Gourmet's Delight Mushrooms, LP v. Keating, P.

J-A04019-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GOURMET’S DELIGHT MUSHROOMS, : IN THE SUPERIOR COURT OF

LP : PENNSYLVANIA

:

:

v. :

:

:

PAUL D. KEATING AND SUSAN S. :

KEATING, ET AL. : No. 1416 EDA 2021

:

:

APPEAL OF: SEAN C. SMITH, :

MALLORY P. AUSTIN, SARAH :

BERDOULAY, TROY ST. JOHN, :

ARTHUR TAYLOR, CYNTHIA TAYLOR, :

RICK MASHA, TERESA MASHA, :

GARY M. MACK, BARBARA L. MACK, :

WILLIAM D. WALKER, MARGARET W. :

WALKER, JOSEPH S. COX, PATRICK :

G. TALWIN, LINDA A. TIBERIA, :

ROBERT S. REYNOLDS, WENDY L. :

REYNOLDS, LOUIS F. DONOGHUE, :

MARIANNE C. DONAGHUE, :

CHRISTOPHER M. WURM, VIRGINIA :

C. NORTH, JANET A. SMITH, MARY :

ANN HITCHENS, ANTHONY L. :

LAURIA, LINDA S. LAURIA, DANNY :

MILANO, CARRIE MILANO AND LYNN :

ARRINGTON :

Appeal from the Judgment Entered June 24, 2021

In the Court of Common Pleas of Chester County Civil Division at No(s):

2017-07576-RC

BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM BY NICHOLS, J.: FILED APRIL 27, 2022

Appellants, Sean C. Smith, Mallory P. Austin, Sarah Berdoulay, Troy St.

John, Arthur Taylor, Cynthia Taylor, Rick Masha, Teresa Masha, Gary M. Mack,

J-A04019-22

Barbara L. Mack, William D. Walker, Margaret W. Walker, Joseph S. Cox,

Patrick G. Talwin, Linda A. Tiberia, Robert S. Reynolds, Wendy L. Reynolds,

Louis F. Donoghue, Marianne C. Donaghue, Christopher M. Wurm, Virginia C.

North, Janet A. Smith, Mary Ann Hitchens, Anthony L. Lauria, Linda S. Lauria,

Danny Milano, Carrie Milano And Lynn Arrington (collectively, the Neighbors),1

appeal from the judgment entered on June 24, 2021, in favor of Appellee

Gourmet’s Delight Mushrooms, LP (Gourmet).2 On appeal, the Neighbors

contend that the trial court erred by (1) failing to apply the law of the case

doctrine; (2) concluding that the relevant deed restrictions were

unambiguous; (3) finding that because the deed restrictions contained

building restrictions, rather than use restrictions; and (4) concluding that the

activities occurring on adjacent land were not relevant to the application of

the deed restrictions. After review, we affirm the judgment entered in favor

of Gourmet.

____________________________________________

1 The trial court noted that default judgments were entered against Paul D.

Keating, Susan S. Keating, Julie B. Engiles, Anne M. Jeavons, and Eric G.

Jeavons. Trial Ct. Op., 3/18/21, at 1.

2 On July 12, 2021, the Neighbors filed an appeal from the June 15, 2021

order denying their post-trial motions. However, we note that the appeal

properly lies from the judgment entered following disposition of the post-trial

motions. See Mackall v. Fleegle, 801 A.2d 577, 580 (Pa. Super. 2002)

(explaining that an appeal does not properly lie from order denying post-trial

motions, but rather from the judgment entered following disposition of post-

trial motions). The record reveals that on June 24, 2021, Gourmet filed a

praecipe for the entry of judgment following the disposition of the post-trial

motions. Accordingly, the appeal lies from the judgment entered on June 24,

2021, and we have corrected the appeal paragraph accordingly.

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The record reflects that on August 2, 2017, Gourmet filed a declaratory

judgment action against the Neighbors seeking a declaration that certain deed

restrictions concerning the term “mushroom house” did not apply to the Phase

I composting facility approved for development on Gourmet’s property. The

parties each filed motions for summary judgment, and on October 26, 2018,

the trial court granted summary judgment in favor of Gourmet and denied the

Neighbors’ motion for summary judgment.

The Neighbors filed a timely appeal, and on August 16, 2019, a panel of

this Court held that there was an issue of material fact concerning the

definition of “mushroom house” and whether the deed restrictions applied to

Gourmet’s proposed land development plan. Gourmet’s Delight

Mushrooms, LP v. Keating, 3413 EDA 2018, 2019 WL 3854930 (Pa. Super.

filed August 16, 2019) (unpublished mem.) (Gourmet I). Therefore, the

Court affirmed the trial court’s order denying the Neighbors’ motion for

summary judgment, reversed the trial court’s order granting Gourmet’s

motion for summary judgment, and remanded for further proceedings. Id.

