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W.G. NICHOLS, INC. v. JOSEPH D.

United States District Court, E.D. Pennsylvania


April 21, 2004.

W.G. NICHOLS, INC., Plaintiff
v.
JOSEPH D. AND MICHELE A. FERGUSON, Defendants

The opinion of the court was delivered by: WILLIAM YOHN, JR., District Judge

Memorandum and Order

Plaintiff W.G. Nichols, Inc. ("Nichols") brings this action against Joseph D. and Michele A. Ferguson, ("the Fergusons"), alleging breach of lease agreement, negligence per se, tortious interference with prospective contractual relations, and constructive eviction. Underpinning each of these claims is plaintiff's allegation that defendants' failure to install an elevator at 1020 Andrews Drive, West Chester, Pennsylvania, constituted a violation of both the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., and the Pennsylvania Physically Handicapped Act ("PPHA"), Act of Sept. 1, 1965, P.L. 459 as amended, 71 P.S. § 1455.1 et seq. The relevant facts are undisputed, and both parties have moved for summary judgment. For the reasons detailed below, I will grant defendants' motion for summary judgment and deny plaintiff's motion for partial summary judgment. I. Facts

The facts of this case are familiar to the court and have been rehearsed at length twice before. See W. G. Nichols, Inc. v. Ferguson, 2002 WL 1335118 (E.D. Pa. June 7, 2002) (granting summary judgment for defendants) (Nichols I); W. G. Nichols, Inc. v. Ferguson, 2003 WL 22158794 (E.D. Pa. Sept. 18, 2003) (denying defendants' motion to dismiss) (Nichols II). Because neither party alleges that the facts material to this dispute have changed, this court sees no need to recite the details of the parties' business transaction yet again. For the purposes of resolving the parties' motions for summary judgment, a brief recitation of the relevant facts will suffice.

  On July 16, 1997, plaintiff — a corporation engaged in the publishing business — entered into an agreement with defendants to lease from them a significant portion of 1020 Andrews Drive, a facility conceived and constructed by defendants over the course of the early 1990s.*fn1 See Lease Agreement, attached to Pl.'s Mot. Summ. J. at Ex. 2 ("Lease"). Plaintiff's lease covered the entire second floor of the building, consisting of 6,624 square feet, to be used as offices; 1,400 square feet of a garage bay, to be used as a photo studio; and a triangular office located adjacent to the garage bay, also to be used as a photo studio. See Addendum to Office Lease Agreement ¶ 1. The lease was scheduled to run through August 14, 2002, however plaintiff vacated the facility in April or May, 2000, when — in plaintiffs view — the absence of an elevator connecting the first and second floor began to pose problems for certain disabled employees.*fn2 Pl.'s Mot. Summ. ¶¶, 10-16.

  Because this court's analysis hinges upon the precise number of "stories" housed by the Andrews Drive facility, it is necessary to go into some detail concerning the undisputed layout and dimensions of the building.*fn3 The building located at 1020 Andrews Drive, which has a footprint measuring 19,168 square feet, contains both offices and a warehouse. See Expert Report of Pl.'s Expert Gray Smith, Pl.'s Mot. Summ. J. Ex. 9, at 5 ("Pl.'s Expert Report"). The building is roughly the shape of a triangle, with one side of the triangle facing — and running parallel to — Andrews Drive. Pl.'s Mot. Summ. J. Ex. 6. This side of the building — which I will refer to as the front, because it faces the street and contains the main entrance — houses two floors of office buildings. See id; see also Defs.' Mot. Summ. J. Ex. F. From the vantage point of Andrews Drive, the building appears to be a standard two-level office building with a canopied entrance, two rows of large, three-pane windows running the length of the front of the structure, a flat, level roof, and a small parking lot situated between the building's main entrance and the road. See Defs.' Mot. Summ. J. Ex. F.

  Upon entering the building through the main door, one enters a two-story lobby with high ceilings, a peaked roof, skylights, and a large staircase. See id.; see also Pl.'s Mot. Summ. J. Ex. 6; Pl.'s Expert Report at 5-6. Those offices located on the lower floor of the building are accessed through a door at the rear of the lobby, while the offices on the second floor can be reached via the lobby staircase. Pl.'s Expert Report at 5-6. Each floor's ceiling height, according to the building's architect, is approximately 10-11 feet, a standard height for this type of office building. See Olsen Dep. at 33-34.

  In addition to that portion of the building which houses the two levels of offices, the building has a second section which serves as a warehouse. The warehouse comprises that area of the triangular shape that does not overlook Andrews Drive. While it is difficult to describe the layout of the building with architectural precision, for the purposes of this opinion it is sufficient to note that the warehouse lies directly behind — from the perspective of an observer outside the building, facing the main entrance — the rows of offices which face Andrews Drive. See Pl.'s Mot. Summ. J. Ex. 6. The warehouse floor lies approximately five feet above that of the first floor of offices, while the warehouse roof is even with the roof of the office building, creating a split-level type of structure. See Olsen Dep. at 33; Ferguson Dep. at 73. At no spot on the building's footprint are there three floors stacked vertically atop one another.*fn4 In the front of the building there are two stories, while the warehouse, in the rear, contains one level. There is direct access to the warehouse level from the facility's rear entrance, and it can also be accessed by way of stairs, from within the office building. See Olsen Dep. at 65-66.

  These two sections of the Andrews Drive facility were constructed to serve two separate purposes. The rear warehouse was an industrial area which included open garage bays and was initially used for trucking. See Olsen Dep. at 32-33. Because the warehouse was used for different purposes, it was built — from an architectural standpoint — as a separate building. See id. at 49, 52-53. The warehouse level required a different fire rating, fire locks, a demising wall, and different stairs than the offices. See id. at 49, 59, 61, 50.

