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STEVEN SEGAL AND DELL SEGAL MARK L. KAY AND JOAN S. KAY MYRTLE K. DOBBS v. SIM CORPORATION (10/19/79)

filed: October 19, 1979.

STEVEN SEGAL AND DELL SEGAL: MARK L. KAY AND JOAN S. KAY: MYRTLE K. DOBBS, JOHN C. DOBBS AND PHYLLIS DOBBS; LEONARD B. EDELSTEIN AND LOIS J. EDELSTEIN; PAUL SULLIVAN AND JULIA SULLIVAN, APPELLANTS,
v.
SIM CORPORATION



No. 780 October Term, 1978, Appeal from the Judgment of the Court of Common Pleas of Montgomery County, Civil Action, Equity, at No. 73-08348

COUNSEL

Desmond J. McTighe, Norristown, for appellants.

Joseph S. Moloznik, Philadelphia, for appellee.

Van der Voort, Watkins and Montgomery, JJ. Van der Voort, J., files a dissenting opinion.

Author: Montgomery

[ 271 Pa. Super. Page 161]

The Appellants, a group of landowners in Montgomery County, Pennsylvania, instituted the instant equity action to enjoin the construction of multiple family structures by the Appellee, on its land in the Appellants' neighborhood. Hearings were held on January 18, 19 and 20, 1977 in the lower court. Thereafter, all parties filed detailed proposed findings of fact and conclusions of law. On July 27, 1977, the Chancellor issued an Adjudication and Decree Nisi, dismissing the Appellants' Complaint. Timely exceptions were filed and on December 19, 1977, after argument and upon consideration of briefs filed by counsel, the Court En Banc dismissed Appellants' exceptions and adopted the Chancellor's Decree Nisi as the final Decree. This appeal followed.

[ 271 Pa. Super. Page 162]

The Appellants and the Appellee derived title to their tracts of land from the same common ancestors in title. Over the course of several years between 1905 and 1907, by various deeds, landowners of the properties in issue in this case placed use restrictions on the land. Some restrictions were purportedly nullified by later restrictions, and then re-established by substantially similar later covenants. However, solely for the purposes of the resolution of this appeal it may be assumed that one or more of those restrictions still exists and is or are enforceable with respect to lands in the area which it or they apply. For purposes of this Opinion, it can be stated that the restrictions in question prohibit the use of particular areas of the land for any structure which is injurious to the character of a neighborhood of what were termed "high grade residences". Further, for purposes of this appeal, it may be assumed that the Appellants are the owners of substantial residences of the type which the said restrictions sought to protect.

The Chancellor held that restrictions in issue were vague, mischievous, burdensome and unenforceable as a matter of law. Moreover, the Chancellor held that the Appellants had entirely failed to prove their case especially since none of the restrictions could be held to be specifically applicable to Appellee's land. Since we agree with the latter holding of the lower court, we conclude on that basis alone that the final Decree of the lower court must be affirmed.

The record shows that the Chancellor, after conducting extensive hearings, prepared a comprehensive Adjudication. Each of the forty-one (41) findings of fact is well supported in the testimony and documents which make up the evidence of record. The Court En Banc in Montgomery County considered the Appellant's exceptions to the Adjudication, and dismissed them. It is firmly established in our law that the findings of fact by a chancellor, approved by a court en banc, have all the force and effect of a jury's verdict and will not be reversed on appeal unless a review of the record reveals that they are unsupported by the evidence or predicated upon erroneous inferences and deductions or errors of law. Payne v. Kassab, 468 Pa. 226, 361 A.2d 263

[ 271 Pa. Super. Page 163]

(1976); Jacobson & Co. v. International Environmental Corp., 427 Pa. 439, 235 A.2d 612 (1967); Peters v. Davis, 426 Pa. 231, 231 A.2d 748 (1967). On the record before this Court, it is clear that the Chancellor had a clear basis to conclude that insufficient evidence was presented by Appellants in the hearings before him, and we can discern no erroneous inferences or deductions, nor errors of law in his conclusions, nor that of the Court En Banc in that regard. Thus, in a highly precise manner, the lower court painstakingly traced each of the intricate restrictions in issue, and correctly found each to be inapplicable to the specific land upon which Appellee has planned to build. Further, the Chancellor found the restrictions, as a group, to be inadequate to support Appellants' claims of reciprocal implied covenants showing a "community development". Moreover, the lower court found that Appellants had presented no evidence whatever at trial, as alleged in their Complaint, that the proposed development of the property by Appellee would unjustly enrich the Appellee, overcrowd the land, pollute the air, constitute any invasion of privacy, violate the Pennsylvania Constitution or the National Environmental Policy Act, constitute a nuisance or trespass, or violate Appellants' Civil Rights.

We have, for the purposes of this appeal, assumed that the covenants in question are legally valid enforceable restrictions on the use of the land to which they apply. We have made that assumption only because we find that the Chancellor was undoubtedly correct in his conclusion that the Appellants had completely failed to carry their burden of proof in the case. That assumption cannot be taken as an implication that we view as incorrect his finding that the restrictions in question were completely unenforceable under applicable law. It is simply ...


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