Opinion
September 27, 1943.
November 10, 1943.
Landlord and tenant — Rent — Credit for lodging lessor — Death of lessor — Tender of rental value of portion of premises — OPA regulations — Eviction.
1. In an action of ejectment, in which defendants in their answer averred that they obtained possession of the premises in question from plaintiff's decedent under a verbal lease providing for a specified monthly rental and that they were to receive a credit for lodging and boarding the decedent; that this rental arrangement continued until the death of the lessor; that the premises were thereafter not used entirely by defendants, a portion being vacant; and that the part they occupied had a stated rental value (which was less than the rent specified in the verbal lease) and that they had offered to pay plaintiff that amount, which had been declined; it was Held that the defense that the lessees had offered payment of the rent could not prevail.
2. In such case, it was Held that the facts averred by defendants did not bring the case within the OPA Regulations which provided, in part, that so long as a tenant continued to pay the rent to which the landlord was entitled, he should not be re-moved from any housing accommodations.
Before KELLER, P.J., BALDRIGE, RHODES, HIRT, KENWORTHEY and RENO, JJ. (STADTFELD, J. absent).
Appeal, No. 12, Oct. T., 1943, from judgment of C.P. No. 4, Phila. Co., June T., 1942, No. 2573, in case of John F. Burgess, Executor and Trustee under Will of John F. Boyle, v. James E. Cleary et al. Judgment affirmed.
Ejectment.
Rule for judgment made absolute and judgment in ejectment entered, opinion by FINLETTER, P.J. Defendants appealed.
Herman Toll, for appellants.
John F. Burgess, for appellee.
Argued September 27, 1943.
This appeal is from a judgment entered by the learned court below against the defendants on the pleadings in an ejectment case.
John F. Boyle died testate December 3, 1940. He named in his will John F. Burgess as executor and trustee, and title to him passed thereunder to the premises in dispute known as No. 4136 Manayunk Avenue, Philadelphia. Defendants in their answer averred that they obtained possession of these premises in October 1933 from Boyle under a verbal lease providing for a rental of $50.00 per month, and that they would receive a credit for lodging and boarding Boyle, leaving a net cash balance due monthly of $15.34, and that this rental arrangement continued until Boyle's death.
Defendants averred also that the premises are not now being used entirely by them, a portion being vacant, that the part they occupy has a rental value of $15.00 per month and that they offered to pay plaintiff that amount which has been declined. Of course the defendants were not entitled to a credit for Boyle's lodging and boarding after his death. It is not alleged that they entered into a new lease, so that the only lease that remains in effect is the original one providing for payment of $50.00 per month which defendants do not contend has been paid. The defense that the lessees offered payment of the rent cannot prevail.
The second defense is that the plaintiff failed to comply with O.P.A. Regulations.
The defendants as tenants recognize that the legal title to the premises is in plaintiff, but claim the right of possession under the original lease until they can secure living quarters relying upon Maximum Rent Regulation No. 28, relating to restrictions of removal of tenants, as provided by part 1388.1806, 1942 Federal Register pages 4913, 4915; that plaintiff as required thereby should have notified the O.P.A. Office of the Philadelphia area of his instituting this action.
The regulations referred to provide in part that "So long as the tenant continues to pay rent to which the landlord is entitled, no tenant shall be removed from any housing accommodations by action to evict, or to recover possession by exclusion from possession or otherwise."
It is apparent that the facts averred by defendants do not bring this case within the O.P.A. Regulations as the defendants failed to pay the rent in accordance with the lease so that notice was not required to the Federal Agency.
Reporter's note: By amendment dated October 20, 1942, subsequent to the bringing of this suit, the Rent Regulation for Housing was amended to require a preliminary ten day notice to vacate to be served on the tenant and a copy to be sent to the Area Rent Office within twenty-four hours. By further amendment dated March 24, 1943, the time for preliminary notice in non-payment of rent cases was reduced to three days. Under both amendments further notice was also required to be given to the Area Rent Office of the institution of any action to remove or evict the tenant on any ground including non-payment of rent.
The appellants argue also that the Plaintiff's Declaration was insufficient to support the judgment. We find no merit in that contention. The pleadings in this ejectment case warranted the entering of judgment for the plaintiffs and the court below acted within its authority in doing so. Jennings v. Maley, 261 Pa. 485, 104 A. 731.
Judgment affirmed.