The opinion
J-S37002-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LAMONT AND BARBARA HAILEY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOAN BARIBAULT AND SCOTT :
BARIBAULT, INDIVIDUALLY AND AS :
TRUSTEE FOR THE BARIKOE FAMILY : No. 412 EDA 2020
TRUST AND BANCROFT :
NEUROHEALTH :
:
:
APPEAL OF: JOAN BARIBAULT AND :
SCOTT BARIBAULT, INDIVIDUALLY :
AND AS TRUSTEE FOR THE BARIKOE :
FAMILY TRUST :
Appeal from the Order Entered June 4, 2018
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): No. 2014-21090
BEFORE: SHOGAN, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SHOGAN, J.: Filed: December 30, 2020
Appellants, Joan Baribault and Scott Baribault, individually and as
Trustee for the Barikoe Family Trust (collectively “the Baribaults”), appeal
from the June 4, 2018 order granting summary judgment in favor of Appellee,
Bancroft Neurohealth (“Bancroft”), and denying the Baribaults’ motion for
summary judgment. After review, we affirm.
The trial court summarized the relevant facts and procedural history in
this matter as follows:
On July 21, 2014, Plaintiffs[,] Lamont Hailey and Barbara
Hailey [(collectively “the Haileys”),] filed a complaint against [the
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Baribaults] asserting claims of negligence and loss of consortium
…. See Docket Entry 0. [The Haileys] asserted no claims against
[Bancroft] in their complaint. Id. [The Haileys’] claims arose from
personal injuries sustained by Mr. Hailey from a “slip, trip,
stumble, and/or fall” while walking down steps at the property
located at 45 South Merion Avenue, Bryn Mawr, Pennsylvania
(hereinafter “the Subject Property”). Compl. § 7. At the time of
the incident, Mr. Hailey was an employee of [Bancroft]. Docket
Entry 87 at Ex. B, 44:8-11.[1]
On October 3, 2014, [the Baribaults] filed an Answer with
New Matter and a Joinder Complaint against [Bancroft]. See
Docket Entries 5-6. On March 3, 2015, after several rounds of
preliminary objections to the joinder complaint, [the Baribaults]
filed an Amended Joinder Complaint against [Bancroft], in which
they alleged negligence and breach of contract against [Bancroft],
seeking contribution and indemnification. See Docket Entry 24. On
July 22, 2015, [Bancroft] filed an Answer with New Matter to [the
Baribaults’] Amended Joinder Complaint, denying liability on the
claims in the Joinder Complaint. See Docket Entry 34.
In [the Baribaults’] Amended Joinder Complaint against
[Bancroft], they base their claims for contribution and
indemnification on a lease between [the Baribaults] and
[Bancroft] (“the Lease”), which provides in pertinent part the
following indemnification provision entitled “Indemnification of
Owner”:
[Bancroft] will indemnify and save harmless [the Baribaults]
against and from any and all liability arising during the Term
or injury during said Term to person or property arising
within those portions of the Premises within the exclusive
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1 At the time of the accident, Lamont Hailey was employed by Bancroft, and
Bancroft was a tenant in the Subject Property that was owned by the
Baribaults. The Haileys’ Complaint, 7/24/14, at ¶¶ 1-7; The Baribaults’
Answer and New Matter, 10/3/14, at ¶¶ 3-5; The Baribaults’ Complaint
Against Additional Defendants, 10/3/14, at ¶¶ 1-10; The Baribaults’ Amended
Joinder Complaint, 3/3/15, at ¶¶ 1-12; and Bancroft’s Opposition to the
Baribaults’ Petition for Joinder, 3/18/15, at ¶¶ 1-14. On appeal, the Baribaults
do not dispute these roles, and in fact label themselves as the Landlord,
Bancroft as their Tenant, and Mr. Hailey as an employee of Bancroft. The
Baribaults’ Brief at 7-8.
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control of [Bancroft] or occasioned by any act or omission
of [Bancroft], or of any agent, employee, resident, invitee
or family member of [Bancroft] unless such injury results
from [the Baribaults’] negligence or [the Baribaults’]
breach of this Lease. [The Baribaults] shall not be liable
for any loss of any property of theft, otherwise, nor for injury
or death of persons or damage to property caused by other
persons, or resulting from the escape of steam, gas,
electricity or water, or from rain, snow or dampness or
presence of hazardous materials except to the extent
otherwise provided by law.
See Am. Joinder Compl. at Ex. D, § 13 (emphasis added).
