MICHAEL LACINSKI , RYAN CARPENTER,

DOUG SEMMEL, FRANK CHARLTON ,

d/b/a BUCKTOE MANOR
ARCHITECTURAL CONTROL
COMMITTEE, RYAN CARPENTER and
KARA CARPENTER (f/kla KARA
FITZPATRICK), h/w and SCOTT BONNE
and ALLISON BONNE, h/w

IN THE COURT OF COMMON PLEAS

CHESTER COUNTY, PENNSYLVANIA

vs .
NO. 15-01836
XAIO HU GAO, LALAINE GAO, KEITH
DAVIS and DAVID RUTH

CIVIL ACTION

L. Theodore Hoppe, Jr., Esquire, on behalf of the Plaintiffs

John A. Saling , Esquire, on behalf of Defendants Gao
Mary Ann Rossi , Esquire, on behalf of Defendants Davis and Ruth

DECISION OF THE COURT PURSUANT TO

PENNSYLVANIA RULE OF CIVIL PROCEDURE 1038

I.

PROCEDURAL SETTING
This matter comes before this Court as a result of a Complaint filed originally by

Ryan Carpenter and Scott Bonne (hereinafter "Plaintiffs") seeking the issuance of a
Preliminary Injunction and attorney fees from Xaio Hu Gao and Lalaine Gao and Keith
Davis (hereinafter "Defendants") as a result of the erection of a fence on the
Defendants' property. A hearing on the injunctive relief request was held on April 9,
2015.

At the hearing , the parties agreed that pending the final resolution of the

Complaint, the Defendants would not perform any construction, reconstruction , or any
alteration of any dwelling, outbuilding fences or otherwise make improvements to the
property. See, Order of April 9, 2015.
Plaintiffs filed a Motion to Amend the Complaint in order to add in several other
ind ividuals as well as the purported "Bucktoe Manor Architectural Control Committee."

The Motion was granted . Defendants filed Answers and in accordance with Chester
County Rule of Civil Procedure 249 .3, this matter was scheduled for trial. The case
was called for a bench trial on June 7, 2016 . The parties appeared and evidence was
presented. The Court now makes the following findings of fact and conclusions of law
in accordance with Pennsylvania Rule of Civil Procedure 1038.
II.

FACTS
This case is not at all about a fence.

We are well aware that the disaffected parties will, in all likelihood , appeal this
decision. It is therefore incumbent upon the Court to convey the manner with which
many of the Plaintiffs' witnesses testified.

The Plaintiffs and their witnesses all

appeared well-prepared and repeated , almost verbatim , the "theme" of the case: "I
only wish to honor the document. "

However, the evidentiary narrative which was

developed both in direct and in cross examination belied the "theme."

When acting as the finder of fact in a bench trial ; it is up to the Court to
determine the appropriate weight to give the testimony of the various witnesses. See,

Boyd & Mahoney v. Chevron U.S.A. , 614 A.2d 1191 (Pa . Super. 1992) (finding that the
trial judge is "free to believe all , part, or none of the evidence that is presented. "); see
also, Matakitis v. Woodmansee , 667 A.2d 228 (Pa . Super. 1995) (a tri~l judge's
findings will not be reversed unless it appears that he has clearly abused his discretion
or committed an error of law); Kappe v. West Chester Borough , 2003 WL 25436919
(Pa . Com . Pl. ).

poet).

"Things are not always as they seem; the first appearance deceives many." - Phaedrus (Roman

The setting for our play is Bucktoe Manor, an idyllic vision of suburbia located in
New Garden Township , Chester County. Bucktoe Manor was conceived by Charles
Wilkinson , a home builder and developer of much of Southern Chester County. Mr.
Wilkinson , now deceased , built in this development 26 homes over 44 acres centered
on two cui-de-sacs.

