Appeal from decree of Court of Common Pleas No. 2 of Philadelphia County, March T., 1965, No. 192, in case of New Eastwick Corporation v. Philadelphia Builders Eastwick Corporation.
Theodore Voorhees, with him Dechert, Price & Rhoads, for appellant.
John R. McConnell, with him H. Mark Solomon, and Morgan, Lewis & Bockius, for appellee.
Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Jones and Mr. Justice Roberts concur in the result. Mr. Justice Cohen dissents. Mr. Chief Justice Bell took no part in the consideration or decision of this case.
This is an appeal by New Eastwick Corporation [NEC], plaintiff in the court below, from a final decree of the Court of Common Pleas No. 2 of Philadelphia County, dismissing plaintiff's complaint in equity. Plaintiff sought to restrain defendant, Philadelphia Builders Eastwick Corporation [PBEC], from interfering with NEC's contractual rights under a Redevelopment
Agreement dated July 12, 1961 with the Redevelopment Authority of the City of Philadelphia [Authority].
By the terms of that agreement NEC agreed to purchase for the sum of $12,192,865 all of the residential land [Stages I, II, III and IV] in the Eastwick Urban Renewal Area of Philadelphia, subject to a thirty-months option in favor of PBEC to purchase Stage III and IV, amounting to approximately one-half of that land.*fn1 The option expired on January 12, 1964, and it was not exercised at that, or any later, time. Ten months later, during the month of October, 1964, PBEC presented the Authority with a "preliminary agreement" which would grant PBEC and entirely new option for the same stages covered by the original one. The date of expiration of this proposed option was three years later, however, i.e., on January 12, 1967. When plaintiff was finally told about this agreement and learned of the willingness of the Authority to execute it, it instituted this suit to restrain PBEC from interfering with its contractual rights to the land in question.
The case was heard by Judge Alessandroni, who died before writing an adjudication. It was then agreed by counsel that Judge Reimel be substituted for Judge Alessandroni and that he should decide the case on the record of the hearing before Judge Alessandroni. On July 18, 1966 Judge Reimel entered his adjudication and a decree nisi dismissing the complaint. Exceptions were filed by NEC and dismissed on January 5, 1967, by a court en banc consisting of
Judges Reimel, Doty and Reid. Plaintiff took this appeal from the court's final decree.
The court below dismissed the complaint because it found that the plaintiff had waived strict compliance with the time limitation of the option. It also concluded that plaintiff had failed to make a showing of irreparable injury. On this appeal appellant urges that on the undisputed facts there is no support for PBEC's claim that the time limitation was waived and that even if there were a waiver, that fact would not justify PBEC's later interference with the contractual rights of NEC. It is also urged that the ...