Duane Lowshaw Jr. v. James Miller and Chocolate Town Associates No. 2016-01010

Civil Action-Law-Real Property-Landlord Tenant-Negligence-Slip and Fall-Snow-Ice-Motion for Summary Judgment-Failure to Join Indispensable Party-Entireties Property

Plaintiff entered into a residential lease agreement with Defendant James E. Miller (“Miller”) to rent an apartment owned by Miller and another individual. Plaintiff filed a Complaint in Negligence for injuries sustained after he slipped and fell on snow and ice on the driveway of the apartment against Miller and Defendant Chocolate Town Associates, LLC, as the party contracted for snow removal and maintenance at the property. Miller filed a Motion for Summary Judgment seeking dismissal of the Complaint for failure to join his Wife who is a co-owner of the property as an indispensable party.

1. Summary judgment is appropriate in cases where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.
2. On a motion for summary judgment, the nonmoving party must adduce sufficient evidence on an issue essential to his or her cause and upon which he or she bears the burden of proof such that a jury could return a verdict in his or her favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
3. A landlord owes a duty to protect a tenant from injury or loss arising out of negligent failure to maintain rental property in a safe condition.
4. Pa.R.C.P. Rule 2227 provides that persons having only a joint interest in the subject matter of an action must be joined on the same side as plaintiffs or defendants.
5. Moorehead v. Lopatin, 445 A.2d 1308 (Pa.Super. 1982), stands for the proposition that when a plaintiff seeks to proceed against one (1) person upon a cause of action involving the alleged negligent maintenance of real estate owned by two (2) parties as tenants by the entireties and no attempt has been made to amend the complaint to join the spouse with the period allowed by the applicable statute of limitations, summary judgment dismissing the complaint is appropriate.
6. In Gaynor v. Gyuris, 707 A.2d 537 (Pa.Super. 1998), the Pennsylvania Superior Court clarified that where liability is sought against an entireties owner solely based upon his or her role as a landlord, not based upon his or her ownership of the property, the plaintiff is not required to name both entireties owners as defendants, as liability is sought against one (1) entireties owner based solely upon his or her role as a landlord.
7. Since the pleadings and discovery materials establish that the duty of care alleged is based upon the parties’ relationship as landlord and tenant and not upon Miller’s ownership of the property, summary judgment as to Plaintiff’s claims against Miller with regard to performance of his duties as a landlord is not permissible.
8. To the extent that Plaintiff alleges liability against Miller in his role as owner of the property, summary judgment is warranted for failure to name Miller’s wife as an indispensable party.
L.C.C.C.P. No. 2016-01010, Opinion by Samuel A. Kline, Judge, April 26, 2018.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA
CIVIL DIVISION No. 2016-01010

DUANE LOSHAW, JR., Plaintiff,
v.
JAMES E. MILLER and CHOCOLATE TOWN ASSOCIATES, LLC, Defendant

ORDER
AND NOW, to wit, this 26th day of April, 2018, upon careful consideration of Defendant, James E. Miller’s Motion for Summary Judgment and the parties’ briefs in support of their respective positions, the motion is hereby GRANTED in part and DENIED in part.

BY THE COURT

SAMUEL A. KLINE, J.
APPEARANCES:
Michael R. Kelley, Esq. for Plaintiff
Timothy J. Huber, Esq. for Defendant

