Turnway Corporation v. Soffer

336 A.2d 871, 461 Pa. 447, 1975 Pa. LEXIS 792
CourtSupreme Court of Pennsylvania
DecidedApril 25, 1975
Docket122
StatusPublished
Cited by73 cases

This text of 336 A.2d 871 (Turnway Corporation v. Soffer) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Turnway Corporation v. Soffer, 336 A.2d 871, 461 Pa. 447, 1975 Pa. LEXIS 792 (Pa. 1975).

Opinions

OPINION OF THE COURT

JONES, Chief Justice.

Appellee, Turnway Corporation, brought this action in equity first to enjoin appellants from interfering with [452]*452appellee’s possession, use, and enjoyment of 1.274 acres of land to which appellants hold title in fee but which appellee claimed is subject to its rights and interest under the terms of a fifty-year lease executed in May of 1952. Secondly, appellee sought to enjoin the appellants to remove certain sanitary and storm sewers from land immediately adjacent to the 1.274 acres, which land is held in fee simple by the appellee. Appellee claimed that the existence of the sewers on its land constituted a continuing trespass. The court below granted both claims for relief and awarded appellee money damages for the loss of fair rental value during the periods when it was deprived of use of the two different parcels of land involved, plus expenses incurred by appellee in protecting its property from mulfunctions of the trespassing sewer lines. We affirm the final decree of the court en banc, which had upheld the chancellor.

Turnway is a Pennsylvania corporation organized in 1952. At all times material hereto, James A. Hall was President and Director of the corporation, James H. Brennan was Secretary and Director of the corporation, and T. Robert Brennan was Treasurer, Assistant Secretary and Director. In 1951 James Brennan held record title to a six-acre tract of land on the southerly side of William Penn Highway in Wilkins Township, as trustee for George Beech and Mary Beech, his wife. One of Turnway Corporation’s first acts in 1952 was to enter into a lease with James Brennan for the six acres of land for a term of fifty years, at a rental of $250.00 per month.

Prior to 1961, Joseph and Violet Soffer, appellants in this case, and Benjamin and Freda Thorpe had acquired a substantial amount of property immediately adjoining this six-acre tract. On this property, the Soffers and Thorpes constructed a complex of office and apartment buildings known as “Penn Center.”

[453]*453In 1961, the Soffers and Thorpes began negotiations with James Brennan, who expressly represented both Turnway and himself, looking to a possible development of the two properties for the mutual benefit of all parties. As a result, an agreement was reached whereby the Soffers and the Thorpes were to obtain a ninety-nine year lease on 1.274 acres of Brennan’s six acres; in return, the Soffers and Thorpes were to construct a fifty-foot right-of-way across the 1.274 acres, thus connecting their Penn Center property with the property leased by Brennan to Turnway Corporation. Although this leasing arrangement was reduced to writing, it never became effective because the Beech family instructed James Brennan not to deliver the executed copies of the lease to the Soffers and Thorpes.

Negotiations between the parties nevertheless continued, and a second agreement was reached. Under an agreement executed on September 17, 1962, Violet Soffer and Freda Thorpe agreed to purchase from James Brennan the same 1.274 acres which were to have been leased to the Soffers-Thorpes under the ineffective ninety-nine year lease. This 1962 agreement provided that Turnway got full title to the remainder of the six-acre tract, without any express mention of a right-of-way over the 1.274 acres. Turnway Corporation as such, did not sign this second agreement but the agreement was negotiated and signed by the same individual, James Brennan, who negotiated the undelivered ninety-nine year lease. Settlement took place on January 15,1963.

Some time late in 1962 and during 1963 the Soffers and Thorpes directed construction of sanitary and storm sewer lines, with manholes and inlets, serving the Penn Center complex through the 1.274 acres previously referred to and, in addition, through 250 feet of the property known as Turnway property. Some time in August of 1970 Turnway undertook to commercially develop the westerly portion of its property to which it had received [454]*454title and, in the process of excavating and grading the same, discovered for the first time the existence of the sewer lines, manholes and inlets which had been buried under ten feet of earth. The location of the sewer lines on the Turnway property caused the Tumway Corporation to discontinue its plan for the commercial development of its property, thereby resulting in the loss of the fair rental value of the vacant land.1

In July of 1964 the Thorpes conveyed all their interest in the property known as the Penn Center complex, together with the 1.274 acres of land, to the appellants herein Joseph Soffer and Violet Soffer, his wife.

Commencing in 1965, T. Robert Brennan wrote a series of letters to Joseph Soffer and his attorney, wherein he demanded that appellants build the allegedly agreed-upon right-of-way to join the Penn Center complex with the Turnway property and that if the Soffers refused, they reconvey the 1.274 acres to Turn way. These demands were predicated upon the Turnway officers’ mistaken impression that the ninety-nine year lease was in effect and/or that the September 1962 agreement to convey had retained the right-of-way as part of the consideration. One letter, dated October 26, 1970, in addition to asking for the right-of-way, adverted to the fact that Turnway had discovered that Soffers’ sewers extended onto Turnway’s property. The letters made no reference whatsoever to the existence of a fifty-year lease.

Appellee’s complaint originally sought to require appellants to reconvey the 1.274 acres of land because appellants had not furnished the right-of-way. The Soffers answered that they had purchased this 1.274 acres [455]*455in 1963 from James and Ruth Brennan for $15,000 and that they had no obligation to furnish a right-of-way. To this end, appellants introduced a deed and a report from the Union Title Guaranty Company to establish their unencumbered title.

Midway through the trial appellee sought permission to amend its complaint by dropping the request for re-conveyance of the 1.274 acres and, instead, asserted that it had a leasehold interest in those same acres under the terms of the fifty-year lease. This amendment was not offered until after the trial had begun and after the death of James Brennan, Secretary and Director of Turnway, who had conducted most of the negotiations with the Soffers. Turnway’s original complaint had specifically averred that the fifty-year lease, which became the basis of appellee’s amended complaint, had been canceled. This admission was retracted in the amended complaint.

I.

Initially, we must dispose of appellants’ contention that it was error for the chancellor to allow appellee to amend its complaint midway through trial. At the time the amendment was offered, appellants’ counsel strenuously objected to this amendment on the grounds that it changed the entire theory of the case and came as a complete surprise. The chancellor, after allowing the amendment, granted the defense a continuance from January 5, 1973, until June 27, 1973. Appellants filed no exceptions relating to the amendment of pleadings. As a general rule, an exception to an equity adjudication is necessary to preserve an objection for appeal. Rankin v. Rogers, 305 Pa. 468, 157 A. 908 (1932). Pa.R.C.P. No. 1518, 12 P.S.

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Bluebook (online)
336 A.2d 871, 461 Pa. 447, 1975 Pa. LEXIS 792, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turnway-corporation-v-soffer-pa-1975.