author: POPOVICH, Judge. CERCONE, Judge, BECK, Judge,

text:
    640 A.2d 1358
    Shakeema FELTON, a Minor, by her Parent and Natural Guardian, Lucretia FELTON and Lucretia Felton in Her Own Right, Appellants, v. Jessie SPRATLEY, Executor of the Estate of Maria Spratley, A/K/A Marie Beatrice Taylor Spratley, a/k/a Marie Taylor Spratley and Mollucye Spratley Pearson, Executrix of the Estate of Marie Spratley, A/K/A Marie Beatrice Taylor Spratley, A/K/A Marie Taylor Spratley, Appellees.
    Superior Court of Pennsylvania.
    Submitted Nov. 22, 1993.
    Filed April 29, 1994.

      Edwin L. London, Philadelphia, for appellants.
    Josh M. Greenbaum, Philadelphia, for appellees.
    Before BECK, POPOVICH and CERCONE, JJ.
   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 for 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. 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 were 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 been 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 use” 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 the 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 appellees 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 should 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).

Based 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 (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. We are not persuaded to do so now.

If 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. Thus, absent any statute on the subject and the continued viability of Kobjeski, we will affirm the judgment in favor of the appellees. Cf. Dunson v. Friedlander 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.

CERCONE, J., joins and files a concurring opinion.

BECK, J., files a dissenting opinion.

CERCONE, Judge,

concurring.

I join the opinion of my colleague Judge Popovich and write separately merely to emphasize that the trial court correctly recognized that this case is governed by Kolojeski v. Deisher, Inc., 429 Pa. 191, 239 A.2d 329 (1968), wherein the Pennsylvania Supreme Court refused to impose an affirmative duty upon a landlord to inspect rental property for lead based paint contamination in the absence of a statutory requirement to do so. The Philadelphia ordinance applicable instantly imposes the duty on a landlord to correct any hazardous condition which has been identified by the Department of Public Health. See Philadelphia Municipal Code § 6-403(4)(b). However, the length of time within which the property’s owner must act is left to the discretion of the Department. Id. § 6-403(b)(b)(.1)(.a). In this case, the trial court found, and appellants concede, that the landlord had no actual knowledge of the lead based paint hazard in the demised premises prior to receiving notice to that effect from the Board of Health. The trial court further determined that defendants/appellees acted in compliance with the Philadelphia ordinance and corrected the lead based paint hazard within thirty days after receiving actual notice of the problem. The question of whether, under these circumstances, the Kolojeski rule should be expanded to impose liability for the landlord’s alleged “constructive knowledge” of the hazardous condition must be left to our Supreme Court for resolution.

BECK, Judge,

dissenting.

I dissent.

In Kolojeski v. John Deisher, Inc., 429 Pa. 191, 239 A.2d 329 (1968), the supreme court decided that a landlord could not be held liable for his tenant’s lead paint induced injuries, where the landlord had no prior actual or constructive notice of the dangerous condition. In doing so, the court stated that “[w]ere we to conclude otherwise, we would be required to ascribe to [the defendant-lessors] a knowledge and expertise not ascribable, at least at the time of this incident, to people without special training or experience.” 429 Pa. at 195, 239 A.2d at 330-31 (emphasis added).

The Kolojeskis’ child died from' lead paint poisoning almost thirty years ago, in 1966. Id. at 193, 239 A.2d at 330. The Kolojeski court left the door open for the possibility that, at some point in the future, the knowledge of the dangers of lead paint poisoning indeed would be “ascribable ... to people without special training and experience.” Id. at 195, 239 A.2d at 331.

The trial court, although constrained by the holding in Kolojeski, obviously thought that this issue should be revisited:

[S]ince the 1968 decision the whole world has become aware of the dangers of lead paint as a matter of common knowledge and the courts can’t say we don’t know anything about that, especially a judge sitting in code enforcement court knowing that you can close down a place for lead paint violations.

R. 123a. After granting summary judgment against the plaintiffs, the trial judge frankly urged them to file an appeal so that an appellate court would have the opportunity to review the matter. R. 134a.

The lessor in this case purchased the subject property in 1964. Shakeema Felton’s grandmother rented the premises in 1986, and the child’s exposure to the lead paint on its walls apparently occurred around May 1989. After the lead poisoning was diagnosed, the City of Philadelphia tested the leased premises, and the presence of lead was detected; the lead paint then was removed.

The parties have conceded that the defendant-lessor did not have actual notice of the presence of lead-based paint on the property. However, even the Kolojeski court, in 1968, could take judicial notice “that the use of such paint is common and widespread.” Id. at 195, 239 A.2d at 331. Moreover, as early as 1966, the City of Philadelphia had recognized the dangers of lead based paint. Philadelphia Code § 6-403. The current ordinance provides that:

No person shall permit lead based coating to remain on any toy, furniture, food utensil, household product or the exteri- or or interior surfaces, fixtures or appurtenances of any dwelling, rooming house, dwelling unit, rooming unit, institution or similar type facility where the surface may be readily accessible to children under the age of six years and where the Department [of Public Health] determines that the presence of lead based coating creates a health hazard to children under the age of six.

Philadelphia Code § 6-403(2)(d) (as amended 1977). The same ordinance provides a procedure through which the “Department of Public Health, upon application by any owner or person in control of a premises, shall test or cause to be tested said premises to determine the presence of lead based coating.” § 6-403(4)(a). The existence of a similar ordinance previously has led to a finding that the defendant lessor “should have known that the paint on the walls of [plaintiff’s] apartment contained lead which might be harmful to the occupants of the apartment.” Acosta v. Irdank Realty Corp., 38 Misc.2d 859, 238 N.Y.S.2d 713, 714 (1963).

In addition, by 1970, the Federal government had enacted the Lead-Based Paint Poisoning Prevention Act (42 U.S.C. § 4821 et seq.). At least part of the Act’s purpose was to increase public awareness of the dangers of lead paint poisoning. Senate Report No. 91-1432, U.S.Code Cong. & Admin.News p. 6130 (December 17, 30, 1970).

I believe that by the time the incidents in this action took place, the defendant-lessor had reason to know of the existence and dangers of lead-based paint in residential spaces, especially where there are young children present. Section 358 of the Restatement (Second) of Torts, provides in pertinent part:

(1) A lessor of land who conceals or fails to disclose to his lessee any condition, whether natural or artificial, which involves unreasonable risk of physical harm to persons on the land, is subject to liability to the lessee and others upon the land with the consent of the lessee or his sublessee for physical harm caused by the condition after the lessee has taken possession, if
(a) the lessee does not know or have reason to know of the condition or the risk involved, and
(b) the lessor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to expect that the lessee will not discover the condition or realize the risk.

