Systems, supra. That case relied upon Stots v. Media Real Estate Co., 355 F. Supp. 240 (E.D.Pa.1973), which was based upon the lower court decision in Gross. The Third Circuit's subsequently vacating this opinion in Gross casts serious doubt on plaintiff's assertion that the distraint statute is unconstitutional on its face. Furthermore, the Supreme Court's restrictive view of state action as expressed in Flagg Brothers may change this Circuit's view of distraint.
CONSTITUTIONALITY OF THE CONFESSED JUDGMENT COUNT II
The commercial lease between L & A and SMI's corporate predecessor contains a confession of judgment clause for failure to pay rent. When SMI defaulted in its rent, L & A filed a complaint in confession of judgment pursuant to Rule 2951(b) of the Pennsylvania Rules of Civil Procedure. The prothonotary entered judgment based on the warrant of attorney in the lease and judgment for possession of the premises was confessed pursuant to the authority contained in a separate warrant of attorney. Notice of the judgments was given to SMI; the sheriff served SMI with a writ of possession and levied on the goods, equipment, and other personalty on the premises. Prior to a sheriff's sale but after possession of the premises was given to L & A and the judgments had been executed upon, SMI petitioned the Court of Common Pleas of Philadelphia to open the two judgments but did not ask that the execution or levy be set aside. The Honorable Bernard Snyder opened the judgments but refused SMI's request to set aside the levies, attachments, and executions. SMI filed a petition for supersedeas in the Superior Court of Pennsylvania from Judge Snyder's refusal to vacate the executions and levies. The Superior Court ruled that it would vacate the executions and levies upon SMI's posting a bond of $ 75,000. Instead of posting the bond, SMI brought the instant suit.
Count II of the complaint alleges violations of due process by virtue of the confession of judgment clause in the lease and the subsequent imposition of levies, attachments, and executions based upon the confessed judgments. Citing D. H. Overmyer Co. v. Frick Co., 405 U.S. 174, 92 S. Ct. 775, 31 L. Ed. 2d 124 (1972), which upheld the constitutionality of confession of judgment clauses in commercial leases,
defendant has moved to dismiss Count II on the grounds that plaintiff failed to state a claim upon which relief can be granted.
In Overmyer, two corporations entered into a cognovit clause valid under Ohio law. When Overmyer defaulted in payment, Frick exercised its contractual rights and obtained a judgment without notice or hearing. The Supreme Court held that a cognovit or confession of judgment clause was not per se unconstitutional if the waiver of due process rights was made voluntarily, intelligently, and knowingly. In the instant complaint, there are no allegations that any part of the lease was a product of over-reaching by one party due to inequality of bargaining power nor does the plaintiff claim that the lease was an adhesion contract. In the absence of any facts which would take this case outside the Overmyer situation of presumed equality of contractual relations between commercial parties, the confession of judgment clause acts as an effective waiver of due process rights.
Even if plaintiff contracted for a general waiver of rights under the confession of judgment clause, it may not have anticipated defendant's specific actions. The Court in Overmyer, faced with a similar situation, held that effective waiver is not precluded even though a debtor may not have been able to foresee exactly when or how a creditor would proceed under a confession clause, 405 U.S. at 187, 92 S. Ct. at 783. It follows that parties entering into a commercial lease must be held to know that a sheriff's levy may accompany a confession of judgment and that, under Pennsylvania law, this levy cannot be removed, even when the judgment is opened to review. A party to a confession of judgment clause waives its rights to object to these specific consequences.
STATE LAW CLAIMS
Plaintiff in Count III avers that defendant's actions infringe upon SMI's inherent right to property in violation of the Pennsylvania Constitution, Article I P I. Count IV alleges negligence in that defendant failed to provide adequate security after it locked out SMI and, consequently, someone gained access and removed some of plaintiff's possessions. Count V pleads relief from defendant's malicious interference with contractual relations in that defendant's actions denied plaintiff use of its place of business and interfered with its business relations with customers and suppliers.
Federal jurisdiction over state law claims is generally discretionary with the court. Since plaintiff has failed to allege an independent basis of federal jurisdiction, I will exercise my discretion and dismiss the pendent state claims in Counts III, IV, and V. Aldinger v. Howard, 427 U.S. 1, 96 S. Ct. 2413, 49 L. Ed. 2d 276 (1976); United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966).
I conclude that Count I must be dismissed for lack of state action, Count II must fall for failure to state a claim upon which relief can be granted, and the state law counts III, IV, and V, having no independent federal basis, must also be dismissed.
AND NOW, this 11th day of December, 1979, after consideration of briefs of counsel, defendant's motion to dismiss the complaint is granted for the reasons expressed in the accompanying memorandum.