J. S06034/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PIKE DEVELOPMENT CORPORATION, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
ROGER COLON AND PROVIDENCIA :
DE-JESUS COLON, H/W :
: No. 999 EDA 2014
Appellees :
Appeal from the Order Entered March 3, 2014
In the Court of Common Pleas of Pike County
Civil Division No(s).: 1393-CV-2013
BEFORE: BENDER, P.J.E., LAZARUS, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MARCH 05, 2015
Appellant, Pikco Development Corporation, appeals from the order
entered in the Pike County Court of Common Pleas sustaining Appellees’,
Roger Colon and Providencia De-Jesus Colon’s, preliminary objections and
dismissing the complaint with prejudice. Appellant contends the trial court
erred in dismissing the complaint based upon a covenant intended to bind
subsequent purchasers. We reverse and remand for further proceedings.
The trial court summarized the facts and procedural posture of this
case as follows:
On August 30, 2013, [Appellant] filed a Complaint
against [Appellees]. The complaint alleges, inter alia, that
*
Former Justice specially assigned to the Superior Court.
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on February [13, 1991 and recorded on March 5, 1991].
[Appellant] executed a deed to Rysard Niemira and Ewa
Tos. The deed was recorded at the Office of the Recorder
of Deeds of Pike County and contained a covenant which is
the subject of this action. On September [6], 2003, it is
alleged that [Appellees] purchased the Property [from
Augustyn Pyryt and Teresa Pyryt] subject to the same
covenant. It is further alleged that [Appellees]
subsequently breached the covenant by building a
residential dwelling on the Property without giving
[Appellant] the right of first refusal to construct the
dwelling.
Trial Ct. Op., 3/3/14, at 1-2.
On October 30, 2013, Appellees filed Preliminary Objections in the
nature of a demurrer to Appellant’s Complaint. On March 3, 2014, the court
sustained the preliminary objections and dismissed the complaint with
prejudice. This timely appeal followed. Appellant filed a timely court-
ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal and
the trial court filed a responsive opinion.
Appellant raises the following issue for our review:
Where [Appellant’s] complaint pleads the existence of a
deed restriction containing words of perpetuity and actual
and record notice thereof to [Appellees] Grantees, is it
clear and free from doubt that [Appellant] will be unable to
prove facts legally sufficient to establish a right to relief for
breach of a real covenant running with the land?
Appellant’s Brief at 1-2.
Appellant contends the language of the covenant was unambiguous in
that it was intended to bind subsequent purchasers. Id. at 5. He avers that
when he sold the vacant lot to Appellees’ predecessors-in-title it was subject
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to the restrictive covenant. Id. Appellant argues that Appellees had actual
knowledge of the covenant and violated it. Id. Appellant maintains that the
covenant was intended to run with the land. Id. at 7. We hold Appellant is
due relief.
This Court has stated:
We reiterate our standard of review of an order
sustaining a demurrer as follows:
When reviewing the dismissal of a complaint based
upon preliminary objections in the nature of a
demurrer, we treat as true all well-pleaded material,
factual averments and all inferences fairly deducible
therefrom. Where the preliminary objections will
result in the dismissal of the action, the objections
may be sustained only in cases that are clear and
free from doubt. To be clear and free from doubt
that dismissal is appropriate, it must appear with
certainty that the law would not permit recovery by
the plaintiff upon the facts averred. Any doubt
should be resolved by a refusal to sustain the
objections. Moreover, we review the trial court’s
decision for an abuse of discretion or an error of law.
A demurrer should be sustained only when the
complaint is clearly insufficient to establish the
pleader’s right to relief.
B.N. Excavating, Inc. v. PBC Hollow-A, L.P., 71 A.3d 274, 277-78 (Pa.
Super. 2013) (en banc) (citations omitted and emphases added).
In Juniata Valley Bank v. Martin Oil Co., 736 A.2d 650 (Pa. Super.
1999), this Court stated:
It is a well established principle of law that a contract
cannot impose obligations upon one who is not a party to
the contract. Ordinarily, it is the party purchasing real
estate that is bound by the terms of the bargain it strikes.
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When a real estate contract or deed imposes obligations on
the purchaser to act or refrain from acting, those terms do
not bind later owners in the purchaser’s chain of title
unless the obligation runs with the land.
Id. at 663 (citations omitted and emphasis added).
Unlike a covenant running with the land, “[a] personal covenant binds
only the person who made the covenant, and not future successors in title.”
Treasure Lake Prop. Owners Ass’n, Inc. v. Meyer, 832 A.2d 477, (Pa.
Super. 2003).
In contrast with a personal covenant, a covenant which
is to run with the land ordinarily must affect the land and
be intended to pass with it. Caplan v. City of
Pittsburgh, [ ] 100 A.2d 380, 383 ([Pa.] 1953). “Since
the test for determining whether the promise runs with the
land is whether it was so intended by its creators, an
indication that the grantees’ heirs or assigns are
considered bound by its terms is generally decisive
of the question.” Leh v. Burke, 331 A.2d 755, 760
([Pa. Super.] 1974) (citation and footnote omitted).
Hartzfeld v. Green Glen Corp., 552 A.2d 306, 309 (Pa. Super. 1989)
(emphasis added), (cited with approval in Meyer, 832 A.2d at 482).
In the case sub judice, the covenant in the deed provided:
UNDER and SUBJECT to purchase, his/her successors,
heirs and assigns, from the date of this deed forward,
that if Purchaser intends to build a residential dwelling on
Property, and Purchaser receives a bona fide construction
bid from third parties, Purchaser, his heirs successors
and assigns, shall first give notice, by certified mail,
return receipt requested to Grantor and Grantor shall have
the right within thirty (30) days from the receipt of such
notice, to accept the bona fide construction bid, and
construct the residential dwelling for Purchaser, under
same terms and conditions.
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Appellant’s Compl., 8/30/13, at Ex. “A” (emphases added).
The trial court sustained appellees’ preliminary objections and opined:
The covenant was not placed into the deed until February
of 1991 and is essentially a right of first refusal given to
[Appellant]. The covenant provides that [Purchasers1] are
to give [Appellant] the first right to construct a residential
dwelling on the Property. . . . The only purpose the
covenant serves is to provide [Appellant] with a personal
business benefit by constructing the dwelling.
Trial Ct. Op. at 3. We disagree.
The covenant indicated that the grantee’s successors, heirs, and
assigns were considered bound by its terms which could be decisive of the
question of whether the covenant runs with the land. See Hartzfeld, 552
A.2d at 309. Therefore, we find the trial court abused its discretion in
sustaining Appellees’ preliminary objections and dismissing the complaint
with prejudice. See B.N. Excavating, Inc., 71 A.3d at 277-78.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/5/2015
1
We note that the trial court refers to Defendants, i.e., Appellees herein.
The court opined that although the covenant contained the language his/her
successors, heirs, and assigns from the date of this deed forward, “the
covenant is personal to the covenantor.” Trial Ct. Op. at 3. We presume the
court unintentionally referred to Appellees.
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