Restatement (Second) of Torts § 358(1). The comment to § 358 explains that constructive knowledge of a dangerous condition should be imputed to the lessor when “he has information from which a person of reasonable intelligence, or of his own superior intelligence, would infer that the condition exists ... and in addition would realize that its existence will involve an unreasonable risk of physical harm.” § 358 comment b. “It is enough that [the defendant] had reason to know.” Id.

The increased general awareness of the dangers of lead paint poisoning gives rise to a certain duty on the part of a lessor. The need to impose such a duty is even more compelling when we consider the foreseeability of injury to young children when lead paint chips are accessible. See Norwood v. Lazarus, 634 S.W.2d 584, 587 (Mo.App.1982) (“It is well known that children of tender years have a proclivity to put anything they can get into their hands into their mouths.”); Acosta v. Irdank Realty Corp., 38 Misc.2d at 860, 238 N.Y.S.2d at 714 (“That small children go around the house picking up everything within their reach and placing it in their mouths and attempting to eat it is well known.”).

It is not unreasonable to expect that by 1989, when Shakeema Felton was injured by the lead-based paint in the appellee’s property, a lessor should have been sufficiently aware of the existence and dangers of lead-based paint to at least have the premises tested. Furthermore, in the event that reasonable testing efforts are made, and lead paint is discovered, the condition should be abated. I believe that a landlord, who rents property for profit, owes the duty of testing and abatement to his or her tenants.

The majority presumes that imputing this awareness to landlords automatically leads to strict liability of defendant-lessors whenever lead paint-related injuries occur. I disagree. Defendant-lessors should be permitted to proffer evidence that they caused the subject premises to be tested for lead-based paint after they came into possession, and corrected any defects discovered. If, at that time, the property was pronounced to be lead-free, evidence to that effect also would be probative. In addition, the lessor could prove that where lead paint once was removed, all subsequent coats of paint had no more than the legally permissible levels of lead.

Finally, the majority makes the point that, in the event that a lessor is held to have constructive knowledge of the existence and dangers of lead paint, the tenant also must be held to have such knowledge. Majority Opinion at 488. I do not think that a lessee of residential premises should be held to the same standard as a landlord, who essentially is in the property rental business. The lessor usually has more control over the risk-creating defect than does the lessee, and if this is not so in a particular case, the lessor may defend on such grounds. Although some measure of comparative negligence may be applicable under certain circumstances, it is my opinion that a lessee should be entitled to assume that a lessor, by this point in time, would have discovered and abated any lead-related defects that may have existed on the property. Where, as in this case, a child has been injured by the consumption of lead paint chips which have been allowed by the lessor to remain on the property, a presumption of negligence should arise, and that presumption may be rebutted by evidence of the defendant-lessor’s reasonable efforts to discover and abate the dangerous condition.

I would reverse the grant of summary judgment, and require the defendant-lessor to put on proof of any reasonable effort made to discover and abate the lead-paint related defect.

      . Less than one month after the defendants were notified of the “chipping paint” the old paint was removed and the premises repainted.

      . See Acosta v. Irdank Realty Corp., 38 Misc.2d 859, 238 N.Y.S.2d 713 (1963), where the court found that the landlord, unlike the case here, had knowledge of the broken walls in the apartment rented to the minor-child’s parents containing lead-based paint, and, therefore, the defendant was negligent in failing to keep the premises in proper repair. In Garcia v. Jiminez, 127 Ill.2d 615, 136 Ill.Dec. 585, 545 N.E.2d 109 (1989), the plaintiff proved that the premises contained lead-based paint, thus establishing the existence of a dangerous condition, and the defendant denied actual or constructive knowledge of the condition. The jury found in favor of the defendant. On appeal, the judgment in favor of the defendant was upheld and the court refused to impose a form of strict liability on landlords whose property contained lead-based paint, as is being attempted by the plaintiffs here with the endorsement of a constructive notice approach found wanting by this Court.
      Next, the case of Tillman v. Johnson, 612 So.2d 70 (La.1993), dealt with a reversal of a motion for summaty judgment in favor of the defendants. The court ruled that a genuine issue of material fact existed as to whether the lead-based paint on the defendants’ properties presented an unreasonable risk of harm to the plaintiff’s minor-child for purposes of strict liability under La.Civ.Code art. 2317. Similarly, in Hardy v. Griffith, 41 Conn.Sup. 283, 569 A.2d 49 (1989), the court held that the defendants breached a state statute and local ordinance requiring that paint in premises which did not conform with federal standards shall render the dwelling unit unfit for human habitation. Also, the general state statute (§ 47a-7(a)(2)) imposed an affirmative duty upon the landlords to make all repairs to keep premises in a fit and habitable condition and a violation of the ordinance, for the protection of the public, was construed as negligence as a matter of law.
      No similar pieces of legislation exist in Pennsylvania, and we are not ready to adopt a strict liability approach in lead-based cases concerning landlords and tenants.
      The appellants also cite Norwood v. Lazarus, 634 S.W.2d 584 (Mo.App.1982): the plaintiffs’ award of damages for their child’s ingestion of lead-based paint in different rental apartments owned by the defendants (Lazarus & Bukovich) was upheld, for in the case of the former defendant it was concluded that he had knowledge of the lead-based paint. As for the co-defendant Bukovich, despite his denial of actual or constructive knowledge that there was lead paint on the premises and it flaked, the evidence was held by the court to be sufficient to warrant a finding that there was lead base paint on the porch and that it flaked and was ingested by the child and that Bukovich, who saw to the purchase of the paint, knew or should have known of the presence of lead paint.
      Lastly, our own search has produced the case of Underwood v. Risman, 414 Mass. 96, 605 N.E.2d 832 (1993), wherein the judgment in favor of the plaintiffs was reversed for the defendant was not subject to liability under a state statute for not disclosing the possibility of lead-based paint in a residential dwelling to childless prospective tenants.
      Although liability would attach under the statute for nondisclosure of the hazards associated with lead-based paint, the court refused to impose liability for nondisclosure of a fact not known to the person against whom liability is sought. Which is the case instantly.
      Additionally, unlike the cases reproduced supra, we have neither a statute nor knowledge on the part of the landlord warranting the attachment of liability for the plaintiff-child’s ingestion of lead base paint, let alone creating a strict liability standard of care in landlord-tenant scenarios where lead-based paint has been ingested by a child.

