628 A.2d 444 | Pa. Super. Ct. | 1993
Lead Opinion
Three Rivers Realty Group, Inc. and Simon Glick, an individual, t/d/b/a Manor Oak Associates, appeal from the August 5, 1992 order entered by the Court of Common Pleas of Allegheny County awarding attorney’s fees and costs in the amount of $12,743.72 to Richard Erenberg, appellee. ■ Appellee, together with John Tunno, traded and did business as TCN (Total Cellular Network). Appellee signed a commercial
The record reveals the following. On August 1, 1989, the parties entered into a lease for commercial office space (the “lease”). The lease was executed by appellee on behalf of TCN. The lease contained a provision empowering any prothonotary or attorney of any court of record to appear and confess judgment against the tenant, which was identified as TCN but signed on its behalf by appellee, for rent, additional rent, or any charges and expenses. Subsequently, appellee’s associate, John Tunno, executed an instrument which purported to amend the original lease which was necessitated when TCN moved to other space in the building to accommodate renovations to be done by appellants as landlords. The purported amendment did not contain a confession of judgment clause.
Appellee did not execute this amendment, which was signed only by Tunno, who did not identify in what capacity he signed it. A dispute exists whether this second agreement constituted an amendment to the original lease, thereby continuing the effectiveness of the confession of judgment clause contained in the first lease, or whether it constituted an entirely new lease agreement that did not contain a confession of judgment clause.
On March 8, 1991, appellants confessed judgment against appellee for the balance of the unpaid rent, fees, and costs, totalling $62,055. Since TCN never was incorporated, appel
On March 14,1992, appellee filed a petition to open or strike the judgment confessed against him. He alleged that there were factual issues concerning whether the judgment properly was entered against him individually. The trial court granted appellee’s motion to open the judgment but denied his motion to strike.
On February 18, 1992, appellee filed a motion requesting attorney’s fees and costs since appellants had confessed judgment against him personally and since a judgment automatically operates as a lien against his residential real property in the county. Appellee premised his entitlement to relief on appellants’ violation of the Act. He asserted that the lien constituted an attachment of his residential property. The Act permits the award of attorney’s fees and costs where the debtor prevails in opening a confessed judgment. The trial court granted attorney fees and costs pursuant to the Act since appellee had prevailed in opening the judgment. This appeal followed.
Appellants argue that the Act was not intended to apply in instances when there is no attempt to collect a judgment against residential real estate. We agree. See Drum v. Leta, 354 Pa.Super. 448, 512 A.2d 36 (1986) (attempt to execute judgment as to residential real estate makes this statute applicable). We do not find that recording a judgment without any further attempt to execute upon an individual’s residential real estate brings the Act into play; otherwise, any judgment entered against an individual owning residential real property would implicate the Act. This obviously was not the intent of the Act. The Act may be implicated whenever there is an attempt to collect the judgment against the residential real estate. Id. That is not the case herein. Since the Act
Order reversed. Jurisdiction relinquished.
Concurrence Opinion
concurring.
I concur. The transaction reviewed by the trial court in the instant cases was not a residential mortgage transaction, and there was no attempt to enforce a judgment obtained by confession against residential real estate. Therefore, the Act of January 30,1974, P.L. 13, No. 6, 41 P.S. § 101 et seq., and its provisions allowing the recovery of counsel fees have no application.