J-S63018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    PATRICIA SCHOUPPE                          :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    KIRBY UPRIGHT, D/B/A                       :   No. 1687 EDA 2019
    LAMPLIGHTER ASSOCIATES AND                 :
    KIRBY UPRIGHT, D/B/A                       :
    LAMPLIGHTER ASSOCIATES GP                  :

                   Appeal from the Order Entered May 1, 2019
     In the Court of Common Pleas of Monroe County Civil Division at No(s):
                               No. 6240-CV-2017

BEFORE:      GANTMAN, P.J.E., MURRAY, J., and STRASSBURGER, J.*

MEMORANDUM BY MURRAY, J.:                           FILED DECEMBER 09, 2019

        Patricia Schouppe (Appellant) appeals from the order granting summary

judgment in favor of Kirby Upright, D/B/A Lamplighter Associates and

Lamplighter Associates GP (collectively, Lamplighter). We affirm.

        The parties do not dispute the facts of this case. On February 14, 2014,

at approximately 10:00 a.m., Appellant entered the Blakeslee Post Office in

Blakeslee, Monroe County, Pennsylvania, to retrieve her mail. The Blakeslee

Post Office sits on land owned by Lamplighter and leased to the United States

Postal Service (USPS). Upon leaving the post office, Appellant was walking




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*   Retired Senior Judge assigned to the Superior Court.
J-S63018-19


back to her car when she slipped on a patch of snow and ice in the parking

lot. Appellant sustained injuries to her right arm, neck, back, and right leg.

       On August 16, 2017, Appellant filed a complaint against Lamplighter in

which she alleged Lamplighter was negligent for failing to ensure that the

property was safe for use by business invitees and for failing to warn her of

any dangers existing on the property.            Appellant also raised a claim of

vicarious liability against Lamplighter’s employees for their failure to maintain

the property in a manner that would have prevented her injuries.

       On December 26, 2017, Lamplighter filed a joinder complaint, joining

the Blakeslee Post Office and USPS as additional defendants. On March 9,

2018, the United States Attorney for the Middle District of Pennsylvania filed

a notice of removal of the matter to federal court. Following the dismissal of

the Blakeslee Post Office and USPS as defendants, the United States District

Court for the Middle District of Pennsylvania remanded the case to state court

in Monroe County.

       On August 20, 2018, Lamplighter filed an answer and new matter in

which it averred, inter alia, that it was a landlord out-of-possession of the

property and the lease between Lamplighter and USPS provided that all snow

and ice removal was the responsibility of USPS.1 On March 18, 2019, following

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1  We note that in its answer and new matter, Lamplighter averred that
Appellant’s claims were barred by the applicable statute of limitations. On the
record before us, this defense might be meritorious. Lamplighter, however,



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the completion of discovery, Lamplighter filed a motion for summary

judgment. On May 1, 2019, the trial court entered an order granting summary

judgment in favor of Lamplighter and against Appellant. This timely appeal

followed.2

       Appellant presents the following issues for review:

       1. Did the [t]rial [c]ourt err as a matter of law by granting
       [Lamplighter]’s Motion for Summary Judgment as the record
       clearly demonstrates that there are genuine issues of material fact
       such that the moving party is not entitled to judgment as a matter
       of law?

       2. Did the [t]rial [c]ourt err as a matter of law wherein it did not
       take all facts of record and reasonable inferences therefrom in the
       light most favorable to the non-moving party ([Appellant])?

       3. Did the [t]rial [c]ourt err as a matter of law by not resolving
       all doubts as to the existence of a genuine issue of material fact
       against the moving party, and by granting Summary Judgment
       where the right to such judgment was not clear and free from all
       doubt?

Appellant’s Brief at 4.



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did not pursue the defense in its motion for summary judgment, and
therefore, has waived it for purposes of this appeal. See Paves v. Corson,
765 A.2d 1128, 1134 (Pa. Super. 2000), rev’d on other grounds, 801 A.2d
546 (Pa. 2002) (holding that defendant waived statute of limitations defense
despite raising it in the pleadings because defendant did not raise it “at any
time prior to the motion for directed verdict[,]” and consequently, defendant
never presented evidence relating to the defense and plaintiff had no
opportunity for rebuttal).

2  On May 24, 2019, the trial court directed Appellant to file a concise
statement of errors complained of on appeal pursuant to Pennsylvania Rule of
Appellate Procedure 1925(b); on June 12, 2019, Appellant filed a timely Rule
1925(b) statement.

