Federal Realty Invest. v. Rao 8, Inc. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
FEDERAL REALTY INVESTMENT : IN THE SUPERIOR COURT OF
TRUST, F/K/A FEDERAL REALTY OP, : PENNSYLVANIA
L.P. :
:
:
v. :
:
:
RAO 8, INC., RADHA M. RAO AND : No. 2156 EDA 2022
MITAL RAO :
:
Appellants :
Appeal from the Order Entered July 25, 2022
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 220302719
BEFORE: KING, J., SULLIVAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY SULLIVAN, J.: FILED JULY 19, 2023
Rao 8, Inc., Radha M. Rao, and Mital Rao (collectively “Appellants”)
appeal from the denial of their petition to open a confessed judgment obtained
by Federal Realty Investment Trust, f/k/a Federal Realty OP, L.P. (hereinafter
“Landlord”). We affirm.
The relevant factual and procedural history underlying this matter is not
in dispute. In 2010, Rao 8, Inc. (hereinafter “Tenant”) assumed a commercial
lease agreement (“Lease”) for premises located in a shopping center in
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* Former Justice specially assigned to the Superior Court.
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Northeast Philadelphia.1 See Lease, 1/27/10; see also Lease Assignment
and Assumption Agreement, 9/23/10. The Lease permitted Tenant to operate
a Dunkin Donuts on the premises for a term of ten years, ending on September
30, 2020. The Lease provided Tenant with an option to extend the Lease term
for an additional five years if Tenant provided Landlord with “Notice” of its
intent to exercise the option “at least twelve (12) months prior to the
expiration of the original Term” (i.e., not later than September 30, 2019).
See Lease, 1/27/10, at Addendum V. The Lease further specified that any
“Notice” was required to be “in writing . . . and served by (i) nationally
recognized overnight courier or (ii) registered or certified mail return receipt
requested.” See id. at § 17.01. The Lease additionally provided that, if
Tenant exercised the option to extend the Lease until 2025, the monthly rent
for the premises would increase incrementally over the five-year option period
according to a specified fee schedule. See id. at Addendum V. However, if
Tenant did not timely exercise the option to extend, Tenant’s right to exercise
the option would expire and the Lease would terminate at the end of the
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1 The original Lease was entered on January 27, 2010, between Landlord and
Sai Sidhdhy Corp. However, on September 23, 2010, the Lease was assigned
to Rao 8, Inc., which assumed all responsibilities under the Lease. In
connection with the assignment, Radha M. Rao and Mital Rao (“Guarantors “)
agreed to assume the guaranty agreement (“Guaranty”) executed in
connection with the Lease. See Guaranty, 1/27/10; see also Lease
Assignment and Assumption Agreement, 9/23/10.
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original term. See id. (providing that “[i]f any such option is not timely
exercised, Tenant’s right to extend shall expire and the Lease shall terminate
at the end of the original Term”). The Lease further provided that Tenant
must vacate the premises upon the expiration of the Lease term (i.e., by
September 30, 2020), and that any holdover occupancy of the premises would
become a tenancy at will subject to a rental rate of one and one-half times
the daily rent in the last year of the Lease term. Id. at §§ 3.01 (providing
that the “Lease shall terminate on the Termination Date without the necessity
of Notice from either Landlord or tenant. Upon the Termination Date, Tenant
shall quit and surrender to Landlord . . . the Leased Premises . . ..”); 3.02
(providing that “[i]f Tenant fails to vacate the Leased Premises on the
Termination Date, . . . [o]ccupancy after the Termination Date (“Holdover
Occupancy”) shall be a tenancy at will, and shall be subject to . . . (“Holdover
Minimum Rent”) [which, for each day that Tenant holds over,] shall equal one
and one-half (1-1/2 times the daily Minimum Rent payable in the last Lease
Year”).2
On September 13, 2019, Tenant sent Landlord, via regular mail, a letter
indicating Tenant’s intent to exercise the option to extend the Lease. Tenant
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2 Pursuant to the Lease, the monthly rent due by Tenant in the last year of
the Lease term was a base cost of $9,300, plus additional associated costs,
for a total of $10,016.65. See Lease, 1/27/10, at § 1.01(F), (G), (H), (I).
