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LUSTIG v. FACCIOLO. (03/19/63)

March 19, 1963

LUSTIG, APPELLANT,
v.
FACCIOLO.



Appeal, No. 65, Jan. T., 1963, from decree of Court of Common Pleas of Delaware County, June T., 1959, No. 3205, in case of Morton Lustig, Irma S. Lustig, William J. Butterfield et al. v. Frank Facciolo and William F. Barrett. Decree affirmed.

COUNSEL

Melvin E. Caine, with him Angelo A. DiPasqua, and Caine & DiPasqua, for appellants.

Guy G. deFuria, with him John R. Graham, and deFuria, Larkin and deFuria, and Crawford, Graham and Johnson, for appellees.

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

Author: Musmanno

[ 410 Pa. Page 108]

OPINION BY MR. JUSTICE MUSMANNO

The plaintiffs (eleven in number) purchased, prior to February, 1953, houses from the defendants who owned a plot of land known as the Rose Tree Woods in Marple Township, Delaware County. The plaintiffs' houses are located on Boxwood Drive, one street to the rear of Sproul Road, on which, at one time, the defendants intended to build dwellings.

In June, 1959, Marple Township, at the request of the defendants, rezoned the lots fronting on Sproul Road to "B" business, thus permitting the defendants to devote these lots to commercial and business uses. The plaintiffs filed a complaint in equity asking the court to impose an implied negative covenant upon the Sproul Road properties, limiting their use to residential purposes alone. The court dismissed the complaint and the plaintiffs appealed.

[ 410 Pa. Page 109]

It is the contention of the plaintiffs that the defendants, through their salesmen, assured them that the Sproul Road lots would be sold only for homes, but whatever assurances were orally made in this respect were blotted out by the provision in the agreements of sale, namely, "No dealing between the parties or custom shall be permitted to contradict, vary, add to or modify the terms hereof." No writing passing to the plaintiffs from the defendants contained the restriction argued for by the plaintiffs.

The plaintiffs advance another reason for assuming that the defendants guaranteed to them that Sproul Road would be graced only with residences and not degraded with commercial establishments. The map in the sample house, located at Sproul Road and Paxon Hollow Road, showed, the plaintiffs maintain, that it was to be dedicated to residences. This conclusion is predicated upon the fact that some of the lots on Sproul Road on the map, which were intended to be residences, were marked by thumb tacks, and it was the custom of the trade, the plaintiffs assert, that such marking indicated the lots had been sold. It developed that the lots had not been sold and the plaintiffs submit this discrepancy as proof of fraud on the part of the defendants.

The argument is neither persuasive nor convincing. The use of thumb tacks would be a rather loose way to fasten liability on anybody, absent any express understanding to be so bound. Thumb tacks are so common an object, so widespread in use, so undenotative of purpose, except to hold flimsy substances together, that they cannot, per se, authoritatively bespeak legal obligation. For the plaintiffs to prevail with this reasoning, they needed to show, which they did not show, that the use of ...


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