The opinion of the court was delivered by: KELLY
This action arises out of a fire that occurred on February 4, 1992, which destroyed the offices leased by Plaintiff Krueger Associates, Inc., individually and trading as National Fulfillment Services, ("Plaintiff"). Plaintiff maintains that the fire protection system installed and serviced by Defendants, ADT Security Systems, Mid-South, Inc. and ADT Security Systems, Inc. ("Defendants" or "ADT") failed to promptly detect the fire and notify the proper authorities in a timely fashion. Third- Party Defendants, Eugene Krueger and Samuel Mendicino, individually and doing business as Holmes Corporate Center and Holmes Industrial Office Center (collectively "Holmes Corporate Center" or "Third-Party Defendants") own the office facility leased to Plaintiff. Presently before the Court is Plaintiff's Motion for Summary Judgment. For the reasons that follow, that Motion will be granted.
Plaintiff's Complaint was filed on February 26, 1993 and alleged strict liability (Count I), negligence (Count II), breach of implied warranties (Count III), strict liability - ultrahazardous activities (Count IV), fraud (Count V), and negligent misrepresentation (Count VI). Defendants answered the Complaint and filed a Counterclaim alleging tortious interference (Count I) and fraud (Count II). On August 11, 1993, this Court dismissed Count IV of the Complaint.
On October 7, 1993, Defendants filed a Third-Party Complaint against the owners of the office facility. The Third-Party Complaint alleges breach of contract (Count I), seeks a defense and indemnification for the suit filed by Plaintiff (Count II), alleges tortious interference with contractual relations (Count III), and fraud and misrepresentation (Count IV). Third-Party Defendants answered the Third-Party Complaint and filed a Crossclaim against Plaintiff seeking indemnification pursuant to the lease between them. Plaintiff answered and asserted a Crossclaim against Third-Party Defendants likewise seeking indemnification pursuant to the lease.
On December 20, 1994, Summary Judgment was granted in favor of ADT on Counts I and II of the Third-Party Complaint, thus, Third-Party Defendants were directed to defend and indemnify ADT. Also, on December 20, 1994, Third-Party Defendants' Motion for Summary Judgment against Plaintiff was denied. On October 2, 1996, Summary Judgment was granted in favor of ADT on all of Plaintiff's remaining claims.
Plaintiff and Third-Party Defendants appealed those decisions and, on June 23, 1997, The Third Circuit Court of Appeals dismissed those appeals for lack of jurisdiction. The Appellate Court noted that the following issues precluded appeal: (1) quantification of the amount of attorney's fees recoverable by ADT pursuant to its contract with Holmes Corporate Center; (2) Plaintiff's Crossclaim for indemnification pursuant to the lease; (3) ADT's Counterclaim against Plaintiff; and (4) Counts III and IV of ADT's Third-Party Complaint.
The parties collectively wish to have all issues finalized in order to seek review by the Third Circuit Court of Appeals. A status conference was held on June 29, 1998. At that time it was decided that affidavits regarding quantification of attorneys' fees would be submitted by ADT and Third-Party Defendants. To facilitate matters ADT has voluntarily dismissed its Counterclaim and its Third-Party Complaint. Thus, Third-Party Defendants' Crossclaim for indemnification pursuant to the lease agreement must be decided. That issue was briefed by the parties in the outstanding Motion for Summary Judgment and is addressed below.
Summary Judgment is proper "if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(C); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The moving party has the initial burden of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Then, the non-moving party must go beyond the pleadings and present "specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(C). If the court, in viewing all reasonable inferences in favor of the non-moving party, determines that there is no genuine issue of material fact, then summary judgment is proper. Celotex, 477 U.S. at 322; Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir. 1987).
Plaintiff argues that, as a matter of law, it has no duty to defend or indemnify Holmes Corporate Center's liability to ADT pursuant to the lease agreement. The lease agreement between Plaintiff and ...