stating that the complex was owned by appellant H & M Associates, a partnership formed by appellants Leonard and Sidney Becker
How later courts described this case
- stating that the complex was owned by appellant H & M Associates, a partnership formed by appellants Leonard and Sidney Becker
- appellee’s failure expressly to raise issue in written exceptions to trial court’s adjudication does not constitute a waiver of that issue where the issue was raised and exhaustively discussed before the trial court
- exculpatory clause in commercial lease relieving lessor of liability for damage to personal property valid; clause did not violate public policy, commercial lease related entirely to parties’ own private affairs, and no disparity in bargaining power between parties
Written by the judges who cited it.
The opinion
NIX, Chief Justice,
concurring.
I agree with the mandate of the majority opinion that remands the case to the Superior Court for further consideration. I am constrained to write because the analysis offered by the majority obfuscates rather than clarifies the error that justifies the remand.
Neither paragraph 11(a) nor its qualifier, paragraph 34, are pertinent to the instant inquiry. 1 The claimed loss did *198 not result from the fire since the premises occupied by appellant was not physically affected by the fire. Here the asserted cause for the loss was appellees’ (landlords’) refusal to restore electrical service to the premises occupied by appellant and the refusal to make the requisite repairs to the heating and sprinkler system. The fire was at best an inoperative cause; it was appellees’ refusal to respond after the fire and the consequences of that refusal which form the basis for appellant’s claim in assumpsit. The following excerpts from the Chancellor’s opinion make clear his basis for the finding of liability.
It is plaintiff’s [appellant’s] position that the lease was in full force and effect and that as such defendants [appellees] were bound to restore all utilities in a reasonable time.
Sip. opinion pg. 7.
After considering a provision that terminated the lease if the damage was such that, “... the same cannot be repaired or restored within a reasonable time...”, the court continued as follows:
The court has found that the lease specifically spelled out the causes for the termination of the lease. Those conditions were not met. Therefore, the lease remains in force against both parties.
We must now consider what were the obligations of the defendants under the lease. The lease gives the Lessor the option to repair notwithstanding the damage by giving notice to the tenant of his intention to do so within thirty (30) days of its notice of the damage or destruction. No such notice was given. Clearly the restoration was not completed within thirty (30) days or by any period *199 that might be considered reasonable. Under our law and the terms of the lease, the building was not so destroyed as to terminate the lease. As the lease remained in force, the landlord was obligated to continue to provide the services as agreed in the lease. The failure to do so was not because it could not, but rather the defendants chose not to make repairs.
Attention must now turn to the failure of the defendants to provide the services required under the lease. The lease would have excused the defendants if the reason for the interruption of the services were due to the repairs. However the failure was not due to repairs or restoration. The defendants have shown no valid excuse for their failure, except the argument that the building was too costly to repair. They are therefore in breach of the lease agreement and the question presented is the measure of damages for that breach.
It is therefore clear that the theory of liability sustained by the trial court was that of assumpsit for appellant’s failure to perform in accordance with the terms of the lease. Clause 11(a) is therefore clearly not applicable. The Order of the Superior Court should be reversed and the matter remanded to that court to address the remaining issues. See 335 Pa.Super. 381 , 388 n. 4, 484 A.2d 185 , 189 n. 4 (1984).
McDERMOTT, J., joins in this concurring opinion.
. Paragraph 11(a) provides in pertinent part:
Lessee agrees to be responsible for and to relieve and hereby relieves the Lessor from all liability by reason of any injury or damage to any person or property in the demised premises, whether belonging to the Lessee or any other person, caused by any fire, ... *198 or any part or portion of the building of which the demised premises is a part, ... whether such ... injury or damage be caused by or result from the negligence of Lessor or his servants or agents or any person or persons whatsoever.
Paragraph 34 provides:
Notwithstanding the provisions of paragraph 11(a) of the lease agreement the negligence of the lessor, his servants or agents shall be excepted therefrom.