Opinion
November 13, 1963.
December 12, 1963.
Practice — Judgments — Confession — Inclusion of item as additional rent — Averment of default generally — Striking judgment — Opening judgment.
1. Where it appeared that a written lease provided that the tenant covenanted, inter alia, not to alter the premises without the written consent of lessor, under penalty of forefeiture of lease "and payment of $150.00 as additional rent"; and that the lessor, in entering judgment under a warrant contained in the lease, averred in his statement of confession that the lessee had promised to pay lessor the sum of $85 as rent on or before a specified date, and the sum of $150 as additional rent; it was Held that the court below erred in striking off the judgment on the ground that it improperly included the sum of $150 as additional rent.
2. In confessing judgment, the default may be pleaded generally without averring with particularity the facts relied on to support the claim of default.
3. Where it appeared that defendant filed a rule to open as well as to strike, but abandoned the rule to open in the court below; and that plaintiff's answer to the rule averred an alteration of the premises not consented to by him, and his depositions supported this averment and defendant submitted no counterdepositions; it was Held that there was no basis in the record for opening the judgment, and that the order striking the judgment should be reversed and the judgment reinstated.
Before RHODES, P.J., ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ.
Appeal, No. 109, April T., 1963, from order of Court of Common Pleas of Allegheny County, July T., 1962, No. 432, in case of George H. Campbell v. Fyre-Safety, Inc. Order reversed.
Proceeding upon petition of defendant and rule to show cause why judgment entered by confession on a written lease should not be stricken or opened.
Order entered making rule absolute to strike judgment from record, opinion by BROWN, J. Plaintiff appealed.
Robert F. Patton, with him Clayton A. Sweeney, and Buchanan, Ingersoll, Rodewald, Kyle Buerger, for appellant.
Seymour J. Schafer, with him Leonard H. Levenson, and Markel, Markel, Levenson Fischer, for appellee.
Argued November 13, 1963.
This case concerns the validity of a judgment entered by confession under a warrant contained in a lease. The statement of confession or "declaration on judgment" averred that the lessee "had promised to pay . . . [the lessor] the sum of eighty-five dollars ($85.00) as rent on or before April 1, 1962, and the sum of one hundred fifty dollars ($150.00) as additional rent . . ." Judgment was entered for $235 rent plus attorney's commission of $150 or a total of $385.
The court below made absolute the rule to strike the judgment because it improperly included the sum of $150 as additional rent. The inclusion of an improper item within the scope of a confessed judgment is a proper basis for striking off the judgment ( Park-Main Co. of Penn. Inc. v. Fayette National Bank Trust Co., 397 Pa. 75, 152 A.2d 714 (1959)) and the question before us is whether the item of $150 was improperly included.
The clause under which this item is claimed to be due as additional rent reads: "The Tenant covenants . . . to remove no additions, or improvements made by the Lessor, or of the Tenant, nor alter the premises nor sublet the same or any part thereof, nor to post bills or erect billboards or signs, nor assign this Lease voluntarily, involuntarily, by judicial sale or otherwise, without the written consent of the Lessor, under penalty of instant forfeiture of this Lease and the terms hereof, and payment of $150.00 as additional rent. . . ."
In the answer to the lessee's petition to strike, the lessor averred that the $150 additional rent had become due and, under new matter, averred an alteration of the premises without his consent. Since an alteration, not consented to, is a breach of the above-recited covenant, the confession of judgment for $150 additional rent based on this breach was authorized. The lessee's denial of the breach would at most give it the right to have the judgment opened to present the defence.
The error complained of by the appellee thus reduces to the insufficient specification of the default in the plaintiff's "declaration on judgment" which, as to this item, said merely that the defendant was in default in the payment of $150 as additional rent under the terms of the lease. In Park-Main Co. of Penn., Inc. v. Fayette National Bank Trust Co., supra, at p. 79, the Supreme Court said: "[T]his Court has recently held that the default may be pleaded generally without averring with particularity the facts relied on to support the claim of default without verification. Fidelity America Financial Corporation v. Bassman, 393 Pa. 613, 144 A.2d 841; Kros v. Bacall Textile Corporation, 386 Pa. 360, 126 A.2d 421." In the Park-Main case the "Statement and Confession" averred merely that ". . . the Defendant is in default in the payment of rentals and taxes on the aforesaid lease." In Kros v. Bacall, supra, the affidavit averred that the fire which destroyed the premises was caused by the act, fault or neglect of defendant or those acting for it. In Fidelity America Finance Corporation v. Bassman, supra, the averment was that "the defendants . . . have failed to make payments on account when due". In that case the court said, quoting Kros v. Bacall, supra, that". . . it is not an objection to the validity of the judgment that the facts supporting such averments can be ascertained only from evidence dehors the face of the obligation; if such facts are contested the defendant's remedy is by rule to open the judgment, not to strike it off."
Since the lease here authorized the entry of judgment for $150 additional rent if the lessee made any unauthorized alterations, the judgment should not have been stricken off.
Whether there were actually any unauthorized alterations is an issue of fact determinable only upon a rule to open judgment. The appellee filed a rule to open as well as to strike, but abandoned the rule to open in the court below. Moreover, the appellant's answer to the rule averred an alteration of the premises not consented to by him and his depositions supported this averment. The appellee submitted no counterdepositions and the court below stated that an examination of the pleadings "would indicate that the $150 additional rent accrued due to the alteration of the premises without the consent of the lessor." There is no basis in the record for opening the judgment.
The order is reversed and the judgment is reinstated.