KETNER V. NOTT.

Justices of the Peace-Jurisdiction—Landlord and tenant law -Record of the Justice.

The procedure, under the landlord and tenant law, to secure a judgment of possession and damages, is governed by the Act of December 14, 1863, recorded in 1864, P. L. 1125, as amended by the Act of March 6, 1872, P. L. 22, and the Act of March 31, 1905, P. L. 87.

As the jurisdiction of a justice under the landlord and tenant act is statutory, and the proceedings are summary, his record must at least show jurisdictional facts together with sufficient evidence or reference thereto to sustain his judgment. Nothing can be taken by intendment in such a proceeding which ought to appear.

Certiorari to Justice of the Peace. C. P. Crawford County, No. 100, February Term, 1918.

Frank J. Thomas for Plaintiff.

Otto Kohler for Defendant.

Prather, P. J., October 5, 1918.

This was a proceeding by the owner of the premises under the Landlord and Tenant Acts, to secure a judgment of possession together with damages for detention.

The complaint filed with the justice upon which summons was issued was, "That Geo. W. Nott entered into possession of said lot or piece of land on or about May 1, 1917, under a contract with plaintiff whereby he, the said Geo. W. Nott, undertook to work for plaintiff upon his farm located in Woodcock Township, Crawford County, Pa., for a period of twelve months, at the price of Forty (40) Dollars per month, together with the use of said lot hereinafter described, the rental or use value of which was there fixed by the parties at Ten Dollars per month."

The written lease attached to the record of the justice, as the contract between the parties, provides as follows:

"First party (plaintiff) in consideration of the covenant and agreement on the part of the second party (defendant) hereby

Ketner v. Nott

agrees to pay unto second party the sum of four hundred and eighty (480) dollars for his labor and services from the first day of May, 1917, to the first day of May, 1918, in monthly payments of forty ($40) dollars per month, payable on or before the tenth day of the succeeding month after the same shall have been earned; and in addition thereto the first party gives and grants unto second party the use of a house, garden, and outbuildings to be used by him as a tenement during the time of this agreement."

The record of the justice neither sets forth any of the evidence offered before him, nor makes any finding of fact drawn therefrom or from the averments in said complaint. The justice however enters judgment in favor of the plaintiff for possession and for $30 as damages.

The record also narrates the substance of the complaint as follows:

"Plaintiff claims for damages and possession of property, and states that he, the said F. W. Ketner, was on or about May 1st, 1917, in possession and entitled to the possession of the property in question. And the defendant went into possession of said property on or about May 1st, 1917, with the right to remain thereon so long as he labored and performed work for plaintiff upon his farm in Woodcock Township; that without fault of plaintiff, defendant ceased to work for the plaintiff shortly prior to November 1st, 1917, and since that time has remained in possession of the premises in question for a time indeterminate without right, lease or contract of plaintiff, and defendant has paid no rent for said premises since November 1st, 1917, and that the rent from that date to the present, during all of which period defendant has been and now is in possession of said premises is reasonably worth $30.00.”

To the proceeding and record defendant assigns, inter alia, as error: "The record fails to show that the alderman had jurisdiction of the matter."

This brings us to a consideration of the statutes governing said proceedings and to the law pertaining to the essential requisites of the justice's record.

The act of Dec. 14, 1863, recorded in 1864, P. L. 1125, together with its supplements, provide for and regulate the proceeding under consideration.

This act provides: That where any person

state, having leased

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to any person

for a term of one or more years, or at will, shall be desir

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ous upon the determination of said lease to have again such demised premises, having given three months' notice of such intention to his lessee or tenant, and said lessee or tenant shall re

Ketner v. Nott

fuse to leave and surrender up the said premises at the expiration of said term, in compliance with the terms of said notice, it shall be lawful for such lessor * to complain thereof to any justice in the county wherein the demised premises lie."

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The act then provides that after summons and notice to defendant, and hearing, if the justice finds the essential facts of the complaint true, that: "If it shall appear right and proper to the said justice he shall enter judgment against the said tenant that he forthwith give up possession of the said premises to the said lessor; and the said justice shall also give judgment in favor of the lessor and against the lessee or tenant for such damages as in his opinion the said lessor may have sustained."

Then followed the act of March 6, 1872, P. L. 22, amending the act of 1863 as follows:

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"That from and after the passage of this act it shall not be lawful to commence or to prosecute any proceedings to obtain possession of any lands (under the provisions of the act of 1863) unless such proceedings shall be founded upon a written lease, or contract in writing, or on a parole agreement in and by which the relation of landlord and tenant is established between the parties, and a certain rent is therein reserved."

