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October 3, 1950


The opinion of the court was delivered by: MURPHY

In this diversity action plaintiff seeks compensatory and punitive damages for alleged breach of a written lease. Defendant moves to dismiss, asserting failure to state a claim upon which relief may be granted.

In the absence of anything to the contrary, we assume defendant drew the lease and that all operative facts occurred in Pennsylvania. We look to that law to determine the substantive rights and obligations of the parties *fn1" and to decide questions of interpretation and construction of the lease. *fn2" We do not write on a clean slate. We must act, in effect, as another court of that State. It is our duty to ascertain what the State law is; not what it ought to be. *fn3"

 In disposing of such a motion, we consider as true all well plead allegations of the complaint, but not conclusions of law or unwarranted deductions of fact; *fn4" viewing them in the light most favorable to the plaintiff, resolving all doubts in favor of sufficiency. *fn5"

 The facts are as follows:

 Defendant, a New York corporation, lessee of premises known as No. 41 to 49 South Main Street, Wilkes-Barre, consisting of a 'building or buildings' covering the entire area, leased the premises situate at No. 49, consisting of a storeroom and basement *fn6" for a term of five years to the plaintiff, of Pennsylvania, for retail store purposes. By renewal the term was extended five years to April 30, 1947; and on February 17, 1947 to April 30, 1949, at an annual rental of $ 8,000 payable in monthly installments.

 Through no fault of either party, the bUilding or buildings' were totally destroyed by fire March 1, 1947. *fn7" Defendant showed plaintiff an outline of the store it proposed building for him at No. 49; he, however, rejected the plans insisting they did not conform to the store as it was prior to the fire. Thereafter defendant advised plaintiff it would not provide space for him in the new building. *fn8" Plaintiff objected and, as on previous occasions, demanded that the storeroom and basement covered by his lease he restored for his occupancy for the balance of the term.

 A new building, consisting of one store and basement covering the entire area, was completed March 1, 1948. No space was provided for plaintiff.

 Plaintiff insists defendant agreed in the lease to restore the premises for his occupancy for the balance of the term; and that his failure to provide space in the new building constituted an eviction entitling him to damages.

 If the landlord was so bound *fn9" and, notwithstanding such obligation, held adversely so as to deprive the tenant of the beneficial enjoyment of the premises to which he was entitled, it would constitute an eviction. Adler v. Sklaroff, 154 Pa.Super, 444, 447, 448, 36 A.2d 231; Kelly v. Miller, 249 Pa. 314, 316, 317, 94 A. 1055; Kahn v. Bancamerica-Blair Corp., 327 Pa. 209, 212, 214, 193 A. 905; Chelten Ave. Bldg. Corp. v. Mayer, 316 Pa. 228, at page 231, 172 A. 675, 93 A.L.R. 1471.

 Viewing the lease and renewals thereof as a whole, what are the respective rights and obligations of the parties in the light of applicable principles of Pennsylvania law? Girard Trust Co. v. United States, 3 Cir., 149 F.2d 872, 874.

 The complaint refers to 'building or buildings'. It is not clear whether there were separate and distinct buildings or one building with separate stores and basements.

 Assuming there were separate buildings plaintiff's lease did not include an entire building but only a portion thereof. The roof was excepted; his storeroom and basement were subject to the servitude of light, water and steam supply 'to the other tenants'; nothing was said about land. Although, as a general rule, the demise of a building includes the land thereunder, Bussman v. Ganster, 72 Pa. 285; Bennet v. Bittle, 4 Rawle, Pa., 338, 342; 2 Thompson, Real Property, § 1668, *fn10" the lease agreement may show the intention of the parties to be otherwise. See Rogers v. Snow, 118 Mass. 118 and Biordi v. Yanosevich, 93 Pa.Super. 578.

 Here we find no land was included in the demise beyond that connected with the enjoyment of the particular portion covered by the lease. In such a tenancy there is no understanding that an estate in the land upon which the building is erected is granted. The thing demised was not a space in air but a portion of the building. City of Butler v. Western Union Tel. Co., 93 Pa.Super. 533, at page 538; Stanley Drug Co. v. Finance Realty Corp., 15 Pa.Dist.& Co. R. 461, 465; Shawmut National Bank v. City of Boston, 118 Mass. 125, 128; Stockwell v. Hunter, 11 Metc. 448, 52 Mass. 448, 45 Am.Dec. 220; Koplo & Koplo v. Ettenger, 84 Pa.Super. 358, at page 361; Paxson & Comfort Co. v. Potter, 30 Pa.Super. 615, 616; Moving Picture Co. v. Scottish U. & N. Ins. Co., 244 Pa. 358, at page 363, 90 A. 642, and see 32 Am.Jur., Landlord & Tenant, 493, 494, 495, 828; Fuchs v. Goe, 62 Wyo. 134, 163 P.2d 783, at page 797, 166 A.L.R. 1329; Szulerecki v. Oppenheimer, 283 Ill. 525, 119 N.E. 643.

