J-A23039-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ALLURE HAIR DESIGNS AND MINI SPA,

INC.

IN THE SUPERIOR COURT

OF PENNSYLVANIA

APPELLEES

v.

JOHN S. GEORGE, JR. AND JAAM REAL

ESTATE HOLDINGS, LLC, APPELLANTS No. 588 WDA 2018

Appeal from the Order April 18, 2018

In the Court of Common Pleas of Allegheny County

Civil Division at No: GD16-005896

------------------------------------------------------------------------------------- ALLURE HAIR DESIGNS AND MINI SPA,

INC.

IN THE SUPERIOR COURT

OF PENNSYLVANIA

APPELLANTS

v.

JOHN S. GEORGE, JR. AND JAAM REAL

ESTATE HOLDINGS, LLC, APPELLEES

No. 629 WDA 2018

Appeal from the Order Entered April 18, 2018

In the Court of Common Pleas of Allegheny County

Civil Division at No: GD16-005896

BEFORE: BOWES, SHOGAN, and STABILE, J. MEMORANDUM BY STABILE, J.: FILED JANUARY 21, 2021
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These consolidated appeals arise from an action by a hair salon, Allure

Hair Designs and Mini Spa, Inc. (“Tenant”), against its landlord, John S.

George, Jr. (“George”), and a limited liability company owned by George,

Jaam Real Estate Holdings, LLC (“Jaam”),1for breach of a commercial lease

and fraud. Tenant alleged that Landlord breached a noncompetition covenant2

in the lease by renting space to a competing hair salon on property

approximately fifty yards away from Tenant’s premises. The trial court, sitting

without a jury, entered a decision in favor of Tenant in the amount of

$20,392.40 on its claim against Landlord for breach of the lease. The court

ruled in favor of Landlord on Tenant’s claim for fraud. We affirm in part,

reverse in part and remand for further proceedings. The record reflects that on August 6, 2004, George leased Tenant 1,309

square feet within a shopping center located at 171 Wexford-Bayne Road in

Wexford, Pennsylvania (“Tenant’s building”). Specifically, Tenant leased

those certain premises designated on the attached Exhibit “A” as

Tenant Suite No. 1 containing one thousand three hundred nine

(1,309) square feet (“Leased Square Feet”) of space (hereinafter

the “Premises”), within a commercial building located at 171

Wexford-Bayne Road (hereinafter referred to as “Building”) in

Wexford, Pennsylvania. The premises represent 21.4[%] of the

total occupiable square footage of the Building.

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1 We will refer to George and Jaam collectively as “Landlord.”

2 Pennsylvania courts frequently refer to noncompetition covenants as

“restrictive covenants.” See, e.g., Pocono Summit Realty, LLC v. Ahmad

Amer, LLC, 52 A.3d 261, 269-71 (Pa. Super. 2012). We will use the term

“noncompetition covenant” in this memorandum.
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Lease, 8/6/04, at 1. The lease included the following noncompetition

covenant:

Lessor shall not lease, rent or permit any tenant or occupant of

the Premises, other than the lessee, to conduct any activity on the

premises which consists of skin care, pedicure, manicure, or hair

design/styling services. Lease, § 33. The lease also included the following provision entitled “Common

Areas”:

Landlord agrees to cause to be provided, operated, managed and

maintained during the term of this Lease, certain common areas

in or adjacent to the Building including parking areas, sidewalks,

steps and/or other walkways. The manner in which such areas

and facilities shall be maintained and operated and the

expenditures therefore shall be at the sole discretion of the

Landlord, and the use of such areas and facilities shall be subject

to such reasonable regulations as Landlord shall make from time

to time.

Landlord hereby grants to Tenant, its employees, agents,

customers and invitees, the nonexclusive right to use the parking

and other common areas as from time to time constituted, such

use to be in common with Landlord, Landlord’s licensees and all

other tenants and occupants of the building, its and their

employees, agents, customers and invitees, except when the

common areas are being repaired, altered or constructed. The

Landlord will maintain said[] common areas in conjunction with

the reasonable business operations of the Tenant and make efforts

to maintain said common areas in a commercially reasonable

manner . . . .