OPINION, KLINE, J., APRIL 26, 2018
Before the court is Defendant, James E. Miller’s Motion for Summary Judgment. For the reasons set forth herein, the motion is granted in part and denied in part, as specified below.
FACTS AND PROCEDURAL HISTORY
On August 20, 2014, Loshaw had entered into a lease agreement (“the Lease Agreement”) with Defendant, James Miller (“Miller”) to rent Apartment #2 at the Premises. The Lease indicates that the agreement is between Miller, as lessor, and Loshaw and another individual, as lessees. Miller, Loshaw and the other lessee were the only parties to sign the Lease Agreement. On March 7, 2015, at approximately 1:00 a.m., Plaintiff, Duane Loshaw, Jr. (“Loshaw”) alleges that he was taking his trash to the dumpster from his apartment at 305 South White Oak Street, Annville Pa. (“the Premises”), when he slipped and fell on ice on the driveway in front of the dumpster. Loshaw broke his right wrist.
On July 1, 2016, Loshaw filed a Complaint alleging that the area around the dumpster had not been properly cleared of snow, that the lighting near the dumpster was not properly maintained and that the area leading up to and around the dumpster was not salted to prevent icy and dangerous conditions. Mr. Loshaw’s Complaint set forth two counts of negligence – one against Mr. Miller as owner and landlord of the Premises and one against Chocolate Town Associates, LLC (“Chocolate Town”) as the party contracted to maintain the Premises during times of snow.
On August 8, 2016, Chocolate Town filed its Answer with New Matter and Crossclaim against Miller. On August 12, 2016, Loshaw filed an Answer to Chocolate Town’s New Matter. Miller then filed an Answer and Crossclaim, as well as a reply to Chocolate Town’s Crossclaim on August 16 and August 18, 2016, respectively. In his Answer, Miller admitted his role as owner, but further indicated that his wife, Beverly (“Wife”), was a co-owner of the Premises. No amended complaint was filed.
On November 9, 2017, Miller filed a Motion for Summary Judgment seeking that the matter be dismissed for Loshaw’s failure to join an indispensable party, namely, Wife. The matter was listed for the December Term of Argument Court. Miller filed his brief with the motion. Loshaw filed his brief on December 15, 2017. The matter is thus before this court and ripe for disposition.
DISCUSSION
Motions for summary judgment are governed by Pa.R.C.P. 1035.2, which provides:
After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.
“Summary judgment is appropriate in cases where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Lance v. Wyeth, 85 A.3d 434, 449 (Pa. 2014). “The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Moreover, the burden is on the moving party to prove that no genuine issue of material fact exists.” Long v. Yingling, 700 A.2d 508, 512 (Pa.Super. 1997) (citations omitted).
“[T]he court may grant summary judgment only where the right to such a judgment is clear and free from doubt.” Toy v. Metropolitan Life Ins. Co., 928 A.2d 186, 195 (Pa. 2007). The purpose of summary judgment is to avoid unnecessary trials and to eliminate the waste of time and resources of both litigants where a trial would be a useless formality. Curran v. Children’s Service Center of Wyoming County, Inc., 578 A.2d 8 (Pa.Super. 1990).
On a motion for summary judgment, the non-moving party must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor; failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ario v. Ingram Micro, Inc., 965 A.2d 1194, 1207, footnote 15 (Pa. 2009). Where a motion for summary judgment is supported by depositions and admissions of record, the opposing party cannot dispute the facts by merely relying on his pleadings or making bald, unsupported allegations in a brief. Tarantino v. P.H. Glatfelter Co., 2 Pa. D. & C. 4th 198 (C.P. York 1989). Furthermore, our Superior Court has stated:
While appellants are not required to present their entire case in opposing a motion for summary judgment, they cannot rest upon mere allegations in the pleadings but must present depositions, affidavits, or other acceptable documents which show there is a genuine issue of material fact to submit to the factfinder and the moving party is not entitled to judgment as a matter of law. Bold unsupported assertions of conclusory accusations cannot create genuine issues of material fact.
Brecher v. Cutler, 578 A.2d 481, 483 (Pa.Super. 1990).
