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MARY JANE SCOTT v. 1523 WALNUT CORPORATION (07/09/82)

filed: July 9, 1982.

MARY JANE SCOTT,
v.
1523 WALNUT CORPORATION, APPELLANT



No. 2077 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Philadelphia County, 1980, September Term, No. 707

COUNSEL

Philip L. Blackman, Philadelphia, for appellant.

David A. Gradwohl, Philadelphia, for appellee.

Johnson, Montemuro and Montgomery, JJ.

Author: Montgomery

[ 301 Pa. Super. Page 250]

The instant appeal arises from an order by the lower court denying the Defendant-Appellant's original petition and an amended petition to strike and/or open a judgment in ejectment which had been entered by confession. The action had originally been initiated by the Plaintiff-Appellee on September 5, 1980, with the filing of a complaint for confession of judgment in ejectment. On the same date, the Plaintiff-Appellee confessed judgment, which was entered by the Prothonotary against the Appellant. The property in question included the first floor and basement of 1523 Walnut Street, in Philadelphia, wherein the Appellant was at that

[ 301 Pa. Super. Page 251]

    time operating a restaurant. Judgment was confessed pursuant to the authority of a confession of judgment clause and warrant of attorney contained in a commercial lease between the Appellee and the Appellant.

The Appellant filed a petition to strike and/or open judgment on September 22, 1980. On October 14, 1980, the Appellant filed a petition to amend its earlier petition. Subsequently, depositions were taken and were submitted to the lower court. The parties filed briefs and appeared before the court for oral argument. The Honorable Maurice Sporkin thereafter entered an Adjudication and Order and Decree dated July 22, 1981, denying the Appellant's petition and amended petition, and granting a writ of possession to the Appellee. A timely appeal was thereafter filed to our Court.

[ 301 Pa. Super. Page 252]

We must be mindful of several well-established concepts applicable in our review in cases like the instant one. First, a petition or motion to strike a judgment entered by confession must be treated differently than a petition or motion to open the same judgment. A petition or motion to strike is the proper remedy where fatal defects are apparent on the face of the record. Kros v. Bacall Textile Corp., 386 Pa. 360, 126 A.2d 421 (1956). Where the moving party claims an irregularity on matters dehors the record, his claim must be asserted on a petition or motion to open the judgment. Kros v. Bacall Textile Corp., id.; Goldberg v. Altman, 190 Pa. Super. 495, 154 A.2d 279 (1959). While both types of claims may be raised in a single petition (Pa.R.C.P. 2959), it appears that all of the Appellant's contentions on appeal in the instant case, as will be more fully discussed below, are efforts to open, rather than to strike the judgment. See Goldberg v. Altman, id. It is held that an application to open a confessed judgment is an equitable proceeding, and is governed by equitable principles. Sanctis v. Lagerbusch, 213 Pa. Super. 483, 249 A.2d 919 (1968). In such cases, a reviewing court will not disturb the determinations reached by the lower court except in the circumstances of a clear and manifest abuse of discretion. Triangle Building Page 252} Supplies and Lumber Co. v. Zerman, 242 Pa. Super. 315, 363 A.2d 1287 (1976).

The Appellant raises three principal contentions on this appeal. First, it argues that the lower court erred when it held that the warrants of attorney to confess judgment in ejectment, contained in lease and assignment documents entered into in 1950, were valid and binding upon the Appellant as a result of a renewal document signed in 1972. Second, it is contended that the confession of judgment was invalid because the Plaintiff failed to proceed in accordance with applicable provisions of the Pennsylvania Rules of Civil Procedure. Finally, the Appellant argues that the lower court erred in refusing to open the judgment because the Appellant had allegedly established a prima facie case of equitable estoppel. After thorough consideration of the evidence, in light of clearly established legal precedent, we are constrained to conclude that the lower court committed a clear and manifest abuse of discretion in denying the petition to open judgment which was filed by the Appellant. More specifically, we find merit in the first and second claims of error asserted by the Appellant.

As a preface to our analysis of the issues presented, it is appropriate that we first review the relevant evidence presented to the lower court. Except where otherwise specifically noted, our recitation of the facts adopts the findings of fact made by the lower court. In addition, we shall set forth facts which appear uncontradicted in the record, although they may not have been addressed in the lower court's findings of fact.

The record establishes that a lease agreement was entered on July 1, 1950 between William I. Mirkil Co., an agent, as lessor, and Marguerite Wallower, as lessee, for the rental of the street floor and basement of a premises situated at and known as 1523 Walnut Street, in the City of Philadelphia. The lease agreement provided that the initial date of the lease term was contingent upon the happening of several events, ...


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