HomeMy WebLinkAbout92-38 CivilWILLIAMS GROVE, INC.
Plaintiff
V.
SEL-WIL, INC.,
Defendant -
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNT ,PENNSYLVANIA
CIVIL ACTION -
NO. 38 EQUITY 1992
IN RE: PRELIMINARY INJUNCTION
BEFORE OLER. J.
ORDER OF COURT
AND NOW, this 19th day of October, 1992, upon consideration of
Plaintiff's Petition for Preliminary Injunction, end following a
hearing pursuant to Pennsylvania Rule of Civil Procedure 1531(d),
the preliminary injunction issued on September 1, 1992, is MODIFIED
to read in its entirety as follows:
1. Defendant, Sel-Wil, Inc., its officers, agents, employees,
representatives and assigns, are hereby enjoined and prohibited
from removing from the leased premises commonly kn wn as Williams
Grove Speedway the following items: the grandsta d on the front
stretch (along with debris screening), guardrail s, fencing and
various gates, and the pressbox on the front gran stand.
2. This Order is conditioned upon Plaint'ff's continued
filing of an approved bond in the amount of $20,000-00-
3.
20,0 0.00.3. Trial upon the underlying complaint will b scheduled upon
listing by either party.
BY THE COURT,
J., Wesley J.
John B. Fowler, III, Esq
Attorney for Plaintiff
Jack M. Stover, Esq.
R. Scott Shearer, Esq.
Attorneys for Defendant
:rc
WILLIAMS GROVE, INC.
Plaintiff
V. '
SEL-WIL, INC.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNT , PENNSYLVANIA
CIVIL ACTION -
NO. 38 EQUITY 19P2
IN RE: PRELIMINARY INJUNCTION
BEFORE OLER, J.
OPINION AND ORDER OF COURT
At issue in the present case is whether, foll,
ing a hearing
pursuant to Pennsylvania Rule of Civil Procedure 1531(d),1 a
preliminary injunction entered ex parte should be dissolved,
modified or continued without change. For the re sons stated in
this Opinion, the preliminary injunction will be
Background. This case arises out of a c
between the corporate lessor of a speedway, Will
(Plaintiff), and the speedway's corporate lessee
(Defendant). In contention are what items the Defe
remove from the premises as the leasehold terminate
1992.
An initial Lease Agreement between the part
1968, provided, inter alia, as follows:
ified.
tract dispute
s Grove, Inc.
Sel-Wil, Inc.
ant lessee may
on October 31,
s on April 1,
LESSOR does by these presents] remise,
and lease to the LESSEE the WILLIAMS GROVE
MOTOR SPEEDWAY, together with the par ing area
appurtenant thereto ....
LESSEE shall, at its own expense keep
the race track and all grounds, s ands,
1 "An injunction granted without notice to the defendant
shall be deemed dissolved unless a hearing on tha continuance of
the injunction is held within five (5) days aftei the granting of
the injunction or within such other time as thearrtieesCmay 1531agree
or as the court upon cause shown shall direct." Pa.
No. 38 Equity 1992
buildings and parking areas in a good stat
repair and shall maintain the same so tha
shall not deteriorate from the condi
existing at the beginning of the Lease, no
wear and tear to buildings only excepted.
LESSEE shall, at its own expense, pro
insurance on the structures against fire
with clause of extended coverage and
policy shall show the interest of the LE
and LESSEE hereto ....
Hearing on Plaintiff's Petition for Pre
of
it
on
Lal
..
ide
and
aid
SOR
Injunction,
Petitioner's Exhibit 1. The subject of what items, if any, could
be removed by the lessee at the conclusion of the leasehold was not
explicitly addressed in the lease.
An Extension to Agreement of Lease dated Oc+ber 10, 1986,
recites a desire of the parties ,to continue and perpetuate the
terms and conditions of the ... Agreement of Lease dated April 1,
1968 and to modify and amend the terms of the afor�said Agreement
Id., Petitioner's Exhibit 2. In addit
modifying the initial Agreement in areas such
extension lease contains the following paragraph:
to provisions
as rent, the
It is acknowledged that the Lesse has
constructed and may, in the future witl the
prior written consent of the Lessor which
consent shall not be unreasonably wit held,
construct certain nonpermanent lea ehold
improvements on the premises. The Lessee shall
retain ownership to such nonpermanent
leasehold improvements, and the same shall not
become the property of the Lessor at the
termination of this Lease or any extension
thereof unless mutually agreed upon between
the Lessor and Lessee in writing.
Id. This provision was requested by the Defendant
K
lessee, but was
No. 38 Equity 1992
drafted by the Plaintiff lessor.
On August 14, 1992, as the leasehold neared its termination
without a negotiated renewal, Defendant lessee sent a letter to
Plaintiff announcing its intention to remove "its leas[e]hold
improvements and trade fixtures that it has purchased and
constructed on the property," including the following:
1. The grandstand on the front stretch, along
with debris screening.
2. The grandstand on the back stretch.
3. The bleachers on the back stretch.
4. The lighting system.
5. The Coors Scoreboard.
6. Both Press Boxes.
7. Sound System and Public Address Syste .
8. Ticket booths and pit press booths.
9. Fencing and various gates.
10. The handicap ramp.
11. The pump in the Yellow Breeches Creek.
12. Guardrails.
Id., Petitioner's Exhibit 3.
On September 1, 1992, Plaintiff lessor fil d the present
action in equity, seeking preliminary and perman nt injunctive
relief against the lessee's proposed action. On t at date, an ex
parte preliminary injunction was issued by this Court against the
removal of the enumerated items by Defendant, conditioned upon
Plaintiff's filing of a $20,000 bond.' A hearing was thereafter
held on the continuance of the preliminary injunct on.3
At the hearing, it was stipulated that the bleachers on the
' See
Pa.
R.C.P.
1531(a), (b).
3 See
Pa.
R.C.P.
1531(d).
3
No. 38 Equity 1992
backstretch' and the pump in the Yellow Breeches Creeks were no
longer the subject of claims by Defendant lessee, and that the
matter of the Coors Scoreboard' would be resolved icably by the
parties; a court order was entered to this effect.' In addition,
two items not included in the foregoing enumeration, but claimed by
Defendant - traffic lights and a starter stand - we a permitted by
the Court to be added to the objects of Plaintiff's requested
relief.'
Evidence at the hearing included testimony on behalf of the
Plaintiff lessor tending to show that removal of all the items
threatened by Defendant would render the speedway inoperable for
practical purposes during the 1993 season, would cause the speedway
to lose its Friday night monopoly in its geographical area, and
would involve a loss of $2,000,000 in prospective gross revenues
for the first year. Evidence also included testim ny on behalf of
Defendant lessee that Plaintiff's litigation was interfering with
several prospective sales of the items in dispute. Both parties
provided a considerable amount of evidence as to the history of
various items being contested.
Item 3 on the list of items to be removed
5 Item 11 on the list of items to be remove
' Item 5 on the list of items to be removed
' Order of Court, October 9, 1992.
e Hearing, October 9, 1992, N.T. 25-27.
0
y Defendant.
by Defendant.
v Defendant.
No. 38 Equity 1992
Statement of the law. Several principles
particular relevance to the present case. First,
preliminary injunctions the Pennsylvania Supreme
as follows:
law are of
th respect to
has stated
Three criteria have been established for
the granting of a preliminary injunction...
They are: (1) the preliminary injunction ust
be necessary to prevent immediate and
irreparable harm which could not be
compensated for by damages; (2) greater injury
would result from the denial of the
preliminary injunction than from the granting
of it; and (3) it would operate to restore the
parties to the status quo as it existed prior
to the alleged wrongful conduct. In addition,
in meeting all three criteria, the court must
be convinced that [plaintiff's] right to a
preliminary injunction is clear ... and
general equity jurisdiction must be warra ted.
