Solomon v. Neisner Bros.

Decision Date03 October 1950
Docket NumberNo. 3289.,3289.
Citation93 F. Supp. 310
PartiesSOLOMON v. NEISNER BROS., Inc.
CourtU.S. District Court — Middle District of Pennsylvania

COPYRIGHT MATERIAL OMITTED

Herman J. Goldberg, Wilkes-Barre, Pa., for plaintiff.

Paul Bedford (of Bedford, Waller, Jones & Darling), Wilkes-Barre, Pa., for defendant.

MURPHY, District Judge.

In this diversity action plaintiff seeks compensatory and punitive damages for alleged breach of a written lease. Defendant moves to dismiss, asserting failure to state a claim upon which relief may be granted.

In the absence of anything to the contrary, we assume defendant drew the lease and that all operative facts occurred in Pennsylvania. We look to that law to determine the substantive rights and obligations of the parties1 and to decide questions of interpretation and construction of the lease.2 We do not write on a clean slate. We must act, in effect, as another court of that State. It is our duty to ascertain what the State law is; not what it ought to be.3

In disposing of such a motion, we consider as true all well plead allegations of the complaint, but not conclusions of law or unwarranted deductions of fact;4 viewing them in the light most favorable to the plaintiff, resolving all doubts in favor of sufficiency.5

The facts are as follows:

Defendant, a New York corporation, lessee of premises known as No. 41 to 49 South Main Street, Wilkes-Barre, consisting of a "building or buildings" covering the entire area, leased the premises situate at No. 49, consisting of a storeroom and basement6 for a term of five years to the plaintiff, of Pennsylvania, for retail store purposes. By renewal the term was extended five years to April 30, 1947; and on February 17, 1947, for an additional two years from May 1, 1947 to April 30, 1949, at an annual rental of $8,000 payable in monthly installments.

Through no fault of either party, the "building or buildings" were totally destroyed by fire March 1, 1947.7 Defendant showed plaintiff an outline of the store it proposed building for him at No. 49; he, however, rejected the plans insisting they did not conform to the store as it was prior to the fire. Thereafter defendant advised plaintiff it would not provide space for him in the new building.8 Plaintiff objected and, as on previous occasions, demanded that the storeroom and basement covered by his lease be restored for his occupancy for the balance of the term.

A new building, consisting of one store and basement covering the entire area, was completed March 1, 1948. No space was provided for plaintiff.

Plaintiff insists defendant agreed in the lease to restore the premises for his occupancy for the balance of the term; and that his failure to provide space in the new building constituted an eviction entitling him to damages.

If the landlord was so bound9 and, notwithstanding such obligation, held adversely so as to deprive the tenant of the beneficial enjoyment of the premises to which he was entitled, it would constitute an eviction. Adler v. Sklaroff, 154 Pa. Super. 444, 447, 448, 36 A.2d 231; Kelly v. Miller, 249 Pa. 314, 316, 317, 94 A. 1055; Kahn v. Bancamerica-Blair Corp., 327 Pa. 209, 212, 214, 193 A. 905; Chelten Ave. Bldg. Corp. v. Mayer, 316 Pa. 228, at page 231, 172 A. 675, 93 A.L.R. 1471.

Viewing the lease and renewals thereof as a whole, what are the respective rights and obligations of the parties in the light of applicable principles of Pennsylvania law? Girard Trust Co. v. United States, 3 Cir., 149 F.2d 872, 874.

The complaint refers to "building or buildings". It is not clear whether there were separate and distinct buildings or one building with separate stores and basements.

Assuming there were separate buildings plaintiff's lease did not include an entire building but only a portion thereof. The roof was excepted; his storeroom and basement were subject to the servitude of light, water and steam supply "to the other tenants"; nothing was said about land. Although, as a general rule, the demise of a building includes the land thereunder, Bussman v. Ganster, 72 Pa. 285; Bennet v. Bittle, 4 Rawle, Pa., 338, 342; 2 Thompson, Real Property, § 1668,10 the lease agreement may show the intention of the parties to be otherwise. See Rogers v. Snow, 118 Mass. 118 and Biordi v. Yanosevich, 93 Pa.Super. 578.

Here we find no land was included in the demise beyond that connected with the enjoyment of the particular portion covered by the lease. In such a tenancy there is no understanding that an estate in the land upon which the building is erected is granted. The thing demised was not a space in air but a portion of the building. City of Butler v. Western Union Tel. Co., 93 Pa.Super. 533, at page 538; Stanley Drug Co. v. Finance Realty Corp., 15 Pa. Dist. & Co. R. 461, 465; Shawmut National Bank v. City of Boston, 118 Mass. 125, 128; Stockwell v. Hunter, 11 Metc. 448, 52 Mass. 448, 45 Am.Dec. 220; Koplo & Koplo v. Ettenger, 84 Pa.Super. 358, at page 361; Paxson & Comfort Co. v. Potter, 30 Pa.Super. 615, 616; Moving Picture Co. v. Scottish U. & N. Ins. Co., 244 Pa. 358, at page 363, 90 A. 642, and see 32 Am.Jur., Landlord & Tenant, §§ 493, 494, 495, 828; Fuchs v. Goe, 62 Wyo. 134, 163 P.2d 783, at page 797, 166 A.L.R. 1329; Szulerecki v. Oppenheimer, 283 Ill. 525, 119 N.E. 643.

