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Pocono Summit Realty, LLC and Mt. Pocono Realty Partners, L.P v. Ahmad Amer

June 22, 2012

POCONO SUMMIT REALTY, LLC AND MT. POCONO REALTY PARTNERS, L.P., APPELLANTS
v.
AHMAD AMER, LLC, APPELLEE



Appeal from the Order Dated July 6, 2011 In the Court of Common Pleas of Monroe County Civil Division at No(s): 607 CV 11

The opinion of the court was delivered by: Stevens, P.J.

J-A08027-12

BEFORE: STEVENS, P.J., ALLEN, J., and OLSON, J.

OPINION BY STEVENS, P.J.

This is an appeal from the Order of the Court of Common Pleas of Monroe County, which entered a declaratory judgment in favor of Defendant/Appellee Mt. Pocono Retail, LLC, formerly known as Ahmad Amer, LLC, ("Amer")*fn1 and against Plaintiffs/Appellants Pocono Summit Realty, LLC and Mt. Pocono Realty Partners, L.P. ("PSR") on PSR's action to quiet title and seek declaratory relief regarding the interpretation of a restrictive covenant encumbering real estate owned by PSR. Specifically, the court ruled that a restrictive covenant providing that no part of the real property in question may be used in the operation of a grocery store prohibited PSR from using the property as a parking lot and storm water control for a grocery store situated on an adjoining lot. By interpreting the clause "operation of a...grocery store" to include such uses, PSR contends, the court contravened established precedent disfavoring restrictive covenants on the use of land and requiring courts to limit the reach of such covenants to their express terms. After careful review, we affirm.

The lower court's Opinion of July 6, 2011 provides an apt factual and procedural history of the matter as follows:

Plaintiffs commenced this action by filing a Complaint on January 24, 2011, seeking a declaration interpreting Plaintiff's rights under a land use restriction encumbering Plaintiff Pocono Summit ("PSR") property. Defendant filed an Answer to the Complaint with New Matter on February 16, 2011. Plaintiffs filed a Motion for Judgment on the Pleadings on March 18, 2011, and Defendant filed its response to Plaintiff's Motion on April 6, 2011. All parties have filed briefs and oral argument was heard before the Court on May 2, 2011.

Reviewing the record in the light most favorable to Defendant, the non-moving party, the relevant facts in this case follow. Plaintiff Pocono Summit Realty ("PSR") currently owns approximately 12.35 acres of property located on Pocono Summit Road (State Route 940) in the Borough of Mount Pocono (hereinafter the "PSR Property"). Defendant [Amer] owns approximately 21.386 acres of property contiguous with, and adjacent to, the PSR property on Pocono Summit Road (SR 940) in Mount Pocono (hereinafter the "Amer Property").

The PSR Property and Amer Property were formerly one parcel owned by Montovision Realty, Inc. The large parcel was subdivided to create what are now known as the PSR property and the Amer Property pursuant to a "Minor Subdivision of Lands" plan recorded on August 25, 1989 in Map Book 61, Page 347.[] The subdivision plan designates the Amer Property as Lot 1 and the PSR Property as Lot 2.

On August 30, 1989, Montovision Realty, Inc. conveyed the Amer Property to Mount Pocono Retail Associates, L.P., Defendant's predecessor in title. At the time of such conveyance, Montovision recorded a "Declaration of Covenants" dated August 30, 1989 and recorded in Book 1698, Page 1798. The Declaration contains several restrictive covenants including the following restriction (the "Restriction"):

1. No part of Lot 2 will be used for the operatioon of a discount department store (e.g., such as a K Mart, Ames or a Jamesway) or grocery store.

2. The foregoing restriction shall continue for the maximum period permitted under Pennsylvania law unless, prior to the expiration of such period, the Owner of Lot 1 agrees in writing to the termination of such restriction.

3. The restriction contained herein is a covenant running with the land.

On June 3, 1998, Defendant acquired title to teh Amer Property from Mount Pocono Retail Associates, L.P. by deed dated June 3, 1998, and recorded on June 9, 1998 in Book 0249, Page 2608. The Amer Property is developed with a shopping center. On January 11, 2006, Defendant agreed to modify the Restriction to clarify that a Convenience Store is not a ...


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