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STERLE v. GALIARDI COAL & COKE CO. (01/12/51)

January 12, 1951

STERLE
v.
GALIARDI COAL & COKE CO.



COUNSEL

J. Kirk Renner, Lewis M. D'Auria, Connellsville, Jos. W. Ray, Jr., Herman M. Buck, and Ray, Coldren & Buck, all of Uniontown, for appellant.

Goldstein & Goldstein and O. B. Goldstein, all of Uniontown, for appellee.

Before Hirt, Acting P. J., and Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Hirt

[ 168 Pa. Super. Page 256]

HIRT, Judge.

In this proceeding the majority of the court below properly refused to strike off a judgment confessed against a partnership on a warrant contained in a lease. The order will be affirmed.

Irwin Gas Coal Company entered into the lease of coal land with the defendant partnership 'for the term of One (1) year from and after March 2, 1947, with the privilege to the party of the second part to renew and continue the possession from year to year for and during two additional years'. On March 9, 1948, the above lessor sold and conveyed the leased premises to Joseph B. Sterle, Jr., the present appellee and assigned the lease to him. It is admitted that on December 6, 1949, Sterle notified the defendant lessee in writing that the lease 'will be at an end as of March 2, 1950' in accordance with its terms. On the refusal of defendant to quit, Sterle alleging a violation of the terms of the lease, confessed judgment in ejectment on the authority of the warrant contained in the lease.

There is no merit in appellant's contention that the authority to confess judgment under the warrant in the lease was personal to the lessor and could not be assigned. The argument is refuted by the following specific language of Article 11 of the lease: 'This agreement * * * shall be binding upon [and] inure to the heirs, executors, administrators, successors and assigns of the respective parties hereto'. (Emphasis added.) But even without such provision in a lease agreement, it is settled law that 'while authority to confess a judgment cannot operate in favor of a stranger to the contract, a covenant providing a warrant of attorney for entering an amicable action of ejectment for possession

[ 168 Pa. Super. Page 257]

    inures to the benefit of the assignee'. Miller et ux. v. Michael Morris, Inc., et al., 361 Pa. 113, 118, 63 A.2d 44, 47. The cases in this court are to the same effect in holding that an assignee, generally, may properly confess judgment in ejectment under the authority of a warrant contained in a lease. Testa v. Lally et ux., 161 Pa. Super. 478, 55 A.2d 552; Shappell v. Himelstein, 121 Pa. Super. 418, 183 A. 644.

Moreover, the judgment is not invalid because the proceeding was initiated upon a complaint in ejectment under oath, alleging a violation of a covenant of the lease, rather than upon a praecipe accompanied by an affidavit specifying in what particulars the lessee violated the terms of the lease. Essentially the two methods of proceeding are the same, differing in name only. An action begun by complaint is authorized by Rule 1007 of Civil Procedure, 12 P.S.Appendix, and that method was adopted rather than by praecipe and affidavit of default in accordance with the letter of the lease. In any view, however, as the majority opinion suggests, the release of errors contained in the lease renders the variance in procedure inconsequential. Cf. Consumers Mining Co. v. Chatak, 92 Pa. Super. 17.

Appellant's contention that as lessee it was entitled to continue in possession indefinitely from year to year after March 2, 1950, under Article 8 of the lease, is also untenable. That article provides: 'The lessee shall have the right or option to extend this lease from year to year from the date of expiration thereof, under the same terms and conditions'. A lease for a term certain, and thereafter to continue at the will of the lessee, may be enforceable. Myers v. Kingston Coal Co., 126 Pa. 582, 601, 17 A. 891. But covenants for continued renewals tending to create a perpetuity are not favored ...


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