J-A02023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BRIAN P. DAVIES                         :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
            v.                          :
                                        :
                                        :
SIMON PROPERTY GROUP, INC.;             :
SOUTH HILLS VILLAGE ASSOCIATES,         :
L.P.; AND SNOW & ICE                    :   No. 1021 WDA 2017
MANAGEMENT CO. OF PA, INC.              :
                                        :
                                        :
APPEAL OF: SNOW & ICE                   :
MANAGEMENT CO OF PA, INC.               :

             Appeal from the Judgment Entered July 20, 2017
 In the Court of Common Pleas of Allegheny County Civil Division at No(s):
                              GD 15-005144


BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY OLSON, J.:                           FILED MARCH 23, 2018

      Appellant, Snow & Ice Management Company of Pennsylvania, appeals

from the judgment on July 20, 2017 in which the trial court awarded Simon

Property Group, Inc. and South Hills Village Associates (“South Hills Village”

collectively) $39,394.00 in attorney’s fees pursuant to an indemnification

agreement with Appellant. Upon review, we affirm.

      We briefly set forth the factual and procedural history of this case as

follows. On December 10, 2013, Brian Davies slipped and fell on ice in the

parking lot at South Hills Village Mall located in Allegheny County,

Pennsylvania.    On March 31, 2015, Davies filed a civil complaint against

multiple defendants, including, inter alia, Appellant and South Hills Village,
J-A02023-18



claiming he sustained personal injuries and suffered damages as the result

of their negligence. On October 31, 2016, a jury returned a verdict finding

Appellant was not negligent. In addition, the jury found South Hills Village

was 25% negligent, but that Davies was 75% comparatively negligent. As a

result, the jury determined that Davies was not entitled to a recovery.

       Pertinent to this appeal, immediately following the verdict, South Hills

Village claimed it expended $39.394.00 in attorney’s fees in defending Davis’

action and Appellant was responsible for those fees pursuant to an

indemnification provision in the parties’ contract for snow removal. After the

parties filed briefs on the issue, the trial court held oral argument on

February 21, 2017.        On February 27, 2017, the trial court concluded that

South Hills Village was entitled to judgment in the aforementioned amount.

On March 8, 2017, Appellant filed a motion for post-trial relief.     The trial

court held oral argument and denied relief by order entered on June 29,

2017. This timely appeal resulted.1
____________________________________________


1   Appellant filed a notice of appeal on July 13, 2017. On July 18, 2017, the
trial court ordered Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely on
July 31, 2017. The trial court issued an opinion pursuant to Pa.R.A.P.
1925(a) on September 6, 2017.             At this Court’s direction, Appellant
praeciped the trial court Prothonotary to enter judgment as required under
Pa.R.A.P. 301. See Brown v. Philadelphia College of Osteopathic
Medicine, 760 A.2d 863 (Pa. Super. 2000) (appeal does not properly lie
from order denying post-trial motions, but rather upon judgment entered
following disposition of post-trial motions). Thus, upon compliance with
Pa.R.A.P. 301, the notice of appeal previously filed in this case is treated as
filed after the entry of judgment. See Pa.R.A.P. 905(a).



                                           -2-
J-A02023-18



      On appeal, Appellant presents the following issues for our review:

      1. Whether the [trial] court’s order of February 27, 2017,
         entering a verdict in favor of South Hills Village [] on its claim
         for contractual indemnification is supported by language in
         the indemnification provisions of the contract between South
         Hills Village [] and [Appellant]?

      2. Whether the trial court erred in failing to take into account
         the fact that the jury found that [Appellant] was not negligent
         and, accordingly that the “disbursements” for which South
         Hills Village sought indemnification could not have resulted “in
         whole or in part from [Appellant’s] performance of or alleged
         failure to perform the services under or in connection with
         this agreement,” as specified in the paragraph 12(a) of the
         contract between South Hills Village and [Appellant]?

      3. Whether the trial court’s orders adhere to the rules for
         interpretation of contracts or indemnification set by the
         Supreme Court of Pennsylvania and this Court?

      4. Whether the contract between the parties clearly and
         un[e]quivocally provided, according to the rule of Ruzzi v.
         Butler Petroleum[, 588 A.2d 1 (Pa. 1991)], that [Appellant]
         would indemnify South Hills Village for its own negligence
         even if [Appellant] was not found negligent?

