Cholewka, D. v. Gelso, A.

J-S11001-18

2018 PA Super 216

DAWN CHOLEWKA AND RONALD H. : IN THE SUPERIOR COURT OF

CHOLEWKA, HUSBAND AND WIFE : PENNSYLVANIA

:

Appellants :

:

:

v. :

:

: No. 2846 EDA 2017

ALDO GELSO AND INGEBORG :

GELSO, HUSBAND AND WIFE :

v. :

:

:

RICHARD NEIDKOWSKI AND LITTLE :

RICHIE'S LANDSCAPING, LLC :

Appeal from the Order Entered August 2, 2017

In the Court of Common Pleas of Pike County

Civil Division at No(s): 2013- CIV-1292

BEFORE: OTT, J., STABILE, J., and MUSMANNO, J.

OPINION BY OTT, J.: FILED JULY 27, 2018

Ronald H. and Dawn Cholewka (collectively “the Cholewkas”), husband

and wife, appeal from the order entered August 2, 2017, in the Pike County

Court of Common Pleas, granting summary judgment in favor of additional

defendants Richard Neidkowski and Richie’s Landscaping, LLC (collectively

“Neidkowski”). The order also made final a prior order, entered September

23, 2016, granting summary judgment in favor of the original defendants Aldo

Gelso and Ingeborg Gelso (collectively “the Gelsos”). The Cholewkas raise

three issues on appeal challenging the trial court’s grant of summary judgment

J-S11001-18

in favor of Neidkowski and the Gelsos. For the reasons below, we affirm in

part, vacate in part, and remand.

The facts underlying this appeal are as follows. At all relevant times,

the Gelsos owned a property located at 149 Hatton Road, Hawley,

Pennsylvania. On March 12, 2012, they leased the property to the Cholewkas,

as well as their daughter, Heather Cholewka, and her boyfriend, Richard

Neidkowski. All four tenants signed the lease, agreed to accept the property

“as is,” and agreed to make all repairs during their tenancy. Motion for

Summary Judgment of Gelso, 6/3/2016, Exhibit A, Lease Agreement

(hereinafter “Lease Agreement”), at ¶¶ 8-9. The Cholewkas moved into the

upstairs portion of the property, while Heather, Neidkowski and their child

moved into the downstairs portion of the property. Sometime thereafter,

Neidkowski installed a gravel parking pad next to the asphalt driveway so that

he would have a space to park his work truck. The parking pad was situated

two to three inches below the surface level of the driveway. See Deposition

of Richard Neidkowski, 12/15/2014, at 22-23.

On October 4, 2012, at approximately 9:15 p.m., Dawn intended to take

her dog for a walk. However, the dog immediately slipped off the leash and

ran towards the back of the house, which was a wooded area. Although there

was a light illuminating the front door and the back porch, the sides of the

house, including the gravel parking pad, had no lighting. Both Dawn and

Ronald walked to the back of the house to look for the dog. Ronald then went

back into the house to retrieve a flashlight. In the meantime, Dawn walked

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around the side of the house where the parking pad was located. However,

as she stepped up on the asphalt driveway from the parking pad, she tripped

and fell, resulting in a fractured tibia.

On August 12, 2013, the Cholewkas filed a negligence action against the

landlords, the Gelsos, followed by an amended complaint on September 26,

2013. They alleged the Gelsos were negligent for failing to warn them of the

dangerous condition caused by the uneven driveway and lack of lighting in the

area. On January 16, 2014, counsel for the Gelsos filed a notice of Aldo Gelso’s

death. No personal representative was substituted in his place. After

submitting an answer and new matter on April 1, 2014, the Gelsos filed a

motion for leave to join Neidkowski and the company he owns, Little Richard’s

Landscaping, as additional defendants.1

On June 3, 2016, the Gelsos filed a motion for summary judgment,

asserting the Cholewkas failed to establish the necessary elements of a

negligence action. By order dated September 23, 2016, the court granted

summary judgment in favor of the Gelsos. This Court subsequently denied

the Cholewkas’ request for permission to appeal. See Order, January 10,

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1 The trial court issued a rule to show cause why Neidkowski should not be

