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GLICKMAN REAL ESTATE DEVELOPMENT v. RICHARD KORF (05/28/82)

filed: May 28, 1982.

GLICKMAN REAL ESTATE DEVELOPMENT, APPELLEE,
v.
RICHARD KORF, DAVID NOTKIN, ROBERT FITZGERALD & ROBERT LINETT, ALL JOINTLY AND SEVERALLY LIABLE, APPELLANTS



COUNSEL

Arthur C. Kellum, Pittsburgh, for appellants.

Stephen A. Glickman, Pittsburgh, for appellee.

Brosky, Cirillo and Popovich, JJ.

Author: Cirillo

[ 300 Pa. Super. Page 204]

This is an appeal from an Order of the Court of Common Pleas of Allegheny County, whereby judgment in the amount of $804.00 was entered for the appellee, landlord.

The landlord filed a Complaint in Assumpsit, alleging that the appellants, tenants, breached their lease of April 24, 1978. The landlord claimed damages of $2490.00. The tenants filed an Answer and Counterclaim, alleging that the landlord failed to maintain the premises in habitable condition. The tenants sought damages of $1863.00, plus costs, interest, punitive damages and attorneys' fees. On September 7, 1979, following a hearing before a Board of Arbitrators, the tenants were awarded the sum of $800.00. The landlord appealed this award to the Court of Common Pleas. On July 15, 1980, this case was tried before the Honorable Robert A. Doyle, sitting without a jury. Judge Doyle found for the landlord in the amount of $804.00.*fn1 Following an untimely appeal and remand, the tenants filed Nunc Pro Tunc Exceptions alleging, inter alia, that the verdict was illegal and against the weight of the evidence. After argument before a court en banc, on February 14, 1981, the Exceptions were dismissed, and this appeal followed.

The tenants allege, on appeal, that the findings of the trial court, in favor of the landlord, were against the weight of the evidence and contrary to the law.

In April, 1978, after having inspected the premises located at 5303 Beeler Street, Pittsburgh, Pennsylvania, the tenants entered into a fifteen month lease agreement with the landlord beginning June 1, 1978. The total rent was

[ 300 Pa. Super. Page 205]

$6210.00, payable in installments of $415.00 per month, with a $15.00 rebate for timely payments. The tenants were also required to give the landlord a security deposit of $500.00. At the time the agreement was executed, the tenants incorporated into the lease their request that the thermostat on the stove and the gas space heaters in the bedrooms be repaired.

Throughout the term of the lease, the tenants made several other requests for repairs to the premises. In November, 1978, the Allegheny County Health Department made an inspection of the premises. Under department regulations, violations totaling 20 points renders a dwelling unfit for human habitation. Their inspection noted violations totaling 33 points and on November 21, 1978, the landlord was given notice that the premises were considered unfit for human habitation. The tenants were admitted into a rent withholding program and beginning on December 1, 1979, they made payments into an escrow account with the Mellon Bank.

By mid-December, 1978, the landlord had installed a new central heating system and had made numerous other repairs. In February, 1979, the county paid to the landlord the tenants' rent held in escrow. However, at an inspection which took place on February 21, 1979, new defects were found and the tenants were again entitled to begin rent withholding, starting on March 1, 1979. The tenants did not make these subsequent payments into escrow, rather, they stopped paying any rent whatsoever. The lower court found that the total repairs made by the landlord, in a residence which he bought for $22,500.00, amounted to over $8000.00 and included the installation of new electrical wiring, plumbing, a roof and a bathroom. The lower court also found that all of the matters noted by the Allegheny County Health Department on re-inspection were abated prior to the time that the tenants vacated the premises on May 31, 1979.

While it is true that an appellate court is not bound by a trial court's finding of fact ...


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