Joseph Rappaport, Samuel Blank, Rappaport, Lagakos & Blank, Philadelphia, for appellants.
Lawrence D. Biele, Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther, Wright and Woodside, JJ.
[ 176 Pa. Super. Page 455]
This appeal is from cross-action which were consolidated.
David A. Yassky and Rose Yassky, his wife, hereinafter called the 'Yasskys', filed an amicable action and confessed a judgment in ejectment and a judgment for money against Seaboard Radio Broadcasting Corporation, hereinafter called 'Seaboard', under a lease between them. Seaboard thereupon obtained a rule to open the judgments. It also filed a Complaint in Equity whereby it sought reformation of that portion of a lease between the parties pertaining to payment of excess taxes, and excess water and sewer rent. After the Yasskys filed their answer, both actions were consolidated
[ 176 Pa. Super. Page 456]
and tried in Court of Common Pleas No. 5 of Philadelphia County, which entered a decree opening the judgments and reforming the lease. From this decree the Yasskys appealed.
It appears from the record that Seaboard owned premises known as 1427 Walnut Street, Philadelphia, and occupied the third and fourth floors of the building. June 18, 1946 Yasskys and Seaboard entered into an agreement of sale whereby the Yasskys agreed to purchase the aforesaid premises, and a lease agreement whereby they leased to Seaboard the floors then occupied by Seaboard. The agreement of sale which was then executed by the Yasskys included in its terms the following:
'It is a condition of this sale and the parties hereto hereby agree that at time of settlement, Seller and Purchaser shall enter into a lease agreement in the form attached hereto and made part hereof wherein Purchaser shall lease to Seller the third and fourth floors of the premises herein described for a term of ten years from the date of settlement at the rental of One Dollar ($1.00) per year.'
Paragraph 6 of the lease contained the following provisions:
'(b) Lessee further agrees to pay as rent in addition to the minimum rental herein reserved all taxes assessed or imposed upon the demised premises and/or the building of which the demised premises is a part during the term of this lease, in excess of an over and above those assessed or imposed at the time of making this lease * * *'
'(d) Lessee further agrees to pay as additional rent, if there is a metered water connection to the said premises, all charges for water consumed upon the demised
[ 176 Pa. Super. Page 457]
premises in excess of the yearly minimum meter charge * * *'
As provided in the agreement of sale, title to the premises was conveyed by Seaboard to the Yasskys.
The assessed valuation of 1427 Walnut Street was raised by the City of Philadelphia for the years 1947, 1948, 1949 and 1950, and the amount of taxes and water rents paid was in excess of 1946, the year when the lease was executed. In 1950 demand was made on appellee to pay the excess. When payment was refused, ...