      . Even so, a review of the federal legislation discloses that it was not until 1992 that more aggressive steps were implemented to inspect and remove lead-based paint from residential properties, and, then, it was restricted to the federal government’s involvement as either refurbishing agent or initial contractor. No effort has been made to address the problem of lead-based paint in the private sector.

      . Given our ruling on the initial issue, we do not deem it necessary to respond to the appellants’ second question of: "Whether the Court should take notice of the widespread knowledge of the dangers of lead based paint, especially in dwellings where there are young children.” The matter is rendered moot under Kolojeski, supra.
      Likewise, in regard to the third claim proffered by the appellants’; to-wit: “Whether the implied warranty of habitability holds the landlord strictly liable, based upon constructive notice, for the continued existence of lead-based paint upon the premises which lead paint caused injury to children residing therein[?]”, we find that the appellants failure to list such a theory of recovery anywhere in their complaint renders the matter waived. Even if, arguendo, we were to find the matter preserved, the appellants would not prevail given that a breach of implied warranty of habitability requires a tenant to prove he or she gave notice to the landlord of a defect or condition, that the landlord had reasonable opportunity to make necessary repairs, and that the landlord failed to do so. See Pugh v. Holmes, 486 Pa. 272, 405 A.2d 897 (1979).
      Inasmuch as the appellants conceded not giving the appellees notice of the peeling paint until after the minor-child’s illness, the element of notice, needed to have a cause of action based on implied warranty of habitability, is missing and with that the assignment of liability to the defendants would be unwarranted. Id.

      . We would pose the question to the appellants: "You seem to hold the appellees liable for the ingestion of paint chips by your child on a theory of 'constructive notice,' assuming that the information was so widespread on the dangers of lead-based paint as to place them on notice of the dangers of the paint?” Would not this wealth of information have been just as available to you so as to ask the landlord to inspect the premises for lead-based paint?
      We believe that one may not hold a landlord accountable without questioning the knowledge on the part of the tenants of the lead-based paint problem, if we were to embrace the “constructive notice” argument of the appellants which we are not ready to do at this point in time.

      . The majority make much of the fact that this code section, though apparently enacted in 1966, was not discussed in the Kolojeski decision. However, we note that the current language of § 6-403(2)(d) was not passed until 1977. The relevant code section, as enacted on March 11, 1966, read only as follows:
      (2) Prohibited Conduct.
      (a) No person shall apply lead paint to toys, furniture or the interior surfaces of any dwelling, rooming house, dwelling unit, rooming unit or facility occupied or used by children.
      (b) No persons shall sell, transfer or deliver toys or furniture to which lead paint has been applied.
      Philadelphia Code § 6-403(2). It may well be that the code section was inapplicable to the facts in Kolojeski, or even that the ordinance was too new to be considered by the court.
      Nonetheless, the issue is not whether the lessor should be held liable for a violation of the ordinance, but that its existence shows that the lessor should have known that the presence of lead was dangerous, and therefore prohibited by law.

      . Although the Act was aimed at federally-funded housing, its enactment indicates that the problems associated with lead-based paint poisoning were widespread and required national and local attention.

      . This reasoning is not unlike that behind the "attractive nuisance" doctrine, which provides that a possessor of land is liable for "bodily harm to trespassing children of tender years caused by a structure or other artificial condition” maintained on the land, which the possessor knows or should know that children, “because of their natural impulses and instincts,” are "likely to trespass upon without discovering the condition or realizing the risk involved,” and where the utility of maintaining the condition is slight compared with the risk to the children. Krepcho v. Erie, 145 Pa.Super. 417, 420, 21 A.2d 461 (1941). See also Restatement (Second) of Torts § 339, "Artificial Conditions Highly Dangerous to Trespassing Children” (1965) (requiring also that possessor of land exercise reasonable care to eliminate the danger or otherwise protect the children); Jesko v. Turk, 421 Pa. 434, 219 A.2d 591 (1966) (adopting Restatement § 339).

      . Professor Keeton has described a growing "[djiscontent with the appearance of unfairness in the landlord’s general immunity from tort liability,” and an increasing willingness by some courts to impose on the lessor a general tort duty of reasonable care. Prosser and Keeton on The Law of Torts § 63, p. 446 (5th Ed. 1984).


source: Caselaw Access Project

author: HOFFMAN, Judge. POPOVICH, Judge,

license: Public Domain

text:
    640 A.2d 1368
    COMMONWEALTH of Pennsylvania v. Ronald STANSBURY, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 17, 1994.
    Filed May 2, 1994.

      Patrick J. Connors, Asst. Public Defender, Media, for appellant.
    Louis G. Steiss, Asst. Dist. Atty., Media, for Com., appellee.
    Before BECK, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge.

This is an appeal from judgment of sentence for rape and related offenses. Appellant, Ronald Stansbury, presents the following questions for our review:

I. WHETHER THE TRIAL COURT ERRED WHEN IT REFUSED TO PERMIT APPELLANT TO INTRODUCE EVIDENCE THAT PUBIC HAIRS WHICH DID NOT BELONG TO EITHER THE VICTIM OR APPELLANT WERE FOUND ON THE VICTIM’S CLOTHING.
II. WHETHER THE TRIAL COURT ERRED WHEN IT PERMITTED THE COMMONWEALTH TO INTRODUCE EVIDENCE OF CERTAIN ALLEGED PRIOR UNCHARGED CRIMINAL ACTIVITIES OF APPELLANT.

Appellant’s Brief at 4. For the reasons set forth below, we affirm.

The relevant facts, as set forth by the trial court, are as follows:

