              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Stuski,                         :
                          Appellant     :
                                        :
                   v.                   :
                                        :
Philadelphia Authority for Industrial   :
Development, CBRE, Inc. and CB          :
Richard Ellis, Inc.                     :
                                        :
                    v.                  :
                                        :
JPC Group, Inc. and City of             :
Philadelphia,                           :   No. 1979 C.D. 2016
Department of Public Property           :   Submitted: May 2, 2017


BEFORE:     HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION BY
JUDGE COVEY                                 FILED: May 25, 2017

            Michael Stuski (Stuski) appeals from the Philadelphia County Common
Pleas Court’s (trial court) April 11, 2016 order granting the Philadelphia Authority
for Industrial Development (PAID), CBRE, Inc. (CBRE) and CB Richard Ellis, Inc.’s
(collectively, Defendants) motion for summary judgment (Motion) and dismissing
Stuski’s complaint (Complaint) with prejudice. The sole issue before the Court is
whether the trial court erred by granting summary judgment in Defendants’ favor and
dismissing Stuski’s Complaint. After review, we affirm.
            Stuski was employed by the City of Philadelphia (City) Police
Department’s (Police Department) Traffic Division (Traffic Division). The Traffic
Division has offices in what is known as The Navy Yard (Property), on the second
floor of Building 501, 4500 South Broad Street, Philadelphia. The City’s Department
of Public Property (Property Department) leased the Property’s second floor and a
fenced parking lot for the exclusive use of the Traffic Division’s employees (Parking
Lot), from PAID pursuant to a March 29, 2004 Agreement of Lease and general
terms and conditions attached thereto (2004 Lease). On March 8, 2005, PAID and
the City entered into another Agreement of Lease with appended general terms and
conditions for additional portions of the Property (2005 Lease).
               On February 9, 2013, at approximately 6:40 a.m., Stuski arrived for
work, parked in the Parking Lot and, as he got out of his car, slipped and fell on snow
and/or ice. Stuski claims that, as a result of the fall, he suffered injuries and damages.
On November 5, 2014, Stuski filed the Complaint against Defendants, alleging
therein that the Defendants’ negligence and/or carelessness caused his injuries. See
Reproduced Record (R.R.) at 1a-13a. Stuski also asserted in the Complaint that
PAID contracted with CBRE to provide the property management services at the
Property, and CB Richard Ellis, Inc. was responsible for snow and ice removal from
the Parking Lot. Defendants filed an answer and new matter to the Complaint,
denying Stuski’s allegations.1 See R.R. at 14a-28a. Stuski replied to Defendants’
new matter. See R.R. at 29a-30a. The parties undertook discovery.

       1
         By party stipulation, Defendants were granted leave to amend their answer and new matter
to include a new matter claim that PAID is a local agency entitled to immunity under what is
commonly referred to as the Political Subdivision Tort Claims Act, 42 Pa.C.S. §§ 8541-8542. See
Certified Record (C.R.) Items 36-37.
        Defendants also filed a writ and, thereafter, a third-party complaint joining JPC Group, Inc.
(JPC) and the Property Department (collectively, Additional Defendants). See C.R. Items 7, 10; see
also R.R. at 112a-131a. In the third-party complaint, Defendants averred that PAID entered into a
service contract with JPC under which JPC was responsible for snow and/or ice removal only from
a small parking area that remained under PAID’s control (Non-Leased Parking Lot). See R.R. at
116a. Additional Defendants filed answers with new matter denying Defendants’ averments. See
C.R. Items 19-20. On March 7, 2016, JPC was dismissed from the case. See C.R. Items 41-42. On
June 1, 2016, judgment was entered in the City’s favor and the case was discontinued as to the City
because any claims Stuski had against the City would be barred by the Workers’ Compensation Act,
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.1, 2501-2708. See R.R. at 294a; see
also C.R. Item 47.
                                                 2
               Defendants filed the Motion on February 1, 2016, arguing therein that
Defendants did not owe Stuski a duty of care since, under the 2004 Lease and the
2005 Lease, it was the City’s responsibility to remove snow and/or ice from the
Parking Lot. See R.R. at 53a-258a. Stuski filed a response to the Motion. See R.R.
at 259a-292a. On April 11, 2016, the trial court granted the Motion and dismissed
Stuski’s Complaint with prejudice. See R.R. at 293a. Stuski appealed to this Court.2
The trial court filed its Opinion pursuant to Pennsylvania Rule of Appellate
Procedure 1925(a) (1925(a) Opinion), wherein it explained that Stuski’s evidence
established that the City, rather than Defendants, were responsible for snow and/or
ice removal from the Parking Lot at the time of Stuski’s fall. See R.R. at 295a-307a.
               Initially,

               in 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. Dep’t of Transp., 11 A.3d 1054, 1056 (Pa. Cmwlth. 2011). Moreover,

               [s]ummary judgment may be granted if the pleadings,
               depositions, answers to interrogatories, and admissions on
               file, together with the affidavits, if any, show that there is
               no genuine issue of material fact and that the moving party
               is entitled to a judgment as a matter of law.

