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MALAKOFF v. ZAMBAR (03/20/72)

decided: March 20, 1972.

MALAKOFF
v.
ZAMBAR, INC., APPELLANT



Appeal from decree of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1969, No. 1695, in case of Edward Malakoff, individually and t/a Murray Realty Company v. Zambar, Inc.

COUNSEL

Harold Greenberg, with him Perry S. Bechtle, Patrick W. Kittredge, Richard M. Squire, and Cohen, Shapiro, Polisher, Shiekman and Cohen, for appellant.

Jerry Zaslow, with him Herman P. Weinberg, and Modell, Pincus, Hahn & Reich, for appellee.

Jones, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Chief Justice Jones. The former Mr. Chief Justice Bell and the former Mr. Justice Barbieri took no part in the consideration or decision of this case.

Author: Jones

[ 446 Pa. Page 504]

Appellee, a real estate broker, negotiated a twenty-five year lease on June 16, 1959, between Easton Road Development Company, Inc. (lessor), and Consolidated Sun Ray, Inc., and Blauners, Inc. (lessees), which established appellee's right to a three percent brokerage

[ 446 Pa. Page 505]

    commission from the lessor based on monthly rental payments. Paragraph 21 of the lease specifically provided, inter alia : "This lease is subordinate to any mortgage now or hereafter created by the Landlord upon the leased premises and parking improvements provided that the mortgage instrument shall contain a clause to the effect that, or the mortgagee shall furnish the Tenant with a certificate or letter to the effect that, so long as the Tenant, its assignees, successors or subtenants are not in default under this lease, (a) The Tenant's possession of the leased premises and its use of the parking facilities shall remain undisturbed whether or not the mortgage is in default and notwithstanding a foreclosure or other action by the mortgagee pursuant to the mortgage or any bond accompanying the mortgage, and (b) all provisions of this lease insofar as they affect the mortgagee shall be binding upon the mortgagee."

Through a series of subleases and assignments, the lessees' interest was eventually obtained by Bazaar of All Nations, Inc. (subtenant). Due to the creation of a mortgage, the lessor's interest was assigned to American National Insurance Company (mortgagee). The mortgagee subsequently foreclosed on these premises and the appellant took title on May 19, 1967, following a sheriff's sale. Although the appellant collected rent from the subtenant, the appellant refused to pay any brokerage commissions allegedly due appellee under the terms of the lease.

On July 14, 1969, appellee served a complaint in equity upon appellant's counsel which requested, inter alia, an accounting of all past, present and future rentals. By letter dated July 16, 1969, appellant requested, "a reasonable extension of time to answer or otherwise move." Appellee's counsel responded by return mail, "[w]e will be happy to grant you a reasonable

[ 446 Pa. Page 506]

    extension of time in this matter." There was no further communication until March 2, 1971, approximately twenty months later, when appellee's counsel stated that a default judgment was to be taken that day. The default judgment was taken and appellant's counsel filed a timely petition to strike the judgment. After argument, the court below denied the petition to strike but granted the appellant leave to file a petition to open the judgment.*fn1 This appeal followed.*fn2

We begin our review with the well-settled principle that: "A motion to strike a judgment, as opposed to a petition to open a judgment and be let into a defense, [footnote omitted] will not be granted unless a fatal defect in the judgment appears on the face of the record. Weinberg v. Morgan, 186 Pa. Superior Ct. 322, 325, 142 A.2d 310, 312 (1958). As we said in Lipshutz v. Plawa, 393 Pa. 268, 271, 141 A.2d 226, 228 (1958): 'A rule to strike off a judgment is in the nature of a demurrer directed to defects in the record. If the record is self-sustaining, the judgment cannot be stricken.'" (Emphasis original) Washington County Controller's Case, 427 Pa. 631, ...


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