Appeal from decree of Court of Common Pleas of Montgomery County, No. 65-4087, in case of Gilbert O. Schulman et al. v. William G. Serrill et al.
John T. Acton, with him Jenkins and Acton, for appellants.
Cassin W. Craig, with him Rosemary M. Flannery, and Wisler, Pearlstine, Talone & Gerber, and Wright, Spencer, Manning & Sagendorph, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Cohen dissents. Dissenting Opinion by Mr. Chief Justice Bell. Mr. Justice Musmanno joins in this dissenting opinion.
This is an action instituted by the appellants seeking to declare null and void certain building restrictions which have been in effect since 1904. In that year E. Clarence Miller and his wife, Mary W. Miller conveyed a portion of a larger tract to William H. Millard. The deed contained the following language:
"That no building to be erected upon said premises shall ever be used or occupied as a hotel, tavern, drinking saloon, blacksmith, carpenter or wheelwright shop, steam mill, tannery, slaughter house, skin dressing establishment, livery stable, glue, soap, candle or starch manufactory or for any other offensive purpose or occupation whatsoever. That no building except for residence purposes shall ever be erected upon said premises . . . ." (Emphasis added.)
The original Miller Tract, originally consisting of close to sixty acres, has been subsequently subdivided and currently consists of about sixty-six separate properties. The named defendants were the owners at the time the restriction was created, but the intervening defendants, thirty-seven in number, represent the real parties in interest. The tract is located in Cheltenham Township in Montgomery County, Pennsylvania, and is bounded by Cheltenham Avenue on the south, by York Road on the west, by Mountain Avenue on the east and by a line roughly parallel to Cheltenham Avenue approximately one thousand four hundred feet north of it.
The properties of the appellants form a portion of the southern perimeter along Cheltenham Avenue, approximately two blocks west of its intersection with York Road. Appellants, George Goodman and Fay Goodman, are owners of a little less than two acres occupied by a large dwelling house which is currently vacant and is situated between Sharpless Road and
Mountain Avenue, two of the streets which divide the Miller tract east and west. Appellant Schulman's property is approximately two acres of vacant land, located between 12th Street and Sharpless Road, just to the west of the Goodman property.
Naturally, there have been many changes in the tract and the surrounding area since the original deed of 1904. Besides the subdivision of the tract itself, the properties across York Road and Cheltenham Avenue have been developed with commercial and residential uses. Both of these streets have evolved from two lane country roads to major arterial highways, with Cheltenham Avenue, fronting on appellants' properties, having just recently been widened and an underpass constructed at its intersection with York Road. On January 4, 1965, Cheltenham Township enacted a new zoning ordinance. Under this ordinance the Cheltenham Avenue frontage of the Miller Tract on which plaintiffs' properties are located was rezoned from AA Residential to M-3 Multiple dwelling or office classification to a depth of 150 feet. It is appellants' contention that these various changes and developments should have resulted in a favorable decision declaring these restrictions in the deed null and void.
Appellants argue that because of the extensive change in conditions surrounding their properties, it would be improper for this covenant to be enforced. Their contention is two pronged, pointing to the nonresidential uses within the restricted tract and to the change in character of the neighborhood surrounding the tract. The nonresidential uses within the tract include three large homes which have been converted to offices, and one which is currently being used by a church. Plaintiffs assert that ...