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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.

 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, ยง 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.

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