Loading...
HomeMy WebLinkAbout95-01734 '. TIMOTHY HARRISON AND MARTIN GRASS t/d/b/a TWENTY ERFORD ROAD ASSOCIATES, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. 1.5- /7Jt/ (lL~L0~ NO. IRVING SHOES, INC. Defendant CIVIL ACTION - LAW COMPLAINT NOTICE You have been sued in court. If you wish to defend aqainst the claims set forth in the followinq pages, you must take action within twenty (20) days after this complaint and notice are served, by enterinq a written appearance personally or by attorney and filing in writinq with the court your defense or Objections to the claims set forth aqainst you. You are warned that if you fail to do so the case may proceed without you and a jUdqment may be entered aqainst you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Cumberland County Courthouse Fourth Floor 1 Courthouse Square Carlisle, PA 17013 (717) 240-6200 ," TIMOTHY HARRISON, AND MARTIN GRASS t/d/b/a TWENTY ERFORD ROAD ASSOCIATES Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . . No.9}. /7 3 '( (1.;.:t 'I.P-.. vs. . . . . . . . . . . CIVIL ACTION - LAW IN EJECTMENT IRVING SHOES, INC. Defendant : COMPLAINT 1. Plaintiff is Timothy Harrison and Martin Grass t/d/b/a Twenty Erford Road Associates, a Pennsylvania partnership, whose place of business is 20 Erford Road, Lemoyne, Pennsylvania. 2. Defendant, Irving Shoes, Inc., is a Pennsylvania corporation with its place of business at the Harrisburg East Mall, Harrisburg, Dauphin County, Pennsylvania. 3. On October 11, 1991, plaintiff as lessor and owner, entered in to a written lease agreement with defendant for the premises described in Article 1 of the lease. A copy of said lease agreement is attached hereto as Exhibit "A". 4. The aforesaid lease was for a term of five years commencing December 1, 1991. 5. Defendant has failed to pay the rent due on March 1, 1995 and other charges due thereafter as summarized on Exhibit "B" attached hereto. 6. Written notice of the delinquency was sent to defendant on March 21, 1995, in accordance with paragraph 18 of the lease. A copy of the notice is attached hereto as Exhibit "C". . o LEASE $+8 /01 DATU OF LBASIl: IDIlNTITY OF LANDLORD: October II . 1991 TWIlNTY BRFORD ROAD ASSOCIATBS clo lIarrlson '" Orass 100 Ch.stnut Street. Suite 108 lIarrlsbura. p.nnsylvanla 17101 IDIlNTITY OF TIlNANT: IRVINO SIIOBS. INC. 1308 N. 3rd Slreet lIarrlsbura. P.nnsylvanla 17102 W I 'I' N .~ SSE 'I' II: ARTICLU I - Ora,,1 and Preml~ Landlord h.reby I..... to T.nant tho.. certain preml... (the .preml....) co"slstlna of approximately 3.3S0 square feet of ornce .pace located on Ihe lirst lioor of the bulldlna al20- 20A Ilrford Road. Easl p.nnsboro Township. Cumberland County. Penn.ylvania (the .Bulldlna.). as outlined on the lioor plan appended hereto as Bxhlblt A. ARTICLU 2 - Iwn This Lease shall commence on December I. 1991 (the .Commencement Date.). The term hereof shall contlnne for live (S) ycars. unless sooner terminated or extended as provided herein. Each.Lease Year. hereunder shall run from December I to and Ineludlna Ihe next November 30. ARTICLU 3 - R.newal provided T.nantl. not In default. T.nantshall have the riahtlo renew Ihl. Lea.. for one (I) live (S) year renewal period. To ..ercl.. lIS riahlto renew. Tenanl.hall provide Landlord with written notice at least one hundred Iwenty (120) days prior to eXI)lratlon oUhe lerm h.reof. ARTlCLU 4 . Interior (nmrov.m.nlS LAndlord shall build out and linlsh the Premise. prior 10 tI.e Commencement Date. at Landlord'. .spense, In accordance with the plans and specllicatlon. drawn up for Tenanl by Crablree. Rohrbauah '" Associates, Architects. appended hereto as Bxhlblt D. Such specllicatlons are to Include any additional J1ahtlna. heatlna-AC lislures. electrical fCCep I... or oth.r arnsatlo.s Ihat may be reasonably required by Tenanl for Its normal ornce 0 atlons. Followlna .xecutlon h.reof. no chanaes shall be made to Bxhlblt D wlthoutlhe con..n of both LAndlord and Tenant. such conlCnt not to be unreasonably wlthh.ld. Tenanl shall pay the cost of any ehanae order Initiated by Tcnanl. Landlord shall pay the cost of any chan order Initiated by Landlord. ' . EXHIBIT "An !\RTICLD S - 1kI1l (a) Inlllal I'lye Year Term. Tenanl shall pay renl durlnathelnlllal fiye (S) year letm hereof In lbe folluwlna amounts: 2 3 4 S Annuli Renl ~ 'l d-/ ~,,"1,~1$ 22,333.32 In'''^\' \ \'\3DI1 ~ ,tl~I," /..34,337.S0 ~"h:l -1I/3D/'13 /1,).';- 3H~,H 37,687.S0 Uh/t13 -1I/'6/?'! II.'IG m~,~139,362.S0 /.2."'''11- "/30/9 '> /;).. <;v ,~1I,:14I,87S.00 Tenanl shall pay renl durlnalhe fiye (S) year renewal period 1....eaU! Year / (b) Renewal Period. In Ihe followlna amounts: l..l!a~ Year Annual Rent .. $ 43,SSO.00 2 4S,292.00 3 47,101.00 4 48,977.00 S SO,920.00 (c) !':I}'mcnl Me.h.nl,m. Ten::nl .hall owe ne renl durin;: Ihe /irsl four (4) monlhs of Ihe lerm hereof. Commencing with lI.e rent due for April 1992, and for lI,e remainder oflhe lerm hereof, Tenanl .hall pay renlln adyance In equal monlhly amounts by good check payabl. 10 Landlord, wlthoul any offsel or demand Iherefor, on or before Ih. lirsl day of each month. ARTICLD 6 - Utllill.. and Olher Chllle. (a) ~. Landlord .hall pay all charg.. when duo for eleclrlclty, heat, air conditioning, walcr, sewer rental, trash collecllon, snow remoyal and landscaping for Ih. Building, Including Ihe Premises. (b) Real Eslale Tax.. and In.urance. Landlord shall pay lI.e real ..tale taxes on Ih. Building, Including Ihe Premises, and Iheland Ihereunder. Landlord shall maintain and pay for adequale /ire, /iood and exlended coyeragelnsurance upon Ihe Building, Including lbe Premises. Landlord's payments for said taxes and Insurance, annualized for calendar year 1991. shall be deemed Ihe 'Base Amounls' for purposes of Ihl~ Lease. To Ihe extenllhat, In subsequenl years, Landlord's annual real eslale tax andlor Insurance payments exceed said Base Amounts, Tenanl shall reimburse Landlord for a Il.llI lila share of sald excess, within Ihlrty (30) days aner Tenant's receipt of proof of Landlord's paymenl thereof. Tenanl's Il.llI lila share, for all purposes hereunder, shall be the tolal area of the Premises dlylded by Ihe lotalleasabl. area of lbe Building. (e) lanltorlal co.ts, Landlord shall proylde reasonable Janitorial servl= for Ih. Building, Including Ih. Premises. Tenanl shall reimburse Landlord for a Il.llIlila share of th. -2- . EXHIBIT "A" ARTICLB 12. AlImJlwIJ Tenant. at ii, e'l",nse, may make nonslructural or Insubslantlal structural alleratlons and Improvcments 10 thc l'lemlses, with Landlord's prior wrlllen consent. No alterallons or Improvements shall be made by Tenant wilhout Its nrst having secum! prior releases agalnst mechanics' liens alld n~"'luale liability and workman', compensallon Insurance for the project. ARTICLB IJ -UK.I!Llhe Premises Tenant shall IImllllaln In Ihe Premises offices for Its rctall and olher buslncsses In accordance wilh apl'lIeahle law. Tenant shall not use or permil IIle Premises 10 be used In vlolallon of any applle.hle slalute, ordinance, rule or regulation. ARTICLB 14 . .ualllil&C or Deslructlnn In the event uf ~.mage to the Premises, rent and olher charges payable by Tenant shall abate wholly or pruporlionalcly, as IIle case may be, dorlng any period of untenanlablllty. If said damage cannnt practicably be repaired wilhln ninety (90) days, Landlord or Tenant shall have the option to lermlllale this Lease upon Ihlny (30) days wrlllen notice, / ARTICLB 15 - COII~cmllatlon " If the Bull~llIg (nr such ponlon thereof as to materially impair Tenant's operations wlll"n the Premises) shall be aC'lolm! or condemned by Eminent Domain for any publle or qoasl.publlc use or purpose, this Lease shall be void and of no effect from the effective date of such taking. Tenant shall have no illtcr"'tln, nor be entitled to share In, any ponlon of the condemnation award relating 10 lhe lIulldlng. the Premises, the unexpired lerm of this Lease or tho value of the leasehold Inleresl, nlld Tenant hereby assigns all of the foregoing to Landlord. Tenant shall Join In petlllons or olher IlIlngs on behalf of Landlord, as necessary to effectuale said assignment. In the evcIII of condemnation, Tenant shall be entilled to recover for damages wilh respect to Tenalll's nxlures and equipment In the Premises, provided said recovery can be oblalned wilhout diminiShing Landlord's recovery. ARTlCLB 16 - Subordlnallon This lease shall be subject and subordlnale