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12/30/97 JOHN W. RICHMAN AND SHIRLEY RICHMAN HIS

December 30, 1997

JOHN W. RICHMAN AND SHIRLEY RICHMAN, HIS WIFE, APPELLANTS; DONALD A. MOSITES, STEVEN T. MOSITES, THF WASHINGTON REALTY, INC. AND WASHINGTON MALL ASSOCIATES TRADING AS WASHINGTON MALL - JCP ASSOCIATES, LTD.


Appeal from the Decree entered in the Court of Common Pleas of Washington County, Civil Division, No. 96-748.

Before: Tamilia, J., Johnson, J., and Brosky, J. Opinion BY Tamilia, J.

The opinion of the court was delivered by: Tamilia

OPINION BY TAMILIA, J.:

Filed December 30, 1997

This is an appeal from a Final Decree entered March 21, 1997 following a Decree Nisi which confirmed the trial court's August, 1996 grant of partial summary judgment and dismissed the plaintiff/appellants' complaint in equity. *fn1 The appeal stems from an equity action brought by appellants, John W. Richman and Shirley Richman (hereinafter the Richmans), seeking to enjoin appellees from constructing a shopping center on a plot of land located in South Strabane Township. Appellees include Donald A. Mosites, Steven T. Mosites, THF Washington Realty, Inc., and Washington Mall Associates, who are all collectively trading as Washington Mall-JCP Associates, Ltd. (hereinafter JCP).

The record reveals that between 1989 and 1990, JCP acquired the deeds to a 72 acre tract of land in South Strabane Township. This property is bounded by State Route 19 to the north, by Interstate 70/79 to the west, by the Richmans' property and State Route 136 to the south and by property owned by other persons to the east. JCP purchased the land in order to develop it as a shopping center; however, a 2.188-acre portion of the tract was burdened by a restrictive covenant.

The 2.188-acre parcel, which is the subject of this dispute, adjoins the Richmans' property. The restrictive covenant is common to both appellants' and appellees' chain-of-title and provides that "no buildings, other than one dwelling house and private garage ... shall ... be erected upon the within described premises." JCP plans to use the disputed parcel as an access driveway for the shopping center, and consequently, intends to build the following items on the parcel: a four-lane driveway, a retaining wall, an illuminated sign, light fixtures and storm sewers. The Richmans allege that appellees also plan to develop the 2.188-acre plot as a "commercial outparcel." *fn2

Appellants claim the aforementioned construction is barred by the restrictive covenant, as well as by JCP's agreement with the South Strabane Township Board of Supervisors and the township's zoning ordinances. As part of JCP's efforts to convince the township to rezone the 2.188-acre parcel from residential to commercial, JCP had agreed to the following:

will use the 2.188 acres, which were approved for a change in zoning from an R-4 to a C-2, for the sole purpose of a commercial driveway. No businesses will be established on that parcel, although signage announcing the entrance to the mall, similar to that on the Landscape and Perspective Sketches presented to the Board, will be present.

This agreement was later codified by South Strabane Township Zoning Ordinance No. 5 of 1992, which amended Ordinance No. 2 of 1991 and provided the following:

SECTION 2: That the following restrictions are attached to and made a part of said Ordinance and binding upon said parcel of land:

(a) Said 2.188 Acres shall be used for the sole purpose of a commercial driveway;

(b) No business shall be established or conducted thereon[.]

On February 8, 1996, the Richmans initiated the instant matter by filing a complaint in equity. On August 15, 1996, the Court of Common Pleas granted partial summary judgment in favor of the appellees. From February 4-5, 1997, the trial court held a nonjury trial on the issue of whether JCP's proposed sign violated township zoning ordinances. Subsequently, the trial court entered an adjudication and decree nisi, dismissing appellants' complaint in equity as premature. On March 21, 1997, upon ...


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