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      Our standard of review regarding a trial court’s decision to grant or deny

a motion for summary judgment is as follows:

      A reviewing court may disturb the order of the trial court only
      where it is 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 non-moving 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 it bears the burden of proof establishes
      the entitlement of the moving party to judgment as a matter of
      law. Lastly, we will 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.

Thompson v. Ginkel, 95 A.3d 900, 904 (Pa. Super. 2014).

      Although Appellant lists three issues in the Statement of the Questions

Involved section of her appellate brief, she essentially makes two arguments

in support of her challenge to the trial court’s decision to grant summary

judgment.    First, Appellant argues that an ambiguity exists in the lease

regarding whether Lamplighter or USPS is responsible for snow and ice

removal on the property. Appellant contends that this ambiguity constitutes

a disputed material fact, and thus, summary judgment was inappropriate.

      Our Supreme Court has set forth the principles governing contract

interpretation:

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      The principles that guide this inquiry are well-settled. The
      fundamental rule in contract interpretation is to ascertain the
      intent of the contracting parties. Robert F. Felte, Inc. v. White,
      302 A.2d 347, 351 (Pa. 1973). In cases of a written contract, the
      intent of the parties is the writing itself. Pines Plaza Bowling,
      Inc. v. Rossview, Inc., 145 A.2d 672 (Pa. 1958). Under
      ordinary principles of contract interpretation, the agreement is to
      be construed against its drafter.        See Shovel Transfer &
      Storage, Inc. v. PLCB, 739 A.2d 133, 139 (Pa. 1999). When the
      terms of a contract are clear and unambiguous, the intent of the
      parties is to be ascertained from the document itself. Hutchison
      v. Sunbeam Coal Corp., 519 A.2d 385, 390 (Pa. 1986). When,
      however, an ambiguity exists, parol evidence is admissible to
      explain or clarify or resolve the ambiguity, irrespective of whether
      the ambiguity is patent, created by the language of the
      instrument, or latent, created by extrinsic or collateral
      circumstances. Steuart v. McChesney, 444 A.2d 659, 663 (Pa.
      1982); In re Herr’s Estate, 161 A.2d 32, 34 (Pa. 1960). A
      contract is ambiguous if it is reasonably susceptible of different
      constructions and capable of being understood in more than one
      sense. Kripp v. Kripp, 849 A.2d 1159, 1163 (Pa. 2004). While
      unambiguous contracts are interpreted by the court as a matter
      of law, ambiguous writings are interpreted by the finder of fact.
      Id.

Ins. Adjustment Bureau, Inc. v. Allstate Ins. Co., 905 A.2d 462, 468-69

(Pa. 2006) (citations modified).

      With respect to snow removal, the lease between Lamplighter and USPS

expressly states:

      8. SNOW

      The Postal Service agrees to furnish and pay for the snow removal
      from the sidewalks, driveway, parking and maneuvering areas,
      and any other areas providing access to the postal facility for use
      by postal employees, contractors, or the public (including, but not
      limited to, stairs, handicap access ramps, carrier ramps, etc.)
      during the continuance of the Lease. The landlord is responsible
      for snow removal from the roof.




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Motion for Summary Judgment, 3/18/19, Exhibit A (Lease, 6/10/08, Utilities,

Services & Equipment Rider ¶ 8).

     Appellant,   however,   argues    that   the   following   portions   of   the

Maintenance Rider in the lease contradict the snow removal provision:

     3.   During the continuance of the Lease, the Landlord is
     responsible for maintenance of, repairs to, and, if necessary,
     replacement of:

        a. All common or joint use interior and exterior areas and
        common or joint use equipment and systems that may be
        included as part of this lease.

Motion for Summary Judgment, 3/18/19, Exhibit A (Lease, 6/10/08,

Maintenance Rider – USPS Responsibility ¶ 3(a)).         Appellant asserts that

because the Maintenance Rider made Lamplighter responsible for the

maintenance of common areas, the lease is unclear as to whether USPS or

Lamplighter is responsible for snow removal in the parking lot.

     Upon review, we conclude that the lease is unambiguous as to USPS’s

responsibility for snow removal in the parking lot. While the lease contains a

general clause stating that Lamplighter is responsible for “maintenance of,

repairs to, and, if necessary replacement of . . . [a]ll common or joint use

interior and exterior areas[,]” see id., the lease also contains a specific

provision stating that USPS is responsible for snow removal. See Motion for

Summary Judgment, 3/18/19, Exhibit A (Lease, 6/10/08, Utilities, Services &

Equipment Rider ¶ 8).

