Three months after adopting the implied warranty in Pugh v. Holmes, 405 A.2d 897, 903 (1978), Pennsylvania Superior Court extended it in Fair v. Negley, 390 A.2d 240 (1978). There, in defense to his former tenants' complaint for recovery of all past rent paid, excessive utility bills, and intentional infliction of emotional distress, the landlord raised objections, invoking a clause in the written lease stating that tenants took the property in "as is" condition and knew the roof leaked.

In a decision written by then Justice P.J. Jacobs, Superior Court held, on the waiver issue, that the lease provision was invalid as violative of public policy, and that the implied warranty cannot be waived. Fair, supra, at 53, 60, 390 A.2d 240, 242, 245. See also Lucas v. Gutierrez, 313 Pittsburgh L.J. 313 (1986).

The court concluded that "an attempted waiver of the implied warranty of habitability in residential leases is unconscionable and must be held to be ineffective." Fair, supra, at 60, 390 A.2d 240, 245.