美国财产法案例(中英文)-皮尤诉霍姆斯 |
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Pugh v. Holmes OPINIONLARSEN, Justice.Eloise Holmes, appellee, had been, pursuant to an oral month-to-month lease, renting a residential dwelling in Chambersburg in Franklin County at the rate of $60.00 per month from November, 1971 until recently. Her landlord, appellant J. C. Pugh, instituted two separate landlord-tenant actions against appellee before a justice of the peace, the first resulting in a judgment for unpaid rent (for the period from September, 1975 through June, 1976) and the second resulting in a judgment for unpaid rent (for the period from June, 1976 through August, 1976) and for possession of the premises. Following Mrs. Holmes' appeals to the Court of Common Pleas of Franklin County, appellant filed separate complaints, the first seeking unpaid rent and the second *279 seeking both unpaid rent and possession. In both actions, appellee filed answers asserting a defense of the landlord's alleged breach of an implied warranty of habitability. Additionally, in the second action, appellee asserted a setoff due in an amount which she claimed she had spent to repair a broken lock after having given appellant notice and a reasonable opportunity to repair the lock. Appellee also filed a counterclaim for the cost of repairing other allegedly defective conditions of which she had given appellant notice. Appellant filed preliminary objections to the answer and counterclaim which the Court of Common Pleas sustained finding that appellee's answer failed to set forth a legal defense to the landlord's actions, and that the counterclaim failed to set forth a legal cause of action.
On appeal, the Superior Court, by opinion of President Judge Jacobs, reversed and remanded. The Superior Court abolished the doctrine of Caveat emptor as applied to residential leases and held that a warranty of habitability by the landlord will be implied in all such leases, which implied warrant would be mutually dependent upon the tenant's obligation to pay rent. Pugh v. Holmes, 253 Pa.Super. 76, 384 A.2d 1234 (1978) (Price, J. dissenting). By order dated July 20, 1978, this Court granted appellant's petition for allowance of appeal.
I. DOCTRINE OF CAVEAT EMPTOR ABOLISHED/IMPLIED WARRANTY OF HABITABILITY ADOPTEDADOPTED[1]
“had no obligations to the tenant other than those made expressly, and the tenant's obligation to pay rent was independent of the landlord's (covenants) . . . The doctrine of Caveat emptor was fully applicable. The tenant's only protections were to inspect the premises before taking possession or to extract express warranties from the landlord. It was assumed that landlords and tenants held equal bargaining power in arranging their rental agreements, and that the agrarian tenant had the ability to inspect the dwelling adequately and to make simple repairs in the buildings which possessed no modern conveniences such as indoor plumbing or electrical wiring.
As agrarian society declined and population centers shifted from rural to urban areas, the common law concepts of landlord-tenant relationships did not change. Despite the facts that the primary purpose of the urban leasing arrangement was housing and not land and that the tenant could neither adequately inspect nor repair urban dwelling units, landlords still were not held to any implied warranties in the places they rented and tenants leased dwellings at their own risk.“
FN1. For judicial analysis of the historical context in which the property view of the landlord-tenant relationship developed, See cases cited in Pugh v. Holmes, 384 A.2d at 1237, n. 2. See also 2 F. Pollock and F. Maitland, The History of English Law 131 (2d ed. 1923); 2 R. Powell, The Law of Real Property s 225(2) (P. Rohan rev. 1975); Restatement (Second) of Property, Landlord and Tenant s 5.1, Reporter's Note 2. As stated by appellee, “times have changed. So has the law.” (Brief for appellee at 3). Today, the doctrine of the *281 implied warranty of habitability has attained majority status in the United States, the doctrine having been embraced by the appellate courts and/or the legislatures of some 40 state jurisdictions and the District of Columbia.[FN2] The warranty*282 recognizes **902 that the modern tenant is not interested in land, but rather bargains for a dwelling house suitable for habitation.
FN2. Alaska Alaska Stat. ss 34.03.100, 34.03.160, 34.03.180 (1974); Arizona Ariz.Rev.Stat.Ann. ss 33-1324 and 33-1361 (1974); California Cal.Civ.Code ss 1941, 1942 (West 1974), and Green v. Superior Court, 10 Cal.3d 616, 111 Cal.Rptr. 704, 517 P.2d 1168 (1974); Connecticut Conn.Gen.Stat.Ann. ss 47-24 Et seq. (1960), and Todd v. May, 6 Conn.Cir.Ct. 731, 316 A.2d 793 (1973); Delaware Del.Code Ann. tit. 25, s 5303 (1974); District of Columbia Javins v. First National Realty Corp., 138 U.S.App.D.C. 369, 380, 428 F.2d 1071, 1082 Cert. denied, 400 U.S. 925, 91 S.Ct. 186, 27 L.Ed.2d 185 (1970); Florida Fla.Stat.Ann. ss 83.51, 83.56 (1973); Georgia Ga.Code Ann. tit. 61, Sections 111-112; Givens v. Gray, 126 Ga.App. 309, 190 S.E.2d 607 (1972); and Stack v. Harris, 111 Ga. 149, 36 S.E. 615 (1906); Hawaii Haw.Rev.Stat. s 521-42 (Supp.1974), and Lemle v. Breeden, 51 Haw. 426, 462 P.2d 470 (1969); Idaho Idaho Code s 6-316 (H.B. No. 34, 1977); Illinois Jack Spring Inc. v. Little, 50 Ill.2d 351, 280 N.E.2d 208 (1972); Indiana Old Town Development Company v. Langford, Ind.App., 349 N.E.2d 744 (1976); Iowa Mease v. Fox, 200 N.W.2d 791 (Iowa 1972); Kansas Steele v. Latimer, 214 Kan. 329, 521 P.2d 304 (1974); Kentucky Ky.Rev.Stat.Ann. ss 383.595, 383.625 (Supp.1974); Maine Me.Rev.Stat.Ann. tit. 14, s 6021 (Supp.1974); Maryland Md.Real Prop.Code Ann. s 8-211 (Cum.Supp.1975), superseded in their respective jurisdictions by Baltimore City Public Local laws ss 9-9, 9-10, 9-14.1 (eff. July 1, 1971), and Montgomery County Code, Fair Landlord-Tenant Relations, ch. 93A (Nov. 21, 1972); Massachusetts Mass.Gen.Laws Ann. ch. 239, s 8A (Supp.1974), and Boston Housing Authority v. Hemingway, 363 Mass. 184, 293 N.E.2d 831 (1973); Michigan Mich.Comp.Laws Ann. s 554.139 (Supp.1974), and Rome v. Walker, 38 Mich.App. 458, 196 N.W.2d 850 (1972); Minnesota Minn.Stat. s 504.18 (1974), Applied in Fritz v. Warthen, 298 Minn. 54, 213 N.W.2d 339 (1973); Missouri King v. Moorehead, 495 S.W.2d 65 (Mo.App.1973); Montana Mont.Rev.Codes s 42-420 (1978); Nebraska Neb.Rev.Stat. ss 76-1419, 76-1425 Et seq. (Cum.Supp.1974); Nevada Nev.Rev.Stat. tit. 10 s 118A.290 (1977) (but note that the Act does Not protect tenants whose landlord owns fewer than seven units); New Hampshire Kline v. Burns, 111 N.H. 87, 276 A.2d 248 (1971); New Jersey Marini v. Ireland; 56 N.J. 130, 265 A.2d 526 (1970); New Mexico N.M.Stat. ss 70-7-1 Et seq.; New York Amanuensis, Ltd. v. Brown, 65 Misc.2d 15, 318 N.Y.S.2d 11 (N.Y.Cir.Ct.1971); N.Y. Real Prop. Law s 235-b (McKinney 1972), As adopted in ch. 597, (1975) N.Y. Acts 875; North Carolina ch. 770, Session Laws, 1977-78 (N.C.G.S., ch. 42, art. V); North Dakota N.D.Cent.Code s 47-16-13.1 Et seq. (1977); Ohio Glyco v. Schultz, 35 Ohio Misc.2d 25, 62 Ohio Op.2d 459, 289 N.E.2d 919 (Mun.Ct.Ohio 1972), and Ohio Rev.Code Ann. ss 5321.04, 5321.07 (Page Supp.1974); Oklahoma Okla.Stat. tit. 41 s 118 (1978); Oregon Or.Rev.Stat. ss 91.770, 91.800-.815 (1974); Rhode Island R.I.Gen.Laws s 34-18-16 (1968); Tennessee Tenn.Code Ann. ss 64-2801 Et seq. (1974); Texas Kamarath v. Bennett, (Tex.1978), 568 S.W.2d 658 (1978); Vermont Vt.Stat.Ann. tit. 12, s 4859 (1972) (remedy limited to affirmative defenses only); Virginia Va.Code Ann. ss 55-248.13, 55-248.25 (Cum.Supp.1975); Washington Wash.Rev.Code Ann. s 59.18.060 (Supp.1974), and Foisy v. Wyman, 83 Wash.2d 22, 515 P.2d 160 (1973); West Virginia H.B. 1368 (passed March 11, 1978; effective date, June 11, 1978) (sets out landlord obligations but does not provide remedy for breach); Wisconsin Pines