*1 Appellant, Lopez, v. Gukenback. *2 November
Arguеd 1957. Before C. 12, J., Jones, Jones Bell, Chidsey, Musmanno, Arnold, Cohen, JJ.
n A. Leon Jr. with him H. Higginbotham, William Doris M. Harris Brown, III, Norris, Schmidt, & Harris for Green, Higginbotham, appellants. John J. with him A. TinagUa, for Foley, Michael appellee.
Opinion by Benjamin Mr. Justice R. Jones, Jan 1958: 16, uary
361 appeal court This is an from the refusal judgment compulsory nonsuit below to take off a injuries. personal damages entered an action for On on an the rule that review we adhere to appeal compulsory from a nоnsuit refusal to take off we must inferences view the evidence and all reasonable arising therefrom in the most favorable to plaintiffs (appellants) 208, : v. 389 Pa. Auel White, Layman 187, 132 A. 2d v. 389 Pa. 210, 350; Gearhart, Seng A. Co., 132 2d v. American Stores 190, 228; 191, 384 Pa. 121 A. Finnin 378 Pa. 2d v. 338, 123; Neubert, A. 77. 2d 40, 41, 42, September appellants
In leased1 a two-room— apartment bedroom and for themselves kitchen— their six children on second floor *3 by appellee. height story owned This —three Philadelphia— and located at 1724 Wallace Street, apartments. contained six
Approximately two months later —November 8, wife-appellant —'while in the heard her the bedroom, shouting husband to her from the kitchen: “rush to put up, the the windows the children windows, being gas are overcome with . . .” and she rushed to glass the lifted it and the window fell on her window, right inflicting injuries. very hand and wrist serious appellants apartment
At the time leased the window—one of two bedroom windows—was cracked; there one-inch hole in center the of the window was.a extending and two cracks full the width pane, being shape the cracks lower the of a cross. appeared putty very dry. The window frame old and the husband-appellant paid Each week as the he his rent appellee’s agent told the of the condition of the window appellee’s agent on several occasions the glass; 1 Ttte lease was an oral lease. The appel- condition. to the defective
promised repair they condition when lants were aware of the window’s the weeks which apartment throughout rented the apart- appellants’ occupancy followed. During was never the accident the window ment prior opened. non- compulsory
When the court below granted There- filed. exceptions properly promptly suit were take off motion to appellants’ after the court refused ensued. and this appeal nonsuit compulsory (1) is twofold: Appellants’ argument com- his an answer to failure to file appellee, by window; and control of the possession admitted plaint, was appellee under the facts of the (2) case, that, of the window to be in and control possession shown issue to the and the court should have submitted that jury. A “(a) 1045(a) provides
Pa. as follows: E.C.P. be shall responsive pleading who fails to file a party identity admit all to the deemed to averments relаting committed, act person whom material owner- person of such or the employment agency or control of instru- ship, property All shall be involved. other averments mentality be denied.” deemed This rule draws a distinction averments; between
. it classifies the averments which do and averments the. *4 clear, which do not require responsive pleading. import of the rule is that before responsive any plead- is required there an ing must averment. Failure be to filе a responsive does pleading not an constitute ad- mission of an unvoiced charge; response or answer a. or presupposes charge an made.. Absent accusation averment of fact delineated any the by rule as requir- a responsive a failure ing pleading, to respond: does not
863 the that aver appellants amount to an admission.2 Did the “property or appellee controlled owned, possessed the -window? involved, wit, to instrumentality” ap- that reveals complaint An examination of the building; the ownership did of aver pellants appellee’s aver- to this respond to therefore, appellee, failing by the of ownership to have admitted deemed ment, aver did expressly not appellants building. However, appellee. window by or control of the possession either of8 Paragraph from Appellants implications on rely both posses- of the to establish averment complaint alleges 8 Paragraph sion control of window. the named his appellee through notified appellants of window, of defective condition the agent the promised the said agent, the appellee, through ap- From repairs. this, necessary to make the agreed agency of in such pellants argue: allegation “Inherent window, was in control is the fact that agent to promise make such right had the to and, therefоre, control repair assuming or that the agent any such in the absence fact offers” making and, agent authority that his had appellee denial defective control window, to be in control We acknowledge thus admitted. possession are of this argument. not the soundness but ingenuity, his rather than himself, though appellee Even such an repair window, agree- had agent, agreed would neither let alone averred, even if proved, ment, appellants nor liаbility a tort impose upon appellee control of the a retention indicate 2 identity, ownership, possession Complaint aver “If the does not cannot, course, be admission of these”: or control there Practice, 289; (b)-1, p. Standard Penna. §1045 Goodrich-Amram Brothers, Superior 102, 105, 106, Lit 174 Pa. Ct. Smith v. 100 A. Co.; Inc., 390; Mazzo v. F. W. Woolworth 2d Pa. . 3 8 SuperiorCt. 242, 252,A. 2d 6 *5 364 by him: Harris v. Co.
window
et ux. Lewistown Trust
et
326 Pa.
A.
