Schienle v. Eckels
227 Pa. 305
Pa.
1910
Check Treatment

Opinion by

Mr. Justice Elkin,

February 21, 1910:

In our consideration of this case we are not aided by the reasons which moved the learned court below to enter the non-suit nor for the refusal to take it off. The form of the action *307is trespass and the cause the alleged wrongful eviction of appellant as tenant. If the eviction was wrongful the injured party has a remedy in an action for damages. The burden was on plaintiff to show a wrongful eviction, but in our opinion this burden was met by the introduction of evidence sufficient to be submitted to the jury on this question. If the jury should determine that the tenant had been wrongfully evicted, nominal damages at least would follow, even if no other elements of damage had been proved. One who wrongfully invades the rights of another is a trespasser, and this rule applies to the unlawful invasion of the rights of a tenant by his landlord. It is no doubt true an action on the covenant for quiet enjoyment, if there be such covenant either expressed or implied, may lie, but the tenant may elect to treat the eviction as a trespass upon his rights and sue for damages. This is what the tenant did in the present case. The right to thus proceed is based upon the theory that if there was a wrongful eviction there was a willful invasion of the rights of another and the injured party is entitled to maintain his action to have his rights determined even if no substantial’injury was actually done: Williams v. Esling, 4 Pa. 486; Schnable v. Koehler, 28 Pa. 181; Hutchinson v. Schimmelfeder, 40 Pa. 396. It is not necessary to rest this case on the question of nominal damages because if there was an eviction before the end of the period for which the appellant had paid rent in advance, and this was the proof, clearly this was evidence of actual damage to go to the jury. We do not deem it necessary to discuss the question of exemplary damages and other elements of actual damage claimed for the reason that all these questions can be properly presented in the court below when the case is again tried. We are all of opinion, however, that the case was for the jury and that error was committed in entering the nonsuit.

Judgment reversed and a venire facias de novo awarded.