Auto Shower II, Inc. v. M.D. Juszczak ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Auto Shower II, Inc., :
Appellant :
v. : No. 1165 C.D. 2022
: Argued: October 10, 2023
Mark Darius Juszczak, Katerina P. :
Juszczak, Borough of Wilkinsburg, :
and County of Allegheny :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION
BY SENIOR JUDGE LEAVITT FILED: November 17, 2023
Auto Shower II, Inc. appeals an order of the Court of Common Pleas of
Allegheny County (trial court) that refused to strike restrictive covenants placed
upon the title to a property in conservatorship, without advance notice to the
conservator or approval of the trial court supervising the conservatorship. Although
the trial court’s order is interlocutory, this Court agreed to hear the appeal. For the
reasons that follow, we reverse the trial court’s interlocutory order and remand the
matter with instructions to grant the motion to strike restrictive covenant.
This case has its genesis in a 2018 petition for the appointment of a
conservator of property located at 421 Ross Street, Wilkinsburg, Pennsylvania
(Property). Filed under the Abandoned and Blighted Property Conservatorship Act
(Conservatorship Act),1 the petition described the Property as meeting the conditions
1
Act of November 26, 2008, P.L. 1672, as amended, 68 P.S. §§1101-1111. It states:
The General Assembly finds and declares that:
(1) Pennsylvania’s older communities are important to the Commonwealth’s
economic health by providing a focal point for businesses and services and to this
Commonwealth’s quality of life with its rich history and diverse communities.
for conservatorship because it was abandoned and “unfit for human habitation,
occupancy or use[.]” Amended Petition ¶36; Reproduced Record at 82a (R.R. __).
Specifically, the front of the house, facing the street, had shingles and brick façade
falling off; boarded up windows; overgrown brush on the front steps; and a missing
gas meter, indicating a lack of heat. Id. ¶32; R.R. 81a. The rear of the house had
broken windows, an overgrowth of weeds and brush, and debris scattered on the
back porch. Id. ¶34; R.R. 82a. Further, the roof was bulging and missing shingles.
Id. Finally, “[t]he presence of vermin and the accumulation of debris, uncut
vegetation [and] physical deterioration of the structure and grounds [] created
potential health and safety hazards.” Id. ¶35; R.R. 82a.
However, many older communities suffer from blighted properties that have been
abandoned by their owners.
(2) Many citizens of this Commonwealth are adversely affected by abandoned and
blighted residential, commercial and industrial properties, including those citizens
who live in proximity to such substandard buildings, as well as those who own
property in the vicinity of such buildings.
(3) Substandard, deteriorating and abandoned residential, commercial and
industrial structures are a public safety threat and nuisance and their blighting effect
diminishes property values in the communities in which these properties are
located.
(4) If these buildings are not rehabilitated, they are likely to remain abandoned and
further deteriorate, resulting in increased costs to the Commonwealth, municipality
and taxpayers to secure and ultimately demolish them.
(5) Providing a mechanism to transform abandoned and blighted buildings into
productive reuse is an opportunity for communities to modernize, revitalize and
grow, and to improve the quality of life for neighbors who are already there.
(6) If the owner of a residential, commercial or industrial building fails to maintain
the property in accordance with applicable municipal codes or standards of public
welfare or safety, it is in the best interest of the Commonwealth, the municipality
and the community for the court, pursuant to the provisions of this act, to appoint a
conservator to make the necessary improvements before the building deteriorates
further and necessitates demolition, resulting in the removal of the building from
the housing supply or prohibiting future productive economic use.
Section 2 of the Conservatorship Act, 68 P.S. §1102 (emphasis added).
2
The appellant, Auto Shower II, Inc. (Auto Shower), owns and operates
a car wash business located within 10 feet of the Property. In its amended petition
for the appointment of a conservator, Auto Shower averred that it had the financial
resources and experience to rehabilitate the Property. The petition stated that, if
named conservator, Auto Shower would initiate a three-phase plan to “allow the
[P]roperty to add economic value to the residen[ces] and business[es] [] in the area.”
Amended Petition ¶48; R.R. 84a.
