Clark, W. v. Phantom Enterprises, LP ( 2022 )

J-S03033-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WILLIAM LEE CLARK AND HOLLY : IN THE SUPERIOR COURT OF
CLARK, HUSBAND AND WIFE : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 777 WDA 2021
PHANTOM ENTERPRISES, LP; :
DONALD J. ROSSI, MICHAEL J. :
ROSSI, AND JAMES D. ROSSI, :
T/D/B/A PHANTOM ENTERPRISES, :
PHANTOM ENTERPRISES, INC., AND :
PHANTOM MANAGEMENT, LLC :
Appeal from the Order Entered June 8, 2021
In the Court of Common Pleas of Westmoreland County Civil Division at
No(s): 4955 of 2016
BEFORE: LAZARUS, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: FEBRUARY 28, 2022
William Lee Clark and Holly Clark, husband and wife (collectively,
Tenants), appeal from the order entered in the Court of Common Pleas of
Westmoreland County (trial court) granting the motion for summary judgment
of Phantom Enterprises, LP (Landlord), et al. in this personal injury action
holding that there was no genuine issue of material fact that Landlord was not
responsible for William Lee Clark’s injuries which incurred on a portion of the
property that Tenants had leased. We affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S03033-22
We take the following factual background and procedural history from
the trial court’s June 8, 2021 opinion and our independent review of the
record.
I.
On September 5, 2012, a residential lease between Tenants and
Landlord commenced for the rent of the “leased property” identified as the
single home at 476 Youngstown Ridge Road, Latrobe, Pennsylvania 15650.
(See Residential Lease, 9/15/12, at ¶¶ 2, 3). On November 14, 2014, Tenant
William Lee Clark slipped and fell on a walkway on their Latrobe side of the
driveway of the leased property on “black ice.” As a result, he sustained
injuries, including a fractured femur that required surgery.
On November 10, 2016, Tenants filed a complaint against Landlord
alleging negligence and breach of contract contending that the lack of gutters
on the property caused the black ice on which he fell.1 Landlord responded
that the black ice was the defective condition, not the lack of gutters, and as
landlord out of possession, it had no duty to Tenants to remove and treat the
area for potential black ice. (Trial Court Opinion, 6/08/21, at 1-2).
After the pleadings were closed, Landlord filed a motion for summary
judgment relying on the following evidence educed through discovery. The
____________________________________________
1 On January 26, 2016, Landlord notified Tenants in writing that the residential
lease would be terminated effective January 31, 2016.
-2-
J-S03033-22
residential lease entitled Tenants to possession of the residence, while a
portion of the property with a garage remained in the possession of Landlord
for business use. The residence was located on the left side (Latrobe side) of
the driveway from the garage, and to the right of the garage was the Ligonier
side of the driveway. (Trial Court Opinion, 6/08/21, at 1).
The residential lease was silent as to who retained control over roof
and/or gutter repairs on the residence, which was a round structure.
Paragraph 13 of the residential lease provided that Landlord was not liable for
any injury to any person while on the leased property. (See Residential Lease,
at ¶ 13). Landlord agreed to keep the “electrical, plumbing, sanitary, heating,
and all other services” in good repair and working order and, if any of the
identified items were not kept in such condition, Tenants were to notify
Landlord in writing. (See id. at ¶ 18). Tenants agreed not to paint the walls
of the leased property a different color, install a border or wallpaper or install
ceiling tiles or other objects that would require drilling into floors, doors or
ceilings. (See id. Residential Lease, at ¶ 11(a)).
At his deposition, William Lee Clark testified that he inspected the
property half a dozen times and identified the lack of gutters before signing
the residential lease. Holly Clark similarly testified that she and her husband
were aware that there were no gutters on the residence at the time of signing
the residential lease and claimed Landlord had removed them because of their
unpleasant appearance. (See Deposition of William Lee Clark, 3/11/19, at
-3-
J-S03033-22
192); (Deposition of William Lee Clark, 9/03/19, at 332-33); (Deposition of
Holly Clark, 9/03/19, at 32-33).
