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decided: December 21, 1979.


No. 199 March Term, 1978, Appeal from the Order of Superior Court of Pennsylvania, sitting at Pittsburgh, at No. 102 April Term, 1978, Affirming the Order of the Court of Common Pleas of Allegheny County, at No. G.D. 76-11945.


Paul A. Love, DeCello, Manifesto, Doherty & Love, P. C., Pittsburgh, for appellants.

Jerome W. Kiger, Grogan, Graffam, McKinley & Solomon, Pittsburgh, for Sun Oil Co.

Robert Ivan Johnston, Pittsburgh, for James L. Beech.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Manderino, J., did not participate in the decision of this case.

Author: Roberts

[ 487 Pa. Page 258]


At common law a lessee who had never entered into possession of his leasehold was prohibited from bringing an action in ejectment to gain possession. The issue before us is the continued validity of this rule. We are satisfied by considerations of reason and fairness and by the weight of modern case law that the ancient rule now serves no useful purpose, and, accordingly, we refuse to permit its continued use.


On August 15, 1951, George and Mary Beech leased property they owned in Allegheny County to appellee Sun Oil Company for a term of fifteen years with two additional five-year options. The lease was recorded. In 1956 George and Mary Beech conveyed the property to appellee James Beech. The lease to Sun Oil was not affected.

On September 17, 1962, appellee James Beech and his wife leased the same property to appellants Joseph and Violet Soffer for a fifty-year term.*fn1 This lease specifically recited that it was "subject to" the prior lease to Sun Oil.*fn2 This lease was also recorded.

[ 487 Pa. Page 259]

In July of 1974, as Sun Oil's term was approaching an end, James Beech and Sun Oil executed what they styled an "amendment and ratification" to the original 1951 lease. This "amendment and ratification" would allow Sun Oil, at its option, to remain in possession until at least 1997.*fn3

In March of 1976, the Soffers sent written notice to Sun Oil of their intention to take possession on October 1, 1976, the expiration date of Sun Oil's original fifteen year lease plus the original options. Sun Oil replied that it would remain in possession under the provisions of the 1974 "amendment and ratification."

The Soffers then filed this ejectment action against Sun Oil and James Beech in the Court of Common Pleas of Allegheny County. The complaint asserted that the "amendment and ratification" constituted a cancellation of the existing 1951 lease and that the Soffers were entitled to possession of the property and damages of $240 a month from January 1, 1975, the effective date of cancellation.

Sun Oil responded by raising a single preliminary objection, which is the subject of this appeal.*fn4 Sun Oil asserted that the Soffers' complaint failed to state a cause of action in ejectment because it did not allege that the Soffers had ever entered into possession of the property and were thereafter ousted. Sun Oil claimed that the complaint could not be amended to include such an allegation and, therefore, that the complaint should be dismissed without leave to amend. The trial court sustained Sun Oil's objection and dismissed the complaint. On appeal, the Superior Court

[ 487 Pa. Page 260]

    affirmed without opinion. This Court then granted allowance of appeal.


It has never been doubted that a tenant who has been in possession of his leasehold but who is subsequently ousted may bring an action in ejectment to regain possession for the duration of his term. He may do so whether the wrongful possessor is his landlord or a third party. 13 Stnd.Pa.Prac. Ch. 67, § 35 (1957). Indeed, ejectment was originally developed as a remedy for tenants wrongfully dispossessed of their estates. Dice v. Reese, 342 Pa. 379, 385, 21 A.2d 89, 92 (1941); 3 W. Blackstone, Commentaries 199. We are faced today only with the question of whether a lessee who has never been in possession but who is entitled to immediate possession, should be permitted the same remedy.*fn5

The common law originally denied ejectment to the lessee who had never been in possession. And a handful of cases in this Commonwealth, most of them now musty with age, have acknowledged this restriction. The trial court, in dismissing the Soffers' complaint, relied on the two most recent of these cases, Barnsdall v. Bradford Gas Co., 225 Pa. 338, 74 A. 207 (1909) and Dime Bank and Trust Company of Pittston v. Walsh, 143 Pa. Super. 189, 17 A.2d 728 (1940). In Barnsdall this Court noted the existence of the rule that a lessee could not maintain ejectment prior to entry. Barnsdall, however, distinguished the rule and upheld an ejectment action by a lessee of mineral rights who had never entered into possession.

