POPOVICH, Judge.
We are askéd to review the grant of the motion for summary judgment against the plaintiffs/appellants, Shakeema Felton, a minor by her parent and natural guardian Lucretia Felton, and Lucretia Felton in her own right. We affirm.
When reviewing a trial court’s imposition of summary judgment, we have stated:
Summary judgment is made available by Pa.R.C.P. 1035 when the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits considered together reveal no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. To determine the absence of a genuine issue of material fact, we must view the evidence in the light most favorable to the non-moving party and any doubts must be resolved against the entry of summary judgment. In so doing, we accept as true the well-pleaded facts in appellant’s pleadings and give appellant the benefit of all reasonable inferences to be drawn therefrom. Summary judgment is appropriate only in those cases which are clear and free from doubt.
Dume v. Elkcorn Co., 368 Pa.Super. 280, 533 A.2d 1063, 1065 (1987) (Citation omitted).
Instantly, the plaintiffs filed a complaint against the defendants/appellees, Jessie Spratley and Mollucye Spratley Pearson, Executor and Executrix, respectively, of the Estate of Marie Spratley alleging that the minor-child Felton, beginning with May of 1989 and for a long time prior thereto, ingested paint chips while she and her mother (Lucretia Felton) resided with the grandmother (Ms. Long). The apartment in which the trio lived was owned by and/or within the control of the late Marie Spratley, “who was then and there responsible [477]*477for the care and maintenance of the [rented] premises.” Paragraph 7.
Liability was premised upon the “negligence and carelessness” of the defendant — Marie Spratley resulting in the sustaining of injuries by the minor-child Felton entitling her to judgment. An answer with new matter was filed and followed by the defendants’ motion for summary judgment, wherein it was stated they were “unaware” of and did not cause any hazardous condition on the premises. In fact, it was contended that the minor-child and her mother were well aware of the conditions which existed but failed to notify the defendants of the peeling/chipping paint which existed while the premises were held solely by Ms. Long. See Exhibit “C” (Long’s Deposition at pages 41-42, 51). Thus, argued the appellees, “they were not obligated to correct a condition of which they had no knowledge and of which the plaintiffs mother ... [and] grandmother ... were fully aware.” Paragraphs 10 and 11.
Further, the defendants cited various sections of the plaintiff’s mother’s deposition wherein she stated that, between October of 1988 through May of 1989, but prior to the minor-child’s illness, she was never concerned about the condition of the apartment (peeling paint) sufficient to report the matter to the defendants.1 See Appellees’ Memorandum of Law in Support of Motion for Summary Judgment at 5-7. Accordingly, averred the defendants, the landlord may not be held strictly liable for unknown conditions under the ruling of Kolojeski v. Deisher, Inc., 429 Pa. 191, 239 A.2d 329 (1968).
The plaintiffs countered with the argument that at the time of the Kolojeski decision the hazards of lead-based paint were not widely known. However, “... it no longer requires such expertise or training. As the hazards of lead paint poisoning were by 1987 [ — date property purchased by defendants’ decedent was April 15,1964 — ] commonly known to the general public * * * [And, a]s judicial notice of the widespread use of lead based paint was proper in 1968, it remains equally appropriate for 1987. But, in 1987, the dangers and hazards [478]*478were equally well known and therefore judicial notice of the hazards would be equally as appropriate as was the judicial notice of the widespread use in 1968.” See Plaintiffs’ Reply to Defendants’ Motion for Summary Judgment at 5-7.
Yet the plaintiffs admitted that: “Society in general may not be ‘fully’ aware of the hazards of lead paint, as society in general is not ‘fully’ aware of the ramifications of most hazards.” Id. at 7. Nonetheless, the plaintiffs acknowledged that the defendants lacked actual notice of the presence of lead-based paint in the apartment, but charged that the “Defendants should have known, which must be resolved by the trier of fact.” Id. at 10.
Oral arguments were heard by the court, after which the defendants’ motion for summary judgment was granted on the following grounds:
In their motion for summary judgment, defendants executor and executrix of the landlord’s estate assert that plaintiffs were aware of the peeling paint and hazardous condition. But failed to notify the landlord under [sic ] after the child became ill from ingesting the paint.
They assert further that their first notice of any lead paint was when they were notified by the Philadelphia Health Department. This notification also came after the child had become ill from ingesting the paint. The landlord subsequently repainted the apartment about a month later.
At the oral argument in this matter, plaintiff conceded that the landlord had no actual notice from the tenant of any defective or dangerous condition. As the evidence that he asserts for constructive notice, plaintiff’s counsel asserts that there is general knowledge of the hazards of lead paint.
