5100 Fifth Avenue v. Estate of Ascheim, E.

J-A10032-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

5100 FIFTH AVENUE CONDOMINIUM IN THE SUPERIOR COURT OF
ASSOCIATION PENNSYLVANIA

v.

ESTATE OF ESTHER F. ASCHEIM,
BARBARA EFFRON, IN HER CAPACITY AS
ADMINISTRATOR OF THE ESTATE

APPEAL OF: BARBARA EFFRON, IN HER
CAPACITY AS ADMINISTRATOR OF THE
ESTATE OF ESTHER F. ASCHEIM No. 846 WDA 2015

Appeal from the Judgment Entered April 29, 2015
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD 12-002331

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PANELLA, J.

MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 4, 2016

Appellant, Barbara Effron, in her capacity as administrator of the

Estate of Esther F. Ascheim, appeals from the judgment entered in the

Allegheny County Court of Common Pleas, in favor of Appellee, 5100 Fifth

Avenue Condominium Association, in the amount of $55,461.31 for unpaid

condominium fees and $12,473.50 for attorney’s fees and costs, in this

breach of contract action. We affirm.

The relevant facts and procedural history of this case are as follows.

Esther F. Ascheim (“Decedent”) and her husband purchased a condominium

governed by Appellee in 1973. Pursuant to the condominium agreement

signed at the time of purchase, Decedent and her husband were responsible
J-A10032-16

for monthly condominium and maintenance fees. After the death of

Decedent’s husband, Decedent resided in the condominium with her son,

Cappy Ascheim. Starting in January 2006, neither Decedent nor Cappy

Ascheim made the required monthly payments for condominium and

maintenance fees. Decedent died on January 18, 2007, and the court

appointed Appellant as administratrix of Decedent’s estate on September 11,

2009. Meanwhile, Cappy Ascheim continued to reside in the condominium

without paying any condominium or maintenance fees. On July 6, 2011,

Appellant had Cappy Ascheim forcibly evicted from the condominium.

Appellant subsequently placed the condominium on the market for sale.

On February 2, 2012, Appellee filed a complaint against Appellant for

the unpaid condominium, maintenance, and late fees plus attorney’s fees

and costs. On February 21, 2012, Appellant filed preliminary objections,

which the court overruled on March 21, 2012. On May 14, 2012, Appellant

filed an answer and new matter, which claimed, inter alia, the doctrine of

laches barred Appellee’s claims and the court lacked subject matter

jurisdiction. The parties proceeded to a jury trial, and the jury returned a

verdict in favor of Appellee on March 18, 2013. Specifically, the jury found

Appellant owed Appellee $55,461.31 in unpaid condominium, maintenance,

and late fees.

On March 21, 2013, Appellee filed a post-trial motion, which asked the

court to mold the verdict to include attorney’s fees and costs, pursuant to

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Section 3315 of the Uniform Condominium Act. Appellant filed a post-trial

motion on March 26, 2013, which asked the court to grant judgment

notwithstanding the verdict (“JNOV”) in favor of Appellant or order a new

trial on the issue of damages. On September 9, 2013, Appellant filed a

response to Appellee’s post-trial motion to mold the verdict, which alleged

for the first time that Appellee’s delay in filing suit resulted in the

extinguishment of any lien Appellee possessed on the condominium. On

April 29, 2015, the court granted Appellee’s post-trial motion to mold the

verdict to include $12,473.50 for attorney’s fees and costs and denied

Appellant’s post-trial motion. The court order recognized the $67,934.81

judgment as a lien on the proceeds from the sale of the condominium. On

May 4, 2015, Appellee filed a praecipe for writ of execution. Appellant

timely filed a notice of appeal on May 27, 2015. On May 29, 2015, the court

ordered Appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied on

June 17, 2015.

Appellant raises the following issues for our review:

DID THE CIVIL TRIAL COURT ERR…BY DECLARING IN 2015
THAT A VERDICT AWARDED ON 3/18/2013 THAT
ACCUMULATED MAINTENANCE OR CONDOMINIUM FEES
INCURRED DURING 1) PRE-DEATH, WHEN CAPPY WAS
ACTING AS P.O.A., (JANUARY 2006 UNTIL JANUARY
2007)[;] 2) POST DEATH, DURING CAPPY’S CONTINUED
OCCUPANCY OF THE UNIT FROM (JANUARY 2007 UNTIL
SEPTEMBER 11, 2009)[;] AND 3) POST-EVICTION—JULY
2011 THRU DATE OF VERDICT MARCH 18, 2013, WHEN
ADMINISTRATOR WAS ABLE TO COMMENCE ACTUAL

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ESTATE ADMINISTRATION AND PREPARE THE CONDO FOR
SALE, INTO ONE CONTINUOUS LIEN WHEN TITLE 68
PA.C.S.A. SEC. 3315(D) DICTATES THAT A LIEN
EXTINGUISHES WHEN A CONDO ASSOCIATION FAILS TO
[INSTITUTE] SUIT TO ENFORCE A LIEN WITHIN THREE
YEARS AFTER THE FEES ARE PAYABLE AND BECOME
DELINQUENT?