The Tenants’ expert witness report stated that the failure to have
gutters on a residence can create a hazardous condition for accumulation of
water and ice; and Landlord’s groundskeeper, Duane W. Gaskill, testified that
he believed all properties needed gutters and downspouts. (See Deposition
of Duane W. Gaskill, 4/10/19, at 14);(Expert Report of Secosky & Associates,
Inc., 1/02/19, at, 2-3).
Mike Rossi, an appellee herein and a representative of Landlord, testified
at his deposition that he did not believe gutters were on the home when
Landlord purchased it. At no time did Landlord or anyone on its behalf remove
gutters and downspouts from the residence. The appraisal photo taken prior
to Landlord’s purchase confirms that there were no gutters on the house.
(See Amended Motion for Summary Judgment, at Exhibit M, Appraisal
Photograph). There is no code requirement that gutters must be on a
residence. Rossi testified that Landlord replaced the rubber roof on the home
in 2004. (See Deposition of Mike Rossi, 12/07/17, at 18-19, 40-42, 105).
Roofing contractor Mike Bauer testified that he put the new roof on the
house and added a peak so that it sloped so that no ice and snow would lay
on top of it. Because the house was round, any gutters would have to be
fabricated, but no gutters were put on when he was there doing the work. He
did not speak to Mike Rossi about gutters but was told by Todd Kimmick that
-4-
J-S03033-22
Mike Rossi did not want them. (See Deposition of Mike Bauer, at 9, 17-18,
33).
William Lee Clark agreed that Tenants were responsible for
maintenance, including shoveling and salting, from the left side of the garage
area (the Latrobe side) to the residence, and the Landlord was responsible for
maintenance of the area to the right side of the garage (the Ligonier side).
(See Deposition of William Lee Clark, 3/11/19, at 203-04). On January 2,
2013, on behalf of Landlord, Mike Rossi confirmed this understanding in an
email to Tenants in which he stated:
Just wanted to make sure we are all on the same page we do not
plow rentals it is up to the renter to keep up with their driveway
area. … On occasion when we need use of the rear garage we will
plow it so we have access to it but it does not happen at every
snowfall and when doing so we will plow as much as the driver
feels [comfortable] doing.
(Email Correspondence, 1/02/13).
Holly Clark testified that Landlord occasionally allowed Tenants to place
belongings in and use the garage, and that Landlord’s agents plowed the
driveway area on the Latrobe side on occasion. The handymen who worked
on the property testified that although they would plow the driveway around
the garage and sometimes throw salt down there as a courtesy, they did not
perform snow shoveling or salting of the Tenants’ property, specifically on the
area where William Lee Clark fell. (See Holly Clark Statement of Fact,
5/19/21, at ¶ 4); (Deposition of Holly Clark, at 40, 46); (Deposition of Todd
-5-
J-S03033-22
M. Kimmick, 4/10/19, at 45-46); (Deposition of Duane T. Gaskill, 4/10/19, at
11-12, 23-24); (Deposition of Larry Telford, 3/14/19, at 12, 38-39, 43-44).
William Lee Clark testified that on the date of the incident, he “never
really thought of [the wet area] being ice” because the weather was a
relatively warm fifty degrees; he never saw black ice in the area where he fell
on any other occasion; and he never complained about black ice to Landlord.
Holly Clark stated that she had alerted Landlord to a flooding issue in which
water came through the carport and into the kitchen, but that this was not
the cause of William Lee Clark’s fall. (See Deposition of William Lee Clark,
3/11/19, at 130); (Deposition of William Lee Clark, 9/03/19, at 347-38);
(Deposition of Holly Clark, at 59-60).
