Lopez v. Gukenback
| Decision Date | 16 January 1958 |
| Citation | 391 Pa. 359,137 A.2d 771 |
| Parties | Paula LOPEZ, also known as Paula Perez, also known as Paula Carrion, and Pabio Lopez, v. Edward W. GUKENBACK. |
| Court | Pennsylvania Supreme Court |
A. Leon Higginbotham, Jr., William H. Brown, III, Norris, Schmidt, Green, Harris & Higginbotham, Doris M. Harris, Philadelphia, for appellant.
Michael A. Foley, John J. Tinaglia, Philadelphia, for appellee.
Before CHARLES ALVIN JONES, C. J., and BELL, CHIDSEY, MUSMANNO, ARNOLD, BENJAMIN R. JONES and COHEN, JJ.
This is an appeal from the refusal of the court below to take off a judgment of compulsory nonsuit entered in an action for damages for personal injuries.
On this review we adhere to the rule that on an appeal from a refusal to take off a compulsory nonsuit we must view the evidence and all reasonable inferences arising therefrom in the light most favorable to the plaintiffs (appellants): Auel v. White, 389 Pa. 208, 210, 132 A.2d 350; Layman v. Gearhart, 389 Pa. 187, 190, 191, 132 A.2d 228; Seng v. American Stores Co., 384 Pa. 338, 121 A.2d 123; Finnin v. Neubert, 378 Pa. 40, 41, 42, 105 A.2d 77.
In September 1953 appellants leased 1 a two-room--bedroom and kitchen--apartment for themselves and their six children on the second floor of a building owned by appellee. This building--three story in height and located at 1724 Wallace Street, Philadelphia--contained six apartments.
Approximately two months later--November 8, 1953--while in the bedroom, the wife-appellant heard her husband shouting to her from the kitchen: 'rush to the windows, put the windows up, that the children were being overcome with gas * * *' and she rushed to the window, lifted it and the window glass fell on her right hand and wrist inflicting very serious injuries.
At the time appellants leased the apartment this window--one of two bedroom windows--was cracked; there was a one-inch hole in the center of the window glass and two cracks extending the full width of the lower pane, the cracks being in the shape of a cross. The window frame appeared old and the putty very dry. Each week as the husband-appellant paid his rent he told the appellee's agent of the condition of the window and glass; on several occasions the appellee's agent promised to repair the defective condition. The appellants were aware of the window's condition when they rented the apartment and throughout the weeks which followed. During appellants' occupancy of the apartment prior to the accident the window was never opened.
When the court below granted the compulsory nonsuit exceptions were properly and promptly filed. Thereafter the court refused appellants' motion to take off the compulsory nonsuit and this appeal ensued.
Appellants' argument is twofold: (1) that the appellee, by his failure to file an answer to the complaint, admitted possession and control of the window; (2) that, under the facts of the case, appellee was shown to be in possession and control of the window and the court should have submitted that issue to the jury.
Pa.R.C.P. 1045(a), 12 P.S.Appendix, provides as follows:
This rule draws a distinction between averments; it classifies the averments which do and the averments which do not require responsive pleading. The clear import of the rule is that before any responsive pleading is required there must be an averment. Failure to file a responsive pleading does not constitute an admission of an unvoiced charge; a response or answer presupposes a charge or accusation made. Absent an averment of any fact delineated by the rule as requiring a responsive pleading, a failure to respond does not amount to an admission. 2 Did appellants aver that the appellee owned, possessed or controlled the 'property or instrumentality' involved, to wit, the window?
An examination of the Complaint reveals that appellants did aver appellee's ownership of the building; therefore, appellee, by failing to respond to this averment, is deemed to have admitted ownership of the building. However, appellants did not expressly aver either possession or control of the window by appellee. Appellants rely on implications from Paragraph 8 of the Complaint to establish an averment of both possession and control of the window. Paragraph 8 alleges that appellants notified appellee through his named agent of the defective condition of the window, and that the appellee, through the said agent, promised and agreed to make the necessary repairs. From this, appellants argue: 'Inherent in such allegation of agency is the fact that the agent was in control of the window, and, therefore, had the right to make such promise to repair or that the agent was assuming control by the fact to making such offers' and, in the absence of any denial by the appellee that his agent had the authority to be in control of the defective window, control and possession are thus admitted. We acknowledge the ingenuity, but not the soundness of this argument.
