Judges Opinions Public Notices, — October 14, 2020 9:08 — 0 Comments

Public Notices, October 14, 2020

Volume 58, No. 11

 

PUBLIC NOTICES

DECEDENTS’ ESTATES

CHANGE OF NAME

ARTICLES OF INCORPORATION

NOTICE TO DEFEND (COMPLAINT)

 

TABLE OF CONTENTS

Jacqueline Cruz, v. Oak Hills Homeowners’ Association Inc.

 

NOTICE IS HEREBY GIVEN that Letters Testamentary or of Administration have been granted in the following estates. All persons indebted to the said estate are required to make payment, and those having claims or demands to present the same without delay to the administrators or executors named.

 

FIRST PUBLICATION

 

ESTATE OF E.M. GRACE YAKE, A/K/A EVA MARY GRACE YAKE, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executors.

Stephen G. Yake, Executor
1818 Buccaneer Drive
Sarasota, FL 34231

Lorraine E. Jackson, Executor
18 E. Market Street
Myerstown, PA 17067

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF JOYCE E. WOLF, late of Palmyra, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executrices.

 

Lorna Wagner and Katina Werner, Co-Executrices

 

Randall K. Miller, Esq.

659 E Willow Street 

Elizabethtown, PA 17022

 

ESTATE OF STEVEN JOHN STOLTZFUS, late of Millcreek Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrators.

 

David J. and Mary A. Stoltzfus, Administrators

114 S. Fort Zeller Road

Newmanstown, PA 17073

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF IVA E. MASEMORE, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Richard L. Masemore, Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF JULIA MAE HOSTETTER, A/K/A JULIA M. HOSTETTER, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Wanda L. Lehman, Executrix

 

Gerald J. Brinser, Esquire

  1. O. Box 323

Palmyra, PA 17078

 

ESTATE OF ROBERT Q. SMOYER, JR., late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Tina M. Hileman, Executrix

 

Keith D. Wagner, Esquire

  1. O. Box 323

Palmyra, PA 17078

 

ESTATE OF IRMA J. CASSEL, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executors.

 

Thomas L. Cassel, Executor

309 Kauffman Road

Annville, PA 17003

 

David Cassel, Executor

727 N. Lincoln Street

Palmyra, PA 17078

 

David R. Warner, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF JOHN J. MAHER A.K.A. JOHN MAHER, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Carol Babineau, Executrix

3046 Aberdeen Road

Annapolis, MD 21403

 

Joseph M. Farrell, Esquire

201/203 South Railroad Street

P.O. Box 113

Palmyra, PA 17078

 

ESTATE OF ANGELENE M. KIMMEL, late of North Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Kris M. Kimmel, Executor

919 N. 8th Avenue

Lebanon, PA 17046

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF LEON J. SKILLMAN A/K/A LEON JOHN SKILLMAN, late of North Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Amy J. Skillman, Executrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF IRMA N. DEIDERICK, late of North Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Brian L. Deiderick, Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF DALE O. LONGENECKER, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Anita White, Executrix

 

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF HARRY G. LAUZON, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Patrick T. Lauzon, Executor

 

George W. Porter, Esquire

909 E. Chocolate Ave.

Hershey, PA  17033

 

SECOND PUBLICATION

 

ESTATE OF JAMES R. HITZ, late of Union Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executors.

 

Melanie A. McGarry, Co-Executrix

Shawn M. Hitz, Co-Executor

 

Charles A. Ritchie, Jr., Esquire

Feather and Feather, P.C.

22 West Main Street

Annville, PA 17003

 

ESTATE OF STEPHEN M. ADAMS, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Kenneth P. Adams, Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF HELENA G. KURBAN, late of North Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Ramsay S. Kurban, Executor

 

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF ROSEMARIE K. SWAB, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Christina M. Hagewiesche, Executrix

128 Palm Lane

Lebanon, PA 17042

 

Edward J. Coyle, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF BRIAN G. HILL, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Linda Hill, Executor

 

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF SANDRA L. SPEECE, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters of Administration c.t.a. have been granted to the undersigned Administratrix.

 

Deidre L. Mertz, Administratrix c.t.a.

