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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


       *
           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.


____________________________________________


       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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J-A31028-16


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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J-A31028-16


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

                                      -6-
J-A31028-16


         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

                                       -7-
J-A31028-16


           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.




____________________________________________


       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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J-A31028-16



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/22/2017




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