  A portion of the warehouse, however, had been set aside for maintenance offices, assembly areas, and a shipping counter. See id. at 32; Ferguson Dep. at 75. When plaintiff decided to lease the second story office space, it "fit-out" a portion of that warehouse space for plaintiff to use as a photography studio. See Ferguson Dep. at 74-75 ("Q: Now, there's a portion of that warehouse space that was fitted for office areas, correct? A: Yes. Q: Describe that for me, if you will. A: Well, that had nothing to do with me. That was Nichols. Nichols did that fit — out on their own. The ran out of space and they converted that to office space."); Van Dalen Dep. at 110-11 (attached to Pl.'s Mot. Summ. J. as Ex. 10).

  Also contained within the Andrews Drive facility is an elevator shaft. Pl.'s Mot. Summ. J. ¶ 7. The elevator shaft does not contain a functioning elevator, as the actual elevator cab and all of the accompanying equipment necessary to operate it were never installed. Id. Defendants' architect testified that an elevator was not needed at the time of construction, but the shaft was nonetheless installed "for future flexibility or present flexibility." Olsen Dep. at 41; see also id. at 38-42 (testimony by architect Olsen that installation of an elevator shaft is less expensive "when you're building brand new" than it would be to install an entire elevator at a later date, and that installing the elevator shaft was a way to give defendants the flexibility to hire employees with disabilities or rent to others). If installed, the elevator would have the capacity to make stops on the first and second office floors, as well as an intermediate stop at the warehouse level. See id. at 33.

  II. Analysis

 A. Legal Standard

  Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). This court may not resolve disputed factual issues, but rather should determine whether there are genuine, material factual issues that require a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Where "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party," however, there is "no genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quotations omitted). B. ADA Elevator Exemption

  (1) LEGAL BACKGROUND

  The ADA prohibits discrimination against individuals with disabilities.*fn5 42 U.S.C. § 12182(a). To this end, the Act requires commercial facilities to be designed, constructed, and altered in accordance with the specifications set forth by the Americans with Disabilities Act Accessibility Guidelines*fn6 ("ADAAG"). See 28 C.F.R. § 36.101; id. at § 36.406. The failure to install elevators in most newly-constructed or altered buildings, for example, constitutes a violation of the ADA. 42 U.S.C. § 12183(a). With respect to both new construction and alterations, however, an elevator is not required in buildings that have fewer than three stories. Id. at § 12183(b); see also 28 C.F.R. § 36.404(a) (alterations); id. at § 36.401(d)(2) (new construction). As a result, defendants must install an elevator in 1020 Andrews Drive only if it is a three-story building.*fn7

  The ADAAG define "story" as follows:

That portion of a building included between the upper surface of a floor and the upper surface of the floor or roof next above. If such portion of a building does not include occupiable space, it is not considered a story for purposes of these guidelines. There may be more than one floor level within a story as in the case of a mezzanine or mezzanines.
28 C.F.R. pt. 36, app. A § 3.5 (emphasis added).; see also 59 Fed. Reg. 31676, 31745. A mezzanine, then, is defined in the same section as:
That portion of a story which is an intermediate floor level placed within the story and having occupiable space above and below its floor.
28 C.F.R. pt. 36, app. A § 3.5; see also 59 Fed. Reg. 31676, 31745.

  It is undisputed that the two office levels in the front portion of the Andrews Drive facility are separate stories. The building, therefore, has at least two stories. Plaintiff contends that the warehouse is also a story, resulting in a three-story building. Defendants, conversely, argue that the warehouse — which is situated on an intermediate level — is a separate building and thus cannot constitute a third story.

  The definition of "story" provided by the ADAAG is difficult to apply to the facts before us because of its breadth. Under the ADAAG, any occupiable space between a floor and roof constitutes a story. At the same time, the scope of a "story" is limited by the potential for an intermediate level, which — assuming the presence of both a floor and a roof — would itself also be a story. In addition to the difficulty posed by the definitions themselves, very few courts have had occasion to consider whether a given floor is a "story," as opposed to a "mezzanine" or undefined intermediate level. In fact, I am aware of only one court to have considered the issue.

  In Laird v. Redwood Trust LLC, a night club patron who was confined to a wheelchair sought to require the installation of an elevator in the club pursuant to the ADA. 240 F. Supp.2d 423 (D. Md. 2003). In Laird, the Redwood Trust night club had three levels: a basement; a ground floor with a dance floor and sushi bar; and a third level with a large opening in the middle of the floor enabling patrons to look down upon the dance floor below. Id. at 424. This third level contained a DJ booth, two lounge areas, a bar, and restrooms. Id. The plaintiff in Laird, who could not use stairs, argued that the club was required to install an elevator to service the third level. Id. The court, however, disagreed, finding instead that the third level constituted a mezzanine rather than a story. Id. at 426.

  Noting the sparse authority and imprecise definitions provided by the ADAAG, the Laird court undertook a functional analysis of each floor. Because the third level had "relatively little functional space in comparison with the floor below and offer[ed] the same services as the floor below," the court held that the third level was best characterized as a mezzanine, rather than a story. Id. at 425. Noting that the third floor provided a social experience similar to that of the ground floor, the court emphasized the need to implement "the ADA's goal of guaranteeing individuals with disabilities access to places of public accommodation so that they may participate in mainstream American social life." Id. The Laird court also pointed out that the third level — while comprising 43% of the combined floor space available to night club patrons — nevertheless offered relatively little "functional space" due to its architectural design. Id. at 425-26. In addition to its functional analysis, the court in Laird also offered a linguistic interpretation of the ADAAG definitions. In response to plaintiff's contention that the ADAAG's definition of "mezzanine" requires an intermediate level to be placed between two levels, the court concluded that the word "its" in the prepositional phrase "below its floor" refers "to the phrase `an intermediate floor level placed within the story.'" The court continued:

This reading comports with the common understanding that there is `occupiable space' above and below the floor of a mezzanine. Moreover, under plaintiffs reading a mezzanine could never be located on the top floor of any building. There is no sound reason, in law or in policy, why that should be so.
Id. at 425 n.4. Because the third level of the club offered no unique services, provided relatively little functional space, and created occupiable space above and below its floor, the court found the third level to be a mezzanine and not a story. Id. at 426. Accordingly, the three levels did not amount to three stories, and defendant was not required to install an elevator. The court repeatedly emphasized the "pragmatic" nature of its approach, suggesting that the determination of whether a given structure requires an elevator involves more than simple linguistics.

