J-A14036-17


                             2017 PA Super 277

SPIRO KOTE,                                   IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellant

                   v.

THE BANK OF NEW YORK MELLON FKA
THE BANK OF NEW YORK, AS TRUSTEE
FOR THE CERTIFICATEHOLDERS CWABS,
INC., ASSETBACKED CERTIFICATE
SERIES 2006-20 AND CARRINGTON
REAL ESTATE SERVICES, LLC AND
SAFEGUARD PROPERTIES, LLC,

                        Appellees                  No. 2404 EDA 2016


             Appeal from the Judgment Entered July 14, 2016
           In the Court of Common Pleas of Philadelphia County
          Civil Division at No(s): December Term, 2014 003476

BEFORE: BENDER, P.J.E., BOWES and SHOGAN, JJ.

OPINION BY SHOGAN, J.:                           FILED AUGUST 25, 2017

     Appellant, Spiro Kote (“Kote”), appeals from the judgment entered on

July 14, 2016. The July 14, 2016 judgment made final the March 15, 2016

orders that sustained preliminary objections filed by Carrington Real Estate

Services, LLC (“Carrington”) and Safeguard Properties, LLC (“Safeguard”),

and granted the motion for judgment on the pleadings filed by The Bank of

New York Mellon, formerly known as The Bank of New York, as Trustee for
J-A14036-17


the Certificateholders CWABS, Inc., Assetbacked Certificate Series 2006-20

(“BNY Mellon”).1 After careful review, we affirm.

       The trial court summarized the background of this matter as follows:

             On January 28, 2014, between 7:00pm and 8:00pm,
       [Kote] made a Chinese food delivery to a foreclosed and vacant
       property located at 6298 Kindred Street in the Oxford Circle
       section of Philadelphia, PA (herein, the “Property”). [Kote] made
       the delivery as a result of a phone order. [Kote] knocked on the
       front door and, after being admitted, was shot in the chest
       multiple times by an unknown assailant or assailants who were
       inside the Property. [Kote] suffered serious bodily injury as a
       result of the shooting. Complaint at ¶ 11-13.

              [Appellee] BNY Mellon owned, operated, possessed,
       maintained and controlled the foreclosed and vacant property.
       BNY Mellon entered into an agreement with [Appellee]
       Carrington to act as … BNY Mellon’s agent in the sale of the
       Property. Carrington also maintained and controlled the Property
       in its capacity as an agent of BNY Mellon. [Appellee] Safeguard
       was hired to secure and inspect the Property. Id. at ¶ 5-10.

Trial Court Opinion, 12/22/16, at 1-2.

       Kote filed his initial complaint against Appellees on December 23,

2014, and following numerous responsive pleadings, Kote filed a first

amended complaint on December 28, 2015.               In the amended complaint,

Kote alleged that Appellees knew or should have known that criminal acts

have occurred in the area of the property at 6298 Kindred Street in

Philadelphia (“the Property”) where Kote was attacked.            First Amended

Complaint, 12/28/15, at ¶¶ 17-24.              Kote further asserted that he was
____________________________________________


1
  Collectively, Carrington, Safeguard, and BNY Mellon are referred to as
“Appellees.”



                                           -2-
J-A14036-17


injured due to Appellees’ negligence, failure to comply with the City of

Philadelphia Property Maintenance Code, and violations of the Restatement

(Second) of Torts. Id. BNY Mellon filed its answer and affirmative defenses

on January 19, 2016, admitting that it was the owner of the Property.

Answer and Affirmative Defenses to Plaintiff’s Amended Complaint on Behalf

of BNY Mellon, 1/19/16, at ¶ 5.       BNY Mellon further admitted that it entered

into an agreement with Carrington to act as its agent in the sale of the

Property.    Id. at ¶ 6.     BNY Mellon also admitted that Safeguard was

responsible for securing and inspecting the Property. Id. at ¶ 9.