For unknown reasons , Mr. Wilkinson filed a Declaration of

Covenants , Restrictions and Easements (hereinafter "Declaration"). See , Plaintiffs'

Exhibit 2. The Declaration was duly recorded in the Office for the Recorder Deeds at

Book 4716 , page 1547, et seq. See , Plaintiffs' Exhibit 2. Importantly, Mr. Wilkinson
did not, in this Declaration , create a planned community within the meaning the
Un iform Planned Community Act (hereinafter "UPCA"). 68 Pa.C .S.A. 51 01, et seq.
The purported issue arises under Sections 4.09 and 4.11 of the Declaration.
Section 4.09 is entitled "Out Buildings ; Pools." It states , in pertinent part, that an inground pool may be constructed on a lot provided that "such pool shall be surrounded
by appropriate fencing for the protection of unattended children , or such fencing as
may be requ ired by Township Ordinance .. .. " See, Plaintiffs' Exhibit 2, page 9,
Section 4.09. Section 4.11 is entitled "Fencing". This section starts with "[n]o fencing

shall be permitted on any Lot except . . .. " See, Plaintiffs' Exhibit 2, page 9, Section
4.11 ..

The Declaration does not create a Homeowner's Association. The Declaration

does not create assessments.

The Declaration does not provide any method of

enforcement for an alleged breach of any section of the Declaration. In Section 4.15,
the Declaration creates an Architectural Control Committee (hereinafter "ACC") to be
established when the Declarant (Mr. Wilkinson) no longer owns at least one (1 ) Lot.

Mr. Wilkinson was to, and did, appoint, "not less than three nor more than five"
individuals to serve on the ACC . The Declaration directed the ACC to establish rules
for making an application, reviewing and issuing approvals or denials, as well as the
replacement of members of the ACC . See, Plaintiffs' Exhibit 2, page 12, Section 4.15.
While the Declaration states that the ACC decisions are "final and binding" unless
overridden by a vote of 18 Lot Owners , the Declaration provides no mechanism to
enforce the decision.
There is no dispute that Mr. Wilkinson appointed an ACC.

There is also no

dispute that the ACC failed to establish any rules for reviewing and issuing approvals
or denials.

The ACC never adopted any rules addressing the replacement of

committee members. Plaintiffs called Michael Lacinski to testify at trial. Mr. Lacinski
was appointed to the ACC by Mr. Wilkinson. Mr. Lacinski testified that, over a period
of time, the other members of the committee either passed away or withdrew. As a
result, for a period of several years, the ACC consisted solely of Mr. Lacinski.
Lacinksi testified that he was sole arbiter of the Declaration.

Mr.

He and he alone

determined , mostly by conversation with homeowners, whether someone could

deviate from the Declaration . He testified that he allowed "variations" and that he did
not believe that he had ever denied a request. On cross examination, Mr. Lacinski
conceded he denied no one, he took no enforcement actions, and issued no "cease
and desist" letters.

Mr. Lacinski's only guiding principal was consistency and

conformity.2

2 "Group conformity scares the pants off me because it's so often a prelude to cruelty towards
anyone who doesn't want to- or can't- join the Big Parade." - Bette Midler

Mr. Lacinski also testified that he had no written material to document whether
any requests a) had ever been made; b) what the requests were for; c) whether
documentation of any kind (i.e. plans, drawings, schematics) were submitted ; d)
whether a vote was taken when there were members of the committee; and e) the
reasons in support of or in opposition to the decision. Mr. Lacinski no longer lives in
Bucktoe Manor.
The group conformity was altered when Mr. Davis entered into a lease
purchase agreement with Mr. and Mrs. Gao. See, Defendants' Exhibit 5. Shortly after
moving in, Mr. Davis began a series of interior and exterior improvements. Mr. Davis
began to construct a fence around his rear and side yards. The fence was made of a
fairly standard white composite resin like material and was six (6) feet in height.
It appears that Mrs. Bonne may have been the first to see the fence being
constructed . She testified that she immediately called her husband. She also testified
that she wanted to be "helpful" so she found her copy of the Declaration. She took the
Declaration to the local Staples and made two copies.

She then proceeded to

highlight portions and tab sections of the "rules". In furtherance of her attempt to be
"neighborly," Mrs. Bonne then took the highlighted and tabbed document, wrapped it in
plastic, and when the property was vacant, Mrs. Bonne stuck it in between Mr. Davis's
screen and front door. On cross-examination , Mrs. Bonne acknowledged that she
often read and re-read the Declaration . She testified she had highlighted and made
notes on the Declaration for her own use and interest. In any event, Mr. Davis testified
he never received it. Mrs. Bonne testified that she did this before the fence went up.

