and denied Trustee’s Motion, determining that “the

Note . . . restricts the sale of [the Lots] . . . individually or as part of [the Parcel]

without the installation of the proposed roadways and the associated storm water

management in compliance with the . . .Township Ordinance.” (Trial Court’s Order,

R.R. at 182a.) The trial court found that the Township Secretary testified in her

deposition that, at the time the Subdivision Plan was approved in 1986, “she

understood that the Note required the road to enable access to the properties of the

public road and required storm water management to prevent runoff.” (FOF ¶ 17.)

Specifically, the Township Secretary testified that “the reason the road would be

installed would be to access the other properties . . . that would come off that road”

and that “[s]torm[]water improvements would be installed to prevent soil and

erosion problems . . . .” (Supplemental Reproduced Record (S.R.R.) at 64b-65b.)

The Township Secretary also testified that the property was last listed at $250,000.

(Id. at 14b.)

In explaining the rationale for its decision, the trial court stated the following:

[W]e find that the language in the Note is clear and unambiguous. We,

therefore, need not address evidence outside the four corners of the

document as to the “subject matter, the intent or purpose of the parties

and the conditions surrounding execution of the covenant”. In any

event, upon review of the exhibits and affidavits, we have found little

admissible or relevant information that would assist us in interpreting

the Note. Further, the parties did not dispute that the subdivision of . .

. [the Lots] was completed and, therefore, we do not find it relevant that

they remain part of one tax parcel, along with the [R]esidue. Thus, we

find that the language in the Note restricts the [] Trust from selling . . .

[the Lots] until it completes the stated improvements. The [] Trust

cannot sell . . . [the Lots] as part of a larger [P]arcel to circumvent the

restrictions placed in the Note. The Trust’s settlor and predecessor in

title, [Shuey,] agreed to the Note and it is binding upon the [] Trust.

5

(Trial Court’s March 14, 2018 Op. at 8-9, R.R. at 190a-91a.) In its Opinion issued

pursuant to Pennsylvania Rule of Appellate Procedure 1925(a), Pa.R.A.P. 1925(a),

(Rule 1925(a) Op.), responding to Trustee’s argument that the trial court had

impermissibly expanded the Note in denying Trustee’s Motion, the trial court added

that “[t]he sale of [the Lots] . . . as part of . . . [the Parcel] is still the sale of [the

Lots].” (Rule 1925(a) Op. at 4, R.R. at 213a.) The trial court further found that it

did not need to address Trustee’s allegation that there were material facts in dispute,

as the trial court found those alleged facts to pertain to who drafted the Note, and,

because the trial court found the Note unambiguous, it determined it unnecessary to

reach this issue. Trustee appealed the trial court’s decision to this Court.8

II. PARTIES’ ARGUMENTS

Trustee contends that the trial court abused its discretion and/or erred as a

matter of law when it denied Trustee’s Motion and granted the Township’s Motion

based on the trial court’s conclusion that the Note requires the road installation and

storm water improvements to occur before the Parcel can be transferred as a single

56.7-acre parcel. Trustee argues that the Note “speaks for itself,” in that its plain

words do not prohibit Trustee from transferring the Parcel as one tract of land before

making the road and storm water improvements. (Trustee’s Brief (Br.) at 19.) To

support this position, Trustee points to the fact that the Parcel was already transferred

to the Shueys’ revocable trust in 1999 and then to the Trust in 2001 without any

action taken by the Township requiring the road be paved and the storm water

improvements implemented. Therefore, Trustee asserts that the Note only requires

8

“This Court’s review of a trial court’s order granting or denying a motion for summary

judgment is limited to determining whether the trial court committed an abuse of discretion or an

error of law.” Sacco v. Twp. of Butler, 863 A.2d 611, 613 (Pa. Cmwlth. 2004).

6

the installation of the road and storm water improvements before the Lots, or any

combination of the same, are sold separate from the Parcel. Trustee argues that the

trial court erred by failing to strictly construe the Note against the Township because

such restrictive covenants are disfavored by the law due to their interference with

the rights of landowners to freely alienate their property and by not resolving any

ambiguity in the Note in Trustee’s favor. Further, Trustee argues that the trial court

impermissibly enlarged the Note by adding language that did not exist. Finally,

Trustee asserts that, with respect to the Township’s Motion, there are material facts

in dispute regarding who drafted the Note and whether the Lots exist as separate

taxable entities from the Parcel, facts that the trial court relied upon in making its

decision. Accordingly, the Trust asks this Court either to reverse the trial court’s

order and require the trial court to grant Trustee’s Motion or, in the alternative, to

vacate the trial court’s order granting the Township’s Motion and order the matter

to proceed to trial.

The Township argues that the trial court correctly determined that the Note’s

language was unambiguous and that the trial court properly gave plain meaning to

the clear words of the Note in finding that it prohibited the sale of the Lots either

separately from the Parcel or as part of the Parcel without the improvements first

being made. The Township posits that

[a] logical reading of the [N]ote and the one most consistent with the

law is that the agreement allowed the sales of Lot[] [Nos.] 3 and []4

without restriction with the proviso and [in] exchange for the clear right

to enforce the restriction against any type of sale of the remaining lots

unless the required roads were completed first.

(Township’s Br. at 19.) The Township asserts that it has the right to impose

restrictions accepted by the parties to the covenant and that the Trust’s failure to

7

previously challenge the Note results in a waiver under Doylestown Township v.

Teeling, 635 A.2d 657 (Pa. Cmwlth. 1993), which held that a subdivider’s “failure

to object to restrictive conditions constituted a waiver of the right to seek review.”

(Township’s Br. at 13 (citing Doylestown, 635 A.2d at 660).) The fact that the Parcel

and the Lots continue to have only one tax identification number, the Township

submits, is immaterial to whether the restriction is enforceable on the Lots. And

because the previous transfers from the Shueys to the revocable trust and then from

the revocable trust to the Trust are not taxed, the Township argues that it was not

aware of these transfers at the time and, therefore, had no occasion to enforce the

Note at those times. Further, the Township asserts that who requested the Note is

not material for this determination. Finally, the Township argues that Trustee’s suit

is barred by governmental immunity under what is commonly referred to as the

Political Subdivision Tort Claims Act (PSTCA), 42 Pa.C.S. §§ 8541-8542, and that

the Township’s Supervisors are protected by qualified immunity, high public official

immunity, and official immunity.