     Safeguard and Carrington filed preliminary objections on January 22,

2016, and January 25, 2016, respectively. BNY Mellon filed its motion for

judgment on the pleadings on June 2, 2016. As noted above, the trial court

sustained the preliminary objections, and dismissed all claims against

Carrington and Safeguard. Additionally, the trial court granted BNY Mellon’s

motion for judgment on the pleadings. This timely appeal followed. Both

Kote and the trial court complied with Pa.R.A.P. 1925.

     On     appeal,   Kote   raises    the   following   issues   for   this   Court’s

consideration:

     1) Was Appellant Kote a business visitor under Section 332 of
     the Restatement (Second) of Torts?

     2) Did BNY Mellon violate its duty to business visitors under
     Section 344 of the Restatement (Second) of Torts to discover
     intentionally harmful acts of third persons or to warn or protect
     against them?


                                        -3-
J-A14036-17


      3) Did BNY Mellon violate its duty under Section 324A of the
      Restatement (Second) of Torts by failing to exercise reasonable
      care concerning its undertaking to render services?

      4) Did BNY Mellon violate its duty under Section 365 of the
      Restatement (Second) of Torts by failing to exercise reasonable
      care to disclose disrepair and its unreasonable risk and to make
      it reasonably safe?

      5) Was the criminal act of third parties a superseding cause of
      the injuries to Appellant Kote according to Section 448 of the
      Restatement (Second) of Torts?

      6) Is Appellant Kote protected by the Philadelphia Property
      Maintenance Code, thereby justifying application of negligence
      per se?

      7) Are Carrington and Safeguard, agents of BNY Mellon, bound
      by the same duties as BNY Mellon, and did they violate the same
      duties as BNY Mellon?

Kote’s Brief at 5-6 (italicization omitted).

      The standard we apply when reviewing the grant of a motion for

judgment on the pleadings and preliminary objections in the nature of a

demurrer is as follows:

            Entry of judgment on the pleadings is permitted
            under Pennsylvania Rule of Civil Procedure 1034,
            which provides that “after the pleadings are closed,
            but within such time as not to unreasonably delay
            trial, any party may move for judgment on the
            pleadings.” Pa.R.C.P. 1034(a). A motion for
            judgment on the pleadings is similar to a demurrer.
            It may be entered when there are no disputed issues
            of fact and the moving party is entitled to judgment
            as a matter of law.

            Appellate review of an order granting a motion for
            judgment on the pleadings is plenary. The appellate
            court will apply the same standard employed by the
            trial court. A trial court must confine its consideration

                                       -4-
J-A14036-17


          to the pleadings and relevant documents. The court
          must accept as true all well pleaded statements of
          fact, admissions, and any documents properly
          attached to the pleadings presented by the party
          against whom the motion is filed, considering only
          those facts which were specifically admitted.

          We will affirm the grant of such a motion only when
          the moving party’s right to succeed is certain and the
          case is so free from doubt that the trial would clearly
          be a fruitless exercise.

     Coleman v. Duane Morris, LLP, 58 A.3d 833, 836 (Pa. Super.
     2012) (citations omitted). Our review of an order sustaining
     preliminary objections in the nature of a demurrer involves
     similar principles.

          Our standard of review of an order of the trial court
          overruling or [sustaining] preliminary objections is to
          determine whether the trial court committed an error
          of law. When considering the appropriateness of a
          ruling on preliminary objections, the appellate court
          must apply the same standard as the trial court.

          Preliminary objections in the nature of a demurrer
          test the legal sufficiency of the complaint. When
          considering preliminary objections, all material facts
          set forth in the challenged pleadings are admitted as
          true, as well as all inferences reasonably deducible
          therefrom. Preliminary objections which seek the
          dismissal of a cause of action should be sustained
          only in cases in which it is clear and free from doubt
          that the pleader will be unable to prove facts legally
          sufficient to establish the right to relief. If any doubt
          exists as to whether a demurrer should be sustained,
          it should be resolved in favor of overruling the
          preliminary objections.

