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PARK-MAIN CO. PENN. v. FAYETTE NATIONAL BANK AND TRUST COMPANY UNIONTOWN. (07/02/59)

July 2, 1959

PARK-MAIN CO. OF PENN., INC., APPELLANT,
v.
FAYETTE NATIONAL BANK AND TRUST COMPANY OF UNIONTOWN.



Appeal, No. 61, March T., 1959, from order of Court of Common Pleas of Fayette County, June T., 1958, No. 589, in case of The Park-Main Co. of Penn., Inc. v. Fayette National Bank and Trust Company of Uniontown. Order affirmed. Proceedings on petition to strike off judgment entered by confession. Order entered directing that judgment be stricken, opinion by CARR, P.J., concurring opinion by DUMBAULD, J. Plaintiff appealed.

COUNSEL

Wiley A. Bucey, Jr., with him Sherman T. Rock, G. Taylor Hess, and Paul, Lawrence & Rock, for appellant.

David McNeil Olds, with him Elder W. Marshall, Thomas A. Waggoner, and Reed, Smith, Shaw & McClay, for appellee.

Before Jones, C.j., Bell, Mussmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Mcbride

[ 397 Pa. Page 77]

OPINION BY MR. JUSTICE MCBRIDE

This is an appeal by landlord from an Order of the Common Pleas Court of Fayette County striking off a judgment for $772,916.55 entered against the tenant. The judgment was purportedly entered under a power to confess judgment contained in a long term lease.

On October 31, 1952, Fayette Title and Trust Building, a Pennsylvania corporation, leased to Fayette National Bank and Trust Company of Uniontown, for a term of 35 years and 6 months, commencing November 1, 1952 and ending April 30, 1988, the major portion of the first floor and certain basement areas of a twelve-story office and apartment building. The basic annual rental was $24,000, to be paid in equal monthly installments of $2,000 each; and in addition thereto, a sum equal to 25% of any future increase in local real estate taxes on the building was to be paid. The lease also provided that in the event of a fire and thereafter during the time consumed in making repairs, the tenant would have the right to a reduction in rent proportioned to the area the damaged premises bears to the whole.

In December, 1952, Fayette Title and Trust Building assigned this lease to the Park-Main Co. of Penn., Inc. On February 12, 1958, a fire caused substantial damage to the leased premises. Thereafter the tenant computed the proportion of the damaged area to the whole and offered the landlord a reduced monthly rental installment due March 1, 1958. The landlord refused to accept the check because of a dispute as to the damaged area. Checks in like amount were subsequently tendered to the landlord for several ensuing months but were likewise refused. On August 4, 1958 the landlord entered judgment by confession in its favor and against the tenant bank for the sum of $736,111 debt plus $36,805.55 attorneys' commissions.

[ 397 Pa. Page 78]

The only pleading filed to support the entry of judgment was an unverified paper titled "Statement and Confession" signed by two lawyers as attorneys for the landlord plaintiff. In its entirety it read as follows: "The claim of the Plaintiff in this case is founded on a lease under seal, and an assignment thereof, with power of attorney to confess judgment. The lease was recorded November 3, 1952, in the Recorder's Office of Fayette County in Deed Book Volume 769, page 192. The assignment was recorded December 29, 1952, in the Recorder's office of Fayette County in Deed Book 773, page 135. Copies of both are attached hereto, made part hereof and marked Exhibits 'A' and 'B'.

"The Plaintiff claims that the Defendant is in default in the payment of rentals and taxes ...


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