Hailey, L. v. Baribault, J.

J-S37002-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LAMONT AND BARBARA HAILEY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOAN BARIBAULT AND SCOTT :
BARIBAULT, INDIVIDUALLY AND AS :
TRUSTEE FOR THE BARIKOE FAMILY : No. 412 EDA 2020
TRUST AND BANCROFT :
NEUROHEALTH :
:
:
APPEAL OF: JOAN BARIBAULT AND :
SCOTT BARIBAULT, INDIVIDUALLY :
AND AS TRUSTEE FOR THE BARIKOE

J-S37002-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 LAMONT AND BARBARA HAILEY                 :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 JOAN BARIBAULT AND SCOTT                  :
 BARIBAULT, INDIVIDUALLY AND AS            :
 TRUSTEE FOR THE BARIKOE FAMILY            :   No. 412 EDA 2020
 TRUST AND BANCROFT                        :
 NEUROHEALTH                               :
                                           :
                                           :
 APPEAL OF: JOAN BARIBAULT AND             :
 SCOTT BARIBAULT, INDIVIDUALLY             :
 AND AS TRUSTEE FOR THE BARIKOE            :
 FAMILY TRUST                              :

                Appeal from the Order Entered June 4, 2018
   In the Court of Common Pleas of Montgomery County Civil Division at
                          No(s): No. 2014-21090


BEFORE: SHOGAN, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                        Filed: December 30, 2020

      Appellants, Joan Baribault and Scott Baribault, individually and as

Trustee for the Barikoe Family Trust (collectively “the Baribaults”), appeal

from the June 4, 2018 order granting summary judgment in favor of Appellee,

Bancroft Neurohealth (“Bancroft”), and denying the Baribaults’ motion for

summary judgment. After review, we affirm.

      The trial court summarized the relevant facts and procedural history in

this matter as follows:

            On July 21, 2014, Plaintiffs[,] Lamont Hailey and Barbara
      Hailey [(collectively “the Haileys”),] filed a complaint against [the
J-S37002-20


       Baribaults] asserting claims of negligence and loss of consortium
       …. See Docket Entry 0. [The Haileys] asserted no claims against
       [Bancroft] in their complaint.

Id. [The Haileys’] claims

arose from
       personal injuries sustained by Mr. Hailey from a “slip, trip,
       stumble, and/or fall” while walking down steps at the property
       located at 45 South Merion Avenue, Bryn Mawr, Pennsylvania
       (hereinafter “the Subject Property”). Compl. § 7. At the time of
       the incident, Mr. Hailey was an employee of [Bancroft]. Docket
       Entry 87 at Ex. B, 44:8-11.[1]

              On October 3, 2014, [the Baribaults] filed an Answer with
       New Matter and a Joinder Complaint against [Bancroft]. See
       Docket Entries 5-6. On March 3, 2015, after several rounds of
       preliminary objections to the joinder complaint, [the Baribaults]
       filed an Amended Joinder Complaint against [Bancroft], in which
       they alleged negligence and breach of contract against [Bancroft],
       seeking contribution and indemnification. See Docket Entry 24. On
       July 22, 2015, [Bancroft] filed an Answer with New Matter to [the
       Baribaults’] Amended Joinder Complaint, denying liability on the
       claims in the Joinder Complaint. See Docket Entry 34.

             In [the Baribaults’] Amended Joinder Complaint against
       [Bancroft], they base their claims for contribution and
       indemnification on a lease between [the Baribaults] and
       [Bancroft] (“the Lease”), which provides in pertinent part the
       following indemnification provision entitled “Indemnification of
       Owner”:

          [Bancroft] will indemnify and save harmless [the Baribaults]
          against and from any and all liability arising during the Term
          or injury during said Term to person or property arising
          within those portions of the Premises within the exclusive
____________________________________________


1 At the time of the accident, Lamont Hailey was employed by Bancroft, and
Bancroft was a tenant in the Subject Property that was owned by the
Baribaults. The Haileys’ Complaint, 7/24/14, at ¶¶ 1-7; The Baribaults’
Answer and New Matter, 10/3/14, at ¶¶ 3-5; The Baribaults’ Complaint
Against Additional Defendants, 10/3/14, at ¶¶ 1-10; The Baribaults’ Amended
Joinder Complaint, 3/3/15, at ¶¶ 1-12; and Bancroft’s Opposition to the
Baribaults’ Petition for Joinder, 3/18/15, at ¶¶ 1-14. On appeal, the Baribaults
do not dispute these roles, and in fact label themselves as the Landlord,
Bancroft as their Tenant, and Mr. Hailey as an employee of Bancroft. The
Baribaults’ Brief at 7-8.

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        control of [Bancroft] or occasioned by any act or omission
        of [Bancroft], or of any agent, employee, resident, invitee
        or family member of [Bancroft] unless such injury results
        from [the Baribaults’] negligence or [the Baribaults’]
        breach of this Lease. [The Baribaults] shall not be liable
        for any loss of any property of theft, otherwise, nor for injury
        or death of persons or damage to property caused by other
        persons, or resulting from the escape of steam, gas,
        electricity or water, or from rain, snow or dampness or
        presence of hazardous materials except to the extent
        otherwise provided by law.

