June 11, 1982
DESMOND J. MCTIGHE, WALTER H. NICOLAI, JR., NANCY C. NICOLAI, ALBERT G. DEAN, AND EFFIE W. DEAN, APPELLANTS
THOMAS J. BURKE, NICHOLAS FALCONE, THE BRYN MAWR TRUST COMPANY, EXECUTORS OF THE ESTATE OF ANTHONY P. FALCONE, DECEASED
No. 2641 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Montgomery County, Civil Action, Equity, at No. 80-10436.
Before Cavanaugh, McEWEN, and Hoffman, JJ.
Appellants contend that the lower court erred in dismissing their complaint because appellees' proposed development of two adjoining parcels of land would violate certain express restrictive covenants contained in appellees' chain of title. We disagree and, accordingly, affirm the order of the court below.
In 1980, appellants, owners of three residences on North Wynnewood Avenue in Narberth, commenced an action in equity to enjoin appellees, personal representatives of a deceased Wynnewood Avenue property owner, from demolishing the decedent's residence, subdividing his property, installing a circular driveway, and constructing ten single-family dwellings. Appellants alleged that appellees' proposal would destroy the uniquely private and desirable atmosphere that had been achieved through the property owners' long-standing adherence to an unrecorded plan for development and through assorted recorded restrictive covenants that limited both the use of their properties and the structures that could be erected there, and that the proposal would violate restrictions in appellees' chain of title.*fn1 Appellees filed a preliminary objection in the nature of a demurrer, asserting that none of the restrictions expressly limited the number of residences that could be built upon the premises. Following oral argument, the lower court sustained the demurrer and dismissed the complaint, prompting this appeal.
Appellants contend that the deed restrictions in appellees' chain of title permit the construction of only one dwelling per lot.*fn2 We disagree. "The problem in this case is simply one of reading the English language, and importing meaning, plus enforceability, to its simple and plain words." Loeb v. Watkins, 428 Pa. 480, 482, 240 A.2d 513, 514 (1968) (plurality opinion). In discharging that task, we are guided by several well established principles:
[R]estrictions on the use of land are not favored by the law because they are an interference with an owner's free and full enjoyment of his property; that nothing will be deemed a violation of a restriction that is not in plain disregard of its express words; that there are no implied rights arising from a restriction which the courts will recognize; that a restriction is not to be extended or enlarged by implication; that every restriction will be construed most strictly against the grantor and every doubt and ambiguity in its language resolved in favor of the owner. Restrictions limiting the right of the owner to deal with his land as he may desire fall naturally into two distinct classes, the one consisting of restrictions on the type and number of buildings to be erected thereon, and the other on the subsequent use of such buildings. The restrictions in the former class are concerned with the physical aspect or external appearance of the buildings, those in the latter class with the purposes for which the buildings are used, the nature of their occupancy, and the operations conducted therein as affecting the health, welfare and comfort of the neighbors. A building restriction and use restriction are wholly independent of one another, and, in view of the legal principles above stated the one is not to be extended so as to include the other unless the intention so to do is expressly and plainly stated; to doubt is to deny enforcement.
Jones v. Park Lane For Convalescents, Inc., 384 Pa. 268, 272-73, 120 A.2d 535, (1956). Accord, Ratkovich v. Randell Homes, Inc., 403 Pa. 63, 68, 169 a.2d 65, (1961); Morean v. Duca, Pa. Superior Ct. , , 430 A.2d 988, 990 (1981). The lower court accurately construed the restrictions as follows:
The restrictions appearing in the deeds to [appellees'] properties are of both types. The restrictions pertaining to the premises located at 233 North Wynnewood Avenue prohibit the owner from constructing any building which would house "any offensive business or occupation," such as a "machine shop, blacksmith shop, carpenter shop, [or] store...," or which would "approach nearer that one hundred thirty-two feet to the center line of Wynnewood Avenue," or which would cost less than a certain sum [$4,000] to construct. These restrictions also limit the use of any building on said premises to residential purposes. The restrictions contained in the deeds to the property situate at 235 North Wynnewood Avenue are nearly identical.
Opinion at 6. Appellees' proposed development would not violate the set-back and minimum cost restrictions. There is no limitations in the building restrictions proscribing the number of homes that could be built or in the use restrictions limiting the premises to single-family occupancy. Moreover, even if the restrictions were construed as limiting one house per "lot," because there is no prohibition against subdivision, and the record reveals no minimum "lot" size, appellees' proposal would not be prohibited. In Ratkovich, our Supreme Court, in holding that a building restriction limiting the owner to the erection of "not more than one house... on each lot," would not prohibit the construction of a single structure in which more than one family could reside (a duplex), stated:
Had the creator of the instant restriction desired to restrict the use of these lots to single family dwellings or prohibit the erection thereon of two or four units for multiple family dwelling, it would have been easy to so word the restriction. Courts should not attempt to remedy the omissions of those creating restrictive covenants and extend by implication, a restraint on the use of land by writing into a restriction that which is not therein clearly expressed.
403 Pa. at 71, 169 A.2d at . Accord, Schmitt v. Culhane, 233 Or. 130, , 354 P.2d 75, 76-77 (1960) (building restriction of "not more than one dwelling [per] single tract" did not prohibit subdivision and construction of more than one dwelling upon original premises). As in Ratkovich and Schmitt, the express language of the restrictions does not prohibit the proposed development, and, had the creators of the restrictions desired that result, they could have easily inserted a different restrictive covenant. They did not, and we will not do by implication that which they did not do directly. Accordingly, the lower court properly dismissed appellants' complaint.*fn3