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SPALLONE ET AL. v. SIEGEL (03/29/76)

decided: March 29, 1976.

SPALLONE ET AL., APPELLANTS,
v.
SIEGEL



Appeal from order of Court of Common Pleas of Lebanon County, No. 1345 of 1974, in case of Joseph E. Spallone and Clifford Spallone, Administrators of the Estate of Carol M. Spallone, deceased v. Pearl M. Siegel.

COUNSEL

Thomas E. Waters, Jr., with him Jack D. Singer, and Waters, Fleer, Cooper & Gallager, for appellants.

Harry W. Reed, Jr., with him Bernerd A. Buzgon, and Davis, Katz, Buzgon & Davis, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion in Support of Reversal by Cercone, J. Watkins, P.j., and Jacobs, J., join in this opinion in support of reversal. Opinion in Support of Reversal by Price, J. Van der Voort, J., joins in this opinion. Opinion in Support of Reversal by Spaeth, J. Hoffman, J., joins in Part I of this opinion.

Author: Per Curiam

[ 239 Pa. Super. Page 586]

Order of the court below granting summary judgment for defendant-lessor is reversed and the case is remanded for further proceedings.

Disposition

Order reversed and case remanded.

[ 239 Pa. Super. Page 587]

Opinion in Support of Reversal by Cercone, J.:

While I join in Part I of Judge Spaeth's opinion, I disagree with the propriety of raising and resolving the issues to which Parts II and III are devoted.

Part II purports to make exculpatory clauses in form leases "presumptively invalid" henceforth, despite the fact that the treatment of that issue is unnecessary to the resolution of the instant case. Because we have determined that the exculpatory clause in the instant case did not apply to the part of the premises where the accident occurred, it is superfluous to discuss whether the clause was otherwise valid. Furthermore, the State Senate's Urban Affairs and Housing Committee is currently considering H.B. 600, 1975, which is a lengthy and well-considered recodification of The Landlord and Tenant Act of 1951.*fn1 Although the bill only purports to repeal The Landlord and Tenant Act of 1951 as it applies to counties of the second class (i.e., Allegheny County), it is expected that, if the bill is enacted into law, it will be applied statewide.*fn2

As might be expected, H.B. 600 contains a provision with respect to exculpatory clauses in leases. Section 302, entitled "Prohibited Provisions in Rental Agreements," Subsection (a)(4) states that: "No rental agreement may provide that the tenant . . . agrees to exculpation or limitation of any liability of the landlord arising under law or to indemnify the landlord for that liability or the costs connected therewith . . . ." Regardless of whether this provision is ultimately included or excluded from the bill, if the bill is enacted, it is manifestly improvident for this Court at this time to overrule the longstanding case

[ 239 Pa. Super. Page 588]

    law of this Commonwealth which, while strictly construing such clauses, has always enforced them if they were aptly drawn. Since the essential effect of such a decision is to bar a landlord in most cases from shifting the risk of loss, and hence the obligation to insure against loss, to the tenant, that decision is, for all practical intents and purposes, a policy judgment. In matters of public policy we should neither preempt nor contravene the judgment of the legislature. A fortiori, we should not rule on an issue unnecessary to the resolution of a case when that very issue is pending before our state legislature.*fn3

Finally, Part III of Judge Spaeth's opinion holds that the question of whether improper maintenance of the rain gutters contributed to the icy condition of the steps, was not barred by the existence of the exculpatory clause, regardless of the efficacy of the clause. Although this was apparently one theory of liability propounded by appellant in the court below, it was not raised in this appeal and may not be considered by this Court herein. Wiegand v. Wiegand, 461 Pa. 482 (1975).

For the foregoing reasons I join only in the result and ratio decidendi set forth in Part I of Judge Spaeth's opinion.

Opinion in Support of Reversal by Price, J.:

I concur in the result reached by Judge Spaeth solely on the basis of Part III of his opinion, but wish to note my dissent as to Parts I and II.

Opinion in Support of Reversal by Spaeth, J.:

This is an appeal from an order granting appellee's motion for summary judgment in a survival and wrongful death action brought against her.

[ 239 Pa. Super. Page 589]

Appellee is the owner of a house in Lebanon. Appellants are the children and administrators of the estate of Carol M. Spallone, deceased, formerly appellee's tenant.

The parties agree on the following facts. On January 15, 1974, and for some time before then, the deceased and her sister, Gertrude Minning, were lessees of a second-floor apartment in appellee's house. The lease contained the following exculpatory clause:*fn1a

"The party of the second part [lessee] relieves the party of the first part [lessor] from all liability by reason of any damage to any person or property in or on the demised premises caused by the negligence of the party of the first part, his agents, or any other person."

The only way to enter or leave the apartment was an outside, uncovered stairway leading from the apartment to the ground.

Appellants allege in the complaint that at approximately 6:30 a.m. on January 15, 1974, the steps of the outside stairway were covered with ice, that the decedent fell down the stairway, and that the fall ultimately caused her death on February 23, 1974. Appellants further allege in the complaint that appellee's negligence was the cause of decedent's death because she, inter alia, failed to clear the steps of ice, failed to maintain a proper gutter around the house, and failed to enclose the stairway.

Appellee's answer denies any negligence on her part, denies that she was in control of the stairway, and denies that the alleged fall occurred. As new matter, appellee alleges that she is in any event relieved of all liability by the exculpatory clause contained in the lease. Appellee

[ 239 Pa. Super. Page 590]

    thereafter filed a motion for summary judgment under Pa.R.C.P. 1035, alleging that no genuine issue of material fact exists, and that by virtue of the exculpatory clause she is entitled to judgment as a matter of law. The lower court agreed, and granted summary judgment. This appeal followed.

We have concluded: first, that the outside stairway is not "in or on the demised premises," and therefore is not covered by the exculpatory clause; second, that if the stairway is covered by the exculpatory clause, the clause is presumptively invalid; and third, ...


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