.

Defense Digest

Failure to Join Both Property Owners Leads to Case Dismissal*

Defense Digest, Vol. 29, No. 4, December 2023

December 1, 2023

by Brad E. Haas

*This case has since been reversed on appeal. Please see: How Simone V. Alam Reshaped the Standard for Indispensable Parties in Premises Liability Actions

Key Points:

  • Pennsylvania Superior Court recently held that a plaintiff’s failure to join an indispensable party property co-owner was grounds for full dismissal of his premises liability claim.
  • The case discussed the specifics of proprietary rights and ownership, as two brothers co-owned a property as tenants in common.
  • Plaintiff only named one of the co-owner brothers as a defendant, despite being made aware of the joint ownership.
  • The court held that, under Pennsylvania law, because the claim directly related to the ownership and alleged negligence related to that ownership, both of the owners/brothers were indispensable parties to the matter.
  • Due to the fact that the statute of limitations had passed, the court dismissed the action.

A recent decision by the Pennsylvania Superior Court underscores the importance of having a full understanding of the proprietary rights and ownership of a given property in premises liability suits. In Simone v. Alam, 303 A.3d 140 (Pa. Super. 2023), the Superior Court affirmed a trial court’s granting of a motion to dismiss based upon the plaintiff’s failure to join the co-owner of a property.

The lawsuit stemmed from a fall-down incident at a rental property which was owned and maintained by the defendant, Mohammed Zakiul Alam, and his brother, Mohammed Zafuil Alam. The incident occurred on January 16, 2018. The plaintiff filed her complaint on December 2, 2019, alleging the fall occurred due to an accumulation of ice beneath an outdoor staircase. The complaint named Mohammed Zakuil Alam as the only defendant, and not his brother/co-owner. The plaintiff alleged that the defendant owned, possessed, and controlled the property, such that he was responsible for the defective condition that led to her injuries.

The parties engaged in discovery, including responses to interrogatories and party depositions. Through the responses and the defendant’s deposition, it was made clear that the property was co-owned by the two Alam brothers as tenants in common. Despite this, the plaintiff never sought to amend her complaint.

Following the running of the applicable statute of limitations, on October 7, 2020, the defendant filed a Motion to Dismiss for Plaintiff’s Failure to Join an Indispensable Party. The plaintiff argued that the co-owner’s absence should not impact the case, emphasizing that he had no possession or control over the multi-tenant rental property. However, the trial court granted the defendant’s motion, holding that the unnamed co-owner/brother was an indispensable party. The plaintiff thereafter appealed to the Pennsylvania Superior Court. The question before the Superior Court was: Did the trial court err in dismissing her complaint for failure to join an indispensable party when the absent co-owner merely held a tenant-in-common interest without any possession or control over the property?

The plaintiff contended that the co-owners/brothers were merely tenants in common and that the co-owners’ interest would remain unaffected by a judgment against the unnamed defendant Alam. Additionally, she attempted to argue that there was no specific Pennsylvania case law deeming tenants in common as indispensable parties without exceptions. To support her position, she referenced case law from Washington, which provided that a premises liability action could proceed against the possessor of the premises, irrespective of the absence of the true owner.

The Pennsylvania Superior Court disagreed. The court began its opinion by giving an overview of the relevant proprietary rights involved. In discussing tenancy in common, the court noted that when individuals own property as tenants in common, they own and possess, in equal shares, an undivided interest in the whole property. Regarding those rights as it related to indispensability, the court stated that the legal concept of indispensability is defined by the connection between a party’s rights and the claims of the litigants. It further stated that the rule is not based on administrative convenience, but on the unity and identity of co-owners’ interests. The court discussed the case of Northern Forests II, Inc. v. Keta Realty Co., 130 A.3d 19, 29 (Pa. Super. 2015), emphasizing that a party is indispensable when that party’s rights are so connected with the claims that no decree can be made without impairing those rights. The court further noted that Pa.R.C.P. 2227 explicitly states that persons with a joint interest must be joined on the same side as plaintiffs or defendants. 

