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LORRAINE B. DAMERON v. WOODS RESTAURANT (08/20/82)

filed: August 20, 1982.

LORRAINE B. DAMERON, APPELLANT,
v.
WOODS RESTAURANT, INC.



No. 573 Pittsburgh, 1981, Appeal from the Order of the Court of Common Pleas, Civil Division of Allegheny County at GD No. 80-207.

COUNSEL

Samuel H. Elkin, Pittsburgh, for appellant.

Vincent C. Murovich, Pittsburgh, for appellee.

Spaeth, Hester and Johnson, JJ. Hester, J., files a dissenting statement.

Author: Spaeth

[ 305 Pa. Super. Page 348]

This is an appeal from an order striking a confessed judgment. The judgment was confessed under a warrant of attorney contained in a commercial lease. As required by Pa.R.C.P. 2959(a), appellee filed a single petition asking the lower court to strike or open the judgment. In striking the judgment, the court relied on Edward Bershad Company v. Babe's Bar, Inc., 254 Pa. Superior Ct. 477, 386 A.2d 50 (1978), which we had overruled, albeit less than two months previously, in Evans v. Blimpie Base, Inc., 284 Pa. Superior Ct. 256, 425 A.2d 801 (1981). Although appellee has argued that

[ 305 Pa. Super. Page 349]

    the judgment was properly stricken even without the authority of Bershad, we do not agree. Therefore we reverse and remand so that the lower court may consider whether the judgment should be opened.

Appellant owns a building in Pittsburgh, at 213-215 Wood Street. Appellee operates a restaurant in the building. On April 1, 1976, appellant and appellee entered into a lease. The lease included, in section 9.2, a warrant of attorney authorizing confession of judgment against appellee for possession and unpaid rent for the balance of the lease in the event of any default by appellee of its obligations under the lease not cured within 30 days. The lease also included, in section 3.4, a covenant that appellee would "not make or permit to be made any alterations, improvements and additions to the Leased Premises or any part thereof that affect the structural portions of the building, except by and with the written consent of the LESSOR first had."

On January 3, 1980, appellant filed a "Complaint for Confession of Judgment in Ejectment and for Money Damages." Paragraph 3 of the complaint incorporated by reference the lease, which was attached as an exhibit. Paragraphs 6 through 9 averred that contrary to the provisions of the lease, appellee had made alterations that affected structural portions of the building, including alterations to the roof and other parts of the building, to accommodate heating, ventilating and air conditioning equipment with a duct system running through to the roof; that these alterations were not made in accordance with applicable building and safety codes; and that the alterations had caused damage to the building. Paragraph 11 pleaded the terms of the warrant of attorney contained in the lease. Paragraph 12 averred that appellee had been given notice of its default of its obligations under the lease, and a copy of the letter giving notice was attached as an exhibit, and paragraph 13 averred that appellee had failed to cure the default.

The lower court properly read Edward Bershad Company v. Babe's Bar, Inc., as restricting the entry of confessed judgment to cases where the propriety and amount of the

[ 305 Pa. Super. Page 350]

    judgment can be determined solely from the instrument that authorized the judgment, in this case, the lease. We overruled Bershad because it ignored the distinction between cases in which the amount due can be determined from the instrument, when the prothonotary may enter judgment, Pa.R.C.P. 2951(a), and cases in which the instrument authorizes confession of judgment but computation of the amount requires consideration of matters outside the instrument, Pa.R.C.P. 2951(b), when the action must be commenced by filing a complaint in the form provided by Pa.R.C.P. 2952. Evans v. Blimpie Base, Inc., supra. Here, appellant filed a complaint in the form provided by Pa.R.C.P. 2952, and it was clearly error ...


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