Keystone Specialty v. Ebaugh, L.

2021 Pa. Super. 228, 267 A.3d 1250

• Court: Superior Court of Pennsylvania
• Decided: November 22, 2021
• Docket: 1289 WDA 2020
• Status: Published

Opinion

J-S27045-21

2021 PA Super 228

KEYSTONE SPECIALTY SERVICES : IN THE SUPERIOR COURT OF COMPANY : PENNSYLVANIA : Appellant : : : v. : : : No. 1289 WDA 2020 LYNN E. EBAUGH, MARSHA E. : EBAUGH, LIKAR ROOFING COMPANY, : INC., AND GUIDO CAPELLI :

Appeal from the Order Entered November 5, 2020 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD 16-24992

BEFORE: OLSON, J., NICHOLS, J., and COLINS, J.*

OPINION BY COLINS, J.: FILED: NOVEMBER 22, 2021

This matter is an appeal filed by Keystone Specialty Services Company

(Plaintiff) from an order of the Court of Common Pleas of Allegheny County

(trial court) granting summary judgment in favor defendants Lynn E. Ebaugh

and Marsha E. Ebaugh (collectively, Landlord) in a breach of contract and

negligence action that Plaintiff brought against Landlord and two other

defendants. For the reasons set forth below, we affirm.

Plaintiff’s action arises out of damage to equipment and other personal

property that Plaintiff stored in a building owned by Landlord in North

Versailles, Pennsylvania. Plaintiff leased the bottom story of the building (the

Premises) under a lease that it and Landlord entered into on November 11,

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* Retired Senior Judge assigned to the Superior Court. J-S27045-21

2013 (the Lease) that provided that Plaintiff would lease the 1,500-square-

foot Premises for a rent of $495 per month. Amended Complaint ¶6; Lease

at 1; Bazzone Dep. at 62-63. The Lease was for a period of one year and

provided that it would renew automatically for another year under the same

terms unless Plaintiff or Landlord gave written notice of termination at least

60 days before the end of the lease term. Lease at 1-2. The Lease was

renewed pursuant to this provision and was in effect in 2015. Amended

Complaint ¶¶7-10; Marsha Ebaugh Dep. at 101-02.

The Lease included the following exculpatory provision:

STORAGE. Tenant shall be entitled to store items of personal property in 1500 sq feet during the term of this Lease. Landlord shall not be liable for loss of, or damage to, such stored items.

Lease at 1 (emphasis added). In addition, the Lease provided in an addendum

that was also signed by Plaintiff and Landlord:

Insurance to Protect Tenant’s Property and Visitors

Tenant shall be solely responsible, absolutely, to purchase and pay for insurance to protect Tenant’s personal property against theft, damage and/or destruction, from any cause or reason, during the term of this lease agreement. Tenant shall be solely responsible, absolutely, to purchase and pay for Comprehensive Liability insurance to protect Tenant from any and all claims arising from tenant’s guest, invitee/s, servant/s, or employee/s, invited to rental unit, building in which rental unit is located and on the property upon which the building is situated. Landlord shall not be liable to Tenant, tenant’s family, guest, invitee’s, servant/s, employee/s for any claim arising out of their visit to rental unit, building in which rental unit is located or on the property, upon which the building is situated, or any loss, damage or destruction of Tenant’s personal property.

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Lease Addendum at 2 (emphasis added). The Lease provided that Landlord

was responsible for maintenance of the roof, outside walls, and other

structural parts of the building and for all maintenance other than

maintenance of the parking lot, driveways, and sidewalks, which were

Plaintiff’s responsibility. Lease at 2.

