Thatcher's Drug Store of West Goshen, Inc. v. Consolidated Supermarkets, Inc.

PAPADAKOS, Justice,

dissenting.

Consolidated Supermarkets, Inc. (Consolidated) appeals from the Order of the Superior Court affirming the order of the Court of Common Pleas of Chester County which enjoined Consolidated from operating a pharmacy in the West Goshen Shopping Center (the Shopping Center). For the following reasons, I dissent.

This case was commenced on April 29, 1987, by Appellee, Thatcher’s Drug Store of West Goshen, Inc. (Thatcher) which for fourteen years prior thereto had been operating a pharmacy immediately adjacent to Consolidated’s Shop-Rite Supermarket in the Shopping Center.

On October 29, 1965, Consolidated entered into a long-term lease with the then owner, Enal Productions, (Landlord) to open a Shop-Rite supermarket as an “anchor” store for the Shopping Center. Under the terms of the lease, Consolidated was prohibited from using more than twenty percent of its selling space for the sale of “non-food” items.

In September, 1973, Thatcher entered into a ten year lease with Landlord to open a pharmacy in the store immediately adjacent to the Shop-Rite supermarket. The lease contained the following paragraph protecting Thatcher from competition within the Shopping Center:

Landlord shall not lease any store within the premises for use as a drug store or pharmacy or for the sale of medical equipment or prosthetic supplies. The foregoing restriction shall not apply to any of the shopping center presently used as a supermarket or department store.

The lease also prohibited Thatcher from selling any “food.”

In 1976, Thatcher installed a refrigeration case from which it sold milk. In response, Consolidated posted a sign in front *481of the supermarket announcing that: “Coming soon — a Shop Rite pharmacy.” Upon seeing the sign, Ronald Zukin, the president and sole shareholder of Thatcher, contacted Joseph Greenblatt, the controller and vice-president of Consolidated. Mr. Zukin asked Mr. Greenblatt why the sign announcing the coming of a Shop-Rite pharmacy was in the window, Mr. Greenblatt responded, “We don’t want you in the dairy business,” referring to Thatcher’s recent selling of milk. After some discussion, Mr. Greenblatt said, “You get out of the dairy business and we won’t open a pharmacy.” Within a week, Thatcher removed the refrigeration case, and, in response, the supermarket immediately removed the pharmacy announcement.

In 1988, nearing the end of Thatcher’s ten year lease, Mr. Zukin approached Landlord about securing a ten year renewal. Mr. Zukin was informed that Consolidated desired Thatcher’s space to use as a Shop-Rite pharmacy and that renewal would not be offered to Thatcher. As a result, Mr. Zukin located an alternative site for the pharmacy three blocks from the Shopping Center. Mr. Zukin, with his attorney, negotiated a lease at the new location, drew a deposit check, and was prepared to finalize the deal. Before finalizing that deal, Mr. Zukin had a conversation with Landlord and was advised that Consolidated had changed its mind about taking Thatcher’s space and that a renewal would be offered to Thatcher.

When Mr. Zukin received the proposed renewal, he met with Mr. Greenblatt to seek assurances that Consolidated would not open a competing pharmacy. Mr. Zukin testified that Mr. Greenblatt’s direct response was, “We don’t hurt the little guys. We have no desire to want to hurt you and we have no intention of opening a pharmacy.” Mr. Greenblatt admitted in testimony that this meeting took place but denied making such a statement. Mr. Zukin also testified that at the time of the meeting he was aware of Consolidated’s lease restriction concerning “non-food” items (i.e., not more than 20% of the selling space) and was aware that the supermarket as then constituted was at or near its “non-food” limits. *482Based on the assurances he received from Mr. Greenblatt, Mr. Zukin executed a ten year renewal in late 1983.

Within the next year, Mr. Greenblatt became aware that Thatcher’s had a “Beverage Center” in front of its store. In response, a sign was again posted in the supermarket window announcing “Shop Rite Pharmacy coming soon.” Again, Mr. Zukin contacted Mr. Greenblatt,' who advised him that Consolidated did not want Thatcher to go into the soda business and if Mr. Zukin would take his beverage center sign down, “we won’t be in the pharmacy business.” Within a few days, Mr. Zukin removed the beverage center sign and, immediately thereafter, the Shop-Rite pharmacy announcement was removed.

In 1985, Consolidated secured the rental space immediately adjacent to the supermarket, on the side opposite of Thatcher’s. Thereafter, Consolidated removed the partition wall between the supermarket and the new space and secured the federal and state licenses necessary to operate a pharmacy. Aware of Consolidated’s imminent plans to open a pharmacy, Thatcher filed the instant action seeking to enjoin Consolidated from implementing its plans.

Thatcher presented three grounds in its complaint in support of its request for injunctive relief: (1) breach of the lease between Consolidated and Landlord; (2) breach of an oral contract between Consolidated and Thatcher; (3) estoppel based upon an oral promise and detrimental reliance. The trial court conducted an evidentiary hearing on May 7 and 8, 1987. At the hearing, the breach of lease argument was rejected by the trial court and the oral contract theory was abandoned by Thatcher. The trial court ruled in favor of Thatcher on the grounds of equitable estoppel and entered a decree nisi enjoining Consolidated from operating a retail, prescription pharmacy on the premises of the West Goshen Shopping Center.

