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