Appeal, No. 5, Jan. T., 1959, from judgment of Court of Common Pleas of Lackawanna County, Sept. T., 1956, No. 599, in case of The Prudential Insurance Company of America v. Goodman & Theise, Inc. Judgment reversed. Proceedings on petition for declaratory judgment. Adjudication entered finding for plaintiff, defendant's exceptions to adjudication dismissed and judgment entered, opinion by HOBAN, P.J. Defendant appealed.
Abraham L. Freedman, with him Michael M. Dean, and Wolf, Block, Schorr & Solis-Cohen, for appellant.
C. H. Welles, 3rd, with him Welles & Mackie, for appellee.
Before Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.
OPINION BY MR. JUSTICE BELL
An action was brought for a declaratory judgment to construe a lease. Plaintiff, as landlord, and defendant, as tenant, executed on February 15, 1950, a lease for 25 years on premises 820 South Washington Avenue, Scranton, Pa. On August 18, 1955, the leased premises were substantially damaged by a disastrous and unprecedented flood. The tenant remained in possession of the building, which was partly usable. The cost of reconstructing the leased premises amounted to $23,458.13. The tenant acknowledges its liability to pay the rent without abatement during the period when
the premises were unusable, and the only question before the Court is who must bear the cost of reconstruction.
The lease contains unusual language. The landlord bases its claim that the tenant is required to pay the cost of repairs or reconstructing or rebuilding the premises, as the case may be, on Article XXII which provides that upon termination of the lease tenant shall surrender the premises "in good order, condition and repair except for reasonable wear and tear"; and more particularly upon Article VI which provides pertinently as follows:
"The Tenant covenants throughout the term of this lease and any renewal term, at the Tenant's sole cost and expense, to take care of the buildings and improvements now or at any time erected on the demised premises and the equipment, fixtures, motors and machinery thereof (other than the Tenant's trade fixtures, manufacturing machinery and equipment heretofore or hereafter installed by the Tenant in the demised premises howsoever the same may be affixed thereto), and the sidewalks, curbs and vaults, if any, and to keep the same in good order and condition, and shall promptly at the Tenant's own cost and expense make all necessary repairs,*fn* interior and exterior, structural and nonstructural, ordinary as well as extraordinary, foreseen as well as unforeseen. When used in this Article, the term 'repairs' shall include replacements or renewals when necessary, and all such repairs made by the Tenant shall be equal in quality and class to the original work."
Tenant, on the other hand, contends that the parties intended the tenant to pay for repairing, restoring and rebuilding the ...