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VAN ARKEL & MOSS PROPERTIES v. KENDOR (04/11/80)

filed: April 11, 1980.

VAN ARKEL & MOSS PROPERTIES, INC., AND THE M. A. KRAVITZ COMPANY, INC., CO-PARTNERS T/A HEAD HOUSE VENTURE, A LIMITED PARTNERSHIP, APPELLEES,
v.
KENDOR, LTD., APPELLANT



No. 3025 October Term, 1978, Appeal from Order entered November 27, 1978, by the Court of Common Pleas of Philadelphia County, Trial Division-Law, at No. 5247 August Term, 1978.

COUNSEL

John L. Jenkins, Philadelphia, for appellant.

Stephen Levin, Philadelphia, for appellees.

Wieand, Louik and Robinson, JJ.*fn* This decision was made following the death of Robinson, J.

Author: Wieand

[ 276 Pa. Super. Page 549]

This is an appeal from an order refusing to strike or open a judgment which had been confessed pursuant to the warrant of attorney contained in a written agreement of lease.

On September 1, 1978, the lessor, Head House Venture, a limited partnership, confessed judgment for rent and charges due, as well as for accelerated rent, under a written, shopping mall lease. On September 6, 1978, the tenant, Kendor, Ltd., filed a petition to strike or open the judgment. This was dismissed on November 27, 1978. A petition to reconsider resulted in an order striking that portion of the judgment representing accelerated rent. This reduced the

[ 276 Pa. Super. Page 550]

    judgment to $31,949.93.*fn1 An appeal from the dismissal of the tenant's petition to strike or open the judgment was filed and is now before this Court for determination.

The lease authorizes confession of judgment for rent and other charges in the following language:

"SECTION 18.09. Entry of Judgment. In the event of any default by Tenant either in the payments of rent or any other charge herein . . . Tenant hereby empowers any Prothonotary or attorney of any court of record to appear for Tenant in any and all actions which may be brought for rent or the charges, payments, costs and expenses reserved as rent, or agreed to be paid by the Tenant, and to sign for Tenant an agreement for entering in any competent Court an amicable action or actions for the recovery of rent or other charges or expenses, and in said suits or in said amicable action or actions to confess judgment against Tenant for all or any part of the rent specified in this Lease and then unpaid including, at Landlord's option, the rent for the entire unexpired balance of the term of this Lease and other charges, payments, costs and expenses reserved as rent or agreed to be paid by the Tenant, and for interest and costs together with an attorney's commission of five (5%) percent, but without deduction therefrom for the fair rental value of the premises. . . ."

The lessor proceeded pursuant to Pa.R.C.P. No. 2951(b) to file a complaint in the form prescribed by Pa.R.C.P. No. 2952. Lessor's counsel thereafter appeared and confessed judgment against the tenant. Appellant contends that the judgment should have been stricken because it included amounts which could not be determined from the face of the lease and which required consideration of matters dehors the record.

Pennsylvania Rule of Civil Procedure No. 2951 recognizes that at least two procedures are ...


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