On remand, the trial court permitted additional discovery and then

conducted a two-day non-jury trial. Thereafter, the trial court made the

following findings of fact:

1. Gourmet owns a property in London Grove Township (“London

Grove Property”), on which Gourmet has operated a mushroom

growing business since 1979.

2. This litigation concerns two properties Gourmet purchased in

Franklin Township, which are contiguous to its London Grove

Property.

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3. In 1950, Lester and Janet Kirkman owned a single tract of land,

consisting of over 120 acres, in Franklin Township (“Original

Tract”).

4. In 1951, the Kirkmans conveyed approximately 7.5 acres of the

Original Tract to Jay and Margaret Irwin (“Irwin Property”), with

the following deed restriction:

ALSO UNDER AND SUBJECT to the provision that no

mushroom houses shall be erected or maintained upon the

above-described premises by said Grantees, their heirs,

assigns or occupiers of said premises.

5. In 1955, the Kirkmans conveyed approximately 79.7 acres of

the Original Tract to Fred and Agnes Shoun (“Shoun Tract”), with

the following deed restriction:

UNDER AND SUBJECT, also, to the restriction that no

mushroom house shall be erected on the within conveyed

premises for a period of ninety (90) years.

6. In 1972, a portion of the Shoun Tract was subdivided and

developed into sixteen residential lots along a new cul-de-sac

road, Queen Lane (“Queen Lane Subdivision”).

7. The remaining Shoun Tract, a 24-acre parcel, was sold in 1980

to Leslie Benmark (“Benmark Property”). The Benmark Property

remained undeveloped.

8. Gourmet’s London Grove Property is adjacent to the Benmark

Property.

9. In 2005, Gourmet purchased the 24-acre Benmark Property.

10. In 2014, Gourmet purchased the 7.5-acre Irwin Property.

11. Gourmet purchased the Benmark Property and the Irwin

Property to expand its mushroom growing operation.

12. Gourmet subsequently merged the Franklin Township

properties to form a 32.45-acre tract known as 420 Auburn Road,

Franklin Township (“Consolidated Property”).

13. The Neighbors are homeowners whose properties lie

immediately to the southwest of the Consolidated Property, in the

Queen Lane Subdivision.

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14. Mushroom growing consists of six steps: 1.) Phase I

composting, 2.) Phase II composting, 3.) Phase III spawning, 4.)

Phase IV casing, 5.) Phase V pinning, and 6.) Phase VI cropping.

15. Phase I composting is an outdoor process that is designed to

breakdown certain bulk ingredients. During this phase, bulk

ingredients, such as horse and chicken manure, hay, and

corncobs, are wet and then mixed by a compost turner.

16. Phase I composting is the most odiferous phase of mushroom

growing.

17. Phase I composting can take place on a pad adjacent to a

mushroom house, on an open-air wharf, or in a partially enclosed

bunker.

18. Phase I composting cannot take place in a mushroom house.

19. Mushrooms cannot be grown in Phase I compost.

20. Phase II composting, known as pasteurization, is necessary to

kill insect, pest fungi, and other pests that may be present in the

compost. In this phase, the compost is conditioned to remove

ammonia formed during Phase I composting[.] Phase II

composting can only occur in environmentally controlled enclosed

rooms.

21. In Phase III, spawn is mixed into the compost. Spawn act like

seed.

22. In Phase IV, casing, which is a top dressing of peat moss, is

applied to the spawn run compost.

23. In Phase V, pinning, mushrooms begin to develop.

24. Phase VI is the final growth stage and includes harvesting the

mushrooms.

25. Gourmet’s business includes Phase I composting. Gourmet

began composting at the London Grove Property in 1987.

26. Gourmet’s Phase I composting takes place outdoors on the

London Grove Property on a flat pad as well as within a three-

sided, open air shed.

27. Separate and apart from the composting facilities, there are

mushroom houses and a packaging facility on the London Grove

Property.

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28. Sometime in 2005, when Gourmet was considering the

purchase of the Benmark Property, representatives of Gourmet

contacted property owners in the Queen Lane Subdivision to

inquire whether they would agree to rescind the deed restrictions

with respect to the prohibition against erecting mushroom houses.

29. At that time, Richard Pia, owner of Gourmet, signed an

affidavit that was circulated among the Queen Lane Subdivision

property owners representing that Gourmet was “not interested

in using the Benmark property for Phase I Composting (also

known as preparation of fresh mushroom substrate) or for the

Composting of Unused Mushroom Substrate (also known as Spent

Mushroom Composting).”

30. Mr. Pia’s representation was conditioned on “the cooperative

effort of all the residents of Queen Lane . . . in having the current

deed restrictions against mushroom houses removed from the

Benmark property . . . .”