In addition, the Lease provides the following on “Tenant Liability”:
[Bancroft agrees] that with respect to those portions of the
Premise within the exclusive control of [Bancroft], [the
Baribaults] shall not be responsible or liable for any loss or
damage to any goods or chattels placed on, in or about the
Premises, not for any personal injury to [Bancroft] or any
agent, resident employee, invitee or family member of
[Bancroft] unless such loss, damage or injury results
from [the Baribaults’] negligence. [The Baribaults] shall
not be deemed a bailee as to any goods or chattels placed
on, in or about the Premises. IT IS THE RESPONSIBILITY OF
[BANCROFT] TO MAINTAIN ADEQUATE GENERAL LIABILITY
INSURANCE AND ADEQUATE WORK[ERS’] COMPENSATION
INSURANCE ON THE PREMISES AND ITS EMPLOYEES. Copy
of said policy shall be given to [the Baribaults] prior to
occupancy.
Id. at Ex. D, § 12 (emphasis added).
On the topic of “Maintenance and Repairs,” the Lease
provides in pertinent part:
8-a. [The Baribaults] shall maintain and keep in good repair,
structural components, water main, and exterior walls of the
Premises. Additionally, [the Baribaults] agrees to repair or,
if necessary, replace the following; furnace, hot water
heater, air conditioning unit, plumbing pipes, electrical
wiring and roof...[.]
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8-b. [Bancroft] shall be obligated to make all repairs and
replacements to the Premises...[U]pon the failure of
[Bancroft] to make any repair, [the Baribaults], at [the
Baribaults] discretion, may make such repairs and the
cost of such repair shall be added to and deemed a part of
the rent and shall be payable by [Bancroft] to [the
Baribaults] on demand...[.]
8-c. [Bancroft] shall be responsible for maintenance of the
entire premise, with the exception of those items stated in
Paragraph 8-a, which [the Baribaults] covenants to perform.
And, Owner agrees to repair interior and exterior of
premises every three years...
Id. at Ex. D, § 8(a)-(c) (emphasis added).
While the Lease was originally between [the Baribaults] and
a different tenant, a lease addendum signed on November 18,
2009 by [Bancroft’s] President/CEO changed the tenant to
[Bancroft]. See Docket Entry 87 at Ex. F. The Lease Renewal
between [the Baribaults] and [Bancroft] provided that “All
conditions of the prevailing lease agreement shall continue except
for the following changes, which the tenants agree to” and added
the following term:
Tenant is in sole possession and control of the premises and
is responsible for notifying Landlord of any required repair;
Landlord has not [sic] duty to inspect for repairs. Tenant
shall indemnify and save Owner harmless for any and all
liability, loss, costs, damages, personal injury, damages to
any goods or expenses arising out of any acts, violations,
non-performance by the Tenant of any of the covenants
contained herein, or any other acts or omissions of Tenant
or its agent employees, invitees, residents or others.
Id.
On April 10, 2018, [the Baribaults] filed a Motion for
Summary Judgment, while [Bancroft] filed its own Motion for
Summary Judgment on April 20, 2018. See Docket Entries 87; 91.
[The Baribaults] filed a response in opposition to [Bancroft’s]
Motion for Summary Judgment, to which [Bancroft] filed a reply
and [the Baribaults] filed a sur-reply. See Docket Entries 93; 95;
97. [The Haileys] and [Bancroft] filed responses in opposition to
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[the Baribaults’] Motion for Summary Judgment, to which [the
Baribaults] filed a sur-reply to [Bancroft’s] response. See Docket
Entries 92; 94; 96. On June 1, 2018, upon consideration of these
motions, their responses, and sur-replies, this [c]ourt denied [the
Baribaults’] Motion for Summary Judgment and granted
[Bancroft’s] Motion for Summary Judgment, dismissing with
prejudice all claims against [Bancroft] and dismissing [Bancroft]
as a party to the action. See Docket Entry 98.
[The Baribaults] filed a Motion for Reconsideration on June
11, 2018, requesting that this [c]ourt vacate its grant of
[Bancroft’s] Motion for Summary Judgment, or in the alternative,
grant Certification of this [c]ourt’s Order of June 1, 2018 for an
Immediate Interlocutory Appeal pursuant to 42
Pa. C.S.A. [§] 702(b). See Docket Entry 99. This Court denied
[the Baribaults’] Motion for Reconsideration and Alternative
Motion for Certification in an Order dated June 13, 2018. See
Docket Entry 100. This [c]ourt’s Order of June 1, 2018 was made
final by the Notice of Settlement and Release entered on
December 17, 2019, which settled the remaining claims between
[the Baribaults] and [the Haileys]. See Docket Entries 102; 104.
[The Baribaults] filed a timely Notice of Appeal on December 19,
2019.
Trial Court Opinion, 3/2/20, at 1-5 (emphases in original). Both the trial court
and the Baribaults complied with Pa.R.A.P. 1925.
On appeal, the Baribaults present the following issue:
Did the trial court commit an error of law in granting summary
judgment in favor of Bancroft where Bancroft was required to
indemnify the Baribaults for injuries to Bancroft’s employees
caused by Bancroft’s negligence pursuant to the terms of the
Lease?
