No. 2072 October Term 1977, Appeal from the Order of the Court of Common Pleas of Montgomery, Civil Action, Law, , No. 76-11530. , No. 76-11530.
Andrew Mutch Knowlton, Philadelphia, for appellant.
Robert A. Ebenstein, Philadelphia, for appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hoffman, J., did not participate in the consideration or decision of this case.
[ 262 Pa. Super. Page 56]
This is an appeal from an order striking a judgment entered by confession.
Appellant and appellee entered into a lease of a store in the Baederwood Shopping Center, Baederwood, Montgomery County. The lease was dated April 22, 1974, and was to run from May 1, 1974, to April 30, 1977. Appellee was to pay appellant a base monthly rent of $2,083.33, and was to pay as "additional rent" sewer rent charges, parking charges, late charges, and increases in real estate taxes over a set base level. The lease contained a confession of judgment clause, as follows:
13. If the rent or rent treated as if in arrears and/or any charges herein reserved as rent shall remain unpaid on any day on which the same ought to be paid, Lessee hereby empowers and Prothonotary or attorney of any Court of record to appear for Lessee in any and all actions which may be brought for said arrears of rent or rent treated as if in arrears or charges therein payable as rent,
[ 262 Pa. Super. Page 57]
and/or to sign for Lessee an agreement for entering in any competent Court an amicable action or actions in assumpsit for the recovery of such arrears of rent or rent treated as if in arrears or other charges or expenses, as aforesaid and in said suits or in said amicable action or actions to confess judgment against Lessee for all arrears of rent or rent treated as if in arrears or other charges therein payable as rent or expenses as aforesaid, and for interest and costs, together with an attorney's commission of 5%. Such authority shall not be exhausted by one exercise thereof, but judgment may be confessed as aforesaid from time to time as often as any of said rent or rent treated as if in arrears and/or other charges herein payable as rent or expenses as aforesaid shall fall due or be in arrears, and such powers may be exercised as well after the expiration of the original term and/or during and after any extension or renewal of this lease.
The lease specified further that "[n]o determination of this lease or the taking or recovering of the premises shall deprive Lessor of any of its remedies or actions against Lessee for rent then due or which would thereafter come due as if there had been no determination of this lease or recovery of the premises, or for damages or for the breach of any covenant herein contained, . . ." (Record at 7a).
Early in 1976, appellee decided to sell its business and asked appellant to terminate the lease, part of the premises to be leased to appellee's purchaser, one David S. Zenstein, and the remainder of the premises to be let to Town and Country Meat Markets of Baederwood, Inc. On January 30, 1976, appellant wrote a letter to appellee, stating that "[t]his will confirm our agreement that the [April 22, 1974] lease will be terminated effective February 15, 1976 in view of our entry into a new lease for a portion of the premises with David S. Zenstein and a lease for another portion of the premises with Town ...