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AMERICAN MUTUAL LIABILITY INSURANCE COMPANY v. ZION AND KLEIN (10/07/83)

filed: October 7, 1983.

AMERICAN MUTUAL LIABILITY INSURANCE COMPANY
v.
ZION AND KLEIN, P.A. AND BENSON ZION, IND. T/A BENSON ZION AND ASSOCIATES, APPELLANTS



No. 2365 Philadelphia 1981, Appeal from the Order of July 31, 1981, Court of Common Pleas of Montgomery County, Civil Division, No. 80-18966.

COUNSEL

Edward J. O'Brien, Haverford, for appellants.

Robert E. Slota, Bryn Mawr, for appellee.

Hester, Johnson and Popovich, JJ. Popovich, J., filed a dissenting opinion.

Author: Johnson

[ 319 Pa. Super. Page 548]

This is an appeal from an order of court disposing of a Writ of Certiorari from a judgment entered by a district justice. American Mutual Insurance Company (hereafter referred to as landlord) had filed a complaint against appellants-tenants seeking possession of, and damages arising from, a leasehold owned by landlord and occupied by the tenants. The record of the proceedings, both before the district justice and the court of common pleas, is incomplete as various documents are missing.*fn1 Nonetheless, we may dispose of this appeal.

The district justice found in favor of the landlord. The written notice of the judgment rendered and received by the tenants indicated that the verdict was in favor of the landlord both as to possession and damages. Another copy of the notice has the award of damage, and two of the named defendants struck out.*fn2 Tenants timely praeciped for a Writ of Certiorari pursuant to Pennsylvania Rules of Civil Procedure Governing Actions and Proceedings before District Justice, No. 1009. The writ alleged that the damages sought exceeded the jurisdictional limits; that no claim existed against two of the defendants; and that the procedure was grossly irregular.

[ 319 Pa. Super. Page 549]

The certiorari court found that since the claim for damages had been withdrawn and tenants had surrendered the premises, the writ was moot as the sole claim had been resolved. In an attempt to make it "abundantly clear . . . that no money damages had been adjudicated; the Court's Order attempted to clarify the situation by unequivocally stating that any judgment as to money damages was to be stricken." Opinion, p. 2.

Appellants argue on appeal that there was no basis in the record, except for unsworn statements, for the court's finding that the claim for damages had been withdrawn. Additionally, tenants contend that the surrender of the premises was not amicable but a result of "legal duress". We find that appellants' own pleadings belie such claims. In a petition filed below, pursuant to Rule 1013(B), Pa.R.C.P.D.J., requesting allowance to pay rent into escrow, tenants averred that they had made arrangements to leave the premises. The petition predated both landlord's letter, which is claimed to have intimidated appellants, and the alleged oral order setting a deadline for surrender of possession. The petition further averred that the written notice of judgment received (for both possession and damages) was contrary to the judgment announced at the hearing. Furthermore, in a memorandum filed below, tenants stated that landlord's attorney proposed at the time of the hearing to limit the district justice's hearing to the question of possession. In light of the above, we find that the record supports the finding that the writ was limited to possession and such had been made moot by tenant's surrender of the premises.

Appellants attempt to avoid this finding of mootness by contending that the dispute has not been resolved because the tenants have a right to pursue a cause of action against the landlord for damages.*fn3 They argue that they were unable to pursue a counterclaim since it would have exceeded

[ 319 Pa. Super. Page 550]

    the district justice's jurisdictional limit and it could not have been raised in ...


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