                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 10-2702
                                    _____________

       COMMUNITY PRESCHOOL & NURSERY OF EAST LIBERTY, LLC,
                                            Appellant

                                           v.

                             TRI-STATE REALTY, INC.
                                  _____________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                            (D.C. Civil No. 2-09-cv-00979)
                     District Judge: Honorable Arthur J. Schwab
                                   _____________

                       Submitted Under Third Circuit LAR 34.1
                                  March 11, 2011
                                  _____________

             Before: SCIRICA, AMBRO and VANASKIE, Circuit Judges

                             (Opinion Filed: June 7, 2011)
                                   _____________

                              OPINION OF THE COURT
                                  _____________

VANASKIE, Circuit Judge.

      Tri-State Realty, Inc. (“Tri-State”) leased a portion of its building to Community

Preschool & Nursery of East Liberty, LLC (“Community Preschool”). After a fire in the

building damaged the property and forced Community Preschool to vacate the premises,
Community Preschool sued Tri-State for damages. The District Court granted summary

judgment in favor of Tri-State. We will affirm the judgment of the District Court.

                                              I.

       As we write only for the parties, who are familiar with the facts and procedural

history of this case, we relate only those facts necessary to our analysis.

       Tri-State leased the first floor of its two-story building to Community Preschool.

Before Community Preschool moved in, Tri-State obtained a permit from the City of

Pittsburgh allowing occupancy of the first floor and stating that the second floor was to

remain vacant. Tri-State subsequently renovated the second floor and leased it to

multiple occupants. Tri-State did not, however, acquire an occupancy permit for the

second floor, nor did it have the second floor’s renovated electrical system inspected.

Shortly after moving in, one of the second-floor occupants complained to Tri-State about

problems with electrical service in the building. Tri-State responded by stating that it had

recently updated the building’s wiring and meters. It does not appear that Tri-State

investigated the matter any further.

       Approximately fifteen months later, a fire broke out in the building, destroying the

second floor and damaging much of the first floor. The Pittsburgh Fire Department

investigated the fire and concluded that it originated in the wiring in the ceiling above the

second floor. Tri-State subsequently exercised its option under the lease agreement to

terminate the lease with Community Preschool in lieu of repairing the premises.




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       Community Preschool filed this lawsuit three months later. After the District

Court dismissed two claims that are not the subject of this appeal, Community Preschool

filed an amended complaint asserting claims for negligence and breach of contract.

       During discovery, Tri-State and Community Preschool secured expert testimony

concerning the cause of the fire. Community Preschool’s expert concluded that “[t]he

fire was likely electrical in origin” and that “[o]ccupancy of the second floor increased

the probability of a fire event.” (A. 393.) Tri-State’s expert agreed that an electrical fault

caused the fire. He also noted, however, that wiring servicing the first floor ran though

the ceiling over the second floor and would have been used even if the second floor had

remained unoccupied. He further explained that some potential causes, such as faulty

wires or improper installation, might not have been detectable upon inspection.

Accordingly, Tri-State’s expert opined that occupancy of the building’s second floor “had

nothing to do with the ignition or spread of this fire.” (A. 443.) Additionally, two

investigators from the Pittsburgh Fire Department concluded that an electrical

malfunction caused the fire, but neither investigator could identify the root cause of the

malfunction.

       Tri-State moved for summary judgment on the ground that Community Preschool

was unable to adduce competent evidence that occupancy of the second floor was a

substantial factor in causing the fire. The District Court agreed. Specifically, with

respect to the negligence claim, the District Court concluded that the record lacked any

evidence that Tri-State’s alleged breach of a duty caused the fire. The Court also

concluded that the doctrine of res ipsa loquitur was inapplicable. With respect to the

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claim for breach of contract, the District Court found that there was insufficient evidence

that Tri-State breached the lease’s warranty of quiet enjoyment. Community Preschool

now appeals.

                                             II.

       The District Court had diversity jurisdiction under 28 U.S.C. § 1332(a). We have

jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District

Court’s summary judgment order. Shook v. Avaya Inc., 625 F.3d 69, 72 (3d Cir. 2010).

                                             A.

       Community Preschool argues that the District Court erroneously granted summary

judgment on its negligence claim. In Pennsylvania, “[t]here are four elements to a cause

of action for negligence: a duty of care, a breach of that duty, a causal connection

between the defendant's conduct and the resulting injury, and damages.” Zeidman v.

Fisher, 980 A.2d 637, 639 (Pa. Super. Ct. 2009). Although a party may prove its case

with circumstantial evidence, “there is a limit to the inferences that the jury may

reasonably draw from such circumstantial evidence.” Fitzpatrick v. Natter, 961 A.2d

1229, 1241 (Pa. 2008). Specifically, “while the jury may draw reasonable inferences, it

may not be permitted to reach its verdict merely on the basis of speculation or conjecture,

but . . . there must be evidence upon which logically its conclusion may be based.” Id. at

1241-42 (internal quotation marks omitted).

       Even if we assume that Tri-State breached its duty to Community Preschool by

leasing space on the second floor, Community Preschool’s negligence claim fails because

it cannot prove that Tri-State’s allegedly negligent conduct caused the fire. It is

                                              4
undisputed that the electrical wiring that delivered power to the first floor ran though the

ceiling over the second floor, where the fire originated. These wires would have been in

use regardless of whether the second floor was vacant or occupied. Accordingly, the fire

could have started even if the second floor remained vacant. Community Preschool has

mustered no evidence showing that the presence of tenants on the second floor had

anything to do with the outbreak of the fire. Absent any evidence specifically linking

occupancy of the second floor to the fire, Community Preschool cannot satisfy the

causation element of its negligence claim.

       Community Preschool argues that the doctrine of res ipsa loquitur establishes

causation. That doctrine allows a court to infer that a defendant’s negligence harmed the

plaintiff only when:

              (a) the event is of a kind which ordinarily does not occur in
              the absence of negligence;

              (b) other responsible causes, including the conduct of the
              plaintiff and third persons, are sufficiently eliminated by the
              evidence; and

              (c) the indicated negligence is within the scope of the
              defendant’s duty to the plaintiff.

Gilbert v. Korvette, Inc., 327 A.2d 94, 100 (Pa. 1974) (quoting Restatement (Second) of

Torts § 328D (1965)). Res ipsa loquitur does not apply here. First, the fire could very

well have occurred without any negligence on the part of Tri-State. None of the experts

who studied the fire could identify a cause more specific than “electrical malfunction.”

Although Tri-State did not arrange for an inspection of the second floor wiring, its expert

opined that an inspection might not have revealed the problem that started the fire.

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Second, Community Preschool did not sufficiently eliminate other possible causes of the

fire. For example, defective wires, which would have had nothing to do with Tri-State’s

alleged negligence, could have caused the fire to ignite. Accordingly, the res ipsa

loquitur doctrine cannot be used here to establish a causal relationship between the fire

and Tri-State’s conduct in leasing the second-floor space.

                                            B.

       Community Preschool also appeals the District Court’s grant of summary

judgment on its breach of contract claim. Specifically, Community Preschool avers that

Tri-State breached the lease agreement’s covenant of quiet enjoyment. Appellant

concedes that this argument rests entirely on whether Tri-State caused the fire. Because

we have concluded that there is no genuine issue of material fact as to causation, we will

affirm the District Court’s grant of summary judgment on the breach of contract claim.

                                            III.

       For the foregoing reasons, we will affirm the judgment of the District Court.




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