Opinion

Thomas, L. v. Ott, R.

Court: Superior Court of Pennsylvania
Filed: May 24, 2021
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.6%

“[I]n determining whether an appellant has waived his [or her] issues on appeal based on non- compliance with [Rule] 1925, it is the trial court’s order that triggers an appellant’s obligation[;] … therefore, we look first to the language of that order.”

How later courts described this case

“[I]n determining whether an appellant has waived his [or her] issues on appeal based on non- compliance with [Rule] 1925, it is the trial court’s order that triggers an appellant’s obligation[;] … therefore, we look first to the language of that order.”
determining that the appellant failed to comply with Rule 2119(a) where the appellant’s brief did not “present and develop eight arguments in support of the eight questions raised”

Written by the judges who cited it.

The opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LISA THOMAS : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

v. :

RAYMOND G. OTT : No. 712 WDA 2020

Appeal from the Order Entered June 8, 2020

In the Court of Common Pleas of Allegheny County Civil Division at

No(s): AR 18-04747

BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.

MEMORANDUM BY BENDER, P.J.E.: FILED: May 24, 2021

Appellant, Lisa Thomas (“Tenant”), appeals from the trial court’s June

8, 2020 order, granting Appellee’s, Raymond G. Ott (“Landlord”), motion for

summary judgment and dismissing all claims against him with prejudice. After

careful review, we reverse and remand.

On September 1, 2017, Tenant and her husband leased an apartment

at a property owned by Landlord located at 1098 Glenfield Road in Sewickley,

Pennsylvania. In the afternoon of February 14, 2018, Tenant slipped on an

accumulation of ice in the driveway area of the property and fell, sustaining a

severe ankle fracture, among other things. On December 14, 2018, Tenant

filed a complaint against Landlord, alleging, inter alia, that she slipped due to

Landlord’s “failure to clean the driveway[,] which allowed ice to build up over

a week.” Complaint, 12/14/18, at ¶ 5. Therein, she also averred that Landlord

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“owned and maintained” the 1098 Glenfield Road property, id. at ¶ 3, but

resided at 1105 Glenfield Road. Id. at ¶ 2.

On December 12, 2019, Landlord filed a motion for summary judgment,

setting forth two main arguments. First, Landlord asserted that the lease

includes an exculpatory clause, which bars Tenant from any recovery against

him. This exculpatory clause provides that:

LESSOR shall not be subject to liability for any injury or damage

to any person or to any property at any time on said PREMISES

or building from any cause whatever [sic] that may at any time

exist from the use or condition of said PREMISES or building or

from ice thereon, or from water, rain or snow which may leak into,

issue or flow from any pan of said building, or from the pipes or

plumbing of the same, or as a result of mold or mildew being

present in any parts of PREMISES, or from any other place or from

any other cause, during said term or any renewal thereof.

See Landlord’s Motion for Summary Judgment, 12/12/19, Exhibit A (Lease)

at 2 (unnumbered pages). Second, Landlord contended that “the lease terms

designate snow and ice removal to [Tenant].” Id. at ¶ 5 (citing the lease

agreement generally). In support of this claim, Landlord set forth the

following:

II. Under the terms of the lease, [Tenant], as the tenant, is

responsible for snow and ice removal.

12. “The tort of liability of an owner of leased property for injuries

suffered in falls occurring on leased premises is dependent upon

whether the owner also occupies and controls a portion of the

leased property, or has a contractual arrangement with the tenant

addressing responsibility for the maintenance of the area where

the fall occurred.” Mills v. Gubbio’s LLC, 50 Pa.D.& C.5th 520,

528 ([Lacka. Cty.] 2015).

13. Where the lease between the parties places the responsibility

of sidewalk or property maintenance, cleaning, or snow/ice

removal upon the tenant, the tenant has full and exclusive control

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of the leased premises. Miller v. Atl. Ref. Co., 12 Pa.D.& C.2d

713, 719 ([Phila. Cty.] 1957)[.]

