              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David A. Taft and Margaret Taft, h/w,     :
                       Appellants         :
                                          :
                   v.                     :
                                          :
Sandra Kuby, Good Realty Co.,             :
Steven T. Klovsky and Bruce M.            :
Klovsky as Trustees of the Sidney         :
B. Klovsky Family Trust, Edwin R.         :
Goldenberg and Edward C. Goodstein        :
as Trustees of the Sidney J.              :
Goodstein Trust, Best Construction,       :
Inc., Commonwealth of Pennsylvania        :
Liquor Control Board and SC Bradley       :   No. 1947 C.D. 2013
Landscaping, Inc.                         :   Argued: June 20, 2014


BEFORE:      HONORABLE DAN PELLEGRINI, President Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                   FILED: July 18, 2014

             David A. Taft (Mr. Taft) and Margaret Taft (collectively Appellants)
appeal from the Delaware County Common Pleas Court’s (trial court) June 3, 2013
order granting the Pennsylvania Liquor Control Board’s (PLCB) summary judgment
motion. There are three issues for this Court’s review: (1) whether the trial court
erred when it granted the PLCB’s summary judgment motion because genuine issues
of material fact remained at issue; (2) whether the trial court erred when it granted the
PLCB’s summary judgment motion because the PLCB had a duty to maintain the
exterior or the sidewalk or parking lot outside of its liquor store located at 209 West
Lancaster Avenue, Wayne, Pennsylvania (Store); and (3) whether Mr. Taft’s personal
injury action against the PLCB was barred by what is commonly known as the
Sovereign Immunity Act.1 We affirm.
              On February 16, 2010, Mr. Taft slipped and fell on an icy patch outside
the Store from which he sustained injuries. Thereafter, Appellants instituted suit
against the PLCB. The suit also named as defendants the property owners Steven T.
Klovsky and Bruce M. Klovsky, as trustees of the Sidney B. Klovsky Family Trust,
Edward C. Goodstein, as trustee of the Sidney J. Goodstein trust, and Edwin R.
Goldenberg and Good Realty Co. (Good Realty), agent under a property management
agreement for the property owners (collectively, Good Defendants).2
              The Store is located in a “strip shopping center” which is
owned/managed by the Good Defendants. Reproduced Record (R.R.) at 4a. The
PLCB has a lease with the Good Defendants (Lease) which describes the leased
premises as the “[f]irst floor storeroom consisting of 6,032 square feet in building
situate 209 West Lancaster Avenue, Radnor Township, Wayne, Pennsylvania 19087,
for use by the [PLCB] as a Wine & Spirits outlet.” Supplemental Reproduced Record
(S.R.R.) at 2b. The Lease also states that the Good Defendants, as lessor (Lessor),
are responsible:

              To make at [Lessor’s] expense all interior and exterior
              repairs, and to keep and maintain the premises in a
              tenantable condition including all the plumbing, drainage,
              heating equipment, and electric wiring during the term of
              this lease . . . and to assume liability for all damages
              resulting from failure to maintain the premises in a
              tenantable condition. . . .

Id. Pursuant to the Lease, Lessor is to “[m]aintain sidewalk & curb in front of the
premises in good condition[,]” and with regard to the parking area, “maintenance,

       1
         42 Pa.C.S. §§ 8521-8528.
       2
         Sandra Kuby and the Glenmede Trust Co., co-executors of the Estate of Benjamin Kuby,
were also named as defendants, but they have not been involved in the litigation, apparently because
they were not served.
                                                 2
including snow removal, and illumination of the parking space provided is the sole
responsibility of the Lessor.” Id. at 3b. However, the Lease also specifies:

             In case of the LESSOR’s failure to maintain the premises in
             a tenantable condition as aforesaid . . . then, should the
             LESSOR fail to have repaired and restored the premises to a
             tenantable condition within one month after notice of such
             condition by LESSEE to LESSOR, the LESSEE may at its
             option . . . after first giving LESSOR fifteen (15) days
             written notice, repair and restore premises to a tenantable
             condition, and deduct such costs made in restoration of
             premises from the monthly rental payments due. . . .