Prior to oral argument, this Court ordered the parties to submit supplemental

briefs addressing certain questions.9 In her supplemental brief, Trustee argues that

9

The Court ordered the parties to file supplemental briefs addressing the following issues:

(1) Are lots created and do they legally exist when a final subdivision plan is approved and

recorded? If not, when are they created and legally in existence? (2)(a) What is the effect, if any,

of the Note on the creation or legal existence of the Lots? (2)(b) Is the Note a condition of

subdivision approval that was agreed to by the Shueys? (3) What effect, if any, does the prior sale

of lots 3 and 4 have on the creation or legal existence of the Lots? (4) What effect, if any, does

the length of time, being more than 30 years, between the approval/recording of the Subdivision

Plan and the attempt to sell the Lots have on the Subdivision Plan and the Note? Does the sale of

lots 3 and 4 affect this analysis? (5) What effect, if any, does the fact that the Lots do not have

separately recorded deeds or tax parcel identification numbers have on the determination of their

creation or legal existence? (6) If the Lots are legally in existence and are all sold with the Residue

to the same buyer, will the sale be considered a separate sale of each lot? If so, does this separate

(Footnote continued on next page…)

8

(1) the Lots do not legally exist from the approval and recording of a final

subdivision plan because they have not been separated from the Parcel and are not

taxed separately; (2) the Shueys’ agreement to the restriction is not material for its

enforcement; (3) the prior sale of Lot Nos. 3 and 4 had no effect on the legal

existence of the Lots; (4) the passage of time since the Subdivision Plan’s recording

bars the Township from enforcing the Note under the doctrine of laches; (5) the Lots

have no separate tax parcel identification number, which means the Lots have not

been created; and (6) the subsequent note following the Note at issue on the

Subdivision Plan, which states that “each individual lot purchaser will be responsible

for [its] own storm water management in accordance with the latest . . . Township

Subdivision Ordinances,” (R.R. at 218a), does not affect this Court’s interpretation.

In its supplemental brief, the Township argues that (1) lots are legally created

upon approval and recording of a subdivision plan; (2) the Lots cannot be sold

separately from the Parcel under the Note absent the implementation of the

improvements in the Note first; (3) the Shueys’ acceptance of the Note and the

Trust’s lack of objection to the Note over the past 30 years blocks the present

challenge to the Note’s enforcement; (4) the fact that the Lots do not have separate

tax parcel identification numbers does not affect this Court’s analysis; and (5) the

previous transfers to and between the trusts were not taxable and, therefore, the

sale, albeit to the same buyer, trigger the Trust’s obligations pursuant to the Note to make the road

and storm water improvements prior to the sale? How does a sale to the same buyer of the Lots,

even if considered separate sales, impact the purposes behind the Note, which, the Township

Secretary testified, are to increase access and to mitigate any runoff with the creation of new roads?

(7) Should our interpretation of the Note regarding the installation of road and storm water

improvements be influenced by the note immediately following the Note, which uses the phrase

“individual lot purchaser,” in that it suggests that the Township and the Shueys operated under the

belief that the storm water improvements would be necessary when the Lots would be sold to

individual purchasers? (April 11, 2019 Order.)

9

Township was not aware of the transfers and thus lacked the opportunity to enforce

the Note at those times.

III. ANALYSIS

A motion for summary judgment “is properly granted where there is no

genuine issue of material fact as to a necessary element of a cause of action and the

moving party has clearly established entitlement to judgment as a matter of law.”

LaChance v. Michael Baker Corp., 869 A.2d 1054, 1056 n.3 (Pa. Cmwlth. 2005).

For the purposes of summary judgment, “[a] fact is material only if it directly affects

the disposition of the case.” Pyeritz v. Commonwealth, 956 A.2d 1075, 1079 (Pa.

Cmwlth. 2008) (citing Allen v. Colautti, 417 A.2d 1303 (Pa. Cmwlth. 1980)).

A. Waiver

As an initial matter, the Township argues that the Trust waived the right to

challenge the Note by accepting the Note’s inclusion in the Subdivision Plan without

objection. In Bonner v. Upper Makefield Township, 597 A.2d 196, 214 (Pa. Cmwlth.

1991), we explained that the acceptance of a subdivision plan’s condition without

objection constitutes a waiver to the future challenge to the validity of the condition.

See also Doylestown, 635 A.2d at 660. In the present case, however, while it is

undisputed that Shuey accepted the Note’s condition, Trustee is not presently

challenging the validity of the Note in the Subdivision Plan. Rather, Trustee is

challenging the Township’s and the trial court’s interpretation of the Note and

whether the Note is implicated by the sale of the Lots and the Parcel as one single

tract of land. Accordingly, the Township’s waiver argument is inapplicable.

10

B. Immunity

The Township also raises several immunity arguments, which the Court next

considers. Section 8541 of the PSTCA provides that “[e]xcept as otherwise provided

in this subchapter, no local agency shall be liable for any damages on account of any

injury to a person or property caused by any act of the local agency or an employee

thereof or any other person.” 42 Pa.C.S. § 8541. We have explained that “[t]his

immunity applies both to damages claims and to claims for injunctive relief that

require the government agency to take affirmative action to make physical

alterations to property.” Plaza v. Herbert, Rowland & Grubic, Inc. (Pa. Cmwlth.,

No. 344 C.D. 2016, filed Jan. 30, 2017), slip op. at 7 (citing Swift v. Dep’t of Transp.,

937 A.2d 1162, 1168 & n.7 (Pa. Cmwlth. 2007)).10 In the present case, Trustee is

not seeking damages, as Trustee’s damages claim was dismissed following the

Township’s Preliminary Objections, or injunctive relief that would require the

Township to take any affirmative action to make physical alterations to the Lots or

the Parcel. Instead, Trustee seeks declaratory judgment as to the proper

interpretation of the Note and the applicability of the Note to a sale of the Parcel as

a whole. The Township is thus not immune on this basis.

The Township also argues that its Supervisors are immune from suit on the

bases of qualified immunity and high public official immunity. “The doctrine of

qualified immunity has been applied in actions against government officials alleging

the violation of rights guaranteed under the United States Constitution.” Lancie v.

Giles, 572 A.2d 827, 829 (Pa. Cmwlth. 1990). See also Salerno v. Corzine, 449 F.