joined. The Cholewkas did not respond to the rule to show cause, and, on

April 29, 2014, the Gelsos filed a motion to make the rule absolute, attaching

a letter from the Cholewkas’ attorney which informed them the Cholwekas did

not oppose the joinder. See Motion of Defendants of Make Rule Absolute,

4/29/2014, at Exhibit B. The court granted the Cholewkas’ motion the next

day. Thereafter, on May 5, 2014, the Gelsos filed a joinder complaint against

Neidkowski.

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2017. On May 5, 2017, Neidkowski also filed a motion for summary judgment

asserting, inter alia, he owed no duty to the Cholewkas. By order dated

August 2, 2017, the trial court granted Neidkowski’s motion. This timely

appeal followed.2, 3

All of the Cholewkas’ issues on appeal challenge the trial court’s award

of summary judgment to the defendants and the additional defendants. When

reviewing an order of the trial court granting summary judgment, we are

guided by the following:

Summary judgment is appropriate where the record clearly

demonstrates there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law. Atcovitz

v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812 A.2d 1218,

1221 (2002); Pa. R.C.P. No. 1035.2(1). When considering a

motion for summary judgment, the trial court must take all facts

of record and reasonable inferences therefrom in a light most

favorable to the non-moving party. Toy[ v. Metropolitan Life

Ins. Co.], 928 A.2d [186,] 195 [(Pa. 2007)]. Whether there are

no genuine issues as to any material fact presents a question of

law, and therefore, our standard of review is de novo and our

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2 We note the September 23, 2016, order that granted summary judgment in

favor of the Gelsos was interlocutory and not appealable, since it did not

dispose of all claims and all parties. See Pa.R.A.P. 341(a). However, once

the trial court granted summary judgment in favor of Neidkowski on August

2, 2017, the September 2016 order ripened into a final order for appeal

purposes. See McNeal v. Eaton Corp., 806 A.2d 899, 901 n.2 (Pa. Super.

2002) (“We note that a trial court order declaring a case settled as to all

remaining parties renders prior grants of summary judgment final for

purposes of Pa.R.A.P. 341, even if the prior orders entered disposed of fewer

than all claims against all parties.”).

3On September 1, 2017, the trial court ordered the Cholewkas to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

The Cholewkas complied with the court’s directive and filed a concise

statement on September 21, 2017.

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scope of review plenary. Weaver v. Lancaster Newspapers,

Inc., 592 Pa. 458, 926 A.2d 899, 902–03 (2007).

Estate of Agnew v. Ross, 152 A.3d 247, 259 (Pa. 2017). “In sum, only

when the facts are so clear that reasonable minds cannot differ, may a trial

court properly enter summary judgment.” Roche v. Ugly Duckling Car

Sales, Inc., 879 A.2d 785, 789 (Pa. Super. 2005) (quotation omitted), appeal

denied, 901 A.2d 499 (Pa. 2006).

The Cholewkas’ first two issues challenge the court’s award of summary

judgment to additional defendant, Neidkowski. In their opening argument,

the Cholewkas contend the trial court erred or abused its discretion in

concluding Neidkowski owed no duty of care to them because they were all

co-possessors of the same land. See Cholewkas’ Brief at 19.

The Restatement (Second) of Torts defines a possessor of land as, inter

alia, “a person who is in occupation of the land with intent to control it[.]”

Restatement (Second) of Torts § 328E (1965).4 It is well-established that

“[t]he standard of care a possessor of land owes to one who enters upon the

land depends upon whether the person entering is a trespasser, licensee, or

invitee.” Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983). In the

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4 The other definitions for a possessor of land in Section 328E are not relevant

to the facts herein. See Restatement (Second) of Torts § 328E (1965)

(defining a possessor of land as “a person who has been in occupation of land

with intent to control it, if no other person has subsequently occupied it with

intent to control it,” and “a person who is entitled to immediate occupation of

the land, if no other person is in possession under” the prior definitions).

