Appeal, No. 208, Oct. T., 1959, from judgment of Court of Common Pleas No. 2 of Philadelphia County, Dec. T., 1955, No. 6482, in case of Molly Breier v. Miller North Broad Storage Company et al. Judgment affirmed.
Edward I. Weisberg, with him David N. Feldman, for plaintiff, appellant.
Arthur R. G. Solmssen, with him Saul, Ewing, Remick & Saul, for defendant, appellee.
Paul Brandeis, for defendant, appellee.
Before Rhodes, P.j., Wright, Woodside, Ervin, and Watkins, JJ. (hirt and Gunther, JJ., absent).
[ 190 Pa. Super. Page 380]
Molly Breier instituted an action in trespass against her landlord, Henry Seletsky, and the Miller North Broad Storage Company, hereinafter referred to as Miller, seeking to recover damages for the removal of the contents of her apartment. Defendant Miller answered that plaintiff's goods had been removed at Seletsky's direction, and that Seletsky was indebted to it for the removal and storage charges. Defendant Seletsky answered that, because of a fire in the apartment building, it was necessary that the goods be removed "with the full knowledge of plaintiff in order to protect the said goods from vandalism and destruction". Seletsky also averred that plaintiff was responsible
[ 190 Pa. Super. Page 381]
for Miller's removal and storage charges. The case was tried before President Judge Carroll and a jury. After plaintiff had completed her testimony, the trial judge entered a compulsory non-suit. The trial then proceeded with respect to the counter-claim. At the conclusion of the testimony in this regard, the trial judge directed a verdict against the plaintiff in the sum of $520.64. Motions by the plaintiff to take off the non-suit and for a new trial were dismissed, and judgment entered accordingly. Plaintiff has appealed.
The testimony of appellant and her witnesses established that Seletsky was the owner of a four-story apartment building at the southwest corner of 46th and Spruce Streets in the City of Philadelphia. For several years appellant had been a tenant under written lease*fn1 of apartment 3A, consisting of four rooms, foyer and bath, in the front portion of the third floor. On the afternoon of March 19, 1954, the apartment building was substantially damaged by a two-alarm fire. Firemen played water on the roof for some three hours, and a considerable portion of the roof collapsed. The entire fourth floor ceiling was "pulled by firemen in order to get to the seat of the fire". A panel from the front door of appellant's apartment was removed by firemen in order to gain entrance thereto. The electric current and gas were shut off, and there was no elevator service. Appellant admitted that she could not have lived in the apartment on the night of the fire. The landlord thereafter requested appellant, first orally and then in writing, to remove her goods so that repairs could be made. Appellant instructed Miller to remove the goods, but subsequently cancelled those instructions
[ 190 Pa. Super. Page 382]
and attempted to board over the door. Seletsky then ordered Miller to remove and store appellant's goods. When appellant demanded that the goods be returned, Miller offered to return them without charge provided ...