Opinion
January 18, 1963.
March 19, 1963.
Practice — Action in equity — Dismissal because of adequate legal remedy.
In this action in equity for the specific performance of a lease for a term of one year in which it appeared that the year had passed and the court below had sustained preliminary objections on the ground that appellant had an adequate remedy at law and had entered judgment for the defendants, it was Held that the appeal should be dismissed.
Before BELL, C. J., MUSMANNO, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
Appeal, No. 31, Jan. T., 1963, from judgment of Court of Common Pleas of Schuylkill County, Sept. T., 1961, No. 5, in case of Pasco Mussoline v. Tax Claim Bureau of County of Schuylkill, Emmett Kimmel, Director, County of Schuylkill, et al. Appeal dismissed.
Equity action for specific performance and damages.
Defendant's preliminary objection that plaintiff has an adequate remedy at law sustained and judgment entered for defendants, opinion by CURRAN, P. J. Plaintiff appealed.
Conrad A. Falvello, with him John H. Thomas, for appellant.
Isadore E. Krasno, with him Ralph M. Bashore, for appellees.
Appellant entered into a mining lease with appellee for the period of one year commencing October 11, 1960. The lease contained a provision (a) giving appellant an option for renewal, and (b) giving appellee an option for termination of the lease at the end of the year. Appellant was evicted before the expiration of the year for reasons which on this record appear insufficient. Appellant filed a complaint in equity (1) for the specific performance of the lease for the year in question, and (2) for damages. That year has long since passed, and consequently specific performance could not now be granted. The Court below correctly sustained preliminary objections on the ground that appellant had an adequate remedy at law.
The appeal is dismissed, without prejudice to plaintiff's right to bring an appropriate action at law against the defendants. Each party to pay own costs.