DID THE CIVIL TRIAL COURT ERR BY NOT RECOGNIZING
THAT THE SUIT FILED ON FEBRUARY 2, 2012 FOR BREACH
OF CONTRACT WAS NOT THE EQUIVALENT [OF A] SUIT TO
ENFORCE A LIEN?

DID THE CIVIL TRIAL COURT ERR BY NOT GRANTING THE
MOTION IN LIMINE WHICH WOULD HAVE PRECLUDED THE
INTRODUCTION OF CONDOMINIUM CHARGES ALLEGEDLY
INCURRED FROM JANUARY 200[6] UNTIL EJECTION OF
CAPPY ASCHEIM FROM UNIT IN JULY OF 2011 INTO
EVIDENCE SINCE [APPELLEE] FAILED TO PROPERLY AND
TIMELY BRING CLAIMS TO ORPHANS[’] COURT AND
DEMAND APPROPRIATE RELIEF?

DID THE CIVIL TRIAL COURT ERR BY FAILING TO
RECOGNIZE THE APRIL 17TH, 2000 ORDER OF COURT OF
JUDGE WETTICK WHICH STATED THAT “IT IS
RECOGNIZED THAT [DECEDENT] IS AN INCAPACITATED
PERSON” AND PERMIT THAT RULING TO LIMIT
[APPELLANT’S] LIABILITY IN A CONTRACT ACTION
REQUESTING CONDO FEES IN PART INCURRED DURING
[DECEDENT’S] LIFE SINCE [APPELLEE] FAILED TO
PROPERLY AND TIMELY BRING CLAIMS TO ORPHANS[’]
COURT AND DEMAND APPROPRIATE RELIEF?

DID THE CIVIL TRIAL COURT ERR BY EXERCISING
JURISDICTION THAT IS EXCLUSIVE TO THE ORPHANS[’]
COURT DIVISION WHEN IT A) MADE ITS PRE-TRIAL
RULINGS AND/OR B) ENTERTAINED [APPELLEE’S] POST-
TRIAL MOTION TO MOLD THE VERDICT TO INCLUDE
ATTORNEY’S FEES WHEN ATTORNEY’S FEES ARE ONLY
AVAILABLE IF [APPELLEE] INSTITUTES AN ACTION TO
ENFORCE A LIEN AND SUCH AN ACTION WOULD BE
WITHIN THE EXCLUSIVE JURISDICTION OF THE
ORPHANS[’] COURT?

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J-A10032-16

DID THE TRIAL COURT ERR BY NOT USING THE VERDICT
SLIP PROPOSED BY [APPELLANT] WHICH WOULD HAVE
DESIGNATED THE VARIOUS TIME PERIODS WHEN FEES
[WERE] ACCUMULATED AND ALSO ADDRESSED
[APPELLEE’S] FAILURE TO PURSUE ITS CLAIMS IN A
TIMELY FASHION?

DID THE TRIAL COURT ERR IN ARGUING THAT THE LIEN-
EXTINGUISHMENT ISSUE MIGHT BE WAIVED WHEN THE
TOPIC OF A LIEN GENERALLY WAS ONLY RAISED AS A
CONSEQUENCE OF [APPELLEE’S] POST-TRIAL MOTION TO
MOLD THE VERDICT CITING THE UNIFORM CONDOMINIUM
ACT AS ITS AUTHORITY?

DID THE TRIAL COURT ERR IN ITS APPLICATION OF THE
DOCTRINE OF LACHES GIVEN THAT 1) [APPELLEE] DID
DELAY FOR 7 YEARS TO BRING A BREACH OF CONTRACT
ACTION[;] 2) [APPELLEE] NEVER BROUGHT AN ACTION TO
ENFORCE A LIEN[;] 3) [APPELLEE] WAS ABLE TO FULLY
PROSECUTE ITS ORIGINAL CLAIM UNDER THE BREACH OF
CONTRACT THEORY[;] 4) THE JURY AWARDED IT THE
FULL AMOUNT OF THE DEBT IT ALLEGED WAS DUE[;] AND
5) THE CIVIL TRIAL COURT’S ACTION OF “DECLARING” A
LIEN IN THE AMOUNT OF THE VERDICT HAD THE
CONSEQUENCE OF REVIVING AN EXTINGUISHED LIEN ON
AN ACTION THAT WAS NEVER PURSUED BY [APPELLEE]
AND THE CIVIL TRIAL COURT DOES NOT SEE THAT AS
BEING AN INEQUITABLE RESULT?

