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GOLDIE EVANS v. BLIMPIE BASE (02/13/81)

filed: February 13, 1981.

GOLDIE EVANS, APPELLANT,
v.
BLIMPIE BASE, INC. AND MATTHEW FOODS, INC.



No. 2061 October Term, 1978, Appeal from Order of the Court of Common Pleas, Civil Law Division, of Philadelphia County, at No. 4545 March Term, 1978.

COUNSEL

Joseph Rappaport, Philadelphia, for appellant.

John J. Gallagher, Philadelphia, for appellee.

Cercone, President Judge, and Price, Spaeth, Hester, Cavanaugh, Brosky and Montgomery, JJ.

Author: Cavanaugh

[ 284 Pa. Super. Page 257]

This dispute concerns a long-term commercial lease. Appellees, a Pennsylvania corporate franchisee and its parent corporation, a fast food chain, entered into a lease dated October 11, 1974, for commercial property at Broad and Diamond Streets in Philadelphia. The appellant is the lessor.

The lease in question contains provisions for entry of judgment in an amicable action in assumpsit for damages for failure to pay taxes due as rent and additional rent; and for entry of judgment in an amicable action of ejectment for violation of the lease. Pursuant to these provisions judgment was confessed against lessees under authority of the warrant contained in the lease in the sum of $10,430.19 due in unpaid taxes and water bills. Lessees filed a petition to strike and/or open the judgment. The lessees' petition to strike the judgment was granted by the court below. We reverse and remand.

The lower court granted the petition to strike holding that because the amount due for water rent and taxes is not ascertainable by calculation from information which the

[ 284 Pa. Super. Page 258]

    lease itself provides, judgment may not be confessed. Appellant-lessor argues that where, as here, the judgment is entered in an amicable action by an attorney under authority conferred in the warrant contained in the lease, the amount claimed to be due need not be ascertained from the instrument itself. Thus, they claim, the complaint filed pursuant to Pa.R.C.P. 2952, supported by an averment of default executed by the attorney for the defendants, together with an assessment of damages for the amount due was sufficient to withstand a petition to strike. We agree.

The Pennsylvania Rules of Civil Procedure provide for two methods of proceeding in entering a judgment by confession. Rule 2951(a), Pa.R.C.P. recognizes the authority of the prothonotary to enter judgment without the agency of an attorney or the filing of a complaint. However, the prothonotary may only enter judgment for the amount which may appear to be due from the face of the instrument.

An alternate method for proceeding found in 2951(b) permits an action to be commenced by filing a complaint. This complaint procedure replaces the prior practice relating to amicable actions. Subsequent to the entry of judgment in this case subdivision (c)*fn1 of Rule 2951 was amended so that it now specifically authorizes an action to be brought under 2951(b) where "the computation of the amount due requires consideration of matters outside the instrument." According to the explanatory note this merely codifies existing practice. As noted above this was the procedure followed in the instant case.

In Lenson v. Sandler, 430 Pa. 193, 241 A.2d 66 (1968), the Pennsylvania Supreme Court addressed the differing methods by which a judgment may be confessed. There the prothonotary exceeded his statutory authority by entering ...


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