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OAK LANE SHOPPING CENTER v. SHELDON FLAME T/A FLAME HARDWARE (03/02/79)

decided: March 2, 1979.

OAK LANE SHOPPING CENTER, INC., APPELLANT IN NO. 806,
v.
SHELDON FLAME T/A FLAME HARDWARE, INC., APPELLEE, V. PHILADELPHIA SUBURBAN WATER COMPANY, APPELLANT IN NO. 825, AND CHELTENHAM TOWNSHIP, APPELLANT IN NO. 866



Nos. 806,825,866 October Term, 1978, Appeals from the Order of the Court of Common Pleas of Montgomery County, Civil Trial Division-Law, Dated January 4, 1977, at No. 75-15234.

COUNSEL

Joseph A. Gerber, Philadelphia, for appellant Oak Lane Shopping Center at No. 806 and appellee at Nos. 825 and 866.

Arthur R. Tilson, Ambler, for appellant Philadelphia Suburban Water Co. at No. 825 and appellee at Nos. 806 and 866.

Thomas E. Duffy, Hatboro, for appellant Cheltenham Township at No. 866 and appellee at Nos. 806 and 825.

Benjamin E. Zuckerman, Norristown, for appellee Sheldon Flame, t/a Flame Hardware, Inc.

Van der Voort, Montgomery and Watkins, JJ.

Author: Watkins

[ 264 Pa. Super. Page 11]

The appeals are by the appellee-defendants, Oak Lane Shopping Center, Inc., Philadelphia Suburban Water Company and Cheltenham Township from an order of the Court of Common Pleas of Montgomery County, Civil-Trial

[ 264 Pa. Super. Page 12]

Division, granting summary judgment to Sheldon Flame, trading as Flame Hardware Company, on January 4, 1978. Subsequent to the appeals, on March 30, 1978, the court below filed an opinion reversing itself holding as follows: "we conclude that Summary Judgment entered in favor of Flame was improper and should be reversed". A motion to remand was denied by this Court. As the reversal by the court below was subsequent to the appeal before us, the record was in the Superior Court and the decision was of no effect. We, therefore, hold that the court below had no jurisdiction of the case at the time of its attempted reversal of its order of January 4, 1978.

On February 1, 1974, a fire in the Oak Lane Shopping Center, owned by appellant Oak Lane Shopping Center, Inc., hereinafter referred to as Oak Lane, substantially damaged the premises of the Flame Hardware Store, owned by Sheldon Flame, a tenant of Oak Lane's. A provision in the lease agreement between Oak Lane and Flame provided that in the event of a fire that the landlord could treat the lease as cancelled if a qualified architect or engineer certified that it could not be repaired within 120 days. Oak Lane's expert so certified and Oak Lane chose to cancel Flame's lease. Flame, however, sought his own expert advice and produced experts who disagreed with Oak Lane's.

On April 11, 1974 Flame sued Oak Lane in equity alleging a breach of Oak Lane's duty to restore the premises and challenging Oak Lane's claim that the premises could not be repaired within 120 days. After trial, the court ordered Oak Lane to restore the leased premises to a tenantable condition but denied Flame's claim for damages which he claimed he suffered due to Oak Lane's refusal to repair the premises. On February 28, 1977 the Supreme Court affirmed the trial court's decision insofar as it had ordered the landlord to restore the damaged premises but it reversed the trial court's holding on the damages issue and remanded the case to the trial ...


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