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[U] Lewis Road Associates, LLC v. Re/Max Services, Inc.

Superior Court of Pennsylvania

March 13, 2014

LEWIS ROAD ASSOCIATES, LLC, Appellee
v.
RE/MAX SERVICES, INC., Appellant LEWIS ROAD ASSOCIATES, LLC, Appellee
v.
RE/MAX SERVICES, INC., Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment Entered April 26, 2013, In the Court of Common Pleas of Montgomery County, Civil Division, at No. 2009-39027.

Appeal from the Judgment Entered April 26, 2013, In the Court of Common Pleas of Montgomery County, Civil Division, at No. 2008-32399.

BEFORE: GANTMAN, SHOGAN and PLATT [*] JJ.

MEMORANDUM

SHOGAN, J.

Appellant, Re/Max Services, Inc. ("Re/Max"), appeals from the judgment entered on April 26, 2013, in favor of Lewis Road Associates, LLC ("Lewis Road").[1] We affirm.

The trial court set forth the relevant facts and procedural history of this matter as follows:

This landlord-tenant dispute began with a lease entered into in October of 2003 between Plaintiff Appellee/Lewis Road Associates, LLC (hereinafter: [Lewis Road]) and Defendant/Appellant, Re/Max Services, Inc. (hereinafter: [Re/Max]) for commercial space located in Limerick Township, Montgomery County, Pennsylvania. [Lewis Road] was managed and marketed by Pennmark Management Company, Inc. (hereinafter: Pennmark). The lease's original term ran for a period of three and a half (3.5) years and was set to expire in March of 2007. The rent began at $26, 075/year and escalated each subsequent year. Additionally, the lease also included provisions for common area maintenance in the building. Representatives of Pennmark and [Re/Max] discussed a lease extension agreement over the telephone, after which Pennmark's representative prepared a written Lease Extension Agreement (hereinafter: the Agreement). The Agreement contained a "time is of the essence" clause declaring the Agreement to be null and void if not extended by February 7, 2007. [Re/Max] executed the Agreement on February 14, 2007, and returned a copy to Pennmark's representative on February 15, 2007. [Lewis Road] also signed the Agreement and both parties' conduct indicated performance of the Agreement. In July-August of 2008, a potential new tenant, Wetherill Associates, Inc. expressed interest in leasing the space occupied by [Re/Max] and another tenant in the building. Accordingly, Pennmark approached [Re/Max] about vacating the space, and on behalf of [Lewis Road], prepared a written Option Notice granting Pennmark the right to terminate [Re/Max's] lease with thirty (30) days' notice. Additionally, the Option Notice granted [Lewis Road] thirty (30)
days to utilize this notice, which had to be given in writing, from August 22, 2008. [Re/Max's] representative signed this Option Notice and had telephone conversations with Pennmark's representative about the status of the Wetherill Associates deal, which eventually fell through due to the uncooperative actions of another tenant in the building. [Lewis Road] never issued a written notice to terminate the lease to [Re/Max], however, [Re/Max] believed that the oral communications between it and Pennmark's representative indicated that the Agreement was terminated and moved out of the property. [Re/Max's] representative testified that he believed [Re/Max] to have vacated the premises by early September of 2008, whereas Pennmark's representative testified that he became aware of the vacancy on or about October 14, 2008 when the property was inspected.
[Lewis Road] filed an action [in Magisterial District Court], which [Re/Max] appealed on November 13, 2008. This action was docketed in this Court as 2008-32399, with a Complaint filed on December 11, 2008 asserting counts of breach of contract and unjust enrichment. Additionally, [Lewis Road] instituted a separate civil action with a Complaint filed on December 1, 2009, docketed in this Court as 2009-39027, also for breach of contract and unjust enrichment to recover money damages. These actions were consolidated by Order of the Honorable Bernard Moore on September 27, 2010. This matter proceeded as a trial before the Undersigned, sitting without a jury, on May 8-9, 2012. The Undersigned requested that the parties submit proposed Findings of Fact and Conclusions of Law before issuing a verdict in this matter, which they filed on August 1 and 2, 2012. The Undersigned then issued his Order finding in favor of [Lewis Road] and against [Re/Max] on September 20, 2012. [Re/Max] filed a timely Motion for Post-Trial Relief on October 1, 2012, then appealed to the Superior Court of Pennsylvania before this Court had the opportunity to hear argument on and dispose of the outstanding Motion for Post-Trial Relief. By Order of December 11, 2012, the Superior Court of Pennsylvania quashed the first appeal pursuant to Chalkey v. Roush, 805 A.2d 491 (Pa. Super. 2002), as an appeal lies from judgment entered subsequently to the trial court's disposition of post-verdict motions.

Trial Court Opinion, 4/29/13, at 1-3 (footnotes omitted).

After the appeal was quashed, the trial court filed an order denying Appellant's post-trial motion on January 30, 2013. Judgment was entered in favor of Lewis Road on April 26, 2013, and this appeal followed.

On appeal, Re/Max presents four issues:
[1.] WHETHER THE TRIAL COURT ABUSED ITS DISCRETION OR COMMITTED AN ERROR OF LAW IN FINDING THAT THE LEASE ...

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