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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
J. S06034/15


         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



                                       -2-
J. S06034/15


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.


                                       -3-
J. S06034/15


        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.



                                   -4-
J. S06034/15


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.



                                    -5-