v. Perssion, 14 Wis.2d 590, 111 N.W.2d 409 (1961); But see Posnanski v. Hood, 46 Wis.2d 172, 174 N.W.2d 528 (1970) and Blackwell v. Del Bosco, Colo., 558 P.2d 563 (1976). Brief for Amicus Curiae, National Housing Law Project, 1-2, n. 1. “Functionally viewed, the modern apartment dweller is a consumer of housing services. The contemporary leasing of residences envisions one person (landlord) exchanging for periodic payments (rent) a bundle of goods and services, rights and obligations. The now classic description of this economic reality appears in Javins v. First National Realty Corp., 138 U.S.App.D.C. 369, 428 F.2d 1071, 1074, Cert. denied, 400 U.S. 925, 91 S.Ct. 186, 27 L.Ed.2d 185 (1970) (footnote omitted). When American city dwellers both rich and poor, seek ‘shelter today, they seek a well known package of goods and services a package which includes not merely walls and ceilings, but also adequate heat, light and ventilation, serviceable plumbing facilities, secure windows and doors, proper sanitation, and proper maintenance.’ ”
Commonwealth v. Monumental Properties, Inc., 459 Pa. 450, 467-68, 329 A.2d 812, 820-21 (1974) (holding Unfair Trade Practices and Consumer Protection Law applicable to residential leases.) Moreover, prospective tenants today can have vastly inferior bargaining power compared with the landlord, as was recognized in Reitmeyer v. Sprecher, 431 Pa. 284, 243 A.2d 395 (1968). In Reitmeyer this Court stated:
*283 “Stark necessity very often forces a tenant into occupancy of premises far from desirable and in a defective state of repair. The acute housing shortage mandates that the average prospective tenant accede to the demands of the prospective landlord as to conditions of rental, which, under ordinary conditions with housing available, the average tenant would not and should not accept.
No longer does the average prospective tenant occupy a free bargaining status and no longer do the average landlord-to-be and tenant-to-be negotiate a lease on an ‘arm's length’ basis.“
The Superior Court correctly observed that to join the trend toward an implied warranty of habitability would not be a complete and sudden break with the past, but would be the “next step in the law which has been developing in the Commonwealth for a number of years.” 384 A.2d at 1239. Pennsylvania courts have held that a tenant's obligation to pay rent was mutually dependent on Express covenants of a landlord to repair and that a material breach of the landlord's covenant to repair relieved a tenant from his obligation to pay rent. McDanel v. Mack Realty Company, 315 Pa. 174, 172 A. 97 (1934). In Reitmeyer v. Sprecher, supra, recognizing the contractual nature of modern leasing and the severe housing shortage resulting in unequal bargaining power, this Court adopted s 357 of the Restatement (Second) of Torts and imposed liability on a landlord who had breached a covenant to repair a dangerous **903 condition on the premises, which breach resulted in injury to the tenant. In Elderkin v. Gaster, 447 Pa. 118, 288 A.2d 771 (1972), we abolished Caveat emptor and adopted an implied warranty of habitability in sales of new homes to buyers by vendors/builders. In Elderkin we noted “caveat emptor developed when the buyer and seller were in an equal bargaining position and they could readily be expected to protect themselves in the deed. . . . ‘The Caveat emptor rule as applied to new houses is an anachronism patently out of harmony with modern home buying practices.’ ” Id. at 127-28, 288 A.2d at 776 (citations omitted).
