Appeal from judgment of Court of Common Pleas of Philadelphia County, March T., 1967, No. 603, in case of Albert J. Grosser Co. v. A. A. Rosen.
Michael H. Egnal, with him John D. Egnal, and Egnal, Simons & Egnal, for appellant.
Seymour Kurland, with him Wolf, Block, Schorr and Solis-Cohen, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Cohen. Mr. Justice Eagen dissents and would affirm.
This is an action by a real estate broker, Albert J. Grosser, Co. (Grosser), for leasing brokerage commissions allegedly owed by A. A. Rosen (Rosen). The essential facts are not in dispute.
Bargain City, U.S.A. retained Grosser to secure a tenant for premises it owned at 2501 Kensington Avenue, Philadelphia and negotiate a lease for the same. Grosser did secure a tenant, Linville Corporation, and
negotiated a lease dated September 29, 1959, for a term of ten years commencing November 1, 1959, at a monthly rental of $5000. Linville had an option to renew at identical terms for an additional ten year period.
On July 6, 1962, Bargain City gave a mortgage of $250,000 to Franklin National Bank of Long Island (Franklin). The lease became subordinated to the mortgage by virtue of Section 26 of the lease which states "[t]his lease shall be subject and subordinate at all times to the lien of any mortgages . . . now or hereafter placed on the land and buildings. . . ." On September 22, 1965 the mortgage was assigned to Rosen.
Because of a default under the mortgage, Rosen began collecting the rent as mortgagee in possession from October 1, 1965 until February 7, 1966. On November 10, 1965, judgment was entered in favor of Rosen against Bargain City. Damages were assessed in the amount of $314,375. A writ of execution was issued, and sale was scheduled for December 5, 1965.
On December 1, 1965 Lawrence Sales Corporation (Lawrence) which had previously acquired the assets of Linville filed a petition to stay the sheriff's sale. After negotiations between counsel for Lawrence and Rosen, a stipulation was entered into and approved by Judge Gold in the form of a court order. The order provided that the sheriff's sale would take place but that "said sale shall be made subject to the Lessee's interest in the lease. . . ." The order only concerned the original term of the lease and left open the status of the renewal provision. The order made no mention of broker's commissions.
At the sheriff's sale on February 6, 1966, the premises was sold to Rosen for $313,000. Subsequently, on August 4, 1966, Lawrence and Rosen entered into a lease ...