Each calendar year quarter, Tenant will pay a pro-rata portion of

any common area expenses related to cleaning, lighting, snow

removal, landscaping, grass and tree cutting or trimming, and

striping of parking spaces. Tenant’s payment of such expenses

will be calculated based on the percentage that the Premises

represent of the total occupied square footage of the Building.

Id. at § 6.
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The lease was for a five-year term expiring on October 31, 2009, and it

gave Tenant options to renew the lease for additional five-year periods after

expiration of the initial term. Tenant declined to exercise its options to renew, electing instead to enter one-year lease extensions for each of the seven years

following the initial term. There is no evidence that the parties amended the

terms of the lease.

In 2010, Jaam acquired property at 181 Wexford-Bayne Road, adjacent

to Tenant’s building. Jaam constructed a building at 181 Wexford-Bayne Road

approximately fifty yards from Tenant’s building (“the Adjacent Building”). Trial Transcript, at 32, 238. The two buildings are virtually identical in

appearance, id., and share the same parking lot and curb cut. Id. at 32, 37.

In February 2015, Landlord consolidated the 171 and 181 Wexford-Bayne

Road properties into a single tax parcel. Id. at 237-38.

On September 21, 2015, Tenant and George executed a one-year

extension for Tenant’s salon covering the period November 1, 2015 through

October 31, 2016. Prior to this extension, Tenant’s owners confronted George

about rumors of a new salon locating to the Adjacent Building. George denied

entering into a lease with a competing salon but omitted the fact that he was

negotiating with another salon, Eleven Eleven Pennsylvania, LLC, d/b/a Sola

Salon Studios (“Sola”). Tenant’s owner, Tami McClearly, testified that she did

not believe George’s denial. Id. at 44-45.
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On November 10, 2015, Jaam entered into a ten-year lease with Sola

for space within the Adjacent Building. Sola made substantial tenant

improvements totaling $663,000.00 in the Adjacent Building and is paying

annual rent of $135,450.00 to Jaam. Prior to Sola’s lease, Tenant paid common area expenses for 21.4% of

its own building based on the formula in Tenant’s lease (the percentage that

the Premises represent of the total occupied square footage of Tenant’s

building). Id. at 117. After Sola’s lease began, George billed Tenant for

7.21% of common area expenses for both buildings, including lighting, lawn

maintenance, snow removal, garbage pickup, window cleaning and pest

control. Id. at 36-37, 117, 238-40. Despite the drop in percentage, the

common area charges increased, and Tenant paid the increased charges. Id.

at 117-18. George admitted that he billed Tenant common area expenses for

“both 171 and 181,” that is, both Tenant’s building and the Adjacent Building.

Id. at 238-39.

In early 2016, when eight months remained on the lease, Tenant

learned of the lease with Sola and asked to be released from its own lease in

order to rent other space in the area. George refused.

On April 5, 2016, Tenant filed a complaint against Landlord alleging

breach of contract, injunctive relief, and breach of the Unfair Trade Practices

and Consumer Protection Law (“UTPCPL”), 73 P.S. §§ 201-1—201-9.3. Several days later, Tenant filed a motion for emergency injunctive relief.
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Landlord filed preliminary objections to the complaint and a response to the

emergency motion for injunctive relief. On April 14, 2016, George notified

Tenant that he was terminating the lease at the expiration of the current

extension on October 31, 2016. He indicated he would consider negotiating a

new lease with Tenant so long as it did not contain a noncompetition clause.

On May 2, 2016, following a hearing on Tenant’s emergency motion, the

court issued orders denying emergency injunctive relief and dismissing the

counts in the complaint for injunctive relief and breach of the UTPCPL. The

court permitted Tenant to pursue its claim for breach of contract. On January

5, 2017, Tenant amended its complaint to include a count for fraud.

