Appeal, No. 385, Jan. T., 1960, from decree of Court of Common Pleas No. 1 of Philadelphia County, March T., 1958, No. 2568, in case of Sandyford Park Civic Association et al. v. John H. Lunnemann et ux. Decree affirmed; reargument refused June 12, 1961.
Earl Jay Gratz, for appellants.
Charles S. Schermer, with him Ellis C. Schatz, for appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE BELL.
Plaintiffs filed a complaint in Equity to enjoin the erection of a separate detached garage in (alleged) violation of a building restriction. This case is before this Court on appeal for the second time. In Sandyford Park Civic Association v. Lunnemann, 396 Pa. 537, 152 A.2d 898, we reversed the Chancellor's decree stating (page 542): "Because the record in this case is not clear, and there is doubt whether adequate evidence exists to support the Chancellor's aforesaid finding of fact, we shall remand the case to the lower Court with directions to take further evidence and to make findings and enter a Decree consistent with the evidence and with this Opinion."
After remand, further hearings were held by the Chancellor who filed supplemental findings of fact, conclusions of law and an adjudication, and entered a decree nisi enjoining erection of the proposed garage. Defendants filed exceptions to this decree and after argument before the Court en banc the exceptions were dismissed and the decree nisi was adopted as the final decree of the Court. From this final decree defendants took this appeal.
The evidence may be summarized as follows:
Defendants, John and Inez Lunnemann, own as tenants by the entireties, a twin or semi-detached dwelling house at 7430 Revere Street, Philadelphia. Defendants' home is part of a development of 46 similar houses bounded on the north by Roosevelt Boulevard, on the east by Sandyford Avenue, on the south by Revere Street and on the west by Guilford Street. Each of the 46 two-story one-family houses contains a garage in the rear of the basement as an integral part of the dwelling. Immediately adjoining the houses on the rear are driveways providing ingress and egress for the basement garages. Beyond the driveways, and within the perimeter they form, is a considerable open area,
principally improved with lawns, gardens and shrubbery, although some owners have blacktopped their part of the ground, and one has put up a shed which is used as a play house for children.
The development was laid out, and the houses were built by Max Korman, the common grantor, who in his application for a zoning permit from the City of Philadelphia sought and obtained permission to "erect 46 2 story residences (1 family) with basement garages." A plot plan was filed with and as part ...