J-S33022-16


                             2016 PA Super 119

DAVID ECHEVERRIA, INDIVIDUALLY AND           IN THE SUPERIOR COURT OF
AS CHILD AND ADMINISTRATOR OF THE                  PENNSYLVANIA
ESTATE OF DONNA DAY, DECEASED

                        Appellant

                   v.

THOMAS HOLLEY, RENEE HOLLEY, AND
TOBY HOLLEY

                   v.

WILLIAM MEARKLE AND KIMBERLY
MEARKLE
                                                 No. 1342 WDA 2015


              Appeal from the Judgment Entered July 15, 2015
              In the Court of Common Pleas of Bedford County
                      Civil Division at No(s): 272-2012


ROBIN R. VINEYARD, INDIVIDUALLY              IN THE SUPERIOR COURT OF
AND AS SPOUSE AND ADMINISTRATOR                    PENNSYLVANIA
OF THE ESTATE OF TARA D. VINEYARD,
DECEASED

                        Appellant

                   v.

THOMAS HOLLEY, RENEE HOLLEY, AND
TOBY HOLLEY

                   v.

WILLIAM MEARKLE AND KIMBERLY
MEARKLE
                                                 No. 1343 WDA 2015


              Appeal from the Judgment Entered July 15, 2015
              In the Court of Common Pleas of Bedford County
J-S33022-16


                        Civil Division at No(s): 412-2012


ELPIDIO SANTIAGO RAMIREZ,                        IN THE SUPERIOR COURT OF
INDIVIDUALLY AND AS PARENT AND                         PENNSYLVANIA
ADMINISTRATOR OF THE ESTATE OF
ANDRE RAMIREZ, DECEASED

                         Appellant

                   v.

THOMAS HOLLEY, RENEE HOLLEY, AND
TOBY HOLLEY

                   v.

WILLIAM MEARKLE AND KIMBERLY
MEARKLE
                                                     No. 1344 WDA 2015


              Appeal from the Judgment Entered July 15, 2015
              In the Court of Common Pleas of Bedford County
                      Civil Division at No(s): 273-2012


BEFORE: GANTMAN, P.J., OLSON and FITZGERALD,* JJ.

OPINION BY OLSON, J.:                                     FILED JUNE 14, 2016

     Appellants,   David     Echeverria   (individually     and   as   child   and

administrator of the estate of decedent Donna Day), Robin R. Vinyard

(individually and as spouse and administrator of the estate of decedent Tara

D. Vinyard), and Elpidio Santiago Ramirez (individually and as parent and

administrator of the estate of decedent Andre Ramirez), appeal from the

order entered on July 15, 2015 in these consolidated cases that granted

summary judgment in favor of defendants, Thomas Holley, Renee Holley,

* Former Justice specially assigned to the Superior Court.

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J-S33022-16



and Toby Holley, and additional defendants, William Mearkle and Kimberly

Mearkle. We vacate in part and remand.

      The undisputed facts are as follows.    On the evening of October 19,

2010, a fire at a two-unit residential property located on Black Valley Road

in Bedford County, Pennsylvania claimed the lives of three individuals,

Donna Day, Tara D. Vineyard, and Andre Ramirez. The precise cause of the

fire was never determined.        The Black Valley Road property was a

multi-family structure with a two-story unit in the front and a two-story unit

in the back.    The property is part of a rural tract of land that consists of

approximately 100 acres of farmland.

      William and Kimberly Mearkle (husband and wife) purchased the

property in November 2003. The Mearkles rented both units at the property

to tenants. During this time, the Mearkles performed only minor repairs on

the property.     After seven years of ownership, the Mearkles sold the

property to Toby Holley on July 19, 2010.       Toby owned the property for

approximately three months when the October 19, 2010 fire occurred. Toby

performed no modifications or repair work at the property before the fire.

      Donna Day began her tenancy at the property by renting a unit from

the Mearkles. She continued her tenancy in the same rental unit after Toby

purchased the property. On the night of the fire, Tara Vineyard was visiting

Day at her rental unit. Andre Ramirez, Day’s grandson, was also present at

Day’s unit.


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      Appellants Echeverria and Ramirez filed their complaints on March 16,

2012. Appellant Vineyard filed his complaint on April 18, 2012. Except for

the identity of the claimants and the decedents, all of the complaints contain

identical averments of fact and contentions of law.    The complaints allege

two theories of recovery.     First, the complaints allege a common law

negligence claim for failure to install smoke detectors at the property.

