36 Pa. Super. 271 | Pa. Super. Ct. | 1908
Opinion by
The defendant leased from the legal plaintiff for one year from April 1, 1906, a housekeeping apartment in the building known as “Ansonia” apartments, Pittsburg. The lease contained this provision: “Lessor agrees to furnish steam heat for the entire apartment from October 15 to April 15, and hot water the entire year, except in case of accident or unavoidable cause, janitor service for all public places, heat and light for public halls, &c.” The rent reserved was $55.00 per month payable in advance, The defendant’s petition, hereafter re»
To this petition no answer was filed and the learned court below refused to even grant a rule to show cause. The court held that the breaches set up in the petition did not- constitute an eviction or its equivalent, and that the defendant should pay the rent for the full term and then sue the landlord for any damages he may have suffered. We find ourselves unable to agree with this view of the law. The petition shows prima facie grounds for opening the judgment and relieving the defendant from paying the rent for the portion of the term that he did not occupy the leased premises. If the landlord neglected and refused to furnish the heat, light, etc., which his covenants required him to furnish, and the premises were thereby rendered unfit for occupancy, the law will not require the defendant to first pay the rent and then sue for damages suffered by the landlord’s breach of his covenants.
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: Hoeveler v. Fleming & Co., 91 Pa. 322; Oakford v. Nixon et al., 177 Pa. 76; Gallagher v. Burke, 13 Pa. Superior Ct. 244.
That the failure to furnish heat and light to the tenant,
There is some contention in the arguments about the paragraph in the lease and the one in the petition about the removal of garbage.
But the defendant clearly avers in his petition that the parol agreement about the removal of garbage was one of the moving considerations for the execution of the lease, without which it would not have been executed.
We think the recent cases of Gandy v. Weckerly, 34 Pa. Superior Ct. 79, and Gandy v. Pinkerton, 34 Pa. Superior Ct. 87, and the reversal of those cases by our Supreme Court, 220 Pa., page 285, disposes of that question.
We are all of the opinion that the learned court erred in refusing relief to the defendant.
The order is reversed at the cost of appellee and the court below is directed to open the judgment generally and frame an issue placing the burden of showing that plaintiff is entitled to recover rent on him, and permitting the defendant to reply thereto by showing such facts as may relieve him from the payment of rent after removal from the premises. And to that end the record is remitted to the court below.