She was quick to add , "I didn't like the fence ." The fence, she testified , interrupted her
"never-ending" spacious views .
Mr. Bonne, who preceded his wife on the stand, testified that he spoke with Mr.
Davis . In welcoming Mr. Davis to the neighborhood, Mr. Bonne mentioned right away
that they had an ACC and covenants. Mr. Bonne testified that they wanted to protect
the Declaration because , if not protected, "anybody could do anything they wanted "
with their property.
Frank Charlton, another of Plaintiffs' witnesses, seems to have learned of the
fence erection from the Bonnes. From his lot and the view he has, Mr. Charlton could
not have seen the fence without, in his words , trespassing .

According to his

testimony, Mr. Charlton's main concern was that the fence would hurt the value of his
home. Neither Mr. Charlton nor any Plaintiff presented an appraisal regarding the
value of property in Bucktoe Manor. Interestingly, Mr. Lacinski testified that he had
recently sold his home and moved to Maryland . Mr. Lacinski presented no testimony
that he had any trouble selling his home, that his home was on the market for an
extended period of time or that he received less money for the sale of his home due to
the fence . Certainly a homeowner may give an opinion as to the value of his property.
Richards v. Sun Pipe Line Co. , 636 A.2d 1162 (Pa . Super. 1162).

However, an

opinion that the fence will "hurt values" must be established by more than mere
conjecture. See, In Re: Estate of Cecchine, 485 A.2d 454 (Pa. Super. 1984).
Mr. Carpenter, the lead Plaintiff, testified he learned of the fence from Mr.
Charlton . Mr. Carpenter's rear yard overlooks Mr. Davis's rear yard . See, Plaintiffs'
Exhibit 4. Mr. Carpenter first saw the fence in the fall of 2014. Mr. Carpenter and his

wife then went to visit Mr. Davis. While Mr. Carpenter knew the fence was then under
construction, he testified he did not mention it to Mr. Davis . Shortly thereafter, Mr.
Carpenter learned Mr. Davis was in a same-sex relationship. There is some dispute
over whether Mr. Davis introduced his partner to the Carpenters or whether the
Carpenters learned of the relationship from another neighbor. There is no doubt that
once Mr. Davis's sexual orientation was discovered, the tenor of the neighborhood
interactions changed.
Mr. Carpenter testified that he believes the fence violates the Declaration . He
told Mr. Davis the fence had to come down . In conversations, Mr. Davis offered to
landscape, at his sole cost, the side of the fence which faced the Carpenter property.
This was unacceptable to Mr. Carpenter.

There would be no compromise.

Mr.

Carpenter testified that he then hired a lawyer and, in the spring of 2015, filed the
initial Complaint.
Mr. Carpenter also found other things about Mr. Davis and/or his partner, David
Ruth, and their children objectionable.

Mr. Carpenter testified that the Davis/Ruth

dogs would bark. When this occurred, Mr. Carpenter would stand on his deck and yell
at the dogs.

Mr. Carpenter acknowledged that he would yell "other things" which

included homophobic slurs. 3 It appeared unlikely to the Court that the homophobic
slurs were directed at the dogs.

Partially as a result of the dogs' barking, Mr.

Carpenter called the New Garden Police approximately ten (1 0) times to complain . No
citations have ever been issued to the Davis/Ruth household. Mr. Carpenter began to
complain about a security light on the back of the Davis home. He testified that the
3

Reminiscent of the Two Minutes' Hate where, in order to release tension people were to scream ,.
yell and throw things. Orwell , George, 1984. New York: New American Library, 1955.

light shone in his bedroom such that he could make finger puppets on his wall. As a
result of Mr. Carpenter's complaints, Mr. Davis agreed to turn the light off.
Sometime later, some unknown and unidentified individual(s) spray-painted in
large red letters "Get out FAGS!" on Mr. Davis's garage doors.

See, Defendants'

Exhibit 3. While there is no evidence that Mr. Carpenter knew of or was in any way
involved in the spray-painting , he did acknowledge that this lawsuit has become
"personal."
Mr. Carpenter also acknowledged that he wished to install a pool and fence in
his rear yard. The in-ground pool would be surrounded by a metal/aluminum fence.
See, Defendants' Exhibit 3.

