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SWERN & COMPANY v. MORRISVILLE SHOPPING CENTER (03/15/68)

decided: March 15, 1968.

SWERN & COMPANY
v.
MORRISVILLE SHOPPING CENTER, INC., APPELLANT



Appeal from judgment of Court of Common Pleas No. 6 of Philadelphia County, March T., 1960, No. 2343, in case of Swern & Company v. Morrisville Shopping Center, Inc.

COUNSEL

Lester J. Schaffer, with him George F. Shinehouse, Jr., and Zink, Shinehouse & Holmes, for appellant.

James M. Carter, with him Goodis, Greenfield, Narin & Mann, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien.

Author: O'brien

[ 429 Pa. Page 205]

This is an appeal from the judgment of the Court of Common Pleas No. 6 of Philadelphia County on a verdict for the plaintiff in the amount of $9,317.91 plus interest resulting from a trial without a jury before Judge Ullman in an action of assumpsit.*fn1 The principal sum represents the cost of expenditures by appellee upon an air-conditioning system located on premises leased by appellant to appellee.

On July 25, 1957, appellee, Swern & Co., entered into a written twenty-five year lease with appellant, Morrisville Shopping Center, Inc., for a store building owned by Morrisville. When appellee leased the store, it contained a central air-conditioning system which had been installed by appellant at the time the building was constructed in 1951. This system was part of the original plans and specifications for the building. In May, 1958, the air-conditioning system became

[ 429 Pa. Page 206]

    partially inoperative and required extensive repairs. The principal difficulty was that one of the sixty-ton refrigerant compressors had suffered severe internal damage and was inoperative. Appellee-lessee notified appellant-lessor of the problem. Appellee took the position that the required repairs were of a structural nature for which the lessor was responsible under the lease. Appellant disagreed, and the question of the responsibility for any repairs became one of the issues of this case.

According to appellee's expert air-conditioning engineer, to whose testimony the trial judge attached great weight, the air-conditioning system had become partially inoperative because liquid refrigerant found its way into the compressor and caused serious internal damage. Such compressors are designed to operate only upon refrigerant in a gaseous state. This was not a malfunction of the compressor itself, but was caused by the installation circuitry of the piping connecting the major components of the system. The arrangement of the piping and components was faulty and created the conditions whereby liquid refrigerant would be returned to the compressors.

As a result of this defect, one compressor had to be replaced and a number of other changes allegedly had to be made to prevent a recurrence of the return of liquid refrigerant to the compressors. These other changes gave rise to the second main issue in this case -- whether, assuming the duty of the landlord to repair, all of the expenditures labeled repairs by the appellee were really repairs or were improvements. Certain improvements were admittedly within the figure of $11,809 plus interest originally sued for, but appellee then limited its requested relief to the $9,317.91 plus interest which it claimed was the actual cost of making the air-conditioning system operative. Judgment

[ 429 Pa. Page 207]

    was rendered for the latter sum by ...


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