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filed: June 24, 1983.


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


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.


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 municipality, that laches can also be applied.

Given the above quoted law regarding laches, we are satisfied that it is just to apply the doctrine here. Nilon delayed approximately three and a half years in instituting its suit and delayed a further year and a half in prosecuting its suit following the rejection on appeal of its request for a preliminary injunction. Nilon offers no excuse or explanation but merely argues that Friendly benefitted from his catering. We reject this argument. Obviously, any defendant benefits from the activity sought to be enjoined or he wouldn't contest the suit. The requisite prejudice here is not to be defined in these terms.

Rather, the prejudice resulting from the delay will be the greater adverse consequences of the grant of the sought for injunction. In the context of Nilon's presumed acquiescence, Friendly has expanded his business, invested capital in equipment and concentrated the bulk of his activities in the Stadium catering. The adverse consequences of the injunction would have been immeasurably less serious had Nilon asserted its claim with reasonable promptness. Laches is a bar to Nilon's action here.

The order enjoining Friendly from catering to the Superboxes is, therefore, reversed; and, consequently, the refusal to grant Nilon exclusive catering rights is affirmed.*fn5

WIEAND, Judge, dissenting:

The lease agreement for Veterans Stadium between the City of Philadelphia, lessor, and the Philadelphia National League Club, Inc., lessee, reserved to the lessor "the exclusive right to offer for sale and sell . . . [a]ll foods and beverages designed for human consumption . . . ." Pursuant

[ 315 Pa. Super. Page 348]

    thereto, the City of Philadelphia entered into an agreement granting to Nilon Brothers Enterprises, the appellee herein, "the exclusive privilege of operating the Stadium Club and Restaurant and General Concessions at [Veterans Stadium] . . . ." This included specifically "food, drink, souvenirs, etc." The agreement required that appellee, in exchange for such exclusive privilege, pay a designated percentage of gross receipts to the City of Philadelphia.

When superboxes were subsequently added to the stadium, Joseph A. Lucente and Mary Perrota, trading as Friendly Caterers, provided food catering services to the occupants. They did so at the instance of the owners of the boxes and with the consent of the Phillies and Eagles, who were tenants of the stadium, but without the consent of the City of Philadelphia and without complying with the bidding procedure required by the Philadelphia Home Rule Charter.

On the basis of these facts, the trial court entered an order enjoining Friendly Caterers from conducting a "food service business within the confines of Veterans Stadium, including the Super Boxes thereof." Friendly Caterers appealed.

A majority of this Court makes an independent determination -- the trial court did not so find -- that appellee was guilty of laches and reverses the injunction entered by the trial court. I am unable to agree with this disposition; and, therefore, must respectfully, but vigorously, dissent.

The essential elements of laches are inexcusable delay in instituting suit and prejudice resulting to defendant from such delay. It is an equitable defense; its existence depends on the particular circumstances of each case. Many decisions teach that laches should not be declared by an appellate court unless the existence thereof is clear on the face of the record. Laches is an issue of fact, primarily addressed to the sound discretion of the trial court. The exercise of the trial court's discretion regarding the defense of laches will not be disturbed in the absence of an abuse thereof. In Re Estate of Marushak, 488 Pa. 607, 610, 413 A.2d 649, 651 (1980); Leedom v. Thomas, 473 Pa. 193, 200-201,

[ 315 Pa. Super. Page 349373]

A.2d 1329, 1332 (1977); Siegel v. Engstrom, 427 Pa. 381, 386, 235 A.2d 365, 368 (1967); Thomson v. Mid-State Theatres, Inc., 403 Pa. 111, 113, 168 A.2d 737, 738 (1961); Manson v. First National Bank in Indiana, 366 Pa. 211, 215-216, 77 A.2d 399, 401 (1951); Margolis v. Blecher, 364 Pa. 234, 236, 72 A.2d 127, 128 (1950); Hansel v. Hansel, 300 Pa. Super. 548, 556-559, 446 A.2d 1294, 1298-1300 (1982); Anaconda Co. v. Metric Tool & Die Co., 485 F.Supp. 410, 427 (E.D.Pa. 1980).

The trial court in the case sub judice did not find that Nilon had been guilty of laches. In ruling otherwise, the majority has made an independent determination and has substituted its discretion in a matter peculiarly within the purview of the trial court. My review of the facts and circumstances presented to the trial court does not disclose an abuse of that court's discretion. Indeed, even the majority seems hard put to discern prejudice where, as here, appellants have continued to serve food in the stadium throughout the purported delay.

I would affirm the order of the trial court.

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