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present case, it is clear Dawn was not a trespasser at the time of the accident.5

However, the Cholewkas maintain she was either a gratuitous licensee or an

invitee. See Cholewkas’ Brief at 21.

Pursuant to the Restatement, a licensee is “a person who is privileged

to enter or remain on land only by virtue of the possessor’s consent.”

Restatement (Second) of Torts § 330 (1965). An invitee is categorized as

either a public invitee or a business visitor. See id. at § 332.

[]A public invitee is a person who is invited to enter or remain on

land as a member of the public for a purpose for which the land is

held open to the public.

[]A business visitor is a person who is invited to enter or remain

on land for a purpose directly or indirectly connected with business

dealings with the possessor of the land.

Id.

As noted above, the trial court concluded Neidkowski owed no duty to

Dawn because she was a co-possessor of the property in question. In the

order granting Neidkowski summary judgment, the court opined:

In this case, [the Cholewkas] do not qualify as trespassers,

[licensees], or invitees. [The Cholewkas] were privileged to enter

and remain on the property, and so cannot be considered

trespassers. [The Cholewkas] were not privileged to enter or

remain on the property only by virtue of the possessor’s consent,

and so cannot be considered licensees. [The Cholewkas] were

neither invited to enter or remain on land as members of the

public, nor invited to enter or remain on land for a purpose directly

or indirectly connected with business dealings with the possessor

of land, and so cannot be considered invitees. Rather, the facts

____________________________________________

5 See Restatement (Second) of Torts § 329 (1965) (defining trespasser as “a

person who enters or remains upon land in the possession of another without

a privilege to do so created by the possessor’s consent or otherwise”).

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of this case indicate that [the Cholewkas], along with Heather []

and [] Neidkowski, all qualify as possessors of land in accord with

the Restatement (Second) of Torts.

The record indicates that a single agreement between [the

Cholewkas], [] Neidkowski, and Heather [] and [the Gelsos]

governed the lease of the property; a single document signed by

[the Cholewkas], [] Neidkowski, and Heather []. Also, rent for the

property was the responsibility of all signatories to the Lease

Agreement despite any private understanding regarding

appropriate apportionment that the signatories may have reached

between themselves. Finally, the home on the property is a

single-family dwelling, not a multi-family dwelling or townhome-

style development. The record indicates [the Cholewkas]

occupied the upper level while [] Neidkowski and Heather []

occupied the lower level, as agreed between those lessees.

However, the Lease Agreement failed to indicate that the upper

and lower levels of the dwelling were separate, or considered

separate, for the purpose of leasing the property.

In light of these facts, this Court finds that all signatories to

the Lease Agreement were possessors of the property at the time

of [Dawn’s] injuries. Logic dictates that [the Cholewkas] cannot

be both possessors of land and trespassers, licensees, or invitees

simultaneously.

Trial Court Order, 8/2/2017, at 5-6. See also Trial Court Opinion,

10/31/2017, at 5-6.

In asserting Neidkowski owed a duty to Dawn, the Cholewkas first cite

Bouy v. Fidelity-Philadelphia Trust Co., 12 A.2d 7 (Pa. 1940), in which the

Supreme Court determined that a subtenant and his invitee, who was injured

on the premises, were required to “look to the tenant and not the landlord out

of possession for recovery.” Cholewkas’ Brief at 22. In that case, an invitee

of a subtenant was killed after a building collapsed. The invitee’s husband

sued the owner of the building, claiming it had rented the building in a “ruinous

condition.” Bouy, supra, 12 A.2d at 8. On appeal, the Supreme Court

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concluded the landowner, out of possession, owed no duty to the subtenant’s

invitee because the tenant “expressly agreed to take the premises ‘as is, make

improvements to the interior and keep them in good order and repair” in the

lease agreement. Id. It is important to note that the only issue presented

was whether the subtenant’s invitee could recover from the landowner.

Therefore, the court’s statement that the invitee was required to “look to” the

tenant for recovery was dicta. Further, unlike the facts presented here, the

injured party was not a co-possessor of the land.

