Opinion
Civ. A. No. 7360.
October 14, 1948.
Cyril F. Pessolano, Chief Rent Litigation Atty., of Upper Darby, Pa., and David Levin, Resident Atty., of Pittsburgh, Pa., for plaintiff.
John E. Winner and Floyd V. Winner, both of Pittsburgh, Pa., for defendant.
This is an action under the Housing and Rent Act of 1947, as amended, 50 U.S.C.A. Appendix, § 1881 et seq., to restrain the defendant from evicting the tenant or tenants of the housing accommodation, from proceeding further with an amicable action against the tenants in the Court of Common Pleas of Allegheny County, Pennsylvania and for other relief. The hearing in this case was made the final hearing by stipulation of the parties. After hearing, the Court makes the following Findings of Fact and Conclusions of Law:
Findings of Fact.
1. The premises involved in this action is situate at 5547 Bartlett Street, Fourteenth Ward, Pittsburgh, Allegheny County, Pennsylvania.
2. The building at 5547 Bartlett Street, consists of five apartments distributed as follows: Two apartments on the first floor of three and one-half rooms in one and three rooms in the other; two apartments on second floor of three rooms in one and five rooms in the other; one apartment on third floor of three rooms.
3. The defendant, William P. Murray, at present is residing in the apartment on the third floor of the premises.
4. Under date of March 9, 1948, Joseph Swartz, tenant of a first floor apartment at the above address received a notice from the Capitol Realty Company requiring him to vacate the premises within thirty days from April 1, 1948 for the alleged reason that the premises had been sold and "the new owners desire possession of the premises for their own use." A true and correct copy of the aforesaid notice is attached to the complaint, made part thereof, marked Exhibit "A" and which, by reference, is made a part hereof.
5. Under date of April 1, 1948, a notice similar to the notice referred to in the preceding paragraph was given by Capitol Realty Company to Morris Podolsky, another tenant in the premises, requiring him to surrender possession within sixty days from April 1, 1948. At or about the same time, a similar notice was given to Bernard Golomb, another tenant in the same building.
6. Under date of May 11, 1948, over the signature of William P. Murray, defendant, a notice was given to Joseph Swartz and Reva L. Swartz, his wife, tenants, that the said William P. Murray had purchased the property and desired possession of their apartment in order to move therein himself. A true and correct copy of said notice is attached to the complaint, made part thereof, marked Exhibit "B", which, by reference, is made a part hereof.
7. The defendant, William P. Murray, has caused an amicable action of ejectment to be entered against Joseph Swartz and Reva L. Swartz, his wife, in the Court of Common Pleas of Allegheny County, Pennsylvania at No. 1642 October Term, 1948, upon the allegation that he, the said William P. Murray, desires to occupy the premises presently occupied by Joseph Swartz and Reva L. Swartz, his wife.
8. The apartment occupied by Joseph Swartz and Reva L. Swartz, his wife, first floor of premises at 5547 Bartlett Street, Pittsburgh, Pennsylvania, is, and was at all of the time mentioned herein, a controlled housing accommodation subject to all of the provisions of the Housing and Rent Act of 1947, as amended.
9. As a result of the notice to vacate given by, or on behalf of the defendant to Morris Podolsky, the apartment in the aforesaid premises formerly occupied by Podolsky is now, and has been vacant since July 7, 1948 and available for occupancy by the said William P. Murray. The Podolsky apartment is located on the second floor and is similar in area to the apartment presently occupied by Mr. and Mrs. Swartz. The Golomb apartment on the second floor will also become vacant on or before October 1, 1948.
10. The premises involved were purchased by the defendant in the spring of 1948 for himself, Frank J. Gabriel, Theodore Klotzbaugh, Regis H. Subert and Jessie M. Kaminiski. The deed was taken in the name of Murray. The ownership, however, was to vest in the five persons named above, which includes the defendant. The title has remained in these five persons from the date or purchase to the present time. The consideration for the purchase was $25,000, $5,000 contributed by each of the persons named as owners aforesaid.
11. There is an apartment on the second floor of the premises which has been vacant since July 7, 1948, which is available for occupancy by defendant Murray. An additional apartment on the second floor is, or will be, available shortly.
12. There is an extreme shortage of housing in this area available for rental by tenants with moderate incomes.
13. The landlords of the housing accommodation involved, which are the five owners thereof, did not seek in good faith to recover possession of the housing accommodation for their immediate and personal use and occupancy as a housing accommodation, nor did they seek to recover possession of said housing accommodation for the immediate and personal use and occupancy as a housing accommodation for the defendant.
Conclusions of Law.
1. The apartment occupied by Joseph Swartz and Reva L. Swartz, his wife, on the first floor of the building at 5547 Bartlett Street, Pittsburgh, Allegheny County, Pennsylvania, is and was at all of the times involved in this proceeding, a controlled housing accommodation, subject to all of the provisions of the Housing and Rent Act of 1947, as amended.
2. Under the Housing and Rent Act of 1947, as amended, 50 U.S.C.A.Appendix, § 1881 et seq., Section 206(b), this court has jurisdiction of the subject matter of this action and of the parties herein.
3. The defendant has engaged and is about to engage in acts and practices which constitute violations of Section 206(a) and 209(a) of the Housing and Rent Act of 1947, as amended, 50 U.S.C.A.Appendix, § 1881 et seq.
4. An injunction should issue against the defendant, his agents, servants, employees, and any person or persons acting in concert with him or them, restraining them from proceeding further against Joseph Swartz and Reva L. Swartz, his wife, in the proceeding in the Court of Common Pleas at No. 1642 October Term, 1948; restraining them from eviction or threatening to evict the said Joseph Swartz and Reva L. Swartz, his wife, by court proceeding or otherwise, directly or indirectly, upon grounds not approved in the said Act.
5. The landlords of the housing accommodation in this case are the five owners of the housing accommodation. These five landlords do not seek in good faith to recover possession of the housing accommodation for their immediate and personal use and occupancy as a housing accommodation.
6. Defendants should pay the costs.
The question involved is whether the defendant is in a position to invoke the applicable provision of the Housing and Rent Act of 1947, as amended, 50 U.S.C.A.Appendix § 1881 et seq.
Section 209(a) of said Act provides:
"No action or proceeding to recover possession of any controlled housing accommodations with respect to which a maximum rent is in effect under this title shall be maintainable by any landlord against any tenant in any court, notwithstanding the fact that the tenant has no lease or that his lease has expired, so long as the tenant continues to pay the rent to which the landlord is entitled unless * * *
"(2) The landlord seeks in good faith to recover possession of such housing accommodations for his immediate and personal use and occupancy as housing accommodations * * *."
The housing accommodation in this case was owned by five persons. The defendant has only a one-fifth interest therein. He alone sought to recover possession of the housing accommodation. It therefore follows that the owners of the housing accommodation involved did not seek in good faith to recover possession thereof for their immediate and personal use and occupancy as a housing accommodation, nor is there any evidence that defendant was authorized in his efforts to recover possession, to act for the other four owners. He, therefore, is not in a position to invoke the benefit of the aforesaid Act.
Let an order for judgment be prepared and submitted in accordance with the foregoing Findings of Fact, Conclusions of Law and this opinion.