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BOGUTZ v. MARGOLIN. (03/24/58)

March 24, 1958

BOGUTZ, APPELLANT,
v.
MARGOLIN.



Appeal, No. 2, Jan. T., 1958, from judgment of Court of Common Pleas of Montgomery County, April T., 1956, No. 63, in case of Albert H. Bogutz et ux. v. Nate Margolin et al. Judgment affirmed.

COUNSEL

Ronald N. Rutenberg, with him Harry A. Rutenberg and Jules Pearlstine, for appellants.

William B. Koch, with him Duffy, McTighe & McElhone, for appellees.

Before Jones, C.j., Bell, Chidsey, Musmanno, Jones and Cohen, JJ.

Author: Jones

[ 392 Pa. Page 153]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

Mr. and Mrs. Bogutz (the appellants) on August 16, 1954, and for approximately five years prior thereto, were tenants under a written lease of apartment No. 612 located in an apartment house in Merion, Pa., owned, operated and maintained by the appellees.

On that day the wife-appellant, while passing through the basement of the apartment house en route to the garage - a usual and customary passageway for the tenants - slipped and fell, allegedly, by reason of an accumulation of oil and grease on the floor, sustaining severe personal injuries.

A suit to recover damages arising from the injuries suffered by the wife-appellant was instituted by the appellants by filing a complaint. The appellees, by preliminary objections, raised the defense that under a provision of the written lease appellants had waived any right to recover damages arising from any negligent conduct on the part of the appellees in connection with maintenance of the apartment house. A motion for judgment on the pleadings having been filed, the court below entered a judgment for appellees and against appellants. From the entry of that judgment this appeal was taken.

The sole question is whether under the terms of the written lease the appellants had waived their right to a recovery of damages.

Paragraph 5 of the lease provides: "Lessor shall not be responsible for any injury or damage that may happen to the person or goods of Lessee or anyone claiming under Lessee, or his servants or employees, either on the elevators, corridors, stairways, walks or driveways,

[ 392 Pa. Page 154]

    or in or about the premises, from any cause whatsoever, and Lessee hereby agrees to indemnify and save harmless the Lessor from any action for damages brought by any invitee, servant ...


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