Appellant’s Brief at 5-6 (complete capitalization omitted).

      All of Appellant’s issues challenge the trial court’s interpretation of the

indemnity provisions of the parties’ contract for snow removal. For ease of

discussion, we first set forth the applicable provision of the parties’ contract,

paragraph 12(a) and (b) of the service agreement:


      (a)   To the fullest extent permitted by applicable law,
            [Appellant] shall, at [Appellant’s] solo cost and expense,
            defend, indemnify, and hold harmless [South Hills Village]
            and all of their respective officers, directors, shareholders,
            members, partners, parents, subsidiaries and any other


                                      -3-
J-A02023-18


              affiliated entities, agents, servants, employees, and
              independent contractors of these persons or entities []
              from and against any and all claims, liabilities, obligations,
              losses, penalties, actions, suits, damages, expenses,
              disbursements (including legal fees and expenses), or
              costs of any kind and nature whatsoever [] for property
              damage, bodily injury, and death brought by third-parties
              in any way relating to or resulting, in whole or in part,
              from [Appellant’s] performance or alleged failure to
              perform the services under or in connection with this
              [a]greement.

       (b)    The indemnity set forth herein will apply regardless of the
              active or passive negligence or joint, concurrent or
              comparative negligence of [a South Hills Village entity] and
              regardless of whether liability without fault or strict liability
              is imposed or sought to be imposed upon [South Hills
              Village], except to the proportional extent that a final
              judgment of a court of competent jurisdiction establishes
              under comparative negligence principles of the state where
              the [s]hopping [c]enter is located that a [c]laim was
              proximately caused by the sole negligence or intentional
              wrongdoing of [a South Hills Village entity], provided,
              however, that in such event the indemnity will remain valid
              for all other [entities of South Hills Village].

Service Agreement, 10/1/2013,2 at 2 ¶12 (parentheticals omitted).

       Because     all   of   Appellant’s      issues   pertain   to   the   trial   court’s

interpretation of the contractual provisions set forth above, we will examine

them together. First, Appellant claims that the trial court erred as matter of

law when it did not construe the indemnity provisions strictly or in light of

the parties’ intentions as evidenced by the entire contract. Appellant’s Brief

at 12-14.       Appellant claims that, “[i]nstead, the trial court focused

____________________________________________


2    We note that the parties and the trial court state that the parties
originally contracted for snow removal in 2008.



                                            -4-
J-A02023-18



exclusively on the language of Section 12(b) [], ignoring the provisions of

Section 12(a)” “which forms the condition precedent for [Appellant’s] entire

indemnification obligations to” South Hills Village. Id. at 13.      Citing Ruzzi,

Appellant claims that the trial “court’s interpretation violated the basic

cannons of contract indemnification construction[,]” because a party cannot

obtain indemnification for its own negligence unless the contract clearly and

unequivocally provides as such. Id.       Citing Lane v. Commonwealth, 954

A.2d 615 (Pa. Super. 2008), Appellant claims a general contractor is not

obligated to indemnify a subcontractor when their contract specifies that

indemnification is for damages arising from or relating to a breach by the

indemnifying party in connection with performance of the subcontractor. Id.

at 15. Appellant argues that, in this case, it was exonerated from liability in

connection with the accident. Id. In the alternative, Appellant argues that

if there is any ambiguity with the indemnification provision, it must be

construed against South Hills Village because it drafted the agreement. Id.

at 16.

         “Because contract interpretation is a question of law, this Court is not

bound by the trial court's interpretation.”           Ragnar Benson, Inc. v.

Hempfield Tp. Mun. Authority, 916 A.2d 1183, 1188 (Pa. Super. 2007)

(citation omitted).     “Our standard of review over questions of law is de

novo and to the extent necessary, the scope of our review is plenary as an

appellate      court   may    review   the   entire    record   in   making    its

decision.” Id. (citation omitted).

                                       -5-
J-A02023-18



      Moreover, we have previously determined:

      When the words of an agreement are clear and unambiguous,
      the intent of the parties is to be ascertained from the language
      used in the agreement.        Generally, courts must give plain
      meaning to a clear and unambiguous contract provision unless to
      do so would be contrary to a clearly expressed public policy.

      A contract provision is ambiguous when it is reasonably
      susceptible to different constructions and capable of being
      understood in more than one sense. Where a provision of a
      contract is ambiguous, it is to be construed against the drafter of
      the agreement.

