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ROBERT C. BURNS AND NANCY M. BURNS v. RICHARD L. BAUMGARDNER AND MARCIA H. BAUMGARDNER (08/06/82)

filed: August 6, 1982.

ROBERT C. BURNS AND NANCY M. BURNS, HIS WIFE, AND JOHN FRANKLIN DESTEFAN AND PATRICIA M. DESTEFAN, HIS WIFE
v.
RICHARD L. BAUMGARDNER AND MARCIA H. BAUMGARDNER, HIS WIFE, APPELLANTS



No. 95 Harrisburg, 1980, Appeal from Final Decree of the Court of Common Pleas, Civil Division, of Franklin County, Equity Docket Vol. 7, Page 55

COUNSEL

Harvey Freedenberg, Harrisburg, for appellants.

Thomas M. Painter, Waynesboro, submitted a brief on behalf of appellees.

Price, Wieand and Lipez, JJ. Price, J., dissents.

Author: Wieand

[ 303 Pa. Super. Page 88]

In this equity action, the chancellor imposed building restrictions by implication and enjoined the construction of

[ 303 Pa. Super. Page 89]

    townhouses on a development tract in Washington Township, Franklin County. When exceptions were overruled and a final decree entered, this appeal followed.*fn1 We reverse.

[ 303 Pa. Super. Page 786]

In May, 1966, Dwight and Leona Grove and Richard and Marcia Baumgardner acquired a 175 acre tract in Franklin County. The entire tract was surveyed between May 2, 1966, and October 17, 1966, and a preliminary plan was prepared but never recorded. On November 26, 1966, a plot plan was prepared by Arrowood, Incorporated, for "Sheffield Manor Phase 1" and recorded. It included lots 1 to 12 of Section D. On March 28, 1967, the owners caused to be recorded a Declaration of Restrictive and Protective Covenants in Deed Book Vol. 612, Page 786. This declaration, dated March 9, 1967, pertained to and was limited to lots included in Sheffield Manor Phase No. 1 as shown on plan prepared by Arrowood, Incorporated, dated November 25, 1966. It provided, inter alia, as follows:

1. LAND USE AND BUILDING TYPE: No lot shall be used except for residential purposes. No building shall be erected, altered, placed or permitted to remain on any lot other than one detached single-family dwelling not to exceed two and one-half stories in height and private two car garage. All buildings shall be constructed of brick, stone or other non-combustible material, except that no building may be constructed of unfaced concrete blocks and no building may be faced with stucco. Wood construction may be used above the square of the building. (emphasis supplied).*fn2

[ 303 Pa. Super. Page 90]

On November 7, 1967, a plan entitled "Sheffield Manor Phase 2" was prepared and subsequently recorded. It laid out lots 13 to 27 of Section C and lots 1 to 5 of Section B. On May 20, 1968, a declaration of building restrictions was recorded which imposed upon Phase 2 the same restrictions previously imposed upon Phase 1.

From these two sections, various lots were sold and conveyed. John and Patricia Destefan, the appellees, purchased lot 27 on June 27, 1968. Their deed recited that the lot was subject ...


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