Opinion
March 19, 1952.
July 17, 1952.
Practice — Landlord and tenant — Possessory action — Appeals — Bond — Amount of rent in arrears — Finding of alderman — Res adjudicata — Act of April 3, 1830, P.L. 187.
1. Under the Act of April 3, 1830, P.L. 187, § 1 (which provides for a possessory action by a landlord and which further provides that no writ shall issue if within five days after judgment the tenant shall give good, sufficient, and absolute security for all costs and also for all rent that has accrued), the bond required is a condition precedent to the appeal.
2. Where, in a landlord's possessory action before an alderman, the alderman found that there was rent in arrears in the amount of $2,000 and entered judgment for possession, and defendant attempted to appeal to the common pleas but gave bond in the sum of only $700, it was Held that defendant's appeal was properly quashed.
3. It was Held that the matter was not res adjudicata, as contended by defendant, on the ground that the court had stricken off the judgment entered by plaintiff in an amicable action of ejectment against defendant.
Before RHODES, P.J., HIRT, RENO, DITHRICH, ROSS, ARNOLD and GUNTHER, JJ.
Appeal, No. 32, Oct. T., 1952, from judgment of Court of Common Pleas of Lancaster County, July T., 1951, No. 39, in case of Florence L. Stoler and Marian L. Schaffner v. Fraternal Order of Beavers, Lancaster Lodge No. 166, Lancaster, Pa. Judgment affirmed.
Proceeding upon motion of plaintiffs and rule to show cause why appeal by defendant from judgment of an alderman for possession of premises should not be quashed.
Order entered making rule absolute and quashing appeal, opinion by SCHAEFFER, P.J. Defendant appealed.
James P. Coho, with him Hamaker Coho, for appellant.
Harris C. Arnold, with him Arnold, Bricker Beyer, for appellees.
Argued March 19, 1952.
The plaintiff brought a landlord's possessory action against the defendant before an alderman under the Act of 1830, P.L. 187, § 1, 68 P. S. § 391, 392. Under the provisions of this Act if the defendant desired to appeal to the common pleas it was provided: "No writ of possession shall be issued . . . [if within] five days the tenant shall give good, sufficient, and absolute security . . . for all costs . . . and also for all rent that has accrued . . ."
The alderman found ". . . there is now due and in arrears rental of Two Thousand ($2000.00) Dollars, being four months rent at the rate of Five Hundred ($500.00) Dollars per month; . . ." He further entered judgment for possession. The defendant attempted to take an appeal to the common pleas, but gave bond in the sum of only $700.00. The alderman having found that the amount of rent in arrears was $2,000, in order to take an appeal the defendant was required under the Act of 1830, P.L. 187, § 1, 68 P. S. § 392, "to give good, sufficient, and absolute security, . . . for all costs. . . . and also for all rent that has accrued [$2,000] or may accrue, up to the time of final judgment . . ." The lower court on motion quashed the appeal because of such non-compliance with the Act. The order must be affirmed.
The defendant had the obvious duty of relinquishing possession or, if it wanted to appeal, to give the bond required by the statute. The bond was a condition precedent to the appeal. A similar situation arose under the Act of 1897, P. L. 67, 68 (no longer in force), which provided that a corporation must give bond in double the amount of the judgment in order to take an appeal. In Evans v. McDonald Construction Co. et al., 284 Pa. 593, 131 A. 467, the appellant gave bond for only $500, although the amount in controversy was more than $5,000. The court was compelled to quash the appeal. The situation is almost exactly similar here. See also Scranton City v. Peoples Coal Co., 274 Pa. 63, 117 A. 673; Denlinger v. Conestoga Electric Light Power Company, 32 Pa. Super. 418.
In the instant appeal it is argued that the matter was res adjudicata because the court had stricken off the judgment entered by the plaintiff in an amicable action of ejectment against this defendant. But this is obviously not res adjudicata. The plaintiff alleges that the rent accrued was only $700. The alderman found otherwise. In any event, one of the things to be litigated on the appeal is the accrued rental, and the defendant itself has no right to fix the amount of the bond. Incidentally, under the Act of 1830 the alderman does not enter judgment for the accrued rental, but merely judgment for possession; but the condition of the appeal bond is to give security for all the rent that has accrued. The purpose of this is to obtain for the plaintiff either possession of the premises at once or a bond to secure him from loss.
The Act of 1830 has been supplanted by Act No. 20 of 1951, which did not become effective until September 1, 1951. Under the latter Act the alderman may enter judgment for the accrued rental. The provisions of the Act of 1951 are substantially the same as to the requirement that the defendant, in order to take an appeal, must give bond with security in the amount of the accrued rent and costs. Since this appeal from the alderman's judgment was taken on July 20, 1951, and filed in the common pleas on the same date, the Act of 1951 does not apply.
Judgment affirmed.