IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David A

. Taft and Margaret Taft, h/w, : Appellants :

:

v. :

: Sandra Kuby, Good Realty Co., : Steven T. Klovsky and Bruce M. : Klovsky as Trustees of the Sidney : B. Klovsky Family Trust, Ed win R. : Gold en berg and Edward C. Goodstein : as Trustees of the Sidney J. : Goodstein Trust, Best Construction, : Inc., Commonwealth of Pennsylvania : Liquor Control Board and SC Bradley : No. 1947 C.D. 2013 Landscaping, Inc. : Argued: June 20, 2014

BEFORE: HONORABLE DAN PELLEGRINI

, President Judge

HONORABLE P. KEVIN BROBSON , Judge HONORABLE ANNE E. COVEY , Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE COVEY FILED: July 1 8 , 2014

David A. Taft (Mr. Taft) and Margaret Taft (collectively Appellants)

appeal from the Delaware County Common Pleas Court’s (trial court) June 3, 2013

order granting the Pennsylvania Liquor Control Board’s (PLCB) summary judgment

motion. There are three issues for this Court’s review: (1) whether the trial court

erred when it granted the PLCB’s summary judgment motion because genuine issues

of material fact remained at issue; (2) whether the trial court erred when it granted the

PLCB’s summary judgment motion because the PLCB had a duty to maintain the

exterior or the sidewalk or parking lot outside of its liquor store located at 209 West

Lancaster Avenue, Wayne, Pennsylvania (Store ) ; and ( 3 ) whether Mr. Taft’s personal2

injury action against the PLCB was barred by what is commonly known as the

S over eign I mmunity Act

. 1 We affirm.

On February 16, 2010, Mr. Taft slip ped and f e ll on an icy patch outside

the Store from which he sustained injuries

. Thereafter, Appellants instituted suit

against the PLCB . The suit also named as defendants the property owners Steven T.

Klovsky and Bruce M. Klovsky, as trustees of the Sidney B. Klovsky Family Trust,

Edward C. Goodstein, as trustee of the Sidney J. Goodstein trust, and Edwin R.

Goldenberg and Good Realty Co. (Good Realty), agent under a property management

agreement for the property owners (collectively, Good Defendants)

. 2

The Store is located in a “strip shopping center” which is

owned/managed by the Good Defendants. Reproduced Record (R.R.) at 4a. The

PLCB has a lease with the Good Defendants (Lease) w hich describes the leased

premises as the “[f]irst floor storeroom consisting of 6,032 square feet in building

situate 209 West Lancaster Avenue, Radnor Township, Wayne, Pennsylvania 19087,

for use by the [PLCB] as a Wine & Spirits outlet.” Supplemental R eproduced Record

(S.R.R.) at 2b. The Lease also states that the Good Defendants, as lessor (Lessor),

are responsible:

To make at [Lessor’s] expense all interior and exterior repairs, and to keep and maintain the premises in a tenantable condition includin g all the plumbing, drainage, heating equipment, and electric wiring during the term of this lease . . . and to assume liability for all damages resulting from failure to maintain the premises in a tenantable condition. . . .

Id

. Pursuant to the Lease, Lessor is to “[m]aintain sidewalk & curb in front of the

premises in good condition[,]” and with regard to the parking area, “maintenance,

1 42 Pa. C.S. §§ 8521

- 85 28.

2 Sandra Kuby and the Glenmede Trust Co., co

- executors of the Estate of Benjamin Kuby

, were also named as defendants

, but they have not been involved in the litigation, apparently because they were not served.3

including snow removal, and illumination of the parking space provided is the sole

responsibility of the Lessor.” Id . at 3b. However, t he Lease also specifies :

I n c ase of the LESSOR’s failure to maintain the p remi ses in

a ten an table condition a s a fores ai d . . . then, sh o uld the LESSOR fail to have repaired and restored the premises to a tenantable condition within one month after notice of such condition by LESSEE to LESSOR, the LESSEE may at its option . . . after first giving LESSOR fifteen (15) days written notice, repair and restore premises to a tenantable condition , and deduct such costs made in restoration of

pre mises from the monthly rental payments due.

