IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Logans’ Reserve Homeowners’ :

Association :

:

v. :

:

Jeffrey McCabe and Jennifer McCabe, : No. 820 C.D. 2016

Appellants :

Logans’ Reserve Homeowners’ :

Association :

:

v. :

:

Jeffrey McCabe and Jennifer McCabe, : No. 821 C.D. 2016

Appellants : Argued: December 12, 2016

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY 

JUDGE COVEY FILED: January 4, 2017

Jeffrey McCabe (Mr. McCabe) and Jennifer McCabe (collectively, the 

McCabes) appeal from the York County Common Pleas Court’s (trial court) April 22, 

2014, February 17, 2016 and April 15, 2016 orders granting Logans’ Reserve 

Homeowners’ Association’s (Association) partial summary judgment motion, 

denying the McCabes’ motion for continuance, and denying the McCabes’ post-trial 

relief motion. There are three issues1for this Court’s review: (1) whether the trial 

court erred in granting the Association’s partial summary judgment motion; (2) 

 

1

In their brief, the McCabes set forth four issues; however, we have combined the first two 

issues.
2

whether the trial court erred in denying the McCabes’ continuance motion; and, (3) 

whether the trial court erred in denying the McCabes’ post-trial relief motion (PostTrial Motion). After review, we affirm.

On August 28, 2006, the McCabes purchased real property at 1118 

Silver Maple Circle in Seven Valleys, Pennsylvania (the Property). The Property is 

located within Logan’s Reserve (the Development), a community owned and 

maintained by the Association, and is subject to the Uniform Planned Community 

Act (Act)2and the Association’s Declaration, By-Laws and amendments thereto

(Declaration). The Declaration requires property owners, including the McCabes, to 

pay common expense

3

assessments to the Association. See Declaration § 9.2.1. 

After the McCabes purchased the Property, the Association assessed 

them monthly dues, which they paid. However, in June 2009, the McCabes ceased 

paying the dues. On April 8, 2010, the Association instituted an action against the 

McCabes in Magisterial District Court. On June 23, 2010, the Magisterial District 

Judge entered judgment in the McCabes’ favor. On July 1, 2010, the Association 

filed a notice of appeal from the June 23, 2010 judgment. On August 10, 2010, the 

Association filed a complaint in the trial court against the McCabes seeking recovery 

of their unpaid assessments, as well as late fees and attorneys’ fees. On October 22, 

2010, the McCabes filed an answer with new matter and counterclaim explaining that 

they stopped paying the assessed dues because the Association had “failed, and 

continues to fail to maintain the common area behind [the McCabes’] back lawn (. . . 

 

2

68 Pa.C.S. §§ 5101-5414.

3

The Declaration defines “[c]ommon [e]xpenses” as “expenditures made by or financial 

liabilities of the Association, together with any allocations to reserves.” Declaration § 1.5.2(h), 

Reproduced Record (R.R.) at 67a. Section 9.1.1 of the Declaration provides that common expenses 

include “[e]xpenses of administration, maintenance, and repair or replacement of the [c]ommon 

[e]lements . . . .” Declaration § 9.1.1, R.R. at 82a. 
3

Common Area[]).”

4

 Reproduced Record (R.R.) at 35a. In their new matter, the 

McCabes alleged that the Association had not maintained the Common Area since the 

McCabes moved into the Property in August 2006, and that the Common Area was 

overgrown with weeds and shrubs, thereby causing their lawn and home to be 

infested with ticks and other insects, for which they incurred treatment expenses. In 

their counterclaim, the McCabes claimed that the Association’s failure to maintain 

the Common Area constituted a breach of the Declaration and resulted in the 

aforementioned expenses. Accordingly, the McCabes sought reimbursement of the 

expenses, plus reimbursement of dues they paid between August 2006 and June 2009. 

The Association filed its answer to the new matter and counterclaim on October 22, 

2010. 

On November 12, 2013, the Association filed its partial summary 

judgment motion alleging that there were no genuine issues of material fact, that the 

McCabes had failed to pay their assessed dues and that, as a matter of law, the 

McCabes were prohibited from withholding payment of common expense 

assessments as self-help to address their dissatisfaction with the Association’s alleged 

failure to maintain the Common Area. The Association also sought attorneys’ fees

and costs. After oral argument, on April 22, 2014, the trial court granted the 

Association’s partial summary judgment motion, entered judgment in the 

Association’s favor, and awarded attorneys’ fees and costs. The case continued on 

the McCabes’ counterclaim.

The McCabes requested that their counterclaim proceed to arbitration.