*284 In 1974, Commonwealth v. Monumental Properties, Inc., supra, we held the Unfair Trade Practices and Consumer Protection Law, Act of December 17, 1968, P.L. 1224, ss 1-9, 73 P.S. ss 201-1 to 201-9 (1971), applicable to residential leases, primarily because of the functional, contractual view of modern leasing and the housing crises in the Commonwealth. Id. at 467, 474-77, 824, 329 A.2d at 820-21, 824. The inferior bargaining position of some tenants caused by the housing shortage made the protection of these consumer laws necessary. Similarly, consumers of goods have received the protections of the implied warranties of merchantability and fitness for a particular purpose since 1953. Uniform Commercial Code, Act of April 6, 1953 P.L. 3, ss 2-314, 2-315, As reenacted, Act of October 2, 1959, P.L. 1023, s 2, 12A P.S. ss 2-314, 2-315 (1970).
More recently we held that a lessee of commercial property is relieved from the obligation to pay rent when the leased premises are destroyed by fire. Albert M. Greenfield & Co., Inc. v. Kolea, 475 Pa. 351, 380 A.2d 758 (1977). This Court stated “In reaching a decision involving the landlord-tenant relationship, too often courts have relied on outdated common law property principles and presumptions and have refused to consider the factors necessary for an equitable and just conclusion. . . . Buildings are critical to the functioning of modern society. When the parties bargain for the use of a building, the soil beneath is generally of little consequence. Our laws should develop to reflect these changes.” Id. at 356-57, 380 A.2d at 760.
[3]
*285 II. ADOPTION OF IMPLIED WARRANTY OF HABITABILITY: A PROPER JUDICIAL FUNCTIOn[5]
The Rent Withholding Act (hereinafter the Act) provides:
“Notwithstanding any other provision of law, or of any agreement, whether oral or in writing, whenever the Department of Licenses and Inspections of any city of the first class, or the Department of Public Safety of any city of the second class, second class A, or third class as the case may be, or any Public Health Department of any such city, or of the county in **904 which such city is located, certifies a dwelling as unfit for human habitation, the duty of any tenant of such dwelling to pay, and the right of the landlord to collect rent shall be suspended without affecting any other terms or conditions of the landlord-tenant relationship, until the dwelling is certified as fit for human habitation or until the tenancy is terminated for any reason other than nonpayment of rent. During any period when the duty to pay rent is suspended, and the tenant continues to occupy the dwelling, the rent withheld shall be deposited by the tenant in an escrow account in a bank or trust company approved by the city or county as the case may be and shall be paid to the landlord when the dwelling is certified as fit for human habitation at any time within six months from the date on which the *286 dwelling was certified as unfit for human habitation. If, at the end of six months after the certification of a dwelling as unfit for human habitation, such dwelling has not been certified as fit for human habitation, any moneys deposited in escrow on account of continued occupancy shall be payable to the depositor, except that any funds deposited in escrow may be used, for the purpose of making such dwelling fit for human habitation and for the payment of utility services for which the landlord is obligated but which he refuses or is unable to pay. No tenant shall be evicted for any reason whatsoever while rent is deposited in escrow.”
Initially we note the Act is applicable only to cities of the first three classes and so is, by its terms, not applicable to the case at bar. Nevertheless, we must consider appellant's contention that, by acting At all, the legislature has precluded the judiciary from common law development in the landlord-tenant/habitability area.
[6]
[8]
[10]
“(c)ourts, in assessing the continued vitality of precedents, rules and doctrines of the past, may give weight to the policies reflected in more recent, widespread legislation, though the statutes do not apply treating the total body of the statutory law in the manner endorsed long ago by Mr. Justice Stone ‘as both a declaration and a source of law, and as premise for legal reasoning’ (The **905 Common Law in the United States, 50 Harv.L.Rev. 4, 13 (1976)).” Introduction to Restatement (Second) of Property, Landlord and Tenant.