The Baribaults’ Brief at 4. After review, we conclude that Bancroft was not
required to indemnify the Baribaults, and the Baribaults were precluded from
enjoining Bancroft as an additional defendant as a matter of law.
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Our scope and standard of review over a trial court’s order granting a
motion for summary judgment are as follows:
Our scope of review … is plenary, and our standard of review is
clear: the trial court’s order will be reversed only where it is
established that the court committed an error of law or abused its
discretion.
Summary judgment is appropriate only when the record clearly
shows that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. The
reviewing court must view the record in the light most favorable
to the nonmoving party and resolve all doubts as to the existence
of a genuine issue of material fact against the moving party. Only
when the facts are so clear that reasonable minds could not differ
can a trial court properly enter summary judgment.
Hovis v. Sunoco, Inc., 64 A.3d 1078, 1081 (Pa. Super. 2013) (citation
omitted).
The Baribaults contend that the plain language of the Lease requires
Bancroft to indemnify the Baribaults for the injuries Mr. Hailey sustained. The
Baribaults’ Brief at 14. As stated, the injured party, Mr. Hailey, was employed
by Bancroft. After Mr. Hailey filed a complaint against the Baribaults, the
Baribaults sought to join Bancroft as an additional defendant. The trial court
concluded that the Baribaults were precluded from joining Bancroft as an
additional defendant pursuant to the Workers’ Compensation Act.2 Trial Court
Opinion, 3/2/20, at 7. We agree.
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2Act of June 2, 1915, P.L. 736, No. 338, as amended, 77 P.S. §§ 1-1041.4,
2501-2710.
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“Worker[s’] Compensation can best be understood as a replacement of
common law tort actions between employees and employers as a means for
obtaining compensation for injuries.” Markle v. Workmen’s Comp. Appeal
Bd. (Caterpillar Tractor Company), 661 A.2d 1355, 1357 (Pa. 1995). The
relevant portion of the Workers’ Compensation Act provides as follows:
(a) The liability of an employer under this act shall be exclusive
and in place of any and all other liability to such employes,1 his
legal representative, husband or wife, parents, dependents, next
of kin or anyone otherwise entitled to damages in any action at
law or otherwise on account of any injury or death as defined in
section 301(c)(1) and (2)2 or occupational disease as defined in
section 108.3
1 [Spelling] in original.
2 77 P.S. § 411(1), (2).
3 77 P.S. § 27.1.
(b) In the event injury or death to an employe is caused by a third
party, then such employe, his legal representative, husband or
wife, parents, dependents, next of kin, and anyone otherwise
entitled to receive damages by reason thereof, may bring their
action at law against such third party, but the employer, his
insurance carrier, their servants and agents, employes,
representatives acting on their behalf or at their request shall not
be liable to a third party for damages, contribution, or indemnity
in any action at law, or otherwise, unless liability for such
damages, contributions or indemnity shall be expressly provided
for in a written contract entered into by the party alleged to be
liable prior to the date of the occurrence which gave rise to the
action.
77 P.S. § 481 (footnotes in original).
The trial court provided a thorough discussion of the relevant facts and
examination of the pertinent legal authority, and it explained as follows:
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“This section 77 [P.S.] § 481(b), it has been said,
manifested a broad legislative intent to bar the joinder of an
employer as an additional defendant.” Heckendorn v. Consol. Rail
Corp., 439 A.2d 674, 675 (Pa. Super. Ct. 1981), aff’d, 465 A.2d
609 (Pa. 1983) (citation omitted). “[Section] 481(b) has
‘obliterated’ the common law cause of action against the employer
and foreclosed the adjudication of liability on the part of the
employer...[.] It has created an exception to the general right of
contribution among tortfeasors.” Id. “Thus a defendant whose
negligence is alleged to be responsible for an injury suffered by
an employee protected by the Work[ers’] Compensation Act, may
not, in the suit brought against him, join the employer as
an additional defendant.” Id. (emphasis added) ….
“In order for an employer to be held liable in indemnification
for injuries to its own employees caused by the negligence of the
indemnitee there must be an express provision for this
contingency in the indemnification clause.” Bester v. Essex Crane
Rental Corp., 619 A.2d 304, 308 (Pa. Super. Ct. 1993) (emphasis
added). “In order to avoid the ambiguities which grow out of the
use of general language, contracting parties must specifically
use language which demonstrates that a named employer agrees
to indemnify a named third party from liability for acts of that third
party’s own negligence which result in harm to the employees of
the named employer.” Id. at 308-309 (emphasis added); see also
Bethlehem Steel Corp. v. MATX, Inc., 703 A.2d 39, 43 (Pa. Super.
Ct. 1997) (citing Ruzzi v. Butler Petroleum Company, 527 Pa. 1,
588 A.2d 1 (1991)) (requiring intent to indemnify against the
negligence of the indemnitee be expressed in “unequivocal
terms”);[3] Greer v. City of Philadelphia, 795 A.2d 376, 380 (Pa.