14. In [Tenant’s] deposition, she also acknowledged that snow

and ice removal was her responsibility. (Deposition Transcript:

Pg. 15 10-18)[.]

15. In this matter, [Tenant] expressly consented to both the

exculpatory clause in the lease and her responsibility for snow and

ice removal.

16. The lease was in effect at the time of the alleged fall.

17. There is no evidence of record that show that [Landlord]

breached any duty with respect to the condition of the premises

as a matter of law.

18. As such, [Tenant] is barred from recovery and [s]ummary

[j]udgment must be entered in favor of [Landlord].

Landlord’s Motion for Summary Judgment at ¶¶ 12-18 (emphasis in original).

Tenant subsequently filed a brief in opposition. In her brief, she

contended that there are genuine issues of material fact regarding the

enforceability of the exculpatory language in the lease. She argued that there

is no evidence that the exculpatory clause in question was expressly bargained

for by parties of equal bargaining power, and claimed that “the exculpatory

clause specifically states that the Lessor is not subject to liability for injury on

the PREMISES. Premises are defined as 1098 Glenfield Road, Apt. #1,

Sewickley, PA 15143. [Tenant’s] accident did not happen in Apartment #1.

Her accident occurred on [the] common area driveway which served other

apartments. The lease does not mention the driveway or common areas.”

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Tenant’s Brief in Opposition, 6/5/20, at 4.1 Further, she claimed that the lease

“specifically states that the lessee is responsible to keep all sidewalks free

from snow and ice. In her deposition, [Tenant] acknowledged the clause, but

contends in her deposition that she did not have any sidewalks, she only had

steps.” Id. at 5 (emphasis in original; citation omitted). 2 Finally, Tenant

advanced that the Sewickley Borough Code provides that owners of property

must always maintain sidewalks in a safe, unobstructed manner, and that a

landlord may not use a lease’s exculpatory clause to escape liability for the

violation of a statutorily-imposed duty. Id. (citation omitted).

The trial court held argument on Landlord’s motion for summary

judgment on June 8, 2020. Upon review, the trial court granted summary

judgment in favor of Landlord.3 Subsequently, on June 17, 2020, Tenant filed

a motion for reconsideration, which the trial court denied. Thereafter, Tenant

filed a timely notice of appeal on July 1, 2020, and timely complied with the

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1It is unclear how many apartments are at the 1098 Glenfield Road property.

However, we glean from the record that there is more than one. Tenant’s

attorney represented that there are at least four apartments at this property,

and Landlord’s attorney characterized the property as “a residential apartment

complex” and alluded to the driveway area being a “common area.” N.T.,

6/8/20, at 2, 3; see also id. at 5.

2 The lease provides that “TENANT further agrees to keep all sidewalks free

from snow and ice.” Lease at 2.

3 It is also unclear if discovery was completed at the time of the trial court’s

ruling.

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trial court’s directive to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal.4

The trial court then issued a Rule 1925(a) opinion. Initially, it provided

the following procedural history of the case:

[Tenant] appealed this [c]ourt’s [o]rder of June 8, 2020, which

dismissed her claims against her former [l]andlord…. This is a

slip[-]and[-]fall claim that originated when [Tenant] suffered an

injury on February 14, 2018. She allegedly slipped on an

accumulation of ice in the driveway area of the leased premises

located at 1098 Glenfield Road…. [Tenant] and her husband had

leased the home several months earlier on September 1, 2017.

While the [c]omplaint alleged that [Landlord] resided elsewhere,

but did own and maintain the leased premises, the [c]omplaint

never identified [Tenant] as [Landlord’s] tenant. The [c]omplaint

also fails to set forth a claim for negligence against [Landlord].

According to the [c]omplaint, [Landlord] is not claimed to owe any

duty to [Tenant], nor does it accuse him of a breach of a duty.