Id. at 2b.
             Appellants allege in their complaint that Mr. Taft was injured as a result
of all defendants’ negligence in maintaining the leased premises, specifically:

             a broken, malfunctioning, worn, decayed, leaking and/or
             otherwise non-functional section of roof gutter above the
             entrance way to the [Store] directed water from the roof . . .
             through a leak in the roof gutter seam, causing a puddle to
             form before [the] entrance, which froze into an artificial
             accumulation of black ice in front of the entrance . . . .

R.R. at 5a, ¶10.
             Discovery was undertaken, and on or about April 19, 2013, the PLCB
filed a summary judgment motion alleging that Appellants’ complaint failed to set
forth a common law cause of action in negligence against the PLCB, and did not
demonstrate that the claim fell within an exception to sovereign immunity. On June
3, 2013, upon consideration of the PLCB’s motion, Appellants’ response thereto, and
after oral argument, the trial court granted the PLCB’s summary judgment motion.
The trial court determined that there were no genuine issues of material fact because
it was undisputed that the incident occurred outside the Store, the PLCB did not own
the shopping center, and the Lease provided that Lessor, not the PLCB, was
responsible for maintaining the exterior of the shopping center. The trial court ruled

                                           3
that because the PLCB had no duty to maintain the Store exterior, no common law
cause of action could exist. The trial court also found that Appellants had not
demonstrated a waiver of sovereign immunity. Accordingly, it granted the PLCB’s
summary judgment motion. Appellants appealed to this Court.3
                Appellants first argue that the trial court erred when it granted summary
judgment because genuine issues of material fact remain. Specifically, Appellants
contend that: (1) the Lease is vague, and thus, responsibility for removal of snow and
ice is unclear; (2) the nature of repairs, if any, made to the leaky rain gutter must be
explored since the lease allows the PLCB to make necessary repairs when the
landlord refuses to do so; and, (3) inconsistent testimony exists regarding the exact
location of Mr. Taft’s fall, what actions PLCB employees took to address the icy
sidewalk and the length of time the gutter had been leaking. We disagree.
                Our Supreme Court has stated:                  “It is well-settled that the
Commonwealth of Pennsylvania is protected from civil suit under sovereign
immunity, except where the General Assembly has specifically provided for a waiver
of immunity.” Mullin v. Dep’t of Transp., 870 A.2d 773, 779 (Pa. 2005). “Because


       3
           The Pennsylvania Supreme Court has explained that:

                An order of a trial court granting summary judgment may be
                disturbed by an appellate court only if the court committed an error of
                law, thus, our standard of review is de novo, and our scope of review
                is plenary. The entry of summary judgment is proper whenever no
                genuine issue of any material fact exists as to a necessary element of
                the cause of action. The moving party’s right to summary judgment
                must be clear and free from doubt. We examine the record, which
                consists of all pleadings, as well as any depositions, answers to
                interrogatories, admissions, affidavits, and expert reports, in a light
                most favorable to the non-moving party, and we resolve all doubts as
                to the existence of a genuine issue of material fact against the moving
                party.

LJL Transp., Inc. v. Pilot Air Freight Corp., 962 A.2d 639, 647 (Pa. 2009) (citations omitted).

                                                  4
of the clear intent to insulate the government from liability, the exceptions to
sovereign immunity are to be strictly construed.” Id. This Court has explained:

            In order to recover damages under the real estate exception
            [to sovereign immunity, 42 Pa.C.S. § 8522 (b)(4)], the
            plaintiff must show not only that there was a dangerous
            condition of the Commonwealth’s real estate, but also that
            the damages would be recoverable under the common
            law or by statute, had the injury been caused by a person
            not having available the defense of sovereign immunity. . . .
            [I]n order to prevail in a negligence action under common
            law, the plaintiff must establish that: (1) the defendant
            owed a duty of care to the plaintiff; (2) that duty was
            breached; (3) the breach resulted in the plaintiff’s injury;
            and (4) the plaintiff suffered an actual loss or damages.