Scutella v. Cnty. of Erie, 938 A.2d 521, 526 n.3 (Pa. Cmwlth. 2007). “Summary
judgment may be granted only in those cases where the right is clear and free from
doubt.” Laich v. Bracey, 776 A.2d 1022, 1024 (Pa. Cmwlth. 2001). Accordingly, in
order for Stuski’s claims against Defendants to survive summary judgment, the
       2
         Stuski initially appealed to the Superior Court and the matter was thereafter transferred to
this Court.
       “Our review of a trial court order granting summary judgment is limited to determining
whether the trial court erred as a matter of law or abused its discretion.” Mandakis v. Borough of
Matamoras, 74 A.3d 301, 302 n.4 (Pa. Cmwlth. 2013).
                                                 3
record must, at the very least, establish that Defendants owed Stuski a duty of care. If
no duty was owed, Stuski would not be entitled to judgment as a matter of law.
              Stuski argues that the trial court erred by granting Defendants’ Motion
because there existed genuine issues of material fact about whether Defendants owed
him a duty of care.3       Defendants in the Motion contend that “[t]he undisputed
evidence . . . demonstrates that the City – not [] Defendants – had the duty to remove
snow and ice from the Parking Lot.” R.R. at 64a. As the moving party, “[Defendants
have] the burden of proving that there is no genuine issue of material fact.” Laich,
776 A.2d at 1024.
              Here, Defendants support their Motion with the City’s 2004 Lease
(Motion Ex. F), 2005 Lease (Motion Ex. G), witness deposition testimony (Motion
Exs. B-D, I-K) and December 14, 2004 emails (Motion Ex. H).4 There is no dispute
that the City leased a portion of the Property from PAID under the 2004 Lease.
Section 11.01 of the 2004 Lease specified, in relevant part:

              [The City] shall keep and maintain the entire Leased
              Premises in good order, condition, and repair and free of
              trash and will not commit waste, nuisance or unreasonable
              annoyance (including without limitation, excessive noise,
              noxious odors, dust or dirt) to [PAID] or other tenants.
              [PAID] shall maintain, repair, and replace all fixtures,
              equipment, improvements and systems in the Leased
              Premises. [The City] shall reimburse [PAID] for all
              operation, repair and maintenance costs associated with its
              occupancy of the Leased Premises . . . .
R.R. at 153a (emphasis added). The 2004 Lease defined “Leased Premises” as
              the space in the property known as Building 501, 4500
              South Broad Street, Philadelphia, PA as shown on the
              plan(s) attached as Exhibit ‘A’ to the General Terms [and

       3
         “Whether a duty of care is owed to a particular individual is a matter for the court to
decide.” Kennedy v. Robert Morris Univ., 133 A.3d 38, 41 (Pa. Super. 2016).
       4
         Motion Ex. A is Stuski’s Complaint (see R.R. at 86a-98a), Ex. E is the third-party
complaint against the Additional Defendants. See R.R. at 112a-131a.
                                               4
             Conditions], constituting the entire second floor, . . . a
             section in the northeast corner of the basement, . . . as well
             as sole and exclusive use of [the Parking Lot].
R.R. at 134a (emphasis added); see also R.R. at 181a (2004 Lease Ex. A).
             On March 8, 2005, PAID and the City entered into the 2005 Lease for
portions of the Property and additional parking spaces not included under the 2004
Lease. Section 11.01 of the 2005 Lease stated, in pertinent part:

             [The City] shall keep and maintain the entire Leased
             Premises in good order, condition, and repair and free of
             trash and will not commit waste, nuisance or unreasonable
             annoyance (including without limitation, excessive noise,
             noxious odors, dust or dirt) to [PAID] or other tenants.
             [The City] shall be responsible for all snow plowing and
             snow removal within the Parking Areas at no cost to
             [PAID]. [PAID] shall maintain, repair, and replace all
             fixtures, equipment, improvements and systems in, as well
             as any structural or roof damage to, the Leased Premises.
             [The City] shall reimburse [PAID] for all operation, repair
             and maintenance costs associated with its occupancy of the
             Leased Premises . . . .