App’x 118, 123 (3d Cir. 2011) (“[I]t is well established that qualified immunity does

10

Unreported decisions of this Court, while not binding, may be cited for their persuasive

authority pursuant to Pennsylvania Rule of Appellate Procedure 126(b)(2), Pa.R.A.P. 126(b)(2),

and Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).

11

not bar actions for prospective relief, such as an injunction or declaratory

judgment.”); Hill v. Borough of Kutztown, 455 F.3d 225, 244 (3d Cir. 2006)

(explaining that qualified immunity does not defeat a plaintiff’s due process claim

to the extent the plaintiff requests a name-clearing hearing because qualified

immunity is available only for damages, not for claims requesting prospective

injunctive or declaratory relief). Similarly, our Supreme Court has explained that

[t]he doctrine of absolute privilege for high public officials . . . is

unlimited and exempts a high public official from all civil suits for

damages arising out of false defamatory statements and even from

statements or actions motivated by malice, provided the statements

are made or the actions are taken in the course of the official’s duties or

powers and within the scope of his authority . . . .

Lindner v. Mollan, 677 A.2d 1194, 1195-96 (Pa. 1996) (emphasis added). Here,

however, regarding the Township’s immunity argument under Section 8541, Trustee

is not seeking damages against the Supervisors, as the trial court dismissed Trustee’s

sole claim for damages. Nor is Trustee alleging any claims arising under the United

States Constitution or out of defamatory statements by the Supervisors, and,

therefore, both of these immunity defenses are inapplicable.

The Township’s final immunity argument is that the Supervisors have official

immunity under Hafer v. Melo, 502 U.S. 21 (1991). However, Hafer pertained to

suits brought under 42 U.S.C. § 1983. Accordingly, this Court does not find Hafer

to be persuasive authority on this matter. Regardless, assuming that the Township

is arguing official immunity under 1 Pa.C.S. § 2310,11 our Supreme Court has

explained that “[a]lthough declaratory relief does affirmatively affect the

11

1 Pa.C.S. § 2310 states, in relevant part, that “the Commonwealth, and its officials and

employees acting within the scope of their duties, shall continue to enjoy sovereign immunity and

official immunity and remain immune from suit . . . .”

12

functioning of state officials administering our statutory law, it does not directly

compel an affirmative act.” Fawber v. Cohen, 532 A.2d 429, 434 (Pa. 1987).

Therefore, the Supreme Court held that the same reasoning applies to suits seeking

declaratory relief under the Declaratory Judgments Act,12 which it held are not barred

under official immunity. Id. We are, therefore, not persuaded by Township’s

official immunity argument.

C. The Note

While it is well settled that restrictive covenants are enforceable, they are not

favored by the law in this Commonwealth. See Doylestown, 635 A.2d at 660;

Lauderbaugh v. Williams, 186 A.2d 39, 41 (Pa. 1962) (explaining that restrictive

covenants are “not favored in the law” because they restrain the right to freely

alienate one’s land). In Doylestown, we examined an unambiguous restrictive

covenant that restricted further subdividing of the property at issue. We explained

that

[a] restrictive covenant is a restriction in an instrument relating to real

estate by which the parties pledge that something will not be done . . . .

Such covenants are said to run with the land, when not only the

original parties or their representatives, but each successive owner of

the land, will be entitled to its benefit, or be liable (as the case may be)

to its obligation. Although restrictive covenants are not favored by

the law and are strictly construed against those seeking to enforce

them, they are legally enforceable. Restrictive covenants are

construed in light of the subject matter [and] the intent or purpose

of the parties and the conditions surrounding execution of the

covenant . . . .

12

42 Pa.C.S. §§ 7531-7541. Section 7541(a) indicates that the purpose of the Declaratory

Judgment Act is to “settle and afford relief from uncertainty and insecurity with respect to rights,

status, and other legal relations, and is to be liberally construed and administered.” 42 Pa.C.S.

§ 7541(a).

13

635 A.2d at 661 (internal citations and quotations omitted; emphasis added). Thus,

in reviewing the enforceability of a restrictive covenant, whether ambiguous or not,

this Court must consider the intent of the parties and the conditions surrounding its

execution while strictly construing its terms against the party seeking its

enforcement.

In interpreting the intent of the parties to a restrictive covenant and the

restriction’s terms, restrictive covenants are governed by the same rules as

interpretation of a contract. Great Atl. & Pac. Tea Co. v. Bailey, 220 A.2d 1, 2-3

(Pa. 1966). “It is a fundamental rule of contract interpretation that the intention of

the parties at the time of contract governs and that such intent must be ascertained

from the entire instrument.” Vernon Twp. Volunteer Fire Dep’t, Inc. v. Connor, 855

A.2d 873, 879 (Pa. 2004). Therefore, “[i]n order to ascertain the intentions of the

parties, restrictive covenants must be construed in light of: (1) their language; (2) the

nature of their subject matter; (3) the apparent object or purpose of the parties; and

(4) the circumstances or conditions surrounding their execution.” Id.

With regard to any potential ambiguities, language in a restrictive covenant is

ambiguous if it “is reasonably susceptible of different constructions and capable of

being understood in more than one sense.” Hutchinson v. Sunbeam Coal Corp., 519

A.2d 385, 390 (Pa. 1986). The question of whether an ambiguity exists cannot “be

resolved in a vacuum.” Madison Constr. Co. v. Harleysville Mut. Ins. Co., 735 A.2d

100, 106 (Pa. 1999). Instead, “terms are ambiguous if they are subject to more than

one reasonable interpretation when applied to a particular set of facts.” Id.

(emphasis added). Stated differently, “whether the language of a[] [restrictive

covenant] is clear and unambiguous may not be apparent without cognizance of the

context in which the agreement arose.” Steuart v. McChesney, 444 A.2d 659, 662

14

(Pa. 1982) (emphasis added); see also Great Atl. & Pac. Tea Co., 220 A.2d at 2-3.

In Great Atlantic, the Supreme Court held that the interpretation of a restrictive

covenant is governed by “the intention of the parties at the time the contract is

entered into” through examining the circumstances as they existed at the time of

the execution. 220 A.2d at 2 (emphasis added). Indeed, “[s]ome of the surrounding

circumstances always must be known before the meaning of the words can be plain

and clear; and proof of the circumstances may make a meaning plain and clear

when in the absence of such proof some other meaning may also have seemed

plain and clear.” Steuart, 444 A.2d at 661 (emphasis added) (quoting 3 Corbin,

Corbin on Contracts § 542 (1960)). Finally, the Supreme Court explained that even

assuming “that an ambiguity exists, it has long been the law that the ambiguity in

a restrictive covenant must be construed against the one to be benefited by the

restriction.” Great Atl. & Pac. Tea Co., 220 A.2d at 3 (emphasis added).

