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LEH ET AL. v. BURKE ET AL. (12/11/74)

decided: December 11, 1974.

LEH ET AL.
v.
BURKE ET AL., APPELLANTS



Appeals from order of Court of Common Pleas of Lehigh County, April T., 1972, No. 391, in case of John Henry Leh, John Leh, II, John Leh, II, Attorney-in-fact for Andrew K. Leh and David W. Leh, Co-Partners Trading and Doing Business as Leh Brothers v. Ronald K. Burke and Dorothy J. Burke, his wife, and Harold A. Lamparelli and Edith Lamparelli, his wife, Defendants, and Margaret B. Michell, widow, Additional Defendant.

COUNSEL

Jacob S. Kolb, with him Kolb, Holland, Antonelli & Heffner, for appellant, at No. 912.

Henry S. Perkin, with him Frederick N. Nabhan, and Nabhan & Nabhan, for appellants, at No. 940.

Arthur T. Gillespie, Jr., with him William F. Kocher, Jr., and Gillespie & Gillespie, for appellees, at Nos. 912 and 940.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 231 Pa. Super. Page 101]

This appeal concerns a covenant in a deed from the plaintiffs Leh Brothers to the additional defendant Margaret Michell requiring the grantee and her assigns to pay a proportionate share of the expenses incurred in paving a road abutting the property conveyed. We conclude that Mrs. Michell's subsequent grantees, the Burkes, are bound by the covenant by virtue of their ownership of the abutting parcel of land at the time the road was constructed and therefore must pay the assessment. We find that appellant Mrs. Michell, however, who had transferred title and parted with all interest in the property prior to the commencement of construction, cannot be held liable for any of the costs assessed.

The transactions between the parties to this appeal appear from the record as follows: Plaintiffs-appellees compose a partnership, Leh Brothers, which engages in the business of developing land. On May 8, 1961, Leh Brothers conveyed a parcel of land, part of a larger tract destined for further subdivision, to Mr. and Mrs. Michell by general warranty deed. The deed indicated that the parcel was composed of two lots, or purparts, both being distinctly described in the deed. Purpart number one consisted of the southern half of the parcel

[ 231 Pa. Super. Page 102]

    and purpart number two the northern half. The deed pictured the entire property as being bounded on the east by Bandbury Road, which was in existence on the date of the transfer to the Michells, and on the north by Greenwood Road, which although proposed was not constructed at that time. Due to the division of the property only purpart two actually fronted on the area reserved for the proposed Greenwood Road. See appendix.

Following the description of purpart one there is included in the deed a list of lettered paragraphs defining the building restrictions to which the property was made subject and two unlettered paragraphs reserving a right of way for Tuck Drive, a roadway along the southern boundary of the property, and an easement for utility lines. The description of purpart two is also followed by a lettered list of 5 building restrictions, virtually identical to the prior list, and an unlettered paragraph providing "[i]n the event that the surface of Greenwood Road North should ever be paved, or in the event that water lines should be placed thereunder, the Grantees, their heirs or successors in title, shall bear their proportionate share of the expense of such improvements." The deed was immediately recorded.

Subsequent to the death of Mr. Michell, Margaret Michell conveyed the two lots separately, purpart one being conveyed to Mr. and Mrs. Lamparelli and purpart two to Mr. and Mrs. Burke. Both deeds were specially warranted, both contained the description of their respective lots and referred to the recorded Leh-Michell deed. Neither deed contained any reservations or restrictions such as those in the prior deed, nor was there any mention of the covenant to share the expense of the road construction. The Burkes received their lot as part of a land trading arrangement which was negotiated through another individual. Consequently they did not deal directly with Mrs. Michell nor were they represented

[ 231 Pa. Super. Page 103]

    by their own attorney. The Burkes, therefore, never searched their title and never knew of the covenant or any of the other restrictions in their deed. The Lamparellis were informed by their attorney of those restrictions and reservations specifically affecting their own lot, including the easement for Tuck Drive, but they also were unaware of the covenant concerning the construction of Greenwood Road.

After Margaret Michell had conveyed away all her interest in the original parcel, Leh Brothers began to take steps to begin construction of Greenwood Road. The Burkes were apprised at various stages of the progress of the plans. Eventually a road was completed meeting the township's requirements and the Burkes were given notice of their share of the cost. Upon their refusal to pay the amount attributed to them, Leh Brothers instituted suit against both the Burkes and the Lamparellis. Margaret Michell was joined as an additional defendant by the original defendants. The case was heard by a judge without a jury who found for plaintiffs Leh Brothers against the Burkes in the amount of $3,855.20. It was further found that the defendant Burkes were entitled to recover any sums paid on the judgment from the additional defendant Margaret Michell. Finally, the court found in favor of the defendant Lamparellis. Exceptions filed by the Burkes and Mrs. Michell were dismissed by the court en banc and both parties appeal.

On appeal the Burkes' first contention is that the covenant is unenforceable against them because its terms are so vague and undefined as to render reasonable interpretation and a fair assessment of damages impossible. It is maintained that the requirement of the covenant that the grantees pay their proportionate share of the cost of paving the surface of the road is ambiguous since all ...


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