R.R. at 203a. The 2005 Lease defined “Leased Premises” as “the space in [Building
501] as shown on the plan(s) attached as Exhibit ‘A’ to the General Terms [and
Conditions], constituting 4295 rentable square feet on the first floor, in addition to the
exclusive use parking areas identified on the attached Exhibit ‘B’ (‘Parking Area’).”
R.R. at 186a. Exhibit B reflects that the Parking Areas covered by the 2005 Lease
included the newly-leased parking spaces and the Parking Lot (designated
“Police Parking Lot”). See R.R. at 228a (2005 Lease Ex. B).
             Defendants included with the Motion a December 14, 2004 email
exchange finalizing the terms of the 2005 Lease agreement, wherein PAID
representative Leslie Knott stated, in relevant part: “Since we have not heard
anything to the contrary[,] we will assume that we will plow the police lot, but on the
same basis as the remainder of the site, with no equipment dedicated to that lot.”


                                            5
R.R. at 236a (Motion Ex. H). On the same day, the City’s attorney, Ryan Silverman,
Esquire responded: “On the issue of snow removal, to my knowledge[,] the City now
plans to handle its own snow removal for the site.” R.R. at 236a (emphasis
added).
            In addition, Defendants’ Motion relied upon Stuski’s deposition
testimony, wherein he stated that he has been employed with the City’s Traffic
Division since 1995, and has worked from the Property since the Traffic Division was
relocated there. Stuski recalled that, on the day of his accident, he parked in the
Parking Lot, and he slipped and fell as soon as he put his foot down to get out of his
car. See R.R. at 101a-103a, 108a, 110a.
            Stuski reported that there was a notice on the office wall specifying a
number for the Traffic Division to call for snow and ice removal (Sign). See R.R. at
104a. The Sign to which Stuski referred instructs: “IF IT SNOWS AND THE LOTS AND
WALKWAYS AT TRAFFIC HEADQUARTERS NEED TO BE PLOWED AND SALTED, CONTACT

CBRE, INC. AT   215-561-8982 . . . .” R.R. at 283a; see also R.R. at 105a. However, the
CBRE reference and the telephone number were crossed out and a new number was
handwritten on the Sign. See R.R. at 105a, 283a. Stuski claimed that he has never
made such a call because “[t]hat’s up to the operations room.” R.R. at 104a.
            Stuski further stated that he has only seen the Police Department’s
truck plow snow in the Parking Lot so that the police cars and the employees’
personal vehicles could get in and out. See R.R. at 104a, 106a. He added that the
Police Department also plowed the Parking Lot’s entrance and the walkway entrance.
See R.R. at 106a.
            Defendants’ Motion is also based upon portions of the deposition
testimony of Police Department Corporal Patrice Six (Corporal Six). Corporal Six
has been employed by the Police Department since 1988, and has been assigned to
work in the operations room at the Property since January 2005. She stated that she
                                           6
has primarily done administrative work at the Property, which included reporting to
CBRE the need for the Property to be plowed and salted.                See R.R. at 241a-242a.
Corporal Six described that, 99% of the time, she called the CBRE number and would
have to leave a message on an answering machine. See R.R. at 242a. She claimed,
however, that neither CBRE or anyone else ever showed up, so the Police
Department would eventually do the work.5                    See R.R. at 243a-244a.           She
explained:

              Q. So if the [p]olice [o]fficers ultimately did the plowing,
              why would you call [CBRE]?
              A. Because that’s who we need to call. I was told that’s
              who I call, so I call. We have a snowplow truck, and we
              have a salt container in the back. If they don’t show up, and
              my truck is available, I will ask them to plow and salt.
R.R. at 243a.
              According to portions of Corporal Angela Mouzon-Sowers’ (Corporal
Mouzon-Sowers) deposition testimony attached to the Motion, she had been
employed by the Police Department since 1989, and was assigned to the operations
room at the Property since approximately 2010.                See R.R. at 248a-250a.          She
identified that the City’s employees park in lots B and C at the Property. 6 See R.R. at
251a, 258a. Corporal Mouzon-Sowers explained that when it snowed, the operations
staff would call the number on the Sign and make a police radio call for the City’s
plow train. See R.R. at 252a-253a. Despite that she has called the CBRE number
numerous times, she has only ever witnessed police officers and/or City employees
removing snow from and salting the Parking Lot (lot C). See R.R. at 253a-256a.


