Siciliano v. Misler

• Decision Date: 04 May 1960
• Docket Number: J,No. 50,No. 48,B,No. 44,48,50,44
• Citation: 160 A.2d 422,399 Pa. 406
• Parties: , 80 A.L.R.2d 1253 John SICILIANO, Jr., and American Stores Company, a corporation, v. Isadore MISLER, Appellant inetty Misler, Appellant inane Berman, Appellant inAppeal of BERMAN. Appeal of MISLER (two cases). 44, 48, 50
• Court: Pennsylvania Supreme Court

Page 422

160 A.2d 422

399 Pa. 406, 80 A.L.R.2d 1253

John SICILIANO, Jr., and American Stores Company, a corporation, v. Isadore MISLER, Appellant in No. 48, Betty Misler, Appellant in No. 50, Jane Berman, Appellant in No. 44 Appeal of BERMAN Appeal of MISLER (two cases).

44, 48, 50

Supreme Court of Pennsylvania.

May 4, 1960.

Edward J. Harkins, Gerald K. Gibson, Johnstown, for appellants.

George M. Spence, Spence, Custer, Saylor & Wolfe, Johnstown, for appellees.

Before CHARLES ALVIN JONES, C. J., and MUSMANNO, BENJAMIN R. JONES, COHEN, BOK and EAGEN, JJ.

BOK, Justice.

The case involves the interpretation of the wording of a real estate restriction.

Suburban Shops, Inc., owned land in Lower Yoder Township, Cambria County, and was trying to develop it into a shopping center. In order to induce the American Stores Company to build a market there, Suburban offered to restrict the rest of the land that it owned nearby against use for stores and parking. This being satisfactory, Siciliano, Suburban's president, bought a piece of land and leased it to American in April, 1953, and a store and parking lot were later put on it.

In July, 1954, Suburban created a Declaration of Restrictions covering other land that it owned in the area and recorded it. This Declaration contained the following provision, which is the root of the trouble now:

'No part of the premises hereinafter described shall at any time hereafter be used for the operation of, occupied by, or have constructed thereon a store or market of the kind character usually and customarily maintained and designated as a super market for the sale, at retail to the public, of raw or processed food products which are not consumed on the premises, or the parking of motor vehicles for the convenience of the patrons of such a store or market; * * *.'

Between 1955 and 1957 appellant defendants bought certain neighboring land from people named Willett which was outside the restricted area and hence was unrestricted. Appellants then built a super market on this land. At the same time they bought an immediately contiguous tract which, however, lay within the restricted area and hence was restricted against stores and parking. They had this area covered with a hard surface and their patrons have been parking there, whether casually or by design is of no moment.

Appellees protested and then filed suit in equity. The lower court upheld the restriction against the defendants and enjoined them from allowing their market patrons to park on their restricted land and from employing anyone to direct and police such parking. Defendants appealed.

It is apparent that appellants have a single piece of land, part of it restricted and containing the parking lot, and part of it unrestricted and containing the market. Appellees concede that the market is not in violation. The sole question therefore relates to the status of the parking lot.

The critical part of the restriction is the words 'such a'. Plaintiff appellees contend that these words refer to a market on or off restricted land, their point being that restricted land may not offer parking service to any market wherever located. Appellants argue that the restriction cannot operate beyond restricted ground and that the words in question restrict market-with-parking only when both elements are on restricted ground.

Both views are plausible, but the policy of the law clearly favors the appellants.

Both briefs cite the basic approach to the problem, the rationale of Jones v. Park Lane for Convalescents, Inc., 1956, 384 Pa. 268, 120 A.2d 535, 537, where Mr. Chief Justice Stern said:

'Restrictions on the use of land are not favored by the law because they are an interference with an owner's free and full enjoyment of his property; that nothing will be deemed a violation of a restriction that is not in plain disregard of its expressed words; that there are no implied rights arising from a restriction which the courts will recognize; that a restriction is not to be extended or enlarged by implication; that every restriction will be construed most strictly against the grantor and every doubt and ambiguity in its language resolved in favor of the owner.'

We also said, Mr. Justice Bell, in Sandyford Park Civic Association v. Lunnemann, 1959, 396 Pa. 537, 152 A.2d 898, 900:

'A man has a right to use his own home or property in any way he desires provided he does not (1) violate any provision of the Federal or State Constitutions; or (2) violate any...