On December 27, 2016, Plaintiff filed this action against Landlord and

subsequently added as defendants contractors who performed roof and

plumbing repair work on the building in which the Premises were located. In

its complaint, Plaintiff averred that when it entered the Premises to retrieve

some of its stored property in March 2015, it found water cascading through

the ceiling of the Premises and immediately notified Landlord of the water

infiltration. Amended Complaint ¶¶10-11. Plaintiff averred that when it

returned to the Premises in April 2015, it found that water infiltration was still

occurring and that mold was growing on its stored property and averred that

it immediately reported this to Landlord. Id. ¶¶13-16. Plaintiff averred that

despite notifying Landlord of the water infiltration in March and April 2015,

the water infiltration continued into June 2015, when a broken pipe in the

Premises was discovered. Id. ¶¶20-27. Plaintiff asserted that Landlord’s

failure to prevent and fix the water infiltration was negligent and a breach of

its maintenance obligation under the Lease. Id. ¶¶28-36. The damages that

Plaintiff sought consisted of losses resulting from water and mold damage to

the property that it stored on the Premises. Id. ¶¶32, 36.

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On January 4, 2019, Landlord filed a motion for summary judgment

seeking judgment in its favor on the ground that the Lease barred Plaintiff’s

claims for damage to the property that it stored on the Premises. Plaintiff, in

response, did not dispute that it entered into the Lease or that the Lease

contained the language on which Landlord’s motion was based, but argued

that the Lease terms did not bar its claims.

On April 8, 2019, the trial court granted summary judgment as to

Landlord only. Trial Court Order, 4/8/19. Plaintiff appealed that order, but

this Court quashed the appeal as interlocutory because the record did not

show that the claims against the other two defendants had been resolved.

1162 WDA 2019 Order, 10/18/19. On November 3, 2020, Plaintiff filed a

motion in the trial court asserting that its claims against the other defendants

had been resolved by settlement and seeking an order that all claims against

all defendants had been resolved, and the trial court entered an order on

November 5, 2020 that all claims against all defendants had been dismissed

or settled. Trial Court Order, 11/5/20. Plaintiff filed the instant appeal on

November 25, 2020.

Plaintiff argues in this appeal that the exculpatory clauses in the Lease

are not sufficient to relieve Landlord of liability for damage to its stored

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property that was caused by Landlord’s negligence or breach of contract.1

Before addressing the merits of this issue, however, we must consider

Landlord’s contention that Plaintiff’s Pa.R.A.P. 1925(b) statement of errors

complained of on appeal was too vague to preserve any issue for review.

On April 29, 2021, the trial court ordered Plaintiff to file a statement of

errors complained of on appeal in accordance with Rule 1925(b). Plaintiff

timely filed a Rule 1925(b) statement that set forth only the following issue:

That the Honorable Court of Common Pleas, Allegheny County, erred as a matter of law in granting the Motion for Summary Judgment in favor of Defendants Lynn E. Ebaugh and Marsha Ebaugh [Landlord].

Plaintiff’s Concise Statement of Errors Complained of on Appeal. The trial

court in its Rule 1925(a) opinion concluded that this Rule 1925(b) statement

did not identify any ground on which Plaintiff contended that summary

1 Plaintiff in the Statement of the Question Involved section of its brief lists

the following two issues: A. Whether the Honorable Court of Common Pleas, Allegheny County, erred as a matter of law in granting the Motion for Summary Judgment in favor of Defendants Lynn E. Ebaugh and Marsha Ebaugh. B. Whether the Honorable Court of Common Pleas, Allegheny County, erred as a matter of law in finding that the exculpatory clause in the Lease between the parties was effective to relieve the Ebaugh Defendants of liability for their own negligence or breach of contract. Appellant’s Brief at 4. Appellant’s brief, however, contains only one argument section and, as discussed below, the first listed issue is too vague to constitute a separate issue.

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judgment was improper and therefore was insufficient to preserve any issue

for appellate review. Trial Court Memorandum at 3. We agree.

Where the trial judge has issued a Rule 1925(b) order, the appellant’s

failure to file and serve on the trial judge a statement of errors complained of

on appeal automatically waives all issues on appeal. U.S. Bank, N.A. for

Certificateholders of LXS 2007-7N Trust Fund v. Hua, 193 A.3d 994,

996-97 (Pa. Super. 2018); Lineberger v. Wyeth, 894 A.2d 141, 148 (Pa.