The court disagreed with the plaintiff’s assertion that there was no on-point Pennsylvania case law, referencing the case of Minner v. Pittsburgh, 69 A.2d 384 (Pa. 1949). In Minner, the Pennsylvania Supreme Court mandated the joinder of all tenants in common in a negligence action arising from ownership of real estate. The Minner mandate was reinforced in the subsequent cases of Moorehead v. Lopatin, 445 A.2d 1308 (Pa. Super. 1982) and Enright v. Kirkendall, 819 A.2d 555 (Pa. Super. 2003). These decisions emphasized that when a party’s liability stems from ownership of real estate held by tenants in common, all co-owners are required to be joined.

The plaintiff’s case, akin to Minner, involved a liability claim arising directly from the unnamed defendant Alam’s ownership of the premises and allegations of negligence based upon that ownership. The Superior Court held that the fact that the Alam brothers were joint owners as tenants in common rendered the co-owner/brother an indispensable party. Based upon this, it affirmed the decision of the trial court, dismissing the plaintiff’s claim.

*Brad is a shareholder in our Pittsburgh, Pennsylvania, office. He can be reached at 412.803.2448 or BEHaas@mdwcg.com.

 

Defense Digest, Vol. 29, No. 4, December 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2023 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

 

*This case has since been reversed on appeal. Please see: How Simone V. Alam Reshaped the Standard for Indispensable Parties in Premises Liability Actions

 

Firm Highlights

Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.

Thought Leadership

WCJ Improperly Refused to Conduct C&R Hearing and Erroneously Required Settlement of All Pending Petitions

In this case, the claimant sustained injuries in the course and scope of her employment as a registered nurse. The employer acknowledged the injury by a Notice of Compensation Payable (NCP).  Subsequently, a Workers’ Compensation Judge (WCJ) expanded the description of injury. The employer then filed a Termination Petition, alleging the claimant was fully recovered from the injuries. Providers filed Utilization Review (UR) Petitions, challenging UR determinations finding their chiropractic treatment to be not reasonable and necessary. A settlement of the claim was eventually reached, and the employer filed a Petition to Seek Approval of a Compromise and Release (C&R) Agreement. The C&R outlined that the agreement fully resolved all future workers’ compensation claims except for the termination and UR Petitions. Briefs were filed and one day later, the WCJ issued an Interlocutory Order which stated if instructions were not followed regarding filing of a C&R, a settlement hearing date would not be given. The employer complied with the order, and filed the C&R. Subsequently, the WCJ notified the parties that the C&R must resolve all issues in the petitions, or would not be entertained. A settlement hearing was never held, and the WCJ then issued a decision, granting the Termination Petition and dismissing the UR Petitions. The WCJ also said that the Petition for Approval of a C&R was dismissed without prejudice, as the issues in the Termination and UR Petitions went to a decision. The claimant appealed to the Workers’ Compensation Appeal Board (Board). The Board granted the claimant’s appeal, finding that the WCJ violated the requirement of Section 449 that an expedited hearing be held when a Petition for Approval of a C&R is filed.  The Board further held that it was legally incorrect for the WCJ to insist that the C&R resolve all issues raised by the pending Petitions. The Board remanded the case to a new WCJ, and Employer appealed to the Commonwealth Court. The court affirmed the Board and held that the WCJ erred, as a matter of law, by refusing to hold an expedited hearing within 30 days, once the Petition for Approval of a C&R was filed.  The court noted that the language of Section 449(b) is mandatory, and a settlement hearing is not discretionary or dependent on a party’s separate request for a stay, or whether the record has been closed. The court further rejected Employer’s argument that the case should not be remanded to a new WCJ for a new decision on the termination and and UR Petitions, as the Board passed no judgment on whether the C&R Agreement resolved the termination and UR Petitions, and left it for the WCJ to decide in connection with the Petition for Approval of a C&R.

Result

$1.09 Billion Products Liability Verdict Overturned

In this products liability crashworthiness case, the Superior Court of Pennsylvania reversed a Philadelphia jury verdict of $1.09 billion, the largest verdict ever overturned by a PA appellate court.  The court ordered a new trial based on deficient jury instructions, clarified important aspects of crashworthiness law, and confirmed that so-called standard jury instructions may be incompatible with Pennsylvania law. 

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

News

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

Result

$19 Million Medical Malpractice Verdict Overturned

In this medical malpractice case, the trial court vacated $10 million of a $19 million verdict in post-trial motions and the Superior Court of Pennsylvania vacated the remaining $9 million on appeal.

