Vasilik, M. v. Voipoch, LLC ( 2017 )

J-A31028-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MICHAEL VASILIK IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
VOIPOCH, LLC
Appellee No. 1890 EDA 2016
Appeal from the Order Entered June 7, 2016
In the Court of Common Pleas of Lehigh County
Civil Division at No(s): 2015-C-0904
BEFORE: BENDER, P.J.E., MOULTON, J., and FITZGERALD, J.*
MEMORANDUM BY MOULTON, J.: FILED MARCH 22, 2017
Michael Vasilik appeals from the June 7, 2016 order of the Lehigh
County Court of Common Pleas granting summary judgment in favor of
Voipoch, LLC (“Voipoch”) in this premises liability action. We affirm.
The trial court summarized the facts of this case as follows:
On January 1, 2012, Voipoch . . . and Infradapt, Inc.
(Infradapt) entered into a five-year lease agreement
wherein Infradapt would exclusively occupy the property
located at 1126 Trexlertown Road, Breiningsville, Lehigh
County, Pennsylvania (the property) as a tenant in
exchange for the payment of rent to Voipoch at a rate of
$5,000 per month. On March 23, 2015, Plaintiff, Michael
Vasilik . . . filed a Complaint against Voipoch and Upper
Macungie Township [(“Township”)][1] seeking damages as
a result of an alleged slip and fall that occurred on June 4,
2013, in a stairwell without a handrail between the second
and third floors of the property. The Complaint sounds in
premises liability and alleges that [Vasilik] suffered injuries
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*
Former Justice specially assigned to the Superior Court.
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as a result of the carelessness and negligence of Voipoch.
The Complaint alleges that [Vasilik] was at the property in
order to perform his ordinary and customary work for
Voipoch’s tenant, Infradapt.
1
[The] Township was dismissed from the case by court
order dated May 19, 2015.
Trial Ct. Op., 6/7/16, at 1-2.
On December 31, 2015, Voipoch filed a motion for summary
judgment, asserting that as an out-of-possession landlord, it owed no duty
to Vasilik. The trial court heard argument on the motion on March 11, 2016.
On June 7, 2016, the trial court granted summary judgment in Voipoch’s
favor. Vasilik timely appealed to this Court.1
Vasilik presents the following question for our review:
DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN
GRANTING SUMMARY JUDGMENT AGAINST [VASILIK] BY
HOLDING THAT DEFENDANT VOIPOCH LLC WAS A
LANDLORD OUT OF POSSESSION AND NOT RESPONSIBLE
FOR THE CONDITION OF THE PREMISES WHERE [VASILIK]
FELL ON A STAIRWELL WITH NO HANDRAIL WHEN
VOIPOCH LLC’S LEASE WITH [ITS] TENANT ALLOWED
VOIPOCH LLC TO ENTER THE PREMISES AND MAKE
REASONABLE IMPROVEMENTS AND REPAIRS TO THE REAL
ESTATE AND WHEN THE DEFENDANT LANDLORD FAILED
TO ABIDE BY LOCAL BUILDING CODES PRIOR TO RENTING
PREMISES TO TENANT?
Vasilik’s Br. at 4.
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1
The trial court did not order Vasilik to file a Pennsylvania Rule of
Appellate Procedure Rule 1925(b) statement, and the trial court did not file a
Rule 1925(a) opinion. Instead, the trial court issued an opinion
contemporaneous with its June 7, 2016 order granting summary judgment,
which addresses Vasilik’s issue on appeal.
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Our standard of review of an order granting summary judgment is as
follows:
[O]ur scope of review is plenary, and our standard of
review is the same as that applied by the trial court. . . .
[We] may reverse the entry of a summary judgment only
[if we] find[] that the lower court erred in concluding that
the matter presented no genuine issue as to any material
fact and that it is clear that the moving party was entitled
to a judgment as a matter of law. In making this
assessment, we 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. As our inquiry involves
solely questions of law, our review is de novo.
