Appeal, No. 71, Oct. T., 1963, from order of Court of Common Pleas of Montgomery County, No. 62-5216, in case of Wilson Laundry Company v. Robert M. Joos, individually and trading as Joos Equipment Co. Order affirmed.
Roland J. Christy, for appellant.
Harry J. J. Bellwoar, III, with him Bellwoar, Rich and Mankas, for appellee.
Before Rhodes, P. J., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 200 Pa. Super. Page 597]
This is an appeal from the refusal of the court below to open a judgment entered against defendant under a warrant of attorney in a lease.
In July 1958 the defendant entered into a lease, which provided for a term from November 1, 1958 to October 31, 1961, with a provision for an automatic extension on a year to year basis unless 60 days notice was given by either party prior to the expiration of the original three-year period. On September 7, 1961 the defendant sent a notice of termination to the plaintiff-landlord's agent. By letter dated September 11 the plaintiff advised the tenant that the notice of termination was refused as being submitted too late and in such letter stated "In view of the above we will not release you from your legal obligation completely. We feel that it will take some time in which to obtain another tenant; in order that you or we will not be inconvenienced too greatly we will accept a settlement rent collection covering the months of November and December of 1961." The evidence clearly revealed that the defendant never accepted the plaintiff's offer and never paid any rent after the October 1961 rental. At the end of the original term, on October 30, 1961 the defendant delivered the keys to the plaintiff and moved out of the property.
[ 200 Pa. Super. Page 598]
Thereafter the plaintiff made considerable repairs to the premises costing several thousand dollars and by so doing obtained a new tenant for the property for a lease which commenced April 1, 1962 and for a rental of $300.00 a month, the original rental to the defendant having been at the rate of $150.00 a month.
On June 12, 1962 judgment was entered by virtue of the power of attorney in the lease for one year's rental in the sum of $1,800.00, to which was added a collection fee of five per cent and interest, making a total amount of $1,992.00, and from which was subtracted a sum representing mitigation of damages of $875.00, leaving a balance for which judgment was entered of $1,117.00. The court, in dismissing the defendant's petition to open the judgment, was of the opinion that the plaintiff did not give the defendant proper credit for the amount of the rentals which the plaintiff received from April 1, 1962 to October 31, 1962. For this reason it directed that the assessment of damages be amended so that the defendant was not assessed for the rentals which were due and owing on the premises from April 1, 1962 to October 31, 1962. On January 10, 1963 the plaintiff amended the assessment of damages "as per court order of December 17, 1962," which covered rental at $150.00 a month for the months of November and December 1961, January, February and March 1962, or a total of $750.00, to which was added interest and attorney's fee, making a total amount of damages, as amended, as $806.25.
A petition to open a judgment is addressed to the equitable powers of the court, and, if doubt exists as to the real justice and equity of the case, the court below should not be reversed on appeal in the absence of an abuse of ...