at all tim", to the lien of any mortgages now or hereaner placed by Landlord on lhe Building and land thereundcr. Tenant shall execule and deliver to Landlord upon demand an Instrument subordinating this Lease to the IIcn of any present or future mongage as may be requested by any mOrlgagce of lhe Building. At the request of any holder of any such mortgage, or the purchaser at any foreclosure sale or at any sale under a power of sale conlalned In such mortgage, Tenant shall allom 10 and recognize such mortgagee or purchaser as lhe Landlord under this Lease for lhe balance of the term of this Lease, Including any rellewal periods hereof, subJect 10 all of the terms of this Lease. If Tenant Is not In default of this Lease, Its tenancy shall not be dislurbed, but shall continue In full force and effect, and Landlord shall oblaln a subordination, nondlsturbance and allomment agreement In mutually sallsfaclory form from the holders of the above mOrlgages. The term "mortgage" Includes mortgages, deeds of trust or similar Inslruments, Including all modincations, consolidations, extensions, renewals or replacements thereof or substitutes therefor. ARTICLB 17 . Pasl Due !'avmrnls Should Tenant fall to pay rent or any other charge due hereunder within len (10) days ancr the due dale for such payment, any such unpaid amount shall beat Interest from said due dale al a rate of ten (10\110) percent per annum. -4- EXHIBIT "A" ARTICLB 22 . llilQPpel Slatomenl Tenanl agrcos 10 dolivor, wilhln ten (10) days anor requost by Landlord, an eSloppel certUleate 10 any pro)lOsod mortgagee or purehaser, or 10 Landlord, cortlfylns (If soch be Ihe caso) thallhls Lease Is In fuli force and effecl and thallhere are no offsets or defenses herelo, or stalins those claimed by Tenant. ARTICLB 23 . Foree Maleure If eilher party shall be hindered or delayed In or prevenled from Ihe performance of any acl reqolred hcrellnder by rcuon of strikes, lock-oUlS, labor Irouble, Inablllly to procure materials, failure or )lOwer, reslrictlve sovemmenllaws or resulatlons, riolS, Insurrection, war or other reason ur like nature notlhe fauil of the party delayed, Ihen performance of such acl ahall be elcused for Ihe period of the delay. This Arlicle shall 1I0t elcuse Tenant from Ihe timely payment of rcnl or any olher charges required hereunder, elcoptas same may be elcused durlns delay In delivery to Tellant or complellon of the Premises prior to tile Commencemenl Dale. ARTICLB 24 . Broker's Fee Landlord and Tenanl acknowledge Commercial Industrial Redly Company, IOIS Mumma Ruad, Wormleysburg, Pennsylvania 17043 ("CIR"), as Ihe sole real eslate broker Involved In erfeclualing this Lease. Landlord shall pay In full any commission amounts due 10 CIR In conneclion herewilh pursuanllu lhe applicable lisling agreemenl. I..1ndlord and Tenant mutually represent and warranl, one to anolhor, that neilher has de:1lt with nllY other broker or finder In I'C.lpect of the subject mallor or this Lease. Landlord and Tenanl agree to Indemnify and hold each oiher harmloss from any claim for a brokerage commission or finder's fee as a l'C.Iull of allesedly effecluatlng Ihls Lease asserted by any olher person or cntlly clalmlns 10 have been engaged by the Indemnifying party. ARTICLB 2S . Landlord's Tille Landlord covenan., an.J warrants 10 Tenant thai Landlord h"" good 8lld marketable Iitle to Ule Building and Ihe land Ihereunder, and that Landlord's title Is subject only 10 the usual title obJeclions, Ifany, not capable or Interfering with Tenant's beneficial use of the Premises, or any partlhercof, as permllled by this Lease. ARTlCLB 26 . Llw Landlord and Tenant shall keep Ihe Building, Including Ihe Premises, free and dlsoharged of mechanics' and malerlalmcn's liens and encumbrances affecting the leasehold Interest created hereunder Ihal arc lhe results uf Ihelr respeclive act(s) or omlsslon(s). ARTICLB 27 . .MlI1Iw All nolices hereunder shall be In writing and sent by U.S. mall, certified, return receipt requested, to Ihe addresses set forth on Ihe first page of this Lease or such other addresses as the parties hereancr may deslgnale In wriling .(and send by U.S. mall, certified, relurn receipt requested) to one another. ARTlCLB 28 . Successors and Assl.ns Subjeclto para. 9 hereof, this Lease shall be binding upon and Inure unlo the benefit of the parlies herelo and their respective legal reprcsentalives, heirs, successors and assigns. .6- . EXHIBIT "A" ARTICLB 29 . Submission Nut an Oplion The submission of this documenl for examination docs nol constitute an option or orfer to lease Ihe Premises. This documenl shall have no binding erfecl unless elcculed by Landlord and Tenant and unless a fully eleculed version of same shall have been delivered to both Landlord and Tenant. ARTlCLB 30 . Eloneratlon or Individuals Fur salisractlun of any available remedy In connection whh Ihls Lease, Tenanlshalllook solely 10 the eqully of Landlord In the Building and the rents and profilS derived by Landlord therefrom. ARTlCLB 31 . Filial Understand In, 'll1ls Lease represents the final understanding betwcon Landlord and Tenanl, and no oral statements or representations or prior wrlllen mailer not conlaln~ In this document shall have any force and effecl or be admllled for any purpose In any proceeding at law or In equhy. The obligations of each party hereto cannot be changed or modified elcept by a wriling elcculed by both Landlord and Tenanl. IN WITNESS WHEREOf' duly aulhorizcd represenlatlves of Landlord and Tenant have slsned and sealed this Lease as of the day and year firsl above written. Whness: Landlord: TWENTY ERFORD RqAD ASSOCIATES By: ~~~ C J-IMW~serd) .?e:ant: ~:~lroO ~ (Seal) {li4Uit1L<.4 ~v7 tltVt{ut,.4/;{t/,u-, / y 1RVSIIOES.991 .7. . EXHIBIT "A" .' DATE: NAME: ADDRESS: DATE 03/01/95 03/06/95 03/21/95 EXHIBIT B HARRISON & GRASS 20 EHFORD ROAD, SUITE 201 LEMOYNE,PENNSYLVAHlA 1704.1 (717)737.7100 . FAX: (717)730-0500 STATEMENT TIUOTIIY C. HAIlRISON M.utTlN L" GIWS MARCH 21.1995 IRVING SHOES, INC. 20 ERFORD ROAD SUlTE 101 LEMOYNE. PA 17043 DESCRIPTION CHARGES PAYMENTS BALANCE TOTAL RENT 3280.21 0.00 3280.21 3280.21 JANITORlAL 350.59 0.00 350.59 3630.80 LATE FEE (RENT) 18.52 0.00 18.52 (3280.21" 10% 112 MONTHS 1 31 DAYS X 21 DAYS) 3649.32 TOTAL BALANCE DUE UPON RECEIPT $3649.52 ~. PLEASE MAKE CHECKS PAYABLE TO: TWENTY ERFORD ROAD ASSOCIATES CIO HARRISON & GRASS 20 ERFORD ROAD SUITE 201 LEMOYNE. PA 17043 PROPERTY D~~rrI~~TMENTS .. .~f't'."""';"""'!"'''''- , _."!' a",-;;-":,,,~"'.'1;Y'f.q~~'j't""""''''''''''''\' ~ ,.; Jt DR:." c.,'."- ".._,0'1 ...;~,..l'l"" :.',""':"'f'I.i.,'.r.~~l"I't. .;', "I . ComPIet. hlllM 1 and/or 2 tor ecIdttIonII ..me... ~. ',. . - l' ~t' . . Complete It,"" 3. end 4.. b;':'." '." ' - r -.' ';. '.",,' . -.' . ,_ PrInt your neme Ind ..... on the ,.....,.. of thI. form 10 that w. eM ~'':"~':;~::n.':'~tront. . .,';;'~~;"''''Iho.'''clLHlpK' ': I dot.notpennh.",(,.J..;,l',';'\' ~~ -;~ .... .'."",' I, '.' ..... I .. W.... ..R......RocolptR_t.d.. ...IIw.........boIo.. -- \ g~d~~.:.rr~".W,"'!',"homllw~1'~,.' I~,ond.llwd'" II. .3,. Artlclo Addro..ed to: . ; .".. .".~.". .,'. I:.p)" "'I~'S.,,,te6IC-i\(1(Jt'( Pi}l1~/o"JiY ! ~f;,~...~~f{{~,.)~tl'l'.~t..;;:. 1,.,,,(10. .~tr. lI/!/:;}t".~;~) I rMY.II (r':'5/iJeS" t...".;~\; .]kl"'i", \ !Q.'~." '..' -~.i'\7..()" g "i,."+~:' :\,.;.;.\\;;:,~.J.'"i.J:".~"j . , :l . :... ~ ..... .,' tf ,....j..T.l .. ",-:,.,' ':t. .(.4.: _ ..- .. "''''"r' 'f~"-"':'''1.:.'' ~. ',. "... i! ,--- zJ'~ . ..... "-<5 fVJI-T: ~.~,. J:\ .': J'.~,' j) \ CI A.t,,~ l.l.~.t-'.' ';..'....'/.'.'/.0.. ':;~:?:i-'-\'!jJI't.S ~ "Prl1" ,Vel '171:1 ..'! \'.. '.,'. '\' . ...-',..." ..,' . '.,' '." .i'. ..,- '~. \. ~ ... ;'.; :..'. ...',.. '').4,.,-'..';,' . i: :. . .I I <, EXHIBIT "e" TIMOTHY HARRISON, AND MARTIN GRASS t/d/b/a TWENTY ERFORD ROAD ASSOCIATES, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 1995-01734 P CIVIL ACTION . LAW IN EJECTMENT vs. IRVING SHOES. INC.. Defendant PLAINTIFF'S ANSWER TO DEFENDANT'S NEW MATTER AND COUNTERCLAIM A. Plaintiff's Answer to New Matter, 10. Admitted. (except the address is #20 Erford Road, and not #204) . 