Kote, S. v. The Bank of New York , 2017 Pa. Super. 277 ( 2017 )

J-A14036-17
2017 PA Super 277SPIRO KOTE, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
THE BANK OF NEW YORK MELLON FKA
THE BANK OF NEW YORK, AS TRUSTEE
FOR THE CERTIFICATEHOLDERS CWABS,
INC., ASSETBACKED CERTIFICATE
SERIES 2006-20 AND CARRINGTON
REAL ESTATE SERVICES, LLC AND
SAFEGUARD PROPERTIES, LLC,
Appellees No. 2404 EDA 2016
Appeal from the Judgment Entered July 14, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): December Term, 2014 003476
BEFORE: BENDER, P.J.E., BOWES and SHOGAN, JJ.
OPINION BY SHOGAN, J.: FILED AUGUST 25, 2017
Appellant, Spiro Kote (“Kote”), appeals from the judgment entered on
July 14, 2016. The July 14, 2016 judgment made final the March 15, 2016
orders that sustained preliminary objections filed by Carrington Real Estate
Services, LLC (“Carrington”) and Safeguard Properties, LLC (“Safeguard”),
and granted the motion for judgment on the pleadings filed by The Bank of
New York Mellon, formerly known as The Bank of New York, as Trustee for
J-A14036-17
the Certificateholders CWABS, Inc., Assetbacked Certificate Series 2006-20
(“BNY Mellon”).1 After careful review, we affirm.
The trial court summarized the background of this matter as follows:
On January 28, 2014, between 7:00pm and 8:00pm,
[Kote] made a Chinese food delivery to a foreclosed and vacant
property located at 6298 Kindred Street in the Oxford Circle
section of Philadelphia, PA (herein, the “Property”). [Kote] made
the delivery as a result of a phone order. [Kote] knocked on the
front door and, after being admitted, was shot in the chest
multiple times by an unknown assailant or assailants who were
inside the Property. [Kote] suffered serious bodily injury as a
result of the shooting. Complaint at ¶ 11-13.
[Appellee] BNY Mellon owned, operated, possessed,
maintained and controlled the foreclosed and vacant property.
BNY Mellon entered into an agreement with [Appellee]
Carrington to act as … BNY Mellon’s agent in the sale of the
Property. Carrington also maintained and controlled the Property
in its capacity as an agent of BNY Mellon. [Appellee] Safeguard
was hired to secure and inspect the Property. Id. at ¶ 5-10.
Trial Court Opinion, 12/22/16, at 1-2.
Kote filed his initial complaint against Appellees on December 23,
2014, and following numerous responsive pleadings, Kote filed a first
amended complaint on December 28, 2015. In the amended complaint,
Kote alleged that Appellees knew or should have known that criminal acts
have occurred in the area of the property at 6298 Kindred Street in
Philadelphia (“the Property”) where Kote was attacked. First Amended
Complaint, 12/28/15, at ¶¶ 17-24. Kote further asserted that he was
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1
Collectively, Carrington, Safeguard, and BNY Mellon are referred to as
“Appellees.”
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injured due to Appellees’ negligence, failure to comply with the City of
Philadelphia Property Maintenance Code, and violations of the Restatement
(Second) of Torts. Id. BNY Mellon filed its answer and affirmative defenses
on January 19, 2016, admitting that it was the owner of the Property.
Answer and Affirmative Defenses to Plaintiff’s Amended Complaint on Behalf
of BNY Mellon, 1/19/16, at ¶ 5. BNY Mellon further admitted that it entered
into an agreement with Carrington to act as its agent in the sale of the
Property. Id. at ¶ 6. BNY Mellon also admitted that Safeguard was
responsible for securing and inspecting the Property. Id. at ¶ 9.
Safeguard and Carrington filed preliminary objections on January 22,
2016, and January 25, 2016, respectively. BNY Mellon filed its motion for
judgment on the pleadings on June 2, 2016. As noted above, the trial court
sustained the preliminary objections, and dismissed all claims against
Carrington and Safeguard. Additionally, the trial court granted BNY Mellon’s
motion for judgment on the pleadings. This timely appeal followed. Both
Kote and the trial court complied with Pa.R.A.P. 1925.
On appeal, Kote raises the following issues for this Court’s
consideration:
1) Was Appellant Kote a business visitor under Section 332 of
the Restatement (Second) of Torts?