DID THE CIVIL TRIAL COURT COMMIT FUNDAMENTAL
ERROR AND APPLY INCORRECT [PRINCIPLES] OF LAW?

DID THE COURT COMMIT FUNDAMENTAL ERROR WHEN IT
CHOSE NOT TO HOLD ANY EVIDENTIARY HEARINGS ON
EITHER THE EXTINGUISHMENT OF THE LIEN OR THE
ATTORNEY’S FEES ALLEGEDLY INCURRED BY…APPELLEE
AND OBJECTED TO BY…APPELLANT?

SHOULD THE COURT’S INTERPRETATION OF…68 PA.C.S.A.
[§] 3315 BE REJECTED BECAUSE IT CONTRADICTS
ESTABLISHED CANONS OF STATUTORY CONSTRUCTION
UNDER PENNSYLVANIA LAW BY RENDERING SECTION
3315(D) INEFFECTIVE, AS APPLIED, AND BY PRODUCING
AN ABSURD AND UNREASONABLE RESULT?

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J-A10032-16

WHETHER THE CIVIL COURT ERRED BY TRANSFORMING A
VERDICT SPECIFICALLY FOR CONDOMINIUM FEES INTO A
LIEN WHEN THE ONLY ISSUE RAISED BY [APPELLEE]
DURING THE TRIAL AND PRESENTED TO THE JURY WAS
WHETHER CONDOMINIUM FEES WERE OWED FOR THE
SUBJECT UNIT AND THE AMOUNT OF THESE FEES FOR
WHICH [APPELLANT] IS RESPONSIBLE?

DID THE CIVIL COURT DENY THE JURY ITS ROLE AS FACT
FINDER IN GENERAL AND ON THE TOPICS OF LIENS AND
EXPIRED LIENS SPECIFICALLY?

DID THE CIVIL COURT [ERR] IN UPHOLDING A “LUMP
SUM” VERDICT FOR BREACH OF CONTRACT WITH
[APPELLANT] WHEN A) FROM JANUARY 2006 UNTIL
JANUARY 2007 [APPELLANT] WAS NOT AN AGENT TO THE
INCAPACITATED [DECEDENT;] B) FROM JANUARY 2007
UNTIL SEPTEMBER 11, 2009[,] [APPELLANT] WAS NOT
APPOINTED AS ADMINISTRATOR[;] C) FROM SEPTEMBER
11, 2009 UNTIL JULY 2011 WHEN [APPELLANT] DID NOT
HAVE ACCESS TO THE UNIT OR DECEDENT’S FUNDS[;] OR
FROM JULY 2011 UNTIL THE DATE OF TRIAL, WHEN
[APPELLANT] DID IN FACT MAKE SOME PAYMENTS AS
ABLE FROM DECEDENT’S FUNDS[?]

WHETHER THE VERDICT WAS AGAINST THE LAW AND THE
EVIDENCE?

DID THE TRIAL COURT ERR BY CHARACTERIZING THE
ISSUE AS “THE EXTINGUISHMENT OF ANY LIEN BY
OPERATION OF § 3315(D) OF THE CONDOMINIUM ACT”
PRECLUDES RECOVERY OF UNPAID FEES FROM
[APPELLANT] UNDER ANY THEORY OF RECOVERY?

SHOULD THE TRIAL COURT HAVE FRAMED THE ISSUE AS
1) BECAUSE [APPELLEE] DID NOT INSTITUTE LIEN
ENFORCEMENT PROCEEDINGS WITHIN 3 YEARS OF WHEN
THE ASSESSMENTS BECAME PAYABLE, ANY DEBT
ASSOCIATED WITH THOSE PAST ASSESSMENTS CAN NO
LONGER BE SECURED BY A LIEN DUE TO
EXTINGUISHMENT OF THE LIEN AND 2) ANY
ATTORNEY[’S] FEES AND EXPENSES ONCE POTENTIALLY
AVAILABLE TO [APPELLEE] PURSUANT TO THE UNIFORM

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J-A10032-16

CONDOMINIUM ACT ARE NO LONGER AVAILABLE TO IT
ONCE THE LIEN IS EXTINGUISHED?

WHETHER THE INCOMPETENCY OF [DECEDENT] SHOULD
HAVE BEEN ATTRIBUTED TO [APPELLANT]?

(Appellant’s Brief at 3-5).

