Appeal, No. 211, Jan. T., 1963, from decree of Court of Common Pleas No. 3 of Philadelphia County, June T., 1961, No. 346, in case of Bernard Levicoff v. Richard I. Rubin & Co., Inc. and Anne E. McCabe. Decree affirmed.
Martin Heller, with him Maximillian J. Klinger, for appellant.
Bernard M. Borish, with him Judah I. Labovitz, Alan J. Davis, and Wolf, Block, Schorr and Solis-Cohen, for appellees.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE MUSMANNO
Some time prior to May, 1960, Anne E. McCabe, owner of a tract of land in Philadelphia, decided to erect on it a shopping center and call it the Ridge & Domino Lane Center. As is customary in these operations, which are having a tremendous impact on the buying habits and domestic routine of nearly the whole nation's buying population, Miss McCabe, through her agents, Richard I. Rubin & Co., Inc., sought to obtain lessees in anticipation of the center's actual construction. To this end, the Rubin Co., as agents for the lessor, entered into a lease with Bernard Levicoff whereby the latter would lease a store unit which was to be constructed especially for him.
The written lease, executed May 16, 1960, provided that the lessee's store was to be built in accordance with plans prepared by the lessor but that the lessor was required to incorporate "the lessee's requirements" as submitted by him. Immediately after the signing of the lease, R. I. Rubin, president of the R. I. Rubin Co., informed Levicoff that he should submit to him a plan of his intended store so that it could be incorporated into the "over-all architectural plan of the center." Levicoff agreed to submit such a plan, but by October 17, 1960, had not done so, even though Rubin continued to ask him for the plan throughout the five-month period. Accordingly on that day, October 17, 1960, Rubin wrote Levicoff that the lease had been cancelled. Shortly thereafter Levicoff did mail Rubin a sketch of his proposed store, but on November 3, 1960, Rubin notified Levicoff by letter that the cancellation of the lease remained unchanged.
On June 8, 1961, Levicoff filed in equity a complaint against the agent and the lessor seeking specific performance of the lease agreement. The defendants filed an answer averring the due cancellation of the lease as a result of the plaintiff's refusal to cooperate with the lessor. The case came on for trial, the chancellor
found for the defendants, and the plaintiff's complaint was dismissed. The plaintiff appealed.
In many controverted cases there is one factor of evidence which, like the hinge of a door, is the principal item on which the door of decision turns. The record would indicate that that pivotal factor in this case is procrastination. The defendants found it impossible to get the plaintiff to act. Rubin testified that he tried to get Levicoff at least a dozen times, succeeded in reaching him a half dozen times; and in each instance Levicoff was reminded that he ...