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FRANK WEITZMAN AND SHIRLEY SHUMSKY v. ALFRED AND MOLLY ULAN (08/27/82)

filed: August 27, 1982.

FRANK WEITZMAN AND SHIRLEY SHUMSKY
v.
ALFRED AND MOLLY ULAN, HIS WIFE T/A NEW YORK SILK AND WOOLEN STORE, APPELLANTS



NO. 1071 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, Law, at No. 4745 December Term 1980.

COUNSEL

Edwin P. Smith, Philadelphia, for appellants.

Mitchell H. Klevan, Philadelphia, for appellees.

Wickersham, McEwen and Lipez, JJ.

Author: Mcewen

[ 304 Pa. Super. Page 207]

We here review an appeal from a refusal by the Common Pleas Court to strike and/or open a judgment entered by confession upon a lease agreement for back rent. We affirm.

Alfred Ulan and Molly Ulan, appellants herein, entered into a commercial lease as lessee of the premises located at 739 South Fourth Street in Philadelphia with Anna Weitzman, lessor, on April 15, 1980. The lease provided for a term of three years commencing April 15, 1980 with an option to renew for an additional two year term and contained a covenant which provided that the lessor "within the first year of this lease term will have a new roof installed on the premises." The lease further contained a standard confession of judgment clause empowering any prothonotary, clerk of court or attorney of any court of record to appear for the lessee in any action brought for non-payment of rent and confess judgment against the lessee.

Anna Weitzman transferred the leased premises by deed to her children, appellees Frank Weitzman and Shirley Shumsky (the nephew and niece, respectively, of appellants),

[ 304 Pa. Super. Page 208]

    on July 24, 1980. The deed was recorded in the Department of Records on July 28, 1980. Appellees notified appellants by letter dated September 23, 1980 and posted by certified mail, return receipt requested, that ownership of the leased premises had been transferred to them and requested that all future rental payments be forwarded directly to Frank Weitzman.

Appellants paid rent for the month of October, 1980 directly to appellees; however, appellees did not receive rent for the months of November and December 1980. Appellees then filed a complaint in confession of judgment against appellants pursuant to Pa. R.C.P. 2951(b) in Philadelphia Common Pleas Court seeking the unpaid rent, interest and attorney's fee. Judgment was entered in favor of appellees in the amount of $848.40.

Appellants filed a Petition to Strike and/or Open Judgment by Confession and Dismiss Complaint on January 13, 1981 in which they claimed, inter alia: (1) that plaintiffs (appellees herein) never submitted proper documentation or verification of the assignment of the lease and of the right to confess judgment to the defendants; (2) that the judgment by confession was improperly entered since an executed assignment of that right was not attached to the complaint and; (3) that defendants (appellants herein) were current in payments to the lessor and that they had applied the rent due toward an indebtedness of the lessor to the defendants for repair of the roof to the demised premises.

The distinguished Common Pleas Court Judge Eugene H. Clarke, Jr. dismissed the petition of appellants by order dated April ...


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