No. 734 April Term 1977, Appeal from the Order of April 6, 1977 of the Court of Common Pleas of Indiana County, Pa., Civil Div., at No. 1736 C.D. 1976-In Assumpsit.
Myron H. Tomb, Jr., Indiana, for appellant.
Daniel V. Delaney, Indiana, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 260 Pa. Super. Page 144]
This is an appeal from an order sustaining preliminary objections in the nature of a demurrer.*fn1
A demurrer admits all facts well-pleaded in the complaint. Satchell v. Ins. Placement Fac. of Pa., 241 Pa. Super. 287, 361 A.2d 375 (1976). An examination of the complaint here discloses the following well-pleaded facts.
[ 260 Pa. Super. Page 145]
M. Bennett and Sons, a Pennsylvania corporation, owned premises 11 South Carpenter Avenue, Indiana, Pennsylvania. On January 28, 1974, Bennett leased the premises for seven years to appellee, Coney Island Restaurant, Inc. A copy of the lease is Exhibit A of the complaint. The lease provided that Coney Island could use the premises only as a restaurant. Paragraph 14 of the lease provided that "Indiana Vending Company, a division of M. Bennett and Sons," was "granted the sole and exclusive right to place, maintain, and operate all vending, music, and amusement equipment and devices" in the leased premises, and further provided that Coney Island agreed "not to enter into any agreement with any other vending company" and "not to install its own vending, music or amusement equipment . . ." Record at 8a.
On June 19, 1974, Bennett sold certain "used vending machines and spare parts" to appellant, Raymond Buggy, a resident of Indiana County. A copy of the agreement of sale is Exhibit B of the complaint. The vending machines sold to Buggy are identified in a schedule attached to the agreement of sale; included in the schedule are a "Tennis Tourney TV Game" and two juke boxes, identified as being "on location" in the Coney Island Restaurant. Record at 15a. Paragraph 5 of the agreement of sale provides in part as follows:
It is understood that the Seller [Bennett] is the owner of the real property in which the Coney Island Restaurant and Pizza House are located and that the leases between the Seller and the tenants in said location contain a clause giving Indiana Vending Company, a division of the Seller, the sole and exclusive right to maintain vending equipment in said premises for the term of said leases. To the extent that the Seller is legally able to assign its rights under said clauses of said leases for and during the term of said leases, the Seller hereby assigns, without representation or warranty, all rights and responsibilities and Buyer hereby accepts all rights and responsibilities thereunder, with respect to music and amusement vending
[ 260 Pa. Super. Page 146]
machines in said premises. It is understood and agreed that the Buyer shall be responsible for the expense of enforcement of any claim or claims against third party as the result of any rights assigned by ...