Opinion
December 16, 1958.
March 18, 1959.
Judgments — Opening — Confession under lease — Judgment in court of common pleas opened — Subsequent entry of judgment in Municipal Court — Credit for security deposit — Credits under lease to third person — Breach of lease — Acceptance of surrender.
Where it appeared that plaintiff caused judgment to be entered by confession in the court of common pleas, for rent due for January, 1957, under the terms of a lease from plaintiff to defendant, and that defendant filed a rule to open the judgment which was made absolute and judgment opened; that thereafter plaintiff caused judgment to be entered by confession in the Municipal Court, filed an averment of default and an assessment of damages which set forth the rent due from February to the end of the term, less a credit in the amount of a security deposit and less net rents collected from a new tenant, leaving a net sum alleged to be due, which was within the jurisdiction of the Municipal Court; that the issues in the Municipal Court were the same issues before the court of common pleas, except that in the prior judgment the defendant was not credited with the amount of the security deposit; that under plaintiff's theory of the case defendant was not entitled to return of the amount of the security of the deposit; that if the amount of the security deposit was added to plaintiff's claim the court of common pleas had jurisdiction; and that the court below concluded that judgment in the Municipal Court should be opened so that the case could be transferred and consolidated with the one pending in the court of common pleas, in order that a trial be had to determine whether the lease was breached by plaintiff-lessor, whether there was a completed and executed surrender of the lease by defendant-lessee and an acceptance of the surrender by plaintiff-lessor, and whether the defendant had received fully all the credits to which he was entitled by virtue of the lease made by plaintiff with the new lessee; it was Held that the order of the court below should be affirmed.
Before RHODES, P.J., GUNTHER, WRIGHT, WOODSIDE, ERVIN, and WATKINS, JJ. (HIRT, J., absent).
Appeal, No. 54, Oct. T., 1959, from order of Municipal Court of Philadelphia County, May T., 1958, No. 2483, in case of Kitty Kelly Market Street Philadelphia Corporation v. Charles J. Barsky. Order affirmed.
Same case in court below: 16 Pa. D. C. 2d 293.
Proceeding upon petition of defendant and rule to show cause why judgment entered by confession under a written lease should not be opened.
Order entered making rule absolute, opinion by BOYLE, J. Plaintiff appealed.
Allen J. Levin, with him Samuel D. Goodis, and Folz, Bard, Kamsler, Goodis Greenfield, for appellant.
Frank H. Gelman, for appellee.
Argued December 16, 1958.
The order of the court below is affirmed on the opinion of Judge JOHN A. BOYLE, as reported in 16 Pa. D. C. 2d 293.