If land were included, ordinarily the tenant would have the right to the use thereof until the end of the term.11 Where only an interest in part of the building is demised, upon the total destruction of the building, ordinarily the whole estate demised would be extinguished; nothing would remain which the tenant could enjoy or claim and the relationship between the parties would be at an end. Koplo & Koplo v. Ettenger; Paxson & Comfort Co. v. Potter; Moving Picture Co. v. Scottish U. & N. Ins. Co., all supra.

Of course the parties may vary their respective rights and obligations, 51 C.J.S., Landlord & Tenant, § 368(a); by an express agreement to restore;12 and thereupon to continue the contract relationship with all its incidents to the end of the term.

Was there such an agreement to restore? To establish such a covenant, plaintiff relies upon Par. 11 of the lease which reads as follows:

In case the premises herein demised, or any part thereof, shall, during said term, be destroyed or damaged by fire, or other unavoidable casualty, so that the same shall thereby be rendered untenantable, then and in any such case, the rent reserved herein shall be proportionately abated until said premises shall have been put in proper condition by the Lessor, and thereupon this lease shall continue to the end of the term herein demised; provided, however, that the liability of the Lessor to restore or repair shall be limited to the extent only of the insurance monies received by the Lessor, or by the owner of said premises under the head lease. Provided, however, that if the premises are not fully restored to a tenantable condition within ninety (90) days after the fire, the Tenant shall have the right to terminate this lease, by written notice served upon the Lessor within one hundred (100) days after the fire.

The general rule in Pennsylvania is that "in the absence of an express agreement there is no implied obligation on the landlord to repair demised premises, nor does he undertake that they are fit for the purposes for which they are rented, that they are tenantable or shall continue so. If they burn down he is not bound to rebuild. The rule here * * * is caveat emptor. The lessee's eyes are his bargain. He is bound to examine the premises he rents and secure himself by covenants to repair and rebuild." Moore v. Weber, 71 Pa. 429, 10 Am.Rep. 708 (italics supplied); Davis v. Pierce, 52 Pa.Super. 615, 617; Johnstown Millwork & Lumber Co. v. Varner, 117 Pa.Super. 374, at page 378, 177 A. 325; Wood v. Carson, 257 Pa. 522, at page 528, 101 A. 811; Federal Metal Bed Co. v. Alpha Sign Co., 289 Pa. 175, 180, 137 A. 189; Pennsylvania Co., etc. v. Bodek, 77 Pa.Super. 473; Levine v. McClenathan, 246 Pa. 374, 92 A. 317, L.R.A. 1917 B, 235; Irish, Trustee v. Rosenbaum Co. of Pittsburgh, 348 Pa. 194, 197, 34 A.2d 486; accord 32 Am.Jur., Landlord & Tenant, § 657; 51 C.J.S., Landlord & Tenant, § 366, p. 1079.13

Do the provisions of Par. 11, supra, considered in their context meet the required tests: The primary rule in the construction of contracts is that the court must, if possible, ascertain and give effect to the mutual intention of the parties so far as that may be done without contravention of legal principles. Berridge v. Glassey, 112 Pa. 442, at page 455, 3 A. 583, 56 Am.Rep. 322; Bubb v. Parker & Edwards Oil Co., 252 Pa. 26, at page 29, 97 A. 114; Hempfield Tp. School Dist. v. Cavalier, 309 Pa. 460, 464, 164 A. 602.

The words employed will be given their ordinary and popularly accepted meaning in the absence of anything to show they were intended in a different sense. Hempfield Tp. School Dist. v. Cavalier, supra, 309 Pa. at page 464, 164 A. at page 602. The only inquiry which is generally pertinent is the meaning of the language used when judged by the standard adopted by the law. 3 Williston, Contracts, § 602. "It is not the province of the court, by construction, to change or make a new contract for the parties to a lease, or to supply material stipulations * * *." 51 C.J.S., Landlord & Tenant, § 232b, and see Girard Trust Co. v. Tremblay Motor Co., 291 Pa. 507, at page 514, 140 A. 506. "The freedom of interpretation permissible is * * * limited by the principle that unexpressed intention is of no legal effect." 3 Williston Op. Cit. supra, § 619; and see Delaware, L. & W. R. Co. v. Water Power & Supply Co., 227 Pa. 639, 76 A. 425; Paull v. Pivar, 161 Pa.Super. 233, at page 235, 238, 53 A.2d 826; Sanford-Day Iron Works v. Fancy Hill Coal Co., 321 Pa. 204, 206, 183 A. 770. "A court is not at liberty to read into a lease a meaning which the parties did not intend, or which they did not express in the language...

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