An example of reasonably interpreting a restrictive covenant in light of the

particular facts presented and the context in which it arose, while also preserving the

continuity of covenants that run with the land, is Covey v. Gross, 547 A.2d 1214 (Pa.

Super. 1988).13 That case involved a restriction that stated:

The land herein conveyed shall be used for private residence purposes

only and no building of any kind shall be erected thereon except private

dwelling houses, each designed for occupancy by a single family and

private garages for the sole uses of the respective owners or occupants

of the lot upon which such garages are erected; provided further, that

no such private garages shall be erected on any lot unless a dwelling

house shall be first erected upon the lot, or shall have been erected

simultaneously with the erection of such garage, nor shall any building

be erected or constructed of cinder block or cement block unless such

13

Although not binding, this Court may cite a decision of the Superior Court for its

persuasive value. Lerch v. Unemployment Comp. Bd. of Rev., 180 A.3d 545, 550 (Pa. Cmwlth.

2018).

15

cinder block or cement block shall be faced with other material so that

none of the said block is exposed in the exterior walls.

Id. at 1215 (emphasis added). When the owners of a dwelling on one lot wished to

build a free-standing garage on the adjoining lot, a neighbor brought suit claiming

that the restrictive covenant required the owners to first construct a separate dwelling

on the adjoining lot. Looking to the parties’ purpose behind the restrictive covenant,

the court found that the restrictive covenant “was obviously intended to preserve the

residential character of the neighborhood by requiring single-family residences and

permitting garages only in connection with such residences.” Id. at 1216 (emphasis

added). Treating the two contiguous lots as one and, in light of the parties’ intent

behind the restriction and the context surrounding its execution, the court determined

that this intent was not violated or impaired by the owners’ use of the two contiguous

lots for a single-family residence and unattached garage, nor did it place a burden on

the neighbors. Id. The court cautioned that its holding did “not mean that if, in the

future, the land . . . should be subdivided, the garage can then be maintained on a lot

without a dwelling house” as the restrictive covenant would continue to run with

the land. Id. The court held “only that the facts established in this case do not

constitute a violation of the restriction.” Id.

As in Covey, we examine the particular facts of this case and the context in

which this 35-year-old restrictive covenant arose. The Note states: “Lots 1, 2 and 5

will not be sold prior to the installation of the proposed roadway shown hereon and

the associated storm water management required to facilitate the roadway drainage

in accordance with the latest . . . Township Zoning and Subdivision Ordinance.”

(R.R. at 218a.) There is no dispute that, as the Township Secretary testified, the

purpose of the restriction was to provide the Lots with “access [to] the other

properties,” while the associated storm water improvements would prevent runoff

16

that could cause soil and erosion issues resulting from the construction of the roads.14

(S.R.R. at 64b-65b.) The Township’s Brief in Support of its Motion for Summary

Judgment cites to this testimony as proof of the context in which this restrictive

covenant arose. (R.R. at 155a.) Indeed, a review of the Subdivision Plan further

confirms this purpose. The Lots are located on the edge of the Parcel, and one of

the proposed roadways, running north to south, appears to bisect Lot Nos. 1 and 2

from Lot No. 5, while the other proposed roadway, running east to west, appears to

bisect Lot No. 1 from Lot No. 2. (Id. at 217a-18a.) Considering the language of the

Note, together with the testimony and the Subdivision Plan itself, it is evident that

the reason for requiring the road, and thus the “the intention of the parties at the time

the contract is entered into” was to provide the access to the Lots which would

become necessary when the Lots were sold separately from the Parcel. Great Atl.

& Pac. Tea Co., 220 A.2d at 2. The storm water improvements would be required

to mitigate any increased runoff resulting from the construction of the two roads.

See Cogan House Township v. Lenhart, 197 A.3d 1264, 1268 (Pa. Cmwlth. 2018)

(explaining that where a township engaged in alteration or development of land by

performing modifications to a road, the township was required to implement

measures to prevent injury from changes in runoff that might occur, as required by

the Storm Water Management Act15).

In determining whether a transfer of the entire Parcel should be construed as

the “sale of Lots 1, 2, and 5,” which triggers the obligations in the Note, we examine

the facts and context in which the Note arose and the parties’ intention behind its

inclusion. Transferring the entire Parcel as it has existed for the past 35 years to a

14

We note that neither of the parties argue that there is any issue of material fact

surrounding the Note’s purpose that would preclude summary judgment.

15

Act of October 4, 1978, P.L. 864, as amended, 32 P.S. §§ 680.1 – 680.17.

17

new owner would change only the name on the deed, but it would not create a need

for access to the individual lots different than has existed. Further, the Subdivision

Plan did not address the sale of the entire Parcel, including the Residue, which

together form a large, 65-acre tract of land; instead, by its terms, the Subdivision

Plan applies only to the roughly 15 acres contained in the Parcel. Importantly, the

Note would continue to require the roads to be built before any sale of the Lots could

occur. The Parcel would simply continue to exist in the same condition as it has for

the past 35 years, while the only substantive change would be the name that appears

on the deed.

Under the Township’s and the trial court’s interpretation, however, the Trust

would be required to pave roadways to these 35-year-old paper Lots and make storm

water improvements merely because of the transfer of the title to the Parcel. While

it might be possible to interpret the language in the restrictive covenant, when

considered in isolation, to require this, because the Trust’s alternative interpretation

is reasonable, the result would be that the Note is ambiguous. Because any

“ambiguities in the language of [a restrictive] covenant are to be resolved in favor

of the property owner,” Covey, 547 A.2d at 1215, as it restricts, in this case, the

owner’s free alienation of its real property, Lauderbaugh, 186 A.2d at 41, the Note

must be strictly construed against the Township and resolved in favor of the Trust.

When strictly construed, this Note does not require the installation of roads and

storm water improvements under these circumstances where this entire Parcel,

including the paper Lots, along with the Residue, would be transferred to a new

developer.

