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AMERICAN BOWLING CLUB v. KANEFSKY (03/24/52)

March 24, 1952

AMERICAN BOWLING CLUB, INC., APPELLANT,
v.
KANEFSKY



Appeal, No. 65, Jan. T., 1952, from judgment of Court of Common Pleas No. 2 of Philadelphia County, June T., 1951, No. 1209, in case of American Bowling Club, Inc., v. David Kanefsky and Angelo Scarlata. Judgment affirmed; reargument refused April 16, 1952.

COUNSEL

Joseph A. Keough, for appellant.

Charles S. Schermer, for appellees.

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

Author: Stearne

[ 370 Pa. Page 137]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

Plaintiff corporation appeals from the decision of the court below striking off a judgment which plaintiff had entered by confession pursuant to a warrant of attorney contained in a lease between plaintiff-lessor and defendant-lessee. Plaintiff had entered judgment for accelerated rent for the balance of the term. It suffered this judgment to be stricken off. Plaintiff then entered a second judgment for rent in arrears only. The court below struck off the second judgment.

Pertinent portions of the warrant of attorney in question read as follows: "If rent... shall remain unpaid on any day when the same ought to be paid, lessee hereby empowers any... attorney of any court of record to appear for lessee in any and all actions which may be brought for rent... and in said... amicable action or actions to confess judgment against lessee for all or any part of the rent specified in this lease and then unpaid including, at lessor's option, the rent for the entire unexpired balance of the term of this lease.... Such authority shall not be exhausted by one exercise thereof, but judgment may be confessed as aforesaid from time to time as often as any of said rent... shall fall due or be in arrears...". (Italics supplied)

[ 370 Pa. Page 138]

The learned court below correctly concluded that "While this language clearly authorizes successive exercises of the power 'as often as' installments of rent become in arrears, it nowhere expressly, or by necessary implication, authorizes repeated confessions of judgment for the same rent." (emphasis supplied) Plaintiff argues that repeated exercises of the power were clearly contemplated by the first reference to "any and all actions," and that the effect of the court's decision is to treat as surplusage the concluding phrase of the power in which successive judgments are explicitly authorized.

Powers of attorney plural in form have been considered by this Court on several occasions. We have consistently held that such powers are authority for one judgment only. As early as 1836, this Court said in Adams v. Bush, 5 Watts 289, 291: "Most clearly there was no authority to enter five judgments for the several installments mentioned in said bond, whatever may be the meaning or effect of the words 'after filing one or more declarations to confess judgment or judgments' against me for the amount of the said bond." Several other such cases are reviewed in Philadelphia v. Johnson, 208 Pa. 645, 57 A. 1114. The power here under consideration would be no better authority for plural judgments than the words construed in these early cases except for the express provision that the power should not be exhausted by one exercise. This clause, therefore, was necessary to establish plaintiff's right to enter successive judgments, as defendant fell in arrears in successive months. But it cannot be regarded as authority for the entry of more than one judgment for the same rent.

The reason for the general rule that plural judgments cannot be entered pursuant to one power of attorney was well ...


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