Appeal from order of Court of Common Pleas of Philadelphia County, March T., 1967, No. 4814, in case of Baltic Development Company, Inc. v. Jiffy Enterprises, Inc.
David N. Bressler, with him Sheridan P. Hunt, Jr., for appellant.
Leonard Dubin, with him Philip C. Patterson, and Blank, Rome, Klaus & Comisky, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien.
Appellant, Baltic Development Company (Baltic) is the owner of a seven-story structure located at 146 to 150 North 13th Street, Philadelphia. Appellee, Jiffy Enterprises, Inc. (Jiffy), had occupied the first floor of the building, under a lease and successive renewals of the lease, for a total term extending from October 1, 1955, to September 30, 1966, at a yearly rental of $6,000.00. At the end of its last renewal, or shortly prior thereto, Jiffy vacated the premises.
On May 12, 1967, Baltic was granted leave of court to enter a judgment by confession against Jiffy on the warrant of attorney contained in the lease. On May 17, 1968, judgment was entered against Jiffy in an
amicable action to confess judgment; an assessment of damages amounting to $26,080.37, together with an affidavit of default, was also filed. The damages were broken down into: Losses, $24,115.00; Interest, $723.45; and Attorney's Commission at 5%, $1,241.92. In the affidavit of default, Baltic averred that it had suffered losses in the amount of $24,115.00 as a result of damage to the leased premises caused by Jiffy's violations of various covenants in the lease.
On July 19, 1967, Jiffy filed a petition requesting that the judgment be either stricken or opened. Baltic filed an answer, in essence denying the material allegations of the petition. Jiffy then proceeded to depose one Donald Rosen, an employee of Lanard & Axilbund, the managing agent of Baltic's 13th Street premises.
On August 2, 1968, the Court of Common Pleas of Philadelphia County, McDevitt, P. J., granted Jiffy's petition to open judgment. Baltic brought this appeal. We affirm.
A study of the lease indicates to us that there is at least an important factual question as to whether Jiffy has been accorded the procedural safeguards to which it is entitled before a judgment can be confessed against it on a warrant of attorney. Jiffy contends that the confession of judgment was invalid because, inter alia, it had not received notice of the alleged default, and because there was no averment in the affidavit of default that the repairs necessitated by the alleged default had been made. While we cannot agree with Jiffy that both of these are prerequisites to a valid confession of judgment, a reading of the intricate provisions of the lease convinces us that a failure either to notify or to make the repairs invalidates the judgment.
Jiffy relies, as did the court below, on para. 34 of the rider to the lease, which provides, in relevant part: "34: 'Lessor agrees in the event that, and when and as often as ...