are a part of the same structure and in fact constitute but one building, all of which is owned by Sherbondy. The lack of a connecting entrance or a common doorway does not in itself defeat the existence of a unitary structure. Nor does the naked factual averment create a genuine, disputed issue of material fact in this case. To merit denial of a motion for summary judgment, where one is otherwise proper, the facts must be genuinely in dispute; frivolous factual averments will not defeat the motion.
The lease agreement between Schade and the Post Office describes the premises as a "one story masonry building." Also, the owner's affidavit indicates that the office he maintained is situated in the same building as the Post Office. Sherbondy purchased only one building from Schade. On balance, it is clear and unmistakable that the Sherbondy premises is only one building, notwithstanding the absence of a common entrance or passage-way. Since there exist no genuine, disputed issue of material fact, the motions for summary judgment are ripe for disposition.
This suit was brought against the United States under the Federal Torts Claim Act (FTCA), 28 U.S.C. § 1346 (b) (1976). Since the alleged tort occurred in the Commonwealth of Pennsylvania, that state's law is applicable under the FTCA. See Fisher v. United States, 441 F.2d 1288, 1289 (3d Cir. 1971).
Under Pennsylvania law, liability of the owner to third-party business invitees turns on whether the owner retains control of a portion of the leased premises. In instances where the owner has leased the entire premises and has relinquished complete possession and control to the tenant, Pennsylvania Courts have uniformly held that the tenant, not the owner, is liable for injuries sustained by third parties. Harris v. Lewistown Trust Co., 326 Pa. 145, 191 A. 34 (1937); Dinio v. Goshorn, 437 Pa. 224, 270 A.2d 203 (1969). On the other hand, if the owner leases out only a portion of the entire premises and retains possession or control of a part thereof, the owner is liable for injuries sustained by third parties. See Pratt v. Scott Enterprises, Inc., 421 Pa. 46, 50, 218 A.2d 795, 797 (1966), citing, Germansen v. Egan, 130 Pa. Super. 21, 25, 196 A. 881, 883 (1938). See also Leary v. Lawrence Sales Corp., 442 Pa. 389, 275 A.2d 32 (1971), citing, Williams v. Wolf, 169 Pa. Super. 628, 84 A.2d 215 (1951).
The undisputed facts in this case clearly indicates that from 1974 until 1977, the United States shared the premises in question with Sherbondy as co-tenants. When Sherbondy purchased the premises in 1977, he continued to occupy the lower level of the building. The mere fact that Sherbondy and the Post Office enjoyed a separate entrance is not dispositive of the liability issue. As noted by the state court in Leary, "the issue of liability between landlord and tenant is to be resolved by answering the interrogatory: Who had control of these premises?" Leary, 482 Pa. at 393. The answer in this case is Sherbondy.
The lessor and the lessee both considered the maintenance of the sidewalk abutting the building to be the responsibility of Sherbondy. The lease agreement provides that it is the owner's responsibility to keep the premises in good repair and in tenable condition. This indicia of control, coupled with the owner's actual possession of a portion of the premises, leads to the unescapable conclusion that on the undisputed facts of this case Sherbondy retained sufficient control over the premises to absolve the tenant of liability for injuries to third parties. Because Sherbondy retained control of the premises, the United States, as a tenant in partial possession, is not liable for the injuries sustained by third parties on areas adjacent the building that Sherbondy controlled. Accordingly, the United States is entitled to judgment as a matter of law. The government's Motion for Summary Judgment is granted.
The third-party defendant has also moved for summary judgment. The United States filed a third-party complaint against Sherbondy, the owner, claiming that Sherbondy was liable to the United States for indemnity and contribution for the damages sought by Hanko.
Formally under Fed. R. Civ. P. 14 the defendant could implead a third-party on the theory that the third-party defendant might be solely or jointly liable to the plaintiff. Presently, under Rule 14(a), a defendant can no longer implead a third-party defendant on the ground that the third-party defendant may be liable to the plaintiff. Consequently, the third-party defendant is liable for indemnity or contribution to the original defendant only if the original defendant is liable to the plaintiff, and liable to the plaintiff only if the plaintiff amends his complaint to state a joint claim against the two parties. See 3 Moore's Federal Practice para. 14.11, at 14-67 (2d ed. 1983).
In this case the plaintiff's amended complaint against the third-party defendant was barred by the statute of limitation and his motion to file the same was denied. As a result, the third-party defendant is only bound by the adjudication of the claim against the original defendant. Where, as in this case, the original defendant has asserted no independent claim on his own behalf against the third-party defendant and the plaintiff cannot amend his complaint to state a claim against the third-party defendant, the third-party defendant is entitled to be dismissed from the case. See 3 Moore's Federal Practice para. 14.15, at 14.18 (2d ed. 1983).
For these reasons, this Court holds as a matter of law, that a finding of liability against the United States must precede a claim of entitlement to indemnity or contribution from the third-party defendant. Since a finding of liability against the United States is foreclosed by virtue of the grant of summary judgment in its favor, the third-party defendant cannot be held liable for contribution or indemnity. Accordingly, Sherbondy's Motion for Summary Judgment is granted.
AND NOW, to wit, this 30th day of March, 1984, after hearing, argument, consideration of the briefs and for the reasons set forth in the accompanying opinion, IT IS ORDERED, ADJUDGED and DECREED that the United States' Motion for Summary Judgment be and the same is hereby GRANTED;
It is further ORDERED, ADJUDGED and DECREED that the Motion for Summary Judgment of John H. Sherbondy and Mary M. Sherbondy be and the same is hereby GRANTED, and the above captioned case is dismissed with prejudice.
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