Nevertheless, the [c]omplaint survived unchallenged[,] and

[Landlord] filed a [m]otion for [s]ummary [j]udgment

based upon a so-called “exculpatory clause,” citing to the

lease which set forth that “[Landlord] shall not be subject to

liability for any injury to any person … at any time from the use

or condition of the premises or building … from ice there on [sic],

or from water, rain or snow.”

Argument on [Landlord’s] [m]otion was restricted to the

enforceability of the “so called” Exculpatory Clause.

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4The trial court’s order directing Tenant to file a Rule 1925(b) statement did

not advise her that any issue not raised in her Rule 1925(b) statement would

be deemed waived. See Greater Erie Indus. Dev. Corp. v. Presque Isle

Downs, Inc., 88 A.3d 222, 225 (Pa. Super. 2014) (“[I]n determining whether

an appellant has waived his [or her] issues on appeal based on non-

compliance with [Rule] 1925, it is the trial court’s order that triggers an

appellant’s obligation[;] … therefore, we look first to the language of that

order.”) (citations omitted).

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Trial Court Opinion (“TCO”), 8/25/20, at 1-2 (emphasis added). After setting

forth the standard of review for summary judgment, the trial court then

provided the rationale for its disposition for the first time, determining that

“[Landlord], as [a] landlord out of possession, was not responsible for

maintenance of the premises or the driveway where [Tenant] fell and[,] thus,

owed no duty of care to her, pursuant to the substantive law of Pennsylvania.”

Id. at 2 (unnecessary capitalization omitted). Specifically, it explained:

For [Tenant] to prevail in a [n]egligence action under

Pennsylvania state law, [Tenant] must establish that [Landlord]

(1) owed a duty of care to [Tenant]; (2) that the duty was

breached; (3) the breach resulted in [Tenant’s] injury; and (4)

[Tenant] suffered actual loss or damage. Merini v. Gallitzen

Water Auth., 980 A[.]2d 502, 506 ([Pa.] 2009).

In the present case, [Tenant] failed to plead a case for negligence.

Further, [Tenant] failed to plead any claim that [Landlord]

retained any portion of the leased premises that would exclude

him from the general rule that, as a landlord out of possession, he

had no responsibility for what happened on the area in which

[Tenant] allegedly fell.

Under Pennsylvania law, a lessor of land is not liable to the lessee

or others, including business invitees for physical harm caused by

either natural or artificial conditions on the land which existed

when the land was transferred or which arise after the transfer of

possession. Deeter v. Dull Corp[.], Inc., 617 A[.]2d 336, 338,

340 ([Pa. Super.] 1992). This rule is based on the principle that

“the law regards the lease transaction as the equivalent to the

sale of the land for the term of the lease.” [Id.] at 338-[]40.

Thus, liability is premised primarily on possession and control, and

not merely on ownership. Id. [a]t 339.

The Pennsylvania courts have established a number of exceptions

to the general rule of non-liability for out-of-possession landlords.

None of them were raised in opposition to the motion for summary

judgment prior to[,] or during[,] argument.

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[Tenant] failed to argue that [Landlord] reserved any control over

a defective portion of the property, that the demised premises

were dangerously constructed, which resulted in a nuisance per

se, that [Landlord] had any knowledge of a dangerous condition

of the property at the time of transferring possession and failed to

disclose the condition to [Tenant], or if leased for admission to the

general public[, that] he failed to inspect or repair dangerous

conditions before [the] property [wa]s leased to [Tenant], or

failed to undertake repair after having been given notice. See

Henze v. Texaco, Inc., 508 A[.]2d 1200, 1202 … (Pa. Super.

1986).

Again, the six … exceptions were never raised prior to[,] or

during[,] argument. Without evidence to support an exception to

the general rule precluding liability against an out[-]of[-

]possession landlord, no duty exists, and no cause of action for

negligence can be supported.

In addition, [Tenant] invokes Sewickley Borough Code Section

287.1, which requires owners to safely maintain pedestrian

walkways or sidewalks in the area between the property itself and

the curb line. However, in the present case, no walkway or

sidewalk exists between the leased property and the curb line.