Apparently, at some point Mr. Carpenter became a

member of the ACC. How that happened is unknown since there are no records . But
Mr. Carpenter, acting as part of an ACC, approved his pool and fence. The pool has
been constructed but the fencing was changed from what was purportedly submitted
and approved by the ACC . It was unclear whether Mr. Carpenter ever went back to
the ACC for the "new" fence approval.

As noted above, this Court is not aware

whether anyone ever made application to the ACC since Plaintiffs produced no
records.
Mr. Davis took the stand. His testimony was clear and concise. He occupies
the home with his partner, Mr. Ruth, and two children whom they are adopting, on a
lease/purchase arrangement with the Gaos. See, Defendants' Exhibit 5. The lease
makes no mention of a Declaration. After moving in, Mr. Davis asked his realtor if he
4

"I wish I could say that racism and prejudice were only distant memories. We must dissent from
the indifference. We must dissent from the apathy. We must dissent from the fear, the hatred and the
mistrust. ... We must dissent because America can do better, because America has no choice but to do
better." Marshall, Thurgood Han. "Liberty Medal Acceptance Speech. " Liberty Medal Presentation ,
Philadelphia, 4 July 1992 Speech .

could build a fence . Mr. Davis asserts he was told there was not a Homeowner's
Association nor does a mention of a Declaration appear in the deed or on any
recorded plans for Bucktoe Manor. He further testified that while the fence was being
erected, Mr. Charlton called him to say there was an "issue" with the fence .
Mr. Davis said that he tried to work with Mr. Carpenter and offered several
landscaping or other proposals to alleviate the visual impact of the fence. Although
Mr. Carpenter would not accept any compromise, Mr. Davis tried to "keep the peace"
and agreed to turn off the security light. Shortly thereafter, "Get out FAGS!" was spray
painted on his garage, portions of the fence were "hacksawed" and boards were
"kicked out. " See , Defendants' Exhibit 8. Once the fence was repaired, the vandal
struck again . Apparently good fences do not make good neighbors.

Mr. Davis testified that he felt compelled to turn the security light back on. He
added two more lights, a video surveillance camera system , and due to the length of
the driveway, ground sensors to activate when people approached the home. Since
installing the equipment, the sensors have been torn from their posts and damaged .
See , Defendants' Exhibits 9 and 10.

Mr. Davis acknowledged that Mr. Carpenter had

called the police on him on an almost weekly basis. These police reports , ostensibly
over the dogs, have resulted in no citations or charges to either Mr. Davis or Mr. Ruth .
Finally, Mr. Davis introduced twenty-eight (28) photos representing Declaration
"violations" at twelve (12) of the twenty-six (26) homes.

Mr. Davis also produced

photographs of the metal fence (not split rail) submitted and approved by Mr.
Carpenter and proposed to surround the Carpenter pool. The violations included , inter
5

Frost, Robert, "Mending Wall. " Tendencies in Modern American Poetry. New York: Macm illan Co.,

1920 .

alia , fences encompassing the side yard (an alleged violation of Mr. Davis' fence) ,

fences in the front yard , posts made of stone in excess of four feet in height (an
alleged violation of Mr. Davis' fence) and fences and portions of fences made of metal
and composite materials (an alleged violation of Mr. Davis' fence). See, Defendants'
Exhibit 6.

Following the filing of the original suit seeking the preliminary injunction , Mr.
Davis made a request of the ACC to install a pool. Apparently the pool met all of the
requirements of the Declaration . However, several Plaintiffs testified that the ACC
denied the pool request because the fence was there- a fence , we might note as an
aside, which would have been required if the pool was installed .
Ill.

ISSUE
Whether the portions of the Declaration relating to fences are enforceable.

IV.

HOLDING
No, the portions of the Declaration relating to fences are not enforceable .
RATIONALE

V.

Before I built a wall I'd ask to know

What I was walling in or walling out,
And to whom I was like to give offense.
Someth ing there is that doesn't love a wall ,
That wants it down." I could say "Elves" to him,
But it's not elves exactly, and I'd rather
He said it for himself,...
And he likes having thought of it so well
6
He says again , "Good fences make good neighbors.
In Robert Frost's classic tale , a stone wall separates the speaker's property
from his neighbor's, as the white fence separates Mr. Carpenter from Mr. Davis.

