Appeal, No. 283, Jan. T., 1957, from order of Court of Common Pleas of Lancaster County, Sept. T., 1956, No. 28, in case of Elizabethtown Lodge No. 596, Loyal Order of Moose v. Edwin J. Ellis. Order reversed.
Morris Wolf, with him Ralph M. Barley, Mitchell E. Panzer, Barley, Snyder, Cooper & Mueller, and Wolf, Block, Schorr & Solis-Cohen, for appellant.
F. Lyman Windolph, with him Henry F. Gingrich, and Windolph, Burkholder & Hartman, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This is an appeal from an order of the Court of Common Pleas of Lancaster County discharging rules to strike off and to open a judgment entered by confession in an amicable action of ejectment and granting a rule by the appellee to amend nunc pro tunc its petition for leave to enter judgment.
The material facts, which are not in dispute, are as follows: On April 16, 1940, the appellant, Edwin J. Ellis, and the appellee, lessor, Elizabethtown Lodge No. 596, Loyal Order of Moose, entered into a written lease prepared by the lessor, covering an unimproved lot in the Borough of Elizabethtown, Lancaster County,
Pennsylvania. The term of the lease was for a period of 20 years from April 1, 1940, with the right of appellant to renew the lease for two additional terms of five years each. The agreed upon rental was $50 per month during the first 20 years; $60 per month for the first renewal period of five years and $75 per month for the second renewal term. The lease was silent with respect to the place at which the rent was to be paid.
Shortly after taking possession appellant, in accordance with permission contained in the lease and the prior approval of the lessor, erected on the premises for occupancy by the American Stores Company a one-story building at a cost to appellant of $31,250. As further contemplated by the parties to the original lease, a sub-lease of the improved premises was made to the American Stores Company at a rental exceeding that payable by appellant to appellee.
In the same year, 1940, appellant assigned his interest in the lease to Jacob Ellis Realties, Inc., of which he was and is president and treasurer. The corporation in turn assigned its interest to the Central-Penn National Bank of Philadelphia as collateral security for a loan. Both assignments were approved in writing by the appellee. Thereafter the rent was paid by the bank to the appellee.
More than 16 years later, on June 21, 1956, the bank notified the appellant and appellee by letter that its interest in the lease had terminated as of June 1, 1956. As a result the obligation devolved upon appellant or upon the corporation of which he was president to see to the payment of rent directly to the lessor commencing July 1, 1956. At the time the appellant received the letter he was making preparations to ...