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CLIFFORD FAY v. BOHLIN & POWELL (04/12/82)

filed: April 12, 1982.

CLIFFORD FAY, TRUSTEE AD LITEM FOR ORCHARD WEST HOMEOWNERS ASSOCIATION, AN UNINCORPORATED ASSOCIATION, APPELLANT,
v.
BOHLIN & POWELL, A PROFESSIONAL CORPORATION, PETER Q. BOHLIN AND RICHARD E. POWELL, A PARTNERSHIP T/A BOHLIN & POWELL, AND PETER Q. BOHLIN AND RICHARD E. POWELL, INDIVIDUALLY, AND THE TROUP FUND, INC.; VALBETH, INC.; MUSHAL CONSTRUCTION CO., INC.; AND E. W. ROBERTS SON, A BUSINESS ENTITY



NO. 147 PHILADELPHIA, 1981, Appeal from the Order of the Court of Common Pleas of Luzerne County, at No. 3094 of 1978.

COUNSEL

William F. Anzalone, Wilkes-Barre, for appellant.

Arthur Silverblatt and Anthony B. Panaway, Wilkes-Barre, for Bohlin & Powell and Roberts Sons, appellees.

Thomas E. Roberts, Wilkes-Barre, did not file a brief on behalf of Troup Fund, appellee.

Michael A. Shucosky, Wilkes-Barre, for Valbeth, appellee.

Montemuro, Hoffman and Van der Voort, JJ.

Author: Van Der Voort

[ 298 Pa. Super. Page 71]

The Orchard West Homeowners Association (hereafter referred to as Association) is an association acting through a Trustee ad Litem. The Association filed a complaint in assumpsit and trespass, and an amended complaint, against a group of architects; builders; a roofing contractor and the seller seeking damages in the sum of $150,000 for defects in the Association's main roof.

Bohlin and Powell (the architect) and E. W. Roberts Sons (the roofer) filed preliminary objections in the nature of a demurrer and a motion to strike contending that the Association has not established that it is "the real party in interest", as required by Pennsylvania Rules of Civil Procedure, Rule 2002. The lower court sustained the preliminary objections and dismissed the complaint.

Conceding that the Association was correct in instituting litigation in the name of a Trustee ad Litem under Rule 2152, Pennsylvania Rules of Civil Procedure, Judge Toole's opinion held that the Association must establish that it had the right to institute such an action against the appellees. The court then reviewed the pertinent paragraphs of the complaint. Clifford Fay was named Trustee ad Litem. The Association was defined as an unincorporated association composed of various owners of townhouses, condominiums and/or apartments located in Newberry Estate. The action was claimed to have been "brought by virtue of the authority given to the Association pursuant to the Declaration of Covenants." Copies of the instruments by which each member acquired their interests were incorporated by reference. (Amended Complaint, paragraphs 1-4).

The court found "nothing in the Declaration of Covenants which would grant to the Association . . . the right to institute an action in court." (Opinion, p. 13) Judge Toole then concluded that "a mere allegation setting forth the ownership interest of each member of the Association" was insufficient to confer legal standing on the Association to bring suit on behalf of its members. A panel of this court

[ 298 Pa. Super. Page 72]

    recently held in 1000 Grandview Association, Inc., v. Mt. Washington Associates, et al., 290 Pa. Superior Ct. 365, 369, 434 A.2d 796, 798 (1981) on facts similar to the present case, that "an association may have representational standing to assert the rights of its individual members, if it alleges an immediate, direct and substantial injury to any one of them." 1000 Grandview Association established the legal principle applicable to the present case. Paragraph 11 of the amended complaint avers that within one to two years after the Association's members acquired their interests, ...


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