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NON
- PRECEDENTIAL DECISION
- SEE SUPERIOR COURT O.P. 65.37
CHRISTINE LIOTTA, CHESTER A. JR. & BRENDA KROKOSKI, ERNEST F. & DARLA J. KEMPER, CYNTHIA G. SMITH, DENIS C. & PAMELA A. WAGNER, DAVID DIETZ, DAWN R. CAIARELLI, KATHLEEN M. BEITH AND MARLIYN CONTI

v.

ROBE R T FOSTER HAWKINS AND INDE LEE HAWKINS

Appellant s : : : : : : : : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 321 WDA 2023 Appeal from the Order Entered March 13, 2023 In the Court of Common Pleas of Venango County Civil Division at No(s): Civil No. 814

- 2021

BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: July 16, 2024
Appel l ants , Robert Foster Hawkins and Inde Lee Hawkins , appeal from

the order entered in the Ven ango County Court of Common Pleas, enjoining
Appellant s from using their property as a short

- term rental. We affirm.

The trial court set forth the relevant facts and procedural history of this

case as follows:

[Appellants a nd Appellees] are all owners of lots located on River Drive in Sandy c reek Township, Venango County, Pennsylvania. All ten lots in question abut the Allegheny River and were previously owned by Edward H. Culbertson and Ruth A. Culbertson. Commencing in th e 1960 ’ s , the Culbertsons subdivided this large tract of land into smaller lots along the river. The various deeds submitted intoJ

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- evidence refer to a specific lot number or numbers from the plan known as “ Bucktail Trails ” originally surveyed in 1963 and r evised in 1980.
Vehicular access to the lots is by a private road, namely River Drive owned by the Franklin Belmar Drive Road Association, Inc. [(“Road Association”)]. All the lot owners are members of the R oad A ssociation. River Drive

... is described in seven of the deeds submitted as an appurtenance to the parcels co n veyed as a means of ingress, egress and regress to and from Liberty Street, City of Franklin, Pennsylvania. The deeds also set forth annual payments for use and maintenance of the road. An eighth deed simply states, subject to all the restrictions, leases, covenants, agreements, R

- O

- W and easements conveyed in or granted in prior instruments. A ninth deed states, subject to exceptions, reservations, conditions, right of way, and reservations as are contained in prior deeds in the chain of title

.... [Appellants] purchased real property at 1094 River Drive, Franklin, Pennsylvania via deed dated September 29, 2019. The land was described in the deed as “ Lots number 20 and 20A on that certain Plan of L ots designated ‘ Bucktail Trails ’”

.... Thirteen months after purchase , [Appellants] began advertising their property through Airbnb for short

- term rental. Neighbors brought to the attention of [Appellants] that they were in violation of the zoning code. [Appellees] requested a hearing before the Township board of supervisors. The board found the use of the premises was the equivalent of a Bed and Breakfast and was a permissible conditional use. A conditional use permit was granted.
[ On September 29, 2021, Appellees filed a complaint seeking enforcement of a restrictive covenant in Appellants’ deed to enjoin Appellants from operating an Airbnb on their property. Appellees alleged that ] the operation of a short

term rental by [Appellants] at 1094 River Drive violates the use and building restrictions set forth in the deeds the Culbertsons created for the plan of lots known as “ Buc k tail Trails .” The restrictive use and building requireme nts set forth in [Appellants’] deed [is as] follows:J

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- Subject also to the covenants and restrictions that the above described premises shall be used for residential and noncommercial recreational purposes only and no buildings shall be erected or used thereon except a private dwelling and a private garage; and that no house trailer, bus or vehicle, or former vehicle, shall be, used on said premises for dwelling purposes and these covenants shall be considered and construed as covenants running with the land.