The assertion of no actual notice was supported by deposition testimony and it is conceded to. Under the circumstances, the court is constrained by the holding of the supreme court in the matter of Koljeski [sic ] versus Deischer, Inc. found at 239 A.2d 329. The court in Koljeski [sic ] stated that where the landlord had no notice that the walls were painted with lead paint until after the premises had [479]*479been professionally inspected, and after the plaintiff had been treated for lead poisoning, [he] could not be held liable for the injuries. And the supreme court reasoned that absent any provision in the lease or statutory requirement, the landlord had no affirmative duty to inspect the premises for lead paint.
This court may or may not agree with that decision. However, the court must follow the lead of the supreme court in this matter. The court notes that the public knowledge of the dangers of lead paint has increased. The court cannot find as a matter of law, however, that landlords have an affirmative duty to rid all premises of this potential hazard.
Therefore, the motion for summary judgment is granted and the complaint against the defendants is dismissed. N.T. 7/6/93 at 14-16.
Free access — add to your briefcase to read the full text and ask questions with AI
POPOVICH, Judge.
We are askéd to review the grant of the motion for summary judgment against the plaintiffs/appellants, Shakeema Felton, a minor by her parent and natural guardian Lucretia Felton, and Lucretia Felton in her own right. We affirm.
When reviewing a trial court’s imposition of summary judgment, we have stated:
Summary judgment is made available by Pa.R.C.P. 1035 when the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits considered together reveal no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. To determine the absence of a genuine issue of material fact, we must view the evidence in the light most favorable to the non-moving party and any doubts must be resolved against the entry of summary judgment. In so doing, we accept as true the well-pleaded facts in appellant’s pleadings and give appellant the benefit of all reasonable inferences to be drawn therefrom. Summary judgment is appropriate only in those cases which are clear and free from doubt.
Dume v. Elkcorn Co., 368 Pa.Super. 280, 533 A.2d 1063, 1065 (1987) (Citation omitted).
Instantly, the plaintiffs filed a complaint against the defendants/appellees, Jessie Spratley and Mollucye Spratley Pearson, Executor and Executrix, respectively, of the Estate of Marie Spratley alleging that the minor-child Felton, beginning with May of 1989 and for a long time prior thereto, ingested paint chips while she and her mother (Lucretia Felton) resided with the grandmother (Ms. Long). The apartment in which the trio lived was owned by and/or within the control of the late Marie Spratley, “who was then and there responsible [477]*477for the care and maintenance of the [rented] premises.” Paragraph 7.
Liability was premised upon the “negligence and carelessness” of the defendant — Marie Spratley resulting in the sustaining of injuries by the minor-child Felton entitling her to judgment. An answer with new matter was filed and followed by the defendants’ motion for summary judgment, wherein it was stated they were “unaware” of and did not cause any hazardous condition on the premises. In fact, it was contended that the minor-child and her mother were well aware of the conditions which existed but failed to notify the defendants of the peeling/chipping paint which existed while the premises were held solely by Ms. Long. See Exhibit “C” (Long’s Deposition at pages 41-42, 51). Thus, argued the appellees, “they were not obligated to correct a condition of which they had no knowledge and of which the plaintiffs mother ... [and] grandmother ... were fully aware.” Paragraphs 10 and 11.
Further, the defendants cited various sections of the plaintiff’s mother’s deposition wherein she stated that, between October of 1988 through May of 1989, but prior to the minor-child’s illness, she was never concerned about the condition of the apartment (peeling paint) sufficient to report the matter to the defendants.1 See Appellees’ Memorandum of Law in Support of Motion for Summary Judgment at 5-7. Accordingly, averred the defendants, the landlord may not be held strictly liable for unknown conditions under the ruling of Kolojeski v. Deisher, Inc., 429 Pa. 191, 239 A.2d 329 (1968).
The plaintiffs countered with the argument that at the time of the Kolojeski decision the hazards of lead-based paint were not widely known. However, “... it no longer requires such expertise or training. As the hazards of lead paint poisoning were by 1987 [ — date property purchased by defendants’ decedent was April 15,1964 — ] commonly known to the general public * * * [And, a]s judicial notice of the widespread use of lead based paint was proper in 1968, it remains equally appropriate for 1987. But, in 1987, the dangers and hazards [478]*478were equally well known and therefore judicial notice of the hazards would be equally as appropriate as was the judicial notice of the widespread use in 1968.” See Plaintiffs’ Reply to Defendants’ Motion for Summary Judgment at 5-7.
