J-S82044-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BEVERLY BLACKWELL, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

BRETT RUSSELL,

Appellee No. 861 MDA 2016

Appeal from the Judgment May 12, 2016

in the Court of Common Pleas of Schuylkill County

Civil Division at No.: S-2437-11

BEFORE: OTT, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED DECEMBER 16, 2016

Appellant, Beverly Blackwell, appeals from the grant of summary 

judgment entered May 12, 2016, in favor of Appellee, Brett Russell. We 

affirm.

We take the factual and procedural history in this matter from the trial 

court’s July 22, 2016 opinion, and our review of the certified record. On 

November 16, 2011, Appellant filed a complaint against Appellee seeking 

damages for property loss resulting after fire damage to her home, at 108 

West Main Street, Girardville, Pennsylvania. The fire, which originated at 

Appellee’s property, 112 West Main Street, was allegedly started by tenant 

Erik Angstadt’s children in the basement of the home they rented from 

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* Retired Senior Judge assigned to the Superior Court.
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Appellee. Mr. Angstadt’s lease with Appellee was a standard lease wherein 

Appellee could come in and inspect the premises, but which did not contain a 

reservation of control. (See Trial Court Opinion, 7/22/16, at 4).

Appellant’s complaint alleged that Appellee was liable for damage to 

her house because he did not inspect the work performed by an earlier 

tenant who installed a wood burning stove. She further alleged that he 

breached his duty to ensure the stove was installed correctly, obtain the 

proper permits, and instruct the tenant on the proper use of the stove. (See 

Complaint, 11/16/11, at unnumbered pages 1-2).

On March 28, 2016, Appellee filed a motion for summary judgment.1 

In it, he provided the deposition testimony of Girardville Fire Chief, Frank 

Zangari, who was deposed on July 19, 2012. After investigating the fire, 

Chief Zangari concluded that it was caused by one of Mr. Angstadt’s 

children, who “filled wood burner in basement of 112 West Main Street with 

approximately [twenty-four] starter logs, added magazines, cardboard and 

____________________________________________

1 This matter originally involved three cases which were consolidated based 

on the request of all parties. On July 29, 2014, the trial court granted 

Appellee’s summary judgment motion as to all three cases. The plaintiffs, 

including Appellant, appealed. On July 7, 2015, this Court quashed the 

appeal because no judgment had been entered in regard to Erik Angstadt, a 

defendant in one of the consolidated cases. (See HBR Properties, LLC v. 

Brett Russell, 1492 MDA 2014, unpublished memorandum (Pa. Super. filed 

Jul. 7, 2015)). On January 6, 2016, Appellant filed a motion to sever her 

case from the others, which the trial court granted on January 13, 2016. On 

March 9, 2016, the parties filed a stipulation to re-file the same summary 

judgment pleadings, thus the March 28, 2016 motion for summary 

judgment. (See Trial Ct. Op., at 1-2).
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wood, ignited all materials with several matches, closed the wood burner 

door, did not lock the wood burner door and left the building approximately 

[fifteen] minutes later.” (N.T. Zangari Deposition, 7/19/12, Exhibit A, 

Girardville Fire Department Incident Report, at 2). When questioned 

whether the chimney could have had anything to do with the fire, he 

testified that: 

The chimney was inspected after the fire. The chimney in my 

opinion looked clean. The stove pipe going into the chimney 

wall, the mortar was good. Everything was in place. In fact, we 

actually removed that as part of the investigation. The chimney 

didn’t seem to be part of that fire. 

(Id. at 29). On May 12, 2016, the trial court granted summary judgment in 

favor of Appellee and against Appellant. This timely appeal followed.2

Appellant raises one issue on appeal.

1[.] Whether the [trial] court committed an error of law or 

abused its discretion by granting the Appellee’s motion for 

summary judgment where there exists genuine issues of 

material fact in dispute regarding Appellee’s negligence, thereby 

precluding the entry of summary judgment?

(Appellant’s Brief, at 4) (most capitalization omitted).

Our standard of review on an appeal from the grant of a 

motion for summary judgment is well-settled. A reviewing court 

may disturb the order of the trial court only where it is 

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2

Pursuant to the trial court’s order, Appellant filed her concise statement of 

errors complained of on appeal on June 8, 2016. See Pa.R.A.P. 1925(b). 

On June 10, 2016, the trial court entered an order attaching the October 27, 

2014 opinion drafted for the initial appeal. On July 22, 2016, the court 

entered an amended opinion. See Pa.R.A.P. 1925(a). 
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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 nonmoving 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 he bears the burden of proof 

establishes the entitlement of the moving party to judgment as a 

matter of law. Lastly, we will review 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.

Krauss v. Trane U.S. Inc., 104 A.3d 556, 562-63 (Pa. Super. 2014) (case 

citation omitted).

Appellant claims that the trial court erred in granting summary 

judgment in favor of Appellee because there existed a genuine issue of 

material fact as to whether he was negligent in failing to obtain a permit for, 

or inspect, the wood burning stove, and whether that negligence was a 

direct and proximate cause of the fire. (See Appellant’s Brief, at 9-10). 

Specifically, she argues that, although Appellee was a landlord out of 

possession and thus would be relieved from liability for injuries suffered by 

third parties, in this case he should still be liable for her damages because 

he reserved control over the wood burning stove. (See id. at 11). We 

disagree. 
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To prevail on a cause of action for negligence, a plaintiff must prove a 

duty recognized by law, a breach of duty, a causal connection between 

defendant’s breach of duty and the injury, and actual loss or damage 

suffered by plaintiff. See Jones v. Levin, 940 A.2d 451, 454 (Pa. Super. 

2007).

“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. . . . Thus, liability is premised primarily on possession 

and control, and not merely [on] ownership.” Id. (citations and internal 

quotation marks omitted). However, there are several exceptions to the 

landlord out of possession non-liability rule. See id. 

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 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.

Henze v. Texaco, Inc., 508 A.2d 1200, 1202 (Pa. Super. 1986) (citations 

omitted). In the instant matter, Appellant argues applicability of the 

reserved control exception. 
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[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.

Jones, supra at 455 (citation omitted). 

In the instant case, the trial court concluded that none of the 

exceptions to the landlord out of possession rule applied. It explained that 

“[Appellee] was clearly out of possession. The fact that he could come in 

and inspect if he wished does not imply a reservation of control, when the 

tenant is responsible for all repairs and maintenance.” (Trial Ct. Op., at 4). 

Furthermore, as the court noted, the evidence shows that there is no issue 

of material fact that the fire was caused by the operation of the stove by one 

of Mr. Angstadt’s children, and there was “no evidence of causation between 

the fire and the lack of a permit or an inspection.” (Id. at 3). 

We discern no error of law in the trial court’s conclusion. See Krauss, 

supra at 562-63. Appellant has not set forth any evidence that would prove 

that Appellee reserved control of the wood burning stove, nor has she 

introduced any evidence that his alleged negligence caused the fire. See

Jones, supra at 454-55. Accordingly, we agree with the trial court there 

was no genuine issue of material fact and summary judgment was proper on 

this basis. 

Judgment affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/16/2016