     See Am. Joinder Compl. at Ex. D, § 13 (emphasis added).

     In addition, the Lease provides the following on “Tenant Liability”:

        [Bancroft agrees] that with respect to those portions of the
        Premise within the exclusive control of [Bancroft], [the
        Baribaults] shall not be responsible or liable for any loss or
        damage to any goods or chattels placed on, in or about the
        Premises, not for any personal injury to [Bancroft] or any
        agent, resident employee, invitee or family member of
        [Bancroft] unless such loss, damage or injury results
        from [the Baribaults’] negligence. [The Baribaults] shall
        not be deemed a bailee as to any goods or chattels placed
        on, in or about the Premises. IT IS THE RESPONSIBILITY OF
        [BANCROFT] TO MAINTAIN ADEQUATE GENERAL LIABILITY
        INSURANCE AND ADEQUATE WORK[ERS’] COMPENSATION
        INSURANCE ON THE PREMISES AND ITS EMPLOYEES. Copy
        of said policy shall be given to [the Baribaults] prior to
        occupancy.

Id. at

Ex. D, § 12 (emphasis added).

           On the topic of “Maintenance and Repairs,” the Lease
     provides in pertinent part:

        8-a. [The Baribaults] shall maintain and keep in good repair,
        structural components, water main, and exterior walls of the
        Premises. Additionally, [the Baribaults] agrees to repair or,
        if necessary, replace the following; furnace, hot water
        heater, air conditioning unit, plumbing pipes, electrical
        wiring and roof...[.]


                                     -3-
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           8-b. [Bancroft] shall be obligated to make all repairs and
           replacements to the Premises...[U]pon the failure of
           [Bancroft] to make any repair, [the Baribaults], at [the
           Baribaults] discretion, may make such repairs and the
           cost of such repair shall be added to and deemed a part of
           the rent and shall be payable by [Bancroft] to [the
           Baribaults] on demand...[.]

           8-c. [Bancroft] shall be responsible for maintenance of the
           entire premise, with the exception of those items stated in
           Paragraph 8-a, which [the Baribaults] covenants to perform.
           And, Owner agrees to repair interior and exterior of
           premises every three years...

Id. at

Ex. D, § 8(a)-(c) (emphasis added).

           While the Lease was originally between [the Baribaults] and
     a different tenant, a lease addendum signed on November 18,
     2009 by [Bancroft’s] President/CEO changed the tenant to
     [Bancroft]. See Docket Entry 87 at Ex. F. The Lease Renewal
     between [the Baribaults] and [Bancroft] provided that “All
     conditions of the prevailing lease agreement shall continue except
     for the following changes, which the tenants agree to” and added
     the following term:

           Tenant is in sole possession and control of the premises and
           is responsible for notifying Landlord of any required repair;
           Landlord has not [sic] duty to inspect for repairs. Tenant
           shall indemnify and save Owner harmless for any and all
           liability, loss, costs, damages, personal injury, damages to
           any goods or expenses arising out of any acts, violations,
           non-performance by the Tenant of any of the covenants
           contained herein, or any other acts or omissions of Tenant
           or its agent employees, invitees, residents or others.

Id. On April 10,

2018, [the Baribaults] filed a Motion for
     Summary Judgment, while [Bancroft] filed its own Motion for
     Summary Judgment on April 20, 2018. See Docket Entries 87; 91.
     [The Baribaults] filed a response in opposition to [Bancroft’s]
     Motion for Summary Judgment, to which [Bancroft] filed a reply
     and [the Baribaults] filed a sur-reply. See Docket Entries 93; 95;
     97. [The Haileys] and [Bancroft] filed responses in opposition to

                                       -4-
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      [the Baribaults’] Motion for Summary Judgment, to which [the
      Baribaults] filed a sur-reply to [Bancroft’s] response. See Docket
      Entries 92; 94; 96. On June 1, 2018, upon consideration of these
      motions, their responses, and sur-replies, this [c]ourt denied [the
      Baribaults’] Motion for Summary Judgment and granted
      [Bancroft’s] Motion for Summary Judgment, dismissing with
      prejudice all claims against [Bancroft] and dismissing [Bancroft]
      as a party to the action. See Docket Entry 98.

            [The Baribaults] filed a Motion for Reconsideration on June
      11, 2018, requesting that this [c]ourt vacate its grant of
      [Bancroft’s] Motion for Summary Judgment, or in the alternative,
      grant Certification of this [c]ourt’s Order of June 1, 2018 for an
      Immediate       Interlocutory     Appeal     pursuant     to    42
      Pa. C.S.A. [§] 702(b). See Docket Entry 99. This Court denied
      [the Baribaults’] Motion for Reconsideration and Alternative
      Motion for Certification in an Order dated June 13, 2018. See
      Docket Entry 100. This [c]ourt’s Order of June 1, 2018 was made
      final by the Notice of Settlement and Release entered on
      December 17, 2019, which settled the remaining claims between
      [the Baribaults] and [the Haileys]. See Docket Entries 102; 104.
      [The Baribaults] filed a timely Notice of Appeal on December 19,
      2019.