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also indicated in the letter that it wished to enter negotiations with Landlord
to extend the Lease term beyond the five-year option period (i.e., for the
period after the extension ended in 2025) because it wanted to undertake
renovations on the premises. Neither Tenant nor Landlord mentioned the
September 2019 letter in subsequent communications, nor did they discuss
any extension of the Lease.3
In January 2020, Landlord sent Tenant a proposal for a lease renewal
commencing on October 1, 2020. The proposal required the acceptance and
signature of Tenant, and expressly stated that the proposal was only valid for
ten business days. Tenant did not accept the proposal for a lease renewal.
On September 30, 2020, the Lease term expired. Although Landlord and
Tenant continued to negotiate in the hopes of entering a lease renewal, no
agreement was ever reached, and no lease renewal was ever executed by the
parties. Tenant did not vacate the premises.4
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3 In their brief, Appellants conflate a lease “extension” with a lease “renewal.”
Whereas the Lease provided Tenant with an option to unilaterally “extend” the
Lease for an additional five-year term subject to a rent schedule specified in
the Lease (provided that the option was exercised by Tenant in the manner
and time-period set forth in the Lease, and that Tenant was not in default), a
Lease “renewal” would require the parties to negotiate and execute an entirely
new lease renewal agreement.
4 Over the course of the ten-year Lease term, Tenant paid its monthly rent
obligations using an automatic payment system whereby Landlord
electronically deducted payments each month from Tenant’s bank account.
(Footnote Continued Next Page)
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In November 2021, Landlord sent Tenant a notice of termination,
indicating that Tenant was in default under the Lease for failure to vacate the
premises, and demanded that Tenant surrender the premises by December
31, 2021. Landlord also requested payment of past due rent and utility costs
and reserved its right to collect holdover rent pursuant to the terms of the
Lease. In December 2021, Landlord sent a second notice of termination and
third notice of termination to Tenant. In response, Tenant paid Landlord past
due rent and utility costs, but failed to pay holdover rent amounts or vacate
the premises.
In March 2022, pursuant to the terms of the Lease and Guaranty,
Landlord filed a complaint in confession of judgment against Tenant and
Guarantors seeking recovery of the premises as well as unpaid holdover rent,
interest, and attorney’s fees in the amount of $101,553.27. See Lease,
1/27/10, at § 16.02(D)(iii); Guaranty, 1/27/10, at W. The Lease and
Guaranty also provided authorization for an attorney to appear in the action
on behalf of Tenant and Guarantors and to confess judgment in favor of
Landlord for these amounts. Id. In accordance with such terms, Tenant and
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After the Lease term expired, Landlord continued to electronically deduct
monthly payments from Tenant’s bank account in the same amount as was
due in the final year of the Lease term.
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Guarantors confessed judgment in ejectment and for damages in the amount
of $101,553.27.
In April 2022, Tenant and Guarantors filed a petition to open the
judgment. Landlord opposed the petition. On July 25, 2022, the trial court
entered an order denying the petition to open and ordering Tenant to vacate
the premises. Tenant and Guarantors filed a motion for reconsideration which
the trial court denied on August 15, 2022. Tenant and Guarantors filed a
timely notice of appeal.5
Appellants raise the following issue for our review: “Whether the trial
court erred in failing to apply the directed verdict standard to Appellants’
petition to open confessed judgment by failing to view all evidence in the light
most favorable to Appellants and reject all adverse inferences of [Landlord]?”
Appellants’ Brief at 6 (unnecessary capitalization omitted).
In reviewing a trial court’s order denying a petition to open a confessed
judgment, we employ the following standard of review: “[a] petition to open
judgment is an appeal to the equitable powers of the court. As such[,] it is
committed to the sound discretion of the hearing court and will not be
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5 The trial court did not order Appellants to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. In lieu of authoring a Rule
1925(a) opinion, the trial court indicated that the reasons for its order denying
Appellants’ petition to open can be found in the trial court’s July 25, 2022
opinion. See Pa.R.A.P. 1925(a)(1).
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disturbed absent a manifest abuse of discretion.” PNC Bank v. Kerr, 802
A.2d 634, 638 (Pa. Super. 2002) (citation omitted).
A court should open a confessed judgment if:
the petitioner promptly presents evidence on a petition to open
which in a jury trial would require that the issues be submitted to
the jury. A petitioner must offer clear, direct, precise and
believable evidence of a meritorious defense, sufficient to raise a
jury question. In determining whether sufficient evidence has
been presented, [courts should] employ the same standard as in
a directed verdict: [the trial court must] view all the evidence in
the light most favorable to the petitioner and accept as true all
evidence and proper inferences therefrom supporting the defense
while . . . reject[ing] adverse allegations of the party obtaining
the judgment.