       5
         The record does not support Stuski’s representation that “after [Corporal Six] would . . .
leave a message for [CBRE], . . . [CBRE] would eventually do the plowing,” and the City
equipment would only be used if CBRE did not do the work. Stuski Br. at 8; see also Stuski Br. at
9.
       6
         Lot C is the lot in which Stuski fell. See R.R. at 60a n.2, 108a, 110a, 258a.
                                                7
              In response to the Motion, Stuski offered another portion of Corporal
Six’s deposition, wherein she confirmed that Police Department employees at the
Property park primarily in lots B and C. See R.R. at 278a-279a (Stuski Response Ex.
A).     She also explained that she posted the Sign in the operations room in
approximately 2012, shortly after CBRE became the Police Department’s contact.
See R.R. at 279a.       Corporal Six stated that when the CBRE number changed,
someone crossed out the old number and inserted the correct one. See R.R. at 280a,
283a.
              Stuski also presented portions of City real estate operations manager
Lowanda Hebert’s (Hebert) deposition testimony, wherein she described that she
manages the City’s real estate leases, including the Property. She testified that she
never saw and was not familiar with the Sign, but declared that CBRE was
responsible for snow removal at the Property. See R.R. at 289a-291a. Hebert’s
knowledge came solely from her one-time July 2015 conversation with CBRE
representative Judith DiBona (DiBona), who represented generally to Hebert that
CBRE was responsible for snow removal at The Navy Yard. See R.R. at 291a-292a.
Hebert admitted that she did not narrow her inquiry to a particular date range
(i.e., winter 2012-2013) or to the Parking Lot (i.e., leased versus non-leased
portions of the Property) during that discussion.7 See R.R. at 292a.
              Stuski relies upon Bruder v. City of Philadelphia, 153 A. 725 (Pa. 1931)
and Weingreen v. Gomberg, 35 D. & C.2d 143 (1964), aff’d per curiam, 207 A.2d
781 (Pa. 1965), to support his conclusion that Defendants were responsible for the
Parking Lot’s snow and ice removal at the time of his fall, and it was “legally
impermissible” for PAID and the City to negotiate otherwise. Stuski Br. at 8.


        7
         Accordingly, there is no record support for Stuski’s representation that DiBona informed
Hebert that CBRE was responsible for snow and ice removal from the Parking Lot during the 2012-
2013 winter. See Stuski Br. at 9.
                                               8
             In Bruder, the plaintiff sued the City for damages resulting from injuries
he sustained when he fell on defective pavement on property owned by the landlords,
portions of which were leased to various tenants. The City joined the landlords and
the tenant that leased a first floor storeroom and the basement. Because the tenant did
not rent the entire first floor, the trial court construed the lease provision that made
the tenant responsible for the sidewalk’s condition inapplicable, and concluded that
the landlords were liable. The Supreme Court affirmed, stating:

             We start with the proposition that the owner in possession
             of an entire property is primarily responsible for a defective
             sidewalk in front thereof. If, however, the owner is out of
             possession because of a lease of the entire property, his
             liability ceases, and the tenant is liable for injuries occurring
             to a third person on the premises, because of a failure to
             repair sidewalks. . . . In Brown v. Weaver, 5 A. 32 [(Pa.
             1886)], we held the owner responsible where there was
             injury to a pedestrian due to a defective sidewalk in front of
             the building which was leased to different tenants; and in
             Sloan v. Hirsch, . . . 128 A. 831 [(Pa. 1925)], we approved
             the rule that, where premises are let to several tenants, each
             occupying different portions, but all enjoying or using
             certain portions in common, the landlord is in control and
             owes to those lawfully on the premises the duty to exercise
             reasonable care to keep such parts in safe condition, and, for
             failure to do so, is liable to persons injured in consequence
             of his negligence. . . . While the facts are somewhat
             different from those in the case at bar, particularly in the
             respect that the owner occupied part of the building and
             leased the ground floor front room to the defendant, there is
             a thorough and illuminating discussion by Judge Linn of the
             general problem we are dealing with, in City of Butler v.
             Western Union Telegraph Co., 93 Pa. Super. [] 533
             [(1928)], where, in an action by the municipality to recover,
             from the ground floor tenant of part of the property,
             damages which the city had been compelled to pay to one
             injured by falling on an icy sidewalk in front thereof, it was
             held that the tenant was not liable.
Bruder, 153 A. at 727 (citation omitted).


