Appeal, No. 102, Oct. T., 1956, from judgment of Municipal Court of Philadelphia County, Oct. T., 1952, No. 1018, in case of Martin Platt and Joseph Rosenberg v. City of Philadelphia. Judgment reversed.
M. E. Maurer, with him S. C. Nissenbaum, and Wexler, Mulder & Weisman, for the appellants.
Levy Anderson, First Deputy City Solicitor, with him David Berger, City Solicitor, for appellee.
Before Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (rhodes, P.j., absent).
[ 183 Pa. Super. Page 489]
In this action in assumpsit Martin Platt and Joseph Rosenberg, appellants (hereinafter called landlords), sought to recover damages from the City of Philadelphia, appellee (hereinafter called tenant or City), for breach of a covenant to repair the demised premises. The City occupied the garage, under a written lease, for the full term of two years and eleven months and paid the landlords $350.00 a month during the entire period of occupancy. The garage was used by the Bureau of Highways and Street Cleaning. The City entered an appearance but filed no answer to the complaint. At the trial, before a judge without a jury, the landlords offered in evidence all of the paragraphs of the complaint. The complaint alleges that on January 7, 1947 the City of Philadelphia and the plaintiffs entered into a written lease for premises 3032 to 3046 West Sedgley Street, Philadelphia, Pa., a copy of the lease being attached to the complaint; that pursuant to the terms of the lease, the City entered into possession of the premises on or about February 1, 1947, and remained in sole and exclusive possession thereof until the end of the term; that when the City entered into possession of the premises, a concrete footway, driveway and guard rail were in good order and repair; that during the occupancy by the City, it permitted the driveway to become cracked and broken to the extent that it became dangerous, it permitted the curb to become broken, the footway to become cracked and broken, and the guard rail to be removed; that
[ 183 Pa. Super. Page 490]
under the terms of its lease, the City was required to correct and repair this damage, which the City has failed, neglected and refused to do; that the fair, reasonable and market value of restoring the footway, driveway and guard rail to the condition they were in at the time the City took possession of the premises is $1,680.00.
Paragraph 6 of the lease is as follows: "LESSOR AGREES to keep and maintain the roof in good order and repair and make necessary structural repairs to the building not occasioned by Lessee's negligence, during the continuance of this lease, upon receipt of notice in writing from Lessee, when such repairs are necessary. All other repairs shall be made by Lessee at its sole cost and expense at all times while this lease is in effect." (Emphasis added)
The City objected to the offer for the reason that, while the action was in assumpsit, in reality it sounded in tort. The City argued that the basis of the complaint is the neglect of the City to keep the premises in repair; that the rules of civil procedure governing actions in trespass should apply; that the averments of negligence and damages "shall be deemed to be denied" even though no answer be filed. Pa. R.C.P. No. 1045.
On the other hand, the landlords argued that this was an action in assumpsit for the breach of a written covenant of the tenant to repair and keep in repair; that nothing in the complaint could be construed as an averment of negligence; that the rules of civil procedure governing actions in assumpsit should apply and that "Averments in a pleading to which a responsive pleading is ...