J-A13013-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TRACY D. KIMMEL AND CHERYL A. IN THE SUPERIOR COURT OF
KIMMEL, HUSBAND AND WIFE, PENNSYLVANIA
Appellee
v.
III TOMATO INC., A CORPORATION,
Appellant No. 1016 WDA 2015
Appeal from the Order Entered May 29, 2015
In the Court of Common Pleas of Lawrence County
Civil Division at No(s): 10878 of 2014
BEFORE: OLSON, STABILE AND MUSMANNO, JJ.:
MEMORANDUM BY OLSON, J.: FILED OCTOBER 18, 2016
Appellant, III Tomato Inc., a corporation, appeals from the order
entered on May 29, 2015, denying its petition to open a confessed judgment
filed by Tracy D. Kimmel and Cheryl Kimmel (the Kimmels) pursuant to a
commercial lease. Upon review, we affirm.
The trial court summarized the facts and procedural history of this
appeal as follows:
The subject of [this appeal] is a confessed judgment that
was entered against [Appellant] by [the Kimmels] pursuant
to a confession of judgment clause contained in a
commercial lease in which [the Kimmels] are the lessors
and [Appellant] the lessee.
On February 28, 2011, [Appellant] and the [Kimmels]
entered into the subject Commercial Lease Agreement
(hereinafter “Lease”). The leased premises are comprised
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of part of a multi-tenant building and parking lot located in
Neshannock Township, Lawrence County, Pennsylvania,
consisting of a storefront containing approximately 3500
square feet, having a street address of 2710 Wilmington
Road, New Castle, Pennsylvania along with a parking lot, to
be used in common with other occupants of the building.
The Lease ha[d] an initial term of five years, beginning
March 1, 2011 and ending February 28, 2016.
[…T]he confessed judgment [was] in the amount of
$52,347.35, consisting of late rent charges for the period of
May 2014 through February 2016, an amount for
reimbursement for air conditioning repairs, and attorneys’
fees. [The] Kimmels’ notice of default alleged that
[Appellant] was in default for (1) failure to obtain insurance,
and provide proof of insurance to [the] Kimmels, (2)
installing an unsafe and hazardous brick oven inconsistent
with the requirements of applicable law, (3) failure to keep
the premises in good condition and repair, including the roof
and air conditioning unit, (5) failure to maintain and repair
the roof and air conditioning unit, (6) failure to make timely
payments of rent, and (7) failure to promptly pay expenses
and repair of the air conditioning unit.
* * *
In support of its [p]etition to [o]pen, [Appellant] allege[d],
inter alia, that [the] Kimmels themselves breached the
Lease by failing to perform their obligations under the Lease
to maintain the common parking lot area serving the leased
premises[,] by not repairing potholes and a light pole,
refusing to repair the leaking roof on the building [that
housed] the leased premises, and refusing to maintain and
repair the air conditioning unit servicing the leased
premises[. Appellant also alleged] that as a result of [the]
Kimmels’ breaches of the Lease, [Appellant] suffered
damages to its leasehold improvements in an amount
greater than $5,000.00, lost revenues, increased cost,
overall reduction in the value of its business, and losses in
excess of $50,000.00. For a time in 2013, [Appellant] paid
the rent into escrow in protest of [the] Kimmels’ failure to
address [Appellant’s] complaints. The dispute was resolved
and [Appellant] resumed making payments of rent directly
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to [the] Kimmels. However, [Appellant] again began
escrowing its rental payments beginning in May 2014.
[The] Kimmels’ notice of default was sent to [Appellant] by
letter dated August 8, 2014, asserting that [Appellant] was
in default under the Lease for the reasons described above.
On August 27, 2014, [the] Kimmels filed their [c]omplaint
for [c]onfession of [j]udgment for [m]oney, claiming, inter
alia, rent past due as well as accelerated rent due in the
future during the remainder of the Lease’s term. On
September 26, 2014, [Appellant] filed its [p]etition to
[s]trike and/or [o]pen [j]udgment, and execution on [the]
Kimmels’ confessed judgment was stayed pending
resolution of [Appellant’s] [p]etition. [Appellant] continued
to pay the rental [sum] into escrow, but in October 2014,
vacated the leased premises, and ceased paying rent. [On
May 29, 2015, the trial court filed an order and
accompanying memorandum denying Appellant relief.]