The record reveals that [appellant] first came into contact with the police as a result of an investigation carried out by Detective Kathryn Smith of the Delaware County Criminal Investigation Division and Detective Sergeant Robert Miazza of the Chester Police Department. The detectives were investigating an alleged rape.
On March 19, 1991, the victim presented herself to the Crozer-Chester Medical Center Emergency Room with a complaint of being raped by her uncle[, appellant,] at approximately 4:00 a.m. that same day. A Rape Kit analysis was performed by hospital personnel. The victim, accompanied by a representative from the sexual abuse unit, was interviewed by Thomas Scarpatto of the Chester Township Police department. The information obtained as a result of the interview was relayed to Detectives Smith and Miazza, and an investigation ensued. The police were told that on March 19, 1991, between the hours of 3:00 a.m. and 4:00 a.m., the victim, a 16-year old minor at the time, was in the kitchen of her home preparing a bottle for her child. [Appellant], who lived in the basement of the victim’s home, entered the kitchen from the basement, clad only in his undergarment. [Appellant] approached the victim from the rear and proceeded to rub against the victim’s backside. The victim told him to stop. [Appellant] pursued his vulgar intention and again the victim told him to stop. Stansbury retreated to the basement and the victim went to her upstairs bedroom, removed her pants, shut the door and went to bed.
Fifteen minutes later, [appellant] entered the victim’s room, sat on the bed, and began fondling the girl. She repeatedly told him to stop and tried to push him away. Despite her protestations and struggle, the victim was unable to prevent [appellant] from pursuing his desires. He forcibly raped the victim. After a few moments, [appellant] withdrew, and left her bedroom. It was discovered that this was not the ■first time [appellant] has sexually abused his niece. It was only one incident out of several since the victim had been in the third grade. On April 2, 1991, Detective Smith went to interview [appellant] in regard to the allegations at his residence. Detective Smith did not intend to make an arrest at that time. Smith, along with another officer, was freely admitted into the residence, and [appellant] agreed to speak to them. No guns or force were displayed. Both officers were in plain clothes. [Appellant’s] movement was not restricted and he could have ended the interview at any time.
[Appellant] initially denied any sexual contact with the victim. Detective Smith didn’t feel [appellant] was being truthful, and decided to employ deception to see how [appellant] would respond. The detective told [appellant] that his semen had been found on the victim’s panties. Upon hearing this, [appellant] revealed that he had in fact had sexual contact with the victim, but that it had occurred entirely in the kitchen and that it was consensual. This statement was reduced to writing and signed by [appellant] and Detective Smith. The entire interview lasted approximately one hour and the detective left the residence. On April 10, 1991, [appellant] was arrested for the rape of the victim.

Trial Court Opinion, November 19, 1993, at 2-4.

A jury trial was held on November 19, 20 and 21, 1991. On November 21, 1991, appellant was found guilty of rape, involuntary deviate sexual intercourse, aggravated abuse and assault, corrupting the morals of a minor and indecent assault. Post-verdict motions were timely filed and denied. On May 7, 1993, appellant was sentenced to serve a term of forty-to-one-hundred-and-twenty-months imprisonment on the charge of rape and to pay a fine in the amount of three-hundred dollars plus the cost of prosecution. This timely appeal followed.

Appellant first contends that the trial court erred in failing to permit appellant to introduce evidence that pubic hairs which did not belong to either the victim or appellant were found on the victim’s clothing. We disagree.

Immediately after the sexual assault, vaginal and cervical smears were taken from the victim which revealed the presence of semen. In addition, the panties worn by the victim at the time of her sexual assault were examined and found to contain traces of seminal fluid and two pubic hairs. The blood type of the male who emitted the semen could not be determined. However, the two pubic hairs did not belong to either appellant or the victim. While the trial court allowed introduction of the semen as evidence of intercourse at the time of the rape, evidence of the pubic hairs was excluded. Specifically, the trial court held that as the presence of a third party’s pubic hairs is evidence only of the victim’s prior sexual conduct, it would improperly prejudice the victim and should be excluded.

In granting the Commonwealth’s motion in limine to exclude the testimony regarding the pubic hairs, the trial court relied upon Pennsylvania’s Rape Shield Law, which provides as follows:

(a) General rule. — Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter____

18 Pa.C.S. § 3104.

However, in Commonwealth v. Majorana, 503 Pa. 602, 470 A.2d 80 (1983), our Supreme Court noted an exception to the Rape Shield Law:

We do not believe the legislature intended to prohibit relevant evidence which directly negates the act of intercourse with which a defendant is charged. Where, as here, a defendant offers evidence of intercourse close enough in time to the act with which he is charged that it is relevant to explain the presence of objective signs of intercourse, the protections afforded to the complainant by the Rape Shield Law do not apply.

Id. at 611, 470 A.2d at 84.

For this exception to apply, the defendant must first make a specific proffer to the court of exactly what evidence he seeks to admit and precisely why it is relevant to his defense. Once the appropriate proffer has been made, “the court must then undertake a three part analysis of the substance of the proffer. At the trial level, the court must conduct an in camera hearing at which they must determine: 1) whether the proffered evidence is relevant to the defense at trial; 2) whether the proffered evidence is cumulative of evidence otherwise admissible at trial; and 3) whether the proffered evidence is more probative than prejudicial.” Commonwealth v. Wall, 413 Pa.Super. 599, 615, 606 A.2d 449, 457 (1992) (citations omitted), appeal denied, 532 Pa. 645, 614 A.2d 1142 (1992). Such a determination by the trial court “must be offered due deference and overturned only where there has been an abuse of discretion.” Id. With this standard of review in mind, we will proceed with the merits of appellant’s claim.

In the instant action, although we do not have a complete transcription of the notes of testimony from the trial court’s in camera hearing regarding appellant’s proffer, from the trial court’s opinion it is clear that appellant has made a sufficient proffer of evidence. We must now ascertain the substance of appellant’s proffer.

“Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable, or supports a reasonable inference or presumption regarding the existence of a material fact.” Commonwealth v. Spiewak, 533 Pa. 1, 8, 617 A.2d 696, 699 (1992) (citation omitted). Clearly, the presence of a third party’s pubic hairs on the victim’s panties implies that the victim had sexual relations with that third party. From this, one could infer that the semen present on the victim’s panties and in her vagina was the third party’s and, therefore, that the victim had intercourse with the third party rather than appellant. Accordingly, we find that the evidence of the pubic hairs is relevant to appellant’s defense. Moreover, as there was no other evidence that the victim had sexual relations with a third party on the night in question, the evidence of the pubic hairs would be non-cumulative. Hence, our final determination is whether the probative value of the evidence sufficiently outweighs its prejudicial effect.

In the instant matter, the Commonwealth supported its case with corroborated testimony from both the victim and appellant. At trial, the victim testified that appellant raped her in her bedroom on March 19, 1991, between the hours of 3:00 a.m. and 4:00 a.m. This testimony was supported by appellant’s confession to Detective Kathryn Smith of Delaware County Criminal Investigation Division that he had sexual intercourse with the victim at the time of her rape. N.T. at 188. The victim’s testimony was also corroborated by the introduction of the victim’s panties which were torn and contained semen, as well as the results of an examination of the victim which demonstrated that she had recently had intercourse. In addition, the victim stated that the instant assault had been the latest in a series sexual assaults which had been occurring since she was ten years old. N.T. 38-42. This testimony was corroborated by the testimony of Officer Joseph Hampel of the Chester Police Department who stated that in 1985, the victim had reported two sexual assaults by appellant.

