Subchapter C. ACTION IN EJECTMENT


Rule


1051.    Conformity to Civil Action.
1052.    Venue.
1053.    Service. [Rescinded].
1054.    Specific Averments. Abstract of Title.
1055.    Pleading More Than One Cause of Action.
1056.    Counterclaim. Conditional Verdict.
1057.    Judgment. Execution.
1058.    Trial Without Jury.

Rule 1051. Conformity to Civil Action.

 Except as otherwise provided in this chapter, the procedure in the action of ejectment shall be in accordance with the rules relating to a civil action.

Source

   The provisions of this Rule 1051 adopted June 25, 1946, effective January 1, 1947; amended December 16, 1983, effective July 1, 1984, 13 Pa.B. 3999. Immediately preceding text appears at serial page (40041).

Rule 1052. Venue.

 The action may be brought in and only in a county in which the land or part of the land is located.

Source

   The provisions of this Rule 1052 adopted June 25, 1946, effective January 1, 1947.

Rule 1053. Service.

 [Rescinded]

   Official Note

   For service of original process, see Rule 410 governing service in actions involving real property.

Source

   The provisions of this Rule 1053 reserved June 20, 1985, effective January 1, 1986, 15 Pa.B. 2452. Immediately preceding text appears at serial pages (87259) and (87260).

Rule 1054. Specific Averments. Abstract of Title.

 (a)  The plaintiff shall describe the land in the complaint.

 (b)  A party shall set forth in the complaint or answer an abstract of the title upon which the party relies at least from the common source of the adverse titles of the parties.

Source

   The provisions of this Rule 1054 adopted June 25, 1946, effective January 1, 1947; amended April 12, 1999, effective July 1, 1999, 29 Pa.B. 2266. Immediately preceding text appears at serial page (212313).

Rule 1055. Pleading More Than One Cause of Action.

 The plaintiff may state in the complaint any cause of action for rents, profits or any other damages which arise from the defendant’s possession of the land.

Comment

   The inability to join the action for delinquent rent has necessitated two separate actions when possession of the property and delinquent rent are both sought. An action in ejectment is required to obtain possession of the property and an action in assumpsit is required to recover the rent. Although not permitted in the court of common pleas, such joinder is permitted by the Rules of Civil Procedure for Justices of the Peace. Pa. R.P.C.J.P. 503C (8) permits the complaint to include amount of rent, if any, which remains due and unpaid . . . .’’

   In addition to delinquent rent, there are other claims for damages which cannot presently be joined, such as installment payments due under an installment land contract where the purchaser enters into possession before the time appointed for the conveyance of title. Under the Installment Land Contract Law of 1968, Act of June 8, 1965, No. 81, 68 P. S. §  901 et seq., applicable to cities and counties of the first and second class, the seller upon termination may, subject to restrictions set forth in the Act, maintain actions for recovery of possession and for unpaid installments prior to the surrender of the land.

   The amendment will permit the joinder of causes of action for delinquent rent or delinquent installments under an installment land contract entered into in any city or county of the Commonwealth. Damages for ‘‘use of or injury to the land,’’ presently permitted under the rule, are embraced in the new language, ‘‘damages which arise from the defendant’s possession of the land.’’

   Concurrently with the enlargement of the plaintiff’s right to joinder, the defendant’s right to counterclaim has also been enlarged. Under present Rule 1056, the defendant may counterclaim only if the plaintiff demands damages. The amendment deletes this language, thus eliminating the dependence of a counterclaim on the assertion of a claim by the plaintiff. This would permit a defendant under a residential lease to assert a claim for breach of warranty of habitability recognized by the decisions in Pugh v. Holmes, 253 Pa. Super. 76, 384 A.2d 1234 (1978), Beasley v. Freedman, 256 Pa. Super. 208, 389 A.2d 1087 (1978), and Fair v. Negley, 257 Pa. Super. 50, 390 A.2d 240 (1978).

Source

   The provisions of this Rule 1055 adopted June 25, 1946, effective January 1, 1947; amended March 12, 1979, effective April 7, 1979, 9 Pa.B. 1167. Immediately preceding text appears at serial page (22272).

