Appeal, No. 85, Jan. T., 1963, from judgment of Court of Common Pleas of Montgomery County, No. 61-1720, in case of Milford F. Dilks v. Flohr Chevrolet, Inc. Judgment reversed; reargument refused July 20, 1963.
Desmond J. McTighe, with him Philip D. Weiss, and Duffy, McTighe & McElhone, for appellant.
William F. Fox, with him Herbert A. Barton, and Fox, Differ, Digiacomo & Lowe, for appellee.
Before Musmanno, Jones, Cohen, Eagen and O'brien, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES, July 2, 1963:
This appeal requires the construction of several paragraphs of a written building lease to determine whether, under those paragraphs of the lease, the lessee is relieved of any liability to the lessor for damages to the building arising from a fire allegedly caused by the negligence of the lessee's employees.
On December 6, 1956, Milford Dilks (Dilks), the owner of premises located at 551 Lancaster Avenue, Haverford, Pa., leased the premises for a term of five years to Flohr Chevrolet, Inc. (Chevrolet), to be used by the latter as an automobile sales office and a shop for the service and repair of automobiles. Chevrolet entered into possession on December 10, 1956 and remained in possession until December 3, 1959. On the latter date, allegedly, certain employees of Chevrolet, engaged in using an inflammable liquid to clean an automobile engine, caused a fire which spread to some excelsior wrapped around automotive parts and eventually resulted in the complete destruction of Dilks' building.
Allegedly having suffered a $231,500 loss,*fn1 Dilks instituted an assumpsit action against Chevrolet in the Court of Common Pleas of Montgomery County.
In his complaint, Dilks averred that Chevrolet had breached two covenants contained in the lease - a covenant to use every reasonable precaution against fire*fn2 and a covenant not to permit benzine on the premises*fn3 - in the following respects: Chevrolet (a) failed to use every reasonable precaution against fire; (b) used benzine on the premises; (c) stored automotive parts wrapped in excelsior in areas in which inflammable liquids were used to clean engines; (d) failed to report without delay the outbreak of the fire. After the filing of an answer, Chevrolet moved for judgment on the pleadings. That motion was based principally upon paragraph 8, (b), of the lease which Chevrolet claimed excused and relieved it from any liability to Dilks for the fire, even though the fire was caused by the negligence of Chevrolet's employees.*fn4
Judgment on the pleadings was entered by the court below in favor of Chevrolet and against Dilks and the propriety of the entry ...