CC Pizza's suit dismissed by Phila. judge in commerce program case

By Jon Campisi | Sep 12, 2012

A Philadelphia judge last month granted a motion for summary judgment that had been filed

by the defendants in a commerce program case that involved a tenant suing a property owner over claims the plaintiff was being denied access to certain areas of the high-rise commercial tower where the plaintiff inhabited space.

In an order dated Aug. 9, but posted to the website of the Philadelphia Court of Common Pleas on Sept. 10, Judge Gary Glazer simultaneously denied the plaintiff’s motion for partial summary judgment and granted the defendants’ motion for summary judgment in CC Pizza LLC v. Liberty/Commerz et al.

CC Pizza LLC, whose principals are Robert La Scala and Scott Homel, sued Liberty/Commerz, Liberty Property Philadelphia Corporation IV East, and Liberty Property Trust in mid April of last year over allegations that it was being refused access to the office tower of the Comcast Center Building in downtown Philadelphia, a complex at which the plaintiff was a tenant.

While CC Pizza leased commercial retail space in the Comcast Center, the defendants claimed that the restaurant’s lease only allowed it to access the concourse area of the building, which included a food market comprising of food vendors.

While food vendors have access to the escalators, stairways and elevators that provide access from the lobby to the concourse, they do not have permission to access the office tower, which is a separate part of the building, something that the defendants claim is done for security reasons.

While the property owners don’t permit food delivery personnel to pass through security and make their way into the office tower, they did establish a “delivery intercept room” where food recipients would be able to meet those delivering food items.

In its lawsuit, CC Pizza claimed that it was being unfairly denied access to certain parts of the building.

The suit contained counts of breach of contract, fraud in the inducement, fraud in the execution, unjust enrichment, tortious interference with contract and declaratory judgment.

Last summer, the record shows, the court sustained in part the defendants’ preliminary objections to the claims for fraud in the inducement and unjust enrichment, and dismissed portions of the breach of contract and declaratory judgment claims.

On April 30 of this year, the court discontinued the tortious interference claim.

The court then had to address the plaintiff’s partial motion for summary judgment on the breach of contract claim and the defendants’ motion for summary judgment on all remaining claims.

In ruling in favor of the defense, and dismissing the plaintiff’s complaint in its entirety, Judge Glazer wrote that the lease does not provide CC Pizza with unfettered access to the office tower elevators.

“A plain reading of [the lease’s provisions] demonstrate that although CC Pizza may have a non exclusive license to use the Office Tower elevators, the non exclusive license is subject to the exclusive control and management of defendant landlord,” Glazer wrote. “The record evidence demonstrates defendant landlord indeed implemented certain restrictions in accessing the Office Tower elevators which are permitted under the terms of the lease.”

Glazer noted that while tenants like CC Pizza are not permitted to access the office portion of the building, it isn’t prohibited from using the delivery intercept room from making pizza deliveries to office tower tenants.

“CC Pizza agreed to observe the rules and regulations attached to the lease which specifically grant defendant landlord the ‘exclusive right to prescribe the method and manner in which same [merchandise] shall be brought in or taken out of the Building,’” the judicial order states.

In dismissing the plaintiff’s fraud in the execution count, in which CC Pizza had claimed that the defendants’ agents represented to the plaintiff that the lease terms were different than what is contained in the executed lease, Glazer wrote that the plaintiff has failed to produce any evidence that a term was omitted from the lease.

“Since CC Pizza has failed to present any evidence of an omission in the lease regarding the location of food vendors, defendant landlord’s motion for summary judgment is granted,” Glazer wrote.

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