Pollock v. Morelli
| Decision Date | 22 November 1976 |
| Citation | 245 Pa.Super. 388,369 A.2d 458 |
| Parties | Eugene POLLOCK and Rose One-Hour Cleaners, Inc. t/a Great Valley One-Hour Cleaners, a Pennsylvania Corporation, Appellants, v. Thomas MORELLI t/a Great Valley Center. |
| Court | Pennsylvania Superior Court |
Argued March 19, 1976.
M. Stuart Goldin, Philadelphia, for appellants.
Joseph R. Polito, Jr., West Chester, for appellee.
Before WATKINS, President Judge, and JACOBS HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
This appeal arises from the adjudication of the chancellor that the implied covenant of quiet enjoyment in the appellants' lease was not breached by their lessor, Thomas Morelli, and the consequent failure of the chancellor to find damages in the form of relocation expenses and lost profits of appellants' business.
In January and early February 1971, appellant Eugene Pollock purchased a dry cleaning business situated in Great Valley Shopping Center. In the process of acquiring the business, Mr. Pollock entered into a seven and one half year lease, with appellee as lessor, for the premises in which the dry cleaning establishment was located. At that time the shopping center was composed of two rectangular blocks of stores which met at their inside corners to form, roughly, an L shape, leaving a large open area for parking in the inside angle of the L and a small square of parking in the corner where the two blocks joined. Appellants' store was in this corner immediately adjacent to the small parking area, recessed from the sidewalk fronting all the other shops in such a way as to permit access directly from both parking areas, some spaces of which were as close as 20 feet from the door. Appellants' show windows and overhead sign were easily visible to potential customers using the shopping center. Conveniently for shoppers, the dry cleaning store was next door to a large supermarket.
In November of 1971, without prior notice to appellant, construction began for what appellee termed a 'mini mall' which was to enclose and surround appellants' establishment. Individual appellant, Eugene Pollock, immediately protested this development and continued to object directly to appellee. However, the construction continued and at its conclusion, appellants were no longer occupying an outside store with visible display windows next to a parking lot. Instead they now have a six and one half year lease for one of eleven shops in a mall which extends over what had formerly been the small parking area. A store is located directly in front of the cleaning establishment and access is now gained by entering a set of double doors into the mall and proceeding down a hallway. The display windows are only visible from inside the mall and can be completely viewed only when a customer has passed through the double doors, traveled the full length of the hallway and turned the corner. The sign once directly over the store is now outside the mall over the discount center which is the store directly in front of appellants'. The nearest parking spaces in the remaining parking area are now 100 feet away.
Appellants brought a complaint in equity seeking an injunction compelling appellee to relocate appellants' cleaning business to a situation comparable to that previously enjoyed by them. As an alternative form of relief, they sought an injunction ordering the appellee to demolish the store in front of appellants' shop or to lease that store to appellants. The final prayer was for an award of damages and such further relief as is required. Due to an agreement between the parties by the terms of which appellants vacated the premises and were released from their obligations under the lease, we will limit our consideration to the issues of liability and damages.
In every lease of real property there will be implied a covenant of quiet enjoyment. Raker v. G. C. Murphy Co., 358 Pa. 339, 58 A.2d 18 (1948); Minnich v. Kauffman, 265 Pa. 321, 108 A. 597 (1919). The covenant is between the landlord and his tenant and it is breached when a tenant's possession is impaired by acts of the lessor or those acting under him, or of the holder of a better title. No. 14 Coal Co. v. Pennsylvania Coal Co., 416 Pa. 218, 206 A.2d 57 (1965); Einfeld v. Shermer, 56 Pa.Super. 4 (1914). '(T)here is an implied covenant for the quiet enjoyment of the demised premises, and it is settled in this State that any wrongful act of the landlord which results in an interference of the tenant's possession, in whole or in part, is an eviction for which the landlord is liable in damages to the tenant.' Kelly v. Miller, 249 Pa. 314, 316--17, 94 A. 1055, 1056 (1915). Rocovery for breach of this covenant has been allowed in Pennsylvania where a landlord has evicted the tenant by locking up the leased premises and denying the tenant access, Minnich v. Kauffman, supra; Stein v. McGinley, 123 Pa.Super. 122, 186 A. 231 (1936), and where the landlord so substantially altered some essential features of the premises as to render the property unsuitable for the purpose for which it was leased. Kelly v. Miller, supra ; McCandless v. Findley, 86 Pa.Super. 288 (1926). In Kelly v. Miller, supra, the landlord sealed off doors by which the building leased by the tenant to be used as a theater was connected to the adjoining building, which was used for theater related purposes such as dressing rooms, storage and offices. Closing off the connecting apertures was found to detract from the demise to the tenant and violate the covenant of quiet enjoyment implied in the lease. '(The openings) were part of the demised premises at the date of the lease, and any change in them to the detriment of the tenant was a violation of the tenant's implied covenant for the quiet enjoyment of the property.' Kelly v. Miller, supra at 317, 94 A. at 1056.