Mull v. Ickes, 994 A.2d 1137, 1139-40 (Pa.Super. 2010); see Pa.R.C.P.
1035.2.
In a premises liability action, the plaintiff must establish: (1) a duty
recognized by law; (2) a breach of that duty; (3) a causal connection
between the breach and the resulting injury; and (4) actual loss or damage
to the plaintiff. Jones v. Levin, 940 A.2d 451, 454 (Pa.Super. 2007).
Generally, an out-of-possession landlord owes no duty to third parties who
are injured on the leased premises. Id. This rule, however, is subject to six
exceptions:
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
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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 . . . .
Dorsey v. Cont’l Assocs., 591 A.2d 716, 718-19 (Pa.Super. 1991) (quoting
Henze v. Texaco, Inc., 508 A.2d 1200, 1202 (Pa.Super. 1986)) (citations
omitted).
Vasilik first asserts that Voipoch was liable under the “reserved
control” exception. The “reserved control” exception applies to premises
liability actions “involving ‘common areas’ such as shared steps or hallways
in buildings leased to multiple tenants.” Jones, 940 A.2d at 454. Under
this exception, an out-of-possession landlord may be liable to an injured
third party if the landlord “has reserved control over a defective portion of
the leased premises or over a portion of the leased premises which is
necessary to the safe use of the property.” Id. Vasilik contends that the
lack of a handrail on the staircase between the second and third floors was a
defective condition of the property and that because Voipoch had reserved
control over that portion of the building, it was liable for failing to install a
handrail. We disagree.
In Kobylinski v. Hipps, 519 A.2d 488, 491 (Pa.Super. 1986), this
Court held that an out-of-possession landlord was not liable for the death of
a tenant’s guest who fell from an unlit exterior staircase with no handrail.
We stated that an out-of-possession landlord is not liable to a third party
injured “by any dangerous condition, whether natural or artificial, which
existed at the time the [tenant] took possession and which the [tenant]
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knew or should have known to exist.” Id. In that case, 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. (emphasis added).
Here, as in Kobylinski, the unguarded condition of staircase between the
second and third floors existed at the time the lease was executed and
Infradapt, the tenant in possession, never questioned Voipoch about the
staircase’s safety.
Moreover, contrary to Vasilik’s assertion, the record reflects that
Voipoch did not reserve control over any portion of the leased building.
Vasilik contends that because Voipoch’s zoning application included floor
plans for only the first and second floors, the reasonable inference is that the
Township did not approve the use or occupancy of the third floor. See
Vasilik’s Ans. to Summ. Judg. Mot., Ex. C. Thus, Vasilik claims that Voipoch
impliedly reserved control over the staircase between the second and third
floors. This claim is belied by the record.
The certificate of occupancy certifies Infradapt’s occupancy of “1126
Trexlertown Road”; it does not limit Infradapt’s occupancy to the first and
second floors. See Voipoch’s Summ. Judg. Mot., Ex. F. The certificate of
occupancy also states: “This is to certify that the building structure has
been inspected and found in compliance with Zoning, Plumbing, Electrical
and Building Codes of [the] Township, and the above stated occupancy and
use thereof is hereby authorized.” Id. (emphasis added). Therefore, the
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record shows that Voipoch leased the entire building to Infradapt and did not
reserve control over the third floor or any portion of the stairwell at issue.
As the trial court correctly found:
No evidence has been presented to support [Voipoch’s]
control over the third floor of the building it rented to
Infradapt. The lease at issue is [for] the building located
at 1126 Trexlertown Rd, Breiningsville, Lehigh County,
Pennsylvania. The entire building was rented to Infradapt;
Voipoch did not reserve any portion of the building for its
own use. Further, there is no evidence to suggest that
Voipoch reserved any actual control over any portion of the
building.
Trial Ct. Op., 6/7/16, at 5-6 (emphasis in original) (internal citation
omitted). We find no error.
