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MYRON KAPLAN v. BANKERS SECURITIES CORPORATION (02/21/85)

decided: February 21, 1985.

MYRON KAPLAN, SUCCESSOR TRUSTEE UNDER INDENTURE OF TRUST DATED OCTOBER 15, 1982, APPELLANT
v.
BANKERS SECURITIES CORPORATION



No. 00033 PHL 83, Appeal from the Order entered November 22, 1982 in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 2936 Feb. Term, 1980.

COUNSEL

James D. Crawford, Philadelphia, for appellant.

Joseph W. Swain, Jr., Philadelphia, for appellee.

Del Sole, Montemuro, and Hoffman, JJ.

Author: Hoffman

[ 340 Pa. Super. Page 581]

This appeal involves the effect upon a commercial lessee's liability of an exculpatory clause which shields the lessee from further liability upon the happening of a contingency, where the lessee retains possession of and sublets the leased premises after the happening of that contingency. For the reasons discussed herein, we affirm the judgment entered in the lessee's favor.

Appellant, Myron Kaplan, is the successor trustee to Bernard G. Segal, trustee under an October 15, 1952 trust

[ 340 Pa. Super. Page 582]

    agreement for the Trust, the owner of the leased premises in question. Appellee, Bankers Securities Corporation, is a Pennsylvania corporation. On May 17, 1954, Segal, as trustee, and Snellenburgs, an unincorporated division of appellee operating department stores in Pennsylvania, entered into a 30-year lease whereby Snellenburgs leased premises at 23rd Street and Oregon Avenue, Philadelphia, owned by the Trust. The parties also entered into a contemporaneous agreement which included a provision limiting appellee's liability. The lease was amended and supplemented by later agreements dated August 21 and September 28, 1956; March 18 and July 11, 1957; October 9, 1958; and July 21, 1960.

Pursuant to the lease, the Trust constructed a two-story department store and other improvements on the premises, and Snellenburgs took possession on August 24, 1955. Snellenburgs occupied the premises until March 5, 1962, when it sublet the premises to City Stores Company pursuant to Paragraph 12(a) of the lease,*fn1 without consultation with or the approval of the Trust.*fn2

Snellenburgs thereafter ceased to operate a department store on the premises in question and began to liquidate its assets. Lit Brothers, an unincorporated division of City Stores, purchased all of the goods, inventory and fixed assets used there from Snellenburgs and took possession of the premises.

On or about February 15, 1963, Snellenburgs closed its last department store, ceased to do business anywhere and ...


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