Elizabethtown Lodge No. 596 v. Ellis
| Decision Date | 06 January 1958 |
| Docket Number | 2789 |
| Citation | 391 Pa. 19,137 A.2d 286 |
| Parties | ELIZABETHTOWN LODGE NO. 596, LOYAL ORDER OF MOOSE, v. Edwin J. ELLIS, Appellant. |
| Court | Pennsylvania Supreme Court |
Argued November 13, 1957
Appeal, No. 283, Jan. T., 1957, from order of Court of Common Pleas of Lancaster County, Sept. T., 1956, No. 28, in case of Elizabethtown Lodge No. 596, Loyal Order of Moose v. Edwin J Ellis. Order reversed.
Proceedings upon plaintiff's rule to amend petition for leave to enter confessed judgment, and defendant's rules to strike off judgment and to open judgment entered by confession in ejectment. Before WISSLER, P.J.
Order entered discharging defendant's rules; plaintiff's rule made absolute. Defendant appealed.
The order is reversed and the record is remanded to the court below for further proceedings in accordance with this opinion; costs to be paid by appellee.
Morris Wolf, with him Ralph M. Barley, Mitchell E. Panzer Barley, Snyder, Cooper & Mueller, and Wolf, Block Schorr & Solis-Cohen, for appellant.
F. Lyman Windolph, with him Henry F. Gingrich, and Windolph, Burkholder & Hartman, for appellee.
Before JONES, C.J., BELL, CHIDSEY, MUSMANNO, ARNOLD, JONES and COHEN, JJ.
This is an appeal from an order of the Court of Common Pleas of Lancaster County discharging rules to strike off and to open a judgment entered by confession in an amicable action of ejectment and granting a rule by the appellee to amend nunc pro tunc its petition for leave to enter judgment.
The material facts, which are not in dispute, are as follows: On April 16, 1940, the appellant, Edwin J. Ellis, and the appellee, lessor, Elizabethtown Lodge No. 596, Loyal Order of Moose, entered into a written lease prepared by the lessor, covering an unimproved lot in the Borough of Elizabethtown, Lancaster County, Pennsylvania. The term of the lease was for a period of 20 years from April 1, 1940, with the right of appellant to renew the lease for two additional terms of five years each. The agreed upon rental was $50 per month during the first 20 years; $60 per month for the first renewal period of five years and $75 per month for the second renewal term. The lease was silent with respect to the place at which the rent was to be paid.
Shortly after taking possession appellant, in accordance with permission contained in the lease and the prior approval of the lessor, erected on the premises for occupancy by the American Stores Company a one-story building at a cost to appellant of $31,250. As further contemplated by the parties to the original lease, a sub-lease of the improved premises was made to the American Stores Company at a rental exceeding that payable by appellant to appellee.
In the same year, 1940, appellant assigned his interest in the lease to Jacob Ellis Realties, Inc., of which he was and is president and treasurer. The corporation in turn assigned its interest to the Central-Penn National Bank of Philadelphia as collateral security for a loan. Both assignments were approved in writing by the appellee. Thereafter the rent was paid by the bank to the appellee.
More than 16 years later, on June 21, 1956, the bank notified the appellant and appellee by letter that its interest in the lease had terminated as of June 1, 1956. As a result the obligation devolved upon appellant or upon the corporation of which he was president to see to the payment of rent directly to the lessor commencing July 1, 1956. At the time the appellant received the letter he was making preparations to go abroad and, consequently, he turned over the letter together with all other documents pertaining to the demised premises to his secretary with specific instructions to take care of the matter until his return.
On July 20, 1956, he departed for Europe as planned and did not return to the United States until September 14, 1956. As previously indicated, from 1940 until July, 1956 the rent had been paid faithfully every month by the bank. However, the three monthly payments due between the time appellant turned the matter over to his secretary until his return from Europe, namely, July, August and September, were not paid. During these three months the lessor appellee made no demand for the payment of rent on either the appellant or Jacob Ellis Realties, Inc., but on July 31, 1956, Charles B. Sweigert, who was then Governor of the Lodge, called upon the local manager of the American Stores Company and notified him that the rent was in default and informed him to relay this information to the district manager of American Stores to see what was actually transpiring.
With no further communication to American Stores and with no notification at all to appellant or his company, the lessor, on September 14, 1956, the day appellant returned from Europe, under a power contained in the lease, caused a dual judgment to be entered as by confession (1) for $150 arrearages of rent and (2) in ejectment for possession of the property.
Inasmuch as the warrant of attorney to enter judgment was over 10 years but less than 20 years old, a local rule of court [1] required leave of the court, which was granted and the judgments entered the same day.
Appellant first learned of these proceedings indirectly in the latter part of September, whereupon he immediately telephoned counsel for the lessor and offered to send a check for accrued rent with interest. Counsel for the Lodge informed appellant it was then too late to pay the rent and followed this conversation with a letter informing appellant that the Lodge had decided to insist upon a forfeiture in spite of the tender. He stated further that the Lodge would be willing to execute a new lease at an increased rental based upon the present rental value of the premises or settle the action by requiring payment of a substantial sum to reinstate the original lease. The letter concluded by stating unless a substantial offer was made the Lodge would negotiate a new lease directly with the appellant's subtenant.
On October 23, 1956, appellant, through his attorney, made a formal tender of the arrears of rent with interest. This tender together with all subsequent tenders up to the time of argument on the rules was refused by the lessor. Thereafter, on October 26, 1956, appellant filed separate petitions to strike off and to open these judgments. The petition for a rule to strike of the judgments was predicated upon the lessor's failure to comply with the rule of court previously alluded to in that neither appellee's original petition nor its affidavit contained any averment that the rent was unpaid and, secondly, that the judgment was entered without averment or proof of demand for rent by appellee. The first defect of record was subsequently cleared by the court's grant of appellee's motion to amend.
We deem it unnecessary to consider the propriety of the court's action in allowing the amendment nunc pro tunc or the court's refusal to open the judgment because of the unconscionableness of the lessor's action, for we are of the opinion that the rule to strike off the judgment should have been made absolute by reason of the appellee's failure to aver or prove a demand for rent.
In Pennsylvania we have consistently followed the strict common law rule that unless a demand for rent is expressly waived by the terms of a lease a demand by the lessor is absolutely essential to work a forfeiture thereof for nonpayment of rent. As stated in McCormick v. Connell, 6 S. & R 151, 152, 153, . ...
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