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HASKELL v. GUNSON. (01/08/58)

January 8, 1958

HASKELL, APPELLANT,
v.
GUNSON.



Appeal, No. 309, Jan. T., 1957, from decree of Court of Common Pleas No. 4 of Philadelphia County, Sept. T., 1954, No. 1517, in case of Dr. Benjamin F. Haskell et al. v. Dr. John J. Gunson et al., Decree reversed.

COUNSEL

Michael H. Egnal, for appellants.

Charles L. Guerin, Jr., for appellees.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Musmanno

[ 391 Pa. Page 120]

OPINION BY MR. JUSTICE MUSMANNO

On July 13, 1954, Dr. John J. Gunson purchased a house located at Larchwood Avenue and Forty-sixth Street in the 46th Ward of the City of Philadelphia,

[ 391 Pa. Page 121]

    the conveyance containing the restriction that the building was not to be used "for any purpose other than that of a private dwelling house."

Despite this restriction, Dr. Gunson, immediately after acquiring the premises, proceeded to make plans to convert certain portions of the house into a dentist's office and practice his profession there. The plaintiffs filed a complaint in equity to enjoin him from carrying out those intentions. The lower Court refused the injunction and said: "If it was the intention of the creator of the restrictions involved in this proceeding to forbid the the use of part of any dwelling house as a dental office, appropriate language could have been utilized to effectuate such a purpose." But that is exactly what the creator of the restrictions did. He specified with biblical clarity that the house was to be used only as a "private dwelling house." A dental office can in no manner of means be interpreted to mean a dwelling house. The extracting, replacing, grinding, and polishing of teeth have nothing in common with the maintenance, upkeep, harmony, comfort, love, and happiness associated with a family house.

The question involved here was so comprehensively and ably discussed by Chief Justice STERN when he was a judge of the Court of Common Pleas of Philadelphia County, that we reproduce here and cite with approval portions of his opinion in the case of Hogan v. Rose, 14 D. & C. 256: "The question in the present case, therefore, resolves itself into this: If the defendant Rose be allowed to use the proposed addition to his property as a suite for dental offices, is such use of such part of his building a use for a purpose other than that of a private dwelling house?

"In the opinion of the court, using the new addition to the building for purposes ...


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