11. Admitted, 12. Denied. On the contrary, Plaintiff was approached by Conroy who was explorinq the possibility of his expansion into other space in the buildinq. Plaintiff asked Defendant if it would be aqreeable to such an expanBion. to which Defendant replied affirmatively, One option Conroy considered and ultimately rejected was expansion into a portion of Defendant's space. Plaintiff made no representations to Defendant that conroy in fact intended to take part of Defendant's space, that such expansion would in fact occur. or that anythinq would require Defendant to locate elsewhere (much less without Defendant's concurrence). As to Defendant's alleqed beliefs, Plaintiff. after reasonable investiqation is without knowledqe or information sufficient to form a belief as to the truth of this averment. and if relevant. proof thereof is demanded at trial. 13. Denied. Plaintiff made no statement, representation or response to Defendant on which Defendant could possibly have relied in relocating its facility elsewhere. Plaintiff at all times let Defendant know that its discussions with Conroy were in the most tentative and exploratory stages. Anything done by Defendant to relocate elsewhere was done strictly on Defendant's own initiative. and at its own risk, since it still was a lessee of Plaintiff and Plaintiff had done nothing to rescind its lease with Defendant in whole or in part, or to offer to rescind sarne, 14. Denied. Plaintiff after reasonable investigation is without knowledge or information sufficient to form a belief as to the truth of this averment. and if relevant. proof thereof is demanded at trial. 15. Denied, As to Defendant's "beliefs or plans", Plaintiff, after reasonable investigation is without knowledge or information sufficient to form a belief as to the truth of this averment, and if relevant. proof thereof is demanded at trial. The averment of paragraph 13 hereinabove. as to Plaintiff's giving no basis to Defendant for any such alleged "belief" or reliance. is incorporated herein by reference. 16. Denied. While the possibility of Conroy expanding into part of Defendant's leased space was still being explored by Plaintiff at this date, Conroy in fact decided to expand into other space in the building, by an agreement with Plaintiff dated February 6, 1995. Neither before nor after January 1995 did Plaintiff represent to Defendant that anything would occur that would result in Plaintiff asking defendant to vacate. or which would require Defendant to relocate, in whole or in part, since Plaintiff couldn't unilaterally require same. Any belief of Defendant that Defendant would be invited to vacate. or have to relocate could only have been based upon Defendant's unwarranted speculation that Plaintiff's discussion with Conroy would in fact mature into a completed agreement between Plaintiff and conroy involving part of Defendant's space, that Plaintiff would then ask Defendant to legally relinquish part of its space to consummate such plan. No such agreement ever occurred nor did Plaintiff even represent to Defendant that such an agreement existed, or was even likely. Furthermore, the exploratory talk between Plaintiff and Conroy never involved more than a part of Defendant's space (and certainly not Defendant's entire space which Defendant intimates in its averment). 17. Admitted in part and denied in part. Admitted that Defendant relocated its administrative offices somewhere and continued to store furniture in the leased premises in February of 95, Admitted that the basic rent through February of 95 was paid. It's denied tha t the full rent through February 95 was paid, as the supplemental janitorial fees and late charges were not paid and still have not been paid. 18. Admitted in part and denied in part, Plaintiff never represented that there was an anticipated lease for any part of Defendant's space and made no representation as to any replacement tenant. In early February 1995, Plaintiff did advise Defendant that Conroy had agreed to expand his space in the Plaintiff's building, but not into any of Defendant's leased space. 19. Denied. Defendant has made no such offers, other than to offer two months rent to Plaintiff to fUlly rescind and cancel Defendant's lease, as to its remaining term, which offer was refused by Plaintiff. To the extent it's relevant, which relevancy Plaintiff deniee, Plaintiff has never refused to enter into negotiations with Defendant to resolve this matter. 20. Denied. On the contrary, Mednet is and has been a current tenant of Plaintiff and was in need of additional space. Beginning on March 24, 1995, Plaintiff already was negotiating with Mednet for the lease of additional space to Mednet (not Defendant's space) in Plaintiff's building. Those negotiations led to the transmittal of a written offer from Plaintiff to Mednet on March 29, 1995, to lease space other than Defendant's space to Mednet. See Exhibit "A" attached hereto. Therefore, Defendants' averment that "in early April 1995" and "on its own" it located a substitute tenant for its space is denied. To the extent Defendant attempted to influence Mednet to take its space, Defendant was unreasonably interfering with Plaintiff's on-goinq neqotiations with Mednet as to unleased other space in the buildinq, Defendant's lease gave it no right to sublease or assiqn its space for any reason to anyone, See Defendant's lease, appended as Exhibit "A" to the Complaint (Article 9). 21. Admitted in part and denied in part, Admitted that Plaintiff is attempting to relet Defendant's space. Plaintiff hopes to obtain a rental therefor at the hiqhest rental possible. To the extent this averment may imply that Plaintiff will not in any event rent this space for the amount Defendant was payinq, the same is denied. In fact, Plaintiff has the right to re-rent Defendant's space at any price it obtains, or not to re.rent it at all, as there is no duty on Plaintiff to mitigate Defendant's liability to Plaintiff on the lease between them, 22, Denied. No such representation was made. Paragraph 21 of this answer is incorporated herein by reference. 23. Admitted in part and denied in part. Admitted that Plaintiff preferred to lease to Mednet space other than Defendant's (which was not under lease) and told Defendant it was attempting to lease to Mednet completely different space in the building, Plaintiff had no duty to attempt to re-lease Defendant's space first. and indeed. no duty to even re-lease Defendant's space at all. Denied that Plaintiff told Defendant that "Plaintiff could earn more money off of Defendant's space by re-leasing Defendant's space at a higher rate" (which statement even if made would have been entirely proper on Plaintiff's part). 24. Admitted (as a substantially correct statement of Plaintiff's legal position). 25. Denied. No such representation was made. 26. Denied, Defendant did not identity nor find a substitute tenant. 27. Denied. Defendant's "efforts", whatever they may have been. if any. had had no effect on Plaintiff and Mednet. Plaintiff has spent substantial sums, attempting to relet Defendant's space. but not because it has a legal duty to do so. Thus far, these efforts haven't succeeded in prOducing a lease. Paragraphs 20 and 23 of the Answer are incorporated herein by reference. As stated hereinabove. Plaintiff has not and is not refusing to attempt to mitigate Defendant's liability (and damages). although under no legal duty so to do. HARRISON & GRASS 20 EJU'ORD ROAD,SUITE 201 LEMOYNE, 'ENNSYLV ANI" 17M3 (717) n7-71GO . FAX. (717) 730-0500 March 29, 1995 TlaIOTIlY C.IWtIlSON MAImH L, GR.W Mr, David Dalton President Medi-Claim, Inc. 20 Eriord Road Suite 110 Lemoyne, PA 17043 Dear Dave: . Following up on our discussion oi March 24, 1995, we would be prepared to lellSe the entire RDS space to you and any aifiliated en1erprises (3,337 square feet) for 1hree years (or longer, if you wish) a1 a base rent of $48,802---$13 per square foot with wha1 is now our standard common area factor (l2.5%)--with escalations of 4% per year. Other terms of the lease would be iden1ical to thai of our lease with Medical Service Agency, Inc., dated ]anuary'7, 1992. Of course, we would make sure the new space were freshened, repainted, and restored to "move in" condition---and 1his could be done, if necessary, within one week. Please lei me know if I can be of further assis1ance. Thank you for your tenancy. Very 1ruly Y07'~ \.I~ IN\A' ~lhY C. Harns:n - PROPERTY DEVELOPMENT -INVESTMENTS EXHIBIT "A" ..,., .... ~ ';;>.. ~(~- lU.-S"" t.,) ~t..~~~ ':';60;.( u,. :":-;.:.;;;'.. <,>h. ._:_, . ".r.