Nevertheless, the Cholewkas also rely upon the Supreme Court’s

decisions in Matthews v. Spiegel, 122 A.2d 696 (Pa. 1956), and Stabelli v.

Somerton Bldg. & Loan Ass’n, 23 A.2d 477 (Pa. 1942), to support their

claim that Dawn stood in the position of a gratuitous licensee or invitee as to

Neidkowski. In Matthews, a guest of a tenant was injured as a result of a

defective condition in a stairway in an apartment building. See Matthews,

supra, 122 A.2d at 697. Although the tenant’s lease did not expressly provide

her with use of the basement where the stairway led, she was permitted, by

the landowners, to store some of her belongings there. Further, the janitor

of the building, who was employed by the landowners, testified he reported

the defective condition to one of the landowners about a month prior to the

accident, but it was not repaired. See id.

The Supreme Court found the duty of the landowners to the tenant’s

guest was the same as their duty to the tenant. See id. at 698. Because the

tenant was permitted to use the basement solely for her own convenience,

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the Court concluded she was a gratuitous licensee, and the general duty

landowners owe to a licensee is to “refrain from willfully or wantonly injuring”

her. Id. However, the Court also recognized an exception to the general rule:

a landowner “is likewise liable for injury arising from a latent defect in the

premises of which he has knowledge and of which he fails to inform the

licensee.” Id. (emphasis omitted). Because one of the landowners knew of

the dangerous condition for a month, and “neither repaired it nor warned the

lessee of the danger,” the Matthews Court affirmed the verdict in favor of

the plaintiff. Id.

In Stabelli, a business tenant was also injured on a stairwell leading to

the basement of the building. The Court found that while the tenant did not

lease the basement, her use thereof “formed part of the consideration” of her

lease, and the landowner maintained control over that part of the premises.

Stabelli, supra, 23 A.2d at 479. Therefore, the Court determined the tenant

had the status of an invitee toward the landowner. See id.

Based on the holdings in Matthews and Stabelli, the Cholewkas insist

Dawn was a “gratuitous licensee or invitee” to whom Neidkowski owed a duty

of care. Cholewkas’ Brief at 22. We disagree. Unlike in the cases above,

Neidkowski was not a landowner out of possession. Rather, he was a co-

possessor of the property, along with the Cholewkas. Our research has

uncovered no decisions in which one possessor of land owed a duty of care to

another possessor of land under premises liability principles. Accordingly, we

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find no error on the part of the trial court in granting summary judgment to

Neidkowski on this basis.

Next, the Cholewkas contend the trial court erred or abused its

discretion in granting summary judgment to Neidkowski under ordinary

negligence principles. See Cholewkas’ Brief at 23. Specifically, they insist a

genuine issue of material fact existed as to whether Neidkowski foreseeably

created an unreasonable risk of harm in constructing a gravel parking pad for

his work vehicles. See id. at 23-24. They reiterate their initial claim that

Dawn “was owed a duty as a gratuitous invitee or licensee,” as well as assert

Neidkowski “altered the common area of the property” for his own benefit,

and in doing so, created a “dangerous ‘lip.’” Id. at 25.

Preliminarily, we note that as discussed above, Neidkowski did not owe

a duty to Dawn as a licensee or invitee. Nevertheless, when no special

relationship exists between parties, a defendant still owes a general duty “not

to expose others to risks of injury which are reasonably foreseeable.”

Schmoyer by Schmoyer v. Mexico Forge, Inc., 649 A.2d 705, 708 (Pa.

Super. 1994). See also Roche, supra, 879 A.2d at 790 (“[A] duty arises

only when one engages in conduct which foreseeably creates an unreasonable

risk of harm to others.”) (citation omitted).

The trial court explained its ruling on this issue as follows:

First, the parties have not asserted, and no evidence has

been presented to show, that either the parking pad or the paved

driveway was in any way defective in construction or condition at

the time of the injury. As such, a change in elevation where the

pad and the driveway meet is both expected and reasonable.