Six of [Appellees ’ ] deeds contain the same verbatim restriction. One deed restricts the use of the land to non

commercial recreational purposes only, as building of any kind for residential, commercial, business or industrial use was restricted.
( Trial Court Opinion, filed 3/2/23, at 1

- 3).
On July 14, 2022, the court conducted a non

- jury trial. Appellee Ernest
Kemper testified that he and his wife have owned the property directly next
to Appellants’ property for ten years

. The Kemper s reside at their River Dr ive
home for approximately seven to eight months out of the year. During the
remaining months, they typically visit the River Dr ive property every other
week. Mr. Kemper testified that one of the incentives to purchasing this
property was the restrictive covenant contained in the deeds, restricting the
use of the properties to residential, non

- commercial use. Mr. Kemper testified

that he and his wife did not want to invest into a community with a high
turnover of people.
Since Appellants have begun renting their property on Airbnb, Mr.
Kemper has noticed new renters entering and leaving Appellants’ property
nearly daily. Some renters stay f or a few days, but the vast majority stay forJ

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one day at a time

. The renters often bring pets, which has increased the level

of noise in the neighborhood . It has also increased the vehicular traffic in the
neighborhood , as renters and cleaning services a re constantly arriving and
leaving the property. Some of the renters have trespassed on the Kempers’
property to launch kayaks into the rive r, which is particularly concerning to
Mr. Kemper because he is worried that someone may be injured on his
property . Mr. Kemper testified that the constant rotation of unknown

individuals in Appellants’ property has made him uneasy and has result ed in
him changing the way that he utilizes his property . He now ensures that
everything on his property is always locked a nd no longer feels comfortable
allowing his young grandchildren to play outside without an adult present.
Appellee Christine Liotta testified that she has owned a property on River

Driv e since 2006

. She stated that she was aware of the restrictive covenants
affecting the properties on the road when she purchased her property. Ms.
Liotta’s understanding of the covenants at the time of purchase was that she
would be p urchasing a home on a private road in a gated, residential
community . This was a motivating factor in her purchase of the property.
River Drive is a private road that is gated at two access points. It is owned
by the Road Association , and Ms. Liotta serves as the V ice P resident of the

A s sociation . All residents along the road pay dues for the maintenance of the

road. The dues were raised from $350.00 to $400.00 in recent years. Many
properties have garages that are across the street from their properties, so itJ

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is very common for resid ents to walk back and forth on the road. C hildren

also often play on the road . Ms. Liotta recalled that when her children were
growing up, she generally felt comfortable letting them play out of her sight

because it was a gated , residential community and she generally knew
everyone that would be entering the area.
Ms. Liotta testified that prior to Appellants’ use of their property as an
Airbnb, there were very few strangers coming down the street other than
delivery trucks. Since the Airbnb has been operating, many unknown renters

use the road . The Road Association has had to increase their liability insurance

due to the increased exposure to liability from many individuals using the road

who are un familiar with the area, pa rticularly in icy, winter conditions

. Ms.

Liotta also now feels the need to lock everything on her property, a practice

she did not have before the Airbnb, because of the influx of unknown people
into the neighborhood.
Jeffery Superak testified that he has owned a property on River Drive
since 1991 and has resided in that property as his primary residence since

2004

. He has not noticed a n influx of traffic on the road since Appellants
began their Airbnb. He stated that he does not feel unsafe in the neighborhood

due to the Airbnb renters

. Mr. Superak testified that he has also recently
begun listing his house on Airbnb and acknowledged that he has a potential

financial interest in the outcome of this case.
Appellant Robert Hawkins , Jr. test ified th at he purchased the propertyJ

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-

on River Drive in 2019 with the intention of eventually living there full

- time

when he and his wife retire. He began utilizing the property as an Airbnb in

October of 2020. He restricted the listing to individuals abo ve the age of 25

and he does not allow for any parties to be held at the property. He also
generally only permits renters who have a five

- star rating on Airbnb to stay
at the property. The maximum occupancy permitted at the property is eight

individuals and renters typically stay for three to four nights per stay.
Additionally, the only person who comes to clean the residence between

renters is Mr. Hawkins ’ sister.
Mr. Hawkins stays at the property with his family for approximately six
to eight weeks a year. While he is staying there, he has noticed other
residents throwing partie s and many guests coming in and out of the
neighborhood. On cross

- examination, Mr. Hawkins acknowledged that he was

aware of the language of the restrictive c ovenant in the deed at the time that
he purchased the property. He acknowledged that none of the Airbnb renters
are using the property as their primary residence. He further agreed that his

Airbnb listing’s occupancy rate is high, and he is generating in come from the

venture

. Appellant Inde Hawkins testified largely in line with Mr. Hawkins ’
testimony.