At arbitration, the McCabes were awarded $2,711.06 (Arbitrators’ Award). The 

McCabes appealed from the Arbitrators’ Award to the trial court on the basis that the 

arbitrators did not award attorneys’ fees. 

 

4 Due to a caption error, on December 21, 2010, the McCabes filed an amended answer, new 

matter and counterclaim correcting the caption.
4

On August 31, 2015, the parties’ counsel signed a Certificate of Trial 

Readiness (Certificate) declaring to the trial court that the matter was ready for trial. 

The Certificate also certified “that all witnesses will be on call and available during 

the entire scheduled trial term.” R.R. at 579a. A non-jury trial was scheduled for 

February 17, 2016 before Judge Stephen P. Linebaugh (Judge Linebaugh). Judge 

Linebaugh held a pretrial conference on October 1, 2015. Prior to trial, Judge

Linebaugh conducted a site visit. 

On February 9, 2016, the Association filed its pre-trial brief wherein it 

argued the business judgment rule as a defense to the McCabes’ action. On the 

evening of February 12, 2016, the McCabes’ witness, former Association President 

Howard Asche (Asche), informed the McCabes that he could not attend trial due to a 

scheduling conflict. On February 15, 2016, the McCabes filed a First Motion for a 

Trial Continuance (Continuance Motion) by first class mail with a certificate of 

service dated February 15, 2016.5 Therein, the McCabes explained that Asche was 

unavailable and that his testimony was directly relevant to the Association’s business 

judgment rule defense.6 The trial court’s Prothonotary’s office time-stamped the 

 

5

The McCabes state in their brief to this Court that they “timely filed their [Continuance 

Motion] on the next day the York [County] Prothonotary’s office was open, which was February 16, 

2016 due to the weekend, a holiday and inclement weather. This was only one (1) day prior to the 

date of trial itself, however.” McCabes’ Br. at 12. There is no explanation for the discrepancy 

between the February 15, 2016 mailing date, the February 17, 2016 time-stamped date, and the 

McCabes’ representation that the Continuance Motion was filed on February 16, 2016. 

6 Our Supreme Court has explained:

The business judgment rule insulates an officer or director of a 

corporation from liability for a business decision made in good faith if 

he is not interested in the subject of the business judgment, is 

informed with respect to the subject of the business judgment to the 

extent he reasonably believes to be appropriate under the 

circumstances, and rationally believes that the business judgment is in 

the best interests of the corporation.

Cuker v. Mikalauskas, 692 A.2d 1042, 1045 (Pa. 1997). “[I]f a court makes a preliminary 

determination that a business decision was made under proper circumstances, however that concept 
5

Continuance Motion on February 17, 2016. Notwithstanding, the trial was held as 

scheduled on February 17, 2016. On the last day of trial, the McCabes renewed their 

Continuance Motion, and requested the trial court to keep the record open so they 

could obtain Asche’s testimony before the trial court rendered a decision. The trial 

court refused the McCabes’ request. In a February 17, 2016 written order, the trial 

court denied the Continuance Motion, explaining:

 

is currently defined, then the business judgment rule prohibits the court from going further and 

examining the merits of the underlying business decision. Id. at 1047.

Although the parties herein argue the business judgment rule, our Superior Court has found 

that Section 5303 of the Act 

govern[s] the standard with which we review decisions made by the 

[association’s executive b]oard. This section is stated, in pertinent 

part, as follows: 

§ 5303. Executive board members and officers

(a) POWERS AND FIDUCIARY STATUS.--Except 

as provided in the declaration, in the bylaws, in 

subsection (b) or in other provisions of this subpart, the 

executive board may act in all instances on behalf of 

the association. In the performance of their duties, the 

officers and members of the executive board shall 

stand in a fiduciary relation to the association and shall 

perform their duties, including duties as members of 

any committee of the board upon which they may 

serve, in good faith; in a manner they reasonably 

believe to be in the best interests of the association; 

and with care, including reasonable inquiry, skill and 

diligence as a person of ordinary prudence would use 

under similar circumstances. [ . . . ]. 

68 Pa.C.S.[] § 5303. Therefore, [a court] review[s] the actions of the 

[association’s executive b]oard to determine if they acted ‘in good 

faith; in a manner they reasonably believe to be in the best interests of 

the association; and with care, including reasonable inquiry, skill and 

diligence as a person of ordinary prudence would use under similar 

circumstances.’ See 68 Pa.C.S.[] § 5303.