Trial Court Opinion, 3/2/20, at 1-5 (emphases in original). Both the trial court

and the Baribaults complied with Pa.R.A.P. 1925.

      On appeal, the Baribaults present the following issue:

      Did the trial court commit an error of law in granting summary
      judgment in favor of Bancroft where Bancroft was required to
      indemnify the Baribaults for injuries to Bancroft’s employees
      caused by Bancroft’s negligence pursuant to the terms of the
      Lease?

The Baribaults’ Brief at 4. After review, we conclude that Bancroft was not

required to indemnify the Baribaults, and the Baribaults were precluded from

enjoining Bancroft as an additional defendant as a matter of law.




                                     -5-
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       Our scope and standard of review over a trial court’s order granting a

motion for summary judgment are as follows:

       Our scope of review … is plenary, and our standard of review is
       clear: the trial court’s order will be reversed only where it is
       established that the court committed an error of law or abused its
       discretion.

       Summary judgment is appropriate only when the record clearly
       shows that there is no genuine issue of material fact and that the
       moving party is entitled to judgment as a matter of law. The
       reviewing court must view the record in the light most favorable
       to the nonmoving party and resolve all doubts as to the existence
       of a genuine issue of material fact against the moving party. Only
       when the facts are so clear that reasonable minds could not differ
       can a trial court properly enter summary judgment.

Hovis v. Sunoco, Inc., 

64 A.3d 1078

, 1081 (Pa. Super. 2013) (citation

omitted).

       The Baribaults contend that the plain language of the Lease requires

Bancroft to indemnify the Baribaults for the injuries Mr. Hailey sustained. The

Baribaults’ Brief at 14. As stated, the injured party, Mr. Hailey, was employed

by Bancroft.     After Mr. Hailey filed a complaint against the Baribaults, the

Baribaults sought to join Bancroft as an additional defendant. The trial court

concluded that the Baribaults were precluded from joining Bancroft as an

additional defendant pursuant to the Workers’ Compensation Act.2 Trial Court

Opinion, 3/2/20, at 7. We agree.




____________________________________________


2Act of June 2, 1915, P.L. 736, No. 338, as amended, 77 P.S. §§ 1-1041.4,
2501-2710.

                                           -6-
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      “Worker[s’] Compensation can best be understood as a replacement of

common law tort actions between employees and employers as a means for

obtaining compensation for injuries.” Markle v. Workmen’s Comp. Appeal

Bd. (Caterpillar Tractor Company), 

661 A.2d 1355

, 1357 (Pa. 1995). The

relevant portion of the Workers’ Compensation Act provides as follows:

      (a) The liability of an employer under this act shall be exclusive
      and in place of any and all other liability to such employes,1 his
      legal representative, husband or wife, parents, dependents, next
      of kin or anyone otherwise entitled to damages in any action at
      law or otherwise on account of any injury or death as defined in
      section 301(c)(1) and (2)2 or occupational disease as defined in
      section 108.3

         1   [Spelling] in original.

         2   77 P.S. § 411(1), (2).

         3   77 P.S. § 27.1.

      (b) In the event injury or death to an employe is caused by a third
      party, then such employe, his legal representative, husband or
      wife, parents, dependents, next of kin, and anyone otherwise
      entitled to receive damages by reason thereof, may bring their
      action at law against such third party, but the employer, his
      insurance carrier, their servants and agents, employes,
      representatives acting on their behalf or at their request shall not
      be liable to a third party for damages, contribution, or indemnity
      in any action at law, or otherwise, unless liability for such
      damages, contributions or indemnity shall be expressly provided
      for in a written contract entered into by the party alleged to be
      liable prior to the date of the occurrence which gave rise to the
      action.

77 P.S. § 481 (footnotes in original).

      The trial court provided a thorough discussion of the relevant facts and

examination of the pertinent legal authority, and it explained as follows:


                                       -7-
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              “This section 77 [P.S.] § 481(b), it has been said,
       manifested a broad legislative intent to bar the joinder of an
       employer as an additional defendant.” Heckendorn v. Consol. Rail
       Corp., 

439 A.2d 674

, 675 (Pa. Super. Ct. 1981), aff’d, 

465 A.2d 609

(Pa. 1983) (citation omitted). “[Section] 481(b) has
       ‘obliterated’ the common law cause of action against the employer
       and foreclosed the adjudication of liability on the part of the
       employer...[.] It has created an exception to the general right of
       contribution among tortfeasors.”

Id. “Thus a defendant

whose
       negligence is alleged to be responsible for an injury suffered by
       an employee protected by the Work[ers’] Compensation Act, may
       not, in the suit brought against him, join the employer as
       an additional defendant.”

Id. (emphasis added) ….