The Township’s interpretation is not unlike the neighbors’ interpretation of

the restrictive covenant in Covey, 547 A.2d at 1215. The neighbors there did not

18

look to the purpose behind the restrictive covenant, seemingly examining the

covenant in a vacuum to argue that the owners could not build a garage on the lot

adjoining their dwelling without first building a wholly separate dwelling. Similar

to the unreasonable nature of requiring a second dwelling to be built in Covey, under

these facts and in this context, it is not reasonable to require the roads and associated

storm water improvements to be installed here to simply transfer ownership of the

entire Parcel. Importantly, like the restrictive covenant that continued to run with

the land in Covey, the Note here will continue to run with the land binding any

subsequent purchaser that desires to sell off the Lots separately from the Parcel in

the future. Doylestown, 635 A.2d at 661.

IV. CONCLUSION

In conclusion, considering the context in which this restrictive covenant arose,

the most reasonable interpretation is that the Trust may transfer the Lots as part of

the entire Parcel without first having to build a road and make the associated storm

water improvements. Accordingly, we reverse the trial court’s order granting the

Township’s Motion. We remand this matter with direction for the trial court to enter

judgment in favor of Trustee.

_____________________________________

RENÉE COHN JUBELIRER, Judge

19

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Barbara Gosselin, Trustee for :

the Living Trust of Clarence :

K. Shuey, :

Appellant :

:

v. : No. 531 C.D. 2018

:

The Supervisors of North Manheim :

Township, Schuylkill County, :

Pennsylvania :

ORDER

NOW, May 28, 2021, the order of the Court of Common Pleas of Schuylkill

County is REVERSED. The matter is REMANDED, and the Court of Common

Pleas of Schuylkill County is DIRECTED to enter judgment in favor of Barbara

Gosselin, Trustee for the Living Trust of Clarence K. Shuey.

Jurisdiction relinquished.

_____________________________________

RENÉE COHN JUBELIRER, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Barbara Gosselin, Trustee for the :

Living Trust of Clarence K. Shuey, :

Appellant :

:

v. :

:

The Supervisors of North Manheim :

Township, Schuylkill County, : No. 531 C.D. 2018

Pennsylvania : Argued: November 13, 2019

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

CONCURRING AND DISSENTING OPINION

BY JUDGE FIZZANO CANNON FILED: May 28, 2021

I agree with the majority’s determination that the Supervisors of North

Manheim Township, Schuylkill County, Pennsylvania (Supervisors) are not immune

from the action brought by Barbara Gosselin, Trustee for the Living Trust of

Clarence K. Shuey (Trustee), under the circumstances of this case. I therefore

concur with that portion of the majority’s opinion.

However, I respectfully disagree with the majority’s analysis and

conclusion on the merits of this matter. Trustee, as successor-in-interest to Clarence

K. Shuey (Shuey), is bound by the Note added by the parties as a condition of the

Supervisors’ approval of Shuey’s final subdivision plan (Plan) regarding

development of five lots (Subdivision) within a larger tract of property (Property)

Shuey owned in North Manheim Township (Township). Contrary to the majority’s

reasoning, the Note’s restriction on the sale of Lots 1, 2, and 5 in the Subdivision as

part of a sale of the Property, pending construction of the streets and stormwater

management facilities shown in the Plan, accords with the provisions of the

Township’s subdivision ordinance, known as The North Manheim Township

Subdivision Regulations (Ordinance),1 both as of the time of the Plan approval and

currently. The Note is an unambiguous condition of the Subdivision, and the

Ordinance is equally unambiguous. Neither should be ignored or rewritten by this

Court. Accordingly, I would affirm the order of the Court of Common Pleas of

Schuylkill County (trial court) denying summary judgment in favor of Trustee and

granting summary judgment in favor of the Supervisors.

Although “restrictive covenants are not favored by the law and are

strictly construed against those seeking to enforce them, they are legally

enforceable.” Doylestown Twp. v. Teeling, 635 A.2d 657, 661 (Pa. Cmwlth. 1993)

(emphasis added). As the majority correctly observes, Trustee does not question the

Note’s validity, only its meaning. Gosselin v. Supervisors of N. Manheim Twp. (Pa.

Cmwlth., No. 531 C.D. 2018, filed May 28, 2021), slip op. at 10. The majority also

correctly states that we must construe the Note in light of the circumstances

surrounding its execution: “[r]estrictive covenants are construed in light of the

subject matter, the intent or purpose of the parties and the conditions surrounding

execution of the covenant.” Id. (citing Gey v. Beck, 568 A.2d 672 (Pa. Super. 1990)).

1

See The North Manheim Township Subdivision Regulations (Ordinance), § 1.1 (2010).

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Under Subsection 508(4)(ii) of the Pennsylvania Municipalities

Planning Code (MPC),2

When an application for approval of a plat, whether

preliminary or final, has been approved without conditions

or approved by the applicant’s acceptance of conditions,

no subsequent change or amendment in the zoning,

subdivision or other governing ordinance or plan shall be

applied to affect adversely the right of the applicant to

commence and to complete any aspect of the approved

development in accordance with the terms of such

approval within five years from such approval.

53 P.S. § 10508(4)(ii). Thus, the MPC “provides a developer a five-year window to

develop an approved subdivision without compliance with subsequent changes in

local ordinances that occur during that time.” Bd. of Supervisors v. Diehl, 694 A.2d

11, 13 n.2 (Pa. Cmwlth. 1997). Where the developer fails to develop the property in

compliance with the approved subdivision plan within five years after the plan’s

approval, development must comply with the requirements of the current

subdivision ordinance. Id.; see also Gallagher v. Chestnuthill Twp., 968 A.2d 253,

256 (Pa. Cmwlth. 2009) (under previous version of Section 508(4)(ii) of the MPC,3

where developer did not install streets as shown in approved subdivision plan for

over 20 years, development was subject to requirements of amended ordinance).

Here, moreover, the Note provides: “Lots #1, #2 and #5 will not be sold prior to the

installation of the proposed roadway shown hereon and the associated storm water

management required to facilitate the roadway with the latest North Manheim

2

Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.

3

The previous version of Section 508(4)(ii) of the MPC contained the same language as

the current version, except that it provided a three-year window rather than a five-year window

after subdivision approval for completion of a development without a requirement of compliance

with any amendments to the subdivision ordinance. See former 53 P.S. § 10508(4)(ii).