Pa.R.C.P. 2227 provides that “[p]ersons having only a joint interest in the subject matter of an action must be joined on the same side as plaintiffs or defendants.” In Moorehead v. Lopatin, 445 A.2d 1308 (Pa.Super. 1982), the Superior Court held that in an action for personal injuries caused by “the alleged negligent maintenance of real estate owned by two parties as tenants by the entireties, and where no attempt has been made to amend the complaint to join the spouse within the period allowed by the applicable statute of limitations, [the Court found] no difficulty in holding that summary judgment dismissing the complaint is dictated.” Id. at 1310. Two decades later, the Superior Court, in Enright v. Kirkendall, 819 A.2d 555 (Pa.Super. 2003), reaffirmed the Moorehead decision. However, the Enright Court distinguished the case before it with that in Gaynor v. Gyuris, 707 A.2d 537 (Pa.Super. 1998), in which the Superior Court reversed the lower court’s dismissal of complaint for failure to join an indispensable party. The Enright Court noted that the plaintiff in Enright sought recovery against the defendant solely as an owner whereas the plaintiff in Gaynor sought recovery against the defendant as an occupant, even though defendant was also an owner. Therefore, we interpret from these decision that Moorehead is applicable only where a plaintiff has brought suit against a defendant qua owner, without naming the other co-owner(s) as parties thereto, and is not applicable where the plaintiff brings suit against defendant in some other capacity, even though defendant may be a co-owner of the property.
Miller argues that Loshaw’s claim should be dismissed because he failed to join an indispensable party. Miller contends that Loshaw’s negligence claims are based solely on Miller’s duty, as owner of the Premises, to maintain it in a reasonably safe condition. In March of 2005, Miller, along with Wife, Wife, purchased the Premises and the deed dated April 1, 2005, names both Miller and his wife as tenants in the entireties. Therefore, Miller alleges that Loshaw has failed to join Wife as an indispensable party.
Miller cites to the decision of the Court of Common Pleas of Schuylkill County in Barry, et al. v. McGinley, No. 675-98 (C.P. Schuylkill November 19, 2002) as persuasive on this matter. In Barry, the Plaintiffs were tenants in a building that was destroyed by a fire. The Defendant was an owner of the property, but Plaintiffs sued Defendant as landlord and alleged that they suffered damages due to defendant’s negligence in failing to maintain and inspect the wiring in the building. Defendant, in a second filed motion for summary judgment, argued that the duties upon which plaintiffs based their action, arose from Defendant’s status as an owner, and that Plaintiffs had failed to join an indispensable party, as Defendant’s wife was a co-owner of the property. The court denied Defendant’s motion, but provided the Plaintiffs thirty days within which to provide evidence that Defendant’s status as owner was different than his wife’s, and if not, Defendant would be permitted to file a motion to dismiss for lack of jurisdiction. In its decision on the motion for summary judgment, the court noted that where Defendant’s and wife’s connection, interest and rights in the real property were identical, then the cause of action is based solely on Defendant’s status as owner of the real property and the action should be dismissed for failure to join an indispensable party. Defendant filed a motion to dismiss, attaching the deposition of Defendant’s wife. The court, in granting Defendant’s motion to dismiss, noted that “[w]hen negligence is based on duties arising from something other than ownership, and the property is owned by husband and wife as tenants in the entireties, the suit may be filed against only the party alleged to have breached the duty and the other party (co-owner) is not an indispensable party.” Id. at 5. The court also noted that in her deposition, defendant’s wife testified that she visited the property, though infrequently, and she signed the lease made with plaintiffs and wrote checks pertaining to the property. Id. at 6.
Loshaw argues that Wife is not an indispensable party to the action herein because she is not a named landlord, she was not involved in the maintenance of the Premises, she owed no duty of care to Loshaw and she is not a named insured under the insurance policy applicable to the claim (“the Policy”), therefore negating her liability for payment of any damages. 1 Since Wife is not an indispensable party, the matter should be decided on its merits and not dismissed due to an alleged technicality.
Loshaw asserts that the legal relationship and duty of care between Loshaw and Miller are established by the Lease Agreement. He contends that he is suing Miller as a tenant against the landlord. Therefore, since Wife did not sign the Lease Agreement, she cannot be held to the obligations established thereunder.
Loshaw next asserts that Wife’s non-involvement in the landlord-tenant relationship between Miller and Loshaw is further evidenced through the depositions in this matter. Loshaw mentions that both he and the co-tenant at the Premises never dealt with Wife on any issue regarding the Premises. Loshaw then cites to deposition of Chocolate Town, Richard Sharetzsky, in which Mr. Sharetzsky, while testifying that he dealt frequently regarding the snow removal agreement with Miller, fails to mention any dealings with Wife in regards to snow removal at the Premises.