As a prefatory matter, we note appellate briefs must conform in all

material respects to the briefing requirements set forth in the Pennsylvania

Rules of Appellate Procedure; this Court may quash or dismiss an appeal if

an appellant fails to comply with these requirements. Pa.R.A.P. 2101. See

also Pa.R.A.P. 2114-2119 (addressing specific requirements of each

subsection of brief on appeal). Regarding the statement of the case section

of an appellate brief, Rule 2117 provides, in pertinent part:

Rule 2117. Statement of the Case

(a) General rule.—The statement of the case shall
contain, in the following order:

* * *

(4) A closely condensed chronological statement, in
narrative form, of all the facts that are necessary to be
known in order to determine the points in controversy,
with an appropriate reference in each instance to the
place in the record where the evidence substantiating
the fact relied on may be found. See Rule 2132
(references in briefs to the record).

* * *

(b) All argument to be excluded.—The statement
of the case shall not contain any argument. It is the
responsibility of appellant to present in the statement of
the case a balanced presentation of the history of the
proceedings and the respective contentions of the parties.

Pa.R.A.P. 2117(a)(4), (b).

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J-A10032-16

Additionally, as to the argument section of an appellate brief, Rule 2119(a)

provides:

Rule 2119. Argument

(a) General rule.—The argument shall be divided
into as many parts as there are questions to be argued;
and shall have at the head of each part—in distinctive type
or in type distinctively displayed—the particular point
treated therein, followed by such discussion and citation of
authorities as are deemed pertinent.

Pa.R.A.P. 2119(a). Importantly:

The argument portion of an appellate brief must include a
pertinent discussion of the particular point raised along
with discussion and citation of pertinent authorities. This
[C]ourt will not consider the merits of an argument which
fails to cite relevant case or statutory authority. Failure to
cite relevant legal authority constitutes waiver of the claim
on appeal.

In re Estate of Whitley, 50 A.3d 203, 209 (Pa.Super. 2012), appeal

denied, 620 Pa. 724, 69 A.3d 603 (2013). Where an appellant fails to raise

or properly develop issues on appeal, or where the brief is wholly inadequate

to present specific issues for review, a court will not consider the merits of

the claims raised on appeal. Butler v. Illes, 747 A.2d 943 (Pa.Super.

2000) (holding appellant waived claim where she failed to set forth adequate

argument concerning her claim on appeal; appellant’s argument lacked

meaningful substance and consisted of mere conclusory statements;

appellant failed to explain cogently or even tenuously assert why trial court

abused its discretion or made error of law). See also Lackner v. Glosser,

892 A.2d 21 (Pa.Super 2006) (explaining appellant’s arguments must

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adhere to rules of appellate procedure, and arguments which are not

appropriately developed are waived on appeal; arguments not appropriately

developed include those where party has failed to cite any authority in

support of contention); Estate of Haiko v. McGinley, 799 A.2d 155

(Pa.Super. 2002) (stating rules of appellate procedure make clear appellant

must support each question raised by discussion and analysis of pertinent

authority; absent reasoned discussion of law in appellate brief, this Court’s

ability to provide appellate review is hampered, necessitating waiver of issue

on appeal).

Instantly, the defects in Appellant’s brief are substantial. Appellant’s

“Statement of the Case” totals twenty-nine (29) pages, most of which are

merely a cut-and-paste of prior filings in this litigation and email exchanges

between Appellant’s counsel and Appellee’s counsel. Notably, Appellant fails

to present a closely condensed chronological statement containing all

relevant facts necessary to resolve this appeal. See Pa.R.A.P. 2117(a)(4).

Likewise, Appellant does not provide a balanced presentation of the history

of the proceedings and the respective contentions of the parties. See

Pa.R.A.P. 2117(b). Instead, the statement of the case consists mostly of

arguments that the court improperly revived an extinguished lien, molded

the verdict to include attorney’s fees and costs, and decided the matter

when the orphans’ court allegedly had exclusive subject matter jurisdiction.

Inclusion of argument in Appellant’s statement of the case violates Rule

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2117(b). See id.

More importantly, Appellant’s argument section falls woefully short of

the requisite standards. At the outset, despite the eighteen issues raised on

appeal, Appellant’s argument is only three pages long. Appellant also failed

to divide her argument section into distinct parts corresponding to each of

the eighteen issues raised on appeal. See Pa.R.A.P. 2119(a). Further,

Appellant’s brief presents no cogent argument for the issues and includes

only extraneous legal citations, which do not support the many different

claims raised. See In re Estate of Whitley, supra. Appellant’s argument

merely concludes that her due process rights were violated when the court

did not transfer the case to the orphans’ court for a ruling on the lien issue.