In its contract claim, Tenant asserted that Landlord breached the

noncompetition covenant in its lease by entering into a lease with Sola for

space in the Adjacent Building. In its fraud claim, Tenant alleged that George

fraudulently induced Tenant to renew its lease by failing to divulge that he

was negotiating a lease with Sola. On February 2, 2018, following a non-jury trial, the trial court entered

a memorandum and order ruling in favor of Tenant on its breach of contract

claim in the amount of $20,392.40, the final eight months of rent that Tenant

paid following Landlord’s breach. The court denied Tenant’s claims for

relocation costs and lost profits, and it did not award damages on Tenant’s

fraud claim despite observing that George “chose . . . to lie to [Tenant] about,
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or at least conceal, the fact that he was leasing to another hair salon.”

Memorandum, 2/2/18, at 6.

Tenant filed post-trial motions in which it complained that the trial court

failed to award various items of damage on the contract claim and failed to

decide the fraud claim. Landlord filed post-trial motions seeking judgment

n.o.v. on the breach of contract claim. The trial court denied all post-trial

motions, and the parties cross-appealed to this Court. Tenant subsequently

perfected all appeals by filing a praecipe for entry of judgment. On April 11,

2019, we remanded this matter to the trial court for preparation of a Pa.R.A.P.

1925(a) opinion. On May 1, 2019, without ordering the parties to file

statements of matters complained of on appeal, the trial court filed an opinion

explaining its decision. Tenant raises the following issues in its appeal at 629 WDA 2018:

I. Whether the trial court erred in denying [Tenant]’s Motion for

Post-Trial Relief?

II. Whether the trial court erred [] as a matter of law in denying

the issues raised by [Tenant]’s Motion for Post-Trial Relief as

follows:

a. The Court did not issue a ruling on the claim of Fraudulent

Misrepresentation, which was added by way of Amended

Complaint on January 5, 2017, and properly before the Court,

especially as the Court found “[Appellant] George also chose to

either lie to [Tenant] about, or at least conceal, the fact that

he was leasing to another hair salon.” b. Additionally, the Court erred in failing to analyze the

damages through Restatement Second of Property; Landlord &

Tenant 7.2 as prescribed in Teodori v. Werner, 415 A.2d 31,

34 (Pa. 1980).
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c. By failing to find that [Tenant], as tenant, had the first right

of refusal under the lease and [was] therefore entitled to

remain on the property indefinitely and that the Landlord’s

termination of the lease was impermissible under Section 2 of

the Lease.

III. Whether the Court abused its discretion in ruling against the

weight of the evidence in the following manners:

a. By failing to award lost profits to [Tenant] under either of

the following two arguments: 1.) the employees left [Tenant]

as a direct consequence of the Defendants’ actions in leasing

the property to a competitor; and/or 2.) [Tenant] was not able

to fill open positions in a timely manner as a result of

Defendant[s] leasing the property to a competitor, leading to

significant lost profits.

b. By failing to rule in favor of the weight of the clear evidence

that [Tenant] was unable to fill empty employment positions

for over six months, thereby causing lost profits, as a direct

result of the Defendants’ action.

c. By failing to consider the lost profits as introduced into

evidence at trial by Judy Campbell between the 2016 and 2015

tax returns in the amount of $60,919.00.

d. By failing to award moving and construction costs in light of

evidence presented at trial in the amount of $40,960.20 and

the Restatement Second of Property; Landlord & Tenant 10.2

in light of the evidence presented.

e. The Court’s determination that text messages between

[Tenant] and a prospective employee were inadmissible

hearsay and not properly authenticated over [Tenant]’s

objections that it was admissible evidence as provided under

Commonwealth v. Mosley, 114 A.3d 1072 (Pa. Super.

