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SUN DRUG COMPANY v. UNIVERSITY PARK SHOPPING VILLAGE (03/30/72)

decided: March 30, 1972.

SUN DRUG COMPANY, INC., APPELLANT,
v.
UNIVERSITY PARK SHOPPING VILLAGE, INC. ET AL., APPELLANTS



Appeals from order and judgment of Court of Common Pleas of Cambria County, Sept. T., 1967, No. 302, in case of Sun Drug Company, Inc. v. University Park Shopping Village, Inc. and Stephen J. Siciliano.

COUNSEL

W. Louis Coppersmith and William T. Marsh, with them Earl F. Glock, Margolis & Coppersmith, and Glock & Mayer, for defendants.

William T. Marsh, with him Earl F. Glock, and Glock & Mayer, for plaintiff.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, and Cercone, JJ. (Spaulding, J., absent). Dissenting Opinion by Montgomery, J. Hoffman and Cercone, JJ., join in this dissenting opinion.

Author: Per Curiam

[ 220 Pa. Super. Page 447]

Order and judgment affirmed.

Disposition

Order and judgment affirmed.

Dissenting Opinion by Montgomery, J.:

I find no ambiguity in the reimbursement agreement and would render judgment n.o. v. in favor of the plaintiff for the full amount of its claim, i.e., $62,238.83, plus interest.

Clause (2) provides, "If Sun shall pay any Basic Rentals . . . after the expiration of one (1) year . . . University . . . will promptly reimburse Sun . . ." according to the formula agreed on. (Emphasis supplied) Since Sun was obligated to make its basic payments to the holder of the mortgage on the property as indicated by the parties in the fourth "Whereas" clause of the Reimbursement Agreement, Sun would have no right to deduct from those payments any sums which it might be entitled to under that agreement for lack of business results during the first year of operation. The purpose of the agreement was to accomplish repayment to Sun by way of reimbursement rather than by withholding the payments due the mortgagee during the second year.

Clause (4) of the agreement lends support to this theory as well as to the view that the total sales of the anticipated subtenant, National Dairys, were to be included in the total on which the formula was based. It is therein expressly stated that, "If the space covered by the Lease is reduced from 8,050 square feet to 6,250 square feet (in the event Sun is unable to sublet 1,800 square feet in the Storeroom to National ...


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