Appeal from judgment of Court of Common Pleas of Montgomery County, No. 71-4765, in case of Alvin N. Shapiro v. Albert Levin and Tema G. Levin.
Milton S. Lazaroff, with him Howard I. Rubin, and Techner, Rubin & Shapiro, for appellant.
Neil Hurowitz, with him Moss, Rounick & Hurowitz, for appellees.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Hoffman, J.
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Appellant instituted this declaratory judgment action*fn1 in order to determine whether the erection of an
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eight unit*fn2 townhouse-apartment complex would violate a covenant created by a 1902 deed which provides "that the . . . owners and occupiers of [certain] lots of ground . . . shall not at any time hereafter erect more than one dwelling house which shall cost at least four thousand five hundred ($4,500.00) to construct and one stable appurtenant thereto . . . ."*fn3 The lower court held that the restriction does prohibit the proposed construction and We affirm.
A simple restriction to a dwelling house and outbuildings has been held not to prohibit buildings designed for use as multiple family dwellings. In Johnson v. Jones, 244 Pa. 386, 90 A. 649 (1914), the Court held that a restriction prohibiting the erection of more than one dwelling house did not prohibit the erection
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of an apartment building containing eight 3 bedroom flats. Similarly, the Court held in Hamnett v. Born, 247 Pa. 418, 93 A. 505 (1915) that the same words did not prohibit the erection of a building with multiple dwelling units. The Court stated that "the fact that the building proposed is a single structure intended for dwelling purposes brings it within what is permitted by the restriction; the fact that it is intended to accommodate a number of families does not bring it within what is forbidden." 247 Pa. 418, 420. In Rohrer v. Trafford Real Estate Co., 259 Pa. 297, 102 A. 1050 (1918), construing a restriction allowing only "a single dwelling house" the Court held again that such a restriction did not prevent the erection of a building with multiple living units, and that so long as the proposed building was a single structure, it would not be in violation of the restriction. The Court noted that if the grantor had intended to limit the permissible structures to "single family dwellings", the intent could have been expressed with those particular words. See generally 14 A.L.R. 2d 1376.
In Bennett v. Lane Homes Co., 369 Pa. 509, 87 A.2d 273 (1952) the Court held that the erection of a 34 unit apartment building would violate a restriction which provided that "not more than one house, same to be detached or semi-detached, and private garage to be used in connection therewith shall ever be erected on each lot." In that case, the Court deemed the descriptive phrase "and private garage to be used in connection therewith" in addition to the requirement of detached or semi-detached houses as dispositive of the grantor's intention to limit permissible buildings to single family rather than multiple family dwelling ...