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THREE-O-ONE MARKET v. COMMONWEALTH PENNSYLVANIA (01/25/82)

decided: January 25, 1982.

THREE-O-ONE MARKET, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



Appeal from the Order of the Board of Claims in case of Three-O-One Market, Inc. v. Department of Public Welfare, No. FC-20-78.

COUNSEL

Barry J. Peffley, with him, Michael Jon Daley, for petitioner.

Mary H. Reilly, Assistant Counsel, with her, James S. Marshall, Assistant Attorney General, for respondent.

Judges Mencer, Rogers and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr. This decision was reached prior to the expiration of the term of office of Judge Palladino.

Author: Williams

[ 64 Pa. Commw. Page 238]

Three-O-One Market, Inc. (plaintiff) commenced an action before the Board of Claims (Board) seeking to recover $8827, alleged to be due as a result of the Department of Public Welfare's (DPW) occupation of office space in the plaintiff's building. When the Board dismissed the plaintiff's claim, the instant appeal followed.

About January 12, 1971, the plaintiff and DPW entered into a written lease agreement for the rental

[ 64 Pa. Commw. Page 239]

    of office space in the plaintiff's building at 301 Market Street, Harrisburg. The space in question was on the fifth floor and eighth floor, and was described in the lease as being a total of 4,236 square feet; 3851 square feet on the eighth floor and 385 square feet on the fifth floor. The lease also recited a rental of $13,767 a year, or $1171 a month; but did not recite a rate for each square foot of occupied space.

DPW occupied space pursuant to the 1971 lease from February 1, 1971 through April 30, 1978. However, in the latter part of 1977, while the parties were negotiating the terms of a new lease, it was discovered that the space DPW occupied on the fifth floor actually measured to be 764 square feet, instead of the 385 feet recited in the 1971 lease. Several months after that discrepancy had come to light, the plaintiff demanded payment for the additional 379 feet, at the rate of $3.25 per square foot, for each month from February 1971 through April 1978; or, a total of $8827.*fn1 The square-foot rate of $3.25 was derived by dividing the total annual rent by the footage recited in the lease.

In deciding against the plaintiff, the Board found that the space occupied by DPW, during the period in question, was the specific area actually designated by the plaintiff when the parties negotiated the 1971 lease. The Board also found that this space was the same space the Commonwealth government had occupied since 1964 under prior leases. Moreover, the Board found that no measurement of the actual footage involved had been made at the time of the 1971 lease, or at any time prior to that. Based on these findings, the Board concluded that the intent of the

[ 64 Pa. Commw. Page 240]

    parties under the 1971 leasing transaction was for DPW to occupy the space it did, without regard to certainty of the area's measured ...


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