GAMESA ENERGY USA, LLC AND GAMESA TECHNOLOGY CORPORATION INC.
TEN PENN CENTER ASSOCIATES, L.P. AND SAP V TEN PENN CENTER NF G.P. L.L.C. Appellants
from the Judgment Entered May 20, 2016 In the Court of Common
Pleas of Philadelphia County Civil Division at No(s): March
Term, 2013 No. 03678
BEFORE: PANELLA, J., LAZARUS, J., and STEVENS [*] , P.J.E.
appeal involves a commercial landlord/tenant dispute. Ten
Penn Center Associates, L.P. and SAP V Ten Penn Center NF
G.P. L.L.C (collectively, "TenPC"), appeal from the
judgment entered in favor of Appellee, Gamesa Energy USA, LLC
and Gamesa Technology Corporation, Inc. ("Gamesa"),
by the Philadelphia Court of Common Pleas following a nonjury
trial. The record supports the trial court's factual
findings regarding the breach of the sublease provision.
Gamesa, however, elected contract damages over the remedy of
rescission. And the trial court improperly conflated the
terms "vacate" and "abandon."
Accordingly, we affirm in part and reverse in part.
2008, Gamesa signed a contract (the "Lease") with
TenPC to lease approximately 35, 000 square feet of office
space in TenPC's building, located at 1801 Market Street,
Philadelphia (the "Premises"). The Lease, which was
scheduled to run until September 1, 2018, provided Gamesa
with a credit, named "the tenant improvement allowance,
" for Gamesa to construct the office space to its
specifications. The Lease also permitted Gamesa, with
TenPC's prior approval, to enter into subleases for
portions of the Premises.
2011, TenPC approved Gamesa's request to sublet
approximately 15, 000 square feet of office space to Viridity
Energy, Inc. Gamesa's sublease with Viridity was
scheduled to run until August 30, 2018. TenPC permitted
Gamesa to use a portion of its tenant improvement allowance
to outfit the office space for Viridity's needs.
after giving one month's notice to TenPC, Gamesa vacated
the Premises in May 2012. Viridity remained at the Premises
under the terms of its sublease with Gamesa. Additionally,
while Gamesa submitted its June rent payment late, both
parties agree that Gamesa continued to make rent payments
after it vacated the Premises.
12, 2012, Gamesa submitted a request for TenPC's consent
to sublet a portion of its remaining office space to Business
Services International, LLC ("BSI"). TenPC's
initial response to this request was to inform Gamesa that it
defaulted on the terms of the Lease by vacating the Premises
and making a late rent payment, and thus absolved TenPC of
the responsibility of entertaining any requests for
subleases. Nevertheless, TenPC requested additional
information concerning BSI's financials from Gamesa to
evaluate the sublease request under the terms of the Lease.
responded to TenPC's letter on July 5, 2012, denying the
alleged default, once again requesting the approval of the
BSI sublease, and providing TenPC with the requested
information about BSI. In response, TenPC reiterated its
belief that it was not required to entertain the proposed
sublease, and proposed Gamesa waive its right to use its
remaining tenant improvement allowance in exchange for
TenPC's approval of the sublease. Following this
correspondence, negotiations between the parties stalled.
March 23, 2013, Gamesa filed a complaint against TenPC,
asserting claims including breach of contract, unlawful
interference in business relations, and unjust enrichment.
Gamesa alleged TenPC breached the Lease by failing to accept
or reject the proposed BSI sublease within 30 days, pursuant
to the terms of the lease. As a result, Gamesa alleged that
TenPC had materially breached the terms of the Lease and
asked for damages arising from the breach, as well as a
declaration that the Lease had been terminated as of the date
TenPC failed to accept or reject the sublease. Further,
through its claim for unjust enrichment, Gamesa requested the
return of the rent paid following the alleged material
breach. TenPC denied these allegations.
matter proceeded to a nonjury trial. Only two witnesses were
called: Jamie Rodriguez, Gamesa's general services
manager, and Daniel Busch, a managing member of one of
TenPC's limited partners. Rodriguez testified the
sublease with BSI was never consummated due to TenPC's
delay in approving or denying the proposed BSI sublease.
Rodriguez also confirmed Gamesa continued to pay rent under
the Lease, had used its remaining tenant improvement
allowance to improve space within the building, and, at the
time of trial, was looking for a subtenant with TenPC's
approval. And he confirmed Viridity continued to pay Gamesa
rent under the terms of the sublease from the time Gamesa
vacated the Premises until the time of trial.
established the course of action TenPC took, as described
above, and reiterated that Gamesa was in default in the
summer of 2012 after vacating the Premises. Busch also
claimed TenPC's reluctance in approving the proposed
sublease with BSI stemmed partially from TenPC's belief
that BSI did not appear to be a financially stable company.
Therefore, he did not believe TenPC's action in
conditioning approval of the sublease upon Gamesa's
waiver of the remaining tenant improvement allowance was
the trial court ruled in favor of Gamesa. The court found
TenPC had materially breached the lease by advising Gamesa it
was in default and by failing to approve or reject the
proposed BSI sublease within 30 days of its presentation.
Because of this breach, the court awarded Gamesa damages
equal to the amount it would have received under the
three-year BSI sublease. And the court found TenPC's
material breach was sufficient to terminate the lease as of
July 22, 2012. As a result, the court found TenPC was
unjustly enriched in the amount of rent Gamesa paid to TenPC
from that date through December 2015. Lastly, the trial court
found that despite the termination of the lease,
Viridity's sublease was to remain in effect until its
August 30, 2018 expiration date.
Gamesa and TenPC filed post-trial motions. Gamesa requested
the court mold the verdict to include pre- and post-judgment
interest. In contrast, TenPC requested the court vacate its
judgment against it. And it presented a motion to supplement
the trial record with evidence that Gamesa had subleased
space in the building after trial. The trial court granted
Gamesa's request to mold the verdict and denied
the entry of judgment, this timely appeal followed. TenPC
presents seven issues for our review. See
Appellant's Brief, at 4-6.
We apply the following standard of review to a nonjury trial
Our appellate role in cases arising from nonjury trial
verdicts is to determine whether the findings of the trial
court are supported by competent evidence and whether the
trial court committed error in any application of the law.
The findings of fact of the trial judge must be given the
same weight and effect on appeal as the verdict of the jury.
We consider the evidence in a light most favorable to the
verdict winner. We will reverse the trial court only if its
findings of fact are not supported by competent evidence in
the record or if its findings are premised on an error of
law. However, [where] the issue … concerns a question
of law, our scope of review is plenary.
The trial court's conclusions of law on appeal
originating from a non-jury trial are not binding on an
appellate court because it is the appellate court's duty
to determine if the trial court correctly applied the law to
the facts of the case.
Allegheny Energy Supply Co., LLC v. Wolf Run Min.
Co., 53 A.3d 53, 60-61 (Pa. Super. 2012) (citation and
quotation marks omitted; brackets and ellipses in original).
The trial court, as the finder of fact, is free to believe
"all, part or none of the evidence presented."
Ruthrauff, Inc. v. Ravin, Inc., 914 A.2d 880, 888
(Pa. Super. 2006) (citation omitted). "Issues of
credibility and conflicts in evidence are for the trial court
to resolve; this Court is not permitted to reexamine the
weight and credibility determination or ...