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PETER J. SCHMITT CO. v. MASON'S STORES (12/18/81)

filed: December 18, 1981.

PETER J. SCHMITT CO., INC., APPELLANT,
v.
MASON'S STORES, INC., M. H. FISHMAN CO., INC., AND TENTH STREET BUILDING CORPORATION OF ERIE, INC.



No. 498 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas of Erie County, Civil Div., at No. 2553-A-1979

COUNSEL

Jonathon Alberstadt, Erie, for appellant.

Donald E. Wright, Erie, for appellees.

Montgomery, Hoffman and Van der Voort, JJ.

Author: Montgomery

[ 293 Pa. Super. Page 271]

This appeal is from an order of the lower court denying the Plaintiff-Appellant's petition for a preliminary injunction as well as a request for a declaratory judgment. The controversy involved the Appellant's efforts to overcome restrictive covenants set forth in certain lease agreements.

The property involved in this dispute is a shopping plaza, located on the southwest corner of the intersection of West Twelfth Street and Pittsburgh Avenue in Millcreek Township, Erie County, owned by the Appellee Tenth Street

[ 293 Pa. Super. Page 272]

Building Corporation of Erie, Inc. (hereinafter referred to as "Tenth Street").*fn1 Tenth Street is the lessor in two leasing agreements containing the restrictive covenants which are challenged in this action. The property was initially leased by Tenth Street to Mason's Stores, Inc. (hereinafter referred to as "Mason's"), for the purpose of the operation of a general retail store selling discount merchandise to the public. The original lease between Mason's and Tenth Street was entered into on January 12, 1959. Simultaneously, the Appellee M. H. Fishman Co., Inc. (hereinafter referred to as "Fishman") entered into a written agreement with Tenth Street which guaranteed performance of all of the terms of the lease by Mason's, which at all times material to this dispute has been a subsidiary of Fishman.

Subsequently, by agreement dated June 12, 1972, Mason's re-leased part of the shopping plaza property back to its landlord, Tenth Street, for the purpose of allowing Tenth Street to erect a food store and a fabric store. Subsequently, Tenth Street leased the food store premises to Loblaw, Inc., (hereinafter referred to as "Loblaw"), which is not a party to this action. The Tenth Street-Loblaw lease, dated September 7, 1972, was effective for a term of twenty years, commencing January 1, 1973, and contained the following relevant provisions:

ARTICLE V.

Lessee shall have the right to assign or transfer this Lease or to sublet the whole or any part of the demised premises for the whole or any part of the term hereof; provided, however, that it shall remain liable for the rental to be paid ...


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