J-A29010-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ACT DEALERSHIPS, INC., IN THE SUPERIOR COURT OF
D/B/A ANDRETTI AIRPORT TOYOTA, PENNSYLVANIA
Appellant
v.
D.A. MCLAREN, L.P. AND THEODORE A.
MCWILLIAMS,
Appellee No. 1862 WDA 2014
Appeal from the Order Entered October 15, 2015
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD-07-15208
BEFORE: FORD ELLIOTT, P.J.E., BOWES AND MUSMANNO, JJ.
CONCURRING STATEMENT BY BOWES, J.: FILED FEBRUARY 26, 2016
I agree with the disposition of this appeal, but add the following
observations. In this case, it is not contested that the lease that ACT
Dealerships, Inc. (“ACT”) entered with D.A. McLaren, L.P. (“McLaren”)
required McClaren to make roof repairs on the premises that ACT leased
from it. Specifically, § 12.7 of the lease, which was entered on an
unidentified date in October 2000, between ACT and McLaren for 798
Narrows Run Road, designated a list of items that ACT was required to repair
or replace. The list included “heating, ventilating, air conditioning, plumbing,
electrical and mechanical systems, facilities, equipment, fixtures and
appliances and parts thereof; all door, windows, glass and hardware; all
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floor ceiling and wall coverings; all painting and decorating; all paving and
landscaping[.]”1 Any remaining repairs were “the sole responsibility of the
lessor.” The lease required that McLaren provide ACT with thirty days notice
to make repairs allocated to ACT; if the repairs are not made within that
timeframe, then McLaren could effectuate the repairs and collect the cost
against ACT. Lease at § 12.8. There was no corresponding obligation of
notice to McLaren on ACT’s part.
On February 28, 2007, ACT notified McLaren that the roof needed to
be replaced and tendered an estimate that placed the cost of such
remediation at $92,500. McLaren responded that the roof did not need to be
replaced at that time. A few days after February 28, 2007, ACT sold its car
dealership for $4,526,968.65. The purchase price was reduced by $280,000
for “repairs and maintenance.” During discovery depositions, several
witnesses testified that this credit for repairs and maintenance included the
cost of replacing the roofs for both 798 and 800 Narrows Run Road. No
witness was able to set forth a precise amount that reflected the cost of roof
replacement on 798 Narrows Run Road. The buyer of the car dealership
operated it for six years without repairing or replacing the roof. McLaren
eventually installed a new roof in 2013.
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1
The lease is attached to the complaint, but was not given an exhibit
number.
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In this action, ACT claimed that it suffered damages, in the form of
lowering the purchase price of the dealership, due to the state of disrepair of
the roof and that McLaren was liable for this reduction because it was
responsible, under the lease, for repairing and replacing the roof.
I agree with the majority that ACT cannot recover under these facts.
Simply put, if McLaren had an obligation to repair or replace the roof as of
February 28, 2007, then it still had that obligation after the sale of the
dealership to the purchaser. McLaren would have no reason to expect that
ACT would lower its purchase price to compensate the dealership’s purchaser
for a repair that was not ACT’s responsibility to make. ACT was the legal
cause of its own harm.
We have observed, “In order to recover for damages pursuant to a
breach of contract, the plaintiff must show a causal connection between the
breach and the loss.” Logan v. Mirror Printing Co. of Altoona, Pa., 600
A.2d 225, 226 (Pa.Super. 1991). The non-breaching party “is entitled to
recover, unless the contract provides otherwise, whatever damages he
suffered, provided (1) they were such as would naturally and ordinarily
result from the breach, or (2) they were reasonably foreseeable and within
the contemplation of the parties at the time they made the contract, and (3)
they can be proved with reasonable certainty.” Id. (emphasis in original).
Herein, it was not reasonably foreseeable that ACT would reduce the
purchase price for the business to pay for repairs that McLaren was
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contractually obligated to make under the lease. This obligation survived
the sale of the dealership, as evidenced by McLaren’s 2013 replacement of
the roof. These types of damages were not ones that would naturally and
ordinarily result from the breach.
It is also significant that McLaren was not involved in the negotiations
between ACT and the buyer and had no ability to contest or negotiate any
amount that supposedly was subtracted from the purchase price based upon
the state of the roof on 798 Narrow Run Road. Our Supreme Court has
noted that contracting parties may “be presumed to contemplate the
ordinary and natural incidents and consequences of performance or non-
performance; but they are not supposed to know the condition of each
other's affairs, nor to take into consideration any existing or contemplated
transactions, not communicated nor known, with other persons.” Macchia
v. Megow, 50 A.2d 314, 316 (Pa. 1947).
McLaren was not aware that ACT was negotiating to sell its business
and that the proposed buyer was taking the position that the roof had to be
replaced. McLaren had no opportunity, within the few days accorded to it
between dissemination of the notice and consummation of the sale, to refute
either the cost of a replacement roof or to counter that repairs costing less
than replacement would have solved any problem with the roof. McLaren
should not be legally accountable for the decision of ACT to reduce the
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purchase price to reflect the costs of a roof that ACT acknowledges was not
its responsibility to repair.
Indeed, McLaren eventually did replace the roof six years later, in
2013. McLaren is not liable for mistakes that ACT made during the
negotiations for the sale of the dealership and should not be legally obligated
to pay twice for the cost of a new roof at 798 Narrows Run Road.
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