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filed: August 6, 1982.


No. 858 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, No. 8615 of 1979.


Nikki Ann Tufano, Pittsburgh, for appellant.

Michael H. Steinberg, Pittsburgh, submitted a brief on behalf of appellee.

Price, Brosky and Montgomery, JJ. Brosky, J., files a dissenting opinion.

Author: Price

[ 302 Pa. Super. Page 480]

Appellant, Mabel Strong, appeals from that portion of an order of the Court of Common Pleas of Allegheny County directing that rental payments escrowed pursuant to the Rent Withholding Act*fn1 (hereinafter "the Act") should be paid to appellee, John Juliano, appellant's landlord at the time of the instant dispute. For the reasons that follow, we affirm the subject order.

On May 15, 1979, appellant was advised that she was eligible to withhold rent because the apartment in which she was a tenant was unfit for human habitation. Being without the financial means to bring the apartment into compliance with the requirements promulgated by the Department of Health, appellee placed the subject property up for sale and commenced an action before a district magistrate to terminate the tenancy, alleging as a reason therefore the need to make extensive repairs, presumably to enhance the marketability of the property. Process was served on July 3, 1979 and, on August 13, 1979, appellant having failed to appear, a default judgment for possession was entered. The landlord-tenant relationship was thus terminated for reasons other than nonpayment of rent and no appeal was taken.

[ 302 Pa. Super. Page 481]

Thereafter, on August 30, 1979, appellant's attorney presented to the court of common pleas a petition to open the judgment of possession entered by the district magistrate.*fn2 Perceiving that it lacked subject matter "jurisdiction to direct that a judgment before a district justice be opened," slip op. at 2, the trial court declined to entertain the petition. Nevertheless,

[i]n spite of the Court's statement that it was without subject matter jurisdiction to entertain the petition of Strong, Juliano volunteered, as a humanitarian gesture, that he would be willing to permit Strong to remain in the premises even though he had an established legal right to immediate possession. Following this gesture of Juliano, Strong's counsel agreed to the entering of a consent order by [the] Court whereby the parties agreed that there would be no eviction of Strong from the premises for a period of thirty (30) days; that Strong would bring no further actions before District Justice Sparrow; and, that in the event Strong failed to vacate within the thirty (30) days [the] Court (upon Juliano's appearing before the Court and requesting it) would issue a writ of possession.

Slip op. at 2.*fn3 At the conclusion of the hearing which resulted in the consent agreement, appellee requested the payment to him of rental payments that had previously been paid into an escrow account pursuant to the act. Although appellant objected to this request, the trial court added the following directive to the consent order: "Eo die, money held in rent escrow to be paid to John Juliano forthwith." Order of Court, August 30, 1979. This appeal followed.

[ 302 Pa. Super. Page 482]

Appellant argues: that the trial court's directive was in contravention of the terms and purposes of the Act; that appellee should have exhausted his administrative remedies before resorting to the court to seek the rental payments previously placed in escrow, and that the court lacked jurisdiction to order the Department of Health to release the escrowed funds because that department was not a party to the instant dispute. We cannot agree.

The Rent Withholding Act provides as follows:

Notwithstanding any other provision of law, or of any agreement, whether oral or in writing, whenever the Department of Licenses and Inspections of any city of the first class, or the Department of Public Safety of any city of the second class, second class A, or third class as the case may be, or any Public Health Department of any such city, or of the county in which such city is located, certifies a dwelling as unfit for human habitation, the duty of any tenant of such dwelling to pay, and the right of the landlord to collect rent shall be suspended without affecting any other terms or conditions of the landlordtenant relationship, until the dwelling is certified as fit for human habitation or until the tenancy is terminated for any reason other than nonpayment of rent. During any period when the duty to pay rent is suspended, and the tenant continues to occupy the dwelling, the rent withheld shall be deposited by the tenant in an escrow account in a bank or trust company approved by the city or county as the case may be and shall be paid to the landlord when the dwelling is certified as fit for human habitation at any time within six months from the date on which the dwelling was certified as unfit for human habitation. If, at the end of six months after the certification of a dwelling as unfit for human habitation, such dwelling has not been certified as fit for human habitation, any moneys deposited in escrow on account of continued occupancy shall be payable to the depositor, except that any funds deposited in escrow may be used, for the purpose of making such dwelling fit for human habitation and for the

[ 302 Pa. Super. Page 483]

    payment of utility services for which the landlord is obligated but which he refuses or is unable to pay. No tenant shall be evicted for any reason whatsoever while rent is deposited in escrow.

35 P.S. ยง 1700-1 (emphasis added) (footnote omitted).

In ruling on the constitutionality of the Act in DePaul v. Kauffman, 441 Pa. 386, 272 A.2d 500 (1971), our supreme court stated:

It is evident that the sanctions imposed by the Act bear a real and substantial relationship to its objective of assuring decent and habitable rental property. "In Reitmeyer v. Sprecher, 431 Pa. 284, 289-90, 243 A.2d 395 (1968), we recognized that a severe housing shortage exists in many parts of the Commonwealth and that much of what housing does exist is in very poor condition. The legislature was obviously attempting [through the Rent Withholding Act] to improve this situation by giving tenants the power to put pressure on landlords to repair dilapidated, unsafe dwellings." Klein v. Allegheny County Health Dep't, 441 Pa. 1, 7, 269 A.2d 647, 651 (1970) (footnote omitted). It seems a matter of common sense ...

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