Second, the complaints allege that the defendants negligently failed to

maintain electrical wiring at the property.   Appellants named Toby Holley

and Thomas and Renee Holley (Toby’s parents) as defendants, averring that

Thomas and Renee served as de facto owners or managers of the property.

By order of November 16, 2012, the trial court consolidated the cases for

purposes of discovery and trial.

      The Holleys filed preliminary objections in the nature of a demurrer to

Appellants’ common law negligence claims based on the failure to install

smoke detectors. The Holleys argued that they owed no duty to install the

devices under Pennsylvania law.        Appellants opposed the objections,

asserting that the duty to install smoke detectors was part of a landlord’s

duty to maintain his premises in a safe condition. On November 16, 2012,

the trial court sustained the Holleys’ preliminary objections and dismissed

Appellants’ common law negligence claims asserting failure to install smoke

detectors.   The court concluded that a landlord’s general duty to protect

tenants from dangerous conditions did not include the installation of smoke

detectors. The dismissal order allowed Appellants to proceed on their faulty

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wiring claim and allowed Appellants to file amended complaints within 20

days.

        Appellants did not file amended complaints or seek reconsideration or

interlocutory appellate review of the November 16, 2012 dismissal order. As

a result, the Holleys filed answers and new matter to Appellants’ complaints

and joined the Mearkles as additional defendants. For the next two years,

the case proceeded with discovery on Appellants’ faulty wiring claim.

        On July 29, 2014, nearly two years after the trial court’s dismissal of

Appellants’ common law negligent failure to install smoke detector claim and

outside the statute of limitations for claims arising from the October 2010

fire, Appellants moved the trial court for leave to amend their complaints.

Citing the Pennsylvania Uniform Construction Code, 35 P.S. §§ 7210.101, et

seq., Appellants sought through their motion to add negligence per se claims

against    the   defendants,   claiming   that   the   applicable   building   codes

compelled defendants to install smoke detectors at the property. By order of

October 2, 2014, the trial court denied Appellants’ motion because it sought

to add a new cause of action outside the limitations period. The trial court

also determined that Appellants’ proposed amendment would be futile since

there was no event that triggered application of the statutory scheme at

existing properties such as the one owned, or previously owned, by the

defendants.

        On April 28, 2014 the Mearkles filed a motion for summary judgment.

Subsequently, Appellants moved the trial court to reconsider its October 2,

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2014 order denying Appellants’ motion to amend their complaints. On May

15, 2015, the Holleys moved for summary judgment alleging, among other

things, that Appellants failed to support their claim that the fire was caused

by faulty wiring.      Appellants conceded that they could not establish the

cause of the fire and, thus, could not oppose the motions for summary

judgment. On July 15, 2015, the trial court granted the defendants’ motions

for summary judgment and denied Appellants’ motion for reconsideration.

This appeal followed.1

       Appellants raise the following questions for our review:

       Did the trial court err in its [o]rder of November 20, 2012 when
       it granted [the defendants’] motion to strike any common law
       claims of negligence arising out of the lack of smoke alarms in
       the two-unit rental property?

       Did the trial court err in its [o]rder of October 3, 2014 when it
       denied Appellants’ motion to amend their [c]omplaints to add a
       claim of negligence per se?

       Did the trial court abuse its discretion in its [o]rder of July 15,
       2015 when it denied Appellants’ motion for reconsideration of [a
       prior] requested amendment while at the same time dismissing
       the case and leaving Appellants without a remedy?

Appellants’ Brief at 3-4.

       Appellants argue in their first issue that the trial court erred in

sustaining preliminary objections to their common law claim alleging that


____________________________________________


1
  Both Appellants and the trial court complied with the requirements of
Pa.R.A.P. 1925(b).



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J-S33022-16


defendants negligently failed to install smoke detectors at the property.

Specifically, Appellants contend that the trial court erroneously held that a

Pennsylvania landlord’s duty to protect tenants from dangerous conditions

did not extend to the installation of smoke detectors. We agree.

      We apply the following standard of review in addressing Appellants'

first issue.

      As a trial court's decision to grant or deny a demurrer involves a
      matter of law, our standard for reviewing that decision is
      plenary. Preliminary objections in the nature of demurrers are
      proper when the law is clear that a plaintiff is not entitled to
      recovery based on the facts alleged in the complaint. Moreover,
      when considering a motion for a demurrer, the trial court must
      accept as true all well-pleaded material facts set forth in the
      complaint and all inferences fairly deducible from those facts.

      Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 436
      (Pa. 2004) (citations and internal quotation marks omitted)[;
      a]ccord[] Friedman v. Corbett, 72 A.3d 255, 257 n.2 (Pa.
      2013).

