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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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