____________________________________________
3Ruzzi reaffirmed the holding from Perry v. Payne, 66 A. 553 (Pa. 1907)
explaining the specificity with which an agreement to indemnify must be
expressed in a contract. In Perry, our Supreme Court held:
[A] contract of indemnity ... should not be construed to indemnify
against the negligence of the indemnitee, unless it is so expressed
in unequivocal terms. The liability on such indemnity is so
hazardous, and the character of the indemnity so unusual and
extraordinary, that there can be no presumption that the
indemnitor intended to assume the responsibility unless the
contract puts it beyond doubt by express stipulation.
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2002) (rejecting adoption of contractual interpretation that
requires indemnitor to indemnify the indemnitee’s negligence
unless the contract language is “clear and unambiguous” such that
the “contract puts it beyond doubt”). “Case law has established
that the indemnity provision in the Work[ers’] Compensation Act
must be construed strictly, and general indemnity language such
as ‘any or all’ or ‘any nature whatsoever’ is insufficient.” Bester,
619 A.2d at 307 (quoting Pittsburgh Steel Co. v. Patterson—
Emerson—Comstock, Inc., 171 A.2d 185 (Pa. 1961)).
Here, [the Baribaults] failed to prove that the Lease
contained language sufficient to overcome the immunity afforded
by the Workers’ Compensation Act—requiring this [c]ourt to reject
[the Baribaults’] contractual claim for contribution and
indemnification. While the Lease Renewal and Sections 12 and 13
of the Lease address indemnification of [the Baribaults] by
[Bancroft], the indemnification language is extremely broad,
indemnifying for “any personal injury” and “any and all liability.”
See Am. Joinder Compl. at Ex. D, ¶¶ 12-13; Docket Entry 87 at
Ex. F. Under Bester, such general phrases are insufficient to hold
an employer liable in indemnification for injuries to its own
employees caused by negligence of the indemnitee.
Even if the indemnification language was more specific, the
standard set forth in Bester requires that there be an express
provision demonstrating the employer agrees to indemnify the
third party for its own acts of negligence. In this case, not only
does the Lease lack an express provision indemnifying [the
Baribaults] for their own negligence, but the Lease actually
contains an express provision saying just the opposite. Sections
12 and 13 of the Lease expressly state that the obligation to
indemnify [the Baribaults] does not extend to circumstances
where injuries of employees result from [the Baribaults’] own
negligence or breach. See Am. Joinder Compl. at Ex. D, ¶ 12
(“[The Baribaults] shall not be responsible or liable for...any
personal injury...unless such loss, damage, or injury results
____________________________________________
Perry, 66 A. at 557. The requirement that an agreement to indemnify should
not be construed to indemnify against the negligence of the indemnitee unless
the agreement is specific and expressed in unequivocal terms has been
termed the “Perry/Ruzzi rule.” Integrated Project Services v. HMS
Interiors, Inc., 931 A.2d 724, 736 (Pa. Super. 2007).
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from [the Baribaults’] negligence.”) and ¶ 13 (“[Bancroft] will
indemnify and save harmless [the Baribaults] against and from
any and all liability arising from the...injury...unless such injury
results from [the Baribaults’] negligence or [the
Baribaults’] breach of this Lease.”). Notably, [the Haileys’]
claims for which [the Baribaults] seek contribution and
indemnification are brought solely against [the Baribaults] for
their own negligent acts. Because the Lease carves out exceptions
in which [Bancroft] expressly states it does not agree to indemnify
[the Baribaults] for their own negligence, this alone bars [the
Baribaults’] claim for indemnification and contribution.
Nevertheless—in spite of the plain language to the
contrary—-[the Baribaults] maintain that the Lease expressly
provides them with the right to indemnification. In support of this
position, [the Baribaults] direct this [c]ourt’s attention to Section
13 of the Lease, which indemnifies [the Baribaults] where injuries
take place in a location “within the exclusive control of [Bancroft].”
[The Baribaults] make the case that several provisions of the
[L]ease, when read together, establish that [Bancroft]
unquestionably controlled the entire Subject Property. For
example, Section 8 of the Lease provides that [Bancroft] shall be
responsible for maintenance “of the entire premise” and obligated
to perform repair to “the Premises” generally. Similarly, Section 9
of the Lease states [the Baribaults] must give twenty-four hour
notice before entering the Premises, while the Lease Renewal term
speaks to [Bancroft] having “sole possession and control of the
premises.” In emphasizing this select language, [the Baribaults]
argue that Section 13 does expressly indemnify [the Baribaults]
because the parties’ intent and the Lease as a whole make
[Bancroft] control over the Property so sweeping as to obviate the
import of the line excluding [the Baribaults] own acts from
indemnification.
