No. 710 and 711 Oct. Term 1979, Appeal from the Order of the Court of Common Pleas of Pike County, Civil Div., Nos. 5 and 6 of March 1978.
Jack G. Linshaw, Milford, for appellants.
Carl Leventhal, Hawley, for appellees.
Spaeth, Hester and Cavanaugh, JJ.
[ 279 Pa. Super. Page 315]
This appeal arises from an order sustaining preliminary objections to two complaints in equity. The complaints are substantially identical and were filed on April 13, 1978, by the Shohola Township Board of Supervisors and John and Gudrun Quinn, one against George and Madeline Bishop, the other against James and Florence White.
The allegations on the basis of which the Quinns seek relief may be summarized as follows. The Quinns are owners of a campsite in Shohola Falls Trails End, a subdivision that had been established for campsites; the Bishops and Whites are owners of other campsites in the subdivision. The deeds of each of these owners is restricted explicitly by a declaration of restrictions that had been previously recorded by Greenbriar Development Company, the developer and original owner of the subdivision. One of the restrictions in the declaration states that "[n]o structure of any type shall
[ 279 Pa. Super. Page 316]
be erected, placed or permitted to remain on any campsite." The Bishops have violated this restriction by erecting on their campsite a building, thirty feet by eight feet, attached to a trailer; the Whites have violated it by erecting on their campsite a frame construction twenty feet by eight and a half feet, a shed ten feet by seven feet, and a trailer twenty feet by seven and a half feet. Both the Bishops and the Whites have been notified in accordance with the declaration of restrictions, but they have not removed the offending structures. As a result, the Quinns, exercising their rights under the declaration of restrictions, seek injunctive relief.
The allegations on the basis of which the Shohola Township Board of Supervisors seeks relief may be summarized as follows. On July 7, 1972 (a date prior to the purchase of campsites by any of the property owners involved in this suit but subsequent to the recording of the declaration of restrictions), the Greenbriar Development Company applied to the Board of Supervisors for a zoning variance to permit the development of Shohola Falls Trails End as a subdivision for campsites. The Board granted the variance but on the condition that the density of the subdivision not exceed six campsites per acre, that no campsite be smaller than 4,500 square feet, that all lots in the subdivision be subject to the recorded declaration of restrictions, and that the development company post a $2,500 bond to ensure the enforcement of the declaration of restrictions.*fn1 By erecting structures on their campsites and thus violating the declaration of restrictions, the Bishops and the Whites also violated the conditions imposed by the Board of Supervisors on its grant of a variance to Greenbriar. As a result, the Board seeks injunctive relief.
[ 279 Pa. Super. Page 317]
The Bishops and the Whites filed preliminary objections to the complaints, alleging 1) that the Board of Supervisors could not enforce the declaration of restrictions and therefore under Pa.R.C.P. 2002(a) was not a real party in interest, and 2) that the Board's sole remedy for a violation of the declaration of restrictions was to call the bond posted by Greenbriar.*fn2 The Board and the Quinns filed answers to the preliminary objections, maintaining that the Board had "standing to enforce restrictive covenants which formed a part of the Variance" granted to Greenbriar, and denying that the Board's sole remedy was to call the bond posted by Greenbriar. Briefs on the preliminary objections were submitted, and on January 31, 1979, after oral argument, the lower court sustained the objections and ordered the Board removed from the record as a party plaintiff.*fn3 The Board then filed two separate appeals in the Commonwealth Court, one from the lower court's order removing it from the suit against the Bishops, the other from the order removing it from the suit against the Whites. The Bishops filed a motion to quash the Board's appeal in the suit against them. On March 29, 1979, both of the Board's appeals and the Bishops' motion to quash were transferred from the Commonwealth Court to this court pursuant to 42 Pa.C.S.A. § 5103(a) (1979 Pamphlet). The appeals were consolidated, and on April 19, 1979, this court denied the motion to quash.
In arguing that the Board is not a real party in interest, the Bishops and the Whites ignore material allegations in the complaints. While we might agree that the Board could not bring suit to enforce the declaration of ...