following four criteria: (1) that the right to declare a forfeiture was distinctly reserved; (2) that the proof of the happening of the event upon which the right is to be exercised is clear; (3) that the party entitled to do so exercised his right promptly; and (4) that the result of enforcing the forfeiture is not unconscionable. Cleveland v. Salwen, 292 Pa. 427, 431, 141 A. 155, 156 (1928).
The right to declare a forfeiture was clearly reserved in the lease at issue. Paragraph 9 of the lease provides, in relevant part, that "if tenant shall default in any of the covenants herein contained, and should such default continue for thirty days after receipt by tenant of written notice thereof, it shall be lawful for landlord to re-enter the demised premises and again have and enjoy the same." App. 30a.
In order to be successful in its motion for summary judgment concerning Count II, defendant tenant must show that there are no genuine issues of material fact which would preclude entry of judgment in its favor as a matter of law. Hollinger v. Wagner Mining Equipment Co., 667 F.2d 402, 405 (3d Cir. 1981).
The defendant has failed to meet this heavy burden. As to each of the allegations in Count II, plaintiff has presented probative evidence that the defendant defaulted in a covenant under the lease, received written notice thereof and remained in default thirty days after receiving such notice.
Although the meaning of the lease is not beyond dispute, it is certainly susceptible to being interpreted as prohibiting advertising by the defendant, App. 31a, and as requiring the defendant to keep areas surrounding the demised premises unobstructed and free of debris. App. 25a. Since the intendment of the lease is not clear, the resolution of the ambiguity is for the factfinder.
On August 17, 1982, the defendant received written notice from the plaintiff concerning all of the allegations in Count II of plaintiff's complaint. App. 133a. The letter informed the defendant that the plaintiff considered the defendant's behavior to be in violation of its covenants under the lease. Id. The plaintiff has also produced probative evidence that thirty days after receiving notice the defendant was still violating its alleged covenants under the lease. App. 75a, 147a, 473a-475a.
Although the defendant claims that painting its store with orange and white stripes does not constitute advertising, and that it always met its responsibilities under the lease when notified by the plaintiff that its activities were in any sense deficient, these and other arguments advanced by the defendant remain issues of material fact properly resolved by a jury and unsuitable for resolution in a motion for summary judgment.
Defendant's motion for summary judgment is denied as to Count II of plaintiff's complaint.
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