Pines Plaza Bowling, Inc. v. Rossview, Inc.

• Decision Date: 10 November 1958
• Citation: 394 Pa. 124,145 A.2d 672
• Parties: PINES PLAZA BOWLING, INC., Appellant, v. ROSSVIEW, INC.
• Court: Pennsylvania Supreme Court

Page 672

145 A.2d 672

394 Pa. 124

PINES PLAZA BOWLING, INC., Appellant, v. ROSSVIEW, INC.

Supreme Court of Pennsylvania.

Nov. 10, 1958.

The opinion of Judge Loran Lewis follows:

The present case is before the court en banc on defendant's preliminary objections to plaintiff's complaint in assumpsit.

The facts are as follows:

The plaintiff agreed to lease from the defendant space in a shopping center being constructed by the defendant. It was the plaintiff's intention to install and operate bowling alleys in the leased premises. The lease provided for a term of twenty years from September 1, 1956 to August 31, 1976, at an annual rental of $10,000 to be paid in monthly installments of $833.33. Attached to and made part of the lease agreement were two supplemental riders clearly defining the rights and obligations of the parties. These riders contained seven and twenty-six clauses, respectively.

The present action in assumpsit was begun by the plaintiff lessee, alleging breach of the sixteenth clause of the first supplemental rider which provided that, 'the demised premises shall be available for the commencement of the installation of the bowling alleys by Tenant on or before June 1, 1956.' The plaintiff alleges that the premises were not made available to it for the installation of the necessary equipment until July 20, 1956, and as a result of such delay, the plaintiff was unable to complete the installation of its equipment in time to be open for business on September 1, 1956, and was, in fact, unable to begin the business operations until September 19, 1956. The plaintiff alleges that as a result of this breach of covenant by the defendant, the plaintiff was unable to start operations on September 1, 1956, the beginning of what the plaintiff terms the bowling season, and as a result, suffered loss of profits for the entire year. The plaintiff alleges that success in its business depends upon securing commitments from bowling leagues or organized groups of bowlers, who agree to use the facilities regularly during the entire season, and that in order to secure this desirable and profitable business it is necessary that the facilities be available on September 1st, which is the start of the season. The plaintiff alleges total damages for loss of profits of $18,434.

In addition, the plaintiff seeks to recover all rental payments made to the defendant during the period September, 1956 to September, 1957, a total of $10,000.

The plaintiff argues that it is entitled to recover these rental payments by reason of Paragraph 7 of the Supplemental Rider.

The preliminary objections now before the court are actually the second set of objections filed by the defendant in this case.

When defendant's preliminary objections to the plaintiff's original complaint were argued before the court en banc, it was decided, from the bench, to permit the plaintiff to amend his complaint so as to properly allege his items of damages. The court en banc did not pass on the other objections filed by the defendant at that time, and we are, therefore, not precluded from considering them at this time even though they are in substance the same objections made to the original complaint.

The gist of the preliminary objections filed by the defendant in this case is that plaintiff has failed to set out a cause of action. Rule 1017(b)(4), R.C.P., 12 P.S.Appendix. It is only in clear cases that judgment can properly be entered summarily on a defendant's demurrer. In Davis v. Investment Land Co., 296 Pa. 449, 452-453, 146 A. 119, 120, the Supreme Court dealt with the question of when such a judgment is proper. 'In determining whether or not such a judgment should be or should have been entered, two rules must always be applied: (1) The question to be decided is, not whether the statement of claim is so clear in both form and specification as to entitle plaintiff to proceed to trial without amending it, but whether, upon the facts averred, it shows with certainty that the law will not permit a recovery by plaintiff; and (2) Where a doubt exists as to whether or not summary judgment should be entered, this should be resolved in favor of refusing to enter it. On these points see Rhodes v. Terheyden, 272 Pa. 397, 116 A. 364; Briggs v. Logan Iron & Steel Co., 276 Pa. 326, 120 A. 280; Geary v. Schwem, 280 Pa. 435, 124 A. 630, 34 A.L.R. 1294; Steel v. Levy, 282 Pa. 338, 127 A. 766; Thomas v. Employers' Liability Assurance Corporation, 284 Pa. 129, 134, 130 A. 322; Miller v. Miller, 284 Pa. 414, 416, 131 A. 236; Gray v. Philadelphia & Reading Coal & Iron Co., 286 Pa. 11, 14, 132 A. 820.'

Since the plaintiff's claims for loss of profits and for rent paid during the first year of the term are based upon different provisions contained in the lease, we shall consider them separately.

We will first discuss the plaintiff's claim for loss of profits for the year beginning September 1, 1956. While the lease does provide that the premises are to be made made available to the plaintiff on or before June 1st to permit the installation of its equipment, Paragraph 6 of the rider to the lease provides that 'If the completion of the demised premises should be delayed by labor trouble, building permits, inclement weather, or material shortage beyond the control of the Lessor, a reasonable additional time shall be allowed for completion. In any event, failure on the part of the Lessor to complete the premises before the date specified herein for the commencement of the term shall not be grounds for cancellation of the Lease by the Tenant, or claim for damages, provided that the premises are completed within one year thereafter.'

The next paragraph (7) of the rider provides that in the event the premises were not completed by September 1, 1956, the term of the lease was to begin on September 1, 1957, and extend for a period of twenty years thereafter.

The plaintiff in its complaint alleges that the demised premises were not made available to it for the installation of bowling alleys until July 20, 1956, and that it was not able to open for business until September 19, 1956. Apparently, the plaintiff has continuously conducted its business on the premises since that time. The plaintiff argues that the defendant covenanted to make the premises available to it on or before June 1st, and that, as a result of its failure to do so, the plaintiff suffered a loss of profits for the entire first year of the term.

In the opinion of this court, Paragraph 6 of the rider attached to the lease was designed and intended to prevent just such a suit as this. The plaintiff is unable to overcome the explicit prohibition of any claim for damages based on the failure of the defendant to complete the premises prior to the date fixed for the commencement of the term of the lease.

Reading Paragraph 6 and 7 together, there can be no reasonable doubt that the intention of the parties was to prohibit a suit for damages for delay in completion, which would afford protection to the lessor, and, at the same time, protect the lessee by granting him the privilege of delaying the start of the term until September 1, 1957.

That this is the only reasonable interpretation of the lease is apparent taking into consideration the nature of the project in which defendant was engaged. At the time this lease was executed, the shopping center of which the demised premises was a part, was still under construction. It is reasonable to assume that defendant was aware of the fact that an undertaking of this nature was subject to many uncertainties making an accurate prediction of the date of completion...