31. Mr. Pia believed that the residents of Queen Lane found

composting activities more objectionable than mushroom houses

and he wished to develop the Benmark Property to grow

mushrooms.

32. Not all of the residents of Queen Lane agreed to the removal

of all of the deed restrictions. Therefore, no agreement was

reached.

33. The representations made by Mr. Pia and others on behalf of

Gourmet reflect a position taken in negotiations to modify the

deed restrictions and are not a concession of the meaning of the

deed restrictions.

34. At the time Gourmet purchased the Franklin Township

properties, the zoning regulations in Franklin Township, applicable

to the properties, prohibited both composting and mushroom

growing.

35. In 2014, Gourmet challenged the validity of the zoning

regulations under the Agricultural, Communities and Rural

Environment Act, 3 Pa.C.S. §§ 311-318 (“ACRE”).

36. Gourmet was successful in its ACRE challenge and as a result

Franklin Township amended its zoning ordinance and [Subdivision

and Land Development Ordinance (SALDO)] and approved

Gourmet’s final land development plan on December 21, 2016

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permitting Gourmet to construct a composting facility on the

Consolidated Property.

37. Gourmet’s plans for the Consolidated Property have evolved

over time, including during the pendency of this litigation.

Gourmet bound itself at trial to its plans for a composting facility

that will conduct only Phase I composting on either a concrete slab

wharf or within a three-sided partially enclosed bunker with

aerated floors.

38. Gourmet will not conduct Phases II-VI of mushroom growing,

all of which take place inside mushroom houses, on the

Consolidated Property.

39. All of Gourmet’s mushroom houses will be located on the

London Grove Property. Gourmet has approval from London

Grove to expand its mushroom growing operations on the London

Grove Property.

40. Gourmet will use the Phase I compost produced on the

Consolidated Property principally for growing mushrooms at the

London Grove Property; however, excess Phase I compost will be

sold.

41. When considering the meaning of the term “mushroom

house”, we are concerned with the meaning assigned in or about

1951 - 1955 when the Kirkmans placed the restrictions on the

deeds to their property.

42. The Kirkmans, as granters, are not available to testify and no

evidence was brought forward to address what the Kirkmans

meant by “mushroom house.” We are left to discern the meaning

of mushroom house generally in the community at the time the

Kirkmans put the restrictive covenants on the deeds. The findings

below are directed to that time, 1951 - 1955.

43. A mushroom house is a four-sided, roofed building where

mushrooms are grown in a room controlled for light, heat and

humidity.

44. The sole purpose of a mushroom house is to grow mushrooms.

45. A source of Phase I compost is necessary to grow mushrooms.

46. Phase I compost has no use other than as the first stage of

the medium that will be used to grow mushrooms.

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47. Phase I compost was produced by the mushroom farmer for

personal use.

48. Synthetic composting, a type of Phase I composting, was

introduced in the 1940’s, which led to commercial composting.

Synthetic compost is compost that primarily uses hay, takes

longer to prepare, requires more space and equipment, and is

more productive.

49. Commercial composters produce Phase I compost to be sold

to farmers who were growing mushrooms.

50. Phase I composting was conducted not only as part of the

process of mushroom growing, but also as an activity separate

and apart from mushroom growing to create a product available

for sale.

51. Phase I composting was conducted on concrete pads adjacent

to mushroom houses, on ground or in bunkers not adjacent to but

near mushroom houses, and on ground or in bunkers at a distance

from mushroom houses.

52. When present, concrete pads adjacent to mushroom houses

were used for filling, casing and emptying the mushroom houses,

in addition to Phase I composting.

53. When present, bunkers consisted of concrete walls and a roof

with an opening at the front, like a shed, to load and unload the

bunker. Bunkers are only suitable for Phase I composting.

54. The objection to mushroom houses was the unattractive

appearance of the building.

55. The objection to mushroom farming was the odiferous nature

of Phase I composting, flies and run-off.

56. Mushroom growing was not a year-round activity because

temperature and humidity could not be controlled in the summer

months until the use of air conditioning became widespread.

Without air conditioning, growing activities would cease in or

about early June and resume with Phase I composting in or about

early August. Phase I composting lasts for three to four weeks

during every growing cycle.

57. The off-site impacts of commercial mushroom growing,

including increased odor, flies and stormwater run-off, became

more and more problematic as the intensity of mushroom farming

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increased while at the same time residential development

encroached agricultural areas, which resulted in the

implementation of regulatory and zoning controls in the 1970’s

and 1980’s.

58. The conditions of the 1970’s and 1980’s have no relevance to

the meaning of restrictions placed on deeds in the early to mid

1950’s.

Trial Court Op., 3/18/21, at 1-8 (some formatting altered and footnote

omitted).