      Furthermore,

      Our standard of review of an order of the trial court overruling or
      granting 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.... 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. Joyce v. Erie Ins. Exch., 74 A.3d
      157, 162 (Pa. Super. 2013) (citation omitted).


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J-S33022-16


Little Mountain Community Ass'n, Inc. v. Southern Columbia Corp.,

92 A.3d 1191, 1195 (Pa. Super. 2014).

     In Pennsylvania, it is well settled that landlords owe a duty to protect

tenants from injury or loss arising out of a negligent failure to maintain a

rental property in a safe condition. Feld v. Merriam, 485 A.2d 742, 745

(Pa. 1984).   A tenant seeking to recover damages stemming from the

condition of a rental party may pursue claims sounding in ordinary

negligence or a breach of the implied warranty of habitability. We discuss

both of these theories below.

     This Court observed in Rivera v. Selfon Home Repairs and

Improvements Co., 439 A.2d 739 (Pa. Super. 1982) that our Supreme

Court in 1979 adopted an implied warranty of habitability in residential

leases. See Pugh v. Holmes, 405 A.2d 897 (Pa. 1979). The Court in Pugh

stated:

     The implied warranty is designed to insure that a landlord will
     provide facilities and services vital to the life, health, and safety
     of the tenant and to the use of the premises for residential
     purposes[.] ... This warranty is applicable both at the beginning
     of the lease and throughout its duration[.]

     Additionally ... to assert a breach of the implied warranty of
     habitability, a tenant must prove he or she gave notice to the
     landlord of the defect or condition, that he (the landlord) had a
     reasonable opportunity to make the necessary repairs, and that
     he failed to do so.

Pugh, 405 A.2d at 905-906.




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J-S33022-16


      In Rivera, this Court explained that the implied warranty of

habitability is reflected in the Restatement of Property (Second) § 17.6,

comment a, b, c (1977), which represents the modern weight of authority in

this area:

      Landlord Under Legal Duty to Repair Dangerous Condition

      A landlord is subject to liability for physical harm caused to the
      tenant or his subtenant by a dangerous condition existing before
      or arising after the tenant has taken possession, if he has failed
      to exercise reasonable care to repair the condition and the
      existence of the condition is in violation of

      (1) an implied warranty of habitability;

      or

      (2) a duty created by statute or administrative regulation.


Rivera, 439 A.2d at 742.

      In terms of ordinary negligence, this Court has held that the basic

elements of that cause of action, including the existence of a duty, a breach

thereof, a causal connection between the breach and the injury, and actual

loss, apply in landlord tenant disputes. Keck v. Doughman, 572 A.2d 724,

727 (Pa. Super. 1990).       When proceeding under the theory of ordinary

negligence, however, the tenant need not give notice as is required where a

breach of the implied warranty of habitability is alleged and the landlord’s

duty to correct conditions at the property extends only to those conditions

that are discoverable through the exercise of reasonable diligence. See id.

at 728.      Lastly, a tenant seeking to recover under the theory of ordinary

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J-S33022-16


negligence must establish damages caused by the landlord’s breach of a

statutory or specifically defined duty that depends upon the relationship of

the parties. Id.

      Our review of appellate case law reveals some confusion regarding

the interplay of ordinary negligence and the implied warranty of habitability

in landlord tenant litigation. See id.; see also McIntyre, ex rel. Howard

v. Philadelphia Housing Authority, 816 A.2d 1204, 1212 (Pa. Cmwlth.

2003).   We reiterate, therefore, that a breach of the implied warranty of

habitability represents a contract claim for which only contract remedies are

available and not a tort claim for which personal injury damages are

available. As our Supreme Court held, the implied warranty of habitability

entitles claimants only to traditional contract damages such as termination

of the obligation to pay rent where the tenant surrenders possession of the

premises, rent abatement where the tenant remains in possession, the

remedy of “repair and deduct,” and specific performance. Pugh, 405 A.2d

at 907-908; Staley v. Bouril, 718 A.2d 283, 285 (Pa. 1998). In this case,

the complaints allege claims sounding in ordinary negligence, not a breach

of the implied warranty of habitability.     Thus, we are not confronted with

claims seeking tort damages for alleged violations of contractual principles.