Super. 2006); Giles v. Douglass, 747 A.2d 1236, 1237 (Pa. Super. 2000).

A statement that is too vague to allow the trial judge to identify what issues

are being raised on appeal is the functional equivalent of no Rule 1925(b)

statement at all and constitutes a waiver of all appellate issues. Lineberger,

894 A.2d at 148-49; Commonwealth v. Dowling, 778 A.2d 683, 686–87

(Pa. Super. 2001).

Plaintiff’s Rule 1925(b) statement asserted only that the trial court erred

in granting summary judgment without identifying any ground on which

Plaintiff claims that the trial court’s ruling was erroneous. That is insufficient

to preserve any issue for appeal. A Rule 1925(b) statement that simply

asserts that the court erred in granting summary judgment without stating

the reason or reasons that the appellant contends that summary judgment

could not be granted is too vague to identify the issues raised on appeal and

constitutes a waiver of appellate issues. Lineberger, 894 A.2d at 144, 148-

49 (finding waiver on the ground that a Rule 1925(b) statement that “the

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Court committed an error of law by granting [Wyeth’s] Motion for Summary

Judgment based on lack of proximate cause and dismissing [Appellant’s] case

with prejudice” was insufficient to preserve issues for appeal) (brackets in

original).

Plaintiff does not point to any specific error that its Rule 1925(b)

statement identified. Rather, it contends that the trial court should have

known that its vague statement included all issues raised in its opposition to

Landlord’s summary judgment motion and that its failure to identify issues

was excused by the fact that the order granting summary judgment did not

state the trial court’s reasoning. Plaintiff’s Reply Brief at 1-9. Neither of these

arguments has merit. The fact that a trial judge can review the appellant’s

prior filings to deduce the possible issues the appellant may raise on appeal

does not excuse an appellant’s failure to comply with a Rule 1925(b) order

requiring that it file a statement that identifies the issues that it intends to

raise on appeal. Lineberger, 894 A.2d at 149 (Rule 1925(b) statement was

insufficient because it did not set forth the grounds for denying summary

judgment that appellant had asserted in her brief in opposition to appellee’s

summary judgment motion).

The fact that the trial court did not state its reasoning in its order did

not prevent Plaintiff from specifying why it contended that summary judgment

could not be granted in this case. It was clear from the trial court’s order

what the basis of the ruling was, as the motion for summary judgment that it

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granted sought summary judgment on only one ground, that the exculpatory

clauses in the Lease barred Plaintiff’s claims. Compare Hess v. Fox

Rothschild, LLP, 925 A.2d 798, 804-805 (Pa. Super. 2007) (excusing vague

Rule 1925(b) statement where defendants had filed preliminary objections

seeking dismissal on multiple different independent grounds and court’s order

simply stated that it sustained the preliminary objections). Moreover, if

Plaintiff felt that it could not discern the basis for the trial court’s order

sufficiently to identify the issues that it intended to raise in this appeal, it was

required to “preface the [Rule 1925(b)] Statement with an explanation as to

why the Statement has identified the errors in only general terms.” Pa.R.A.P.

1925(b)(4)(vi). Plaintiff’s Rule 1925(b) statement contains no such

explanation or statement it was unable to discern the basis for the trial court’s

order; rather, it simply identifies the order at issue and asserts its single vague

issue. Plaintiff’s Concise Statement of Errors Complained of on Appeal.

Even if Plaintiff were not barred by waiver, however, its appeal would

fail on the merits. Summary judgment is properly granted in favor of the

defendant where the plaintiff has no cause of action as a matter of law under

the undisputed facts. Pa.R.C.P. 1035.2(1) (summary judgment may be

granted “whenever there is no genuine issue of any material fact as to a

necessary element of the cause of action or defense” and movant is entitled

to judgment as a matter of law); Kibler v. Blue Knob Recreation, Inc., 184

A.3d 974, 978–79 (Pa. Super. 2018). In particular, summary judgment is

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appropriate and must be affirmed where the undisputed terms of a written

agreement bar the plaintiff’s claims against the defendant. Kibler, 184 A.3d

at 981-86; Nissley v. Candytown Motorcycle Club, Inc., 913 A.2d 887,

889-92 (Pa. Super. 2006).

