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KOTWASINSKI ET AL. v. RASNER (ET AL. (11/11/69)

decided: November 11, 1969.

KOTWASINSKI ET AL., APPELLANTS,
v.
RASNER (ET AL., APPELLANT)



Appeals from judgment of Court of Common Pleas No. 8 of Philadelphia County, June T., 1964, No. 6401, in case of Sophia G. Kotwasinski et al. v. Phyllis Rasner et al.

COUNSEL

Richard D. Solo, with him Solo, Abrams, Bergman, Trommer & Padova, for plaintiffs, appellants.

Richard J. Gordon, with him Dilworth, Paxson, Kalish, Kohn and Levy, for defendant-tenant, appellant.

Gerald Gornish, with him Goodis, Greenfield, Narin & Mann, for agent, appellee.

Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Roberts dissents for the reasons set forth in his dissenting opinion in Employers L. A. C. v. Greenville B. Men's A., Author: O'brien

[ 436 Pa. Page 34]

Sophia G. Kotwasinski, McErlane Knitting Mills, Inc., Samuel Steinberg and Normandie Yarn Mills, Inc. are all commercial tenants in a loft building owned by Phyllis Rasner and Mildred Gutman, which building is managed by Lanard & Axilbund, Inc. as agents for the owners. On January 15, 1964, Kotwasinski, McErlane and Steinberg occupied, separately, the first four floors of the building, while Normandie occupied the fifth floor. On that date, a sprinkler pipe in the ceiling of Normandie's premises froze and burst, thereby releasing a torrent of water which did considerable physical damage to the property of the tenants on the floors below. Kotwasinski, McErlane and Steinberg brought suit against Rasner and Gutman, the owners, Lanard

[ 436 Pa. Page 35]

& Axilbund, their agent, and, subsequently by amendment to the complaint, Normandie, the occupant of the fifth floor. The suit alleged negligence against the defendants in failing to replace broken windows, in removing heating units and otherwise allowing conditions to exist which caused the freezing of the sprinkler pipe.

Upon completion of the pleadings, Lanard & Axilbund moved for summary judgment in accordance with Rule 1035, Pa. Rules of Civil Procedure. Its motion was based upon two clauses in the leases of the plaintiffs which purportedly exculpated the agent from any liability. The court below granted summary judgment in favor of Lanard & Axilbund and the plaintiffs appealed. Defendant Normandie also appealed on the theory that it was being deprived of its right to contribution from Lanard & Axilbund in the event of a judgment against it.

Before reaching the merits of these appeals, we must dispose of a question relating to our jurisdiction. The amounts in controversy with respect to Kotwasinski and McErlane are each in excess of $10,000.00 and have been so certified by the court below. No such certification exists relative to Steinberg's appeal, however, for the very good reason that his claim is for $5,422.50, an amount below the jurisdictional limit for appeals to this Court in this class of cases. Appellee has not filed a motion to quash Steinberg's appeal but has raised the question in its brief. We conclude that inasmuch as the claims of two of the appellants are sufficient to confer jurisdiction and the questions as to all of the plaintiffs' appeals are essentially identical and their interests inseparable, we shall retain jurisdiction over all of the appeals. It would defy reason to decide the appeals of Kotwasinski and McErlane while remitting Steinberg's appeal to the Superior Court, since that

[ 436 Pa. Page 36]

    court would, in any event, be bound by our decision in the appeals which we retained. See 4 C.J.S. Appeal & Error ยง 76 i; Craig v. Williams, 90 Va. 500, 18 S.E. 899 (1894).

The question on the merits involves the effect of two clauses contained in the plaintiffs' leases on the possible liability of Lanard & Axilbund, who managed the building for its owners. The paragraphs in question are identified as Paragraphs 11 ...


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