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SICILIANO v. MISLER (05/04/60)

May 4, 1960

SICILIANO
v.
MISLER, APPELLANT.



Appeals, Nos. 44, 48 and 50, March T., 1960, from decree of Court of Common Pleas of Cambria County, Sept. T., 1958, No. 9, in case of John Siciliano, Jr. et al. v. Isadore Misler et al. Decree reversed.

COUNSEL

Edward J. Harkins, with him Gerald K. Gibson, for appellants.

George M. Spence, with him Spence, Custer, Saylor & Wolfe, for appellees.

Before Jones, C.j., Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Bok

[ 399 Pa. Page 407]

OPINION BY MR. JUSTICE BOK.

The case involves the interpretation of the wording of a real estate restriction.

Suburban Shops, Inc., owned land in Lower Yoder Township, Cambria County, and was trying to develop it into a shopping center. In order to induce the American Stores Company to build a market there, Suburban offered to restrict the rest of the land that it owned near by against use for stores and parking. This being satisfactory, Siciliano, Suburban's president, bought a piece of land and leased it to American in April, 1953, and a store and parking lot were later put on it.

In July, 1954, Suburban created a Declaration of Restrictions covering other land that it owned in the area and recorded it. This declaration contained the

[ 399 Pa. Page 408]

    following provision, which is the root of the trouble now: "No part of the premises hereinafter described shall at any time hereafter be used for the operation of, occupied by, or have constructed thereon a store or market of the kind and character usually and customarily maintained and designated as a super market for the sale, at retail to the public, of raw or processed food products which are not consumed on the premises, or the parking of motor vehicles for the convenience of the patrons of such a store or market;..."

Between 1955 and 1957 appellant defendants bought certain neighboring land from people named Willett which was outside the restricted area and hence was unrestricted. Appellants then built a super market on this land. At the same time they bought an immediately contiguous tract which, however, lay within the restricted area and hence was restricted against stores and parking. They had this area covered with a hard surface and their patrons have been parking there, whether casually or by design is of no moment.

Appellees protested and then filed suit in equity. The lower court upheld the restriction against the defendants and enjoined them from allowing their market patrons to park on their restricted land and from employing ...


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