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PITTSBURGH v. CHARLES ZUBIK & SONS (06/26/61)

June 26, 1961

PITTSBURGH
v.
CHARLES ZUBIK & SONS, INC., APPELLANT.



Appeal, No. 151, March T., 1961, from order of Court of Common Pleas of Allegheny County, Oct. T., 1959, No. 3910, in case of City of Pittsburgh v. Charles Zubik & Sons, Inc. Order affirmed.

COUNSEL

Alexander C. Sherrard, with him Campbell, Casteel & Thomas, for appellant.

Regis C. Nairn, Assistant City Solicitor, with him David Stahl, City Solicitor, for City of Pittsburgh, appellee.

Before Jones, C.j., Bell, Jones, Cohen, Bok and Eagen, JJ.

Author: Jones

[ 404 Pa. Page 220]

OPINION BY MR. CHIEF JUSTICE JONES.

The City of Pittsburgh, by lease dated October 1, 1952, demised to Charles Zubik & Sons, Inc., a portion of the north bank of the Allegheny River in Pittsburgh for wharf purposes. The lease provided that either

[ 404 Pa. Page 221]

    party could cancel it upon giving sixty days' notice to the other in writing of intention so to do and further empowered any attorney of record, after default in payment of rent or breach of the provisions of the lease, "to appear for Lessor [sic]", confess judgment against the lessee for rent due, plus costs of suit and an attorney's fee of $25.00, and also confess judgment in ejectment against the lessee. The word "Lessor", where employed in the connection above indicated, was typed in on the printed lease form.

On January 30, 1956, the City notified the Zubik Company that it was canceling the lease, the cancellation to become effective sixty days from the service of the notice, which ordered and directed Zubik to deliver up possession of the premises free of any structures, obstructions or property of the lessee. The latter, however, did not comply with the order contained in the notice but continued to remain in possession of the premises.

On September 29, 1959, the City of Pittsburgh filed an amicable action in ejectment against the Zubik Company as defendant alleging, inter alia, that the sixty days' notice of cancellation of the lease had been given by the City on January 30, 1956, and that the defendant had not removed from the premises as demanded nor had it paid any rent to the City since that date. Murray S. Love, an attorney, entered an appearance for the defendant company in reliance upon the power of attorney to confess judgment contained in the lease and confessed judgment against Zubik & Sons for $4,200 in back rent plus a $25 attorney's fee and also judgment in ejectment in favor of the City.

Thereafter, on October 2, 1959, the defendant filed a petition to strike off the judgment whereon the court granted a rule on the plaintiff to show cause why the judgment should not be stricken and granted the defendant's request for a stay of ...


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