In Dime Bank the Superior Court followed the rule and elaborated on its history:

[ 487 Pa. Page 261]

"The court below . . . held, and in our opinion correctly, that as plaintiff had only a leasehold interest in the lot of land, and had never entered into possession, it could not bring ejectment to obtain possession. The history of the action of ejectment given in Blackstone's Commentaries (Book III, pp. 199-206) shows that a tenant for years must have been in possession under his lease and been ousted before he can bring ejectment. In fact, a lessee did not become a tenant for years, until after he entered 'by force of the lease': Littleton's Tenures , Book I, chap. VII, p. 26."

143 Pa. Super. at 195, 17 A.2d at 731 (emphasis in original). We do not question the Superior Court's recitation of the early history of the rule. But the mere recitation of the rule's history does not explain its present use nor does it justify its continued application. Indeed, a review of the historical development of the action of ejectment indicates that the common law rule requiring prior entry by a lessee is inconsistent with the modern scope of the writ and with our modern conception of landlord and tenant relations.


The legal action of ejectment began not as a real property action, but as an action in trespass. Seitzinger v. Ridgway, 9 Watts 496 (1840). Ejectment originally rested on a claim of actual or constructive ouster of the plaintiff. 13 Stnd.Pa.Prac. Ch. 67, § 1 (1957). Entry by the lessee and subsequent ouster by the defendant were essential to the claim of trespass.

The writ of ejectment, however, has changed dramatically in the centuries since its narrow origin. Today, the right to possession is the central element of the action -- not the claim of ouster. The writ of ejectment has long been the general method for obtaining possession of real property. Dice v. Reese, 342 Pa. 379, 384-86, 21 A.2d 89, 92-93 (1941); Irwin v. Hoffman, 319 Pa. 8, 16-17, 179 A. 41, 45 (1935). The writ has expanded from a tenant's remedy and has long since been available to fee claimants and all

[ 487 Pa. Page 262]

    others who assert the right to possession of estates in real property. See Gilberton Coal Co. v. Schuster, 403 Pa. 226, 228, 169 A.2d 44, 45 (1961).*fn6 Yet it has never been suggested that a fee claimant need allege entry and ouster in order to succeed in ejectment. Rather, our cases involving fee claimants speak only of the right to possession by one not presently in possession. See e. g., Brennan v. Shore Bros., Inc., 380 Pa. 283, 285, 110 A.2d 401, 402 (1955); Bruker v. Carlisle Borough, 376 Pa. 330, 334-35, 102 A.2d 418, 420 (1954).

Nevertheless, the growth of ejectment to provide a general remedy for the recovery of estates in realty did not extend to lessees who had never been in possession. In all likelihood this was because at common law a lessee who had

[ 487 Pa. Page 263]

    not entered into possession was not thought to have an estate in land. Rather, such a lessee was said to have an "interesse termini," or an interest in a term. Coke. Litt. 46b; 2 Blackstone, Commentaries 144. Whatever the original usefulness of this distinction may have been, we see no reason why it should continue to prevent a lessee from maintaining an action in ejectment.*fn7

Even fifty years ago the rule requiring prior entry was correctly viewed as a remnant of an earlier age. Speaking of precisely the rule we review today, one federal court of appeals then observed:

"These things relate to a far-distant past. They are strangers to the jurisprudence of the United States. The modern tendency of jurisprudence is to look through shadows to substance -- to eliminate technicalities in the interest of substantial justice. It is no longer necessary to go upon land as in the days of old and receive a twig or a clod of dirt as a token of changed possession. . . . In the more modern doctrine of ejectment, entry is not a prerequisite to the action, and if the lessee has such interest in the property as gives a present right of possession, it is immaterial whether he has entered into possession before bringing the action. The right of entry, not the entry

[ 487 Pa. Page 264]

    itself -- the right of possession, not actual possession -- are the essentials of an action in ejectment."