After oral argument on the motion for summary judgment, the trial court
gave the parties the opportunity to submit additional briefs in support of their
positions, which they did. Landlord argued that it did not have a duty to
Tenants because it was a landlord out of possession with no responsibility for
snow removal and salting in the area where William Lee Clark fell. In
response, Tenants argued that there was an issue of fact as to whether
Landlord was in or out of possession and as to whether the defective condition,
i.e., the lack of gutters, created a dangerous condition by interfering with the
water runoff on the leased property. After a review of the record and counsel’s
arguments, the court granted summary judgment in favor of Landlord.
-6-
J-S03033-22
Tenants timely appealed and complied with Rule 1925(b) by filing a statement
of errors on appeal. See Pa.R.A.P. 1925(b).
II.
A.
On appeal, Tenants first argue that the trial court erred in granting
Landlord’s motion for summary judgment because there was a genuine issue
of material fact about whether they were business invitees whom Landlord
owed an increased duty of care. (See Tenants’ Brief, at 8).2
The Restatement (Second) of Torts defines a possessor of land as, inter
alia, “a person who is in occupation of the land with intent to control it[.]”
Restatement (Second) of Torts § 328E (1965). It is well-established that
“[t]he standard of care a possessor of land owes to one who enters upon the
land depends upon whether the person entering is a trespasser, licensee, or
____________________________________________
2 “To prevail in a negligence suit, the complaining party must prove four
elements: 1. A duty or obligation recognized by law[;] 2. A breach of the
duty[;] 3. Causal connection between the actor’s breach of the duty and the
resulting injury[; and] 4. Actual loss or damage suffered by complainant.”
Jones v. Levin, 940 A.2d 451, 454 (Pa. Super. 2007) (citation omitted). “It
is well-established that three elements are necessary to plead a cause of
action for breach of contract: (1) the existence of a contract, including its
essential terms, (2) a breach of the contract; and, (3) resultant damages.”
Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law Firm of
Malone Middleman, P.C., 137 A.3d 1247, 1258 (Pa. 2016).
Here, it is undisputed that the residential lease did not contain any terms
regarding the care of gutters and roof, and the parties confine their argument
to the duty and breach prongs necessary for a negligence action.
-7-
J-S03033-22
invitee.” Cholewka, supra at 1027 (case citation, quotation marks,
footnotes omitted).
“A business invitee is a person who is invited to enter or remain on the
land of another for a purpose directly or indirectly connected with business
dealings with the possessor of the land.” Walker v. Drexel Univ., 971 A.2d
521, 524 n.1 (Pa. Super. 2009) (citation omitted); see also Restatement
(Second) of Torts § 332. “The landowner’s duty of protection toward business
visitors is the highest duty owed to any entrant upon land, and the landowner
is under an affirmative duty to protect the business visitor not only against
dangers which he knows, but also against those which with reasonable care
he might discover.” Id. (citation omitted).
Tenants’ bald claim that they were business invitees because Landlord’s
business was leasing property lacks merit where they possessed the leased
property pursuant to a lease agreement. See Cholewka, supra at 1028
(Tenant was possessor of land by virtue of lease with landlord; he was not
trespasser, licensee or invitee).3 Instead, Landlord’s duty to Tenants was
pursuant to landlord-tenant law.
____________________________________________
3 In fact, the cases on which they rely are inapposite. They involve a slip and
fall at a hospital to which the decedent had gone for treatment and a non-
binding federal district court case in which a plaintiff slipped and fell on soda
in a mall. (See Tenants’ Brief, at 9); (citing Estate of Swift v. Northeastern
Hosp. of Phila., 690 A.2d 719 (Pa. Super. 1997); Craig v. Franklin Mills
Associates, L.P., 555 F.Supp.2d 547 (E.D. Pa. 2008)). These situations are
(Footnote Continued Next Page)
-8-
J-S03033-22
B.