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Second, the evidence in this matter indicates that [the

Cholewkas] were fully aware of the construction of the parking

pad and any risks which may have been associated with it. The

parties leased the property in February, 2012. The parking pad

was installed in April or May of 2012. [] Dawn [] fell on October

4, 2012. [The Cholewkas], therefore, were fully aware of the

construction of the parking pad, lived with it, and walked on it for

approximately five (5) months prior to [] Dawn[’s] injury.

Additionally, [] Dawn [] indicated at deposition that she was aware

of the lip between the driveway and the parking pad.

Third, [] Dawn [] indicated her fall took place at night, she

failed to retrieve an additional light source before attempting to

walk in the area in which the lip was located, and she was aware

of poor lighting conditions in the area of her fall.

We find[] that the risk created by the lip was not

unreasonable in light of the properly-constructed parking pad and

[the Cholewkas’] knowledge of the conditions at the time.

Additionally, we find [Neidkowski] could not have foreseen

[Dawn’s] ill-advised nighttime search for her dog in the poorly-lit

area of the lip without the aid of a flashlight.

We hold that [Neidkowski] did not owe a duty of care to [the

Cholewkas] because [Neidkowski] did not engage in conduct

which foreseeably created an unreasonable risk of harm.

Trial Court Opinion, 10/31/2017, at 7-8.

Again, we find no basis to disagree. The Cholewkas’ argument focuses

on the fact that (1) Neidkowski constructed the parking pad solely for his own

benefit, and (2) additional discovery could “potentially” show the construction

was defective. Cholewkas’ Brief at 26. However, the record indicates the

Cholewkas were aware of the construction of the parking pad, which was

installed several months before Dawn’s accident. Moreover, they do not

dispute Neidkowski’s account that his construction of the parking pad actually

reduced the depth of the “lip” that existed between the driveway and the

ground before he installed the parking pad. See Deposition of Richard

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Neidkowski, 12/15/2014, at 58. Furthermore, Dawn knew there was no

lighting on the side of the house, but proceeded to walk there without a

flashlight. See Deposition of Dawn Cholewka, 3/19/2014, at 81 (Dawn

admitted she was aware that “it was dark on the side of the house”). When

asked if she recognized that she needed to step up to get onto the driveway,

the following exchange took place:

[Dawn:] Did I recognize it? I would think naturally I would see

that and would just step up onto it.

When you say, do – did I recognize it? Do I consciously – did I

consciously look at that and say, oh, there’s a big lip here. I need

to step up higher? I don’t understand what you want me to say

to that?

****

Q Would you agree with me that you must have had some

awareness of something there to cause you to want to step up,

correct?

[Dawn:] Yeah, I’m – I guess yeah. I – it’s – let me just clarify.

Normally there would be a vehicle parked right at that spot. I

would not on – any other time that I may have been around the

house, I wouldn’t have even walked in that particular spot because

there would be a vehicle there. My husband’s vehicle was always

parked there.

If I was to be of coming around the house, I probably would have

walked behind his car and gone on into the house that way

because it was very close to the edge where the – where the

garage starts.

Id. at 64-65. Therefore, although she later tried to qualify her concession,

Dawn admitted she was aware of the “lip” between the driveway and the

gravel parking pad before the day she fell.

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Accordingly, under the facts of this case, “reasonable minds cannot

differ” as to the fact that Neidkowski’s construction of a parking pad did not

create a foreseeable, unreasonable risk of harm to others. See Roche,

supra, 879 A.2d at 789. Accordingly, we affirm the August 2, 2017, order

granting summary judgment to Neidkowski.

In their third issue, the Cholewkas contend the court erred or abused its

discretion in granting summary judgment in favor of the original defendants,

the Gelsos, when it determined the Gelsos owed no duty to the Cholewkas to

warn them of the unreasonable risk of harm caused by Neidkowski’s

construction of the parking pad, which Aldo Gelso had supervised. See

Cholewkas’ Brief at 27.

