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NIGRO v. DON-MAR CORPORATION (12/27/51)

December 27, 1951

NIGRO, APPELLANT,
v.
DON-MAR CORPORATION



Appeal, No. 191, Jan. T., 1951, from judgment of Court of Common Pleas No. 2 of Philadelphia County, Dec. T., 1950, No. 6870, in case of Teresa Nigro v. Don-Mar Corporation. Judgment affirmed.

COUNSEL

Rames J. Bucci, with him Bucci & Bucci, for appellant.

Sidney B. Gottlieb, for appellee.

Before Drew, C.j., Stern, Stearne, Bell, Ladner and Chidsey, JJ.

Author: Ladner

[ 369 Pa. Page 35]

OPINION BY MR. JUSTICE LADNER

Plaintiff appellant commenced this action by a complaint in ejectment to recover possession of premises 130 N. 8th Street, Philadelphia, occupied as a taproom. After an answer (which contained new matter) and a reply, plaintiff moved for judgment on the pleadings. The lower court being of the opinion that "defendant's right to possession of the property is clear" entered

[ 369 Pa. Page 36]

    judgment for the defendant on the pleadings pursuant to Pa. R.C.P. 1034(b). From this action we have this appeal.

The facts as gleaned from the pleadings are as follows: Plaintiff is the owner of the premises in question. Defendant is now in possession of said premises. On February 16, 1946, plaintiff entered into a five year lease for the subject premises with Isaac Kauffman. This lease contained in its printed portion the customary covenant against assignment or subletting without written consent of lessor. Included in the lease are also two typewritten clauses the first of which authorizes the lessee to assign the lease "under the same terms and conditions and at the same rental, provided, however, that the Lessee shall use and operate said premises under said lease as a restaurant and taproom." The other typewritten clause is a renewal clause which reads, "Lessor and Lessee further agree that anything herein contained to the contrary notwithstanding, the Lessee shall have the right to renew this lease for a further period of five years from February 16th, 1951, under the same terms and conditions and at the same rental, by giving to the Lessor written notice of his intentions to exercise his Option at least ninety (90) days prior to February 16th, 1951."

On May 10, 1946, the lessee, Isaac Kauffman, assigned the lease in writing to Richard Goldberg. This assignment had the written approval of the plaintiff and following it appeared this agreement signed by Goldberg the assignee: "As part and parcel to this lease, it is further agreed that the new lessee will at all times use the Liquor and Beer License on said premises and will not assign it to anyone to be used at another location and will not ask to have it transferred at another place; however the new lessee will have the right to assign the said license to a new purchaser to use the same on the within mentioned premises." Plaintiff

[ 369 Pa. Page 37]

    in his complaint then avers that "On or about April 1, 1948, said Richard Goldberg sold his business to the defendant and assigned to him all his rights, title and interest in and to said lease." Defendant went into possession of the premises and from that time up to and including January 16, 1951, defendant paid rent ...


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