  In this case, defendants do not contend that the warehouse is a mezzanine level. Rather, they contend simply that the warehouse is a separate building such that it does not constitute a third "story" of the Andrews Drive facility.

  The definitions provided by the ADAAG are obviously not comprehensive enough to encompass each and every manifestation of an architect's imagination. Rather, they provide basic guidance so that courts, like this one, may ensure that the goals of the ADA are achieved. In this case, the warehouse attached to the Andrews Drive facility does not fall neatly within the definitional parameters of either "story" or "mezzanine." The warehouse is a separate structure, governed by separate fire codes and safety regulations, yet attached to an office building that faces the road. It serves a wholly separate function than do the offices. Were this court to adopt the reasoning of the Laird court, this "separate function" could render the warehouse its own "story." The functional analysis performed in Laird, however, was partially dependent upon the fact that the night club in that case was comprised of three levels, stacked one upon the next. It seems to have been taken for granted, therefore, that elevator access to the third level would be necessary if disabled individuals were to have access. Put differently, because the three levels of the night club were stacked vertically atop one another, there was no question that the third level — be it a story or a mezzanine — posed a greater difficulty to disabled individuals' ability to access the top level.

  A disabled individual's ability to reach the various levels of the Andrews Drive facility is not at issue in this case. Plaintiff does not dispute that if 1020 Andrews Drive contained only two levels of offices and no warehouse, it would not require an elevator under the ADA. Whether the warehouse is a story, therefore, is a technicality that in no way influences the effort required for an individual to reach the three levels. Because the floor of the warehouse sits five feet above the floor of the first story, it is an intermediate level, placed between the first and second story. If no elevator would be required in a two-story office building, it hardly seems rational that the presence of an intermediate level — which requires no additional climbing or effort to reach it — should result in a mandatory elevator. Ultimately, the third level of the night club in Laird was not considered a story despite the fact that any person wishing to access this level was required to ascend an additional set of stairs to do so. In this case, anyone wishing to access the small portion of the warehouse which served as an office need not ascend an additional staircase. To the contrary, the warehouse can be reached by ascending half-way up the same staircase which leads to the second floor. Stated simply, the warehouse does not add additional height, extra steps, or added vertical distance to the Andrews Drive facility. Moreover, the warehouse level is accessible from the rear entrance, eliminating the need to use stairs at all. Because the warehouse is no less accessible than the rest of the building, whether or not it serves a separate function than the office does not take on the same importance as did the function of the third floor in Laird. In fact, the relative ease of accessibility of the warehouse actually militates against finding it to be a separate "story." Accordingly, the "functional" analysis conducted by the court in Laird is less appropriate in the case at bar than it was in that case.*fn8

  Judge Motz's emphasis, however, that the determination of what constitutes a "story" must be undertaken "pragmatically," in order to yield "the fairest and most sensible solution under the ADA," resonates with equal force in this case. To achieve the fairest result, I believe it is necessary — after reviewing the floor plans, expert reports, architectural drawing, and photographs of this building — to look at the structure as a whole, taking into consideration the dimensions, placement, and purposes of each level.

  (2) 1020 ANDREWS DRIVE

  1020 Andrews Drive is a two-level office building with a warehouse attached to the back of the facility. Because of the warehouse's purpose, it was constructed with high ceilings. While its floor is slightly above the floor of the ground level of the office building, the roof of the warehouse is even with the roof of the office building's second story. The warehouse, therefore, has a roof almost twice as high as that of the two stories contained within the office building. The warehouse's roof, however, rises neither above nor below that of the office building's roof; the two roofs are perfectly even. The presence of the warehouse thus causes no additional height to be added to the Andrews Drive facility.*fn9 Common sense, then, dictates that the presence of additional horizontal square footage in a building will not impact the usefulness of — or necessity of-an elevator.*fn10

  Furthermore, the fact that the warehouse was constructed differently and served a different function than the offices suggests to me that it was closer to a separate building than a separate "story" of the office building, as plaintiff argues.*fn11 Since construction, however, a small portion of the warehouse — labeled an "office annex" by plaintiffs expert, a "photo studio" in the Lease, and the "office space in the back" by defendants — was fitted for office space. See Pl.'s Expert Report at 5; Lease Addendum, ¶ 1; Ferguson Dep. at 76. While a tenant of 1020 Andrews Drive, plaintiff's editorial department chose to use this space as a photography studio, and the remainder of the warehouse was used for trucking. The fact that a portion of the warehouse, which was originally envisioned as a separate-but-attached building, was used for a photography studio does not, however, undermine my conclusion that no reasonable jury could find that the warehouse constitutes a third story. As discussed above, the function of the disputed space is not determinative. Rather, the goals of the ADA and the design of a given structure — particularly the vertical relationship of one level to the next — must guide the analysis of which levels constitute "stories."

  Even if the warehouse and the two stories of office space in the front of the facility are not technically "separate" buildings, my emphasis on their separateness is intended to highlight the fact that an elevator in the Andrews Drive facility would in no way further the goals of the ADA. Despite the fact that they are housed beneath a single roof, the warehouse was constructed in accordance with different building standards and was intended to serve different purposes than the office building. The presence of a photography studio does not change this fact, nor does the fact that the floor of the warehouse is five feet higher than the floor of the main level. The simple fact remains that the distance from the entryway to the second level — which was the distance traveled by plaintiff's employees each morning to reach their offices — remains the same whether the warehouse is or is not attached to the building. If an elevator is not required to reach the second floor, the presence of an intermediate level should not change this result.*fn12

  I find that there is no genuine issue of material fact in that 1020 Andrews Drive contains only two stories under the ADA. Defendants, therefore, are entitled to judgment as a matter of law that they need not install an elevator in 1020 Andrews Drive to be ADA compliant.*fn13

 C. PPHA Elevator Exemption

  Plaintiff next claims that 1020 Andrews Drive violates the Pennsylvania Physically Handicapped Act of 1965 ("PPHA"). Act of Sept. 1, 1965, P.L. 459, as amended, 71 P.S. § 1455.1 et seq. Construction is covered by the PPHA when it is "begun on or after the effective date" of the statute. Id. at § 1455.1c(a). The PPHA was amended on December 20, 1988, and the amended version became effective 60 days later, on February 19, 1989. See P.L. 1296, No. 166, § 2. The Act was therefore effective in 1991, when defendants began construction.