Yet the plaintiffs admitted that: “Society in general may not be ‘fully’ aware of the hazards of lead paint, as society in general is not ‘fully’ aware of the ramifications of most hazards.” Id. at 7. Nonetheless, the plaintiffs acknowledged that the defendants lacked actual notice of the presence of lead-based paint in the apartment, but charged that the “Defendants should have known, which must be resolved by the trier of fact.” Id. at 10.
Oral arguments were heard by the court, after which the defendants’ motion for summary judgment was granted on the following grounds:
In their motion for summary judgment, defendants executor and executrix of the landlord’s estate assert that plaintiffs were aware of the peeling paint and hazardous condition. But failed to notify the landlord under [sic ] after the child became ill from ingesting the paint.
They assert further that their first notice of any lead paint was when they were notified by the Philadelphia Health Department. This notification also came after the child had become ill from ingesting the paint. The landlord subsequently repainted the apartment about a month later.
At the oral argument in this matter, plaintiff conceded that the landlord had no actual notice from the tenant of any defective or dangerous condition. As the evidence that he asserts for constructive notice, plaintiff’s counsel asserts that there is general knowledge of the hazards of lead paint.
The assertion of no actual notice was supported by deposition testimony and it is conceded to. Under the circumstances, the court is constrained by the holding of the supreme court in the matter of Koljeski [sic ] versus Deischer, Inc. found at 239 A.2d 329. The court in Koljeski [sic ] stated that where the landlord had no notice that the walls were painted with lead paint until after the premises had [479]*479been professionally inspected, and after the plaintiff had been treated for lead poisoning, [he] could not be held liable for the injuries. And the supreme court reasoned that absent any provision in the lease or statutory requirement, the landlord had no affirmative duty to inspect the premises for lead paint.
This court may or may not agree with that decision. However, the court must follow the lead of the supreme court in this matter. The court notes that the public knowledge of the dangers of lead paint has increased. The court cannot find as a matter of law, however, that landlords have an affirmative duty to rid all premises of this potential hazard.
Therefore, the motion for summary judgment is granted and the complaint against the defendants is dismissed. N.T. 7/6/93 at 14-16. Thereafter, the plaintiffs filed a timely appeal raising three issues for our review, the first of which asks: “Whether a landlord can be held responsible for failure to remove lead based paint from the demised premises when the landlord does not have actual notice, but only constructive notice[?]” Further, the plaintiffs argue that the “constructive notice” issue should be decided in the context of a trial and not in a motion for summary judgment.
Preceding our resolution of the issue posed, we deem it prudent to set forth certain well-settled legal propositions concerning the general liability of a landlord to his tenant for injuries received by the tenant on the premise; to-wit:
(a) in the absence of any provision in the lease, a landlord is under no obligation to repair the leased premises, to see to it that they are fit for rental or to keep the premises in repair ...; (2) a tenant takes the premises as he finds them and the landlord is not liable for existing defects of which the tenant knows or can ascertain by a reasonable inspection ...; (3) a landlord out of possession, however, may be liable (a) where he conceals a dangerous condition of which he has knowledge and cannot be expected to discover and (b) where he knows or should know of a dangerous condition and leases the premises for a purpose involving a “public [480]*480use” and has reason to believe the tenant will not first correct the condition ...; (4) a landlord of a multi-tenanted building, reserving control of the common approaches, such as sidewalks, passageways, etc., or parts of the building common to all tenants, such as the roof and walls, is bound to keep such approaches and parts reasonably safe for the use of tenants and their invitees and a landlord becomes hable where he either had actual notice of a defective condition therein or was chargeable with constructive notice, because had he exercised reasonable inspection he would have become aware of it____
Lopez v. Gukenback, 391 Pa. 359, 137 A.2d 771, 774-775 (1958) (Citations omitted). Accord Kolojeski, supra; Brown v. Marathon Realty, Inc., 170 A.D.2d 426, 565 N.Y.S.2d 219, 220-221 (1991).
Instantly, it is undisputed that the defendants had no actual knowledge of the lead-based content of the paint or that it was chipping/peeling prior to notification from the appropriate governmental authorities, which resulted in a rectification of the matter within a month of notice.
As a consequence, the plaintiffs proffer the novel argument that the level of knowledge relating to the hazards associated with the use or presence of lead-based paint proliferated to the stage that “[b]y 1987 [ — plaintiffs ingestion of lead-based paint allegedly occurred in May of 1989 and prior thereto — ] it was commonly known to the general public and certainly should have been known [constructive notice] to one who rents low income housing, such as the defendants * * * [so as to] creat[e] an affirmative duty to inspect for and remove lead paint.” Appellant’s Brief at 7 and 9.