On March 2 , 2023, the court entered an order enjoining Appellants from
using the ir property as a short

- term rental. On March 10, 2023, Appellants
timely filed a post

- trial motion claiming , inter alia , that they ha d alreadyJ

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booked Airbnb renters through June 2023 and the renters would be unfairly
prejudiced by the court’s order. On March 13, 2023, the court amended its
prior order to defer the commencement of the injunction until June 30, 2023.
On March 17, 2023, Appellant s timely filed a notice of appeal and a voluntary

Pa.R.A .P. 1925(b) concise statement of errors complained of on appeal

. Appellants raise the following issues for our review:

Did the t rial c ourt err in speculating the Culbertons ’ reasons for placing the restrictive covenants in the deed for the real property situate d in the “ Bucktail Trails ” subdivision despite there being no evidence produced at trial concerning this alleged fact?

Did the t rial c ourt err in determining that short

- term rentals are not used for residential and/or recreational purposes?

D id the t rial c ourt err in finding that most of the residents in the “ Bucktail Trails ” subdivision use their homes as their full

- time residence despite there being no evidence produced at trial concerning this alleged fact?

Did the t rial c ourt err in finding that the use of a home in the “ Bucktail Trails ” subdivision as an Airbnb constitutes a commercial use, when in fact, said home is being used for residential purposes?

Did the t rial c ourt err in finding that short

- term rentals violate the restrictive covenants contained in [Appellants’] deed, as that term is nowhere present in the covenant?
(Appellants’ Brief at 5

- 6).

In their issues combined, Appellants assert tha t the court made several
findings of fact that were speculative in nature and unsupported by the
evidence at trial. Specifically, Appellant s argue that there was no evidence
presented regarding the Culbertons’ intent in initially placing the restrictiveJ

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c ovenants in the deeds and the court erred by inferring the intent without
evidentiary support. Appellant s further contend that the court ’s conclusion

that most of the residents on River Road are full

- time residents is unsupported
by the record because Ms. Liotta testified that only 18 of the 41 properties

had full

- time residents and the remaining residents use their property for only
portions of the year.
Additionally, Appellant s assert tha t the restrictive covenant’ s plain
language as it relate s to the use of the property as a short

- term rental is
ambiguous and as such, all ambiguities should be resolved in Appellants’ favor
as the property owners. Appellant s claim that the covenant in the deed was

intended to maint ain a residential neighborhood and prevent the operation of
businesses such as restaurants, hotels and boating tours on the properties.
Appellant s insist that the operation of an Airbnb is substantially different from

such ventures because the renters are using the property in a traditionally

residential manner. Appellant s conclude that the court erred in finding that
the use of their property as an Airbnb violate s the restrictive covenant in the ir
deed, and this Court must vacate the order enjoining Appellants from
operating a short

- term rental on their property. We disagree.
This Court’s scope and standard of review on appeal following a bench

trial is well

- settled:

Our appellate role in cases arising from non

- jury tria l verdicts is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in any application of the law. TheJ

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- findings of fact of the trial judge must be given the same weight and eff ect on appeal as the verdict of a jury. We consider the evidence in a light most favorable to the verdict winner. We will reverse the trial court only if its findings of fact are not supported by competent evidence in the record or if its findings are pr emised on an error of law. However, where the issue...concerns a question of law, our scope of review is plenary. The trial court’s conclusions of law on appeal originating from a non

- jury trial are not binding on an appellate court because it is the appel late court’s duty to determine if the trial court correctly applied the law to the facts of the case.
Milby v. Pote , 189 A.3d 1065, 1075 (Pa.Super. 2018), appeal denied , 650

Pa. 122 , 199 A.3d 340 (2018). Additionally:

In a non

- jury trial, the factfinder is free to believe all, part, or none of the evidence, and the Superior Court will not disturb the trial court’s credibility determinations. Assessments of credibility and conflicts in evidence are for the trial court to resolve; this Court is not permit ted to reexamine the weight and credibility determinations or substitute our judgments for those of the factfinder. The test is not whether this Court would have reached the same result on the evidence presented, but rather, after due consideration of the evidence the trial court found credible, whether the trial court could have reasonably reached its conclusion.
Gutteridge v. J3 Energy Grp., Inc. , 165 A.3d 908, 916 (Pa.Super. 2017)
( en banc ) (internal citations and quotation marks omitted).