  Defendants argue that its building does not violate the PPHA because the state and local officials responsible for enforcing the PPHA are the same officials who approved its building plan, inspected the premises following construction, and issued certificates of occupancy for the building. See Memo, of Law in Supp. Defs.' Amended Mot. Summ. J. at 9.*fn14 In response, plaintiff presents three arguments. First, plaintiff contends that the West Goshen Township officials who approved the building permit had no authority to enforce the UAS. Their approval, plaintiff argues, therefore does not establish compliance with the PPHA. Secondly, plaintiff contends that the drawings submitted to L&I noted an elevator shaft, thus leading the agency officials to believe that an elevator would be installed in the future.*fn15 And finally, plaintiff argues that an agency's approval of defendant's conduct cannot, under Pennsylvania law, preclude courts from finding a violation of the laws implemented by that same agency.

  This court need not resolve these issues. Despite the fact that 1020 Andrews Drive may well be in violation of the PPHA,*fn16 plaintiff has failed to pursue the administrative remedies required by the PPHA. A plaintiff may not bring a civil action under the PPHA until an initial determination, regarding the building's compliance, has been made by the Pennsylvania Department of Labor and Industry. See 71 P.S. § 1455.3b.*fn17 Where a party disagrees with L&I's determination, it may seek review in the Commonwealth Court. Id. at § 1455.3b(b). Only where a party receives no response from L&I, or where L&I finds a violation but declines to take enforcement measures, may a party "bring a civil action in the appropriate court of common pleas against the building owner or owner's agent for a violation of any provisions of this act or regulations promulgated pursuant to it." Id. at § 1455.3b(c). Presumably, these prerequisites to suit ensure that L & I — which has experience in the construction field and has specific expertise concerning building requirements — has the opportunity to assess a structure's compliance in the first instance. A court, therefore — which has little experience regarding accessibility standards and construction codes — need only evaluate a building where L & I has failed to take action.

  Plaintiff has submitted no evidence that it submitted a timely complaint to L&I concerning the Andrews Drive facility's compliance with the PPHA, and did not even respond to defendants' argument in this regard.*fn18 Because plaintiff is seeking a determination by this court that defendants violated the PPHA,*fn19 and because it has failed to satisfy the administrative requirements set forth by the PPHA and applicable to plaintiffs bringing this type of action, plaintiff cannot pursue this claim as a matter of law. See also Bechtel v. E. Penn Sch. Dist. Lehigh County, No. CIV 93-4898, 1994 WL 3396, *3 (Jan. 4, 1994) (dismissing plaintiff's claim under the PPHA where plaintiff had not filed a complaint with L&I as required by 71 P.S. § 1455.3b).

  Having made the threshold determination that 1020 Andrews Drive violates neither the ADA nor the PPHA as a matter of law, I will address plaintiff's four claims for relief.

 D. Count I; Breach of Lease

  In count I of its complaint, plaintiff alleges that defendants breached the lease. First, plaintiff argues that all leases under Pennsylvania law contain an "implied covenant of quiet enjoyment, . . . which includes a landlord's obligation to comply with applicable laws and regulations." Mem. Law in Supp. Pl.'s Mot. Partial Summ. J. at 22 ("Pl.'s Mem."). According to plaintiff's logic, defendants breached the ADA and PPHA, thus breaching the covenant of quiet enjoyment, thus constituting a breach of the lease under Pennsylvania law.

  Even assuming plaintiff's legal argument is logically sound and sufficiently supported, I have found that there is no genuine issue of material fact and defendants are entitled to judgment as a matter of law with reference to claimed violations of the ADA. Accordingly, plaintiff's first argument in support of its breach of lease claim must fail insofar as it depends upon a finding that 1020 Andrews Drive violates the ADA.

  With respect to alleged violations of the PPHA, however, the matter is somewhat more complicated. As noted above, the Andrews Drive facility appears to violate the standards of the PPHA. Plaintiff, however, has not exhausted the administrative remedies required by the PPHA and therefore cannot bring a claim under that statute. With respect to plaintiff's breach of lease claim, however, the question becomes whether a plaintiff can bring a claim based upon an alleged violation of a statute — rather than a direct claim under the statute — without first exhausting those administrative remedies required of plaintiffs bringing direct claims.

  Neither party has briefed this issue. Assuming arguendo, however, that plaintiff could rely upon defendant's violation of the PPHA as a basis for its breach of lease claim, such violation is not necessarily a material breach of the lease. While Pennsylvania statutory and regulatory provisions are generally incorporated into all contracts executed and performed in Pennsylvania, see Reif v. Reif, 626 A.2d 169, 174 (Pa. Super. 1993) (citing DePaul v. Kauffmann, 441 Pa. 386 (1971)), "[o]ne plain and obvious exception to this broad principle is where the contract discloses a contrary intention." Halderman v. Pennhurst State Sch. & Hosp., 901 F.2d 311, 322 (3d Cir. 1990); see also id. (citing Meneice v. Camp Kadimah Co., 43 A.2d 621, 622 (Pa. Super. 1945)) (where existing law may affect a contract, the incorporation of the law into the contract is a matter of the intent of the parties)).

  The parties in this case clearly manifested their intention that the lease be entered into despite the absence of an elevator. Plaintiff itself states that "Nichols was aware that the building lacked an elevator at the time it negotiated the lease." Pl.'s Mot. Summ. J. ¶ 5. Dean Morgantini, President of plaintiff, testified that he did not — before entering into the lease — "ask [defendant] to install an elevator." See Morgantini Dep. at 18 (attached to Defs.' Amend. Mot. Summ. J. as Ex. A). Morgantini further testified that "[a]t that point . . . our feeling was that [an elevator] was not necessary." Id. at 19.

