Review of Judgment of Superior Court entered as of June 2, 1987, No. 02498, affirming Order of Summary Judgment of Court of Common Pleas, Civil Division, Philadelphia, No. 2785 August Term, 1985.
Robert J. Sugarman, Philadelphia, for appellant.
Paul Ribner I.P.P., Philadelphia for amicus -- ad hoc Animal Committee.
Craig E. Ziegler, Philadelphia, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Papadakos, J., files a dissenting opinion in which McDermott and Zappala, JJ., join.
Appellant, Sylvia Goldberg Hoffman (Hoffman), appeals from an order of the Superior Court affirming the lower court's order granting summary judgment in favor of appellee, Penn Center House, Inc. (Penn Center House), 368 Pa. Super. 650, 531 A.2d 40. The lower court found there was no genuine issue as to any material fact and held that Penn Center House was entitled to judgment as a matter of
law. The Superior Court agreed that based upon the pleadings, a deposition of Hoffman, and cross affidavits filed by Penn Center House and Hoffman, no genuine issue as to any material fact existed and affirmed the lower court's judgment. Upon review of the record in this case, we disagree and now reverse.
The appellee, Penn Center House, is a cooperative housing corporation in the City of Philadelphia. Appellant Hoffman is a shareholder and resident of Penn Center House. In August, 1985 Penn Center House filed a complaint in equity against Hoffman alleging that Hoffman was violating a written occupancy agreement and house rules by keeping a pet dog in her apartment. The complaint sought an injunction enjoining Hoffman from violating the alleged occupancy agreement and house rules and ordering her to remove her dog from the premises without delay.
Hoffman filed an answer to the complaint denying that her residency at Penn Center House was pursuant to a written occupancy agreement. Further, she averred that if there is a house rule pertaining to pets which she is allegedly violating, such rule was not duly enacted or promulgated and, in any event, it does not apply to her. She averred that she was not in violation of any rule or agreement applicable to her, and the alleged rule was unreasonable, illegal and unconstitutional. Additionally, Hoffman raised new matter alleging: (1) that she resided at Penn Center House for some time prior to the adoption of any rules or regulations; (2) that any rule or regulation purportedly passed during her residency was in direct contravention of an implied agreement between her and Penn Center House relating to the ownership and possession of pets; (3) that Penn Center House agreed to permit her to own and possess a pet; and (4) that the efforts to enforce a rule to bar her pet dog from the premises are patently discriminatory in that other residents are permitted to own and keep pets without interference from Penn Center House management.
Penn Center House replied to Hoffman's new matter by averring: (a) that the relevant rules and regulations were in effect long before Hoffman became a resident; (b) that Hoffman began her residency at Penn Center House with full knowledge of the rules and regulations applicable to residents; (c) that on or about March 1, 1983 Penn Center House learned that Hoffman was keeping a pet dog in her apartment; (d) that because of the dog's advanced age, she was permitted to keep that particular dog on the condition that it would not be replaced; (e) that Hoffman is now keeping a dog on the premises in violation of that express condition; (f) that Penn Center House is unaware of any other pets being kept by others; (g) that the house rules are enforced in a fair and non-discriminatory fashion; and (h) that the rules and regulations pertaining to pets are not vague, illegal or unconstitutional.
On April 28, 1986 the appellant Hoffman was called for a pre-trial deposition. She appeared before a court reporter, was sworn, and, among other things, testified that prior to receiving a letter from Penn Center House dated March 1, ...