Platt v. City of Philadelphia

• Decision Date: 11 June 1957
• Citation: 133 A.2d 860,183 Pa.Super. 486
• Parties: Martin PLATT and Joseph Rosenberg, Appellants, v. CITY OF PHILADELPHIA.
• Court: Pennsylvania Superior Court

Page 860

133 A.2d 860

183 Pa.Super. 486

Martin PLATT and Joseph Rosenberg, Appellants, v. CITY OF PHILADELPHIA.

Superior Court of Pennsylvania.

June 11, 1957.

Application for Allocatur Denied July 22, 1957.

M. E. Maurer, Wexler, Mulder & Weisman, S. C. Nissenbaum, Philadelphia, for appellants.

Levy Anderson, First Deputy City Sol., David Berger, City Sol., Philadelphia, for appellee.

Before HIRT, Acting P. J., and GUNTHER, WRIGHT, WOODSIDE, ERVIN and WATKINS, JJ.

ERVIN, Judge.

In this action in assumpsit Martin Platt and Joseph Rosenberg, appellants (hereinafter called landlords), sought to recover damages from the City of Philadelphia, appellee (hereinafter called tenant or city), for breach of a covenant to repair the demised premises. The city occupied the garage, under a written lease, for the full term of two years and eleven months and paid the landlords $350 a month during the entire period of occupancy. The garage was used by the Bureau of Highways and Street Cleaning. The city entered an appearance but filed no answer to the complaint. At the trial, before a judge without a jury, the landlords offered in evidence all of the paragraphs of the complaint. The complaint alleges that on January 7, 1947, the City of Philadelphia and the plaintiffs entered into a written lease for premises 3032 to 3046 West Sedgley Street, Philadelphia, Pa., a copy of the lease being attached to the complaint; that pursuant to the terms of the lease, the city entered into possession of the premises on or about February 1, 1947, and remained in sole and exclusive possession thereof until the end of the term; that when the city entered into possession of the premises, a concrete footway, driveway and guard rail were in good order and repair; that during the occupancy by the city, it permitted the driveway to become cracked and broken to the extent that it became dangerous, it permitted the curb to become broken, the footway to become cracked and broken, and the guard rail to be removed; that under the terms of its lease, the city was required to correct and repair this damage, which they city has failed, neglected and refused to do; that the fair, reasonable and market value of restoring the footway, driveway and guard rail to the condition they were in at the time the City took possession of the premises is $1,680.

Paragraph 6 of the lease is as follows: 'Lessor Agrees to keep and maintain the roof in good order and repair and make necessary structural repairs to the building not occasioned by Lessee's negligence, during the continuance of this lease, upon receipt of notice in writing from Lessee, when such repairs are necessary. all other repairs shall be made by Lessee at its sole cost and expense at all times while this lease is in effect.' (Emphasis added.)

The city objected to the offer for the reason that, while the action was in assumpsit in reality it sounded in tort. The city argued that the basis of the complaint is the neglect of the city to keep the premises in repair; that the rules of civil procedure governing actions in trespass should apply; that the averments of negligence and damages 'shall be deemed to be denied' even though no answer be filed. Pa.R.C.P. No. 1045, 12 P.S.Appendix

On the other hand, the landlords argued that this was an action in assumpsit for the breach of a written covenant of the tenant to repair and keep in repair; that nothing in the complaint could be construed as an averment of negligence; that the rules of civil procedure governing actions in assumpsit should apply and that 'Averments in a pleading to which a responsive pleading is required are admitted when not denied specifically or by necessary implication.' Pa.R.C.P. No. 1029(b).

The city was given an opportunity to put in a defense but declined to do so.

The city moved for a nonsuit and the landlords moved for a finding in their favor. After taking the matter under advisement, the trial judge granted the city's motion for a nonsuit. After the dismissal of its motion for judgment n. o. v. ¹ by the court in banc, the landlords appealed.

At the outset we must determine the pivotal question of whether this is solely an action in assumpsit or an hybried action in assumpsit sounding in tort.

