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PLYMOUTH WOODS CORPORATION v. MAXWELL. (05/24/62)

May 24, 1962

PLYMOUTH WOODS CORPORATION, APPELLANT,
v.
MAXWELL.



Appeal, No. 191, Jan. T., 1962, from order of Court of Common Pleas of Delaware County, June T., 1961, No. 1531, in case of Plymouth Woods Corporation v. Homer C. Maxwell and Bette A. Maxwell, his wife. Order affirmed.

COUNSEL

Robert W. Beatty, with him Butler, Beatty, Greer & Johnson, for appellant.

No argument was made nor brief submitted for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Musmanno

[ 407 Pa. Page 540]

OPINION BY MR. JUSTICE MUSMANNO

The defendants in this case, Homer C. and Bette A. Maxwell, placed a For Sale sign on their property in Rosemont, Delaware County. Their predecessor in title, the Plymouth Woods Corporation, has asked the Court of Common Pleas of Delaware County to enjoin the exhibition of such a sign. At first blush this might seem to be a high-handed demand since the owners of property have the right to advertise the sale of their property as they see fit.

Plymouth, however, seeks an injunction to prohibit the sign planting because of a provision in the agreement of sale between Plymouth and the Maxwells executed prior to the actual sale. The provision in question read: "Buyer shall not place any sign, fence, or other structure upon the premises without first obtaining the written consent of Seller. Seller is hereby irrevocably authorized and empowered by Buyer to enter upon said premises before or after settlement and, with or without any process of law, forthwith remove any signs, fences, or other structure placed upon the said premises without Seller's written consent. This provision shall survive settlement hereunder and, at Seller's option may be included as a restriction in Buyer's deed."

The settlement occurred on November 6, 1959, but while the deed conveying the property did not include the quoted covenant, this omission would not cancel out the restriction since the agreement specifically stated that the pertinent provision would survive the settlement. (Dick v. McWilliams, 291 Pa. 165.)

[ 407 Pa. Page 541]

In December, 1960, the interdicted sign appeared on the lawn of the Maxwell property. Plymouth ordered the Maxwells to remove it and when they refused, it filed a complaint in equity asking for an injunction. The defendants filed preliminary objections, averring, inter alia, that the complaint failed to state a cause of action. The court below sustained the objections and dismissed the complaint. The plaintiff appealed.

In dismissing the complaint, the Court below said: "The restriction as to signs, fences and other structures not being placed on the premises without first obtaining the written consent of the Seller is exceptionally broad and it contains no standard by which the consent of plaintiff is to be granted or withheld. Plaintiff is the sole judge of whether any improvement may be made to the property after its purchase. The lack of any reasonable or practical standard leaves the property owner without any redress or appeal in the event of denial of consent. The property owner is helpless under the strict terms of the restriction."

In Harmon v. Burow, 263 Pa. 188, we held that such restrictions, even though subject to no standard spelling out of reasonableness are not per se to be declared void and unenforcible: "The provision and restriction that 'no structure of any kind shall be erected or permitted upon said premises or any part thereof, unless the plans for the same shall have been first submitted to and approved by William E. Harmon, one of the said parties of the first part, or his legal representatives,' is a covenant which runs with the land. It is a contract made by the parties, their heirs, executors, ...


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