The trial court determined that the Property met the conditions for a
conservatorship and appointed Auto Shower as conservator, effective August 8,
2018. However, the trial court did not rule on the petition’s proposed abatement
plan to demolish the existing building on the Property and replace it with an
expanded parking lot and a bank of car vacuum cleaners for Auto Shower’s adjacent
car wash business. In response, the owners of the Property, Mark Darius Juszczak
and Katerina P. Juszczak (Owners), appealed the trial court’s conservatorship order
to this Court. In an unreported opinion, we dismissed Owners’ appeal for the stated
reason that they had failed to file post-trial motions, and, in any case, the trial court’s
determination was fully supported by the record.2
On November 25, 2019, four days after this Court dismissed Owners’
appeal, Owners executed an Indenture that conveyed the Property from themselves
to themselves, for $1.00, and imposed nine restrictive covenants in a new deed.3
2
See Auto Shower II, Inc. v. Juszczak (Pa. Cmwlth., No. 1611 C.D. 2018, filed November 21,
2019).
3
The covenants included, inter alia, a prohibition on accumulation of trash or debris; a prohibition
on subdivision of the premises without Owners’ express consent; a prohibition on animals other
than household pets; a prohibition on placing billboards on the premises; and a prohibition of any
use other than as a single-family residential dwelling. The restrictions were to run as covenants
with the land for 25 years from the date of the Indenture. Indenture at 2-3; R.R. 211a-12a.
3
R.R. 210a-14a. The new deed, or Indenture, was recorded on December 5, 2019.
One restrictive covenant provides that “[t]he premises shall not be used for any
purpose other than a single-family residential dwelling.” R.R. 211a.
The trial court scheduled a hearing on Auto Shower’s proposed
abatement plan for the Property. However, before the hearing, Owners and Auto
Shower entered into a Settlement Agreement and Mutual Release (Settlement
Agreement). Under the Settlement Agreement, Owners agreed to sell the Property
to Auto Shower for $10,000, and Auto Shower agreed to give Owners a release that
stated as follows:
Auto Shower . . . now and forever, fully and finally, release,
acquit and discharge [Owners] . . . from, and for any and all
claims, demands, rights of action, causes of action, lawsuits . . .
claims for costs . . . or requests for relief of any character
whatsoever, legal or equitable, that are known, or should have
been known from the exercise of reasonable diligence, as of the
date of this [Settlement] Agreement, and arising out of or relating
in any way to the Action, the Deed, and/or the Subject Property.
Settlement Agreement at 2; R.R. 174a. On June 20, 2020, Owners conveyed the
Property to Auto Shower by quit claim deed. R.R. 217a-21a. The Settlement
Agreement obligated Auto Shower to file a praecipe to terminate the conservatorship
of the Property upon completion of the transaction, but it has not done so.
On November 16, 2020, Auto Shower filed a motion to strike restrictive
covenant. On June 17, 2021, the trial court held a remote hearing on Auto Shower’s
motion. On June 29, 2022, the trial court directed the parties to provide additional
briefing. On August 8, 2022, Auto Shower filed its brief, and Owners filed a brief
in opposition to the motion to strike, as well as a motion to enforce settlement in
order to compel Auto Shower to discontinue the conservatorship.
4
On August 16, 2022, after a second hearing, the trial court issued an
order denying Auto Shower’s motion to strike for the stated reason that the
Conservatorship Act places no limits on “owners that would prohibit them from
transferring or restricting their property interest while the property is subject to
conservatorship.” Trial Court Order, 8/16/2022, at 1; R.R. 185a. The trial court did
not rule on Owners’ motion to enforce the Settlement Agreement.
On September 7, 2022, Auto Shower requested the trial court to certify
its order for an interlocutory appeal. Its application stated that “resolution of the
issue of whether the restrictive covenant is valid or if it is void . . . is the only issue
remaining in this matter before the conservatorship is terminated.” Application for
Certification ¶19; R.R. 189a. On October 6, 2022, the trial court issued an amended
order certifying its order to deny Auto Shower’s motion to strike for an immediate
appeal to this Court. The trial court stated that its “order involves a controlling
question of law as to which there is substantial ground for difference of opinion and
that an immediate appeal . . . may materially advance the ultimate termination of this
matter,” in accordance with 42 Pa. C.S. §702(b). Trial Court Order, 10/6/2022; R.R.
