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JEROME MOOREHEAD v. MILTON LOPATIN (05/28/82)

SUPERIOR COURT OF PENNSYLVANIA


filed: May 28, 1982.

JEROME MOOREHEAD, APPELLANT,
v.
MILTON LOPATIN

COUNSEL

William R. Haushalter, Pittsburgh, for appellant.

Alan Frank, Pittsburgh, for appellee.

Hester, Johnson and Popovich, JJ.

Author: Johnson

[ 300 Pa. Super. Page 82]

Plaintiff appeals from the order of the lower court granting summary judgment based upon the failure of the plaintiff to join, as a necessary party defendant, the defendant's wife who held title as tenant by the entireties to the subject real estate. Since we believe that, in an action for personal injuries occasioned by the alleged negligent maintenance of real estate by the owner, the joinder of tenants by the entireties who share ownership in the subject property is compulsory, we affirm.

The facts upon which summary judgment was granted are not in dispute. The complaint alleged that on February 4, 1978, plaintiff sustained personal injuries at premises owned by the defendant, Milton Lopatin, which injuries were caused by the latter's negligence. The complaint was initially filed on January 17, 1980. Six months later, the complaint was reinstated and the individual defendant was served on August 14, 1980.

In his answer and new matter, the defendant averred that the subject real estate had been owned by himself and his wife, as tenants by the entireties, since August 30, 1976, and that a deed showing their joint ownership had been recorded in the county office of the Recorder of Deeds on August 31, 1976. These facts were admitted by the plaintiff in his reply to new matter. At the time of consideration of the defendant's motion for summary judgment, the defendant's wife was not named as a party defendant, there had been no attempt to join the wife as a defendant, and the time in

[ 300 Pa. Super. Page 83]

    which permissive joinder might have occurred had long since passed.*fn1

Rule 2227(a) of the Pennsylvania Rules of Civil Procedure relating to Compulsory Joinder, provides, as follows:

(a) Persons having only a joint interest in the subject matter of an action must be joined on the same side as plaintiffs or defendants.

Whether Rule 2227(a) requires the granting of summary judgment in an action brought against a married person, where there exists no timely attempt to join the spouse in a suit in trespass alleging negligent maintenance of real estate held as tenants by the entireties, does not appear to have been previously decided by our appellate courts. Clear guidance as to the correct result to be achieved may be found, however, in Minner v. Pittsburgh, 363 Pa. 199, 69 A.2d 384 (1949).

In Minner, our supreme court considered the argument brought on appeal by two of three devisees of real estate that a judgment entered on a jury verdict against them should be set aside since the third devisee had not been served with the complaint and had, therefore, not been required to defend the action. Each of the defendant-appellants had received a 1/6 interest in real estate owned by their uncle during his lifetime. The uncle had devised the remaining 2/3 interest to a third nephew who was also named as a party defendant but who had not been served. Then trial judge Michael A. Musmanno, Jr. had entered judgment on the verdict against both the original defendant, the City of Pittsburgh, and the additional defendants, the devisee-property owners. In rejecting the property owners' claim that the non-service of the third property owner resulted in a failure to join an indispensable party, our supreme court declared:

[ 300 Pa. Super. Page 84]

The subject matter of this action is the real estate at 1325 Fifth Avenue in the City of Pittsburgh. We are satisfied that the named defendant and his spouse held only a joint interest in the subject real estate at all times material to this action. Cf. Maloney v. Rodgers, 184 Pa. Super. 342, 350, 135 A.2d 88, 92 (1957); Uzarski v. Union National Bank, 152 Pa. Super. 433, 436, 33 A.2d 459, 461 (1943).

Pa.R.C.P. 2227(a) requires dismissal of an action, brought against only one party where there exists no timely attempt to join another necessary party as a defendant. Minner v. Pittsburgh, supra.*fn3

Where, as here, the plaintiff seeks to proceed against only one person upon a cause of action involving the alleged negligent maintenance of real estate owned by two parties as tenants by the entireties, and where no attempt has been made to amend the complaint to join the spouse within the period allowed by the applicable statute of limitations, we find no difficulty in holding that summary judgment dismissing the complaint is dictated.

The order granting summary judgment is affirmed.


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