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04/21/97 MELISSA MASURE v. ANTHONY MASSA

April 21, 1997

MELISSA MASURE, PRESIDENT, T/A HEROIC HOAGIE, INC., APPELLEE
v.
ANTHONY MASSA, JR. AND JAMES P. ATHENS AND KASA'S INC. BY MICHAEL M. KASAPOV; APPEAL OF: ANTHONY MASSA, JR. AND JAMES P. ATHENS, APPELLANT; HEROIC HOAGIE, INC., BY MELISSA MASURE, PRESIDENT APPELLEE V. ANTHONY MASSA, JR. AND JAMES P. ATHENS, AND KASA'S, INC. BY MICHAEL M. KASAPOV; APPEAL OF: KASA'S INC. BY MICHAEL M. KASAPOV, APPELLANT



Appeal from the Order entered May 13, 1996 in the Court of Common Pleas of Monroe County, Civil Division, at No. 926 Civil 1996. Before O'BRIEN, J.

Before: Del Sole, Popovich And Olszewski, JJ. Opinion BY Del Sole, J.

The opinion of the court was delivered by: Del Sole

OPINION BY DEL SOLE, J.:

FILED APR 21 1997

Before us are appeals from a May 13, 1996 order and decree of the Court of Common Pleas of Monroe County granting Appellee's petition for injunctive relief.

The facts of the case reveal that in May 1993, Appellee Heroic Hoagie, Inc (Original Tenant) entered into a commercial lease agreement with Appellants Anthony Massa, Jr. and James P. Athens (Landlords) for space at Landlords' mini-mall. The lease contained a restrictive covenant prohibiting Landlords from leasing space to would-be competitors of Original Tenant. In December 1995, Landlords entered into a lease agreement with Appellant Kasa's, Inc. (New Tenant) which contained a provision limiting the menu items which New Tenant could sell until Original Tenant left the mini-mall. However, New Tenant offers for sale several retail food items also furnished by Original Tenant. The overlapping menu items account for 21 percent of New Tenant's food sales. Original Tenant filed a complaint for injunctive relief for breach of covenant. The complaint was followed by a petition for preliminary injunction. A hearing was held on the petition and a decree was issued granting the request for injunctive relief. Both Landlords and New Tenant filed appeals to this court. We affirm.

The sole issue presented for our review is whether the lower court erred in issuing the preliminary injunction based upon the evidence submitted.

Landlords and New Tenant argue that Original Tenant failed to meet the requirements for the issuance of a preliminary injunction.

An appellate court's review of the grant or denial of a preliminary injunction is limited to a determination of whether any apparently reasonable grounds existed for the action taken by the trial court; appellate courts will not review the merits of the controversy itself. The Superior Court may interfere with the [lower court's] decision regarding a preliminary injunction only if the certified record reveals that no grounds exist to support the decree, or that the rule of law relied upon was either palpably erroneous or misapplied. In order to sustain a preliminary injunction, the plaintiff's right to relief must be clear, the need for relief must be immediate, and the injury must be irreparable if the injunction is not granted.

Sovereign Bank v. Harper, 449 Pa. Super. 578, 590, 674 A.2d 1085, 1091 (1996) (citations omitted) (emphasis original).

Pennsylvania law places the burden upon the party seeking an injunction to establish his or her own rights as well as the inequitable nature of the defendant's conduct. Nevertheless, the defendant must show that his or her conduct was reasonable or that a defense exists to the plaintiff's claims. Id. at 591, A.2d at 1092.

At issue in this case is the interpretation of the contracts. The five year Lease Agreement between Original Tenant and Landlords contained the following restrictions:

ARTICLE 6. RECIPROCAL ...


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