194a.
On February 6, 2023, this Court granted Auto Shower’s petition for
permission to appeal the issues set forth in its petition as follows:4
1. Whether the trial court erred when it denied [Auto
Shower’s] Motion to Strike Restrictive Covenant; and
2. Whether the trial court erred when it found that, under the
Abandoned and Blighted Property Conservatorship Act, Act of
November 26, 2008, P.L. 1672, as amended, 68 P.S. §§1101-
1111 (Act 135), there are no limits placed on owners that would
4
The Borough of Wilkinsburg and County of Allegheny are referenced in the caption. However,
this Court issued an order precluding them from participating in oral argument, as a result of their
failure to file briefs.
5
prohibit them from transferring or restricting their property
interest while the property is subject to conservatorship.
Court Order, 2/6/2023.
The central issue in this case is whether the Conservatorship Act allows
owners of a property subject to a court’s conservatorship order to restrict the future
development of their property without the agreement of the conservator or the
approval of the conservatorship court.5 Auto Shower argues that the trial court erred
in holding that the Conservatorship Act places no such limits on owners of property
in conservatorship. Owners respond that the trial court correctly construed the
Conservatorship Act and that “the law governing this Court’s review [here] is that
of contract[,]” not conservatorship. Owners Brief at 8.
We begin our analysis with a review of the applicable law.
Section 6 (a) and (b) of the Conservatorship Act, entitled “Powers and
duties of conservator,” states in relevant part as follows:
(a) Full powers and duties.-- The conservator shall have all
powers and duties necessary or desirable, from time to time, for
the efficient operation, management and improvement of the
building in order to bring it into compliance with all municipal
building and housing code requirements and to fulfill the
conservator’s responsibilities under this act. Such powers and
duties shall include, but not be limited to, the power to:
(1) Take possession and control of the building,
appurtenant land and any personal property of the owner
used with respect to the building, including any bank or
operating account for the building.
5
Our review determines whether the trial court abused its discretion or committed an error of law
necessary to the outcome of this case. In re Conservatorship Proceeding In Rem by Germantown
Conservancy, Inc., 995 A.2d 451, 459 n.6 (Pa. Cmwlth. 2010). The proper interpretation of a
statute is a question of law. Accordingly, our standard of review is de novo and our scope of
review is plenary. Franks v. State Farm Mutual Automobile Insurance Company, 292 A.3d 866,
871 n.9 (Pa. 2023).
6
****
(10) Engage and pay legal, accounting, appraisal and
other professionals to aid the conservator in the conduct of
the conservatorship.
****
(13) Sell the building in accordance with section 9.
(14) Exercise all authority that an owner of the building
would have to improve, maintain and otherwise manage
the building, including the extent to which rehabilitation
will satisfy the goals of the conservatorship.
(b) Affirmative duty.--While in possession of the building, the
conservator shall:
(1) Maintain, safeguard and insure the building.
****
(3)(i) Develop a final plan for abatement of the
conditions which caused the petition to be granted
or, if no such feasible final plan can be developed,
to develop alternatives, including the closing,
scaling or demolition of all or part of the building.
(ii) When the building has been designated a
historic property, rehabilitate architectural features
that define the property’s historic character.
(iii) When demolition of a property in a historic
district is necessary, design any replacement
construction on the site to comply with applicable
standards under current law.
(4) Implement the final plan referred to in paragraph (3)
upon approval by the court.
(5) Submit a status report to the court and parties to the
action annually or more frequently as the court may deem
appropriate . . . .
68 P.S. §1106(a), (b) (emphasis added).
7
Section 7(a), entitled “Ownership of property,” addresses the
ownership rights of the conservator and the rights of the property owner during
conservatorship. It states:
(a) A conservator appointed under Section 5 [of the
Conservatorship Act] shall be deemed to have an ownership
interest in and legal control of the property for the purposes of
filing plans with public agencies and boards, seeking and
obtaining construction permits and other approvals and
submitting applications for financing or other assistance to
public or private entities.
68 P.S. §1107(a) (emphasis added). Nevertheless, the owner retains liability for,
inter alia, taxes. Section 7(b) of the Conservatorship Act, 68 P.S. §1107(b).
