Appeal from order of Court of Common Pleas of Allegheny County, Jan. T., 1967, No. 606, in case of Northway Village No. 3, Inc. v. Northway Properties, Inc.
David R. Levin, for appellant.
Robert C. McCartney, with him Edward G. O'Connor, and Eckert, Seamans & Cherin, for appellee.
Musmanno, Jones, Cohen, Eagen and O'Brien, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Bell and Mr. Justice Roberts took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Cohen.
This is an appeal by appellant-lessor from the order of the court below striking off a judgment in ejectment confessed against appellee-lessee pursuant to a warrant of attorney contained in a lease. By agreement of lease dated July 14, 1961, appellant as lessor demised to appellee as lessee for a term of fifty years certain described premises with the improvements thereon stated to be as follows: "Having erected thereon two apartment house buildings known as 411-431 Brown's Lane . . . containing together 120 apartments, 7 garages, and on-site parking for 154 cars." The lease imposed upon the tenant the obligation to pay all taxes, to provide insurance, to make all necessary repairs to the buildings, extraordinary as well as ordinary, and to make the rental payments regardless of any destruction by fire or other casualty.
Section 2.4 of the lease provides: "Tenant shall not tear down, remove, or substantially alter any part of the demised premises without the prior written consent of Lessor." The lease includes a power to confess judgment in ejectment as follows: "In case of default in any of the covenants or agreements in this
lease by tenant, which shall not have been corrected by tenant within ten (10) days after receipt of notice so to do, the said tenant . . . authorizes and empowers any such attorney . . . to appear for said tenant and confess judgment forthwith against tenant . . . in an amicable action of ejectment for the premises above described . . . ."
Alleging a breach of the above quoted Section 2.4 of the lease, appellant entered judgment for possession by confession and in its affidavit of default averred the default as follows:
"a. On or about the beginning of the month of May, 1966, without the required prior written consent of the Lessor, and without Lessor's knowledge, the defendant wrongfully damaged and substantially altered the demised premises by excavating a substantial portion of the demised premises and removing a large quantity of earth from the premises;
b. The unauthorized commencement by Tenant of construction of a building without first having obtained the required prior written consent of the plaintiff as Lessor;
c. The elimination of a substantial number of spaces for on-site parking and reducing the number of such spaces below the number specified in the Agreement of Lease without obtaining the required prior written consent of plaintiff as Lessor;
d. Without the required prior written consent of the Lessor, defendant, as Tenant, changed and altered the shape, appearance, and use of the demised premises from ...