Dangers of Overzealous Board Action to Correct Violations
By: STEFAN RICHTER, ESQ.
In the 2011 Pennsylvania Superior Court case McCullough v. The Mansion of North Park Homeowners Association, the Mansion of North Park Homeowners Association sought to recover fines, late charges, court costs and attorney’s fees incurred as a result of Mr. McCullough’s violation of a pet restriction. Mr. McCullough had adopted three cats prior to the Association’s implementation of a rule restricting each Unit to two cats. Although Mr. McCullough’sthree cats were “grandfathered-in”, when two of them died, he replaced them with two kittens, rather than with only one new cat. A variance for the owner to retain the original cat and the two new kittens was apparently granted and thereafter withdrawn.
Rather than seeking injunctive relief, the Association assessed, and then sued to recover fines and legal fees for violations of the rule permitting only two cats, and for violations of a prohibition against nuisances. Writing for the lower court, Judge Judith L.A. Friedman of the Court of Common Pleas of Allegheny County, held as follows:
Despite the allegation of a nuisance in the Complaint, the stated basis of the daily fines was that Appellant had three cats when he was only allowed two, and we concluded that the extra new cat did technically violate the Bylaws. However, we also concluded that the essentially unlimited daily fines represent an abuse of discretion and an unwarranted exercise of power by the Board.
The Association has taken different positions with regard to the number of cats and dogs members of the association are permitted to have, and has enforced its varying policies or rule haphazardly and without any regard to any concept of fairness. It is not entitled to the relief it seeks now, enforcement of daily fines that have no relation to the conduct which the fines are supposedly designed to correct or discourage. The amount requested at trial is outrageous in the circumstances and does not merit enforcement at all.
There was no credible evidence that supported the notion that Appellants cats were a nuisance, as that term is usually understood. They were not running wild nor did they defecate everywhere…. We properly refused to condone the abusive fines assessed by the Association for a violation that was de minimis at best… We also properly refused to award attorneys fees.
In what turned out to be a generous surprise, the lower court, on its own motion entered an order enjoining Mr. McCullough from replacing the last grandfathered cat, hoping to avoid any future re-litigation of this matter. And, although the lower court considered awarding attorneys fees against, the Association, it did not.
As stated in the opinion, Mr. McCullough was “unwilling to let sleeping cats lie”. 2 years after Judge Friedman’s decision, Mr. McCullough filed suit against the Association (and among others) a former board member and the Association’s attorney. The alleged basis for Mr. McCullough’s claims were “The Board’s Harassment by Making Frivolous Complaints About Plaintiff’s Cats”, “the Board’s Harassment by Making frivolous Police Complaints, and “the Association’s Harassment by Filing a Frivolous Lawsuit”. Mr. McCullough’s complaint was dismissed on preliminary objections, and this appeal followed. The Superior Court reduced the case to two claims brought against the Association – breach of contract, and wrongful use of civil proceedings.
In dismissing the breach of contract claim, the Court held that bald and conclusory allegations of inequitable application of rules do not meet the required pleading standard:
Even if perfectly contemporaneous and consistent treatment of all residents vis-à-vis a given By-Law was required by law – and Appellant has provided no legal authority to establish that proposition – Appellant failed to plead in more than conclusory terms that other residents similarly situated (i.e., those with cast who were subject to nuisance complaints) were treated differently.
The Court then analyzed Mr. McCullough’s claim for wrongful use of civil proceedings under Pennsylvania’s Dragonetti Act (42 PA.C.S. Section 8351), which contains the following elements:
1) The defendant has procured, initiated or continued the civil proceeding against him
2) The proceedings were terminated in his favor.
3) The defendant did not have probably cause for his action.
4) The primary purpose for which the proceedings were brought was not that of securing the proper discovery, joinder or parties or adjudication of the claim on which the proceedings were based.
5) The plaintiff has suffered damages.
The Superior Court held that Mr. McCullough could not meet the second and third elements of his claim. The lower court (although on its own motion) ordered injunctive relief prohibiting Mr. McCullough from replacing the third cat; and in addition, held that the third cat constitutes a violation (albeit technical) of the Bylaws.
This case confirms that enforcement of covenants, restrictions, and rules must be reasonable, fair, and consistent. Arbitrary or haphazard application of rules will regularly defeat an association’s ability to proceed against violations (whether or not related in substance). This case also demonstrates that overzealous action to correct technical violations may result in claims against an Association, including for wrongful use of civil proceedings. While it is not clear from the facts of this case why the owner’s variance for the two kittens was originally granted and subsequently withdrawn, it appears the court did not find the association’s action acceptable. Perhaps the association failed to establish that the rule itself was reasonable and necessary, or that the cats in fact constituted a nuisance. Nonetheless, the lower court crafted a practical remedy which later protected the Association from a claim for wrongful use of civil proceedings.
This article is not legal advice and is provided for informational purposes only. Actual legal advice can only be provided after consultation by an attorney licensed in your jurisdiction.