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January 4, 1956

HARDWARE MUTUAL INSURANCE COMPANY OF MINNESOTA and Hardware Dealers Mutual Fire Insurance Company
C. A. SNYDER, Inc., a Pennsylvania Corporation

The opinion of the court was delivered by: MCILVAINE

At this number, plaintiffs Hardware Mutual Insurance Company of Minnesota and Hardware Dealers Mutual Fire Insurance Company brought suit against C. A. Snyder, Inc., and charge that the defendant did negligently cause a fire which destroyed two buildings in the city of Butler, being located at 229 W. Jefferson Street and 231 W. Jefferson Street. The said buildings were owned by Harry O. Weeter and the defendant was lessee of the premises at 229 W. Jefferson Street. The plaintiff companies paid for the loss incurred by Mr. Weeter and now sue as subrogees.

The defendant has filed an answer to this complaint and also certain requests for admissions. The plaintiffs admit the lease executed between Weeter and C. A. Snyder, Inc., and the defendant's move for judgment on the pleadings. In order to dispose of this motion, we will assume as admitted all the allegations in the plaintiffs' complaint.

 The plaintiffs admit that their right can rise no higher than Weeter's and if Weeter could not recover neither could they. A relevant portion of the lease provides as follows:

 'Any damage to buildings, fixtures, water or gas pipes, during the term of this lease to be paid by lessee on demand; and on expiration of this lease, the property is to be surrendered in as good order as it now is, reasonable wear and tear, and accident by fire alone excepted, without further notice from said lessor.'

 If a tenant is liable to his landlord for destruction by fire of a building on the demisable premises caused by the tenant's negligence where the lease contained the provision above referred to, then judgment on the pleadings must be denied. However, if the tenant is not liable for a negligently caused fire under this lease, then judgment on the pleadings should be granted.

 It is fundamental that, 'Judgment on the pleadings may be granted only if, on the facts as so admitted, the moving party is clearly entitled to judgment.' 2 Moore's Federal Practice P12.15.

 Inasmuch as the lease is put in issue, this presents a matter outside the pleadings and Rule 12(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. provides when something outside the pleadings has been presented to the Court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. It is no part of the Court's function to decide issues of fact where there is a motion for summary judgment, but its function is solely to determine whether there is an issue of fact to be tried. Toebelman v. Missouri-Kansas Pipe Line Co., 3 Cir., 1942, 130 F.2d 1016.

 The allegations in the complaint for the purpose of this motion are admitted by the defendant. The lease between the defendant and his lessor is admitted. The defendant argues that it bars recovery. The plaintiffs say that it does not. Both parties say the lease is complete and no oral testimony can be admitted to change any of its terms. It then becomes a question of law whether this lease bars recovery. If it does, judgment on the pleadings should be granted, otherwise it should be denied. The lease on which defendant relies was made in Pennsylvania, the property is situated in Pennsylvania, and it is obvious that the law of Pennsylvania must govern this case. The plaintiffs do not contend in their pleadings, in their brief, nor did their counsel contend at the argument that the defendant acted willfully, wantonly or with design, but they contend that the defendant carelessly and negligently attempted to repair a certain automobile having a leaking gasoline tank so as to permit a fire to start and spread.

 The lease in this case has an expressed covenant as to the tenant's duty.

 'Generally, in the absence of an express covenant on the subject, the law implies a covenant on the part of the lessee so to treat the demised premises that they may revert to the lessor unimpaired, except by usual wear and tear, and uninjured by any willful or negligent act of the lessee. The implied covenant does not, however, extend to the loss of buildings by fire, flood, or tempest, or enemies, which it was not in the power of the lessee to prevent, and there is no implied covenant that the lessee shall restore buildings which have been destroyed by accident without fault on his part.' Earle v. Arbogast, 1897, 180 Pa. 409, 416, 36 A. 923.

 What then was the effect of this covenant in this lease? Was it to increase or decrease the tenant's liability for loss due to fire or was it merely to set forth what the law would otherwise imply without it? The lease was supplied by the lessor and in Pennsylvania it is:

 '* * * an established principle of construction, that in case of doubt or uncertainty as to the meaning of language used in a lease, its provisions will be construed most strongly against the lessor and in favor of the lessee: McClintock & Irvine Co. v. Aetna Explosives Co., 260 Pa. 191, (103 A. 622); Stetler v. N(orth) B(ranch) Transit Co., 258 Pa. 299, (101 A. 980).' Leon Gabai, Inc., v. Krakovitz, 1929, 98 Pa.Super. 150, 154.

 It is also established that in Pennsylvania:

 'As between private individuals in their personal affairs, one may be indemnified against the results of his own or his servants' negligence, if the intention so to do is clearly expressed in the contract.' Wright v. Sterling Land ...

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