      Although damages for personal injuries are not available under the

implied warranty of habitability, appellate authority directs the trial courts,

pursuant to the Restatement of Property (Second) § 17.6, to consider


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J-S33022-16


statutory and regulatory duties and the implied warranty of habitability as

standards for assessing whether a landlord has breached a duty to correct a

dangerous condition at a leased premises.        Rivera, supra; McIntyre,

supra.     Mindful of this approach to ascertaining the applicable standard of

care, we cannot agree with the trial court that Appellants failed to allege

sufficient facts to hold the defendants liable under a theory of common law

negligence.

      The facts alleged, and the reasonable inferences to be drawn

therefrom, were sufficient, if proved, to support a finding that a dangerous

condition (the absence of smoke detectors) existed with respect to the

leased premises, that the existence of the condition was in violation of an

implied warranty of habitability or a statutory or administrative regulation,

that the landlords were aware of the dangerous condition, that the landlords

failed to exercise reasonable care to correct the condition, and that the

dangerous condition harmed the tenants. See Asper v. Haffley, 458 A.2d

1364, 1369 (Pa. Super. 1983) (plaintiff alleged sufficient facts to support

common law negligence claim asserting that lack of an alternate exit

presented dangerous condition in rental property stricken by fire). In short,

it was far from clear at the preliminary stages of this case that Appellants

would be unable to prove any set of facts legally sufficient to establish their

right to relief.




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       Moreover, the rationale employed by the trial court constituted an

inappropriate basis upon which to sustain a demurrer in favor of the

defendants.      Here, the trial court reasoned that the absence of smoke

detectors is immediately noticeable and inexpensively remedied, which

factors auger in favor of placing the onus of installing smoke detectors upon

the tenants.     The trial court also reasoned that it is inherently difficult to

impose a duty to install smoke detectors on landlords. In this context, the

court asked who would be responsible for changing batteries or conducting

routine tests on the instruments.          What the trial court failed to recognize,

however, is that a landlord is under a duty to maintain his property in a safe

condition. This standard is sufficiently broad to incorporate the safety status

of a rental property that lacks smoke detection devices.           Additionally, the

factors cited by the trial court are more relevant to the factfinder’s

assessment of whether the absence of smoke detectors constitutes a

dangerous condition that harmed Appellants. Thus, the trial court erred in

dismissing Appellants’ common law claim alleging a negligent failure to

install smoke detectors.2

____________________________________________


2
  In reaching this conclusion, we place little weight on the trial court
decisions cited by the parties. As a preliminary matter, trial court decisions
are not binding upon the Superior Court.            See Coleman v. Wyeth
Pharaceuticals, Inc., 6 A.3d 502, 522 n.11 (Pa. Super. 2010), appeal
denied, 24 A.3d 361 (Pa. 2011). Additionally, for the reasons that follow,
we discern little guidance from the prior trial court opinions.

(Footnote Continued Next Page)


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J-S33022-16




                       _______________________
(Footnote Continued)

Appellants cite Dell v. Reading, 1994 WL 1251169 (Pa. Com. Pl. Phila. Co.
1994) and Myers v. Philadelphia Housing Authority, 1986 WL 501510
(Pa. Com. Pl. Phila. Co. 1986) in support of their contention that a landlord
owes a duty under Pennsylvania law to install smoke detectors. In Dell, two
third-floor tenants in an apartment building filed an action against the
property owner to recover damages sustained from a fire. At trial, a fire
investigator testified that the fire originated in a first floor apartment as a
result of careless cigarette smoking. In addition, the investigator concluded
that the lack of smoke detectors was the primary factor in delaying one of
the tenant’s awareness of the fire and precluding her ability to exit safely
from the building.       The property owner challenged an adverse verdict
entered after a non-jury trial, alleging that the court erred in failing to
conclude that careless smoking constituted a superseding cause of the fire.
In rejecting this claim, the trial court reasoned that the property owner was
negligent in not installing smoke detectors and that the tenant’s injuries
were a foreseeable result of that negligent act. When read in context, it is
evident that, while the court in Dell stated that the landlord was negligent in
failing to install smoke detectors, the nature and scope of a property owner’s
duty under Pennsylvania law was not the focus of the court’s attention.
Myers, too, offers little helpful guidance. There, the defendant in a similar
case moved for post-trial relief, claiming that the court erred in permitting
the plaintiff’s expert to testify that a landlord owes a duty to install smoke
detectors. The court concluded that the defendant was not entitled to relief
since it failed to raise an objection at trial.

