Appeal, No. 160, Jan. T., 1955, from decree of Court of Common Pleas No. 2 of Philadelphia County, in Equity, Sept T., 1953, No. 870, in case of Philadelphia Transportation Company and Market Street Elevated Passenger Railway Company v. Philadelphia Suburban Transportation Company and Gay Hosiery, also known as Gay Hosiery Company. Decree reversed.
Francis Hopkinson, with him W. Belskin Ginsburg, for appellant.
M. Carton Dittmann, Jr., with him Peter Platten, Hamilton C. Connor, Jr., and Ballard, Spahr, Andrews & Ingersoll, for appellee.
Before Stern, C.j., Stearne, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
The appeal is from a decree in equity enjoining a tenant in a transportation terminal from conducting a store for the retail sale of women's hosiery. The court found that the conduct of such business constituted "undue competition" with a retail women's hosiery merchant in an adjoining transportation terminal in violation of a provision in a written agreement.
The salient facts are largely undisputed and are thus stated by the Chancellor in his adjudication: "Predecessors of plaintiff, Philadelphia Transportation Company, in 1905 and 1917, leased land at 69th Street to predecessors of defendant, Philadelphia Suburban Transportation Company. In 1935 an agreement was entered into between the parties giving the predecessors of defendant Suburban the opportunity to reconstruct their terminal on land adjacent to plaintiff's terminal at 69th Street. In this agreement predecessors of defendant Suburban were limited to using for commercial purposes 25% of the total area leased under the 1905 and 1917 leases and this was also limited to commercial enterprises that are not unduly competitive with lessees in plaintiff's terminal. In April, 1953, defendant Suburban let space in its 69th Street Terminal to defendant Gay Hosiery for the sale of women's apparel, including women's hosiery. Plaintiff Transportation Company, upon learning of this event, notified defendant Suburban that its action violated their 1935 agreement in that defendant was using for commercial purposes more than 25% of the total area covered by the 1905 and 1917 leases, and that defendant
Gay Hosiery would be unduly competitive with a lessee in plaintiff's adjoining terminal. Plaintiff brought the present complaint in equity to enjoin the action of defendants."
The Philadelphia Transportation Company, as indicated, leased space in its terminal to Carmine C. Bonanni for the sale of women's hosiery. He also sold women's aprons and bobby socks. Bonanni is employed by a hosiery manufacturer and supervises the finishing department. For a period he also operated a hosiery concession at the Broad and Olney terminus of the Philadelphia Transportation Company.
On April 1, 1953, defendant Suburban entered into a lease with co-defendant Gay Hosiery Company (whose main store is at 711 Chestnut Street, Philadelphia) whereby it agreed to lease space in Suburban's terminal to Gay "for the sale of hosiery, underwear, blouses, skirts ...