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decided: April 25, 1975.



Judd N. Poffinberger, Jr., David H. Ehrenwerth, Kirkpatrick, Lockhart, Johnson & Hutchison, Pittsburgh, Leonard J. Wingert, Carson & Wingert, McKeesport, for appellants.

John Daley, Brennan & Brennan, Pittsburgh, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Nix, J., concurs in the result. Roberts, J., filed a dissenting opinion.

Author: Jones

[ 461 Pa. Page 451]


Appellee, Turnway Corporation, brought this action in equity first to enjoin appellants from interfering with

[ 461 Pa. Page 452]

    appellee's possession, use, and enjoyment of 1.274 acres of land to which appellants hold title in fee but which appellee claimed is subject to its rights and interest under the terms of a fifty-year lease executed in May of 1952. Secondly, appellee sought to enjoin the appellants to remove certain sanitary and storm sewers from land immediately adjacent to the 1.274 acres, which land is held in fee simple by the appellee. Appellee claimed that the existence of the sewers on its land constituted a continuing trespass. The court below granted both claims for relief and awarded appellee money damages for the loss of fair rental value during the periods when it was deprived of use of the two different parcels of land involved, plus expenses incurred by appellee in protecting its property from malfunctions of the trespassing sewer lines. We affirm the final decree of the court en banc, which had upheld the chancellor.

Turnway is a Pennsylvania corporation organized in 1952. At all times material hereto, James A. Hall was President and Director of the corporation, James H. Brennan was Secretary and Director of the corporation, and T. Robert Brennan was Treasurer, Assistant Secretary and Director. In 1951 James Brennan held record title to a six-acre tract of land on the southerly side of William Penn Highway in Wilkins Township, as trustee for George Beech and Mary Beech, his wife. One of Turnway Corporation's first acts in 1952 was to enter into a lease with James Brennan for the six acres of land for a term of fifty years, at a rental of $250.00 per month.

Prior to 1961, Joseph and Violet Soffer, appellants in this case, and Benjamin and Freda Thorpe had acquired a substantial amount of property immediately adjoining this six-acre tract. On this property, the Soffers and Thorpes constructed a complex of office and apartment buildings known as "Penn Center."

[ 461 Pa. Page 453]

In 1961, the Soffers and Thorpes began negotiations with James Brennan, who expressly represented both Turnway and himself, looking to a possible development of the two properties for the mutual benefit of all parties. As a result, an agreement was reached whereby the Soffers and the Thorpes were to obtain a ninety-nine year lease on 1.274 acres of Brennan's six acres; in return, the Soffers and Thorpes were to construct a fifty-foot right-of-way across the 1.274 acres, thus connecting their Penn Center property with the property leased by Brennan to Turnway Corporation. Although this leasing arrangement was reduced to writing, it never became effective because the Beech family instructed James Brennan not to deliver the executed copies of the lease to the Soffers and Thorpes.

Negotiations between the parties nevertheless continued, and a second agreement was reached. Under an agreement executed on September 17, 1962, Violet Soffer and Freda Thorpe agreed to purchase from James Brennan the same 1.274 acres which were to have been leased to the Soffers-Thorpes under the ineffective ninety-nine year lease. This 1962 agreement provided that Turnway got full title to the remainder of the six-acre tract, without any express mention of a right-of-way over the 1.274 acres. Turnway Corporation as such, did not sign this second agreement but the agreement was negotiated and signed by the same individual, James Brennan, who negotiated the undelivered ninety-nine year lease. Settlement took place on January 15, 1963.

Some time late in 1962 and during 1963 the Soffers and Thorpes directed construction of sanitary and storm sewer lines, with manholes and inlets, serving the Penn Center complex through the 1.274 acres previously referred to and, in addition, through 250 feet of the property known as Turnway property. Some time in August of 1970 Turnway undertook to commercially develop the westerly portion of its property to which it had received

[ 461 Pa. Page 454]

    title and, in the process of excavating and grading the same, discovered for the first time the existence of the sewer lines, manholes and inlets which had been buried under ten feet of earth. The location of the sewer lines on the Turnway property caused the Turnway Corporation to discontinue its plan for the commercial development of its property, thereby resulting in the loss of the fair rental value of the vacant land.*fn1

In July of 1964 the Thorpes conveyed all their interest in the property known as the Penn Center complex, together with the 1.274 acres of land, to the appellants herein Joseph Soffer and Violet Soffer, his wife.

Commencing in 1965, T. Robert Brennan wrote a series of letters to Joseph Soffer and his attorney, wherein he demanded that appellants build the allegedly agreedupon right-of-way to join the Penn Center complex with the Turnway property and that if the Soffers refused, they reconvey the 1.274 acres to Turnway. These demands were predicated upon the Turnway officers' mistaken impression that the ninety-nine year lease was in effect and/or that the September 1962 agreement to convey had retained the right-of-way as part of the consideration. One letter, dated October 26, 1970, in addition to asking for the right-of-way, adverted to the fact that Turnway had discovered that Soffers' sewers extended onto Turnway's property. The letters made no reference whatsoever to the existence of a fifty-year lease.

Appellee's complaint originally sought to require appellants to reconvey the 1.274 acres of land because appellants had not furnished the right-of-way. The Soffers ...

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