Sterle v. Galiardi Coal & Coke Co.

• Decision Date: 12 January 1951
• Citation: 77 A.2d 669,168 Pa.Super. 254
• Parties: STERLE v. GALIARDI COAL & COKE CO.
• Court: Pennsylvania Superior Court

77 A.2d 669

168 Pa.Super. 254

STERLE v. GALIARDI COAL & COKE CO.

Superior Court of Pennsylvania.

January 12, 1951

Joseph B. Sterle, Jr., obtained a judgment confessed against the Galiardi Coal & Coke Company on a warrant contained in a lease and the defendant brought a proceeding to strike off the judgment. The Court of Common Pleas of Fayette County at No. 24, March Term, 1950, W. Russell Carr, P. J., entered an order refusing to strike off the judgment and the Galiardi Coal & Coke Company appealed. The Superior Court, No. 159 April Term, 1950, Hirt, J., held that there was no merit to the coal company's contention that authority to contest judgment under warrant in lease was personal to lessor and could not be assigned to plaintiff and that even without provision in lease that agreement should be binding on assigns of respective parties, any warrant of attorney for entering an amicable action of ejectment for possession inures to benefit of assignee.

Order affirmed.

J. Kirk Renner, Lewis M. D'Auria Connellsville, Jos. W. Ray, Jr., Herman M. Buck, and Ray Coldren & Buck, all of Uniontown, for appellant.

Goldstein & Goldstein and O. B. Goldstein, all of Uniontown, for appellee.

Before HIRT, Acting P. J., and RENO, DITHRICH, ROSS, ARNOLD and GUNTHER, JJ.

HIRT Judge.

In this proceeding the majority of the court below properly refused to strike off a judgment confessed against a partnership on a warrant contained in a lease. The order will be affirmed.

Irwin Gas Coal Company entered into the lease of coal land with the defendant partnership ‘ for the term of One (1) year from and after March 2, 1947, with the privilege to the party of the second part to renew and continue the possession from year to year for and during two additional years'. On March 9, 1948, the above lessor sold and conveyed the leased premises to Joseph B. Sterle, Jr., the present appellee and assigned the lease to him. It is admitted that on December 6, 1949, Sterle notified the defendant lessee in writing that the lease ‘ will be at an end as of March 2, 1950’ in accordance with its terms. On the refusal of defendant to quit, Sterle alleging a violation of the terms of the lease, confessed judgment in ejectment on the authority of the warrant contained in the lease.

There is no merit in appellant's contention that the authority to confess judgment under the warrant in the lease was personal to the lessor and could not be assigned. The argument is refuted by the following specific language of Article 11 of the lease: ‘ This agreement * * * shall be binding upon [and] inure to the heirs, executors, administrators, successors and assigns of the respective parties hereto’ . (Emphasis added.) But even without such provision in a lease agreement, it is settled law that ‘ while authority to confess a judgment cannot operate in favor of a stranger to the contract, a covenant providing a warrant of attorney for entering an amicable action of ejectment for possession inures to the benefit of the assignee’ . Miller et ux. v. Michael Morris, Inc., et al., 361 Pa. 113, 118, 63 A.2d 44, 47. The cases in this court are to the same effect in holding that an assignee, generally, may properly confess judgment in ejectment under the authority of a warrant contained in a lease. Testa v. Lally et ux., 161 Pa.Super. 478, 55 A.2d 552; Shappell v. Himelstein, 121 Pa.Super. 418, 183 A. 644.

Moreover, the judgment is not invalid because the proceeding was initiated upon a complaint in ejectment under oath, alleging a violation of a covenant of the lease, rather than upon a praecipe accompanied by an affidavit specifying in what particulars the lessee violated the terms of the lease. Essentially the two methods of proceeding are the same, differing in name only. An action begun by complaint is authorized by Rule 1007 of Civil Procedure, 12 P.S.Appendix, and that method was adopted rather than by praecipe and affidavit of default in accordance with the letter of the lease. In any view, however, as the majority opinion suggests, the release of errors contained in the lease renders the variance in procedure inconsequential. Cf. Consumers Mining Co. v. Chatak, 92 Pa.Super. 17.

Appellant's contention that as lessee it was entitled to continue in possession indefinitely from year to year after March 2, 1950, under Article 8 of the lease, is also untenable. That article provides: ‘ The lessee shall have the right or option to extend this lease from year to year from the date of expiration thereof, under the same terms and conditions'. A lease for a term certain, and thereafter to continue at the will of the lessee, may be enforceable. Myers v. Kingston Coal Co., 126 Pa. 582, 601, 17 A. 891. But covenants for continued renewals tending to create a perpetuity are not favored in law.51 C.J.S., Landlord and Tenant, § 61; and leases will not be construed to give them that effect unless the intention is expressed in unequivocal terms. 3 Thompson on Real Property (Permanent Ed.) § 1174. We are in agreement with the majority below that the expressed intention in the present lease is to the contrary. Manifestly if the general language of Article 8 were to govern, the limitation of the term of the lease in the clause of demise, to one year with the privilege to renew and continue in possession from year to year for and during...