As mentioned above, evidence of the third party’s pubic hairs would be relevant to dispel the implication that the semen found on the victim was appellant’s and, consequently, could show that the third party, rather than appellant, had intercourse with the victim. At first glance, it would appear that appellant’s interest in producing such evidence is paramount to the victim’s interest in excluding it. However, in a statement made to the Chester Police, appellant admitted that he did engage in sexual intercourse with appellant. In light of this confession, the prejudice suffered by appellant from the exclusion of the evidence of the pubic hairs was slight.

Moreover, to the extent that the evidence demonstrates that the semen found on the victim was the result of intercourse with a third party rather than appellant, it is minimally persuasive. We first note that the mere presence of these pubic hairs in the victim’s panties does not necessarily show that there was actual intercourse or ejaculation resulting from the victim’s sexual activity with the third party. Moreover, there is no indication that the victim’s sexual relations with the third party were contemporaneous with the rape. Under these circumstances, it is clear that evidence of the pubic hairs is of limited probative value. Accordingly, after a careful review of the record, we find that the trial court did not abuse its discretion in finding the evidence of the pubic hairs insufficiently probative to overcome its attendant prejudice to the victim.

Appellant next contends that the trial court erred in permitting the Commonwealth to introduce evidence of prior uncharged criminal activities of appellant. We disagree.

In Commonwealth v. Frank, 395 Pa.Super. 412, 577 A.2d 609 (1990), appeal denied, 526 Pa. 629, 584 A.2d 312 (1990), this court stated:

One of our most fundamental and prized principles in the administration of criminal law is that a distinct crime, except under special circumstances, cannot be given in evidence against a defendant who is being charged for another crime. This is because the fact that a person has committed one offense is not proof that he has committed another and because the effect of the testimony on the jury is nevertheless bound to create prejudice and an emotional reaction on their part against the defendant.

Id. 395 Pa.Super. at 418, 577 A.2d at 612 (quoting Commonwealth v. Burdell, 380 Pa. 43, 47, 110 A.2d 193, 195 (1955)).

One exception to this general principle exists where the prior criminal acts are “part of the history of the event on trial or part of the natural development of the facts.” Commonwealth v. Brown, 462 Pa. 578, 591, 342 A.2d 84, 90 (1975) (quoting Commonwealth v. Williams, 307 Pa. 134, 148, 160 A. 602, 607 (1932)). Here, the victim testified that the instant sexual assault arose out of numerous previous sexual assaults by appellant which had been occurring for the past seven years. These prior sexual assaults occurred under similar circumstances and were clearly of the same type and nature as the instant assault. Accordingly, we agree with the trial court that the previous assaults by appellant upon the victim were part of the history of the instant assault and, therefore, the trial court’s admission of evidence of these assaults was proper.

Judgment of sentence affirmed.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

I must respectfully dissent from the majority’s determination that the lower court properly excluded evidence of the pubic hairs which were found in the victim’s underwear and which did not match those of either appellant or the victim on the basis of the Rape Shield Law, 18 Pa.C.S.A. § 3104. Rather, I would permit the appellant to offer the pubic hairs into evidence.

In Commonwealth v. Wall, 413 Pa.Super. 599, 606 A.2d 449 (1992), this court set forth the procedure to be employed when a defendant seeks to introduce evidence which facially violates the Rape Shield Law, as follows:

The process begins with the defendant submitting a specific proffer to the court of exactly what evidence he or she seeks to admit and precisely why it is relevant to the defense. This procedure forces the defendant to frame the precise issues and interests involved, and prevents him or her from embarking upon “fishing expedition style intrusions on Rape Shield Law protections.” Where the proffer is but vague and conjectural, evidence of the victim’s past sexual conduct will be excluded and no further inquiry need be entertained.
Where the proffer is sufficiently specific, the court must then undertake a three part analysis of the substance of the proffer. At the trial level, the court must conduct an in camera hearing at which they must determine: 1) whether the proffered evidence is relevant to the defense at trial; 2) whether the proffered evidence is cumulative of evidence otherwise admissible at trial; and 3) whether the proffered evidence is more probative than prejudicial. On appeal, such evidentiary rulings must be offered due deference and overturned only where there has been an abuse of discretion. Where, however, the proffered evidence excluded by the Rape Shield Law is relevant, non-cumulative, and more probative of the defense than prejudicial [to the victim], it must be admitted.

Wall, 606 A.2d at 457 (Citations omitted).

Instantly, I agree with the majority that appellant has made a specific proffer regarding the pubic hairs and that evidence of the pubic hairs is relevant to the defense and non-cumulative. However, I disagree with the majority’s conclusion that the probative value of the pubic hairs is outweighed by their prejudicial effect upon the victim.

At trial, appellant admitted having a sexual encounter with the victim in the kitchen on the night in question during which he ejaculated. However, he denied having intercourse with the victim. Although prior to his arrest appellant told the police that he engaged in intercourse with the victim in the kitchen, appellant testified that the statement was incorrect and the product of police trickery. It should be noted that even in appellant’s statement to the police, he denied having ejaculated inside the victim’s vagina. Given the fact that the authorities were unable to match the semen samples found in the victim’s vagina and on her panties to appellant, the pubic hairs were crucial to appellant’s defense.

Certainly, the presence of the foreign pubic hairs in the victim’s underwear proximate in time to the alleged rape combined with the prosecution’s inability to match the semen samples to appellant and the dearth of evidence of trauma to the victim’s person could create reasonable doubt in the mind of the jurors that appellant raped the victim. Further, I do no think that evidence of the pubic hairs were unduly prejudicial to the victim, since other evidence of her prior sexual conduct was admitted into evidence without objection, i.e., appellant testified that the victim was in the kitchen fixing a bottle for her daughter when the original incident took place. N.T., 5/20/91, p. 227.

Accordingly, I would find that the lower court abused its discretion in refusing admission of the pubic hairs, and I would remand this case for a new trial.

      . The remaining counts merged with the count of rape for sentencing purposes.

      . Specifically, the trial court states that as part of his proffer, appellant requested introduction of the pubic hairs to demonstrate that the semen present in the victim's vagina as well as the semen present on the victim’s panties was not his.

      . At trial, appellant again admitted to having sexual relations with the victim. However, this time he stated that there was no penetration.