Stahl Oil Co., Inc. v. Helsel, 860 A.2d 508, 512 (Pa. Super. 2004) (internal
citations omitted).
A lease is a contract and is to be interpreted according to contract
principles. See Hutchison v. Sunbeam Coal Corp., 519 A.2d 385, 389 (Pa.
1986). The intent of the parties is to be ascertained from the document itself
when the terms are clear and unambiguous. Id. at 390. The law will not
imply a different contract than that which the parties have expressly adopted.
Id. at 388.
Appellants contend that the trial court abused its discretion by finding
in favor of Landlord on the questions of whether it received the September
2019 letter, and whether that letter sufficiently provided notice to Landlord
that Tenant intended to exercise its option to extend the Lease. Appellants
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argue that, in resolving these questions, the trial court failed to view the
evidence in the light most favorable to Tenant. Specifically, Appellants
contend that, although the trial court acknowledged that Tenant sent Landlord
the September 2019 letter, the court credited Landlord’s claim that it did not
receive the letter. Appellants claim that Landlord’s conduct in negotiating
issues raised in the September 2019 letter indicate that Landlord actually
received the letter. Appellants maintain that, if the trial court had made
reasonable inferences in favor of Tenant, the court would have inferred from
the ongoing discussions regarding a Lease renewal that a lease extension was
already agreed upon by the parties.
Appellants additionally maintain that, although the September 2019
letter was sent by regular mail and not by a recognized overnight courier, the
manner of service mandated by the Lease “constituted nothing more than a
technical obligation on Tenant, which is insufficient to be considered a material
breach of the [L]ease. . ..” Appellants’ Brief at 16 (unnecessary capitalization
omitted).
Finally, Appellants contend that the trial court should have inferred that
“Tenant was merely a tenant in its extended lease period, and not a ‘holdover
tenant’ that was required to pay holdover tenant rent.” Appellants’ Brief at
13. Appellants point to the fact that, after the Lease term expired in
September 2020, Landlord continued to deduct from Tenant’s bank account
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the amount of monthly rent under the expired Lease, rather than the amount
of holdover rent provided by the Lease. Appellants argue that the trial court
should have inferred from these withdrawals that Landlord did not deem
Tenant to be a holdover tenant. Appellants further claim that, based on
Landlord’s failure to send any default notice to Tenant for more than one year
after the Lease term expired, the trial court should have inferred that Landlord
accepted Tenant’s exercise of its Lease renewal option.
The trial court explained the basis for its denial of the petition to open
the confessed judgment, as follows:
Tenant argues that the confessed judgment should be
opened because it exercised the option to extend the [L]ease term
by letter dated September 13, 2019. While Tenant did send a
letter notifying Landlord of its intent to exercise the option in the
Lease, the notice was not sent as required by the Lease
agreement, that is by nationally recognized overnight courier, or
registered or certified mail return receipt requested. . . . [T]he
evidence demonstrates that the option to extend was never
exercised. Landlord sent Tenant a Lease renewal proposal in
January 2020, which required Tenant’s acceptance. If the option
to [extend] was [properly exercised] . . ., there would have been
no need for Landlord to send Tenant a proposal for a Lease
renewal for the premises with an acceptance requirement.
Similarly, if the option to extend the Lease was properly exercised
. . ., there would have been no need to engage in negotiations for
a new lease. Unfortunately, while the parties tried to reach an
agreement, there were too many challenges[,] as acknowledged
by Tenant on September 24, 2020:
. . . we also appreciate your help in trying to see if a
deal can be made, but we also realize that this is not
an easy task. If you feel that this is a difficult request
to accomplish, please let us know as currently, we
have marked this location for closing by the end of the
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current term. We don’t want to change all our
subsequent plans for closure, as there are many steps
that have to be accomplished and require a great deal
of planning. . . ..
The fact that Tenant continued to pay rent and Landlord
continued to accept rental payments from Tenant after the Lease
agreement terminated does not evidence an extension of the
existing [L]ease or the creation of a new lease. After the Lease
for the premises terminated, Tenant became a holdover tenant by
operation of § 3.02 of the Lease agreement and Landlord was
entitled to collect [holdover] rent.
