Kuriger v. Cramer

• Decision Date: 13 September 1985
• Citation: 345 Pa.Super. 595,498 A.2d 1331
• Parties: Francy KURIGER, Appellant, v. Lynn CRAMER. 1419 Phila. 1983
• Court: Pennsylvania Superior Court

Page 1331

498 A.2d 1331

345 Pa.Super. 595

Francy KURIGER, Appellant, v. Lynn CRAMER.

1419 Phila. 1983

Superior Court of Pennsylvania.

Argued March 25, 1985.

Filed Sept. 13, 1985.

Judith L. Jones, Easton, for appellant.

Before SPAETH, President Judge, and CIRILLO and SHOYER ^*, JJ.

SPAETH, President Judge:

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. ¹ 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. ² In September and October, when the need for heat again arose, ³ the system broke down altogether. Hamilton testified 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?

A. Yes.

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 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.

N.T. at 5-6.

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 attempted to repair the system. N.T. at 32-33. Neither Hamilton nor appellee called a professional repairman.

In December 1982 appellant withheld the month's rent; she apparently did not place it in escrow. ⁴ N.T. at 12. She then asked Lehigh Valley Legal Services for assistance. On December 17, 1982, counsel for appellant notified appellee, by letter, that "lack of heat or other essentials constitutes a breach of [an] implied warranty of habitability," and requested appellee to take "immediate steps to remedy the heating situation." Plaintiff's Exhibit 1. On December 18 or 19, 1982, appellee left a note at the mobile home informing appellant and Hamilton that he had removed both the control box from the thermostat and the water valve; the removal of these devices completely shut off heat and water to the mobile home. N.T. at 14.

On December 22, 1982, appellant filed her complaint. Although filed in equity, the complaint included a count in assumpsit and a count in trespass. Count I, in assumpsit, alleged that appellee's failure to remedy the heating system, after repeated notice, constituted a breach of the implied warranty of habitability implied in all residential leases by operation of law. On this count, appellant sought damages of $900 in the form of an abatement of rent, as well as such further abatement as the court might deem appropriate after the date the complaint was filed. Count II, in equity alleged that irreparable harm would result from a continuation of the lack of heat and hot water. On this count, appellant sought a preliminary injunction, pending hearing, and then a permanent injunction, and also, unspecified damages, a waiver of bond requirements and costs, and such other relief as the court deemed appropriate. Count III, in trespass, alleged that appellee's action in removing the thermostat and water valve constituted a wrongful eviction. On this count, appellant sought unspecified actual damages, punitive damages of $5,000, and such other relief as the court deemed appropriate. R. at 1.

The trial court granted appellant's motion for a preliminary injunction, and enjoined appellee, pending hearing, from interfering with appellant's quiet enjoyment and from withholding heat and water. R. at 2. On December 23rd and 24th, appellee replaced the thermostat's control box and the water valve, although appellant remained without hot water. N.T. at 16. On December 29, after a hearing, the trial court ordered that the preliminary injunction should remain in effect until time of trial; that the case was set for non-jury trial during the week of January 17, 1983; and that the rent should be placed in escrow. ⁵ R. at 5.

The trial was held on January 19, 1983. Appellant was still in possession, although the lease had expired and she had received notice that it would not be renewed. Defendant's Exhibit "A"; N.T. at 53-55. The trial court heard appellant's evidence, consisting of the testimony of Hamilton, Hamilton's son Duane, and appellant. At the close of appellant's case, upon motion of appellee, ⁶ the court entered a compulsory nonsuit. On January 31, appellant filed a motion to remove the nonsuit. R. at 9. On May 10, 1983, the trial court sitting en banc entered an order denying the motion. R. at 21. Appellant appeals from this order. ⁷

The standard governing the entry of a compulsory nonsuit is the same in equity as at law, see Pa.R.C.P. 1512, and is well-established:

A judgment of nonsuit can be entered only in clear cases, and a plaintiff must be given the benefit of all evidence favorable to him, together [with] all reasonable inferences of fact arising therefrom, and any conflict in the evidence must be resolved in his favor. Thus an order granting a nonsuit is proper only if the jury, viewing the evidence and all reasonable inferences arising from it, in the light most favorable to the plaintiff, could not reasonably conclude that the elements of the cause of action have been established.

Morena v. South Hills Health System, 501 Pa. 634, 638, 462 A.2d 680, 682-83 (1983) (citations omitted).

See also Fisher v. Findlay, 319 Pa.Super. 214, 215-16, 465 A.2d 1306 (1983), citing Jurich v. United Parcel Service of New York, 239 Pa.Super. 306, 361 A.2d 650 (1976) ("A compulsory nonsuit may be entered only in a clear case where the facts and circumstances lead unerringly to but one conclusion."); 1 Goodrich-Amram 2d § 231(b)(4), citing Sargeant v. Ayers, 358 Pa. 393, 57 A.2d 881 (1948) (Compulsory nonsuit entered at the end of the plaintiff's case because of failure to prove a prima facie case should be entered "only when it is inconceivable, on any reasonable hypothesis, that a mind desiring solely to reach a just and proper conclusion ... after viewing the evidence in the light most advantageous to the plaintiff, could determine in his favor the controlling issues involved.") The reason for this standard is the drastic effect of entering a compulsory nonsuit: it forecloses the plaintiff's right to begin a new action upon the same cause of action. See Pa.R.C.P. 231(b); 1 Goodrich-Amram 2d § 231(b)(5). ⁸

The trial court rested its decision to enter a compulsory nonsuit primarily on the ground that "plaintiff's [appellant's] evidence is clearly insufficient in that her remedy at law is complete and adequate." Order of tr. ct. at para. 2. It is true that the assumpsit and trespass counts of the complaint should have been heard, if at all, at law. ⁹ In the ordinary case filed in equity, the defendant, by preliminary objection, raises the issue of an adequate non-statutory remedy at law. See Pa.R.C.P. 1509(c). Here, the trial court, and not the defendant, first raised the issue, ¹⁰ see N.T. at 58, but there is authority for the proposition that whenever the existence of a legal remedy becomes apparent, the court may sua sponte raise the issue of whether the action should be transferred to the law side. See Carelli v. Lyter, 430 Pa. 543, 547, 244 A.2d 6, 8 (1968); 5 Goodrich-Amram 2d § 1509(c):2 at 127. Here, however, the trial court did not transfer but dismissed appellant's action, and in that, the court erred.

Pa.R.C.P. 1509(c) provides:

(c) The objection of the existence of a full, complete and adequate non-statutory remedy at law shall be raised by preliminary objection. If the objection is sustained, the court shall certify the action to the law side of the court. If not so pleaded, the objection is waived.

And we have held that

a complaint in equity cannot properly be dismissed because there exists an adequate remedy at law. Such an objection may be raised by...