Burgoyne v. Pinecrest Cmty. Ass’n, 924 A.2d 675, 683 (Pa. Super. 2007).
6

The [trial court] conducted a pretrial conference in this 

matter on October 1, 2015. At that time, Counsel selected 

the date for the trial and had selected the date for today’s 

date and time. 

The allegation in the motion is that there’s a witness who is 

unavailable because he has meetings in New Jersey relative 

to this appointment, and that is not a sufficient justification 

to continue the trial when a witness could have been made 

available by the moving party.

R.R. at 345a-346a.

On March 23, 2016, the trial court found in favor of the Association and 

against the McCabes on the McCabes’ counterclaim (March 23, 2016 Order). The 

McCabes filed the Post-Trial Motion seeking reconsideration, a new trial or other 

equitable relief. On April 15, 2016, the trial court denied the McCabe’s Post-Trial 

Motion. The McCabes appealed to the Pennsylvania Superior Court. The Superior 

Court, sua sponte, transferred the matter to this Court.7

The McCabes first argue that the trial court erred when it granted the 

Association’s partial summary judgment motion. The McCabes contend that a 

genuine issue of material fact8remains regarding whether the Association breached 

the Declaration, thereby justifying the McCabes’ failure to pay their assessments.

Section 5314 of the Act provides:

(a) General rule.--Until the association makes a common 

expense assessment, the declarant shall pay all the expenses 

of the planned community. After any assessment has been 

made by the association, assessments shall be made at least 

annually, based on a budget adopted at least annually by the 

 

7

“Appellate review of a trial court’s grant of summary judgment is limited to determining 

whether the trial court committed an error of law or abused its discretion. Moreover, summary 

judgment may be granted only in cases where it is clear and free from doubt that the moving party is 

entitled to judgment as a matter of law.” Bashioum v. Cnty. of Westmoreland, 747 A.2d 441, 442

n.1 (Pa. Cmwlth. 2000) (citation omitted).

8

“A material fact is one that directly affects the outcome of the case.” Kenney v. Jeanes 

Hosp., 769 A.2d 492, 495 (Pa. Super. 2001) (quoting Kuney v. Benjamin Franklin Clinic, 751 A.2d 

662, 664 (Pa. Super. 2000)).
7

association. The budgets of the association shall segregate 

limited common expenses from general common expenses 

if and to the extent appropriate.

(b) Allocation and interest.--Except for assessments under 

subsection (c), all common expenses shall be assessed 

against all the units in accordance with the common 

expense liability allocated to each unit in the case of general 

common expenses and in accordance with subsection (c) in 

the case of special allocation of expenses. Any past[-]due 

assessment or installment thereof shall bear interest at the 

rate established by the association at not more than 15% per 

year.

(c) Special allocations of expenses.--Except as provided by 

the declaration:

(1) Any common expense associated with the 

maintenance, repair or replacement of a limited common 

element shall be assessed in equal shares against the units 

to which that limited common element was assigned at 

the time the expense was incurred.

(2) Any common expense benefiting fewer than all of the 

units shall be assessed exclusively against the units 

benefited.

(3) The costs of insurance shall be assessed in proportion 

to risk, and the costs of utilities that are separately 

metered to each unit shall be assessed in proportion to 

usage.

(4) If a common expense is caused by the negligence or 

misconduct of any unit owner, the association may assess 

that expense exclusively against his unit.

68 Pa.C.S. § 5314 (text emphasis added). Section 5315(a) of the Act states:

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 association’s lien may be foreclosed in a like 

manner as a mortgage on real estate. A judicial or other 

sale of the unit in execution of a common element lien or 

any other lien shall not affect the lien of a mortgage on the 

unit, except the mortgage for which the sale is being held, if 

the mortgage is prior to all other liens upon the same 
8

property except those liens identified in [Section 8152(a) of 

the Judicial Code,] 42 Pa.C.S. § 8152(a) (relating to judicial 

sale as affecting lien of mortgage) and liens for planned 

community assessments created under this section. Unless 

the declaration otherwise provides, fees, charges, late 

charges, fines and interest charged under [S]ection 

5302(a)(10), (11) and (12) [of the Act] (relating to power of 

unit owners’ association) and reasonable costs and expenses 

of the association, including legal fees, incurred in 

connection with collection of any sums due to the 

association by the unit owner or enforcement of the 

provisions of the declaration, by[-]laws, rules or regulations 

against the unit owner are enforceable as assessments under 

this section. If an assessment is payable in installments and 

one or more installments are not paid when due, the entire 

outstanding balance of the assessment becomes effective as 

a lien from the due date of the delinquent installment.

