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TOURAINE PARTNERS v. HERBERT T. KELLY (08/31/84)

filed: August 31, 1984.

TOURAINE PARTNERS
v.
HERBERT T. KELLY, CECILIA PEREZ COMBS, JOEL D. BEAVER, VIVIAN GREEN, PATRICIA RISOLI AND LINDA RISOLI, JOHN H. EVANTS, STANLEY I. GIBELL, RUTH S. STEPPACHER, DAVID FEINGOLD, TIMOTHY G. CUTLER, S.G. WINSON. TOURAINE TENANTS ASSOCIATION (AN UNINCORPORATED ASSOCIATION UNDER THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA) BY DAVID FEINGOLD, TRUSTEE AD LITEM, AND CECILIA PEREZ COOMBS, TRUSTEE AD LITEM, AND JULIAN FOX, SUBSTITUTED TRUSTEE AD LITEM, APPELLANTS, V. TOURAINE PARTNERS, A LIMITED PARTNERSHIP UNDER THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, AND SARGO III INC., SOLE GENERAL PARTNER OF TOURAINE PARTNERS, AND ROBERT SHERIDAN & PARTNERS, A PARTNERSHIP AND ROBERT SHERIDAN, AN INDIVIDUAL, AND MARC SHERIDAN, AN INDIVIDUAL, AND MARKS & CO., INC., A CORPORATION AND ROBERT DEMCHIK, AN INDIVIDUAL, AND BARBARA LEFF, AN INDIVIDUAL, AND RAYMOND FLEISHER, AN INDIVIDUAL AND TOURAINE ASSOCIATES, A LIMITED PARTNERSHIP



No. 00522 Philadelphia 82, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil Division, at No. 1732, 1733, 3840/3844, 3878 Sept. Term, 1981, 661/663 Oct. Term, 1981, 2544 Feb. Term, 1981.

COUNSEL

Jerome J. Shestack, Philadelphia, for appellees.

Joseph S. Moloznik, Philadelphia, for appellants.

Spaeth, President Judge, and Beck, and Hoffman, JJ. Spaeth, President Judge, filed a concurring opinion.

Author: Hoffman

[ 333 Pa. Super. Page 199]

This appeal presents a novel issue concerning the construction of the term "declarant" under the Pennsylvania Uniform Condominium Act, 68 Pa.C.S.A. § 3101 et seq. For the reasons stated herein, we affirm the order of the lower court.

The facts are as follows:*fn1 In the late summer or early fall of 1980, J.E. Marks, general partner of Touraine Associates (then owner of The Touraine apartments), determined that The Touraine required extensive improvements. Accordingly, the apartment management instituted a policy of renewing tenant leases only on a month-to-month or other short-term basis. On October 29, 1980, Robert Sheridan of Robert Sheridan & Partners, a limited partnership, entered into a purchase and sale agreement with Touraine Associates, whereby he acquired The Touraine for approximately $3,500,000. Sheridan then assigned his interest to Touraine Partners, a newly formed partnership. At the time of the sale, Sheridan expected to open The Touraine as a condominium following the completion of a major renovation and restoration program. The acquisition and closing documents recognized Touraine Partners' right either to convert the building into a condominium or to continue to use it as a rental apartment building. In mid-December, 1980, because of changed market conditions, Touraine Partners reevaluated the likelihood of reopening the building as a condominium, and by mid-January, 1981, when it received the deed from Touraine Associates, it was seriously reconsidering the feasibility of opening as a condominium and regarded reopening as a rental apartment building as "a very serious alternative". On January 30, 1981, Touraine Partners distributed a letter to all Touraine residents, notifying

[ 333 Pa. Super. Page 200]

    them that because of the renovation program, leases would be honored until their expiration date but would not be renewed, and that financial benefits would be forthcoming to those willing to enter into early lease terminations. Approximately 100 tenants chose early lease termination and received an option to return to The Touraine when it reopened as either a rental apartment building or a condominium.

On or about February 17, 1981, The Touraine Tenants Association commenced an equity action against Touraine Partners, Sargo, III, Inc. (sole general partner of Touraine Partners), Robert Sheridan, Robert Sheridan & Partners, and Marks & Co. (managing agent for The Touraine), seeking to prevent Touraine Partners from evicting individual tenants of The Touraine and to stop the renovation project. Settlement negotiations continued through the summer of 1981, during which time Touraine Partners' counsel repeatedly referred to the occupying tenants, whose various leases expired in March, May, June or August of 1981, as illegal holdover tenants. Touraine Partners accepted rent checks tendered for July and August, but refused rent payments for September and thereafter. On July 21, 1981, at a meeting between Touraine Partners and the Touraine tenants at the Bellevue Stratford Hotel, Touraine Partners expressed its willingness to make available to the tenants certain benefits detailed in the Pennsylvania condominium statute, provided the tenants terminated the litigation. Also in July, Touraine Partners began the restoration program and entered into a contract with Turner Construction Co. for that purpose.

On September 15 and 16, 1981, Touraine Partners filed a complaint in equity and motions for preliminary injunction against two of the occupying tenants, seeking immediate possession of the occupied premises and the defendants' ejectment. Touraine Partners subsequently filed similar actions against ten other occupying tenants. On September 28, the twelve defendants answered the motions, claiming that because Touraine Partners had converted The Touraine

[ 333 Pa. Super. Page 201]

    into a condominium, the condominium statute entitled them to at least one year's additional occupancy and, in some cases (because of age), two years. Contrary to Touraine Partners' assertion, they also claimed that they were not illegal holdovers but were occupying under valid leases which had not been terminated or had been terminated improperly under the Landlord and Tenant Act, 68 Pa.S.A. § 250.101 et seq.

In the October, 1981 issue of the WFLN Radio Guide, there appeared a full-page advertisement proclaiming the availability of condominium homes in The Touraine.

On October 2, 5, 6, 7 and 9, 1981, the Chancellor held hearings on the motions for preliminary relief. On October 9, the court consolidated the twelve actions against the individual tenants with the tenants' original action, and, because of the extensive testimony taken, considered the hearing as final.

In the November 2, 1981 issue of Time magazine, the November 9, 1981 issue of Newsweek, and the December 2, 1981 issue of Business Week, there appeared advertisements on the availability of condominium homes in The Touraine.

On November 3, 1981, the tenants filed a motion to reopen testimony alleging that the November advertisements constituted after-acquired evidence. On December 2, 1981, the Chancellor filed a Decree Nisi, granting the injunctive relief requested by Touraine Partners and denying the tenants' requested relief. The court refused to reopen testimony and the holdover tenants were ordered to vacate the premises within 30 days. On December 14, the tenants' exceptions were hand-delivered to the trial judge. On January 13, 1982, the lower court en banc dismissed the exceptions and entered ...


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