Leh v. Burke

CourtSuperior Court of Pennsylvania
Citation231 Pa.Super. 98,331 A.2d 755
PartiesJohn Henry LEH et al. v. Ronald K. BURKE et al., Appellants, Defendants, and Margaret B. Michell, widow, Additional Defendant. Appeal of Margaret B. MICHELL.
Decision Date11 December 1974

Kolb, Holland, Antonelli & Heffner, Jacob S. Kolb, Bethlehem, for appellant in No. 912.

Frederick, N. Nabhan, Henry S. Perkin, Allentown, for appellants in No. 940 and for defendants (Burke) in No. 912.

Arthur T. Gillespie, Jr., Allentown, for appellees.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

JACOBS, Judge:

This appeal concerns a covenant in a deed from the plaintiffs Leh Brothers to the additional defendant Margaret Michell requiring the grantee and her assigns to pay a proportionate share of the expenses incurred in paving a road abutting the property conveyed. We conclude that Mrs. Michell's subsequent grantees, the Burkes, are bound by the covenant by virtue of their ownership of the abutting parcel of land at the time the road was constructed and therefore must pay the assessment. We find that appellant Mrs. Michell, however, who had transferred title and parted with all interest in the property prior to the commencement of construction, cannot be held liable for any of the costs assessed.

The transactions between the parties to this appeal appear from the record as follows. Plaintiffs-appellees compose a partnership Leh Brothers, which engages in the business of developing land. On May 8, 1961, Leh Brothers conveyed a parcel of land, part of a larger tract destined for further subdivision, to Mr. and Mrs. Michell by general warranty deed. The deed indicated that the parcel was composed of two lots, or purparts, both being distinctly described in the deed. Purpart number one consisted of the southern half of the parcel and purpart number two the northern half. The deed pictured the entire property as being bounded on the east by Bandbury Road, which was in existence on the date of the transfer to the Michells, and on the north by Greenwood Road, which although proposed was not constructed at that time. Due to the division of the property only purpart two actually fronted on the area reserved for the proposed Greenwood Road. See appendix.

Following the description of purpart one there is included in the deed a list of lettered paragraphs defining the building restrictions to which the property was made subject and two unlettered paragraphs reserving a right of way for Tuck Drive, a roadway along the southern boundary of the property, and an easement for utility lines. The description of purpart two is also followed by a lettered list of 5 building restrictions, virtually identical to the prior list, and an unlettered paragraph providing '(i)n the event that the surface of Greenwood Road North should ever be paved, or in the event that water lines should be placed thereunder, the Grantees, their heirs or successors in title, shall bear their proportionate share of the expense of such improvements.' The deed was immediately recorded.

Subsequent to the death of Mr. Michell, Margaret Michell conveyed the two lots separately, purpart one being conveyed to Mr. and Mrs. Lamparelli and purpart two to Mr. and Mrs. Burke. Both deeds were specially warranted, both contained the description of their respective lots and referred to the recorded Leh-Michell deed. Neither deed contained any reservations or restrictions such as those in the prior deed, nor was there any mention of the convenant to share the expense of the road construction. The Burkes received their lot as part of a land trading arrangement which was negotiated through another individual. Consequently they did not deal directly with Mrs. Michell nor were they represented by their own attorney. The Burkes, therefore, never searched their title and never knew of the covenant or any of the other restrictions in their deed. The Lamparellis were informed by their attorney of those restrictions and reservations specifically affecting their own lot, including the easement for Tuck Drive, but they also were unaware of the covenant concerning the construction of Greenwood Road.

After Margaret Michell had conveyed away all her interest in the original parcel, Leh Brothers began to take steps to begin construction of Greenwood Road. The Burkes were apprised at various stages of the progress of the plans. Eventually a road was completed meeting the township's requirements and the Burkes were given notice of their share of the cost. Upon their refusal to pay the amount attributed to them, Leh Brothers instituted suit against both the Burkes and the Lamparellis. Margaret Michell was joined as an additional defendant by the original defendants. The case was heard by a judge without a jury who found for plaintiffs Leh Brothers against the Burkes in the amount of $3,855.20. It was further found that the defendant Burkes were entitled to recover any sums paid on the judgment from the aditional defendant Margaret Michell. Finally, the court found in favor of the defendant Lamparellis. Exceptions filed by the Burkes and Mrs. Michell were dismissed by the court en banc and both parties appeal.

