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filed: June 24, 1983.


NO. 13 PITTSBURGH, 1980, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, at No. G.D. 77-17850, NOS. 1222, 1223, 1224 and 1225 PITTSBURGH, 1980, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, at Nos. G.D. 76-9197, G.D. 77-02645, G.D. 77-17850 and G.D. 77-17851.


David Abrams, Monroeville, for Jonnet Development, appellant (at No. 13) and appellee (at Nos. 1222, 1223, 1224 and 1225).

M.A. Nernberg, Jr., Pittsburgh, for Dietrich Industries, appellant (at Nos. 1222, 1223, 1224 and 1225) and appellee (at No. 13).

Beck, Johnson and Popovich, JJ.

Author: Beck

[ 316 Pa. Super. Page 536]

This case comprises three appeals founded upon a written lease agreement between Jonnet Development Corporation ("Jonnet") as the lessor, and Dietrich Industries, Inc., ("Dietrich") as the lessee.

On August 20, 1974, Jonnet and Dietrich signed a five-year, commercial space lease effective from January 1, 1975. In January of 1976 Dietrich vacated the leased premises. Although Dietrich continued thereafter to make regular monthly rental payments, Dietrich sought release from its rental obligations by bringing two actions against Jonnet. In its suits Dietrich alleged Jonnet's anticipatory repudiation of the lease agreement and constructive eviction of Dietrich from the leased premises. Subsequently, alleging Dietrich's failure to pay rent for July of 1977, Jonnet filed a complaint in confession of judgment against Dietrich.

An excellent procedural outline of the parties' litigation is provided, as follows, by the opinion of the Honorable Richard G. Zeleznik of the Court of Common Pleas of Allegheny County:

On April 29, 1976, after vacating, but while continuing to pay the monthly rentals, Dietrich filed the first of [its] actions at No. GD 76-9197. That was a Complaint in Equity seeking to enjoin Jonnet, as landlord, from confessing judgment on the lease and to nullify all rental obligations. The Complaint was based upon a theory of anticipatory repudiation . . . . This Court denied Dietrich's request for injunctive relief by Order dated May 24,

[ 316 Pa. Super. Page 5371976]

. . . . Subsequently, Jonnet filed preliminary objections to Dietrich's Complaint in Equity which were sustained . . . . Dietrich was denied equitable relief, but granted twenty days to amend, and the issue of anticipatory repudiation was preserved.

[ 316 Pa. Super. Page 538]

We will address, seriatim, the points raised by the parties' appeals, namely, the propriety of: (1) the trial court's order of December 3, 1979, purporting to strike the confessed judgment at No. GD 77-17851; (2) the directed verdict for Jonnet on the issue of Jonnet's alleged anticipatory repudiation of the lease, (3) Jonnet's reputed constructive eviction of Dietrich, and (4) the trial court's molding of the jury's verdict (money damages) in favor of Jonnet.


Jonnet argues that the trial court's order of December 3, 1979, improperly struck its confessed judgment against Dietrich.

An independent review of the record reveals, however, that the order of December 3, 1979, did not strike Jonnet's confessed judgment. Jonnet's confessed judgment was docketed at GD 77-17850. Only the execution on the confessed judgment was docketed at GD 77-17851, and the order of December 3, 1979, was confined to a disposition of GD 77-17851.

After Dietrich had filed two actions against Jonnet in an effort to avoid paying rent under the lease, Jonnet confessed judgment against Dietrich for non-payment of the July, 1977, installment of rent. The confession of judgment was made pursuant to the warrant of attorney contained in the parties' lease agreement, and the action to confess judgment was docketed at GD 77-17850. The praecipe for writ of execution on the confessed judgment was separately docketed at GD 77-17851. See Pa.R.C.P. No. 2957 and Pa.R.C.P. No. 236.