Trial Court Opinion, 5/29/2015, at 1-3 (record citations and footnote
omitted). This timely appeal resulted.1
On appeal, Appellant presents the following issue for our review:
1. Did the trial court err in denying Appellant[’]s petition to
open judgment?2
____________________________________________
1
Appellant filed a notice of appeal on June 29, 2015. On July 9, 2015, the
trial court directed Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely on
July 30, 2015. The trial court relied upon its earlier memorandum issued on
May 29, 2015 in support of its denial of relief.
2
We note that Appellant filed a petition to strike/and or open judgment. In
its Rule 1925(b) statement, Appellant challenged the trial court’s refusal to
strike the judgment. On appeal, however, Appellant does not challenge the
trial court’s decision on the petition to strike judgment. Accordingly,
Appellant has waived this issue for failure to develop an argument. See
Pa.R.A.P. 2119(b); Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa.
2009) (“[W]here an appellate brief fails to provide any discussion of a claim
(Footnote Continued Next Page)
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Appellant’s Brief at 4 (superfluous capitalization omitted).
Appellant contends the trial court erred by denying its petition to open
judgment because it provided meritorious defenses to the confessed
judgment. Appellant argues the trial court erred by denying its petition to
open judgment when the trial court “concluded that [Appellant] did not
allege, nor did counsel argue, constructive eviction or a breach of quiet
enjoyment.” Id. at 9. Appellant contends that although it did not “explicitly
say the words ‘constructive eviction,’ Appellant more than adequately argued
that it was entitled to withhold rent as a result of [the Kimmels’] breaches –
i.e. that the Kimmels’ actions resulted in a constructive eviction.” Id. at 9-
10. More specifically, Appellant argues it “was only required to state that
rent was not owed due to the Kimmels’ breach of the Lease.” Id. at 10.
Next, Appellant asserts the trial court erred by treating its loss of business
claims, in excess of the judgment amount, as set-offs “because they arose
as direct result of the Kimmels’ breach of the Lease.” Id. at 12. As a result,
Appellant maintains that its claims “must be characterized as a failure of
consideration.” Id. Finally, Appellant argues “[t]he [t]rial [c]ourt
erroneously determined that [Appellant] was responsible for the repair and
replacement of the air conditioning” system. Id. at 13. At a minimum,
Appellant contends, “the Lease is ambiguous” because it states that
_______________________
(Footnote Continued)
with citation to relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived.”).
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Appellant “shall be responsible for all maintenance and repairs” but provides
that the Kimmels “shall furnish the existing equipment for maintaining
heating and air conditioning for the leased premises.” Id.
Our standard of review is well settled:
We review the order denying Appellant's petition to open
the confessed judgment for an abuse of discretion. Judicial
discretion requires action in conformity with law on facts
and circumstances before the trial court after hearing and
consideration. Consequently, the court abuses its discretion
if, in resolving the issue for decision, it misapplies the law or
exercises its discretion in a manner lacking reason.
The trial court may open a confessed judgment if the
petitioner (1) acts promptly, (2) alleges a meritorious
defense, and (3) can produce sufficient evidence to require
submission of the case to a jury. Generally, the court will
dispose of the rule on petition and answer, along with other
discovery and admissions.
When determining if the petitioner acted promptly, the
courts are not bound by an inflexible time frame. The crucial
factor in determining whether a petition is timely is not the
specific time which has elapsed but rather the
reasonableness of the explanation given for delay.
A meritorious defense is one upon which relief could be
afforded if proven at trial. Pa.R.Civ.P. 2959(e) sets forth the
standard by which a court determines whether a moving
party has properly averred a meritorious defense. If
evidence is produced which in a jury trial would require the
issues to be submitted to the jury the court shall open the
judgment. Furthermore, the court must view the evidence
presented in the light most favorable to the moving party,
while rejecting contrary evidence of the non-moving party.
The petitioner need not produce evidence proving that if the
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judgment is opened, the petitioner will prevail.[3] Moreover,
we must accept as true the petitioner's evidence and all
reasonable and proper inferences flowing therefrom.
In other words, a judgment of confession will be opened if a
petitioner seeking relief therefrom produces evidence which
in a jury trial would require issues to be submitted to a jury.
The standard of sufficiency here is similar to the standard
for a directed verdict, in that we must view the facts most
favorably to the moving party, we must accept as true all
the evidence and proper inferences in support of the
defense raised, and we must reject all adverse allegations.
The trial court can make this decision as a matter of law
when the defense presented is without adequate substance,
because contract construction and interpretation is
generally a question of law for the court to decide.