It was undisputed here that the lease that Plaintiff had signed and under

which it occupied and stored its property on the Premises contained

exculpatory clauses that specifically provided, in the same size print as all the

other lease terms, that “Landlord shall not be liable for loss of, or damage to,

[Tenant’s] stored items” and that “Landlord shall not be liable to Tenant … for

… any loss, damage or destruction of Tenant’s personal property.” Lease at 1;

Lease Addendum at 2. It was also undisputed that Plaintiff’s claims in this

action were for damage to personal property that it stored on the Premises.

Exculpatory clauses in contracts are valid where they do not contravene

public policy, are between persons relating entirely to their own private affairs

and each party is a free bargaining agent to the agreement. Chepkevich v.

Hidden Valley Resort, L.P., 2 A.3d 1174, 1189 (Pa. 2010); Topp Copy

Products, Inc. v. Singletary, 626 A.2d 98, 99 (Pa. 1993); Kibler, 184 A.3d

at 981. Exculpatory clauses that satisfy these requirements are enforceable

and bar negligence claims where the language of the exculpatory clause states

that it applies to all claims for injury or damage or to any claim for injury or

damage. Topp Copy Products, 626 A.2d at 99-101 & n.1; Nissley, 913

A.2d at 890-91; Zimmer v. Mitchell & Ness, 385 A.2d 437, 440 (Pa. Super.

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1978) (en banc), aff’d without opinion, 416 A.2d 1010 (Pa. 1980).

Exculpatory clauses in a commercial lease that provide that the landlord is not

liable for any damage to the tenant’s personal property on the leased premises

are valid and enforceable and bar contract and negligence claims for such

property damage. Topp Copy Products, 626 A.2d at 99-101 & n.1; Cannon

v. Bresch, 160 A. 595, 596-97 (Pa. 1932).

The exculpatory language in the Lease is essentially indistinguishable

from the exculpatory clauses in Topp Copy Products and Cannon and was

therefore valid and sufficient to bar Plaintiff’s claims for damage to its personal

property. The Lease twice expressly stated that Landlord would not be liable

for damage to Plaintiff’s personal property and stated that this applied to “any

loss, damage or destruction of Tenant’s personal property.” Lease at 1; Lease

Addendum at 2 (emphasis added). The word “any” is equally all-

encompassing as the word “all” in the leases at issue in Topp Copy Products

and Cannon. Zimmer, 385 A.2d at 440; Merriam-Webster’s Collegiate

Dictionary 56 (11th Ed. 2003) (defining “any” as including “every” and “all”).

Moreover, the Lease further made clear that Plaintiff cannot obtain

compensation from Landlord for damage to its personal property by expressly

providing that Plaintiff must obtain insurance to protect itself from loss from

“theft, damage and/or destruction, from any cause or reason.” Lease

Addendum at 2 (emphasis added).

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Plaintiff argues that because the Lease did not use the word “negligence”

in its exculpatory clauses, the exculpatory clauses are insufficient to bar claims

for damage to Plaintiff’s property that was caused by Landlord’s negligence.

That, however, is not the law. Although an indemnification clause does not

cover claims arising out of the indemnitee’s negligence unless it expressly

refers to indemnification for the indemnitee’s negligence, Topp Copy

Products, 626 A.2d at 100-01; Ruzzi v. Butler Petroleum Co., 588 A.2d 1,

4-5 (Pa. 1991), that rule does not apply to exculpatory clauses that bar

recovery from the other party and provide no indemnification for claims of

third parties. Chepkevich, 2 A.3d at 1193; Topp Copy Products, 626 A.2d

at 100-01; Nissley, 913 A.2d at 890-91. “Pennsylvania courts have

consistently held that exculpatory clauses may bar suits based on negligence

even where the language of the clause does not specifically mention

negligence at all.” Chepkevich, 2 A.3d at 1193. In Topp Copy Products

and Nissley, our Supreme Court and this Court held that exculpatory clauses

that did not reference negligence barred claims for damages caused by the

defendant’s negligence. Topp Copy Products, 626 A.2d at 99-101 & n.1;

Nissley, 913 A.2d at 888, 890-91.