Appellate courts of other jurisdictions have considered and rejected the argument that a state's rent withholding act or other statutory remedies precluded judicial adoption of the implied warranty of habitability. In *288 Boston Housing Authority v. Hemingway, 363 Mass. 184, 293 N.E.2d 831 (1973), the Massachusetts Supreme Court reviewed the overwhelming support from other jurisdictions which have judicially sanctioned the implied warranty and stated “All of these decisions are predicated on the implied assumption that remedial legislation designed to promote safe and sanitary housing does not preclude the courts from fashioning new common law rights and remedies to facilitate the policy of safe and sanitary housing embodied in the withholding statutes.” Id. at 293 N.E.2d 841. That court further reasoned that failure to adopt the warranty of habitability would render that state's statutory law and common law conceptually and functionally inconsistent. See also, Green v. Superior Court, 10 Cal.3d 616, 111 Cal.Rptr. 704, 517 P.2d 1168 (1974) (state statute authorizing tenants to repair defective conditions and deduct expenses from rent held not exclusive remedy and not preclusive of judicial adoption of common law implied warranty of habitability) and Jack Springs, Inc. v. Little, 50 Ill.2d 351, 280 N.E.2d 208 (1972) (rent withholding statute not exclusive remedy and not preclusive of judicial adoption of common law implied warranty of habitability); Cf. Blackwell v. Del Bosco, Colo., 558 P.2d 563 (1976) (lone appellate decision deferring adoption of implied warranty of habitability to legislature, although not predicated on existing statutory tenant rights and remedies). We conclude, therefore, that the Rent Withholding Act is not the exclusive tenant remedy for a landlord's failure to maintain the leased premises in a habitable state nor does it preclude judicial development of common law landlord and tenant obligations, rights and remedies. To the contrary, the Act supports the adoption of the implied warranty of habitability.
III. BREACH OF THE IMPLIED WARRANTY OF HABITABILITYAppellant also asserts that the Superior Court erred by failing to establish definite standards by which habitability can be measured and breach of the warranty ascertained. We disagree the parameters of the warranty were adequately defined by the Superior Court.
[12]
[13]
We believe these standards fully capable of guiding the fact finder in his determination of materiality of the breach. Further, these standards are flexible enough to allow the gradual development of the habitability doctrine in the best common law tradition. This finds support in Elderkin v. Gaster, supra, wherein we declined to establish rigid standards for determining habitability and its breach in the builder/vendor vendee context and, instead, defined habitability in terms of “contemporary community standards” and breach of the warranty as whether the defect prevented the use of the dwelling for the purposes intended habitation. 447 Pa. at 128, 288 A.2d at 777. In that case, we held that lack of a potable water supply to the home prevented its use as habitation and, accordingly, found the implied warranty of habitability to have been breached.
*290 [15]
[16]
“The State Sanitary Code minimum standards of fitness for human habitation and any relevant local health regulations provide the trial court with the threshold requirements that all housing must meet. Proof of any violation of these regulations would usually constitute compelling evidence that the apartment was not in habitable condition, regardless of whether the evidence was sufficient proof of a constructive eviction under our old case law. However, the protection afforded by the implied warranty or (sic) habitability does not necessarily coincide with the Code's requirements. There may be instances where conditions not covered by the Code regulations render the apartment uninhabitable. Although we have eliminated the defense of constructive eviction in favor of a warranty of habitability defense, a fact situation, which would have demonstrated a constructive eviction, would now be sufficient proof of a material breach of the warranty of habitability, regardless of whether a sanitary code violation existed or not. 293 N.E.2d at 844, n.16.”
FN3. Brief for Appellant at 31 notes that many small boroughs and townships have not adopted such regulations. And, according to Brief for Amicus Curiae, Central Pennsylvania Legal Services, p. 15, only six of seventy-two municipalities in York County, eleven of the fifty-nine municipalities in Lancaster County, and twelve out of seventy-five in Berks County have housing codes. In Perry County there are no municipalities with housing codes. [17]
IV. REMEDIES FOR BREACH OF IMPLIED WARRANTY OF HABITABILITY[18]
*292 [19]
[22]
[25]
[29]
FN4. From the pleadings, it appears that some of appellee's counterclaims were for recovery of the cost of repairs from Already paid rents while some of the counterclaims were for repairs made during periods in which no rent was paid. If such is the case, the latter claims would fail as the appellee would have suffered no damages. *295 [32]
**909 V. MEASURE OF RENT ABATED[34]
The “fair market value” approach suffers from two drawbacks. The first is that it assumes there is a Fair market for the defective premises. This assumption is questionable given the housing crises which exists today. Reitmeyer v. Sprecher, supra 431 Pa. at 289-90, 243 A.2d at 398 (1968). Because of the housing shortage, “Premises which, under normal circumstances, would be completely unattractive for rental are now, by necessity, at a premium.” *296 Id. at 290, 243 A.2d at 398. As one author phrased it “it seems questionable whether in asserting damages in this situation cognizance should be taken of a ‘fair’ market value of noncomplying housing such a market could be regarded as an illegal ‘black market’ existing only by violation of law.” Note, 84 Harv.L.Rev. 729, 737 (1971).