The trial court concluded that the language in the deed restrictions was

not ambiguous. Id. at 19. Additionally, the trial court found that the deed

restrictions were building restrictions, and not use restrictions, and that the

building restrictions were limited to the erection and maintenance of a

mushroom house. Id. at 20. The trial court further concluded that a Phase I

composting facility is not a mushroom house, and that there was no restriction

against the use, development, construction, or occupancy of a Phase I

composting facility on the subject property. Id. at 21. Judgment was entered

in favor of Gourmet and against the Neighbors.

The Neighbors filed a timely notice of appeal and a court-ordered

Pa.R.A.P. 1925(b) statement. The trial court issued a Rule 1925(a) opinion

addressing the Neighbors’ claims.3

On appeal, the Neighbors raise the following issues:

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3 In its Rule 1925(a) opinion, the trial court incorporated by reference and

relied upon the March 18, 2021 opinion and the trial court’s July 14, 2021

order that disposed of the Neighbors’ post-trial motions.

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1. Whether the trial court erred by determining that the deed

restrictions were unambiguous and limiting its analysis only to

the language of the deed restrictions, when the Superior Court

previously held as a matter of law that the deed restrictions

were ambiguous and remanded the case for the trial court to

resolve the ambiguity by considering the nature of the subject

matter, the object of the parties and the surrounding

circumstances?

2. Whether the trial court erred by determining that the deed

restrictions were building restrictions and not use restrictions,

thereby artificially excluding from the restrictions the adjoining

composting wharf, which was essential to the operation of a

mushroom house in the 1950s?

3. Whether the trial court erred by determining that activities

occurring on adjacent land are irrelevant to the application of

the deed restrictions, where Gourmet is proposing to use the

deed restricted property and Gourmet’s adjacent property as a

single, fully integrated use for growing mushrooms?

The Neighbors’ Brief at 3 (some formatting altered).

When reviewing a trial court’s verdict in a non-jury trial, we bear in mind

the following principles:

Our standard of review in non-jury trials is to assess whether the

findings of facts by the trial court are supported by the record and

whether the trial court erred in applying the law. Upon appellate

review the appellate court must consider the evidence in the light

most favorable to the verdict winner and reverse the trial court

only where the findings are not supported by the evidence of

record or are based on an error of law. Our scope of review

regarding questions of law is plenary.

* * *

Moreover, the trial court’s findings are especially binding on

appeal, where they are based upon the credibility of the witnesses,

unless it appears that the court abused its discretion or that the

court’s findings lack evidentiary support or that the court

capriciously disbelieved the evidence.

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Century Indem. Co. v. OneBeacon Ins. Co., 173 A.3d 784, 802 (Pa. Super.

2017) (citations omitted and some formatting altered).

Law of the Case

As part of their first issue, the Neighbors assert that in Gourmet I, a

prior panel of this Court ruled that the term mushroom house was ambiguous

as a matter of law. The Neighbors’ Brief at 33. The Neighbors contend that

the trial court “was bound by [the Gourmet I Court’s] legal determination,

and erroneously defied it by finding that the deed restrictions were

unambiguous and failing to apply the appropriate legal evaluation and make

factual findings.” Id. at 33-34. The Neighbors argue that the term mushroom

house is ambiguous as the law of the case from the Gourmet I decision, and

the trial court was bound by that conclusion. Id.

Gourmet contends that the Gourmet I Court did not make a binding

determination that the term mushroom house was ambiguous or that the

determination was the law of the case. Gourmet’s Brief at 22-23. Gourmet

asserts that although this Court recognized that the term mushroom house

may possibly have both a literal and figurative meaning, there was never a

dispute regarding the literal meaning of mushroom house. Id. (citing

Gourmet I). Instead, Gourmet contends that this Court remanded the matter

to the trial court only for the purpose of providing the Neighbors with an

opportunity to establish that mushroom house had become a term of art and

gained a new figurative meaning. Id. at 23.

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The law of the case doctrine provides, in relevant part, that a lower court

is prohibited from reopening issues that were decided by a higher court in an

earlier appeal in the same case. See Heart Care Consultants, LLC v.

Albataineh, 239 A.3d 126, 131 (Pa. Super. 2020). However, the prohibition

corresponding to the law of the case doctrine applies only where the appellate

court actually ruled on the issue in question. See id.

In the instant case, the Gourmet I Court concluded as follows:

There is enough evidence in the record, which, if believed, would

permit a reasonable fact-finder to conclude that the deed

restrictions prohibit mushroom growing and that the deed

restrictions would apply to Gourmet’s proposed land development

plan for the restricted properties. Thus, we hold that there is a

dispute of material fact as to what “mushroom house” means and

whether the deed restrictions apply to Gourmet’s proposed land

development plan. Accordingly, we affirm the trial court’s order

denying the Neighbors’ motion for summary judgment, reverse

the trial court’s order granting Gourmet’s motion, and remand for

proceedings consistent with this memorandum.