- :'~ 1~.'; ~i~~ .. f~': .i: ~': '':1 ~C ~ '" '" - - ~ :0: => -, n, '. TIMOTHY HARRISON and MARTIN GRASS t/d/b/a TWENTY ERFORD ROAD ASSOCIATES, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW IRVING SHOES, INC., Defendant NO. 95-1734 CIVIL TERM IN RE: PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE HOFFER and OLER. JJ. ORDER OF COURT AND NOW, this 211L, day of September, 1995, after careful consideration of Plaintiffs' motion for judgment on the pleadings, and for the reasons stated in the accompanying Opinion, the motion for judgment on the pleadings is DENIED. BY THE COURT, J Norman M. Yoffe, Esq. 214 Senate Avenue, Suite 203 Camp Hill, PA 17011 Attorney for Plaintiffs Anna Marie Sossong, Esq. 204 State Street Harrisburg, PA 17101 Attorney for Defendant :rc , ), ~ :.v. ,; :" 'i J !!,., . . ~' , ...t,,'_.I.I> ';:)1;1,' S6. ~!J!iO r GZ d3S TIMOTHY HARRISON and OFMARTIN GRASS t/d/b/a TWENTY ERFORD ROAD ASSOCIATES, Plaintiffs v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW IRVING SHOES, INC., Defendant NO. 95-1734 CIVIL TERM IN RE: PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE HOFFER and OLER. JJ. OPINION and ORDER OF COURT Oler, J. This case arises from a commercial lease entered into between Plaintiffs and Defendant. Plaintiffs filed a complaint on April 5, 1995, alleging Defendant's failure to pay rent. Defendant filed an answer in response to Plaintiffs' complaint and included new matter and a counterclaim. At issue before the court is Plaintiffs' motion for judgment on the pleadings. For the reasons stated in this Opinion, the Plaintiffs' motion will be denied. STATEMENT OF FACTS The pertinent allegations of Plaintiffs' complaint are as follows: Plaintiffs are Timothy Harrison and Martin Grass t/d/b/a Twenty Erford Road Associates, a Pennsylvania partnership whose place of business is 20 Erford Road, Lemoyne (East Pennsboro Township), Cumberland County, Pennsylvania. 1 Defendant is Irving Shoes, Inc., a Pennsylvania corporation with its place of business at the Harrisburg East Mall, Harrisburg, Dauphin County, 1 Plaintiffs' complaint, paragraph 1. NO. 95-1734 CIVIL TERM pennsylvania.> On October 11, 1991, Plaintiffs as lessor entered into a written lease agreement with Defendant as lessee' for certain premises. The premises consisted of approximately 3,350 square feet of office space located on the first floor of a building at 20-20A Erford Road, East Pennsboro Township, Cumberland County, Pennsylvania.. The lease was for a term of five years commencing on December 1, 1991.5 Defendant failed to pay the rent due on March 1, 1995, and other charges due thereafter.' On March 21, 1995, Plaintiffs sent written notice of the delinquency to Defendant.' Plaintiffs seek the following damages: (1) March 1995 rent, janitorial fees and late fees totaling $3,649.521 and (2) rent for April 1995 to November 1996 totaling $59,043.78.8 Plaintiffs also seek to recover attorney's fees from Defendant.' The total amount of Plaintiffs' complaint, paragraph 2. Plaintiffs' complaint, paragraph 3. See Plaintiffs' complaint, Exhibit A. Plaintiffs' complaint, paragraph 4. S Plaintiffs' complaint, paragraph 5. The additional charges include janitorial fees and late rent charges. > 3 . 5 8 plaintiffs' complaint, paragraph 6. Plaintiffs' complaint, paragraph 7. Plaintiffs' complaint, paragraph 8. , , 2 NO. 95-1734 CIVIL TERM damages claimed by Plaintiffs is $63,193.30.10 In responding to the Plaintiffs' complaint, Defendant alleged the following in new matter: In October 1994, Plaintiffs asked Defendant if it was willing to give up a portion of the leased premises for use by a prospective tenant - Dr. John D. Conroy. 11 Defendant told Plaintiffs that it was willing to vacate that portion of its space and authorized Plaintiffs to represent to interested tenants that Defendant's space was available.12 Based upon representations made by Plaintiffs, Defendant believed that Plaintiffs were attempting to lease all or some of Defendant's premises to Dr. Conroy, which would require Defendant to locate to new office quarters. 13 Consequently, Defendant entered into a "management services agreement with Pace Management Services, Inc., of Olean, New York, to provide all administration services formally handled in the leased premises at Pace's Olean, New York location. ,,14 Defendant relocated its administrative offices to Olean, New 10 Id. 13 Defendant's answer to Plaintiffs' complaint with new matter and counterclaim, paragraph 11. 12 Id. 13 Defendant's answer with new matter and counterclaim, paragraph 12. 1< Defendant's answer with new matter and counterclaim, paragraph 13. 3 NO. 95-1734 CIVIL TERM York, in late January, 1995.15 Defendant continued to store certain office furniture in the leased premises during February, 1995, and paid all January and February rent and charges.u Around the time of relocation, Plaintiffs informed Defendant that the anticipated lease of the premises by Dr. Conroy had not materialized.17 Consequently, no replacement tenant existed for Defendant's now- vacated premises .'a In April, 1995, Defendant located a substitute tenant, hereinafter referred to as MedNet, willing to take all of Defendant's space for the balance of Defendant's lease term at the same rental rate as was being paid by Defendant." Plaintiffs were unwilling to lease Defendant's space to MedNet; instead, Plaintiffs preferred to lease MedNet space elsewhere in the building. 20 Plaintiffs, however, are attempting to relet Defendant's premises. 21 15 Defendant's answer with new matter and counterclaim, paragraph 16. U Defendant's answer with new matter and counterclaim, paragraph 17. 17 Defendant's answer with new matter and counterclaim, paragraph 18. u rd. 19 Defendant's answer with new matter and counterclaim, paragraph 20. 20 Defendant's answer with new matter and counterclaim, paragraph 23. 21 See Defendant's answer, paragraph 21, and Plaintiffs' reply to Defendant's new matter and counterclaim, paragraph 21. 4 NO. 95-1734 CIVIL TERM Defendant's counterclaim rests on the theory of unjust enrichment. Pertinent allegations of the counterclaim are as follows: The Defendant presented substitute tenants to plaintiffs for Defendant's leased premises.33 Plaintiffs, however, refused to consider leasing Defendant's premises to any of these tenants.33 Plaintiffs also refused to allow Defendant to sublet its space to another tenant.34 As a result of Plaintiffs' refusal to mitigate their damages, Defendant incurred certain damages which they seek to recover. 3. STATEMENT OF LAW Rule 1034 of the Pennsylvania Rules of civil Procedure provides the following: Motion for Judgment on the Rule 1034. Pleadings (a) After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleading9. (b) The court shall enter such judgment n Defendant's answer with new matter and counterclaim, paragraph 29. 33 Defendant's answer with new matter and counterclaim, paragraph 30. 34 Defendant's answer with new matter and counterclaim, paragraph 31. a Defendant's answer with new matter and counterclaim, paragraph 32. 5 NO. 95-1734 CIVIL TERM or order as shall be proper on the pleadings.2s The purpose of this rule is "to expedite justice, to obviate the need for pursuing trial cases where the pleadings demonstrate that no genuine issue of fact exists and that the moving party is entitled to a judgment as a matter of law, their case being so free from doubt such that a trial would prove to be a fruitless exercise." 6 Standard Pennsylvania Practice 2d, 531:1, at 73 (1994). In considering the motion for jUdgment on the pleadings, the trial court has the obligation to consider the pleadings and the inferences in the light most favorable to the party opposing the motion. 6 Standard Pennsylvania Practice 2d, 531:31, at 112 ( 1994). The motion for judgment on the pleadings must be denied if the pleadings indicate that there is a disputed issue of material fact. See Greer v. u.S. Steel Corporation, 475 Pa. 448, 380 A.2d 1221 (1977); Rice v. Rice, 468 Pa. 1, 359 A.2d 782 (1976). The present state of the law in Pennsylvania with regard to a landlord's duty to mitigate damages upon a tenant's abandonment of the premises has been the subject of considerable analysis.27 In Aeur v. Penn,28 the Supreme Court generally rejected the concept of 2' Pa. R.C.P. 1034. 27 See Boesch v. Ericsson, 9 Pa. D. & C.4th 20, 22 (Erie Co. 1990). 28 99 Pa. 370 (1882). 