      . I note that the police did not even attempt to examine the victim’s panties for the presence of semen and match any sample found to that of appellant until June 6, 1991, almost three months after the incident. Further, there is no evidence that the police ever attempted to match the sperm samples taken from the victim’s vagina to appellant.


author: OLSZEWSKI, Judge:

text:
    641 A.2d 315
    FOX PARK CORPORATION, General Interiors Construction Company, Inc., Herbert Holland and Annie Holland, v. JAMES LEASING CORP., Formerly Known As James Flowers, Inc., Frankford Concrete Company, Inc., Standard Builders, Inc., The Peltz Company, Reliance Security Service Inc., and Bach Security Systems, Inc., v. ROBINSON ALARM COMPANY, Ivan Blitz t/a Ivan Blitz Group, Steven J. Helzner, P.E. LIONEL LEISURE, INC., d/b/a Kiddie City, v. JAMES LEASING CORP., Formerly Known As James Flowers, Inc., Frankford Concrete Co., Inc., Fire Protection Inc., Reliance Security Systems, Inc., and Bach Security Systems, Inc. v. FOX PARK CORPORATION, Carpet Warehouse, Inc., Morton Floor Covering Co., Robinson Alarm Co., Ivan Blitz, t/a The Blitz Group, Steven J. Helzner, P.C. LIONEL LEISURE, INC., d/b/a Kiddie City, v. Ivan BLITZ t/a The Blitz Group and Steven J. Helzner, v. JAMES LEASING CORP., Formerly Known As James Flowers, Inc., Frankford Concrete Company, Inc., Standard Builders, Inc., Peltz Fire Protection Inc. a/k/a The Peltz Company, Reliance Security Service, Inc., Bach Security Systems, Inc., Robinson Alarm Company and Fox Park Corporation, MERION FIRE COMPANY OF ARDMORE, v. FOX PARK CORPORATION, Lionel Leisure Inc., James Leasing Corp., Formerly Known As James Flowers Inc., Frankford Concrete Company Inc., Standard Builders Inc., The Peltz Company, Reliance Security Service Inc., Bach Security Systems Inc., Carpet Warehouse Outlet Inc., Ivan Blitz, Individually and t/a The Blitz Group, Stephen J. Helzner, Robinson Alarm Company, v. BOAS BOX COMPANY. BOAS BOX COMPANY, v. JAMES LEASING CORP., Formerly Known As James Flowers Inc., Frankford Concrete Company Inc., Standard Builders Inc., The Peltz Company and Peltz Fire Protection Inc., Reliance Security Service Inc., Bach Security Systems Inc., Ivan Blitz, i/t/a The Blitz Group, Steven J. Helzner, P.E., Morton Floor Covering Company, Inc., v. ROBINSON ALARM COMPANY, Fox Park Corporation. MORTON FLOOR COVERING CO., INC. d/b/a Carpet Warehouse Outlet v. JAMES LEASING CORP., f/k/a James Flowers Inc., Frankford Concrete Company Inc., Standard Builders Inc., The Peltz Fire Protection Company, Reliance Security Service Inc., Bach Security Service Inc., Ivan Blitz t/a The Blitz Group, Steven Helzner, P.E., Fox Park Corporation. COMMERCIAL UNION INSURANCE COMPANY as subrogee of Eleanor Dolan and Eleanor Dolan as Executrix of the Estate of John Dolan, t/a Dolan Electric, v. FOX PARK CORPORATION, James Leasing Corp. Formerly Known As James Flowers Inc., Frankford Concrete Company, Standard Builders Inc., Peltz Fire Protection Inc., Reliance Security Service Inc., Bach Security Systems Inc., Lionel Leisure Corp., t/a C.T. Corporation, Carpet Warehouse Inc., Morton Floor Covering Co., Robinson Alarm Company, Ivan Blitz t/a Ivan Blitz Group, Steven J. Helzner, P.E. Appeal of ROBINSON ALARM COMPANY.
    Superior Court of Pennsylvania.
    Submitted March 21, 1994.
    Filed May 3, 1994.

      Nancy Campbell, Ardmore, for appellant.
    Elaine M. Rinaldi, Philadelphia, for Fox Park and General Interiors, appellees.
    Rochelle M. Fedullo, Philadelphia, for Peltz, appellee.
    Leonard R. McMonigle, Jr., Philadelphia, for Reliance, appellee.
    Andrew N. Schwartz, Philadelphia, for Blitz, appellee.
    Saul H. Krenzel, Philadelphia, for Merion Fire, appellee.
    Angelo L. Scaricamazza, Jr., Philadelphia, C.T. Corp., appellee.
    Richard S. March, John C. Farrell and Edwin L. Scherlis, Philadelphia, for Boas Box, appellee.
    Harry J. Sher, Philadelphia, for participating party.
    Before ROWLEY, President Judge, and OLSZEWSKI and TAMILIA, JJ.
   OLSZEWSKI, Judge:

It is rare that a party appeals a trial court decision absolving it from liability. The Robinson Alarm Company, however, asks us to find it negligent and liable for certain damages caused by a fire in the Fox Park Complex of Ardmore, Pennsylvania. Robinson makes this strange request because it has already settled claims against it, and now seeks reimbursement from Fox Park Corporation, pursuant to their contract in which Fox Park agreed to indemnify Robinson Alarm for the latter’s negligence.

Fox Park owns the Fox Park Complex, a building with a number of commercial tenants. The building had an automatic sprinkler system installed. Fox Park engaged Robinson Alarm to install, maintain and operate a signaling system, which monitored and responded to fluctuations in the sprinkler system’s water supply, and performed other alarming functions. The sprinkler monitoring system required water in the sprinkler’s pipes to operate — it could not function if the sprinkler system was dry.

In April of 1988, Fox Park began renovations on its building, hiring Standard Builders as general contractor. By October, Standard had subbed out the excavation work to Frank-ford Concrete, which in turn hired James Flowers, Inc. to remove some concrete footers with a backhoe and piston ram. Although the excavators should have known the location of all utility lines, the backhoe struck and ruptured the building’s water main. Water had to be shut off, rendering both the sprinkler system and Robinson’s alarm system inoperable.

As fate would have it, a fire broke out a few days later. With the sprinkler system down, it caused much damage. Fox Park sued the various contractors and subcontractors; the building’s tenants joined in the litigation fiesta. Soon every entity involved was suing or being sued by someone else. Two of the building’s tenants, Lionel Leisure and Morton Floor Covering, had sued The Peltz Company, which was responsible for sprinkler repair. Peltz decided to join Robinson Alarm as an additional defendant before the two-year statute of limitations ran in Lionel Leisure’s case; in the Morton Floor Covering case, Peltz joined Robinson after the statute ran. By late 1990, the myriad lawsuits were consolidated for discovery and trial.