The second flaw is a practical one. The determination of the fair market value of the defective dwelling would in all probability require some type of market survey, statistical evidence, or expert testimony from realtors or appraisers familiar with the local rental market. See, Moskovitz, “The Implied Warranty of Habitability: A New Doctrine Raising New Issues : 62 Calif.L.Rev. 1444, 1467-68 (1974). ”The cost of obtaining such evidence or testimony would simply be prohibitive to many litigants, especially low-income tenants.“ Id.
One court which initially adopted a “fair market value” approach in computing the amount of rent to be abated, McKenna v. Begin, 3 Mass.App. 168, 325 N.E.2d 587 (1975) (McKenna I), rejected that approach following appeal from the trial court on remand, and opted for the “percentage reduction in use” formula, McKenna v. Begin, 362 N.E.2d 548 (Mass.App.1977) (McKenna II), in order to fashion a measure of damages “which more closely reflects the actual injury suffered by (the tenant).” 362 N.E.2d 552. Under this approach, the rent is to be abated “by a percentage reflecting the diminution the value of the use and enjoyment of leased premises by reason of the existence of defects which gave rise to the breach of habitability.” Id. citing Green v. Superior Court, supra, Academy Spires, Inc. v. Brown, 111 N.J.Super. 477, 268 A.2d 556 (1970) and Morbeth Realty Corp. v. Rosenshine, 67 Misc.2d 325, 323 N.Y.S.2d 363 (N.Y.Cir.Ct.1971).
This method of evaluation better achieves the goal of returning the injured party (the tenant) to the position he would have been in if performance had been rendered as warranted. Corbin, Contracts s 992 (1964); Murray, supra at s 220. The tenant bargains for habitable premises and *297 the rental price reflects the value placed on those premises by the parties. Therefore, where the premises are rendered uninhabitable, in whole or in part, the contract price (fixed by the lease) is to be reduced by the percentage which reflects the diminution in use for the intended purpose. Another advantage of the percentage reduction method is that the need for expert testimony is greatly reduced as the determination in “percentage of reduction in use” of a residential dwelling is a matter within the capabilities of the layman.
[35]
Accordingly, on remand, if breach of the implied warranty of habitability is proven, the trial court is to apply the “percentage reduction in use” formula to determine the percentage by which the use and enjoyment of the premises had been diminished.
For the foregoing reasons, we overrule all cases inconsistent with this opinion, affirm the order of the Superior Court *298 with the aforementioned modifications, and remand to the Court of Common Pleas of Franklin County for proceedings consonant with this opinion.
ROBERTS, J., filed a concurring opinion in which NIX and MANDERINO, JJ., join.OPINION CONCURRING IN PARTS I, II & IIIROBERTS, Justice.I join in Parts I, II & III of the Opinion of the Court which adopt the position of the Restatement (Second) of Property, Landlord and Tenant ss 5.5(1) & (3) and Comment f (1977). As the Reporter's Note to Section 5.5 points out,
“to impose the burden on the landlord fulfills the expectations of the parties that the tenant seeks property suitable for a dwelling and the landlord provides property fit for that purpose:
The very object of the letting was to furnish the defendant (the tenant) with quarters suitable for living purposes. This is what the landlord at least impliedly (if not expressly) represented he had available and what the tenant was seeking. Marini v. Ireland, 56 N.J. 130, 144, 265 A.2d 526, 533-534 (1970).
Thus, in leases of residential property the conclusion is justified that the landlord impliedly promised to make repairs. A number of courts have adopted the position of this section that the landlord's implied promise of habitability and the tenant's obligation to pay rent are mutually dependent. Green v. Superior Court, 10 Cal.3d 616, 111 Cal.Rptr. 704, 517 P.2d 1168 (1974); Rome v. Walker, 38 Mich.App. 458, 196 N.W.2d 850 (1972); Fritz v. Warthen, 298 Minn. 54, 213 N.W.2d 339 (1973); Berzito v. Gambino, 63 N.J. 460, 308 A.2d 17 (1973).“
NIX and MANDERINO, JJ., join in this opinion.
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