Brown v. Commonwealth, 11 A.3d 1054, 1056 (Pa. Cmwlth. 2011) (emphasis added).
            With regard to a duty owed by shopping center tenants to patrons in
locations outside the tenants’ leased areas, our Supreme Court has stated:

            In Pennsylvania, it has long been established as a principle
            of landlord-tenant law that where the owner of real estate
            leases various parts thereof to several tenants, but retains
            possession and control of the common passage-ways and
            aisles which are to be used by business invitees of the
            various tenants, the obligation of keeping the common
            aisles safe for the business invitees is imposed upon the
            landlord and not upon the tenants, in the absence of a
            contrary provision in the lease or leases[.]
            However, since shopping centers are a comparatively recent
            commercial development, with facilities of a character
            substantially different than those known heretofore, the
            question arises as to whether or not such complexes are not
            somehow different and call for something more than the
            application of the venerable principles of landlord-tenant
            law. We conclude not.

Leary v. Lawrence Sales Corp., 275 A.2d 32, 34 (Pa. 1971) (citations omitted;
emphasis added). Thus, the Supreme Court confined a tenant’s responsibility to the
area occupied under the lease. Id.

                                          5
              Despite Appellants’ contention that the Lease is vague as to who is
responsible for snow and ice removal, such is not the case. A review of the Lease
clearly reveals that there are no such “contrary provisions” requiring the PLCB to
maintain the areas outside of the leased premises, and thus, “the obligation of keeping
the common aisles safe for the business invitees is imposed upon” the Good
Defendants.4 Id. at 34. Importantly, the Lease describes the leased premises as the
“[f]irst floor storeroom consisting of 6,032 square feet . . . .” S.R.R. at 2b. It also
explicitly states that it is Lessor’s responsibility to provide for both interior and
exterior maintenance to ensure that the premises remain in a tenantable condition.
See id. Further, in deposition testimony, David Gratz, Good Realty’s principal,
admitted that Good Realty’s contractor, S.C. Bradley Landscaping and Tree Service,
LLC, was responsible for snow and ice removal. See R.R. at 369a.
              Although Appellants assert that “[t]here was inconsistent deposition
testimony regarding the exact location of [Mr.] Taft’s fall, and, therefore, the source
of the ice which caused the fall[,]” it is undisputed that the fall occurred outside of the
Store. Appellants’ Br. at 11. Based upon Leary and the Lease, we must conclude
that the PLCB did not have a duty to keep the area outside of the leased premises safe
for its business invitees. Rather, that responsibility laid with the Good Defendants.




       4
          Appellants argue that because the Lease permits the PLCB to make repairs if Lessor fails
to maintain the premises in a tenantable condition, the Lease imposes a duty upon the PLCB. We
disagree. The lease, which defines the premises as “[f]irst floor storeroom consisting of 6,032
square feet in building situate 209 West Lancaster Avenue,” merely authorizes the PLCB to make
repairs to the premises (at the Landlord’s expense) if, after providing notice to the landlord and
giving the landlord time to cure, repairs are not made. S.R.R. at 2b. We do not interpret the
provision to impose a duty on the PLCB, nor do we find that the provision converts areas outside of
the express leased property description into Commonwealth agency real estate as described in the
real estate exception to sovereign immunity.
                                                6
              In response to Appellants’ contention that questions remain regarding
actions taken by the PLCB’s employees to remedy the icy sidewalk,5 such questions
are only material if the PLCB had a duty to maintain the leased premise’s exterior
areas. As discussed above, the PLCB had no such duty. To the extent it may be
asserted that the PLCB assumed the duty to maintain the sidewalk, that argument is
unavailing. Section 323 of the Restatement (Second) of Torts, which has been
adopted by the Pennsylvania Supreme Court, provides:

              One who undertakes, gratuitously or for consideration, to
              render services to another which he should recognize as
              necessary for the protection of the other’s person or things,
              is subject to liability to the other for physical harm resulting
              from his failure to exercise reasonable care to perform his
              undertaking, if
              (a) his failure to exercise such care increases the risk of
              such harm, or
              (b) the harm is suffered because of the other’s reliance upon
              the undertaking.

