General Realty Co. v. Gold

9 Pa. D. & C. 682, 1927 Pa. Dist. & Cnty. Dec. LEXIS 129

• Court: Pennsylvania Court of Common Pleas, Philadelphia County
• Decided: November 1, 1927
• Docket: No. 4763
• Status: Published

Opinion

Per Curiam,

This is a rule to strike off a judgment entered under a lease for rent alleged to have become due in advance by reason of the tenant’s removal of goods from the demised premises.

Unless the lease clearly provides that the rent for the balance of the unexpired term shall be due and payable in the event of the tenant’s removing the goods from the demised premises, and the warrant to confess judgment authorizes the confession of judgment for such rent, the judgment must be stricken off.

The affidavit of default alleges that the defendant removed goods from the demised premises, whereby the whole rent for the unexpired term of the lease became due and payable forthwith. There is no clear and express term of the lease providing generally for the payment of the rent for the unexpired portion of the term in any event. The lease provides that the rent for the unexpired portion of the term of the lease shall become due and payable if the lessee shall become embarrassed, make an assignment for the benefit of :reditors, commit an act of bankruptcy, become bankrupt or be sold out by sheriff’s sale or -any other compulsory procedure or order of court, then the whole rent for any unexpired portion of the term of this lease, or any continuance thereof, shall at once become due and payable as if by the terms of this lease it were payable in advance, and shall first be paid out of the pro-jeeds of any such assignment, sale or procedure, &c.”

Clearly this provision has no application under the facts here involved. The other provision provides as follows: “If the lessee shall, at any time during the continuance of this lease, remove, attempt to remove or manifest an ntention to remove the goods and chattels out of or off from the demised premises without having first paid and satisfied the lessor in full for all rent which shall become due for any unexpired portion of the term of this lease, or my continuance thereof, then and in such ease the lessor shall have the ¡ntire right, power and authority to distrain for and collect the rent due for my such unexpired portion of the term of this lease or any continuance thereof in the same manner as if by the terms of this lease the entire rent were payable in advance.”

We are not clear whether the right to collect the rent for the unexpired por-;ion of the term is not limited to its collection by distraint. However this may >e, we are of the opinion that the warrant to confess judgment is not compre-íensive enough to include advance rent. The warrant to confess judgment is very carelessly and unskillfully drawn, and is, no doubt, drawn by attempting o embody the provisions of three or four leases without any attempt to har-nonize them. The warrant to confess judgment contains three authorities:

“(a>) For any attorney to appear for the lessee in any action to be brought or any arrears of rent herein reserved, which may at any time fall due, and or all charges due and payable as rent and for rent made payable in advance, r for damages for the breach of any of the covenants herein contained.

“(b) To sign for the lessee an amicable action as of any term, past, present r future, as if suit had been brought for any such arrears in rent, charges iayable as rent, rent payable in advance and damages.

“(c) Further, in said suits or in said amicable action, any attorney or pro-honotary is authorized to confess judgment against the lessee for any and all lamages which may at any time arise from the breach or failure of lessee to :eep any of the covenants herein contained, as set forth in an affidavit of the sssor, or any one in lessor’s behalf, &c.”

If the rent for the unexpired portion of the term became due, as claimed by he plaintiff, it could be recovered in an action wherein any attorney was uthorized to enter an appearance for the defendant. In such a case, plead-ngs would be needed and judgment would have to be taken for want of an ffidavit of defence. No such thing was done in this case. If an amicable ction was entered, the attorney was authorized to include therein any rent due in advance if the lease so provided. The plaintiff in the present case included in the amicable action rent alleged to he due in advance.

If the plaintiff sought to recover rent in advance, either by an ordinary action or by an amicable action, the attorney was authorized to confess judgment in either proceeding. The confession of judgment, however, only authorized the attorney in either proceeding to confess judgment for damages foi breach of covenant; the warrant to confess judgment being limited to damages, though suit was authorized to be brought or amicable action entered foi rent in advance.

Whoever drew the confession of judgment overlooked including in the confession of judgment the things authorized to be included in the suit or amicable action. Judgment by confession must necessarily be limited to the express terms of the warrant, and here the warrant is limited expressly tc damages for breach of covenant. Damages for breach of covenant do noi include rent payable in advance. There is no authority in the lease authorizing the attorney to confess judgment for rent in arrear or for rent in advance As there is no authority in the lease to confess judgment for rent in advance we must strike off the judgment.

And now, to wit, Nov. 1, 1927, the rule to strike off judgment is made absolute.