Stonehedge Square Ltd. Partnership v. Movie Merchants, Inc., 685 A.2d 1019, 1023 ( Pa. Super. 1996) (citations omitted), aff'd 715 A.2d 1082 (1998). Accord Ralph v. Deiley, 141 A. at 642; Brill v. Haifetz, 44 A.2d 311, 313 ( Pa. Super. 1945). In this case, Peters returned the keys to Watertower and vacated the Premises in March 2002. The Partnership also ceased paying any rent after January 2002. The Premises remained vacant until Incentive entered under a new lease on January 1, 2003. There was no evidence of any express agreement between the parties (written or oral) concerning any acceptance of Peters' surrender when he vacated in March 2002 or when Watertower later relet the Premises.
" Ralph v. Deiley, 293 Pa. at 94, 141 A. 640. "The burden of proof is on the party alleging the surrender by operation of law to prove it, and, where it is to be inferred from the circumstances or conduct inconsistent with intention to perform, the proof must be clear." Brill v. Haifetz, 158 Pa. Super. 158, 162, 44 A.2d 311, 313 (1945). The bankruptcy court in In re Allegheny International, Inc., 136 B.R. 396 (Bankr. W.D.Pa. 1991), applied Pennsylvania law to determine that the premises at issue had not been surrendered.
The burden of proof is on the party alleging a surrender by operation of law to prove it, and, where it is to be inferred from circumstances or conduct inconsistent with intention to perform, the proof must be clear. 158 Pa. Super. 158, 44 A.2d 311, 313 (1945) (quotations and citations omitted). That a landlord has accepted a tenant's surrender cannot be inferred from mere repossession of the property.
The last of the Pennsylvania trilogy declined to reverse a judgment for the landlord where acceptance of surrender, as a matter of law, was argued to have occurred. Brill v. Haifetz, 158 Pa. Super. 158, 44 A.2d 311 (1945). There the lease expressly permitted the landlord to relet and to hold the tenant "`liable for any loss of rent for the balance of the then term.'"
Christenson v. Ohrman, supra [ 159 Kan. 565, 156 P.2d 851]. Thus, the parties may so contract in their lease agreement as to make the implication untenable, Continental Bank Trust Co. of N Y v. Goodner, supra; Brill v. Haifetz, 158 Pa. Super. 158, 44 A.2d 311; Crow v. Kaupp, Mo.Sup., 50 S.W.2d 995, as where the lease specifically provides that the lessor may re-enter and re-let for the account of the lessee. And, clearly, there can be no presumption of an acceptance of a surrender when the lessor accepts the keys and resumes possession of the premises, qualifiedly and conditionally.
In re Blatstein, No. Civ. A. 97-3739, 1997 WL 560119, at *10 (E.D. Pa. Aug. 26, 1997) (Padova, J.). Whether a landlord accepts a tenant's surrender requires a determination of the landlord's intent, and, as such, is ultimately a question of fact for the jury. Id. (citing Brill v. Haifetz, 44 A.2d 311, 313 ( Pa. Super. 1945) Against this background, Amoco contends that Onal accepted its surrender of the property, and that its duty to pay rents was concomitantly discharged, on the theory that Onal's actions in listing the property for rent on several occasions was tantamount to his repossessing it from Amoco, i.e., to his taking a position adverse to a reoccupation of the property by Amoco and inconsistent with a potential renewal of their landlord-tenant relationship.
The trial justice in his decision found that defendant had failed to sustain the burden of proof imposed upon it to show that there was a surrender of the premises on the part of plaintiff. See Brill v. Haifetz, 158 Pa. Super. 158. He did find, however, that defendant's eviction of plaintiff was justified by reason of a breach on plaintiff's part of at least two of the covenants set out in the lease. In this respect he specifically found that plaintiff, in failing to pay for the water supplied to the hotel, had breached the provisions of par. 2 of the lease in which he covenants to "pay all taxes, charges and water rates * * *.
According to appellants' argument, inasmuch as Trizechahn relet the master lease space in a way that was hostile to appellants, Trizechahn accepted appellants' surrender of the master lease and relieved them of their obligations. Appellants' brief at 46, citing Brill v.Haifetz, 158 Pa.Super. 158, 44 A.2d 311, 313 (1945). ΒΆ 30
The burden is on the tenant to show by clear and convincing evidence that the landlord's actions constituted acceptance of the tenant's surrender. SeeBrill v. Haifetz, 158 Pa. Super. 158, 162, 44 A.2d 311, 313 (1945). It must be shown that the landlord made some "unequivocal act" that would constitute acceptance of the tenant's surrender.
There was no such evidence in this case. In Brill v. Haifetz, 158 Pa. Super. 158, 44 A.2d 311, we quoted with approval what was said in the case of Ralphv. Deiley, 293 Pa. 90, 94, 141 A. 640, "that the burden of showing an acceptance of a surrender is on the lessee `and is primarily a question of the landlord's intention. It is usually a question of fact for the jury (Breuckmann v. Twibill, 89 Pa. 58), but the evidence may be such as to make it one of law for the courts.'" "Taking possession, repairing, advertising the house to rent, are all acts in the interest and for the benefit of the tenant, and do not discharge him from his covenant to pay the rent."