 If land were included, ordinarily the tenant would have the right to the use thereof until the end of the term. *fn11" Where only an interest in part of the building is demised, upon the total destruction of the building, ordinarily the whole estate demised would be extinguished; nothing would remain which the tenant could enjoy or claim and the relationship between the parties would be at an end. Koplo & Koplo v. Ettenger; Paxson & Comfort Co. v. Potter; Moving Picture Co. v. Scottish U. & N. Ins. Co., all supra.

 Of course the parties may vary their respective rights and obligations, 51 C.J.S., Landlord & Tenant, § 368(a); by an express agreement to restore; *fn12" and thereupon to continue the contract relationship with all its incidents to the end of the term.

 Was there such an agreement to restore? To establish such a covenant, plaintiff relies upon Par. 11 of the lease which reads as follows:

 In case the premises herein demised, or any part thereof, shall, during said term, be destroyed or damaged by fire, or other unavoidable casualty, so that the same shall thereby be rendered untenantable, then and in any such case, the rent reserved herein shall be proportionately abated until said premises shall have been put in proper condition by the Lessor, and thereupon this lease shall continue to the end of the term herein demised; provided, however, that the liability of the Lessor to restore or repair shall be limited to the extent only of the insurance monies received by the Lessor, or by the owner of said premises under the head lease. Provided, however, that if the premises are not fully restored to a tenantable condition within ninety (90) days after the fire, the Tenant shall have the right to terminate this lease, by written notice served upon the Lessor within one hundred (100) days after the fire.

 The general rule in Pennsylvania is that 'in the absence of an express agreement there is no implied obligation on the landlord to repair demised premises, nor does he undertake that they are fit for the purposes for which they are rented, that they are tenantable or shall continue so. If they burn down he is not bound to rebuild. The rule here * * * is caveat emptor. The lessee's eyes are his bargain. He is bound to examine the premises he rents and secure himself by covenants to repair and rebuild.' Moore v. Weber, 71 Pa. 429, 10 Am.Rep. 708; (italics supplied) Davis v. Pierce, 52 Pa.Super. 615, 617; Johnstown Millwork & Lumber Co. v. Varner, 117 Pa.Super. 374, at page 378, 177 A. 325; Wood v. Carson, 257 Pa. 522, at page 528, 101 A. 811; Federal Metal Bed Co. v. Alpha Sign Co., 289 Pa. 175, 180, 137 A. 189; Pennsylvania Co., etc. v. Bodek, 77 Pa.Super. 473; Levine v. McClenathan, 246 Pa. 374, 92 A. 317, L.R.A. 1917 B. 235; Irish, Trustee v. Rosenbaum Co. of Pittsburgh, 348 Pa. 194, 197, 34 A.2d 486; accord 32 Am.Jur., Landlord & Tenant, § 657; 51 C.J.S., Landlord & Tenant, § 366, p. 1079. *fn13"

 Do the Rovisions of Par. 11, supra, considered in their context meet the required tests: The primary rule in the construction of contracts is that the court must, if possible, ascertain and give effect to the mutual intention of the parties so far as that may be done without contravention of legal principles. Berridge v. Glassey, 112 Pa. 442, at page 455, 3 A. 583, Am.Rep. 322; Bubb v. Parker & Edwards Oil Co., 252 Pa. 26, at page 29, 97 A. 114; Hampfield Tp. School Dist. v. Cavalier, 309 Pa. 460, 464, 164 A. 602.