As to the duties owed to each other under the landlord tenant law,
“[T]he relation of landlord and tenant is always created by contract, either
express or implied. It cannot exist without such contract[.]” Jones v. Levin,
940 A.2d 451, 455 (citations omitted). In Keiper v. Marquart, 159 A.2d 33(Pa. Super. 1960), we set forth a landlord’s liability for injuries that tenant
sustained on the leased premises, stating:
On the question of the general liability of a landlord to his
tenant for injuries received by the tenant on the premises, it is
well established that, in the absence of any provision in the lease,
a landlord is under no obligation to repair the leased premises, to
see to it that they are fit for rental, or to keep the premises in
repair; and that a tenant takes the premises as he finds
them and the landlord is not liable for existing defects of
which the tenant knows or can ascertain by a reasonable
inspection. A lessor is not subject to liability for bodily
harm caused to his lessee by any dangerous condition,
whether natural or artificial, which existed when the lessee
took possession, and which the lessee knew, or should
have known by reasonable inspection, existed. (Citations
omitted). (Emphasis added.)
Keiper, supra at 34-35 (citations omitted; emphasis added).
In his deposition, William Lee Clark agreed that Tenants were
responsible for maintenance, including shoveling and salting, from the left side
of the garage area (the Latrobe side), the area where he fell. Moreover, the
testimony is undisputed that Tenants were aware of the lack of gutters before
____________________________________________
distinguishable from the one presented here and do not support Tenants’ claim
that they were business invitees.
-9-
J-S03033-22
they signed the residential lease and discussed it with Landlord Mike Rossi
during one of Tenants’ inspections of the property. (See Deposition of William
Lee Clark, 3/11/19, at 192); (Deposition of William Lee Clark, 9/03/19, at
332-33); (See Deposition of Holly Clark, 9/03/19, at 32-33). Based on the
general rule of liability, even assuming the lack of gutters was a defect,
Landlord was not liable to Tenants because Tenants were aware of it before
signing the residential lease. See Marquart, supra at 34–35.
C.
Tenants argue, however, that there is a genuine issues of material fact
about whether Landlord, even if out of possession, maintained limited
possession and control over the premises and whether it exercised reasonable
care to discover the hazardous condition caused by the lack of gutters. (See
Tenants’ Brief, at 11-16). They maintain that the court improperly made
inferences from the facts in a light most favorable to Landlord by finding that
it would have been reasonable to argue that Tenants should have known that
the lack of gutters could have caused the pooling water and ice.
… [W]here the landlord retains control of a part of the leased
premises, which is necessary to the safe use of the leased portion,
he is liable to the lessee and others lawfully on the premises for
physical harm caused by a dangerous condition existing upon that
part over which he retains control, if by the exercise of reasonable
care he could have discovered the condition and the risk involved,
and made the condition safe. …
In order to warrant a finding that [a] landlord-defendant
failed to exercise reasonable care in discovering and correcting
the alleged dangerous condition, it [is] necessary for the plaintiff
- 10 -
J-S03033-22
to establish that the defendant had either actual or constructive
notice of the condition.
Smith v. M.P.W. Realty Co., 225 A.2d 227, 229 (Pa. 1967) (citations
omitted).
Here, there is nothing in the residential lease granting Landlord limited
possession and control of the roof, including any gutter system. We are not
persuaded by Tenants’ argument that Paragraphs 11 and 18 of the residential
lease led to the reasonable inference that Landlord possessed and controlled
the gutters. (See Tenants’ Brief, at 11-15). Section 11 prohibits Tenants
from making certain changes inside the residence, and Section 18 directs that
Landlord shall “keep the electrical, plumbing, sanitary, heating and other
services” in good repair. (Residential Lease, at ¶ 18); (see id. at ¶ 11).4 This
language is clear and specific, omitting any mention of the care of the
residence’s roof.5
____________________________________________
4 Although not a fact found by the trial court, we note that if Section 18 did
apply to the roof and gutters, had Tenants found that they were “not in good
repair or working order[,]” they were under a duty to advise Landlord in
writing, which there is no evidence that they did. (See Residential Lease, at
§ 18.b).
5 Tenants’ reliance on Pierce v. Philadelphia Hous. Auth., 486 A.2d 1004,
1005 (Pa. Super. 1985), does not change this disposition because it is factually
distinguishable. In Pierce, the Philadelphia Housing Authority (PHA) was
acting as both lessor and lessee, and we were required to determine, based
on the specific language of the lease between PHA and the building owner,
which of the two were liable to a third-party repairman (business invitee) who
fell on the premises, not a tenant.
