Appeal, No. 114, Jan. T., 1956, from order of Court of Common Pleas No. 7 of Philadelphia County, Sept. T., 1955, No. 2774, in case of Wissahickon Realty Corporation v. Regina D. Boyle, trading as Boyle's Tavern. Order reversed.
Samuel C. Nissenbaum, with him Marvin D. Weintraub, for appellant.
Joseph V. McEnery, for appellee.
Before Stern, C.j., Bell, Chidsey and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
While defendant may have a valid defense entitling her to open the confessed judgment entered against her, she has not set it forth in her petition for that purpose. The defense which she does assert has no legal merit.
On August 15, 1955, plaintiff, Wissahickon Realty Corporation, by written agreement leased to defendant, Regina D. Boyle, trading as Boyle's Tavern, a one-story store building at 5047 Wissahickon Avenue, Philadelphia, to be used and occupied as a restaurant and tavern and for no other purpose, for the term of five years, at a yearly rental of $3,000.00 payable in monthly installments in advance beginning from the date of the lease. The agreement contained a paragraph as follows: "Lessee has made application to the Penna. Liquor Control for a transfer of a restaurant liquor license into the demised premises. If the Penna. Liquor Control Board approves such transfer, then this lease is to be effective. Should the Penna. Liquor Control Board refuse the transfer of the restaurant liquor license into these premises, then this lease is to be void and of no effect." Defendant entered into possession and paid the first monthly installment of rent due August 15, 1955, but made no further payments and vacated the premises a month thereafter. Plaintiff thereupon entered judgment against her by confession for the entire balance due for the unexpired term of the lease, together with an attorney's commission, amounting in all to $15,487.50, as provided in the lease, whereupon defendant filed a petition to open the judgment and let her into a defense. The court granted a rule to show cause, which it subsequently made absolute, and from its order so holding plaintiff now appeals.
It appears that at the time of the execution of the lease defendant had entered into an agreement for the purchase of a restaurant liquor license from the holder and had applied to the Liquor Control Board for the issuance of a license to her and for its transfer to the demised premises. In her petition to open the judgment, however, she averred that an investigator on behalf of the Liquor Control Board interviewed her and
advised her that there was a restrictive covenant in certain deeds covering a tract of land of which the demised premises were once a part, and that, in his opinion, this restriction, which prohibited the erection or use of any building for the sale of alcoholic beverages, applied to the demised premises, and that he would so report to the Board. She averred further that a petition opposing her application for a license was signed by a large number of the residents of the neighborhood and filed with the Board. Because of these facts she stated that she had withdrawn her application for the issuance of the license and the transfer, had terminated the lease, vacated the premises, and demanded the return of the first month's rent which she had paid.*fn1
It should be immediately obvious that the reasons thus asserted by defendant as justification for her attempted cancellation of the lease are wholly unavailing. As already stated, the lease agreement declared that she had made application for a transfer of the license to the demised premises, and it provided that, if the Liquor Control ...