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Township Zoning and Subdivision Ordinance.”4 (Emphasis added.) This provision

and Section 508(4)(ii) of the MPC both make the current Ordinance’s requirements

relevant to any construction of the Note. However, in analyzing whether the Note

is ambiguous, the majority fails to consider and apply any provisions of either the

former or the current Ordinance.5 Considered in the context of both the former and

current versions of the Ordinance, the Note’s plain language unambiguously forbids

any sale of Lot 1, 2, or 5 – whether separately or as part of a sale of the Property –

until the roads required by the Plan, together with accompanying stormwater

management, have been constructed in accordance with the latest Ordinance.

Both the former and current versions of the Ordinance define a

“Subdivision” as including

any development of a parcel of land (including industrial

parks . . .), which involves installation of streets and/or

alleys, even though the streets and/or alleys might not be

dedicated to public use and the parcel might not be divided

immediately for purposes of conveyance, transfer, or sale,

4

The Amended Complaint purports to attach a full copy of the Plan, including the Note,

as Exhibit D. However, the attachment contained in the reproduced record (R.R.) is illegible. See

R.R. at 218.

5

Of relevance here, Section 2.4 of the current Ordinance defines a “Lot” as “[a] tract or

parcel of land, regardless of size, intended for transfer of ownership, use, or improvements or for

development. All new building lots shall have frontage on a public or approved private street.”

Ordinance, § 2.4 (emphasis added). The former version of the definition of a “Lot” was the same,

except that it did not include the italicized language. See Suppl. R. at 3 (former Ordinance, § 2.4).

Section 5.521 of the current Ordinance, relating to lot frontage, provides: “All lots shall

have direct access to, and have frontage on, a public street existing or proposed, or to a private

street if it meets the requirements of these regulations.” Ordinance, § 5.521 (emphasis added).

The former version of that provision was the same except that it did not include the italicized

language. See Suppl. R. at 39 (former Ordinance, § 5.521).

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or even though the owner does not transfer legal or

equitable title.

Ordinance, § 2.4(d) (emphasis added); Suppl. R. at 7 (former Ordinance, § 2.4(d))

(emphasis added). Lots 1 through 5 were, therefore, created by Subdivision upon

approval of the Plan. No additional division by deed or tax map was required to

effectuate the Subdivision.

Moreover, the current and prior Ordinances define a “Lot” as “[a] tract

or parcel of land, regardless of size, intended for transfer of ownership, use, or

improvements or for development.” Ordinance, § 2.4 (emphasis added). Regardless

of whether they became separately deeded or identified as separate tax parcels, Lots

1, 2, and 5 were unquestionably “intended for transfer . . . or for development” at the

time Shuey filed the Plan. See id. Therefore, contrary to Trustee’s argument, Lots

1, 2, and 5 became “Lots” in the Subdivision within the meaning of both the former

and current Ordinances when the Supervisors approved the Plan.

The current Ordinance, under which the Note requires that the roadway

and stormwater management be facilitated, expressly states that “[a]ll new building

lots shall have frontage on a public or approved private street.” Ordinance, § 2.4;

see also id., § 5.521 (“[a]ll lots shall have direct access to, and have frontage on, a

public street existing or proposed”). These road frontage requirements of Sections

2.4 and 5.521 were added to the Ordinance by amendment in 2006. See Ordinance,

App. L; compare Ordinance, §§ 2.4 (definition of “Lot”) & 5.521, with Suppl. R. at

3 (former Ordinance, § 2.4 definition of “Lot”) & 39 (former Ordinance, § 5.521).

Their addition further underscores the importance already placed by the Township

and Supervisors on road access to subdivisions under the former Ordinance.

Both the former and current versions of the Ordinance also require that

before an approved final subdivision plan may be recorded, the subdivider “shall

CFC-5

guarantee the installation of all required improvements” to the property, by either

installing the improvements or posting a bond in the amount of 120% of the

estimated cost of the improvements. Ordinance, §§ 3.911 & 3.912; Suppl. R. at 18-

19 (former Ordinance, §§ 3.911 & 3.912). Notably, all improvements must be

completed within one and one-half years from final subdivision plan approval,

although the Supervisors may extend the deadline for a further one and one-half

years.6 Ordinance, § 3.912; Suppl. R. at 19 (former Ordinance § 3.912). A

defaulting subdivider is liable to the Township for the cost of improvements that are

not installed as provided in the approved final subdivision plan. Ordinance, § 3.912;

Suppl. R. at 19 (former Ordinance § 3.912).

The Township’s Planning Commission, with the Supervisors’ approval,

may modify the requirements of the Ordinance “conditionally in individual cases as

may be necessary in the public interest, provided, however, that such variation shall

not have the effect of nullifying the intent and purpose of” the Ordinance.

Ordinance, § 8.2. As demonstrated by the various provisions cited above, one clear

purpose of the current and prior Ordinances is to avoid the creation of subdivisions

having any lots without direct street access. Thus, although the majority contends

its reading of the Note is the more reasonable one, it has the necessary effect of

violating Section 8.2 of the Ordinance by nullifying the Ordinance’s purpose of

assuring street access to all lots in every subdivision.

Importantly, even if the Note did not exist at all, Lots 1, 2, and 5 could

not be sold until the street and stormwater management improvements were

6

Notably, the Plan was approved in 1986, and the Township did not amend the Ordinance

until 2006. Although I do not believe the differences between the former and current versions of

the Ordinance are determinative of any issue in this matter, I observe that had Shuey or his

successor-in-interest complied with the Ordinance’s deadline for completion of the improvements,

no amendment to the Ordinance would be implicated here at all.

CFC-6

constructed or guaranteed. The current Ordinance provides that “[n]o lot in a

subdivision shall be sold . . . until a [f]inal [p]lan of such subdivision shall have been

approved and properly recorded and until improvements have been either

constructed or guaranteed.”7 Ordinance, § 8.51 (emphasis added); Suppl. R. at 53

(former Ordinance, § 8.51) (emphasis added). Despite these stringent requirements

of the Ordinance prohibiting the sale of any lots of a subdivision without installation

of the roadway and stormwater improvements, there is no dispute that Lots 1, 2, and

5 currently have no frontage on a public or approved private street. See Gosselin,

slip op. at 3. Rather, the installation of the streets and stormwater management

facilities has been neither completed nor guaranteed.

