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decided: November 22, 1976.


No. 206 October Term, 1976 Appeal from the Final Decree of the Court of Common Pleas, Civil Action, Equity, Chester County, at No. 2502 of 1972.


M. Stuart Goldin, Philadelphia, for appellants.

Joseph R. Polito, Jr., West Chester, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring and dissenting opinion.

Author: Jacobs

[ 245 Pa. Super. Page 391]

This appeal arises from the adjudication of the chancellor that the implied covenant of quiet enjoyment in the appellants' lease was not breached by their lessor, Thomas Morelli, and the consequent failure of the chancellor to find damages in the form of relocation expenses and lost profits of appellants' business.

In January and early February 1971, appellant Eugene Pollock purchased a dry cleaning business situated in Great Valley Shopping Center. In the process of acquiring the business, Mr. Pollock entered into a seven and one half year lease, with appellee as lessor, for the premises in which the dry cleaning establishment was located. At that time the shopping center was composed of two rectangular blocks of stores which met at their inside corners to form, roughly, an L shape, leaving a large open area for parking in the inside angle of the L and a small square of parking in the corner where the two blocks joined. Appellants' store was in this corner immediately adjacent to the small parking area, recessed from the sidewalk fronting all the other shops in such a way as to permit access directly from both parking areas, some spaces of which were as close as 20 feet from the door. Appellants' show windows and overhead sign were easily visible to potential customers using the shopping center. Conveniently for shoppers, the dry cleaning store was next door to a large supermarket.

In November of 1971, without prior notice to appellant, construction began for what appellee termed a "mini mall" which was to enclose and surround appellants' establishment. Individual appellant, Eugene Pollock, immediately protested this development and continued to object directly to appellee. However, the construction

[ 245 Pa. Super. Page 392]

    continued and at its conclusion, appellants were no longer occupying an outside store with visible display windows next to a parking lot. Instead they now have a six and one half year lease for one of eleven shops in a mall which extends over what had formerly been the small parking area. A store is located directly in front of the cleaning establishment and access is now gained by entering a set of double doors into the mall and proceeding down a hallway. The display windows are only visible from inside the mall and can be completely viewed only when a customer has passed through the double doors, traveled the full length of the hallway and turned the corner. The sign once directly over the store is now outside the mall over the discount center which is the store directly in front of appellants'. The nearest parking spaces in the remaining parking area are now 100 feet away.

Appellants brought a complaint in equity seeking an injunction compelling appellee to relocate appellants' cleaning business to a situation comparable to that previously enjoyed by them. As an alternative form of relief, they sought an injunction ordering the appellee to demolish the store in front of appellants' shop or to lease that store to appellants. The final prayer was for an award of damages and such further relief as is required. Due to an agreement between the parties by the terms of which appellants vacated the premises and were released from their obligations under the lease, we will limit our consideration to the issues of liability and damages.

[ 245 Pa. Super. Page 393]

In every lease of real property there will be implied a covenant of quiet enjoyment. Raker v. G. C. Murphy Co., 358 Pa. 339, 58 A.2d 18 (1948); Minnich v. Kauffman, 265 Pa. 321, 108 A. 597 (1919). The covenant is between the landlord and his tenant and it is breached when a tenant's possession is impaired by acts of the lessor or those acting under him, or of the holder of a better title. No. 14 Coal Co. v. Pennsylvania Coal Page 393} Co., 416 Pa. 218, 206 A.2d 57 (1965); Einfeld v. Shermer, 56 Pa. Super. 4 (1914). "[T]here is an implied covenant for the quiet enjoyment of the demised premises, and it is settled in this State that any wrongful act of the landlord which results in an interference of the tenant's possession, in whole or in part, is an eviction for which the landlord is liable in damages to the tenant." Kelly v. Miller, 249 Pa. 314, 316-17, 94 A. 1055, 1056 (1915). Recovery for breach of this covenant has been allowed in Pennsylvania where a landlord has evicted the tenant by locking up the leased premises and denying the tenant access, Minnich v. Kauffman, supra; Stein v. McGinley, 123 Pa. Super. 122, 186 A. 231 (1936), and where the landlord so substantially altered some essential features of the premises as to render the property unsuitable for the purpose for which it was leased. Kelly v. Miller, supra; McCandless v. Findley, 86 Pa. Super. 288 (1926). In Kelly v. Miller, supra, the landlord sealed off doors by which the building leased by the tenant to be used as a theater was connected to the adjoining building, which was used for theater related purposes such as dressing rooms, storage and offices. ...

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