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HomeMy WebLinkAbout2003-6685 Civil JUSTIN P. VARNER, MATHEW B. VARNER, CHRISTOPHER R. VARNER and DANIELLE CANNING, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CLASSIC COMMUNITIES CORPORATION, RONALD and LAURA GABRIEL and BARTON & ASSOCIATES, INC., DEFENDANTS 03-6685 CIVIL TERM IN RE: MOTION OF DEFENDANTS RONALD AND LAURA GABRIEL FOR SUMMARY JUDGMENT OPINION AND ORDER OF COURT Bayley, J., November 20,2006:-- On February 3, 2004, plaintiffs, Justin P. Varner, Mathew B. Varner, Christopher R. Varner and Danielle Canning filed an amended complaint against defendants, Classic Communities Corporation, Ronald and Laura Gabriel, and Barton & Associates, Inc. Plaintiffs allege that Classic Communities Corporation constructed a three bedroom townhouse for Ronald and Laura Gabriel at 2803 Sunset Court, Gratham, Pennsylvania. Barton & Associates, Inc., was the architect. On January 6, 2002, plaintiffs and Betty Bowen were in the townhouse that was leased in its entirety to Betty Bowen, when there was a fire. Plaintiffs allege that the fire was caused by and spread quickly because of multiple BOCA Code violations. Justin P. Varner, Mathew B. Varner and Danielle Canning seek damages for injuries sustained in the fire. Christopher R. 03-6685 CIVIL TERM Varner escaped from the townhouse without physical injury. He seeks damages for emotional and mental anguish for having experienced the death of his mother, Betty Bowen, and witnessing the injuries to the others in the fire. The specific allegations of negligence against defendants, Ronald and Laura Gabriel, are: 33. As the owners of the premises, the Gabriels were under a duty to make reasonable inspection of the premises and ensure that the same were compliant with the requisite 1993 BOCA codes, specifically Chapter 7 Fire Resistant Materials and Construction and Chapter 9 Fire Protection Systems, and to protect the occupants thereof. 34. Based upon information and belief, the premises located at 2803 Sunset Court did not comply with the BOCA Code, rendering the same substandard and uninhabitable, and, they were not inspected or maintained by these defendants to ascertain compliance with said requisite codes so as to provide the plaintiffs with the value of a chance for escape in the event of a fire. The Gabriels filed a motion for summary judgment against plaintiffs which is ready for disposition.1 In Washington v. Baxter, 719 A.2d 733 (Pa. 1998), the Supreme Court of Pennsylvania set forth the standard for deciding a motion for summary judgment. A court: . . . must 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, Pennsylvania State University v. County of Centre, 532 Pa. 142, 143-145, 615 A.2d 303, 304 (1992). In order to withstand a motion for summary judgment, a non- moving party "must adduce sufficient evidence on an issue essential to 1 Defendant, Classic Communities Corporation, filed new matter which included a cross-claim against Ronald and Laura Gabriel, maintaining that they are solely liable to plaintiff or, in the alternative, liable over to it for indemnity andlor contribution for any money for which it may be found liable to plaintiffs. Defendant, Barton & Associates, was granted a judgment of non pros on January 11, 2005, which was affirmed by the Superior Court of Pennsylvania. 890 A.2d 1068 (Pa. Super. 2006). -2- 03-6685 CIVIL TERM his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Ertrel v. Patriot-News Co., 544 Pa. 93,101-102,674 A.2d 1038,1042 (1996). It is undisputed that the Classic Communities Corporation built the townhouse and sold it to the Gabriels in February, 1997. A Certificate of Occupancy was issued prior to their moving into the property. They lived there until February, 2001. On March 24, 2001, they leased the townhouse to Betty Bowen. The written residential lease contained the following provisions: OWNER'S RIGHT TO ENTRY: Owner may enter and inspect the premises during normal business hours and upon reasonable advance notice of at least 24 hours to Tenant. Owner is permitted to make all alterations, repairs and maintenance that in Owners [sic] judgment is necessary to perform. . . . REPAIRS BY OWNER: Where a repair is the responsibility of the Owner, Tenant must notify Owner with a written notice stating what item needs servicing or repair. Tenant must give Owner a reasonable opportunity to service or repair said item. Under no circumstances may Tenant withhold rent unless said item constitutes a substantial breach of a warrantee [sic] of habitability as stated in laws of the jurisdiction. There is no evidence that Bowen ever made any complaints about the leased property to the Gabriels, or that the Gabriels ever entered the property after it was leased to Bowen. Plaintiff maintains that when the fire occurred, the Gabriels' townhouse had multiple violations of the provisions of the 1993 BOCA Code, including specifically "Chapter 7 Fire Resistant Materials and Construction and Chapter 9 Fire Protection Systems." In their brief they describe these systems as "construction of the -3- 03-6685 CIVIL TERM roof, use of inadequate