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NATIONAL COUNCIL JUNIOR ORDER UNITED AMERICAN MECHANICS v. ALLEGHENY COUNTY HEALTH DEPARTMENT (12/10/69)

decided: December 10, 1969.

NATIONAL COUNCIL OF THE JUNIOR ORDER OF UNITED AMERICAN MECHANICS, APPELLANT,
v.
ALLEGHENY COUNTY HEALTH DEPARTMENT



Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, April T., 1969, No. 2647, in case of The National Council of the Junior Order of United American Mechanics of the United States of North America v. The Allegheny County Health Department et al.

COUNSEL

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. Wright, P. J., did not participate in the consideration or decision of this case. Concurring and Dissenting Opinion by Cercone, J.

Author: Montgomery

[ 216 Pa. Super. Page 39]

This appeal by The National Council of the Junior Order of United American Mechanics of the United States of North America (Owner), owner of property at 627 Duff Street in the City of Pittsburgh, is from an order of Hon. Silvestri Silvestri, Judge of the Court of Common Pleas of Allegheny County (Civil Division), refusing its petition for the recovery of rentals paid to the Mellon National Bank & Trust Company (Bank), as escrow agent, by its tenants, Reuben Roberson et ux., the intervenors, after said property had been declared unfit for human habitation by The Allegheny County Health Department (Department) on January 25, 1968, and returning them to the intervenors.*fn1 The Bank had been designated as the escrow agent for funds withheld by tenants of real property under the "Rent Withholding" Act of January 24, 1966, P. L. (1965) 1534, as amended, 35 P.S. ยง 1700-1 (p.p.).

This case (Roberson II) is a sequel to the case decided by this Court in an opinion filed on January 8, 1969. National Council of the Junior Order of United American Mechanics v. Roberson, 214 Pa. Superior Ct. 9,

[ 216 Pa. Super. Page 40248]

A.2d 861 (1969), allocatur refused, February 19, 1969 (Roberson I). In Roberson I we permitted the execution of a writ of possession for the premises aforementioned which had been issued on a judgment in ejectment for possession of the premises. The judgment in ejectment was entered amicably, as authorized by the lease, because of the default of the Robersons in paying the rent for May and June, 1968, to the Bank when it was due.

The funds presently in the escrow account consist of rent for the months of February, March, and April, 1968, totaling $195, which had been paid before June 24, 1968, the date when the judgment was filed, and $780 for subsequent months. Most of the latter funds were paid into the escrow account under the several orders of the lower court which granted stays of execution on the writ of possession, all of which stays were granted over the objection of the Owner. The Owner seeks recovery of the entire amount paid into the escrow account.

The Robersons were tenants under a month-to-month written lease which provided for payment of a monthly rental of $65 in advance and contained a provision requiring a sixty-day notice for termination. After having been occupied by the Robersons for several months, the premises were declared by the Department to be unfit for human habitation on January 25, 1968. Thereafter the Robersons continued to occupy the premises until a date subsequent to January 8, 1969, and paid their monthly rentals into the escrow account during their occupancy. Of said payments, $390 (or $325, as found by the lower court) accumulated in the account up to July 25, 1968, which was the end of the initial six-month period following the first declaration of unfitness by the Department, and an additional $585 thereafter. During the initial six-month period, the

[ 216 Pa. Super. Page 41]

Owner expended the sum of $488.38 for labor and materials to effect repairs to the premises. However, the Department did not at any time certify the premises as being fit for human habitation. On the contrary, the premises were recertified as unfit by the Department on July 25, 1968.

Although the lower court ordered the return of the escrow funds to the Robersons, the question of their ultimate right to them was not before that court and need not be decided by us. The only question presented in this case is whether the Owner is entitled to recover part or all of these funds under the Rent Withholding Act. For the reasons hereinafter set forth, we conclude that it is not entitled to any part of them under the Act and that, consequently, its petition and rule were properly dismissed and discharged. However, we do not decide the issue, whether the funds should be returned to the Robersons. They have made no claim to them under the Rent Withholding Act; the Department has made no order for their return (if it has the authority to do so, which we do not here determine); and other proceedings must be resorted to for the recovery of money paid by mistake.

The Owner bases its claim on the admitted fact that it expended $488.38 for material and labor to repair the premises during the initial six-month period following the declaration of unfitness, which amount is more than the rentals paid for that period. It assigns another reason in support of its claim for the rentals paid after the initial six-month period. It contends that they were paid into escrow ...


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