  Plaintiff's own testimony, therefore, establishes that there is no genuine issue of material fact with respect to the parties' intention that the lease be entered into despite the absence of an elevator in 1020 Andrews Drive. Moreover, it is undisputed that paragraph 7(a) of the lease — which contains a provision relating to the operation and upkeep of the elevator — is crossed out. See Lease ¶ 7 (a); see also Defs.' Mot. Summ. J. ¶ 14; Pl.'s Answer ¶ 14. While plaintiff disputes the legal significance of this crossed out provision — arguing that the failure of either side to initial these markings renders them ineffective — every copy of the lease contains several crossed out provisions without accompanying initialization, suggesting that the parties agreed that changes made to the form Lease need not be initialed. It is unnecessary to determine the precise legal significance of paragraph 7(a), however, as plaintiff's own testimony reveals that it intended to enter into a lease for a building which it now contends did not comply with the PPHA. Furthermore, plaintiff occupied this building for over two years without alleging violation of the lease. Because it is the parties' intentions which dictate whether a statute or regulation will be incorporated into an otherwise silent lease, see Halderman, defendant cannot breach its lease by way of noncompliance with the PPHA when the PPHA was not only not incorporated into the lease, but where the parties' testimony and the contract itself reveal their intention to the contrary. As a second argument in support of its brief of lease claim, plaintiff contends that defendants breached their lease by violating paragraph 7(c) of the lease. This provision reads as follows:

In the event that the demised premises are totally destroyed or rendered unfit for occupancy or are so damaged by fire or other casualty not occurring through fault or negligence of Lessee or of those employed by or acting for him that the same cannot be repaired and restored within a time which Lessor shall deem reasonable, this lease shall absolutely cease and terminate as of the date of occurrence of said destruction or damage, and the rental shall thereafter abate for the balance of the term. If the damage caused as above be only partial and such that the demised premises can be repaired and restored to their former condition within a time which Lessor shall deem reasonable, Lessor may, at his option repair and restore the same with reasonable promptness. The rental shall be apportioned and suspended during the time Lessor is in possession for the purpose of such repair and restoration, taking into account the proportion of the demised premises rendered untenantable and the duration of Lessor's possession.
Lease, ¶ 7(c) (emphasis added). Plaintiff argues that 1020 Andrews Drive was "unfit for occupancy," and offers three reasons why this is so: first, the building "violates state and federal law;" second, "the owner refuse[d] to make it compliant;" and third, "potential tenants decline[d] interest because of the violations." Pl.'s Mem. at 22.

  Plaintiffs reliance upon the building's non-compliance with applicable law cannot serve to create a structure that is "unfit for occupancy," nor can defendants' decision not to install an elevator factor into such an evaluation. Moreover, plaintiff has failed to present evidence sufficient for a reasonable factfinder to find that the two potential tenants' decision not to sublease was due to the lack of an elevator, see infra § II.G., rendering its third line of reasoning altogether toothless. Paragraph 7(c) of the lease is quite obviously intended to apply to the complete or major destruction of a building, rather than the absence of an elevator. Accordingly, I conclude that plaintiff has not presented sufficient evidence to raise a genuine issue of material fact with reference to this claim.

  Third, plaintiff points out that defendants, pursuant to Paragraph 5(c) of the lease, have the right to "control and have dominion over" the elevators. Lease, ¶ 5(c). As it is unclear to this court how the absence of an elevator could be interpreted as a violation of defendants' right to control the elevator, I will not address this argument at length.

  Plaintiff next argues that a lease cannot be enforced to the extent that such enforcement would violate a statute. See Pl.'s Mem. at 23. According to plaintiff, it was therefore "released from the lease obligation" due to defendants' failure to comply with applicable law. Setting aside the indisputable fact that plaintiff had occupied this space for over two years before suggesting that it should be released from the lease — a relevant fact, in my opinion-1 have already determined that there is insufficient evidence that a violation of the ADA occurred.

  With respect to the PPHA, plaintiff — relying upon Fitzpatrick v. Shay, 461 A.2d 243 (Pa. Super. 1983) — appears to be arguing that because 1020 Andrews Drive violated the elevator requirement set forth by the PPHA, its lease is unenforceable as a contract for an illegal purpose.

  "It is well settled that a contract which violates a statute is illegal and will not be enforced." Rittenhouse v. Barclay White Inc., 625 A.2d 1208, 1211-12 (Pa. Super. 1993) (citing Fitzpatrick v. Shay, 461 A.2d 243, 247 (Pa. Super. 1983) (citing Dippel v. Brunozzi, 365 Pa. 264 (1950))). An agreement will be considered void for illegality, however, "only where it cannot be performed without violating a statute." Id. (quotations omitted) (emphasis in original). More specifically, "[a]n agreement between parties which violates a statute is illegal, unenforceable, and void ab initio only if the subject of the agreement is specifically proscribed by statute." Key Bank v. Crawford, 600 F. Supp. 843, 845-46 (E.D. Pa. 1985) (citing O'Brien v. O'Brien Steel Constr. Co., 440 Pa. 375 (1970)) (emphasis added). In this case, the lease is not, by its terms, per se illegal. As discussed supra, the parties clearly manifested an intent to enter into a lease despite the absence of an elevator. Moreover, entering into a lease is not specifically proscribed by the PPHA; rather, the PPHA proscribes the construction of inaccessible buildings. The lease, therefore, is valid and enforceable. Accordingly, plaintiff's fourth argument in support of its breach of lease claim is unpersuasive.

  Finally, plaintiff cites the Restatement of Property, the ADA Technical Assistance Manual, and Pennsylvania contract law in support of its argument that defendants' installation of an elevator shaft, without an elevator cab, constituted an unsafe, non-ADA-approved condition. As discussed above, however, I see no problem with defendants' decision to install an elevator shaft at the time of the building's construction so that the subsequent installation of an elevator cab, should it become necessary or desired, would be less disruptive, difficult, and costly. While a malfunctioning elevator could lead to unsafe conditions, an elevator shaft is an altogether different animal than a broken elevator. Accordingly, I find plaintiff's position unavailing.

