contracts - commercial lease - exculpatory clause

Keystone Specialty Services v. Ebaugh – Pa. Superior Court – non-precedential memorandum decision** – 11-22-21

https://www.pacourts.us/assets/opinions/Superior/out/J-S27045-21o%20-%20104963094152340299.pdf?cb=1

 

Held: Commercial tenant could not recover for property damage allegedly caused by landlord’s negligence where lease contained exculpatory clause relieving landlord of such liability.

Tenant signed a lease that contained exculpatory clauses that specifically provided, in the same size print as all the other lease terms, that “Landlord shall not be liable for loss of, or damage to, [Tenant’s] stored items” and that “Landlord shall not be liable to Tenant ... for ... any loss, damage or destruction of Tenant’s personal property.” . . . .It was also undisputed that Plaintiff’s claims in this action were for damage to personal property that it stored on the Premises. 

Exculpatory clauses in contracts are valid where they do not contravene public policy, are between persons relating entirely to their own private affairs and each party is a free bargaining agent to the agreement. Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1189 (Pa. 2010); Topp Copy Products, Inc. v. Singletary, 626 A.2d 98, 99 (Pa. 1993); Kibler, 184 A.3d at 981. 

Exculpatory clauses that satisfy these requirements are enforceable and bar negligence claims where the language of the exculpatory clause states that it applies to all claims for injury or damage or to any claim for injury or damage. Topp Copy Products, 626 A.2d at 99-101 & n.1; Nissley, 913 A.2d at 890-91; Zimmer v. Mitchell & Ness, 385 A.2d 437, 440 (Pa. Super. 1978) (en banc), aff’d without opinion, 416 A.2d 1010 (Pa. 1980). 

Exculpatory clauses in a commercial lease that provide that the landlord is not liable for any damage to the tenant’s personal property on the leased premises are valid and enforceable and bar contract and negligence claims for such property damage. Topp Copy Products, 626 A.2d at 99-101 & n.1; Cannon v. Bresch, 160 A. 595, 596-97 (Pa. 1932). 

The exculpatory language in the Lease is essentially indistinguishable from the exculpatory clauses in Topp Copy Products and Cannon and was therefore valid and sufficient to bar Plaintiff’s claims for damage to its personal property. The Lease twice expressly stated that Landlord would not be liable for damage to Plaintiff’s personal property and stated that this applied to “any loss, damage or destruction of Tenant’s personal property.” Lease at 1; Lease Addendum at 2 (emphasis added). The word “any” is equally all- encompassing as the word “all” in the leases at issue in Topp Copy Products and Cannon. Zimmer, 385 A.2d at 440; Merriam-Webster’s Collegiate Dictionary 56 (11th Ed. 2003) (defining “any” as including “every” and “all”). Moreover, the Lease further made clear that Plaintiff cannot obtain compensation from Landlord for damage to its personal property by expressly providing that Plaintiff must obtain insurance to protect itself from loss from “theft, damage and/or destruction, from any cause or reason.” Lease Addendum at 2 (emphasis added). 

Tenant/plaintiff argues that because the Lease did not use the word “negligence” in its exculpatory clauses, the exculpatory clauses are insufficient to bar claims for damage to Plaintiff’s property that was caused by Landlord’s negligence. That, however, is not the law. Although an indemnification clause does not cover claims arising out of the indemnitee’s negligence unless it expressly refers to indemnification for the indemnitee’s negligence, Topp Copy Products, 626 A.2d at 100-01; Ruzzi v. Butler Petroleum Co., 588 A.2d 1, 4-5 (Pa. 1991), that rule does not apply to exculpatory clauses that bar recovery from the other party and provide no indemnification for claims of third parties. Chepkevich, 2 A.3d at 1193; Topp Copy Products, 626 A.2d at 100-01; Nissley, 913 A.2d at 890-91. 

Pennsylvania courts have consistently held that exculpatory clauses may bar suits based on negligence even where the language of the clause does not specifically mention negligence at all.” Chepkevich, 2 A.3d at 1193. In Topp Copy Products and Nissley, our Supreme Court and this Court held that exculpatory clauses that did not reference negligence barred claims for damages caused by the defendant’s negligence. Topp Copy Products, 626 A.2d at 99-101 & n.1; Nissley, 913 A.2d at 888, 890-91. 

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This case is also reported in the PLAN Legal Update, which you can access and search—without a password—here.

**An unreported, non-precedential Superior Court case decided after May 1, 2019, may be cited for its persuasive value, but it is not binding precedent.  See 210 Pa. Code 65.37(B).

 

 

custody - older evidence/findings v. current evidence - res judicator/collateral estoppel

K.D. v. E.D – Pa. Superior – reported, precedential decision – November 16 2021

https://www.pacourts.us/assets/opinions/Superior/out/J-A15003-21o%20-%20104957126151766380.pdf?cb=1

In petition to modify in a custody case, neither res judicata nor collateral estoppel barred the trial court from considering current evidence that differed from findings from a hearing and decision from several years prior, especially considering the finding by the trial court that “the facts and circumstances surrounding this matter have changed significantly since the testimony and evidence was closed on Father’s last request for custody.” 