. . .

Id . at 2b.

Appellants allege in their complaint that Mr. Taft was injured as a result

of all defendants’ negligence in maintaining the leased premises, specifically:

a broken, malfunctioning, worn, decaye d, leaking and/or otherwise non

- functional section of roof gutter above the entrance way to the [Store] directed water from the roof . . . through a leak in the roof gutter seam, causing a puddle to form before [the] entrance, which froze into an artificia l accumulation of black ice in front of the entrance . . . .

R.R. at 5a, ¶10.

Discovery was undertaken, and o n or about April 19, 2013, the PLCB

filed a summary judgment motion alleging that Appellants’ complaint failed to set

forth a common law cause of action in negligence against the PLCB, and did not

demonstrate that the claim fell within an exception to sovereign immunity. On June

3, 2013, upon consideration of the PLCB’s motion, Appellants’ response thereto, and

after oral argument, the trial cou rt granted the PLCB’s summary judgment motion.

The trial court determined that there were no genuine issues of material fact because

it was undisputed that the incident occurred outside the Store, the PLCB did not own

the shopping center, and the Lease pr ovided that Lessor, not the PLCB, was

responsible for maintaining the exterior of the shopping center. The trial court ruled4

that because the PLCB had no duty to maintain the Store exterior, no common law

cause of action could exist. The trial court also found that Appellants had not

demonstrated a waiver of sovereign immunity. Accordingly, it granted the PLCB’s

summary judgment motion. Appellants appealed to this Court. 3

Appellants first argue that the trial court erred when it granted summary

judgmen t because genuine issues of material fact remain . Specifically

, Appellants

conten d that : (1) the Lease is vague, and thus, responsibility for removal of snow and

ice is unclear; (2) the nature of repairs, if any, made to the leaky rain gutter must be

expl ored since the lease allows the PLCB to make necessary repairs when the

landlord refuses to do so; and, (3) inconsistent testimony exists regarding the exact

location of Mr. Taft’s fall, what action s PLCB employees t ook to address the icy

sidewalk and the length of time the gutter had been leaking. We disagree.

Our Supreme Court has stated: “ It is well

- settled that the

Commonwealth of Pennsylvania is protected from civil suit under sovereign

immunity, except where the General Assembly has specifically pro vided for a waiver

of immunity. ” Mullin v. Dep’t of Transp. , 870 A.2d 773, 779 (Pa. 2005). “ Because

3 The Pennsylvania Supreme C ourt has explained that:

A n order of a trial court granting summary judgment may be disturbed by an appellate court only if the court committed an error of law, thus, our standard of review is de novo , and our scope of review is plenary. The entry of s ummary judgment is proper whenever no genuine issue of any material fact exists as to a necessary element of
the cause of action. The moving party ’ s right to summary judgment
must be clear and free from doubt. We examine the record, which
consists of all pleadings, as well as any depositions, answers to interrogatories, admissions, affidavits, and expert reports, in a light
most favorable to the non

- moving party, and we resolve all doubts as to the existence of a genuine issue of material fact against the moving
party.

LJL Transp., Inc. v. Pilot Air Freight Corp. , 962 A.2d 639 , 647 (Pa. 2 009 ) (citations omitted)

.5

of the clear intent to insulate the government from liability, the exceptions to

sovereign immunity are to be strictly construed. ” Id. This Court has ex plained:

In order to recover damages under the real estate exception [to sovereign immunity

, 42 Pa.C.S. § 8522 (b)(4) ], the plaintiff must show not only that there was a dangerous condition of the Commonwealth’s real estate, but also that the damages would be recoverable under the common law or by statute , had the injury been caused by a person not having available the defense of sovereign immunity. . . . [I]n order to prevail in a negligence action under common law, the plaintiff must establish that: (1) the defendant owed a duty of care to the plaintiff ; (2) that duty was breached; (3) the breach resulted in the plaintiff’s injury; and (4) the plaintiff suffered an actual loss or damages.