Ewert v. Robinson, 289 F. 740, 750-51 (8th Cir. 1923). The notion that prior possession by a lessee is necessary to trigger the right of possession is a legal fiction unrelated to our more modern view of a lessee's contractual rights. See Pugh v. Holmes, 486 Pa. 272, 405 A.2d 897 (1979) (opinion by Larsen, J.); id., 486 Pa. at 298-299, 405 A.2d at 910 (Roberts, J., joined by Nix and Manderino, JJ., concurring) (holding landlord and tenant's obligations mutually dependent); see also Albert M. Greenfield & Co., Inc. v. Kolea, 475 Pa. 351, 380 A.2d 758 (1977) (relieving tenant of obligation to pay rent when premises destroyed by fire). We refuse to afford a lessee entitled to possession by virtue of his lease lesser protection than that given a fee claimant seeking possession.


By making ejectment available to lessees before entry, we adopt the view of modern authority. As stated in 49 Am. Jur.2d Landlord and Tenant § 220 (1970):

"It seems now generally agreed that ejectment will lie in favor of the lessee against the third person, even before entry on the demised premises by the lessee."

Accord, Tiffany, 1 The Law of Real Property § 86 (3d ed. 1939) (and cases cited); 51C C.J.S. Landlord and Tenant § 314 (1968) (and cases cited). This is also the result reached by modern decision, see, e. g., Leader v. Joyce, 271 Minn. 9, 135 N.W.2d 34 (1965); Wright v. Irving Trust Co., 70 F.2d 245, 246 (2d Cir. 1934) (L. Hand, J.).*fn8

[ 487 Pa. Page 265]

We should not hesitate, in any event, to abolish a rule of law when its basis has disappeared. Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897); Cardozo, The Nature of the Judicial Process 150-51 (1921).*fn9 In recent times this Court has been alert to reject other out-dated rules which were no longer in accord with contemporary experience and policy. Ayala v. Phila. Board of Public Education, 453 Pa. 584, 603-606, 305 A.2d 877, 886-88 (1973) (abrogating governmental immunity) (and cases cited); see, e. g., Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 286 (1972) (rejecting rule that psychiatric evidence is inadmissible in murder prosecution for purposes of determining whether defendant had acted in heat of passion); Falco v. Pados, 444 Pa. 372, 282 A.2d 351 (1971) (abrogating parental immunity); Reitmeyer v. Sprecher, 431 Pa. 284, 243 A.2d 395 (1968) (rejecting prior limitation on landlord's liability for defective conditions); Flagiello v. Pennsylvania Hospital, 417 Pa. 486, 208 A.2d 193 (1965) (abrogating charitable immunity).

Indeed, as this Court observed long ago in the specific context of enlarging the scope of the writ of ejectment:

"Many other alterations have taken place; and the same authority which brought it thus far, may certainly carry it to a higher degree of perfection, as experience happen to show inconveniences, or defects."

[ 487 Pa. Page 266]

Boyd v. Cowan, 4 Dall. 138, 140 (1794). We are convinced that the rule we review today does not meet current societal and jurisprudential needs. The common law rule now stands as an unfair barrier to justice and we therefore abolish it. We hold that a lessee entitled to present possession of his leasehold may bring ejectment regardless of whether he has previously entered into possession.

The order of the Superior Court is reversed, the order of the Court of Common Pleas of Allegheny County is vacated and this case is remanded to the court of common pleas for proceedings consistent with this opinion.

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