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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.

____________________________________________


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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