2015); see also Commonwealth v. Koch, 106 A.3d 705 (Pa.

2014). Tamara McCleary was not permitted to testify as to her

own text messages which she sent and received. This evidence

would have further established [Tenant]’s inability to fill critical

positions, i.e., further evidence of lost profits[,] as profits are

generated by having stylists in the salon.
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Tenant’s Brief at 4-7.

Landlord raises the following issues in their cross-appeal at 588 WDA

2018:

I. Whether the court erred as a matter of law in finding that a

lease in after-acquired property was a breach of the non- competition restrictions.

II. Whether Landlord [is] entitled to judgment as a matter of law

since the trial court held the damages claimed were not proven or

proximately caused by the actions complained of.

III. Whether the court erred as a matter of law by basing its

decision [] on its belief that Landlord “made a poor business

decision in holding [Tenant] to the remaining months of its lease” and therefore awarding rent abatement.

Landlord’s Brief at 4. The issues raised in the briefs fall into four categories:

whether the trial court (1) properly held Landlord liable to Tenant for breach

of contract; (2) properly awarded the final eight months of rent to Tenant on

its contract claim; (3) properly denied Tenant relocation costs and lost profits

on its contract claim; and (4) properly denied Tenant’s fraud claim.

We begin by addressing Landlord’s argument that the trial court erred

by ruling in Tenant’s favor on its breach of contract claim. In effect, Landlord

argues that the trial court erred by denying Landlord’s post-trial motion for

judgment n.o.v. on the contract claim.3 An appellate court will reverse the

____________________________________________

3 To preserve the right to request judgment n.o.v., a party ordinarily must

first request a binding charge to the jury or move for a directed verdict or

compulsory non-suit. Wag-Myr Woodlands Homeowners Association by

Morgan v. Guiswite, 197 A.3d 1243, 1250 n.10 (Pa. Super. 2019). A motion
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trial court’s decision to grant or deny judgment n.o.v. only when it finds an

abuse of discretion or an error of law. Rost v. Ford Motor Co., 151 A.3d

1032, 1042 (Pa. 2016). In an appeal from the trial court’s decision to deny

judgment n.o.v., we must consider the evidence, together with all favorable

inferences drawn therefrom, in a light most favorable to the verdict winner.

Drake Mfg. Co., Inc. v. Polyflow, Inc., 109 A.3d 250, 258 (Pa. Super.

2015).

The interpretation of any contract is a question of law. Currid v.

Meeting House Restaurant Inc., 869 A.2d 516, 519 (Pa. Super. 2005). Our

standard of review of such questions is de novo, and our scope of review is

plenary. Smith v. Wells, 212 A.3d 554, 557 (Pa. Super. 2019).

“[A] lease is in the nature of a contract and is . . . controlled by

principles of contract law.” Gamesa Energy USA, LLC v. Ten Penn Center

Associates, L.P., 217 A.3d 1227, 1238 (Pa. 2019). The fundamental rule in

construing a contract is to ascertain and give effect to the intent of the

contracting parties. Maisano v. Avery, 204 A.3d 515, 520 (Pa. Super. 2019).

____________________________________________

for a directed verdict is also appropriate in non-jury trials. Id. Landlord did

not request a directed verdict on Tenant’s contract claim orally or in writing at

the close of evidence at trial, but they filed post-trial motions seeking

judgment n.o.v. on the contract claim following the trial court’s decision. The

trial court did not find waiver and addressed Landlord’s contract argument on

the merits. Under these circumstances, we decline to find waiver. Id.; see

also Capital Care Corp. v. Hunt, 847 A.2d 75, 84 (Pa. Super. 2004)

