The opinion of the court was delivered by: Pollak, J.
Plaintiffs George Cater and Cheryl Cater filed suit in the Court of Common Pleas of Philadelphia County, alleging negligence and loss of consortium arising from a fall on the allegedly icy Starbucks parking lot (docket no. 1). The defendants were Starbucks and Paul Mastropieri, the owner of the parking lot, who leased to Starbucks the building in which Starbucks was located and which was adjacent to the parking lot (docket no. 1).
On grounds of diversity defendants removed the suit to this court (docket no. 1). In its answer, Starbucks brought a cross-claim for indemnification and breach of contract against Mastropieri (docket no. 3). Starbucks then joined as third-party defendants the Beer Yard, which shared the parking lot with Starbucks, and Anthony Marchesani, who plowed the parking lot (docket nos. 9 & 10). Marchesani then brought a claim for indemnification against Mastropieri (docket no. 20). The Caters, in an amended complaint (docket no. 30), then brought claims against the third-party defendants, Marchesani and the Beer Yard.
Several motions for summary judgment have been filed, including: Starbucks' motion for summary judgment against the Caters, based on an open, obvious, and known condition/assumption of risk (docket no. 89); Starbucks' motion for summary judgment against the Caters and Mastropieri, based on a lack of duty and for indemnification (docket no. 90); Mastropieri's motion for summary judgment on all claims against him (docket no. 88), Beer Yard's motion for summary judgment on all claims against it (docket no. 86); and Marchesani's motion for summary judgment on all claims against him (docket no. 87).
This memorandum and accompanying order address Starbucks' motion for summary judgment against Mastropieri and the Caters, based upon a lack of duty and right to indemnification (docket no. 90). The Caters and third-party defendant Mastropieri have responded (docket nos. 95 & 99). Starbucks has replied (docket no. 111). The motion is now ripe for disposition.
On February 15, 2006, Cheryl Cater and her husband, George, drove to the Starbucks at 218 East Lancaster Avenue. Starbucks Exh. I-1, at 64-65 (Depo. of Cheryl Cater). The night before there was "an icy rain." Id. at 77. The Caters observed a woman, Libby Schwartz, lying in the middle of the parking lot. Id. at 56. The Caters stopped their car and George carried Schwartz to the back door of the Starbucks. Id. at 74.
As she got out of her car, Cheryl Cater was concerned about her ability to walk across the parking lot due to the ice. Id. at 81. Cheryl Cater went inside the Starbucks to where Schwartz and her husband were. Id. at 82. Schwartz asked Cheryl Cater to retrieve Schwartz's purse from her car, because it contained her medical information. Id. at 86-87. In trying to reach Schwartz's car, Cheryl Cater slipped and fell in the area where Schwartz's car was located. Id. at 92-93.
In 1996, Starbucks and Mastropieri entered into a commercial lease for the Starbucks property, which is located at 218 East Lancaster Avenue, Wayne, Pennsylvania. Starbucks Exh. C. The commercial lease defines the "premises" leased as "the building containing approximately 4,080 square feet of floor area." Starbucks Exh. C at ¶ 1.
The lease provides that, except for certain repairs specified by the prior section which are not at issue, the "Landlord shall pay for and make all other repairs and/or replacements to the Premises and the Building (including Common Areas as defined below)." Starbucks Exh. C at ¶ 6.2. "Common Areas" is defined as "all portions of the Property (excluding the Premises and two (2) other premises identified as [the building now leased by the Beer Yard and the Kay & Sons Premises]." Starbucks Exh. C at ¶ 12.1. The parking lot is a common area. The lease further states that:
Except for repairs and replacements to the Premises that Tenant must make under Section 6.1, Landlord shall pay for and make all other repairs and/or replacements to the Premises and the Building (including Common Areas as defined below). Landlord shall, at its sole cost and expense, make the repairs and replacements necessary to maintain the Building in a sound condition comparable to other similar buildings in the Wayne metropolitan area. Such repairs, replacements, and maintenance shall include the upkeep of the roof, foundation, exterior walls, interior structural walls, and all structural components of the Building and Property and structural and non-structural components of the Common Areas pursuant to Section 12. . . .
Tenant may at its option, undertake such repairs and deduct the cost thereof from the installments of Base Rent and Estimated Monthly Rent next falling due. Notwithstanding the foregoing, in the event of an emergency, Tenant may give Landlord such shorter notice as is practicable under the circumstances, and if Landlord fails to make such repairs immediately, Tenant may immediately undertake such repairs and deduct the cost thereof from the installments of Base Rent and all other charges next falling due.
Starbucks Exh. C at ¶ 6.2. Under Section 12, Mastropieri is to pay the operating expenses-- "expenses actually paid in any calender year directly attributable to maintaining, operating and providing services to and for the Common Area." Starbucks Exh. C at ¶ 12.1-12.5. The lease specifies that Mastropieri would make such repairs promptly but "in any event within thirty ...