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KENNEDY v. ERKMAN (ET AL. (06/28/57)

June 28, 1957

KENNEDY
v.
ERKMAN (ET AL., APPELLANT).



Appeals, Nos. 2 and 3, March T., 1957, from order of Court of Common Pleas of Allegheny County, July T., 1956-C, No. 799, in case of Samuel A. Kennedy et ux. v. Michael Erkman, et al. Order affirmed.

COUNSEL

John K. Tabor, with him Thomas W. Pomeroy, Jr., Aims C. Coney, Jr., and Kirkpatrick, Pomeroy, Lockhart & Johnson, for appellant.

Elmer H. Jacek, for appellant.

Henry E. Rea, Jr., with him Robert Palkovitz and Metz, McClure & MacAlister, for appellee.

Before Jones, CJ., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Chidsey

[ 389 Pa. Page 653]

OPINION BY MR. JUSTICE CHIDSEY

There are two appeals in this case. One is the appeal of John C. Huss, one of the defendants in the court below. The other is the appeal of Cities Service Oil Company, an intervenor defendant in the court below. Both appeals are from the order of the trial court which discharged rules to show cause why a judgment in an amicable action of ejectment should not be stricken or opened.

The case arises from the following facts: Appellees, Samuel A. Kennedy and Margaret J. Kennedy, his wife, owned a gasoline service station in Versailles Borough, Allegheny County. On April 9, 1951 appellees entered into a written lease to rent the premises containing the service station to Michael Erkman and John C. Huss. Erkman and Huss were both defendants in the court below, but Erkman is not an appellant in this court. The lease was for a period of one year, expiring on March 16, 1952, and from year to year thereafter, but, nevertheless, each party could terminate the lease at any time upon sixty days' written notice. The lease

[ 389 Pa. Page 654]

    provided that the premises could be used solely as a retail gasoline sales station and that only gasoline, motor oils and greases distributed or sold by lessors could be sold by the lessees, and such products could be purchased only from or through the lessors. Lessees agreed to pay to lessors a rental of $540 per month. On or about October 27, 1952, the Kennedys executed a written assignment to the intervenor appellant, Cities Service Oil Company. The assignment provided that in consideration of One Dollar the Kennedys assigned to Cities Service Company "all rights, privileges and obligations" in the lease with Erkman and Huss, "with the specific exception that all rental payments shall continue to be paid directly to [the Kennedys]" by Erkman and Huss. The assignment further provided, "This assignment does not include the rentals and all rights incidental thereto." On a date, found by the court below to be January 12, 1956, appellee Samuel Kennedy gave timely notice to Erkman and Huss that the lessors terminated their lease and directed the lessees to vacate the premises on or before March 16, 1956. When the lessees failed to vacate the premises in accordance with the notice, the Kennedys confessed judgment in an amicable action of ejectment in accordance with the provisions of the lease. On lessees' motion a rule was granted on plaintiffs to show cause why the judgment should not be opened and the defendant allowed to defend. Cities Service Oil Company was permitted to intervene and to file a petition to open the judgment and an answer to the complaint. Subsequently, the defendants and the intervenor filed a petition praying the court to strike off the judgment, because one of the lessors, Margaret J. Kennedy, did not sign the notice of termination of the lease. The court below heard the case on the pleadings and depositions taken by the parties and, as above stated, refused to

[ 389 Pa. Page 655]

    strike or open the judgment entered for the plaintiffs in the ...


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