/d.

10

Neither man ever thought to ask his neighbor what they were walling and wall ing out.
After being confronted , Mr. Davis made attempts to ease the concerns of Mr.
Carpenter. Mr. Davis explained the need for the fence . Certainly the. cutting of the
fence, the damage to the Davis property and the "Get out FAGS!!" spray paint
message bolster Mr. Davis' concerns . The image at the heart of "Mending Wall" is
arresting: two men meeting on terms of civility and neighborliness to build a barrier
between them .7 Here, there is no civility or neighborliness.
Covenants which restrict the use of land and thus, by operation , seek to
interfere with an owner's free use and enjoyment of his own property are not favored
by the law and must be strictly construed.

See, Vernon Township Volunteer Fire

Department, Inc. v. Connor, 855 A.2d 873 (Pa . 2004) ; Young v. Cerone, 487 A.2d 965
(Pa . Super. 1985). Here, the Plaintiffs have asked a state court to either impose a
penalty or to deprive the Defendants of a substantive property right.

Against the

background of judicial construction , we must conclude that as a state court and state
actor we must make sure that the requested state action does not deny the
Defendants the equal protections of the laws which we are bound to insure.
Therefore, before we deprive a party of a substantive constitutional due process and
property right we must view the document with a highly discerning eye. See, Shelley

v. Kraemer, 334 U.S. 1 (1948).

It is a fundamental rule of document interpretation that the intention of the
parties at the time of the making of the contract governs and that the intent must be

"In recogn izing the human ity of our fellow beings, we pay ourselves the highest tribute." See ,
Furman v. Georgia , 408 U.S. 238 (1971 ), Concurring Opinion Mr. Justice Marshall, at 371 .

11

derived from the instrument.

Wilkinson , is dead.

/d. Of course , the only maker of this document, Mr.

Mr. Carpenter and no other homeowner participated in the

creation or the language of this document. Therefore, this Declaration must be strictly
construed against the grantor and any ambiguities are to be resolved in favor of the
landowner/Defendants. See, Young v. Cerone, supra. ; Schulman v. Serri/1, 246 A.2d
643 (Pa. 1968).
Testimony from the Plaintiffs showed that the intent of the Declarant, Mr.
Wilkinson, was anything but clear. Mr. Lacinski and Mr. Charlton both testified that Mr.
Wilkinson allowed new buyers to fence in portions of their side yard, despite what the
Plaintiffs now argue is prohibited by the Declaration. Apparently, the Declarant and
drafter of the document did not mean to prohibit fences in the side yard.

In fact,

Messrs. Lacinski and Charlton , who were original purchasers from Mr. Wilkinson,
testified that "Wilkinson could do what he wanted," clearly expressing their
understanding that the Declaration did not apply to the declarant. While the language
of Section 4.11 is arguably clear, it was patently ignored by the Declarant and
subsequent landowners.
Plaintiffs argue that the evidence shows that the fences which now exist in side
yards and are not split rail were approved by the ACC . However, the "evidence" was
quite to the contrary. The Plaintiff did not produce one piece of evidence during the
trial to support the contention that people made application to the ACC, that the ACC
had procedures and rules that it followed, and that the ACC issued decisions. This
evidence of the ACC decisions was solely in the control of the Plaintiffs. This evidence
would have been highly relevant and helpful to the Plaintiffs. The Plaintiffs could not
12

satisfactorily explain why it was not produced. See, Haas v. Kasnot, 92 A.2d 171 (Pa .
1952). The proffered excuse was that the ACC "acted informally." This theory to
account for the absence of rule , regulations, application, procedures or decisions is
neither satisfactory nor obvious. If true, then the Plaintiffs cannot hold the Defendants'
feet to the fire for failing to act formally.

Thus, this Court may and does draw the

inference that the reason for the failure to produce evidence is because it would have
been unfavorable to the Plaintiffs. See, Clark v. Philadelphia College of Osteopathic
Medicine , 693 A.2d 202 (Pa. Super 1997), app. granted, 705 A.2d 1303 (Pa. 1997),
app. dismissed, 734 A.2d 859 (Pa . 1999).
As noted above , if the Plaintiffs wish to enforce a restriction which operates to
deprive Mr. Davis of a fundamental property right, due process is required.

