J-S82044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BEVERLY BLACKWELL,                               IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

BRETT RUSSELL,

                            Appellee                   No. 861 MDA 2016


                    Appeal from the Judgment May 12, 2016
               in the Court of Common Pleas of Schuylkill County
                        Civil Division at No.: S-2437-11


BEFORE: OTT, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED DECEMBER 16, 2016

        Appellant, Beverly Blackwell, appeals from the grant of summary

judgment entered May 12, 2016, in favor of Appellee, Brett Russell.         We

affirm.

        We take the factual and procedural history in this matter from the trial

court’s July 22, 2016 opinion, and our review of the certified record.       On

November 16, 2011, Appellant filed a complaint against Appellee seeking

damages for property loss resulting after fire damage to her home, at 108

West Main Street, Girardville, Pennsylvania.      The fire, which originated at

Appellee’s property, 112 West Main Street, was allegedly started by tenant

Erik Angstadt’s children in the basement of the home they rented from
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S82044-16



Appellee. Mr. Angstadt’s lease with Appellee was a standard lease wherein

Appellee could come in and inspect the premises, but which did not contain a

reservation of control. (See Trial Court Opinion, 7/22/16, at 4).

       Appellant’s complaint alleged that Appellee was liable for damage to

her house because he did not inspect the work performed by an earlier

tenant who installed a wood burning stove.       She further alleged that he

breached his duty to ensure the stove was installed correctly, obtain the

proper permits, and instruct the tenant on the proper use of the stove. (See

Complaint, 11/16/11, at unnumbered pages 1-2).

       On March 28, 2016, Appellee filed a motion for summary judgment.1

In it, he provided the deposition testimony of Girardville Fire Chief, Frank

Zangari, who was deposed on July 19, 2012.       After investigating the fire,

Chief Zangari concluded that it was caused by one of Mr. Angstadt’s

children, who “filled wood burner in basement of 112 West Main Street with

approximately [twenty-four] starter logs, added magazines, cardboard and
____________________________________________


1
  This matter originally involved three cases which were consolidated based
on the request of all parties. On July 29, 2014, the trial court granted
Appellee’s summary judgment motion as to all three cases. The plaintiffs,
including Appellant, appealed. On July 7, 2015, this Court quashed the
appeal because no judgment had been entered in regard to Erik Angstadt, a
defendant in one of the consolidated cases. (See HBR Properties, LLC v.
Brett Russell, 1492 MDA 2014, unpublished memorandum (Pa. Super. filed
Jul. 7, 2015)). On January 6, 2016, Appellant filed a motion to sever her
case from the others, which the trial court granted on January 13, 2016. On
March 9, 2016, the parties filed a stipulation to re-file the same summary
judgment pleadings, thus the March 28, 2016 motion for summary
judgment. (See Trial Ct. Op., at 1-2).



                                           -2-
J-S82044-16



wood, ignited all materials with several matches, closed the wood burner

door, did not lock the wood burner door and left the building approximately

[fifteen] minutes later.”        (N.T. Zangari Deposition, 7/19/12, Exhibit A,

Girardville Fire Department Incident Report, at 2).          When questioned

whether the chimney could have had anything to do with the fire, he

testified that:

       The chimney was inspected after the fire. The chimney in my
       opinion looked clean. The stove pipe going into the chimney
       wall, the mortar was good. Everything was in place. In fact, we
       actually removed that as part of the investigation. The chimney
       didn’t seem to be part of that fire.

(Id. at 29).      On May 12, 2016, the trial court granted summary judgment in

favor of Appellee and against Appellant. This timely appeal followed. 2

       Appellant raises one issue on appeal.

       1[.] Whether the [trial] court committed an error of law or
       abused its discretion by granting the Appellee’s motion for
       summary judgment where there exists genuine issues of
       material fact in dispute regarding Appellee’s negligence, thereby
       precluding the entry of summary judgment?

(Appellant’s Brief, at 4) (most capitalization omitted).

