Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1972, No. 1626, in case of H. A. Steen Industries, Inc. v. Richer Communications, Inc. (W102FM).
John C. Butera, with him Butera & Detwiler, for appellant.
Larry S. Keiser, with him Becker, Fryman and Ervais, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Spaeth, J.
[ 226 Pa. Super. Page 221]
This is an appeal from an order denying a motion to strike or open a confessed judgment.
Appellant agreed to lease from appellee two billboards for a period of two years, each billboard to be painted twice during the term of the lease, the rental to be $200 per month for one billboard and $275 per month for the other. The contract of lease, which was appellee's standard printed form contract, provided that in the event of default in payment, all unpaid rentals for the remainder of the term would become immediately due and payable, and judgment could be confessed in the amount of such unpaid rentals plus an attorney's commission of 18% and interest at 6% per year. The lease was to commence with the initial painting of each billboard: July 27, 1971, for the $200 per month billboard and August 2, 1971, for the $275 per month billboard. Appellant made the following payments before judgment was confessed on March 14, 1972: $200 on July 27, $475 on November 5, and $475 on January 17, for a total of $1,150. Judgment was confessed for $10,725 for the unpaid rentals*fn* plus an attorney's commission of $1,988.40 and interest of $321.75, for a total of $13,035.15. After confessing judgment, appellee re-rented the two billboards to other customers. The $200 billboard was re-rented on July 17, 1972. It is not clear when the $275 billboard was re-rented; however, appellant's advertisement was removed from it on January 25, 1972. The issue underlying both the motion
[ 226 Pa. Super. Page 222]
to strike and the motion to open is whether appellant is entitled to credit for these re-rentals to the extent they were received by appellee during the term of appellant's lease.
In Housing Mortgage Corp. v. Tower Development & Investment Corp., 402 Pa. 388, 167 A.2d 146 (1961), a judgment for $232,270.94 was stricken because it included a $1,822.56 "insurance premium" not called for in the warrant of attorney in the mortgage note. The court distinguished the circumstances in which an excessive judgment will be modified from those in which the judgment will be stricken: "If the judgment as entered is merely for items clearly within the judgment note, but excessive in amount, the Court will modify the judgment and cause a proper judgment to be entered unless (1) the judgment was entered for a grossly excessive amount and hence was an improper use of the authority granted in the note, or (2) the judgment entered showed on its face that one or more unauthorized items were included, in either of which events the judgment must be stricken off in its entirety." [Citation omitted.] Id. at 389, 167 A.2d at 147.
By applying this test, it will be seen that the judgment confessed in the present case was not so "grossly excessive" or "unauthorized" as to require it to be stricken. It is one thing for a confessed judgment to be excessive with respect to the amount contemplated by the parties, as, for example, when costs and charges not agreed to in the warrant of attorney are included in the calculation of damages. See Grady v. Schiffer, 384 Pa. 302, 121 A.2d 71 (1956); Gratz v. Margolis, 186 Pa. Superior Ct. 268, 142 A.2d 375 (1958). It is another for the ...