April 25, 1980
MARION B. MONROE, APPELLANT
PENN RAM MOTOR INN OF HARRISBURG WEST, INC., APPELLEE
No. 528 October Term, 1979, Appeal from the Order of the Court of Common Pleas of Cumberland County, Pennsylvania, entered on February 7, 1979, in 3407 Civil 1976.
Before Hester, J., Montgomery, J. and Cirillo, J.*fn*
Order affirmed on the opinion of the lower court (Honorable Dale F. Shughart, P.J.).
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION -- LAW 3407 Civil 1976 In Trespass
Marion B Monroe, Plaintiff v. Penn Ram Motor Inn of Harriburg West, Inc., Defendant
In Re: Motion To Take Off Compulsory Non-suit Before Shughart, P.J.
Opinion AND ORDER OF COURT
The plaintiff, Marion Monroe, was injured when she fell off of a retaining wall on the premises of Penn Ram Motor Inn, located in Hampden Township, Cumberland County, Pennsylvania, on October 11, 1974. The plaintiff brought suit against the defendant, Penn Ram Motor Inn (hereafter Penn Ram), in trespass alleging that the retaining wall represented an unreasonably dangerous condition allowed to remain in the premises without proper safeguards. It is admitted by the parties that at the time of the fall the premises had been repossessed by Western Savings Fund Society of Philadelphia (hereafter Western) as the mortgagee in possession due to a default on the part of the mortgagor -- Penn Ram Motor Inn. At the trial held on September 25, 1978 there was a substantial question raised by the defendant on the issue of possession and control of the premises at the time of the accident; the court directed the plaintiff to first prove that the defendant was in possession at the time in question. A non-suit was granted to the defendant when the plaintiff's proof failed to show that the defendant was in possession and control at the time of the accident. The plaintiff's motion to take off the non-suit is now before us.
The leading case dealing with the tort liability of a mortgagee in possession and cited by both parties is Zisman v. City of Duquesne, 143 Pa. Superior Ct. 263, 18 A.2d 95 (1941):
The term 'mortgagee in possession' is applied to one who has lawfully acquired actual possession of the premises mortgaged to him, standing upon his rights as mortgagee and not claiming under another title, for the purpose of enforcing his security upon such property or making its income help to pay his debt; but the mere fact that the mortgagee receives the rents and profits does not constitute him a mortgagee in possession, unless he takes the rent in such a way as to take out of the hands of the mortgagor the management and control of the estate.
Id. at 265-266, 18 A.2d at 97 (emphasis added). See also Ignatowicz v. City of Pittsburgh, 375 Pa. 352, 100 A.2d 608 (1953); Miner v. City of Pittsburgh, 363 Pa. 199, 69 A.2d 384 (1949); Guyton v. City of Pittsburgh, 155 Pa. Superior Ct. 76, 38 A.2d 383 (1944).
The plaintiff's evidence in the instant case regarding possession and control of the premises may be summarized as follows:
On or about October 4, 1974, Western took possession of Penn Ram pursuant to a default clause in the mortgage contract between Western and Penn Ram. Alan Nunn was hired by Western to manage the hotel until title could be acquired and the property sold (N.T. 21, 41, 72). Nunn's duties were specified by a management agreement entered into with Western (N.T. 42, 87) and included the takeover of all of the financial matters of the hotel (N.T. 23, 25), the assumption of all management authority (N.T. 21-22, 42, 47, 87), and the general responsibility of protecting Western's interest in the premises (N.T. 50, 91). In addition to these duties, Nunn was also in charge of collecting rents, paying the bills, and inspecting the premises (N.T. 25, 53, 60-61). Nunn maintained an office on the premises (N.T. 82) and resided at the hotel 24 hours a day (N.T. 51). Although the previous manager, William Leeds, was present on the premises during this interim period, he was directly responsible to Nunn and considered him to be the "head man of the property" (N.T. 21). Nunn, in turn was responsible to the bank officers at Western (N.T. 87). None of the previous officers of the defendant had any authority whatsoever with regards to the operation of the hotel subsequent to the take over (N.T. 93-95).
It is abundantly clear from the plaintiff's own evidence as outlined above that Western and not Penn Ram had possession and complete control of the premises at the time of the accident. This being the case, the defendant was not a proper party to the action and thus the entry of the non-suit must be sustained. Zisman v. City of Duquesne, supra. As was stated by the court in Taylor v. humble Oil Refining Company, 225 Pa. Superior Ct. 177, 180, 311 A.2d 324, 325 (1973):
Responsibility for suit against the proper defendant rests upon the plaintiff and the defendant is under no duty to inform plaintiff whom he should sue. A defendant's responsibility extends to his proper defense of the claim...
The defendant attempts to draw an analogy to tort liability in situations involving a vendor-vendee or lessor-lessee relationship, citing Restatement of Torts 2d, §§ 353, 358, and 359. Under certain circumstances these sections would hold a vendorlessor liable to the vendee-lessee or third persons lawfully present on the premises for a dangerous condition existing on the property at the time of the transfer of possession. The defendant argues that the instant situation is analogous in that the defendant knew or should have known that the retaining wall was an unreasonably dangerous condition which existed at the time Western took possession of the premises.
It is clear from the comments to the above sections that the duty of the vendor-lessor to the vendee-lessee and third persons is premises on the consensual contractual relationship between the parties and the correspondent duty to inform the party taking possession of any unsafe conditions which exist at the time of the transfer. In the case at bar, Western took possession as the result of a default of Penn Ram and from that time forward, Penn Ram had no further interest in the property. This immediately distinguishes the facts in the instant case from that of a lessor-lessee relationship dealt with in Sections 358 and 359 because the lessor has a continuing interest in the property though possession is in the lessee. Moreover, the language in § 354 and the comments following indicate that the rules specified in § 353 regarding the duty of a vendor apply only where there has been a voluntary transfer of property. The transfer of the hotel in question to Western was not the product of a voluntary action on the part of the defendant. The defendant had been in default for some period of time prior to October, 1974, causing Western to assert its rights under the default clause in the mortgage. While it is true that the defendant peaceably surrendered possession rather than forcing Western into bringing an action in ejectment, we do not regard this fact as tantamount to a voluntary transfer. Since the mortgage was admittedly in default, it would have been useless for the defendant to have contested the repossession.
We are also persuaded by the fact that the alleged default present in the case at bar was not a "hidden" defect which would have gone unobserved by Western or its agents subsequent to the transfer. In fact, Nunn testified that he inspected the premises every evening before retiring (N.T. 52). There was no testimony that Western or its agents was unaware of the retaining wall and the possible dangers it represented. Thus even if Sections 353 and 358 were found to be applicable, in order for liability to be established it must be determined that the vendee-lessee would not have had reason to know of the condition or the risk involved, which is clearly not the case here.
Lastly, the plaintiff has not cited and our independent research has not indicated any authority which supports the plaintiff's contention that the above Restatement sections should be extended to cover the instant factual situation. There are no cases which hold that the test of management and control set forth in Zisman is not the principle upon which this case should be decided. On this basis we dismiss the plaintiff's motion to take off the non-suit.
Order OF COURT
AND NOW, February 7, 1979, for the reasons stated in the opinion filed this date, the motion to take off the non-suit is dismissed.
*fn* Honorable Vincent A. Cirillo of the Court of Common Pleas of Montgomery County, Pennsylvania is sitting by designation.