Loshaw finally refers to the Policy, which lists only Miller as an insured without any reference to Wife as an owner or in any other capacity. The fact that Miller is the only named insured would evince that Wife was not involved in the capacity of landlord and that Miller took on the full responsibility of that role. Loshaw asserts that the Policy provides sufficient coverage for the damages in this case and that Wife has no exposure against her interest.
Loshaw discusses the framework set forth in Mechanicsburg Area School Dist. v. Kline, 431 A.2d 953 (Pa. 1981), wherein the Supreme Court declared the following factors to be considered in determining whether a party is indispensable:
1. Do absent parties have a right or interest related to the claim?
2. If so, what is the nature of that right or interest?
3. Is that right or interest essential to the merits of the issue?
4. Can justice be afforded without violating the due process rights of absent parties?
Id. at 956. Loshaw maintains that while the first two factors could be satisfied through the assertion of Wife’s rights as a joint owner, factors three and four are not satisfied. Loshaw contends that Wife’s rights or interest in the Premises is not essential to the merits of the issue because the matter sub judice is in regards to Miller’s duties as a landlord and not as an owner. Loshaw continues that factor four is not satisfied because Wife is not a named insured on the Policy and her interest in the Premises will not be violated as a result of the matter because of the available insurance coverage.
We agree that Moorhead stands for the proposition that when a “plaintiff seeks to proceed against only one person upon a cause of action involving the alleged negligent maintenance of real estate owned by two parties as tenants by the entireties, and where no attempt has been made to amend the complaint to join the spouse within the period allowed by the applicable statute of limitations, we find no difficulty in holding that summary judgment dismissing the complaint.” Moorehead, 445 A.2d at 1311. However, the Superior Court in Gaynor clarified the ruling holding that “Moorehead stands for the rule that where liability is sought against a person solely because of ownership of the property, the entireties owners must be named.” Gaynor 707 A.2d at 536. This distinction is important in the matter sub judice as Loshaw named Miller as both an owner and landlord.
In our examination the pleadings and allegations therein, it is apparent that Loshaw’s claims stem primarily from Miller’s role as a landlord and are not necessarily tied to his ownership of the Premises. Paragraph 6 of the Complaint specifically states that “Miller, as a landlord, rents portions of the Premises out to tenants,” and at Paragraph 7 asserts that “[o]n or about August 20, 2014, [ ] Miller and [ ] Loshaw entered into a lease agreement whereby [ ] Loshaw rented Apartment # 2 of the Premises.” We interpret from Loshaw’s Complaint that the duty of care is established through the parties’ relationship as landlord and tenant and is not necessarily rooted in Miller’s ownership of the Premises. This matter is distinct from one in which an individual is injured upon traversing an owner’s property and then brings suit against the property owner for such injuries. To the extent that Loshaw named Miller as an owner, and any claims based thereon, Miller’s motion is granted and such is dismissed for failure to name Wife as an indispensable party.
Nevertheless, it is well settled in Pennsylvania law that a landlord owes a duty to protect tenants from injury or loss arising out of a negligent failure to maintain a rental property in a safe condition. Echeverria v. Holley, 142 A.3d 29, 34 (Pa.Super. 2016), reargument denied (Aug. 15, 2016), appeal denied, 169 A.3d 17 (Pa. 2017), and appeal denied, 169 A.3d 18 (Pa. 2017). Furthermore, “[a] tenant seeking to recover damages stemming from the condition of a rental property may pursue claims sounding in ordinary negligence or a breach of the implied warranty of habitability.” Id. at 34. Miller is the only individual listed as the lessor on the Lease Agreement and is the only listed insured on the Policy. Additionally, Loshaw and his co-tenant testified that they only dealt with Miller in regards to the Premises and Mr. Sharetzsky testified likewise regarding the agreement for snow removal at the Premises. There is no indication that Wife participated as a landlord or that she assumed the responsibilities thereof. Consequently, to the extent that Loshaw action is against Miller in his capacity as landlord, the motion is denied.
Accordingly, Miller’s motion is granted in part and denied in part. We will enter an order consistent with the foregoing.

1 Attached as Exhibit D to his Brief in Opposition, Loshaw included the declarations page for a commercial insurance policy covering the Premises and includes only Miller as the named insured.