For their part, defendants rely on Sweigart v. Kulp, 45 Pa.D&C.3d 435 (Pa.
Com. Pl. Lancaster Co. 1987). In Sweigart, a tenant filed suit against the
owner of a rental property to recover damages resulting from a fire. The
complaint alleged that the property owner negligently failed to install smoke
detectors at the leased premises. Thereafter, the property owner filed
preliminary objections in the nature of a demurrer asserting that he owned
no duty to install smoke detectors in a residence that is wholly within the
control of the tenant. The court sustained the owner’s objection in the
absence of appellate authority imposing a duty under similar circumstances.
In Sweigart, however, the court granted the tenant leave to amend his
complaint. More importantly, the court in Sweigart, as was the case in Dell
and Myers, did not discuss whether the tenant alleged sufficient facts to
withstand preliminary objections under the legal framework we have set
forth above.



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      Appellants next argue that the trial court erred in refusing to permit

them to amend their complaints by adding, outside the limitations period,

claims alleging that the defendants were negligent per se because they

violated provisions of the Pennsylvania Uniform Construction Code, 35 P.S.

§§ 7210.101, et. seq., which require installation of smoke detectors in

residential properties. Appellants contend that their proposed amendments

were not futile since they asserted viable claims based upon the defendants’

violation of legislative enactments that require smoke detectors in existing

residential properties.   Appellants also argue that their proposal to add

claims alleging negligence per se would merely amplify their common law

negligence claims asserted prior to the expiration of the statute of

limitations.

      Our Supreme Court articulated the principles governing this issue in

Laursen v. Gen. Hosp. of Monroe Cty., 431 A.2d 237 (Pa. 1981).               In

Laursen, the Court held:

      In general, amendments to pleadings are liberally allowed. But,
      (a)n amendment introducing a new cause of action will not be
      permitted after the [s]tatute of [l]imitations has run in favor of a
      defendant[.] ... However, if the proposed amendment does not
      change the cause of action but merely amplifies that which has
      already been averred, it should be allowed even though the
      [s]tatute of [l]imitations has already run.

Laursen, 431 A.2d at 239-240, quoting Schaffer v. Larzelere, 189 A.2d

267, 270 (Pa. 1963) (citations omitted).       In Laursen, the plaintiff in a

medical malpractice action sought to amend the alleged date of the


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negligent act upon which he based his cause of action, even though he

offered the proposed amendment outside the limitations period. The Court

permitted the proposed amendment because it merely amplified the

averments in the original complaint and offered no new legal theories or

factual grounds for the defendants’ liability. See Laursen, 431 A.2d at 240

(This is, therefore, “a case of adding to or amplifying the original statement

within the rule recognized in some of our cases (and is not a case where) a

different theory is relied on, new grounds ... set up, and other acts of

negligence entirely different ... alleged (in the proposed amendment).”)

(citation omitted).

      In contrast to Laursen, allowing Appellants’ proposed amendment in

this case would be tantamount to allowing a new cause of action outside the

statute of limitations. Although Appellants are correct that negligence per se

is simply a variant of ordinary negligence, they concede that negligence per

se serves as an evidentiary presumption that allows the factfinder to infer a

breach of the standard of care from a defendant’s failure to comply with a

statutory or regulatory requirement.         See Appellants’ Brief at 25-27

(collecting cases).   It follows, then, that in terms of the assessment to be

made by the factfinder, the introduction of the doctrine of negligence per se

functions as a significant alteration of the evidentiary burdens allocated to

the parties under the theory of ordinary negligence.    Among other things,

adding the doctrine of negligence per se outside the limitations period


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alleviates Appellants’ obligation to prove that the failure to install smoke

detectors created a dangerous condition at the property, the dispositive

inquiry in establishing the applicable standard of care in this dispute. Such a

redistribution of the parties’ obligations is akin to the introduction of a new

legal theory outside the limitations period, which our procedural rules do not

permit.    Accordingly, Appellants are not entitled to relief on their second

claim.3

       In their final claim, Appellants assert that the trial court erred in

refusing their motion for reconsideration because the order denying their

request had the effect of putting them out of court.            In view of our

disposition of Appellants’ first issue, we decline to address this claim.

       Order of November 16, 2012 vacated.         Case remanded for further

proceedings. Jurisdiction relinquished.




____________________________________________


3
  Appellants are hardly prejudiced by this ruling. At trial, they are free to
introduce developments in statutory and regulatory enactments, as well as
common practices amongst contractors, renovators, and landlords, to
establish the applicable standard of care and any departure therefrom in this
case. In light of our resolution of this issue, we need not address Appellants’
arguments relating to the viability of their proposed negligence per se claims
under the Pennsylvania Uniform Construction Act, 35 P.S. §§ 7210.101, et.
seq.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/14/2016




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