A contract's language is unambiguous if it can be
determined without any other guide than knowledge of the
simple facts on which its meaning depends. When the
contract is clear and unambiguous, the meaning of the
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3
On presenting a meritorious defense, we have further clarified:
The [defendant] does not have to prove every element of its
defense; however, it must set forth the defense in precise,
specific and clear terms.
Merely asserting in a petition to open default judgment that
one has a meritorious defense is insufficient. The moving
party must set forth its meritorious defense. If any one of
the alleged defenses would provide relief from liability, the
moving party will have pled a meritorious defense and will
have satisfied the third requirement to open the default
judgment.
Seeger v. First Union Nat. Bank, 836 A.2d 163, 166 (Pa. Super. 2003);
see also Ecumenical Enterprises, Inc. v. NADCO Const., Inc., 385 A.2d
392, 395 (Pa. Super. 1978) (“It is clear that the petition to open must set
forth its defenses in precise, specific, clear and unmistaken terms and must
set forth the facts on which the defense is based.”) (internal citation and
quotations omitted).
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contract is ascertained from the writing alone. A court must
not distort the meaning of the language or resort to a
strained contrivance to find an ambiguity. Additionally, a
mere disagreement between the parties regarding the
proper construction of the language does not render the
contract ambiguous. In the context of a petition to open a
confessed judgment, the function of our Court is not to
weigh the evidence in support of the defense, but merely to
determine whether there was sufficient evidence to go to
the jury.
Whether a judge has correctly interpreted a writing and
properly determined the legal duties which arise therefrom
is a question of law for the appellate court. The legal effect
or enforceability of a contract provision presents a question
of law accorded full appellate review and is not limited to an
abuse of discretion standard. Likewise, if the matter under
review involves the interpretation of the Pennsylvania Rules
of Civil Procedure, we have before us a question of law,
where our standard of review is de novo and our scope of
review is plenary.
Neducsin v. Caplan, 121 A.3d 498, 506–507 (Pa. Super. 2015) (internal
citations and quotations omitted).
In this case, the lease provided, inter alia:
* * *
5. PARKING. [Appellant’s] customers, invitees, and
licensees shall have the right, during the term of this Lease,
to use in common with [the Kimmels’] other tenants, their
agents, licensees and other tenants, the parking lot owned
by [the Kimmels] and located adjacent to the Leased
Premises. […] [Appellant] shall not be responsible for any
repairs required of the subject parking area.
* * *
12. INDEMNITY AND RELEASE. […] [Appellant] agrees
that the Leased Premises and appurtenances are delivered
in good repair and in a safe and tenable condition and
accepted in an “AS IS” condition. Without limiting the
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foregoing, [the Kimmels] shall not be responsible or in any
manner liable to [Appellant] or any other person
whomsoever for any loss, damage or injury occasioned by
rain, snow or the elements[.]
13. CONDITION OF PREMISES. It shall be the sole
responsibility of [Appellant] to keep the Leased Premises
and every part thereof in good condition and repair and in a
clean, safe and sanitary condition and, upon the expiration
or sooner termination of this lease, or any extension
thereof, to promptly surrender the Leased Premises back to
the [Kimmels] in as good condition as received by
[Appellant] except for reasonable wear and tear. All
damages resulting from the installation and removal of any
property by [Appellant] shall be fully repaired by [Appellant]
prior to the surrender of possession.
14. [APPELLANT’S] RESPONSIBILITIES. [Appellant]
shall be responsible for all maintenance and repairs, except
for those for which the [Kimmels] [are] responsible,
including but not limited to, maintenance and repair of plate
glass windows, glass doors and frames thereof.
* * *
15. [THE KIMMELS’] RESPONSIBILITIES.
A. [The Kimmels] shall maintain in good condition
the exterior of the building, the roof, and structural
members of the building of which the Leased
Premises form a part, and any water, gas, or
electrical lines or conduits permanently imbedded in
walls or floors.
* * *
B. [The Kimmels] shall furnish the existing
equipment for maintaining heating and air
conditioning for the Leased Premises.
* * *
D. The [Kimmels] at all times shall be solely
responsible for and shall keep and maintain the
sidewalks, parking lot, driveway and pavement of
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the Leased Premises in a safe and clean condition
and free from all hazards, ice and snow. [The
Kimmels] shall be responsible for all repairs to and
replacement of all sidewalks, driveways and parking
lots located on the Leased Premises.