     Richmond v. McHale, 35 A.3d 779, 783 (Pa. Super. 2012),
     quoting Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super.
     2011).




                                    -5-
J-A14036-17


Southwestern Energy Production Co. v. Forest Resources, LLC, 83

A.3d 177, 185 (Pa. Super. 2013).

      In his first issue, Kote argues that the trial court erred in failing to

deem Kote a business visitor under of the Restatement (Second) of Torts §

332. Kote’s Brief at 12. We disagree.

      The relevant part of the Restatement defines a business visitor as

follows:

      (3) A business visitor is a person who is invited to enter or
      remain on land for a purpose directly or indirectly connected with
      business dealings with the possessor of the land.

Restatement (Second) of Torts § 332(3). The trial court concluded:

             [Kote] argues that he was a business invitee of [Appellee]
      BNY Mellon because an unknown criminal called [Kote] to deliver
      Chinese food to the Property. In support of his claim, [Kote]
      relies on Comment c to Section 332 of the Restatement, which
      focuses on “the desire or willingness to receive the person which
      a reasonable man would understand as expressed by the words
      or other conduct of the possessor.” [Kote] fails to allege,
      however, that BNY Mellon—either through its employees or
      agents—placed the telephone order that directed him to the
      Property. [Kote] also fails to allege that BNY Mellon’s employees
      or agents were present at the Property to invite him to enter
      therein. Other than the allegation that he went to the Property
      “as the result of a telephone order,” [Kote] does not allege any
      facts that would indicate he was a business invitee of
      [Appellees]. Complaint ¶11. This allegation is insufficient as a
      matter of law because [Kote] also concedes that the person who
      made the phone call to [Kote] was the unknown criminal, not
      BNY Mellon. As a result, [Kote’s] claim under Section 332 fails.

Trial Court Opinion, 12/22/16, at 34-35.

      We agree with the trial court. Kote concedes that he was lured to the

property by an unknown individual, and he cannot claim that he was invited

                                    -6-
J-A14036-17


for a purpose directly or indirectly connected with the business dealings of

any Appellee.

      Next, Kote avers that BNY Mellon violated its duty to business visitors

under Section 344 of the Restatement.       Kote’s Brief at 19.     Because we

concluded that Kote was not a business visitor, this claim fails.

      In his third issue, Kote asserts that BNY Mellon violated its duty under

Section 324A of the Restatement by failing to exercise reasonable care

concerning its undertaking to render services to protect third persons.

Kote’s Brief at 25. Section 324A provides as follows:

      One who undertakes, gratuitously or for consideration, to render
      services to another which he should recognize as necessary for
      the protection of a third person or his things, is subject to
      liability to the third person for physical harm resulting from his
      failure to exercise reasonable care to protect his undertaking, if

            (a) his failure to exercise reasonable care increases
            the risk of such harm, or

            (b) he has undertaken to perform a duty owed by
            the other to the third person, or

            (c) the harm is suffered because of reliance of the
            other or the third person upon the undertaking.

Restatement (Second) of Torts § 324A.

      The trial court discussed the application of Section 324A as follows:

            [Kote] argues that Carrington was negligent under Section
      324A of Restatement (Second) of Torts, which provides that one
      who undertakes, either gratuitously or for consideration, to
      render services to another which he should recognize as
      necessary for the protection of a third person or his things, is
      subject to liability to the third person for physical harm resulting


                                     -7-
J-A14036-17


       from his failure to exercise reasonable care to protect his
       undertaking.

