Opinion
October 3, 1955.
January 17, 1956.
Landlord and tenant — Lease — Provision for payment of excess water and sewerage charges — Transfer of title — Liability of lessee for water previously consumed — Billing subsequent to transfer.
Where a lease provided that lessee agreed to pay as additional rent all charges for water consumed upon the demised premises in excess of the yearly minimum meter charge "immediately when the same become due", and contained a similar clause applicable to sewer charges; that within the term of the lease plaintiff, the lessor, sold the premises and notified defendant, the lessee, of that fact; that defendant then entered into an agreement with the new owner by which defendant agreed to remove from the premises and was released from all liability; that on the day defendant moved the city inspected the water meter on the premises and determined the amount of excess water and sewer rent due; and that plaintiff paid these charges several months later; it was Held that defendant's liability for the charges arose when the water was consumed, and, therefore, defendant owed plaintiff the amount of the charges when ownership of the premises was transferred even though the charges were not billed until later.
Before RHODES, P.J., HIRT, ROSS, GUNTHER, WRIGHT, WOODSIDE, and ERVIN, JJ.
Appeal, No. 294, Oct. T., 1955, from judgment of Municipal Court of Philadelphia County, May T., 1955, No. 711, in case of Marie C. Kalteyer, trustee under will of Helen K.C. Ryan, Dec'd. v. Joseph Fishman. Judgment reversed; reargument refused February 4, 1956.
Assumpsit.
Order entered dismissing motion for judgment on the pleadings, opinion by BONNELLY, J. Plaintiff appealed.
Ralph B. Umsted, with him Lewis H. Trautz, for appellant.
Benjamin F. Kivnik, for appellee.
Argued October 3, 1955.
This is a suit in assumpsit to recover excess water and sewer rent. Plaintiff leased premises to defendant for a period of three years beginning September 1, 1952. The lease provided, inter alia: "Lessee further agrees to pay as additional rent, if there is a metered water connection to the said premises, all charges for water consumed upon the demised premises in excess of the yearly minimum meter charge . . . immediately when the same become due" and a similar clause applicable to sewer charges. On August 16, 1954, plaintiff sold the premises and notified the defendant of that fact. Defendant then entered into an agreement with the new owner by which defendant agreed to remove from the premises and was released from all liability. On the day defendant moved, the City of Philadelphia inspected the water meter on the premises and determined the amount of excess water and sewer rent due. The plaintiff paid these charges plus a penalty several months later. The above facts are contained in the complaint, answer and new matter. Plaintiff moved for judgment on the pleadings, which was denied by the court below and plaintiff has appealed.
Plaintiff contends that defendant's liability for water charges arose when consumed and not merely when billed after a meter reading and therefore defendant owed the amount claimed when ownership of the premises was transferred. Defendant maintains that the charges became due only when billed and made payable, at which time plaintiff was no longer the owner. There is no dispute as to the amount involved.
The error in defendant's argument is the contention that the water and sewer charges are rents. "Taxes, water rent, and gas bills cannot be considered as rent or included therein unless there is an intention to so consider them which must be clearly expressed in the contract between the parties." Stern's Trickett on Landlord and Tenant, 3d Ed. p. 78. Such charges as water and sewer rent are really in the nature of taxes. Phila. v. N. Snellenburg Co., 163 Pa. Super. 507, 63 A.2d 480. When the lessor pays such charges he normally can recover from the lessee. Vorndran v. Franz, 62 Pa. Super. 405. The fact that the plaintiff and defendant are not in a lessor-lessee relationship at the time the charges or taxes are payable does not mean, as would be true with rent, that the plaintiff has no rights against the lessee. Thus, in Broad Sansom R. Co. v. Fid. Bldg. Corp., 292 Pa. 287, 141 A. 34, the lessor recovered two months' taxes under a lease providing for lessee to pay the taxes on August 31, even though the lease was terminated in March.
The lease provides that the lessee shall pay for all excess water consumed when the same shall become due. The intent of this provision is clearly that the lessee should pay such charges directly or reimburse the lessor if the latter is forced to pay. The amount of the water and sewer charges was uncertain and unascertainable at the time the premises were sold by the plaintiff, and also at the time the defendant made arrangements with the new owner. They therefore could not have been a factor in the negotiations among the parties, as would rent, which is a sum certain payable at specified times. It is obvious that defendant is attempting to escape a legal obligation by interpretation. Since the amount of the charges, pro rata, is not in dispute, judgment should be entered on the pleadings in favor of the plaintiff.
Judgment reversed and the record is remitted to the lower court for entry of judgment in favor of the plaintiff in the amount of $193.14, with interest from January 3, 1955.