6 NO. 95-1734 CIVIL TERM a landlord's duty to mitigate, stating: The landlord may allow the property to stand idle, and hold the tenant for the entire renti or he may lease it and hold him for the difference, if any.2I However, in Ralph v. Deiley,3D the Court stated that, if a landlord undertakes to relet premises, he or she .. should be reasonably diligent in securing a desirable tenant for the best rent obtainable to minimize the first lessee's loss." 31 Commenting on the import of the above statements, the United states Bankruptcy Court for the Eastern District of Pennsylvania said in In Re New York City Shoes, Inc.,32 as follows: Taken together, these two passages of dicta suggest an anomalous result. The landlord has no duty to attempt to relet at all, but, if he does make such an attempt, then and only then does he submit himself to the possibility of having his damages mitigated because he failed to exercise reasonable diligence in re-renting the premises.33 The bankruptcy court also stated: We predict that the Pennsylvania Supreme Court, at this juncture, would treat a real estate lease like any other contract, and hold that a landlord has a duty to mitigate damages 2' 30 Id. at 375-76. 293 Pa. 90 (1928). Id. at 95. 31 32 86 B.R. 420 (Bankr. E.D. pa., 1988). 33 In Re New York City Shoes, Inc., 86 B.R. 420, 424 (Bankr. E.D. pa., 1988). 7 NO. 95-1734 CIVIL TERM for loss of rental income by making a reasonable effort to relet a premises after the tenant has vacated it in violation of a lease. We further predict that the Supreme Court would hold that, while the tenant has the initial burden of producing the evidence that no reasonable effort at mitigation was made, the landlord would have the ultimate burden of persuasion that he did make a reasonable effort to mitigate damages." The viability of Pennsylvania's general rule against a landlord's duty to mitigate damages seems also to have been called into question on the Pennsylvania trial court level. See, e.g., Essex House Apartments v. Keyser, 142 pitt. L.J. 520 (1994) (holding in residential lease case that landlord had duty to take reasonable measures to mitigate damages). Whether the Supreme Court will choose to disavow the traditional general rule described in Aeur, however, remains conjectural at best. Whatever the resolution may be as to the issue of a general duty of a landlord to mltigate damages, it appears to be settled that once undertaken a landlord's decision to relet premises must be executed with reasonable diligence to minimize the original lessee's damages. See Ralph v. Deiley, 293 Pa. 90, 141 A. 640 (1928). Thus, in Blanchard v. DiNardo," the Bucks County Court of Common Pleas stated that "absence of a duty to mitigate, however, does not give [lessor) license to discourage or prevent a 3C Id. at 421- 48 Pa. D. & C.3d 268 (Bucks Co. 1988). 8 ,. NO. 95-1734 CIVIL TERM minimization of losses. ..36 In Brumbach v. Kaufman Carpet CO.,37 the Berks County Court of C01l\lll0n Pleas stated in a similar context that the "Plaintiff [lessor] has a duty to make reasonable efforts to mitigate dllIllages...3I APPLICATION OF LAW TO FACTS As previously stated, a motion for judgment on the pleadings may be granted where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. In this case, however, Plaintiffs undertook to relet the premises in question30 and were obliged to exercise reasonable efforts in that undertaking. A factual determination as to the reasonableness of those efforts is a prerequisite to the calculation of any dllIllages due Plaintiffs under their lease with Defendant. For this reason, the following Order will be entered: 31 The court further found that lessor deterred potential tenants by insisting on a price 24% higher than the fair rental value. The lessee, however, had made a sincere effort to relet property. Taking these factors into consideration, the court held lessee responsible for only six months rent, a period the court deemed was a fair and reasonable llIIlount of time for lessor to find a new tenant. Id. 37 67 Berks L.J. 18 (Berks Co. 1974). 31 In considering dllIllages owed by lessee, the court determined that the lessor could not reasonably have acquired another tenant for at least three months. Consequently, the lessee was not entitled to any mitigation credit for this period. Id. 30 See Plaintiffs' reply to Defendant's new matter and counterclaim, paragraph 21. 9 PRAECIPE FOR LISTING CASE FOR TRIAL . . (Must be typewritten and submitted in duplicate) '1U 'mE PIUlllOtOl'ARY OF ClMlERLMIl COUI'll'Y Please list the following casel (Check one) for JURY trial at the next tem of civil coUC6 .-, - (?<l for trial without a jury. ....., CAPl'ION OF CASE (entire caption IlU5t be stated in full) 1\"'0(:-1...., l{",./,So,," "'...& !'1 '" , 't . .. G r" s.r t- ( ell ,~-l 0... '"t-'v .:1,,-" 7 r; r Fe-.. J V'l.".A A;.>oc 1".t-.{~ (check one) CA) .: 0 .... (x) ( ) ( ) '., --0 Civil Action - fiiI! ........ c.n c..n Appeal fran Arbitration (other) (Plaintiff) VB. l\.VII"G )/i-ot:5,I..c The trial list will be called on 1.2.1 ~ 1'1 - and Trials commence on 1f/6{"1-6 (Defendant) Pretrials will be held on J; " r: .1- 7. ) <J9 (Briefs are due 5 days before pretrials'.) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) vs. No. l) S.- Civil /"7 '3 Y 19 Indicate the attorney who will try case for the party who files this praecipel ,/V( (tiLl/HI/ YoFFF F <; i Indicate trial counsel for other parties if knownl A h ~l o. ;'\.1 0... v \ (' So .5 (, ~ 9 I ~ .- 0, , I Datel (tJ!13(7r Signedl~~ Il, 7# Print Name I .~,. fl. ,"1 ;1- tV '/t' r f '<' f L c ,..7. f r:, This case is ready for trial. Attorney foCI . Jo. . TIMOTHY HARRISON. AND MARTIN GRASS t/d/b/a TWENTY ERFORD ROAD ASSOCIATES. Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA NO. 1995.01734 P CIVIL ACTION . LAW IN EJECTMENT vs. IRVING SHOES, INC.. Defendant SUPPLEMENTAL AND AMENDED MOTION FOR JUDGMENT ON THE PLEADINGS AGAINST DEFENDANT Plaintiff. Timothy Harrison and Martin Grass t/b/d/a Twenty Erford Road Associates, by its undersiqned counsel. respectfully moves this Court pursuant to Pa, R.C.P. No, 1034 for partial jUdqrnent on the pleadinqsl as to issues of liability on the qrounds that: 1, The pleadinqs are closed and time exists within which to dispose of this motion before trial. 2. No qenuine issues of material fact exist as to liability. 3. Plaintiff is entitled to jUdqrnent as a matter of law (as to liability issue) for the reasons set forth in the brief to be submitted, P.C. 203 'This motion should be deemed to request jUdgment on the pleadinqs in favor of plaintiff and aqainst defendant both as to plaintiff's Complaint aqainst defendant, and defendant' Counterclaim aqainst plaintiff. '0 . . TIMOTHY HARRISON. AND MARTIN GRASS t/d/b/a TWENTY ERFORD ROAD ASSOCIATES, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO, 1995-01734 P Plaintiff vs, IRVING SHOES, INC" CIVIL ACTION - LAW IN EJECTMENT Defendant BRIEF FOR PLAINTIFF ON ITS MOTION FOR JUDGMENT ON THE PLEADINGS. I. Historv of the Case. This case presents a suit in ejectment on a lease by an owner of an office buildinq aqainst a tenant. On October 11, 1991, the parties entered into a written lease contract providinq for a five year term cornrnencinq December 1, 1991, The owner and Lessor is Twenty Erford Road Associates and the tenant and Lessee is Irvinq Shores, Inc. In late January, 1995, tenant vacated its leased premises, altho~qh it continued to store items of personal property in the leased premises throuqh February, 1995. The rent from and after March, 1995 has never been paid, and the rent for February, 1995'is partially unpaid,l Lessor filed its Complaint for Ejectment, based upon the failure to pay rent, and requested both a jUdqment for possession as well as a money jUdqment for the full rent for the balance of the lease Lerm plus lThe basic monthly rent for the fourth year of the lease term is $3,280.21, Additionally, there are charqes for janitorial services which have not been paid for February, 1995. See Articles 5 and 6 of lease. which is Exhibit "A" to the Complaint, 1 attorney fees.a Tenant filed an Answer, New Matter and Counterclaim. Lessor answered the New Matter and the Counterclaim. Lessor then filed its motion for judqment on the pleadinqs, II. Nature of a Motion for Judqrnent on the Pleadinqs. The purpose of this motion is to provide a pre-trial mechanism that will save the parties the expense of qoinq to trial on the substantive merits when the pleadinqs demonstrate that no qenuine issue of fact exists, and that the movinq party is entitled to judgment as a matter of law, In such a case, a trial would constitute a fruitless and futile exercise. Kevstone Automated EauiDment Co vs. Reliance Ins. Co" 535 A.2d 648 (1988), app denied 546 A.2d 5916 Std Pa. Practice 2d, 531:1 et. seq.,' and particularly 531:13, 31:15 and 31:16. In other words, the issue is whether on the facts averred and admitted, it is a certainty that the other party must lose. Where the plaintiff in the movinq party, the issue is whether the defendant has failed to state or aver a valid defense, More specifically, a motion for judgment on the p1eadinqs is appropriate where the issue involves the construction of a lease. Walker vs. Forrev, 151 A.2d 601 (1959). Where plaintiff is the movant, the only items that Court can consider are the Complaint, the Answer and the defendant's Answer to the 2Article 18 of the lease provides for an acceleration upon tenant'B dBfau1t as well as for leBBor's attorney fees, 'This motion is in ths nature of a common law demurrer, and may be filed after the pleadinqs have been completed. 