The Note’s restriction on the sale of Lots 1, 2, and 5 furthered the

purpose of the prior and current Ordinances. Shuey obtained approval of the Plan

and permission to sell Lots 3 and 4 immediately, conditioned on the future

installation of streets to provide access to Lots 1, 2, and 5. He agreed to that

condition, and in return, the Supervisors deviated from the normal requirement of

the Ordinance that would have compelled Shuey to install the streets providing

access to Lots 1, 2, and 5, or post a bond in the amount of 120% of their cost, before

selling any of the lots. Shuey thereby enjoyed the advantage of selling Lots 3 and 4,

which had road frontage, without the necessity of first providing road access to the

remaining lots. In these circumstances, the clear meaning and intent of the Note

added to the Plan was to make sure that road access to Lots 1, 2, and 5, which is

expressly required by the Ordinance, would be provided for those lots by the

7

The mandatory nature of this requirement is underscored by the provision that “[a]ny

subdivider who . . . sells, leases, transfers or agrees to enter into an agreement to sell . . . any lot . . .

in a subdivision without first having complied with all the provisions of this ordinance shall be

guilty of a misdemeanor.” Ordinance, § 8.52.

CFC-7

subdivider. Under the Ordinance, Lots 1, 2, and 5 are already individual lots and are

part of a Subdivision under the Plan, even though the streets have not been

constructed and the lots have not been sold individually. Accordingly, the street

access requirement of the Ordinance remains applicable. However, because neither

Shuey nor Trustee as his successor-in-interest ever complied with the street

installation requirement, Lots 1, 2, and 5 lack street access, in defiance of both the

Ordinance and the Plan.

Significantly, there is a proper municipal process in place to accomplish

what the majority has improperly approved by its decision to modify the plain

meaning of the Note on the Plan and ignore the terms of the Ordinance. The

Ordinance provides a specific procedure for a re-subdivision to alter the

configurations of lots in a previously approved subdivision plan. To make any

change to lot lines in an approved subdivision plan, the subdivider must submit the

previously recorded plan to the Township Planning Commission and the Supervisors

and obtain their endorsements of the changes, which must be recorded on the plan.

Ordinance, §§ 3.102 & 3.1021. However, re-subdivision is “limited to changes in

lot lines on the approved [f]inal [p]lan . . . ”; any other changes, like removing a

condition of approval, are “considered as constituting a new subdivision of land”

and must comply with the Ordinance’s subdivision requirements. Id., § 2.4. As

relevant here, lot line changes by re-subdivision on a recorded plan may not alter

street locations shown on the plan, and any resulting lot must still “abut an existing

or a proposed street.” Id., §§ 3.101, 3.1013 & 3.1014.

Thus, even if Trustee would be entitled to a re-subdivision removing

the lot lines of Lots 1, 2, and 5 in order to sell those lots as part of the Property, the

Ordinance provides that the re-subdivision could not alter the existing street

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locations. In order to alter, i.e., remove the existing street requirements, Trustee

would have to submit and obtain approval of a new subdivision plan. Notably, any

application for either a new subdivision plan or a re-subdivision would have to

demonstrate that the Property, including Lots 1, 2, and 5, has direct street access

with road frontage in compliance with the requirements of the Ordinance both before

and after the dissolution of the lot lines of Lots 1, 2, and 5. Trustee has not submitted

any such plan or application.

A new subdivision plan could have sought to remove the existing Note

and dissolve the lines forming Lots 1, 2, and 5, combining that land with the residue

of the Property. See Amended Complaint, Ex. D. This would require, under the

current Ordinance, street and stormwater improvements extending the existing road

(currently serving lots 3 and 4) to access one large lot instead of four, which would

predictably be much less costly. This, of course, would mean that the Trustee would

lose the identity of Lots 1, 2, and 5 as lots and approval of another new plan by the

Township would be necessary in the event that a future owner should desire to

restore those lots. However, rather than upholding the requirement of such

applications for re-subdivision or new subdivision before the Township as required

by the Ordinance, the majority declares the Note ambiguous, concluding that the

Note did not really mean its actual statement that Lots 1, 2, and 5 cannot be sold

until roads and stormwater management facilities are installed, but rather, that the

sale of the Lots and the remaining Property can take place as long as they are sold

together, regardless of what both the Ordinance and the Note require.

Further, the addition of the Note was a condition of approval of the Plan

to which the applicant, Shuey, agreed. If a governing body imposes a condition that

a subdivision applicant finds unacceptable, the applicant has the right to refuse the

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condition and appeal the denial of the application, but he must appeal within the time

prescribed by statute. Bonner v. Upper Makefield Twp., 597 A.2d 196, 200 (Pa.

Cmwlth. 1991) (citing Section 1002-A of the MPC,8 53 P.S. § 11002-A). “The

subdivider’s failure to object to [] conditions constitutes a waiver of the right to seek

review.” Doylestown, 635 A.2d at 660 (where township waived some subdivision

ordinance requirements in reliance on subdivider’s acceptance of conditions, and

subdivider did not appeal or object to those conditions, the conditions ran with the

land and were binding on successors in interest) (citing Bonner, 597 A.2d 196).

Here, the subdivider, Shuey, could have rejected the condition imposed

by the Note and appealed a denial of the subdivision or timely objected to the

condition. He did neither. He took advantage of the approved Plan and, for himself

and the beneficiaries of his trust, reaped the financial benefit of the Plan by selling

Lots 3 and 4, the only lots with road access, without first assuring road access to the

remaining Lots 1, 2, and 5. Importantly, again, even if the Note had not been agreed

to and did not appear on the Plan, the Ordinance requires that the road and storm

water improvements were required to be constructed or guaranteed before the lots

could be sold. See Ordinance, § 8.51; Suppl. R. at 53 (former Ordinance, § 8.51).

Now, in avoidance of the Ordinance, Trustee seeks to rescind a term

upon which the approval of the creation of all of the lots, including Lots 3 and 4,

was conditioned. Trustee could have applied for a new subdivision plan reversing

or extinguishing the existing Plan and combining Lots 1, 2, and 5 with the residue

of the Property for sale. She did not do so. Instead, Trustee seeks to have her

proverbial cake and to eat it, too. Trustee wishes to avoid the expense required to

8

Added by the Act of December 21, 1988, P.L. 1329.

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complete improvements necessary for the sale of the additional lots, while retaining

the separate identity (and value) of Lots 1, 2, and 5 as subdivided lots for future sale.