Consolidated filed exceptions to the trial court’s order claiming, inter alia, that the Statute of Frauds1 rendered any *483agreement between the parties unenforceable. In its “opinion sur exceptions,” the trial court upheld its decision on the basis of equitable estoppel but also determined that the Restatement of Property (Second) Section 5242 provided an applicable exception to the Statute of Frauds defense. The trial court denied Consolidated’s exceptions and entered a final order. On appeal, the Superior Court, like the trial court, determined that the Restatement of Property (Second) § 524 provided an applicable exception to the Statute of Frauds defense and this Court granted Consolidated’s petition for allowance of appeal.

In my view, the Statute of Frauds and the Restatement of Property (Second) § 524 are irrelevant to the disposition of this case. I agree with the majority that the oral promise between Thatcher and Consolidated did not create an “interest in land” so as to bring it under the purview of the Statute of Frauds. The cases cited by Consolidated to show that the oral promise created an “easement” are inapposite. Both Burns v. Baumgardner, 303 Pa.Superior Ct. 85, 449 A.2d 590 (1982), and Haines v. Minnock Construction Co., 289 Pa.Superior Ct. 209, 433 A.2d 30 (1981), involved oral promises for building and height restrictions (easements) between the developers of tracts of land and purchasers. There is no such property right between Consolidated and Thatcher in this case, but, instead solely an oral promise not to compete. I disagree, however, that the evidence submitted to the Chan*484cellor does not establish Thatcher’s right to estop Consolidated from opening a competing pharmacy.

In Pennsylvania, the doctrine of equitable estoppel has been utilized as a means for enforcing oral promises.3 See, e.g., Ridley Park Shopping Center v. Sun Ray Drug Co., 407 Pa. 230, 180 A.2d 1 (1962); Ervin v. Pittsburgh, 339 Pa. 241, 14 A.2d 297 (1940).

Equitable estoppel is a doctrine that prevents one from doing an act differently than the manner in which another was induced by word or deed to expect. A doctrine sounding in equity, equitable estoppel recognizes that an informal promise implied by one’s words, deed or representations which leads another to rely justifiably thereon to his own injury or detriment, may be enforced in equity.

Novelty Knitting Mills, Inc. v. Siskind, 500 Pa. 432, 433, 457 A.2d 502, 503 (1983). The essential elements of equitable estoppel are inducement and justifiable reliance on that inducement to one’s detriment. Id. Moreover, the party asserting the estoppel has the burden of establishing the estoppel by clear, precise and unequivocal evidence. See, Blofsen v. Cutaiar, 460 Pa. 411, 333 A.2d 841 (1975).

In the instant case, the trial court, after hearing from the principals, found credible4 Mr. Zukin’s testimony that he met with Mr. Greenblatt who, in response to Mr. Zukin’s request for assurances, stated: “We don’t hurt the little guys. We have no desire to want to hurt you and we have no intention of opening a pharmacy.” The trial court found incredible Mr. Greenblatt’s assertion that he did not make such a statement. The trial court also found that Mr. Zukin knew from his prior dealings that Mr. Greenblatt had previously (in 1976) honored his promise to stop plans to open a pharmacy if Thatcher would not sell milk by removing signs announcing the opening of a pharmacy; and that Mr. Zukin knew, based on his *485knowledge of the supermarket layout and the terms of its lease, that the supermarket was at or near its maximum level of available selling space for non-food items. Under these circumstances, it was reasonable for Thatcher to believe that Consolidated would honor its oral promise not to compete and to act in reliance thereon.

In relying upon Consolidated’s oral promise, Thatcher relinquished its proposed lease at an alternative location and obligated itself to Landlord for an additional ten year term. Consolidated’s direct competition with Thatcher would have undoubtedly caused substantial injury to, or forced Thatcher out of business — a harm which could only be avoided by enforcing the promise not to compete. The lower court was correct in determining that Thatcher established its estoppel claim by clear, precise and unequivocal evidence.

I, therefore, dissent and would affirm the order of the Superior Court.

. The Statute of Frauds provides in pertinent part that:

*483any uncertain interest ... in ... lands, tenements or hereditaments, made or created by ... parol, and not put in writing, and signed by the parties so making or creating the same ... shall have the force and effect of leases or estates at will only, and shall not either in law or equity, be deemed or taken to have any other or greater force or effect....

Act of March 21, 1772, 1 Sm.L. 389, § 1, 33 P.S. § 1.

. Promises Enforceable by Estoppel.

An oral promise or representation that certain land will be used in a particular way, though otherwise unenforceable, is enforceable to the extent necessary to protect expenditures made in reasonable reliance upon it.

Restatement of Property (Second) § 524.

. In this Commonwealth, the concepts of equitable estoppel and promissory estoppel are used interchangeably.

. This Court is bound by the trial court's findings regarding the credibility of the witnesses. See, Wagner v. Wagner, 466 Pa. 532, 353 A.2d 819 (1976).