The liability of a landlord to his tenant for injuries the tenant sustains

on the premises is based upon the following principles:

(1) in the absence of any provision in the lease, a landlord is under

no obligation to repair the leased premises, to see to it that they

are fit for rental or to keep the premises in repair; (2) a tenant

takes the premises as he finds them and the landlord is not liable

for existing defects of which the tenant knows or can ascertain by

a reasonable inspection; (3) a landlord out of possession,

however, may be liable (a) where he conceals a dangerous

condition of which he has knowledge and of which the tenant has

no knowledge or cannot be expected to discover and (b) where he

knows or should know of a dangerous condition and leases the

premises for a purpose involving a ‘public use’ and has reason to

believe the tenant will not first correct the condition; (4) a landlord

of a multiple-tenanted building, reserving control of the common

approaches, such as sidewalks, passageways, etc., or parts of the

building common to all tenants, such as the roof and walls, is

bound to keep such approaches and parts reasonably safe for the

use of tenants and their invitees and a landlord becomes liable

where he either had actual notice of a defective condition therein

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or was chargeable with constructive notice, because had he

exercised reasonable inspection he would have become aware of

it.

Lopez v. Gukenback, 137 A.2d 771, 774–775 (Pa. 1958). Furthermore, a

landlord may also be found liable if “as an inducement to the execution of [a]

lease for premises which were obviously in a defective condition, the landlord

promised the tenant to remedy this defective condition and, in reliance upon

that promise, a lease was negotiated.” Reitmeyer v. Sprecher, 243 A.2d

395, 398 (Pa. 1968) (footnote omitted). Under this theory of recovery,

[n]egligence, not simply the breach of the agreement to repair, is

the gist of the action in tort and the agreement to repair does not

render the landlord liable unless he has knowledge of the defect

when the lease is executed and the agreement to repair made and

then only when consideration can be found to support the

agreement to repair.

Id. at 397 (footnote omitted).

Consistent with the above precepts, in the present case, the lease

agreement signed, by the Cholewkas, specifically provided (a) the tenants

were “responsible for all repair and maintenance,” and (b) they had inspected

the premises and were taking the property “as is.” Lease Agreement,

2/12/2012, at ¶¶ 9, 36. Nevertheless, the Cholewkas claim the Gelsos are

liable for Dawn’s injury under one of two theories. First, they maintain the

property had two separate apartments, and Aldo Gelso supervised the

construction of the parking pad, which was in a common area used by both

sets of tenants. See Cholewkas’ Brief at 30. Second, the Cholewkas insist

the Gelsos “clearly knew of the defect, knew it was in a remote area of the

property and poorly illuminated at night.” Id. They assert: “The risk to

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someone walking in that area is clear and [the Gelsos] failed to inform [the

Cholewkas].” Id.

Here, in granting the Gelsos’ motion for summary judgment, the trial

court found that “nothing in the evidentiary record shows or indicates that the

house is a multi-tenanted unit.”6 Order, 9/23/2016, at 7. The court

explained:

Rather, the lease shows that all four residents signed one lease

for the entire property as a whole. Moreover, [Dawn’s] testimony

shows that [the Gelsos] retained no control over the driveway.

Id. at 7-8. Accordingly, the court determined the Gelsos owed no duty to the

Cholewkas pursuant to the multi-tenant theory. We agree.

Although the Cholewkas lived in the top portion of the residence, and

Neidkowski and Heather occupied the bottom portion of the residence, the

lease agreement listed all four tenants as occupying one residence. Moreover,

Ronald Cholewka admitted in his deposition testimony that the Gelsos rented

the property as one residence. He testified that Aldo Gelso told him the home

was “not complied to rent as a two-family house” and Gelso did not care how

the four tenants split the rent, but that “$1600 is what [he gets] for the

house.” Deposition of Ronald H. Cholewka, 4/16/2014, at 22-23. The

Cholewkas provide no support for their claim that the property was a multi-

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6 We note that in its Pa.R.A.P. 1925(a) opinion, the trial court declined to

address this issue because the notice of appeal was filed more than 30 days

after it entered the order granting the Gelsos’ motion for summary judgment.