In accordance with Pa.R.C.P. No. 2959 Dietrich then filed a petition to strike and/or open the confessed judgment. Under Rule 2959(b) the trial court issued a rule against Jonnet to show cause why (i) Dietrich's petition should not be granted and (ii) Jonnet's execution on the confessed judgment should not be stayed. Jonnet filed a timely answer to the rule. See Rule 2959(b).

[ 316 Pa. Super. Page 539]

By consent of the parties, on June 13, 1979, the trial court entered an order opening*fn1 Jonnet's confessed judgment (GD 77-17850) against Dietrich.*fn2 But while the court's rule to show cause had referred to both the confessed judgment (GD 77-17850) and the execution on same (GD 77-17851), the court's order of June 13, 1979, failed to dispose of the execution on the confessed judgment.

The order of June 13, 1979, also consolidated Jonnet's confessed judgment action against Dietrich with Dietrich's two suits against Jonnet and provided that all three suits proceed to trial at the next jury trial listing.

On the day of trial Dietrich moved that the trial court act with respect to the execution on the confessed judgment (GD 77-17851). Accordingly, the court issued an order disposing of the execution on the confessed judgment: "And now this 3 day of Dec. 1979, it appearing that the Motion to Strike Judgment has not been determined previously, it is hereby ordered and decreed that the within judgment is stricken.*fn3 The balance of the proceedings as consolidated shall proceed to trial." The court order was hand-written in blue ink, and in the upper portion of the order were four docket numbers: GD 76-9197 (anticipatory repudiation), GD 77-17850 (confessed judgment), GD 77-17851 (execution on confessed judgment) and GD 77-02645 (constructive eviction). The court order was signed by the

[ 316 Pa. Super. Page 540]

    trial judge in black ink, and docket number GD 77-17851 (execution on the confessed judgment) was encircled with black ink. The trial court verdict sheet for docket GD 77-17851 states that an "[o]rder [was] entered [on] December 3, 1979, striking this judgment, and trial proceeded as consolidated on GD 77-17850." (Emphasis added). The verdict sheet was signed by the trial judge who issued the aforementioned order of December 3, 1979.

A trial on the merits of the actions docketed at GD 77-17850 (confessed judgment), GD 76-9197, and GD 77-02645 was conducted before a jury. The record includes a verdict sheet corresponding to each docket number. The verdict sheet for GD 77-02645 contains the following brief statement: "See molded verdict at GD 77-17850 [confession of judgment] by the Court. Action governed by verdict entered at GD 77-17850." The verdict sheet at GD 77-17850 enumerates the money damages which Dietrich must pay to Jonnet.

From the foregoing facts it appears that the court order of December 3, 1979, "striking" GD 77-17851 (execution on confessed judgment) was intended merely to stay execution on the confessed judgment docketed at GD 77-17850 pending disposition of the opened confessed judgment after the jury trial.*fn4 Indeed, in several documents which form part of the record in this case (such as Jonnet's motion to mold the verdict in GD 77-17850) Jonnet seemingly acknowledges that the parties proceeded to trial on GD 77-17850. Thus, Jonnet's confession of judgment against Dietrich was not stricken but, rather, was opened and heard on the merits at trial. See Pa.R.C.P. No. 2960.

Accordingly, we affirm the trial court's order of December 3, 1979.


Dietrich contends that the trial court wrongfully denied its motion for a new trial*fn5 which opposed directed verdicts

[ 316 Pa. Super. Page 541]

    for Jonnet in the actions alleging Jonnet's anticipatory repudiation of the parties' lease and constructive eviction of Dietrich.

In reviewing a motion for a new trial, we must consider all the evidence adduced at the trial to ascertain whether the verdict was manifestly against the weight of the evidence. Ditz [ v. Marshall, 259 Pa. Super.Ct. 31, 35, 393 A.2d 701, 703 (1978)]. '[T]he decision to either grant or deny a motion for new trial is within the sound discretion of the trial court and will be reversed on appeal only if the appellate court determines the trial court palpably abused its discretion', Myers v. Gold, 277 Pa. Super.Ct. 66, 69, 419 A.2d 663, 664 (1980), or committed 'a clear error of law.' Eldridge v. Melcher, 226 Pa. Super.Ct. 381, 387, 313 A.2d 750, 754 (1973), allocatur denied.