* * *
21. SURRENDER. No act or conduct of [the Kimmels],
whether consisting of the acceptance of keys to the Leased
Premises, or otherwise, shall be deemed to be or constitute
an acceptance or the surrender of the Leased Premises by
[Appellant] prior to the expiration of the term hereof and
such acceptance by [the Kimmels] of surrender by
[Appellant] shall only occur and must be evidenced by a
written acknowledgment of acceptance of surrender signed
by [the Kimmels].
* * *
27. RESPONSIBILITIES OF [THE KIMMELS].
* * *
D. Damage for Interruption of Use.
[The Kimmels] shall not be liable for any damage,
compensation or claim by reason of inconvenience or
annoyance arising from the necessity of repairing
any portion the building, the interruption in the use
of the Leased Premises, or the termination of this
lease by reason of damage or for any reason
whatsoever.
* * *
F. Representation of Condition of Leased
Premises
Except as set forth herein, the [Kimmels] have not
made and do not make any warranties and/or
representations, express or implied, as to the
physical condition, habitability, layout, footage,
income, expense, operation, compliance with moving
and building laws, or other matter or thing
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whatsoever affecting or in any manner related to the
Leased Premises and this lease. [Appellant] accepts
the premises in an “AS IS” condition. The [Kimmels]
have let the Leased Premises in [its] present
condition and without any warranties or
representations, express or implied, on the part of
the [Kimmels], their employees, servants, and/or
agents. It is understood and agreed that [the
Kimmels] are under no duty to make alterations or
repairs at the time of letting or at any time
thereafter.
Commercial Lease Agreement, 2/28/2011, at 2-12.
In support of its petition to open, Appellant averred, in pertinent part:
* * *
6. It was not [Appellant] but the [Kimmels] that
breached the lease agreement attached to the
complaint.
7. Paragraph 5 of said lease agreement states that the
[Kimmels] will be responsible for the repair of the
parking lot at the premises.
8. [Appellant] had informed [the Kimmels] that as a
result of the severe weather during the past winter
(2013-2014), the parking lot had developed several
deep and dangerous potholes.
9. [The Kimmels] on several occasions had stated that
they would repair the damage to the parking lot but
ha[d] continually refused to make the necessary
repairs.
10. The roof of said premises leased to [Appellant] has
been leaking for more than a year. The [Kimmels]
have refused to repair the leak in the roof and to
date [Appellant’s] leasehold improvements have
been damaged in an amount greater than $5,000.00.
11. An outside light pole in the parking lot of the
premises was struck by a vehicle and had fallen to
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the ground in 2013. To date the light pole and lamp
have not been replaced causing the parking lot to be
unsafe and poorly lit at night.
12. In May 2014, the roof top air[-]conditioning unit
stopped working.
13. The lease agreement requires the [Kimmels] to
maintain the air conditioning units that were in place
at the time the lease agreement was executed.
14. This roof top unit was in place at the time of the
execution of the lease agreement and the [Kimmels]
have failed to repair, fix or replace the unit.
15. [Appellant’s] business income [h]as decreased
significantly as a result of [the Kimmels’] breach of
the lease agreement.
16. As a result of [the Kimmels’] breach of the lease
agreement, [Appellant] has lost revenues, increased
its cost and seen an overhaul [sic] reduction in the
value of its business.
17. [Appellant’s] business has suffered losses in excess
of $50,000.00 as a result of [the Kimmels’] breach of
the lease agreement.
18. As a result of [the Kimmels’] breach of the lease
agreement, [Appellant] does not owe the [Kimmels]
the sums set forth in the [c]onfession of [j]udgment
for [m]oney filed in this matter.
* * *
Appellant’s Petition to Strike and/or Open Judgment, 9/26/2014, at 2-3
(unpaginated).
Initially, we will examine Appellant’s claims pertaining to the
air-conditioning system. The Kimmels agreed to “furnish the existing
equipment for maintaining heating and air conditioning for the Leased
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Premises.” Commercial Lease Agreement, 2/28/2011, at 6, ¶ 15B.
Appellant agreed that the property “and appurtenances [we]re delivered in
good repair and in a safe and tenable condition and accepted in an ‘AS IS’
condition.” Id. at 4, ¶ 12. The Kimmels had no duty “to make alterations or
repairs at the time of letting or at any time thereafter.” Id. at 12, ¶ 27F.
