314 A.2d 512
Supreme Court of Pennsylvania.Argued November 20, 1973
Decided January 24, 1974
Equity — Injunctions — Action to enforce deed restriction — Demurrer to complaint sustained — Action brought prematurely.
Mr. Justice MANDERINO filed a dissenting opinion, in which Mr. Justice POMEROY joined.
Before JONES, C. J., EAGEN, O’BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
Appeal, No. 374, Jan. T., 1973, from decree of Court of Common Pleas of Montgomery County, No. 72-6380, in case of Desmond J. McTighe v. Anthony Falcone, Winifred W. Groff, Richard E. Hess, Jeane Griffith, E. M. Applebaugh, Jr., Philadelphia National Bank. Decree affirmed.
Equity.
Preliminary objections by defendants sustained and plaintiff’s complaint dismissed, order by SCIRICA, J. Plaintiff appealed.
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Desmond J. McTighe, in propria persona, for appellant.
James S. Kilpatrick, Jr., and John V. Hasson, with the Thomas J. Burke, Francis Shunk Brown, 3rd, and Haws Burke, for Anthony Falcone, Jeane Griffith, and E. M. Applebaugh, Jr., appellees.
Sidney L. Wickenhaver, with him Montgomery, McCracken, Walker Rhoads, for Winifred Groff and Philadelphia National Bank, appellees.
OPINION PER CURIAM, January 24, 1974:
Decree affirmed. Costs on appellant.
DISSENTING OPINION BY MR. JUSTICE MANDERINO:
I dissent. The majority affirms the trial court’s decree dismissing the appellant’s (plaintiff below) complaint. The appellant filed a complaint requesting injunctive relief to enjoin, inter alia, the appellees from constructing apartments or condominiums on certain parcels of land in violation of deed restrictions. The appellees filed preliminary objections demurring to the complaint. The trial court sustained the demurrer and dismissed the complaint as premature. I disagree.
The appellant alleged that written or oral agreements exist
among the appellees concerning a plan to build apartments in violation of deed restrictions permitting only single dwellings.
“Where a doubt exists as to whether a demurrer should be sustained, this should be resolved in favor of overruling it.”Clevenstein v. Rizzuto, 439 Pa. 397, 401, 266 A.2d 623, 625
(1970). The appellant should have the opportunity to prove that the agreements exist. Such agreements would constitute overt acts sufficient to justify injunctive relief. If the allegations in appellant’s
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complaint are true, this action is not premature. Bennett v. Lane Homes, 369 Pa. 509, 87 A.2d 273 (1952) (injunctive relief granted where proposed plan would be violative of restrictive covenant in deed). The trial court’s dismissal of the appellant’s complaint should be reversed.
Mr. Justice POMEROY joins in this dissenting opinion.