Is a tenant in common of real property, who does not exercise possession or control over the property, an indispensable party in a premises liability action?
Simone v. Alam, 303 A.3d 140 (Pa. Super. 2023), allocatur granted May 21, 2024, appeal docket 35 MAP 2024
This case arises from a negligence action brought by Nicole Simone against property owner Mohammed Zakiul Alam (Alam) for injuries sustained during a slip and fall at a rental property co-owned by Alam and his brother (Mr. Alam). Superior Court summarized the factual background as follows:
As alleged in her complaint, Appellant slipped and fell at a rental property owned and maintained by Alam. Complaint, 12/2/19, ¶¶ 2, 7. Appellant asserted she
was an invitee and resident of one of [Alam’s] rental units at … 30 W. Noble St., Nanticoke, PA [(Premises or the property),] and was lawfully on the common area of the Premises.
On Tuesday, January 16, 2018, [Appellant] fell on the Premises as a result of a defective and dangerous condition of the Premises created by [Alam], namely an accumulation of ice on the landing/sidewalk/walkway area beneath the stairs leading from the second floor, which was created as a result of broken, leaky, and/or misrouted rain gutters and rain spouts that created a dangerous condition and hazard and caused a foreseeable risk of falling known to [Alam].
….
[Appellant] was injured when she slipped on the accumulation of ice on the landing/walkway/sidewalk as she walked down an outdoor staircase from the second floor.
Id. ¶¶ 5-6, 10 (paragraph numbering and emphasis omitted). Appellant claimed Alam “owned, possessed, maintained, controlled and/or had the right to control the” Premises and its common areas. Id. ¶ 3.
On December 2, 2019, Appellant filed her complaint asserting a negligence action against Alam. Alam filed an answer and new matter on December 18, 2019. Alam averred Appellant’s comparative negligence was a substantial factor in causing her accident/injury. Answer and New Matter, 12/18/19, ¶ 25. Appellant filed a reply to new matter, and the case proceeded to discovery.
On October 7, 2020, Alam presented a motion to dismiss based on Appellant’s failure to join the co-owner of the Premises, Mohammed Zafuil Alam (Mr. Alam). The trial court held a hearing on the motion, where Alam’s counsel stated:
[W]hat we have is a situation where [Appellant] filed suit stemming … from a loss which she alleged occurred on January 16th of 2018; and that was a slip and fall at premises where she had been a tenant for about a year and a half with a lease.
Discovery ensued and … in the context of discovery, [Appellant] served interrogatories on my client, … [Alam]; and, in the first four Answers to Interrogatories, he discloses within the two-year anniversary of the date of loss that he was the joint owner of the premises with his brother.
Subsequently, there was a deposition that took place sometime afterwards, and Counsel for [Appellant] asked at the … outset … of the deposition, very detailed questions about who else owned the property and even commented on the different spellings of the names.
The deed, itself, which is attended [sic] to the motion [to dismiss], reflects that they are joint owners of the property.
N.T., 10/7/20, at 3-4.
The parties agreed that Alam and Mr. Alam owned the property as tenants in common. Id. at 7.
Slip op. at 1-3. The trial court dismissed Simone’s complaint for failure to join the co-owner of the property as an indispensable party. Simone appealed to Superior Court, arguing that the absent co-owner was not an indispensable party, but merely a tenant in common who exercised no possession or control over the subject multi-tenant rental property and his only interest in the property was his contribution to financing it. In support, Simone contended, as summarized by Superior Court:
there is “no Pennsylvania case law specifically holding that tenants in common are indispensable parties without exception ….” Id. at 12. Appellant directs our attention to Washington State caselaw holding that a premises liability action may proceed against the possessor of the premises, notwithstanding the absence of the true owner. Id. (citing Gildon v. Simon Prop. Group, Inc., 158 Wash.2d 483, 145 P.3d 1196 (2006)). According to Appellant, in Washington State, “the test in a premises liability action is whether one is the ‘possessor’ of property[,] not whether someone is a ‘true owner.’ ” Id. (citing Gildon, 145 P.3d at 1203).
Slip op. at 4.
Superior Court affirmed the trial court’s dismissal of Simone’s complaint for failure to join the co-owner as an indispensable party. Finding that “[c]ontrary to Appellant’s assertion, there is Pennsylvania caselaw requiring joinder of tenants in common, when liability arises out of ownership of real property,” Superior Court explained:
In Minner v. Pittsburgh, 363 Pa. 199, 69 A.2d 384 (1949), the plaintiff sought to recover damages for personal injuries sustained when he stepped in a hole on the sidewalk. Id. at 384. The plaintiff filed suit against the City of Pittsburgh, which in turn joined the three owners of the property, George Henkel (George), Carl Henkel (Carl), and John Henkel (John), as additional defendants. Id. Plaintiff was unable to serve John with the complaint. Id. Notwithstanding, George and Carl “in turn brought in Commonwealth Trust Company and George R. Davies, alleging that they were mortgagees in possession.” Id. Our Supreme Court explained:
Because of the complexity of the issue involving additional defendants, counsel for the parties agreed that the jury first determine the liability and damages as between plaintiff and original defendant, City of Pittsburgh, and then in the event of a verdict against it, hear and determine the liability of the several additional defendants. The jury rendered a verdict of $30,855.85 for plaintiff against the City. After additional testimony, the court directed a verdict in the same amount against George and Carl Henkel; and directed a verdict in favor of Commonwealth Trust Company and George R. Davies….
Id. at 385-86.