Brown v. Commonwealth , 11 A.3d 1054, 1056 (Pa. Cmwlth. 2011) ( empha sis added ).

With regard to a duty owed by shopping center tenants to patrons in

locations outside the tenants’ leased areas, our Supreme Court has stated :

In Pennsylvania, it has long been established as a principle of landlord

- tenant law that where t he owner of real estate leases various parts thereof to several tenants, but retains possession and control of the common passage

- ways and aisles which are to be used by business invitees of the various tenants, the obligation of keeping the common aisles safe for the business invitees is imposed upon the landlord and not upon the tenants, in the absence of a contrary provision in the lease or leases[.]

However, since shopping centers are a comparatively recent commercial development, with facilities of a c haracter substantially different than those known heretofore, the question arises as to whether or not such complexes are not somehow different and call for something more than the application of the venerable principles of landlord

- tenant law. We conclud e not.

Leary v. Lawrence Sales Corp. , 275 A.2d 32, 34 (Pa. 1971) ( citations omitted;

emphasis added). Thus, the Supreme Court confined a tenant’s responsibility to the

area occupied under the lease

. Id

.6 Despite Appellants’ contention that the Lease is vague as to who is

responsible for snow and ice removal, such is not the case. A review of the Lease

clearly reveals that there are no such “contrary provisions” requiring the PLCB to

maintain the areas outside of the leased premises, and thus, “the o bligation of keeping

the common aisles safe for the business invitees is imposed upon” the Good

Defendants. 4 Id . at 34. Importantly, the Lease describes the leased premises as the

“[f]irst floor storeroom consisting of 6,032 square feet . . . .” S.R.R. at 2b. It also

explicitly states that it is Lessor’s responsibility to provide for both interior and

exterior maintenance to ensure that the premises remain in a tenantable condition.

See i d . Further, in deposition testimony, David Gratz, Good Realty’s principal,

admitted that Good Realty’s contractor, S.C. Bradley Landscaping and Tree Service,

LLC, was responsible for snow and ice removal. See R.R. at 369a.

Although Appellants assert that “[t]here was inconsistent deposition

testimony regarding the e xact location of [Mr.] Taft’s fall, and, therefore, the source

of the ice which caused the fall[,]” it is undisputed that the fall occurred outside of the

Store. Appellants’ Br. at 11. Based upon Leary and the Lease, we must conclude

that the PLCB did no t have a duty to keep the area outside of the leased premises safe

for its business invitees. Rather, that responsibility laid with the Good Defendants.

4 Appellants argue that because the L ease permits the PLCB to make repairs if L essor fails to maintain the premises in a tenantable condition, th e Lease imposes a duty upon the PLCB . We disagree. The lease , which defines the premises as “[f]irst floor storeroom consisting of 6,032 square feet in building situate 209 West Lancaster Avenue ,” merely authorizes the PLCB to make repairs to the premise s (at the Landlord’s expense) if, after providing notice to the landlord and giving the landlord time to cure, repairs are not made. S.R.R. at 2b. We do not interpret the provision to impose a duty on the PLCB, nor do we find that the provision converts areas outside of
the express leased property description in to Commonwealth agency real estate as described in the real estate exception to sovereign immunity.7 In response to Appellants ’ conten tion that questions remain regarding

actions taken by the PLCB’s em ployees to remedy the icy sidewalk, 5 such questions

are only material if the PLCB had a duty to maintain the leased premise’s exterior

areas. As discussed above, t he PLCB had no such duty. To the extent it may be

asserted that the PLCB assumed the duty t o maintain the sidewalk, that argument is

unavailing. Section 323 of the Restatement (Second) of Torts, which has been

adopted by the Pennsylvania Supreme Court, provides:

One who undertakes, gratuitously or for consideration, to render services to anothe r which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exe rcise such care increases the risk of such harm, or

(b) the harm is suffered because of the other’s reliance upon the undertaking.

Our Supreme Court has held that Section 323 of the Restatement

(Second) of Torts cannot “be invoked to create a duty where one does not exist.”