See,

United States Constitution Amendments 5 and 14; Board of Regents of State Colleges
v. Roth , 408 U.S. 564 (1972) . Plaintiffs have asked the Courts to enforce a deed
restriction . It is well-settled that the actions of state courts and judicial officers in our
official capacity are regarded as actions of the state and thus fall within the penumbra
of the Fourteenth Amendment. See, Shelly v. Kraemer, 334 U.S. 1 (1948); Twining v.
New Jersey, 21 1 U.S. 78 (1908). There can be no argument that an individual's free
and clear use of his own property is a right conferred not by legislative grace but by
the Constitution .

See, Cleveland Board of Education v. Loudermi/1, 470 U.S. 532

(1985) .
Since due process is required , we turn to what exactly is required . An essential
principle requires notice and the opportunity for a hearing appropriate to the nature of
the case. See , Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) . At
13

the heart of due process is that an individual be given the opportunity for a hearing,
governed by open and uniformly accepted principles, rules and regulations .

See,

Board of Regents v. Roth, supra.

In this case, there was absolutely no due process afforded to the Defendants.
The ACC did not have rules, regulations or procedures. Mr. Wilkinson, in drafting the
declaration, gave notice to the subsequent homeowners that they needed to create a
procedure and allow for an opportunity to be heard.

Yet the Plaintiffs ignored this

warning . Had due process rights been followed, the parties may not be here today.
Clearly, Mr. Davis has plausible arguments to make that might have prevented this
action.

Mr. Davis' right to a hearing under established procedures does not depend

on him demonstrating to this Court that he would have had certain success below but
that he had arguable issues. See, Carey v. Piphus , 435 U.S. 247 (1978) . Mr. Davis
was never afforded any opportunity. That opportunity was denied because there was
no ACC, there were no rules, there was no procedure and, in short, there was no due
process.
As the testimony developed, it was also clear that the ACC, once constituted by
Mr. Wilkinson , had ceased to exist. The Declaration which the Plaintiffs hold so dear
requires that the ACC consist of "not less than three (3) nor more than five (5)
individuals." See, Plaintiffs' Exhibit 2, Section 4.15 (d). The ACC was to meet and
establish rules, review and issue approvals, and create a procedure for resignations
and substitutions for new members. The ACC and Bucktoe Manor never did one thing
required by this section. Mr. Lacinski testified that for years he and he alone was the
ACC .

He "governed" the neighborhood.

14

He had no power to do so under this

Declaration. The failure of the Plaintiffs to do anything to fill spots, create rules and
procedures , keep documentation of any application , and subsequent decision is
damning to their cause. Apparently, the Plaintiffs only wish to enforce covenants when
it suits them or for reasons known only to them .
If true as Plaintiffs claim , in spite of the lack of documentary evidence in support
thereof, that Mr. Lacinski never denied a request, then one must ask why Mr. Davis'
fence was "denied" and why now? Selective enforcement of a facially valid law is
unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.
See, Yick Wo v. Hopkins , 118 U.S. 356 (1886).

Although not raised by the

Defendants, to establish a selective enforcement claim , Mr. Davis would have to show
that he was treated differently from the other residents and that this selective treatment
was based on an unjustifiable standard. See , Jewish Home of Eastern PA v. Centers
for Medicare and Medicaid Services, 693 F.3d 359 (3d Cir. 2012) . One must pause to
wonder, given the destruction of the Davis property and the profanity scrawled across
his home in red spray paint, coupled with the absolute lack of any other required
written application for a fence , if there is not a hint of selective enforcement present.
Further, there is a contradiction between the two purported directives on fences
within the Declaration. First, Section 4.11 says the fence shall be a maximum of four
(4) feet in height. Second, Section 4.09 says that fencing around a pool (for which Mr.
Davis applied to the ACC , but was denied because of the fence) shall be as the
Township requires .