 The words employed will be given their ordinary and popularly accepted meaning in the absence of anything to show they were intended in a different sense. Hampfield Tp. School Dist. v. Cavalier, supra, 309 page 464, 164 page 602. The only inquiry which is generally pertinent is the meaning of the language used when judged by the standard adopted by the law. 3 Wiliiston, Contracts, § 602. 'It is not the province of the court, by construction, to change or make a new contract for the parties to a lease, or to supply material stipulation * * * .' 51 C.J.S., Landlord & Tenant, § 232b, and see Girard Trust Co. v. Tremblay Motor Co., 291 Pa. 507, at page 514, 140 A. 506. 'The freedom of interpretation permissible is * * * limited by the principle that unexpressed intention is of no legal effect.' 3 Williston Op.Cit. supra, § 619; and see Delaware, L. & W.R. Co. v. Water Power & Supply Co., 227 Pa. 639, 76 A. 425; Paull v. Pivar, 161 Pa.Super. 233, at page 235, 238, 53 A.2d 826; Sanford-Day Iron Works v. Fancy Hill Coal Co., 321 Pa. 204, 206183 A. 770. 'A court is not at liberty to read into a lease a meaning which the parties did not intend, or which they did not express in the language used * * * .' 32 Am.Jur., Landlord & Tenant, § 127, p. 130.

 The tendency of modern decisions is not to imply covenants which might and ought to have been expressed, if intended. Sheets v. Selden, 7 Wall. 41 74 U.S. 416, at page 423, 19 L. Ed. 166. Even where there is an express covenant it will not be enlarged by construction; Liebmann v. Aldhous, 105 Misc. 728 173 N.Y.S. 553; Richmond v. Lee, 123 App.Div. 279, 107 N.Y.S. 1072; Witty v. Matthews, 52 N.Y. 512; Freiot v. Jacobs, 209 App.Div. 334, 204 N.Y.S. 446. 51 C.J.S., Landlord & Tenant, 368d, p. 1088; or beyond its fair intent.

 Ordinarily, 'any words that amount to, or import, an agreement are sufficient to constitute a covenant; no precise or technical language is required by law.' 51 C.J.S., Landlord & Tenant, § 235, p. 864. 'No particular form of expression is necessary to create an obligation on the part of the landlord * * * all that is necessary is that the language of the stipulation in the lease or the agreement indicates this to be the intention of the parties.' 32 Am.Jur., Id., § 705; cf. 3 Williston,Rev.Ed., § 670, p. 1923, 1924, to the effect that promises may exist ' * * * where the agreement shows that the parties must have intended an obligation though they failed so to state in clear terms * * * .' The requirement, however, as to a covenant to restore in Pennsylvania is more exacting.

 The standard set in Pennsylvania is that 'in the absence of express agreement there is no implied obligation.' The connotation of express and implied is obvious; see, e.g., United States v. Chicago, St. P., M. & O. Ry. Co., D.C., 151 F.84, at page 92, and see Webster's New International Dictionary, 2d Ed., Unabridged: 'Express' means 'Directly and distinctly stated, not merely implied or left to inference * * * definite, clear, explicit, unmistakable; not dubious or ambiguous * * * .'

  'A provision in a lease that should the property be destroyed by fire so as to be untenantable the conditions of the lease, such as the collection of rent, shall cease until repairs are made, or until the premises are rebuilt, imposes no obligation on the lessor to restore the premises.' 51 C.J.S., Landlord & Tenant, § 368e, p. 1098.

 'Covenants to the effect that the rental of the leased premises shall be suspended in the event the buildings thereon are rendered uninhabitable by fire until the landlord shall restore them, being for the benefit of the lessee, to relieve him from the obligation of paying rent for buildings rendered uninhabitable by fire, do not impose any affirmative obligation to rebuild or restore buildings upon the leased premises. 32 Am.Jur., Landlord & Tenant, § 709, p. 586.

 ' * * * These covenants are not affirmative obligations to rebuild or restore buildings upon the leased premises and they do not have that effect.' (Italics supplied.) See Note 28 A.L.R. 1535, at page 1539 citing Tatum v. Thompson, 1890, 86 Cal. 203, 24 P. 1009; Clark v. Wade, 1921, 54 Cal.App. 162, 201 P. 334; Gavan v. Norcross, 1903, 117 Ga. 356, 43 S.E. 771; Snook & A. Furniture Co. v. Steiner, 1903, 117 Ga. 363, 43 S.E. 775; Woodside v. Talley, 1910, 135 Ga. 337, 69 S.E. 492; Rogers v. Snow, 1875, 118 Mass. 118; Rogers v. Grote Paint Co., 1906, 118 Mo. App. 300, 94 S.W. 549; Witty v. Matthews, 1873, 52 N.Y. 512; Monahan Exp. Co. v. International Confectioner, Sup., 1916, 161 N.Y.S. 303.