  Because I have found no breach of the lease, I need not determine whether any breach is material, nor whether a material breach could have released plaintiff from its obligation to pay rent. Summary judgment will be granted for defendants on count I.

 E. Count II: Negligence Per Se

  In Count II of its complaint, plaintiff claims that defendants' violation of the PPHA amounts to negligence per se.

  Under Pennsylvania law, negligence per se is defined as "conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances." Mahan v. Am-Gard, Inc., ___ A.2d ___ 2003 WL 23009349, *5 (Pa Super. Dec. 24, 2003) (citing Wagner v. Aznon, Inc., 684 A.2d 570, 574 (Pa. Super. 1996)). A "violation of a statute or ordinance," for example, can be a "basis for negligence per se." Id.

  As noted above, neither party has briefed the issue of whether or not plaintiff's failure to comply with the administrative requirements for bringing a direct claim under the PPHA precludes it from bringing a negligence per se claim based entirely upon defendant's alleged violation of the PPHA. Because plaintiff has failed to satisfy each element required for a claim of negligence per se, however, it is unnecessary to decide this issue now.

  A claim for negligence per se which relies upon a statute to provide the standard of care is virtually indistinguishable, substantively, from a direct claim under that same statute. This "close relationship" between a private cause of action and a claim for negligence per se exists "because both private causes of action and negligence per se `address the question of whether the policy behind the legislative enactment will be appropriately served by using it to impose and measure civil damages liability.'" Wagner, 684 A.2d at 630 (citing Lutz v. Chromatex, Inc., 718 F. Supp. 413, 428 (M.D. Pa.1989)). To establish a claim for negligence per se based on a statutory violation, plaintiff must show:

(1) that the purpose of the statute is "at least in part, to protect the interest of a group of individuals, as opposed to the public generally;"
(2) that the statute clearly applies to the conduct of the defendant;
(3) that the defendant violated the statute; and
(4) that the violation was the proximate cause of the plaintiff's injuries.
Wagner, 684 A.2d at 574.

  With respect to the first requirement, that the "purpose of the statute" is to "protect the interest" of plaintiff, the Pennsylvania Supreme Court has adopted section 286 of the Restatement (Second) of Torts, which states that the purpose of the statute must be:

(a) to protect a class of persons which includes Plaintiff;
(b) to protect the particular interest which is invaded;
(c) to protect that interest against the kind of harm which has resulted, and
(d) to protect that interest against the particular hazard from which the harm results.
Taylor v. Danek Medical, Inc., 1998 WL 962062, *10 (E.D. Pa. Dec. 29, 1998) (citing Congini by Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515, 517-18 (1983)); see also Restatement (Second) of Torts § 286.

  The Pennsylvania General Assembly, in enacting the PPHA, set forth the following findings and declarations:

Many architectural barriers exist in the buildings and facilities within this Commonwealth which impede access to and use of these buildings by a sizeable segment of the population. These architectural barriers effectively prohibit persons with physical handicaps, both permanent and temporary, from pursuing an education, entering the work force and enjoying cultural and social activities. For persons with physical handicaps, accessibility is a necessity which enables them to achieve independence and freedom of movement. For many others, such as senior citizens and small children, accessible features are equally advantageous.
Therefore, in order to provide for the general welfare of all citizens, all new construction of buildings, included within the provisions of this act, shall be accessible to and usable by persons with physical handicaps. As existing buildings are remodeled, accessibility features shall be incorporated into these buildings to the maximum extent feasible.
71 P.S. § 1455.1 (emphasis added). Based upon the same rationale which underpinned my holding in Nichols I that plaintiff did not have standing to bring a claim under the ADA because it was not a disabled individual, plaintiff cannot pursue a negligence per se claim based upon defendants' alleged violation of a statute which was not enacted to "protect a class of persons which includes plaintiffs." Accordingly, summary judgment will be entered for defendants on Count II. F. Count III: Tortious Interference with Prospective Contractual Relations

  In its third count, plaintiff claims that defendants purposefully interfered with its ability to re-lease their portion of 1020 Andrews Drive, in violation of the Pennsylvania law of tortious interference with prospective contractual relations. Under Pennsylvania law, this tort requires plaintiff to establish four elements:

(1) a prospective contractual relation; (2) the purpose or intent to harm the plaintiff by preventing the relation from occurring; (3) the absence of privilege or justification on the part of the defendant; (4) the occasioning of actual damage resulting from the defendant's conduct.
Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 208, 412 A.2d 466, 471 (Pa. 1979). Put another way, plaintiff must prove that "but for defendant[s'] wrongful acts, it is reasonably probable that a contract would have been formed." Advanced Power Sys., Inc. v. Hi-Tech Sys., Inc., 1992 WL 97826, *11 (E.D. Pa. Apr. 30, 1992) (citing SHV Coal, Inc. v. Cont'l Grain Co., 376 Pa. Super. 241 (1988)); see also Brokerage Concepts, Inc. v. U.S. Healthcare, Inc., 140 F.3d 494, 530 (3d Cir. 1998) (stating that a finding of "a reasonable likelihood that the relationship would have occurred but for the interference of the defendant" constitutes a fifth element required to establish the tort under Pennsylvania law).

  To prove the existence of the first element, a prospective contractual relationship, plaintiff must present this court with facts sufficient to give rise to a "reasonable probability that particular anticipated contracts would have been entered into." Fresh Made, Inc. v. Lifeway Foods, Inc., 2002 WL 31246922, *12 (E.D. Pa. Aug. 9, 2002). Such probability may arise "from an unenforceable express agreement or an offer, or where there is a reasonable probability that a contract will arise from the parties' current dealings. . . . [M]erely pointing to an existing business relationship or past dealings does not reach this level of probability." Id. (citations and quotations omitted).