Neither
al.,
147,
191
34.
145,
148, 149,
Paragraph
complaint
any
paragraph
8 nor
other
posses-
any
appellee
contains
averment
that the
penalty
of
sion or control
the window;
the
therefore,
of a deemed admission of
or
cannot
control
imposed upon appellee
1045(a).
be
under Pa. R.C.P.
question, although properly
promptly
This
raised
against appellants.
in the court
must be resolved
below,
question
general liability
theOn
of a land-
injuries
lord
his tenant
to
received
tenant
premises
legal propositions
on the
certain
well
are
(1)
provision
settled:
absence
obligation
repair
a landlord is
lease,
under no
to
premises,
they
leased
see
it that
are fit for rental
keep
premises
repair:
or to
v. Phila-
Levin et al.
delphia, 277 Pa.
121 A.
257
560,
331; Wood v. Carson,
Pa.
101 A.
v.
522,
811; Levine
246 Pa.
McClenathan,
A.
92
Bussman
374,
317;
et al. v.
Appellants’ counsel, of these conceding validity a novel and principles, presents legal interesting propo- impression first in sition —one of this Court. This is that the window proposition appellants’ apartment of the wall of the was a part building, and, therefore, and possession control so' as to render him appellee’s because he appellants liable to knew of the window’s condition. defective
Is a window located a tenant’s apartment of the wall of integral inherent the building— in which affect other might a defect tenants and parts 366 bpilding control —so than retained the landlord rather
the window are opening A been defined as “an window has tenant?3 and-air, the wall of a admission usually containing trans- closed casements or sashes parent capable opened glass, being material, Dictionary New International and shut”: Webster’s (2nd Ed.) (The Merriam-Webster). See also: Benner Spring- 377; v. Me. A. 119 109 Hale v. Benner, 79, 376, App. Fire and Marine Insurance Mo. 508, Co., field p. (Rawle’s Dictionary, 2 Bouvier Law 510; 3rd Rev.); College p. Dictionary; 97 American 325. C.J.S., *7 Appellants contend that a struc- window contributes turally support building to the and must be part considered of the wall. The contribution of support, any, building if furnished a window to a slight; infinitesimally is that a windowless wall will support building Appellants and does a is self-evident. point buildings, out that in modern such as Penn the glass extensively is used Plaza, Center on the exterior portions judicial of the structures. We can take recognition of the fact that modern architecture does employ glass por- utilize and on .the walls and exterior day buildings perhaps, glass tions modern and, such is so interwoven into the construction these build- justify ings finding glass part a that the is of, if the wall. dеfinitely not whole, However, 'not proof the instant situation because there is no day building glass this is a modern in which has been Penn utilized as the Center Plaza. What we are dealing regular with in the instant situation is a old- placed building fashioned window—a window in a not building posses a That the waU of remains in the control and multiple-tenancy building recog sion of the owner aof has been Soplo Koplo Mtenff&r, Superior and v. nized: 84 Pa. C3t.358. solely simply support purposes, and. but for aеsthetic or transmitting light a air into for the function upon particular apartment. glass fell The which not wife-appellant’s a window hand came from presence partition. The or from a modern wall nothing building to, contributed of this window in connection with functional use nor had it parts building; apartments not was it other simply opening in the wall to serve but of, apartment. particular make livable this place great Appellants x>. on Germansen reliance multiple- building supra. Egan, In that case the was employer building. tenancy from the leased Plaintiff’s skylight was a which there defendant a workroom injured skylight glass. fell and The made of recovery Superior plaintiff Court sustained a and the upon liability plaintiff. theory Avas expressed by imposed clearly the late President was (p. 23) Judge therefore, Kellbr : “It is established, used of which roof, that the defendant-landlord part, carry away skylight the rain to collect Avas falling four on the rest of her water —the possession, custody story part and control —and general building . . . She benefit of her of it repair improve authority it. It follows had alone *8 responsible any damages naturally for re- that she was negligent sulting maintenance of the roof from her entirely inap- skylight.” case is The Germansen skylight posite. and window both a a Granted that glass, light made of that both are air, admit glass injury breaking cases, caused the both of cracked in both instances was before that the yеt repaired is an there essential the accident, after skylight situations. The the two between difference parcel part integrally as well as roof, light and it was air; the entrance of a medium a instant component of the roof. The functionally part window was a medium for primarily the entry and air into this particular apartment; function, any if served connection any, with the wall was purely incidental. It was the landlord’s to duty keep skylight repair; there was no uрon the landlord duty keep repair: window Meier- (Cf: Rotte v. 78 Ohio App. 70 NE johan, 681). 2d The 387, roof a multiple-tenancy building protects and acts as a common for all ceiling the separate tenements in the it is a building; part the premises which remains in the landlord’s control for the common use of his all tenants: Adler v. supra. Sklaroff,