fire resistant material and walls and fire resistance rating, together with design defects and construction defects related thereto." There is no evidence that the Gabriels knew of these alleged BOCA Code violations. The Gabriels maintain that they owed no duty to plaintiffs to inspect the townhouse to ensure that it was in compliance with these BOCA Code provisions, or otherwise maintain the premises to ascertain such compliance if in fact there was noncompliance with BOCA Code provisions that were a substantial factor in causing injury to plaintiffs. In R.W. and C.W., 888 A.2d 740 (Pa. 2005), the Supreme Court of Pennsylvania stated: In Pennsylvania, the elements of a cause of action based upon negligence are: (1) a duty or obligation recognized by the law requiring the defendant to conform to a certain standard of conduct for the protection of others against unreasonable risks; (2) defendant's failure to conform to the standard required; (3) a causal connection between the conduct and the resulting Injury; (4) actual loss or damage resulting to the plaintiff. (Emphasis added. ) In Feld v. Merriam, 506 Pa. 383 (Pa. 1984), the Supreme Court stated that: Well settled law holds landlords to a duty to protect tenants from injury arising out of their negligent failure to maintain the premises in a safe condition. That rule of law is addressed to their failure of reasonable care, a failure of care caused by their own negligence, a condition, the cause of which was either known or knowable by reasonable precaution. (Citations omitted.) In Keck v. Doughman, 392 Pa. Super. 127 (1990), the Superior Court of Pennsylvania, in a negligence claim against a landlord for injuries suffered by a tenant on a leased -4- 03-6685 CIVIL TERM premises, stated that, ". . . the landlord usually is required to have failed to correct a condition discoverable through the exercise of reasonable care." The Gabriels reserved the right to make repairs to the townhouse which they leased in its entirety to Bowen. As the Superior Court has already stated in the opinion affirming the judgment of non pros entered against the architect, Barton & Associates, Inc.: Plaintiffs' claims against Barton involved compliance with the BOCA Code - an area "beyond the realm of common knowledge and experience. . ." Notwithstanding the reservation of the right to make repairs, we agree with the Gabriels that they had no duty to inspect or maintain the leased townhouse to ensure that it was compliant with the BOCA Code provisions alleged by plaintiffs to have been in noncompliance, i.e., fire resistant materials and construction, fire protection systems regarding the construction of the roof and walls, and fire resistance rating, together with design defects and construction defects related thereto. Plaintiffs have cited no authority that would create such a duty on an ownerllandlord to inspect and discover such conditions that would have been created by the builder when the townhouse was constructed five years before the fire, and which are beyond the realm of common knowledge and experience of an owner/landlord. Accordingly, plaintiffs are entitled to summary judgment on the claim of negligence alleged in Paragraph 33 of its complaint. To the extent that Paragraph 34 in plaintiffs' complaint sets forth a cause of action against the Gabriels for breach of the warranty of habitability, there is no -5- 03-6685 CIVIL TERM evidence that the Gabriels were ever notified by the lessee of the alleged noncompliance with BOCA Code provisions claimed to be a substantial factor in causing injury to plaintiffs. Such notification is a prerequisite to prove a case under a warranty of habitability theory. See Keck v. Doughman, supra. For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this day of November, 2006, the motion of Ronald Gabriel and Laura Gabriel for summary judgment against plaintiffs, IS GRANTED. By the Court, Edgar B. Bayley, J. Debra Tedeschi Herron, Esquire P.O. Drawer 2040 Clarksburg, WV 26302 For Plaintiffs Timothy J. McMahon, Esquire 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 For Defendants Ronald and Laura Gabriel Paul J. Walsh, III, Esquire Gulf Tower, Suite 2400 707 Grant Street Pittsburgh, PA 15219 For Classic Communities Corporation :sal -6- JUSTIN P. VARNER, MATHEW B. VARNER, CHRISTOPHER R. VARNER and DANIELLE CANNING, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CLASSIC COMMUNITIES CORPORATION, RONALD and LAURA GABRIEL and BARTON & ASSOCIATES, INC., DEFENDANTS 03-6685 CIVIL TERM IN RE: MOTION OF DEFENDANTS RONALD AND LAURA GABRIEL FOR SUMMARY JUDGMENT ORDER OF COURT AND NOW, this day of November, 2006, the motion of Ronald Gabriel and Laura Gabriel for summary judgment against plaintiffs, IS GRANTED. By the Court, Edgar B. Bayley, J. Debra Tedeschi Herron, Esquire P.O. Drawer 2040 Clarksburg, WV 26302 For Plaintiffs Timothy J. McMahon, Esquire 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 For Defendants Ronald and Laura Gabriel 03-6685 CIVIL TERM Paul J. Walsh, III, Esquire Gulf Tower, Suite 2400 707 Grant Street Pittsburgh, PA 15219 For Classic Communities Corporation :sal -2-