Appellant agreed to be responsible for all maintenance and repairs to the
premises, unless expressly delineated to the Kimmels under a specific
provision of the lease. Id. at 5, ¶ 14. Appellant has not pointed to, and our
review of the lease has not revealed, a specific provision of the lease that
holds the Kimmels responsible for air conditioner maintenance.
Based upon the foregoing, we discern no ambiguity in the lease.
Initially, we reject Appellant’s proposition that the use of the word
“maintain” in paragraph 15B of the lease suggests the Kimmels are
responsible for maintaining the heating and air conditioning equipment. The
plain contractual language states that the Kimmels “shall furnish the existing
equipment for maintaining heating and air conditioning for the Leased
Premises.” Commercial Lease Agreement, 2/28/2011, at 6. The Kimmels
were only required to “furnish” the “existing” equipment. The word
“maintaining” is in reference to the equipment, not the Kimmels. The plain
meaning of the lease provided that the “existing equipment” was “for
maintaining” or providing temperature control. The provision is wholly
silent regarding repairs. It simply does not state that the Kimmels shall
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furnish the existing equipment and bear responsibility for maintaining that
equipment. Moreover, Appellant agreed that at the time of the contract, in
February 2011, the equipment was in good repair and accepted the premises
“as is.” Appellant averred, in its petition to open judgment, the air
conditioning unit stopped working in May 2014. However, under the lease,
the Kimmels simply had no duty to make repairs more than three years
later. Thus, Appellant failed to provide a meritorious defense regarding the
air conditioning system that supported its petition to open the confessed
judgment in this regard.
Next, we examine Appellant’s claims regarding repairs to the roof and
parking lot. There is no dispute that pursuant to paragraph 15(a) and (d),
the Kimmels were responsible for those repairs. Commercial Lease
Agreement, 2/28/2011, at 5-6.
Our Pennsylvania Supreme Court has stated, “[n]othing is better
settled in Pennsylvania than that a tenant for years cannot relieve himself
from his liability under his covenant to pay rent by vacating the demised
premises during the term, and sending the key to his landlord.”
Stonehedge Square Ltd. Partnership v. Movie Merchants, Inc., 715
A.2d 1082, 1084 (Pa. 1998). Our Supreme Court determined, “where the
landlord materially breaches express covenants to repair or to maintain the
leasehold in a habitable state[,]” it is analogous to a breach of the implied
warranty of habitability. Pugh v. Holmes, 405 A.2d 897, 907 (Pa. 1979).
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“The covenants and warranties in the lease are mutually dependent, the
tenant’s obligation to pay rent and the landlord’s obligation imposed by the
implied warranty of habitability to provide and maintain habitable premises
are, therefore, dependent and a material breach of one of these obligations
will relieve the obligation of the other so long as the breach continues.”
Pawco, Inc. v. Bergman Knitting Mills, Inc., 424 A.2d 891, 894 (Pa.
Super. 1980) (en banc), citing Pugh, 405 A.2d at 903.
In cases involving a breach of habitability, a tenant may: (1)
surrender possession of the premises; (2) remain in possession subject to
rent abatement; or (3) repair the defects and deduct the cost of repairs from
the rent. Echeverria v. Holley, 2016 WL 3268695, at *4 (Pa. Super.
2016), citing Pugh, 405 A.2d at 907–908. To relieve the tenant from
further liability under the lease, the burden is on the tenant to show by clear
and convincing evidence that the landlord accepted the tenant's surrender.
Stonehedge Square Ltd. Partnership v. Movie Merchants, Inc., 685
A.2d 1019, 1023 (Pa. Super. 1996), affirmed, 715 A.2d 1082 (Pa. 1998).
Moreover, unlike a mutual surrender, this Court recently examined the
defense of constructive eviction, stating:
constructive eviction is one species of a violation of the
lessee's right to quiet enjoyment. While one might gain
relief for such a violation without being constructively
evicted, one cannot be constructively evicted absent such a
violation. In effect, constructive eviction occurs when a
lessor's violation of a lessee's entitlement to quiet
enjoyment is so extreme as to interfere seriously with the
lessee's ability to use the leasehold as it was intended to be
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used, and the violation prompts the tenant to abandon the
property within a reasonable amount of time.
Sears, Roebuck & Co. v. 69th Street Retail Mall, L.P., 126 A.3d 959,
973 (Pa. Super. 2015).
