No. 2144 October Term, 1977, Appeal from the Order dated July 12, 1977, of the Court of Common Pleas, Trial Division - Law, of Philadelphia County, at No. 2504 November Term, 1975.
Edwin L. Scherlis, Philadelphia, for appellant.
Miles Warner, Philadelphia, for appellee, Tenreed Corp.
No appearance entered nor brief submitted for appellees, Charles Benjamin, Inc., and Continental Bank.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort and Hester, JJ. Price, J., dissents. Spaeth, J., did not participate in the consideration or decision of this case.
[ 256 Pa. Super. Page 51]
This is an appeal by Philadelphia Folding Box Company from an order of the lower court denying its petition to open a confessed judgment. For the reasons developed below, we conclude that the lower court should have granted the petition to open and, therefore, reverse.
The essential facts of the case were set forth in a prior decision by this Court;*fn1 only a brief resume of those facts is necessary for purposes of this appeal. It will be remembered that the original lease, effective December 1, 1963, contained a provision for the continuation of that lease on the same terms and conditions for an additional year if neither party gave ninety days written notice of a contrary intent.*fn2 On November 28, 1973, at the end of the ten year period initially agreed upon, the parties entered into a written agreement extending the term of the lease for an additional year, until November 30, 1974. With the exception of a few minor amendments to the original lease, all terms and conditions of that lease were to continue in effect.*fn3 Of particular importance here is that the ninety day notice provision, contained in Paragraph 24 of the 1963 Lease, was also to remain in effect during the one year
[ 256 Pa. Super. Page 52]
extension.*fn4 The parties executed a second extension agreement in December, 1974. This writing again extended the term of the lease for another year, until November 30, 1975, with all terms and conditions of the original lease, as amended by the 1973 extension agreement, to continue in effect.*fn5
The following sequence of events set the stage for Tenreed I:
"Early in November, 1975, Philadelphia Folding Box, under the impression that the lease would expire on November 30, 1975, without the ninety days written notice provided in the earlier agreements, began to remove equipment from the premises in anticipation of occupying new premises. Tenreed Corporation, asserting that failure of the lessee to give notice worked to extend the term of the lease an additional year until November 30, 1976, confessed judgment on November 19, 1975, for the full amount of that additional year's ...