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GRATZ ET AL. v. MARGOLIS. (06/11/58)

June 11, 1958

GRATZ ET AL., APPELLANTS,
v.
MARGOLIS.



Appeal, No. 63, Oct. T., 1957, from order of Court of Common Pleas No. 4 of Philadelphia County, June T., 1956, No. 5227, in case of Gratz Brothers et al. v. Louis Margolis. Order affirmed.

COUNSEL

Ronald N. Rutenberg, with him Harry A. Rutenberg and David Freeman, for appellant.

Martin Vinikoor, with him Howard L. Criden, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Hirt

[ 186 Pa. Super. Page 269]

OPINION BY HIRT, J.

On October 1, 1953, the plaintiffs leased a garage building to the defendant for the term of one year, for money rent reserved payable at $75 per month. The lease provided for a continuation of the tenancy from month to month after the expiration of original term. Under this right conferred, the defendant continued to occupy the premises until November 1, 1955; all of the accrued rent, at $75 per month, had been paid when he vacated the premises on that date.

The lease in paragraph 8(b) provided: "Lessee covenants and agrees that he will without demand... repair all damage... to the premises in general; keep the same in good order and repair as they are now, reasonable wear and tear... excepted. The lessee agrees to surrender the demised premises in the same condition in which Lessee has herein agreed to keep the same during the continuance of this lease." Paragraph 8(h) is to this effect: "Lessee shall be responsible for

[ 186 Pa. Super. Page 270]

    the condition of the pavement, curb, cellar doors... and other erections in the pavement during the term of this lease..." In paragraph 6(a) it was stated: "Lessee agrees to pay as rent in addition to the minimum rental herein reserved any and all sums which may become due by reason of the failure of the lessee to comply with all the covenants of this lease... and also any and all damages to the demised premises caused by any act of neglect of the Lessee." Paragraph 13(e) authorized the Lessors "to go upon the demised premises in the event of the failure of lessee to perform his covenants" and to make repairs necessary to restore the premises, "the cost thereof, at the sole option of Lessor, to be charged to Lessee as additional and delinquent rent.".

The lease authorized the entry of judgment by confession in an amicable action "for the recovery of rent... or other charges, payments, costs, and expenses reserved as rent or agreed to be paid by the Lessee..." Purportedly on this authority the plaintiffs confessed judgment against the defendant in the sum of $1,589.70 as "other charges, payments, costs and expenses reserved as rent" which sum included an attorney's commission of 5%. In the amicable action it was averred in the narr, by way of assessment of damages in the above amount, that "as a result of the activities of said defendant in and about said demised premises the stone curb and the pavement were damaged."

Defendant petitioned the court to strike off the judgment and after hearing the rule granted thereon was made absolute. Plaintiffs' appeal is from that order.

There is a material difference between a proceeding attending an application to the prothonotary to enter judgment under the Act of February 24, 1806, P.L. ...


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