In this case, upon review, we conclude Appellant did not plead a
defense of constructive eviction in its petition to open. Appellant alleged
that its business income “decreased significantly” and it “lost revenues.” It
further claimed its costs increased and its business value was reduced “in
excess of $50,000.00” as a result of the Kimmels’ purported breach of the
lease agreement. Appellant’s Petition to Strike and/or Open Judgment,
9/26/2014, at 2-3 (unpaginated). Appellant concedes it never specifically
alleged constructive eviction, but argues the aforementioned allegations
were sufficient to assert that no rent was due because the Kimmels
breached the lease. Appellant’ Brief at 9-10. However, Appellant was
required to set forth its defenses in precise, specific, clear and unmistakable
terms. Ecumenical Enterprises, Inc., 385 A.2d at 395. Appellant did not
aver that the damages were so extreme as to interfere seriously with its
ability to use the leasehold as it was intended to be used or that the
violation prompted Appellant to abandon the property. Sears, Roebuck &
Co., 126 A.3d at 973. While Appellant now argues the maintenance
problems were sufficient to constitute a complete breach that justified
terminating the lease, we simply cannot address issues raised for the first
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time on appeal. See Pa.R.A.P. 302(a). Thus, we conclude Appellant did not
sufficiently set forth a constructive eviction defense in its petition to open.
Moreover, upon review of the record, Appellant did not employ any of
the three options available to address a breach of habitability. Under
paragraph 21 of the lease, if Appellant intended to surrender the property, it
was required to obtain “written acknowledgement of surrender signed by”
the Kimmels. Commercial Lease Agreement, 2/28/2011, at 9. The burden is
on Appellant to show by clear and convincing evidence that the landlord
accepted a tenant's surrender. Stonehedge Square Ltd. Partnership, 685
A.2d at 1023. Here, there is no evidence of surrender. Appellant may have
unilaterally and voluntarily abandoned the premises, but it was not relieved
of its obligation to continue paying rent under the lease. Further, Appellant
did not aver in its petition to open that it remained in possession of the
leasehold subject to rent abatement or that it repaired the defects and
deducted the cost of repairs from the rent.
Finally, we reject Appellant’s contention that the trial court erred by
characterizing its claims as set-offs or unliquidated counterclaims. For its
proposition, Appellant relies on our Supreme Court’s 1963 decision in
Nadolny v. Scoratow, 195 A.2d 87 (Pa. 1963). See Appellant’s Brief at
11-12. A brief recitation of that case reveals distinctions. In Nadolny,
Nadolny leased a two-story building to Scoratow specifically for the storage
of pre-cast stone. When the second floor buckled under the weight of the
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stored material, Scoratow abandoned the property. Nadolny confessed
judgment under the lease for unpaid rent. Scoratow subsequently filed a
petition to open the judgment arguing the damage to the premises was the
result of Nadolny's misrepresentation that the second floor could support the
weight of the pre-cast stone. Scoratow also argued that such
misrepresentation entitled him to rescind the lease and avoid liability for the
remaining unpaid rent. The Supreme Court agreed, noting that if the
alleged misrepresentation was proven to a jury, the agreement would be
disaffirmed. Stated differently, the property owner’s misrepresentation of
the premises fraudulently led to the lease formation and amounted to a lack
of consideration.4 Accordingly, if a jury determined as such, the lease would
be invalidated in its entirety. Thus, the Nadolny Court determined that
opening the confessed judgment in that case was proper.
By contrast, in this case, there was a five-year commercial lease.
Both parties largely performed under the lease for the better part of four
years (i.e., occupancy, rental payments, receipt of rent, and some repairs).
Hence, it is difficult to say there was a complete failure of consideration and,
therefore, no contract in place. Appellant does not allege that the Kimmels
made misrepresentations requiring a complete invalidation of the lease,
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4
Our Rules of Civil Procedure offer additional support for our conclusion.
Specifically, Pa.R.C.P. 1030 provides that “fraud” and “failure of
consideration” constitute affirmative defenses; whereas, “set-offs” arising
from breach of contract are not considered as such. See Pa.R.C.P. 1030(a).
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outright barring their right to recover the unpaid rent. Instead, Appellant
contends the Kimmels’ breached the lease. Appellant’s Brief at 12. Such
assertion amounts to a counterclaim, which is not proper in a petition to
open judgment.
Based upon all of the foregoing, we conclude Appellant did not allege a
meritorious defense requiring submission to a jury. Accordingly, the trial
court properly denied Appellant’s petition to open.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/2016
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