  Plaintiff retained the real estate brokerage firm of GMH in order to find a sublessee for its office space at 1020 Andrews Drive. Terry Looker, the broker assigned by GMH to the property, testified that he was in touch with Steve Italiano, a commercial broker, who informed him that he had two prospects for the building.*fn20 Looker Dep. 29-30. In an effort to establish the existence of a "prospective contractual relationship," plaintiff avers that realtor Looker showed the Andrews Drive facility to these two prospective tenants. Plaintiff fails, however, to identify with any degree of particularity who these parties were, whether negotiations were entered into, and whether either party was serious about its interest in the property. Significantly, Looker did not testify that he gave notice of these prospective tenants to defendants, despite engaging in a general conversation with Joe Ferguson about the elevator. Moreover, Looker testified that neither party arranged a second visit or pursued the tenancy. Looker Dep. at 31, 77. Plaintiff's prospective contractual relationship with an unnamed tenant was at best a "hope" and constitutes a "mere scintilla" of evidence to support its claim. There is no factual basis in the record on which a reasonable factfinder could conclude that there was a reasonable probability of any prospective tenant entering into a sublease.

  Furthermore, plaintiff has failed to present evidence of an intent, on the part of defendants, to hinder plaintiff's efforts to sublease its office space. In determining whether defendant has acted improperly for the purposes of a claim for intentional interference with contractual relations, Pennsylvania courts generally consider the factors set forth in § 767 of the Restatement (Second) of Torts:

(1) the nature of the actor's conduct; (2) the actor's motive; (3) the interests of the other with which the actor's conduct interferes; (4) the interests sought to be advanced by the actor; (5) the social interests in protecting the freedom of action of the actor and the contractual interests of the other; (6) the proximity or remoteness of the actor's conduct to the interference; and (7) the relations between the parties.
See also Desimone, Inc. v. Phila. Auth.for Indus. Develop., 2003 WL 21390632, *2 (Pa. Com. Pl. June 10, 2003) (citing Adler, Barish, Daniels, Levin & Creskoff v. Epstein, 482 Pa. 416, 429-31 (1978) and Strickland v. Univ. of Scranton, 700 A.2d 979 (Pa. Super. 1997)). Ultimately, the second element of this tort requires a determination of whether defendants improperly interfered with plaintiff's ability to finalize a sublease with prospective tenants. According to plaintiff, defendants' unwillingness to install an elevator amounts to exactly this type of impermissible interference. The evidence, however, paints a much less clear picture of the events than plaintiff would have this court believe.

  Plaintiff contends that two prospective tenants "expressed an initial interest but later declined to follow up because the building lacked an elevator." Pl.'s Mem. at 28. Looker's deposition testimony, however, states only that the first prospective tenant "had difficulty with the lack of an elevator, and at that point they were not interested in the property;" when asked whether he was told the reasons that this first prospect did not decide to rent the property, he answered "[n]ot specifically." Looker Dep. at 30-31. With respect to the second tenant, who "was going to look into the possibility of putting a chairlift up the staircase," Looker never received a follow-up call. Id. at 77. Even if it could be inferred, therefore, that the lack of an elevator might have factored into these two parties' consideration as to whether or not to sublease the space, whether defendants intentionally interfered with the subleasing process is a separate inquiry.

  Looker testified that he met with defendant Joseph Ferguson once:

Q. And in that one conversation can you, just briefly, tell us what topics were covered?
A. Introduced myself, introduced my company, told him what we were doing for Nichols, asked him if I could put a sign up, asked him if he was going to put an elevator in, asked him if he was okay to extend the contract beyond the sublease, and asked him if I could get paid.
Q. What was his response when you asked him about an installation of an elevator?
A. He was not going to put one in.
Q. Did he tell you why not?
A. Not specifically.
Q. Did he make any general type of statement?
A. I don't recall.
Looker Dep. at 53. Relying upon this testimony, plaintiff argues that "Looker explained to Nichols that the absence of an elevator was impairing the ability of Nichols to sub-let the premises but Ferguson declined to install one." Pl.'s Mem. at 28. Plaintiff's argument assumes too much from too little actual evidence, however, as it is clear from Looker's testimony that no such "explanation" occurred, that Ferguson was not told of any difficulties posed by the lack of an elevator, and that Ferguson did not intentionally refuse to install an elevator in order to hinder plaintiff's efforts to sublease its space.

  Furthermore, Joseph Ferguson's testimony regarding this brief meeting — which is more detailed and recounts two separate conversations — undercuts plaintiff's claim that the absence of an elevator was intentional:

A. . . . So Terry Looker came by and asked the receptionist if he could see me and I said fine. And he came back, and pretty much the conversation was, Terry, I'm not adverse to extending the lease. I just need some details there. And that was the first conversation with Terry Looker, and that's pretty much it. He asked me also if he could put a sign in front of the building for the sublease and I said yes, he could. It wasn't a problem.
Q. Okay. Then you said there was second meeting?
A. Yes. Terry came in and he was telling me how the building had to be handicapped — compliant, and I had to have an elevator and I didn't have an elevator. And pretty much I said, Terry, I don't appreciate you coming in here and preaching to me. If you have a tenant that needs an elevator, bring in the tenant, let's talk about it and we'll deal with this issue. That was the second conversation. I never heard from him since.
Q. Did Mr. Looker tell you that people had been interested, but because it was not ADA compliant that they would not enter into a sublease or lease?
A. I don't know if he specifically said that or said he had somebody that was interested. Again, my answer to him was, let's talk about it. Tell me who you got and what you need and we can deal with these issues.
Ferguson Dep. at 152-54.

  Neither Looker's testimony nor Ferguson's testimony suggests that defendants' decision not to install an elevator was intended to impede plaintiff's efforts to secure a sublettor. Moreover, Ferguson's testimony indicates that he was willing to discuss the possibility of installing an elevator, had plaintiff presented him with an interested sublettor.*fn21 The undisputed evidence, therefore, fails to raise a genuine factual issue as to whether defendants had the "purpose or intent to harm the plaintiff by preventing the relation from occurring," as required to prove this tort. Because no evidence has been presented in support of either of the first two elements of tortious interference with prospective contractual relations, summary judgment will be entered for defendants on this claim. G. Count IV: Constructive Eviction

  In count IV of its complaint, plaintiff alleges that it was constructively evicted from 1020 Andrews Drive.

