438 Pa. 41 | Pa. | 1970
Opinion by
This is an appeal from an order entered below striking from the record a judgment entered pursuant to a warrant of attorney included in a written lease.
Hess Kline, the judgment creditor and appellant herein, was the ultimate assignee of Standard Properties, Inc., which leased, in September 1950, a property in Philadelphia to Red Robin Stores, Inc. (Red Robin), for a period of one year. By extensions and renewals, the lease remained in force until September 1967. Petrie Stores Corporation (Petrie), one of the judgment debtors, is the corporate successor of Red Robin. The other judgment debtor, the Marianne Germantown Corporation (Marianne), is a wholly owned subsidiary of Petrie and also its assignee of the lease involved.
The warrant of attorney authorized in the lease provided, in pertinent part, that the lessee empowered any prothonotary or attorney to confess judgment against it for “all or any part of the rent specified in this lease and then unpaid including . . . charges, payments, costs and expenses reserved as rent or agreed tó be paid by the Lessee, and for interest and costs together with an attorney’s commission of 5%.”
Paragraph 6(a) of the lease states: “Lessee agrees to pay as rent . . . any and all damages, costs and expenses which the Lessor may suffer or incur by reason
In the lease the lessee covenanted, inter alia, to keep the demised premises “in good order and repair as they now are, reasonable wear and tear . . . excepted” and “to surrender the demised premises in the same condition in which Lessee has herein agreed to keep the same during the continuance of this lease.”
Following the expiration of the lease, Kline, the lessor, instituted an amicable action in assumpsit wherein judgment was confessed against Red Robin and Marianne in the amount of $46,655.44, being the sum allegedly expended or necessary to be expended by the landlord in the restoration of the demised premises, plus a 5% attorney’s commission. Included in this amount, as evidenced by the “Assessment of Damages” filed in the proceeding, was the sum of $16,000 for the replacement of an air-conditioning system in the building, which had allegedly “completely deteriorated.”
Aside from the provisions before described, paragraphs 51 and 62 of the lease are pertinent. Paragraph 51 provides that “. . . any air-conditioning equipment of Lessee [exclusive of air-conditioning ducts] installed by Lessee shall remain the property of Lessee and Lessee shall have the right to remove the same at the expiration or sooner termination of this lease; provided, however, that any damage or injury caused to the demised premises by such removal shall be repaired by Lessee at its cost and expense.”
Paragraph 62 provides: “In connection with paragraph 51 hereof, it is agreed that any replacements by Lessee of parts of the presently installed air-conditioning units and equipment in the demised premises shall remain a part thereof and shall not be removable by Lessee at the expiration or sooner termination of this
Paragraph 62 indicates that the parties to this lease recognized that the then “presently installed air-conditioning units and equipment in the demised premises” might not last for the duration of the ten-year extension of the lease provided for in paragraph 56. Yet paragraph 62 provides that, if lessee should replace the system, with the lessor’s consent, it was to belong to the lessee, unless the lessor exercised an option to purchase the same from him. It does not obligate the lessee to replace the system, nor does it require him to compensate the lessor for the cost of replacing the
It is fundamental that a warrant of attorney to confess judgment must be strictly construed and that the warrant must be exercised in strict accordance with its terms: W. E. Heller & Co. v. Lombard Corp., 423 Pa. 333, 223 A. 2d 716 (1966) ; Grady v. Schiffer, 384 Pa. 302, 121 A. 2d 71 (1956). A warrant of attorney authorizing the entry of 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: Northway Tillage No. 3, Inc. v. Northway Properties, Inc., supra; Grady v. Schiffer, supra.
Our reading of all of the material provisions in the lease, singly and collectively, fails to persuade us that the lessee assumed the obligation for the cost of replacing the entire air-conditioning system in the building. There being no breach of any covenant of the lease for lessee’s failure to compensate lessor for the replacement of such a system, there are no damages relating thereto to be considered as rent within paragraph 6(a) of the lease. It was, therefore, improper to include the
In numerous decisions, we have ruled that if the confessed judgment includes an item not authorized in the warrant, the judgment is void in its entirely and must be stricken: W. E. Heller & Co. v. Lombard Corp., supra; Housing Mortgage Corp. v. Tower Development & Investment Corp., 402, Pa. 388, 167 A. 2d 146 (1961). Here the inclusion of the cost of replacing the air-conditioning system in the confessed judgment was not au-, thorized by the warrant of attorney. Hence the judgment as confessed was properly stricken, and we need not consider the other issues raised in this appeal.
Order affirmed.