Giant Food Stores, LLC v. THF Silver Spring Development, LP

959 A.2d 438, 2008 Pa. Super. 245, 2008 Pa. Super. LEXIS 3499, 2008 WL 4603488
CourtSuperior Court of Pennsylvania
DecidedOctober 17, 2008
Docket1476 MDA 2007
StatusPublished
Cited by103 cases

This text of 959 A.2d 438 (Giant Food Stores, LLC v. THF Silver Spring Development, LP) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Giant Food Stores, LLC v. THF Silver Spring Development, LP, 959 A.2d 438, 2008 Pa. Super. 245, 2008 Pa. Super. LEXIS 3499, 2008 WL 4603488 (Pa. Ct. App. 2008).

Opinion

OPINION BY

SHOGAN, J.:

¶ 1 Appellant, THF Silver Spring Development, L.P., the owner of a shopping center, appeals from the order that granted summary judgment in favor of Appel-lee, Giant Food Stores, LLC, in this action in equity and that enjoined Appellant from violating a Supermarket Restriction contained in a 1992 Lease Agreement. We affirm.

¶ 2 The trial court summarized the facts of this case as follows:

[Appellant’s] predecessor in interest developed the Silver Spring Commons Shopping Center (hereinafter Shopping Center). In May 1992[,] the parties’ predecessors in interest entered into a 20[-]year lease agreement for certain retail space in the Shopping Center. [Ap-pellee’s] predecessor in interest operated a Giant grocery store from that space. The lease agreement contained a restrictive covenant which provides[,] in relevant part[,] as follows:
Section 14.01.
... Landlord covenants and agrees that, for the term of this Lease and any extension thereof, no store(s) and/or building(s), or any part of same, now or hereafter acquired and/or constructed by Landlord within the Shopping Center or upon any property within a three (3) mile distance therefrom in which the Landlord has an ownership interest shall be used for the sale (at retail or wholesale), for off-premises consumption of groceries, ... If at any time during the term hereof the Demised Premises is not being used as a supermarket or for the sale of food for a consecutive period in excess of six (6) months ... the restrictions contained herein shall be null and void.
In April of 2001[,] Giant vacated the leased space and moved its grocery store to an unrelated retail space across the highway from the Shopping Center. However, before its move, Giant began negotiating with [Appellant’s] predecessor to sublet a portion of its space in the Shopping Center and to maintain the effectiveness of the restrictive covenant set forth above. At the same time[,] [Appellant’s] predecessor in interest was negotiating with Wal-Mart to expand its presence in the Shopping Center from a *441 Wal-Mart retail store to a Wal-Mart Super Center, which would include the sale of groceries. By June of that year[,] the parties confirmed their intention to proceed in good faith to reach a legally binding agreement which would incorporate the following terms:
In consideration of the Tenant’s funding of the improvements to be constructed by Marshalls, Landlord shall waive the nullification of the use restrictions by virtue of Tenant’s discontinuance of supermarket operation, and shall agree that the use restrictions contained in Section 14.01 (the “Supermarket Restriction”) shall be reinstated and thereafter would expire on the expiration date of the original term of the Lease. This waiver by Landlord will take effect when the Sublease is approved by Landlord and executed by Tenant as sub landlord and Marshalls as subtenant. Notwithstanding the foregoing, the Supermarket Restriction (a) shall not apply to Wal-Mart Stores, Inc. and its successors and assigns.
Tenant will approve in writing (a) Wal-Mart’s operation of a supermarket, (b) the expansion of the Wal-Mart store into a portion of the shopping center owned by Landlord, approximately as shown on the Sketch Plan attached hereto as Schedule B. The result will be that the Wal-Mart store will be expanded to contain approximately 200,000 square feet of space, some of which, as determined by Wal-Mart, will be devoted to supermarket type uses; and (c) the expansion of that portion of the overall shopping center now owned by Wal-Mart ...
By September of 2001[,] the parties entered into a legally binding agreement with regard to the sublease and the Wal-Mart expansion. [Appellant’s] predecessor agreed to execute Giant’s sublease for the purpose of consenting thereto. With regard to the Wal-Mart expansion, the agreement provided, inter alia, as follows:
Giant and Marmaxx hereby confirm and reconfirm that they have no objections to, and hereby consent to and approve (a) the conveyance of approximately 4.56 acres of land and improvements thereon to Wal-Mart, all as approximately shown in the shaded area on Exhibit A attached hereto, ... (b) the construction by Wal-Mart of an expansion to the existing Wal-Mart store, the expansion to take place approximately within the area crosshatched within the shaded area and (c) the operation by Wal-Mart of its store, as so expanded, as a: “Wal-[m]art Super[center]”;
(emphasis added).
In July of 2003[,] Giant subleased the remaining portion of its space in the shopping center. In September of that year, the parties finally executed an Amendment to the original lease agreement. The document began by reciting the following background:
A. Landlord is the fee owner of certain real property that comprises a portion of the Silver Spring Commons Center, located in Silver Spring Township, Cumberland County, Pennsylvania, as depicted on the Site Plan attached hereto as Exhibit “A” (the “Shopping Center”).
B. Landlord’s predecessor in interest and Tenant’s predecessor in interest entered into a Lease *442 Agreement dated May 29, [ ] 1992 (the “Lease”), pursuant to which Tenant leases certain premises located in the Shopping Center (the “Demised Premises”) as described in the Lease ...
C. Tenant elected to discontinue the operation of the Demised Premises as a supermarket pursuant to its rights set forth in Section 6.02 of the Lease, and ceased operations in the Demised Premises on or about April 24, 2001.
D. Section 14.01 of the Lease sets forth a use restriction binding the Shopping Center and certain other property within a three (3) mile distance therefrom (the “Supermarket Restriction”), which shall become null and void if the Demised Premises are not being used as a supermarket or for the sale of food for a consecutive period in excess of six (6) months, excluding any Excused Period.
E. Tenant, as sublessor, and Mar-maxx Operating Corp. (“Mar-maxx”), as sublessee, entered into a Sublease Agreement dated as of September 20, 2001 (the “Mar-maxx Sublease”), pursuant to which Marmaxx occupies a portion of the Demised Premises, which portion is marked “Mar-maxx Space” on Exhibit “A” hereto.
F. Tenant, as sublessor, and A.C. Moore, Inc. (“A.C. Moore”), as sublessee, entered into a Sublease Agreement dated as of July 1, 2003 (the “A.C. Moore Sublease”) pursuant to which A.C. Moore occupies the remainder of the Demised Premises, which remainder is marked “A.C. Moore Space” on Exhibit “A” hereto.
G. Wal-Mart Stores, Inc. (“Wal-Mart”) is the fee owner of certain real property that comprises a portion of the Shopping Center (the “Wal-Mart Property”) as depicted on Exhibit “A” hereto.
H. Landlord and Tenant desire to amend the Lease in accordance with the provisions set forth herein.
(emphasis added). The relevant terms of the amendment provide as follows:

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Bluebook (online)
959 A.2d 438, 2008 Pa. Super. 245, 2008 Pa. Super. LEXIS 3499, 2008 WL 4603488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/giant-food-stores-llc-v-thf-silver-spring-development-lp-pasuperct-2008.