             First, Section 324A does not apply because [Kote] is not
       within the class of persons that the security services were
       designed to protect nor was the harm that he suffered the type
       of risk Carrington’s alleged agreement to secure the vacant
       Property was intended to avert. “Securing vacant dwellings is
       intended to protect members of the public who might otherwise
       be tempted to trespass therein and to protect neighboring
       property owners from risks such as fire and unsanitary
       conditions which might be created by trespassers.” Glick v.
       Olde Town Lancaster, Inc., 535 A.2d 621 (Pa. Super. Ct.
       1987).[2] Here, as in Glick v. Old Town Lancaster, Inc., [Kote]
       was injured at the vacant Property as a result of the intentional
       and deliberate criminal acts of a third party. “The unsecured
       dwelling was a fortuitous factor in the crimes committed against”
       [Kote]. In other words, what was necessary and important to the
       criminal actor was that it was an abandoned building, not
____________________________________________


2
 In Glick, the victim-appellant was forced into a vacant building and raped.
Glick, 535 A.2d at 623. The appellant subsequently filed suit against the
building’s owner for, inter alia, its failure to secure the building. Id. at 624.
This Court held:

       [S]ection 324A is inapplicable to this case because [the]
       appellants were not within the class of persons the provision was
       designed to protect. In order for section 324A to apply, it must
       be established that the service of resecuring the dwellings was
       necessary for the protection of persons such as appellants.

             We do not view the harm suffered by [the] appellant Glick
       as being the type of risk which [the building owner’s] promise to
       resecure the dwellings was intended to avert. Securing vacant
       dwellings is intended to protect members of the public who
       might otherwise be tempted to trespass therein and to protect
       neighboring property owners from risks such as fire and
       unsanitary conditions which might be created by trespassers.

Glick, 535 A.2d at 624 (citation omitted).




                                           -8-
J-A14036-17


     whether it was properly secured, Thus, even assuming that
     Carrington undertook a duty to secure the Property as part of its
     agreement with BNY Mellon, any alleged failure to secure the
     vacant property “is far too attenuated to support a cause of
     action under Restatement § 324A.” Id.

            Second, the alleged failure by Carrington to not secure the
     Property did not increase the risk of harm to [Kote]. See
     Restatement (Second) of Torts, § 324(A)(a). The fact that the
     Property was unsecured was a “fortuitous” and incidental factor
     that is too far attenuated to increase the risk of harm. What was
     important and necessary for the crime to have occurred is that
     the building was vacant, not unsecured.

           Third, there are no facts that would establish that, by
     acting as BNY Mellon’s agent in sale of the Property, Carrington
     undertook a duty to provide protection to third parties such as
     [Kote] from criminal conduct on the Property. See Restatement
     (Second) of Torts, § 324(A)(b). In other words, as BNY Mellon’s
     agent, Carrington undertook the responsibility to sell the
     Property to a prospective buyer. As such, Carrington’s duties
     under its real estate agreement with BNY Mellon are limited to
     BNY Mellon and prospective buyers, not to food delivery persons
     such as [Kote] who had no interest in purchasing the property.
     See Farabaugh v. Pa. Turnpike Comm’n., 911 A.2d 1264 (Pa.
     2006) (“A contracting party’s duty to third parties ... are
     measured by the nature and scope of its contractual
     undertaking.”).

           Fourth, [Kote] has not alleged that he relied on
     Carrington’s undertaking to secure the vacant dwelling, nor does
     [Kote] allege that he was aware of Carrington’s agreement such
     that he could have relied upon it in the first place. See
     Restatement (Second) of Torts, § 324[A] (c) (requiring that “the
     harm is suffered because of reliance of the other or the third
     person upon the undertaking”).

           For these several reasons, [Kote] cannot establish a claim
     against Carrington under Section 324A.

                                   ***

          [Kote] also alleges that BNY Mellon owed him a duty of
     care because it hired [Appellee] Safeguard to secure the

                                   -9-
J-A14036-17


     Property and that “a program of security was undertaken” by
     Safeguard. [Kote] further alleges that [Appellee] Safeguard was
     negligent in that it failed to “lock and secure doors, windows and
     entrances or openings ... in the vacant property.” Complaint at ¶
     17f.

            As explained supra … [Kote] cannot state a claim based
     upon Section 324A because there is no evidence that BNY Mellon
     undertook to protect its property on behalf of anyone other than
     itself as property owner. In other words, there is no allegation
     that BNY Mellon provided any security for the benefit for a third
     party such as [Kote]. Thus, [Kote] is not within the class of
     persons that the security services were designed to protect nor
     was the harm that he suffered the type of risk that the securing
     of the Property was intended to avert.

