No. 01403 Philadelphia 1983, APPEAL FROM THE JUDGMENT ENTERED AUGUST 15, 1983 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, CIVIL NO. 588 OCTOBER TERM, 1980
Bruce A. Franzel, Philadelphia, for appellants.
George W. Berkelbach, III, Philadelphia, for appellees.
Cirillo, Olszewski and Montgomery, JJ. Olszewski, J., files a concurring opinion.
[ 338 Pa. Super. Page 282]
Appellants, Anthony Cerone and Marie Cerone, appeal a judgment of the Court of Common Pleas of Philadelphia County directing them to remove a fence from their property and enjoining them from constructing any fence less than fifteen feet from the side and rear boundaries of their property and less than twenty-five feet from the front boundary facing the street. We vacate that judgment.
Appellants and appellees, the Youngs, are next-door neighbors in the Crestmont Farms residential development
[ 338 Pa. Super. Page 283]
in northeast Philadelphia. This development was originally farmland, conveyed in 1926 to the Crestmont Farms Improvement Company, Inc. Since then, the Company has ceased to exist, and the land has been subdivided into approximately seventy lots for construction of detached residences.
In 1980, appellants began construction of a chain link-and-wood slat fence on the boundary between their lot and appellees'. Appellees protested, claiming that any such construction would violate deed restrictions imposed by the original grantor. However, they later requested appellants to delay building the fence, so that the City of Philadelphia could survey the lots. After the survey, appellants resumed construction.
Appellees then filed a complaint in equity, seeking an injunction forcing appellants to dismantle the fence and prohibiting them from any further construction. Appellees alleged that the fence was in violation of Subdivision 6 of the deed restrictions, which states, in pertinent part:
No building, fence, wall or other structure shall be commenced, erected or maintained; nor shall any addition to or change or alteration thereon be made until the plans and specifications showing the nature, kind, shape, height, materials, floor plans, color scheme, location and approximate cost of such structure and the grading plan of the plot to be built upon shall have been submitted to and approved in writing by the Grantee and a copy thereof as finally approved, lodged permanently with the Grantee . . . . The Grantee shall have the right to refuse to approve any such plans or specifications or grading plan which is not suitable or desirable in its opinion for aesthetic or other reasons and in passing upon such plans, specifications and grading plan[, i]t shall have the right to take into consideration the suitability of the proposed building or other structure and of the materials of which it is to be built to the site upon which it is proposed to erect the same[,] the harmony thereof with the surroundings[,] and the effect of the building or other structure or
[ 338 Pa. Super. Page 284]
the roadway as planned on the outlook from the adjacent or neighboring property.
The trial court, sitting without a jury, held that Subdivision 6 was not applicable. The court reasoned that the "Grantee" referred to in that restriction was the defunct Improvement Company, and that there was no successor grantee. However, the court held that the fence violated Subdivisions 4 and 5 of the deed restrictions. Subdivision 4 states:
No building or part thereof shall be erected or maintained on any part of the said tract closer to any street than 25 feet and at least 15 feet from any side or rear lot line except as hereinafter set forth and except as to eight lots of 50 feet each fronting on Orchard Lane. Covered porches . . . . may encroach . . . not more than 12 feet. Steps, uncovered porches and terraces . . . may be built and maintained on any part of such restricted areas. Single ...