Appeal from order of Court of Common Pleas of Allegheny County, July T., 1968, No. 4216, in case of National Council of the Junior Order of United American Mechanics of the United States of North America v. Reuben Roberson et ux.
John H. Clough, with him Robert D. Repasky, for appellants.
Alan Berman, with him Rothman, Gordon, Foreman and Groudine, for appellee.
Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. (Wright, P. J., absent). Opinion by Montgomery, J. Wright, P. J., did not participate in the consideration or decision of this case. Concurring Opinion by Hoffman, J. Concurring Opinion by Spaulding, J.
[ 214 Pa. Super. Page 10]
On October 1, 1967 the defendants-appellants entered into a month to month lease with the plaintiff-appellee, acting through its agent W. P. Horner, for premises at 627 Duff Street, Pittsburgh, Pennsylvania at a rental of $65 per month payable on the first day of each month in advance. The rent was paid for the months of October, November and December, 1967, but as of January 25, 1968 the January rent had not been paid. On that day, January 25, 1968 the Allegheny County Health Department declared the property eligible for rent withholding as of January 25, 1968. However, without knowledge of this action, appellants paid the January rent to Mr. Horner on January 26, 1968.
On February 26, 1968 appellants were advised in writing by the Allegheny County Health Department
[ 214 Pa. Super. Page 11]
that the property occupied by them had been declared eligible for rent withholding by the Allegheny County Health Department on January 25, 1968, and further that, "Under State law, a Rent Withholding Program has been designed to encourage landlords to make needed repairs. If you choose to use this plan, you will continue to pay your rent, only instead of paying it to your landlord you would pay it into an Escrow Account at Mellon Bank. You will continue to pay rent to Mellon Bank until you have been notified by the Allegheny County Health Department that the needed repairs have been made, following a reinspection of the property in your presence.
"If, after six months, the needed repairs have not been made and properly certified, the money remaining in the Escrow Account would be paid back to you.
"Should you decide to withhold your rent, please appear immediately at the Allegheny County Health Department, Room 649, City-County Building, telephone number 281-4900, extension 784. If you want to use this program, it is important that you act quickly since the law protects you against eviction only while you are paying your rent into the Escrow Account."
On March 28, 1968 appellants received a similar notice from the Bureau of Building Inspectors of the City of Pittsburgh which recited that on March 26, 1968 it had also declared the property eligible for rent withholding; and on the same day it notified W. P. Horner, appellee's agent, that the building was in an unsafe condition, with directions to abate it at once or the building would be subject to condemnation proceedings.
On February 29, 1968 appellants paid the February rent into the escrow account; on April 5, 1968 they paid the March rent into it; on May 15, 1968 they paid
[ 214 Pa. Super. Page 12]
the April rent into it; but they did not pay the May rent into it until July 3, 1968. Thereafter, on July 10, 1968 they paid the June rent into the account.
On June 24, 1968 when both the May and June rents were in default, according to the terms of the lease, appellee caused to be entered judgment in ejectment against appellants in an amicable proceeding at No. 4216 July Term, 1968 in the Court of Common Pleas of Allegheny County as authorized by the lease, in which it claimed possession and damages in the amount of $195, being two months rent at $65 per month and an attorney's commission of $65. A writ of possession, based on the judgment, was issued at Ex. No. 700 July Term, 1968. However, before the writ of possession was executed appellants filed a petition to open the judgment and to stay the writ of execution. A rule to show cause was thereupon issued returnable August 2, 1968. On the return day, after oral argument on the petition and an answer thereto filed by appellants, Hon. Gwilym A. Price, Jr., Judge, entered the following order: "And Now, to-wit, this 2nd day of August, 1968, after hearing,*fn1 it is Ordered, Adjudged and Decreed that the captioned matter be and the same is continued upon condition that the Defendants shall pay promptly, into escrow, rent due for July and August, 1968, and that thereafter rent be paid either into escrow or to the Plaintiff should the property be removed from rent withholding, on the first day of September, 1968, and on the first day of each and every month thereafter in advance as long as the relationship of landlord and tenant exists.
"This Order is entered without prejudice to the right of the Plaintiffs to proceed with the Amicable Ejectment and ...