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 ...