Appeal, No. 159, March T., 1963, from order of Court of Common Pleas of Allegheny County, Jan. T., 1961, No. 3504, in case of John L. Lengyel, Jr. and Tower Real Estate Company v. Heidelberg Sports Enterprises, Inc. and Pascoe Motor Company. Order affirmed.
Oran W. Panner, with him Thompson Bradshaw, and Bradshaw and Panner, for appellants.
D. B. Tobe, for appellee.
Maurice Louik, with him Harrison & Louik, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE ROBERTS
Appellants, owners of a tract of land, filed suit in ejectment against appellees for breach of the terms of a lease. Appellee Heidelberg Sports Enterprises, Inc. (Heidelberg) is the assignee of the lease between appellants and Henry F. Miller, Jr., and for all practical
purposes, is the tenant of appellants. Appellee Pascoe Motor Company (Pascoe) is a sub-tenant under a separate lease between Pascoe and Heidelberg.
The relevant portion of the basic lease between appellants and Heidelberg in so far as this action affects the sub-tenant, Pascoe, is as follows: "4. The purpose for which this lease is made is the operation of an amusement park or arena for automobile, midget or any other type of racing, soccer, polo or other games and sports, athletic exhibitions and so forth, the sale of food, drinks and like concessions, not necessarily limited to those specifically herein mentioned; provided, however, that no football games, other than soccer, shall be played on the premises, except by teams designated by the Lessor or his appointee."
The complaint pleads that Heidelberg leased a portion of the subject premises to Pascoe as a used car lot in violation of this provision.
Appellants' complaint also alleges a violation by Heidelberg of the following rental clauses of the lease: "5. In consideration whereof, the Lessee covenants, stipulates and agrees to pay unto the Lessor, as rental, the sum of Two hundred (200) Dollars per month from the date when construction of the said park shall begin, or as hereinafter set forth, plus such additional sums as said Two hundred (200) Dollars is exceeded by a percentage of Lessee's gross income, determined as follows: a. Five (5) per cent upon gross sales under all concession granted or un by the Lessee. b. Ten (10) per cent upon the gross receipts, less taxes, from all racing, track or other sports not specifically mentioned, operated or conducted by Lessee, his heirs or assigns. c. Fifteen (15) per cent upon gross rentals ...