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James Lammendola James M. Lammendola

A thought-provoking nonprecedential opinion on the issue of election of remedies pursuant to a commercial lease was recently decided by the Superior Court. The court affirmed in part and reversed in part an approximately $4 million judgment in favor of Gamesa Energy USA and Gamesa Technology Corp. in the matter of Gamesa Energy USA and Gamesa Technology v. Ten Penn Center Associates and SAP V Ten Penn Center, 2018 Pa. Super 59. The large award, entered by the Philadelphia Common Pleas Court pursuant to a bench trial, consisted of $265,460 for lost rent but most of the balance of the judgment was based on unjust enrichment.

A review of the facts indicates the parties entered into a 10-year commercial lease in 2008 for approximately 35,000 square feet of office space at 1801 Market St. in Center City Philadelphia. The lease terms under review are the terms defining default and those defining the tenant application and landlord approval process to enter into subleases for portions of the premises. The lease also contained a “tenant improvement allowance” to allow tenant Gamesa Energy USA (Gamesa) to construct the office space to its specifications.

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