In support of their position that the Lease must be
interpreted to require indemnification, [the Baribaults] heavily cite
Bethlehem Steel Corp. v. MATX, Inc., 703 A.2d 39, 42 (Pa. Super.
Ct. 1997). “In construing a contract, each and every part of it
must be taken into consideration and given effect, if possible, and
the intention of the parties must be ascertained from the entire
instrument.” Id. (quoting Village Beer & Beverage, Inc. v. Vernon
D. Cox, Inc., 475 A.2d 117, 121 (Pa. Super. Ct. 1984)). “The
intention of the parties is paramount and the court will adopt an
interpretation which under all circumstances ascribes the most
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reasonable, probable, and natural conduct of the parties, bearing
in mind the objects manifestly to be accomplished.” Id.
For all of [the Baribaults’] effort to convince this [c]ourt that
Bethlehem necessitates reading the parties’ Lease to require
indemnification, this [c]ourt remains unpersuaded. The critical
flaw in [the Baribaults’] argument is that in their insistence that
this [c]ourt discern the “intent” of the parties and look to the Lease
as a whole, they also ask this [c]ourt to completely ignore the
express language of the Lease excluding [the Baribaults’] own
negligent acts from indemnification. [The Baribaults’] argument,
in effect, would have this [c]ourt read the indemnification
provision up until where the Lease states that [Bancroft] “will
indemnify and save harmless” [the Baribaults], but then stop
reading before the key limiting text a few lines further, which says
“unless such injury results from [the Baribaults’] negligence or
[the Baribaults] breach of this Lease.”
Further, the [c]ourt finds that [the Baribaults’] attempts to
parallelize Bethlehem with this case fail, given crucial differences
in the indemnification language at issue. Unlike this case, the
indemnity provision in Bethlehem contained language expressing
in unequivocal terms the intent for a third party to be indemnified
“whether negligent or otherwise.” Bethlehem, 703 A.2d at 42
(emphasis added). In Bethlehem, the court grappled with the fact
that one paragraph of a contract contained express language
indemnifying a third party for its own negligence, while the
preceding paragraph was silent as to this issue. Bethlehem
ultimately held that despite one paragraph not containing
language expressing a clear intent to indemnify third parties for
their own negligence, a different paragraph’s inclusion of such
express language showed a clear intent to indemnify these third
parties when reading the contract as a whole. Here, the parties
could have included explicit language agreeing to indemnify [the
Baribaults] for their own acts of negligence or stayed silent on this
matter but instead chose to include express language barring
indemnification for [the Baribaults’] own negligence, unlike in
Bethlehem.
Even when considering the Lease as a whole per Bethlehem,
it is unclear that the parties’ intent would have been to give no
effect to the language barring indemnification for [the Baribaults’]
own negligent acts. Contrary to [the Baribaults’] assertions, this
[c]ourt finds that the Lease as a whole does not establish that the
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location of [Mr. Hailey’s] injury was under the “exclusive control”
of [Bancroft]. While many provisions speak to [Bancroft] being
generally responsible for the Subject Property, others carve out
exceptions suggesting non-exclusivity of control. For instance,
Section 8 provides “[the Baribaults], at [the Baribaults’]
discretion, may make such repairs” and “[the Baribaults] agree to
repair interior and exterior of premises every three years...[.]” In
addition, although the Lease Renewal states [Bancroft] is to have
possession and control, [the Baribaults] should be notified “of any
required repair.” Together, the inclusion of these provisions
suggests some retention of control of the Subject Property by [the
Baribaults]—at least enough to counter [the Baribaults] claim that
the parties’ intent was for [Bancroft] to adopt blanket
responsibility for [the Baribaults’] own negligence.
The conduct of [the Baribaults] is consistent with reading
the Lease to suggest the location of [Mr. Hailey’s] injury was not
under the “exclusive control” of [Bancroft], considering that [the
Baribaults] accepted responsibility and control of the area upon
sending Mr. Baribault to perform an inspection and potentially
make repairs. Ultimately, any allegation by [the Baribaults] that
the parties expressed clear intent for [Bancroft] to be responsible
for the location of [Mr. Hailey’s] injury is at odds with the inclusion
of the plain language excluding indemnity for [the Baribaults’] own
negligence—language that the Court in Bethlehem did not have to
reconcile when analyzing the contract as a whole. Overall, this
Court has carefully “given effect” to “each and every part” of the
Lease, attempted to ascertain the intent of the parties, and done
its best to adopt an interpretation ascribing “the most reasonable,
probable, and natural conduct of the parties.” Bethlehem, 703
A.2d at 42. That this [c]ourt followed the instruction of Bester and
Bethlehem but ultimately disagreed with [the Baribaults] as to the
exact intent of the parties—both with respect to “exclusive
control” of the incident location and application of indemnity to
[the Baribaults’] own negligence—is not an error on the part of
this [c]ourt.