(declining to find waiver where party failed to move for directed verdict,

sought judgment n.o.v. in post-trial motion, and trial court addressed claim

as presented in post-trial motion).
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Landlord challenges the trial court’s construction of the noncompetition

covenant in Tenant’s lease, which prohibits anyone other than Tenant from

providing hair salon services on “the premises.” Landlord contends that the

definition of “premises” in the lease, “1,309 square feet of space within a

commercial building at 171 Wexford-Bayne Road,” limits the covenant’s reach

to the space leased to Tenant in 2004 and does not extend to the Adjacent

Building. The trial court determined that Landlord’s strict construction of the

covenant would produce an absurd result, because it would have been

meaningless for Tenant to negotiate a noncompetition covenant that only

prevented competition in its own space. The court wrote:

[I]n interpreting the non-competition clause in the Lease this

Court must apply contract principles and give effect to the

economic realities of shopping centers. The fact is [Landlord’s]

deliberate act of putting a competing hair salon in the shopping

center would have the same adverse effect on [Tenant] regardless

of whether the competitor was located in 171 Wexford-Bayne

Road or 181 Wexford-Bayne Road [because] [t]he two buildings

are located directly across a shared parking lot from each other.

In following these basic principles, this Court believes the most

logical and reasonable interpretation of the non-competition

clause is to have it apply to the entire shopping center, which

includes 171 and [181] Wexford-Bayne Road.

Memorandum at 5.

We agree with the trial court. Pennsylvania courts will not enforce the

plain language of a contract when it would produce an absurd result. In

United Refining Co. v. Jenkins, 189 A.2d 574 (Pa. 1963), Jenkins owed

money to United and entered into a contract to sell United all the oil that he

produced. The contested phrase in the oil contract stated that the contract
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was to continue “so long as there remains any unpaid indebtedness” of Jenkins

to United. Id. at 579. Jenkins defaulted on the loan but argued that the oil

contract was still in force and that United had to buy his oil because he still

owed money to United. United argued that the contested phrase in the oil

contract should be interpreted to mean that the agreement would continue so

long as Jenkins remained indebted to United and Jenkins had not defaulted in

his obligations. Our Supreme Court accepted United’s interpretation of the

phrase, even though doing so required the Court to interpret a facially

unambiguous phrase as meaning something different than what it appeared

to mean on its face. The Court reasoned that

if Jenkins’ contention is correct, United was bound to continue

purchasing all [of] Jenkins’ oil . . . even though Jenkins failed to

honor his obligation to United . . . . Such an interpretation of the

language of this contract is both absurd and unreasonable. Under

such an interpretation, Jenkins could take his profits from the “oil

runs,” dishonor his obligations to United and United would be

bound indefinitely to the agreement.

Id. at 580. Jenkins demonstrates that if the plain meaning of a contract

term would lead to an interpretation that is absurd and unreasonable,

Pennsylvania courts should construe the contract otherwise in order to reach

“the only sensible and reasonable interpretation” of the contract. Id.; see

also Binswanger of Pennsylvania, Inc. v. TSG Real Estate LLC, 217 A.3d

256, 262 (Pa. 2019) (“before a court will interpret a provision in a statute or

in a contract in such a way as to lead to an absurdity or make the statute or
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contract ineffective to accomplish its purpose, it will endeavor to find an

interpretation which will effectuate the reasonable result intended”).

As in Jenkins, the result urged by Landlord would lead to an absurd

result by limiting the noncompetition covenant to space rented by Tenant

itself. No rational person in Tenant’s position would accept such illusory

protection in a commercial lease. Moreover, Landlord exploited this

preposterous interpretation of the noncompetition covenant by (1) building

the Adjacent Building mere yards from Tenant’s building, a building identical

in appearance to Tenant’s building that shares the same parking lot and curb

cut, (2) leasing space to Sola, a competing hair salon, in the Adjacent Building,

(3) effectively operating the two buildings as a single integrated shopping

center by combining the addresses into one tax parcel, and (4) charging

Tenant for maintenance of the common areas in the Adjacent Building, thus

forcing Tenant to subsidize Sola’s business. The trial court correctly held that

the noncompetition covenant covered the entire shopping center, that is, both

Tenant’s building and the Adjacent Building and all other land in the tax parcel.

