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EDWARD BERSHAD CO. v. BABE'S BAR (04/28/78)

decided: April 28, 1978.

EDWARD BERSHAD CO., T/A PENN VENDING COMPANY
v.
BABE'S BAR, INC., APPELLANT



COUNSEL

Jay Meyers, Philadelphia, Leonard A. Green, Glenside, for appellant.

Theodore A. Schwartz, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case. Price, J., dissents.

Author: Hoffman

[ 254 Pa. Super. Page 479]

Appellant contends that the lower court erred in refusing to either strike or open a confessed judgment. Because we find that the lower court erred in refusing to strike the judgment,*fn1 we reverse.

The pleadings and affidavits establish the following facts: On July 22, 1976, appellant, Babe's Bar, Inc., entered into a written contract with appellee, Edward Bershad Co., in which appellant agreed to lease a cigarette vending machine from appellee. The contract required appellee to install the machine at appellant's premises at 3800 North 6th Street in Philadelphia and to pay appellant a commission of five cents per package of cigarettes sold. The contract term was for five years from the date of execution. The contract contained a liquidated damages provision and a warrant of attorney which provided as follows:

"In the event of a breach of this Agreement by the Proprietor the Company shall have the right, option and privilege to terminate this Agreement, and in such event the

[ 254 Pa. Super. Page 480]

Proprietor agrees to pay to the Company as liquidated damages, and not as a penalty or forfeiture, a sum equal to the average weekly amount received by the Company prior to the breach, multiplied by the number of weeks remaining in the unexpired term of the Agreement, which sum shall be immediately due and payable at the time of the breach of this contract. The undersigned Proprietor for and as collateral security for the faithful performance of his obligation under this contract, hereby authorizes and empowers, one day after the date hereof, the Prothonotary, Clerk, or any attorney of any Court of Record in the United States or elsewhere, with or without declaration filed, to appear for and enter judgment against such Proprietor for the sum of . . . Dollars, ($), with costs of suit, release of errors, without stay of execution and with twenty percent (20%), added, as part of the judgment and for attorney's fees for collection, hereby waiving inquisition on any real estate, and Proprietor also waives all benefit of exemption laws of the States of Pennsylvania and New Jersey."

Subsequent to executing the contract, appellant decided to sell the premises at 3800 North 6th Street. On December 24, 1976, appellant informed appellee that appellant was selling its business on December 27, 1976, and that appellee must remove the cigarette machine by that time. On December 27, 1976, appellee filed a complaint in confession of judgment*fn2 against appellant in Philadelphia County Court of Common Pleas. In the complaint, appellee alleged that appellant's sale of its business premises constituted a breach of the July 22, 1976 contract. Appellee set forth the unexpired term of the agreement at the time of the alleged breach and appellee's average weekly profit derived from the cigarette vending machine prior to the breach. Moreover, appellee added the attorney's collection fee of twenty percent allegedly authorized in the warrant. Appellee thereby alleged a total of $4,620.00 due on the warrant. Judgment was entered on December 27, 1976.

[ 254 Pa. Super. Page 481]

On January 12, 1977, appellant filed both a petition to strike and a petition to open the judgment. The lower court denied appellant's petitions. This appeal followed.

Appellant contends that the lower court erred in refusing to strike the confessed judgment. In Fourtees Co. v. Sterling Equipment Corp., 242 Pa. Super. 199, 363 A.2d 1229 (1976), our Court outlined the controlling test for striking confessed judgments: "A motion to strike a judgment will not be granted unless a fatal defect appears on the face of the record. If the record is self-sustaining, the judgment will not be stricken . . . (citations omitted)." Id., 242 Pa. Super. at 204, 363 A.2d 1229, at 1232 (1976). See also Solebury National Bank of New Hope v. Cairns, 252 Pa. Super. 45, 380 A.2d 1273 (1977). "The law is well settled that a warrant of attorney authorizing the confession and entry of judgment -- because it is such an oppressive weapon -- must be strictly construed and strictly followed according to and with all its terms . . . ." Housing Mortgage Corp. ...


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