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RICHARD'S 5 & 10 v. BROOKS HARVEY REALTY INVESTORS (03/16/79)

decided: March 16, 1979.

RICHARD'S 5 & 10, INC., APPELLANT,
v.
BROOKS HARVEY REALTY INVESTORS



No. 715 October Term 1978, Appeal from Order of the Court of Common Pleas of Montgomery Cty. Civil Action, Law, dated Dec. 23, 1977, No. 76-16616.

COUNSEL

Norman Ashton Klinger, Norristown, for appellant.

Hugh M. Emory, Paoli, for appellee.

Cercone, Spaeth and Lipez, JJ.

Author: Spaeth

[ 264 Pa. Super. Page 385]

This is an appeal from an order sustaining preliminary objections in the nature of a demurrer to an amended complaint in assumpsit.

"'The question raised by [a] demurrer is whether upon the facts averred in the pleading being attacked the

[ 264 Pa. Super. Page 386]

    law says with certainty that the claim or defense is no good, and if there is any doubt as to whether the demurrer should be sustained it should be resolved against the objecting party.'" King v. United States Steel Corp., 432 Pa. 140, 144, 247 A.2d 563, 565 (1968) (citation omitted; original emphasis). Thus, on this appeal "every material and relevant fact well pleaded and every inference fairly deducible therefrom" must be construed in appellant's favor. Philadelphia, to use of DePaul & Son v. Magnolia Cemetery Co. of Philadelphia, 220 Pa. Super. 424, 426, 289 A.2d 191 (1972). So read, the amended complaint states the following case.

Appellant was the tenant of store space in a shopping center owned by appellee. Under the terms of the lease, appellee was obliged to keep the roof and exterior walls of the store in proper repair, provided appellant gave appellee written notice of the necessity of such repairs. Beginning in May 1973, appellant's roof began to leak, and appellant, on numerous occasions, gave proper notice of this to appellee. Nevertheless, appellee failed to repair the roof, and as a result, appellant suffered water damage to his inventory and other damages in excess of $49,464.41.

The lower court sustained the demurrer to appellant's amended complaint because of the presence of the following exculpatory clause in appellant's lease with appellee:

Landlord . . . shall not be liable for, and Tenant hereby releases all claims for, damages to person or property sustained by Tenant . . . resulting from any fire, accident, occurrence or condition in or upon the demised premises . . ., including but not limited to such claims for damage resulting from . . . (vi) water, snow, or ice being upon or coming through the roof or any other place upon or near such building or premises . . . .

Appellant does not contend that under the facts of this case this exculpatory clause is invalid. See Employers L.A.C. v. Greenville B. Men's A., 423 Pa. 288, 291-92, 224 A.2d 620, 622, 623 (1966): "Generally speaking, an ...


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