Opinion
March 11, 1947.
April 16, 1947.
Appeals — Certiorari — Waiver — Landlord and tenant — Procedural irregularities — Action before magistrate for possession — Written notice of termination of lease — Service of summons by constable — Conclusiveness — Non-joinder of wife-lessor in action — Presumption on certiorari.
1. A lessee may waive his right to a review of a judgment of eviction by appeal or certiorari.
2. Where a lessee waives his right to review of a judgment of eviction by appeal or certiorari, procedural errors or deficiencies in the entry of judgment are waived and certiorari brings up for review only such irregularities of record as amount to a fundamental lack of authority to enter the judgment.
3. Certiorari brings up for review nothing but the record.
4. The alleged failure of plaintiff lessor to serve written notice on defendant to quit the premises, and alleged improper service by the constable of the summons in an action before a magistrate for possession are complaints which go to matters of procedure and are within a waiver of the right to review of a judgment of eviction by appeal or certiorari.
5. The non-joinder of a wife, who signs a lease as a co-lessor, as a party plaintiff in an action for possession of premises is a procedural deficiency and may be cured by amendment.
6. On certiorari, every presumption consistent with the record is to be made in favor of the regularity of the proceeding.
7. Strict formality is not to be insisted upon in civil proceedings before a magistrate, especially where the action is not for a money judgment.
8. The return of a constable as to the service of summons in a case is conclusive of that fact.
Before RHODES, P.J., HIRT, RENO, DITHRICH, ROSS and ARNOLD, JJ.
Appeal, No. 4, Oct. T., 1947, from order of C.P. No. 5, Phila. Co., Sept. T., 1946, No. 725, in case of Harold Polis v. Mr. and Mrs. J. Herbert Raphael. Order affirmed; reargument refused April 28, 1947.
Proceeding upon certiorari issued after judgment for possession of premises before magistrate.
Exceptions by defendants to return of record dismissed and petition by plaintiff to strike off writ granted, opinion by ALESSANDRONI, J. Defendants appealed.
Robert H. Arronson, for appellants.
Israel Packel, for appellee.
Argued March 11, 1947.
This action was brought by plaintiff under the Act of March 31, 1905, P.L. 87, 68 PS 366, to recover, for his own occupancy, an apartment which defendants had refused to surrender on the expiration of the term of the written lease. After hearing, judgment of possession was entered for plaintiff, whereupon defendants caused a writ of certiorari to issue to the magistrate.
The magistrate's transcript is complete in all material respects; it recites the terms of the written lease entered into by defendants with plaintiff and his wife, and that permission had been obtained from the Office of Price Administration to evict the defendants. The transcript also quotes the provision of the lease in which defendants agreed that any "judgment, order or decree entered against him by me in any Court or Magistrate by virtue of the powers of Attorney contained in this lease, or otherwise, shall be final and that he will not appeal, or take certiorari . . ." therefrom.
On inspection of the transcript in this case the lower court well might have granted plaintiff's petition to strike off the certiorari because of defendants' waiver in the lease. There is nothing in the law preventing a lessee from waiving his right to a review of a judgment of eviction by appeal or certiorari. That has been decided many times since Cuncle v. Dripps, 3 P. W. 291. There was no unconscionable use of the waiver nor perversion of it in plaintiff's effort to regain possession of the premises. Since the remedy was honestly exercised plaintiff was entitled to immediate possession upon entry of judgment in this proceeding in his favor. Cf. Curry v. Bacharach Quality Shops, Inc., 271 Pa. 364, 117 A. 435; Littlejohn et al. v. Rincoe, 159 Pa. Super. 588, 49 A.2d 533.
The lower court, after argument, dismissed defendants' exceptions on certiorari, in effect, affirming the judgment. There is no merit in any of the questions raised by defendants' appeal from that order. Certiorari brings up for review nothing but the record. Irregularities appearing on the face of the record may be corrected on review, (Lynch v. Hickey, 152 Pa. Super. 129, 31 A.2d 449) but, in this case because of defendants' waiver, only such irregularities as amount to a fundamental lack of authority to enter the judgment. Procedural errors or deficiencies were waived by defendants in the lease. Grakelow v. Kidder, 95 Pa. Super. 250; Curry v. Bacharach Quality Shops, Inc., supra.
Defendants contend that the record does not show that plaintiff served them with a written notice to quit. The transcript recites that plaintiff on July 1, 1946, "sent the Defendants notice to vacate on or before August 1, 1946 in accordance with the local law and terms of the lease." This language negatives a notice by parol and implies service in accordance with the Act of 1905, when read in the light of the magistrate's conclusion that defendants "had adequate notice to quit." Cf. Roming v. Shivers, 156 Pa. Super. 205, 208, 39 A.2d 786. On certiorari every presumption consistent with the record, is to be made in favor of the regularity of the proceeding. Ristau et ux. v. Crew Levick Co., 109 Pa. Super. 357, 167 A. 800. For this reason also we are unable to say that the summons was not properly served. The constable made this return thereon on September 6, 1946: "Served on defendant by handing a true and attested copy thereof, at their place of residence, to an adult member of the family with which they resided." (Emphasis added.) Strict formality is not to be insisted upon in civil proceedings before a magistrate (Snyder v. Carfrey, 54 Pa. 90) especially here, since the action was not for a money judgment as in Mamlin v. Tener, 146 Pa. Super. 593, 23 A.2d 90. Defendants had notice of the action by service of the summons by copy delivered to an adult member of their family "at their place of residence." The return of the constable is conclusive of that fact. Holly v. Travis, 267 Pa. 136, 110 A. 230. In any view, the above complaints go to matters of procedure which were within defendants' waiver. Consumers Min. Co. v. Chatak, 92 Pa. Super. 17.
The lease, recognizing plaintiff as a party to it gives him standing to bring this action. Defendants complain that plaintiff's wife, who signed the lease was not joined with him as a party to the action. She should have appeared as a party-plaintiff but her non-joinder not only was a procedural deficiency merely but was such defect as could be cured by amendment. Goodrich-Amram, § 2232(c).
The order is affirmed.