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
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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
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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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