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HARVEY BIRDMAN AND DIANE BIRDMAN v. GEROME MEDLEY AND BERNEASTINE DANIELS MEDLEY (11/30/78)

decided: November 30, 1978.

HARVEY BIRDMAN AND DIANE BIRDMAN, H/W
v.
GEROME MEDLEY AND BERNEASTINE DANIELS MEDLEY, H/W, APPELLANTS



No. 94 October Term, 1977, Appeal from the order dated August 24, 1976, of the Court of Common Pleas of Philadelphia County, Trial Div., Law, at No. 2211, April Term, 1974.

COUNSEL

Joyce Ullman, Philadelphia, for appellants.

Leon W. Silverman, Philadelphia, for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Price

[ 261 Pa. Super. Page 26]

This appeal comes before our court following a judgment for appellees awarding them $2,430.00 in damages for rent upon their premises and granting their action in ejectment. Appellants allege that the trial judge erred in refusing to consider their prior discharge in bankruptcy as a defense to the action. The judge refused to consider the bankruptcy discharge, ruling that under Pa.R.C.P. No. 1030 appellants' failure to affirmatively plead the discharge under new matter precluded them from later presenting that defense. We affirm the ruling of the trial judge. The facts adduced at trial are as follows.

[ 261 Pa. Super. Page 27]

In January 1967, appellees, husband and wife, entered into a purchase-lease agreement to convey a residence at 8631 Rugby Street, Philadelphia, to appellants, husband and wife. Total consideration for the purchase was $13,500.00; under the sales agreement appellants paid $500.00 down and agreed to pay $135.00 per month for the next twenty years. At all times pertinent to this appeal, appellees retained title to the property.

From January 1967 until December 1971 appellants made fifty-eight (58) monthly payments of $135.00, and thereafter until September 1973 made seven (7) additional payments at sporadic intervals. No payments were made after September 1973.

On April 4, 1974, appellees filed a complaint in the Municipal Court of Philadelphia seeking to evict appellants from the residence under the Landlord and Tenant Act of 1951.*fn1 A judgment was entered in favor of appellees from which appellants filed an appeal to the Court of Common Pleas of Philadelphia County. Thereafter, on April 30, 1974, appellees filed a complaint in ejectment in two counts; one for the eviction of appellants for their failure to pay rent under the purchase-lease agreement, and a second for damages resulting from appellants' retention of the premises. On June 13, 1974, appellants filed an answer and counterclaim to appellees' complaint.

On April 23, 1974, appellants filed a bankruptcy petition with the United States District Court for the Eastern District of Pennsylvania seeking confirmation of a wage earners' plan under the Bankruptcy Act.*fn2 On September 18, 1975, the bankruptcy judge entered an order discharging appellant "from all dischargeable debts." Thereafter, appellants did not amend their answer filed to appellees' complaint to allege the bankruptcy discharge as an affirmative defense to appellees' claim.

[ 261 Pa. Super. Page 28]

On March 9, 1976, a non-jury trial was held on appellees' claim for ejectment and damages. Before commencement of the trial, appellants' counsel made an oral motion that appellees be barred from proceeding with the trial on the basis that appellants' debt had been discharged in bankruptcy. The trial judge denied the motion, ruling that Pa.R.C.P. No. 1030 "requires the affirmative defense of discharge in bankruptcy must be pleaded in 'new matter' and failure to do so constitutes a waiver under Pennsylvania Rules ...


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