Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1967, No. 1766, in case of Hess Kline v. Marianne Germantown Corp. et al.
Judah I. Labovitz, with him Wolf, Block, Schorr and Solis-Cohen, for appellant.
William T. Adis, with him Leonard Sarner, and Sarner, Cooper & Stein, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen.
This is an appeal from an order entered below striking from the record a judgment entered pursuant to a warrant of attorney included in a written lease.
Hess Kline, the judgment creditor and appellant herein, was the ultimate assignee of Standard Properties, Inc., which leased, in September 1950, a property in Philadelphia to Red Robin Stores, Inc. (Red Robin), for a period of one year. By extensions and renewals, the lease remained in force until September 1967. Petrie Stores Corporation (Petrie), one of the judgment debtors, is the corporate successor of Red Robin. The other judgment debtor, the Marianne Germantown Corporation (Marianne), is a wholly owned subsidiary of Petrie and also its assignee of the lease involved.
The warrant of attorney authorized in the lease provided, in pertinent part, that the lessee empowered any prothonotary or attorney to confess judgment against it for "all or any part of the rent specified in this lease and then unpaid including . . . charges, payments, costs and expenses reserved as rent or agreed to be paid by the Lessee, and for interest and costs together with an attorney's commission of 5%."
Paragraph 6(a) of the lease states: "Lessee agrees to pay as rent . . . any and all damages, costs and expenses which the Lessor may suffer or incur by reason
of any default of the Lessee or failure on his part to comply with the covenants of this lease, and each of them, and also any and all damages to the demised premises caused by any act or neglect of the Lessee."
In the lease the lessee covenanted, inter alia, to keep the demised premises "in good order and repair as they now are, reasonable wear and tear . . . excepted" and "to surrender the demised premises in the same condition in which Lessee has herein agreed to keep the same during the continuance of this lease."
Following the expiration of the lease, Kline, the lessor, instituted an amicable action in assumpsit wherein judgment was confessed against Red Robin and Marianne in the amount of $46,655.44, being the sum allegedly expended or necessary to be expended by the landlord in the restoration of the demised premises, plus a 5% attorney's commission. Included in this amount, as evidenced by the "Assessment of Damages" filed in the proceeding, was the sum of ...