68 Pa.C.S. § 5315(a) (emphasis added).

The Pennsylvania Superior Court in Rivers Edge Condominium

Association v. Rere, Inc., 568 A.2d 261 (Pa. Super. 1990), was the first appellate 

court to address the issue of whether a condominium unit owner can withhold 

assessment payments based on an association’s failure to maintain the common areas. 

In Rivers Edge, a condominium owner refused to pay assessments to the association 

because the owner believed that the association had failed to maintain and repair the 

common elements. The owner also claimed that he suffered property damage caused 

by water leaks.9 The Superior Court held that the owner’s “action in withholding his 

condominium assessments, even assuming that he has suffered the property damage 

he alleges, is not justified by the language of the . . . [c]ondominium [b]y-laws, the 

statutes of this Commonwealth, or general public policy considerations.” Id. at 263. 

The Rivers Edge Court expounded:

The [c]ondominium [b]y–[l]aws explicitly require that a 

unit owner continue to pay the condominium assessment 

 

9

The governing statute in Rivers Edge was the Uniform Condominium Act, 68 Pa.C.S. §§ 

3101-3414. 
9

even if the owner is not receiving services owed to him, i.e., 

repairs to the common elements. When an individual 

purchases a condominium unit . . . , he necessarily accepts 

this provision allowing for no exemption from payment of 

the assessments. Such a provision benefits all of the unit 

owners because if all unit owners continue to pay the 

assessments, maintenance and repairs to the common 

elements will continue to be possible. A condominium 

form of ownership in real estate succeeds, because unit 

owners agree to cooperate in the maintenance of 

common elements. When the [property owner]

purchased his [condominium] units . . . , he chose to 

accept the benefits and obligations which accompany 

this form of real estate ownership. Although no appellate 

court in Pennsylvania has addressed the issue of whether 

the owner of a condominium unit may withhold 

condominium assessments based upon the alleged failure of 

the condominium association to maintain common 

elements, this issue was addressed by the Court of Common 

Pleas of Philadelphia in Society Hill Towers Owners’

Association v. Matthew, 32 Pa. D. & C.3d 244 (1982).

There, a judgment by confession had been entered in favor 

of a condominium association against unit owners who had 

failed to pay assessments. The unit owners claimed that 

they failed to pay the assessments due to the failure of the 

[a]ssociation to provide required maintenance services. The 

trial court aptly responded to this contention:

Regarding petitioners’ contention that their 

obligation to pay was dependent upon the 

provision of services, nothing in their deed, the 

Condominium Declaration or Code of 

Regulations supports it. Under the Code of 

Regulations, unit owners are required to pay all 

assessments and have no right to withhold 

payment for alleged nonprovision of services. 

Petitioners should have directed their dispute 

over maintenance services to the condominium 

council rather than unilaterally withholding 

assessments.

Id. at 247-[]48.

We find it significant that nothing in [the Act] supports the 

type of self-help action undertaken by the [condominium 
10

owner]. Had the Legislature intended to allow owners of 

condominium units to withhold assessments where 

owners believe that their condominium association is not 

performing its obligations properly, we believe the 

Legislature would have explicitly so provided. 

Rivers Edge, 568 A.2d at 263 (bold emphasis added).

10

 Accordingly:

[N]othing in the [Act] supports the type of self-help action 

undertaken by [the McCabes]. Had the Legislature 

intended to allow owners of [homes subject to homeowners’ 

associations] to withhold assessments where owners believe 

that their . . . association is not performing its obligations 

properly, we believe the Legislature would have explicitly 

so provided.

Id. at 263.11

 

10 In Rivers Edge, the by-laws explicitly required “that a unit owner continue to pay the 

condominium assessment even if the owner is not receiving services owed to him.” Id. at 263. 

Although, there is no similar provision in the Association’s Declaration, we do not find that factor 

dispositive, since the other considerations discussed in Rivers Edge also apply here. 

11 More recently, in Fawn Ridge Estates Homeowners Association v. Carlson (Pa. Cmwlth., 

No. 1462 C.D. 2010, filed July 25, 2011), an unreported opinion, this Court endorsed the Superior 

Court’s position in Rivers Edge that withholding assessment payments based on an owner’s alleged 

harm is impermissible and applied the same legal analysis to a homeowner’s association. It stated: 

Although [a]ppellants’ ancillary issues allege improprieties and/or 

illegalities of the assessments, such issues are not a defense for 

non-payment and cannot be used to delay payments that are due 

as a matter of law to the [a]ssociation. See generally Locust Lake 

Vill[.] Prop[.] Owners Ass[’n] v. Wengerd, 899 A.2d 1193, 1199 (Pa. 