Section 9(a) of the Conservatorship Act addresses the sale of property
in conservatorship. It states:
If a property subject to conservatorship is sold by the owner or
foreclosed upon by a lienholder or if any interest therein is
transferred, such sale, foreclosure or transfer shall be subject to
the conservatorship.
68 P.S. §1109(a) (emphasis added). With respect to a sale by the conservator,
Section 9(b) further provides as follows:
Upon application of the conservator, the court may order the sale
of the property if the court finds that:
(1) Notice and an opportunity to provide comment to
the court was given to each record owner of the property
and each lienholder.
(2) The conservator has been in control of the building
for more than three months and the owner has not
successfully petitioned to terminate the conservatorship
under section 10.
(3) The terms and conditions of the sale are acceptable
to the court, and the buyer has a reasonable likelihood of
maintaining the property.
8
68 P.S. §1109(b).
Auto Shower argues that the trial court erred in its construction of the
Conservatorship Act. Its holding that the statute places no limits on the ability of an
owner of property in conservatorship to restrict the property’s future use cannot be
reconciled with the statutory scheme, which gives the conservator “legal control of
the property.” Section 7(a) of the Conservatorship Act, 68 P.S. §1107(a).
The Indenture recites that the Grantors, i.e., Owners, for the sum of
$1.00, did “grant, bargain, sell, alien, release and confirm” to the Grantees, i.e.,
Owners, their interest in the Property. Indenture at 1; R.R. 210a. This sale subjected
the Property to a covenant, enforceable by Grantees and their heirs, that the Property
“shall not be used for any purpose other than a single[-]family” residence for 25
years. R.R. 211a-12a. Auto Shower contends that Owners had no power to so
encumber the Property without the consent of the conservator. Specifically, the
owner cannot revise the deed “with the effect that it prevents the conservator’s plan
to rehabilitate and use the property[.]” Auto Shower Brief at 16.
Auto Shower further argues that
[t]he intervention of an interested party as conservator is to
correct the damage caused by the neglect of the property owner.
To then provide the same owner who allowed a property to reach
such a dilapidated condition that necessitated a conservatorship
the unilateral power to make decisions regarding the future use
of the property without the consent of the conservator is not
consistent with the [Conservatorship] Act or the concept of a
conservatorship.
Auto Shower Brief at 17 (emphasis added). The purpose of the lis pendens
requirement in the Conservatorship Act is to notify the world that the subject
property is in conservatorship and, thus, subject to court supervision. Section 4(c)
9
of the Conservatorship Act, 68 P.S. §1104(c).6 Stated otherwise, Section 4(c)
confirms that the owner of a property in conservatorship has limited authority to act
with respect to that property.
In response, Owners argue that the trial court never approved Auto
Shower’s abatement plan, let alone the expansion of Auto Shower’s car wash
business onto the Property. Nowhere does the Conservatorship Act state that an
owner cannot sell property in conservatorship. By contrast, Section 9(b) requires
the conservator to obtain court approval before it can sell a property in
conservatorship. 68 P.S. §1109(b). In any case, Owners have sold the Property to
Auto Shower, and this sale has mooted “the need for judicial oversight of [the
Property.]” Owner Brief at 9.
Auto Shower’s proposed abatement plan had been filed with the trial
court, thereby alerting Owners (and the world) to the conservator’s intentions. It
was only after Owners’ appeal was dismissed by this Court that Owners executed
the Indenture, on advice of their counsel. Hearing Transcript, 6/17/2021, at 11;
Supplemental Reproduced Record at 138b. Auto Shower contends that the sole
purpose of Owners’ restrictive covenant was to interfere with the abatement plan
still pending before the trial court. This is a reasonable inference. However, it is
not dispositive of the motion to strike. Rather, the statute is dispositive. The
question raised by the Conservatorship Act appears to be one of first impression, i.e.,
the meaning of “subject to conservatorship” in Section 9(a) of the Conservatorship
Act. 68 P.S. §1109(a).
6
Section 4(c) of the Conservatorship Act states:
Notice of lis pendens.--The petitioner shall file a notice of lis pendens in the office
of the recorder of deeds for the county in which the property is located.