To buttress their “constructive notice” assertion as to the dangers of lead-based paint, the plaintiffs point to a 1966 Philadelphia Health Code (Section 6-403 recognizing the hazards of the product), an Act of Congress (requiring the discontinuation and removal of lead paint in federal housing (42 U.S.C. § 4801 et seq.)) and seven (7) newspaper reports from the Philadelphia area spanning 1986-1991 on the topic of [481]*481the dangers of lead paint, with a final reference to a 1991 magazine article on the same subject.
Overriding our decision of whether to ascribe to the defendants “constructive notice” of the dangers of lead-based paint, and the failure to remove it from the plaintiffs’ apartment in advance of a complaint being lodged, is the Kolojeski ruling.
In Kolojeski, the Court reviewed the grant of preliminary objections in favor of the defendants/landlords, who had been sued by the tenants/parents of a minor-child who had died of lead paint poisoning. “Reduced to its essentials, the complaint allege[d] that appellees were negligent in allowing the living room woodwork paint job to deteriorate to the point where paint peeled and fell therefrom; and in using lead base paint, which is poisonous if consumed.” 429 Pa. at 193, 239 A.2d at 330.
The Kolojeski Court, in sustaining the preliminary objections, wrote:
Appellants’ only possible basis for recovery must arise from the use by appellees of lead base paint. Such use would support liability only if such use constituted the creation of a dangerous condition of which appellees had knowledge and of which appellants had no knowledge. In this connection, appellants cite a New York decision which we, as did the court below, find to be inapposite. The decision in that case was bottomed on the violation of a law requiring the landlord to make repairs. No such situation exists here. Although the situation is tragic, we cannot help but agree that the use of lead base paint in these circumstances cannot constitute actionable negligence. The court below aptly stated: “Plaintiffs have cited no judicial decisions in this jurisdiction or any statute or ordinance which would justify a conclusion that the use of a lead base paint constitutes negligence. * * * In the absence of compelling authority, we cannot find that the use of lead base paint constitutes negligence, as we take judicial notice that the use of such paint is common and widespread.” Were we to conclude otherwise, we would be required to ascribe to [482]*482appellees a knowledge and expertise not ascribable, at least at the time of this incident, to people without special training or experience.
429 Pa. at 193-195, 239 A.2d at 330-331. Justice Roberts, joined by Musmanno, J., dissented on the grounds that the complaint stated a cause of action by alleging that the woodwork was in a dangerous condition as a result of its chipped/peeling state and the fact that it had been painted with a poisonous lead-based paint; all of which was known or, by the exercise of ordinary care, should have been known by the defendants.
Given the result reached, it is obvious that the Majority in Kolojeski was not persuaded to adopt a per se rule of negligence (which, in essence, would have translated into a strict liability standard) in cases involving the use of lead-based paint in rental property by landlords. See Garcia v. Jiminez, 184 Ill.App.3d, 107, 132 Ill.Dec. 550, 539 N.E.2d 1356 (1989) (“... plaintiff asserted that defendant should have been precluded from denying knowledge that the premises contained lead-based paint. In so arguing, plaintiff seeks to impose a form of strict liability on landowners whose property contains lead-based paint. Such a result is not contemplated by the cases.”).
Moreover, unlike the appellants, we find that Kolojeski’s holding that a property owner, absent actual notice of a hazardous condition on the premises, will not be liable to a tenant for injuries flowing from such a condition is still law in this Commonwealth. As applicable to this case, it is conceded by the appellants that the appellees had no actual notice of the lead paint in the premises. N.T. 7/6/93 at 6, 14-15. This would appear to undermine the appellants’ cause of action sounding in negligence against the appellees under the teachings of Kolojeski. However, this does not bring an end to the case.
It is the appellants’ contention that the dearth of information on the hazards of lead-based paint has burgeoned since the 1968 Kolojeski decision to the point that the appellees [483]*483should be held to have had “constructive notice” of the dangers of lead paint. This constructive notice, urges the appellants, created an affirmative duty on the appellees’ part to inspect for and remedy such a condition upon discovery. The failure to do so here, continue the appellants, constitutes negligence.
Generally, the application of the doctrine of constructive notice is the result of bad faith on the part of the party charged with notice. A person is charged with having constructive notice when he has knowledge of facts putting him upon inquiry. Once the duty to inquire is raised, the party is deemed to have such knowledge as he would have acquired by the exercise of ordinary intelligence and understanding.