Morena v. S. Hills Health Sys. , 462 A.2d 680, 684 (Pa. 1983). Consistent with

Section 323 of the Restatement (Second) of Torts, our Superior Court has held that

one who voluntarily salts and sands an icy area where no duty exists do es not create a
duty absent evidence that the actor’s activities increased the hazards of ice or that an

injured party relied upon those remedial actions. See Morin v. Traveler’s Rest. Motel,

Inc. , 704 A.2d 1085 (Pa. Super. 1997). Appellants did not alle ge that actions the

PLCB’s employees undertook to remedy the icy sidewalk increased the risk of Mr.

5 In deposition testimony, PLCB employees admitted to periodically removing ice and snow
from the area around the entrance to the S tore, using items including calcium chloride, an
icebreaker and a shovel.8

Taft’s injury, or that Mr. Taft relied upon knowledge of the current or occasional

prior instances of remediation by PLCB employees. Thus, even to the exte nt a duty

could theoretically be imposed upon the PLCB under Section 323 of the Restatement

(Second) of Torts for the care of the area outside the Store , there are no allegations to

support such imposition. 6

Accordingly, the trial court properly found that there were no genuine

issues of material fact to be determined, that the PLCB did not have a duty to

maintain the exterior of the premises, and granted the PLCB’s summary judgment

motion.

6 Having concluded that the PLCB owed Appellants no duty, we need not decide whether Appellants ’ claims fall within an exception to sovereign immun ity

. Notwithstanding, e ven if we had found that the PLCB had a duty to remove the ice from the sidewalk area in front of the Store, Appellants ’ claims do not fall within the only arguably applicable e xception

– the real estate exception . This Court has e xplained:

It is a general principle that, because of the clear intent to insulate the government from liability, the exceptions to sovereign immunity must be strictly construed. In applying the real estate exception to immunity, our courts have held that i t is not enough to assert a dangerous condition; the dangerous condition must derive from, originate from or have as its source the Commonwealth realty.

Cowell v. Dep’t of Transp. , 883 A.2d 705, 709 (Pa. Cmwlth. 2005) (citation s omitted ; emphasis
added ) . “ [S]ubstances such as ice, snow, or debris on the real estate do not qualify ‘unless those substances are there because of a design or construction defect. ’” Nardella v. S e. Pa

. Transp. Auth. , 34 A.3d 300, 305 (Pa. Cmwlth. 2011) (emphasis added) (quoti ng Raker v. Dep ’ t of
Corr

. , 844 A.2d 659, 662 (Pa. Cmwlth. 2004)). Appellants contend that the ice on the sidewalk was , as described in Cowell

, “ there because
of a . . . construction defect”

- a faulty gutter which caused a water leak and permitted water to collect and freeze. Id . As previously discussed, supra , the area occupied under the Lease did not include the shopping center sidewalk, roof, gutter or any portion of the exterior of the premises. The Lease explicitly imposed responsibility for exte rior repairs on Lessor. Neither the shopping center roof gutter nor the sidewalk are “Commonwealth realty” as referenced in Cowell and thus the real estate exception to sovereign immunity does not apply.9 For all of the above reasons, the trial court’s order is a ffirmed.

___________________________ ANNE E. COVEY, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

David A

. Taft and Margaret Taft, h/w, : Appellants :

:

v. :

: Sandra Kuby, Good Realty Co., : Steven T. Klovsky and Bruce M. : Klovsky as Trustees of the Sidney : B. Klovsky Family Trust, Edwin R. : Gold en berg and Edward C. Goodstein : as Trustees of the Sidney J. : Goodstein Trust, Best Construction, : Inc., Commonwealth of Pennsylvania : Liquor Control Board and SC Bradley : No. 1947 C.D. 2013 Landscaping, Inc. :

O R D E R

AND NOW, this 1 8 th day of July , 201 4

, the Delaware County Common

Pleas Court’s June 3, 2013 order is affirmed.

___________________________ ANNE E. COVEY , Judge