Mattox v. City of Philadelphia, 308 Pa. Super.Ct. 111, 115, 454 A.2d 46, 48 (1982).

After Dietrich and Jonnet concluded the presentation of their evidence, the trial court determined that there were no factual controversies for the jury's resolution and accordingly granted Jonnet's motion for directed verdicts against Dietrich. Thereafter, the trial court affirmed the directed verdicts for Jonnet by refusing Dietrich's request for a new trial.

[I]t has long been held that only in a case where the facts are all clear, and there is no room for doubt, should the case be removed from the jury's consideration, and a motion for directed verdict . . . be granted . . . . Thus, before granting a directed verdict, the court must accept as true all facts and proper inferences from testimony which tend to support the contentions of the party against whom the motion has been made, and further, must reject all testimony and inferences to the contrary.

Stephens v. Carrara, 265 Pa. Super.Ct. 102, 105, 401 A.2d 821, 822 (1979).

[ 316 Pa. Super. Page 542]

Consequently, the issue on appeal is whether the trial court directed verdicts for Jonnet where there existed disputed material facts for the jury's consideration, Koppers Co. v. Brunswick Corp., 224 Pa. Super.Ct. 250, 303 A.2d 32 (1973), thus requiring a new trial.

First, we will address Dietrich's assertion that the trial court improperly directed a verdict for Jonnet in the matter of Jonnet's alleged anticipatory repudiation of the parties' lease agreement (hereinafter "Lease").

Dietrich maintains that Jonnet anticipatorily repudiated the Lease by renting space for which Dietrich held a rental option under the Lease. In pertinent part the option provision of the Lease states:

At the Tenant's [Dietrich's] request, Landlord [Jonnet], upon a one-year notice, will make available to Tenant an additional 5,000 square feet in premises contiguous to the [originally] leased premises . . . . If the request is made after the first year of the original lease term, then the within Lease covering the original leased premises and the additional 5,000 square feet shall be extended . . . for a five year term commencing with the date of the said request.

(Emphasis added.)

Therefore, by the terms of the Lease Jonnet's duty to rent additional space to Dietrich was conditioned upon Dietrich's exercising its rental option by (i) requesting more space and (ii) giving one year's notice to Jonnet. Section 224 of the Restatement (Second) of Contracts (1981) (hereinafter "Restatement") explains that "[a] condition is an event, not certain to occur, which must occur, unless its nonoccurrence is excused, before performance under a contract becomes due." See Moyer v. Diehl, 139 Pa. Super.Ct. 59, 11 A.2d 651 (1940); National Products Co. v. Financial Corp., 238 Pa. Super.Ct. 152, 364 A.2d 730 (1975), allocatur denied, April 12, 1976; see also J. Murray, Murray on Contracts §§ 133, 134, and 139 (2d rev. ed. 1974).

Although Dietrich admits that it did not attempt to exercise its rental option, Dietrich argues that Jonnet anticipatorily

[ 316 Pa. Super. Page 543]

    repudiated the rental option and that such repudiation excused the non-occurrence of the condition precedent (exercise of Dietrich's rental option) to Jonnet's obligation to provide additional space.

"An anticipatory breach of a contract occurs whenever there has been a definite and unconditional repudiation of a contract by one party communicated to another. A statement by a party that he will not or cannot perform in accordance with agreement creates such a breach. See 4 Corbin on Contracts § 959, p. 852-856 (1951)." Wolgin v. Atlas United Financial Corp., 397 F.Supp. 1003, 1014 (E.D.Pa. 1975), aff'd, 530 F.2d 966 (3d Cir. 1976); Cameron v. Eynon, 332 Pa. 529, 3 A.2d 423 (1939); Parliament Industries, Inc. v. William H. Vaughan & Co., 287 Pa. Super.Ct. 458, 430 A.2d 981 (1980), on reconsideration, June 12, 1981 petition for allowance of appeal granted, October 2, 1981; Section 250 of the Restatement. Furthermore, Section 250 of the Restatement declares that an anticipatory repudiation results not only from an obligor's definite statement of inability or unwillingness to render future performance but also from "a voluntary affirmative act which renders the obligor unable or apparently unable to perform . . . ."*fn6

