Appeal from order of Court of Common Pleas of Montgomery County, No. 64-5455, in case of Simon Lenson, agent for Lansdowne Centre Building, Inc. v. Robert B. Klovsky and Beatrice B. Klovsky, his wife, and Norman Sandler et al.
Lawrence A. Brown, with him Duffy, McTighe and McElhone, for appellants.
I. Jerome Stern, with him Robert J. Stern, and Stern and Stern, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Cohen dissents. Dissenting Opinion by Mr. Justice Roberts.
This is an appeal from an order of the Court of Common Pleas of Montgomery County refusing to strike off a judgment entered by confession and, at
the same time, correcting the amount of the judgment by reducing it from $66,622.50 to $20,715.46.
On January 31, 1961, Lansdowne Centre Building, Inc. (Lessor), by and through its agent, Simon Lenson (Lenson), and Robert B. Klovsky and Beatrice B. Klovsky, his wife, and Norman Sandler and Mildred W. Sandler, his wife, individually and trading as Crossroads Pharmacy (Lessees), entered into a written lease for premises, known as the Landsdowne Centre Building, located at the northwest corner of Baltimore Avenue and Lansdowne Avenue, Lansdowne Borough. The term of the lease was for a period of ten years, running from February 1, 1961 to January 31, 1971. The minimum annual rental was stated: "The minimum annual rent for the first five (5) years for the said term of this lease shall be Seventy-eight Hundred ($7800.00) Dollars in monthly installments of Six Hundred and Fifty ($650.00) Dollars; and for the last five (5) years of the said lease at the annual rate of Eighty-four Hundred ($8400.00) Dollars, payable in monthly installments of Seven Hundred ($700.00) Dollars, rent to begin on the 1st day of February, Nineteen Hundred and Sixty-one (1961)."
Lessees, on or about April 19, 1963, sublet the premises to Hillbrook Drug Co., Inc. (Hillbrook). On May 1, 1964, a default in the rent occurred and, on May 14, 1964, Simon Lenson, as agent for lessors, filed with the Prothonotary of Montgomery County a praecipe for entry of judgment and assessment of damages under the confession of judgment clause contained in the lease, together with an averment of default and an affidavit of nonmilitary service. Although Lenson, the agent, was also an attorney at law, he did not enter an appearance for defendants and confess judgment for them in such status as the terms of the lease permitted. Instead, as provided in the Act of 1806, Feb.
, P. L. 334, 4 Sm. L. 270, § 28 (12 P.S. 739), by virtue of a praecipe, the prothonotary entered the judgment and assessed the damages.
We agree with the court below that the execution of the lease by Simon Lenson, agent for Lessor, did not violate the Statute of Frauds (the Act of 1951, April 6, P. L. 69, art. II, § 202, 68 P.S. § 250-202), and that the lease is a valid instrument, duly executed by an agent of Lessor, who was authorized in writing to manage and operate the Lansdowne Centre Building.
The only issue we need consider is whether, under the Act of 1806, supra, the Prothonotary of Montgomery County had the authority, within the terms of the written lease here involved, to enter judgment by confession and to assess damages.
The praecipe for entry of judgment and the assessment of damages, as originally filed, read as follows:
"Enter judgment in favor of the plaintiff and against the defendants by confession on the annexed lease, release of errors and waiver of exemption, etc., and assess damages as follows:
Rent to 1/31/66 at $650.00 per month ...