Appeal from decree of Court of Common Pleas No. 6 of Philadelphia County, Sept. T., 1966, No. 4439, in case of William S. Loeb, Nancy A. Loeb, Jerome Blum et al. v. Thomas H. Watkins, Louise Watkins, Artis T. Ray, Jr. et al.
Nochem S. Winnet, with him Edward Gerald Donnelly, Jr., Charles M. Solomon, and Fox, Rothschild, O'Brien & Frankel, for appellants.
Ragan A. Henry, with him James M. Carter, and Goodis, Greenfield, Narin & Mann, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Concurring Opinion by Mr. Justice O'Brien. Mr. Justice Roberts joins in this concurring opinion. Dissenting Opinion by Mr. Justice Cohen. Mr. Justice Jones and Mr. Justice Eagen join in this dissenting opinion.
The problem in this case is simply one of reading the English language, and importing meaning, plus enforceability, to its simple and plain words.
On March 18, 1922, a six-block tract of land in Philadelphia was divided by court decree into 31 parcels, numbered 1 to 31 inclusive. The owners entered into a restrictive agreement, duly recorded in the office of the recorder of deeds, which said, inter alia: ". . . there shall not at any time hereafter be erected or built on any of the thirty-one (31) lots or pieces of ground as shown by the said plan more than two (2) detached private dwelling houses . . ."
Jerome Balka, owner of one-third of Lot No. 27 erected on it, the land belonging to him, a private dwelling. The defendants in this case, Thomas H. Watkins, Louise Watkins, Artis T. Ray, Jr., and Vivian D. Ray, owners of another one-third of Lot 27, made it known that they were about to construct on their land two additional houses. The plaintiffs in this case, William S. Loeb, Nancy A. Loeb, Jerome Blum, Marilyn K. Blum, Aloysius F. Kurtz, and Marie J. Kurtz, adjoining landowners, who had taken title to their land with the same building restriction sought to be imposed on the defendants, notified, through their attorneys, the defendants that only one house could be erected on their land. The defendants did no building for three years and then resumed their project of erecting two additional homes on Lot 27. The plaintiffs, again through their attorneys, notified the defendants that such action would violate the restriction contained in their deeds.
When the defendants ignored this notice and proceeded to advance their building project, the plaintiffs filed a complaint in equity to enjoin construction of more than one house on Lot 27. The Court of Common Pleas of Philadelphia County, after hearing, dismissed the complaint and the plaintiffs appealed.
The lower court held that the restriction propounded by the defendants expired 25 years after its original promulgation, namely, in 1947. The court came to this conclusion because of a statement in the original restrictive agreement that the owners agreed, each with the other "that there shall not be for the period of twenty-five years from the date hereof erected or built upon any part of the hereinbefore described lots of ground any buildings or buildings improvement or improvements designed for use or to be used for other than strictly private or residential purposes without abridging or restricting in any way the general language used it is understood that the words strictly private residential purposes shall not include hotel apartment house or flat purposes nor shall any building hereafter to be erected thereon during said restricted period of twenty-five years be converted from strictly residential to other purposes or uses . . .".
This part of the restrictive covenant obviously describes the type of construction permitted on the land and specifically excludes hotel apartment houses and flats. However, immediately following the 25-year proviso, there appears this plate-glass-clear language: "ALSO that there shall not at any time hereafter be erected or built on any of the thirty-one lots of pieces of ground as shown by the said plan more than two detached private dwelling houses . . ."
Attention is specifically directed to the capital letters ALSO. The parties emphasized by the use of ALSO that the two-dwelling ...