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF RICKIE D. HOMMEL, late of Palmyra, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Braden M. Hommel, Executor

347 Pheasant Road

Grantville, PA  17028

 

Edward P. Seeber, Esquire

JSDC Law Offices

11 East Chocolate Avenue, Suite 300

Hershey, PA  17033

 

ESTATE OF KERMIT R. EBLING, late of Myerstown Borough, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

David R. Ebling, Administrator

1995 Manor Road

York, PA 17406

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe

36 West Main Avenue

Myerstown, PA 17067

 

THIRD PUBLICATION

 

ESTATE OF DONALD E. RITTLE, JR., late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Donald E. Rittle, Sr., Administrator

1300 E. Kercher Ave., Lot 69

Myerstown, PA  17067

 

Timothy T. Engler, Esquire

Steiner & Sandoe

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF GARRY L. YINGST, late of North Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Shawn Yingst, Co-Executor

Cheryl Givler, Co-Executor

 

Young and Young

44 S. Main Street

P.O. Box 126

Maheim, PA 17545

 

ESTATE OF ARLENE H. RISSER, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Darrel Ebersole, Co-Executor

Lester Diem, Co-Executor

 

George E. Christianson, Esquire

Christianson Meyer

411 Chestnut Street

Lebanon, Pa.  17042

 

ESTATE OF CHRISTOPHER J. ANDREWS, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Clare Yingst, Executrix

 

George E. Christianson, Esquire

Christianson Meyer

411 Chestnut Street

Lebanon, Pa.  17042

 

ESTATE OF NANCY J. MILLER, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executors.

 

Kathleen S. Martin

2255 Colebrook Road

Lebanon, PA 17042

 

Brenda J. Miller

171 Witman Road

Womelsdorf, PA 19567

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF SALLY SHAW OWENS, A/K/A SALLY S. OWENS, A/K/A SALLY OWENS, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

John Francis Brennen, Sr., Executor

1959 Blacks Bridge Road

Annville, PA, 17003

 

Greer H. Anderson, Esquire

Long Brightbill

315 South Eighth Street

Lebanon, PA  17042

 

CHANGE OF NAME

 

NOTICE IS HEREBY GIVEN that on the 24th day of September 2020, a Petition for Change of Name was filed by Candace N. Miller in the above Court seeking to change the minor child’s name from TDZ to TDM. The Court has fixed the 27th day of October, 2020, at 3:30 P.M. in Courtroom No. 2 of the Lebanon County Municipal Building, 400 South 8th Street, Lebanon, Pennsylvania, as the time and place for the Hearing of said Petition, where any and all interested parties may appear and show cause, if any they have, why the request of Petitioner should not be granted.

 

Keith D. Wagner, Attorney for Petitioner

Brinser Wagner

  1. O. Box 323

Palmyra, PA 17078

 

ARTICLES OF INCORPORATION

 

ELCO SOCCER SCHOLARSHIP FOUNDATION has been incorporated under the provisions of Article B of the Nonprofit Corporation Law of 1988.

 

Gibbel Kraybill & Hess LLP, Attorneys

PO Box 5349

Lancaster PA 17606-5349

 

NOTICE TO DEFEND

(COMPLAINT)

 

In the

Court of Common Pleas of Lebanon County

Pennsylvania

Civil Action – Law

 

 

JONESTOWN BANK & TRUST CO.,                                 :  IN THE COURT OF COMMON PLEAS

Plaintiff                                                                                                           :  LEBANON COUNTY, PENNSYLVANIA

:  CIVIL ACTION – LAW

  1.                                                                                     :

:  NO. 2020-00914

CHARLES MICHAEL BEAMESDERFER             :

Defendant                                                                                                       :

 

TO:      CHARLES MICHAEL BEAMESDERFER

532 CEDAR COURT

LEBANON, PENNSYLVANIA  17042-9146

 

You are hereby notified that Jonestown Bank & Trust Co. has commenced a legal action against you in order to recover the sum of $16,949.90, plus accruing costs and interest which is due on an installment loan agreement which you have with the bank.

 

NOTICE

 

If you wish to defend, you must enter a written appearance personally or by attorney and file your defenses or objections in writing with the court.  You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you without further notice for the relief requested by the plaintiff.  You may lose money or property or other rights important to you.

 

YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE.  IF YOU DO NOT HAVE A LAWYER GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW.  THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.

 

            IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.

 

MID PENN LEGAL SERVICES

513 Chestnut Street

Lebanon, PA  17046

(717) 274-2834

 

                                                                        Paul C. Bametzreider, Esq.

Reilly Wolfson

1601 Cornwall Road

Lebanon, PA  17042

(717) 273-3733

 

JUDGES OPINION

 

Jacqueline Cruz, v. Oak Hills Homeowners’ Association Inc.