2) Did BNY Mellon violate its duty to business visitors under
Section 344 of the Restatement (Second) of Torts to discover
intentionally harmful acts of third persons or to warn or protect
against them?
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3) Did BNY Mellon violate its duty under Section 324A of the
Restatement (Second) of Torts by failing to exercise reasonable
care concerning its undertaking to render services?
4) Did BNY Mellon violate its duty under Section 365 of the
Restatement (Second) of Torts by failing to exercise reasonable
care to disclose disrepair and its unreasonable risk and to make
it reasonably safe?
5) Was the criminal act of third parties a superseding cause of
the injuries to Appellant Kote according to Section 448 of the
Restatement (Second) of Torts?
6) Is Appellant Kote protected by the Philadelphia Property
Maintenance Code, thereby justifying application of negligence
per se?
7) Are Carrington and Safeguard, agents of BNY Mellon, bound
by the same duties as BNY Mellon, and did they violate the same
duties as BNY Mellon?
Kote’s Brief at 5-6 (italicization omitted).
The standard we apply when reviewing the grant of a motion for
judgment on the pleadings and preliminary objections in the nature of a
demurrer is as follows:
Entry of judgment on the pleadings is permitted
under Pennsylvania Rule of Civil Procedure 1034,
which provides that “after the pleadings are closed,
but within such time as not to unreasonably delay
trial, any party may move for judgment on the
pleadings.” Pa.R.C.P. 1034(a). A motion for
judgment on the pleadings is similar to a demurrer.
It may be entered when there are no disputed issues
of fact and the moving party is entitled to judgment
as a matter of law.
Appellate review of an order granting a motion for
judgment on the pleadings is plenary. The appellate
court will apply the same standard employed by the
trial court. A trial court must confine its consideration
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to the pleadings and relevant documents. The court
must accept as true all well pleaded statements of
fact, admissions, and any documents properly
attached to the pleadings presented by the party
against whom the motion is filed, considering only
those facts which were specifically admitted.
We will affirm the grant of such a motion only when
the moving party’s right to succeed is certain and the
case is so free from doubt that the trial would clearly
be a fruitless exercise.
Coleman v. Duane Morris, LLP, 58 A.3d 833, 836 (Pa. Super.
2012) (citations omitted). Our review of an order sustaining
preliminary objections in the nature of a demurrer involves
similar principles.
Our standard of review of an order of the trial court
overruling or [sustaining] preliminary objections is to
determine whether the trial court committed an error
of law. When considering the appropriateness of a
ruling on preliminary objections, the appellate court
must apply the same standard as the trial court.
Preliminary objections in the nature of a demurrer
test the legal sufficiency of the complaint. When
considering preliminary objections, all material facts
set forth in the challenged pleadings are admitted as
true, as well as all inferences reasonably deducible
therefrom. Preliminary objections which seek the
dismissal of a cause of action should be sustained
only in cases in which it is clear and free from doubt
that the pleader will be unable to prove facts legally
sufficient to establish the right to relief. If any doubt
exists as to whether a demurrer should be sustained,
it should be resolved in favor of overruling the
preliminary objections.
Richmond v. McHale, 35 A.3d 779, 783 (Pa. Super. 2012),
quoting Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super.
2011).
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Southwestern Energy Production Co. v. Forest Resources, LLC, 83
A.3d 177, 185 (Pa. Super. 2013).
In his first issue, Kote argues that the trial court erred in failing to
deem Kote a business visitor under of the Restatement (Second) of Torts §
332. Kote’s Brief at 12. We disagree.
The relevant part of the Restatement defines a business visitor as
follows:
(3) A business visitor is a person who is invited to enter or
remain on land for a purpose directly or indirectly connected with
business dealings with the possessor of the land.
Restatement (Second) of Torts § 332(3). The trial court concluded:
[Kote] argues that he was a business invitee of [Appellee]
BNY Mellon because an unknown criminal called [Kote] to deliver
Chinese food to the Property. In support of his claim, [Kote]
relies on Comment c to Section 332 of the Restatement, which
focuses on “the desire or willingness to receive the person which
a reasonable man would understand as expressed by the words
or other conduct of the possessor.” [Kote] fails to allege,
however, that BNY Mellon—either through its employees or
agents—placed the telephone order that directed him to the
Property. [Kote] also fails to allege that BNY Mellon’s employees
or agents were present at the Property to invite him to enter
therein. Other than the allegation that he went to the Property
“as the result of a telephone order,” [Kote] does not allege any
facts that would indicate he was a business invitee of
[Appellees]. Complaint ¶11. This allegation is insufficient as a
matter of law because [Kote] also concedes that the person who
made the phone call to [Kote] was the unknown criminal, not
BNY Mellon. As a result, [Kote’s] claim under Section 332 fails.
Trial Court Opinion, 12/22/16, at 34-35.
We agree with the trial court. Kote concedes that he was lured to the
property by an unknown individual, and he cannot claim that he was invited
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for a purpose directly or indirectly connected with the business dealings of
any Appellee.
Next, Kote avers that BNY Mellon violated its duty to business visitors
under Section 344 of the Restatement. Kote’s Brief at 19. Because we
concluded that Kote was not a business visitor, this claim fails.
In his third issue, Kote asserts that BNY Mellon violated its duty under
Section 324A of the Restatement by failing to exercise reasonable care
concerning its undertaking to render services to protect third persons.
Kote’s Brief at 25. Section 324A provides as follows:
One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for
the protection of a third person or his things, is subject to
liability to the third person for physical harm resulting from his
failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases
the risk of such harm, or
(b) he has undertaken to perform a duty owed by
the other to the third person, or
(c) the harm is suffered because of reliance of the
other or the third person upon the undertaking.
Restatement (Second) of Torts § 324A.
The trial court discussed the application of Section 324A as follows:
[Kote] argues that Carrington was negligent under Section
324A of Restatement (Second) of Torts, which provides that one
who undertakes, either gratuitously or for consideration, to
render services to another which he should recognize as
necessary for the protection of a third person or his things, is
subject to liability to the third person for physical harm resulting
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from his failure to exercise reasonable care to protect his
undertaking.
First, Section 324A does not apply because [Kote] is not
within the class of persons that the security services were
designed to protect nor was the harm that he suffered the type
of risk Carrington’s alleged agreement to secure the vacant
Property was intended to avert. “Securing vacant dwellings is
intended to protect members of the public who might otherwise
be tempted to trespass therein and to protect neighboring
property owners from risks such as fire and unsanitary
conditions which might be created by trespassers.” Glick v.
Olde Town Lancaster, Inc., 535 A.2d 621 (Pa. Super. Ct.
1987).[2] Here, as in Glick v. Old Town Lancaster, Inc., [Kote]
was injured at the vacant Property as a result of the intentional
and deliberate criminal acts of a third party. “The unsecured
dwelling was a fortuitous factor in the crimes committed against”
[Kote]. In other words, what was necessary and important to the
criminal actor was that it was an abandoned building, not
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2
In Glick, the victim-appellant was forced into a vacant building and raped.
Glick, 535 A.2d at 623. The appellant subsequently filed suit against the
building’s owner for, inter alia, its failure to secure the building. Id. at 624.
This Court held:
[S]ection 324A is inapplicable to this case because [the]
appellants were not within the class of persons the provision was
designed to protect. In order for section 324A to apply, it must
be established that the service of resecuring the dwellings was
necessary for the protection of persons such as appellants.
We do not view the harm suffered by [the] appellant Glick
as being the type of risk which [the building owner’s] promise to
resecure the dwellings was intended to avert. Securing vacant
dwellings is intended to protect members of the public who
might otherwise be tempted to trespass therein and to protect
neighboring property owners from risks such as fire and
unsanitary conditions which might be created by trespassers.
Glick, 535 A.2d at 624 (citation omitted).
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whether it was properly secured, Thus, even assuming that
Carrington undertook a duty to secure the Property as part of its
agreement with BNY Mellon, any alleged failure to secure the
vacant property “is far too attenuated to support a cause of
action under Restatement § 324A.” Id.
Second, the alleged failure by Carrington to not secure the
Property did not increase the risk of harm to [Kote]. See
Restatement (Second) of Torts, § 324(A)(a). The fact that the
Property was unsecured was a “fortuitous” and incidental factor
that is too far attenuated to increase the risk of harm. What was
important and necessary for the crime to have occurred is that
the building was vacant, not unsecured.
Third, there are no facts that would establish that, by
acting as BNY Mellon’s agent in sale of the Property, Carrington
undertook a duty to provide protection to third parties such as
[Kote] from criminal conduct on the Property. See Restatement
(Second) of Torts, § 324(A)(b). In other words, as BNY Mellon’s
agent, Carrington undertook the responsibility to sell the
Property to a prospective buyer. As such, Carrington’s duties
under its real estate agreement with BNY Mellon are limited to
BNY Mellon and prospective buyers, not to food delivery persons
such as [Kote] who had no interest in purchasing the property.
See Farabaugh v. Pa. Turnpike Comm’n., 911 A.2d 1264 (Pa.
2006) (“A contracting party’s duty to third parties ... are
measured by the nature and scope of its contractual
undertaking.”).
Fourth, [Kote] has not alleged that he relied on
Carrington’s undertaking to secure the vacant dwelling, nor does
[Kote] allege that he was aware of Carrington’s agreement such
that he could have relied upon it in the first place. See
Restatement (Second) of Torts, § 324[A] (c) (requiring that “the
harm is suffered because of reliance of the other or the third
person upon the undertaking”).
For these several reasons, [Kote] cannot establish a claim
against Carrington under Section 324A.
***
[Kote] also alleges that BNY Mellon owed him a duty of
care because it hired [Appellee] Safeguard to secure the
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Property and that “a program of security was undertaken” by
Safeguard. [Kote] further alleges that [Appellee] Safeguard was
negligent in that it failed to “lock and secure doors, windows and
entrances or openings ... in the vacant property.” Complaint at ¶
17f.
As explained supra … [Kote] cannot state a claim based
upon Section 324A because there is no evidence that BNY Mellon
undertook to protect its property on behalf of anyone other than
itself as property owner. In other words, there is no allegation
that BNY Mellon provided any security for the benefit for a third
party such as [Kote]. Thus, [Kote] is not within the class of
persons that the security services were designed to protect nor
was the harm that he suffered the type of risk that the securing
of the Property was intended to avert.
Trial Court Opinion, 12/22/16, at 26-27, 35 (footnote omitted). We agree
with the trial court that the harm suffered by Kote was not the type of harm
Section 324A is intended to prevent. Kote alleged that Safeguard was hired
to secure and inspect the Property, not to provide personal security for the
benefit of any class of persons. First Amended Complaint, 12/28/15, at ¶ 9.
Indeed, Kote’s specific factual averments all relate to the condition of the
property. See id., at ¶ 17(a)-(k). Kote was not injured as a result of the
condition inside the vacant building; he was intentionally shot by an
unknown third party. Just as in Glick, the relationship between Kote and
Appellees is too attenuated to support a cause of action under Section 324A.
Glick, 535 A.2d at 624-625.
In his fourth issue, Kote claims that BNY Mellon violated its duty under
Section 365 of the Restatement (Second) of Torts to make the Property
reasonably safe. Kote’s Brief at 34. Section 365 provides:
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A possessor of land is subject to liability to others outside of the
land for physical harm caused by the disrepair of a structure or
other artificial condition thereon, if the exercise of reasonable
care by the possessor or by any person to whom he entrusts the
maintenance and repair thereof
(a) would have disclosed the disrepair and the
unreasonable risk involved therein, and
(b) would have made it reasonably safe by repair or
otherwise.
Restatement (Second) of Torts § 365.
In his first amended complaint, Kote did not allege that any disrepair
of the Property or artificial condition of the Property caused him harm.
Moreover, as the trial court found, the allegedly unsecured doors and
windows did not cause Kote’s injuries. Trial Court Opinion, 12/22/16, at 35.
These conditions, at most, merely facilitated the injuries. Id. “Additionally,
it was not reasonably foreseeable that the Property would be used by
unknown assailants to attack and shoot Kote.” Id. at 34-35. As such, Kote
has failed to state a cause of action against Appellees under Section 365.
In his fifth claim, Kote alleges that the trial court erred in concluding
that the criminal acts of third parties were the superseding cause of Kote’s
injuries under Section 448 of the Restatement (Second) of Torts. Kote’s
Brief at 39. Section 448 provides as follows:
The act of a third person in committing an intentional tort or
crime is a superseding cause of harm to another resulting
therefrom, although the actor’s negligent conduct created a
situation which afforded an opportunity to the third person to
commit such a tort or crime, unless the actor at the time of his
negligent conduct realized or should have realized the likelihood
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that such a situation might be created, and that a third person
might avail himself of the opportunity to commit such a tort or
crime.
Restatement (Second) of Torts § 448.
The trial court opined that:
[Kote] cannot establish that any negligence by Carrington
was the proximate cause of his harm because the criminal acts
of an unknown person were a superseding cause of [Kote’s]
injuries. See generally, Restatement (Second) of Torts, § 448.5
5
The question of whether the conduct of a third
person in committing a crime is a superseding cause
of harm to another even though the actor’s
negligence created a situation which afforded the
criminal party an opportunity to commit such crime,
is not reached unless a duty has first been
established. “A duty must attach before ... section
448” can apply. Roche v. Ugly Duckling Car
Sales, Inc., 879 a.2d 785, 796 (Pa. Super. Ct.
2005).
Proximate cause does not exist where a defendant’s
negligence was so remote that the defendant cannot be held
legally responsible as a matter of law for the harm that resulted
to the plaintiff. Brown v. Philadelphia College of
Osteopathic Medicine, 760 A.2d 863, 869 (Pa. Super. Ct.
2000). The question of whether a defendant’s negligence was
the proximate cause of a plaintiff’s harm requires a
determination by the court whether, as a matter of law, “the
injury would have been foreseen by an ordinary person as the
natural and probable outcome of the act complained of.” Reilly
v. Tiergarten Inc., 633 A.2d 208, 210 (Pa. Super. Ct. 1993). If
the court determines from the facts as alleged that it is “highly
extraordinary that the defendant’s conduct should have brought
about the plaintiff’s harm” then the court should refuse to find
that the defendant’s conduct was the proximate cause of the
plaintiff’s harm. Brown, supra at 868.
Here, even assuming arguendo that Carrington had a duty
to secure the Property, [Kote’s] claims still fail because he
cannot prove that [Appellees] should have foreseen that
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unknown assailants would unlawfully enter the Property,
conspire to lure an unsuspecting food delivery driver to the
Property, and then ambush and shoot him as he delivered the
food order. See Glick v. Olde Town Lancaster, Inc., supra at
624 (defendant who made its promise to resecure its buildings
had absolutely no reason to foresee that the service was
necessary for the protection of victims such as plaintiff). At best,
the Complaint alleges that violent crimes toward the general
public occur throughout Philadelphia as well as the neighborhood
where the Property is located. [Kote] does not allege any specific
facts that Carrington knew, or should have known, that the
Property had or would be used criminally by armed assailants
lying in wait to attack and shoot food delivery persons such as
[Kote]. As such, the harm suffered by [Kote] was not
foreseeable, but was rather highly extraordinary.
Stated differently, generic allegations that violent crime
occurs throughout Philadelphia and even in a particular
neighborhood are not sufficient to establish that any negligence
by Carrington was the proximate cause of [Kote’s] injuries. To
the contrary, the unknown third party’s criminal acts were a
superseding cause unrelated to whether the Property was
properly secured or not. “Since the possessor is not an insurer of
the visitor’s safety, he is ordinarily under no duty to exercise any
care until he knows or has reason to know that the acts of
the third person are occurring, or are about to occur.”
Restatement (Second) of Torts, §344, Comment f (emphasis
added).
In sum, the vacant Property “was a wholly fortuitous factor
in the crimes committed against” [Kote], which crimes “would
have been accomplished” whether or not [Appellees’] “property
remained unsecured.” Glick v. Olde Town Lancaster, Inc.,
535 A.2d at 624. The assailants could have ambushed [Kote] as
[Kote] exited his vehicle or shot him on the sidewalk. As the
Supreme Court aptly noted, “the criminal can be expected
anywhere, any time, and has been a risk of life for a long time.
He can be expected in the village, the monastery and the castle
keep.” Feld [v. Merriam,] 485 A.2d [742,] 746 [(Pa. 1984)].
Here, there is no connection between the existence of the
allegedly unsecure vacant Property and the crime of shooting a
person with a firearm such that the harm that occurred would
naturally flow from any negligence by Carrington. Instead,
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[Kote’s] injuries resulted from the superseding, intervening and
highly extraordinary ambush of [Kote] by criminal [actors].
***
[Kote’s] claim against BNY Mellon fails for the same reasons that
[Kote’s] claim against Carrington fails …. In other words,
pursuant to Section 448 of the Restatement (Second) of Torts,
any negligence by BNY Mellon was not the proximate cause of
[Kote’s] injuries. Rather, the criminal acts of a third party
superseded any negligence by BNY Mellon.
Trial Court Opinion, 12/22/16, at 28-30, 36 (some citations omitted). We
discern no error of law or abuse of discretion in the trial court’s analysis or
conclusion. The unknown shooter was a superseding cause of Kote’s
injuries, and if there was any negligence on the part of Appellees, it was not
the proximate cause of the injuries Kote suffered.
In his next issue, Kote asserts that he was protected by the
Philadelphia Property Maintenance Code, and therefore, negligence per se
was applicable. Kote’s Brief at 47. We disagree.
The Philadelphia Property Maintenance Code was:
promulgated to protect the public health, safety and welfare in
existing structures and on existing premises by establishing
minimum requirements for:
1. Safe and sanitary maintenance of structures,
premises and equipment;
2. Equipment and facilities for space, light,
ventilation, heating, sanitation and protection
from the elements;
3. Safety to life, safety from fire and other hazards.
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The code establishes responsibilities of owners, operators,
agents and occupants and provides for licensing of certain
properties.
Philadelphia Property Maintenance Code 101.2. The intent of the
Philadelphia Property Maintenance Code:
is to insure public health, safety and welfare to the extent they
are affected by the continued occupancy and maintenance of
existing structures and premises. Existing structures and
premises which are not in compliance with this code shall be
altered or repaired to provide the minimum health, safety and
welfare as required herein.
Philadelphia Property Maintenance Code 101.3.
Moreover, the concept of negligence per se is defined as follows:
Negligence per se is defined as “conduct, whether of action or
omission, which may be declared and treated as negligence
without any argument or proof as to the particular surrounding
circumstances.” Wagner v. Anzon, Inc., 453 Pa.Super. 619,
684 A.2d 570, 574 (1996) (quoting Black’s Law Dictionary, p.
933 (5th ed. 1979)). We start with the premise that, since
ordinances and statutes regulate conduct, they also may impose
legal obligations on individuals. McCloud v. McLaughlin, 837
A.2d 541, 545 (Pa.Super.2003). As this Court stated in
McCloud, “[n]egligence per se is the law’s acknowledgement
that through an individual’s violation of a statute or ordinance, it
is possible to show that the individual breached his duty to
behave as a reasonable person, i.e., that the individual was
negligent.” Id.Walters v. UPMC Presbyterian Shadyside, 144 A.3d 104, 121 (Pa.
Super. 2016).
[T]o proceed on a negligence per se theory, a plaintiff must
prove the purpose of the statute, at least in part, was to protect
the interest of a specific group of individuals, as opposed to the
general public, and that the statute or regulation clearly applied
to the defendant’s conduct. In order to recover, the plaintiff
must also prove that the defendant violated the statute or
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regulation and that the violation was the proximate cause of
injury.
Id. at 122 (emphasis added).
Because it is dispositive of the issue, we reiterate that in the case at
bar, there was a superseding act by a third party. Therefore, even if we
were to conclude that the purpose of the Philadelphia Property Maintenance
Code is to protect individuals on or near vacant properties from criminal acts
committed by persons who were allowed to enter those properties due to its
deteriorated condition, we would still find that Kote’s claim fails. As we
concluded above, the unknown shooter was a superseding cause, and Kote
has not established that any conduct or negligence on the part of Appellees
was the proximate cause of his injuries. Thus, this claim fails. Walters,
144 A.3d at 122.
Finally, Kote alleges that Carrington and Safeguard are agents of BNY
Mellon, they are bound by the same duties as BNY Mellon, and they violated
those duties. Kote’s Brief at 53. We conclude that no relief is due.
As discussed previously, Kote has failed to establish that any duties
were owed to him by BNY Mellon, Carrington, or Safeguard, and that any
action or inaction on their part was the proximate cause of his injuries. As
such, recovery is not possible.
For the reasons set forth above, we discern no error of law or abuse of
discretion in the trial court granting Carrington’s and Safeguard’s preliminary
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objections or BNY Mellon’s motion for judgment on the pleadings.
Accordingly, we affirm the judgment entered in this matter on July 14, 2016.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2017
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