Trial Court Opinion, 12/22/16, at 26-27, 35 (footnote omitted). We agree

with the trial court that the harm suffered by Kote was not the type of harm

Section 324A is intended to prevent. Kote alleged that Safeguard was hired

to secure and inspect the Property, not to provide personal security for the

benefit of any class of persons. First Amended Complaint, 12/28/15, at ¶ 9.

Indeed, Kote’s specific factual averments all relate to the condition of the

property. See id., at ¶ 17(a)-(k). Kote was not injured as a result of the

condition inside the vacant building; he was intentionally shot by an

unknown third party.   Just as in Glick, the relationship between Kote and

Appellees is too attenuated to support a cause of action under Section 324A.

Glick, 535 A.2d at 624-625.

     In his fourth issue, Kote claims that BNY Mellon violated its duty under

Section 365 of the Restatement (Second) of Torts to make the Property

reasonably safe. Kote’s Brief at 34. Section 365 provides:


                                   - 10 -
J-A14036-17


      A possessor of land is subject to liability to others outside of the
      land for physical harm caused by the disrepair of a structure or
      other artificial condition thereon, if the exercise of reasonable
      care by the possessor or by any person to whom he entrusts the
      maintenance and repair thereof

            (a) would have disclosed the disrepair and the
            unreasonable risk involved therein, and

            (b) would have made it reasonably safe by repair or
            otherwise.

Restatement (Second) of Torts § 365.

      In his first amended complaint, Kote did not allege that any disrepair

of the Property or artificial condition of the Property caused him harm.

Moreover, as the trial court found, the allegedly unsecured doors and

windows did not cause Kote’s injuries. Trial Court Opinion, 12/22/16, at 35.

These conditions, at most, merely facilitated the injuries. Id. “Additionally,

it was not reasonably foreseeable that the Property would be used by

unknown assailants to attack and shoot Kote.” Id. at 34-35. As such, Kote

has failed to state a cause of action against Appellees under Section 365.

      In his fifth claim, Kote alleges that the trial court erred in concluding

that the criminal acts of third parties were the superseding cause of Kote’s

injuries under Section 448 of the Restatement (Second) of Torts.         Kote’s

Brief at 39. Section 448 provides as follows:

      The act of a third person in committing an intentional tort or
      crime is a superseding cause of harm to another resulting
      therefrom, although the actor’s negligent conduct created a
      situation which afforded an opportunity to the third person to
      commit such a tort or crime, unless the actor at the time of his
      negligent conduct realized or should have realized the likelihood

                                     - 11 -
J-A14036-17


     that such a situation might be created, and that a third person
     might avail himself of the opportunity to commit such a tort or
     crime.

Restatement (Second) of Torts § 448.

     The trial court opined that:

            [Kote] cannot establish that any negligence by Carrington
     was the proximate cause of his harm because the criminal acts
     of an unknown person were a superseding cause of [Kote’s]
     injuries. See generally, Restatement (Second) of Torts, § 448.5
           5
              The question of whether the conduct of a third
           person in committing a crime is a superseding cause
           of harm to another even though the actor’s
           negligence created a situation which afforded the
           criminal party an opportunity to commit such crime,
           is not reached unless a duty has first been
           established. “A duty must attach before ... section
           448” can apply. Roche v. Ugly Duckling Car
           Sales, Inc., 879 a.2d 785, 796 (Pa. Super. Ct.
           2005).

