dissenting:
Unlike the Majority, my review of the record indicates that the court below was presented with sufficient information (absence of a genuine issue of material fact) to grant Hill Creek Farms, Inc.’s motion for summary judgment. Accordingly, for the reasons that follow, I respectfully dissent.
This case involves dual appeals (consolidated for disposition) taken from orders granting motions for summary judgment: The first is from the August 23, 1990, order entered against the plaintiff/appellant, Kevin Baesel; the second concerns the order dated December 31, 1990, issued against the defendant/appellant, Hill Creek Farm, Inc. In both instances, I would affirm.
In reviewing the grant of a motion for summary judgment, one looks to the following standard; to-wit:
[A mjotion for summary judgment may be granted only if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.Civ.P. 1035(b). In passing on a motion for summary judgment, this Court will view the record in the light most favorable to the *598nonmoving party. In doing so, we accept as true all well-pleaded facts in the appellants’ pleadings and give appellants the benefit of all reasonable inferences drawn therefrom. Summary judgment is appropriate only in those cases which are free from doubt.
Dublin v. Shuster, 410 Pa.Super. 1, 5, 598 A.2d 1296, 1298 (1991). The record discloses that a two-count complaint was filed against six named defendants, one of whom was Hill Creek Farms, Inc., for negligence in allegedly permitting the roof of a building in which the plaintiff was employed to remain in disrepair so as to allow water to leak therefrom onto the floor of the premises.
It was the plaintiff’s assertion that, while employed by New Boulevard Baking Co./lessee of the building, he sustained injury when he slipped and fell on a wet floor.
In the pleadings that followed, the appellant/Hill Creek Farms, Inc., the lessor of the property, claimed that it was insulated from liability as a “landlord out of possession.” And, more importantly, New Boulevard was charged with entering into an Agreement of Lease in which, at Section 5, it obligated itself (as the lessee) “to make all necessary structural and non-structural repairs, ordinary and extraordinary, foreseen or unforeseen, interior and exterior.” This was buttressed by way of affidavit given by Linda McNulty, the general manager of Hill Creek, who was familiar with lease agreements and all repairs or maintenance conducted by Hill Creek. Additionally, McNulty’s affidavit averred that Hill Creek did not affect any repairs or maintenance on the premises leased to New Boulevard Baking Co. Nor did Hill Creek represent that it would effect any repairs to the property. Paragraph 10.
Lastly, of interest to me is the Memorandum of Law filed by the plaintiff’s employer, New Boulevard Baking Co., in support of its own motion for summary judgment as a named co-defendant.
New Boulevard Baking Co. references Section 5 (captioned “Repairs & Maintenance”) as obligating itself “to make all necessary structural and non-structural repairs, *599ordinary and extraordinary, foreseen or unforeseen, interior and exterior.”
Moreover, in seeking to exclude its parent company (Co-Defendant Northeast Foods, Inc.) from liability to the plaintiff, New Boulevard argued:
The reason Northeast would have no factual liability as a matter of law is because ... Northeast’s subsidiary New Boulevard assumed all responsibilities for repairs and maintenance of the premises, including structural and non-structural repairs, ordinary and extraordinary, foreseen or unforeseen, interior and exterior. See Section 5 of the Lease Agreement, Exhibit “F”. [Emphasis added]
With the submission of the preceding Memorandum of Law, the pleadings came to a close. This was followed with an order and opinion granting Hill Creek’s motion for summary judgment on the basis that:
In the case at bar, Hill Creek was physically out of of possession of the bakery and never controlled or maintained it, during the eleven (11) years it was leased to Plaintiff’s employer, New Boulevard Baking Co., Inc. Hill Creek specifically provided in the lease with Plaintiff’s employer, New Boulevard, that the latter as the tenant would be responsible for making all repairs to the property. Hill Creek therefore was not only physically out of possession of the bakery, but additionally, granted its tenant complete control over the premises to effect interior and exterior repairs.
Lower Court Opinion at 2-3. A timely appeal followed in which the plaintiff challenged the grant of Hill Creek’s motion for summary judgment. In like fashion, the plaintiff’s employer’s motion for summary judgment was timely appealed by Hill Creek.
The first issue to be addressed relates to the plaintiff’s claim that Hill Creek was not a landlord completely “out of possession”. Rather, the plaintiff argues there was evidence that Hill Creek retained possession and control over the defective portion of the premises (i.e., the roof on which rested equipment damaged in a fire linked to the leak) *600through a combined reading of the “Utility Use Covenant”, which explicitly reserved control of all the utility areas in Hill Creek, and Sections 7 and 5 of the lease, in which Hill Creek agreed to supply all utilities necessary for the tenant’s use and “do all things necessary to cause such repairs and/or maintenance be accomplished____” See Plaintiff’s Appellate Brief at 20.
