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
HUTCHINSON, Justice,
concurring.
I concur in the result reached by the opinion announcing the judgment of the Court but disagree with its analysis.
In finding liability, Mr. Justice Larsen relies upon the lease’s exculpatory and termination clauses. However, I do not believe that either is applicable here under the meaning of the term “demised premises” in this lease. 1 The lease *200 seems to define the demised premises as “third floor in building No. 12, as outlined in the attached plan.” If this is correct, neither paragraph 11 nor 12 would be applicable.
Paragraph 12 of the lease permits the lessor to terminate the lease if the demised premises have been “destroyed or damaged by fire or other casualty.” The fire occurred in Building No. 1. If the demised premises were confined to Building 12, which was not damaged, lessor’s right to terminate would not arise. Applying the same definition of “demised premises,” I believe that paragraph 11 of the lease is likewise inapplicable here. That paragraph “relieves the lessor from all liability by reason of any injury or damage to any person or property in the demised premises[.]” There was no injury or damage to property in the demised premises, if defined as Building 12; only lessee’s business was damaged. Paragraph 12 further requires that the injury or damage be “caused by any fire, breakage or leakage in any part or portion of the demised premises, or any part or portion of the building of which the demised premises is a part” (emphasis supplied). The fire occurred in a different building than the demised premises; therefore, this clause cannot relieve the lessor of liability. Paragraph 34 which merely limits paragraph 11 is, accordingly, also of no moment. Nevertheless, I do not believe it is necessary to remand for consideration of the meaning of demised premises; I believe that Common Pleas’ liability finding is supportable on other grounds.
To me, the determinative issue is what the law of contracts supposes the parties agreed upon concerning the supply of electricity, heat and water in the event of their disruption. The lease does not speak on this issue. Should we suppose an agreement that these services would be provided unconditionally or instead an understanding that they would be provided from the existing plant in Building No. 1? If the agreement was for an unconditional supply of these services, the lessor is clearly in breach. On the other hand, if continuing service from the existing central *201 plant was assumed by the parties, we must consider whether the lessor’s non-performance would be excused by the doctrine of impossibility or frustration. Under that legal concept, the lessor’s failure to provide continuing service also results in a breach on the facts found by Common Pleas.
Under Pennsylvania law, impossibility excuses non-performance if, through no fault of either party, the subject matter of the agreement has been destroyed. West v. Peoples First National Bank & Trust, 378 Pa. 275 , 106 A.2d 427 (1954). In this case, Common Pleas determined that the destruction of the plant in Building No. 1 was caused by lessor’s fault; its negligence caused the fire. This finding is supported by the evidence, which shows that lessor failed to maintain the level of security in effect at the beginning of the lease and generally allowed the condition of the premises to deteriorate. Thus, lessor’s non-performance is not excused by impossibility and the lessee is entitled to damages for breach of contract. The lease is a contract. With some exceptions not material here, the usual contract measure of damages applies. Pugh v. Holmes, 253 Pa.Super. 76 , 384 A.2d 1234 (1978), affirmed 486 Pa. 272 , 405 A.2d 897 (1979). The damages recoverable for breach of contract are those which will, as nearly as possible, put the injured party in the same position it would have been in had the contract been fully performed. Maxwell v. Schaefer, 381 Pa. 13 , 112 A.2d 69 (1955). They are measured by the difference between the rental in the breached lease and the rental the lessee would have to pay at current market for equivalent alternate premises during the remaining term of the lease, plus reasonable relocation expenses and demonstrable profits lost because of business interruption resulting from the necessity of relocating.
Therefore, I differ with the analysis contained in the opinion announcing the judgment of the Court. I concur in the mandate reversing Superior Court’s order and remanding for further proceedings.
PAPADAKOS, J., joins in this concurring opinion.
. The Chancellor found that the third floor of Building No. 12 was the demised premises. Superior Court states without explanation that "there can be no question that the damaged power center ... consti *200 tuted a ‘part or portion of the building of which the demised premises [was] a part.’ ”