  Under Pennsylvania law, constructive eviction occurs when a landlord deprives a tenant of the beneficial enjoyment of all or part of the leased premises in such a way as to manifest an intention to hold the premises adversely to the tenant. See Kuriger v. Cramer, 498 A.2d 1331, 1338 (Pa. Super. 1985). The landlord's interference must be "of a substantial nature," and must result in the tenant's abandonment of the premises within a reasonable time thereafter. Id. (noting that a landlord who withholds heat could be found to have constructively evicted the tenant).

  Pennsylvania courts will not find constructive eviction, however, absent substantially injurious or egregious conduct by a landlord. See, e.g., Morse v. Phila. Hous. Auth., 2003 WL 22097784, *2 n.4 (E.D. Pa. Aug. 12, 2003) (holding that a squatter notice sent to plaintiff, coupled with repeated visits to the home by the housing authority police, constituted a constructive eviction); Drysdale v. Woerth, 158 F. Supp.2d 678, 681 (E.D. Pa. 2001) earlier opinion at 1998 WL 966020 (E.D. Pa. Nov. 18, 1998) (jury found constructive eviction where landlord ripped trees off tenant's property, obstructed tenant's access to premises, chased tenant's landscaper off the property, and took other hosfile actions); Morley v. Morley, 424 A.2d 524, 526 (Pa. Super. 1981) (constructive eviction occurred where husband changed lock on couple's dwelling during wife's temporary absence and failed to provide her with a new key).

  Plaintiff argues that it was constructively evicted when defendants refused to comply with the ADA and PPHA. Even assuming that 1020 Andrews Drive is in violation of the PPHA, this violation is insufficient, standing alone, to constitute a constructive eviction. Plaintiff cites Elfman v. Berman for the proposition that a landlord's failure to comply with applicable laws and regulations constitutes a breach of the covenant of quiet enjoyment which, in turn, constitutes a constructive eviction. See Pl.'s Mem. at 20 (citing Elfman v. Berman, 56 Pa. D. & C. 4th 171 (Phila. May 8, 2001)). In Elfman, the court determined that defendants, "by changing the locks on the building, failing to provide essential services, willfully neglecting the building, failing to comply with the city code such that L&I shut down the building, and failing to take all steps necessary to remove violations of the code such that L&I will re-open the building," breached the covenant of quiet enjoyment and constructively evicted the plaintiffs. Elfman, Pa. D. & C. 4th at 184. The constructive eviction in Elfman, therefore, depended not only upon the defendants' failure to comply with local codes, but upon a totality of circumstances which resulted in a complete restriction of access to the building. No such additional circumstances are present in this case. Moreover, to the extent that defendants' non-compliance factored into the Elfman court's analysis, the defendants' non-compliance in that case was so egregious that the building in question had been shut down. In this case, plaintiff not only had access to 1020 Andrews Drive, but had been conducting business in the facility for over two years. Plaintiff's reliance upon Elfman, therefore, is unavailing.

  As another court in this district has held, a lessor's failure to comply with applicable building codes will rarely constitute a breach of the covenant of quiet enjoyment absent "an affirmative wrongful act on the part of the landlord which results in an interference with the tenant's possession." Wm. H. McGee & Co., Inc. v. Richard I. Rubin & Co., Inc., 1995 WL 366075 (E.D. Pa. June 20, 1995) (Buckwalter, J.). InMcGee the court dismissed plaintiffs claim for breach of the covenant of quiet enjoyment where — despite the defendants' failure to comply with applicable building codes — plaintiff had failed to present evidence suggesting any "deliberate actions serving to render the premises unsuitable for the purpose for which it was leased." Id. at *4 (emphasis added).

  Despite defendants' alleged noncompliance with the PPHA, their failure to install and elevator does not evince the type of "deliberate" action — nor did it result in the type of "unsuitable" conditions — required in order to find constructive eviction. Plaintiff has not presented any evidence that defendants manifested an "intention to hold the premises adversely" to them, nor has it established "substantially injurious or egregious conduct" on the part of defendants. Moreover, the condition which plaintiff asserts as the basis for its constructive eviction claim remained unchanged; it would contravene notions of equity to find that a plaintiff who entered into a lease with knowledge of the absence of an elevator could then rely on that same absent elevator in order to claim that its landlord engaged in "injurious conduct" that rendered the property "unsuitable."

  A reasonable factfinder could not conclude that plaintiff was constructively evicted. Summary judgment, therefore, will be entered in favor of defendants on this claim.

  III. Conclusion

  The commercial facility located at 1020 Andrews Drive does not violate the ADA. To the extent that Counts I and IV of plaintiff's complaint depend upon a threshold finding of such a violation, therefore, plaintiff's claims cannot succeed. Because plaintiff has failed to present evidence sufficient to give rise to a genuine issue of material fact with respect to its other arguments in support of these claims, defendant's motion for summary judgment will be granted. Because plaintiff has also failed to present evidence sufficient to give rise to a genuine issue of material fact with respect to its claim for tortious interference with prospective contractual relations, defendants' motion for summary judgment on Count III will be granted as well. And finally, because the undisputed evidence reveals that plaintiff cannot satisfy the elements of its negligence per se cause of action, defendants' motion for summary judgment will be granted with respect to count II. An appropriate order follows. Memorandum and Order

  And now, on this ____ day of April 2004, upon consideration of both parties' motions for summary judgment, it is hereby ORDERED that:

1.) Defendants' motion for summary judgment (Doc. # 10) is GRANTED;
2.) Plaintiff's motion for summary judgment (Doc. #11) is DENIED; and
3.) Judgment is entered in favor of Defendants Joseph and Michele Ferguson and against plaintiff W.G. Nichols Inc.


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