              Our Supreme Court has held that Section 323 of the Restatement
(Second) of Torts cannot “be invoked to create a duty where one does not exist.”
Morena v. S. Hills Health Sys., 462 A.2d 680, 684 (Pa. 1983). Consistent with
Section 323 of the Restatement (Second) of Torts, our Superior Court has held that
one who voluntarily salts and sands an icy area where no duty exists does not create a
duty absent evidence that the actor’s activities increased the hazards of ice or that an
injured party relied upon those remedial actions. See Morin v. Traveler’s Rest. Motel,
Inc., 704 A.2d 1085 (Pa. Super. 1997). Appellants did not allege that actions the
PLCB’s employees undertook to remedy the icy sidewalk increased the risk of Mr.


       5
         In deposition testimony, PLCB employees admitted to periodically removing ice and snow
from the area around the entrance to the Store, using items including calcium chloride, an
icebreaker and a shovel.
                                              7
Taft’s injury, or that Mr. Taft relied upon knowledge of the current or occasional
prior instances of remediation by PLCB employees. Thus, even to the extent a duty
could theoretically be imposed upon the PLCB under Section 323 of the Restatement
(Second) of Torts for the care of the area outside the Store, there are no allegations to
support such imposition.6
              Accordingly, the trial court properly found that there were no genuine
issues of material fact to be determined, that the PLCB did not have a duty to
maintain the exterior of the premises, and granted the PLCB’s summary judgment
motion.




       6
         Having concluded that the PLCB owed Appellants no duty, we need not decide whether
Appellants’ claims fall within an exception to sovereign immunity. Notwithstanding, even if we
had found that the PLCB had a duty to remove the ice from the sidewalk area in front of the Store,
Appellants’ claims do not fall within the only arguably applicable exception – the real estate
exception. This Court has explained:

              It is a general principle that, because of the clear intent to insulate the
              government from liability, the exceptions to sovereign immunity must
              be strictly construed. In applying the real estate exception to
              immunity, our courts have held that it is not enough to assert a
              dangerous condition; the dangerous condition must derive from,
              originate from or have as its source the Commonwealth realty.
Cowell v. Dep’t of Transp., 883 A.2d 705, 709 (Pa. Cmwlth. 2005) (citations omitted; emphasis
added). “[S]ubstances such as ice, snow, or debris on the real estate do not qualify ‘unless
those substances are there because of a design or construction defect.’” Nardella v. Se. Pa.
Transp. Auth., 34 A.3d 300, 305 (Pa. Cmwlth. 2011) (emphasis added) (quoting Raker v. Dep’t of
Corr., 844 A.2d 659, 662 (Pa. Cmwlth. 2004)).
        Appellants contend that the ice on the sidewalk was, as described in Cowell, “there because
of a . . . construction defect” - a faulty gutter which caused a water leak and permitted water to
collect and freeze. Id. As previously discussed, supra, the area occupied under the Lease did not
include the shopping center sidewalk, roof, gutter or any portion of the exterior of the premises.
The Lease explicitly imposed responsibility for exterior repairs on Lessor. Neither the shopping
center roof gutter nor the sidewalk are “Commonwealth realty” as referenced in Cowell and thus the
real estate exception to sovereign immunity does not apply.


                                                  8
For all of the above reasons, the trial court’s order is affirmed.


                           ___________________________
                           ANNE E. COVEY, Judge




                               9
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


David A. Taft and Margaret Taft, h/w,    :
                       Appellants        :
                                         :
                   v.                    :
                                         :
Sandra Kuby, Good Realty Co.,            :
Steven T. Klovsky and Bruce M.           :
Klovsky as Trustees of the Sidney        :
B. Klovsky Family Trust, Edwin R.        :
Goldenberg and Edward C. Goodstein       :
as Trustees of the Sidney J.             :
Goodstein Trust, Best Construction,      :
Inc., Commonwealth of Pennsylvania       :
Liquor Control Board and SC Bradley      :      No. 1947 C.D. 2013
Landscaping, Inc.                        :



                                     ORDER


            AND NOW, this 18th day of July, 2014, the Delaware County Common
Pleas Court’s June 3, 2013 order is affirmed.


                                                ___________________________
                                                ANNE E. COVEY, Judge
