Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, April T., 1969, No. 2705, in case of Stanley Klein, trading and doing business as Mutual Real Estate Company v. The Allegheny County Health Department.
Alan Berman, with him Rothman, Gordon, Foreman & Groudine, for appellant.
James Victor Voss, Assistant County Solicitor, with him Francis A. Barry, First Assistant County Solicitor, and Maurice Louik, County Solicitor, for Allegheny County Health Department, appellee.
Alan S. Penkower, with him R. Stanton Wettick, Jr., for appellees.
Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. (Wright, P. J., absent). Opinion by Montgomery, J. Hoffman, J., concurs in the result. Cercone, J., filed a concurring and dissenting opinion, reported at 216 Pa. Superior Ct. 43. Wright, P. J., did not participate in the consideration or decision of this case.
[ 216 Pa. Super. Page 51]
This is a companion case to The National Council of the Junior Order of United American Mechanics of the United States of North America v. The Allegheny County Health Department and Reuben Roberson and Minnie R. Roberson, his wife (Roberson II), decided in an opinion to be filed herewith. [216 Pa. Superior Ct. 37, 261 A.2d 616]. The two cases arose under the "Rent Withholding" Act of 1966, P. L. 1534, as amended, 35 P.S. § 1700-1, and involve related questions of law. However, there is a difference in the factual situations of the two cases.
In the present case the appellant, Stanley Klein (Owner), is the owner of a six unit apartment house known as 2505 Fifth Avenue, Pittsburgh, Pennsylvania.
[ 216 Pa. Super. Page 52]
Louise Brunson, the tenant-intervenor herein, and her husband, Joseph Brunson, now deceased, rented a second floor apartment under a written lease, dated September 1, 1966, for the term of one year, with a provision for the renewal of the lease from year to year. Other tenants, Clifton Jones et ux., occupy a third floor unit under a similar lease but they have not intervened in these proceedings.
On or about June 25, 1968, The Allegheny County Health Department (Department) declared the entire structure unfit for human habitation and thereafter both tenants*fn1 elected to pay their rent under the Rent Withholding Act of 1966, as amended, to The Mellon National Bank & Trust Company as escrow agent. Jones et ux. paid $300 from June 20, 1968, to December 20, 1968, and Brunson et vir paid $360 during the same period. The Brunsons continued to pay their rent into the escrow account after December 20, 1968, but the Jones have not paid rent since that date.
On December 20, 1968, the entire building was again certified as unfit for human habitation although the Owner during the above period had expended $1,700 for labor and material to repair it.
The Owner, by petition, seeks to recover all moneys paid to the escrow agent by both tenants by reason of the fact that he had expended for repairs more than the total sum of the rentals paid therein during the initial six-month period and, further contending, that the rentals paid after December 20, 1968, are without the protection of the Rent Withholding Act. He cites National Council of the Junior Order of United American ...