 

Civil Action-Law-Slip and Fall-Snow and Ice-Townhome Community-Summary Judgment-Homeowners’ Association Agreement-Responsibility for Snow Removal-Sidewalks-Ambiguity-Parole Evidence

 

Plaintiff, who lives in a townhouse development known as Oak Hills Estates that is governed by a homeowner’s association agreement by which she pays a monthly amount for services including snow removal services, filed a Complaint against Defendant for alleged injuries she sustained when she fell on ice resulting from snow melt at Oak Hills Estates.  Defendant filed a Motion for Summary Judgment asserting that Defendant is not responsible for removal of the snow from the sidewalk in question under the homeowner’s association agreement, which places the responsibility for snow removal on sidewalks to resident’s lots on residents and responsibility for snow removal in driveways and common areas upon Defendant.

 

  1. Summary judgment may be granted only those cases where the record clearly demonstrates that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.

 

  1. In ruling upon a motion for summary judgment, the record must be viewed in the light most favorable to the opposing party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.

 

  1. If the language of an agreement is ambiguous, the court may consider parole evidence in assessing the intent of the agreement.

 

  1. In assessing the intent of an ambiguous agreement, past practice and common understanding must be considered.

 

  1. Where Plaintiff in discovery identified the location of her fall as on or near a public sidewalk running parallel to the street and nowhere near the walkway leading to another resident’s home, Defendant provided no explanation regarding Plaintiff’s motive for walking to another resident’s home and there is no eyewitnesses placing Plaintiff on another resident’s walkway, issues of fact exist as to the location of Plaintiff’s fall.

 

  1. Since the homeowner’s association agreement contains ambiguity with regard to the party who bears responsibility for snow removal on sidewalks, parole evidence may be considered in assessing the intent of the agreement.

 

  1. When the meaning of a written agreement is ambiguous and the intent of the parties becomes an issue, a question of fact is presented, and summary judgment must be denied.

 

  1. In light of the fact that the language of the homeowner’s association agreement contains ambiguity regarding the party responsible for removal of snow upon sidewalks, parole evidence is admissible to determine the intent of the agreement so as to preclude judgment as a matter of law.

 

L.C.C.C.P. No. 2017-00441, Opinion by Bradford H. Charles, Judge, April 29, 2020.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL ACTION – LAW

 

JACQUELINE CRUZ                                                        :  No. 2017-00441

                                                                                               :

                     Plaintiff                                                            :

                                                                                               :

  1. :

                                                                                               :

OAK HILLS HOMEOWNERS’                                        :

ASSOCIATION INC.                                                         :

                     Defendant                                                        :                       

                       

 

O R D E R

 

AND NOW, this 29th day of April, 2020, in accordance with the attached Opinion, the Defendant’s Motion for Summary Judgment is DENIED.

 

 

BY THE COURT:

 

 

______________________,J.

BRADFORD H. CHARLES

 

 

BHC/pmd

 

cc:        Court Administration (order only)

Joel A. Greenberg, Esquire// 1880 JFK Blvd., Suite 250, Philadelphia PA 19103

John A. Statler, Esquire// 301 Market Street, PO Box 109, Lemoyne PA  17043-0109

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL ACTION – LAW

 

 

JACQUELINE CRUZ                                                        :  No. 2017-00441

                                                                                               :

                        Plaintiff                                                         :

                                                                                               :

  1. :

                                                                                               :

OAK HILLS HOMEOWNERS’                                        :

ASSOCIATION INC.                                                         :

                        Defendant                                                 :

 

APPEARANCES:

 

Joel A. Greeberg, Esquire                                       For Plaintiff

 

John A. Statler, Esquire                                           For Defendant

 

 

 

 

OPINION BY CHARLES, J., April 29, 2020

 

Before us is a Motion for Summary Judgment in a slip and fall case.  At issue is the location where the Plaintiff fell.  For reasons that we will articulate in more detail within this Opinion, the issue of where the Plaintiff fell is one that will have to be determined by a jury at the time of trial.

 

  1. FACTS and BACKGROUND

Plaintiff Jacqueline Cruz (hereafter CRUZ) is a townhouse resident within a development known as Oak Hills Estates (hereafter OAK HILLS).  The townhouse development is governed by a homeowner’s association (HOA) agreement.  All of the residents, including CRUZ pay a monthly amount to the HOA for agreed-upon services.  One of those services is snow removal.

