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STELLA NESLEY v. ROCKWOOD SPRING WATER COMPANY (04/03/81)

filed: April 3, 1981.

STELLA NESLEY,
v.
ROCKWOOD SPRING WATER COMPANY, INC., APPELLANT



No. 2096 October Term, 1979, Appeal from Order of the Court of Common Pleas, Civil Division, of Chester County, at No. 326 July Term, 1975.

COUNSEL

Timothy F. Hennessey, Pottstown, for appellant.

Lawrence Sager, Pottstown, for appellee.

Hester, Cavanaugh and Van der Voort, JJ.

Author: Cavanaugh

[ 285 Pa. Super. Page 509]

In this action, the surviving lessor, Mrs. Stella Nesley, filed a suit in assumpsit against the lessee, the Rockwood Spring Water Company, Inc., to recover $3,194.00 in taxes paid by the lessor from 1969-1975. These taxes resulted from an increase in the assessment of the Nesley property due to the company's construction of various improvements on the property. The case proceeded to compulsory arbitration and the arbitrators awarded appellee $3,194.00. The lessee appealed this judgment to the Court of Common Pleas. The trial court, sitting without a jury found in favor of the lessee, Rockwood Spring Water Company, Inc. The lessor filed exceptions and after oral argument, the lower court, in an order signed by Judge Stively, who had been the trial judge, reversed the finding against the lessor and entered a judgment against the Rockwood Spring Water Company, Inc. for $3,194.00.

The lessee now appeals from that order. The issue is whether the post trial court was correct in reversing the verdict of the trial judge and entering judgment against the appellee.

On April 17, 1946, John and Stella Nesley entered into a lease with Francis W. Hennessey and Frank Slanek. In

[ 285 Pa. Super. Page 5101950]

a new lease was negotiated between the Nesleys and Francis W. Hennessey, trading as Rockwood Spring Water Company, Inc.*fn1 The major change in this second lease was that it extended the term of the original lease to ninety-nine years. Neither of these leases contained clauses delineating any tax responsibility.

The lease demised a seventeen acre portion of the appellee's sixty-two acre tract for a term of ninety-nine years. The appellant was given the right to remove "any water on the premises in any amount." He was to pay $.0025 on each gallon of the bottled water sold. This payment was the annual rent.

As water sales increased so did rental payments; from $225.00 in 1946 to $2,050.00 in 1976. However, the percentage on each sale remained constant throughout the lease term.

The appellant was also given the right to construct improvements on the property and to remove any such improvements at the termination of the lease. ...


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