            Our standard of review on an appeal from the grant of a
       motion for summary judgment is well-settled. A reviewing court
       may disturb the order of the trial court only where it is

____________________________________________


2
  Pursuant to the trial court’s order, Appellant filed her concise statement of
errors complained of on appeal on June 8, 2016. See Pa.R.A.P. 1925(b).
On June 10, 2016, the trial court entered an order attaching the October 27,
2014 opinion drafted for the initial appeal. On July 22, 2016, the court
entered an amended opinion. See Pa.R.A.P. 1925(a).



                                           -3-
J-S82044-16


      established that the court committed an error of law or abused
      its discretion. As with all questions of law, our review is plenary.

            In evaluating the trial court’s decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
      where there is no genuine issue of material fact and the moving
      party is entitled to relief as a matter of law, summary judgment
      may be entered. Where the nonmoving party bears the burden
      of proof on an issue, he may not merely rely on his pleadings or
      answers in order to survive summary judgment. Failure of a
      non-moving party to adduce sufficient evidence on an issue
      essential to his case and on which he bears the burden of proof
      establishes the entitlement of the moving party to judgment as a
      matter of law. Lastly, we will review 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.

Krauss v. Trane U.S. Inc., 104 A.3d 556, 562-63 (Pa. Super. 2014) (case

citation omitted).

      Appellant claims that the trial court erred in granting summary

judgment in favor of Appellee because there existed a genuine issue of

material fact as to whether he was negligent in failing to obtain a permit for,

or inspect, the wood burning stove, and whether that negligence was a

direct and proximate cause of the fire.     (See Appellant’s Brief, at 9-10).

Specifically, she argues that, although Appellee was a landlord out of

possession and thus would be relieved from liability for injuries suffered by

third parties, in this case he should still be liable for her damages because

he reserved control over the wood burning stove.        (See id. at 11).     We

disagree.




                                     -4-
J-S82044-16



      To prevail on a cause of action for negligence, a plaintiff must prove a

duty recognized by law, a breach of duty, a causal connection between

defendant’s breach of duty and the injury, and actual loss or damage

suffered by plaintiff. See Jones v. Levin, 940 A.2d 451, 454 (Pa. Super.

2007).

      “As a general rule, a landlord out of possession is not liable for injuries

incurred by third parties on the leased premises because the landlord has no

duty to such persons. . . . Thus, liability is premised primarily on possession

and control, and not merely [on] ownership.”        Id. (citations and internal

quotation marks omitted).     However, there are several exceptions to the

landlord out of possession non-liability rule. See id.

      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 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.

Henze v. Texaco, Inc., 508 A.2d 1200, 1202 (Pa. Super. 1986) (citations

omitted).   In the instant matter, Appellant argues applicability of the

reserved control exception.



                                      -5-
J-S82044-16


      [W]here the landlord retains control of a part of the leased
      premises, which is necessary to the safe use of the leased
      portion, he is liable to the lessee and others lawfully on the
      premises for physical harm caused by a dangerous condition
      existing upon that part over which he retains control, if by the
      exercise of reasonable care he could have discovered the
      condition and the risk involved, and made the condition safe.

Jones, supra at 455 (citation omitted).

      In the instant case, the trial court concluded that none of the

exceptions to the landlord out of possession rule applied. It explained that

“[Appellee] was clearly out of possession. The fact that he could come in

and inspect if he wished does not imply a reservation of control, when the

tenant is responsible for all repairs and maintenance.” (Trial Ct. Op., at 4).

Furthermore, as the court noted, the evidence shows that there is no issue

of material fact that the fire was caused by the operation of the stove by one

of Mr. Angstadt’s children, and there was “no evidence of causation between

the fire and the lack of a permit or an inspection.” (Id. at 3).

      We discern no error of law in the trial court’s conclusion. See Krauss,

supra at 562-63. Appellant has not set forth any evidence that would prove

that Appellee reserved control of the wood burning stove, nor has she

introduced any evidence that his alleged negligence caused the fire.     See

Jones, supra at 454-55. Accordingly, we agree with the trial court there

was no genuine issue of material fact and summary judgment was proper on

this basis.

      Judgment affirmed.




                                     -6-
J-S82044-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/2016




                          -7-