              “In order for an employer to be held liable in indemnification
       for injuries to its own employees caused by the negligence of the
       indemnitee there must be an express provision for this
       contingency in the indemnification clause.” Bester v. Essex Crane
       Rental Corp., 

619 A.2d 304

, 308 (Pa. Super. Ct. 1993) (emphasis
       added). “In order to avoid the ambiguities which grow out of the
       use of general language, contracting parties must specifically
       use language which demonstrates that a named employer agrees
       to indemnify a named third party from liability for acts of that third
       party’s own negligence which result in harm to the employees of
       the named employer.”

Id. at

308-309 (emphasis added); see also
       Bethlehem Steel Corp. v. MATX, Inc., 

703 A.2d 39

, 43 (Pa. Super.
       Ct. 1997) (citing Ruzzi v. Butler Petroleum Company, 

527 Pa. 1

,
       

588 A.2d 1

(1991)) (requiring intent to indemnify against the
       negligence of the indemnitee be expressed in “unequivocal
       terms”);[3] Greer v. City of Philadelphia, 

795 A.2d 376

, 380 (Pa.
____________________________________________


3Ruzzi reaffirmed the holding from Perry v. Payne, 

66 A. 553

(Pa. 1907)
explaining the specificity with which an agreement to indemnify must be
expressed in a contract. In Perry, our Supreme Court held:

       [A] contract of indemnity ... should not be construed to indemnify
       against the negligence of the indemnitee, unless it is so expressed
       in unequivocal terms. The liability on such indemnity is so
       hazardous, and the character of the indemnity so unusual and
       extraordinary, that there can be no presumption that the
       indemnitor intended to assume the responsibility unless the
       contract puts it beyond doubt by express stipulation.



                                           -8-
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       2002) (rejecting adoption of contractual interpretation that
       requires indemnitor to indemnify the indemnitee’s negligence
       unless the contract language is “clear and unambiguous” such that
       the “contract puts it beyond doubt”). “Case law has established
       that the indemnity provision in the Work[ers’] Compensation Act
       must be construed strictly, and general indemnity language such
       as ‘any or all’ or ‘any nature whatsoever’ is insufficient.” 

Bester, 619 A.2d at 307

(quoting Pittsburgh Steel Co. v. Patterson—
       Emerson—Comstock, Inc., 

171 A.2d 185

(Pa. 1961)).

             Here, [the Baribaults] failed to prove that the Lease
       contained language sufficient to overcome the immunity afforded
       by the Workers’ Compensation Act—requiring this [c]ourt to reject
       [the Baribaults’] contractual claim for contribution and
       indemnification. While the Lease Renewal and Sections 12 and 13
       of the Lease address indemnification of [the Baribaults] by
       [Bancroft], the indemnification language is extremely broad,
       indemnifying for “any personal injury” and “any and all liability.”
       See Am. Joinder Compl. at Ex. D, ¶¶ 12-13; Docket Entry 87 at
       Ex. F. Under Bester, such general phrases are insufficient to hold
       an employer liable in indemnification for injuries to its own
       employees caused by negligence of the indemnitee.

             Even if the indemnification language was more specific, the
       standard set forth in Bester requires that there be an express
       provision demonstrating the employer agrees to indemnify the
       third party for its own acts of negligence. In this case, not only
       does the Lease lack an express provision indemnifying [the
       Baribaults] for their own negligence, but the Lease actually
       contains an express provision saying just the opposite. Sections
       12 and 13 of the Lease expressly state that the obligation to
       indemnify [the Baribaults] does not extend to circumstances
       where injuries of employees result from [the Baribaults’] own
       negligence or breach. See Am. Joinder Compl. at Ex. D, ¶ 12
       (“[The Baribaults] shall not be responsible or liable for...any
       personal injury...unless such loss, damage, or injury results
____________________________________________




Perry, 66 A. at 557

. The requirement that an agreement to indemnify should
not be construed to indemnify against the negligence of the indemnitee unless
the agreement is specific and expressed in unequivocal terms has been
termed the “Perry/Ruzzi rule.” Integrated Project Services v. HMS
Interiors, Inc., 

931 A.2d 724

, 736 (Pa. Super. 2007).

                                           -9-
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     from [the Baribaults’] negligence.”) and ¶ 13 (“[Bancroft] will
     indemnify and save harmless [the Baribaults] against and from
     any and all liability arising from the...injury...unless such injury
     results from [the Baribaults’] negligence or [the
     Baribaults’] breach of this Lease.”). Notably, [the Haileys’]
     claims for which [the Baribaults] seek contribution and
     indemnification are brought solely against [the Baribaults] for
     their own negligent acts. Because the Lease carves out exceptions
     in which [Bancroft] expressly states it does not agree to indemnify
     [the Baribaults] for their own negligence, this alone bars [the
     Baribaults’] claim for indemnification and contribution.

