IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Marian F. DeSantis, :

Appellant :

:

 v. : No. 67 C.D. 2022

:

Lenox Place Condominium : Argued: February 7, 2023

Association, Inc. :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: May 5, 2023

On January 21, 2022, Marian F. DeSantis (DeSantis), an owner of a 

condominium unit in Lenox Place Condominium Association, Inc. (Association),

appealed from the December 28, 2021 Order entered by the Court of Common Pleas 

of Allegheny County (trial court), which denied her motion to reschedule a non-jury 

trial. 

The Association has filed an application to quash the appeal as untimely, 

arguing that DeSantis failed to appeal the trial court’s order dated September 22, 2021, 

which it contends clearly sustained its preliminary objections and dismissed DeSantis’ 

third amended complaint in its entirety.

1

 For the reasons that follow, we deny the 

Association’s application to quash the appeal, vacate the December 28, 2021 order, and 

remand to the trial court for clarification of its September 22, 2021 Order.

1 By order dated June 13, 2022, we directed the parties to address the application to quash in 

their briefs.
2

I. FACTUAL AND PROCEDURAL HISTORY

Lenox Place is a condominium community located in Imperial, 

Pennsylvania. DeSantis is the owner of Unit 111. From August 2015 to March 2017, 

DeSantis served as a member of the Executive Board of the Association.

The operation of the Association is governed by the By-Laws of the 

Association for Lenox Place (By-Laws), the Declaration of Condominium for Lenox 

Place (Declaration), and Pennsylvania’s Uniform Condominium Act, 68 Pa. C.S. §§ 

3101-3414 (UCA). 

DeSantis originally initiated this action in May of 2019 by filing a 

complaint in the trial court seeking declaratory relief. In response to preliminary 

objections filed by the Association, DeSantis amended her complaint twice.

A. Third Amended Complaint – Seven Counts Seeking Injunctive 

Relief 

On December 7, 2020, DeSantis filed a third amended complaint in equity,

this time requesting injunctive relief. The third amended complaint included seven

counts. (Reproduced Record (R.R.) at 11a-26a.) The factual allegations underlying 

the complaint are threefold: the Association improperly delegated its check signing 

function to its managing agent, Acri Commercial Realty, Inc. (Acri), it allowed several 

unit owners to erect fences, and it erroneously expended common assessment funds for 

maintenance, repair, and replacements that benefited only certain distinct units. As 

relief, DeSantis asked the trial court to order the Association to (1) reallocate its 

expense liabilities, and recalculate and reassess the yearly special assessment; (2) 

require the owners of Units 204, 219, and 227 to remove their backyard fences at their 

sole expense; (3) require one officer of the Executive Board to be a signatory on all 

checks drawn on the Association’s bank account; (4) require the Association to keep 
3

its records at Lenox Place; and (5) propose for vote by all Lenox Place unit owners an 

amendment to the By-Laws to establish an alternative dispute resolution procedure. 

In Count I for breach of Section 3314(c) of the UCA,

2 breach of Article 

XI of the Declaration, and breach of Article XVI of the By-Laws, DeSantis alleged that 

the Association expended general common assessment funds for various maintenance, 

repair or replacement items which were not general common expenses, and therefore, 

financially benefited “fewer than all of the units in Lenox Place” and “a few unit 

owners to the detriment of all other unit owners.” (R.R. at 12a-13a.) DeSantis sought 

to compel the Association to reallocate expense liabilities for all expenditures in 

calendar years 2017 through 2020 from the general common assessment funds for 

expenses incurred for the maintenance, repairs, or replacements that benefited 

individual units or limited common elements appurtenant to individual units. (R.R. at 

11a-14a.)

In Count II for breach of Article XI of the Declaration and Article XVI of 

the By-Laws, DeSantis alleged that the Special Assessment of $500.00 levied upon 

each unit owner to recover the 2018 budget deficit was a breach of the Declaration and 

By-Laws, when a Special Assessment of $303.00 would have been sufficient to recover 

the deficit. DeSantis sought to compel the Association to recalculate and reassess the 

Special Assessment for the 2018 calendar year budget deficit and to vacate all charges 

for late fees and interest against DeSantis for the $500.00 Special Assessment. (R.R. 

at 14a-16a.)