Had plaintiff's lease been for "one or more years or at will," his action must have been instituted under the provisions of the two acts cited after three months' notice to the tenant to quit the premises.

Plaintiff construed his lease as being for an "indeterminate time," and claims to have brought himself within the provisions of the Act of March 31, 1905, P. L. 87, which provides:

"That from and after the passage of this act, in all cases where a tenant shall hold possession of real estate within the Commonwealth, either by license or lease, whether oral or written, for any time less than one year, or by the month, or for an indeterminate time; and the immediate landlord or owner of such real estate shall desire to regain possession thereof from such tenant or occupant, he shall serve upon the tenant or an adult member of his family a notice, in writing, demanding therein that he requires such tenant or occupant to deliver to him the possession of the premises, so held, within thirty days from the date of service thereof."

It will be observed that the latter act makes no provision for any judgment of possession or damages. This authority is granted to the justice under the act of 1863; hence the three acts are the necessary foundation of the procedure under consideration.

Ketner v. Nott

It seems clear that the justice was without jurisdiction, and that his record is insufficient.

We will assume, without so deciding, under the authority of Bowman vs. Bradley, 151 Pa., 351, and Wells vs. Peifer, 21 D. R. 606, that the lease was for an indeterminte time, and for less than one year. But this assumption depends upon an affirmative finding from parole testimony that a year's lease had determined and ended within the year because of defendant's default. The record contains no such finding nor any evidence to sustain such a finding.

We will assume that the written complaint and the written lease, when properly identified and supplemented by parole testimony, are evidence of the relations of the parties as landlord and tenant, but the record of the justice discloses no finding as to this jurisdictional fact.

In addition to this relationship and the determination of the lease and the requisite notice, there must have been in the lease or contract, under the express provision of the act of 1872, "a certain rent therein reserved."

A certain rent is a definite rent, not a rent of estimated value dependent upon the opinion of witnesses.

As to the house and lot, the lease itself, after fixing the tenant's salary for the year at $480,000, proceeds as follows:

"And in addition thereto the first party (plaintiff) gives and grants unto second party (defendant) the use of a house, garden and outbuildings to be used by him as a tenement during the time of this agreement."

The record of the justice narrates that the plaintiff claims defendant's "possession of said premises is reasonably worth $30" for the three months.

As the jurisdiction of a justice under the landlord and tenant act is statutory, and the proceedings are summary, his record must at least show jurisdictional facts together with sufficient evidence or reference thereto to sustain his judgment.

In Horner vs. Wetherell, 5 Sadler, 247, our Supreme Court, discussing the essentials of the record in a proceeding under the Act of 1863 said:

"In rendering the judgment there is an entire failure to find the facts upon which alone under the statute the judgment of eviction can be entered. There is a mere recital that it appears in evidence that the defendant was a tenant under the plaintiff, without stating for what term, and had been notified to quit three months before the expiration of the lease without stating when it expired, and that he still occupies the premises. Of course, this is entirely inadequate.

Ketner v. Nott

In the case of Givens vs. Miller, 62 Pa., 133, where the record was much like the present one, only rather more specific, Thompson, C. J., said, speaking of the findings required by the act: 'This is an inquest of facts, which, if found true by the justice, must appear to have been so found by him in the record of his judgment, or by reference to the complaint, if fully set forth therein, as true. They are the essential supports of his judgment and must appear to have been established in order to sustain the judgment for the plaintiff. Here the justice neither sets out this inquest in his judgment nor does he say the facts in the complaint are true; so that his record is fatally defective. The jurisdiction under the landlord and tenant act is special, and the record of the magistrate must contain every essential to support his judgment. Nothing can be taken by intendment in such a proceeding which ought to appear."

See also Hickey vs. Conly, 24 Sup. Ct., 388.
McGee vs. Fessler, 1 Pa., 126.

Ballou vs. Mehring, 28 Sup. Ct., 156.

In our reference to the narration of the justice of the plaintiff's claim before him, we omitted to call attention to the fact that it appears to be simply plaintiff's statement, or narration of his counsel, not taken under oath, as it appears that plaintiff was not at that time sworn, but was subsequently sworn as shown by the record.

The judgment of the justice must be reversed for the following reasons: First: For want of jurisdiction, there being no rent certain reserved under the lease or contract.

Second: The record does not disclose an essential finding of fact to support the judgment.

ORDER.

Now, October 5, 1918, the judgment of the justice is reversed and set aside, and the Prothonotary is dericted to enter judgment in favor of the defendant for costs.