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FEDUN ET UX. v. MIKE'S CAFE (11/12/64)

decided: November 12, 1964.

FEDUN ET UX., APPELLANTS,
v.
MIKE'S CAFE, INC.



Appeal from judgment of County Court of Philadelphia, Dec. T., 1960, No. 1088-C, in case of Michael Fedun et ux. v. Mike's Cafe, Inc. et al.

COUNSEL

Joseph Skale, for appellants.

Herbert H. Hadra, with him Maurice Freedman and Robert H. Arronson, for appellees.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Montgomery, J. Wright, J., would affirm on the opinion of the lower court.

Author: Montgomery

[ 204 Pa. Super. Page 358]

On December 19, 1960, Michael Fedun and Pauline Fedun, owners by the entireties of premises known as 244 North Eighth Street, Philadelphia, Pennsylvania, confessed judgment in the amount of $4,996.16 against Mike's Cafe, Inc., a Pennsylvania corporation, Samuel Gomer, and Morris Gomer, lessees, based on a ten-year lease, allegedly in default, which had been entered into

[ 204 Pa. Super. Page 359]

    among the parties on September 1, 1951. On September 27, 1962, Samuel Gomer and Morris Gomer filed a petition to open the judgment but no such petition was filed in behalf of the corporate defendant. After an answer was filed by Michael and Pauline Fedun, Michael Fedun died on February 3, 1961, thereby vesting title in the surviving spouse to the property and to the judgment.*fn1 Thereafter depositions were taken of Pauline Fedun (appellant hereafter), Samuel Gomer and Morris Gomer (appellees hereafter), and other witnesses in behalf of the appellees. The judgment subsequently was opened. At the time of the trial before Hon. Keller H. Gilbert, sitting without a jury, no testimony was received in evidence; but it was stipulated by the parties that the matter should be disposed of by the court on the record and the depositions, subject only to the objections appearing in the depositions. Judgment for the appellees having been entered by the lower court, the appellant is now requesting judgment in her favor or a new trial.

The damages awarded in the judgment were for unpaid rent from July 1, 1960, through August 31, 1961, the expiration date of the ten-year term of the lease, in the sum of $3,500; unpaid excess water and sewer rentals from January, 1957, to February 15, 1960, in the sum of $1,094.16; electrical repairs, $227; and attorney commissions, $175; or a total of $4,996.16.

Appellees contested the claims for two reasons, viz., (a) the landlord had assumed possession and leased the premises to a new corporation, 244 Bar, Inc., during the period of the alleged default in rentals*fn2 and

[ 204 Pa. Super. Page 360]

(b) the appellees (Gomers) had sold the restaurant and taproom business at the leased premises on October 16, 1956, to Charles Brown, who took possession with the full consent of appellant and her husband, and said Charles Brown had occupied said premises thereafter until February, 1960, when he sold the business including the lease to the 244 Bar, Inc., also with the consent of appellant and her husband.*fn3

It is appellees' contention that in November, 1960, there was no rent due and thereafter the old lease was revoked by the new lease to the 244 Bar, Inc. They also testified in their depositions that they had been released from the old lease in 1956 when they sold the business to Brown, although such release was not alleged in their petition to open the judgment.

The question of whether or not the new lease to the 244 Bar, Inc., effective January 12, 1961, affected appellees' liability under the original lease or the judgment thereon is not properly before us on this appeal. Judgment having been confessed on December 19, 1960, prior to the effective date of the new lease, January 12, 1961, appellant's rights were fixed, if at all, to the full amount of the lease in default on that date; and at the time of execution on such judgment, the appellees would have an opportunity to contest the matter of the new lease and its effect on the ...


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