            Nevertheless—in spite of the plain language to the
     contrary—-[the Baribaults] maintain that the Lease expressly
     provides them with the right to indemnification. In support of this
     position, [the Baribaults] direct this [c]ourt’s attention to Section
     13 of the Lease, which indemnifies [the Baribaults] where injuries
     take place in a location “within the exclusive control of [Bancroft].”
     [The Baribaults] make the case that several provisions of the
     [L]ease, when read together, establish that [Bancroft]
     unquestionably controlled the entire Subject Property. For
     example, Section 8 of the Lease provides that [Bancroft] shall be
     responsible for maintenance “of the entire premise” and obligated
     to perform repair to “the Premises” generally. Similarly, Section 9
     of the Lease states [the Baribaults] must give twenty-four hour
     notice before entering the Premises, while the Lease Renewal term
     speaks to [Bancroft] having “sole possession and control of the
     premises.” In emphasizing this select language, [the Baribaults]
     argue that Section 13 does expressly indemnify [the Baribaults]
     because the parties’ intent and the Lease as a whole make
     [Bancroft] control over the Property so sweeping as to obviate the
     import of the line excluding [the Baribaults] own acts from
     indemnification.

           In support of their position that the Lease must be
     interpreted to require indemnification, [the Baribaults] heavily cite
     Bethlehem Steel Corp. v. MATX, Inc., 

703 A.2d 39

, 42 (Pa. Super.
     Ct. 1997). “In construing a contract, each and every part of it
     must be taken into consideration and given effect, if possible, and
     the intention of the parties must be ascertained from the entire
     instrument.”

Id. (quoting Village Beer

& Beverage, Inc. v. Vernon
     D. Cox, Inc., 

475 A.2d 117

, 121 (Pa. Super. Ct. 1984)). “The
     intention of the parties is paramount and the court will adopt an
     interpretation which under all circumstances ascribes the most

                                    - 10 -
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     reasonable, probable, and natural conduct of the parties, bearing
     in mind the objects manifestly to be accomplished.”

Id. For all of

[the Baribaults’] effort to convince this [c]ourt that
     Bethlehem necessitates reading the parties’ Lease to require
     indemnification, this [c]ourt remains unpersuaded. The critical
     flaw in [the Baribaults’] argument is that in their insistence that
     this [c]ourt discern the “intent” of the parties and look to the Lease
     as a whole, they also ask this [c]ourt to completely ignore the
     express language of the Lease excluding [the Baribaults’] own
     negligent acts from indemnification. [The Baribaults’] argument,
     in effect, would have this [c]ourt read the indemnification
     provision up until where the Lease states that [Bancroft] “will
     indemnify and save harmless” [the Baribaults], but then stop
     reading before the key limiting text a few lines further, which says
     “unless such injury results from [the Baribaults’] negligence or
     [the Baribaults] breach of this Lease.”

           Further, the [c]ourt finds that [the Baribaults’] attempts to
     parallelize Bethlehem with this case fail, given crucial differences
     in the indemnification language at issue. Unlike this case, the
     indemnity provision in Bethlehem contained language expressing
     in unequivocal terms the intent for a third party to be indemnified
     “whether negligent or otherwise.” 

Bethlehem, 703 A.2d at 42

     (emphasis added). In Bethlehem, the court grappled with the fact
     that one paragraph of a contract contained express language
     indemnifying a third party for its own negligence, while the
     preceding paragraph was silent as to this issue. Bethlehem
     ultimately held that despite one paragraph not containing
     language expressing a clear intent to indemnify third parties for
     their own negligence, a different paragraph’s inclusion of such
     express language showed a clear intent to indemnify these third
     parties when reading the contract as a whole. Here, the parties
     could have included explicit language agreeing to indemnify [the
     Baribaults] for their own acts of negligence or stayed silent on this
     matter but instead chose to include express language barring
     indemnification for [the Baribaults’] own negligence, unlike in
     Bethlehem.

            Even when considering the Lease as a whole per Bethlehem,
     it is unclear that the parties’ intent would have been to give no
     effect to the language barring indemnification for [the Baribaults’]
     own negligent acts. Contrary to [the Baribaults’] assertions, this
     [c]ourt finds that the Lease as a whole does not establish that the

                                     - 11 -
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      location of [Mr. Hailey’s] injury was under the “exclusive control”
      of [Bancroft]. While many provisions speak to [Bancroft] being
      generally responsible for the Subject Property, others carve out
      exceptions suggesting non-exclusivity of control. For instance,
      Section 8 provides “[the Baribaults], at [the Baribaults’]
      discretion, may make such repairs” and “[the Baribaults] agree to
      repair interior and exterior of premises every three years...[.]” In
      addition, although the Lease Renewal states [Bancroft] is to have
      possession and control, [the Baribaults] should be notified “of any
      required repair.” Together, the inclusion of these provisions
      suggests some retention of control of the Subject Property by [the
      Baribaults]—at least enough to counter [the Baribaults] claim that
      the parties’ intent was for [Bancroft] to adopt blanket
      responsibility for [the Baribaults’] own negligence.

             The conduct of [the Baribaults] is consistent with reading
      the Lease to suggest the location of [Mr. Hailey’s] injury was not
      under the “exclusive control” of [Bancroft], considering that [the
      Baribaults] accepted responsibility and control of the area upon
      sending Mr. Baribault to perform an inspection and potentially
      make repairs. Ultimately, any allegation by [the Baribaults] that
      the parties expressed clear intent for [Bancroft] to be responsible
      for the location of [Mr. Hailey’s] injury is at odds with the inclusion
      of the plain language excluding indemnity for [the Baribaults’] own
      negligence—language that the Court in Bethlehem did not have to
      reconcile when analyzing the contract as a whole. Overall, this
      Court has carefully “given effect” to “each and every part” of the
      Lease, attempted to ascertain the intent of the parties, and done
      its best to adopt an interpretation ascribing “the most reasonable,
      probable, and natural conduct of the parties.” 

