Appeal, No. 147, Oct. T., 1956, from judgment of Municipal Court of Philadelphia County, Aug. T., 1952, No. 829, in case of Lottie Epstein Silverman, nee Lottie Epstein, v. Abe Sobel. Judgment affirmed.
Elliot Unterberger, with him Edward Unterberger, for appellant.
Frederick Blumberg, with him Folz, Bard, Kamsler, Goodis & Greenfield, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, and Ervin, JJ. (watkins, J., absent).
[ 184 Pa. Super. Page 165]
This assumpsit action to recover rentals paid by plaintiff in excess of the legally allowed maximum resulted in a finding by a judge sitting without a jury in favor of the plaintiff-tenant, in the sum of $302.57 ($191.40 being the amount of the overcharge during the period for which recovery could be had under the Statute of Limitations, $36.17 interest and $75.00, plaintiff's attorney's fee). The defendant's (landlord's) motion for judgment n.o.v. was refused and judgment was entered on the finding, from which this appeal was taken. The plaintiff, under a written lease dated October 13, 1949, became the tenant of the apartment in question. The lease did not contain any covenant obligating the landlord to provide furniture or furnishings. Prior to the plaintiff's tenancy, the premises had been rented to W. L. Reams and it was classified with the Area Rent Director as a furnished apartment. The landlord never filed a written report with the Area Rent Director showing a decrease in the furniture or furnishings. On June 9, 1952 the Area Rent Director issued an order adjusting the rent from $78.00 per month to $54.60 per month, the reason on the order being "Apartment is unfurnished." There was nothing in the files of the Area Rent Director to indicate when the apartment became unfurnished. The order of the Area Rent Director was not expressly made retroactive nor was there anything in the order to indicate that the landlord was being relieved of the duty to make a refund to the tenant. On August 29, 1952 plaintiff instituted this action in the lower court. Plaintiff testified that no furniture had ever been provided. The defendant testified that the furnishings
[ 184 Pa. Super. Page 166]
had been provided but had been removed at the request of the plaintiff. The lower court, in its opinion, stated: "We cannot conceivably find that in this transaction, the defendant was not at fault. On the contrary, we must from the testimony find that he purposely, wilfully, and knowingly charged a rental for services which he deliberately did not provide."
Appellant argues that the lower court did not have jurisdiction and that the plaintiff may not recover any rent in the absence of a specific refund order made by the Area Rent Director. His argument is based upon the fact that the Area Rent Director's order decreasing the maximum rent was issued and effective as of June 9, 1952. He argues that "If the plaintiff feels that she is entitled to any refund for any possible overcharges prior to the effective date of the order for rent decrease, the appropriate procedure to effect a modification or change in said effective date, would have been an appeal to the Emergency Court of Appeals." He further argues that by failing to take such an appeal, plaintiff failed to exhaust all administrative remedies provided in such instances, and, therefore, defendant cannot now ask the court to modify the order. This would be a good argument if plaintiff were endeavoring to change the Area Rent Director's order. As we comprehend this matter, the plaintiff is entirely satisfied with the order as written. She only asks the lower court to apply the regulations issued under the Housing and Rent Act to the order of the Area Rent Director. By virtue of the authority of an Act of Congress, known as The Housing and Rent Act of 1947, Public Law 129, 80th Congress, and The Housing Rent Regulation issued June 30, 1947, effective July 1, 1947, as amended, issued under the authority of said Act, the Office of Price Stabilization issued Housing Rent Regulation RR1, imposing maximum
[ 184 Pa. Super. Page 167]
rents for certain defense rental areas, including the County of Philadelphia, in the Commonwealth of Pennsylvania. The regulations with which we are concerned are as follows: Section 825.3: "Minimum space, services, furniture, furnishings, and equipment. Except as set forth in section 825.4(e) or 825.5(b) or as otherwise provided in this section, every landlord shall, as a minimum provide with housing accommodations, the same living space, services, furniture, furnishings and equipment as he was required to provide by section 825.1 to 825.12 inclusive on March 31, 1948."
Section 825.5(b): "Decreases in minimum services, furniture, furnishings, equipment, and space. (1) Requirements for petition and order, or report. The landlord shall until the accommodations become vacant, maintain the minimum services, furniture, furnishings and equipment as required under section 825.3, unless and until he has filed a petition to decrease the services, furniture, furnishings, or equipment and an order permitting a decrease has been entered thereon. When the accommodations become vacant, the landlord may on renting to a new tenant decrease the services, furniture, furnishings, or ...