The city argues: 'Any obligation of the City to make repairs could only arise in the instant case by virtue of the relationship between the parties since the lease did not impose any duty to maintain the premises. Hence, liability could be enforced only for tortious conduct.' It further argues that the last sentence of paragraph 6 in the lease 'is more consistent with an obligation to make any repairs which it deems to be necessary or desirable at its own expense, than an undertaking to keep in good order and repair.' We do not construe the language in this manner. The important sentence reads: 'All other repairs shall be made by Lessee at its sole cost and expense at all times while this lease is in effect.' (Emphasis added.) If the sentence had ended with the word 'expense' a better argument could be made for the city's position. The words 'at all times while this lease is in effect' clearly indicate that the premises shall be kept in repair every day that the lease continues. The word 'shall' was used and not the word 'may.' To us this sentence means that the tenant will keep the premises in repair throughout the entire period of the lease and will deliver the premises at the end thereof in the same state of repair as when the lease commenced. The usual limitation 'excepting reasonable wear and tear' is not found in this lease. Now, of course, the premises may have come into disrepair either through the negligence of the tenant or they might have come into disrepair because of ordinary wear and tear by the tenant or because of some act committed by third persons. In either event, as we construe this lease, the tenant would have the obligation to make the repairs. Where the covenant to repair on the part of the lessee is expressed unconditionally the lessee must restore the premises to their former state, even though they have fallen into disrepair without any fault of the lessee. Where the parties have by their express contract not limited their obligation, the law will not imply a limitation. Hoy v. Holt, 91 Pa. 88, 90, 91, 92; McKinley v. C. Jutte & Co., 230 Pa. 122, 79 A. 244. Even though a lease does not contain an express covenant to repair, the law will imply one upon the part of the tenant but it is a defense to an action on the implied covenant for failure to repair where the damage occurred without fault on the lessee's part. Earle v. Arbogast & Bastian, 180 Pa. 409, 416, 417, 36 A. 923. 'The difference in the limitation of liability on the lessee where he has expressly covenanted to repair and where the law implied the covenant is that 'When a law creates a duty or charge and the party is disabled to perform it without any default in him and hath no remedy over' then the law will excuse but when the party by his own contract creates a duty or charge upon himself he is bound to make it good if he may notwithstanding any accident by inevitable necessity because he might have provided against it ³¹. * * *

31. Hand v. Baynes, 4 Whart. 204, 1838, Hoy v. Holt, 1879, 91 Pa. 88; McKinley v. C. Jutte & Co., 1911, 230 Pa. 122, 79 A. 244.' Stern's Trickett on the Law of Landlord and Tenant, 3d Ed., p. 69; also pp. 67, 68. Stern's Trickett on the Law of Landlord and Tenant, 3d Ed., p. 69; also pp. 67, 68.

The city also argues that where a municipality agreed to return the leased premises in as good shape as when received, the lessee could be held responsible only if the property was damaged as a result of the lessee's negligence and cites Brinton v. School Dist. of Shenango Twp., 81 Pa.Super. 450, as authority. That case merely decided that where the jury found the damage was caused by the negligence of the school district, it could be held liable therefor. Judge Keller, in that opinion, at page 452, said: 'When, however, a state agency or instrumentality, authorized to enter into a contract in the performance of its governmental functions or duties, fails to perform, whether negligently or otherwise, that which it has legally agreed to do, there is no public policy which forbids its being required to fulfill its obligations or pay the damages consequent upon its failure to do so: Hagan Lumber Co. v. Duryea School Dist., 277 Pa. 345, 121 A. 107. Thus in Bostwick v. U.S., 94 U.S. 53, 24 L.Ed. 64, the Supreme Court (Waite, C. J.), said: 'The United States, when they contract with their citizens, are controlled by the same laws that govern the citizen in that behalf. All obigations which would be implied against citizens under the same circumstances will be implied against them.''

The city also cites Southern Steamship Co. v. Hull, 46 Pa.Super. 299, for the proposition that even though an action be brought in assumpsit, if it sounds in tort a judgment for the want of a sufficient affidavit of defense may not be entered. In that case, and in others cited by the city, it was clear from the averments in the pleadings or the evidence that the action sounded in tort and was based upon negligence. ² There is not a word, phrase or sentence in the complaint which charges the city with a breach of a duty apart from a nonperformance of its covenant to repair. On the contrary, the complaint describes a case in assumpsit and nothing else. We conclude that the lower court was in error in nonsuiting the plaintiff.

The city also argues that judgment may...