In Count III for violation of Section 3213 of the UCA and Article IV of 

the Declaration, DeSantis alleged that the Association “unlawfully permitted the 

owners of Units 204, 219, and 227 to erect and maintain backyard barrier fences to the 

2

68 Pa. C.S. § 3314(c). 
4

detriment of all other unit owners.” DeSantis sought to compel the Association to 

require the removal of backyard barrier fences for Units 204, 219, and 227 at the sole 

expense of those unit owners. (R.R. at 16a-18a.)

In Count IV for violation of Section 3306 of the UCA and Article XI, 

Sections 7(C) and 9 of the By-Laws, DeSantis alleged that the checks containing all 

unit owners’ assessment fees, as drawn on the bank account controlled by the 

Association’s managing agent, Acri, lack signatures from officers of the Board. 

DeSantis sought to compel the Association to require that at least one officer of the 

Association’s Executive Board be a signatory on all checks drawn on the Association’s 

bank account in the control of the Managing Agent, or alternatively, to require the 

Treasurer of the Board to furnish a bond in accordance with Article XI, Section 7(C) 

of the By-Laws. (R.R. at 18a-20a.)

In Count V for violation of Section 3306 of the UCA and Section 5508(a) 

of Pennsylvania Nonprofit Corporation Law of 1988 (NPCL), 15 Pa. C.S. § 5508, and 

for breach of Articles XI, Section 7(B), 7(C), and XVI, Section 4(G), of the By-Laws, 

DeSantis alleged that the Association failed to amend the By-Laws to expressly permit 

the delegation of authority to any managing agent (in this case, Acri) to retain sole 

custody and control of all of the Association’s records and failed to keep all of the 

Association’s records at the office of the Association or at its principal place of business 

or at its actual business office. DeSantis sought to compel the Association to “keep 

custody and control of the financial and other records of the [Association] in 

accordance with the By-Laws, the [UCA], and Section 5508(a) of the [NPCL].” (R.R. 

at 20a-22a.)

In Count VI, DeSantis alleged that the Board breached its fiduciary duties, 

codified in Section 3303(a) of UCA, “to all unit owners of Lenox Place” regarding 
5

various common assessment fees levied for maintenance purposes. DeSantis sought 

an order directing the Association to recalculate and reassess the per month common 

assessment fees for the 2019 and 2020 calendar year budgets. 

In Count VII, DeSantis sought punitive damages and attorney fees under 

Section 3412 of the UCA. (R.R. at 25a-26a.)

B. The Association’s Preliminary Objections

On December 17, 2020, the Association filed preliminary objections to 

the third amended complaint. (R.R. at 30a-43a.) In its first preliminary objection, the 

Association objected to the entire pleading pursuant to Pa. R.Civ.P. 1028(a)(2), based 

on lack of jurisdiction over the subject matter of the action or the person of the 

defendant, and Pa. R.Civ.P. 1028(a)(5), for non-joinder of necessary parties. The 

Association asserted that each unit owner would be affected by the relief requested by 

DeSantis. The Association argued that, therefore, the third amended complaint must 

be dismissed because all unit owners were not named in the suit. The Association also

demurred on separate grounds to individual Counts IV and V.

In its second preliminary objection, the Association demurred to Count IV

(alleging that the lack of signature from at least one officer of the Board on all checks 

drawn on the Association’s bank account is a violation of the By-Laws) on the grounds 

that Acri is an agent of the Association and that pursuant to the Association’s By-Laws, 

the Association can delegate signatory duties to a managing agent.

In its third preliminary objection, the Association demurred to Count V

(regarding the location and availability of the Association’s records) on the grounds 

that the By-Laws authorize the Association to contract with Acri to manage its records 

as long as they are made reasonably available, and that the NPCL does not require that 

records be kept at any particular location. 
6

On August 25, 2021, the trial court heard oral argument on the 

Association’s preliminary objections. The trial court entered an order dated September 

22, 2021, which stated:

AND NOW, to wit, this 22nd day of September, 2021, 

following an Argument on Defendant’s Preliminary 

Objections and Argument during a Court Status Conference 

on August 25, 201, the following is hereby ORDERED, 

ADJUDGED and DECREED:

1. Upon Review of Defendant’s Preliminary 

Objections, said Objections are sustained;

2. Count I is hereby dismissed with prejudice;

3. Count II is hereby dismissed with prejudice;

4. Count VI is hereby dismissed with prejudice;

5. Count VII is here by dismissed with prejudice.

(Trial court order, 9/22/21 at 1; R.R. at 151a.)

