63 Pa. Super. 191 | Pa. Super. Ct. | 1916
Opinion by
This is an appeal from an order of the court refusing to enter judgment for want of a sufficient affidavit of defense. The claim was for one month’s rent. Defendant leased a room in Philadelphia with all the machinery, fixtures, and furniture located therein to be used as a motion picture parlor and for no other use. The plaintiff lessor reserved the right at all reasonable times to cause any repairs to be made which he might deem proper. The affidavit of defense set forth that within a few months after the occupation of the property and while exhibiting a motion picture, a large portion of the ceiling of the premises collapsed and fell to the floor. Plaintiff Avas immediately notified and repaired the ceiling. A few days later the entire rear portion of the ceiling of the premises collapsed and fell to the floor, thereby rendering the premises untenantable and impossible of use and occupation, and ás a result of this collapse and the dangerous condition of the ceiling the fire marshal of the City of Philadelphia closed the premises, and the defendants were forbidden to resume the exhibition of motion pictures until permitted by the fire marshal’s department; that no permit had been received up to the time of filing the affidavit of defense. The plaintiff was immediately notified of the collapse of the building and without the consent of the defendants he took possession of the property for the purpose of rebuilding, repairing, and restoring it to tenantable use. The plaintiff sues to recover for one month’s rent, it being for a part of the period in which the premises were occupied by the plaintiff while making these repairs. The defendants claim an eviction or a deprivation of the beneficial enjoyment of the premises. “Physical expulsion is not now considered necessary to constitute an eviction. Any act of a landlord which deprives his tenant of that beneficial enjoyment of the premises to which he is entitled under a lease, will amount in law to an eviction and suspend the rent”: McSorley v. Allen, 36 Pa. Superior Ct. 271
We feel that the determination of this question is well within the reasoning of Hoeveler v. Fleming, 91 Pa. 322. In that case a fire partially destroyed a property. Under the terms of the lease the tenant was to deliver the possession of the premises in good and sufficient repair as when received, reasonable wear and tear and accidents by fire excepted. The tenants were to have the right to make certain alterations, which alterations and repairs wrere to be made at their cost, excepting such ordinary repairs as would make the house tenantable. The landlord had the right to see that the house was made tenant-able though he was not compelled to do it. The landlord, through his contractor, took possession of the property and repaired it. It was stated that the repairs were necessarily extensive requiring a complete possession of the premises to effect them. The Supreme Court said, on the question of the extent of repairs that could be made by a landlord where he has the right to make repairs: “Where, however, the repairs are not ordinary, -but are of a character to deprive the tenant of all beneficial enjoyment of the premises, or at least seriously interrupt it while the repairs are in progress, we have a question presented of a, different character......There
In the present case the collapse of the building and the entry of the landlord to rebuild amounted to a complete exclusion of the defendants from the premises. There was no obligation on the part of the landlord to make the repairs, though he could do it if he wished. Nor, on the other hand, was there any obligation on the tenant to make a repair of this kind. The landlord could not in the prosecution of a repair of this character deny to the tenant the beneficial use of the property and if he did so, he could not claim rent for so much of the premises as the tenant had been denied the use. Whether the injury was of an extraordinary character, not contemplated in the ordinary acceptation of the term repairs as used
The. appeal dismissed.