Gourmet I, 2019 WL 3854930, at *7 (footnote omitted).

This text reflects the Gourmet I Court’s conclusion that there was an

issue of fact precluding summary judgment.4 Gourmet I, 2019 WL 3854930,

____________________________________________

4The standard of review this Court applies when reviewing an order granting

summary judgment is as follows:

We may reverse if there has been an error of law or an abuse of

discretion. Our standard of review is de novo, and our scope

plenary. We must view the record in the light most favorable to

the non[-]moving party and all doubts as to the existence of a

genuine issue of material fact must be resolved against the

moving party. Furthermore, [in] evaluating the trial court’s

(Footnote Continued Next Page)

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at *7. However, Gourmet I did not direct the trial court to believe or accept

the Neighbors’ assertion concerning the definition of mushroom house.

Further, the Gourmet I Court did not rule that the term mushroom house

was ambiguous as a matter of law or in a manner that could be construed as

the law of the case. Indeed, the Gourmet I Court did not “rule” on this issue

at all. See Heart Care Consultants, LLC, 239 A.3d at 131.

Instead, the Gourmet I court applied the summary judgment standard

of review and concluded that there was an issue of material fact concerning

the parties’ “competing definitions of ‘mushroom house.’” Gourmet I, 2019

WL 3854930, at *7. The Court noted that if the finder of fact believed the

Neighbors’ assertion regarding the meaning of mushroom house, then the

term mushroom house may be ambiguous. Gourmet I, 2019 WL 3854930,

at *7. Therefore, the Gourmet I Court remanded the matter for the trial

court to determine whether the term mushroom house was unambiguous or

____________________________________________

decision to enter summary judgment, we focus on the legal

standard articulated in the summary judgment rule. The rule

states that where there is no genuine issue of material fact and

the moving party is entitled to relief as a matter of law, summary

judgment may be entered. Where the nonmoving party bears the

burden of proof on an issue, he may not merely rely on his

pleadings or answers in order to survive summary judgment.

Failure of a non-moving party to adduce sufficient evidence on an

issue essential to his case and on which he bears the burden of

proof establishes the entitlement of the moving party to judgment

as a matter of law.

Carlino E. Brandywine, L.P. v. Brandywine Vill. Ass’n, 197 A.3d 1189,

1199-1200 (Pa. Super. 2018) (citation omitted).

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whether, as the Neighbors asserted, the definition of mushroom house was a

term of art describing multiple phases of the mushroom growing process. Id.

at *6. On remand, the trial court conducted a two-day non-jury trial where

the parties had the opportunity to make arguments as to whether the term

mushroom house had gained a figurative definition beyond the deed

restrictions.5 Trial Ct. Op., 3/18/21, at 1.

Following our review, we conclude that the Gourmet I Court’s ruling on

summary judgment did not establish the law of the case. Further, the

Gourmet I Court did not rule that the term mushroom house was ambiguous.

Therefore, on this record, we conclude that the Neighbors’ law-of-the-case

argument fails and no relief is due.

Ambiguity of the Meaning of Mushroom House

In the next part of its first issue, the Neighbors contend that the trial

court erred when it concluded that the term mushroom house was

unambiguous and that the meaning of mushroom house could be determined

without looking beyond the language of the deed restrictions. The Neighbors’

Brief at 35. The Neighbors assert that the language in the deed restrictions

is ambiguous. Id. Therefore, the Neighbors argue that trial court applied the

wrong standard and scope of review, and that the trial court should have

looked outside of the deed restrictions and considered all the attending

____________________________________________

5 We note that if the Gourmet I Court ruled that mushroom house was

ambiguous as a matter of law, there would have been no need to remand on

that issue.

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circumstances existing at the time of the execution of the deed. Id. However,

aside from reiterating their law-of-the-case argument, the Neighbors offer no

further support for this claim.

“The same principles that apply to the interpretation of a contract apply

to the interpretation of a deed.” Starling v. Lake Meade Property Owners

Assoc., Inc., 162 A.3d 327, 341 (Pa. 2017) (citation omitted). “Contractual

language is ambiguous if it is reasonably susceptible of different constructions

and capable of being understood in more than one sense.” Lenau v. Co-

eXprise, Inc., 102 A.3d 423, 430 (Pa. Super. 2014) (citation and quotation

marks omitted).

When reviewing the interpretation of deed restrictions or restrictive

covenants, this Court has explained:

The interpretation of any contract is a question of law for the

Court. As a general rule of contract interpretation, the intention

of the parties at the time the contract is entered into governs. The

same is true in interpreting restrictive covenants. However, there

is an important difference in the rule of interpretation as applied

to restrictive covenants on the use of land. Restrictive covenants

are limitations on a person’s free and unconstrained use of

property. [These restrictions] are not favored by the law, yet they

are legally enforceable. As such, they are to be strictly construed

against persons seeking to enforce them and in favor of the free

and unrestricted use of property.

