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JONNET DEVELOPMENT CORPORATION v. DIETRICH INDUSTRIES (06/24/83)

filed: June 24, 1983.

JONNET DEVELOPMENT CORPORATION, APPELLANT,
v.
DIETRICH INDUSTRIES, INC.; DIETRICH INDUSTRIES, INC., APPELLANT, V. JONNET DEVELOPMENT CORPORATION



NO. 13 PITTSBURGH, 1980, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, at No. G.D. 77-17850, NOS. 1222, 1223, 1224 and 1225 PITTSBURGH, 1980, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, at Nos. G.D. 76-9197, G.D. 77-02645, G.D. 77-17850 and G.D. 77-17851.

COUNSEL

David Abrams, Monroeville, for Jonnet Development, appellant (at No. 13) and appellee (at Nos. 1222, 1223, 1224 and 1225).

M.A. Nernberg, Jr., Pittsburgh, for Dietrich Industries, appellant (at Nos. 1222, 1223, 1224 and 1225) and appellee (at No. 13).

Beck, Johnson and Popovich, JJ.

Author: Beck

[ 316 Pa. Super. Page 536]

This case comprises three appeals founded upon a written lease agreement between Jonnet Development Corporation ("Jonnet") as the lessor, and Dietrich Industries, Inc., ("Dietrich") as the lessee.

On August 20, 1974, Jonnet and Dietrich signed a five-year, commercial space lease effective from January 1, 1975. In January of 1976 Dietrich vacated the leased premises. Although Dietrich continued thereafter to make regular monthly rental payments, Dietrich sought release from its rental obligations by bringing two actions against Jonnet. In its suits Dietrich alleged Jonnet's anticipatory repudiation of the lease agreement and constructive eviction of Dietrich from the leased premises. Subsequently, alleging Dietrich's failure to pay rent for July of 1977, Jonnet filed a complaint in confession of judgment against Dietrich.

An excellent procedural outline of the parties' litigation is provided, as follows, by the opinion of the Honorable Richard G. Zeleznik of the Court of Common Pleas of Allegheny County:

On April 29, 1976, after vacating, but while continuing to pay the monthly rentals, Dietrich filed the first of [its] actions at No. GD 76-9197. That was a Complaint in Equity seeking to enjoin Jonnet, as landlord, from confessing judgment on the lease and to nullify all rental obligations. The Complaint was based upon a theory of anticipatory repudiation . . . . This Court denied Dietrich's request for injunctive relief by Order dated May 24,

[ 316 Pa. Super. Page 5371976]

. . . . Subsequently, Jonnet filed preliminary objections to Dietrich's Complaint in Equity which were sustained . . . . Dietrich was denied equitable relief, but granted twenty days to amend, and the issue of anticipatory repudiation was preserved.

[ 316 Pa. Super. Page 538]

We will address, seriatim, the points raised by the parties' appeals, namely, the propriety of: (1) the trial court's order of December 3, 1979, purporting to strike the confessed judgment at No. GD 77-17851; (2) the directed verdict for Jonnet on the issue of Jonnet's alleged anticipatory repudiation of the lease, (3) Jonnet's reputed constructive eviction of Dietrich, and (4) the trial court's molding of the jury's verdict (money damages) in favor of Jonnet.

I.

Jonnet argues that the trial court's order of December 3, 1979, improperly struck its confessed judgment against Dietrich.

An independent review of the record reveals, however, that the order of December 3, 1979, did not strike Jonnet's confessed judgment. Jonnet's confessed judgment was docketed at GD 77-17850. Only the execution on the confessed judgment was docketed at GD 77-17851, and the order of December 3, 1979, was confined to a disposition of GD 77-17851.

After Dietrich had filed two actions against Jonnet in an effort to avoid paying rent under the lease, Jonnet confessed judgment against Dietrich for non-payment of the July, 1977, installment of rent. The confession of judgment was made pursuant to the warrant of attorney contained in the parties' lease agreement, and the action to confess judgment was docketed at GD 77-17850. The praecipe for writ of execution on the confessed judgment was separately docketed at GD 77-17851. See Pa.R.C.P. No. 2957 and Pa.R.C.P. No. 236.

