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

> Commonwealth Court of Pennsylvania · May 28, 2021

URL: https://www.frixlaw.com/law-library/cases/10747138

## Case

- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** May 28, 2021
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Cohn Jubelirer. Fizzano Cannon
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10747138

## How later opinions describe it (automated extraction)

- 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
- explaining that restrictive covenants are “not favored in the law” because they restrain the right to freely alienate one’s land
- 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

## Opinion text

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).

CFC-2
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).

CFC-3
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).

CFC-4
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

CFC-8
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

CFC-9
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.

CFC-10
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

CFC-11
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).

CFC-12
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

CFC-13
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.

CFC-14

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10747138. Public record. Not legal advice.