Cmwlth. 2006) (rejecting the homeowners’ argument that they are not 

liable for the association’s charges); Hess v. Barton Glen Club, Inc.,

718 A.2d 908, 913 (Pa. Cmwlth. 1998) (concluding that all of the 

owners are responsible for a proportionate share of the costs of 

maintaining all of the association’s common facilities); Spinnler Point 

Colony Ass[’n], Inc. v. Nash, 689 A.2d 1026, 1029 (Pa. Cmwlth. 

1997) (holding that appellants, ‘who have the right to travel the 

development roads and to access the waters of a lake, are obligated to 

pay a proportionate share for repair, upkeep and maintenance of the 

development’s roads, facilities and amenities’); Fogarty v. Hemlock 

Farms C[mty.] Ass[’n], Inc., 685 A.2d 241, 244 (Pa. Cmwlth. 1996) 

(holding that absent language in the deed covenant prohibiting an 

association from levying special assessments for capital 
11

As a matter of law, the McCabes were required to pay the Association’s 

assessments regardless of any alleged inadequacies in the Association’s performance. 

Therefore, since any such breach of the Association’s Declaration would not relieve 

the McCabes of their obligation to pay their assessments, the question of whether the 

Association breached them does not involve a material fact. Thus, the trial court 

properly granted the Association’s partial summary judgment motion.

12

 

improvements, the homeowners may be assessed their proportionate 

costs to construct the new improvements); Meadow Run & Mountain 

Lake Park Ass[’n] v. Berkel, 598 A.2d 1024, 1026 (Pa. Super. 1991) 

(noting that residential communities are ‘analogous to minigovernments’ that ‘are dependent on the collection of assessments to 

maintain and provide essential and recreational facilities’ and that, 

absent an express agreement prohibiting assessments, when an 

association of property owners in a private development is referred to 

in the chain of title and has the authority to regulate each property 

owner’s use of common facilities, inherent in that authority is the 

association’s ability to impose reasonable assessments to fund the 

maintenance of those facilities); Wrenfield Homeowners Ass[’n], Inc. 

v. DeYoung, 600 A.2d 960, 964 (Pa. Super. 1991) (holding that the 

association’s declaration clearly makes the defaulting homeowner 

liable for assessments plus the cost of collection for the amount in 

default to the association, including attorneys’ fees); Rivers Edge . . . 

(holding that appellant’s action in withholding his condominium 

assessments, even assuming that he has suffered the property damage 

he alleges, is not justified by the language of the By–Laws, the 

statutes of this Commonwealth, or general public policy 

considerations).

Fawn Ridge Estates, slip op. at 6-7 n.8 (emphasis added). Although this Court’s unreported 

memorandum opinions may only be cited “for [their] persuasive value,” we find Fawn Ridge

Estates particularly instructive. Section 414(a) of the Commonwealth Court’s Internal Operating 

Procedures, 210 Pa. Code § 69.414(a).

12 The McCabes focus on the contractual nature of their obligation to pay assessments, and 

the Association’s purported failure to meet its obligations thereunder. However, the McCabes’ duty 

to pay assessments was triggered by their purchase of the Property. The Association’s imposition 

of assessments and the McCabes’ obligations were created by the Act, and thus do not arise by 

contract.

The McCabes also claim that despite the provision in Section 5315(a) of the Act stating that 

“[t]he [A]ssociation 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[,]” an association’s lien
12

The McCabes next argue that the trial court erred when it denied their 

Continuance Motion. Although the McCabes acknowledge that “[t]he decision to 

grant or deny a continuance is exclusively within the discretion of the trial court, and 

this Court will not disturb the trial court’s determination in the absence of an apparent 

abuse of discretion[,]” they contend that the trial court abused its discretion because 

the trial court’s judgment was manifestly unreasonable. McCabes’ Br. at 23 (quoting

Gillespie v. Dep’t of Transp., Bureau of Driver Licensing, 886 A.2d 317 (Pa. Cmwlth 

2005)). Specifically, the McCabes assert that the trial court acted unreasonably by 

denying their Continuance Motion where their unavailable witness was the sole 

individual able to rebuke the Association’s business judgment rule defense.

The Association responds:

If the McCabes thought that [] Asche was a crucial trial 

witness, which [the Association] disputes, all they had to do 

was issue a trial subpoena to him or schedule his deposition 

for use at trial. Perhaps [] Asche’s meeting in New Jersey 

was not scheduled until the evening of February 12th, 

although that would seem to be questionable, and again, 

nothing was presented at trial to really explain why [] Asche

allegedly did not become unavailable until the evening of 

February 12, 2016.