Appellant, however, includes superfluous citations to support this contention.

Additionally, Appellant’s argument fails to address or acknowledge most of

the remaining issues raised on appeal. The substantial defects in Appellant’s

brief arguably preclude meaningful review and constitute sufficient grounds

for this Court to suppress Appellant’s brief and dismiss the appeal. See

Butler, supra.

Nevertheless, to the extent the trial court was able to discern

Appellant’s issues, our standard of review for the denial of a motion for JNOV

is:

[Whether], when reading the record in the light most
favorable to the verdict winner and granting that party
every favorable inference therefrom, there was sufficient
competent evidence to sustain the verdict. Questions of

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J-A10032-16

credibility and conflicts in the evidence are for the trial
court to resolve and the reviewing court should not
reweigh the evidence. Absent an abuse of discretion, the
trial court’s determination will not be disturbed.

Holt v. Navarro, 932 A.2d 915, 919 (Pa.Super. 2007), appeal denied, 597

Pa. 717, 951 A.2d 1164 (2008). Further:

There are two bases upon which a [JNOV] can be entered:
one, the movant is entitled to judgment as a matter of
law, and/or two, the evidence was such that no two
reasonable minds could disagree that the outcome should
have been rendered in favor of the movant. With the first,
a court reviews the record and concludes that even with all
factual inferences decided adverse to the movant the law
nonetheless requires a verdict in his favor, whereas with
the second, the court reviews the evidentiary record and
concludes that the evidence was such that a verdict for the
movant was beyond peradventure.

Id. “When reviewing a trial court’s denial of a motion for JNOV, we must

consider all of the evidence admitted to decide if there was sufficient

competent evidence to sustain the verdict…. Concerning any questions of

law, our scope of review is plenary. Concerning questions of credibility and

weight accorded the evidence at trial, we will not substitute our judgment for

that of the finder of fact…. A JNOV should be entered only in a clear case.”

Id.

The relevant version of Section 3315 of the Uniform Condominium Act

(“UCA”) applicable to Appellant’s case provided, in pertinent part, as follows:

§ Lien for assessment

(a) General rule.—The association has a lien on a unit
for any assessment levied against that unit or fines
imposed against its unit owner from the time the

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J-A10032-16

assessment or fine becomes due. The association’s lien
may be foreclosed in like manner as a mortgage on real
estate.

* * *

(d) Limitation of actions.—A lien for unpaid
assessments is extinguished unless proceedings to enforce
the lien are instituted within three years after the
assessments become payable.

(e) Other remedies preserved.—Nothing in this
section shall be construed to prohibit actions or suits to
recover sums for which subsection (a) creates a lien or to
prohibit an association from taking a deed in lieu of
foreclosure.

(f) Costs and attorney’s fees.—A judgment or decree
in any action or suit brought under this section shall
include costs and reasonable attorney’s fees for the
prevailing party.

68 Pa.C.S.A. §§ 3315(a), (d), (e), and (f).1 “Subsection (e) makes clear

that the association may have remedies short of foreclosure of its lien that

can be used to collect unpaid assessment. The association, for example,

might bring an action in debt or breach of contract against a recalcitrant unit

owner rather than resorting to foreclosure.” 68 Pa.C.S.A. § 3315 cmt. 3.

Importantly, “issues not raised in post[-]trial motions are waived for

purposes of appeal.” Diener Brick Co. v. Mastro Masonry Contractor,

____________________________________________

1
The legislature amended Section 3315 of the UCA on April 20, 2016
(effective June 20, 2016). The amended version of Section 3315(d) now
provides a condominium association four years to institute proceedings to
enforce a lien before the lien is extinguished. See 68 Pa.C.S.A. § 3315(d)
(as amended).

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J-A10032-16

885 A.2d 1034, 1038 (Pa.Super. 2005) (citing Pa.R.C.P. 227.1).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Michael E.

McCarthy, we conclude Appellant’s issues on appeal merit no relief. The trial

court opinion fully discusses and properly disposes of the questions it was

able to discern as preserved issues. (See Trial Court Opinion, filed June 29,

2015, at 1-7 (finding: (a) Appellant’s Rule 1925(b) statement contends

court failed to give Appellant opportunity to argue lien extinguishment

pursuant to Section 3315(d) of UCA; however, Appellant’s lien

extinguishment claim is arguably waived due to Appellant’s failure to raise

this claim in her post-trial motion; moreover, Appellant’s contention that

Appellee’s lien is extinguished pursuant to Section 3315(d) of UCA is

incorrect; mere expiration of lien available to Appellee would not extinguish

underlying debt, it would just make debt unsecured by condominium;

