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AMERICUS CENTRE v. CITY ALLENTOWN ET AL. JEFFRY A. EPSTEIN AND WILLIAM M. BERGER (01/05/88)

decided: January 5, 1988.

AMERICUS CENTRE, INC.
v.
CITY OF ALLENTOWN ET AL. JEFFRY A. EPSTEIN AND WILLIAM M. BERGER, T/A 535 HAMILTON MALL ASSOCIATES, APPELLANTS



Appeal from the Order of the Court of Common Pleas of Lehigh County in the case of Americus Centre, Inc. v. City of Allentown, Joseph Daddona, Donald M. Bernhard, Allentown Parking Authority, Robin Kleckner, Linda Rosenfeld, Howard D. Kunik, Watson Skinner, Charles Fletcher, Carl Stelmack and T. Anthony Iannelli, No. 86-E-119.

COUNSEL

Maria C. Mullane, with her, Blake C. Marles, Weaver, Mosebach, Piosa, Hixson, Wallitsch & Marles, for appellants, Epstein and Berger, t/a 535 Hamilton Mall Associates.

James J. Greenfield, with him, Thomas A. Leonard, Dilworth, Paxson, Kalish & Kauffman, for appellee, Americus Centre, Inc.

Thomas C. Anewalt, City Solicitor, for appellees, City of Allentown, Joseph Daddona and Donald Bernhard.

David K. McCarthy, Black, Epstein, Prokup and McCarthy, for appellees, Allentown Parking Authority, Robin Kleckner, Linda Rosenfeld, Howard D. Kunik, Watson Skinner, Charles Fletcher, Carl Stelmack and T. Anthony Iannelli.

Judge Craig, and Senior Judges Barbieri and Kalish, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 112 Pa. Commw. Page 310]

William M. Berger and Jeffry A. Epstein, t/a 535 Hamilton Mall Associates (Berger-Epstein) appeal an order of the Lehigh County Court of Common Pleas preliminarily enjoining the Allentown Parking Authority (Authority) from executing a parking lease with it until final disposition of an equity action filed by Americus Centre, Inc. The complaint which Americus Centre, Inc. filed with the lower court seeks an order requiring the Authority to either sell or lease to it, the parking lot at Sixth and Court Streets in Allentown, Pennsylvania, or in the alternative to solicit competitive bids for the parking spaces available in the lot.

In 1985, Americus Centre, Inc., purchased for approximately $2,000,000.00, the Americus Hotel located in downtown Allentown, Pennsylvania, with the intention of renovating the building for use as a hotel complete with a restaurant and retail shops. At the hearing on the preliminary injunction, Americus Centre, Inc.'s president, Mark A. Mendelson, testified that in April of 1986, he met with the Authority's chairman and expressed his interest in purchasing the thirty-six space parking lot located at Sixth and Court Streets near the hotel renovation project. He further alleged that the chairman stated that he would recommend that the Authority sell the Sixth and Court Streets lot at 24-30

[ 112 Pa. Commw. Page 311]

North Sixth Street to Americus Centre, Inc. in exchange for Mendelson's promise to purchase the property adjacent to the lot at 18-22 North Sixth Street and to locate the City's bus terminal in the hotel. Subsequently, on August 15, 1986, Americus Centre, Inc. purchased the property adjacent to the Sixth and Court Streets lot at 18-22 North Sixth Street for approximately $100,000.00 and received a permit from the City to operate a parking lot there.*fn1

At the hearing on the preliminary injunction, the Authority's executive director testified that in March of 1986, Berger-Epstein expressed its interest in leasing parking spaces in the Sixth and Court Streets lot for use by prospective tenants of its office renovation project. In a letter dated April 17, 1986, the executive director wrote to William M. Berger informing him that there would be twenty-two spaces available in October of 1986, which the Authority would be willing to reserve for Berger-Epstein.*fn2

In July of 1986, the Authority appointed a committee to consider the advisability of selling the lot at Sixth and Court Streets and on September 24, 1986, the committee recommended against such a course of action.

[ 112 Pa. Commw. Page 312]

At a duly advertised meeting on October 3, 1986, the Authority voted to lease Berger-Epstein twenty-two spaces in the Sixth and Court Streets lot. The term of the lease was determined at a special meeting of the Authority on October 8, 1986, and was to run from November 1, 1986, through October 31, 1989. At that meeting it was noted that Berger-Epstein's legal counsel was to prepare the written lease agreement. However, no lease agreement had yet been executed on December 22, 1986, when Americus Centre, Inc. obtained a temporary restraining order prohibiting the Authority from executing leases with Berger-Epstein or Musselman ...


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