 Although actually decided on the basis of abandonment, the general rule was approved in Girard Trust Co. v. Tremblay Motors Co., 291 Pa. 507, at page 518, 140 A. 506, at page 510; "the general rule is that such a covenant (obliging the landlord to rebuild) is not to be implied' (see Moore v. Weber, 71 Pa. 429, 432, 10 Am.Rep. 708) * * * the provision in the lease, that 'should the * * * premises at anytime during the term be totally destroyed by fire it is understood and agreed that no rent shall be claimed or collected by * * * lessor from * * * lessee until premises shall have been completely rebuilt and placed in tenantable condition,' imposes no obligation to restore on the lessor. This provision * * * simply relieves the lessee from his obligation to pay rent until a new building is erected. * * * ' And again, Id., 291 pages 517, 518, 519, 140 page 510, 'The contract provides that * * * in the event of destruction or damage by fire, the tenant, at the behest of the landlord or the contractor in charge of restoration, is to move his goods * * * in the demised premises from place to place as required * * * the provision * * * is only to facilitate the rebuilding of the property if the lessor should wish to do so, and it does not bind the latter to make use of the opportunity thus given to rebuild; much less can it be construed as the express covenant to rebuild which the law requires in order to fix a landlord with that duty.' (Italics supplied.)

 The addition of the clause 'and thereupon this lease shall continue to the end of the term herein demised' does not supply the deficiency in language. That provision was merely in connection with the suspension of the rent payments and fixing a time for the possible renewal of such obligation on the part of the tenant in the event the premises were voluntarily repaired or restored by the landlord after a fire or other unavoidable casualty. *fn14" Paxson & Comfort Co. v. Potter, 30 Pa.Super, 615; Demas v. Laskey, 358 Pa. 633 at page 635, 58 A.2d 134. At best there was only an implication of a covenant to restore. See 2 Thompson, Real Property, § 1669.

 What of the 'proviso clause' relating to insurance? *fn15" Nowhere in the complaint is there any mention of fire insurance having been placed or collected. Assuming defendant collected fire insurance, that per se would not enlarge its obligation under the lease. Magaw v. Lambert, 3 Pa. 444; Fisher v. Milliken, 8 Pa. 111, at page 121, 49 Am.Dec. 497; Bussman v. Ganster, 72 Pa. 285, 289; Girard Trust Co. v. Tremblay Motor Co., supra, 291 Pa. 507, at page 517, 140 page 506; Pennsylvania Co. v. Bodek, 77 Pa.Super. 473. While a proviso is sometimes used to introduce a covenant, its proper use is to qualify what is already affirmed or to except something from inclusion therein, but not to enlarge; Black's Law Dictionary, 3d Ed., p. 1456. The word 'provided' generally introduces a clause in a contract which states a condition. Forscht v. Green, 53 Pa. 138; Appeal of Smith, 103 Pa. 559, 562, and see Paschall v. Passmore, 15 Pa. 295, 307, 308; and see Aaron v. Woodcock, 283 Pa. 33, at page 43, 128 A. 665, 38 A.L.R. 1251. Vol. 34, Words and Phrases, Perm. Ed., p. 675.

 In view of the foregoing, we hold that Par. 11 per se or in context did not constitute a covenant to restore. *fn16"

 Although there was no covenant to restore, there was an agreement that if defendant did in fact restore the lease would continue to the end of the term. If the landlord did in fact restore, the plaintiff would be entitled to occupy the storeroom and basement for the remainder of the term. Smith v. Kerr, 108 N.Y. 31, 15 N.E. 70, 2 Am.St.Rep. 362; Rogers v. Snow, supra; 51 C.J.S. Landlord & Tenant, § 366d, p. 1080; 32 Am.Jur., Landlord & Tenant, § 828.

 Absent a covenant to restore, and absent any interest in the plaintiff in the land itself, defendant had the right to construct a building such as it did in fact; to make such changes as it saw fit, making no provision for the plaintiff. By constructing a building of a different character, defendant terminated the possibility of application of the provision for resumption of the contractual relationship. See Snook v. Steiner, 117 Ga. 363, 43 S.E. 775; 28 A.L.R. 1540; Rogers v. Grote Paint Co., supra, 118 Mo.App. 300, 94 S.W. 549. *fn17"

 We find there was no interference by the landlord with any beneficial enjoyment of the premises to which tenant was entitled; *fn18" no eviction; and that the complaint does not state a cause of action upon which relief can be granted. It will therefore be dismissed by an order filed herewith.

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