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COMMONWEALTH PENNSYLVANIA v. MONUMENTAL PROPERTIES (09/20/76)

decided: September 20, 1976.

COMMONWEALTH OF PENNSYLVANIA, BY J. SHANE CREAMER, ATTORNEY GENERAL, PLAINTIFF
v.
MONUMENTAL PROPERTIES, INC., ET AL., DEFENDANTS



Original jurisdiction in case of Commonwealth of Pennsylvania, by J. Shane Creamer, Attorney General, Plaintiff v. Monumental Properties, Inc., Capital Housing Corporation, Executive House, Inc., Property Management, Inc., Samuel Elgart, Inc., Frank Stein, Albert Kaytes, Harry B. Davis, Donald Yost Real Estate Company, Miller Bros. & Company, William B. Hollinger & Son, Benjamin Volk, Marks & Company, Devon-Strafford Company, C. Pat Riley, Robert E. Plank, Griest Realty Company, Media Real Estate Company, Lori Incorporated, J.J. Gumburg Company, Washington Plaza, Inc., Penndale Towers, Inc., Saniel-Elkind Real Estate Co., Spiro Realty Company, Talenfeld Real Estate Co., John C. Clark Company, Yeo & Lukens Company, G.S. Rockey Company, and P.O. Naly Company.

COUNSEL

Allen C. Warshaw, Deputy Attorney General, with him Lawrence Silver, Deputy Attorney General, and Robert P. Kane, Attorney General, for plaintiff.

Lee C. Swartz, Milton S. Lazaroff, Sigmund H. Steinberg, with them Rod J. Pera; Hepford, Zimmerman & Swartz; Walter H. Compton; Samuel Lander; Joseph A. Klein; John P. Klee; Baskin, Boreman, Wilner, Sachs, Gondelman & Craig; Steven M. Dranoff; Irving L. Mazer; and Spivack & Dranoff, for defendants.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., and Blatt. Judges Mencer and Rogers did not participate. Opinion by Judge Kramer.

Author: Kramer

[ 26 Pa. Commw. Page 401]

This matter is before us yet another time and still on preliminary objections arising out of a complaint in equity filed by the Commonwealth against twenty-five landlords and four printers of form leases seeking injunctive relief from the use of form leases as more specifically alleged in the complaint to be violations of the Unfair Trade Practices and Consumer Protection Law (hereinafter Act), Act of December

[ 26 Pa. Commw. Page 40217]

, 1968, P.L. 1224, as amended, 73 P.S. § 201-1 et seq. There is no need to set forth once again the basic history of this case inasmuch as it is adequately described in prior opinions. See Commonwealth v. Monumental Properties, Inc. (hereinafter Monumental I), 10 Pa. Commonwealth Ct. 596, 314 A.2d 333 (1973), affirmed in part and reversed in part in Commonwealth v. Monumental Properties, Inc. (hereinafter Monumental II), 459 Pa. 450, 329 A.2d 812 (1974).

To provide some understanding for the present posture of this case and for this opinion, it is necessary to add that in Monumental I, supra, this Court dismissed the complaint against all defendants under our holding that leasing agreements do not come within the purview of the Act and, further, that the Commonwealth's complaint had failed to set forth a cause of action. In Monumental II our Supreme Court reversed us in part and we deem it necessary to review that opinion which provides some guidelines for the disposition of the issues presently before us. The prime holding of Monumental II reads as follows: "We hold that the leasing of residences falls within the ambit of the Consumer Protection Law." 459 Pa. at 467, 329 A.2d at 820. The Court stated that the Act is "to be liberally construed," 459 Pa. at 466, 329 A.2d at 820; that the "underlying foundation [of the Act] is fraud prevention," 459 Pa. at 459, 329 A.2d at 816; that the legislative mandate was to be broadly applied and that "[a]s part of the Law's object, fraudulent conduct that would mislead or confuse a consumer was banned," 459 Pa. at 467, 329 A.2d at 820. Additionally, the Court indicated: "Rather the more natural inference is that the Legislature intended the Consumer Protection Law to be given a pragmatic reading -- a reading consistent with modern day economic reality." 459 Pa. at 470, 329 A.2d at 822; "[h]inging the remedies of the Consumer Protection

[ 26 Pa. Commw. Page 403]

Law on the passing of title simply fails to reflect fairly both modern economic conditions and, more importantly, the Legislature's intent." 459 Pa. at 473, 329 A.2d at 823. The Court continued: "we must realize further that most frequently today the average prospective tenant vis-a-vis the prospective landlord occupies a disadvantageous position," 459 Pa. at 475, 329 A.2d at 825, and quoted from Reitmeyer v. Sprecher, 431 Pa. 284, 289-290, 243 A.2d 395, 398: "If our law is to keep in tune with our times we must recognize the present day inferior position of the average tenant vis-a-vis the landlord when it comes to negotiating a lease." The Court agreed with the Commonwealth argument that "this section [73 P.S. § 201-2(4) (xiii)] was designed to cover generally all unfair and deceptive acts or practices in the conduct of trade or commerce," 459 Pa. at 478, 329 A.2d at 826, and admonished this Court not to "woodenly apply" principles of law.

In Monumental II the Court affirmed the holdings of this Court in at least two regards. First, "that portion of its [Commonwealth Court] order dismissing the complaint with respect to the form sellers is also affirmed." 459 Pa. at 487, 329 A.2d at 831. That holding by our Supreme Court effectively removes the form-seller defendants from this case and we need no longer pass upon any preliminary objections raised by the form-seller defendants. Secondly, the Court stated: "That portion of the order of the Commonwealth Court that dismissed the Commonwealth's complaint for failure to state a cause of action with respect to the use of 'unenforceable' lease provisions is affirmed," 459 Pa. at 487, 329 A.2d at 830. The Court agreed "with the ...


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