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SHELDON FLAME v. OAK LANE SHOPPING CENTER (02/28/77)

decided: February 28, 1977.

SHELDON FLAME, APPELLANT AT 368,
v.
OAK LANE SHOPPING CENTER, INC., APPELLANT AT 473



COUNSEL

David Kanner, Philadelphia, for appellant at No. 368 and appellee at No. 473.

Butera & Detwiler, Clarke F. Hess, King of Prussia, for appellant at No. 473 and appellee at No. 368.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Pomeroy

[ 471 Pa. Page 114]

OPINION OF THE COURT

This case involves a dispute between a landlord and tenant as to the scope and application of a fire clause in their written lease. The tenant has appealed from the trial court's refusal to order damages in addition to a restoration of the damaged building, and the landlord has appealed from the requirement of the decree that he restore the leased premises to a tenantable condition.*fn1

The lease in question was made by Oak Lane Shopping Center, Inc., the landlord and appellant at No. 473 [herein "the landlord"] to Sheldon Flame, the tenant and appellant at No. 368 [herein "the tenant"]. The ten year term of the lease began on May 15, 1968 and will end on May 15, 1978.

On February 1, 1974, a fire virtually destroyed the shop on the leased premises in which the tenant conducted his business. On May 1, 1974, the landlord sent the tenant a registered letter, reciting the opinion of one Robert Rosen, an engineer, that the store could not be repaired within 120 days, and announcing the election of the landlord to terminate the lease pursuant to the terms of Section 15 thereof. That section provided as follows:

"FIFTEEN. -- If the demised premises are damaged by fire or other insured casualty, not occurring through any act or failure to act on the part of Tenant, its agents, servants or employees, and such damage can be repaired within 120 days of the date of such occurrence; this lease shall remain in full force and effect, and the Landlord shall promptly repair such damage at its expense, and in that event, there

[ 471 Pa. Page 115]

    shall be a proportionate abatement of rent for so much of the demised premises as may be untenantable during the period of repair or restoration. If in the opinion of a registered Architect or Engineer appointed by the Landlord the demised premises are damaged by fire or other casualty to such an extent that the damage cannot be repaired or restored within 120 days from the date of such occurrence, . . . this lease shall terminate at the option of Landlord upon written notice given thirty (30) days after such occurrence."

Promptly following his receipt of the notice of cancellation, the tenant brought this action in equity. The complaint prayed that the purported termination of the lease be rescinded, that the landlord be ordered to repair the premises, and that the tenant be awarded damages for his profits lost during the period when the landlord had unjustifiably failed in his duty to repair.

After a trial the chancellor ordered the landlord to repair the premises within 120 days from the date his decree should become final and, in addition, ordered that the lease be extended beyond its stated expiration date so as to take account of the delay in effectuating the repairs.*fn2 The court refused to ...


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