We hold that Landlord’s conduct constitutes a breach of contract and affirm

the trial court’s decision holding Landlord4liable on Tenant’s breach of contract

claim.

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4 The trial court held Appellant Jaam liable for breach of contract even though

Jaam was not a signator on the lease. Appellants, however, did not seek relief
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Next, we address the trial court’s computation of damages on the

contract claim. Tenant found out about the lease with Sola when eight months

remained on Tenant’s lease. Tenant asked to be released from its lease at

that time, but George refused. The court determined that Tenant was entitled

to an abatement of $20,392.40, the rent for the final eight months of the

lease. Landlord argues that the award of all eight months’ rent represented a

windfall to Tenant, because Tenant enjoyed the use of the premises during

the final eight months of the lease. We conclude that further proceedings are

necessary on this issue. In Teodori v. Werner, 415 A.2d 31 (Pa. 1980), our Supreme Court

stated that when the landlord defaults on a promise, the tenant “can retain

possession of the premises and deduct from the rent the difference between

the rental value of the premises as it would have been if the lease had been

fully complied with by the landlord and the rental value in the condition it

actually was.” Id. at 34 (citing McDanel v. Mack Realty Co., 172 A. 97 (Pa.

1934)). Teodori also recognized that a slightly different remedy is embodied

within a chain of sections in the Restatement (Second) of Property. The first

section, Section 7.2, states in relevant part:

Except to the extent the parties to a lease validly agree otherwise,

the failure of the landlord to perform a promise contained in the

lease that he, or someone holding under him, will not use other

____________________________________________

for Jaam on this basis in the trial court or this Court. Accordingly, we decline

to disturb the finding of liability against Jaam.
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property in a manner that will compete with a business of the

tenant, or of someone holding under the tenant, on the leased

property, makes the landlord in default under the lease, if he does

not cease, or cause to cease, the competing business within a

reasonable time after being requested by the tenant to do so. For

that default, the tenant may:

(2) continue the lease and, if the landlord's promise is valid, obtain

appropriate equitable and legal relief including the various

remedies prescribed in [§] 7.1(2) [of the Restatement

(Second)].

Teodori, 415 A.2d at 34 (reciting Section 7.2) (emphasis added). Section

7.1(2), in turn, provides:

Except to the extent the parties to a lease validly agree otherwise,

if the landlord fails to perform a valid promise contained in the

lease to do, or to refrain from doing, something on the leased

property or elsewhere, and as a consequence thereof, the tenant

is deprived of a significant inducement to the making of the lease,

and if the landlord does not perform his promise within a

reasonable period of time after being requested to do so, the

tenant may . . .

(2) continue the lease and obtain appropriate equitable and legal

relief, including:

(a) the recovery of damages to the extent prescribed in § 10.2;

(b) an abatement of the rent to the extent prescribed in §

11.1;

(c) the use of the rent to perform the landlord's promise to the

extent prescribed in § 11.2; and

(d) the withholding of the rent in the manner and to the extent

prescribed in § 11.3 until the landlord performs his promise.

Id. (emphasis added).5 Finally, Section 11.1 provides:

If the tenant is entitled to an abatement of the rent, the rent is

abated to the amount of that proportion of the rent which the fair

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5 Teodori refers in passing to Section 7.1 without reciting its text. We fill in

this gap by reciting the relevant portion of Section 7.1.
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rental value after the event giving the right to abate bears to the

fair rental value before the event. Abatement is allowed until the

default is eliminated or the lease terminates, whichever first

occurs.

Teodori, 415 A.2d at 34-35 & n.6 (reciting Section 11.1). Teodori observed

that “the Restatement’s proportional value rule differs from McDanel’s loss

of fair rental value rule,” but the Court did not instruct which rule to apply.

Id.