Appellants point to the construction of the mini mall as a substantial alteration of the leased premises, detrimental to the business which the parties understood would be conducted thereon, and contend that this action by the landlord breached the covenant of quiet enjoyment. It is pointed out that when the store was leased for a dry cleaning establishment it was an outside store with a prominent display window and easily accessible parking for customers. All these features made the property desirable for the location of a dry cleaning enterprise. The store was visible to potential customers using the supermarket and the rest of the shopping center, the working cleaning plant could be observed through the window, and advertisements could be displayed. Customers carrying clothes to and from the establishment would find the adjacent parking lot convenient. Each of these valuable features were lost upon construction of the mini mall. The once open, visible and accessible store is now surrounded, enclosed and cut off, without prior knowledge or consent on the part of the tenant, as effectively as if appellants were suddenly moved to an entirely different location. Furthermore, the construction itself with its attendant obstruction and confusion is indicated by appellants as a disruption of their business.
The alteration of the premises in question is analogous to that in Kelly v. Miller, supra. In both situations the utility of the property leased is substantially decreased due to the basic structural changes wrought by the landlord. Just as in Kelly, where the feature that made the property desirable, the connecting doors, was eliminated, in the present case the attractive features of the demised premises were eliminated by the acts of the landlord. These acts substantially interfered with the tenant's anticipated use of the premises and represent a breach of the covenant of quiet enjoyment. [1]
The use of windows and pathways granting access to the leased structure, as well as a visible location, has been found in other jurisdictions to be protected by the covenant for quiet enjoyment. Thus in Owsley v. Hamner, 36 Cal.2d 710, 227 P.2d 263 (1951) it was held that where tenants leased a store which enjoyed an adjacent patio with display windows and passageways connecting the patio with the store and two streets, an attempt by the landlord to close the passages and eliminate the patio would be detrimental to the tenants' business and so substantially impair the leased premises as to violate the covenant of quiet enjoyment. The covenant of quiet enjoyment was found to be breached and the tenant evicted from a portion of the leased premises again in James v. Haley, 212 Cal. 142, 297 P. 920 (1931). The tenant in that case constructed a real estate office on the leased property, but during the term of his lease the landlord caused two buildings and a high fence to be constructed within inches of the tenant's building, blocking the public's view of the building and occupying portions of the premises previously used by the tenant for advertising. In Leventhal v. Straus, 197 Misc. 798, 95 N.Y.S.2d 883 (1950) it was held that the covenant was breached when the landlord constructed a porch over the one window in the tenant's apartment in such a way as to cut out the natural light and reduce the circulation of fresh air to the interior, the court noting that the tenant's right to beneficial enjoyment extended to some extent beyond the interior of the apartment including certain rights of access, light and ventilation with which the landlord could not interfere. The Supreme Court of Massachusetts in Winchester v. O'Brien, 266 Mass. 33, 164 N.E. 807 (1929) found for the tenant on the basis of similar reasoning stating that a substantial and continued interference with the tenant's dentistry practice occurred when the noise, dirt and obstruction of prolonged construction embarked upon by the landlord,...
To continue reading
Request your trial