Bethlehem, 703 A.2d at 42

. That this [c]ourt followed the instruction of Bester and
      Bethlehem but ultimately disagreed with [the Baribaults] as to the
      exact intent of the parties—both with respect to “exclusive
      control” of the incident location and application of indemnity to
      [the Baribaults’] own negligence—is not an error on the part of
      this [c]ourt.

Trial Court Opinion, 3/2/20, at 7-13 (internal brackets omitted) (emphases in

original).

      After careful review, we agree with the trial court.             The Lease

unequivocally provides that the Baribaults are liable for their own negligence.

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The Lease, 1/14/00, at ¶¶ 12-13. There is nothing in the Lease evidencing

Bancroft’s specific agreement to waive the immunity from joinder afforded

employers under the Workers’ Compensation Act and indemnify the Baribaults

for Mr. Hailey’s injury.     The general, boilerplate language in the Lease is

insufficient. See Bester v. Essex Crane Rental Corp., 

619 A.2d 304

, 309

n.2 (Pa. Super. 1993) (applying the Perry/Ruzzi rule).            Accordingly, the

Baribaults are precluded from joining Bancroft as an additional defendant or

subjecting Bancroft to liability outside of Bancroft’s separate liability under the

Workers’ Compensation Act.

Id. at

307. Therefore, there is no genuine issue

of material fact, and Bancroft is entitled to judgment as a matter of law.

Hovis, 64 A.3d at 1081

.

      Nevertheless,    the   Baribaults   also   claim   that   they   are   seeking

indemnification for Bancroft’s alleged negligence, and the Perry/Ruzzi rule

should not preclude indemnification. The Baribaults’ Brief at 16. In support

of this contention, the Baribaults cite Mace v. Atlantic Refining Marketing

Corp., 

785 A.2d 491

(Pa. 2001). The Baribaults’ Brief at 16. We conclude

that Mace is distinguishable.

      As noted above, the Perry/Ruzzi rule provides that an indemnity

contract against personal injuries should not be construed to indemnify

against the negligence of the indemnitee unless it is specific and expressed in

unequivocal terms.     In Mace, Atlantic Refining & Marketing Corporation

(“Atlantic”) owned a gas station/convenience store, Bassam Barqawi


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(“Barqawi”) was a franchisee operating the store, and Bobby Perry (“Perry”)

was a stock clerk at the store. 

Mace, 785 A.2d at 493-494

. While working

at the store one night, Perry assaulted a customer of the store, Edward Keyse

Mace (“Mace”), with a baseball bat. Mace sued Atlantic, Barqawi, and Perry

to recover damages for the injuries he sustained in the attack. Atlantic filed

cross-claims against Barqawi for contractual indemnity and breach of contract,

asserting that Barqawi had an obligation under the lease to defend Atlantic

against Mace’s claims. Pursuant to the lease between Atlantic and Barqawi,

Atlantic filed a motion for summary judgment arguing that as a matter of law,

Atlantic was not liable in any manner to Mace. The trial court concluded that

Atlantic was not negligent, granted Atlantic’s motion for summary judgment,

and dismissed all claims and cross-claims against Atlantic.      Nevertheless,

Atlantic continued its cross-claims against Barqawi for defense costs and legal

fees that it expended in defending itself in Mace’s personal injury action. The

trial court concluded that under the lease, Barqawi had no obligation to defend

Atlantic in the personal injury action instituted by Mace, and based on this

ruling, the trial court dismissed Atlantic’s cross-claims against Barqawi.

Id. 493-495.

      On appeal, a majority of a panel of this Court affirmed based on the

Perry/Ruzzi rule. Mace v. Atlantic Refining & Marketing Corp., 

717 A.2d 1050

(Pa. Super. 1998).       The Supreme Court of Pennsylvania granted

allowance of appeal and reversed. Our Supreme Court held:


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      the Perry-Ruzzi rule is simply not applicable to the instant case
      because Atlantic is not seeking to relieve itself of responsibility for
      its own negligence. Atlantic did not fail to perform any of its
      obligations under the Agreement and Lease. Instead, Atlantic was
      merely charged with negligence based on the actions of Perry, one
      of Barqawi’s employees. As the Superior Court recognized,
      Atlantic was “loosed of all tort responsibility in the
      underlying case” when the trial court granted Atlantic’s
      motions for summary judgment, thereby dismissing with
      prejudice all claims and cross-claims against Atlantic. Since
      Atlantic was adjudicated a non-negligent party, the Perry-
      Ruzzi rule is, by definition, not relevant here.

Mace, 785 A.2d at 495

(internal citation omitted) (emphases added).