“ As a general matter, restrictive covenants on the use of land interfere

with an owner ’ s free use and enjoyment of real property and, therefore, are
not favored by the law. ” Vernon Twp. Volunteer Fire Dep't, Inc. v.

Connor , 579 Pa. 364, 374, 855 A.2d 873, 879 (2004)

. Nevertheless,
restrictive covenants are legally enforceable. See id. As such , restrictiveJ

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covenants “ are to be strictly construed against persons seeking to enforce
them and in favor of the free and unrestricted use of property. ” Pocono
Summit Realty, LLC v. Ahmad Amer, LLC , 52 A.3d 261, 269 ( Pa.Super.
2012)

. “ [N] othing short of a ‘ plain disregard ’ of th e restrictive covenant ’ s express terms can create violation of the covenant. ” Id.

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

limited to the confines of the covenant

. ” Id. Regarding the interpretation of
the language in a restrictive covenant, our Supreme Court has held:

It is a fundamental rule of contract interpretation that the intention of the parties at the time of contract governs and that such intent must be ascerta ined from the entire instrument. This same principle of contract law is equally applicable to the interpretation of restrictive covenants.
In order to ascertain the intentions of the parties, restrictive covenants must be construed in light of: (1) thei r language; (2) the nature of their subject matter; (3) the apparent object or purpose of the parties; and (4) the circumstances or conditions surrounding their execution. Typically, we will enforce a restriction if a party ’ s actions are in clear defiance of the provisions imposed by the covenant. Moreover, we will enforce a restrictive covenant where it is established that the restriction is still of substantial value to the owners of the restricted tract.
Vernon Twp. Volunteer Fire Dep't, Inc. , supra at 375 , 855 A.2d at 879

-
80 (internal citations omitted).
Instantly, the trial court determined that the restrictive covenant in
Appellants’ deed is intended to prohibit the use of the property for any
commercial, non

- residential purposes. The cour t further decided that the
operation of a short

- term rental such as an Airbnb violates the restriction asJ

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stated

. Contrary to Appellants ’ assertions, we do not see any ambiguity in
the plain language of the restrictive covenant. The covenant clearly rest ricts
the use of the property to residential and non

- commercial recreational use.
Appellant s ha ve not noted anything in the record which calls into question the
plain meaning of these words. See Baumgardner v. Stuckey , 735 A.2d
1272, 1275 ( Pa.Super. 1999) , appeal denied , 561 Pa. 684, 751 A.2d 183
(2000) (holding that restrictive covenant restrict ing use of properties to
residential purposes is not ambiguous and clearly prohibits any commercial

uses of the properties). As such, the real disp ute in this matter is whether

the use of the property to operate an Airbnb is a violation of the unambiguous

terms of the restrictive covenant. In making its determination, t he trial court
analyzed the Vernon factors to interpret the language of the covenant:

In construing the use restriction, the court must ascertain the intent by examining the language of the covenant in light of the subject matter thereof, the apparent purpose of the parties and the conditi ons surrounding execution of the covenant.
First, we look to the express words used in the instant covenant and rely upon their ordinary meaning. Particularly, the words “ residence ” , “ private dwelling ” , and

“ noncommercial recreational purposes ”

. Black ’ s Law Dictionary, seventh edition defines residence as “ a place where one actually lives. ” Merriam

- Webster, ( 11 th Edition, Copyright 2009) , defines residence as “ the act or fact of dwelling in a place for some time; the place where one actually lives as distinguished from one ’ s domicile or place of temporary sojourn. ” Merriam

- Webster defines residential as a neighborhood restricted to or occupied by residences.
[This] Court held that the phrase “ used for residential and recreational pu rposes only ” “ expressly creates a useJ

