The opinion
J-A13012-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BEAUMONT CONDOMINIUM IN THE SUPERIOR COURT OF
ASSOCIATION, PENNSYLVANIA
Appellee
v.
JEFFREY M. BROWN ASSOCIATES, INC.,
CARSON CONCRETE CORP., BEAUMONT
CORP., MONTIVUE CONSTRUCTION AND
PENNONI ASSOC., INC.
APPEAL OF: JEFFREY M. BROWN
ASSOCIATES, INC.
No. 2177 EDA 2016
Appeal from the Judgment Entered September 9, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 1896, January Term, 2014
______________________________________________________
JEFFREY M. BROWN ASSOCIATES, INC., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
CARSON CONCRETE CORPORATION,
Appellee
No. 2181 EDA 2016
Appeal from the Order Entered June 7, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 02440, December Term, 2013
J-A13012-17
BEFORE: LAZARUS, OTT, and FITZGERALD,* JJ.
CONCURRING AND DISSENTING MEMORANDUM BY FITZGERALD, J.:
FILED NOVEMBER 03, 2017
I agree with the majority on all grounds except one. In my view, the
Beaumont Condominiums Assocation (“Association”) had a valid cause of
action against Jeffrey M. Brown Associates, Inc. (“JMB”) for implied warranty
of habitability to the extent that the incident in question damaged the
common elements of the condominium. Therefore, JMB has a right to seek
indemnification from Carson Concrete Corporation (“Carson”) for the amount
of settlement proceeds that JMB paid the Association for damage caused to
the common elements.
As the majority recounts, around New Year’s Day 2013, a post-
tensioned cable in the Beaumont Condominiums complex lost its tension and
ripped out of the concrete floor of a tenth floor unit, damaging the unit and
common areas and compromising the building’s structural integrity. The
Association imposed a special assessment on its members to pay for repairs
caused by this incident. R.R. 64a (testimony of David Fineman). The
Association sued, inter alia, JMB, Carson and Pennoni Associates
(“Pennoni”); one of the Association’s claims against JMB was for breach of
the implied warranty of habitability. JMB in turn asserted a cross-claim
* Former Justice specially assigned to the Superior Court.
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against Carson for, inter alia, contractual indemnification. JMB and Pennoni
subsequently settled with the Association for $140,000.00.1
JMB continued to pursue its claims against Carson. Following trial, the
court held that the Association lacked a valid cause of action against JMB for
breach of the implied warranty of habitability, because only unit owners
possess this right of action. Trial Ct. Op., 9/12/16, at 19 (only “first
purchasers” have implied warranty of habitability claim, because this claim is
“rooted in the existence of a contract—an agreement of sale—between the
builder-vendor of a residence and the purchaser-resident”) (citation
omitted). Thus, the court held that JMB had no right of indemnification
against Carson.
The Pennsylvania Uniform Condominium Act (“PUCA”), 68 Pa.C.S. §§
3101-3414, became effective in 1980. Pennsylvania courts have not
expressly addressed whether the PUCA provides condominium associations
(as opposed to condominium unit owners) with an implied warranty of
habitability in common areas.2 I conclude, however, that such a right exists
under the PUCA, because it expressly authorizes a condominium association
to “[i]nstitute, defend or intervene in litigation . . . in its own name or on
1 JMB paid $103,001.00, and Pennoni paid $36,599.00.
2 In 1000 Grandview Avenue Ass’n v. Mt. Washington Assoc., 434 A.2d
796 (Pa. Super. 1981), we held that condominium associations had standing
to assert warranty claims under the PUCA’s predecessor statute, the Unit
Property Act, 68 P.S. § 700.101 et seq. We expressly noted, however, that
the PUCA did not apply to that case. Id. at 798.
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behalf of itself or two or more unit owners on matters affecting the
condominium” and “[r]egulate the use, maintenance, repair, replacement
and modification of common elements.” 68 P.S. §§ 3302(a)(4), 3302(a)(6).
