decided: January 24, 1974.
FALCONE ET AL.
Appeal from decree of Court of Common Pleas of Montgomery County, No. 72-6380, in case of Desmond J. McTighe v. Anthony Falcone, Winifred W. Groff, Richard E. Hess, Jeane Griffith, E. M. Applebaugh, Jr., Philadelphia National Bank.
Desmond J. McTighe, in propria persona, for appellant.
James S. Kilpatrick, Jr., and John V. Hasson, with them Thomas J. Burke, Francis Shunk Brown, 3rd, and Haws & Burke, for Anthony Falcone, Jeane Griffith, and E. M. Applebaugh, Jr., appellees.
Sidney L. Wickenhaver, with him Montgomery, McCracken, Walker & Rhoads, for Winifred Groff and Philadelphia National Bank, appellees.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Dissenting Opinion by Mr. Justice Manderino. Mr. Justice Pomeroy joins in this dissenting opinion.
Author: Per Curiam
[ 455 Pa. Page 87]
Decree affirmed. Costs on appellant.
Dissenting Opinion by Mr. Justice Manderino:
I dissent. The majority affirms the trial court's decree dismissing the appellant's (plaintiff below) complaint. The appellant filed a complaint requesting injunctive relief to enjoin, inter alia, the appellees from constructing apartments or condominiums on certain parcels of land in violation of deed restrictions. The appellees filed preliminary objections demurring to the complaint. The trial court sustained the demurrer and dismissed the complaint as premature. I disagree.
The appellant alleged that written or oral agreements exist among the appellees concerning a plan to build apartments in violation of deed restrictions permitting only single dwellings.
"Where a doubt exists as to whether a demurrer should be sustained, this should be resolved in favor of overruling it." Clevenstein v. Rizzuto, 439 Pa. 397, 401, 266 A.2d 623, 625 (1970). The appellant should have the opportunity to prove that the agreements exist. Such agreements would constitute overt acts sufficient to justify injunctive relief. If the allegations in appellant's
[ 455 Pa. Page 88]
complaint are true, this action is not premature. Bennett v. Lane Homes, 369 Pa. 509, 87 A.2d 273 (1952) (injunctive relief granted where proposed plan would be violative of restrictive covenant in deed). The trial court's dismissal of the appellant's complaint should be reversed.
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