No. 164 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas of Erie County, Civil Division, No. 1922-A-1976.
Robert S. Bailey, Meadville, for appellant.
Walter A. Dart, Jr., Erie, for appellee.
Price, Cavanaugh and Hoffman, JJ. Cavanaugh, J., files a concurring statement. Hoffman, J., concurs in the result.
[ 308 Pa. Super. Page 155]
This is an appeal in an action to quiet title to rentals due under a lease. We modify and, as modified, we affirm.
Anne and Myron Brink ("debtor-lessors") owned an undivided one-half interest in a certain tract of land together
[ 308 Pa. Super. Page 156]
with a commercial building erected thereon. In 1973, this property was leased for a period of ten (10) years to a joint venture doing business as Edinboro Donuts ("tenants"). Debtor-lessors at all pertinent times owed both appellant and appellee substantial sums of money.
On December 12, 1974, appellee Marine confessed a judgment against debtor-lessors. By reason of 41 P.S. § 407, Marine was precluded from executing on this judgment until it had filed and proceeded to judgment in an independent action. That statute contemplates that the subsequent judgment will then "merge" with the earlier confessed judgment. 41 P.S. § 407(a).*fn1
On May 30, 1975, appellant entered judgment against debtor-lessors and filed a Writ of Execution together with interrogatories in attachment to the tenants. On June 24, 1975, tenants answered that they owed the debtor-lessors rent for the remaining term of the lease.
On November 18, 1975, appellant entered judgment against tenants in the attachment proceedings for the rentals due and owing and to become owing to debtor-lessors. No execution was ever issued on this judgment.
Also on November 18, 1975, Marine secured its final merged judgment against debtor-lessors under 41 P.S. § 407. On April 1, 1976, Marine finally issued a Writ of Execution on its judgment. On May 14, 1976, the Sheriff sold all that real property constituting ...