Association’s Br. at 27-28.

Although it is the policy of the law that parties to an action 

have the benefit of the personal attendance of material 

witnesses whenever reasonably practicable, it lies within the 

 

must be foreclosed in a like manner to a mortgage foreclosure. 68 Pa.C.S. § 5315(a). They further 

contend that “[m]ortgage foreclosures still require proof of a contract, the mortgage, and no case 

law or statutory authority exempts them from the same rule of prior material breach that applies to 

all contracts.” McCabes’ Br. at 22. 

Conversely, Section 5315 of the Act states that “[t]he association’s lien may be foreclosed 

in a like manner as a mortgage on real estate.” 68 Pa.C.S. § 5315(a) (emphasis added). Such 

language is not mandatory. Further, since the imposition of assessments arises from the Act, proof 

of contract is not required. Property ownership subject to the Association is all that is required. 

Finally, as previously discussed, the Association’s alleged prior material breach did not relieve the 

McCabes of their assessment payment obligations.
13

discretion of the trial court to determine, in the light of all 

the circumstances of each case, whether or not a case before 

it should be continued on the ground of absence of material 

witnesses. [See Carey v. Phila. Transp. Co., 237 A.2d 233 

(Pa. 1968); Barner v. Juniata Cnty. Tax Claim Bureau, 522 

A.2d 169 (Pa. Cmwlth. 1987); Williamson v. Phila. Transp. 

Co., 368 A.2d 1292 (Pa. Super. 1976).] In granting a 

continuance based on the absence of a witness, the trial 

court may require a party to show he or she exercised 

due diligence in attempting to secure a witness for trial. 

[See In re Kuzmiak, 845 A.2d 961 (Pa. Cmwlth. 2004); City 

of New Castle v. Uzamere, 829 A.2d 763 (Pa. Cmwlth. 

2003).] A continuance because of the absence of a 

witness will only be granted where it is shown that the 

expected testimony is competent and material and not 

merely cumulative or impeaching, that the testimony is 

credible and would probably affect the outcome of the trial, 

and that due diligence has been exercised to secure the 

witness for trial, including efforts to subpoena the 

absent witness and to take his or her deposition. [See

Carey; Nikole, Inc. v. Klinger, 603 A.2d 587 (Pa. Super. 

1992); Barner; Kaplan v. Redev. Auth. of City of Phila., 403 

A.2d 201 (Pa. Cmwlth. 1979); Williamson.]

7 STANDARD PA. PRACTICE 2d, “Continuances and Mistrials,” § 38:17 (footnotes 

omitted; emphasis added).

Accordingly, contrary to the McCabes’ assertion, whether the witness 

was important or even necessary to the McCabes’ case is not the sole determining 

factor in evaluating the reasonableness of the trial court’s disposition but, as argued

by the Association, the McCabes’ conduct must also be considered. Given the late 

notice, and the fact that the McCabes failed to subpoena Asche or take his deposition 

for use at trial, the McCabes did not exercise due diligence to secure him for trial, 

thus the trial court’s denial of the continuance request was not an abuse of discretion, 

even if Asche was crucial to their case. Accordingly, we conclude the McCabes’ 

argument lacks merit.

Finally, the McCabes contend that the trial court erred when it denied 

their Post-Trial Motion because “[t]he [t]rial [c]ourt’s conclusion . . . is simply not 
14

supported by the record and is therefore an abuse of discretion to such an extent that 

it shocks the conscience.” McCabes’ Br. at 28. Specifically, the McCabes argue that 

the trial court ignored the Association’s admission that it had failed to maintain the 

Common Area.

This Court has explained:

When reviewing a trial court’s denial of a motion for posttrial relief, our scope of review is limited to a determination 

of whether the trial court abused its discretion or committed 

an error of law. Additionally, we must review the record in 

a light most favorable to the verdict winner, who is afforded 

the benefit of all reasonable inferences that arise from the 

evidence.

Ellis v. City of Pittsburgh, 703 A.2d 593, 593 (Pa. Cmwlth. 1997) (citation omitted). 

The McCabes testified with respect to the condition of the Property and 

the Common Area. Mr. McCabe explained that there is a hill at the rear of their yard. 

The rear property line extends approximately 20 feet down the hill. The hill 

continues for approximately another 20 feet. According to Mr. McCabe, there is a

field with a retaining pond approximately 100 feet away, at the bottom of the hill. 