      There are key distinctions between Mace and the instant case.             In

Mace, the plaintiff was not an employee, and the Workers’ Compensation Act

was not implicated as a bar to Atlantic pursuing contribution from Barqawi.

Moreover, Atlantic, the owner of the premises, was specifically adjudicated

“non-negligent.” 

Mace, 785 A.2d at 495

.

      Herein, the Baribaults are precluded from seeking contribution or

indemnification from Bancroft under the Workers’ Compensation Act.

Moreover, the Baribaults were never adjudicated non-negligent. Therefore,

the trial court correctly applied the Perry/Ruzzi rule. Because there was no

specific language whereby Bancroft contracted to indemnify the Baribaults,

there can be no indemnification. As we noted above, Bancroft’s liability falls

within the exclusive purview of the Workers’ Compensation Act absent a

specific agreement otherwise.      

Bester, 619 A.2d at 307

; 77 P.S. § 481.

Herein, the Haileys initiated this action against the Baribaults for the

Baribaults’ negligence, and it was the Baribaults that attempted to join

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Bancroft as an additional defendant. Bancroft did not waive immunity under

the Workers’ Compensation Act and did not specifically agree to indemnify the

Baribaults pursuant to the Perry/Ruzzi rule; therefore, the Baribaults are

prohibited as a matter of law from seeking contribution or indemnification

from Bancroft. 

Bester, 619 A.2d at 307

; 77 P.S. § 481.

      In the final portion of their argument, the Baribaults’ contend that they

were merely a “landlord out of possession and not liable for the injuries

allegedly sustained by Mr. Hailey.” The Baribaults’ Brief at 17. After review,

we fail to see how this assertion has any bearing on the trial court’s ruling that

Bancroft could not be joined as an additional defendant and granting summary

judgment in favor of Bancroft. Moreover, the Baribaults reached a settlement

with the Haileys. Trial Court Opinion, 3/2/20, at 5; Notice of Stipulation of

Settlement, 12/17/19. We have already concluded that the Baribaults were

not permitted to join Bancroft as an additional defendant and were not entitled

to contribution or indemnification. Accordingly, we need not address whether

the Baribaults were a landlord out of possession.

      Assuming, arguendo, that we were to reach this claim, we would agree

with the trial court that the Baribaults were not a landlord out of possession.

Trial Court Opinion, 3/2/20, at 15.      “As a general rule, a landlord out of

possession is not liable for injuries incurred by third parties on the leased

premises because the landlord has no duty to such persons.” Jones v. Levin,




                                     - 16 -
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940 A.2d 451

, 454 (Pa. Super. 2007).          However, this rule is subject to

exceptions:

      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 having been given notice of and a reasonable
      opportunity to remedy a dangerous condition existing on the
      leased premises.

Dorsey v. Continental Associates, 

591 A.2d 716

, 718-719 (Pa. Super.

1991) (citing Henze v. Texaco, Inc., 

508 A.2d 1200

, 1202 (Pa. Super. 1986)

(internal citations omitted)).

      The trial court addressed this issue as follows:

              In the instant case, [the Baribaults] cannot claim error by
      contending that this [c]ourt should have found that the landlord
      out of possession rule barred [the Baribaults] from any and all
      liability for negligence. The record before this [c]ourt established
      that [the Baribaults’] conduct could fit squarely within the purview
      of exceptions five and six of the landlord out of possession rule.
      Specifically, the evidence suggested that [the Baribaults] were put
      on actual notice of the condition causing [Mr. Hailey’s] injury
      twenty (20) months prior to his fall, having received an email on
      October 5, 2010 from [Bancroft’s] housing specialist reporting
      that the Subject Property needed “kitchen tile and the tile leading
      to the basement replaced immediately.” See Docket Entry 94 at
      Ex. N. Rather than advising [Bancroft] that the location in need of
      repair was under the “exclusive control” and the sole
      “responsibility” of [Bancroft]—[which] would have been consistent
      with the position [the Baribaults] take now—[the] Baribault[s]

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     accepted the location of the proposed repair as falling under the
     control and responsibility of [the Baribaults] and sent Mr. Baribault
     to the location of [Mr. Hailey’s] injury to inspect and repair the tile
     there. See Docket Entry 92 at Ex. 4, pp. 175-77.

            Upon inspection, Mr. Baribault concluded that the kitchen
     tile needed replaced but that the tile on the basement landing—
     the future site of [Mr. Hailey’s] injury—did not require
     replacement. See

id. at

Ex. 3, pp. 24-35. At odds with his decision
     to not replace the basement landing tile, Mr. Baribault testified at
     deposition that the basement landing used “self-stick” tiles that
     he would not have personally chosen to install, given his opinion
     that such tiles were “an inferior product” that is thin and “wears
     out quick.”

Id. at

pp. 33-36. Following [the Baribaults’] inaction in
     the face of having notice of a dangerous condition and having
     undertaken responsibility for it, [Mr. Hailey] was injured on the
     same basement landing Mr. Baribault previously deemed safe.
     [Mr. Hailey] summarized the incident as follows: “the floor tiles
     moved, and I tripped and fell down the steps.”

