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LANCASTER HOUSING AUTHORITY v. GARDNER (06/27/69)

decided: June 27, 1969.

LANCASTER HOUSING AUTHORITY
v.
GARDNER, APPELLANT



Appeal from order of Superior Court, Oct. T., 1967, No. 1079, affirming order of Court of Common Pleas of Lancaster County, Aug. T., 1967, No. 1, in case of Lancaster Housing Authority v. June Gardner.

COUNSEL

Howard Lesnick, with him Daniel H. Shertzer, for appellant.

Alfred C. Alspach, with him Alspach and Ryder, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, roberts and Pomeroy, JJ. Opinion by Mr. Justice Cohen. Dissenting Opinion by Mr. Justice Roberts.

Author: Cohen

[ 434 Pa. Page 469]

This is an appeal from an order affirming the refusal of the grant of a rule to show cause why a confessed judgment in ejectment should not be opened or stricken. The rule was refused by the court of common pleas without requiring an answer to be filed. Although the Superior Court initially affirmed by a per curiam order, a petition for reargument was denied in 211 Pa. Superior Ct. 502, 238 A.2d 209 (1968). This Court granted allocatur and ordered argument which was heard after the United States Supreme Court filed its opinion in Thorpe v. Housing Authority of Durham, 393 U.S. 268, 89 S. Ct. 518, 21 L. ed. 2d 474 (1969).

Appellant is a tenant in appellee's (Authority) apartment project under a month-to-month lease terminable on 30 days' notice. On June 20, 1967 she was given notice that her lease would not be renewed and that she was to quit the premises at the end of the following month. At a meeting of the Authority on July 13, the executive director of the Authority stated that he had examined the premises and found them "filthy". On August 1, judgment was confessed and the eviction ordered.

[ 434 Pa. Page 470]

The issue before this Court is technical in nature: Were there sufficient allegations in the petition to merit the grant of a rule and require an answer? We find that the petition was adequate to raise the issue of compliance with the HUD Circular of February 7, 1967,*fn1 and that the lower court should have granted a rule and required an answer. In so finding, we rely upon the last paragraph in Thorpe, supra, in which the Court said, "we have no reason to believe that once petitioner is told the reasons for her eviction she cannot effectively challenge their legal sufficiency in whatever eviction proceedings may be brought in the North Carolina courts." Thus it seems that appellant must be afforded an opportunity to know the reasons for the eviction and an opportunity to explain or reply. Hence, we must return these proceedings to the lower court to develop a record so that it can be determined whether there was compliance with the HUD Circular and whether the reasons for her eviction were legally sufficient.

We are also compelled to comment on the Superior Court opinion which relied upon Pittsburgh Housing Authority v. Turner, 201 Pa. Superior Ct. 62, 191 A.2d 869 (1963), and elsewhere stated that: "This directive [Circular] does not enlarge the rights of tenants or curtail those of the Authority-landlord. It merely assures tenants that their continued occupancy is not dependent upon compliance with unconstitutional requirements . . ."

[ 434 Pa. Page 471]

In light of Thorpe, neither the Turner case nor this latter statement can stand as the applicable ...


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