Let us assume, for the sake of argument, that the “Utility Use Covenant” and “Agreement of Lease” encompass the equipment on the roof of the leased premises such that Hill Creek could have been subject to maintain and repair the equipment. Nonetheless:
“ ‘It is ... settled law that an agreement to repair does not impose upon the owner a liability in tort at the suit of the tenant; and that occupation and control are not reserved to the owner by his agreement to repair.’ ”
Kolojeski v. John Deisher, Inc., 429 Pa. 191, 239 A.2d 329, 330 (1968) (Citation omitted). Therefore, the mere fact that Hill Creek may have agreed to make repairs to the leased building if the lessee failed to do so does not subject it to liability. Id.
Subpart B of the plaintiff’s first issue attempts to assign accountability to Hill Creek for the injuries incurred because it allegedly had notice of the condition (leaky roof), a duty to repair it and a reasonable opportunity to do so. This argument is undermined inasmuch as the “duty” made reference to by the plaintiff, to obligate supposedly Hill Creek to repair the roof, is voided by the fact that “[reservation by a lessor of the right to enter upon the leased premises ... implies no reservation of control over the premises which will render him chargeable with their maintenance and repair.” Henze v. Texaco, Inc., 352 Pa.Super. 538, 508 A.2d 1200, 1202 (1986). Since Hill Creek cannot be “charged” with maintenance of the demised premises, the underlying rationale (“obligation’Vduty) to do so is obviated. Id.
In Subpart C of the plaintiff’s first issue, he attempts to assign liability to Hill Creek as a landlord out of possession *601on the ground that the condition of the premises constituted a nuisance per se, i.e., because the roof allegedly leaked for over two years this gave rise to a duty on the part of Hill Creek to abate the nuisance by making the necessary repairs.
The plaintiff acknowledges that six exceptions exist to hold an out of possession landlord responsible for injuries suffered by an individual on leased premises; they are:
A landlord out of possession may incur liability (1) if he has reserved control over a defective portion of the demised premises ...; (2) if the demised premises are so dangerously constructed that the premises are a nuisance per se ...; (3) if the lessor has knowledge of a dangerous condition existing on the demised premises at the time of transferring possession and fails to disclose the condition to the lessee ...; (4) if the landlord leases the property for a purpose involving the admission of the public and he neglects to inspect for or repair dangerous conditions existing on the property before possession is transferred to the lessee ...; (5) if the lessor undertakes to repair the demised premises and negligently makes the repairs ... ; or (6) if the lessor fails to make repairs after being given notice of and a reasonable opportunity to remedy a dangerous condition existing on the leased premises____”
Henze, supra, 352 Pa.Super. at 541-42, 508 A.2d at 1202 (Citations omitted).
As conceded by the plaintiff, none of the preceding exceptions is applicable to the case at bar. His importuning that “the exceptions] should ... extend to situations where the landlord has actual knowledge of a dangerous condition, and knowledge that the tenant is not making an effort to cure it, thereby endangering third parties” is unpersuasive. The recourse in such a situation is against the lessee not the “out of possession” landlord. No case law has been cited to us by the plaintiff to convince us otherwise.
In the last of the plaintiffs contentions, he writes:
THE TRIAL COURT ERRED BY RULING ON HILL CREEK’S MOTION FOR SUMMARY JUDGMENT, DE*602SPITE PLAINTIFF’S REQUEST THAT THE COURT FORBEAR PENDING RECEIPT OF HILL CREEK’S ANSWERS TO INTERROGATORIES AND REQUESTS FOR DOCUMENTS
I disagree.
From my review of the record certified to this Court, as concerns the discovery process in this suit, plaintiff has directed approximately 1,380 interrogatories (including sub-parts) and two Requests for Production of Documents to Moving Defendants, all of which have been responded to by the parties. Therefore, the plaintiff cannot claim that he has not had sufficient opportunity to obtain information to present the best possible case to buttress his complaint. See also Memorandum of Law of New Boulevard Baking Co. (plaintiff’s employer) in support of its Motion For Summary Judgment at 8, n. 1.
Having reviewed the record against the backdrop of the applicable law, I find no merit to any of the plaintiff’s claims. Similarly, I hold that Hill Creek’s assault of the lower court’s entry of a motion for summary judgment in favor of the plaintiff’s employer (Boulevard Baking Co.) is moot given the fact that Hill Creek, having had its motion for summary judgment granted and affirmed on appeal, is not aggrieved by the dismissal of Boulevard Baking Co. from the lawsuit by means of the grant of its motion for summary judgment. Since it would no longer be a party to the suit upon the grant of its motion for summary judgment, it should not be heard to complain that the award of the same motion to the co-defendant/Boulevard Baking Co. is appealable.