 

 

Past findings v. current evidence  -- Past findings of abuse by father did not preclude the trial court from modifying custody in 2020 based upon contemporary evidence that demonstrated that modification served the bests interests of the children. Hence, we reject Mother’s contention that the doctrine of collateral estoppel barred Father from litigating his petition for modification based upon current evidence. Phrased differently, “Past conditions have relevance in a custody modification proceeding only to the extent that such conditions have a current impact on the child.” 17 West’s Pa. Prac., Family Law § 28:17 (Joanne Ross Wilder, et al., 8th ed.) (footnote omitted) (citing In re Leskovich, 385 A.2d 373 (Pa.Super. 1978)).  The certified record is replete with evidence of Mother’s alienation of Father under the pretense of protecting the children from abuse. In addition, the allegations that Father perpetrated sexual abuse were not substantiated in proceedings under the Child Protective Services Law.

 

 

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Denial of a right to visitation is rare.

Traditionally, the denial of a right to visitation is rare.  Indeed, Pennsylvania Courts applying the former statutory regime routinely held, “A parent will be denied visitation only in those instances where the record shows that the parent is severely mentally or morally deficient so as to constitute a grave threat to the child's welfare.” Rosenberg v. Rosenberg, 504 A.2d 350, 352 (Pa. Super. 1986) (citing Niadna v. Niadna, 494 A.2d 856, 858 (Pa.Super. 1985) and Somers v. Somers, 474 A.2d 630, 631 (Pa.Super. 1984). However, the authority concerning a “grave threat” in relation to child custody precedes the effective date of the Child Custody Act, which does not specifically establish the “grave threat” standard. In M.J.M. v. M.L.G., 63 A.3d 331, 338 (Pa.Super. 2013), we held that judicially-created doctrines cannot be grafted on the best interest factors that the Legislature  established in § 5328(a). See also D.R.C. v. J.A.Z., 31 A.3d 677, 688 (Pa. 2011) (Then-Justice, now-Chief Justice Baer, concurring) (observing, following the enactment of the Child Custody Act, “there is no need for any trial court to find a “grave” threat of harm.”). 

The trial court engaged in a comprehensive best interest analysis pursuant to § 5328(a)(1)-(a)(16) before granting Father’s modification petition and fashioning a custody arrangement that permits supervised therapeutic visitation. The trial court’s analysis relative to whether Father currently presents a threat of harm to the children is careful, thorough, and reasonable, as shown by the evidence of record, and we discern no abuse of discretion. 

 

 

real estate tax sale - onwner-occupied property - personal services required, even for incarcerated owner

In re Upset Sale – Appeal of Hung Hu – Pa. C mwlth.  – 11-15-21 – unreported memorandum decision**

https://www.pacourts.us/assets/opinions/Commonwealth/out/566CD20_11-15-21.pdf?cb=1\

 

In re Return of Sale – Appeal of Seneca Leandro View, LLC – Cmwlth. Court – 11-16-21- unreported memorandum decision**

https://www.pacourts.us/assets/opinions/Commonwealth/out/308CD21_11-16-21.pdf?cb=1

 

 

Held: Trial court order reversed or upheld in respective cases, because of failure to prove personal service of the notice of the tax sale on the owner-occupants of the properties.

 

From Huang Hu case –

Due process - The “collection of taxes may not be implemented without due process of law.” Husak v. Fayette Cnty. Tax Claim Bureau, 61 A.3d 302, 312 (Pa. Cmwlth. 2013). In re Consol. Reps. & Return by the Tax Claim Bureau of Northumberland Cnty. of Props., 132 A.3d 637, 644 (Pa. Cmwlth. 2016) (en banc) (Appeal of Neff). 

Personal service required for owner-occupied properties, despite actual notice of sale, posting, or mail - 72 P.S. § 5860.601(a)(3) (emphasis added); see also Montgomery Cnty. Tax Claim Bureau v. Queenan, 108 A.3d 947, 951 (Pa. Cmwlth. 2015; Appeal of Neff, 132 A.3d at 645-46. 

Incarcerated owner -  This Court ruled in In Re Appeal of Hansford, 218 A.3d 995 (Pa. Cmwlth. 2019), that incarceration does not change an owner occupant’s status. The Hansford Court reasoned: The fact that an owner may be temporarily physically incapable of inhabiting his property [due to his incarceration] does not mean he is no longer an owner occupant

From Seneca Leandro Case

Section 601(a)(3) of the Real Estate Tax Sale Law,3 72 P.S. § 5860.601(a)(3), provides that where owner-occupied property is at issue, notice described in Section 602 of the Law, 72 P.S. § 5860.602, must be personally served upon an owner-occupant at least ten days prior to the date of the actual sale by sheriff. 

The requirements found in Section 601(a)(3) are cumulative and apply in addition to those found in Section 602. Consol. Reports and Return by the Tax Claim Bureau of Northumberland Cnty. of Props. (Appeal of Neff), 132 A.3d 637, 645 (Pa. Cmwlth. 2016). Further, actual notice does not provide grounds to waive strict compliance with Section 601(a)(3)’s personal service requirement. Id. at 646. Consequently, “unless a taxing bureau obtains an order waiving the personal service requirement for good cause shown, its failure to comply with [S]ection 601(a)(3) of the [Law] will render a tax sale invalid.” Gutierrez v. Washington Cnty. Tax Claim Bureau and Bigger and Better Rental, LLC, ___ A.3d ___ (Pa. Cmwlth., No. 430 C.D. 2020, filed June 10, 2021) [quoting Montgomery Cnty. Tax Claim Bureau v. Queenan, 108 A.3d 947, 952 (Pa. Cmwlth. 2015)]. 

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This case is also reported in the PLAN Legal Update, which you can access and search—without a password—here.

 

**An unreported, non-precedential, memoradum Commonwealth Court decision can be cited for its persuasive value but is not binding precedent.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716