                                            9
             In Weingreen, the tenants leased a portion of the ground floor of the
landlords’ property for their poultry business. The plaintiff sued the landlords and the
tenants for damages arising from personal injuries sustained when he fell on snow
and ice on the sidewalk outside the poultry business. The Supreme Court held that
where the tenants occupied only a portion of the building and the rest was occupied
by the landlords, the landlords are responsible for snow and ice removal from the
sidewalks. The Weingreen Court, relying on Bruder, reasoned: “By holding the
owner primarily liable in cases where a multiple tenancy exists, the law, instead of
diffusing responsibility among the various tenants, has properly concentrated it in a
single individual from whom an injured third party can more easily seek redress.”
Weingreen, 207 A.2d at 783.
             Although, Bruder and Weingreen confirm that landlords generally retain
control of common areas, they do not support Stuski’s conclusion that the City could
not legally assume control and responsibility for the Parking Lot. “[L]iability is
premised primarily on possession and control, and not merely [on] ownership.”
Jones v. Levin, 940 A.2d 451, 454 (Pa. Super. 2007) (emphasis added; quoting Deeter
v. Dull Corp., Inc., 617 A.2d 336, 339 (Pa. Super. 1992)).

             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[.]

Leary v. Lawrence Sales Corp., 275 A.2d 32, 34 (Pa. 1971) (emphasis added).
Therefore,

             ‘the owner of a building who leases out different parts of
             the building has control over these areas not specifically

                                          10
              leased and is, therefore, liable for negligence in the
              maintenance of the controlled areas.’ Trude v. Martin, . . .
              660 A.2d 626 ([Pa. Super.] 1995), quoting Portee v.
              Kronzek, . . . 166 A.2d 328 ([Pa. Super.] 1960).

Schultz v. DeVaux, 715 A.2d 479, 481 (Pa. Super. 1998) (bold and underline
emphasis added). Accordingly, Defendants could control and, thus, owe a duty to
Stuski only for portions of the Property PAID did not specifically lease to the City.
              The law requires when deciding a summary judgment motion that “the
record and any inferences therefrom must be viewed in the light most favorable to the
non-moving party, and any doubt as to the existence of a genuine issue of material
fact must be resolved against the moving party.” Laich, 776 A.2d at 1024. Viewing
the evidence in a light most favorable to Stuski, and resolving any doubts in his favor,
the 2004 Lease and the 2005 Lease expressly placed the Parking Lot where Stuski fell
under the City’s exclusive control. The 2005 Lease and the December 2004 emails,
together with testimony by Corporal Six, Corporal Mouzon-Sowers and even Stuski
established that the City long ago assumed responsibility for the Parking Lot’s snow
and ice removal. Stuski did not proffer direct or circumstantial evidence to the
contrary. Hebert’s testimony did not cast doubt on that conclusion. And, although
the Sign specified that CBRE should be called when snow and ice had to be removed
from the Property, and the City so notified CBRE, the Parking Lot was not included
in CBRE’s area of responsibility at The Navy Yard in February 2013.
              Based upon our review of the record, we hold that there existed no
genuine issues of material fact about whether Defendants owed Stuski a duty of care.
The record clearly established that the City, rather than Defendants, had control over
the Parking Lot, and was responsible for maintaining it free of snow and ice at the
time of Stuski’s fall.8 Because there are no material facts at issue, and Defendants are


       8
         Absolutely no evidence contained in this record made CB Richard Ellis, Inc. liable in any
capacity for Stuski’s fall.
                                               11
entitled to judgment as a matter of law, the trial court properly granted summary
judgment in Defendants’ favor.
            Based on the foregoing, the trial court’s order is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge




                                          12
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael Stuski,                           :
                          Appellant       :
                                          :
                   v.                     :
                                          :
Philadelphia Authority for Industrial     :
Development, CBRE, Inc. and CB            :
Richard Ellis, Inc.                       :
                                          :
                    v.                    :
                                          :
JPC Group, Inc. and City of               :
Philadelphia,                             :   No. 1979 C.D. 2016
Department of Public Property             :


                                        ORDER

            AND NOW, this 25th day of May, 2017, the Philadelphia County
Common Pleas Court’s April 11, 2016 order is affirmed.

                                        ___________________________
                                        ANNE E. COVEY, Judge
