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WEST PENN SAND & GRAVEL COMPANY v. SHIPPINGPORT SAND COMPANY (04/17/51)

April 17, 1951

WEST PENN SAND & GRAVEL COMPANY
v.
SHIPPINGPORT SAND COMPANY, APPELLANT



Appeal, No. 60, March T., 1951, from order of Court of Common Pleas of Beaver County, March T., 1950, No. 314, in case of West Penn Sand & Gravel Company v. Shippingport Sand Company. Order affirmed.

COUNSEL

Charles McC. Barrickman, with him Buchanan, Wallover & Barrickman, and Keller & Luxenberg, for appellant.

Leonard L. Ewing, with him John D. Ray, Robert L. Orr, and Reed, Ewing & Ray, for appellee.

Before Drew, C.j., Stern, Stearne, Jones, Bell, Lander and Chidsey, JJ.

Author: Stern

[ 367 Pa. Page 219]

OPINION BY MR. JUSTICE HORACE STERN

This appeal deals solely with complaints of procedural irregularities in the entry of an amicable action and confession of judgment in ejectment. If there is any underlying controversy of substance between the parties it is not disclosed in the present record.

In 1947 a lease was entered into between plaintiff as lessor and defendant as lessee for certain premises

[ 367 Pa. Page 220]

    in East Rochester, Beaver County, including railroad sidings, docks and equipment, for a term of ten years, at a monthly rental of $200 and in addition a stipulated percentage of the total gross sales of certain material sold by lessee on the premises. The lease contained several covenants to be performed by lessee in regard to the use of the premises and other matters, and it provided that in case of a violation of such covenants lessor should notify lessee, in writing, specifying the particulars of such breaches or defaults, and, if they were not remedied within 60 days after receipt of such notice, lessor might enforce forfeiture of the lease and retake possession of the leased premises. There was also a provision that if at any time the premises were deserted or closed lessor might enter and relet the premises as agent of lessee for any unexpired portion of the term. On any breach of covenant on its part lessee empowered any attorney, in an amicable action of ejectment for the premises, to enter confession of judgment, with release of all errors.

On November 7, 1949 plaintiff served on defendant written notice of default, enumerating many alleged breaches of the latter's convenience in the lease and advising it that, unless all such defaults were remedied within 60 days, plaintiff would institute legal proceedings to effect a forfeiture of the lease. On January 28, 1950 an amicable action and confession of judgment in ejectment were entered; there was annexed thereto an affidavit by plaintiff's attorney stating that "pursuant to the terms of the Lease Agreement, Exhibit 'A', attached hereto, notice was served upon the Shippingport Sand Company on the 7th day of November, 1949, advising it of its breach of covenants of said Lease Agreement, and also advising it that if it persisted in such breach for a period of sixty days that under the terms of said Lease Agreement such breach would operate as a forfeiture. And further, that such

[ 367 Pa. Page 221]

    breach had continued during the said period of sixty days up to and including January 27, 1950; that on this date the premises being deserted and closed, the Lessor did enter upon the premises and take ...


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