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CALVIN HODDER v. ELLSWORTH R. GREEN AND CHARLOTTE M. GREEN (09/29/86)

submitted: September 29, 1986.

CALVIN HODDER, FRANK E. FICKINGER AND BONNIE W. FICKINGER, HIS WIFE, JOHN D. KUTCH AND GERALDINE A. KUTCH, HIS WIFE, JAMES M. BUCCI AND ERLA R. BUCCI, HIS WIFE AND DAVID LERSCH
v.
ELLSWORTH R. GREEN AND CHARLOTTE M. GREEN, APPELLANTS



Appeal from the Order entered May 2, 1986 in the Court of Common Pleas of Washington County, Civil Division, at No. 66 November Term, 1985 A.D.

COUNSEL

John P. Liekar, Public Defender, Canonsburg, for appellants.

James H. McCune, Washington, for appellees.

Brosky, Beck and Popovich, JJ.

Author: Beck

[ 359 Pa. Super. Page 410]

This is an appeal from the lower court's order granting appellees' request for a declaratory judgment. Appellants contend that the lower court erred in holding that their proposed placement of a mobile home, with the wheels and undercarriage detached, upon a cement foundation violated a restrictive covenant. For the reasons that follow, we affirm the order of the lower court.

Appellants acquired title to the property in question from their parents. The deed to the property contains the following restrictions:

1. That no structure or building shall be erected at a distance no less than seventy-five (75) feet from the center line of Christy Road, or Township Road No. 627.

[ 359 Pa. Super. Page 4112]

. That no mobile home and/or trailer shall be placed on the premises.

3. No dwelling home shall be erected, the cost of which is less than Twelve Thousand ($12,000.00) Dollars.

Deeds to the neighboring properties contain the same restrictions. In May, 1985, appellants applied for a building permit to allow them to place a mobile home, with the wheels and undercarriage detached, on a cement block foundation on their property. The foundation was to have consisted of a concrete base with thirteen courses of eight inch concrete block placed on top. At the tenth or eleventh course, four six-inch steel H beams were to be incorporated into the foundation to which the mobile home would then be welded. Lower Court Opinion at 4. The foundation was to be 12-feet wide and sixty-feet long and was to contain a partial basement with a laundry room, a bedroom, and a garage. Id. Appellants' neighbors brought a declaratory judgment action claiming that appellants' proposal violated the restrictive covenant. The lower court held that placing a mobile home on a cement foundation would violate the restrictive covenant, and this appeal followed.

Appellants contend that the lower court erred in its conclusion that their proposal would violate the restrictive covenant because a mobile home attached to a cement foundation is no longer a mobile home within the meaning of the restrictive covenant. In support of their contention, appellants cite several cases holding that a mobile home that rests on a permanent foundation with its wheels detached is no longer a mobile home, but a fixed dwelling. See Geiger v. Zoning Hearing Bd. of Twp. of North Whitehall, 510 Pa. 231, 507 A.2d 361 (1986); Anstine v. Zoning Bd. of Adjustment of York Twp., 411 Pa. 33, 190 A.2d 712 (1963); Douglass Twp. v. Badman, 206 Pa. Superior Ct. 390, 213 A.2d 88 (1965); Ciavarella v. Zoning Bd. of Adjustment of Hazle Twp., 86 Pa. ...


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