As a matter of law, nothing short of a plain disregard of the

restrictive covenant’s express terms can create violation of the

covenant. In deciding whether there has been a plain disregard

of a restrictive covenant, the court must rely upon the ordinary

meaning of the language used in the covenant to ascertain the

parties’ intent, and cannot enlarge by implication a restraint on

the use of land.

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In 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. Pennsylvania courts will enforce a

restriction if a party’s actions are in clear defiance of the provisions

imposed by the covenant. The courts will also enforce a restrictive

covenant where it is established that the restriction is still of

substantial value to the owners of the restricted tract.

When the restrictive covenant is unambiguous, the Court’s review

is limited to the confines of the covenant . . . the court need not

stray beyond the confines of the restriction to find its meaning. If

restrictions are not ambiguous, the intent of the parties should be

gained from the writing itself.[]

Pocono Summit Realty, LLC v. Ahmad Amer, LLC, 52 A.3d 261, 269 (Pa.

Super. 2012) (formatting altered and citations omitted). “However, when

ambiguity exists, every doubt and ambiguity in a restrictive covenant’s

language will be resolved in favor of the owner.” Id. (citation omitted).

Moreover, if ambiguity exists, “then all of the attending circumstances existing

at the time of the execution of the instrument should be considered to aid in

determining the apparent object of the parties.” Starling, 162 A.3d at 341

(citations omitted).

Here, following this Court’s remand in Gourmet I, the trial court

permitted additional discovery, and it held a two-day trial. After reviewing

the evidence, the trial court concluded that the Neighbors failed to prove that

mushroom house was a term of art or that it had gained a figurative meaning

beyond the plain definition. Trial Ct. Op. at 12-13, 19. Likewise, the trial

court found no support for the Neighbors’ argument that mushroom house

had an additional meaning beyond the terms of the deed restriction. Id. at

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12, 19. Therefore, the trial court concluded that there was no ambiguity

concerning the definition of mushroom house. Id. at 15.

In its order disposing of the Neighbors’ post-trial motions, the trial court

pointed out that the Neighbors “conflate[d] the standard to be applied when

interpreting a restrictive covenant with the standard to be applied if it is

determined that there is an ambiguity.” Order, 6/14/21, at n.1. Further, the

trial court reiterated that there was no ambiguity in the meaning of the term

mushroom house.

Specifically, the trial court explained:

The language at issue is:

ALSO UNDER AND SUBJECT to the provision that no

mushroom houses shall be erected or maintained upon the

above-described premises by said Grantees, their heirs,

assigns or occupiers of said premises.

UNDER AND SUBJECT, also, to the restriction that no

mushroom house shall be erected on the within conveyed

premises for a period of ninety (90) years.

Under this restrictive language, whatever a mushroom house may

be, none shall be erected or maintained on the Consolidated

Property. Both parties agree that a mushroom house is a light,

temperature and humidity controlled four-sided building with a

roof in which mushrooms are grown. Both parties agree that

Phase I composting cannot and does not occur inside a mushroom

house. Gourmet argues that a mushroom house is nothing more

than the structure, the building itself. The Neighbors argue that

in addition to the building, the term “mushroom house”

encompasses the area outside of and immediately adjacent to the

building, known as a pad, where Phase I composting and other

activities related to growing mushrooms take place. Gourmet

proposes the development of a Phase I composting facility on the

Consolidated Property. Gourmet will not grow mushrooms on the

Consolidated Property and will not erect buildings in which

mushrooms are grown. The structures proposed for the Phase I

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composting facility are either a concrete slab wharf or a three-

sided partially enclosed bunker with aerated floors, both suitable

for Phase I composting only and not mushroom growing.

Trial Ct. Op., 3/18/21, at 8-9 (some formatting altered). The trial court further

stated:

The term “mushroom house” has an ordinary and commonly

understood meaning as a four-sided, roofed building that is light,

temperature and moisture controlled and suitable for growing

mushrooms. There is no credible evidence that “mushroom

house” was legal shorthand for the process of growing

mushrooms.

All the words in the deed restrictions have meanings that are clear

and unambiguous and as such compel a literal interpretation. See

Kripp v. Kripp, 849 A.2d 1159, 1163 (Pa. 2004) (“In cases of a

written contract, the intent of the parties is the writing itself. If

left undefined, the words of a contract are to be given their

ordinary meaning.”). In such circumstances, the court is limited

to the confines of the instrument and there is no reason to stray

beyond the confines of the instrument to find meaning. Richman

[v. Mosites], 704 A.2d [655,] 658 [(Pa. Super. 1997)].