Mr. McCabe claimed that the retaining pond and the land adjacent to the rear 

Property line became excessively overgrown with weeds and that, although he 

informed the Association about his concerns, the Association failed to address them. 

He stated that such overgrowth resulted in insects, rodents and snakes. Because the 

Association failed to take action, he hired an individual to remove the weeds and 

brush. He also testified that he purchased equipment to remove the overgrowth. Mr. 

McCabe acknowledged that, for the past two years, the Association has been mowing 

the 20-foot portion of Common Area on the hill. Jennifer McCabe confirmed that she 

and Mr. McCabe had contacted the Association numerous times about the Common 

Area’s condition, that ticks had infested the Property, and that she and Mr. McCabe

had paid for the Common Area’s care.
15

The Association’s secretary Louis Dimitri (Dimitri) testified:

[W]e typically develop a plan usually around the beginning 

of the year on what we plan to mow. We develop our 

budget, which we present to the homeowners, and that’s the 

plan we implement throughout the year. And as areas get 

turned over to [the Association by the developer], we add to 

it.

R.R. at 413a. Dimitri described:

Q. On this mowing plan, does it show that that area would 

be mowed?

A. No.

Q. Why was that?

A. Looking at the dates of this mowing plan, the

Association -- the [Association’s] executive board [(Board)]

was transitioned from developer-controlled to homeownercontrolled in March of 2012. What that means is that the 

developer held two positions -- two voting positions -- on 

the . . . Board and there was a Homeowner representative.

In March of 2012. [sic] There were various – there’s a 

benchmark in the [D]eclaration[] when the developer was 

required to transfer over control of the . . . Board and the 

[A]ssociation from their control to the homeowners. So 

looking at the dates here that this was developed for the 

2011 and 2012 time, that this was developed when the 

developer Manekin was under control or in control of the 

Board.

R.R. at 419a-420a. Dimitri further represented:

A. . . . . Beginning in 2012, once the transition was 

completed, the mowing plan started growing to fit the needs 

of the residents. And in talking with the [Association’s] 

President -- the current President Kim Erskine, who is on 

the [B]oard at the time -- that area behind the McCabe[s’ 

Property] was addressed to a certain length, which I believe 

was testified about 20 feet or so.

Q. Down to the bottom of that bank . . . ?
16

A. Yes. It’s about 20 feet, give or take, I believe. Yes.

Q. And beyond that where it levels out, that’s the retention 

pond area that’s under the control of the developers until 

it’s turned over?

A. Correct. I believe -- and even to this day, I believe that 

they currently come through maybe once a year, sometimes 

twice, to kind of clear out some of the brush, but that is --

we have usually no knowledge of when they’re going to do 

it or how frequently. We usually find out about it from 

other residents saying somebody was out here, and we 

know it wasn’t us.

Q. As far as you know, was that maintenance for the 

County regulations or whatever the regulations are for 

storm water management areas or retention ponds, or don’t 

you know?

A. I don’t know. I do know that the enforcement from what 

I read -- I believe enforcement either begins this year or 

next year. So I don’t know the purpose of clearing them 

out, other than aesthetics maybe.

R.R. at 421a-422a. Dimitri claimed that not all of the Development’s common areas 

are mowed. 

In addition, Dimitri explained that part of the area behind the Property is 

used for storm water management:

Q. Now, the area behind the [McCabes’] house down at the 

bottom of the bank, what’s that area in there?

A. That was part of the storm water or the storm water 

management – it’s still the temporary storm water

management.

Q. Technically, who’s in charge of that area at this time?

A. That is the developer. They are -- the parent company is 

Manekin, but they have set up [a limited liability company], 

which is Logan’s Reserve Development, LLC. I believe 

that’s part of the way they do business for various reasons.
17

Q. Technically, is that under the control of the [] 

Association?

A. No, not at this time.

Q. At some point, will it be?

A. Yes. In talking with the point of contact for the 

developer at Manekin, that will occur once all the

construction is completed. They will then turn into what is 

known as a permanent storm water management, and then it 

will be the [] Association’s responsibility to maintain it.

Q. Now, what maintenance is done by the [] Association of 

an area such as that?

A. In terms of the permanent pond, which are [sic] located . 

. . in the Grand Lake Pond, which is at the bottom of the 

Grand Lake Road . . . . Those at this time -- we will be 

maintaining them this year for the first time since they’ve 

been handed over. We’ve contracted a company called ESI

to do the maintenance, and they [sic] will be maintaining it 

basically to the environmental and legal requirements that 

we are required to maintain the pond. Because otherwise, if 

we fail to do that, we face substantial fines.