additionally, comment 3 to Section 3315(e) plainly acknowledges Appellee’s

authority to recover unpaid condominium, maintenance, and late fees under

breach of contract theory; Appellee pursued breach of contract theory, and

jury determined Appellee proved underlying debt based on unpaid

condominium, maintenance, and late fees; Appellant concedes case went to

jury on breach of contract theory; in fact, Appellant’s only complaint is that

court revived extinguished lien when it transformed damages under breach

of contract theory into lien; contrary to Appellant’s claim, court did not

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revive extinguished lien; verdict rendered by jury constituted assessment

against Appellant within meaning of UCA; as such, court had authority

pursuant to Section 3315(a) to acknowledge verdict as lien; thus,

Appellant’s lien extinguishment claim has no merit; (b) record does not

support Appellant’s assertions that court failed to consider “lack of

competent contracting party” and should have molded verdict to exclude

unpaid condominium, maintenance, and late fees accrued prior to

appointment of Appellant as administratrix of estate; Appellant conceded

unawareness of any facts sufficient to dispute fee obligation; Appellant

further did not allege that Decedent was incompetent when she entered

condominium agreement; thus, these claims warrant no relief; (c) Appellant

insists the court should have reduced verdict pursuant to doctrine of laches;

however, Appellant failed to demonstrate prejudice or harm necessary to

sustain doctrine of laches claim; any delay in recovery of unpaid

condominium, maintenance, and late fees was caused mostly by conflict

within Decedent’s family; additionally, Appellant’s own pre-trial statement

described Appellee’s diligent pursuit of unpaid condominium, maintenance,

and late fees; thus, Appellant was not entitled to doctrine of laches jury

instruction or reduction of verdict based on doctrine of laches; (d) although

Appellant objects to Appellee’s request for attorney’s fees and costs, UCA

authorizes Appellee’s request, which is manifestly reasonable under

circumstances of case; many legal expenses Appellee incurred were due to

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Appellant’s repeated attacks on court’s jurisdiction despite court’s prior

resolution of jurisdiction issue; Appellant also claims court erred when it did

not hold hearing on attorney’s fees issue; however, court engaged in

extensive discussions with parties about Appellant’s exposure to attorney’s

fees and costs; court further explained to Appellant that attorney’s fees were

presumptively available to Appellee pursuant to UCA; thus, hearing on

attorney’s fees issue would serve only to delay proceedings unnecessarily;

therefore, court properly molded verdict, entered judgment in favor of

Appellee, and denied Appellant’s post-trial motion). Accordingly, to the

extent the trial court found these issues preserved, we affirm on the basis of

the trial court opinion.2

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/4/2016

____________________________________________

2
Due to our disposition, we deny all open motions.

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 Circulated 10/20/2016 02:10 PM

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY,
PENNSYLVANIA

·5100 FIFfH A VENUE CONDOMINIUM CIVIL DIVISION
ASSOCIATION,
No. GD 12-002331
Plaintiff, 846 WDA2015

vs.
OPINION
ESTATE OF ESTHER F. ASCHEIM,
BARBARA EFFRON in her capacity as BY:
ADMINISTRATOR of the Estate,
Honorable Michael E. McCarthy
Defendant. 709 City-County Building
414 Grant Street
Pittsburgh, PA 15219

COPIES TO:

Counsel for Plaintiff:

Fred C. Jug, Jr., Esquire
1109 Grant Building
310 Grant Street
Pittsburgh, PA 15219

Counsel for Defendant:

Kim A. Bodnar, Esquire
The Mitchell Building, Suite 701
304 Ross Street
Pittsburgh, PA 15219
 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA

5100 FIFrH A VENUE Civil Action
CONDOMINIUM ASSOCIATION,

Plaintiff,
No. GD-12-2331
846 WDA 2015.
v.

EST ATE OF ESTHER F. ASCHEIM, DECEASED,
BARBARA EFFRON, in her capacity
as Administrator of the Estate,

Defendant.

OPINION

During the course of litigation, a party by means of motion, objection, proposed points

for charge or other appropriate method preserves the grounds on which it might eventually rely

to obtain post-trial relief. A party who is disappointed by a verdict identifies and relies upon

those grounds when it presents a motion for post-trial relief consistent with the requirements of

Pa R.C.P. 227.1. Any basis for relief that either has not been appropriately preserved at points

prior to the verdict or is not identified in a motion pursued under Rule 227.1 is deemed waived.

A party whose motion for post-trial relief is unsuccessful, may pursue any properly

preserved issue on appeal. In that event, the trial court may direct an appellant to provide an

appropriately concise statement of errors complained of on appeal pursuant to P.R.A.P. 1925 (b).

