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JAMES M. BERGER v. ALVIN ACKERMAN (12/29/81)

filed: December 29, 1981.

JAMES M. BERGER, APPELLANT,
v.
ALVIN ACKERMAN, SIGMUND SPIEGEL AND BERNATH SCHWARTZ



No. 1079 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas, Civil Division, of Allegheny County at No. GD80-19520

COUNSEL

Carl Gainor, Pittsburgh, for appellant.

Wayne Babcock, Pittsburgh, for appellees.

Hester, DiSalle and Popovich, JJ.

Author: Popovich

[ 293 Pa. Super. Page 459]

This is an appeal from an order sustaining preliminary objections in the nature of a demurrer and dismissing appellant's complaint in equity. For the reasons stated herein, we affirm the lower court's order.

To begin with, in reviewing an order sustaining preliminary objections in the nature of a demurrer we must remember that "a demurrer admits every well-pleaded material fact set forth in the pleadings, as well as all inferences, other than conclusions of law, reasonably deducible therefrom." Tanenbaum v. Sears, Roebuck & Co., 265 Pa. Super. 78, 81, 401 A.2d 809, 810 (1979). Moreover, we must be able to state with certainty that upon the facts averred, the law will not permit recovery by the plaintiff. Gekas v. Shapp, 469 Pa. 1, 364 A.2d 691 (1976); Hamill Quinlan Realty Co., Inc. v. Rosswog Homes, Inc., 281 Pa. Super. 235, 422 A.2d 146 (1980). Viewing the pleadings in this light, the facts are as follows:

In 1971, appellees were the owners of a small shopping center in McKeesport, Pennsylvania, which contained a Giant Eagle Market and a business known as "Slaton's Pharmacy." On September 27, 1971, appellant, James M. Berger, entered into a written lease with appellees whereby appellant took possession of Slaton's Pharmacy. At that time and for nine years thereafter the Giant Eagle Market was selling, in addition to numerous other products, non-prescription (over-the-counter) drugs. Slaton's Pharmacy, which had been in operation at that location for over twenty years, filled, dispensed, and sold prescription medications and also sold non-prescription drugs.

In 1980, the Giant Eagle Market opened a pharmacy department within its storeroom for the purpose of selling

[ 293 Pa. Super. Page 460]

    prescription medications. Prior to the opening of this pharmacy department, appellant notified appellees that, in his opinion, the sale of prescription drugs by Giant Eagle Market would constitute a breach of their September 27, 1971, lease, specifically, the clause providing that:

"During the term of this Lease, or any renewal thereof, the Tenant shall have the exclusive right to conduct the business of Drug Store in the said Shopping Center. It is understood, however, that this Shopping Center contains a large storeroom presently occupied by Giant Eagle Market and that any sale of drugs by said Giant Eagle Market shall in no way conflict with the provisions of this paragraph."

Appellees, upon receipt of this notice, did nothing to inhibit the opening of the Giant Eagle pharmacy department. Appellant then filed a complaint in equity seeking judicial enforcement of the above quoted restrictive provision. Preliminary objections in the nature of a demurrer were filed by appellees. The lower court entered an order ...


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