Since the language and the subject matter of the deed restrictions

is clear, for the Neighbors to make their case it is incumbent upon

them to show that there was some object or purpose, not literally

expressed, either in meaning or as a result of surrounding

circumstances, that would support the implied meaning they

assert. There is no credible testimony or evidence that in the early

to mid-1950’s anyone used the term “mushroom house” to

reference a use or the process of growing mushrooms. To

override the clearly expressed and understood meaning of

“mushroom house” as a building, in favor of an implied meaning

as a use or process, is contrary to the holding in Richman, 704

A.2d [at] 655.

Trial Ct. Op., 3/18/21, at 19-20 (formatting altered).

Following our review of the record, we agree with the trial court’s

conclusions. Although the Neighbors called Attorney L. Peter Temple as an

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expert witness in real estate to support their claim that mushroom house was

a term of art encompassing the mushroom growing process,6 the trial court

did not find Attorney Temple’s testimony credible. See Century Indem. Co.,

173 A.3d at 802 (stating that credibility is for the trial court as the finder of

fact). Additionally, the Neighbors do not dispute that a mushroom house is

four-sided building with a roof, and it is light, temperature, and moisture

controlled for growing mushrooms. Trial Ct. Op., 3/18/21, at 8-9. Considering

the undisputed and plain definition of mushroom house, and with no credible

evidence to the contrary, the trial court found that mushroom house does not

have a figurative meaning, nor is it a term of art. Id. at 19-20. Rather, the

trial court concluded that a mushroom house is a building for growing

mushrooms. Id.

On this record, we discern no error of law in the trial court’s conclusion

that the term mushroom house was unambiguous. Therefore, there was no

need for the trial court to look beyond the deed to interpret the term

mushroom house. Pocono Summit Realty, LLC, 52 A.3d at 269; Starling,

162 A.3d at 341. Accordingly, the Neighbors’ claim fails and no relief is due.

Deed Restrictions

The Neighbors next contend that the trial court erred when it concluded

that the deed restrictions were “building restrictions” rather than “use

____________________________________________

6N.T., 2/10/21, at 51. We note that Gourmet conceded that Temple was “real

estate” expert, but it objected to Attorney Temple being considered a

“mushroom industry” expert.” Id. at 55. The trial court overruled the

objection but took the matter under advisement. Id. at 55-56.

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restrictions.” The Neighbors’ Brief at 41-42. The Neighbors assert that the

deed restrictions were intended to preclude the use and maintenance of

buildings and accessory structures used for the process of growing

mushrooms. Id. at 42-43.

“[R]estrictive covenants are divided into two categories, building

restrictions and use restrictions.” Richman, 704 A.2d at 658 (citation

omitted). “Building restrictions are concerned with the physical aspect or

external appearance of the buildings. . . . Use restrictions involve the

purposes for which the buildings are used, the nature of their occupancy, and

the operations conducted therein.” Id. (formatting altered and citation

omitted). “[When] a restriction refers to what may be erected on the

property, it is a building restriction; to create a use restriction, the deed’s

language must squarely address the use or manner of occupation of the

property.” Groninger v. Aumiller, 644 A.2d 1266, 1267 (Pa. Super. 1994)

(citing Jones v. Park Lane for Convalescents, 120 A.2d 535, 538 (Pa.

1956)). “A building restriction and a use restriction are wholly independent

of one another, and in view of the legal principles above stated, the one is not

to be extended so as to include the other unless the intention [to do so] is

expressly and plainly stated; to doubt is to deny enforcement.” Jones, 120

A.2d at 538.

As stated above, the deed restrictions in the instant matter provide as

follows:

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ALSO UNDER AND SUBJECT to the provision that no

mushroom houses shall be erected or maintained upon the

above-described premises by said Grantees, their heirs,

assigns or occupiers of said premises.

UNDER AND SUBJECT, also, to the restriction that no

mushroom house shall be erected on the within conveyed

premises for a period of ninety (90) years.

Trial Ct. Op., 3/18/21, at 2 (quoting 1951 “Irwin Property” Deed, and 1955

“Shoun Tract” Deed). The trial court concluded that there was no credible

evidence that the words “mushroom house” referred to a use or the mushroom

growing process. Id. at 20. The trial court further explained:

The deed restrictions refer to a building and not a use. The

Neighbors assert a substantially broadened definition for the term

“mushroom house” and in so doing delete the words “erect”,

“maintain” and “house” from the deeds and add the words

“entire”, “growing operation” and “composting” to read the deed

restrictions to preclude “the entire mushroom growing operation

including composting” on the Consolidated Property. The

Neighbors advocate rewriting and adding omitted words to the

deed restrictions, which is contrary to the holding in Siciliano [v.

