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PERRY v. WAGNER (07/20/50)

July 20, 1950



Miller Alanson Johnson, Lewisburg, for appellant.

Paul M. Showalter, Showalter & Showalter, Lewisburg, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.

Author: Hirt

[ 167 Pa. Super. Page 200]

HIRT, Judge.

In January 1947 plaintiff's decedent leased to the defendant two rooms on the first floor and three rooms on the second floor of the premises at 600 Market Street in the Borough of Lewisburg. The term of the written lease was one year from April 1, 1947, but by agreement was continued in force for a second year ending April 1, 1949. In accordance with the uses specified in the lease, defendant has conducted a restaurant on the first floor of the building and he occupies the three rooms on the upper floor as living quarters. On December 20, 1948, the plaintiff made a written demand on the defendant to quit and deliver up the premises on April 1, 1949. The notice for repossession was unequivocal as to the part of the premises used for commercial purposes, but in it the plaintiff did not insist that the defendant vacate the three rooms leased by him for dwelling purposes. Defendant ignored the notice to quit, whereupon plaintiff, on April 2, 1949, confessed judgment in ejectment

[ 167 Pa. Super. Page 201]

    against the defendant on authority contained in the lease. A writ of habere facias possessionem was then issued to recover possession of the 'Store room and one room in the rear of said store room' on the first floor of the building but the writ did not purport to disturb the defendant in his continuing occupancy of the three rooms as living quarters.

The written lease provided for a monthly rental payment of $110 in one sum for the entire demised premises, without apportionment between the two uses. The defendant on April 18, 1949, moved to have the judgment stricken off on the ground 'that the leasehold covers a building or structure in which a business and a dwelling are combined and is, therefore, non-severable, the rent being a single rent'. The Office of Price Administration through a proper agency had fixed the rental of the three-room living apartment at $30 per month. The lower court in effect concluded, that in so doing, a severance had been effected by competent federal authority, leaving, subject to the provisions of the lease, only the two rooms demised for commercial purposes, over which there was no federal rent control. On this ground we well might affirm on the holding of Hangelias v. Dawson, 158 Pa. Super. 370, 45 A.2d 392, 394, since the judgment by confession, following the warrant, was regular on its face and therefore could not be stricken. As we said in that case quoting from the opinion of Judge Hargest in Bria v. Isaacman, 51 Pa.Dist. & Co. 368: 'The entry of the judgment is, of itself, neither an 'action to eject' nor an 'attempt' to remove. * * * The writ of habere facias possessionem -- is the action to evict.' Appellant's real complaint is directed against the writ of habere facias possessionem. In disposing of this appeal we will consider it on the merits as though taken from a refusal of the lower court to grant a stay of the writ.

[ 167 Pa. Super. Page 202]

In general where there is a single consideration, the contract is entire regardless of subject matter, and to make a contract severable there must be an apportionment of consideration among the items embraced in its subject. Byren & Weil v. French & Keeley, 103 Pa. Super. 573, 157 A. 367. The principle however has no application in the instant case.

The authority granted by the Emergency Price Control Act of January 30, 1942, 56 Stat. 23, 50 U.S.C.A.Appendix, § 901 et seq., enacted as a war measure, has been extended as to rent control, in the interest of national security, until December 31, 1950, by the Federal Housing and Rent Act of June 23, 1950, 50 U.S.C.A.Appendix, § 1894(f). The emergency powers assumed in this Act included the regulation of rents chargeable for housing accommodations, by fixing a permissible maximum in each instance. The Borough of Lewisburg is within an area subject to such rent control. In the exercise of these extraordinary powers, contractual rights were superseded; rents were reduced to approved amounts, and occupancies continued, regardless of lease agreements as to rent reserved or the term of the tenancy in any instance. By definition in the Housing and Rent Act of 1949, supra, 50 U.S.C.A.Appendix, § 1892(b) 'The term 'housing accommodations' means any building, structure, or part thereof, * * * rented or offered for rent for living or dwelling purposes * * *'. (Italics added.) Rooms in a building designated as living quarters are subject to rent control, regardless of the fact that under the same lease, other parts of the building may be demised for commercial or other uses. And by asserting an entire ...

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