Appeals, Nos. 439, 440 and 441, Jan. T., 1962, from decree of Court of Common Pleas No. 3 of Philadelphia County, June T., 1962, No. 4825, in case of Lewis E. Lerner, Edith Lerner, and Lerner's, Inc. v. James Poulos, Vera Poulos and Peter Manos. Decree reversed; reargument refused November 26, 1963.
Franklin Poul, with him Martin Greitzer, Alan J. Davis, and Takiff & Bolger, and Wolf, Block, Schorr and Solis-Cohen, for appellants.
James L. Stern, with him Markovitz & Stern, for appellees.
Before Musmanno, Jones, Cohen, Eagen and O'brien, JJ.
OPINION BY MR. JUSTICE O'BRIEN
This is an appeal from the decree of the court below granting a preliminary injunction after hearing.
Horn and Hardart Baking Company owned a parcel of land in Philadelphia at the southeast corner of Market and Second Streets, with approximate frontages of 56 feet on Market Street and 75 feet on Second Street. The corner portion of lot which extended 32 feet on Market Street and about 48 feet on Second Street was used for parking and was vacant ground, except for two cinder block structures, or sheds. The remaining part of the parcel contained a restaurant, an "L" shaped building, which abutted the east and south sides of the lot. The building had a frontage of 24 feet on Market Street and 27 feet on Second Street, and was known as 134-136 Market Street and 5-7 Second Street. The vacant lot was numbered 138-140 Market Street. The building had been used as a restaurant and the two concrete block sheds were built on the lot adjacent to the building. One had been used as a coal bin for the building and the other housed a conveyor which was accessible through an opening in the wall and was used to carry dirty dishes to the basement of the restaurant building.
James Poulos, one of the appellants, on learning the property was for sale by Horn and Hardart, told Albert Young about it. Horn and Hardart wanted to sell the parcel as a unit and Poulos and Young agreed to purchase the entire property for $60,000. Poulos was interested in the corner piece of land only, as he
wanted to erect a diner on the corner. Young and Poulos agreed to a division of the property and Horn and Hardart, by deed dated January 12, 1961, conveyed the restaurant building and the ground it occupied to Albert A. Young and Elizabeth Young, his wife, and the remaining part of the parcel, including the cinder block sheds, was conveyed to James Poulos and Vera Poulos, his wife, in accordance with the agreement of Poulos and Young, each paying one-half of the $60,000 purchase price.
The Youngs sold their portion of the property to Lewis E. Lerner and Edith Lerner, his wife, by deed of April 16, 1962, pursuant to an agreement of February 1, 1961. The Lerners, doing business as Lerner's Inc., a corporation, commenced the operation of a restaurant on the premises in the spring of 1961.
About a year later Mr. Poulos secured the necessary funds and prepared to proceed with his plan to erect the diner. He engaged Peter Manos, another appellant, in the summer of 1962, to excavate, lay the foundation and to prepare the lot for the installation of the diner. Manos, in the course of the work, demolished the shed used as a coal bin*fn1 and set ...