            Proximate cause does not exist where a defendant’s
     negligence was so remote that the defendant cannot be held
     legally responsible as a matter of law for the harm that resulted
     to the plaintiff. Brown v. Philadelphia College of
     Osteopathic Medicine, 760 A.2d 863, 869 (Pa. Super. Ct.
     2000). The question of whether a defendant’s negligence was
     the proximate cause of a plaintiff’s harm requires a
     determination by the court whether, as a matter of law, “the
     injury would have been foreseen by an ordinary person as the
     natural and probable outcome of the act complained of.” Reilly
     v. Tiergarten Inc., 633 A.2d 208, 210 (Pa. Super. Ct. 1993). If
     the court determines from the facts as alleged that it is “highly
     extraordinary that the defendant’s conduct should have brought
     about the plaintiff’s harm” then the court should refuse to find
     that the defendant’s conduct was the proximate cause of the
     plaintiff’s harm. Brown, supra at 868.

          Here, even assuming arguendo that Carrington had a duty
     to secure the Property, [Kote’s] claims still fail because he
     cannot prove that [Appellees] should have foreseen that

                                    - 12 -
J-A14036-17


     unknown assailants would unlawfully enter the Property,
     conspire to lure an unsuspecting food delivery driver to the
     Property, and then ambush and shoot him as he delivered the
     food order. See Glick v. Olde Town Lancaster, Inc., supra at
     624 (defendant who made its promise to resecure its buildings
     had absolutely no reason to foresee that the service was
     necessary for the protection of victims such as plaintiff). At best,
     the Complaint alleges that violent crimes toward the general
     public occur throughout Philadelphia as well as the neighborhood
     where the Property is located. [Kote] does not allege any specific
     facts that Carrington knew, or should have known, that the
     Property had or would be used criminally by armed assailants
     lying in wait to attack and shoot food delivery persons such as
     [Kote]. As such, the harm suffered by [Kote] was not
     foreseeable, but was rather highly extraordinary.

           Stated differently, generic allegations that violent crime
     occurs throughout Philadelphia and even in a particular
     neighborhood are not sufficient to establish that any negligence
     by Carrington was the proximate cause of [Kote’s] injuries. To
     the contrary, the unknown third party’s criminal acts were a
     superseding cause unrelated to whether the Property was
     properly secured or not. “Since the possessor is not an insurer of
     the visitor’s safety, he is ordinarily under no duty to exercise any
     care until he knows or has reason to know that the acts of
     the third person are occurring, or are about to occur.”
     Restatement (Second) of Torts, §344, Comment f (emphasis
     added).

           In sum, the vacant Property “was a wholly fortuitous factor
     in the crimes committed against” [Kote], which crimes “would
     have been accomplished” whether or not [Appellees’] “property
     remained unsecured.” Glick v. Olde Town Lancaster, Inc.,
     535 A.2d at 624. The assailants could have ambushed [Kote] as
     [Kote] exited his vehicle or shot him on the sidewalk. As the
     Supreme Court aptly noted, “the criminal can be expected
     anywhere, any time, and has been a risk of life for a long time.
     He can be expected in the village, the monastery and the castle
     keep.” Feld [v. Merriam,] 485 A.2d [742,] 746 [(Pa. 1984)].
     Here, there is no connection between the existence of the
     allegedly unsecure vacant Property and the crime of shooting a
     person with a firearm such that the harm that occurred would
     naturally flow from any negligence by Carrington. Instead,


                                    - 13 -
J-A14036-17


      [Kote’s] injuries resulted from the superseding, intervening and
      highly extraordinary ambush of [Kote] by criminal [actors].

                                       ***

      [Kote’s] claim against BNY Mellon fails for the same reasons that
      [Kote’s] claim against Carrington fails ….       In other words,
      pursuant to Section 448 of the Restatement (Second) of Torts,
      any negligence by BNY Mellon was not the proximate cause of
      [Kote’s] injuries. Rather, the criminal acts of a third party
      superseded any negligence by BNY Mellon.

Trial Court Opinion, 12/22/16, at 28-30, 36 (some citations omitted).      We

discern no error of law or abuse of discretion in the trial court’s analysis or

conclusion.     The unknown shooter was a superseding cause of Kote’s

injuries, and if there was any negligence on the part of Appellees, it was not

the proximate cause of the injuries Kote suffered.