A party is not charged with a duty to make an inquiry unless the allegedly-provoking information has come from a source entitled to respect. A person is not put on notice by general rumor, the loose conversation of bystanders, or published notices or the distribution of hand bills, at least unless it is established that the party saw the material. It has generally been held that matter not only must be information directly communicated to the party, but must come from an authentic source which a person would be careless to disregard.
P.L.E. Notice § 3 at 124-125 (Emphasis added; footnotes omitted). Further, in the same vein, it has been written that:
The knowledge or notice of a defect or danger which is necessary in order to impose liability for negligence need not be actual, but before knowledge of a dangerous condition in an instrumentality can be visited constructively the situation must not only have existed for a sufficient length of time to enable it to be duly discovered, but it must also be capable of ascertainment upon the inspection, observation, or supervision legally required of the one sought to be bound with such knowledge.
P.L.E. Negligence § 23 at 42-43 (Emphasis added; footnotes omitted).
[484]*484Based on the preceding, to hold the appellants accountable necessitates a finding that “inquiry” on the part of the landlord rose to the level of a “duty”, and would lead to the knowledge of a requisite fact by the exercise of ordinary diligence and understanding. Pennsylvania Range Boiler Co. v. City of Philadelphia, 344 Pa. 34, 23 A.2d 723, 725 (1942). As applied instantly, the liability of a landlord to a tenant premised on a negligence theory must be established by proof of some direct omission by the lessor of the performance of a duty which he/she owed to the lessee in order to make the landlord liable. See Groover v. Magnovox Co., 71 F.R.D. 638, 640 (W.D.Pa.1976), citing Kolojeski, supra; Harris v. Lewistown Trust Co., 326 Pa. 145, 191 A. 34 (1937).
The appellants have failed to point to any authoritative source holding that a landlord has a duty (“legally” imposed) to inspect for the presence of lead-based paint in rental property, the failure of which constitutes negligence. For instance, the 1966 Philadelphia ordinance (acknowledging the dangers of lead-based paint) cited by the appellants preceded by two years the Kolojeski decision. Yet, no mention of its existence or impact on Kolojeski appears, despite the fact that the ordinance and case originated in Philadelphia County. We, therefore, place little weight upon an ordinance given no recognition by the courts at the time of Kolojeski.
The relevance of the newspaper reports and magazine article on lead-based paint referred to by the appellants fare no better. There is no averment that the appellees “saw the material” to place them on “constructive notice” to inquire into the presence of lead-based paint in the apartment in question. See P.L.E. Notice § 3 at 124.
Lastly, the 1971 Act of Congress is a piece of legislation which prohibits the application of lead-based paint on any utensil, toy or furniture and residential structure constructed or rehabilitated by the federal government. See 42 U.S.C.A. § 4831(a)-(c). Yet, the promulgation of affirmative steps to “remov[e and] ... eliminat[e] such hazards” have been restricted to purchasers and tenants of all HUD-associated housing constructed prior to 1978. See 24 C.F.R. Part 35 [485]*485(April 1, 1993); 42 U.S.C.A. § 4822 et seq. Thus, we have been presented with no authoritative sources directing the imposition of a duty to inspect for lead-based paint in the private sector where commercial property is concerned, the failure of which will be labelled an act of negligence.
We have examined the cases referred to by the appellants in support of their argument that we adopt a rule which ascribes an affirmative duty upon a landlord to inspect his/her rental property for lead-based paint. No case cited by the appellants makes such a bold and expansive endorsement of the law of negligence between landlord and tenant.2 We are not persuaded to do so now.
[486]*486If a more stringent standard of care is to be applied to the landlord whose premises contain lead-based paint, the more appropriate forum to respond with such a rule would be the legislature. See, e.g., Residential Lead-Based Paint Hazard Act, 42 U.S.C.A. § 4851 et seq.3 Thus, absent any statute on the subject and the continued viability of Kobjeski, we will affirm the judgment in favor of the appellees.4 Cf. Dunson v. [487]*487Friedlander Realty, 369 So.2d 792, 794-795 (Ala.1979) (Dismissal of complaint for failing to state a claim upheld on appeal with court’s holding that, even if landlord knew of lead-based paint on walls, it was not reasonably foreseeable that children would be injured by the paint on the premises rented to the father).
Order affirmed.5
CERCONE, J., joins and files a concurring opinion.
BECK, J., files a dissenting opinion.