Appeal from order of Superior Court, No. 219, April T., 1969, affirming in part and modifying in part 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. Allegheny County Health Department et al.
James Victor Voss, Assistant County Solicitor, with him Francis A. Barry, First Assistant County Solicitor, and Maurice Louik, County Solicitor, for appellants.
Eugene B. Strassburger, III, Assistant City Solicitor, and Ralph Lynch, Jr., City Solicitor, for City of Pittsburgh, amicus curiae.
Alan Berman, T. A. Matthews and C. H. Baron, with them Stanley J. Shapiro and Harold I. Goodman, for amicus curiae.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Cohen. Dissenting Opinion by Mr. Chief Justice Bell.
In this appeal we are called upon to construe Pennsylvania's Rent Withholding Act, Act of January 24, 1966, P. L. (1965) 1534, § 1, as amended, 35 P.S. § 1700-1 (Supp. 1970).
Since September, 1966, Louise Brunson (tenant) has occupied one of six apartments in a building at 2505 Fifth Avenue, Pittsburgh, owned by appellee, Stanley Klein t/a/d/b/a Mutual Real Estate Company (landlord). On June 20, 1968, pursuant to the Rent Withholding Act, the Allegheny County Health Department certified the premises as unfit for human habitation, and tenant began depositing her rental payments in an escrow account. During the initial six month period (June 20-December 20, 1968), tenant paid $360 in escrow and landlord spent $1700 for repairs to the whole apartment house. On or about December 20, 1968 the premises were again inspected and again certified as unfit for human habitation, and tenant continued depositing the rental payments in the escrow account.
On March 24, 1969 landlord filed a petition in the Court of Common Pleas of Allegheny County for a rule to show cause why the total amount on deposit in escrow should not be paid to him. After an answer was filed, the lower court entered an order discharging the rule and directing that the money on deposit be returned to tenant. Landlord appealed to the Superior Court on the theory that he was entitled (a) to the monies deposited during the initial six month period because an owner is entitled to reimbursement dollar for dollar out of the escrow fund for any repairs made even though the premises were still classified as unfit for human habitation and (b) to the monies deposited subsequent
to the end of the first six month period because the Act provides for payment in escrow for only one six month period. The Superior Court held, 216 Pa. Superior Ct. 50, 261 A.2d 619 (1969), as to (a) that there could be no reimbursement until the premises were classified as fit for human habitation and as to (b) that the Act did provide for only one six month withholding period. It affirmed that part of the lower court's order which dismissed landlord's petition and reversed that part which ordered the return of the funds to tenant. It stated that its decision was limited to landlord's right to recover under the Rent Withholding Act and was without prejudice to either party to recover the fund from the escrow agent by proper, legal action.
Tenant filed a Petition for Allowance of Appeal (which we granted) in which she alleged that the Superior Court erred in holding that if a dwelling were certified as unfit for human habitation and the tenant made use of the Rent Withholding Act's escrow provisions for six months the tenant could not make use of these provisions after those six months were over notwithstanding that the dwelling was still certified as unfit. We have before us only the issue raised by tenant.*fn1
In relevant part the Rent Withholding Act*fn2 states: Sentence 1. "Notwithstanding any other provision of law, or of any agreement, whether oral or in writing, whenever ...