6 Std Pa. practics 2d, '31.2 and 31.9. 2 New Matter. 6 Std Pat Practice 2d. 531:30. In conBidering the motion. the trial court must consider the pleadings and the reasonable and naturally flowing inferences therefrom in the light most favorable to the party opposing the motion. 6 Std Pat Practice 2d, 531:31 and 31:40. The court can enter a partial judgment. such as a judgment as to liability with the question of damages being reserved for a trial by judge or jury. Comm. vs. Ohio Casualty Ins. Co., 360 A,2d 7BB (1976); 6 Std Pat Practice zg,531:37 and 31:3B. III, Lessee has Pleaded Nothinq which Would Amount to a Defense of the Cause of Action Sued Unon. A. Lessee's pleaded Answer (other than New Matter). In paragraph 5 of the Answer, Lessee has admitted that it hasn't paid the rent for March. 1995. It has also admitted that it hasn't paid any rent or other charges thereafter. since this was part of the paragraph 5 averment and not denied by Lessee.4 4Lessee's second sentence of its paraoraph 5 Answer (i.e" its denial that anything is owing) is meaninglsss followino upon the heels of its admission that the February and subsequent charges haven't been paid. In other words, lessee makes a bold denial that anything is due and owino but fails to aver any facts to explain why nothing is "due and owing" when it admits non-payment. This is tantamount to a party admitting the basic facts of lability but then denyino that the other party is entitled to a judgment. The denial is a conclusion of law not based upon any pleaded facts which if true would constitute a defense. 3 B. Lessee's New Matter. (1) . Lessee's aqreement lease. pleadinq fails to alleqe any by which it was released from the The most lessee claims in its New Matter is that Lessor inquired of it whether it was willinq to qive up a portion of its leased premises, and the Lessee indicated its willinqness so to do. But there's no averment that the parties ever made an Aqreement to reduce Lessee's space (which Aqreement would likely address and delineate the quantum of space remitted and an adjustment on the rent to be paid by Lessee, See paraqraphs 11 and 12 of New Matter) . Other New Matter averments have only to do with Lessee's recountinq how it relied upon the foreqoinq feelers from Lessor to move out, Our point is simply that whatever Lessee did in the way of vacatinq the premises, was done on its own, in view of the fact that Lessee pleads no aqreement between the parties to release Lessee from any or all of the premises.' See paraqraph 17 of New Matter, Paraqraphs 18 and 19 of the New Matter offer nothinq resemblinq a defense. Lessee's Complaint is merely that Lessor refused to neqotiate a settlement. Even if true. this averment in a complaint is of no import and certainly has no relevance' in suqqestinq a defense. SFurthermore, it is somewhat inconqruous for Lessee to aver on the one hand that Lessee inquired of it as to relinquiBhinq Dart of its space, and then followinq this with its averment that it moved out comDletelv based upon or in reliance upon what Lessor's was sayinq. Even if there were an aqreement between the parties to relinquish one-half (or some other portion of the space) this wouldn't constitute a reason. excuse or justification for it to vacate completely, See paraqraph 5. 14. 15 and 17 of New Matter, 4 (2). There is no duty on the part of Lessor to re- lease the premises after an abandonment by the tenant, The remaining paragraphs of defendant's New Matter (paragraphs 19 through 27) seem to imply that there is a duty on the part of Lessor to mitigate the damages of Lessee when the latter has abandoned the leased premises. The further implication of these paragraphs is that plaintiff Lessor has failed in this duty and thus some sort of a defense would now be available to Lessee. The foregoing underlying premise is fallacious. There is nQ duty on the landlord to relet. "Reletting is not imposed on the landlord as a duty when a tenant abandons the premise," If the landlord refuses to accept the surrender offered. the privity established by the contract and thus the liability to pay rent is not terminated. The landlord cam permit the premises to remain idle and recover rent for the balance of the entire term; the landlord cannot be held liable for failure to rent where a tenant is offered." See B Summary of PennsYlvania Jurisorudence 2d. Prooerty. 526:297 and 29B.s In Raloh vs. Deiley. 293 Pa. 90. 95 (1926). our Supreme Court has pronounced the above sentiment: "On this theory he could permit the premises to remain idle and recover for the balance of the entire term: 16 R.C.L. 969. section 431. Reletting is not imposed on a landlord as a duty (Auer vs. Penn. supra); and he cannot be held liable for failure to rent where a tenant is offered: Liooer vs. Bouve, Crawford & Co,. supra." The opinion in Deiley goes on to somewhat cloud the above holding by stating that.....a landlord should be reasonably diligent in securing 'However. a relettinq can constitute an acceptance of the tenant's abandonment. in which case tho owner is not entitled to rent thereafter accruing, See 9 Summarvof PennsYlvania JurisDrudence 2d. supra at 261299. 5 a desirable tenant for the best rent obtainable to minimize the first lessee's loss," Raloh vs. Deiley, supra at 95. While at first blush this semi .precatory verbiaqe miqht seem to diminish the import of the no. mitiqation precept. a coqent analysis of this confusinq element is presented in Hoffman Estate, 47 D. 'C. 2d 32 (1969-phila ColI wherein the court rationalized it away as mere dictum. because there the landlord had in fact relet,? While our appellate courts have not since Raloh had occasion to address this subject matter. Pennsylvania lower courts. in addition to Hoffman Estate, have followed the Raloh holdinq (and not the dictum), See Blanchard vs. DiNardo. 4B D , C 3d 26B (19BB-Bucks Co) / E1Y vs. Friedrich, 45 D , C 2d 145 (196B-Del Co) / West Norritor Ind. Park vs. Snaooy Car Rental. Inc., 11B Montq. Co 73 (19B6)' The historical rationale for the foreqoinq result is that a lease is a conveyance, and durinq its term the landlord can abSOlutely iqnore the qranted estate. Consequently. there arises no mitiqation duty when tenant abandons his own estate. Thus, the conveyance theory differentiates the lease case from pure executory contract matters where a mitiqation duty may be present.' 7For earlier Pennsylvania appellate cases establishin\! the no-duty to relet principal. see Millina vs. Becker 96 Pa. 182 (1880). Auer vs. Penn. 99 Pa, 370 (1882) and Lieeer vs. Bouve. 6 Par Superior at 452 (1898), aThe SOlitary dissentin\! voice amon\! the lower courts emanates from Berks County. in Brumbach vs, Kaufman, 67 Berks 18 (1974), There. the court accepts the Raleh dictum and completely i\!nores the hOldin\!, not even mentionin\! it.. 