On appeal the Burkes' first contention is that the covenant is unenforceable against them because its terms are so vague and undefined as to render reasonable interpretation and a fair assessment of damages impossible. It is maintained that the requirement of the covenant that the grantees pay their proportionate share of the cost of paving the surface of the road is ambiguous since all the necessary factors of the job are not specified and the method of determining the apportionment of costs is not expressed. However, imprecision is not fatal to a convenant in a deed. See, e.g. Mishkin v. Temple Beth El, 429 Pa. 73, 239 A.2d ,00 (1968); Di Carlo v. Petrillo, 387 Pa. 212, 127 A.2d 657 (1956). The rule is that if an agreement is not clearly expressed, an effort is made by the court interpreting the language to give effect to the intention of the parties as expressed at the time. 'Where the language of a deed or a restriction is not clear, then in order to ascertain the intention of the parties its language should be interpreted in the light of the subject matter, the apparent object or purpose of the parties, and the conditions existing when it was made.' Parker v. Hough, 420 Pa. 7, 12--13, 215 A.2d 667, 670 (1966).

Viewing the conditions as they existed at the time the original parties entered into the covenant, it is apparent that the grantor Leh Brothers intended to develop the as yet unimproved tract of land wherein the Michells purchased their parcel. The language in the deed clearly indicates that the parties intended to share the cost of those improvements which would benefit the abutting land when they were constructed some time in the future. At the time the agreement was made it was impossible for the parties to state with specificity the details of construction that would be required to pave a new road and put in water lines. We do not at this time demand such details in order to enforce the covenant that was made. The fact that the covenant refers only to paving the surface of Greenwood Road and placing water lines thereunder does not exclude from the parties' contemplation the cost of engineering the new road, clearing the land, or laying the base of the road. It was obvious at the time that no road existed on the 50 foot right-of-way designated in the recorded plan for the development. The only reasonable interpretation of the agreement to pave the non-existent road would be to include the related costs of construction. Furthermore, we do not believe that the construction of a 30 foot wide roadway, when all the pre-existing roads in the area were only 20 feet wide, is inconsistent with the parties intentions as expressed in the covenant. The road was constructed according to specifications required by the township, and Leh Brothers acted reasonably to protect the interests of all parties by building the most inexpensive road possible the covenant does not specify how standards.

The Burkes also complain that their proportionate share of the cost of the road cannot be fairly ascertained. Although the convenant does not specify how the proportionate share is to be determined, the lower court arrived at a percentage based on the ratio of the subject property's abutting footage to the total frontage along the new road. This method was not objected to at trial by any of the defendants and it is reasonable, objective means of arriving at a proportion which would implement the parties' intent as expressed in the covenant. 1 this percentage was applied only to the cost of those improvements expressly mentioned in the covenant: the paving of Greenwood Road, including related engineering, clearing and grading costs, and the installation of water lines. Other expenses which were not connected with either paving or the water lines, such as the construction of storm sewers and curbing, even though these improvements were required by the township in order to construct the road, were carefully and correctly excluded by the trial judge in determining the defendants' fair share of the costs. See Maher v. Cleveland Union Stockyards Co., 55 Ohio App. 412, 9 N.E.2d 995 (1936). We endorse the determination of damages made by the trial judge as accurately reflecting the proportionate share of the road costs that should be borne by the property owner.

Appellant Burkes next contend that the covenant should be enforced against the Lamparellis equally with themselves. Once again we must look to the deed to ascertain whether it was intended that the property purchased by the Lamparellis would be bound by the covenant. It is immediately apparent from the deed that although the parcel conveyed to the Michells was...

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