No. 1419 PHILA. 1983, Appeal from the Order of the Court of Common Pleas of Northampton County, Civil - at No. 1982 - CE - 10377
Judith L. Jones, Easton, for appellant.
Spaeth, President Judge, and Cirillo and Shoyer,*fn* JJ.
[ 345 Pa. Super. Page 598]
This is an appeal from an order denying appellant's motion to remove a compulsory non-suit. We agree with appellant that the trial court erred in entering the non-suit, and therefore reverse and remand for proceedings consistent with this opinion.
The facts must be stated in the light most favorable to appellant, for she was the plaintiff below.*fn1 So stated, they are as follows.
Appellant rented a mobile home from appellee. The term of the lease was from January 10, 1982, through January 10, 1983, and the rent was $225.00 per month; appellant paid a security deposit of one month's rent. N.T. at 51. She lived in the mobile home with Robert Hamilton, the couple receiving regular weekend visits from Hamilton's two children. N.T. 2, 30. When appellant moved in, the heat would not go on when the thermostat was set. Hamilton told appellee about this, and appellee said that the heat could be turned on my pushing a "reset" button. N.T. at 4. Throughout the winter, however, the heating system operated erratically, and twice the pipes froze. N.T. 4-5.*fn2 In September and October, when the need for heat again arose,*fn3 the system broke down altogether. Hamilton testified:
[ 345 Pa. Super. Page 599]
Q. Could you describe what difficulty you noted when you first began using the heating system in the beginning of this winter?
A. Well, it was different times in September that it was cold enough to use it. And when we first started it up by hitting the reset button, it would come on. But it would only stay on for about an hour and shut itself down. And then no matter how many times I hit the reset button, it wouldn't come on until at least the following day -- sometimes two or three days later. And when it would, it would first fill the trailer up with black smoke. And then after clearing out the smoke, the heater would run itself for about an hour and then shut down again.
Q. Now, you're describing what occurred during September and October of 1982?
Q. Okay. What happened after October or during October of 1982 to change that situation?
A. Well, around October the 15th pushing the reset button for the furnace wouldn't make it run any more. It just wouldn't do anything.
Q. How long did that condition last?
A. Well, it lasted with no heat at all until November the 1st when I went to Mr. Cramer [appellee] and asked him if he was going to fix it. And when he agreed he would, I gave him the rent check for November. And he came down and said that a filter which is outside of the fuel
[ 345 Pa. Super. Page 600]
tank was dirty. So, he cleaned it, started the furnace up. The trailer filled with smoke. It ran. He left, but it only ran for about -- matter of a few hours and quit.
During this period, appellant and Hamilton kept warm by wearing heavy clothing and by closing off all rooms except the living room, which they heated with borrowed kerosene heaters. N.T. at 8. Appellee made some attempt to repair the heating system by such expedients as priming, and then replacing, the fuel pump. N.T. at 9-10. Hamilton's brother, who had some training in furnace repair, also ...