[ 316 Pa. Super. Page 544]

As Dietrich correctly asserts, an anticipatory repudiation by an obligor discharges an obligee's duty to perform a condition precedent.*fn7 See comment c to Section 253 (discussion of option contracts) and comment b to Section 255 of the Restatement.

If, when the time for the happening of a condition precedent arrives, it appears that the promise that is qualified by the condition cannot be performed by the promisor, the general rule is that the condition is excused . . . .

If it is reasonably certain that the promisee will not receive that which is the contemplated exchange for the performance of the condition, there is every reason why he should not be required to perform the condition as a preliminary to the recovery of compensation for defeated expectations . . . .

J. Murray, Murray on Contracts § 188 at p. 366-67; Weinglass v. Gibson, 304 Pa. 203, 155 A. 439 (1931).

However, the rule excusing the non-occurrence of conditions precedent does not apply "[w]hen the promisee could not, or would not, have performed the condition in any event [ i.e., whether or not the promisor repudiated] . . . ." J. Murray, Murray on Contracts § 188 at p. 367; Comment a to Section 255 of the Restatement; 4 A. Corbin, Corbin on Contracts § 978 at p. 924 (1951).

In the instant case the trial judge properly observed that "[t]he evidence . . . established conclusively that Dietrich had never exercised its option for the 5,000 square feet of additional space [and that] . . . Dietrich vacated the entire [originally leased] premises within thirteen months after

[ 316 Pa. Super. Page 545]

. . . occupancy for reasons unrelated to any need for additional space." By its conduct Dietrich manifested a complete lack of intent to perform the condition precedent (i.e., exercise of the rental option) regardless of whether Jonnet did or did not anticipatorily repudiate the rental option provision of the Lease. Consequently, we hold that in this context the non-occurrence of the condition precedent could not be excused by anticipatory repudiation. Under these circumstances we therefore deem it unnecessary to decide whether Jonnet did anticipatorily repudiate the rental option, i.e., whether Jonnet's rental to a third party of the existing commercial space contiguous to Dietrich's original leasehold constituted a repudiatory act rendering Jonnet unable or apparently unable to perform according to the rental option.

Assuming arguendo, without deciding, that Jonnet did not anticipatorily repudiate the rental option, we consider whether pursuant to Section 251 of the Restatement, Dietrich had "reasonable grounds . . . to believe that [Jonnet would] commit a breach by non-performance . . . [and could therefore] demand adequate assurance of due performance [from Jonnet] and . . ., if reasonable, suspend [its own], performance . . . until [it] receive[d] such assurance."*fn8

Preliminarily, we note that Dietrich did not demand any assurances of performance from Jonnet. Moreover, in accordance with Comment c to Section 251 we conclude that Dietrich could not have requested assurances of performance under Section 251 because it lacked "reasonable grounds" for believing that Jonnet would repudiate the rental option.

[ 316 Pa. Super. Page 546]

Comment c to Section 251 of the Restatement explains that

[w]hether 'reasonable grounds' have arisen for an obligee's belief that there will be a breach must be determined in the light of all the circumstances of the particular case. The grounds for [the obligee's] belief must have arisen after the time when the contract was made and cannot be based on facts known to [the obligee] at that time. Nor, since the grounds must be reasonable, can they be based on events that occurred after that time [when the contract was made] but as to which [ the obligee] took the risk when [the obligee] made the contract.

(Emphasis added.) Accord, J. Murray, Murray on Contracts § 178 at p. 351.