There is no evidence or allegation that [Tenant] fell in an area of

the driveway that would have been near … such an area. [Tenant]

was deposed prior to the argument and no such fact was revealed.

The lease terminology at issue [in the m]otion for [s]ummary

[j]udgment simply restates the law in Pennsylvania. Without

evidence to support an exception to the rule precluding liability

against an out[-]of[-]possession landlord, no duty exists for

[Landlord] and no cause of action for negligence can be

maintained. [Landlord] is entitled to judgment as a matter of law.

TCO at 2-4.

Now, Tenant raises the following issues for our review:

(a) Whether the lower court erred when it granted summary

judgment based solely on its own conclusion that [Landlord] was

a “landlord out of possession” when the “out of possession”

defense had not been raised in the pleadings, or [Landlord’s]

motion for summary judgment.

(b) Whether the lower court erred when it granted summary

judgment based solely on its own conclusion that [Tenant] failed

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to properly plead her case when that defense had not been raised

in the pleadings, or in [Landlord’s] motion for summary judgment.

summary judgment when [Landlord] and [Landlord’s] witness

were not deposed[.]

(d) Whether the trial court erred when it granted [Landlord’s]

motion without any record evidence to properly support the

enforcement of an exculpatory clause under Pennsylvania law[.]

(e) Whether the lower court erred when it failed to find a genuine

issue of material fact concerning [Landlord’s] potential violation of

a local ordinance regarding property maintenance[.]

Tenant’s Brief at 4.5

Before delving into the merits of Tenant’s issues, we observe that

Tenant raises five issues in her statement of the questions involved. However,

she does not divide the argument section of her brief into five corresponding

parts; instead, she divides it into three, incongruous sections. We admonish

Tenant for her lack of compliance with Pa.R.A.P. 2119(a). See Pa.R.A.P.

2119(a) (“The argument shall be divided into as many parts as there are

questions to be argued; and shall have at the head of each part—in distinctive

type or in type distinctively displayed—the particular point treated therein,

followed by such discussion and citation of authorities as are deemed

pertinent.”); Donaldson v. Davidson Bros., Inc., 144 A.3d 93, 99 n.9 (Pa.

Super. 2016) (determining that the appellant failed to comply with Rule

2119(a) where the appellant’s brief did not “present and develop eight

arguments in support of the eight questions raised”). Notwithstanding,

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5 We have re-ordered Tenant’s issues for ease of disposition.

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Tenant’s noncompliance does not preclude our review, and we will address the

claims she raises in her brief.

As we review Tenant’s claims, we remain mindful of the following:

Our standard of review on an appeal from the grant of a motion

for summary judgment is well-settled. A reviewing court may

disturb the order of the trial court only where it is established that

the court committed an error of law or abused its discretion. As

with all questions of law, our review is plenary.

Krauss v. Trane U.S. Inc., 104 A.3d 556, 562-63 (Pa. Super. 2014)

(citations omitted).

We view the record in the light most favorable to the non-moving

party, and all doubts as to the existence of a genuine issue of

material fact must be resolved against the moving party. Only

where there is no genuine issue as to any material fact and it is

clear that the moving party is entitled to a judgment as a matter

of law will summary judgment be entered.

Motions for summary judgment necessarily and directly implicate

the plaintiff’s proof of the elements of [its] cause of action.

Summary judgment is proper if, after the completion of discovery

relevant to the motion, including the production of expert reports,

an adverse party who will bear the burden of proof at trial has

failed to produce evidence of facts essential to the cause of action

or defense which in a jury trial would require the issues to be

submitted to a jury. Thus, a record that supports summary

judgment will either (1) show the material facts are undisputed or

(2) contain insufficient evidence of facts to make out a prima facie

cause of action or defense and, therefore, there is no issue to be

submitted to the jury.

