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Pa. attorneys support grocery stores' $18.5M request

By Jessica M. Karmasek | Apr 25, 2011

HARRISBURG, Pa. (Legal Newsline) - A group of Pennsylvania attorneys has filed an amicus brief in support of grocery store chains Safeway and Genuardi's in an ongoing dispute over a commercial lease.

Genuardi's Family Market Inc. and Newman Development Group had entered into a lease so Genuardi's could lease a space in a shopping center to be built by Newman. Negotiations began in 1998, and the lease was eventually signed in April 2000.

Genuardi's was subsequently acquired by Safeway, to whom the lease was assigned by agreement of the parties in February 2001.

On Feb. 13, 2002, Safeway informed Newman that it was terminating the lease due to Newman's failure to meet certain deadlines. Newman responded by filing a complaint against Genuardi's and Safeway, alleging anticipatory breach of the lease agreement.

A lengthy non-jury trial was conducted in October 2005. It was determined that Genuardi's and Safeway had breached the lease, and judgment was entered in favor of Newman in the amount of $131,277.

The court then granted Newman's post-trial motion, in part, resulting in an increase in the damage award to $316,889.92.

The parties filed cross-appeals. The state Superior Court affirmed the lower court's decision to the extent that it found Genuardi's and Safeway in breach of the lease, but vacated and remanded the award of damages in Newman's favor on the grounds that the lower court judge erred in failing to enforce the measure of damages set forth by Section 20.2.2 of the lease.

On remand, the judge received legal memoranda from the parties and conducted oral argument, but received no additional evidence. He then issued an opinion on Jan. 15, 2010, which stated that Newman was entitled to $10,525,298 in damages; that the grocers failed to prove that the amount of damages should be reduced to present value; Newman was entitled to reasonable counsel fees and expenses; and that the company was entitled to interest from the date of the anticipatory breach.

On Feb. 17, 2010, the grocers filed a motion for reconsideration of the Jan. 15, 2010 opinion. The judge denied it in a Feb. 25, 2010 order. The same day, he filed a separate order pursuant to the Jan. 15, 2010 opinion setting total judgment in favor of Newman at $18,489,221.60. That included the $10,525,298 in damages, plus $6,279,734.26 in interest, and $1,684,189.34 in attorney fees, costs and expenses with interest.

The grocers filed no motions, either post-trial or for reconsideration, to the February decision. Instead, they filed a direct appeal on March 19, 2010.

The Superior Court, in an opinion filed March 18, concluded that the two grocery stores failed to file post-trial motions before appealing the $18.5 million verdict.

The court said the filing of the motions is mandatory under the "procedural posture" of the case and that the stores waived their claims of trial court error for purposes of review. The court thus granted Newman's motion to quash.

Now, according to The Legal Intelligencer, the group of eight attorneys -- from seven of the state's largest law firms -- are lending their support to the stores' request for reconsideration or reargument before an en banc panel of the Superior Court. The grocers filed their petition on April 1.

In their friend-of-the-court brief, the attorneys say they have a "strong interest in the interpretation and application of post-trial and appellate procedural rules in a manner that provides fair notice of what has to be done to achieve review of cases on their merits."

According to the Intelligencer, the attorneys who signed onto the brief include: Charles W. Craven and John J. Hare of Marshall Dennehey Warner Coleman & Goggin, Kandice J. Giurintano of McNees Wallace & Nurick, Robert A. Graci of Eckert Seamans Cherin & Mellott, John P. Krill of K&L Gates, James C. Sargent of Lamb McErlane, Sean R. Sullivan of Curtin & Heefner, and Kim M. Watterson of Reed Smith.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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