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OAKLANE SHOPPING CENTER v. FLAME (03/21/72)

decided: March 21, 1972.

OAKLANE SHOPPING CENTER
v.
FLAME, APPELLANT



Appeal from decree of Court of Common Pleas of Montgomery County, No. 70-02397, in case of Oaklane Shopping Center a/k/a Oak Lane Shopping Center, Inc. v. Sheldon Flame, individually and trading as Cheltenham Hardware.

COUNSEL

David Kanner, for appellant.

Philip D. Weiss, with him McTighe, Koch, Brown & Weiss, for appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Concurring and Dissenting Opinion by Mr. Justice Manderino.

Author: Per Curiam

[ 448 Pa. Page 40]

Decree affirmed. Costs to be borne by appellant.

Disposition

Decree affirmed.

Concurring and Dissenting Opinion by Mr. Justice Manderino:

I concur only in the affirmance of the first sentence of the lower court's order. I dissent from the affirmance of the second sentence of the lower court's order, which modified the appellant's parking rights under a valid existing lease in effect between the parties.

The parking rights of the appellant as a tenant under the lease in this matter were contained in paragraph 11, of the lease. These rights were modified by the last sentence of the lower court's order which stated: "And now, October 23, 1970, this Court reaffirms the Agreement of the parties concluded in open court before the Honorable J. W. Ditter on April 5, 1970. In addition, the defendant is specifically enjoined from parking any delivery truck or other commercial vehicle in the parking areas of the Oaklane Shopping Center reserved for customers, and shall park such vehicles overnight only to the rear of the store in the areas provided for such."

The appellant is correct, and the lower court's order should be reversed and modified because the court below did not have any legal or equitable authority to alter the terms of a lease agreement between the parties.

The lease in this case gives the appellant-tenant certain parking rights on the leased premises. A court can not modify a lease or a contract between the parties. It can only enforce an ...


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