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MAURICE SLATER AND PETER KANTON v. PEARLE VISION CENTER (08/12/88)

filed: August 12, 1988.

MAURICE SLATER AND PETER KANTON, T/A BLOOMSBURG SHOPPING CENTER ASSOCIATES, A PARTNERSHIP, APPELLANTS,
v.
PEARLE VISION CENTER, INC.



Appeal from the Order entered June 25, 1987 in the Court of Common Pleas of Columbia County, Civil, No. 845 of 1986.

COUNSEL

Robert A. Schwartz, Bloomsburg, for appellants.

Thomas B. Schmidt, III, Harrisburg, for appellee.

Wieand, McEwen and Beck, JJ.

Author: Beck

[ 376 Pa. Super. Page 581]

This is a commercial lease dispute between Maurice Slater and Peter Kanton, t/a Bloomsburg Shopping Center, Associates (the "Shopping Center") and Pearle Vision Center, Inc. ("Pearle"). Appellant Shopping Center is the lessor and appellee Pearle is the tenant under a lease of premises located in Shopping Center's strip shopping mall. Although Pearle has paid the rent under the lease, it has never occupied the leased premises. Apparently because of Shopping Center's concern that the presence of a vacant store would damage the business of the shopping mall as a

[ 376 Pa. Super. Page 582]

    whole, in August 1986 Shopping Center filed a complaint in equity seeking an injunction requiring Pearle to occupy and use the premises.

Pearle filed preliminary objections in the nature of a demurrer. Pearle basically alleged that Shopping Center had failed to state a claim for breach of either an express or implied obligation to occupy and use the premises and indeed could not since the lease contains none. Pearle also alleged that Shopping Center had an adequate remedy at law and had no standing to claim relief on behalf of other tenants in the mall.

The trial court sustained Pearle's preliminary objection on the ground that the lease does not expressly obligate Pearle to occupy and use the premises and that as a matter of law, no such obligation could be implied. The trial court relied on Dickey v. Philadelphia Minit-Man Corp., 377 Pa. 549, 105 A.2d 580 (1954) and McKnight-Seibert Shopping Center, Inc. v. National Tea Co., 263 Pa. Super. 292, 397 A.2d 1214 (1979). The court did not decide the remaining preliminary objections.

We reverse and remand because we find that the complaint, which incorporates the lease in full, is sufficient, albeit minimally, to state a claim for relief based on an implied obligation of Pearle to occupy the premises.

When reviewing preliminary objections in the nature of a demurrer, the question is whether, assuming the facts averred in the complaint to be true, the law is clear that no recovery is permitted. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970). A demurrer admits every well-pleaded fact and all inferences reasonably deducible therefrom. Pike County Hotels, Corp. v. Kiefer, 262 Pa. Super. 126, 396 A.2d 677 (1978). Since a court should be reluctant to grant a demurrer except in the clearest of cases, a demurrer should not be granted where it appears that the plaintiff could cure any defect in the complaint by amendment. Tide Water Associated Oil Co. v. Kay, 168 Pa. Super. 263, 77 A.2d 754 (1951) (quoting Holladay v. Fidler, 158 Pa. Super. 100, 43 A.2d 919

[ 376 Pa. Super. Page 583]

(1945)). See also Otto v. American Mutual Insur. Co., 482 Pa. 202, 393 A.2d 450 (1978).

Shopping Center argues that the lease contains both an express and an implied requirement that Pearle occupy the premises. The express requirement is alleged to be ...


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