'Sse 53 Temole L.R. 1 (1980). wherein the authors correctly count Pennsylvania amon\! the majority in not imposin\! the duty to relet, We do note the law review editors criticism of the "majority" rule, See also 15 Am Jur POF 2d 209, Landlord's Reasonable Efforts to Minimize Damaaes After Tenant's Breach of Lease. wherein it is also reco\!nized that a duty to do so is the minority view. 6 IV. LESSEE'S COUNTERCLAIM FAILS TO STATE A CAUSE OF ACTION Again, Lessee is erroneously relying on a duty of the owner to mitigate damages. Since no such duty exists, Lessee's Counterclaim must fail as a matter of law. Lessee's claim that plaintiff refused to consider its proposals to sublease assumes that there is a duty on the part of the owner to allow same, or a right on the part of the tenant to do so. There is no such duty or right when the lease specifically prohibits same. Davis vs, Hartel, 56 pa. Superior Court 557 (1914). Instantly, Article 9 of the lease does prohibit subleasing or assignment by the Lessee,lO V. CONCLUSION Lessee's New Matter fails to state or plead any defense cognizable at law, in opposition to the pleaded cause of action. Similarly, Lessee's Counterclaim fails to state a cause of action against owner as a matter of law, Since the pleadings disclose no factual issues as to liability which would require a trial, and the case can be properly adjudicated as to liability as a matter of law, the Court is requested to grant plaintiff' motion for judgment on the pleadings, as to liability, both lOThe lease is attached to the complaint as Exhibit "A", 7 as to plaintiff's cause of action pleaded aqainst defendant. as well as defendant's cause of action asserted aqainst plaintiff in defendant's Counterclaimll. Of course. the case can then proceed to trial on the solitary issue of damaqes, YOFFE BY.. t" M. YOFFE. ESQUIRE Attorney for plaintiff 214 Senate Avenue. Suite 203 Camp Hill. PA 17011 (717) 975-1838 Attorney ID No, 07135 Illn other wordo. the Complaint pleado a leaoe contract which calls for the payment of rent by Leooee, This is admitted by Leooee. who aloo had admitted (by failure to deny or opecifically per paragraph 5 of the Answer) that rent remains unpaid, 8 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten snd submitted In dupUc8te) TO THE PROTHONOTARY IOF CUMBERLAND COUNTY: Please list the wlthln rnaller for the next: o Pre-Trial Argument Court Iiia Argument Court ---------------------------------------------------------------------- CAPTION OF CASE (entire caption mUlt be stated In full) TIMJ111'l HlIRRIS:N r.M) Hl\RI'1N GR'o;s l/rllb/a 'M2fl"{ ERftRl Rll\D 'GST.IM'ES. <- c: .- -,...:;. c.: , 'r r '''1 r-.> en (Plaintiff) VI. w U> , ~~, -'0 := ~.; ", /,.~ ,;'. ~--; .:: ;.."':> ,'" ~. IRVII<<l9D1S.I.<. ~l~ --<~ c.JCl ..."" (Defendant) vs. No. 01734-P 19 95 Civil 1. State maUer to be argued (I. e., plalntlfrs motion for new trial. defendant'l dernurrer 10 complalnl, etc,): Plaintiff' B nolioo f..,r 1'DJlml 'D U1e Dleedirw]s. 2. Identify counsel who will argue case: (a) for plalntiff: Nc:n:m!In II. y.,Ue. Es:r-dre (b) for defendant: .'\ma Marie 1hI'!1X11. Ee1Uire 3. I will notify all psrtielln writing within Iwo dayslhat thll cue hu been listed for argurnenl._ ( y.,fte & Yote.. - P.C, "..4 tl(" ... By _//#,1) v.. (Allomey for PlainUff ) Dated: July 16, 199'; TIMOTHY HARRISON, AND MARTIN GRASS t/d/b/a TWENTY ERFORD ROAD ASSOCIATES, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO, 1995-01734 P CIVIL ACTION - LAW IN EJECTMENT vs. IRVING SHOES, INC., Defendant PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS AGAINST DEFENDANT Plaintiff, Timothy Harrison and Martin Grass t/d/b/a Twenty Erford Road Associates, by its undersigned counsel, respectfully moves this Court pursuant to Pa. R.C.P. No. 1034 for judgment on the pleadings on the grounds that: 1, The pleadings are closed and time exists within which to dispose of this motion before trial. 2. No genuine issues of material fact exist. 3. Plaintiff is entitled to judgment as a matter of law for the reasons set forth in the brief to be submitted. ...h By. / NO . YOFFE, ESQUIRE ( Attorney for Plaintiff 214 Senate Avenue, Suite 203 Camp Hill, PA 17011 (717) 975-1838 Attorney ID No. 07135 TIMOTHY HARRISON AND MARTIN GRASS IN THE COURT OF COMMON PLEAS t/d/b/a TWENTY ERFORD ROAD ASSOCIATES, : CUMBERLAND COUNTY, Plaintiff . . : PENNSYLVANIA V. . . NO. 95-1734 IRVING SHOES, INC. Defendant CIVIL ACTION - LAW TO: ~&:....;.. DEFENDANT I S ANSWER TO PLAINTIFFS' C R BY NOTIFIED- . WITH NEW MATTER AND COut'TERCL~THE ENCLOSED AJ(iJ. 0, PL~ ;,- WITHIn T'f!mTY (20) DAYS FROII SERVIC:; ~F.I1;';OF' OR A DEFAULT . . 1. Admitted. ~gg~EHEnl ~W BE Ell /-;SED AGAINST 2. Admitted. ~~ 3. Admitted. Attorney for 4. Neither Admitted or Denied. The contents of the document speak for itself. 5. Admitted in part and Denied in part. It is admitted that Defendant failed to pay the charges itemized on Exhibit "B". It is Denied that these charges are due and .,wing. Therefore, strict proof of the same is demanded at time of trial. 6. Admitted in part and Denied in part. It is admitted that the Notice was sent. Defendant denies the applicability of the word "delinquency". 7. Denied. The terms and conditions of the Lease stand on their own. Strict proof thereof is demanded at time of trial. By 1 way of further answer and as more fully stated in Defendant's New Matter and Countercla1m, the averment does not make any provision for mitigation by Plaintiff. 8. Denied. After reasonable investigation the Defendant is without knowledge or information to form a belief as to the truth of the averment. Therefore strict proof of same is demanded at time of trial. NEW MATTER 9. The provisions of paragraphs one (1) through eight (8) are incorporated herein by reference. 10. On or about and prior to September, 1994 Defendant operated its administrative offices from Plaintiff's leased premises located at 204 Erford Road, Suite 101, Lemoyne, Pennsylvania and intended to remain at that location. 11. On or about October, 1994, the Plaintiff asked Defendant if it was willing to give up a portion of the leased premises for use by a prospective tenant, Dr. John D. Conroy, who was interested in Defendant I s space. Plaintiff presented Defendant wi th architectural plans of Dr. Conroy's proposed space, including approximately one-half (1/2) of Defendant's leased premises. Defendant told Plaintiff it was willing to vacate that portion of its space and authorized Plaintiff to represent to interested tenants that Defendant's space was available. 12. Based upon the representations made by Pleintiff, Defendant believed and therefore avers that Plaintiff was attempting to lease all or some of Defendant's premises to Dr. John 2 .-' Conroy, which would require Defendant to locate new office quarters. 13. Relying in part on Plaintiff's representation regarding the interest of Dr. Conroy, Defendant entered into a management services agreement with Pace Management Services, Inc., hereinafter referred to as "Pace", of Olean, New York to provide all administration services formally handled in the leased premises at Pace's Olean, New York location. 14. On or about Mid-December, 1994, Defendant spoke directly to Dr. John Conroy about his desires in regard to leasing one half (1/2) of Defendant's leased premises and was told by Dr. Conroy that he was still interested in the space and was still pursuing the possibility. 15. Believing Plaintiff to be leasing Defendant's premises, Defendant began to actively make plans regarding relocation to New York in order to have a smooth transition. 16. As late as January, 1995, Plaintiff was still representing to Defendant that Plaintiff was still discussing the lease of Defendant's premises to Dr. Conroy or other prospective tenants, giving Defendant continued reason to believe that it would soon be asked to vacate its premises, in accordance with prior discussions between Plaintiff and Defendant. 17. Defendant, based upon Plaintiff's continued representations, relocated its administrative offices to Olean, New York as of late January, 1995. Defendant continued to store certain office furniture in the premises during February, 1995 and paid all 3 January and February rent and charges. 18. Sometime around the time of relocation, Plaintiff informed Defendant that the anticipated lease of Defendants premises by Dr. Conroy had not materialized and that there would be no replacement tenant for Defendant's now vacated premises. 19. Since the time that Defendant was informed that Dr. Conroy was no longer interested, Defendant has repeatedly discussed with Plaintiff amicable resolution to this matter by payment of several months rent or substitution of another tenant. Plaintiff, by and through its representative, Timothy Harrison, has repeatedly refused to negotiate an amicable resolution of this matter. 