Here, the trial judge accurately remarked that

Dietrich . . . presented evidence to prove that Jonnet had effectively leased out nearly all of the remaining space in the same building at the time the parties entered into contract to furnish additional contiguous space [rental option] . . . . It was undisputed that Jonnet had leased most of the floor space to other tenants, including Dietrich, at the time the option was granted. Dietrich, as a tenant in possession, was aware of this.

(Emphasis added.)

Given the circumstances known to Dietrich when it entered into the rental option with Jonnet (i.e., that most of the space was already leased), it is apparent that if Dietrich had grounds for suspecting Jonnet's inability to satisfy its rental option obligations, such grounds arose before the parties contracted for the option and consequently fail to qualify under Comment c to Section 251 as "reasonable grounds" which would permit suspension of Dietrich's duty to perform (i.e. exercise the rental option).

Accordingly, inasmuch as Dietrich's failure to exercise its rental option (i.e., the non-occurrence of the condition precedent to Jonnet's duties under the rental option) was not

[ 316 Pa. Super. Page 547]

    excused and Dietrich lacked "reasonable grounds" for believing that Jonnet would repudiate the rental option, we affirm that portion of the trial court's order of November 20, 1980, directing a verdict for Jonnet on the issue of Jonnet's alleged anticipatory repudiation.*fn9


We will now consider Dietrich's contention that the trial court improperly directed a verdict for Jonnet in the matter of Jonnet's reputed constructive eviction of Dietrich from the originally leased premises.

Dietrich maintains that its constructive eviction from the leasehold was caused by Jonnet's breach of the express covenant for quiet enjoyment contained in the parties' Lease.*fn10

While the earlier cases held that physical dispossession or actual disturbance in the possession of the tenant was necessary to constitute a breach of the covenant for quiet enjoyment, the great weight of authority now is that a constructive eviction is sufficient to destroy the relation of landlord and tenant. If the tenant is entitled to the beneficial enjoyment of the premises under the terms of his lease, and if he is deprived of this by the act of the landlord it amounts to an eviction, and will suspend the rent. The term 'eviction' is no longer restricted in its application to its original meaning of eviction by title

[ 316 Pa. Super. Page 548]

    paramount, or to a total deprivation of the premises by the landlord . . . .

Weighley v. Muller, 51 Pa. Super.Ct. 125, 131 (1912).

The legal implication of the covenant [for quiet enjoyment], express or implied, is that the lessor will permit the tenant to enjoy fully the demised premises subject to any rights reserved to the lessor . . . . 'The covenant . . . is breached when a tenant's possession is impaired by acts of the lessor or those acting under him . . . .' The impairment of the lessee's possession need not be total, but the utility of the premises must be substantially decreased by the landlord's interference with a right or privilege which is necessary to the enjoyment of the premises . . . .

Checker Oil Co. of Delaware, Inc. v. Harold H. Hogg, Inc., 251 Pa. Super.Ct. 351, 358, 380 A.2d 815, 818-19 (1977) (emphasis added), allocatur denied; Kahn v. Bancamerica Blair Corp., 327 Pa. 209, 213-14, 193 A. 905, 906-07 (1937).

Recovery for breach of this covenant [for quiet enjoyment] has been allowed in Pennsylvania where a landlord has evicted the tenant by locking up the leased premises and denying the tenant access . . ., and where the landlord so substantially altered some essential feature of the premises as to render the property unsuitable for the purpose for which it was leased.

Pollock v. Morelli, 245 Pa. Super.Ct. 388, 393, 369 A.2d 458, 460 (1976) (emphasis added).

In the present case Dietrich argues that after it had vacated the premises, but while it was still paying rent, Jonnet undertook to repair several aspects of the leased premises, chiefly, one of the restrooms and electrical wiring in the ceiling of the rented office space. Moreover, Dietrich avers that Jonnet failed to properly maintain the premises after Dietrich vacated, i.e., the floors were dirty and the heat was lowered. Finally, Dietrich asserts that the entrance door to the leased premises was found off the door jamb. Dietrich contends that the foregoing conditions of

[ 316 Pa. Super. Page 549]

    the leased premises amounted to Jonnet's constructive eviction of Dietrich from the leasehold.

