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GERALD W. TATE AND SHIRLEY E. TATE v. JAMES W. MORAN (03/30/79)

decided: March 30, 1979.

GERALD W. TATE AND SHIRLEY E. TATE, HIS WIFE, LARRY GENE GULICK AND TONI M. GULICK, HIS WIFE, DONALD R. BERKICH AND JEAN H. BERKICH, HIS WIFE, ARTHUR SCHENCK AND TILLIE P. SCHENCK, HIS WIFE, HAROLD L. MARKLE AND JOAN C. MARKLE, HIS WIFE, CHARLES C. THACKER AND FREDA H. THACKER, HIS WIFE, JAMES B. MARCHICK AND BEVERLY A. MARCHICK, HIS WIFE, JOSEPH A. ROBINSON, JR. AND DIANE W. ROBINSON, HIS WIFE, APPELLANTS,
v.
JAMES W. MORAN, JR. AND BARBARA J. MORAN, HIS WIFE



No. 360 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Cumberland County, No. 57 Equity Term, 1976, Civil Action, Equity.

COUNSEL

John M. Eakin, Mechanicsburg, for appellants.

P. Richard Wagner of Mancke & Lightman, Harrisburg, for appellees.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Jacobs, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Price

[ 264 Pa. Super. Page 542]

The instant appeal is brought from an order of the court below overruling appellants' exceptions to a decree nisi entered on May 16, 1977. For the reasons stated herein, we affirm the order of the lower court.

The facts giving rise to this appeal are as follows. Appellees are the owners of a one-story dwelling situated in the housing development of Forrest Acres in Hampden Township, Cumberland County; appellants are the owners of

[ 264 Pa. Super. Page 543]

    various other homes in the same development. All lots in the development are subject, inter alia, to the following restrictive covenant.*fn1

"No residential lot as shown on said Plan of Lots shall be subdivided, nor shall there be more than one (1) residential structure erected thereon together with a garage building which shall be incident to the occupation and use of the lot for residential purposes. Said garage building shall be of not more than two (2) car capacity, nor over one (1) story in height and of construction conforming to the general architecture of the residential structure." (emphasis added).

On August 19, 1976, appellees applied for and received a building permit to erect a two-story addition to their present one-story dwelling. The addition would consist of a dining room, garage, storage area and work area on the first level, and two apartment units on the second level. On December 22, 1976, appellants filed a complaint in equity seeking a permanent injunction restraining appellees from erecting the proposed addition. Included in the complaint was a copy of the plans that appellees had submitted to the Hampden Township Commissioners on August 9 in order to secure their building permit. Appellants alleged as the basis of their complaint that the planned construction would violate both the "one (1) residential structure" and the two-car garage restrictions. Subsequent to a hearing held on March 21, 1977, the court below concluded that the construction would merely be an addition to the existing dwelling and as such would not violate the restriction against more than one structure, and that the plans, as modified by parol evidence, would not violate the two-car garage limitation. On May

[ 264 Pa. Super. Page 54416]

, 1977, the court entered a decree nisi enjoining appellees from constructing the proposed addition "until such time as the construction plans conform with the building restrictions." (Record at 93a). On June 6, 1977, appellants filed exceptions to the decree nisi which were overruled on October 3, 1977. Appellants appeal from that order, and allege that the court below erred: (1) in permitting appellees to contradict the building plans by parol evidence; and (2) in concluding that the proposed construction would not violate ...


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