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- restriction. ‘ Residence ’ in its popular as well as its dictionary sense, means a place of abode, it is where one lives, either alone, or with one ’ s family, the family is the generally recognized unit. ‘ Recreation ’ is understood to denote a pastime affording relaxation and enjoyment. The parties use of the limiting term ‘ only ’ makes their intent to prohibit all contrary uses apparent. ” [ Morean v. Duca , 430 A.2d 988, 990 ( Pa.Super. 1981) (internal citations omitted).] The Court in Morean held [that] co mmercial ventures “ are clearly violative of the restriction. ” [ Id. ]

Black ’ s Law defines a “ dwelling ” as a residence or abode and

“ private ” as relating to or belonging to an individual. Whereas Merriam

- Webster defines “ dwelling ” as a house where people live. However, its definition of “ private ” restricts the use to a particular person , group or class. Our Supreme Court held [that the words] “ private dwell ing house ” [have ] a more restricted meaning than that attributed to “ dwelling house ” or “ single dwelling ”

. [ See Taylor v Lambert , 279 Pa. 514, 516 , 124 A. 169 , 170 (1924) .] It not only restricts business ventures, the words restrict the dwelling to a “ single, private and personal ” dwelling. [ Id. at 517, 124 A. at 170

. ]
Second, we look at the deed as a whole and the circumstances surrounding the execution of the covenant to ascertain the apparent purpose of the parties , and from this and the plain meaning of the words in the covenant answer the question

... regarding the allowance of short

- term rentals under the covenant.

The Culber t sons possessed prime waterfront property that stretched along the arcs of the Allegheny ri ver bank, giving them access to the river along the entire tract of land. This land could have been developed as recreational with public docks for mooring, riverside restaurants, boat rentals and guided boating excursions along the river. The intent of the Culbertsons in creating the ‘ Bucktail Trails ’ subdivision is evident from the deeds. Each de e d submitted into evidence references the plan of lots known as “ Bucktail Trails ”

. Access to each lot is by a private road which is described as an appurtenan ce to the parcels or lots conveyed. The private road is further described as the sole means of ingress and egress to the lots for which the lot owners mustJ

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- pay an annual fee for use and maintenance. In addition, the Culbertsons set forth building and use restrictions in each deed.

The intent of the restrictions was to create a classic residential neighborhood that is tidy and pleasing to the eye. House trailers, buses, and vehicles were strictly prohibited for use as premises or for dwelling purposes. Any building erected must be a private dwelling and private garage and used as such. It is further evident that the intent was to create a neighborhood restricted to residences where one actually lives as dis tinguished from one ’ s place of temporary sojourn. The plain meaning of “ used for residential and non commercial recreational purposes only ” clearly establishes the Culbertsons ’ intent to exclude all other uses including commercial ventures.

* * *
The use restriction in question concerns the nature of occupancy of the homes as affecting the health, welfare and comfort of the neighbors

.... It creates a residential neighborhood in which residents develop a sense of community and shared co mmitment to that community. Acquaintanceship with neighbors also creates a sense of safety. [ Mr. Hawkins ] testified that the average stay for his renters through Airbnb is three to four nights. The sense of stability and neighborhood peace is lost throu gh the frequent transient nature of these rentals.
The neighborhood has not changed and the general purpose of the restriction has not changed. [Appellees] relied on the restrictive covenant when purchasing their homes. The restrictive covenant set forth in [Appellants’] deed was for [their] benefit and the benefit of [Appellees] who are seeking to enforce the restriction

.... To allow short

- term rentals woul d result in the loss of the benefit originally promised under the restrictive covenant.
(Trial Court Opinion at 5

- 8).
The record supports the court’s analysis. See Milby, supra

. T he court
did not speculate as to the Culbertsons’ intent in drafting th e restrictiveJ

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covenants but rather ascertained the ir apparent intent using the Vernon

factors and the evidence in the record. The court looked to the location and
history of the properties, the language in the various deeds submitted into

evidence , and testimony from the parties regarding the characteristics of the
neighborhood and the historic use of the properties. The court further found
support in common definitions of the language used in the deed , and this

Court and our Supreme Court’s prior holdings regarding similar terminology

in restrictive covenants. Accordingly, we find no merit to Appellants ’ claims

that the court’s findings were speculative and unsupported by the record. 1
Additionally, Appellant s cite no authority to support their claim that the
operation of an Airbnb is residential and not commercial