Q. And what exactly does that consist of? Making sure the 

grates are clear and things like that?

A. Mowing weeds, clearing out brush around that. 

Basically making it so the ponds can function as intended.

Q. But at this point, that is the responsibility of whom?

A. On these two ponds?

Q. The one behind the McCabe house.

A. That’s currently the responsibility of the developer.

R.R. at 417a-419a (emphasis added). On cross-examination, Dimitri was asked:

“Does [the Association] currently define maintenance or maintained to include 

homeowners being subject to ticks, bugs and snakes?” R.R. at 423a. Dimitri 

answered “[n]o.” Id. 
18

Finally, Dimitri responded to the trial court’s questions as follows:

THE COURT: I just want to know whether or not the Board 

-- since you’ve been on the Board, as far as their [sic] 

discussions and decisions, decide what parts they’re [sic] 

going to maintain and how they’re going to be maintained.

THE WITNESS: Yes. Certain areas – we get the mowing 

plan. I think this one was revised at the end of the season. 

The current one we have, we revised at the end of the 

season because substantial property was turned over to us. 

So we added to the plan. There’s still new areas that are 

under construction. We don’t know when we’re going to be

responsible for that, and as that gets turned over, we either 

find out from the developer or from residents that complain.

And we follow up on it, and we add to it throughout the 

year. We develop a plan. We sent it out for a bid this year 

for a new contractor. Because the prior one was 

unsatisfactory, and we develop our budget on it, which I 

think is $72,000[.00] this year.

THE COURT: And does the . . . Board do that as part of its 

duties as the overseeing Board?

THE WITNESS: Yes.

R.R. at 426a-427a. 

Based on all of the evidence presented at the hearing, the trial court 

concluded:

At the times complained of by the [McCabes,] some of the 

common area elements were still under control of the 

developer and not the [] Association. 

Some of the areas were mowed short, some of the areas 

were longer, and some of the areas are rarely mowed and 

some of the areas are not maintained at all and kept as a 

natural area. This is a decision of the . . . [B]oard of the 

[A]ssociation and not of the individual homeowners. 

Each individual unit owner cannot determine how the 

common element areas are to be maintained so long as they 

are maintained in a reasonable manner. The [McCabes] 

have not met their burden of proof to establish that the 
19

maintenance of the common element area was not in 

accordance with what is required under the [Declaration]. 

Determination of the common area elements by the . . .

[B]oard is pursuant to the [Act]. That [A]ct and the bylaws 

establish the powers of [sic] duties of the . . . [B]oard and it 

is the . . . [B]oard that is to regulate the use, maintenance, 

repair, replacement, and modification of the common 

elements.

March 23, 2016 Order at 2-3.

The McCabes assert that Dimitri’s acknowledgement that “maintenance 

or maintained” does not “include homeowners being subject to ticks, bugs and 

snakes” is an admission that the Association failed to meet “the standard of 

maintenance it had chosen for itself.” R.R. at 423a; McCabes’ Br. at 29. We 

disagree with the McCabes’ interpretation of the aforementioned exchange. The 

question was unclear at best, and Dimitri’s response was not an admission that the 

Association failed to meet its responsibilities. We decline to interpret the ambiguous 

question and answer to mean that the Association concedes that it failed to maintain 

common areas any time a homeowner experiences ticks, bugs and/or snakes. 

Further, even if the McCabes’ allegations that they were “subject to ticks, bugs, and 

snakes” is true, there is no evidence that the Association’s alleged failure to maintain 

the Common Area caused an increase in ticks, bugs and snakes. R.R. at 423a.

Upon review of the record evidence and the trial court’s opinion, we 

discern no error of law or abuse of discretion and, thus, affirm the trial court’s order 

denying the McCabes’ Post-Trial Motion.

For all of the above reasons, the trial court’s orders are affirmed.

___________________________

ANNE E. COVEY, Judge

Judge McCullough did not participate in the decision in this case.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Logans’ Reserve Homeowners’ :

Association :

:

v. :

:

Jeffrey McCabe and Jennifer McCabe, : No. 820 C.D. 2016

Appellants :

Logans’ Reserve Homeowners’ :

Association :

:

v. :

:

Jeffrey McCabe and Jennifer McCabe, : No. 821 C.D. 2016

Appellants :

O R D E R

AND NOW, this 4

th day of January, 2017, the York County Common 

Pleas Court’s April 22, 2014, February 17, 2016 and April 15, 2016 orders are 

affirmed.

___________________________

ANNE E. COVEY, Judge