'It has uniformly been held that where a tenant, during the term [of his lease], abandons the demised premises, the landlord is not bound, under the penalty of loss of his right to receive rent, to permit the tenement to remain wholly unoccupied with the consequent possible or probable loss of his insurance, destruction by waste, or other like injuries. The mere fact that [the landlord] resumes possession is not of itself a sufficient foundation upon which to predicate either an acceptance of a surrender or an eviction. It must further be found on evidence that such resumption of possession is not merely for the protection of the property during the absence of the tenant, but is adverse to a reoccupation of it by [the tenant] and a renewal of the relations created by the lease.'

After a tenant vacates the property leased, the landlord has the right to re-enter and take such steps as may be necessary and proper towards subletting the premises . . . .

Bancamerica-Blair Corp., 327 Pa. at 213-14, 193 A. at 907.

Here, the steps taken by Jonnet did not deprive Dietrich of the right to re-enter and enjoy the leased premises without substantial impairment. Jonnet did not demonstrate any intention permanently to deprive Dietrich of any aspect of its leasehold. In this respect the instant case differs markedly from such cases as Kelly v. Miller, 249 Pa. 314, 94 A. 1055 (1915) [landlord closed opening which had connected two of tenant's adjoining leaseholds and thus eliminated convenient access to leasehold], and Pollock [landlord built mini mall which obstructed view of tenant's store], wherein there were permanent structural alterations of the original leaseholds.

Moreover, as the trial court noted,

     the only conduct or activities brought out by the evidence was that of isolated and limited use by Jonnet involving maintenance and repairs, all of which occurred after

[ 316 Pa. Super. Page 550]

Dietrich had vacated the premises. There was no evidence of any substantial interference with Dietrich's use or right to sole and exclusive possession. Furthermore, this maintenance worked to the benefit and advantage of Dietrich. Jonnet was thus able to prepare the premises for occupancy by new tenants, and as the situation developed, Jonnet did later acquire new tenants for the same space at an increased rental, which operated to terminate Dietrich's lease obligations when the new tenants went into possession.

Accordingly, inasmuch as Jonnet's conduct did not substantially interfere with Dietrich's right to enjoy the leased premises, we affirm that portion of the trial court's order of November 20, 1980, directing a verdict for Jonnet on the issue of Jonnet's reputed constructive eviction of Dietrich.*fn11,*fn12


Finally, we review the trial court's modification of the verdict for Jonnet to include interest plus Dietrich's pro rata share of the increased real estate taxes on the leasehold.

Citing Tibbetts v. Prudential Insurance Co. of America, 313 Pa. 310, 169 A. 382 (1933), Dietrich argues that the trial court lacked authority to "mold the verdict." In Tibbetts the Supreme Court of Pennsylvania held that a trial court could not amend a jury's verdict to include interest where the court had "failed to instruct the jury that interest [should] be allowed in the event of recovery of a liquidated debt." Id., 313 Pa. at 316, 169 A. at 384. The court reasoned that "[a]s the jury was not instructed that interest might be allowed, it [could] not be said that [the jury] intended to make it part of the verdict, a fact which excludes

[ 316 Pa. Super. Page 551]

    the right of the court to do so." Id., 313 Pa. at 316, 169 A. at 384-85; House of Pasta, Inc. v. Mayo, 303 Pa. Super.Ct. 298, 449 A.2d 697 (1982); Kardibin v. Associated Hardware, 284 Pa. Super.Ct. 586, 426 A.2d 649 (1981).

However, Tibbetts is inapposite in this instance because, as the trial judge explained in his opinion, the court -- not the jury -- computed the initial verdict:

Dietrich complains that there were no instructions to the jury on these items [ i.e., interest and increased real estate taxes] . . . . [T]he issue of rents due and owing was taken away from the jury. After the defenses of anticipatory repudiation and constructive eviction were eliminated, the only matter remaining was a calculation of rent from the time of Dietrich's last payment until the new tenant took over that obligation. That simple arithmetic was done by the Court and should have included the real estate taxes called for in the lease. Likewise, interest should have been added as a matter of course.