Even though the appellee himself, father than his agent, had agreed to repair this window, such an agreement, even if proved, let alone averred, would neither impose upon appellee a tort liability to appellants nor indicate a retention of possession or control of the window by him: Harris v. Lewistown Trust Co., 326 Pa. 145, 147, 148, 149, 191 A. 34, 110 A.L.R. 749. Neither Paragraph 8 nor any other paragraph of the complaint contains any averment that the appellee was in possession or control of the window; therefore, the penalty of a deemed admission of possession or control cannot be imposed upon appellee under Pa.R.C.P. 1045(a). This question, although properly and promptly raised in the court below, must be resolved against appellants.
On the question of the general liability of a landlord to his tenant for injuries received by the tenant on the premises certain legal propositions are well settled: (1) in the absence of any provision in the lease, a landlord is under no obligation to repair the leased premises, to see to it that they are fit for rental or to keep the premises in repair: Levin v. Philadelphia, 277 Pa. 560, 121 A. 331; Wood v. Carson, 257 Pa. 522, 101 A. 811; Levine v. McClenathan, 246 Pa. 374, 92 A. 317, L.R.A.1917B, 235; Bussman v. Ganster, 72 Pa. 285; Smith v. Kravitz, 173 Pa.Super. 11, 93 A.2d 889; Adler v. Sklaroff, 154 Pa.Super. 444, 36 A.2d 231; (2) a tenant takes the premises as he finds them and the landlord is not liable for existing defects of which the tenant knows or can ascertain by a reasonable inspection: Irish v. Rosenbaum Company of Pittsburgh, 348 Pa. 194, 34 A.2d 486; Stein v. Bell Telephone Co., 301 Pa. 107, 151 A. 690; Federal Metal Bed Co. v. Alpha Sign Co., 289 Pa. 175, 137 A. 189; Levin v. Philadelphia, supra; (3) a landlord out of possession, however, may be liable (a) where he conceals a dangerous condition of which he has knowledge and of which the tenant has no knowledge or cannot be expected to discover and (b) where he knows or should know of a dangerous condition and leases the premises for a purpose involving a 'public use' and has reason to believe the tenant will not first correct the condition: Parquet v. Blahunka, 368 Pa. 626, 84 A.2d 187; Doyle v. Atlantic Refining Company, 357 Pa. 92, 98, 53 A.2d 68; Bouy v. Fidelity-Philadelphia Trust Company, 338 Pa. 5, 7, 12 A.2d 7; Hayden v. Second National Bank of Allentown, 331 Pa. 29, 199 A. 218; (4) a landlord of a multiple-tenanted building, reserving control of the common approaches, such as sidewalks, passageways, etc., or parts of the building common to all tenants, such as the roof and walls, is bound to keep such approaches and parts reasonably safe for the use of tenants and their invitees and a landlord becomes liable where he either had actual notice of a defective condition therein or was chargeable with constructive notice, because had he exercised reasonable inspection he would have become aware of it: Bowser v. Artman, 363 Pa. 388, 69 A.2d 836, 12 A.L.R.2d 213; Goodman v. Corn Exchange National Bank and Trust Company, 331 Pa. 587, 200 A. 642; Baldwin v. McEldowney, 324 Pa. 399, 188 A. 154; Lerner v. Bergdoll, 285 Pa. 193, 131 A. 670; Sloan v. Hirsch, 283 Pa.230, 128 A. 831; Williams v. Wolf, 169 Pa.Super. 628, 84 A.2d 215; Adler v. Sklaroff, supra; Germansen v. Egan, 130 Pa.Super. 21, 196 A. 881.
Appellants' counsel, conceding the validity of these legal principles, presents a novel and interesting proposition--one of first impression in this Court. This proposition is that the window in appellants' apartment was a part of the wall of the building, and, therefore, in appellee's control and possession so as to render him liable to the appellants because he knew of the window's defective condition.
Is a window located in a tenant's apartment an inherent and integral part of the wall of the building--a defect in which might affect other tenants and parts of the building--so that control and possession of the window are retained by the landlord rather than the tenant? 3 A window has been defined as 'an opening in the wall of a building for admission of light and air, usually closed by casement or sashes, containing transparent material, as glass, and capable of being opened and shut'; Webster's New International Dictionary (2nd Ed.) (The Merriam-Webster). See also: Benner v. Benner, 119 Me. 79, 109 A. 376, 377; Hale v. Springfield Fire & Marine Insurance C., 45 Mo.App. 508, 510; 2 Bouv. Law Dict., Rawle's Third Revision, p. 3471; American College Dictionary; 97 C.J.S., p. 325. Appellants contend that a window contributes structurally to the support of the building...
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