None of the cases cited by Plaintiff support its contention that the

absence of the word negligence prevents the exculpatory clauses from barring

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Plaintiff’s property damage claims. Almost all of these cases2 involve

indemnification clauses, not exculpatory clauses. The lone case not involving

an indemnification clause, Dilks v. Flohr Chevrolet, Inc., 192 A.2d 682 (Pa.

1963), pre-dated our Supreme Court’s decision in Topp Copy Products and

involved contract language that expressly provided that negligence claims

were not included in its restriction on liability. Dilks, 192 A.2d at 684

(excluding liability for “damage by accidental fire or other casualty not

occurring through negligence of [Chevrolet] or those employed by or acting

for [Chevrolet] alone”) (brackets in original, emphasis omitted).

Plaintiff also asserts that two other provisions of the Lease, clauses

concerning maintenance and indemnification, prevent the exculpatory clauses

from barring its damages claims. These arguments are likewise without merit.

Contrary to Plaintiff’s contentions, construing the exculpatory clauses in

the Lease to bar its claims does not render the Lease’s maintenance clause

illusory. Regardless of whether Plaintiff can recover damages to its personal

property, the maintenance clause served the purpose of defining the parties’

maintenance obligations, making clear that the maintenance of the roof and

structure of the building were not Plaintiff’s responsibility, and gave Plaintiff

2 Brotherton Construction Co. v. Patterson-Emerson-Comstock, Inc., 178 A.2d 696 (Pa. 1962); Tidewater Field Warehouses, Inc. v. Fred Whitaker Co., 88 A.2d 796 (Pa. 1952); Perry v. Payne, 66 A. 553 (Pa. 1907); Urban Redevelopment Authority of Pittsburgh v. Noralco Corp., 422 A.2d 563 (Pa. Super. 1980); Krass Plus Clothiers, Inc. v. Church’s Fried Chicken, 26 Phila. Co. Rptr. 434 (C.P. 1993).

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the right to call on Landlord to make repairs to those parts of the building at

Landlord’s expense. Plaintiff admits that it did in fact call on Landlord to make

repairs to the roof and leaking pipe and that Landlord hired contractors to

make these repairs. Amended Complaint ¶¶11, 16, 23, 26-27, 38-39, 44.

The indemnity clause in the Lease provided that “Tenant agrees to

indemnify, hold harmless, and defend Landlord from and against any and all

losses, claims, liabilities, and expenses, including reasonable attorney fees, if

any, which Landlord may suffer or incur in connection with Tenant’s

possession, use or misuse of the Premises, except Landlord’s act or

negligence.” Lease at 3-4. This is a separate provision governing Plaintiff’s

liability to Landlord, not Landlord’s liability to Plaintiff, and therefore has no

effect on the exculpatory clauses that expressly limit Landlord’s liability.

Moreover, the fact that an indemnity clause elsewhere in the agreement may

contain different language from the agreement’s broad exculpatory language

does not negate the effect of the exculpatory clause or make it ambiguous.

Nissley, 913 A.2d at 891.

For the foregoing reasons, we conclude that Plaintiff’s insufficient Rule

1925(b) statement waived all issues in this appeal and that even if it had not,

the trial court did not err in granting summary judgment in Landlord’s favor

on the ground that Plaintiff’s claims were barred by the parties’ lease.

Accordingly, we affirm the trial court’s order.

Order affirmed.

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Judge Nichols joins this Opinion.

Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/22/2021

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