Kennedy v. Erkman
| Decision Date | 28 June 1957 |
| Docket Number | 3150 |
| Citation | 133 A.2d 550,389 Pa. 651 |
| Parties | Samuel A. kennedy and Margaret J. Kennedy, his wife, Plaintiffs, v. Michael ERKMAN and John C. Huss, Defendants, and Cities Service Oil Co., a corporation, Intervenor. Appeal of CITIES SERVICE OIL CO., a corporation, Intervenor. Appeal of John C. HUSS, Defendant. |
| Court | Pennsylvania Supreme Court |
Argued March 20, 1957
Appeals, Nos. 2 and 3, March T., 1957, from order of Court of Common Pleas of Allegheny County, July T., 1956-C, No. 799 in case of Samuel A. Kennedy et ux. v. Michael Erkman, et al. Order affirmed.
Proceeding upon petitions of defendants and intervenors and rules to show cause why judgment in ejectment entered by confession under a written lease should not be opened or stricken off.
Order entered discharging rules, before KENNEDY, ALPERN and BROWN JJ., opinion by BROWN, J. Defendant and intervenor appealed.
John K. Tabor, with him Thomas W. Pomeroy, Jr., Aims C Coney, Jr., and Kirkpatrick, Pomeroy, Lockhart & Johnson, for appellant.
Elmer H. Jacek, for appellant.
Henry E. Rea, Jr., with him Robert Palkovitz and Metz, McClure & MacAlister, for appellee.
Before JONES, CJ., BELL, CHIDSEY, MUSMANNO, ARNOLD, JONES and COHEN, JJ.
There are two appeals in this case. One is the appeal of John C. Huss, one of the defendants in the court below. The other is the appeal of Cities Service Oil Company, an intervenor defendant in the court below. Both appeals are from the order of the trial court which discharged rules to show cause why a judgment in an amicable action of ejectment should not be stricken or opened.
The case arises from the following facts: Appellees, Samuel A. Kennedy and Margaret J. Kennedy, his wife, owned a gasoline service station in Versailles Borough, Allegheny County. On April 9, 1951 appellees entered into a written lease to rent the premises containing the service station to Michael Erkman and John C. Huss. Erkman and Huss were both defendants in the court below, but Erkman is not an appellant in this court. The lease was for a period of one year, expiring on March 16, 1952, and from year to year thereafter, but, nevertheless, each party could terminate the lease at any time upon sixty days' written notice. The lease provided that the premises could be used solely as a retail gasoline sales station and that only gasoline, motor oils and greases distributed or sold by lessors could be sold by the lessees, and such products could be purchased only from or through the lessors. Lessees agreed to pay to lessors a rental of $540 per month. On or about October 27, 1952, the Kennedys executed a written assignment to the intervenor appellant, Cities Service Oil Company. The assignment provided that in consideration of One Dollar the Kennedys assigned to Cities Service Company "all rights, privileges and obligations" in the lease with Erkman and Huss, "with the specific exception that all rental payments shall continue to be paid directly to [the Kennedys]" by Erkman and Huss. The assignment further provided, "This assignment does not include the rentals and all rights incidental thereto." On a date, found by the court below to be January 12, 1956, appellee Samuel Kennedy gave timely notice to Erkman and Huss that the lessors terminated their lease and directed the lessees to vacate the premises on or before March 16, 1956. When the lessees failed to vacate the premises in accordance with the notice, the Kennedys confessed judgment in an amicable action of ejectment in accordance with the provisions of the lease. On lessees' motion a rule was granted on plaintiffs to show cause why the judgment should not be opened and the defendant allowed to defend. Cities Service Oil Company was permitted to intervene and to file a petition to open the judgment and an answer to the complaint. Subsequently, the defendants and the intervenor filed a petition praying the court to strike off the judgment, because one of the lessors, Margaret J. Kennedy, did not sign the notice of termination of the lease. The court below heard the case on the pleadings and depositions taken by the parties and, as above stated, refused to strike or open the judgment entered for the plaintiffs in the amicable action of ejectment.
The issues presented by the facts in this case are very narrow. They may be stated as follows:
1. Did the assignment executed by the Kennedys convey their power to terminate the lease; and
2. Where a husband and wife are the lessors, is it necessary that a termination notice be signed by the wife as well as the husband?
In order to resolve the first issue, it is necessary to determine the intent of the parties in using the words "all rights, privileges and obligations" to describe what was to pass to the assignee at the time the assignment was executed.
The primary rule of construction of an agreement is that the intent of the parties is controlling. Where the words used are clear and unambiguous the intention must be determined from the agreement alone: Atlantic Refining Company v. Wyoming National Bank of Wilkes-Barre et al., 356 Pa. 226 (1947), 51 A.2d 719. But where there is ambiguity or doubt a court may resort to surrounding circumstances to ascertain the intent of the parties: Mowry, Exr. et al. v. McWherter, 365 Pa. 232 (1950), 74 A.2d 154.
Appellants contend that when a lessor assigns a lease he no longer has the power to terminate it. In support of this contention appellants cite Landberg et al. v. Equitable Investment Co. et al., 292 Pa. 476 (1928), 141 A. 302, and Mercantile & Theatres Properties, Inc., to use, et al. v. Stanley Company of America, 346 Pa. 343 (1943), 30 A.2d 136. These cases are not determinative of the issue raised in the present appeals. It is clear under these and similar cases, where the parties, because of the nature of the transaction involved, unquestionably intend to assign the power to terminate a lease, that power will pass to the assignee along with the other attributes of property which the lease formerly vested in the assignor. The cases cited by appellant, and others which could have been cited, arose out of financial transactions where the lessor's entire interest in a lease was assigned as security for a specific obligation owed by the assignor to the assignee. Where a loan is secured by the pledge of specific assets, it would be an extraordinary...
To continue reading
Request your trial
- Commonwealth v. Miller
-
Com. v. Miller
...other misdemeanors proceed by information. It is significant, however, that Cano recognizes a third category known as summary offenses. 389 Pa. at 651, 133 A.2d 800. It remains to define summary In arriving at that definition, I would follow the approach of Cano and the federal decisions co......
- Kennedy v. Erkman