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HENNEBONT COMPANY v. KROGER COMPANY (03/24/72)

decided: March 24, 1972.

HENNEBONT COMPANY
v.
KROGER COMPANY, APPELLANT



Appeal from judgment of Court of Common Pleas, Civil Division, of Allegheny County, Oct. T., 1970, No. 3088, in case of Hennebont Company v. The Kroger Co.

COUNSEL

Blair S. McMillin, with him Reed, Smith, Shaw & McClay, for appellant.

Patrick M. O'Donnell, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, and Cercone, JJ. (Spaulding, J., absent). Opinion by Montgomery, J.

Author: Montgomery

[ 221 Pa. Super. Page 66]

This appeal is from a judgment entered in favor of Hennebont Company (Hennebont), plaintiff-appellee, in ejectment, for exclusive possession of a tract of land in Ross Township, Allegheny County, Pennsylvania. Hennebont and The Kroger Company (Kroger), defendant-appellant, each moved for summary judgment

[ 221 Pa. Super. Page 67]

    on the pleadings, etc. Kroger's motion was refused and Hennebont's was granted.

Hennebont claims exclusive possession of the land as the holder of the proprietory interest therein under a deed from the executor and heirs of the estate of Jacob F. Fry, deceased, dated August 11, 1969. Kroger claims the right of occupancy and use of part of the property under two recorded leases dated August 5, 1966, and August 9, 1966, from Bally Castle Corporation (Bally), owner of the adjoining property. Said leases demised unto Kroger certain land adjoining the subject property on the north and a storeroom 103 feet by 145 feet in a shopping center known as Northland Center which had been or was being constructed thereon. In the "lease agreement" for the storeroom, which was made part of the lease, there was granted to Kroger ". . . the rights of ingress, egress and customer parking in that area outlined in green on the plot plan marked Exhibit 'A'", which is the property that is the subject of this appeal. These leases were for ten and fifteen-year terms, with provision for renewal; and they commenced September 1, 1966, and October 1, 1966, respectively.

There is no dispute as to the easement for ingress and egress which had been established in the deed to Bally from Elizabeth C. Fry and Joseph F. Fry, her husband, dated December 20, 1960. Hennebont recognizes that Kroger has this right. The present dispute centers around the provision for customer parking on the "A" tract. This right had been granted to Bally in a separate agreement between it and the Frys which bore the same date as the aforesaid deed to it, dated December 20, 1960. This written sealed agreement gave to Bally an option to buy the subject property now owned by Hennebont after the death of the surviving Fry but only if exercised within six months of that

[ 221 Pa. Super. Page 68]

    death. Mrs. Fry died February 26, 1964; and Mr. Fry on January 10, 1969. Thus, the termination date of the option was July 10, 1969; and the date when it might first be exercised, January 10, 1969.

The same agreement also gave to Bally "a license" to occupy the level part of the property covered by the option which was "just south of the property conveyed to Bally Castle." The license ran concurrently with the option ...


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