Trial Court Opinion, 3/2/20, at 7-13 (internal brackets omitted) (emphases in
original).
After careful review, we agree with the trial court. The Lease
unequivocally provides that the Baribaults are liable for their own negligence.
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The Lease, 1/14/00, at ¶¶ 12-13. There is nothing in the Lease evidencing
Bancroft’s specific agreement to waive the immunity from joinder afforded
employers under the Workers’ Compensation Act and indemnify the Baribaults
for Mr. Hailey’s injury. The general, boilerplate language in the Lease is
insufficient. See Bester v. Essex Crane Rental Corp., 619 A.2d 304, 309
n.2 (Pa. Super. 1993) (applying the Perry/Ruzzi rule). Accordingly, the
Baribaults are precluded from joining Bancroft as an additional defendant or
subjecting Bancroft to liability outside of Bancroft’s separate liability under the
Workers’ Compensation Act. Id. at 307. Therefore, there is no genuine issue
of material fact, and Bancroft is entitled to judgment as a matter of law.
Hovis, 64 A.3d at 1081.
Nevertheless, the Baribaults also claim that they are seeking
indemnification for Bancroft’s alleged negligence, and the Perry/Ruzzi rule
should not preclude indemnification. The Baribaults’ Brief at 16. In support
of this contention, the Baribaults cite Mace v. Atlantic Refining Marketing
Corp., 785 A.2d 491 (Pa. 2001). The Baribaults’ Brief at 16. We conclude
that Mace is distinguishable.
As noted above, the Perry/Ruzzi rule provides that an indemnity
contract against personal injuries should not be construed to indemnify
against the negligence of the indemnitee unless it is specific and expressed in
unequivocal terms. In Mace, Atlantic Refining & Marketing Corporation
(“Atlantic”) owned a gas station/convenience store, Bassam Barqawi
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(“Barqawi”) was a franchisee operating the store, and Bobby Perry (“Perry”)
was a stock clerk at the store. Mace, 785 A.2d at 493-494. While working
at the store one night, Perry assaulted a customer of the store, Edward Keyse
Mace (“Mace”), with a baseball bat. Mace sued Atlantic, Barqawi, and Perry
to recover damages for the injuries he sustained in the attack. Atlantic filed
cross-claims against Barqawi for contractual indemnity and breach of contract,
asserting that Barqawi had an obligation under the lease to defend Atlantic
against Mace’s claims. Pursuant to the lease between Atlantic and Barqawi,
Atlantic filed a motion for summary judgment arguing that as a matter of law,
Atlantic was not liable in any manner to Mace. The trial court concluded that
Atlantic was not negligent, granted Atlantic’s motion for summary judgment,
and dismissed all claims and cross-claims against Atlantic. Nevertheless,
Atlantic continued its cross-claims against Barqawi for defense costs and legal
fees that it expended in defending itself in Mace’s personal injury action. The
trial court concluded that under the lease, Barqawi had no obligation to defend
Atlantic in the personal injury action instituted by Mace, and based on this
ruling, the trial court dismissed Atlantic’s cross-claims against Barqawi. Id.
493-495.
On appeal, a majority of a panel of this Court affirmed based on the
Perry/Ruzzi rule. Mace v. Atlantic Refining & Marketing Corp., 717 A.2d
1050 (Pa. Super. 1998). The Supreme Court of Pennsylvania granted
allowance of appeal and reversed. Our Supreme Court held:
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the Perry-Ruzzi rule is simply not applicable to the instant case
because Atlantic is not seeking to relieve itself of responsibility for
its own negligence. Atlantic did not fail to perform any of its
obligations under the Agreement and Lease. Instead, Atlantic was
merely charged with negligence based on the actions of Perry, one
of Barqawi’s employees. As the Superior Court recognized,
Atlantic was “loosed of all tort responsibility in the
underlying case” when the trial court granted Atlantic’s
motions for summary judgment, thereby dismissing with
prejudice all claims and cross-claims against Atlantic. Since
Atlantic was adjudicated a non-negligent party, the Perry-
Ruzzi rule is, by definition, not relevant here.
Mace, 785 A.2d at 495 (internal citation omitted) (emphases added).
There are key distinctions between Mace and the instant case. In
Mace, the plaintiff was not an employee, and the Workers’ Compensation Act
was not implicated as a bar to Atlantic pursuing contribution from Barqawi.
Moreover, Atlantic, the owner of the premises, was specifically adjudicated
“non-negligent.” Mace, 785 A.2d at 495.
Herein, the Baribaults are precluded from seeking contribution or
indemnification from Bancroft under the Workers’ Compensation Act.
Moreover, the Baribaults were never adjudicated non-negligent. Therefore,
the trial court correctly applied the Perry/Ruzzi rule. Because there was no
specific language whereby Bancroft contracted to indemnify the Baribaults,
there can be no indemnification. As we noted above, Bancroft’s liability falls
within the exclusive purview of the Workers’ Compensation Act absent a
specific agreement otherwise. Bester, 619 A.2d at 307; 77 P.S. § 481.