During the winter of 2014-2015, an usually large amount of snow fell in the Lebanon Valley.  Over time, the snow melted.  On some occasions, it re-froze as ice.  On March 9, 2015, CRUZ left her home in order to walk children to their bus stop.  After CRUZ deposited the children with the bus, she walked back toward her home.  As she stepped on a sidewalk, she “went down”.  She later determined that the fall was caused by ice that had built up on the sidewalk.

The precise location where CRUZ fell is in dispute.  According to CRUZ, she fell on a “sidewalk” located near Penn Street that was parallel to the rear of her home.  According to OAK HILLS, CRUZ fell on a “walkway” that extended from the sidewalk to the entrance of a townhouse owned by another resident.

The nature and extent of the HOA’s snow removal responsibilities are also disputed.  According to CRUZ, the HOA was responsible for all snow removal on the sidewalk where she fell.  According to OAK HILLS, the responsibility for removing snow in the area rested with adjoining homeowners.

On January 2, 2018, CRUZ filed a civil complaint seeking damages for “severe injuries” she suffered in her fall[1].  Discovery was conducted that included depositions of CRUZ, HOA members and a North Cornwall Township official.  Produced in discovery was the HOA agreement that was entered into by all residents, including CRUZ.  That agreement stated, in pertinent part:

  • “Oak Hills residents are responsible for snow removal on sidewalks of their own lots…”;
  • HOA is responsible for snow removal in driveways and common areas such as parking lots, non-public roadways and public sidewalks.”

 

North Cornwall Township Manager Thomas Long testified that the township is not responsible for snow removal within the Oak Hills development.  Although Mr. Long testified that he thought that individual townhouse residents were responsible for snow removal on the sidewalk, it is clear that Mr. Long did not have the HOA agreement in front of him, nor was he aware of how the HOA residents had interpreted and operated under that agreement.

CRUZ testified that she believed the responsibility for snow and ice abatement rested on OAK HILLS, except for the walkway that extended between the public sidewalk and each resident’s doorway.  The walkway was the responsibility of each individual resident.  CRUZ’ interpretation of the HOA was corroborated by HOA board member Michelle Zimmerman.  Ms. Zimmerman testified that OAK HILLS was responsible for public areas and sidewalks, but not the walkways leading to the door of each unit.  (N.T. 21-22).

On January 29, 2020, OAK HILLS filed a Motion for Summary Judgment.  The motion asserted that CRUZ sued the wrong entity.  According to OAK HILLS, Joseph Boltz was responsible for snow removal on the sidewalk or walkway where CRUZ fell.  Of course, CRUZ disagrees.  We issue this Opinion because we believe the issues at hand will have to be decided by a jury.

 

  1. DISCUSSION
  2. Standard for Summary Judgment

Summary judgment may be granted only in those cases where the record clearly demonstrates that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Dean v. Commonwealth of Pennsylvania, Dep’t of Transp., 751 A.2d 1130, 1132 (Pa. 2000), citing P.J.S. v. Pennsylvania State Ethics Comm’n, 723 A.2d 174, 176 (Pa. 1999). The record must be viewed in the light most favorable to the opposing party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Id.

The Pennsylvania Rules of Civil Procedure provide that any party may move for summary judgment in whole or in part as a matter of law:

(1)         whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or

 

(2)         if, after the completion of discovery relevant to the motion, including production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.

 

Pa.R.C.P. 1035.2.  The purpose of the rule is to eliminate cases where a party cannot prevail on a claim or a defense.  See  Eaddy v. Hamaty, 694 A.2d 639, 649 (Pa.Super. 1997); Pa.R.C.P. 1035.2, Explanatory Comment–1996.

Our standard for ruling upon a motion for summary judgment is well settled.  The record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.  Hayward v. Medical Center of Beaver County, 608 A.2d 1040, 1042 (Pa. 1992) (citations omitted). Summary judgment may be entered only in cases where the right is clear and free from doubt.  Id.

 

  1. Analysis

Two fundamental issues of fact prevent us from awarding Summary Judgment.  We will address each of these two issues separately.

  1. Where did CRUZ fall?

The issue of where CRUZ fell is in dispute.  According to its Motion for Summary Judgment, OAK HILLS alleges that CRUZ fell on the walkway leading to Boltz’ residence.  CRUZ states that she fell on the sidewalk parallel to Penn Street and the rear of her home.