Enterprise Bank v. Frazier Family L.P., 168 A.3d 262, 265 (Pa. Super.

2017) (internal citations, quotations, and ellipses omitted).

      Further, it is well-settled that

      provisions to indemnify for another party's negligence are to
      be narrowly construed, requiring a clear and unequivocal
      agreement before a party may transfer its liability to another
      party. Ruzzi v. Butler Petroleum Co., 588 A.2d 1, 7 (Pa.
      1991); Perry v. Payne, 66 A. 553 (Pa. 1907). Accordingly,
      indemnification provisions are given effect only when clearly and
      explicitly stated in the contract between two parties. Greer v.
      City of Phila., et al., 795 A.2d 376, 380 (Pa. 2002) (“[u]nless
      the language is clear and unambiguous ... we must opt for the
      interpretation that does not shoulder [subcontractor] with the
      fiscal    responsibility  for   [contractor's]   and    [owner's]
      negligence.”).

Bernotas v. Super Fresh Food Markets, Inc., 863 A.2d 478, 482–483

(Pa. 2004).

      Here, Section 12(a) of the contract states that Appellant “shall, at

[it’s] solo cost and expense, defend, indemnify, and hold harmless” South

Hills Village “from any and all claims” for “bodily injury [] brought by

third-parties, in any way relating to or resulting, in whole or in part, from

                                         -6-
J-A02023-18



[Appellant’s] performance or alleged failure to perform [] services[.]”

Service Agreement, 10/1/2013, at 2 ¶12(a) (emphasis added). As the plain

language of the contract specifies, Appellant had a duty to defend South Hills

Village from all claims resulting from Appellant’s alleged failure to perform

services.   Here, Davies filed suit against both Appellant and South Hills

Village, alleging negligence in failing to clear snow and ice from the shopping

center’s parking lot, which, in turn, caused his injury.   The mere allegation

that Appellant failed to provide required services, triggered Appellant’s duty

to defend South Hills Village under the plain language of the contract.

      Section 12(b) of the agreement supplied the express stipulation that

Appellant would assume indemnification obligations from claims arising from

Appellant’s performance or alleged failure to perform.        See Bernotas,

supra. The provision states that “indemnity [] will apply regardless of

the active or passive negligence or joint, concurrent or comparative

negligence of” South Hills Village, “except to the proportional extent that a

final judgment … establishes under comparative negligence principles … that

a claim was proximately caused by the sole negligence or intentional

wrongdoing of” South Hills Village.    Service Agreement, 10/1/2013, at 2

¶12(b) (emphasis added).     Here, Appellant suggests that because the jury

absolved it of wrongdoing, South Hills Village was the sole negligent

defendant, which limited Appellant’s duty to indemnify. Thus, the argument

turns on the interpretation of the word “sole” as set forth above.




                                     -7-
J-A02023-18



      Pertinent to this appeal, Merriam-Webster’s defines the term “sole” as

“having no sharer; being the only one; functioning independently and

without assistance or interference; belonging exclusively or otherwise limited

to one usually specified individual, unit, or group.”        MERRIAM–WEBSTER'S

COLLEGIATE DICTIONARY (11th ed. 2008) at 1187.              The term is clear,

unequivocal and unambiguous. The term sole refers to a single entity. In

context, it must be construed to mean that Appellant bore no obligation to

defend or indemnify South Hills Village, if, and only if, South Hills Village was

the only entity whose negligence proximately caused injury. Here, the jury

determined South Hills Village was 25% negligent, but that Davies was 75%

comparatively negligent. Thus, the jury did not find that South Hills Village

was exclusively or solely negligent, finding instead that Davies shared the

bulk of responsibility for his injuries. As such, we see no error in the trial

court’s conclusion that “it was the clear intent of South Hills [Village] to

obtain indemnity against this, as well as all similar incidents resulting in

lawsuits in which South Hills [Village] was not solely responsible for injury

and damages.” Trial Court Opinion, 9/6/2017, at 7 (emphasis in original).

Accordingly, the trial court appropriately issued a non-jury verdict in favor of

South Hills Village for its attorney’s fees in defending the Davies’ action.

Appellant is not entitled to relief.

      Judgment affirmed.




                                       -8-
J-A02023-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/2018




                          -9-
