Appeal, No. 108, Jan. T., 1956, from order of Court of Common Pleas No. 6 of Philadelphia County, Sept. T., 1955; No. 901, in case of James J. Grady v. Samuel G. Schiffer, trading as Sally Shops. Order reversed.
Eugene F. Mande, with him Nathan Teitelman, for appellant.
Joseph B. Quinn, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
Acting under authority of a warrant of attorney to confess judgment contained in a lease, the assignee of the lessor caused judgment to be entered against the lessee in the sum of $7,175 plus an attorney's commission of 5%, and issue an attachment execution against
the lessee's bank account. The lessee obtained a rule to show cause why the judgment should not be stricken off and also a rule to show cause why it should not be opened. The court below discharged the rule to strike off the judgment without prejudice to the rule to open. From that order the lessee now appeals.
The lease agreement in question, dated January 8, 1953, is between the Pennsylvania Company for Banking and Trusts, Agent for administrators of the Estate of Henrietta E. Garrett, Deceased, as lessor, and Samuel G. Schiffer, trading as Sally Shops, as lessee. It leases the first floor and basement of premises 133 South 13th Street, Philadelphia, as a women's specialty shop for a term of one year from January 1, 1953, and then from year to year in default of notice by either party to terminator. The lessee vacated the premises on May 31, 1955, having paid all the rent then due. Meanwhile, on March 1, 1955, the lease had been assigned by the lessor to James J. Grady, the plaintiff herein.
The warrant of attorney contained in the lease is as follows: "If the rent and/or any charges hereby reserved as rent shall remain unpaid on any day when the same ought to be paid, Lessee hereby empowers any Prothonotary or attorney of any Court of Record to appear for Lessee in any and all actions which may be brought for said arrears of rent of charges reserved as rent,...." The judgment confessed thereunder embraced two sets of claims, one, amounting to $5,800, for the value of six items of property which had allegedly been improperly removed from the premises by the lessee, and the other, amounting to $1,375, for three items of damage to the premises which plaintiff was obliged to repair. The question in the case is whether these claims are within the scope of the warrant of attorney to confess judgment, that is to say,
whether they are "charges reserved" ...