See Trial Court Opinion, 10/31/2017, at 4. However, as noted supra, that

order was unappealable at the time it was entered because it did not resolve

all claims against all parties. See supra, at n.1.

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tenant residence save for the fact that they treated it as such. Furthermore,

we agree with the determination of the trial court that there is no support in

the record for the Cholewkas’ claim that the Gelsos retained control of the

driveway. See Lopez, supra. Accordingly, the Cholewkas’ assertion that the

Gelsos owed a duty to them under the multi-tenant building exception, fails.

Nonetheless, relying again on Matthews, supra, the Cholewkas claim

the Gelsos owed them a duty because the Gelsos knew of the defect in

construction, which was located in a poorly lit area of the property, but failed

to warn them of the potential hazard. Again, we find their reliance on

Matthews misplaced. Liability in Matthews was premised upon the fact the

owner of the building “knew of the dangerous condition [] a month before the

accident and neither repaired it nor warned the lessee of the danger.”

Matthews, supra, 122 A.2d at 698. However, in Matthews, there was no

indication the lessee, or her injured guest, knew of the dangerous condition

of the step. Conversely, here, the Cholewkas rented the entire property “as

is” from the Gelsos, which necessarily included the asphalt driveway. Further,

the Gelsos did not undertake to install the parking pad as consideration for

the lease, nor were they specifically informed that the parking pad created a

dangerous condition after it was installed. While Aldo Gelso may have

“supervised” the installation, there is no evidence he was aware of a

dangerous condition that was not already readily apparent to the Cholewkas.

See Lopez, supra, 137 A.2d at 775 (holding a landlord out of possession may

be liable “where he conceals a dangerous condition of which he has knowledge

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and of which the tenant has no knowledge or cannot be expected to

discover”) (emphasis supplied). Furthermore, as expressly provided in the

lease, the tenants were “responsible for all repair and maintenance.” Lease

Agreement, 2/12/2012, at ¶ 36. Accordingly, no relief is warranted.

While we conclude the judgments entered in this case should be

affirmed, we agree with the Gelsos’ contention that Aldo Gelso should have

been dismissed from the case for lack of jurisdiction after a notice of his death

was filed, and no personal representative was substituted in his place. This

Court’s recent decision in Grimm v. Grimm, 149 A.3d 77 (Pa. Super. 2016),

appeal denied, 169 A.3d 25 (Pa. 2017), is controlling.

In Grimm, supra, after one of the defendants died during the litigation,

no notice of death was filed and no personal representative was substituted

in his place. See id. at 81. However, the trial court later granted a judgment

of non pros filed by the deceased party’s attorney. On appeal, a panel of this

Court held:

[T]he death of a party deprives the trial court of subject matter

jurisdiction over litigation by or against the deceased until such

time as the deceased’s personal representative is substituted in

his or her place. We make this determination primarily based

upon the language of the applicable rules of civil procedure and

the case law in this Commonwealth addressing the effect of a

lawsuit filed by or against a party who dies during the pendency

of litigation.

Id. at 84. Concluding the lack of subject matter jurisdiction is an issue which

may be raised sua sponte, the panel vacated the judgment against the

deceased party and remanded the matter to the trial court “to either dismiss

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the cause of action for want of jurisdiction or to permit the substitution of a

personal representative in accordance with the Pennsylvania Rules of Civil

Procedure.” Id. (footnote omitted). Nevertheless, the panel affirmed the

orders sustaining the preliminary objections filed by the other parties. See

id. at 90.

Pursuant to the dictates of Grimm, we conclude the trial court herein

had no subject matter jurisdiction to enter summary judgment in favor of Aldo

Gelso after a notice of his death was filed, and no personal representative was

substituted in his place. Accordingly, we vacate the judgment entered in favor

of Aldo Gelso and remand for proceedings consistent with Grimm. In all other

respects, we affirm.

Judgment affirmed in part, and vacated in part. Case remanded for

further proceedings consistent with this decision. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/27/18

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