That statement should afford the court some clarification of the errors alleged by an appellant.
Minimally, a 192S(b) statement should indicate to the court whether all or merely some of the

matters raised by a motion for post-trial relief are the subject of the appeal.

In the case at hand, the 1925(b) statement submitted by the defendant estate complains of

matters that were not mentioned in the motion for post-trial relief. Reiterated throughout the

statement of matters complained of on appeal is the estate's contention that the court failed to

provide the defendant an opportunity to argue the extinguishment of a lien pursuant to §68 Pa.

C.S.A. 331S(d). No reference to lien-extinguishment appears in any part of the estate's motion

for post-trial relief. Arguably, the matter has been waived. Nonetheless, it will be addressed.1

The Uniform Condominium Act imposes a three-year limitations period on the

enforcement of a lien imposed for any unpaid assessment:

(d) Limitation of actions.--A lien for unpaid assessments is
extinguished unless proceedings to enforce the lien are instituted
within three years after the assessments become payable.

The defendant contends that the extinguishment of any lien by operation of §3315(d) of

the Condominium Act precluded recovery of unpaid fees from the condominium owner under

any theory of recovery. That is incorrect. Although a lien may be an incident of and inseparable

from any debt that it secures, the enforceable debt of an individual can certainly continue to exist

distinct from any unsatisfied expired lien that once secured that debt. The mere expiration of a

lien available to a condominium association under §68 Pa. C.S.A. 3315(d) would not extinguish

the underlying debt that a unit owner had accumulated by reason of unpaid fees. Expiration of

1This is not an appeal from a verdict, but is an appeal following the entry of judgment. The
judgment and order of court, dated April 29, 2015, declared that the condominium association
possessed a lien in the amount of the verdict. Further, reasonable cost and expenses, including
reasonable attorney fees, were awarded.
2
the lien would render the debt unsecured by the condominium unit and compel an association to

seek a money judgment for fees owed, but the existence of a lien is not indispensable to a claim

of a condominium association for outstanding condominium fees.

The Condominium Act explicitly preserves an association's right to pursue fees in a

manner other than execution of a lien. §3315 of the Act provides:

(e) Other remedies preserved.v-Nothing in this section shall be
construed to prohibit actions or suits to recover sums for which
subsection (a) creates a lien or to prohibit an association from
taking a deed in lieu of foreclosure.

(f) Costs and attorney's fees.--A judgment or decree in any action
or suit brought under this section shall include costs and reasonable
attorney's fees for the prevailing party.

The authority of a condominium association to proceed upon a contract theory i~ its

pursuit of unpaid fees is even more plainly acknowledged in official comments to the

Condominium Act:

3. Subsection (e) makes clear that the association may have
remedies short of foreclosure of its lien that can be used to collect
unpaid assessments. The association, for example, might bring an
action in debt or breach of contract against a recalcitrant unit
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owner rather than resorting to foreclosure.

In the case at hand, the association elected to pursue the unpaid assessments under a

contract theory. The question put to the jury was whether the plaintiff-association adequately

2
See Comments provided by the National Conference of Commissionerson Uniform State Laws
relating to the Uniform Act.
3
proved an underlying debt appertaining to the defendant estate based upon the non-payment of

condominium fees. The defendant concedes that the case went to the jury on a breach of

contract theory. In fact, the defendant complains that the court erred when it "transform[ed] a

verdict rendered by a jury in a breach of contract case into a lien when that lien is extinguished

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in whole or in part"

Contrary to the defendant's characterization, the April 29, 2015 order of court did not

revive an extinguished lien. The jury entered a verdict in favor of the plaintiff association and

against the defendant in the amount of $55,461.31, a figure that was consistent that was entirely

with the calculations of condominium fees and late fees provided to the jury through plaintiff's

case. The Condominium Act provides, at 68 Pa.C.S.A. §3315, that such recoveries are

themselves enforceable as assessments. The verdict rendered for condominium fees and late

fees constituted, in itself, an assessment or fine imposed against the unit owner within the

meaning of the Condominium Act. As such, it may be declared a lien pursuant to §3315(a) of

the Condominium Act, which provides in straightforward fashion that:

General rule.« The association has a lien on a unit for any
assessment levied against that unit or fines imposed against its unit
owner from the time the assessment or fine becomes due.

The molding of the verdict and entry of judgment in this matter did not resurrect a defunct lien; it

acknowledged the verdict for unpaid assessments and fees as a lien.