(Emphasis added.)

Thus, the court was fully empowered to subsequently modify its own verdict without intrusion upon the jury's province.

Moreover, unlike Tibbetts this case does not present an attempt by the court to modify a verdict on its own motion. Here, the verdict was amended pursuant to Jonnet's motion to mold the verdict to reflect interest and additional real estate taxes. And despite Dietrich's protestation to the contrary, this case is not controlled by Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974), wherein the Pennsylvania Supreme Court stated that an issue is preserved for appeal only where there has been a timely specific objection raised before the trial court. Since the court did not instruct the jury on the amount of the verdict to be rendered, Jonnet cannot be deemed to have waived objections to jury instructions regarding the verdict amount.

Concerning Dietrich's argument that the trial court's addition of the augmented real estate tax figure to the

[ 316 Pa. Super. Page 552]

    verdict resulted in an improper variance between Jonnet's pleaded damages and the court's assessment of damages, the present case is easily distinguishable from the case of Edison General Electric Co. v. Thackara Manufacturing Co., 167 Pa. 530, 31 A. 856 (1895), cited by Dietrich.

While in Edison General Electric Co. the Pennsylvania Supreme Court reversed the judgment due to "the variance between the averment and the assessment of damages," id., 167 Pa. at 534, 31 A. at 857, the court also stated that "[t]here [was] nothing on the record to sustain . . . [the] assessment." Id., 167 Pa. at 534, 31 A. at 857. In Edison General Electric Co. the court was confronted with an ultimate claim for damages that exceeded four times the amount originally averred, "and the principle upon which such result [assessed damages] was reached nowhere appear[ed]." Id., 167 Pa. at 534, 31 A. at 857.

But in the instant case the parties' Lease prescribed a formula according to which increases in real estate taxes would be added to the lessee's rental payments:

The Tenant agrees to pay as additional rental such increase in real estate taxes levied upon the demised premises following the commencement of the term. The increase in taxes shall be prorated over the entire leaseable area of the [Lessor's office building] upon a square foot basis. Lessor shall verify in writing the increase in taxes and the effective date of the increase and the mathematical computation of the proration. Payment by the Tenant shall be made in full on or before sixty days of said written notice delivered to Tenant.

Thus, in the present case the Court knows the "principle upon which [the] result [assessed damages] was reached . . . ." Id., 167 Pa. at 534, 31 A. at 857.

[ 316 Pa. Super. Page 553]

Furthermore, the general rule "against a variance between allegations and proof is based upon the sound reasoning that a defendant should not be taken by surprise at trial by being called upon to defend either against matters of which he had no notice in the pleadings, or against a different cause of action." Allegheny Ludlum Industries, Page 553} Inc. v. CPM Engineers, Inc., 278 Pa. Super.Ct. 201, 205, 420 A.2d 500, 501 (1980). Here, Dietrich cannot claim to be surprised by Jonnet's request for increased rental corresponding to augmented real estate taxes since the parties' Lease contained a provision for same. Nor does the request for rental including Dietrich's proportionate share of the tax increase vary the cause of action upon which Jonnet was suing since the action remained one for outstanding rental payments owed by Dietrich, a portion of which related to taxes on the leasehold.

Therefore, inasmuch as the trial court had the authority to conform its own verdict to the terms of the parties' Lease, we affirm that portion of the trial court's order of November 20, 1980, which confirmed its adjustment of the verdict to include interest and Dietrich's pro rata share of the increased real estate taxes.

The trial court's order of December 3, 1979, staying execution on the opened confessed judgment and the trial court's order of November 20, 1980, directing verdicts for Jonnet on the issues of anticipatory repudiation and constructive eviction as well as modifying the verdict amount to reflect interest and increased taxes are affirmed.

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