Neither the Koplo nor case, the Adler supra, case, supra, supports appellants’ position. The case Koplo holds thаt a landlord simply exercises control over the exterior wall a while the Adler case holds a responsible landlord for maintenance of the roof of building. argument that because a is skylight part of a roof a window must be considered part aof wall is sequitur. a non
Appellants cite the Restatement of Torts, §360 further for their authority position. That section pro- vides as “A follows: possessor of who land, leases a part thereof and retains in his own оther part lessee is entitled to use as appurtenant to the part leased to is subject him, to his liability lessee and others lawfully upon the land with the con- sent of the lessee a sub-lessee for harm caused bodily to them aby dangerous condition upon the land retained in the lessor’s if control, the lessor the exercise of reasonable care could have discovered the condition and the unreasonable risk involved there- in and could havе made the condition safe.” There absolutely no evidence to support the invocation of this section of the Restatement.
n In agree entirely court we with the conclusion, analysis below its of this situation: “The window Lopez apartment integral was not such an the wall as to render defend- it under the control of the necessary ant owner. This for the window was not support any part building. of the structure of the occupants It does not serve as a common benefit to all building, may anyone nor other than the tenant, apartment in whose it is use it. The lessees located, complete in the case at bar had control over the window. Only right necessity open, the lessees had the put purpose close or shades on their window. anof apartment give only window to the tenant and particular tenant the benefit of and ventilation. Actually, building the owner of the other occu- pant could not have demanded plaintiffs keep open the window or closed. This window plaintiffs. for the sole use and convenience of the being there no
“Therefore, or control of question by the window he defendant, cannot injuries be held liable in tort for received the wife- plaintiff of its because defective condition.”
Judgment affirmed.
Mr. Justice Cohen dissents. Dissenting Opinion Me. Musmanno : Justice Lopez, On November Mrs. while Paula 8, 1953, apartment, the bedroom of a two-room she oc- cupied her with husband and six heard her children, from husband shout the kitchen: “. . . Bush to the put up, being the children windows, windows are gas.” up overcome with She flew to a threw window, and in the fell from its frame sash, instant, gashed causing severely, eventually her arm her *10 right fingers, and forearm. her hand, to lose the of use disturbing factor been had The fateful window previously, day, From the six weeks some time. Lopez rooms the two her husband had rented Mrs. and had she W. Gukenback, from the Edward defendant, complained the was dеfective: that the window surrounding putty the the sills rotted, was cracked, non-adhering. renting agents dry for the The and repair promised but never to the window, defendant the accident. did—until after brought Lopez an action and her husband Mrs. building they against non- the were the owner of This has affirmed below. Court suited in the Court liability question defendant’s nonsuit. Was the of the question nonliability of circumstances a under the jury or one for the Court the to decide, fact for ? in limine determine plaintiffs building in the lived is a three-
The which multiple story as well structure with tenants, and, proprietor Majority, struc- the of such a the stated keep parts building, the of the ture is. bound to all such as tenants, walls, are common roofs reasonably safe condition. plaintiffs of the de- It is the contention the apartment part formed in their window fective building is since the landlord that, wall Lopez in the he is liable to Mrs. for defects walls, liable injuries she sustained. The defendant for the serious Majority precisely and the contention, refutes this resulting issue as “Is follows: a window states the apartment an inherent and in- in a tenant’s located part tegral of the wall defect which —a parts might building— other tenants and affect so that control window are re- rather than the landlord the tenant?” tained question Majority negative. this answers in the had no decision prior to there been If, today, before question courts on the Pennsylvania appellate us, that, examining Court could if it so say, wished, step the entire is take that subject it satisfied not to in any which would make landlords liable for a defect opening of a that an opening theory on building, is not fundamental portal building’s responsible structure for which the landlord would be if defective. after that a window Or, if, declaring not an it went of the wall integral part building, *11 and said it further overruled the authority case of v. 130 Pa. Superior 21, Germansen Ct. Egan, its it would then be even logic impeccable, though be said that it hаd failed to might recognize changing conditions.*
