95 Pa. Super. 250 | Pa. Super. Ct. | 1928
Argued October 11, 1928. Appellant, plaintiff below and lessor in the lease out of which this litigation arose, entered an amicable action in ejectment against the lessee, appellee herein, and an attorney of that court, stating that he was acting "by power and authority contained" in the lease, confessed on November 7, 1927, two judgments in favor of appellant and against the appellee. One was a judgment in ejectment for "the third floor of 2452 North Broad Street, City and County of Philadelphia, State of Pennsylvania," and the other a judgment "in the sum of $715, being eleven months rent for said premises, due November 1, 1927, to October 1, 1928, inclusive," together with interest and attorney's fees amounting in the aggregate to $788.65. The court below made absolute rules obtained by the defendant lessee to strike off these judgments and the plaintiff lessor has appealed.
Two reasons were stated by the court below: (a) that the description of the `subject matter of the lease as found therein is too vague, indefinite and uncertain to sustain the judgment in ejectment or render possible the execution of a writ of habere facias possessionem thereon; and (b) it appears upon the face of the money judgment that it is for rent for a period following the entry of the judgment in ejectment and not for rent "in arrear and unpaid" when that judgment was entered. The latter is the important question upon this appeal. The proceeding was to strike off and our consideration must therefore be confined to matters appearing on the face of the record. From it we find that the lease, a copy of which is attached to the agreement for the amicable action, is dated October 1, 1926, and by it the lessor demised "the apartment or suite of rooms, No. 2452 on the 3rd floor of ...... for the term of 1 year from the 1st day of Oct. A.D. 1926, at the monthly rent of 65.00 Dollars, payable in advance." *253 The seventh paragraph provides that "either party may terminate this lease at the expiration of the term hereby created, by giving to the other 30 days' written notice of intention so to do, but in default of such notice, this lease, with all the conditions and covenants thereof, shall continue for the additional term of ...... and so on from year to year until terminated by either party giving to the other 30 days' written notice of intention to terminate said lease at the expiration of the then current term."
The third paragraph reads: "If at any time during and before the expiration of the term of this lease, the lessee shall remove or attempt to remove or vacate said apartment, then the whole of the rent for said term then remaining unpaid shall, at the option of the lessor, be and become payable forthwith, and the lessor shall have full power and authority to demand, recover and collect any balance of rent for said term then remaining unpaid at the rate aforesaid by distraint or any process of law, as rent of said apartment then due and payable," etc.
The provisions relative to the entering of an amicable action of ejectment and the confessing of judgments therein are found in the eighth paragraph and, in so far as they are material to the issue, read: "If the said rent shall at any time be in arrear and unpaid, or if the said lessee shall violate any other of the covenants or conditions herein contained on his part to be performed and kept, then this lease shall absolutely determine at the option of the lessor who may forthwith file this lease, or a copy thereof, in the office of the prothonotary or clerk of any court, together with an affidavit of a person having knowledge of any such breach or violation, and ...... enter in ...... said court an amicable action in ejectment for the premises above demised ...... and any attorney is hereby authorized and empowered to sign said amicable *254 action in ejectment for the said lessee ...... and also to appear for and confess judgment therein against said party defendant for the recovery of the possession of the aforesaid premises, and also for all arrearages of rent, if any, ...... and the cost, including an attorney fee of ten per cent. to be assessed as part of said costs ...... upon which judgment a writ of possession or habere facias possessionem shall issue in said action, for said premises, with a clause of fieri facias for such arrearages of rent, if any, ...... all of which proceedings shall be without right to the party defendant to have an appeal, certiorari, writ of error, exception, motion or rule to open judgment, or set aside execution."
From the affidavit of default made by appellant it appears that the lessee entered upon and occupied the premises under the lease from its date, October 1, 1926, to November 1, 1927, at which time appellant alleges he violated one of its covenants "by attempting to vacate the said premises without the consent of the lessor prior to the expiration of the then current term." It is further averred that under the provisions of the lease there then became due and owing to the lessor $715, as rent for the eleven months of the remainder of the then current term — November 1, 1927, to October 1, 1928. Appellant did not undertake to maintain the relation of landlord and tenant and enforce his rights under the third paragraph of the lease, the acceleration clause above quoted, by proceeding to "recover and collect [the] balance of rent for said term then remaining unpaid ...... by distraint or any process of law," but elected to terminate the lease under the eighth paragraph by entering a judgment in ejectment.
Assuming for the present that the judgment in ejectment is valid, notwithstanding the vagueness of the description of the subject matter of the lease, and *255
noting from the record that possession was given to the lessor by the sheriff on November 10, 1927, pursuant to the habere facias issued on the judgment, the question arises whether the lessor, having terminated the lease in this manner and ejected the lessee, can recover rent as such for the eleven months following the execution of the writ. On this branch of the case the situation seems to be similar to that which existed in the case of Pusey v. Sipps,
We think this cannot be done. If appellant, instead of entering judgment in ejectment, had proceeded under the third clause in the lease, we would have a different question — one more nearly resembling that involved in Purvis v. Dempsey,
On the other branch of the case we are not convinced that the court below erred in striking off the judgment in ejectment. In Pittsburgh Terminal Coal Corp. v. Robert Potts,
This case was submitted to us without oral argument but counsel for appellant urge in their printed brief that the lessee has, under the provisions of the lease, waived his right to question any judgments entered thereunder. The language is: "All of which proceedings shall be without right to the party defendant to have an appeal, certiorari, writ of error, exception, motion or rule to open judgment, or set aside execution." It is sufficient to say that the proceeding in the court below was a rule to strike off and not a rule to open the judgment. Even if the language of the lease had included rules to strike off, the contention would not be sound. This subject was fully considered by us in Consumers Mining Co. v. Chatak,
Order affirmed.