(1928); Solomon v. Neisner Bros., Inc., supra, 93 F. Supp. at p. 314 and authorities contained therein.
This is to be distinguished from the situation where one leases a building in its entirety. Under these circumstances, it is the law of Pennsylvania - by which we are bound - that the lease includes the land beneath the building, and, in the absence of a contrary provision in the lease, the obligation to pay rent continues for the remainder of the term. See Demas v. Laskey, supra; Sankey v. Martin, supra; cf. Moving Picture Co. of America v. Scottish Union & National Ins. Co. of Edinburgh, 244 Pa. 358, 90 A. 642 (1914); Paxson & Comfort Co. v. Potter, 30 Pa.Super. 615 (1906).
Admittedly, the lease under consideration was for a portion of a building known as Store Number 5 of Bargain City, U.S.A., Inc. However, Fairless expressly covenanted to continue its rental payments, notwithstanding the destruction of the building. The Court is aware of no public or private policy which would preclude such an agreement, especially where, as here, the parties were on an equal footing, both being corporations of some substance. Moreover, there is the mitigating factor in paragraph 30 of the lease which gave Fairless the right to have its rental obligation credited with any proceeds of rent insurance that the lessor may have been entitled to receive.
This Court's examination of the authorities indicates that under these circumstances the Pennsylvania courts would find that any rights Fairless may have had under the general principles enunciated above were relinquished to the extent that they conflicted with the express terms of the lease. To this extent, the payments were not voluntary as the defendant contends. Inasmuch as the lessor would have been able to enforce his rights in an appropriate legal proceeding, the plaintiffs' expense under the lease did "necessarily continue".
However, upon examining the pleadings, affidavits, interrogatories and related materials, it is the judgment of this Court that the facts have not been sufficiently developed to permit the entry of summary judgment at this time. As it stands now, there are at least two very serious questions which prevent the Court from ruling in the plaintiffs' favor. The first concerns the intent of the parties as to whether the rental obligation was included as a recoverable continuing expense; the second involves an examination of Fairless' conduct with respect to its obligation to mitigate damages.
The Court quite agrees that where an insurance policy is ambiguous, it must ordinarily be interpreted against its author. Sykes v. Nationwide Mutual Ins. Co., 413 Pa. 640, 198 A.2d 844 (1964); Lovering v. Erie Indemnity Co., 412 Pa. 551, 195 A.2d 365 (1963); Beryllium Corp. v. American Mut. Liability Ins. Co., 223 F.2d 71, 49 A.L.R.2d 1256 (3rd Cir. 1955). And an examination of the policy indicates that there is an ambiguity, at least superficially. Under its terms the plaintiffs were entitled to be compensated for two separate items. First, for gross earnings lost during the nine month period, and second, by implication, for expenses which necessarily continued. The specific language of the policy is as follows:
"The policy covers only the actual loss sustained by the insured due to interruption of business as a result of physical damage caused directly by the perils insured against hereunder to the property utilized by the Insured * * *. In the event the Insured is wholly or partially prevented from producing goods or continuing business * * * this Company shall be liable * * * for the ACTUAL LOSS SUSTAINED of the following: