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HomeMy WebLinkAbout97-6870 civilKIMBERLY ROSENBURG, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW CHARLES D. MORRIS, FLORENCE A. MORRIS, ROBERT MORRIS, t/d/b/a : NO. 97-6870 CIVIL TERM MORRIS LAUNDROMATION SERVICES, INC., Defendants IN RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Before HOFFER~ P.J, OLER and HESS, JJ. ORDER OF COURT AND NOW, t~!~{~ ~ after consideration of the Defendants' Motion for Summary ~lment, the facts of the record, and the applicable law, Defendants' Motion for Summary Judgment is hereby GRANTED. By the Court, David B. Dowling, Esquire Danielle S. Kilgore, Esquire Rhoads & Sinon, LLP One South Market Square Harrisburg, PA 17108- 1146 Attorneys for Plaintiff Karen S. Coates, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street Harrisburg, PA 17108-0999 Attorneys for Defendants KIMBERLY ROSENBURG, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW CHARLES D. MORRIS, FLORENCE A. MORRIS, ROBERT MORRIS, t/d/b/a NO. 97-6870 CIVIL TERM MORRIS LAUNDROMATION SERVICES, INC., Defendants IN RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Before HOFFER, P.J., OLER and HESS, JJ. OPINION OF COURT HOFFER, J.: In this opinion we address Defendants' Motion for Summary Judgment. This is a negligence action brought by Plaintiff, Kimberly Rosenburg, against Defendants for injuries sustained when Plaintiff fell over a railing and off the balcony of a building owned by Defendants. The facts in the case are as follows: Defendant Robert Morris testified that he is the general manager of the property in question, which his parents, Charles D. Morris and Florence A. Morris, purchased in 1968. (R. Morris Depo., p.8, In. 6-8; p. 4, In. 21-22.) The property is three stories in height. The first floor contains four commercial stores, including a laundromat run by the Defendants, and a book store, beauty shop and pizza shop leased to other commercial tenants. (R. Morris Depo., p. 7, In. 14-25.) The second and third floors of the building comprise five apartment units. (R. Morris Depo., p.8. In.1-5.) The apartment in question is a one bedroom 97-6870 CIVIL TERM apartment located on the second floor. (R. Morris Depo., p.8, In. 5; p.21, In. 14.) Mr. Morris does not reside in any of the apartment units in question. Defendants Charles and Florence Morris are retired and have a home out of the area. (R. Morris Depo., p.10, In.13; p.37, In. 3-4.) Mr. Morris testified that he visited the laundromat portion of the building on a daily basis in order to collect change and check on the machines. (R. Morris Depo., p. 16, In.11; p.17, In. 13-17.) If a tenant had a concern, Mr. Morris could address it at that time. (R. Morris Depo., p.16, In. 16.) Pursuant to the written lease agreement, Mr. Morris retained the right to enter the apartment in question to make periodic inspections. (R. Morris Depo., p.36, In. 3-7.) Plaintiff fell off a second story balcony of the building owned and managed by Defendants on March 6, 1997. (Complaint, ¶ 9.) At the time of the accident, Plaintiff was visiting her friend, Michelle Hoffa, a tenant who leased Apartment B from Defendants pursuant to a written lease agreement. (Complaint, ¶¶ 5,6, and 7.) Plaintiff alleges that she was standing near the railing on the tenant's balcony when she fainted and fell over the railing to the ground below. (Complaint, ¶ 9.) Tenant never complained about the height of the railing or asked the Defendants to change the railing, nor did she express any concerns about the height of the railing prior to the accident. (Hoffa Depo., p.19, In. 17; p.20, In. 14.) 2 97-6870 CIVIL TERM The Plaintiff has obtained an expert report from John Brogan, P.E. in which he concluded that the railing over which the Plaintiff fell did not meet the height requirements of "The Building Officials and Code Administrators (BOCA) National Building Code" of 1990, which he asserts is accepted by some municipalities in Pennsylvania. (Brogan Report, p.1, attached to Defendants' Motion as Exhibit "A".) This code requires a height of 42 inches, whereas the railing in question measures 33 inches. (Brogan Report, p.2.) The Defendants have obtained an expert opinion from Eugene Aufiero, P.E., establishing that New Cumberland has not adopted the BOCA code and therefore this code is not controlling in this case and has no legal effect. (Aufiero Report, p.1, attached to Defendants' Motion as Exhibit "B".) The Plaintiff has not refuted this position. Plaintiff has also asserted that Defendants violated section 50.25 of Title 34 of the Pennsylvania Code, promulgated by the Department of Labor and Industry, which requires a railing height of 42 inches. (Brogan Report, p. 2.) In response to Defendants' Request for Admissions, Plaintiff had admitted that this section of the Pennsylvania Code cannot be applied retroactively, as set forth in 49.2(0 of Title 34 of the Pennsylvania Code. (Plaintiff's Response to Defendants' Request for Admission 6.) The wrought iron fence over which the Plaintiff fell was incorporated onto the balcony between 1968 and 1970. (R. Morris Depo., p. 11, In. 11.) The 42 97-6870 CIVIL TERJVI inch height requirement of the Pennsylvania Code did not become effective until 1984. (Aufiero report, p.2; Morris Depo., p.11, In. 11.) The pleadings in this case are closed. Defendants filed their Motion for summary Judgment on September 14, 1998. Plaintiff filed a response to Defendants' motion on September 21, 1998. The case was heard at a later argument session. In deciding the motion, the Court will look to the following documents filed of record in this case in addition to the pleadings of the parties: Plaintiff's deposition, Defendant Robert Morris's deposition, Melanie Klein's deposition, Michelle Hoffa's deposition, Defendants' Answers to Plaintiff's Interrogatories and Plaintiff's Answers to Defendants' Request for Admissions. DISCUSSION Motions for summary judgment are governed by Pa. R. Civ. P. 1035.2. The rule states: After the relevant pleadings are closed, but within such time as to not unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) 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 4 97-6870 CIVIL TERM to a jury. Pa. R. Civ. P. 1035.2. In deciding a motion for summary judgment, this Court 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." Ertel v. Patriot News Co., 44 Pa. 93, 98-99, 674 A.2d 1038, 1041 (1996). Defendants own the building in question and lease space within that building, but they do not reside on the premises nor do they retain possession and control of Apartment B. The Defendants retain the right to enter Apartment B pursuant to Tenant's written lease for inspection purposes, but this implies no.reservation of control over the premises which would render Defendants chargeable with maintenance and repair. Henze v. Texaco, 508 A.2d 1200, 1202 (Pa. Super. 1986). Consequently, Defendants are landlords out of possession. In Kobylinski v, Hipps, the plaintiff, a social guest of a tenant, fell down an exterior unguarded stairwell and plunged to his death. 519 ^.2d 488 (Pa. Super. 1986). The plaintiff brought a wrongful death action against both the tenant and landlord. In reviewing the law on landlord liability to third parties, the court noted that "[t]he general rule in Pennsylvania states that a landlord out of possession, in most instances, is not responsible for injuries sustained by third parties on the leased 97-6870 CIVIL TERM premises." Id. at 491 (citing Pierce v. Philadelphia Housing Authority, 486 A.2d 1004, 1005 (1985)). The Kobylinski court stated that this rule has four exceptions arising when: 1. The lessor contracts to make repairs but either refuses to make them or performs them in a negligent manner. Klais et ux. V. Guiton, 26 A.2d 293 (1942); 2. The lessor conceals, or fails to disclose to the lessee, any condition which involves unreasonable risk of physical harm to persons on the property. Doyle v. Atlantic Refininq Co., 53 A.2d 68, 71 (1947); 3. The landlord knew, or should have known, the leased premises were to be used for purposes involving admission to the public. Yarkosky v. The Caldwell Store, Inc., 151 A.2d 839, 842 (1959); 4. The landlord has retained control over a portion of the property which is necessary to the safe use of the leased property; or, if the lessor shares with the lessee the right to possess any section of the property. Smith v. M.P.W. Realty Co., 225 A.2d 227, 229 (1967). Kobylinski v. Hipps, 519 A.2d at 491. The Kobylinski court held that none of the exceptions applied to the facts before it. Particularly, the court noted that the second exception did not apply because it was "patently clear that the unguarded condition of the outside stairwell was conspicuous at the time the lease was executed and that [the tenant] never questioned [the landlord] about its safety." Id. None of the exceptions spelled out in Kobylinski apply to the present case and, accordingly, Defendants are not liable for Plaintiff's injuries. The first exception doesn't apply because the Defendants never contracted to repair the allegedly d 97-6870 CIVIL TERM defective balcony railing, nor did Defendants refuse to make the repairs or perform repairs in a negligent manner. Tenant Michelle Hoffa testified that she never expressed concern about the height of the railing to the Defendants or asked them to replace the railing. Like the unguarded stairwell in Kobylinski, the railing is a condition that was conspicuous at the time that Tenant's lease was executed and, consequently, the second exception does not apply. The height of the balcony railing in question could not have been a concealed condition involving an unreasonable risk because it was plainly visible to Tenant, Plaintiff, and Defendants. Because the condition of the railing was plainly visible to Tenant and Plaintiff, the Defendants did not conceal or fail to disclose the condition of the railing. Defendant Robert Morris had been on the balcony at least six times and never questioned the height of the railing. He thought the height was adequate. The third exception does not apply in the present case because the premises were not used for purposes involving the admission of the public, and the fourth exception does not apply because the Defendants did not retain control over the apartment or the balcony, nor did the Defendants share any right to possess any section of the leased premises with the tenant. Plaintiff asserts that the issue of whether the balcony railing constitutes a 7 97-6870 CIVIL TERM dangerous and hazardous condition, is a question for the jury. Given the finding above that Defendants were out of possession landlords and not liable to Plaintiff, the court does not need to reach this issue. Defendants did not breach any statutory duty to the plaintiff regarding the height of the balcony railing. Plaintiff's expert report, concluding that the railing over which the Claimant fell did not meet the height requirements of the BOCA National Building Code of 1990, has not been adopted in New Cumberland. Therefore, this Code is not controlling and has no legal effect in the present case. The standard height for railings set forth in the Pennsylvania Code is inapplicable in the present case as well because this section of the Code, as set forth in 49.2(0 of Title 34, cannot be applied retroactively. The wrought iron fence over which the Plaintiff fell was incorporated onto the balcony between 1968 and 1970, but the 42 inch height requirement of the Pennsylvania Code did not become effective until 1984. In conclusion, summary judgment is granted in favor of the Defendants. Because Defendants were landlords out of possession and not liable for Plaintiff's injuries, the question need not be reached as to whether the height of the railing constituted a dangerous and hazardous condition. In addition we find that Defendants did not breach any statutory duty toward the Plaintiff.