In accordance with Pa.R.C.P. No. 2959 Dietrich then filed a petition to strike and/or open the confessed judgment. Under Rule 2959(b) the trial court issued a rule against Jonnet to show cause why (i) Dietrich's petition should not be granted and (ii) Jonnet's execution on the confessed judgment should not be stayed. Jonnet filed a timely answer to the rule. See Rule 2959(b).

[ 316 Pa. Super. Page 539]

By consent of the parties, on June 13, 1979, the trial court entered an order opening*fn1 Jonnet's confessed judgment (GD 77-17850) against Dietrich.*fn2 But while the court's rule to show cause had referred to both the confessed judgment (GD 77-17850) and the execution on same (GD 77-17851), the court's order of June 13, 1979, failed to dispose of the execution on the confessed judgment.

The order of June 13, 1979, also consolidated Jonnet's confessed judgment action against Dietrich with Dietrich's two suits against Jonnet and provided that all three suits proceed to trial at the next jury trial listing.

On the day of trial Dietrich moved that the trial court act with respect to the execution on the confessed judgment (GD 77-17851). Accordingly, the court issued an order disposing of the execution on the confessed judgment: "And now this 3 day of Dec. 1979, it appearing that the Motion to Strike Judgment has not been determined previously, it is hereby ordered and decreed that the within judgment is stricken.*fn3 The balance of the proceedings as consolidated shall proceed to trial." The court order was hand-written in blue ink, and in the upper portion of the order were four docket numbers: GD 76-9197 (anticipatory repudiation), GD 77-17850 (confessed judgment), GD 77-17851 (execution on confessed judgment) and GD 77-02645 (constructive eviction). The court order was signed by the

[ 316 Pa. Super. Page 540]

    trial judge in black ink, and docket number GD 77-17851 (execution on the confessed judgment) was encircled with black ink. The trial court verdict sheet for docket GD 77-17851 states that an "[o]rder [was] entered [on] December 3, 1979, striking this judgment, and trial proceeded as consolidated on GD 77-17850." (Emphasis added). The verdict sheet was signed by the trial judge who issued the aforementioned order of December 3, 1979.

A trial on the merits of the actions docketed at GD 77-17850 (confessed judgment), GD 76-9197, and GD 77-02645 was conducted before a jury. The record includes a verdict sheet corresponding to each docket number. The verdict sheet for GD 77-02645 contains the following brief statement: "See molded verdict at GD 77-17850 [confession of judgment] by the Court. Action governed by verdict entered at GD 77-17850." The verdict sheet at GD 77-17850 enumerates the money damages which Dietrich must pay to Jonnet.

From the foregoing facts it appears that the court order of December 3, 1979, "striking" GD 77-17851 (execution on confessed judgment) was intended merely to stay execution on the confessed judgment docketed at GD 77-17850 pending disposition of the opened confessed judgment after the jury trial.*fn4 Indeed, in several documents which form part of the record in this case (such as Jonnet's motion to mold the verdict in GD 77-17850) Jonnet seemingly acknowledges that the parties proceeded to trial on GD 77-17850. Thus, Jonnet's confession of judgment against Dietrich was not stricken but, rather, was opened and heard on the merits at trial. See Pa.R.C.P. No. 2960.

Accordingly, we affirm the trial court's order of December 3, 1979.

II

Dietrich contends that the trial court wrongfully denied its motion for a new trial*fn5 which opposed directed verdicts

[ 316 Pa. Super. Page 541]

    for Jonnet in the actions alleging Jonnet's anticipatory repudiation of the parties' lease and constructive eviction of Dietrich.

In reviewing a motion for a new trial, we must consider all the evidence adduced at the trial to ascertain whether the verdict was manifestly against the weight of the evidence. Ditz [ v. Marshall, 259 Pa. Super.Ct. 31, 35, 393 A.2d 701, 703 (1978)]. '[T]he decision to either grant or deny a motion for new trial is within the sound discretion of the trial court and will be reversed on appeal only if the appellate court determines the trial court palpably abused its discretion', Myers v. Gold, 277 Pa. Super.Ct. 66, 69, 419 A.2d 663, 664 ...


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