Id. at

Ex. 2, pp.
     75-76. Consistent with [the Baribaults] having accepted the
     location of [Mr. Hailey’s] injury as under their control and
     responsibility, [the Baribaults] replaced the stair system leading
     to the basement two weeks after [Mr. Hailey’s] fall. See

id. at

Ex.
     3, pp. 20-21.

            Therefore—by their own testimony—[the Baribaults] could
     be found to owe a duty to [the Haileys] despite [the Baribault’s]
     status as landlords out of possession, having “undertaken to
     repair the demised premises and negligently making the repairs”
     or having “‘failed to make repairs after having been given notice
     of and a reasonable opportunity to remedy a dangerous condition
     existing on the leased premises.” Henze v. Texaco, 

Inc., 508 A.2d at 1202

. As such, this [c]ourt did not err in declining to accept
     [the Baribaults’] position that their status as landlords out of
     possession barred any claim of negligence against them.

                                     ***

           To the extent that [the Baribaults] argue that this [c]ourt
     should have found [Mr. Hailey’s] injury was caused in whole or in
     part by the negligence of [Bancroft], this [c]ourt found that even
     when viewing the record “in the light most favorable to the non-
     moving party” and resolving all doubts as to the existence of a
     genuine issue of material fact against the moving party, [Bancroft]

                                     - 18 -
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     met its burden of establishing the absence of any genuine issues
     of material fact. See Payne[ v. Commonwealth Dept. of
     Corrections,] 871 A.2d [795,] 800 [(Pa. 2005)]; Pa. R.C.P.
     1035.2. Although [the Baribaults] extensively quoted the
     depositions of former and current employees of [Bancroft], [the
     Baribaults] ultimately failed to adduce sufficient evidence to
     establish that [Bancroft] had notice of any alleged defect or
     dangerous condition at the basement landing where [Mr. Hailey’s]
     injury occurred. To the contrary, there is clear evidence that [the
     Baribaults] had specific awareness of a defect or condition at the
     location of [Mr. Hailey’s] injury, as seen by the email asking [the
     Baribaults] to replace tile at the injury location and Mr. Baribault’s
     testimony that he declined to do so, despite being of the opinion
     that the tile used an “inferior product” that would wear out shortly.
     Despite having specific knowledge of the potential dangerous
     condition of the tile upon close inspection, [the Baribaults] did not
     alert [Bancroft] or otherwise indicate such condition was
     [Bancroft’s] responsibility for repair.

            Although past and present employees of [Bancroft] testified
     to their inspection duties and a procedure by which potential
     defects or conditions were to be reported, none could provide
     specific evidence establishing [Bancroft] knew, or could have
     known, of the existence of a dangerous defect or condition in the
     location of [Mr. Hailey’s] injury. Even if these employees did
     establish [Bancroft] had notice of a dangerous defect or condition,
     this [c]ourt notes again that in this case, [Mr. Hailey] only alleged
     negligence on the part of [the Baribaults], and [Bancroft]
     expressly excluded [the Baribaults’] own negligence from its duty
     to indemnify. “[A] defendant whose negligence is alleged to be
     responsible for an injury suffered by an employee protected by
     the Work[ers’] Compensation Act, may not, in the suit brought
     against him, join the employer as an additional defendant.”
     

Heckendorn, 439 A.2d at 675

. Thus, with the only evidence of
     notice of a potential defect or condition at the location of [Mr.
     Hailey’s] injury being that which established [the Baribaults] had
     notice, this Court did not err in granting [Bancroft]’s Motion for
     Summary Judgment.

Trial Court Opinion, 3/2/20, at 13-16 (original brackets omitted) (emphasis

added).




                                    - 19 -
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      The record reveals that the Baribaults had actual notice of the defective

condition of the flooring twenty months prior to Mr. Hailey’s fall. The Hailey’s

Answer to the Baribaults’ Motion for Summary Judgment, 5/1/18 (Exhibit 1,

Email to Ms. Baribault, 10/5/10). Mr. Baribault stated that he inspected the

condition of the flooring and made repairs to certain areas and even

commented on the inferior quality of the tiles on the landing where Mr. Hailey

fell.

Id. at

Exhibit 3 (Mr. Baribaults’ Deposition, N.T., 7/19/17, at 30-40);

Exhibit 4 (Mr. Baribaults’ Deposition, N.T., 7/19/17, at 175).

      If we were to reach this issue, we would conclude that the Baribaults’

conduct reflected that they retained control over the Subject Property and

repairs thereto, they had actual notice of the need for repairs, and they failed

to make the required repairs before Mr. Hailey was injured. For these reasons,

we would agree with the trial court that the Baribaults were not a landlord out

of possession. Trial Court Opinion, 3/2/20, at 15; Dorsey, 

591 A.2d 716

,

718-719.

      For the reasons set forth above, we conclude that the trial court

committed no error of law or abuse of discretion in its June 4, 2018 order

granting Bancroft’s motion for summary judgment and denying the Baribaults’

motion for summary judgment. Accordingly, we affirm.

      Order affirmed.




                                     - 20 -
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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/20




                          - 21 -

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