H & R Block E. Tax Servs., Inc. v. Zarilla, 69 A.3d 246, 248 (Pa. Super.

2013) (citations omitted).

We address Tenant’s first, second, and third issues together. In her first

issue, she claims that “the lower court erred when it granted summary

judgment based solely on its own conclusion that [Landlord] was a ‘landlord

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out of possession’ when the ‘out of possession’ defense had not been raised

in the pleadings, or [Landlord’s] motion for summary judgment[.]” Tenant’s

Brief at 4. Similarly, in her second issue, she complains that “the lower court

erred when it granted summary judgment based solely on its own conclusion

that [Tenant] failed to properly plead her case when that defense had not

been raised in the pleadings, or in [Landlord’s] motion for summary

judgment.” Id. Finally, in her third issue, she says that the trial court should

not have granted Landlord’s motion for summary judgment when Landlord

and Landlord’s witness were not deposed. Id. In support of these claims,

she collectively explains:

Current counsel for [Tenant] entered his appearance on March 5,

2020. [Tenant] had been represented by two other lawyers prior

to [current] counsel being involved. In anticipation of the

summary judgment motion, a request was made to take the

deposition of [Landlord]. Counsel was informed that[,] due to his

advanced age and infirmities[,] the deposition would not elicit any

useful information.[6] A representative was offered as a

substitute, but that deposition was postponed due to the

Coronavirus pandemic.

Because the motion for summary judgment was based almost

solely on the interpretation of the lease agreement, counsel made

the determination to attack the validity of the exculpatory clause,

because there was no record evidence produced by [Landlord] to

legally support the enforceability of the clause. When the trial

court’s opinion was issued, it was a surprise to counsel that the

court based its granting of the summary judgment motion on the

pleadings and the law surrounding a landlord out of possession.

No record was made regarding the control or possession

[Landlord] may have had over the property at the time of the

lease agreement and the fall. The trial court’s conclusion that

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6 At the time of the argument on the motion for summary judgment in June

of 2020, Landlord was 93 years old. See N.T. at 4.

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[Landlord] was a landlord out of possession is not supported by

the record because that record was never properly developed. …

The trial court’s conclusion and interpretation of the pleadings,

when that issue was not presented by [Landlord] or briefed by

[Tenant,] is not the proper basis for the entry of summary

judgment.

Tenant’s Brief at 13-14 (internal citations and footnote omitted).

We agree with Tenant. Landlord did not argue anything below about

the sufficiency of Tenant’s pleadings, nor did he clearly assert that he had no

duty to Tenant because he was a landlord out of possession. Instead, he

sought summary judgment based on the terms of the lease, which the trial

court itself recognized. See TCO at 1 (“[T]he [c]omplaint survived

unchallenged[,] and [Landlord] filed a [m]otion for [s]ummary [j]udgment

based upon a so-called ‘exculpatory clause….’”); id. at 2 (“Argument on

[Landlord’s m]otion was restricted to the enforceability of the ‘so called’

Exculpatory Clause.”). Despite acknowledging that Landlord’s arguments in

favor of summary judgment were based on the terms of the lease, the trial

court nevertheless determined that “[Landlord], as [a] landlord out of

possession, was not responsible for maintenance of the premises or the

driveway where [Tenant] fell and[,] thus, owed no duty of care to her,

pursuant to the substantive law of Pennsylvania.” Id. at 2 (unnecessary

capitalization omitted). This was error. “For a trial court to raise an argument

in favor of summary judgment sua sponte and grant summary judgment

thereon risks depriving the court the benefit of advocacy on the issue, and

depriving the parties the opportunity to be heard.” Yount v. Pennsylvania

Dept. of Corrections, 966 A.2d 1115, 1119 (Pa. 2009) (citation omitted).

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“[T]rial courts should not act as the defendant’s advocate.” Id. (citation and

internal quotation marks omitted).

