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CHARLES GRALKA AND JANET GRALKA v. YVETTE ISAACSON (03/31/89)

filed: March 31, 1989.

CHARLES GRALKA AND JANET GRALKA, HIS WIFE, APPELLEES,
v.
YVETTE ISAACSON, TRUSTEE OF THE GREENTREE ROAD SHOPPING CENTER, HONEYBAKED HAM CO., A CORPORATION, KENNETH ISAACSON, MANAGING AGENT FOR THE TRUSTEE AND AS PART OWNER OF THE GREENTREE ROAD SHOPPING CENTER, ANNA M. ABROMSON, ANTHONY PAPADAKIS, KALMAINE GRAHAM, PEARL FINE GROSS, JEFFREY ISAACSON AND YVETTE ISAACSON AS PART OWNERS OF THE GREENTREE ROAD SHOPPING CENTER, YVETTE ISAACSON AS TRUSTEE OF THE ESTATE OF MORRIS DEAKTER, DECEASED, AND AS MANAGING PARTNER OF THE GREENTREE ROAD SHOPPING CENTER AND THE GREENTREE ROAD SHOPPING CENTER, A PARTNERSHIP. APPEAL OF YVETTE ISAACSON, TRUSTEE, GREENTREE ROAD SHOPPING CENTER, KENNETH ISAACSON, MANAGING AGENT FOR THE TRUSTEE AND AS PART OWNER OF THE GREENTREE ROAD SHOPPING CENTER, ANNA M. ABROMSON, ANTHONY PAPADAKIS, KALMAINE GRAHAM, PEARL FINE GROSS, JEFFREY ISAACSON AND YVETTE ISAACSON AS TRUSTEE OF THE ESTATE OF MORRIS DEAKTER, DECEASED AND AS MANAGING PARTNER OF THE GREENTREE ROAD SHOPPING CENTER, APPELLANTS



Appeal from the Order entered November 20, 1987 in the Court of Common Pleas of Allegheny County, Civil Division, at No. GD 87-18832.

COUNSEL

Elaine V. Preston, Pittsburgh, for appellants.

Louis C. Long, Pittsburgh, for Gralka, appellees.

Brosky, Del Sole and Johnson, JJ.

Author: Del Sole

[ 383 Pa. Super. Page 246]

This is an appeal from a preliminary injunction which directed the HoneyBaked Ham Company to cease and desist from selling any food item from the premises it leased from Appellant, landlord. This injunction was based upon the court's finding that HoneyBaked's lease violated the terms of the landlord's existing lease with Appellee. Because no reasonable grounds exist to support the court's conclusion that a restrictive covenant was violated, we reverse the trial court's order.

Where a preliminary injunction has been granted, our scope of review is limited to examining the record to determine whether there were any apparently reasonable grounds for the trial court's action. City of Scranton v. Baiderman, 74 Pa. Commw. Ct. 367, 460 A.2d 1199 (1983). The court's decision will be interfered with only where there are no grounds to support the decree or the rule of law relied upon was misapplied or palpably erroneous. Willman v. Children's Hospital of Pittsburgh, 505 Pa. 263, 479 A.2d 452 (1984). A preliminary injunction is properly issued only where there is urgent necessity to avoid injury which cannot be compensated for by damages. Independent State Store Union v. Pennsylvania Liquor Control Bd., 495 Pa. 145, 432 A.2d 1375 (1981) It should never be awarded except where the plaintiff's rights are clear and unless greater injury will be done by refusing it than by granting it. Id.

In this case the injunction was issued based upon the court's conclusion that a restrictive covenant in the Appellee's lease was violated. Appellee had entered a lease with Appellant, landlord, to rent space in which to open a store, The Uncommon Market. Article IX of the lease provided a "Use Clause and Restrictions." It permitted the leased premises to be used "for the sale of any and all customary merchandise sold in other Tenant-operated stores." It also offered Appellee the following restriction as protection from competition:

Landlord will not lease or sell to, or otherwise permit the occupancy by, any one tenant (or its affiliates) of more

[ 383 Pa. Super. Page 247]

    than Two hundred (200) square feet of floor area for the sale or display of International Foods. (emphasis added).

Other tenants enjoyed similar protections and a list of these tenants and their protected products was attached to the lease. A special agreement was made between Appellee and another Tenant, Pier I Imports, permitting the sale of certain items which would otherwise be violative of Appellee's restrictive covenant. These items were described in the agreement attached to the lease as "tins of imported cookies, candies, and/or other food items." (emphasis added).

The distinct nature of Appellee's business is described in one remaining section of the lease agreement. Section 24 indicates that Appellee will be offering to the public written and photographic material not printed in the United States of America. Due to the potential that certain members of the public may find this material to be offensive, a provision for the removal of this material was made. Included in this provision is the following statement: "Both Landlord and Tenant ...


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