Rule 1056. Counterclaim. Conditional Verdict.

 (a)  The defendant may plead a counterclaim which arises from the same transaction or occurrence or series of transactions or occurrences from which the cause of action arose.

 (b)  A conditional verdict may be entered in an appropriate case.

   Official Note

   Adopted June 25, 1946, effective January 1, 1947.

   Explanatory Note

   Ejectment Rule 1055 permits the joinder in an action of ejectment of a cause of action for ‘‘profits for the use of or damages or injury to the land.’’ The courts have been divided in their construction of the word ‘‘profits.’’ It has been construed not to include ‘‘rent,’’ and accordingly a cause of action for delinquent rent accruing prior to commencement of the action cannot be joined with ejectment. See Hanson v. Wintersteen, 32 D. & C.2d 138 (1963). However, ‘‘profits’’ has also been interpreted to include rent, thus permitting the joinder of the causes of action. See dictum, Phillips v. Bailey, 26 Chester Co. Rep. 338 (1978).

   The inability to join the action for delinquent rent has necessitated two separate actions when possession of the property and delinquent rent are both sought. An action in ejectment is required to obtain possession of the property and an action in assumpsit is required to recover the rent. Although not permitted in the court of common pleas, such joinder is permitted by the Rules of Civil Procedure for Justices of the Peace. Pa. R.P.C.J.P. 503C (8) permits the complaint to include ‘‘the amount of rent, if any, which remains due and unpaid . . . .’’

   In addition to delinquent rent, there are other claims for damages which cannot presently be joined, such as installment payments due under an installment land contract where the purchaser enters into possession before the time appointed for the conveyance of title. Under the Installment Land Contract Law of 1968, Act of June 8, 1965, No. 81, 68 P. S. §  901 et seq., applicable to cities and counties of the first and second class, the seller upon termination may, subject to restrictions set forth in the Act, maintain actions for recovery of possession and for unpaid installments prior to the surrender of the land.

   The amendment will permit the joinder of causes of action for delinquent rent or delinquent installments under an installment land contract entered into in any city or county of the Com-monwealth. Damages for ‘‘use of or injury to the land,’’ presently permitted under the rule, are embraced in the new language, ‘‘damages which arise from the defendant’s possession of the land.’’

   Concurrently with the enlargement of the plaintiff’s right to joinder, defendant’s right to counterclaim has also been enlarged. Under present Rule 1056, the defendant may counterclaim only if the plaintiff demands damages. The amendment deletes this language, thus eliminating the dependence of a counterclaim on the assertion of a claim by the plaintiff. This would permit a defendant under a residential lease to assert a claim for breach of warranty of habitability recognized by the decisions in Pugh v. Holmes, 253 Pa. Super. 76, 384 A.2d 1234 (1978), Beasley v. Freedman, 256 Pa. Super. 208, 389 A.2d 1087 (1978), and Fair v. Negley, 257 Pa. Super. 50, 390 A.2d 240 (1978).

Source

   The provisions of this Rule 1056 amended March 12, 1979, effective April 7, 1979, 9 Pa.B. 1167. Immediately preceding text appears at serial page (22272).

Rule 1057. Judgment. Execution.

 Judgment in the action shall be enforced as provided by Rules 3160 to 3165, inclusive.

   Official Note

   Adopted March 30, 1960, effective November 1, 1960.

Rule 1058. Trial Without Jury.

 The trial of actions in ejectment by a judge sitting without a jury shall be in accordance with Rule 1038.

   Official Note

   Added June 27, 1969, effective September 1, 1969.

   The Civil Procedural Rules Committee, by communication dated Aug. 27, 1969, announced that amendment of this rule effective Sept. 1, 1969 applied to pending actions.

Source

   The provisions of this Rule 1058 adopted June 27, 1969, effective September 1, 1969; amended December 16, 1983, effective July 1, 1984, 13 Pa.B. 3999. Immediately preceding text appears at serial pages (40044) and (40045).



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