Robinson Alarm was not responsible for the sprinkler system, and nobody ever faulted its alarm system, which relied on a hydrated sprinkler system to be functional. Rather, Robinson happened to have a copy of the utility plan showing the location of the underground water main; if Robinson had produced this plan, perhaps the main never would have been ruptured and the fire would have caused minimal damage. But Robinson was never found to be negligent for failing to produce the plan, because it settled before trial with Lionel Leisure for $145,000 and with Morton Floors for $48,000. The issue of Robinson’s hypothetical liability never went to the jury. Hence, the record does not reveal if Robinson was under any duty to produce its copy of the utility plan, or even if it was asked to do so.

The jury eventually returned a verdict apportioning liability between Fox Park and Standard Builders. At the post-trial motions’ hearing, Robinson Alarm sought indemnification under its contract with Fox Park for the settlement money it paid to escape this litigation. The trial court denied Robinson’s motion, ruling that the indemnification clause in Robinson’s contract with Fox Park did not require Fox Park to reimburse Robinson. We agree.

In reviewing the trial court’s decision, we defer to its factual findings. Under the trial court’s findings, the only possible theory of liability for Robinson would have been negligence for failing to produce a copy of the utility plans. Trial court opinion 12/16/93 at 5; appellant’s brief at 15. The trial court did not determine whether Robinson was under any duty to produce these plans, but only stated that trial testimony on this issue differed. Id. If we could be certain that Robinson was not negligent for failing to produce the plans, our inquiry would end. Fox need not indemnify Robinson’s settlement payments if Robinson was never liable to anyone in the first place. See Martinique Shoes, Inc. v. New York Progressive Wood Heel Co., 207 Pa.Super. 404, 408, 217 A.2d 781, 783 (1966) (party which settles claims and then seeks indemnification must be able to prove its liability and the reasonableness of its settlement payments). Robinson could only blame itself for leaping to settle despite its own non-liability.

So like the trial court, we will suppose arguendo that Robinson was negligent. The question now becomes whether Fox Park is obliged to indemnify Robinson pursuant to their signaling system contract. This contract deals only with Robinson’s duty to install and maintain the signaling system; it requires Fox Park to maintain the underlying sprinkler system. It contains an indemnification clause of remarkable breadth:

[FOX PARK] agrees to indemnify ROBINSON and hold ROBINSON harmless from and against all claims, demands, liabilities, damages, losses, expenses and law suits which may be asserted against ROBINSON by any person not a party to this agreement for the installation, maintenance, operation or non-operation of the Signaling System or the sole or joint or several negligent conduct of ROBINSON or ROBINSON’s agents, servants or employees, including the payment of all damages, expenses, costs, or attorney’s fees, whether these claims, demands or law suits be based upon alleged sole, joint, or several active or passive negligence, or strict liability or product liability or any other theory of responsibility on the part of ROBINSON’s agents, servants, or employees.

R. 60 (emphasis added).

Taken literally, this clause would constitute a policy of comprehensive liability insurance, since it would require Fox Park to indemnify Robinson for any act of negligence whatsoever. Our law, however, requires us to narrowly interpret indemnity provisions, in light of the parties’ intentions as evidenced by the entire contract. First National Bank of Spring Mills v. Walker, 289 Pa. 252, 137 A. 257 (1927); Ruzzi v. Butler Petroleum Co., 527 Pa. 1, 588 A.2d 1 (1991).

The trial court concluded that this indemnity provision was so broad as to render it unenforceable. Trial court opinion 12/16/93 at 8; appellant’s brief at 18. We hesitate to go so far. It is precisely because courts so disfavor indemnity contracts that those who seek indemnity must draft broadly, lest our narrow interpretations deny them the sought-after indemnity. See Husak v. Berkel, 234 Pa.Super. 452, 341 A.2d 174 (1975). It would be capricious to only enforce those indemnity contracts which are drafted with just the right scope, and reject anything else that we feel is the slightest bit too narrow or too broad.

The trial court also held that if this indemnity provision were enforceable, it would not cover Robinson’s averred negligence in this case. The contract is entirely about the installation and maintenance of Robinson’s signaling system; the operation and maintenance of the sprinkler system is left to Fox Park. The contract by no means requires Robinson to produce a copy of the underground utility plans when asked, or implies the slightest obligation upon Robinson in connection with the water main which broke during excavation. Even if Robinson should have produced a utility plan before excavation began, Robinson’s failure to do so is well beyond the scope of this contract and, thus, cannot trigger Fox Park’s duty to indemnify Robinson under it. To hold otherwise would make Fox Park liable for any act of negligence by Robinson whatsoever, which our indemnification laws will not allow.

We therefore agree that the trial court properly denied Robinson’s motion for indemnification on this basis. Trial court opinion 12/16/98 at 9-10; appellant’s brief at 19-20.

Order affirmed.

TAMILIA, J., concurs in the result.


author: BECK, Judge.

text:
    641 A.2d 318
    COMMONWEALTH of Pennsylvania, v. Terrell NORM, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 17, 1994.
    Filed May 4, 1994.

      John W. Packel, Asst. Public Defender, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CIRILLO, BECK and JOHNSON, JJ.
   BECK, Judge.

The issue is whether the operation of an Agreement between the Philadelphia Public Defender and Court Administrator (the “Agreement”) affects the trial run date for purposes of Pa.R.Crim.P. 6013(g). The Agreement limits the number of felony waiver cases assigned to public defenders that may be listed in any one courtroom in a day. Rule 6013(g) requires that after trial in municipal court a defendant shall be brought to trial de novo in the court of common pleas within 90 days after filing a notice of appeal. We hold that delay in the scheduling of a trial date because of the Agreement is attributable to the defendant. Therefore, we affirm the trial court’s denial of appellant’s motion to dismiss.

Appellant was found guilty of theft in Philadelphia Municipal Court and appealed to the Court of Common Pleas for a trial de novo. After a bench trial he was found guilty and sentenced to one year probation. In his timely filed appeal to this court, he claims that the trial court erred in denying his motion to dismiss pursuant to Pa.R.Crim.P. 6013.

Appellant filed his notice of appeal from the Municipal Court to the Court of Common Pleas (“Notice”) on November 27, 1992. Under Rule 6013, the Commonwealth has 90 days after the filing of the Notice to bring appellant to trial. Appellant’s 6013 “run date” then, was February 25, 1993.

