Weinkopff v. Mericle 100 Baltimore, LLC

21 Pa. D. & C.5th 360
CourtPennsylvania Court of Common Pleas, Lackawanna County
DecidedJanuary 11, 2011
Docketno. 08 CV 586
StatusPublished

This text of 21 Pa. D. & C.5th 360 (Weinkopff v. Mericle 100 Baltimore, LLC) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lackawanna County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Weinkopff v. Mericle 100 Baltimore, LLC, 21 Pa. D. & C.5th 360 (Pa. Super. Ct. 2011).

Opinion

NEALON, J.,

Defendant Mericle 100 Baltimore, LLC (“Mericle”) has filed a motion for summary judgment in this personal injury action arising out of a fall that occurred on water in the lobby of a commercial building owned and occupied by Mericle. Mericle seeks summary judgment based upon the language of a lease agreement between Mericle and its tenant, additional defendant RCN Telecom Services, Inc. (“RCN”), which was the employer of plaintiff Irene Weinkopff (“Weinkopff’) at the time of her fall. Mericle submits that the plain language of the lease agreement placed sole responsibility upon RCN for the maintenance of the lobby floor.

Summary judgment is appropriate only where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Barnish v. KWI Bldg., Co., 602 Pa. 402, 420, 980 A.2d 535, 546 (2009). The moving party bears the burden of proving the absence of a genuine issue of fact and its entitlement to judgment as a matter of [363]*363law. Stimmler v. Chestnut Hill Hospital, 602 Pa. 539, 554, 981 A.2d 145, 154 (2009). When considering a motion for summary judgment, the record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1179, 1175 n. 1 (Pa. 2010); Abrams v. Pneumo Abex Corp., 602 Pa. 627, 634-635, 981 A.2d 198, 203 (2009). “If there is evidence that would allow a fact-finder to render a verdict in favor of the non-moving party, then summary judgment should be denied.” Mull v. Ickes, 994 A.2d 1137, 1139-40 (Pa. Super. 2010); Kurowski v. Burroughs, 994 A.2d 611, 616 (Pa. Super. 2010).

On December 23, 1999, Mericle and RCN entered into a ten (10) year lease agreement with respect to the subject property. Paragraph 9(a) of the lease addresses RCN’s proportionate share of utility expenses, insurance costs and maintenance fees and states that “[ajnything contained in this lease to the contrary notwithstanding, [RCN] shall be responsible, at its sole cost and expense, for the cleaning of the leased premises” (Mericle-RCN lease agreement dated 12/23/99, p.9). The agreement defines the “leased premises” as “constituting the entire first (1st), second (2nd) and third (3rd) floors of the building (excluding the common areas hereinafter defined)...” {Id., p. 1). Although RCN did not lease the “common areas,” the agreement entitled them to the non-exclusive use of such common areas which “include any and all public access corridors... foyers and lobbies...” {Id., p. 2). Paragraph 9(a) further [364]*364provides that “[ajnything contained in this Lease to the contrary notwithstanding, [RCN’s] Proportionate Share of the costs and expenses attributable to snow removal only shall be grossed up to be that percentage derived by dividing the number of square feet of space contained in the leased premises by the total number of square feet of space in the building which is then being occupied by all tenants” (Id).

Paragraph 10 of the Mericle-RCN lease agreement is entitled “maintenance of leased premises; parking area, access area and common areas” and sets forth the responsibilities of Mericle and RCN with regard to those areas (Id., p.13). Paragraph 10(a) indicates that RCN is responsible for repairs to the leased premises (excluding structural repairs to the roof, foundation and outside walls and the base electrical, plumbing, HVAC and mechanical systems) and all removal of refuse from the leased premises (Id., pp. 13-14). Paragraph 10(b) addresses the maintenance obligations of Mericle, and in its original form read:

[Mericle] shall be responsible for the exterior landscape maintenance of the real property, the parking area and the access area... and snow and ice removal from the access area and the parking area; provided, however, [RCN] shall reimburse to [Mericle], its Proportionate share of all Grounds maintenance costs... incurred by [Mericle] with respect to the grounds maintenance and upkeep of the real property including, without limitation... snow and ice removal from all exterior portions of the building, including all sidewalks, [365]*365stairways, entrances and exits with respect to all areas of the building and the real property including, without limitation, the parking area, the access area and the common areas. (Id., p. 14).

On September 9, 2002, Mericle and RCN executed a “second amendment to agreement of lease” which amended certain provisions ofthe original lease. Paragraph 6 of the second amendment modifies paragraph 9(a) of the original lease and provides, inter alia, that “[RCN] shall be responsible at its sole cost and expense, for the cleaning of the leased premises and for the cleaning of the entire first three (3) floors of the building (including ALL lobbies and common areas thereto)” (Mericle-RCN second amendment, p.6) (emphasis in original). Thus, unlike the original lease which excluded the “common areas” from RCN’s “cleaning” responsibilities, the second amendment expanded RCN’s cleaning duties to expressly include the lobbies and common areas of the first three floors. Furthermore, paragraph 9 of the seond amendment amends paragraph 10(b) of the original lease to state that although Mericle remained responsible for “snow and ice removal from the access area and the parking area,” the “common areas” were no longer included among Mericle’s snow and ice removal duties and RCN became obligated to reimburse Mericle for “all grounds maintenance cost” rather than RCN’s proportionate share of those costs (Id, p. 11) (emphasis in original).

Examining the summary judgment materials in the light most favorable to Weinkopff the record reflects that on March 7, 2007, Weinkopff was employed by RCN [366]*366which leased office space in Mericle’s building. Due to active and ongoing inclement weather, the floor mats located at the entrance to the Mericle building had snow and ice present on them. As Weinlcopff walked across the first floor lobby area of the building en route to work at approximately 9:00 a.m., she slipped and fell on water which had originated from the snow and ice caused by the continuous precipitation that day.

Weinkopff instituted this litigation against Mericle and defendant Charles E. Petras d/b/a Charles E. Petras Landscape Design (“Petras”) who had been retained by Mericle to clear snow and ice from “all parking areas, access areas, walkways, steps, ramps, and all ingress and egress areas leading to and from the property and building” in question (See correspondence from Don Middleton to Charles E. Petras dated 11/13/06). Mericle joined RCN as an additional defendant and averred that the Mericle-RCN lease agreement obligated RCN to maintain the lobby and common areas free from liquid or other hazards.

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Bluebook (online)
21 Pa. D. & C.5th 360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weinkopff-v-mericle-100-baltimore-llc-pactcompllackaw-2011.