Appeal from decree of Court of Common Pleas of Montgomery County, No. 62-11444, in case of Moe Henry Hankin et al. v. George Goodman et al.
D. Stewart McElhone, for appellants.
George C. Corson, Jr., with him Wright, Spencer, Manning & Sagendorph, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Roberts concurs in the result. Concurring Opinion by Mr. Justice Cohen.
On August 23, 1960, George and Faye Goodman sold to plaintiffs ten acres of a seventy-three acre tract of land located in Montgomery County, Pennsylvania. As part of the sale, the Goodmans agreed to certain restrictions on the use of the sixty-three acres they retained. The agreement containing the restrictions provided as follows: "Whereas, the parties hereto have heretofore on the 2nd day of December 1959, entered into an agreement of sale whereby Grantors agreed to convey to Grantees a certain lot or piece of ground situate in Upper Moreland Township, Montgomery County, Pennsylvania, containing ten (10) acres, more particularly described in a deed from Grantors to Grantees dated the same day as this agreement and intended to be forthwith recorded at Norristown and wherein the Grantors further agreed in said Agreement of Sale to impose certain restrictions on the remainder of the 73.566 acre tract owned by Grantors, out of which the said ten (10) acres is being conveyed and, . . . Whereas it is the desire of the parties hereto to herein set forth the aforementioned restrictions
in full detail, Now therefore: . . . Grantors for themselves, their heirs and assigns, agree to and with the Grantees, their heirs and assigns, that the following restrictions be placed upon the remainder of the approximately 73.566 acres tract, . . . . 1. On the land South of Transac Avenue to a depth of three hundred (300) feet westwardly from the westerly side of Eastern Road, any buildings or improvements to be constructed shall be limited to one story with a maximum height of fifteen (15) feet. 2. On the aforesaid remainder of the 73.566 acre tract, no building or improvement shall be constructed for or used for the purpose of a motor lodge, motel, hotel, inn, or any similar use . . . ."
On November 9, 1962, the Goodmans granted permission to Fiesta Motor Inn to erect an advertising sign on land described by both of the use restrictions in the above agreement. Thereafter, Capital Sign Company erected a sign more than fifteen feet high advertising the Fiesta Motor Inn.
On December 4, 1962, the plaintiffs filed a complaint in equity seeking to enjoin the Goodmans, Fiesta Motor Inn and Capital Sign Company from erecting the sign, which plaintiffs consider a violation of both use restrictions in the above agreement.
On March 28, 1963, the chancellor sustained defendants' preliminary objections which maintained that the complaint failed to state a cause of action because the advertising sign does not violate either of the use restrictions. The complaint was dismissed and an appeal followed to this Court.
A majority of this Court reversed the chancellor because his determination that the advertising sign does not violate the restrictions, based on the pleadings alone, was inadequately grounded. The case was ...