Here, Tenant explains that she did not advance arguments on the

exceptions to the general rule of non-liability for out-of-possession landlords

or pursue discovery relating to them because Landlord’s summary judgment

motion “was based almost solely on the interpretation of the lease

agreement[.]” Tenant’s Brief at 13. Moreover, in granting summary

judgment in favor of Landlord, the trial court used the deficiencies in the

record with respect to the exceptions against Tenant, weighing that “the six

… exceptions were never raised prior to[,] or during[,] argument” and that,

“[w]ithout evidence to support an exception to the general rule precluding

liability against an out[-]of[-]possession landlord, no duty exists, and no cause

of action for negligence can be supported.” TCO at 3. Using this basis to

grant summary judgment to Landlord, when it was not raised and developed

by him in his motion, is simply unfair to Tenant.7 Accordingly, we cannot

affirm the trial court’s order based on the rationale the court provided, as the

court erred in raising it sua sponte.

We next consider if we may affirm the trial court’s order on any other

basis. See Dockery v. Thomas Jefferson Univ. Hosp., -- A.3d --, 2021 WL

671704, at *3 (Pa. Super. filed Feb. 22, 2021) (“[T]his Court is not bound by

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7 Further, the trial court did not cite to record evidence to support its assertion

that Landlord was not responsible for the maintenance of the driveway where

Tenant fell. See TCO at 2.

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the reasoning of the trial court, and we may affirm the trial court’s order on

any valid basis.”) (citation and internal quotation marks omitted). Though the

trial court did not consider whether the lease’s exculpatory clause was

enforceable in its opinion, both parties have briefed this issue on appeal, so in

the interest of judicial economy, we will address it.8 The parties both agree

that exculpatory clauses are to be strictly construed. See Tenant’s Brief at 9

(“[A]n agreement which reduces legal rights which would otherwise exist must

be strictly construed against the party asserting it and must spell out with the

utmost particularity the intention of the parties.”) (citation omitted);

Landlord’s Brief at 8-9 (“[Landlord] does not disagree with [Tenant] in that

exculpatory clauses are to be construed strictly and against the party seeking

immunity under the clause.”). Additionally, our Supreme Court has explained:

Generally speaking, an exculpatory clause is valid if: (a) it does

not contravene any policy of the law, that is, if it is not a matter

of interest to the public or [s]tate; (b) the contract is between

persons relating entirely to their own private affairs; [and] (c)

each party is a free bargaining agent and the clause is not in effect

a mere contract of adhesion, whereby one party simply adheres

to a document which he is powerless to alter, having no alternative

other than to reject the transaction entirely.

Assuming, [a]rguendo, that the … exculpatory clause satisfies all

three conditions and is valid, our case law requires that, even if

valid, an exculpatory clause must meet certain standards. Despite

the general [v]alidity of exculpatory provisions, certain standards

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8 Specifically, in Tenant’s fourth issue, she claims that the trial court “erred

when it granted [Landlord’s] motion without any record evidence to properly

support the enforcement of an exculpatory clause under Pennsylvania law[.]”

Tenant’s Brief at 4. In support of this claim, Tenant reiterates the arguments

she raised in her brief in opposition to Landlord’s motion for summary

judgment set forth supra.

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have been established which must be met before an exculpatory

provision will be interpreted and construed to relieve a person of

liability for his own or his servants’ acts of negligence.

Such standards are: (1) contracts providing for immunity from

liability for negligence must be construed strictly since they are

not favorites of the law; (2) such contracts must spell out the

intention of the parties with the greatest of particularity and show

the intent to release from liability beyond doubt by express

stipulation and no inference from words of general import can

establish it; (3) such contracts must be construed with every

intendment against the party who seeks the immunity from

liability; [and] (4) the burden to establish immunity from liability

is upon the party who asserts such immunity.

Kotwasinski v. Rasner, 258 A.2d 865, 868 (Pa. 1969) (cleaned up;

emphasis omitted).

As we mentioned earlier, the at-issue exculpatory clause provides: