Northway Village No. 3, Inc. v. Northway Properties, Inc.

244 A.2d 47, 430 Pa. 499, 1968 Pa. LEXIS 736
CourtSuperior Court of Pennsylvania
DecidedJuly 1, 1968
DocketAppeal, No. 30
StatusPublished
Cited by40 cases

This text of 244 A.2d 47 (Northway Village No. 3, Inc. v. Northway Properties, Inc.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Northway Village No. 3, Inc. v. Northway Properties, Inc., 244 A.2d 47, 430 Pa. 499, 1968 Pa. LEXIS 736 (Pa. Ct. App. 1968).

Opinions

Opinion by

Mr. Justice Eagen,

This is an appeal by appellant-lessor from the order of the court below striking off a judgment in ejectment confessed against appellee-lessee pursuant to a warrant of attorney contained in a lease. By agreement of lease dated July 14, 1961, appellant as lessor demised to appellee as lessee for a term of fifty years certain described premises with the improvements thereon stated to be as follows: “Having erected thereon two apartment house buildings known as 411-431 Brown’s Lane . . . containing together 120 apartments, 7 garages, and on-site parking for 154 cars.” The lease imposed upon the tenant the obligation .to pay all taxes, to provide insurance, to make all necessary repairs to the buildings, extraordinary as well as ordinary, and to make the rental payments regardless of any destruction by fire or other casualty.

Section 2.4 of the lease provides: “Tenant shall not tear down, remove, or substantially alter any part of the demised premises without the prior written consent of Lessor.” The lease includes a power to confess judgment in ejectment as follows: “In case of default in any of the covenants or agreements in this [502]*502lease by tenant, which shall not have been corrected by tenant within ten (10) days after receipt of notice so to do, the said tenant . . . authorizes and empowers any such attorney ... to appear for said tenant and confess judgment forthwith against tenant ... in an amicable action of ejectment for the premises above described . . . .”

Alleging a breach of the above quoted Section 2.4 of the lease, appellant entered judgment for possession by confession and in its affidavit of default averred the default as follows:

“a. On or about the beginning of the month of May, 1966, without the required prior written consent of the Lessor, and without Lessor’s knowledge, the defendant wrongfully damaged and substantially altered the demised premises by excavating a substantial portion of the demised premises and removing a large quantity of earth from the premises;

b. The unauthorized commencement by Tenant of construction of a building without first having obtained the required prior written consent of the plaintiff as Lessor;

c. The elimination of a substantial number of spaces for on-site parking and reducing the number of such spaces below the number specified in the Agreement of Lease without obtaining the required prior written consent of plaintiff as Lessor;

d. Without the required prior written consent of the Lessor, defendant, as Tenant, changed and altered the shape, appearance, and use of the demised premises from exclusively residential to residential and commercial.”

Appellee-lessee filed a petition to strike off, or, in the alternative, to open judgment, alleging, inter alia, that the specific averments of default were insufficient as a matter of law for the following reasons:

[503]*503“(a) The excavation of a previously unoccupied portion of the leasehold property for the purpose of constructing a new and separate building as a tenant improvement thereon did not constitute a ‘removal’ or ‘substantial alteration’ of the ‘demised premises’ within the scope of Section 2.4 of the Lease and, therefore, did not require the prior written consent of the lessor.

“(b) The construction of said new and separate building as a tenant improvement did not constitute a ‘substantial alteration’ of the ‘demised premises’ within the scope of the said Section 2.4 of the Lease and, therefore, did not require the prior written consent of the lessor.

“(e) The alleged elimination of certain parking spaces did not constitute a violation of any provision of said Lease, because nothing in the Lease requires the maintenance of any specific number of parking spaces in any event.

“(d) The alleged change of the appearance and use of the demised premises from residential to residential and commercial did not constitute a violation of said Lease, because the Lease does not contain a ‘Purposes’ clause or any other provisions limiting the use of the said property in any event.”

Following argument on the issues raised specifically by the portion of the petition directed to the striking of the judgment, the lower court ordered the judgment stricken. In determining the validity of a confessed judgment which is attacked by a petition to strike, the court is limited to the consideration of matters appearing on the face of the record. The facts averred in the affidavit of default are to be taken as true and if the truth of the factual averments are disputed, the remedy is by a proceeding to open the judgment and not to strike. Kros v. Bacall Textile Corp., 386 Pa. 360, 126 A. 2d 421 (1956); Miller v. Michael Morris, Inc., 361 Pa. 113, 63 A. 2d 44 (1949).

[504]*504. The validity of the judgment in Williams v. Notopolos, 247 Pa. 554, 93 A. 610 (1915) (cited by appellant in support , of its contention that, at best, appellee was entitled to have the judgment opened rather than stricken) turned on issues of fact raised by the lessee. In our consideration of this case we shall accept as true the averments of fact, but not the legal conclusions, asserted in appellants’ affidavit of default and we shall ignore any disputed issue of fact raised by the appellee in its petition challenging the judgment.

The decision in this case, then, hinges on whether or not the matters appearing on the face of the record clearly show that appellee breached the above quoted Section 2.4 of the lease so as to come within the scope of the warrant to confess judgment. A warrant of attorney authorizing the entry of a summary judgment must be clear and explicit and if doubt exists as to the occurrence of a default, the doubt must be resolved against the party in whose favor the warrant is given. Grady v. Schiffer, 384 Pa. 302; 121 A. 2d 71 (1956); Baldwin v. American Motor Sales Co., 309 Pa. 275, 163 A. 507 (1932). Where doubt arises out of the uncertainty as to the meaning of the language used in a lease, its provisions will be construed most strongly against the lessor and in favor of the lessee. Larsh v. Frank & Seder of Pittsburgh, Inc., 347 Pa. 387, 32 A. 2d 219 (1943); Conneaut Lake Ice Co. v. Quigley, 225 Pa. 605, 74 A. 648 (1909). Since forfeitures are regarded as odious and not favored, the provisions of a lease should be so construed, if possible, to avoid a forfeiture. Penn-Ohio Gas Co. v. Franks’s Heirs, 322 Pa. 233, 185 A. 280 (1936); Williams v. Notopolos, supra.

Is Section 2.4 of the Lease properly construed as prohibiting the tenant from tearing down, removing or substantially altering any part of the land without [505]*505the lessor’s consent, as contended by appellant, or is it to be construed as only prohibiting the tenant from tearing down, removing or substantially altering any part of the existing buildings on the land, as contended by appellee? Appellant relies on the words “demised premises” and argues that this refers to the land and land alone. These words are subject to a variety of meanings depending on the context in which they are employed, though ordinarily they connote both the land and the building and improvements thereon. The construction urged by appellant would interpret the words “demised premises” to mean the land itself. But one cannot “tear down” land or “remove” land, though one can remove soil from the land.

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Bluebook (online)
244 A.2d 47, 430 Pa. 499, 1968 Pa. LEXIS 736, Counsel Stack Legal Research, https://law.counselstack.com/opinion/northway-village-no-3-inc-v-northway-properties-inc-pasuperct-1968.