. . . Tenant, per the Lease agreement, was required to pay
Landlord “daily minimum rent for each day that Tenant holds over
(‘Holdover Minimum Rent’)” in an amount equal to one and one-
half (1-1/2) times the daily Minimum Rent payable in the last
Lease year. Tenant only paid sums equivalent to minimum rent it
paid to Landlord during the Lease term. Tenant did not pay any
Holdover Minimum Rent and therefore is in default.
Trial Court Opinion, 7/25/22, at 6-8 (footnotes and unnecessary capitalization
omitted).
Based on our review, we discern no manifest abuse of discretion by the
trial court in denying the petition to open. Although Appellants petition was
promptly filed, they failed to present the trial court with sufficient evidence to
raise a jury question as to whether Tenant properly exercised its option to
extend the Lease. Appellants conceded that Tenant never sent any notice
purporting to exercise the option to extend which complied with the strict
notice requirements specified in the Lease. Thus, even if the trial court had
inferred that Landlord received the September 2019 letter, the letter was
undisputedly non-compliant with the express notice provisions of the Lease
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and, therefore, insufficient to invoke the option to extend.6 See Hutchison,
519 A.2d at 388 (holding that, where the parties have expressly adopted a
contract, the law will not imply a different one). Accordingly, having failed to
properly exercise the option to extend the Lease, Tenant’s right to exercise its
option to extend expired on October 1, 2019. See Lease, 1/27/10, at
Addendum V.
Moreover, the fact that the trial court credited Tenant’s assertion that it
sent the September 2019 letter does not warrant a corresponding inference
that Landlord received the letter. Indeed, the trial court determined that
Appellants failed to proffer any evidence that the September 2019 letter was
received by Landlord. As aptly noted by the trial court, if Tenant had properly
exercised its option to extend the Lease for a five-year term ending in
September 2025, there would have been no need for Landlord to send Tenant
a proposal in January 2020 for a lease renewal commencing on October 1,
2020. Nor would there have been any reason for Tenant to have engaged in
any negotiations for a proposed lease renewal commencing on October 1,
2020 if, in fact, Tenant had properly exercised its option to extend the Lease
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6Landlord also maintains that, because Tenant was in default at the time it
purportedly sent the September 13, 2019 letter, Tenant was unable to
exercise its option to extend. See Landlord’s Brief at 3-4. However, Landlord
has failed to develop this argument or explain how Tenant was in default in
September 2019.
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to 2025. Nor does the fact that the September 2019 letter expressed Tenant’s
interest in discussing a lease renewal beyond the option period (i.e., after
2025) warrant an inference that the parties’ discussions regarding a lease
renewal commencing on October 1, 2020, indicate that Landlord received the
September 2019 letter.
Further, the fact that Landlord did not immediately issue a default or
termination notice and continued to collect rent from Tenant’s bank account
after the Lease term expired, does not, without more, constitute a renewal of
the Lease. See Clairton Corp. v. Geo-Con, Inc., 635 A.2d 1058, 1060 (Pa.
Super. 1993) (holding that “mere continuance in possession and payment of
rent does not of itself constitute a renewal of the lease with all its provisions”)
(emphasis in original). Indeed, where a tenant remains in possession of realty
after the expiration of the lease term, and during a period in which the tenant
and the landlord are negotiating for a new lease, it is uniformly held that the
landlord’s acceptance of rent for this period is not a manifestation of the
landlord’s consent to an extension or renewal of the lease. See id. (citing 45
A.L.R.2d 841, § 6). Thus, the fact that Landlord did not immediately issue a
default or termination notice7 and continued to collect rent from Tenant after
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7 Moreover, the Lease specifically provided that the Lease term would expire
on the termination date without notice to Tenant. See Lease, 1/27/10, at
§ 3.01 (providing that “[t]his lease shall terminate on the Termination Date
without the necessity of Notice from either Landlord or Tenant”).
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the lease term expired does not evidence either that the Lease was extended
or that the Lease was renewed.
Finally, Appellants concede that no lease renewal was ever executed by
the parties. Therefore, the clear and unambiguous terms of the Lease, which
Tenant assumed, and the Guaranty, which Guarantors assumed, control the
rights and obligations of the respective parties and require that Tenant and
Guarantors pay holdover rent and related costs as set forth in the confessed
judgment. See Hutchison, 519 A.2d at 390. As we discern no manifest
abuse of discretion by the trial court in determining that Appellants failed to
present evidence sufficient to create a jury question on any issue, we affirm
the trial court’s order denying Appellants’ petition to open the confessed
judgment.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/19/2023
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