68 P.S. §1104(c).
10
The Conservatorship Act provides that a property “subject to
conservatorship” remains in conservatorship notwithstanding its sale or transfer. 68
P.S. §1109(a). Further, it is the conservator that has the power to bring the property
“into compliance with all municipal building and housing code requirements,” with
the specific power to take “possession and control of the building [and] appurtenant
land[.]” 68 P.S. §1106(a)(1). An owner’s interference with the future use of a
property in conservatorship is antithetical to the conservator’s control of the building
and “appurtenant land.” 68 P.S. §1106(a)(1). A change in or limit to the property’s
future use necessarily requires the involvement of the conservator and the court.
Where a statute is unclear or ambiguous, the canons of statutory
construction may be employed. See Township of Washington v. Township of Upper
Burrell, 184 A.3d 1083, 1088-89 (Pa. Cmwlth. 2018). The Statutory Construction
Act of 1972 states that where the words are not explicit, the “intention of the General
Assembly may be ascertained by considering . . . [t]he occasion and necessity for
the statute . . . [and] the consequences of a particular interpretation.” 1 Pa. C.S.
§1921(c)(1), (6).7 In this regard, the legislature has directed that “the General
7
Section 1921 states:
(a) Object and scope of construction of statutes.--The object of all interpretation
and construction of statutes is to ascertain and effectuate the intention of the
General Assembly. Every statute shall be construed, if possible, to give effect to all
its provisions.
(b) Unambiguous words control construction.--When the words of a statute are
clear and free from all ambiguity, the letter of it is not to be disregarded under the
pretext of pursuing its spirit.
(c) When the words of the statute are not explicit, the intention of the General
Assembly may be ascertained by considering, among other matters:
(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
11
Assembly does not intend a result that is absurd, impossible of execution or
unreasonable.” 1 Pa.C.S. §1922(1).8 The occasion for the Conservatorship Act is
“to transform abandoned and blighted buildings into productive reuse . . . and to
improve the quality of life for neighbors who are already there.” 68 P.S. §1102(5).
To divorce the conservator, or the court, from the decision to restrict the future use
of a blighted property produces an unreasonable result. 1 Pa. C.S. §1922(1).
We reject the trial court’s construction of Section 9(a) of the
Conservatorship Act because it effectively reads “subject to the conservatorship” out
of the statute. It would mean that the owner is free to restrict the use of the conserved
property to, say, a crematorium, or any peculiar use, regardless of whether it is
compatible with the neighborhood or desired by the marketplace. At a minimum, it
was Owners’ burden to show that restricting the use of the Property to a single-
family dwelling for 25 years would not impede its return to a “productive reuse.” 68
P.S. §1102(5). However, Owners offered no such evidence at the hearing on the
motion to strike.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon the same or similar
subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such statute.
1 Pa. C.S. §1921.
8
Section 1922(1)-(2) states, in part:
In ascertaining the intention of the General Assembly in the enactment of a statute
the following presumptions, among others, may be used:
(1) That the General Assembly does not intend a result that is absurd, impossible
of execution or unreasonable.
(2) That the General Assembly intends the entire statute to be effective and certain.
1 Pa. C.S. §1922(1)-(2).
12
The conservatorship proceeding had not terminated when Auto Shower
filed its motion to strike. We reject Owners’ contention that its sale of the Property
to Auto Shower has “mooted” the conservatorship. The Conservatorship Act
expressly provides that a sale does not affect the conservatorship. Further, a
termination of a conservatorship can be done only by request and court order. The
Conservatorship Act states as follows:
Section 10. Termination of conservatorship.
Upon request of a party in interest or the conservator, the court
may order the termination of the conservatorship if it determines:
(1) the conditions that were the grounds for the petition
and all other code violations have been abated or
corrected, the obligations, expenses and improvements of
the conservatorship, including all fees and expenses of the
conservator, have been fully paid or provided for and the
purposes of the conservatorship have been fulfilled;
(2) the owner, mortgagee or lienholder has requested the
conservatorship be terminated and has provided adequate
assurances to the court that the conditions that constituted
grounds for the petition will be promptly abated, all
obligations, expenses and improvements of the
conservatorship, including all fees and expenses of the
conservator, have been fully paid or provided for and the
purposes of the conservatorship have been fulfilled;
(3) the building has been sold by the conservator and the
proceeds distributed in accordance with section 9(d); or
(4) the conservator has been unable, after diligent effort,
to present a plan that could be approved under section
6(b)(3) or to implement a previously approved plan or, for
any reason, the purposes of the conservatorship cannot be
fulfilled.