Committee of Seventy v. Albert, 33 Pa. Commw. 44, 49�, 381 A.2d 188,
190 (1977).
Second, Pennsylvania has adopted the trade fixtures doctrine:
"[W]here a tenant attaches to real estate fixtureE and equipment
necessary for the operation of its business, such items become
'trade fixtures', and a presumption arises that the tenant is
entitled to remove them during or at the terminatior of its lease."
Cattie v. Joseph P. Cattie & Brothers, Inc., 403 P al. 161, 163, 168
A.2d 313, 314 (1961).
Third, with respect to construction of contra�ts, it is well
settled that the applicable rules "are aimed at ascertaining the
5
No. 38 Equity 1992
intent of the parties.i9 In this regard, it may be ted that "[a]
contract must be construed reasonably to effectuate the intent of
the parties and to avoid an absurdity ....i10 "IlL construing a
contract, all the provisions thereof should be armonized, if
possible ...."11 In addition, "the words of a contract are
construed most strongly against the party using t em or who has
chosen them ...."12 And, in the context of the rade fixtures
doctrine, it has been said that, "in the construction of an
agreement containing words whose meaning is doubtful, the
construction of the words most favorable to thE tenant shall
prevail. "13
Application of law to facts. In entering the f llowing Order,
the Court has determined it probable that in the final analysis the
evidence will be considered to have shown (a) that the parties, in
providing in the 1968 agreement for maintenance of he premises by
lessee, contemplated that the speedway would be zeturned to the
lessor in approximately the same condition as received, (b) that
the parties did not intend by the 1968 agreement that items of
9 8 P.L.E. Contracts §141, at 164 (1971).
10 Id., §153, at 190 (1971).
11 Id., §158, at 199 (1971).
12 Id., §155, at 195 (1971).
13 Cattie v. Joseph P. Cattie & Brothers, Inc
164, 168 A.2d 313, 314 (1961).
2
1., 403 Pa. 161,
No. 38 Equity 1992
routine maintenance by lessee would be transformed by the trade
fixtures doctrine into personalty of the tenant, (c) that the
clause in the 1986 agreement, respecting removal of certain items
by lessee, which was included at lessee's request, was not intended
to decrease the rights the lessee already enjoyed under the trade
fixtures doctrine, and (d) that the said clause was intended in a
limited way to expand the lessee's right to remove some relatively
portable items that might otherwise have bean considered
maintenance. Based upon these premises, which are subject to
review at a later stage, and in light of the fact that the
irreparability of harm to Plaintiff by Defendan 's threatened
action is very much dependent upon the item in question, the
following Order will be entered:
ORDER OF COURT
AND NOW, this 19th day of October, 1992, upon consideration of
Plaintiff's Petition for Preliminary Injunction, and following a
hearing pursuant to Pennsylvania Rule of Civil Pro edure 1531(d),
the preliminary injunction issued on September 1, 1992, is MODIFIED
to read in its entirety as follows:
1. Defendant, Sel-Wil, Inc., its officers, ag ts, employees,
representatives and assigns, are hereby enjoined and prohibited
from removing from the leased premises commonly known as Williams
Grove Speedway the following items: the grandstand on the front
stretch (along with debris screening), guardrai s, fencing and
7
No. 38 Equity 1992
various gates, and the pressbox on the front grandspand.
2. This Order is conditioned upon Plainti4fIs continued
filing of an approved bond in the amount of $20,000.00.
3. Trial upon the underlying complaint will be (scheduled upon
listing by either party.
John B. Fowler, III, Esq.
Attorney for Plaintiff
Jack M. Stover, Esq.
R. Scott Shearer, Esq.
Attorneys for Defendant
:rc
BY THE COURT,
J.jWesley 014, Jr.;
LV