Next, Vasilik asserts that Voipoch was liable under the “negligent
repair” exception, which provides that an out-of-possession landlord may be
liable to an injured third party if the landlord negligently repairs a portion of
the leased premises. See Henze, 508 A.2d at 1203. Vasilik claims that
under the terms of the lease, Voipoch was “empowered” to make necessary
repairs to the unguarded staircase once it knew that Infradapt had failed to
make such repairs. Vasilik’s Br. at 19. Vasilik relies on the following lease
provisions:
6.1 Operation of Leased Premises. The Tenant shall
assume full responsibility for the operation and
maintenance of the Leased Premises for the repair or
replacement of all fixtures or chattels located therein or
thereon. The Landlord shall have no responsibility
whatsoever, with respect to maintenance, repairs or
replacement, except as provided in section 6.2 herein,
provided that if Tenant fails to do so, the Landlord may at
its sole option upon 14 days prior written notice . . . elect
to perform such maintenance, repairs or replacement as
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the Landlord may reasonably deem necessary or
desirable. . . .
6.2 Access by Landlord. The Tenant shall permit the
Landlord to enter the Leased Premises at any time . . . to
examine, inspect and show the Leased Premises for
purposes of leasing, sale or financing, to provide services
or make repairs, replacements, changes or alterations as
provided for in this Lease and to take such steps as the
Landlord may deem necessary for the safety, improvement
or preservation of the Leased Premises. . . .
Vasilik’s Ans. to Summ. Judg. Mot., Ex. D, ¶¶ 6.1, 6.2. Vasilik claims that
because Voipoch made other safety improvements to the property, including
the installation of a handrail on the staircase between the first and second
floors, it was likewise required to install a handrail between the second and
third floors. We disagree.
A landlord’s “[r]eservation . . . of the right to enter upon the leased
premises . . . to make repairs and alterations, if he should elect to do so,
implies no reservation of control over the premises which will render him
chargeable with their maintenance and repair.” Henze, 508 A.2d at 1202
(quoting 49 Am. Jur. 2d Landlord and Tenant § 775 (1970)). Further, “the
fact that the landlord makes repairs does not impose [on him either a duty]
to keep the demised premises in repair, or liability for damages for injuries
caused by a failure to keep the premises in repair.” Id. at 1202-03
(alteration in original).
With regard to the negligent-repair exception, the trial court
concluded:
[Vasilik’s] argument that Voipoch undertook to make the
repair but did so negligently is simply not true. [Vasilik]
attempts to argue that [Voipoch’s] installation of a
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handicapped ramp, paving of the parking lot, installation of
landscaping, and installation of a handrail between the first
and second floors established a general undertaking of
repair of the property and the failure to install a handrail
between the second and third floors equates to the
negligent repair of the handrail. There is no evidence that
[Voipoch] attempted to install a handrail between the
second and third floors. Because [Voipoch] never
undertook the task of installing the handrail between the
second and third floors, it cannot be asserted that the
installation was done negligently.
Trial Ct. Op., 6/7/16, at 7. We find no error.2 Cf. Henze, 508 A.2d at 1203
(holding that negligent-repair exception did not apply “because Texaco had
never been called upon to make repairs to the [doorway] threshold” where
third-party plaintiff was injured).3 Accordingly, we conclude that the trial
court properly granted summary judgment in Voipoch’s favor.
Order affirmed.
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2
In any event, Voipoch’s installation of a handrail between the first
and second floors pre-dated its lease with Infradapt.
3
But see Kelly by Kelly v. Ickes, 629 A.2d 1002, 1006-07
(Pa.Super. 1993) (concluding that genuine issue of fact existed regarding
whether landlord negligently undertook repair of unguarded staircase, where
tenant had informed landlord several times that lack of handrail was hazard
to her young children and landlord had promised to install handrail but never
did).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/2017
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