The Supreme Court then addressed the compulsory joinder issue:
Procedural Rule No. 2227 (a) states: “Persons having only a joint interest in the subject matter of an action must be joined on the same side as plaintiffs or defendants.” Rule No. 1032 provides: [“]A party waives all defenses and objections which he does not present either by preliminary objections, answer or reply, except (1) that… the defense of failure to join an indispensable party… may also be made by a later pleading, if one is permitted, or by motion for judgment on the pleadings or at the trial on the merits, and (2) that whenever it appears by suggestion of the parties or otherwise … that there has been a failure to join an indispensable party, the court shall dismiss the action.”
The liability for the negligence complained of having grown out of ownership of real estate held by tenants in common, all three owners were required to be joined: 20 R.C.L. 678, § 17. Accordingly, the City named John, George[,] and Carl Henkel in its complaint to bring them in as additional defendants. However, John Henkel was not served, but that fact did not bar proceeding to trial and obtaining a verdict in the City’s favor, for the full amount of the verdict which the jury returned for plaintiff, against George and Carl, both of whom were served. We are satisfied that no error was committed in refusing the motion of these appellants for a new trial.
Comment 3 to Procedural Rule No. 2227 (a) states: “A plaintiff must join all the obligors to a purely joint obligation if he brings an action upon it. He may, however, be unable to obtain service and these rules provide that under such circumstances he may proceed against those he can serve and then proceed against the others thereafter either in the same or other actions.”
Minner, 69 A.2d at 387 (footnote in original, emphasis added). Significantly, the Pennsylvania Supreme Court has not overruled Minner or narrowed its application.
Slip op. at 5-7. Superior Court concluded:
Instantly, Appellant asserted liability arising, in part, from Alam’s “ownership” of the Premises. Complaint, 12/2/19, ¶ 3. Alam and Mr. Alam own the Premises as tenants in common. N.T., 10/7/20, at 7. When individuals own property as tenants in common, they “own and possess in equal shares an undivided interest in the whole property.” In re Engel’s Estate, 413 Pa. 475, 198 A.2d 505, 507 (1964). “[A] tenancy in common is an estate in which there is *145 unity of possession but separate and distinct titles.” In re Estate of Quick, 588 Pa. 485, 905 A.2d 471, 474 (2006).
Appellant asserted premises liability arising, in part, out of Alam’s ownership of the property:
3. On or about Tuesday, January 16, 2018, [Alam] owned, possessed, maintained controlled and/or had the right to control [the Premises] ….
….
7. On Tuesday, January 16, 2018, [Appellant] fell on the Premises as a result of a defective and dangerous condition of the Premises created by [Alam], namely an accumulation of ice on the landing/sidewalk/walkway area beneath the stairs leading from the second floor which was the result of broken, leaky, and/or misrouted rain gutters and rain spouts that created a dangerous condition and hazard and caused a foreseeable risk of falling known to [Alam].
8. At all times material, [Alam] was aware or should have been aware of the defective and dangerous condition of the Premises.
9. The aforesaid defective and dangerous condition of the Premises was either created by or allowed to remain by [Alam].
….
20. The negligence of [Alam] consisted of the following:
21. Creating the dangerous condition of the Premises by misrouting, misdirecting rainwater onto the said landing/walkway/sidewalk area;
22. Failing to properly, completely, and thoroughly inspect the subject area for dangerous and hazardous conditions including the accumulation of ice and faulty rainspouts and gutters;
23. Inviting use of the defective and dangerous path of travel;
24. Creating the defective and dangerous condition of the common area landing/walkway/sidewalk/staircase;
25. Allowing the defective and dangerous condition to exist and remain for an unreasonable amount of time;
26. Failure to maintain the subject area;
27. Failure to remove the accumulation of ice and/or salt …;
28. Failure to hire a competent property management and or maintenance service;
29. Failure to provide sufficient lighting in the area of the defect;
30. Failure to provide an alternate means of egress;
31. Failure to hire a competent snow and ice removal company; and
32. Failure to warn pedestrians/residents/ invitees, including [Appellant,] of the aforesaid defective conditions of the property.
Complaint, 12/2/19, ¶¶ 3, 7-9, 20 (emphasis added).
Our review discloses that Alam did not live on the Premises, but in New Jersey. N.T. (Deposition of Alam), 7/23/20, at 3. Alam and Mr. Alam purchased the Premises in 2017 as an investment property. Id. at 4. Alam indicated that Appellant moved into the Premises “about a month before I bought the property.” Id. at 5. Alam testified that Mr. Alam was also listed on the deed as the owner of the Premises. Id.
Appellant’s liability claim is expressly premised, in part, on Alam’s ownership of real property. Id. ¶ 3. As in Minner, Alam’s liability for negligence arose from his ownership of the Premises. See Minner, 69 A.2d at 387. Consequently, Appellant’s failure to join the Premises’ co-owner, Mr. Alam, requires dismissal of the action for failure to join an indispensable party. See Moorehead, 445 A.2d at 1310-11 (quoting Minner and stating, “Pa.R.C.P. 2227(a) requires dismissal of an action, brought against only one party, where there exists no timely attempt to join another necessary party as a defendant.”); Enright, 819 A.2d at 557 (same).
Slip op. at 8-11.
The Pennsylvania Supreme Court will consider the following issue:
Whether a tenant in common of real property who does not exercise possession or control thereover is an indispensable party in a premises liability action?
For more information, contact Kevin McKeon or Dennis Whitaker.