. Our Supreme Court ’s
analysis in Slice of Life, LLC v. Hamilton Twp. Zoning Hearing Bd. , 652
Pa. 224, 207 A.3d 886, (2019) , regarding short

- term rentals as it re lates to
violation of residential zoning ordinances is instructive on this point

. 2 In Slice

_________________ __________ ______ ____ _______

1 Appellant s further claim that the trial court erroneously found that most residents of the River Drive properties are full

- time residents. Nevertheless, Appellant s fail to cite to a place in the record where the court made such a finding. Additionally, our review of the record confirms that the court did not rely on such a finding in making its ultimate determination. As such, this claim is without merit.

2 We recognize that the Slice of Life, LLC Court interpreted language specific to the relevant zoning ordin ance in that case and as such, its determinations are not dispositive in the instant matter. Nevertheless, the Court evaluate d whether a short

- term rental is a permissible use of a propert y located in an area that is zoned for residential use and discuss e d whether the characteristics of short

- term rental s align with traditional residential use of properties. As such, we find the Court’s analysis to be relevant and instructive here

.J

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-

of Life, LLC , our Supreme Court evaluated whether the operation of a short

term rental in an area that was zoned residential was a permissible use

. As
in this case, the property owner in Slice of Life , LLC argued that although
they generate income from short

- term rentals, their property was being used

a s a single

- family dwelling by the renters and such use differed from the
operation of a traditional hotel or motel

. See i d. at 236

- 37, 207 A.3d at 894.

T he Court rejected this argument, deciding that short

- term rentals are purely

transient in nature because the renters use the property for only a few days

at a time. Id. at 252, 207 A.3d at 903. The Court further decided that

t ransient use of a property does not align with the use of a property as a
single

- family dwelling and as such, the short

- term rental was not a permissible

use of the property in the residential zoned district. Id. Additionally, the

Court held the fact that short

- term rentals were not specif ically prohibited by
the zoning ordinance was not dispositive because “[t] he requirement that
courts strictly construe a zoning ordinance does not mean that they must
ignore uses that clearly fall outside those that are permitted by the ordinance. ”

Id.
Here, the trial court’s analysis aligns with our Supreme Court’s analysis

in Slice of Life, LLC

. Appellants agree in their brief that the language of the

restrictive covenant is intended to restrict the use of the property to single

family residential homes and non

- commercial recreational purposes. ( See
Appellants ’ Brief at 22, 30 ). Mr. Hawkins testified that he generates incomeJ

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from using his home as an Airbnb. He further acknowledged that the renters
stay for a few days at a time, typically for vacation, and do not consider the
property their permanent residence. The trial court determined that such

transie nt use of the property was prohibited by the restrictive covenant, which

limited use to residential and non

- commercial recreational purposes.
Additionally, t he fact that the covenant did not specifically restrict the
operation of short

- term rentals does not signify that it is a permissible use.
See Slice of Life, LLC, supra

. The court determined that the transient use
of the property as a short

- term rental is not a residential or non

- commercial
recreational use of the property. On this record , and under the specific facts

of this case , we cannot say the court erred in determining that Appellants’ use
of their property as an Airbnb is a violation of the restrictive covenant in their

deed

. 3 See Milby, supra

. Accordingly , we affirm.

Order affirmed.

_________________ __________ ______ ____ _______

3 We note that the trial court also classified a “short

- ter m rental” as a rental less than six months, suggesting that the restrictive covenant prohibited renting the property for any term less than a six

- month duration. ( See Trial Court Opinion at 8

- 9). We depart from this portion of the trial court’s reasoning , as the sole issue before the trial court was whether Appellants’ use of their property as an Airbnb with a duration of approximately 3 to 4 days at a time violated the terms of the restrictive covenant. As such, the trial court’s statements to this effect are dicta and the court’s determination in this regard is not controlling on the parties or any other litigation pertaining to this restrictive covenant. See In re L.J. , 622 Pa. 126, 140, 79 A.3d 1073, 1081 (2013) (stating that s tatements by court are binding precedent only when they relate to issues actually raised, argued and adjudicated, and where decision was necessary to determination of case ).J

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DATE: 07/16/2024