- 11 -
J-S03033-22
However, although the residential lease did not establish Landlord’s duty
regarding the roof, evidence established that Landlord had a new rubber roof
with a slope put on the residence in 2004 so ice and snow would not lay on
top of it and had work performed in the driveway (not the walkway where
William Lee Clark fell) to divert the flow of water. (See Deposition of Mike
Rossi, 12/07/17, at 40-42); (Deposition of Mike Bauer, at 9, 17-18, 33).
Viewing this evidence in the light most favorable to Tenants as non-moving
parties, it would be reasonable to infer that Landlord had limited possession
of the roof for the purpose of safety issues regarding the control of water on
the property. See Smith, supra at 229.
Nevertheless, this does not end our inquiry, because there is no genuine
issue of material fact about whether Landlord had notice of the alleged
dangerous condition caused by the lack of gutters. See Smith, supra at 539
(citation omitted).
It was undisputed that Tenants had lived at the leased property through
two winters prior to William Lee Clark’s accident. He had seen ice on the
walkway he was responsible for maintaining prior to the date of the incident
and he testified he would clear and salt the area. There is no evidence that
he reported to Landlord that ice on Tenants’ walkway was being caused by the
lack of gutters. (See Deposition of William Lee Clark, 3/11/19, at 203-04);
(Deposition of William Lee Clark, 9/03/19, at 347-48); (Deposition of Holly
Clark, 9/03/19, at 59-60). On the date in question, the temperature was in
- 12 -
J-S03033-22
the fifties and water was dripping off the roof due to melting snow when
William Lee Clark fell on black ice, which he stated he had neither seen nor
reported to Landlord prior to that date. (See Deposition of William Lee Clark,
9/03/19, at 347-48).
Based on the foregoing, as a matter of law, even if Landlord maintained
limited possession and control of the roof, it had not received any constructive
or actual notice that the lack of gutters created a hazardous icy condition and,
therefore, it could not be found negligent. See Smith, supra at 230.6
In summary, as properly found by the trial court, even if the lack of
gutters was a defect, Landlord had no obligation to repair it where there was
no contractual agreement that it do so, and Tenants were aware that there
were no gutters at the time of entering the residential lease. Moreover, even
if Landlord had a duty to Tenants to control the roof run-off because they
____________________________________________
6 Tenants’ reliance on Smith for the proposition that Landlord was liable
because it failed to exercise reasonable care in discovering the dangerous
condition, is not persuasive and, in fact, the case supports the grant of
summary judgment in this matter. There, the landlord controlled and
operated a central steam heating system. Appellant tenant was injured when,
upon discovering that a heating air vent was cold and in an improper position,
he attempted to move it, resulting in severe burns due to steam and hot water.
He argued that the vent had been in a state of disrepair for a long time and
that landlord should have discovered this with the exercise of reasonable care.
However, this Court agreed with the trial court that where tenant had never
advised landlord about a lack of heat, landlord could not be found to have
actual or constructive notice that there was any problem with the vent and,
thus, was not negligent. See Smith, supra at 230. Similarly, here, Tenants
did not advise Landlord of any issue due to the lack of a gutter system.
- 13 -
J-S03033-22
maintained limited possession and control of the roof, it had no actual or
constructive notice that a dangerous condition had been caused due to the
lack of gutters. See Smith, supra at 230.
For all these reasons, we conclude that the trial court properly found7
that Landlord did not violate a duty to Tenants and could not be negligent as
a matter of law. (See Trial Court Opinion, 6/08/21, at 6); Marquart, supra
at 34–35.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/28/2022
____________________________________________
7 Tenants argue that the trial court, in effect, found that they assumed the
risk of the lack of gutters. We disagree. The trial court applied well-
established landlord-tenant law as discussed above.
- 14 -