United States District Court, E.D. Pennsylvania
April 21, 2004.
W.G. NICHOLS, INC., Plaintiff
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.
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
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
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
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
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
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
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
(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
(b) to protect the particular interest which is
(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 §
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
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
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
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
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
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
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
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
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
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
A reasonable factfinder could not conclude that plaintiff was
constructively evicted. Summary judgment, therefore, will be entered in
favor of defendants on this claim.
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.