Appeal, No. 217, Jan. T., 1961, from order of Court of Common Pleas No. 1 of Philadelphia County, March T., 1959, No. 2173, in case of Ridley Park Shopping Center, Inc. v. Sun Ray Durg Co., Leslie's of Ridley, Inc., and Bargain City, U.S.A., Inc. Order affirmed.
Robert K. Greenfield, with him Edward Greer, Stanford S. Hunn, and Folz, Bard, Kamsler, Goodis & Greenfield, for appellant.
Bernard M. Borish, with him Seymour Kurland, and Wolf, Block, Schorr and Solis-Cohen, for appellees.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.
OPINION BY MR. JUSTICE EAGEN
This is a declaratory judgment proceeding wherein the court below entered an adjudication in favor of the defendants. Plaintiff appeals.
Plaintiff-corporation was the owner of an undeveloped tract of land whereon the construction of a shopping center was contemplated. By virtue of two written agreements entered into between plaintiff's predecessor in title and the defendants, Sun Ray Drug Company and Leslie's of Ridley, Inc., who subsequently assigned their rights thereunder to the defendant, Bargain City, U.S.A., Inc., the plaintiff was obligated to construct a building on the tract consisting of a total of 60,000 square feet of floor space, which Bargain City would occupy for a specified rental. Subsequently, before construction was initiated Bargain City indicated a desire to lease an additional 30,000 square feet of space contiguous to that specified in the written leases. Negotiations between the parties ensued. As a result, Bargain City with the acquiescence of the plaintiff arranged for its own building contractor to take over completion of the construction of the original building and increase the size thereof to approximately 100,000 square feet. No written agreement providing for the occupancy and rental of the additional space was ever executed. The building was completed and Bargain City took possession and began conducting business therein during the month of October, 1958.
This action was instituted on April 21, 1959. In its petition for declaratory judgment, the plaintiff asserted that Bargain City was occupying that portion of the premises in excess of the 60,000 square feet covered by the written leases, without agreement or legal right, and requested that the court enter a decree
awarding possession of that portion of the premises to the plaintiff with restitution for the fair rental value, less the value of the improvements the defendants caused to be effected thereon. The defendants filed an answer wherein it was asserted that the original written leases had been modified by a subsequent oral agreement between the parties and that in this supplemental agreement all terms concerning the occupancy and rental of the entire building had been specifically agreed upon.
After a hearing, the lower court made findings of fact which sustained the position of the defendants, i.e., it found that the original written leases had been modified by a subsequent oral agreement and that Bargain City was legally occupying the entire premises by virtue of this new agreement which definitely fixed all necessary terms.
The court below did not exercise proper discretion in granting a petition for declaratory judgment in this case. See, McWilliams v. ...