Baesel v. New Blvd. Baking Co., Inc.

600 A.2d 610, 410 Pa. Super. 591, 1991 Pa. Super. LEXIS 3930

• Court: Superior Court of Pennsylvania
• Decided: December 24, 1991
• Docket: 2622
• Status: Published

Opinions

MONTGOMERY, Judge.

These consolidated appeals arise from two orders of the trial court which granted motions for summary judgment. This action was instituted in the trial court by Kevin H. Baesel, seeking damages against six named defendants, for alleged negligence in permitting the roof structures of a building in which plaintiff was employed to remain in disrepair, so as to allow water to leak therefrom onto the floor of the premises. Mr. Baesel asserted that he suffered injuries as a result of a fall purportedly caused by the collection of water on that floor.

Defendant Hill Creek Farms, Inc. (hereinafter “Hill Creek”) moved for and was granted summary judgment, as to the claims of the plaintiff, and against all other parties, on the grounds that it was a landlord out of possession of the premises and could not be held liable for any failure to repair or maintain the leased premises, and that it did not create or otherwise cause the leak in question. Plaintiff Baesel has appealed from the order of the trial court which granted summary judgment to Hill Creek, and that appeal is docketed at No. 2622 Philadelphia, 1990.

The other appeal now before our court was filed by Hill Creek, from a trial court order which granted summary judgment to defendants New Boulevard Baking Company, Inc. (hereinafter “New Boulevard”) and Philadelphia Baking Company. New Boulevard was the employer of the plaintiff and the lessee of the building at the time that the plaintiff allegedly sustained his injuries. Defendant Philadelphia Baking Company was alleged to be the parent of or otherwise in a close corporate relationship with New Boulevard. Hill Creek’s appeal from the trial court order which granted summary judgment and dismissed claims against both New Boulevard and Philadelphia Baking Company is based upon the contention that such an order may have improperly adjudicated rights and obligations of Hill Creek, vis-a-vis New Boulevard and Philadelphia Baking Company. The appeal of Hill Creek is docketed at No. 474 Philadelphia, 1991.

Under Pa.R.Civ.P. 1035, summary judgment is available when the pleadings, depositions, answers to interrogatories, admissions on file, and supporting affidavits considered together, reveal no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Bobb v. Kraybill, 354 Pa.Super. 361, 364, 511 A.2d 1379, 1380 (1986). To determine the absence of a genuine issue of material fact, the appellate court must view the evidence in the light most favorable to the non-moving party, and any doubts must be resolved against the entry of the summary judgment. Husak v. Berkel, Inc., 234 Pa.Super. 452, 341 A.2d 174 (1975). Summary judgment is appropriate only in those cases which are clear and free from doubt. Spain v. Vicente, 315 Pa.Super. 135, 461 A.2d 833 (1983). In essence, when we review an order granting summary judgment, it is our function to determine whether there exists any genuine issue of triable fact. Bowman v. Sears, Roebuck & Co., 245 Pa.Super. 530, 369 A.2d 754 (1976).

Mindful of these concepts, we first address the appeal filed by the plaintiff from the order which granted summary judgment against Hill Creek. Although the plaintiff raises a number of contentions, our concern is most significant about the assertion that the trial court erred in granting summary judgment to Hill Creek prior to the time that Hill Creek had responded to the plaintiffs discovery requests, including two sets of interrogatories and two sets of requests for production of documents.

Our review of such discovery requests shows that they sought, inter alia, responses concerning a variety of matters pertaining to the inspection, maintenance and repairing of the premises, the identity of persons responsible for same, the identity of those who may have observed any defects or improper conditions, the dates of each observation, examination or inspection, policies followed with regard to inspection, and other similar information. The plaintiff has asserted that he requested that the trial court not rule on the Hill Creek motion for summary judgment until the time that Hill Creek responded to the plaintiffs discovery requests. In support of his opposition to Hill Creek’s motion for summary judgment, the plaintiff filed a reply, in the trial court, in which it was specifically noted that there was outstanding discovery which might establish that Hill Creek had actual authority and control over the area in which the plaintiff was injured at the time of such injuries and prior thereto. Further, in opposition to Hill Creek’s motion for summary judgment, it appears that the plaintiff submitted copies of the unanswered interrogatories and requests for production of documents. In its brief to our court, Hill Creek does not dispute the plaintiff’s assertion that the trial court ruled on Hill Creek’s motion for summary judgment prior to any response by Hill Creek to the plaintiff’s aforementioned discovery requests. Rather, Hill Creek merely contends that its responses to such discovery requests would have been irrelevant in the trial court’s disposition of Hill Creek’s motion for summary judgment.