DeSantis did not file an appeal from the September 22, 2021 Order within 

30 days. Instead, she filed a motion for reconsideration on September 27, 2021, arguing 

that the trial court’s dismissal of Counts I, II, VI, and VII was in error because the 

Association had not requested dismissal of those Counts. 

The trial court denied the motion for reconsideration on October 7, 2021. 

On October 15, 2021, DeSantis filed a motion to reschedule the non-jury trial. In her 

motion to reschedule the non-jury trial, DeSantis argued that her claims under Counts 

III, IV, and V “remain unresolved and are ready for trial.” (Motion to Reschedule NonJury Trial, ¶ 4; R.R. at 195a.)
7

By Order dated December 28, 2021, the trial court denied DeSantis’ 

motion to reschedule the non-jury trial, explaining that “[a]ll claims” were dismissed 

by its September 22, 2021 Order. (R.R. at 212a.) 

On January 21, 2022, DeSantis filed a notice of appeal “from the Order 

entered in this matter on December 28, 2021.” (Notice of Appeal at 1.) In her Concise 

Statement of Errors Complained of on Appeal, DeSantis argued that (1) the trial court’s 

September 22, 2021 Order failed to overrule the Association’s three preliminary 

objections; (2) the trial court erred by dismissing Counts I, II, VI, and VII because the 

Association did not specifically object to them; and (3) the trial court erred in denying 

her motion to reschedule the non-jury trial because Counts III, IV, and V were not 

expressly dismissed in the September 22, 2021 Order. (DeSantis Brief at 62.) 

In the trial court’s opinion filed pursuant to Pennsylvania Rule of 

Appellate Procedure 1925(a), Pa. R.A.P. 1925(a), the trial court explained that in the 

September 22, 2021 Order, it “sustained the [Association’s] [preliminary objections] 

under [preliminary objection] number I, which requested dismissal of the Third 

Amended Complaint under the jurisdictional grounds of failure to join indispensable 

parties, which was the primary argument for complete dismissal of [DeSantis’] claims 

against the Association.” (Trial Court Opinion, 6/6/22, at 4-5.)

II. APPLICATION TO QUASH

As a threshold matter, the Association argues that DeSantis incorrectly 

appealed the December 28, 2021 Order denying her motion to reschedule the non-jury 

trial. It asserts that, pursuant to Pa. R.A.P. 903(a), the appeal was required to be filed 

within 30 days after entry of the trial court’s final September 22, 2021 Order because 

that order dismissed the third amended complaint in its entirety. The Association 

contends that it is clear from the context of the September 22, 2021 Order that it was 
8

intended to dismiss all claims. It maintains its first preliminary objection expressly 

argued and requested that the third amended complaint must be dismissed for failure

to join indispensable parties, and in the first paragraph of the September 22, 2021 

Order, the trial court sustained the Association’s preliminary objections. 

In response, DeSantis argues that the September 22, 2021 Order did not 

dismiss the entire complaint but only dismissed Counts I, II, VI, and VII, leaving 

Counts III, IV, and V unresolved and ready for trial. She maintains that since three of 

the seven Counts were not explicitly dismissed by the September 22, 2021 Order, that 

order was not a final order that completely terminated the case.

Both parties have proffered reasonable interpretations of the September 

22, 2021 Order. On the one hand, the order could be construed as dismissing the entire 

complaint. On the other hand, however, it could also be construed as dismissing only 

Counts I, II, VI, and VII. Accordingly, because there is ambiguity in the September 

22, 2021 Order, we vacate the December 28, 2021 order and remand to the trial court 

to enter an order which clarifies it. If the trial court intended to dismiss the entire 

complaint, it shall clarify this in a new order. The running of the 30-day appeal period 

shall run anew from the date of such order.

Jurisdiction relinquished.

________________________________

PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Marian F. DeSantis, :

Appellant :

:

 v. : No. 67 C.D. 2022

:

Lenox Place Condominium :

Association, Inc. :

ORDER

AND NOW, this 5th day of May, 2023, the Motion to Quash the Appeal 

as Untimely filed by Lenox Place Condominium Association, Inc. is DENIED. The 

December 28, 2021 order is vacated and the matter is remanded to the Court of 

Common Pleas of Allegheny County (trial court) for the entry of a new order which 

clarifies the September 22, 2021 Order. If the trial court intended to dismiss the 

entire complaint, it shall clarify this in a new order. The running of the 30-day appeal 

period shall run anew from the date of such order.

Jurisdiction relinquished.

________________________________

PATRICIA A. McCULLOUGH, Judge