Herein, the Haileys initiated this action against the Baribaults for the
Baribaults’ negligence, and it was the Baribaults that attempted to join
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Bancroft as an additional defendant. Bancroft did not waive immunity under
the Workers’ Compensation Act and did not specifically agree to indemnify the
Baribaults pursuant to the Perry/Ruzzi rule; therefore, the Baribaults are
prohibited as a matter of law from seeking contribution or indemnification
from Bancroft. Bester, 619 A.2d at 307; 77 P.S. § 481.
In the final portion of their argument, the Baribaults’ contend that they
were merely a “landlord out of possession and not liable for the injuries
allegedly sustained by Mr. Hailey.” The Baribaults’ Brief at 17. After review,
we fail to see how this assertion has any bearing on the trial court’s ruling that
Bancroft could not be joined as an additional defendant and granting summary
judgment in favor of Bancroft. Moreover, the Baribaults reached a settlement
with the Haileys. Trial Court Opinion, 3/2/20, at 5; Notice of Stipulation of
Settlement, 12/17/19. We have already concluded that the Baribaults were
not permitted to join Bancroft as an additional defendant and were not entitled
to contribution or indemnification. Accordingly, we need not address whether
the Baribaults were a landlord out of possession.
Assuming, arguendo, that we were to reach this claim, we would agree
with the trial court that the Baribaults were not a landlord out of possession.
Trial Court Opinion, 3/2/20, at 15. “As a general rule, a landlord out of
possession is not liable for injuries incurred by third parties on the leased
premises because the landlord has no duty to such persons.” Jones v. Levin,
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940 A.2d 451, 454 (Pa. Super. 2007). However, this rule is subject to
exceptions:
A landlord out of possession may incur liability (1) if he has
reserved control over a defective portion of the demised premises;
(2) if the demised premises are so dangerously constructed that
the premises are a nuisance per se; (3) if the lessor has
knowledge of a dangerous condition existing on the demised
premises at the time of transferring possession and fails to
disclose the condition to the lessee; (4) if the landlord leases the
property for a purpose involving the admission of the public and
he neglects to inspect for or repair dangerous conditions existing
on the property before possession is transferred to the lessee; (5)
if the lessor undertakes to repair the demised premises and
negligently makes the repairs; or (6) if the lessor fails to make
repairs after having been given notice of and a reasonable
opportunity to remedy a dangerous condition existing on the
leased premises.
Dorsey v. Continental Associates, 591 A.2d 716, 718-719 (Pa. Super.
1991) (citing Henze v. Texaco, Inc., 508 A.2d 1200, 1202 (Pa. Super. 1986)
(internal citations omitted)).
The trial court addressed this issue as follows:
In the instant case, [the Baribaults] cannot claim error by
contending that this [c]ourt should have found that the landlord
out of possession rule barred [the Baribaults] from any and all
liability for negligence. The record before this [c]ourt established
that [the Baribaults’] conduct could fit squarely within the purview
of exceptions five and six of the landlord out of possession rule.
Specifically, the evidence suggested that [the Baribaults] were put
on actual notice of the condition causing [Mr. Hailey’s] injury
twenty (20) months prior to his fall, having received an email on
October 5, 2010 from [Bancroft’s] housing specialist reporting
that the Subject Property needed “kitchen tile and the tile leading
to the basement replaced immediately.” See Docket Entry 94 at
Ex. N. Rather than advising [Bancroft] that the location in need of
repair was under the “exclusive control” and the sole
“responsibility” of [Bancroft]—[which] would have been consistent
with the position [the Baribaults] take now—[the] Baribault[s]
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accepted the location of the proposed repair as falling under the
control and responsibility of [the Baribaults] and sent Mr. Baribault
to the location of [Mr. Hailey’s] injury to inspect and repair the tile
there. See Docket Entry 92 at Ex. 4, pp. 175-77.
Upon inspection, Mr. Baribault concluded that the kitchen
tile needed replaced but that the tile on the basement landing—
the future site of [Mr. Hailey’s] injury—did not require
replacement. See id. at Ex. 3, pp. 24-35. At odds with his decision
to not replace the basement landing tile, Mr. Baribault testified at
deposition that the basement landing used “self-stick” tiles that
he would not have personally chosen to install, given his opinion
that such tiles were “an inferior product” that is thin and “wears
out quick.” Id. at pp. 33-36. Following [the Baribaults’] inaction in
the face of having notice of a dangerous condition and having
undertaken responsibility for it, [Mr. Hailey] was injured on the
same basement landing Mr. Baribault previously deemed safe.
[Mr. Hailey] summarized the incident as follows: “the floor tiles
moved, and I tripped and fell down the steps.” Id. at Ex. 2, pp.