Result

Statutory Employer Immunity Upheld

In this construction accident case that resulted in a $5 million verdict, the Supreme Court of Pennsylvania upheld the Statutory Employer Doctrine, which immunizes general contractors and other contractors on construction sites when certain elements are satisfied.

Thought Leadership

Appellate Division Reversed Trial Judge's Orders Granting a Plaintiff's Section 40 Summary Judgement Motion

In Haskins v. Casey, et al., the plaintiff Dane Haskins worked for defendant Ekornes, Inc. (Ekornes) as a material handler. In June 2021, he filed a workers’ compensation claim petition for benefits due to a left shoulder injury in December 2020. He then resolved his workers’ compensation claim in November 2022 under an Order Approving Settlement. In January 2023, he filed a lawsuit against Ekornes and later amended to add additional claims and name other defendants, including the Ekornes president, chief financial officer, and director of human resources. In May 2025, a second amended complaint alleged that after he filed the workers compensation claim, Ekornes placed him on leave under the Family and Medical Leave Act (FMLA), denied his request for a work accommodation, and ultimately terminated him from employment in December 2021. He pleaded several causes of action asserting violations of the New Jersey Law Against Discrimination (LAD) as well as fraudulent concealment and wrongful discharge. The plaintiff then moved for partial summary judgment, seeking an order enforcing Section 40 of the Workers’ Compensation Act (WCA) as well as summary judgment on his FMLA claims. The defendants opposed the motions and cross-moved for summary judgment on the FMLA claims. After arguments, the court entered an order in December 2025, denying the FMLA motion and cross motion and granting the plaintiff’s Section 40 motion. In the order, the court permitted the plaintiff to pursue compensatory damages at trial in connection with the bodily injury claim. The court also allowed the plaintiff to present evidence of any workers’ compensation benefits to support his claim. The court then denied the defendant's subsequent reconsideration motion in February 2026. The defendants that appealed the Section 40 aspect of the orders. In reviewing the appeal de novo, the Appellate Division rejected the plaintiff's argument that the work-related injury arose out of his discrimination claims under the LAD. The plaintiff argued that he should be able to pursue a personal injury claim as a part of his LAD claim, noting that the employer’s compensation carrier would be able to assert a lien against any recovery against his LAD claims. In distinguishing between the Richter vs. Oakland Board of Education, 246 N.J. 507 (2021) case, in which the Court found that any recovery would be subject to a Section 40 lien as the allegation was that the defendants failed to accommodate her pre-existing diabetic condition, which resulted in bodily injury. In this case, the Appellate Division indicated that there was no bodily injury caused by Ekornes’ failure to accommodate a pre-existing disability. Rather, the shoulder injury was a result of a workers compensation claim, for which he received appropriate benefits previously. The Appellate Division noted that if the plaintiff was successful in proving his LAD claims, he would be entitled to damages caused by the discriminatory discriminatory conduct such as lost wages and emotional distress damages and that there will be no Section 40 lien. In addition, the Appellate Division disagreed that the petitioner could present evidence about and seek damages for his shoulder injury at trial. Although the petitioner argued that a defendant who retaliated against an employee for filing a workers’ compensation claim should not benefit from the exclusivity provision of the WCA, the Appellate Division noted that the Legislature did not include this type of scenario in the statue nor did any of the case law recognize this type of claim as a remedy. As such, the Appellate Division reversed the December 2025 order granting the the plaintiff’s Section 40 summary judgment motion as well as the February 2026 reconsideration motion order. The Appellate Division noted that they did not intend to limit the plaintiff in his pursuit of his other claims on under the LAD, FMLA, and workers’ compensation retaliation causes of action.

graphic announcing our 6 2027 Super Lawyers & Rising Stars

News

Marshall Dennehey Announces 2027 New Jersey Super Lawyers And Rising Stars

Event

CLM 2026 Focus Conference

Allison joins three insurance industry leaders to discuss how cyber coverage disputes, the growing impact of social inflation on bodily injury claim valuation, and the use of artificial intelligence are reshaping the bad faith landscape. The panel will examine emerging sources of extra-contractual exposure, including evolving cyber insurance coverage issues and the challenges of accurately valuing bodily injury claims. Practical approaches to claim evaluation using AI, along with defense strategies designed to help prevent or successfully defend against bad faith litigation, will also be addressed.