J-A13012-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BEAUMONT CONDOMINIUM

ASSOCIATION,

 Appellee

IN THE SUPERIOR COURT OF

PENNSYLVANIA

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

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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 posttensioned 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.