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M. FRANK RUSH AND RENEE RUSH ET AL. v. AIRPORT COMMERCIAL PROPERTIES (12/30/76)

decided: December 30, 1976.

M. FRANK RUSH AND RENEE RUSH ET AL.
v.
AIRPORT COMMERCIAL PROPERTIES, INC., BRIAR PROPERTIES, INC., BRIAR HOUSE CONDOMINIUM ASSN., INC. AND CHELTENHAM TOWNSHIP BOARD OF COMMISSIONERS. M. FRANK RUSH ET AL., APPELLANTS



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of M. Frank Rush and Renee Rush, et al. v. Airport Commercial Properties, Inc., Briar Properties, Inc., Briar House Condominium Association, Inc. and Cheltenham Township Board of Commissioners, No. 76-00871.

COUNSEL

Carl K. Zucker, with him Reuben E. Cohen, and Cohen, Shapiro, Polisher, Shiekman and Cohen, for appellants.

Morris Gerber and John P. Gregg, with them Marc D. Jonas; Gerber, Maerz & Wilenzik; Samuel H. High, Jr. ; and High, Swartz, Roberts & Seidel, for appellees.

Judges Mencer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 28 Pa. Commw. Page 52]

This is an appeal from an order of the Court of Common Pleas of Montgomery County granting the defendant-appellees' preliminary objections and dismissing the plaintiff-appellants' complaint in equity which sought relief in the nature of a preliminary injunction. Our scope of review here is limited to a determination of whether or not the lower court committed an error of law or a manifest abuse of discretion. Groff v. Borough of Sellersville, 12 Pa. Commonwealth Ct. 315, 314 A.2d 328 (1974). We believe that the action of the lower court was based upon adequate grounds and sound legal principles, and we, therefore, affirm that action and dismiss this appeal on the able opinion of Judge Smillie, which follows:

"Plaintiffs, individual property owners and a civic association in Cheltenham Township, Montgomery County, Pennsylvania, seek issuance of a preliminary injunction to enjoin defendants from constructing any structure on certain ground presently owned by defendant, Briar House Condominium Association, Inc.

"The property, located adjacent to land owned by certain plaintiffs, was conveyed to defendant, Briar Corporation, Inc., on August 3, 1971 from defendant, Airport Commercial Properties, Inc. On August 4, 1971, in accordance with the Pennsylvania Unit Property

[ 28 Pa. Commw. Page 53]

Act, Briar Properties, Inc. recorded declaration of condominium, code of regulations, and declaration plan, creating Briar House Condominium Association, Inc., present owner.

"On April 22, 1970, defendant, Cheltenham Township Board of Commissioners (Commissioners) approved a subdivision plan, development plan 70-4, providing in part for a 130 foot planted buffer strip between plaintiffs' and defendants' land. On July 9, 1970, the plan was recorded in the Office of Recorder of Deeds, Montgomery County, Pennsylvania, Plan Book A-17, page 7. On July 22, 1970, a building permit (Number D4741) was issued which authorized construction of a 99-unit apartment house on defendant's property. Plaintiffs appealed issuance of the building permit to the Cheltenham Township Zoning Hearing Board.

"On January 25, 1971, in consideration of plaintiffs' withdrawal [sic] of appeal to Zoning Hearing Board, Airport Commercial Properties, Inc., agreed, inter alia, to:

(1) Retain the area on the westerly side to the rear of the rear parking area in a natural state, to be marked upon a cite [sic] plan and to cover and maintain same with earth to ...


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