     This Court has explained:


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         It is well-settled that clauses in a contract should not be
         read as independent agreements thrown together without
         consideration of their combined effects. Terms in one
         section of the contract, therefore, should never be
         interpreted in a manner which nullifies other terms in the
         same agreement. Furthermore, the specific controls the
         general when interpreting a contract.

      Trombetta v. Raymond James Fin. Servs., Inc., 907 A.2d 550,
      560 (Pa. Super. 2006) (citations omitted). “It is fundamental that
      one part of a contract cannot be so interpreted as to annul another
      part and that writings which comprise an agreement must be
      interpreted as a whole.” Shehadi v. Ne. Nat’l Bank of Pa., 378
      A.2d 304, 306 (Pa. 1977).

Sw. Energy Prod. Co. v. Forest Res., LLC, 83 A.3d 177, 187 (Pa. Super.

2013) (citations modified).

      Were we to interpret the general language of Paragraph 3(a) of the

Maintenance Rider to indicate that Lamplighter and USPS intended for

Lamplighter to retain responsibility for snow removal, it would annul the

specific language of Paragraph 8 (SNOW) of the Utilities, Services &

Equipment Rider.    Such a reading would directly contradict the contract

interpretation principles set forth in Southwest Energy. Moreover, there is

no language in the lease indicating that the parties intended for the provision

stating that Lamplighter’s obligation to maintain, repair, and replace (if

necessary) common and joint use areas included the responsibility of snow

removal in the parking lot.     Consequently, the lease is not reasonably

susceptible of different constructions or capable of being understood in more

than one sense regarding USPS’s responsibility for snow removal in the

parking lot. See Ins. Adjustment Bureau, 905 A.2d at 468-69. To the

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contrary, the lease is unambiguous in its express terms stating that USPS was

responsible for snow removal in the parking lot. See Motion for Summary

Judgment, 3/18/19, Exhibit A (Lease, 6/10/08, Utilities, Services & Equipment

Rider ¶ 8). Accordingly, Appellant’s argument that summary judgment was

inappropriate because an ambiguity exists in the lease regarding responsibility

for snow removal is meritless.

      Second, Appellant argues that although Lamplighter was a landlord out-

of-possession of the property, Lamplighter was still responsible for her injuries

under the public use exception to the landlord out-of-possession rule.

Appellant asserts that the public use exception “creates landlord liability if the

landlord knew or should have known the leased premises were to be used for

purposes involving admission to the public.” Appellant’s Brief at 27.

      “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.” Jones v. Levin, 940 A.2d 451, 454 (Pa. Super. 2007).

There are, however, several exceptions to this general rule:

      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

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      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 Assoc., 591 A.2d 716, 718-19 (Pa. Super. 1991) (emphasis

added, citations omitted).

      With respect to the public use exception, we have explained:

      [A] landlord out-of-possession may be liable if he or she has
      leased the premises for a purpose involving admission of the
      public and has failed to inspect for or repair dangerous conditions
      prior to transferring possession of the property. Restatement
      (Second) of Torts § 359. The rationale for this exception “lies in
      the lessor’s responsibility to the public, which he is not free to shift
      to the lessee in any case where he has reason to expect that the
      lessee will admit the public before the land is put in reasonably
      safe condition for [the public’s] reception.” Restatement (Second)
      of Torts § 359 comment a (1965).

Levin, 940 A.2d at 456-57 (emphasis added, citations and footnote omitted).

      Based upon our review of the record and the aforementioned authority,

the public use exception is inapplicable to this case. As Appellant concedes in

her appellate brief, the public use exception applies where a landlord fails to

inspect the property for or repair dangerous conditions before transferring

possession to the tenant.      Id.   In this case, there is no evidence that a

dangerous condition existed in the parking lot of the Blakeslee Post Office that

Lamplighter failed to inspect or repair prior to transferring possession to USPS.

See id. Given the ever-changing nature of weather, it was not possible for

Lamplighter to predict, years in advance, that it was going to snow on the

date in question and take steps prior to transferring possession of the property




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to USPS to prevent Appellant’s injury.     Therefore, Appellant’s public use

exception argument lacks merit.

     As there are no disputed material facts and Lamplighter was entitled to

judgment as a matter of law, the trial court did not err in granting

Lamplighter’s motion for summary judgment.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/9/19




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