“A restrictive covenant is a restriction in an instrument relating to real

estate by which the parties pledge that something will not be done.” Doylestown,

635 A.2d at 661 (citing Black’s Law Dictionary 329 & 1182 (5th ed. 1979)).

Restrictive covenants properly impose restrictions and limitations on property. See

Bonner, 597 A.2d at 199 (a governing body has the power to impose conditions on

the approval of a subdivision and to approve a plan subject to conditions only if the

conditions are accepted by the applicant). “Such covenants are said to run with the

land, when not only the original parties or their representatives, but each successive

owner of the land, will be entitled to its benefit, or be liable (as the case may be) to

its obligation.” Black’s Law Dictionary 329 (5th ed. 1979). The majority is willing

to disregard the terms of the Ordinance and an unambiguous agreed-to condition of

the Plan using the justification that the roadway installation requirement will

continue to run with the land if Trustee sells Lots 1, 2, and 5 along with the remainder

of the Property. The point of the Note and the Township Ordinance, which require

the installation of the roadway or guarantee of such installation by the subdivider, is

to make sure that the person or entity benefitting from the subdivision, the applicant

whose application has been approved, is the one who is financially responsible for

such improvements. This allows the Township to be certain the improvements will

be completed and to know who will be responsible for their completion. If the

improvements are not installed or guaranteed by the subdivider, the Township can

install the improvements itself and charge the cost to the subdivider under the

Ordinance. See Ordinance, §§ 8.55 (the Supervisors may take “action necessary to

prevent or remedy any violation” of the Ordinance), 3.912 & Suppl. R. at 19 (former

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Ordinance § 3.912) (a defaulting subdivider is liable to the Township for the cost of

improvements that are not installed as provided in the approved final subdivision

plan).

Restrictive covenants cannot simply be ignored because compliance is

difficult or burdensome with the passage of time. See Ciavarella v. Wright Twp.

Planning Comm’n (Pa. Cmwlth., No. 210 C.D. 2008, filed Feb. 6, 2009), slip op. at

8, 2009 Pa. Commw. Unpub. LEXIS 249 at *13 (unreported) (“a new owner may

not simply ignore obligations noted in a prior, approved subdivision plan”; where

original subdivider did not challenge the condition imposed by a note, that condition

remained a valid limitation running with the land, and any further subdivision was

contingent upon the road improvements set forth in the original subdivision plan).9

“One seeking release from a covenant has the burden of proving that the original

intention and purpose of the restriction has been altered or destroyed by changed

conditions.” Doylestown, 635 A.2d at 661 (citing Rieck v. Va. Manor Co., 380 A.2d

375 (Pa. Super. 1977)). The only changed condition here is that Trustee does not

want to invest what it would cost to uphold the covenant.

Notably, the majority fails to recognize that, as explained above, the

Note is actually less restrictive than the Ordinance, in that the Note allowed Shuey

to sell Lots 3 and 4 without first installing all of the roads and stormwater facilities

required for the Subdivision, as the Ordinance otherwise required. Thus, the

majority fails to consider that Shuey, not the Township, was the party benefitted by

the addition of the Note to the Plan. Even if the Note is viewed as restrictive, it was

a condition of the Plan, agreed to when the Subdivision was created; its clear purpose

9

Unreported opinions of this Court may be cited as persuasive authority pursuant to our

Internal Operating Procedures. 210 Pa. Code § 69.414(a).

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was to ensure the installation of the roads and required stormwater management

improvements by the subdivider, consistent with the Ordinance. Trustee cannot sell

Lots 1, 2, and 5 in defiance of the Note and Ordinance. Further, it is not for this

Court to remove or modify the Note or the Ordinance. Doing so ignores the

municipal process the Township has put in place for altering the Plan or relaxing any

requirement of the Ordinance.

While I disagree with the majority’s suggestion that the Note is

ambiguous, I observe that even if an ambiguity existed, it would require this Court

to vacate the trial court’s summary judgment order and remand for evidence and

findings of fact concerning the parties’ object or purpose in agreeing to the Note, as

well as the circumstances or conditions surrounding its addition to the Plan. See

MCI Worldcom Commc’ns, Inc. v. Pub. Util. Comm’n, 826 A.2d 919, 924-25 (Pa.

Cmwlth. 2003) (observing that whether language of an agreement is ambiguous is a

question of law, but if it is ambiguous, its meaning is determined by the surrounding

facts and circumstances, which is a decision for the trier of fact; vacating and

remanding for findings of fact concerning parties’ intent). Although the majority

concedes those issues must be considered in construing an ambiguous provision,

they are not developed in the record here. Therefore, those issues are not proper

subjects of summary judgment if the Note is ambiguous. The majority, however,

sidesteps the paucity of the record on those issues and simply concludes that any

ambiguity must be construed against the Township.

Lastly, the purchasers of Lots 3 and 4 were entitled to rely upon the

recorded Plan, the Note and the Ordinance when they purchased their lots as part of

the Subdivision, which included Lots 1, 2, and 5. It is of no moment that the required

roads and improvements may not directly service or have a direct impact on Lots 3

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and 4. Lots 3 and 4 were sold as part of the Subdivision that included five lots, three

of which were to be serviced by two new roads. The purchasers of Lots 3 and 4 had

a right to purchase in reliance on the recorded Plan. Although they have not

intervened in this present matter, they are affected third parties who have the option

of enforcing the Plan in a separate action. Doylestown, 635 A.2d at 661.

Because the Note and the Township Ordinance require construction of

roads and stormwater management before any sale of Lots 1, 2, and 5 and are

enforceable against Trustee by the Supervisors,10 I, respectfully, dissent.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

Judge Covey joins this minority opinion.

10

The Ordinance expressly authorizes the Supervisors to “initiate and maintain civil action

. . . [t]o obtain a writ of injunction against the owner . . . who attempts the improper sale of [sic]

conveyance of land.” Ordinance, § 8.54.a. See also Doylestown, 635 A.2d at 660 (“a municipality

may sue in equity to enjoin violation of a condition attached to a subdivision approval”). The

Ordinance also empowers the Supervisors to take “such other action necessary to prevent or

remedy any violation” of the Ordinance. Id., § 8.55. A subdivider who sells or agrees to sell any

lot in a subdivision without first complying with all requirements of the Ordinance is also subject

to monetary penalties. Id., §§ 8.52 & 8.53.

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