Defendants introduced New Garden Township Ordinance #53

governing the installation of private swimming pools. The Township requires fencing
"at a minimum of four (4) feet" in height. When Mr. Davis applied to the "ACC " for a
15

pool he proposed a six (6) foot fence , accessible by a gate with a locking device, in
strict compliance with Township Ordinance #53. See, Defendants' Exhibit 7. It was
clear that the Plaintiffs are highly-educated and sophisticated . In testifying that the
pool was denied (the only pool ever denied in Bucktoe Manor) because of the fence ,
Mr. Carpenter made clear to the Court that he knew if the pool was approved then the
fence , complying the with Township Ordinance, was to be approved in accordance
with Section 4.09.
When an ambiguity is found in a document restricting the use of land , every
doubt and ambiguity must resolved in favor of the landowner.

See, Jones v. Park

Lane for Convalescence, 120 A.2d 535 (Pa. 1956); Baltic Development Co. v. Jiffy
Enterprises, Inc., 257 A.2d 541 (Pa. 1969). Here, under Section 4.09, the Defendants'
fence is permissible. ~ursuant to Section 4.11 , it is arguably not. (See discussion to
follow) .

As

clear

ambiguity,

the

resolution

must

be

in

favor

of the

landowner/Defendants. The pool should be built subject to Township approvals and

the fence allowed to remain .
Finally, in a different context, as we noted above restrictive covenants are not
favored under the law. Notably, through the passage of time or a change in condition
of the neighborhood a declaration may lose utility. See, Perrige v. Homing, 654 A.2d
1183 (Pa . Super. 1995).

If significant changes or acquiescence in changes have

occurred , the Court will not seek to enforce restrictions.

See, Vernon Township

Volunteer Fire Department v. Connor, supra .; Young v. Cerone, supra.; Gey v. Beck,
568 A.2d 672 (Pa. Super. 1990).

In other words , a restrictive covenant will be

16

discharged if it is shown that the original purpose has been destroyed by changed
conditions. See, Gey v. Beck, supra.
In the instant case, the evidence produced revealed that the fence restriction
was never enforced from the start. Testimony was that Mr. Wilkinson allowed fences
in the side yard before the ACC ever came into existence. The photographs reveal
fences with large stone pillars, large metal gates, made of split-rail, ~etal and
composite materials, chicken wire attached to fences as well as fences in the rear,
side and front yards.

There is no evidence that any of these fences was ever

approved by an ACC . Testimony revealed that, at no time in the existence of Bucktoe

Manor, had Mr. Lacinski (since the ACC had ceased to exist) ever written a letter
asking someone to cease and desist. Never before in the history of Bucktoe Manor
had any "enforcement action" been taken.

The residents of Bucktoe Manor have

either agreed to or merely acquiesced in breaches of the Declaration by 46% (12 out
of 26) of the homeowners. Thus, this restriction conveys no substantial benefit to the
landowners. The fence as built can remain in place .
For all of the foregoing reasons we enter the following decision:

17

MICHAEL LACINSKI , RYAN CARPENTER,

DOUG SEMMEL, FRANK CHARLTON ,
d/b/a BUCKTOE MANOR
ARCHITECTURAL CONTROL
COMMITIEE, RYAN CARPENTER and
KARA CARPENTER (f/k/a KARA
FITZPATRICK), h/w and SCOTI BONNE
and ALLISON BONNE , h/w

IN THE COURT OF COMMON PLEAS

CHESTER COUNTY, PENNSYLVANIA

vs.
NO. 15-01836
XAIO HU GAO, LALAINE GAO, KEITH
DAVIS and DAVID RUTH

CIVIL ACTION

L. Theodore Hoppe, Jr., Esquire, on behalf of the Plaintiffs

John A. Saling , Esquire, on behalf of Defendants Gao
Mary Ann Rossi, Esquire, on behalf of Defendants Davis and Ruth

DECISION

AND NOW, this

').~ day of June, 2016, Plaintiffs' request for injunctive

relief seeking to have the fence removed , enjoining the Defendants from performing any
installation or repair of their fence without first seeking approval from an Architectural
Review Committee, and request for attorney fees and costs is hereby DENIED.
Defendants' request to allow the fence to remain is GRANTED.

Further, Defendants

may install the requested in-ground pool, if they choose to, upon obtaining approvals
from New Garden Township. Defendants' request for attorney fees is DENIED.
BY THE COURT:

18