
    Maruca v. Christner
    
      Donald J. McCue, for plaintiffs.
    
      John W. Pollins, 3rd, for defendant.
    August 27, 1973.
   MIHALICH, J.,

Defendant appealed a decision in favor of plaintiffs from District Magistrate Margaret I. Tlumac and ruled plaintiffs to file a complaint. The complaint was filed January 22, 1973, asking for ejectment of defendant from the premises leased by him along with money damages. The essence of the complaint was that defendant would not allow plaintiffs entrance to the basement at the premises let. Plaintiffs further alleged they could not repair and maintain the heating system, utilities and electrical system and that other apartments could not be let because of defendant’s actions. A copy of the lease was attached as exhibit A. Defendant then filed preliminary objections to the complaint.

An action of ejectment will lie to recover possession of land held by one to the exclusion of another entitled to the possession. The court has examined the lease and is of the opinion that an action of ejectment will not lie. Here, plaintiffs have leased to defendant:

“All that certain first floor apartment consisting of five (5) rooms and bath situate in premises numbered and designated as 923 West Main Street, Mount Pleasant, Pennsylvania, together with the entire basement under said premises. . . .”

Further, the lease states:

“. . . . this Lease shall remain in full force and effect for so long as the Tenant lives or desires to occupy the said premises.”

It is also important that plaintiffs-lessors have not retained any right to enter the premises under the terms of the lease.

Therefore, it appears to the court that an action of ejectment will not lie.

“Ejectment is a possessory action only, and can succeed only if the plaintiff is out of possession, and if he has a present right to immediate possession: . . . a lessor who made a lease of his land for years to a tenant in possession cannot maintain ejectment until the lease expires”: Brennan v. Shore Bros., Inc., 380 Pa. 283, 285, 110 A. 2d 401.

For the above reasons, the court will enter the following

ORDER

And now, August 27, 1973, it is hereby ordered, adjudged and decreed that defendant’s preliminary objections in the nature of a motion to strike off the complaint are sustained and the complaint is stricken.  