The record reflects that at the hearing on the motion to dismiss, Domenic Muraglia, Philadelphia Court of Common Pleas Trial Commissioner, was the primary witness. Mr. Muraglia testified to the following. Arraignment was scheduled for December 21,1992. On that date, the Commonwealth had not yet prepared the bills of information against appellant, officially charging him in Common Pleas Court. As a result, arraignment was scheduled for one week later, December 28, 1992. On that date, the Commonwealth still had not prepared the bills of information against appellant and so arraignment was continued an additional week to January 4, 1993. The bills were filed by the Commonwealth on December 30, 1992. However, on January 4,1993, the bills still were unavailable as they were not yet coded. Appellant’s arraignment was then scheduled for the following Monday, January 11, 1993.

On January 11 appellant was arraigned and given the earliest available trial date: March 11,1993. This date clearly is beyond the February 25, 1993 run date. On the day his trial was set to begin, March 11, 1993, appellant decided he wanted a trial by jury. Because of this change, appellant was given a trial date of April 19, 1993. On April 19, 1993, the trial court held a hearing on the motion to dismiss and the motion was denied. After the denial, appellant informed the court that he wished to waive his right to a jury trial. The following day, April 20, 1993, appellant was tried and found guilty by the court.

It is clear from the record that the delay between appellant’s initial trial date on March 11, 1993 and appellant’s trial on April 20, 1993 was due solely to appellant’s own requests. The Commonwealth was ready to proceed on the originally scheduled trial date. Appellant’s claim of error addresses only the delay between the date he filed his Notice, November 27, 1992, and the first scheduled trial date, March 11, 1993. We will review only that portion of delay to determine whether it was caused by the Commonwealth's lack of due diligence in bringing appellant to trial. In deciding whether appellant’s speedy trial claim has merit, we must assess the conduct of both the prosecution and the defense in light of the length of the delay, the reason for the delay, appellant’s assertion of the right and the prejudice to the defendant. Commonwealth v. Tilley, 528 Pa. 125, 595 A.2d 575, 580 (1991).

Mr. Muraglia explained why the March 11, 1993 date was given. As we discovered in Commonwealth v. Nesmith, 425 Pa.Super. 291, 624 A.2d 1078 (1993), the Philadelphia Office of the Public Defender has an Agreement with the Court Administrator’s Office to limit felony waiver cases handled by public defenders to eight (8) cases per courtroom per day. This Agreement, or some form thereof, has been in existence between these two parties since January of 1987. It is a written Agreement, the terms of which were reviewed by the trial judge in this case. The Philadelphia District Attorney is not a party to the Agreement and, apparently, decisions made in furtherance of the Agreement are not usually brought to the attention of, or sanctioned by, the trial judge presiding over a particular case.

Upon questioning by the assistant district attorney, Mr. Muraglia testified that on January 11, 1993, the day appellant was arraigned, he was not able to give appellant a date earlier than March 11, 1993 due to the terms of the Agreement. Mr. Muraglia explained that another defendant on the arraignment list that day, whose case was called six cases after appellant’s, received a trial date of February 16, 1993 because she was represented by private counsel and the eight (8) case cap did not apply to her.

In response to questioning by the trial judge, Mr. Muraglia explained that in implementing the terms of the agreement, no distinction is made between cases on appeal from Municipal Court (subject to an expedited run date of 90 days) and those originating in Common Pleas Court (subject to either a 180 day run date for incarcerated defendants or a 365 day run date for those on bail). Therefore, even if a Municipal Court appeal matter is approaching its run date, the terms of the Agreement will be enforced by the Court Administrator. Under cross-examination by appellant’s counsel, Mr. Muraglia testified that nothing other than the eight (8) case cap is considered when assigning a case the earliest possible trial date, including the availability of police witnesses.

In its brief in support of appellant, the Public Defender’s Office acknowledges the Agreement and insists that despite its terms, the Commonwealth still did not establish due diligence in bringing appellant to trial. As noted by the Public Defender’s Office and confirmed by Mr. Muraglia, if the Commonwealth had filed the bills of information prior to appellant’s original arraignment date on December 21, 1992, a trial date of February 3, 1993 could have been set.

While it is true that the bills were not prepared as of the first arraignment date, or the two that followed, the fact remains that as of the January 11, 1993 arraignment date, appellant could have been tried within the ninety (90) days required by the Rule if not for the Agreement between the Public Defender’s Office and the Court Administrator. Viewing the record so as to balance the conduct of both the prosecution and the defense, we cannot attribute the delay to the Commonwealth’s lack of due diligence.

The Public Defender’s Office insists that it should not be deemed unavailable simply because it has entered into an Agreement which ensures that its lawyers are adequately prepared. While we applaud the efforts of the Defender’s Office to control an admittedly burdensome caseload, we cannot assign to the Commonwealth responsibility for delays caused by the Agreement, particularly where its caseload is burdensome as well.

The Commonwealth insists that the Public Defender’s Office should not be permitted to bring speedy trial claims when its ex parte Agreement with the Court Administrator is the cause of the delay. We agree that appeals based on this issue must cease as they waste precious time and resources of both the court and counsel. Therefore, we hold that where a speedy trial violation occurs which otherwise would have been avoided if not for the Agreement, appellant cannot prevail on that issue. We emphasize the necessity that the delay be otherwise avoidable but for the Agreement.

Because the delay between the filing of the Notice and appellant’s first trial date was not the result of the Commonwealth’s lack of due diligence, we find that the trial court properly denied the motion to dismiss. Judgment of sentence affirmed.

      . The Rule provides in pertinent part:
      A trial de novo in the Court of Common Pleas shall commence within a period of ninety (90) days after the notice of appeal from the Municipal Court is filed. In all other respects the provisions of Rule 1100 shall apply to such trials in the Court of Common Pleas.
      Pa.R.Crim.P. 6013(g).

      . Apparently, after the Commonwealth files the bills, they are then “coded.” Mr. Muraglia explained that it takes at least three working days for the coding to take place. The Commonwealth filed the bills on Wednesday and arraignment was scheduled for the following Monday.

      . On February 9, 1993 appellant appeared at a status listing and, because he declined a plea offer made by the Commonwealth, his trial date remained the same.

      . Without the Agreement, cases typically do not exceed twelve (12) cases per courtroom per day.

      . Here that requirement clearly was met when Mr. Muraglia testified that if the Agreement was not in place, appellant could have been tried prior to the February 25, 1993 run date. This was proven by Mr. Muraglia's assigning an earlier trial date to a privately represented defendant on the same day appellant was assigned his date.