The defect here appears to have occurred within a “common element,” as
that term is defined under the PUCA. See 68 P.S. § 3103 (defining
“common elements” as “all portions of a condominium other than the
units”). I agree with JMB that “[i]t is . . . both logical and efficient to allow a
condominium association—vested by statute with the power to institute
litigation on matters affecting the common elements of a condominium—to
assert a right of action for breach of the implied warranty of habitability in
those common elements.” Appellant’s Brief at 22.
Courts in other jurisdictions have held under similar circumstances
that condominium associations possess a cause of action for breach of the
implied warranty of habitability. In Windham at Carmel Mountain Ranch
Ass‘n v. Superior Court, 109 Cal. App. 4th 1162 (Cal. Ct. App. 2003), a
condominium association brought an action against a builder for breach of
the implied warranty of habitability arising from construction defects in
common areas. Id. at 1166. The defendant argued that the condominium
association lacked the requisite privity of contract to maintain a cause of
action for breach of the implied warranty of habitability. Id. at 1167. Like
Pennsylvania, California statutory law explicitly authorized condominium
associations to institute litigation in matters pertaining to damage to
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common areas. Id. at 1171 (citing California Code Civ. Proc. § 383). The
Windham court held that
[b]ecause [the statute] grants an association standing to
sue as a real party in interest for damage to a common
interest development’s common areas, we conclude the
plain meaning of [the statute’s] language provides [the]
Association with the requisite privity for maintaining a
cause of action for breach of implied warranty for alleged
damage to the common areas within the Project.
Id. at 1172 (emphasis in original; citation omitted). Windham reasoned:
[I]t would be a waste of resources of the courts and
litigants if each individual owner were required to join in an
action for damage to common areas arising out of an
alleged breach of implied warranty. Because associations
generally are required to manage, maintain and repair a
project’s common areas, it would be illogical to deprive
associations of the ability to sue to recover for damage to
common areas they are obligated to repair. Because
individual owners generally do not have the right to repair
common areas, it would be inefficient to require or allow
only those owners, rather than their association, to sue for
breach of implied warranty to recover for damages to
common areas.
Id. at 1173-74 (citations omitted).
The Florida Supreme Court reached a similar conclusion in Charley
Toppino & Sons, Inc. v. Seawatch at Marathon Condominium Ass’n,
Inc., 658 So.2d 922 (Fl. 1994). A Florida statute provided that a
condominium association “may institute, maintain, settle or appeal actions
or hearings in its name on behalf of all unit owners concerning matters of
common interest . . . including, but not limited to, the common elements.”
West’s F.S.A. § 718.111(3). The Florida Supreme Court held that the
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statutory authority to institute litigation in matters affecting common areas
gives condominium associations a right of action for breach of the implied
warranty of habitability:
[The statute’s] grant of power to associations to sue on
behalf of unit owners is plainly and broadly worded and we
see no reason to give this provision a cramped reading.
Accordingly, we conclude that under the express provisions
of [the statute], the right to bring an implied warranty
claim belongs to the unit owners, and this right may be
exercised by the unit owners in the aggregate through
their condominium association in matters of common
interest.
Charley Toppino & Sons, 658 So.2d at 924.
I find Windham and Charley Toppino persuasive and that their
reasoning applies with equal force to PUCA.
I therefore respectfully disagree with the majority’s determination that
the Association lacked a valid cause of action for breach of the implied
warranty of habitability against JMB. Because PUCA expressly vests
condominium associations with the authority to manage common elements
and to institute litigation in their own name in matters affecting common
elements, the Association had standing to sue for breach of the implied
warranty of habitability to the extent that the incident in question caused
damage to the common elements of the condominium.
As a result, I respectfully disagree with the majority’s decision that
JMB lacked a right of indemnification against Carson. In my view, JMB has a
right to seek indemnification against Carson for any proceeds that JMB paid
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the Association for damage caused to the common elements of the
condominium.
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