Frankford Trust Co. v. Manufacturers Life Insurance

47 Pa. D. & C.2d 547, 1968 Pa. Dist. & Cnty. Dec. LEXIS 82
CourtPennsylvania Court of Common Pleas, Montgomery County
DecidedNovember 4, 1968
Docketno. 66-6617 in equity
StatusPublished

This text of 47 Pa. D. & C.2d 547 (Frankford Trust Co. v. Manufacturers Life Insurance) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Montgomery County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Frankford Trust Co. v. Manufacturers Life Insurance, 47 Pa. D. & C.2d 547, 1968 Pa. Dist. & Cnty. Dec. LEXIS 82 (Pa. Super. Ct. 1968).

Opinion

SMILLIE, J.,

The matter herewith comes before the court on Frankford Trust Company’s amended complaint in equity demanding that defendant, The Manufacturers Life Insurance Company of Toronto, Canada be enjoined from denying to tenants of buildings M & N of the Robert Bruce West Apartments of Upper Moreland Township, the use of, or access to the swimming pool and to 16 of [548]*548the parking spaces situate on the premises of the Robert Bruce West Apartments.

The original complaint and a petition for a preliminary injunction demanding relief only as to the pool were filed on June 3, 1966. A preliminary injunction was issued pending further hearing. On June 17, 1966, defendant filed a motion to dissolve the preliminary injunction. After hearing, the court, on June 20, 1966, ordered defendant to keep the pool open to tenants of buildings M & N pending the disposition of the cases with the proviso that no rights accrue to the tenants of M & N from the temporary use thereof.

On November 22, 1966, the preliminary injunction of June 3, 1966, was lifted and dissolved subject to plaintiffs right to reinstate or reapply for it at any time.

The court, sitting en banc, dismissed defendant’s preliminary objections to the complaint in equity on March 2, 1967, and ordered defendant to file an answer to the complaint. Defendant complied on March 22,1967.

Frankford Trust Company, on August 9, 1967, filed an amended complaint in which it further demanded injunctive relief with respect to certain parking spaces at the Robert Bruce West Apartments, the use of which had also been denied to tenants of buildings M & N. Defendant filed an answer to the amended complaint and the case was tried on October 3 and 4,1967.

FINDINGS OF FACT

1. Plaintiff, Frankford Trust Company, is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, having an office and place of business at 4400 Frankford Avenue, Philadelphia, Pa.

2. Defendant, The Manufacturers Life Insurance Company of Toronto, Canada, is a corporation or[549]*549ganized and existing under the laws of the Province of Ontario, Canada, with its principal place of business at 200 Bloor Street East, Toronto, Canada.

3. Plaintiff is presently the owner of buildings M & N of the Robert Bruce West Apartments, a garden type apartment development situate at the intersection of the northwest corner of Carton Street and the northeast side of Horsham Road, Upper Moreland Township, Montgomery County, Pa.

4. Defendant is presently the owner of buildings F, G, H, J, K, and L of the said Robert Bruce West Apartments.

5. Prior to June 1966, the entire complex known as the Robert Bruce West Apartments was owned by Pennypack Developers, Inc.

6. Construction of buildings F, G, H, J, K, and L of Robert Bruce West was completed in 1961 and Amon Associates, the rental agent, commenced renting in February of 1961.

7. A swimming pool is located on the section of the premises now owned by defendant, which was in operation in the summer of 1962 and used by all tenants of the Robert Bruce West buildings then in existence and entirely during the summers of 1962, 1963 and 1964.

8. On May 14, 1962, Pennypack Developers, Inc., filed an application with the Zoning Board of Adjustment of Upper Moreland Township requesting a special exception or variance to permit “the addition of two apartment houses to the existing group of six apartment houses all of which will constitute a single unit for operation and maintenance, and each unit of which will have an average lot size of 1.84 acres instead of three acres.” (Italics supplied.) The two proposed apartment buildings were designated “M & N.”

9. Pennypack further represented in said application that “the two additional apartment houses would [550]*550be of the same colonial design and construction as those already erected and they would be owned, operated and maintained by applicant as an integral part of the existing group of apartment houses.” (Italics supplied.)

10. Pennypack stated in said application “that thirty-six additional outdoor parking spaces will be provided which are immediately contiguous to the two proposed apartment houses. In all there will be 236 parking spaces to serve the existing and proposed apartment houses, or 17 parking spaces for each apartment unit.” (Italics supplied.)

11. The plan attached to the application reveals twenty parking spaces in a lot located between Buildings M & N which contain twelve apartments each. The only other parking lot “immediately contiguous to the two proposed apartment houses” is behind building L adjacent to building M and contains 36 parking spaces.

12. The application for special exception was approved by the Zoning Board of Adjustment of Upper Moreland Township on September 14,1962.

13. By letter from Nutter Mortgage Service dated March 4, 1963, defendant, The Manufacturers Life Insurance Company of Toronto, Canada (hereinafter referred to as “Manufacturers”) made a commitment to Pennypack Developers, Inc. and Meadowbrook Park, Inc., for a loan in the amount of $1,100,000 to be secured by a mortgage on Robert Bruce West land and Buildings F, G, H, J, K, L, M, and N, the latter two not yet having been constructed, and a second mortgage on Robert Bruce East.

14. The commitment of defendant further provided that $200,000 of the loan was to be withheld pending satisfactory completion of buildings M & N in accordance with the plans and specifications furnished.

[551]*55115. Prior to July 1963, Frankford Trust Company (hereinafter referred to as “Frankford”), cognizant of the $1.1 million commitment of Manufacturers to Pennypack agreed to extend a construction loan of $200,000 to Pennypack for the erection of buildings M & N and to take a mortgage on those buildings.

16. Negotiations for the $200,000 loan were conducted by Leonard Polis, President of Pennypack, and Oliver Twist of Frankford. It was understood by both parties that upon the completion of buildings M & N they would become a part of the Robert Bruce West Apartments, along with the existing six buildings.

17. On July 9, 1963, Pennypack executed and delivered to Frankford a mortgage on the portion of Robert Bruce West on which buildings M & N are now situated (those buildings not having been in existence at the time).

18. On July 9, 1963, Pennypack executed and delivered a mortgage on Robert Bruce West buildings F, G, H, J, K, L, M & N to Manufacturers.

19. Frankford’s mortgage covering buildings M & N was recorded July 11, 1963; Manufacturers’ mortgage covering the entire Robert Bruce West complex was recorded July 12, 1963. In addition, a subordination agreement was executed by the parties, by which the mortgage of Manufacturers was subordinated to that of Frankford.

20. Construction of buildings M & N commenced in the summer of 1963, after the execution and recording of the mortgages.

21. On March 31, 1964, proceedings were commenced in the U. S.

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Bluebook (online)
47 Pa. D. & C.2d 547, 1968 Pa. Dist. & Cnty. Dec. LEXIS 82, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frankford-trust-co-v-manufacturers-life-insurance-pactcomplmontgo-1968.