Misler], 160 A.2d [422,] 425 [(Pa. 1960)] (“The analysis of the

language set out above satisfies us that the appellants’ view of

the words themselves is clear and that the appellees’ is not, unless

the words are added to.”) The Neighbors seek an overbroad,

unreasonable, and impermissible expansion of the literal language

of the deeds.

If the Kirkmans wished to prohibit more than a building, they could

have added “mushroom growing” or “preparation of compost” to

the deed restriction, but the only qualifying terms they chose to

employ was “erect” and “maintain.” Had the Kirkmans wished to

preclude mushroom growing and/or composting on their property,

they only needed to say so. The words of a restrictive covenant

must be self-sustaining. Siciliano, 160 A.2d at 425.

The court may not attempt to remedy omissions of those creating

restrictive covenants and extend, by implication, restraint on use

of land. Richman, 704 A.2d 655.

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Phase I composting, while a stage in the growing of mushrooms,

is an activity that cannot take place inside a mushroom house and

can be and was in the early to mid-1950’s conducted separate and

apart from mushroom growing.

Activities occurring on adjacent or nearby unrestricted land are

irrelevant to the application of the restrictive covenant to the

restricted land since the restrictions run with the land and are not

personal to a common owner.

The Phase I composting facility proposed by Gourmet for

development of the Consolidated Property is not a “mushroom

house” as the term was understood and used at the time the deed

restrictions were imposed. Therefore, the construction and

operation of the Phase I composting facility, with a concrete slab

wharf or within a three-sided partially enclosed bunker with

aerated floors, will not violate the deed restrictions.

Trial Ct. Op., 3/18/21, at 20-21 (formatting altered).

After review, we agree with the trial court’s finding that “[t]he deed

restrictions in the matter before us address only the erection and maintenance

of a type of building, a mushroom house, and do not address a use.” Trial Ct.

Op., 3/18/21, at 14. By their terms, the deed restrictions prohibit a mushroom

house on the property, which constitutes a building restriction, not a use

restriction. Further, although the deed states that mushroom houses cannot

be erected or maintained on the property, there is no restriction against a

Phase I composting facility. On this record, the Neighbors are due no relief.

Adjacent Land

In their final issue, the Neighbors assert that Gourmet intends to use

the deed-restricted property to supply compost to its entire integrated

mushroom growing operation. The Neighbors’ Brief at 43-44. The Neighbors

contend that deed restrictions “prevent an accessory necessary component of

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a restricted use even when the principal restricted use is on an adjacent

property not subject to the deed restriction.” Id. at 44 (citing Pocono

Summit Realty, LLC, 52 A.3d at 265-266).

In Pocono Summit Realty, LLC, a panel of this Court concluded that

where a deed restriction prohibits not only a grocery store building but the

“operation of a . . . grocery store,” it also prohibited parking facilities and

storm water management facilities for a grocery store because those ancillary

facilities were a “necessary component” of the operation of a grocery store.

Pocono Summit Realty, LLC, 52 A.3d at 266. Therefore, the Court Pocono

Summit Realty, LLC, concluded that the deed restriction at issue in that case

expressly forbade “the operation” of a grocery store, and not merely the

store’s physical structure. See id. at 268.

After review, we conclude that Pocono Summit Realty, LLC is

distinguishable from the instant case. Additionally, we agree with the trial

court that the activities occurring on land adjacent to the subject property are

irrelevant to the application of the instant deed restrictions. Trial Ct. Op.,

3/18/21, at 21.

Here, the deed restrictions prohibit a mushroom house, which is a

physical structure. Unlike the situation in Pocono Summit Realty, LLC,

here, there is no restriction on the operation of the mushroom growing

process. Phase I composting facilities are not a “necessary component” of a

mushroom house, the prohibited structure. Although Phase I composting

facilities are a component of the mushroom growing process, by its terms, the

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deed restrictions clearly do not restrict the “operation” of a mushroom growing

process, only a mushroom house itself. Therefore, the Neighbors’ claim fails

and no relief is due.

Conclusion

In conclusion, we discern no error of law or abuse of discretion in the

trial court’s findings or legal conclusions. The Gourmet I Court did not

conclude that the term mushroom house was ambiguous as a matter of law,

nor did the Court’s ruling on summary judgment become the law of the case.

Although we appreciate and understand Neighbors’ arguments, the trial court

reviewed the evidence and concluded that the term mushroom house was not

ambiguous, and therefore, the trial court did not need to look beyond the

language of the deed restrictions to discern the meaning of mushroom house.

Moreover, the deed restrictions by their plain language were building

restrictions and not use restrictions, and the deed restrictions prohibited

mushroom houses. However, aside from the erection and maintenance of

mushroom houses, there was no restriction on using the subject property as

part of the mushroom growing process, including Phase I composting. For

these reasons, we affirm the judgment entered in favor of Gourmet.

Judgment affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/27/2022

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