Appeal from order of Court of Common Pleas of Union County, Oct. T., 1967, No. 156, in case of Meda F. Reitmeyer and Joe A. Reitmeyer v. Harold H. Sprecher.
James F. McClure, Jr., for appellants.
Richard Henry Klein, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Chief Justice Bell.
This appeal presents a narrow, albeit an important, issue: is a landlord subject to liability in tort for physical harm caused to his tenant by a defective condition of the leased premises which existed when the written lease was executed and which the landlord orally promised the tenant, when the lease was executed, that he would repair?
This matter comes before us on two pleadings, i.e., a complaint in trespass and preliminary objections thereto, in the nature of a demurrer, which allege that the complaint facts do not set forth a cause of action.
Meda Reitmeyer and Joe Reitmeyer [Reitmeyers] executed a printed lease for one of four row houses the owner of which was Harold Sprecher. Allegedly, the rear porch floor of the leased premises -- approximately three feet above ground, access to which is by three wooden steps -- was defective where the wooden porch floor overhung the top step and, allegedly, such defect was known to Sprecher. At the time of execution of the lease and, in consideration thereof, allegedly,
Sprecher orally promised to repair promptly or to provide promptly the materials to repair the leased premises including specifically repair of the rear porch floor and steps and, in reliance upon such promise, Reitmeyers executed the lease and took possession of the premises. Sprecher subsequently repeated the original oral promise to make repairs to the premises. Approximately two months after execution of the lease and the entry of Reitmeyers into possession of the premises, Mrs. Reitmeyer fell and injured herself as a result of a defect in the rear porch floor. Sprecher had not made any repairs nor had he provided materials for repairs as promised.*fn1
Reitmeyers instituted an action of trespass against Sprecher in the Court of Common Pleas of Union County by the filing of a complaint to which Sprecher filed preliminary objections. The court sustained the preliminary objections and dismissed the action. From that order the instant appeal stems.
Thirty-one years ago, on substantially similar facts, in Harris v. Lewistown Trust Co., 326 Pa. 145, 191 A. 34 (1937) we held that a promise on the part of a landlord to repair the premises, made at the time of negotiation of the lease and subsequently repeated, which was not performed did not impose upon the landlord a liability in tort at the suit of the tenant for injuries sustained by the tenant.
Counsel for Reitmeyers frankly concedes that, unless we now overrule Harris, Harris governs the instant situation and requires affirmance of the court below. What counsel for Reitmeyers urges is that Harris be reconsidered and overruled and that we adopt § 357 of Restatement 2d, Torts, ...