Appeal from the Order entered April 20, 1987 in the Court of Common Pleas of Cambria County, Civil Division, at No. 1986-847.
Palmer T. Lawrence, Pittsburgh, for appellant.
Martin A. Nadorlik, Johnstown, for appellees.
McEwen, Del Sole and Johnson, JJ.
[ 375 Pa. Super. Page 312]
This is an appeal from the Order entered on April 20, 1987, in the Court of Common Pleas of Cambria County, Civil Division, granting Appellees', George and Marianna Zamias', t/a Bel Air Associates', motion for summary judgment, and ordering Appellant, Bantam Four Cinemas, Inc., expelled from its leased premises. We reverse and remand for proceedings consistent with this opinion.
The instant case involves an action for declaratory judgment brought on April 11, 1986, by Appellant to determine its rights to stay on the premises at Bel Air Plaza, a shopping center operated by Appellee in Richland Township,
[ 375 Pa. Super. Page 313]
Cambria County, Pennsylvania. Appellant and Appellee were lessee and lessor, respectively, for the premises which housed a four-plex movie exhibition theater under a Lease Agreement dated August 7, 1970, and running from March 1, 1974, to February 28, 1981. The lease in question also provided for two (2) option renewal periods, the first of which expired on February 28, 1986, and the second period scheduled to begin on March 1, 1986, and to expire on February 28, 1991.
Appellant filed its complaint on April 11, 1987, alleging that it made a timely and proper exercise of its option to renew the lease in question for the second and final option period. Appellant filed an amended complaint on April 18, 1986, to update the name of the owners of the premises to the new and present owners, George D. and Marianna Zamias.
On May 6, 1986, Appellees filed its answer and counterclaim, alleging that Appellant failed to exercise its final five (5) year option and that notice to quit was effectively served. In addition, Appellees requested that the trial court direct Appellant to vacate the premise.
On July 11, 1986, Appellees filed a motion for summary judgment. On September 25, 1986, the court en banc heard both Appellees' motion for summary judgment and Appellant's motion for declaratory judgment. In its Opinion and Order of April 9, 1987, and docketed on April 20, 1987, the court en banc granted Appellees' motion for summary judgment and ordered Appellant expelled from its leased premises. The court denied Appellant's motion.
On May 19, 1987, Appellant filed a timely appeal in the Commonwealth Court of Pennsylvania and an application for reconsideration with the Cambria County Common Pleas Court. On July 30, 1987, after petition by Appellant, the instant case which was erroneously filed in Commonwealth Court was properly transferred to this ...