Our review of the record convinces us that the plaintiff’s discovery requests to Hill Creek sought information, in part, which would have been arguably germane to the issues presented by the Hill Creek motion for summary judgment. A landlord out of possession of premises may be held liable for harm caused to others as a result of the condition of the premises in certain limited circumstances. See Henze v. Texaco, Inc., 352 Pa.Super. 538, 508 A.2d 1200 (1986). These include situations in which a lessor fails to make repairs after having been given notice of and a reasonable opportunity to correct a dangerous condition existing on the premises. Id. Thus, it is apparent that the trial court, in granting summary judgment prior to the time when the plaintiff was furnished with any responses to such discovery requests, could not be assured that there was no genuine issue of material fact, and that Hill Creek was entitled to judgment as a matter of law, as required by Pa.R.Civ.P. 1035(b).

In such circumstances, we are constrained to conclude that the trial court abused its discretion in ruling on the Hill Creek request for summary judgment prior to the time that Hill Creek filed responses to the plaintiff’s discovery requests.¹ Therefore, we must vacate the trial court’s order which granted Hill Creek’s motion for summary judgment, and remand this case to the trial court for further proceedings.²

Turning to the appeal filed by Hill Creek, at number 474 Philadelphia, 1991, it is apparent that our court cannot address the issues raised, in light of our decision to vacate the trial court order which granted summary judgment in favor of Hill Creek. Hill Creek’s appeal from the trial court order which granted summary judgment to New Boulevard and Philadelphia Baking Company rests upon contentions that the prior court order granting Hill Creek summary judgment foreclosed that court from entering any subsequent summary judgment in favor of New Boulevard and Philadelphia Baking Company which might affect the interests of Hill Creek. In such circumstances, we must rule that the appeal filed by Hill Creek at No. 474 Philadelphia, 1991 presents issues not ripe for appellate review. Accordingly, without prejudice to any effort by Hill Creek to address such contentions to the trial court, or to our court at some later stage of the proceedings in this case, at which it may be appropriate to do so, the appeal filed by Hill Creek must be dismissed.

With respect to Appeal No. 2622 Philadelphia, 1990, the order of the trial court granting summary judgment to Hill Creek Farms, Inc. is vacated and the record is remanded for further proceedings not inconsistent with this Opinion. Appeal No. 474 Philadelphia, 1991 is dismissed without prejudice. Jurisdiction is not retained.

POPOVICH, J., files a dissenting opinion.

1 . The docket entries in the case indicate that there was an outstanding order of court granting a motion by the plaintiff to compel defendants to answer the plaintiffs discovery requests when the court granted Hill Creek’s motion for summary judgment. However, it is not clear to whom that order was directed.

2 . Even without the benefit of responses by Hill Creek to the plaintiffs discovery requests, a close question is raised as to whether the matters of record and discovery materials available to the trial court at the time of its prior disposition of the Hill Creek motion for summary judgment should have compelled the denial of that motion. Although it was a landlord out of possession at the time of plaintiffs injury, the lease provisions showed that Hill Creek retained an obligation to maintain and repair utility equipment at the leased structure. The plaintiff contended that the defect which caused water to leak into the building was related to and in an area of the roof where certain equipment existed which had been damaged by an earlier fire. The plaintiff took the position that such equipment, including cooling towers, exhaust and ventilation units and ducts, and other related equipment and structures, were under the control of Hill Creek, and part of its repair responsibilities under the utility equipment provisions of the lease between Hill Creek and New Boulevard, the plaintiffs employer. While there may be a question as to the ultimate merit of the plaintiffs position on that point, some doubt arises as to whether there is a sufficient absence of a genuine issue of material fact about it to justify the trial court’s entry of summary judgment in favor of Hill Creek. However, inasmuch as the trial court has not, in our view, reviewed pertinent responses to plaintiffs discovery requests from Hill Creek, which may bear on these matters, it would be inappropriate for our court to attempt to address the substantive merits of the Hill Creek motion for summary judgment on what is clearly an incomplete record.