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NILON BROTHERS ENTERPRISES v. JOSEPH A. LUCENTE AND MARY PERROTA (06/24/83)

filed: June 24, 1983.

NILON BROTHERS ENTERPRISES
v.
JOSEPH A. LUCENTE AND MARY PERROTA, INDIVIDUALLY AND T/A FRIENDLY CATERERS, APPELLANTS. NILON BROTHERS ENTERPRISES, APPELLANT, V. JOSEPH A. LUCENTE AND MARY PERROTA, INDIVIDUALLY AND T/A FRIENDLY CATERERS



No. 1972 Philadelphia, 1981, No. 2148 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, Equity, at No. 2169 April Term, 1975

COUNSEL

Michael F. Kraemer, Philadelphia, for Lucente, appellants (at No. 1972) and appellees (at No. 2148).

Edward R. Paul, Media, for Nilon Bros., appellant (at No. 2148) and appellee (at No. 1972).

Brosky, Wieand and Beck, JJ. Wieand, J., files dissenting opinion.

Author: Brosky

[ 315 Pa. Super. Page 344]

We have before us an appeal and cross-appeal from the Chancellor's order denying Nilon Brothers exclusive rights to cater to Superboxes at Veterans' Stadium in Philadelphia and also prohibiting Friendly Caterers from engaging in such catering. The order forbidding Friendly's catering was based upon an enforcement of the Philadelphia Home Rule Charter requiring bidding for concession rights. In his cross-appeal, Nilon argues that, through his concession

[ 315 Pa. Super. Page 345]

    agreement with the City of Philadelphia, he was granted the exclusive right to cater to the Superboxes.

Facts

In 1966, the City of Philadelphia leased Veterans' Stadium to the Philadelphia National League Club (Phillies). The City reserved to itself concession rights. In 1970 following bidding, the City granted those concession rights to appellee.*fn1 Superboxes were then added to the Stadium. The lease between the City and the Phillies for the Superboxes did not mention catering rights, nor was any bidding conducted by the City for catering rights to the Superboxes.

With the permission of the Phillies, Friendly began catering operations in 1971, when the Superboxes were first used, and has continued them to the present time.*fn2 Nilon admits that he was aware of Friendly's catering activities since late 1971. Friendly has spent money in developing its business at the Stadium, including equipping a kitchen at the Stadium in an area provided by the Phillies. In 1975, Nilon instituted the present suit. After its request for a preliminary injunction was denied, and on appeal affirmed, Nilon did not further pursue this case for another year and three quarters. As noted above, the Chancellor found that Nilon was not granted exclusive rights to Superbox catering under its concession with the City. Also, the Chancellor enjoined Friendly's catering because the city did not grant that concession following bidding, as its Home Rule Charter requires.*fn3

[ 315 Pa. Super. Page 346]

    re Heidorn's Appeal, 412 Pa. 570 at 573, 195 A.2d 349 at 351 (1963). It follows that when a taxpayer is grounding his suit in the interests of the ...


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