Here, the trial court concluded that the entire eight months of rent was

awardable under Section 11.1 of the Restatement (Second) of Property. This

award likely is excessive. An award of all eight months of rent is tantamount

to the conclusion that the leasehold premises had no value whatsoever.

Common sense indicates, however, that the premises had some rental value

during the final eight months of the lease, since Tenant remained in the

leasehold premises during this time and continued to operate its business. Therefore, we vacate the judgment of $20,392.40 and remand to the trial

court for a determination of the proper amount of rent abatement. When

making this determination, the trial court shall explain whether it applied the

Restatement’s proportional value rule or McDanel’s loss of fair rental value

rule and the reason for its selection. Next, we address Tenant’s argument that the trial court erred by

denying its claims for relocation costs and construction costs at the new

premises. No relief is due. To recover damages for breach of contract, the

plaintiff must prove that “(1) [the damages] were such as would naturally and
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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.” Ferrer v. Trustees

of University of Pennsylvania, 825 A.2d 591, 610 (Pa. 2002). Had Tenant

been forced to vacate the premises before the end of the lease, relocation and

construction costs might have been recoverable, because it is “foreseeable

that a tenant whose lease is prematurely brought to an end will incur

relocation expenses [such as] moving costs, expenses of obtaining a lease of

other property, adapting the tenant’s furnishings to a new location, and an

increase in rental for a comparable new location.” Restatement (Second) of

Property, Landlord and Tenant, § 10.2, comment d. Here, however, Tenant

remained in the leasehold premises until the end of the lease and moved out

after deciding not to renew the lease. Landlord did not cause the relocation

or construction costs; Tenant elected to incur them, like any other tenant who

decides to leave at the end of the lease. Thus, Tenant was not liable for these

costs.

We further conclude, based on our review of the record, that the trial

court correctly rejected Tenant’s claim for lost profits and lost goodwill. In

particular, we agree with the trial court’s conclusions that (1) Tenant failed to

prove lost goodwill because it was unable to demonstrate what its goodwill

was prior to George’s breach or that it lost customers to Sola; (2) Tenant

failed to prove lost profits due to alleged loss of employees, because the
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testimony of Tenant’s former employee, Amy Pusateri, demonstrates that

several employees left out of desire to start their own salon, not because of

any misconduct by Landlord; and (3) Tenant could not prove that Landlord’s

conduct left Tenant unable to hire new employees, because the evidence that

Tenant attempted to introduce on this point was inadmissible hearsay (text

messages from an individual who allegedly turned down Tenant’s offer and

joined Sola instead). Opinion, 5/1/19, at 11-13.

Finally, we hold that the trial court correctly rejected Tenant’s fraud

claim. An essential element of fraud is justifiable reliance by the plaintiff on

a misrepresentation by the defendant. Bortz v. Noon, 729 A.2d 555, 560

(Pa. 1999). The evidence demonstrates that before Tenant entered into the

2015-16 lease extension, Tenant’s owners met with George and inquired

whether Jaam had signed a lease with a rival salon. George denied that there

was a lease with any salon, but he concealed the fact from Tenant that Jaam

was negotiating a lease with Sola. In early 2016, Tenant discovered that Jaam

entered into a lease with Sola after Tenant entered the 2015-16 lease

extension. This evidence, construed in the light most favorable to the verdict

winners on the fraud claim, i.e., Landlord, shows that Tenant did not rely on

George’s statement in making its decision to enter into the 2015-16 lease

extension. To the contrary, Tenant did not fully trust George’s word but

decided to enter into the lease extension anyway. Absent evidence of any
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reliance on George’s word, let alone justifiable reliance, Tenant has failed to

present sufficient evidence of fraud.

For the foregoing reasons, we affirm the trial court’s decision on all

issues except for the amount of rent abatement that Tenant should receive

for Landlord’s breach of the lease. On that issue, we remand for further

proceedings in the manner specified above.

Judgment affirmed in part and reversed in part. Case remanded with

instructions. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/21/2021