      In his next issue, Kote asserts that he was protected by the

Philadelphia Property Maintenance Code, and therefore, negligence per se

was applicable. Kote’s Brief at 47. We disagree.

The Philadelphia Property Maintenance Code was:

      promulgated to protect the public health, safety and welfare in
      existing structures and on existing premises by establishing
      minimum requirements for:

              1. Safe and sanitary maintenance of structures,
                 premises and equipment;

              2. Equipment and facilities for space, light,
                 ventilation, heating, sanitation and protection
                 from the elements;

              3. Safety to life, safety from fire and other hazards.




                                      - 14 -
J-A14036-17


      The code establishes responsibilities of owners, operators,
      agents and occupants and provides for licensing of certain
      properties.

Philadelphia   Property   Maintenance   Code   101.2.     The   intent   of   the

Philadelphia Property Maintenance Code:

      is to insure public health, safety and welfare to the extent they
      are affected by the continued occupancy and maintenance of
      existing structures and premises. Existing structures and
      premises which are not in compliance with this code shall be
      altered or repaired to provide the minimum health, safety and
      welfare as required herein.

Philadelphia Property Maintenance Code 101.3.

      Moreover, the concept of negligence per se is defined as follows:

      Negligence per se is defined as “conduct, whether of action or
      omission, which may be declared and treated as negligence
      without any argument or proof as to the particular surrounding
      circumstances.” Wagner v. Anzon, Inc., 453 Pa.Super. 619,
      684 A.2d 570, 574 (1996) (quoting Black’s Law Dictionary, p.
      933 (5th ed. 1979)). We start with the premise that, since
      ordinances and statutes regulate conduct, they also may impose
      legal obligations on individuals. McCloud v. McLaughlin, 837
      A.2d 541, 545 (Pa.Super.2003). As this Court stated in
      McCloud, “[n]egligence per se is the law’s acknowledgement
      that through an individual’s violation of a statute or ordinance, it
      is possible to show that the individual breached his duty to
      behave as a reasonable person, i.e., that the individual was
      negligent.” Id.

Walters v. UPMC Presbyterian Shadyside, 144 A.3d 104, 121 (Pa.

Super. 2016).

      [T]o proceed on a negligence per se theory, a plaintiff must
      prove the purpose of the statute, at least in part, was to protect
      the interest of a specific group of individuals, as opposed to the
      general public, and that the statute or regulation clearly applied
      to the defendant’s conduct. In order to recover, the plaintiff
      must also prove that the defendant violated the statute or

                                     - 15 -
J-A14036-17


      regulation and that the violation was the proximate cause of
      injury.

Id. at 122 (emphasis added).

      Because it is dispositive of the issue, we reiterate that in the case at

bar, there was a superseding act by a third party.      Therefore, even if we

were to conclude that the purpose of the Philadelphia Property Maintenance

Code is to protect individuals on or near vacant properties from criminal acts

committed by persons who were allowed to enter those properties due to its

deteriorated condition, we would still find that Kote’s claim fails.     As we

concluded above, the unknown shooter was a superseding cause, and Kote

has not established that any conduct or negligence on the part of Appellees

was the proximate cause of his injuries.     Thus, this claim fails.   Walters,

144 A.3d at 122.

      Finally, Kote alleges that Carrington and Safeguard are agents of BNY

Mellon, they are bound by the same duties as BNY Mellon, and they violated

those duties. Kote’s Brief at 53. We conclude that no relief is due.

      As discussed previously, Kote has failed to establish that any duties

were owed to him by BNY Mellon, Carrington, or Safeguard, and that any

action or inaction on their part was the proximate cause of his injuries. As

such, recovery is not possible.

      For the reasons set forth above, we discern no error of law or abuse of

discretion in the trial court granting Carrington’s and Safeguard’s preliminary




                                    - 16 -
J-A14036-17


objections   or   BNY   Mellon’s   motion   for   judgment   on   the   pleadings.

Accordingly, we affirm the judgment entered in this matter on July 14, 2016.

     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2017




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