HomeMy WebLinkAbout95-1734 CivilTIMOTHY HARRISON and : IN THE COURT OF COMMON PLEAS OF
MARTIN GRASS t/d/b/a : CUMBERLAND COUNTY, PENNSYLVANIA
TWENTY ERFORD ROAD :
ASSOCIATES, :
Plaintiffs :
:
v. : CIVIL ACTION - LAW
:
IRVING SHOES, INC., :
Defendant : NO. 95-1734 ~IVIL TERM
IN RE: PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADING~
BEFORE HOFFER and OLER, JJ.
ORDER OF COURT
AND NOW, this ~; 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,
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
TIMOTHY HARRISON and : IN THE COURT OF COMMON PLEAS
OFMARTIN GRASS t/d/b/a : CUMBERLAND COUNTY, PENNSYLVANIA
TWENTY ERFORD ROAD :
ASSOCIATES, :
Plaintiffs :
v. : CIVIL ACTION - LAW
:
IRVING SHOES, INC., :
Defendant : NO. 95-1734 CIVIL TERM
iN RE: PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLRADINGS
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 Erfor~ Road Associates, a Pennsylvania partnership whose
place of business is 20 Erford Road, Lemoyne (East Pennsboro
Township), Cumberland County, Pennsylvania.~ Defendant is Irving
Shoes, Inc., a Pennsylvania corporation with its place of business
at the Harrisburg East Mall, Harrisburg, Dauphin County,
Plaintiffs' complaint, paragraph 1.
NO. 95-1734 CIVIL TERM
Pennsylvania.2
On October 11, 1991, Plaintiffs as lessor entered into a
written lease agreement with Defendant as lessee3 for certain
premises. The premises consisted of approximately 3,~50 square
feet of office space located on the first floor of a building at
20-20A Erford Road, East Pennsboro Township, Cumberland County,
Pennsylvania.4 The lease was for a term of five years commencing
on December 1, 1991.~
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.7 Plaintiffs seek
the following damages: (1) March 1995 rent, janitorial fees and
late fees totaling $3,649.52; and (2) rent for April 1995 to
November 1996 totaling $59,043.78.8 Plaintiffs also seek to
recover attorney's fees from Defendant.9 The total amount of
Plaintiffs' complaint, paragraph 2.
Plaintiffs' complaint, paragraph 3.
See Plaintiffs' complaint, Exhibit A.
Plaintiffs' complaint, paragraph 4.
Plaintiffs' complaint, paragraph 5. The additional charges
include janitorial fees and late rent charges.
? Plaintiffs' complaint, paragraph 6.
Plaintiffs' complaint, paragraph 7.
Plaintiffs' complaint, paragraph 8.
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NO. 95-1734 CIVIL TERM
damages claimed by Plaintiffs is $63,193.30.l°
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.il
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.TM 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.~3 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.,,~4
Defendant relocated its administrative offices to Olean, New
io Id.
ii Defendant's answer to Plaintiffs' complaint with new matter
and counterclaim, paragraph 11.
i2 Id.
i3 Defendant's answer with new matter and counterclaim,
paragraph 12.
i4 Defendant's answer with new matter and counterclaim,
paragraph 13.
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NO. 95-1734 CIVIL TERM
York, in late January, 1995.~5 Defendant continued to store certain
office furniture in the leased premises during February, 1995, and
paid all January and February rent and charges.~6 Around the time
of relocation, Plaintiffs informed Defendant that the anticipated
lease of the premises by Dr. Conroy had not materialized.~?
Consequently, no replacement tenant existed for Defendant's now-
vacated premises.~8
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.~9 Plaintiffs were
unwilling to lease Defendant's space to MedNet; instead, Plaintiffs
preferred to lease MedNet space elsewhere in the building.2°
Plaintiffs, however, are attempting to relet Defendant's premises.2~
~5 Defendant's answer with new matter and counterclaim,
paragraph 16.
~6 Defendant's answer with new matter and counterclaim,
paragraph 17.
~7 Defendant's answer with new matter and counterclaim,
paragraph 18.
~ Id.
~9 Defendant's answer with new matter and counterclaim,
paragraph 20.
20 Defendant's answer with new matter and counterclaim,
paragraph 23.
2~ See Defendant's answer, paragraph 21, and Plaintiffs' reply
to Defendant's new matter and counterclaim, paragraph 21.
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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 lease~ premises.22 Plaintiffs, however, refused to
consider leasing Defendant's premises to any of these tenants.23
Plaintiffs also refused to allow Defendant to sublet its space to
another tenant.~4 As a result of Plaintiffs' refusal to mitigate
their damages, Defendant incurred certain damages which they seek
to recover.~5
STATEMENT OF LAW
Rule 1034 of the Pennsylvania Rules of Civil Procedure
provides the following:
Rule 1034. Mo%ion for Judgmen% on the
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
pleadings.
(b) The court shall enter such judgment
2~ Defendant's answer with new matter and counterclaim,
paragraph 29.
~3 Defendant's answer with new matter and counterclaim,
paragraph 30.
24 Defendant's answer with new matter and counterclaim,
paragraph 31.
~s Defendant's answer with new matter and counterclaim,
paragraph 32.
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NO. 95-1734 CIVIL TERM
or order as shall be proper on the pleadings.26
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, §31:1, 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, §31:31, 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,2" the Supreme Court generally rejected the concept of
Pa. R.C.P. 1034.
27 See Boesch v. Ericsson, 9 Pa. D. & C.4th 20, 22 (Erie Co.
1990).
99 Pa. 370 (1882).
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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 rent;
or he may lease it and hold him for the
difference, if any.29
However, in Ralph v. Deiley~3° 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."3~
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.,3~ 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
Id. at 375-76.
293 Pa. 90 (1928).
Id. at 95.
86 B.R. 420 (Bankr. E.D. Pa., 1988).
In Re New York City Shoes, Inc., 86 B.R. 420, 424 (Bankr.
E.D. Pa., 1988).
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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.34
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'%raditional 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 mitigate 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,~5 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
Id. at 421.
48 Pa. D. & C.3d 268 (Bucks Co. 1988).
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NO. 95-1734 CIVIL TERM
minimization of losses."36 In Brumbach v. Kaufman Carpet Co.,37 the
Berks County Court of Common Pleas stated in a similar context that
the "Plaintiff [lessor] has a duty to make reasonable efforts to
mitigate damages.''38
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 question39 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 damages due Plaintiffs under their lease with
Defendant. For this reason, the following Order will be entered:
~6 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 amount of time for lessor to find
a new tenant. Id.
37 67 Berks L.J. 18 (Berks Co. 1974).
38 In considering damages 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.
~9 See Plaintiffs' reply to Defendant's new matter and
counterclaim, paragraph 21.
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NO. 95-1734 CIVIL TERM
ORDER OF COURT
AND NOW, this 29th 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,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., 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
:re
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