75-76. Consistent with [the Baribaults] having accepted the
location of [Mr. Hailey’s] injury as under their control and
responsibility, [the Baribaults] replaced the stair system leading
to the basement two weeks after [Mr. Hailey’s] fall. See id. at Ex.
3, pp. 20-21.
Therefore—by their own testimony—[the Baribaults] could
be found to owe a duty to [the Haileys] despite [the Baribault’s]
status as landlords out of possession, having “undertaken to
repair the demised premises and negligently making the repairs”
or having “‘failed to make repairs after having been given notice
of and a reasonable opportunity to remedy a dangerous condition
existing on the leased premises.” Henze v. Texaco, Inc., 508 A.2d
at 1202. As such, this [c]ourt did not err in declining to accept
[the Baribaults’] position that their status as landlords out of
possession barred any claim of negligence against them.
***
To the extent that [the Baribaults] argue that this [c]ourt
should have found [Mr. Hailey’s] injury was caused in whole or in
part by the negligence of [Bancroft], this [c]ourt found that even
when viewing the record “in the light most favorable to the non-
moving party” and resolving all doubts as to the existence of a
genuine issue of material fact against the moving party, [Bancroft]
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met its burden of establishing the absence of any genuine issues
of material fact. See Payne[ v. Commonwealth Dept. of
Corrections,] 871 A.2d [795,] 800 [(Pa. 2005)]; Pa. R.C.P.
1035.2. Although [the Baribaults] extensively quoted the
depositions of former and current employees of [Bancroft], [the
Baribaults] ultimately failed to adduce sufficient evidence to
establish that [Bancroft] had notice of any alleged defect or
dangerous condition at the basement landing where [Mr. Hailey’s]
injury occurred. To the contrary, there is clear evidence that [the
Baribaults] had specific awareness of a defect or condition at the
location of [Mr. Hailey’s] injury, as seen by the email asking [the
Baribaults] to replace tile at the injury location and Mr. Baribault’s
testimony that he declined to do so, despite being of the opinion
that the tile used an “inferior product” that would wear out shortly.
Despite having specific knowledge of the potential dangerous
condition of the tile upon close inspection, [the Baribaults] did not
alert [Bancroft] or otherwise indicate such condition was
[Bancroft’s] responsibility for repair.
Although past and present employees of [Bancroft] testified
to their inspection duties and a procedure by which potential
defects or conditions were to be reported, none could provide
specific evidence establishing [Bancroft] knew, or could have
known, of the existence of a dangerous defect or condition in the
location of [Mr. Hailey’s] injury. Even if these employees did
establish [Bancroft] had notice of a dangerous defect or condition,
this [c]ourt notes again that in this case, [Mr. Hailey] only alleged
negligence on the part of [the Baribaults], and [Bancroft]
expressly excluded [the Baribaults’] own negligence from its duty
to indemnify. “[A] defendant whose negligence is alleged to be
responsible for an injury suffered by an employee protected by
the Work[ers’] Compensation Act, may not, in the suit brought
against him, join the employer as an additional defendant.”
Heckendorn, 439 A.2d at 675. Thus, with the only evidence of
notice of a potential defect or condition at the location of [Mr.
Hailey’s] injury being that which established [the Baribaults] had
notice, this Court did not err in granting [Bancroft]’s Motion for
Summary Judgment.
Trial Court Opinion, 3/2/20, at 13-16 (original brackets omitted) (emphasis
added).
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The record reveals that the Baribaults had actual notice of the defective
condition of the flooring twenty months prior to Mr. Hailey’s fall. The Hailey’s
Answer to the Baribaults’ Motion for Summary Judgment, 5/1/18 (Exhibit 1,
Email to Ms. Baribault, 10/5/10). Mr. Baribault stated that he inspected the
condition of the flooring and made repairs to certain areas and even
commented on the inferior quality of the tiles on the landing where Mr. Hailey
fell. Id. at Exhibit 3 (Mr. Baribaults’ Deposition, N.T., 7/19/17, at 30-40);
Exhibit 4 (Mr. Baribaults’ Deposition, N.T., 7/19/17, at 175).
If we were to reach this issue, we would conclude that the Baribaults’
conduct reflected that they retained control over the Subject Property and
repairs thereto, they had actual notice of the need for repairs, and they failed
to make the required repairs before Mr. Hailey was injured. For these reasons,
we would agree with the trial court that the Baribaults were not a landlord out
of possession. Trial Court Opinion, 3/2/20, at 15; Dorsey, 591 A.2d 716,
718-719.
For the reasons set forth above, we conclude that the trial court
committed no error of law or abuse of discretion in its June 4, 2018 order
granting Bancroft’s motion for summary judgment and denying the Baribaults’
motion for summary judgment. Accordingly, we affirm.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/20
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