But overrule the Germcmsen Court does not it explains case. It stands how squarely upon it, differs from this if case. Let us see these two cases can be one from the other or if be- distinguished they Ias under the same roof of landlord lia- long, believe, * instance, Philadelphia Housing Code, approved August For 5, 1954, provides: person occupant occupy “No shall as owner occupancy any dwelling, rooming housе, shall let to for another dwelling unit, rooming comply unit which does not with following sanitary minimum standard for safe and maintenance: Every window, 8.3 exterior door and basement or cellar door and hatchway substantially weathertight, watertight shall be and rodent proof; kept working good and shall he in sound condition and re pair.” course, approved Of this code was after the date of the and, therefore, application accident this case can have no to the litigation. only purpose showing I cite it for the the trend of Multiple Dwelling York, (Sec. 78, the times. The Daw of New Daws, amended, 35-A, Consolidated Annotated Book effective April 22, 1946, provides: “Every multiple dwelling including its every part thereof, upon roof or roofs and and the lot which it situated, kept good repair. shall be The owner be .shall ) responsible compliance provisions for with the of this section. . .” d ). i e (Emphasis suppl plaintiff bility. German- Miss case, in the citеd hung skylight, injured glass over from a was when sen, employer by from the defendant- her a room rented injured her. She sued the owner fell and owner, Egan, building, was verdict which Mrs. obtained a Superior excellently In rea- affirmed our Court. speaking Judge opinion, for soned President Keller, Egan pointed Mrs. out that the defendant Court, panes skylight cracked, knew that one of the skylight, she knew that snow could accumulate over the glass damaged knew would not be and she strong enough Aveight He to bear the of the snoAV. Egan, specifically: de- [Mrs. Aventon “She then fendant] kneAVthat the room under the Avell, plaintiffs employer, she leased to the Avas occupied people work room at work liable injured by skylight, duty be a broken and the rested charge custody on her as the OAvnerin build- of a ing rented to various tenants see instru- that an mentality general used benefit of the reasonably inwas safe and when at- condition, her pane tention Avasdrawn to the cracked in the *12 skylight reasonably diligent she should have been in replacing pane it with a sound before the as accident, immediately negligence, she. was after it. Her in the question jury.” was a circumstances, of fact .for expresses approval This Court of the verdict ob- rejects tained Miss in Germansen her case but Lopez Mrs. Majority claim of in the case bar. at The Lopez the Germansen case from differentiates case by stating supplies that a window sup- no functional port skylight to the wall of a but that a is, muscle and sinew effect, to a roof. But wherein is skylight the structural difference between a á and Viewed sky- window? from above, below, a side, light nothing a window, is and móre. Webster’s In- Dictionary skylight “A ternational window defines a as correctly sky- in a roof.” it can be said that a Thus, light sky- is a roof while a window is a wall window, light. light skylight Both the and the window receive say, sky, from but one that is the sun. source, the skylight inseparable segment If the roof, is an says, emphasizes, as Germcmsen and this how Court part can it be said that a window does not form a part integral wall? A window is as an wall much of a skylight part integral They as the is an of the roof. only skylight differ in that is a horizontal and a window is vertical. Majority Opinion, attempting distinguish says:
the Germcmsen case from the one at “The bar, skylight part integrally parcel was and as roof, light well as a medium for the entrance and it air; functionally component part a of the roof. The in- primarily stant entry window was a medium for the particular apartment; any and air into this func- any, if tion, served connection with the wall was purely really incidental.” But can it be said that the skylight, serving function of a as of the roof, any supporting less incidental than a window they indispensable wall? pieces Are not both of mo- respective pictures? saic in their they equally strong Are equally not as weak? skylight support Will a any the kick a foot more than a window can withstand the thrust of a fist? Will skylight anсient, battered, cracked be safer than an ancient, battered, cracked window? Will skylight push broken sustain the vibration pressure any more than a broken window? In only Germcmsencase the fell because of the snow had descended on it. No one struck no one it, *13 pushed kicked skylight one it. it, The . gave . no. way glass because.the in.it-was cracked.- window here. Where in it was cracked. because the way gave two cases? between the is the difference something make of a window If can the Majority a cannot make of skylight of a it wall, less than on roof. lamp more than something medium remains only as a window long And so to look through aperture and air and I and see cannot look it through world, at outside If that. Germansen more than anything in a skylight less than in this case is something decision is right, Germansen is wrong. decision right, If this right. I has to be a would ceased consistency jewel, While of the law escutcheon the shining- see on the still like to decisions which involve between uniformity gem jurisprudence. principle same Company, Appellant, v. Stockard Canal Panama Company, Appellant. &