During her deposition, CRUZ was asked to denote the location of her fall on an aerial photograph.  She placed an “X” at the location.  It was unclear from the placement of CRUZ’ “X” whether the fall occurred in Penn Street or the adjacent sidewalk.  However, the “X” was placed nowhere near the walkway leading to Boltz’ residence.  Moreover, we have been given no explanation by HOA as to why CRUZ would have had any motive to traverse the walkway leading to Boltz’s residence, nor have we told about any eye-witnesses who would have placed CRUZ’ fall on Boltz’ walkway.  From the evidence presented via the parties’ Summary Judgment submissions, we would conclude that CRUZ fell on or near the sidewalk that runs parallel to Penn Street and not on the walkway leading to Boltz’ residence.  However, it is not for us to decide this issue one way or another based upon Summary Judgment submissions.  Where CRUZ fell is an issue of fact that will have to be determined by a jury.

  1. Snow removal responsibility

There is also a dispute about whether the HOA had the responsibility for snow and ice abatement on the sidewalk that ran parallel to Penn Street and the rear of the townhouses.  With respect to the responsibility of HOA, we must look first to the HOA agreement.  As outlined above, that agreement contains language that is conflicting at worst  and ambiguous at best.  At one point the HOA agreement indicates that “sidewalk” snow removal is the responsibility of residents.  At another location, the HOA itself undertakes responsibility for snow removal on “sidewalks”.

Because the HOA agreement is, at the very least, ambiguous, this Court is permitted to receive parole evidence in order to explain what is intended by the agreement.  See, e.g. Trapuzzano v. Lorish, 354 A.2d 534 (Pa. 1976)[2].  Past practice and common understanding are components of the parole evidence that we can and must consider in assessing the intent of the HOA.  See, e.g. Sun Company Inc. v. Pennsylvania Turnpike Commission, 708 A.2d 875 (Pa. Cmwlth 1998) (“The course of conduct of a party is always relevant in interpreting a contract and may be the strongest indication of the intention of the parties to the contract.” Id at page 879.)

The procedural posture of this case, is very similar to the one confronted by Pennsylvania’s Superior Court in Drapeau v. Joy Technologies Inc., 670 A.2d 165 (Pa. Super. 1996).  In Drapeau, as in this case, the court determined a contract to be ambiguous, thereby paving the way for the introduction of parole evidence to resolve the ambiguity.  Because the contract was deemed “susceptible to more than one reasonable interpretation”, the court deemed that Summary Judgment was inappropriate.  One of the judges in Drapeau stated: “When the meaning of the contract is ambiguous and the intent of the parties becomes an issue, a question of fact is presented and Summary Judgment must be denied.”  Concurring opinion of Judge Beck at page 169. See also, Meyers v, McHenry, 580 A.2d 860 (Pa. Super. 1990) (Summary Judgment not appropriate when parole evidence is needed due to allegation of fraud.); Windows v. Erie Insurance Exchange, 161 A.3d 953 (Pa. Super. 2017) (Where the terms of a contract are ambiguous, it is not error for a trial court to deny a Motion for Summary Judgment.)

In this case, the language of the HOA agreement is definitionally ambiguous in that it imposes responsibility on differing parties to remove snow and ice from “sidewalks”.  Parole evidence will therefore be needed to determine how the HOA agreement defined “sidewalks” as it relates to snow and ice abatement.  By definition, parole evidence implicates questions of fact that are best resolved by a jury.  Given this, we will not award Summary Judgment.

 

III.      CONCLUSION

There are issues of fact in this case that a jury will need to decide.  Where exactly did CRUZ fall?  Who was responsible for snow and ice abatement at that location?  We cannot and will not decide the above issues based upon the record that has been presented to us.  Rather, those issue will have to be decided by a jury at the time of trial.  Therefore, OAK HILLS’ Motion for Summary Judgment will be DENIED.

[1] The Complaint was preceded by a Writ of Summons filed on March 7, 2017.

[2] Parole evidence has been admitted to define terms such as “free from tin” Electric Reduction Company v. Colonial Steel, 120 A.116 (Pa. 1923), “Net sixty days”, Hagen Company v. Greenwood, 27 Pa. Super. 239 (1905) and “regular season” Lovering v. Miller, 218 Pa. 212, 67 A. 209 (1907).  It could similarly be used to define the term “sidewalk” found in the HOA.

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