New owner of former McDonald's in Covington Twp. aims to remove deed restriction prohibiting another restaurant there for 10 years

Jim Lockwood, The Times-Tribune, Scranton, Pa.
·2 min read

Jun. 12—COVINGTON TWP. — The new owner of a former McDonald's restaurant at Routes 502 and 435 wants a court to remove a deed restriction that prevents the property from being used again as an eatery for 10 years.

B&B Realty Co. of Covington Twp., a firm of local businessman Bill Bracey, recently filed in Lackawanna County Court a legal proceeding called a "quiet title action" against McDonald's USA LLC of Chicago.

According to the complaint:

The 2,250-square-foot building was a McDonald's from February 1996 to approximately December 2018. B&B bought the property from the McDonald's corporation in February 2019 for $350,000.

The transaction contained a deed restriction dictating that the property cannot be leased, used or occupied as a restaurant or for food-service purposes of any type of food and drink for 10 years. B&B intends to lease the property for use as a restaurant, but cannot because of the deed restriction.

The deed restriction is unenforceable on numerous counts, according to the lawsuit, including: It was intended to eliminate competition, but because there are no fast-food restaurants for several miles, the deed restriction has "absolutely no value" to McDonald's; and the restriction forbids non-fast-food restaurants, such as casual and fine-dining establishments with wait staff and full, sit-down service.

Unspecified social and demographic conditions of the neighborhood of Route 502 (Daleville Highway) and Route 435 (Drinker Turnpike), as well as of the township, county and region at large, have changed significantly and eliminated the value of the deed restriction, the lawsuit reads.

The restriction impedes reasonable use of the property for its original purpose, and "constitutes a cloud" on the plaintiff's title to the property.

The vacant building, which has its large windows boarded up, has a sign out front saying the property is available for leasing. Efforts to contact Bracey were unsuccessful.

A quiet title action, which is a non-jury proceeding heard by a judge, may be brought to seek to compel an adverse party to cancel, surrender or discharge an obligation affecting a right, lien title or interest in property.

A court may grant a quiet title for various reasons, including if a defendant fails to respond, or based upon a hearing or trial on the merits of the case.

The litigation seeks a judgment declaring the deed restriction is unenforceable and B&B may legally operate a restaurant there.

McDonald's has not yet filed a formal response to the action in court. A spokeswoman for McDonald's USA LLC said the firm could not immediately respond Friday to a request for comment from The Times-Tribune, but was reviewing the request and may comment next week.

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