Sun Ray Drug Co. v. Lawler

• Decision Date: 19 March 1951
• Citation: 79 A.2d 262,366 Pa. 571
• Parties: SUN RAY DRUG CO. v. LAWLER et al.
• Court: Pennsylvania Supreme Court

79 A.2d 262

366 Pa. 571

SUN RAY DRUG CO. v. LAWLER et al.

Supreme Court of Pennsylvania.

March 19, 1951

Action in assumpsit by Sun Ray Drug Co., a Pennsylvania Corporation against Mary A. Lawler, and others to recover cost and expense to which plaintiff company was allegedly put in repairing and restoring certain business property whereof plaintiff was lessee under lease from defendant fiduclaries after premises were partially destroyed by fire during term and thereby rendered untenantable. The Court of Common Pleas of Delaware County at No. 133 June Term, 1949, Bretherick J., sustained defendants' preliminary objections to the complaint and rendered judgment for defendants and plaintiff appealed. The Supreme Court, 47 January Term, 1951, Jones J., held that only in a clear case may a judgment properly be entered summarily and as it was by no means clear that instant complaint failed to state cause of action, entry of judgment for defendants was an abuse of discretion.

Judgment reversed with a procedendo.

Morris H. Fussell, Media, Leon Solis-Cohen, Jr., Morris Wolf and Wolf, Block, Schorr & Solis-Cohen, Philadelphia, for appellant.

Russell J. Brownback, Roger B. Reynolds, Norristown, George T. Butler and Butler, Beatty, Greer & Johnson, Media, for appellee.

Before DREW, C. J., and STERN, STEARNE, JONES, BELL, LADNER and CHIDSEY, JJ.

JONES Justice.

The action here involved is in assumpsit to recover the cost and expense to which the plaintiff company was allegedly put in repairing and restoring a certain business property whereof the plaintiff was lessee under a written lease from the defendant fiduciaries; the premises were partially destroyed by fire during the term and thereby rendered untenantable.

The lease form provided, inter alia, that ‘ (a) In the event that the demised premises is totally destroyed or so damaged by fire or other casualty not occurring through fault or negligence of the Lessee or those employed by or acting for him, that the same cannot be repaired or restored within a reasonable time, this lease shall absolutely cease and determine, and the rent shall abate for the balance of the term.’ (Paragraph) ‘ (b) If the damage caused as above be only partial and such that the premises can be restored to their then condition within a reasonable time, the Lessor may, at its option, restore the same with reasonable promptness, reserving the right to enter upon the demised premises for that purpose * * *.'

The plaintiff's complaint avers that, after partial destruction of the leased premises by fire, the defendant lessors, acting by one of their number, ‘ exercised their option and agreed to repair and to restore the premises to their then condition in accordance with the lease terms'; that work on the repair and restoration of the property was accordingly begun by the lessors; that they later refused to complete the work; and that the plaintiff thereupon completed the necessary repairs and restoration at the total cost and expense claimed for in this suit.

The defendants filed preliminary objections to the complaint under Rule 1017(b)(4), R.C.P., 12 P.S. Appendix, which the learned court below sustained on the ground that the plaintiff relied upon an alleged supplemental agreement or covenant by the lessors to make the specific repairs and restorations for which no consideration was pleaded and that therefore, the alleged supplemental agreement was a nudum pactum and the lessors were...