The defendant's 1925(b) statement asserts vaguely that the court failed to properly

consider "the lack of a competent contracting party". The statement asserts additionally that the

verdict should have been molded to exclude any condominium fees or late fees that had

3
Concise Statement at Nos. 5, 7, 9-11; italics added.

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accumulated in advance of the appointment of the administratrix of the decedent's estate.4 That

contention finds no support in the record. At trial, the plaintiff demonstrated that each

condominium unit owner receives a copy of the governing documents of the association. Those

documents inform unit owners that they are required to pay condominium fees as the fees come

due. The administratrix conceded that she was unaware of any facts sufficient to dispute the

claims of the plaintiff-association regarding the obligations of unit owners. Further, the

defendant made no allegation in its Answer and New Matter in this case that Ms. Ascheim was

incompetent at the time of being informed of and accepting the terms of condominium

ownership. Subsequent incompetency would not have voided the obligations undertaken by Ms.

Ascheim as a condominium owner. See, Weir by Gasper v. Estate of Ciao, 521 Pa. 491, 556

A2d 819 (1989).

The defendant insists, however, that the verdict amount should have been reduced

pursuant to its assertion of the doctrine of laches. Laches is an affirmative defense. To the

extent that the defendant urges that the plaintiff association is estopped from asserting any part of

its claim to condominium fees that remained unpaid during the term of ownership by Ms.

Ascheim or her estate, that estoppel by laches cannot be adequately established merely by

demonstrating some delay on the part of the plaintiff in pursuing its debts. A defendant invoking

the doctrine of laches must also affirmatively establish that, in reasonable anticipation on its part

that the plaintiff would belay its claim against the defendant or abandon that claim entirely, the

defendant had so changed his own circumstances that some additional harm will likely result to

the defendant should the plaintiff be permitted to fully prosecute and recover its original claim.

There is no indication of any such inequitable result here; any inequity described by the

4
See, e.g., "Statement of Errors Complained of on Appeal" at No. 13, 22.

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defendant relates to the internecine conflicts of the Ascheims, not to the plaintiff. There was no

acquiescence on the part of the plaintiff condominium association to any delayed payment of

condominium fees. In fact, the defendant's own pre-trial statement described the plaintiff's

diligent past pursuits of delinquent fees. The plaintiff accurately observed that, although the

defendant requested a jury instruction as to laches, the defendant ultimately produced no

evidence of prejudice attributable to the plaintiff that would support such an instruction.

The defendant objects to the award of attorney fees and expenses to the plaintiff.

Reasonable costs and expenses, including legal fees incurred in connection with a condominium

association's effort to collect monies are recoverable under the Condominium Act and are,

therefore, available to an association as a matter of law. The litigation expenses that the plaintiff

has claimed in this matter are itemized and modest, as are the legal fees it has requested.

Plaintiff's counsel fees totaled $4,038.50 at the time the trial commenced, and at that juncture

were manifestly reasonable.

Given the necessary expenditure of time and effort at trial and subsequent to the verdict,

the request for fees has remained reasonable and, indeed, the court is persuaded that an economy

of hours has been achieved by reason of the familiarity of plaintiff's counsel with pertinent law

and the focused and restrained character of counsel's arguments. Further, notwithstanding that

very early on in this matter Judge Friedman made it clear to the defendant that plaintiff's claim

could be pursued through the civil division, the defendant has caused the parties to travel

between the civil and orphans court divisions time and again on the matter of the defendant's

liability for unpaid condominium fees. The defendant cannot complain that by repeatedly

revisiting its arguments as to the jurisdiction of the divisions, it has caused the recoverable fees

of plaintiff to increase.

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 Notwithstanding the discussions and review of all aspects of the case that occurred in the

course of the status conferences scheduled for the particular purpose of resolving this matter,

including, specific discussion on the extent of the defendant's exposure to counsel fees, the

defendant now asserts that it was error not to hold evidentiary hearings "on the attorney's fees

allegedly incurred by the Appellee and objected to by the Appellant". There are instances in

which the right of participants to receive counsel fees as sanctions must be determined through

an evidentiary hearing as to the underlying conduct that purports to be the basis for sanctions in

the form of fees. See, e.g., 42 Pa.C.S.A. §2503. This is not such an instance. On the contrary, if

an association's pursuit of condominium fees and late fees through litigation under the

Condominium Act results in a recovery of such fees, then attorney fees are presumptively

available. See, 68 Pa.C.S.A. §3315. The matter of fees and the range of fees were addressed

fully in conference and were considered by the court in the context of the nature of the case, the

quality and efficiency of representation and the end result of that representation. A formal

hearing as to attorney fees would have served no end other than to occasion further delay and to

commit the plaintiff to additional time and expense in order to put the math on the record and

confirm the obvious.

For all those reasons, the court entered the order of April 29, 2015 molding the verdict

and formally denying the defendant's motion for post-trial relief.

June ).f.( ~ , 2015
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