Lord & Mulligan, John T. Mulligan, Frank H. Morgan, Jr., Media, for appellant.
Richard Max Bockol, Allen J. Levin, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the decision of this case. Roberts, J., filed a concurring opinion. Nix, J., filed a concurring opinion. Pomeroy, J., concurs in the result.
This is an appeal from an order of the Superior Court, affirming the judgment of the Court of Common Pleas of Delaware County. Appellee (lessor) had sued appellant (lessee) for breach of two lease agreements. The trial court awarded appellee $7,200.00. Appellant's motions for judgment
n.o.v., arrest of judgment, and new trial were denied. The Superior Court affirmed the trial court per curiam. Greenfield v. Kolea, 232 Pa. Super. 701, 331 A.2d 824 (1975). Appellant's petition for allowance of appeal was granted by us and this appeal followed. We reverse.
The appellee's claim in this case is based on two separate, but related, lease agreements. The first lease, executed on March 20, 1971, covered ". . . all that certain one story garage building and known as 5735-37 Wayne Avenue, extending to Keyser Street in the rear [Philadelphia] . . to be used and occupied as storage of automobiles. . . ." This lease, executed for a term of two years beginning May 1, 1971, provided for an annual rental of $4,800.00. The second lease, covering adjoining property, was also executed on March 20, 1971. The second lease covered ". . . all those certain lots or pieces of ground known as 5721-33 Wayne Avenue . . . to be used and occupied for the sale and storage of automobiles . . ." The second lease, also executed for a two-year term beginning May 1, 1971, provided for an annual rental of $2,500.00. There was no building located on the real estate covered by the second lease. Neither lease contained a provision with respect to the tenant's obligations in the event of destruction of the building.
On May 1, 1972, after the appellant had occupied the premises for one year, fire completely destroyed the building covered by lease number one. The fire was labeled as accidental by the Fire Marshall's office. The day after the fire the remaining sections of the exterior walls were razed by the lessor, and barricades were placed around the perimeter of the premises covered by both leases. Appellant thereafter refused to pay rent under either of the leases.
The general rule has been stated that in the absence of a lease provision to the contrary, a tenant is not relieved from the obligation to pay rent despite the total destruction of the leased premises. Magaw v. Lambert, 3 Pa. 444 (1846); Hoy v. Holt, 91 Pa. 88 (1879).
The reason for the rule has been said to be that although a building may be an important element of consideration for the payment of rent, the interest in the soil remains to support the lease despite destruction of the building. It has also been said that since destruction of the building is usually by accident, it is only equitable to divide the loss; the lessor loses ...