Appeal from the Order December 16, 1987, in the Court of Common Pleas of Allegheny County, Civil No. GD 86-7920.
Howard M. Louik, Pittsburgh, for appellants.
James R. Kyper and Daniel S. Cohen, Pittsburgh, for Grasso, appellees.
Olszewski, Del Sole and Kelly, JJ.
[ 384 Pa. Super. Page 595]
This is an appeal from an order granting appellees' motion for summary judgment and denying appellants' crossmotion for summary judgment. Appellants raise the following issues for our review: (1) whether the trial court erred in finding that the restrictive covenant prohibits appellants from using their property as both a residence and professional office; (2) whether the trial court was required to consider extrinsic evidence of the declarant's intent in construing the phrase "residential uses" in the restrictive covenant; (3) whether appellees, neighboring property owners, are entitled to summary judgment in the absence of any proof of damages or substantial benefit in enforcement of the restrictive covenant; (4) whether appellees are precluded from obtaining summary judgment on the basis of equitable estoppel; and (5) whether the trial court's order, not entered in accordance with Pa.R.C.P. No. 1517(a), invalidates the entry of the order granting summary judgment in favor of appellees. For the reasons below, we affirm.
On May 2, 1986, appellees commenced the instant equity action to enjoin appellants, Theodore W. Thimons, Jr. and Eileen R. Thimons, from conducting an accounting business in their residence.*fn1 Appellees are four couples who reside in single-family dwellings in close proximity to appellants in the Forest Ridge Plan, Hampton Township, Allegheny County, Pennsylvania. All couples, including the Thimonses, took their respective lots subject to a restrictive covenant limiting the lots to "residential uses." Since approximately January, 1986, after the Thimonses moved into their
[ 384 Pa. Super. Page 596]
residence in the Forest Ridge Plan, Mr. Thimons began using part of the residence as an accounting office. Appellants admit that Mr. Thimons maintains and operates an accounting office consisting of an office and reception area in the basement of their residence in the Forest Ridge Plan.*fn2 On December 1, 1986, appellees filed a motion for summary judgment on the grounds that, inter alia, Mr. Thimons' operation of an accounting business in his residence violated the restrictive covenant thereby entitling appellees to enforcement of the covenant as a matter of law. Thereafter, appellants responded with an answer to appellees' motion and also filed a cross-motion for summary judgment. On December 15, 1987, the trial court granted appellees' motion for summary judgment and denied appellants' cross-motion. This timely appeal followed.*fn3
Appellants' first contention is that the trial court erred in finding that the restrictive covenant prohibits appellants from using their property as a residence and professional office. The covenant in question provides:
The following shall be restrictions on the use of the Properties which shall run and bind the land:
(a) None of the Lots shall be used for any purpose other than for residential uses.
Record at 12-a. Initially, we note that:
"Restrictive covenants which restrict the use of property, although not favored by the law, are legally enforceable." We will find a use to be in violation of a restrictive covenant only if it is in clear defiance to the ...