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DAILEY'S CHEVROLET v. WORSTER REALTIES (03/25/83)

filed: March 25, 1983.

DAILEY'S CHEVROLET, INC., NOW BY CHANGE OF NAME, DAILEY ENTERPRISES, INC., AND DAVE HALLMAN CHEVROLET, INC.
v.
WORSTER REALTIES, INC., AND VINCENT WORSTER, APPELLANTS



No. 996 Pittsburgh, 1981, Appeal from the Order of the Court of Common Pleas, Civil Division, Erie County, No. 33-E-1980.

COUNSEL

Robert C. Ward, Erie, for appellants.

William C. Sennett, Erie, for appellees.

Cercone, President Judge, and Beck and Montemuro, JJ.

Author: Montemuro

[ 312 Pa. Super. Page 276]

This case was initiated in the court below with the filing of a Bill in Equity in the Court of Common Pleas of Erie County, in which the plaintiffs, Dailey Chevrolet, Inc. (herein Dailey), and its lessee, Dave Hallman Chevrolet, Inc. (herein Hallman), alleged that the defendants, Worster Realties, Inc. and Vincent Worster (collectively referred to herein as Worster), were causing immediate and irreparable injury to them through the blocking of certain real property.

[ 312 Pa. Super. Page 277]

The action complained of was the parking of four (4) semi-trailers by Worster along its property in such a manner as to block ingress and egress by Dailey-Hallman, to the various parcels of the Dailey-Hallman property. Following an initial hearing before the Honorable Lindley L. McClelland on the granting of a preliminary injunction, Worster agreed to "voluntarily" cease certain actions complained of "while the parties attempted to resolve their differences." Settlement efforts failed and subsequently testimony was taken by deposition, and the testimony, exhibits and trial briefs were submitted to Judge McClelland for decision. Thereafter, the court entered an Adjudication and Opinion together with a Decree Nisi in favor of Dailey-Hallman. Worster then filed exceptions to the Conclusions of Law and Decree Nisi, and the matter was argued before the court en banc, consisting of Judges McClelland, William E. Pfadt and Richard L. Mygaard. The en banc court entered an Order dismissing Worster's exceptions and directed that a Final Decree be entered in accordance with the Decree Nisi. Worster then filed this appeal from the en banc order of the court below. For the reasons which follow, we affirm.

Dailey is the owner of certain real property located in the City of Erie on the east side of State Street, bounded on the west by State Street, on the south by East 21st Street, on the east by French Street and on the north by railroad tracks of the N.Y.C. & St. L. Railroad also known as the Norfolk and Western Railroad Company, at East 19th Street. Assessment maps showing the property and identified as Exhibits "A" and "C" as attached to the original Bill in Equity in this case provide an excellent visual illustration:

[ 312 Pa. Super. Page 278]

From 1931 to 1974 Dailey operated a Chevrolet automobile and sales service agency on the property. The commercial complex occupied by Dailey was gradually expanded as more parcels (parcels 2-9 as shown on Exhibit "C") were added from 1945 to 1965. The entire parcel was leased to Hallman by lease dated July 15, 1974. It continues to be operated as a Chevrolet sales and service agency by Hallman. The 1974 lease from Dailey to Hallman contains the following specific description of the property included in the lease:

It is the intention of the parties hereto to include in this Lease all property owned by Dailey's Chevrolet, Inc. and located in the City of Erie, Pennsylvania, on both the West and East sides of State Street, and bounded on the south by 21st Street, on the west by Peach Street, on the east by French Street and on the north by the N.Y.C. and St. L.R.R. tracks and right of way and being all of the

[ 312 Pa. Super. Page 279]

    property in the City of Erie currently utilized by Landlord in the conduct of ...


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