20. In addition, in early April 1995 Defendant had, on its own, located a substitute tenant, hereinafter "MedNet", willing to take all of Defendant's space for the balance of Defendant's lease term at the same rental rate as currently paid by Defendant. MedNet is a current tenant of Plaintiff in need of additional space. 21. Plaintiff has represented to Defendant that it is now attempting to relet Defendant's premises at a rental rate greater than that paid by Defendant. 22. Plaintiff further represented it is unwilling to relet Defendant's premises at the same rate paid by Defendant. 23. Plaintiff informed Defendant that Plaintiff was unwilling to lease Defendant's space to MedNet, preferring to lease MedNet space elsewhere in the building because Plaintiff could earn more money off of Defendant's space by re-1easing Defendant's space at 4 a higher rate. 24. Plaintiff further contended that it does not benefit Plaintiff to help Defendant in this matter because Plaintiff could lease MedNet empty space and continue to hold Defendant liable for Defendant's leased space. 25. Plaintiff represented to MedNet that Defendant's space was unavailable to MedNet because it was soon to be leased by another unnamed tenant. 26. Plaintiff has not recognized the efforts of Defendant in locating and identifying any substitute tenants. 27. As a result of Defendant's efforts with MedNet, Plaintiff shall receive the benefit of leasing additional space to a current tenant at a higher rental rate while continuing to refuse to mitigate the damages charged to Defendant under its lease in this matter. COUNTERCLAIM COUNT I IRVING SHOES V. TWENTY ERFORD ROAD ASSOCIATES UNJUST ENRICHMENT 28. Averment 1 through 27 are incorporated herein by reference. 29. In an attempt to mitigate damages to Plaintiff under the Lease Agreement, Defendant has presented substitute tenants to Plaintiff for all or a portion of Defendant's leased premises. 30. Plaintiff has refused to consider leasing defendant's premises to any of these tenants. 5 4 Company, 288 A.2d 768, 447 Pa 241, (1972); Coal Opem1ors Casualty Company v. Charles T, Easlerhy and Company, 269 A.2d 671, 440 Pa 218, (Pa 1970). Not only do the pleadings mise a disputed issue of fact as to whether the charges are "due and owing," but Lessor further admits the existence of this disputed issue of fact in its moving brief, In its moving brief, Lessor states in footnote 4, that the denial ("due and owing") if true, would constitute a defense. The denial, for purposes ofthe motion for Judgment on the Pleadings, is assumed to be true. Thus, Lessor admits that Lessee has a defense. . The fact that Lessor avers that the statement, "due and owing", is a conclusion oflaw, has no effect on whether the statement presents a disputed issue of fact. Neither party can be deemed to have admitted either conclusions oflaw or unjustified inferences. See Sinn v. Burd, 404 A.2d 672, 486 Pa 146, (1979); Kelly v. Nationwide Insumnce Company, 606 A.2d 470, 471, 414 PaSuper 146, 147, (1992); Jones v. Tmvelers Insumnce Company, 514 A,2d 576, 578, 356 PaSl!per213, 215, (PaSuper 1986). Therefore, whether the charges are "due and owing" is a disputed issue of fact, and the motion for Judgment on the Pleadings should be denied. Ill, The conversafions between Lessee, Lessor, and prospeclive tenants concerning the lease of Lessee~v space in the leased premises const/tl/ted an implied-in-law agreement fhereby raising a displ/fed issl/e offact as to whefher it was reasonable and/or jl/stlfiedfor Lessee to mave al/t of the Leased premises? The United States Supreme Court in Baltimore & O.R. Co. v. U.S., 261 U.S. 592, 43 S.Ct. 425,67 L,Ed. 816 (1923) staled that an implied agreement was one inferred by the law where the 5 conduc1 of the parties wi1h reference to Ihe subject-matter is such as to induce the belief that they intended to do that which Iheir acts indicate what they have done,] The Pennsylvania Supreme Court further stales that a contmct implied in fact has the same legal effect as any other contrnct. It differs from an express contrnct only in the manner of its fonnation. An express contmct is fonned by eilher written or verbal communication. The intent of Ihe parties to an implied in fact con1mct "is inferred from their acts in light of the surrounding circumstances." Inllmssia Constnrc1ion Company v. Walsh, 486 A.2d 478, 483 at footnote 7, (pa.Super 1984), citing Cameron v, Eynon, 3 A.2d 423, 424 (pa 1939). Lessor initially approached Lessee and expressed a desire to lease a portion of the Lessee's premises to various prospective tenants. The conduct of Lessor was such as to induce the belief that they intended to lease a portion of Lessee's leased premises to a prospective tenant. Both parties realized that such a lease could benefit both of their business interests. Therefore, Lessor pursued leasing a portion of the premises to a prospective tenant, and Lessee began to make plans for an anticipated move ou1 of the leased premises. Lessee did eventually move out of the leased premises in January 1995. The conduct of Lessor was such as 10 promote the belief that Lessor intended to lease a portion of Lessee's leased premises 10 a prospective tenant. Both Lessor and Lessee thought 1hat this prospective lease could be prolitable to them. Lessee trusted Lessor, and its actions indicated a willingness to work with Lessor. The conduct of b01h Lessor and Lessee indicates that there was an implied-in-Iaw agrcement between Lessor and Lessee for Lessee to move out of the leased premises so as to benefit both Lessor and Lessee. The conduct of the parties is enough to establish a disputed issue 6 of fact as to whc1her there was an agreement between Lessor and Lessee so as to induce Lessee to vacale 1he leased premises, IV, Lessor has a dilly to mitigate damages, A lease is in the nature of a contmc1 and is controlled by the principles of con1mc1 law. See Willison v. Consolidation Coal Company, 637 A.2d 979, 536 Pa49, (1994). As a geneml proposition of contmct law, a party who suffers a loss due to a breach of contmct has a duty to make a reasonable effort to mitigate his losses. See Bame v. Roroul1h of Muncy, 588 A.2d 462,527 Pa 25, (1991). Under Pennsylvania law, a Lessor of commercial property has a duty t~ mitigate damages upon Lessees departure from the premises, In re New York City Shoes. Inc., 86 B.R. 420 (Bkrtcy.E.D,Pa, 1988). The court held that UA Landlord has a duty to mitigate damages for loss of rental income by making a reasonable effort to relet the premises after the tenant has vacated it in violation of a lease," ld at 421. Lessor has not only refused 10 mitigate damages, but refuses 10 believe that it must mitigate damages, citing 70 year old caselaw in support of i1s argument. Because of Lessor's failure to comply with this basic proposition of contract law, there is a disputed issue of fact in Lessee's Counterclaim as to whether Lessor has a duty to mitigate damages. CONCLUSION Lessee has mised two (2) disputed issues of fact in its Answer with New Matter, namely: the issue ofwhe1her Lessor's averred charges itemized on Exhibit uB" of Lessor's complaint are : 'T \ h~~_~J:h~!;~..s..,,_~___~~L_~~t.:.=,-f.!..<ls .t-/ cllfL"=._1~ ~"il.E.:-l:!jL_~.::::..L___ /'t-55\"cl" t-eS-",L. J . VI. 1 y."~:'~9___5J.!'..0...:..1~ (: ________ {).r Iu the Court at Co_ Pleas at CWDbcriand CoWley, PeDDSYlvmia No. __~t~~:::_!_Z_:2.l'________ ClvIl. 19______ ---------------------.------------------------ ---------------------------------------------- --------.-..-----..--------------------------- ...---------------------------...--------------------------------------------------.-------------. _J~~ s.~~!.s:__..dJ.J":.,!!.!j_..!.=_~4___<2L_!_!'..!,;,.J:., .1.___0.. h .L__~.!Jj.. _.f-::..f...is.u..lu:,-1:..--f.J .., (9 ~..r..~'lJ_\_.J___-~_:-J_---l.lt..!-. _..f.2..:..::.!_!.:.~_:~l.:~l.~___f~~~:_~L__J_L"t:.~LI_!__~.;~:_!.. L r :!:h.'i____ef.~;J..4J.1.~t..t__..:..."J..J___Qu~~J:._',t:'_~~L.._!:.!~:f_J.~~.!_~_:_~~+-_~~_.1!u:._ -S~~_~~~_~_~-___.!~_~~..:!:.~__..c__f___~~.c_!;::.!.~~___~;.~_~.w._"t~.J____tb.!~:.!_!:!:.___ ----- __________M________________________________________________________________ ________________________.-.________________________________________.___N________________________ To ___ ----.. .....----- Prothonaa:y ----~- 19U__ ~/J .: /~~-a', /~~'/,. l-- _______.__ /-.J It tc 7 F - r k l:/f~ fl'( for Plaintiff. 1---('1 J. q, t ,_. , \ ! r . ..~ -.- --- .-.'.