68 P.S. §1110. A sale of the conserved property to the conservator is not a stated
ground for termination of the conservatorship.
13
The Conservatorship Act did not require Owners to obtain the trial
court’s approval to sell the Property, either to themselves or to Auto Shower. Section
9(a) of the Conservatorship Act, 68 P.S. §1109(a). However, imposition of a
restrictive covenant on the future use of the conserved Property was a matter for the
trial court’s approval in light of the ongoing conservatorship proceeding.
Owners contend, in the alternative, that this matter is governed by
contract law, not the Conservatorship Act. Before Auto Shower took title to the
Property, Owners notified Auto Shower’s principal, Ronald Buchanan, of the
restrictive covenants in the deed. Under the Settlement Agreement of June 10, 2020,
Auto Shower was aware, or by reasonable due diligence should have been aware, of
the new covenants.9 Owners Brief 6-7. Owners assert that the sale price “was only
acceptable because of the limitations they imposed” upon the Property. Owners
Brief at 14. By accepting the terms of the settlement and the Property “as is,” Auto
Shower agreed to the covenants and cannot now undo them without violating the
settlement.
This Court has explained that “[i]f courts were called on to re-evaluate
settlement agreements, the judicial policies favoring settlements would be deemed
useless. Settlement agreements are enforced according to principles of contract
law.” Hydrojet Services, Inc. v. Reading Area Water Authority, 220 A.3d 1199, 1204
(Pa. Cmwlth. 2019) (quoting Mastroni-Mucker v. Allstate Insurance Company, 976
A.2d 510, 518 (Pa. Super. 2009) (internal citations omitted)). Our Supreme Court
has pronounced that “[c]ourts will enforce a settlement agreement if all its material
terms have been agreed upon by the parties. A settlement agreement will not be set
9
Owners state that they sent an e-mail to Auto Shower on December 14, 2019, announcing the
restrictive covenants. Further, the deed was recorded on December 5, 2019. Auto Shower did not
do a title search prior to closing on the sale.
14
aside absent a clear showing of fraud, duress, or mutual mistake.” Pennsbury Village
Associates, LLC v. Aaron McIntyre, 11 A.3d 906, 914 (Pa. 2011) (internal citations
omitted).
Both Auto Shower and Owners were bound by the terms of the
Conservatorship Act during the conservatorship of the Property. They lacked the
authority, by agreement or otherwise, to divest the conservatorship court of its
jurisdiction over the Property, which includes the court’s review of proposed
limitations on the Property’s future use. Simply, the parties cannot agree to contract
terms that violate statutory law. Sayles v. Allstate Insurance Company, 219 A.3d
1110, 1123 (Pa. 2019). We reject Owners’ argument that the Settlement Agreement
is in any way dispositive of their ability to restrict the Property’s future use.10
For all these reasons, we reverse the trial court’s order and remand to
the trial court to enter an order granting Auto Shower’s motion to strike restrictive
covenant.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
Judge Wojcik did not participate in the decision in this case.
10
The Settlement Agreement may be dispositive of purely private issues that are ancillary to the
restrictive covenant, such as the conservator’s ability to seek fees from Owners for work done
during the conservatorship.
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Auto Shower II, Inc., :
Appellant :
v. : No. 1165 C.D. 2022
:
Mark Darius Juszczak, Katerina P. :
Juszczak, Borough of Wilkinsburg, :
and County of Allegheny :
ORDER
AND NOW, this 17th day of November, 2023, the October 6, 2022,
order of the Court of Common Pleas of Allegheny County (trial court), in the above-
captioned matter, is REVERSED. This matter is REMANDED to the trial court to
enter an order granting Auto Shower II, Inc.’s motion to strike restrictive covenant.
Jurisdiction relinquished.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita