Schouppe, P. v. Kirby Upright ( 2019 )


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  • J-S63018-19
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    PATRICIA SCHOUPPE                          :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    Appellant               :
    :
    :
    v.                             :
    :
    :
    KIRBY UPRIGHT, D/B/A                       :   No. 1687 EDA 2019
    LAMPLIGHTER ASSOCIATES AND                 :
    KIRBY UPRIGHT, D/B/A                       :
    LAMPLIGHTER ASSOCIATES GP                  :
    Appeal from the Order Entered May 1, 2019
    In the Court of Common Pleas of Monroe County Civil Division at No(s):
    No. 6240-CV-2017
    BEFORE:      GANTMAN, P.J.E., MURRAY, J., and STRASSBURGER, J.*
    MEMORANDUM BY MURRAY, J.:                           FILED DECEMBER 09, 2019
    Patricia Schouppe (Appellant) appeals from the order granting summary
    judgment in favor of Kirby Upright, D/B/A Lamplighter Associates and
    Lamplighter Associates GP (collectively, Lamplighter). We affirm.
    The parties do not dispute the facts of this case. On February 14, 2014,
    at approximately 10:00 a.m., Appellant entered the Blakeslee Post Office in
    Blakeslee, Monroe County, Pennsylvania, to retrieve her mail. The Blakeslee
    Post Office sits on land owned by Lamplighter and leased to the United States
    Postal Service (USPS). Upon leaving the post office, Appellant was walking
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
    J-S63018-19
    back to her car when she slipped on a patch of snow and ice in the parking
    lot. Appellant sustained injuries to her right arm, neck, back, and right leg.
    On August 16, 2017, Appellant filed a complaint against Lamplighter in
    which she alleged Lamplighter was negligent for failing to ensure that the
    property was safe for use by business invitees and for failing to warn her of
    any dangers existing on the property.            Appellant also raised a claim of
    vicarious liability against Lamplighter’s employees for their failure to maintain
    the property in a manner that would have prevented her injuries.
    On December 26, 2017, Lamplighter filed a joinder complaint, joining
    the Blakeslee Post Office and USPS as additional defendants. On March 9,
    2018, the United States Attorney for the Middle District of Pennsylvania filed
    a notice of removal of the matter to federal court. Following the dismissal of
    the Blakeslee Post Office and USPS as defendants, the United States District
    Court for the Middle District of Pennsylvania remanded the case to state court
    in Monroe County.
    On August 20, 2018, Lamplighter filed an answer and new matter in
    which it averred, inter alia, that it was a landlord out-of-possession of the
    property and the lease between Lamplighter and USPS provided that all snow
    and ice removal was the responsibility of USPS.1 On March 18, 2019, following
    ____________________________________________
    1  We note that in its answer and new matter, Lamplighter averred that
    Appellant’s claims were barred by the applicable statute of limitations. On the
    record before us, this defense might be meritorious. Lamplighter, however,
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    the completion of discovery, Lamplighter filed a motion for summary
    judgment. On May 1, 2019, the trial court entered an order granting summary
    judgment in favor of Lamplighter and against Appellant. This timely appeal
    followed.2
    Appellant presents the following issues for review:
    1. Did the [t]rial [c]ourt err as a matter of law by granting
    [Lamplighter]’s Motion for Summary Judgment as the record
    clearly demonstrates that there are genuine issues of material fact
    such that the moving party is not entitled to judgment as a matter
    of law?
    2. Did the [t]rial [c]ourt err as a matter of law wherein it did not
    take all facts of record and reasonable inferences therefrom in the
    light most favorable to the non-moving party ([Appellant])?
    3. Did the [t]rial [c]ourt err as a matter of law by not resolving
    all doubts as to the existence of a genuine issue of material fact
    against the moving party, and by granting Summary Judgment
    where the right to such judgment was not clear and free from all
    doubt?
    Appellant’s Brief at 4.
    ____________________________________________
    did not pursue the defense in its motion for summary judgment, and
    therefore, has waived it for purposes of this appeal. See Paves v. Corson,
    
    765 A.2d 1128
    , 1134 (Pa. Super. 2000), rev’d on other grounds, 
    801 A.2d 546
    (Pa. 2002) (holding that defendant waived statute of limitations defense
    despite raising it in the pleadings because defendant did not raise it “at any
    time prior to the motion for directed verdict[,]” and consequently, defendant
    never presented evidence relating to the defense and plaintiff had no
    opportunity for rebuttal).
    2  On May 24, 2019, the trial court directed Appellant to file a concise
    statement of errors complained of on appeal pursuant to Pennsylvania Rule of
    Appellate Procedure 1925(b); on June 12, 2019, Appellant filed a timely Rule
    1925(b) statement.
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    J-S63018-19
    Our standard of review regarding a trial court’s decision to grant or deny
    a motion for summary judgment is as follows:
    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.
    In evaluating the trial court’s decision to enter summary
    judgment, we focus on the legal standard articulated in the
    summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
    where there is no genuine issue of material fact and the moving
    party is entitled to relief as a matter of law, summary judgment
    may be entered. Where the non-moving party bears the burden
    of proof on an issue, he may not merely rely on his pleadings or
    answers in order to survive summary judgment. Failure of a non[-
    ]moving party to adduce sufficient evidence on an issue essential
    to his case and on which it bears the burden of proof establishes
    the entitlement of the moving party to judgment as a matter of
    law. Lastly, we will 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.
    Thompson v. Ginkel, 
    95 A.3d 900
    , 904 (Pa. Super. 2014).
    Although Appellant lists three issues in the Statement of the Questions
    Involved section of her appellate brief, she essentially makes two arguments
    in support of her challenge to the trial court’s decision to grant summary
    judgment.    First, Appellant argues that an ambiguity exists in the lease
    regarding whether Lamplighter or USPS is responsible for snow and ice
    removal on the property. Appellant contends that this ambiguity constitutes
    a disputed material fact, and thus, summary judgment was inappropriate.
    Our Supreme Court has set forth the principles governing contract
    interpretation:
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    The principles that guide this inquiry are well-settled. The
    fundamental rule in contract interpretation is to ascertain the
    intent of the contracting parties. Robert F. Felte, Inc. v. White,
    
    302 A.2d 347
    , 351 (Pa. 1973). In cases of a written contract, the
    intent of the parties is the writing itself. Pines Plaza Bowling,
    Inc. v. Rossview, Inc., 
    145 A.2d 672
    (Pa. 1958). Under
    ordinary principles of contract interpretation, the agreement is to
    be construed against its drafter.        See Shovel Transfer &
    Storage, Inc. v. PLCB, 
    739 A.2d 133
    , 139 (Pa. 1999). When the
    terms of a contract are clear and unambiguous, the intent of the
    parties is to be ascertained from the document itself. Hutchison
    v. Sunbeam Coal Corp., 
    519 A.2d 385
    , 390 (Pa. 1986). When,
    however, an ambiguity exists, parol evidence is admissible to
    explain or clarify or resolve the ambiguity, irrespective of whether
    the ambiguity is patent, created by the language of the
    instrument, or latent, created by extrinsic or collateral
    circumstances. Steuart v. McChesney, 
    444 A.2d 659
    , 663 (Pa.
    1982); In re Herr’s Estate, 
    161 A.2d 32
    , 34 (Pa. 1960). A
    contract is ambiguous if it is reasonably susceptible of different
    constructions and capable of being understood in more than one
    sense. Kripp v. Kripp, 
    849 A.2d 1159
    , 1163 (Pa. 2004). While
    unambiguous contracts are interpreted by the court as a matter
    of law, ambiguous writings are interpreted by the finder of fact.
    
    Id. Ins. Adjustment
    Bureau, Inc. v. Allstate Ins. Co., 
    905 A.2d 462
    , 468-69
    (Pa. 2006) (citations modified).
    With respect to snow removal, the lease between Lamplighter and USPS
    expressly states:
    8. SNOW
    The Postal Service agrees to furnish and pay for the snow removal
    from the sidewalks, driveway, parking and maneuvering areas,
    and any other areas providing access to the postal facility for use
    by postal employees, contractors, or the public (including, but not
    limited to, stairs, handicap access ramps, carrier ramps, etc.)
    during the continuance of the Lease. The landlord is responsible
    for snow removal from the roof.
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    Motion for Summary Judgment, 3/18/19, Exhibit A (Lease, 6/10/08, Utilities,
    Services & Equipment Rider ¶ 8).
    Appellant,   however,   argues    that   the   following   portions   of   the
    Maintenance Rider in the lease contradict the snow removal provision:
    3.   During the continuance of the Lease, the Landlord is
    responsible for maintenance of, repairs to, and, if necessary,
    replacement of:
    a. All common or joint use interior and exterior areas and
    common or joint use equipment and systems that may be
    included as part of this lease.
    Motion for Summary Judgment, 3/18/19, Exhibit A (Lease, 6/10/08,
    Maintenance Rider – USPS Responsibility ¶ 3(a)).         Appellant asserts that
    because the Maintenance Rider made Lamplighter responsible for the
    maintenance of common areas, the lease is unclear as to whether USPS or
    Lamplighter is responsible for snow removal in the parking lot.
    Upon review, we conclude that the lease is unambiguous as to USPS’s
    responsibility for snow removal in the parking lot. While the lease contains a
    general clause stating that Lamplighter is responsible for “maintenance of,
    repairs to, and, if necessary replacement of . . . [a]ll common or joint use
    interior and exterior areas[,]” see 
    id., the lease
    also contains a specific
    provision stating that USPS is responsible for snow removal. See Motion for
    Summary Judgment, 3/18/19, Exhibit A (Lease, 6/10/08, Utilities, Services &
    Equipment Rider ¶ 8).
    This Court has explained:
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    J-S63018-19
    It is well-settled that clauses in a contract should not be
    read as independent agreements thrown together without
    consideration of their combined effects. Terms in one
    section of the contract, therefore, should never be
    interpreted in a manner which nullifies other terms in the
    same agreement. Furthermore, the specific controls the
    general when interpreting a contract.
    Trombetta v. Raymond James Fin. Servs., Inc., 
    907 A.2d 550
    ,
    560 (Pa. Super. 2006) (citations omitted). “It is fundamental that
    one part of a contract cannot be so interpreted as to annul another
    part and that writings which comprise an agreement must be
    interpreted as a whole.” Shehadi v. Ne. Nat’l Bank of Pa., 
    378 A.2d 304
    , 306 (Pa. 1977).
    Sw. Energy Prod. Co. v. Forest Res., LLC, 
    83 A.3d 177
    , 187 (Pa. Super.
    2013) (citations modified).
    Were we to interpret the general language of Paragraph 3(a) of the
    Maintenance Rider to indicate that Lamplighter and USPS intended for
    Lamplighter to retain responsibility for snow removal, it would annul the
    specific language of Paragraph 8 (SNOW) of the Utilities, Services &
    Equipment Rider.    Such a reading would directly contradict the contract
    interpretation principles set forth in Southwest Energy. Moreover, there is
    no language in the lease indicating that the parties intended for the provision
    stating that Lamplighter’s obligation to maintain, repair, and replace (if
    necessary) common and joint use areas included the responsibility of snow
    removal in the parking lot.     Consequently, the lease is not reasonably
    susceptible of different constructions or capable of being understood in more
    than one sense regarding USPS’s responsibility for snow removal in the
    parking lot. See Ins. Adjustment 
    Bureau, 905 A.2d at 468-69
    . To the
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    contrary, the lease is unambiguous in its express terms stating that USPS was
    responsible for snow removal in the parking lot. See Motion for Summary
    Judgment, 3/18/19, Exhibit A (Lease, 6/10/08, Utilities, Services & Equipment
    Rider ¶ 8). Accordingly, Appellant’s argument that summary judgment was
    inappropriate because an ambiguity exists in the lease regarding responsibility
    for snow removal is meritless.
    Second, Appellant argues that although Lamplighter was a landlord out-
    of-possession of the property, Lamplighter was still responsible for her injuries
    under the public use exception to the landlord out-of-possession rule.
    Appellant asserts that the public use exception “creates landlord liability if the
    landlord knew or should have known the leased premises were to be used for
    purposes involving admission to the public.” Appellant’s Brief at 27.
    “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, 
    940 A.2d 451
    , 454 (Pa. Super. 2007).
    There are, however, several exceptions to this general rule:
    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
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    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. Cont’l Assoc., 
    591 A.2d 716
    , 718-19 (Pa. Super. 1991) (emphasis
    added, citations omitted).
    With respect to the public use exception, we have explained:
    [A] landlord out-of-possession may be liable if he or she has
    leased the premises for a purpose involving admission of the
    public and has failed to inspect for or repair dangerous conditions
    prior to transferring possession of the property. Restatement
    (Second) of Torts § 359. The rationale for this exception “lies in
    the lessor’s responsibility to the public, which he is not free to shift
    to the lessee in any case where he has reason to expect that the
    lessee will admit the public before the land is put in reasonably
    safe condition for [the public’s] reception.” Restatement (Second)
    of Torts § 359 comment a (1965).
    
    Levin, 940 A.2d at 456-57
    (emphasis added, citations and footnote omitted).
    Based upon our review of the record and the aforementioned authority,
    the public use exception is inapplicable to this case. As Appellant concedes in
    her appellate brief, the public use exception applies where a landlord fails to
    inspect the property for or repair dangerous conditions before transferring
    possession to the tenant.      
    Id. In this
    case, there is no evidence that a
    dangerous condition existed in the parking lot of the Blakeslee Post Office that
    Lamplighter failed to inspect or repair prior to transferring possession to USPS.
    See 
    id. Given the
    ever-changing nature of weather, it was not possible for
    Lamplighter to predict, years in advance, that it was going to snow on the
    date in question and take steps prior to transferring possession of the property
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    to USPS to prevent Appellant’s injury.     Therefore, Appellant’s public use
    exception argument lacks merit.
    As there are no disputed material facts and Lamplighter was entitled to
    judgment as a matter of law, the trial court did not err in granting
    Lamplighter’s motion for summary judgment.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/9/19
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