Before the court are the parties' cross-motions for partial summary judgment as to count one of the second amended complaint. (See Docket Nos. 116 and 119.) These cross-motions raise common questions of law and will be addressed concurrently. For the reasons that follow, plaintiff's motion for partial summary judgment will be denied in its entirety, while defendant's motion for partial summary judgment will be granted in part and denied in part. This long-running saga must continue because, with one exception, the parties have utterly failed to demonstrate that there are no genuine issues of material fact to be resolved at trial.
These cross-motions are actually the third set of cross-motions for partial summary judgment. This court previously addressed one set of cross-motions with respect to the first amended complaint (Docket No. 21) on January 24, 2008, and an additional set of cross-motions with respect to the second amended complaint (Docket No. 68) on February 18, 2009. The relevant facts of this case, many of which were set forth in the court's memoranda and orders addressing the prior motions for summary judgment (Docket Nos. 65 & 94) are as follows.
Plaintiff, 2401 Walnut, L.P. ("2401 Walnut"), owns an office building at 2401 Walnut Street, Philadelphia (hereinafter the "Building"). Defendant American Express Travel Related Services Company, Inc. ("American Express"), was at one time plaintiff's tenant in the Building under the terms of a commercial lease that commenced on October 1, 2003, and is now terminated. The parties entered into this lease pursuant to an agreement wherein American Express agreed to acquire another company, Rosenbluth International, Inc. ("Rosenbluth"), the building's then-owner.
The Building formerly served as Rosenbluth's company headquarters. On July 11, 2003, American Express entered into a Stock Purchase Agreement ("SPA") with Rosenbluth to purchase all shares of Rosenbluth stock. The SPA provided that certain of Rosenbluth's assets would be excluded from the purchase, and that Rosenbluth would transfer these assets to a third party prior to the closing. SPA § 5.8 (Docket No. 83, Ex. H., at 42). Among these excluded assets was the Building, though American Express would acquire the "tangible property located in the building":
Prior to the Closing, [Rosenbluth] shall take all reasonably appropriate and necessary action to dispose of or transfer the following assets of the Company [Rosenbluth] effective as of the Closing Date and to transfer or to discharge the related liabilities . . . the real property (land and building) for the Company's headquarters located in Philadelphia, PA, including the adjacent parking lot (the "Headquarters"), but not the computers, equipment and other tangible property located in the building, which Headquarters shall be transferred to an assignee or transferee who agrees to enter into a lease agreement, dated as of the Closing Date, in the form of Exhibit 7.1 (xiii) attached hereto (the "Headquarters Lease Agreement") and obtain any consents related thereto . . . .
Id. (emphasis added). The closing was completed on September 30, 2003.
As required by the SPA, Rosenbluth transferred the Building to a third party, plaintiff 2401 Walnut. The transfer, as described in the deed, included the Building "and improvements thereon erected." See Deed (Docket No. 83, Ex. L., at 1). Plaintiff then entered into the "Headquarters Lease Agreement" with American Express referenced in § 5.8 of the SPA. Under the lease's terms, American Express was required, upon termination of the lease, to "leave the Building . . . in good order and condition, ordinary wear and tear, damage by fire or other casualty alone excepted." Lease § 6(a) (Docket No. 83, Ex. B., at 3--4). American Express was also responsible, under the lease, "for making all repairs . . . foreseen and unforeseen, required to keep and maintain the structural and non-structural portions of the Building and Property . . . in good order and condition." Id. § 6(b) (Docket No. 83, Ex. B., at 4). The lease further provided that American Express, at its own expense, would remove all items of its own property from the Building upon termination of the lease:
Tenant shall at the expiration or earlier termination of this lease or of Tenant's right of possession, also remove from the Building all furniture, trade fixtures, office equipment and all other items of Tenant's property so that the Landlord may again have and repossess the Building. . . . Tenant shall repair, at or before the expiration or termination of this Lease or of Tenant's right of possession, all damage done to the Building or any other part of the Building by installation or removal of furniture and property by Tenant . . . .
Id. § 6(a) (Docket No. 83, Ex. B., at 3--4). The lease further gave plaintiff the option to assume possession of any "fixtures" that American Express attached to the Building, or to have American Express remove them:
All alterations, additions or improvements made by Tenant and all fixtures attached to the Building shall become the property of Landlord and remain at the Building, or, at Landlord's option, any or all of the foregoing shall be removed at the cost of the Tenant before the expiration or sooner termination of this lease and in such event Tenant shall repair all damage to the Building caused by the installation and/or removal thereof.
Id. § 8(b) (Docket No. 83, Ex. B., at 5--6).*fn1 The lease went into effect October 1, 2003, and terminated October 30, 2006.
In March 2007, plaintiff filed suit for breach-of-the-lease in the Philadelphia Court of Common Pleas. Defendant then removed the case to this court. In its one-count first amended complaint, plaintiff alleged that defendant failed to satisfy its obligation to leave the building in satisfactory condition and failed to comply with its obligation to remove the following items from the Building:
(1) [K]itchen fixtures and signage (including, without limitation, equipment, plumbing, and grease traps), (2) "Continuum" trade space and all specialized rooms (including ceilings, walls, flooring and signage), (3) customized trade spaces (including, without limitation, data room, theater, and network operations center), (4) customized components (including, without limitation, halon fire system), (5) satellite dishes, projection equipment, screens and other related equipment, (6) metal rods left in building where signage for Rosenbluth International was removed by Tenant, (7) customized fixtures in basement including a gym and lockers, (8) signage throughout building including wall name plates, (9) piping from water purification systems on each floor, and (10) superfluous cabling and wiring that runs throughout the building.
Am. Compl. ¶ 11 (Docket No. 21). In the parties' first cross-motions for partial summary judgment, defendant acknowledged that it did not remove the items listed in the amended complaint. Defendant argued, however, that the disputed items were "fixtures" that were constitutive of the Building that plaintiff purchased pursuant to the SPA, and that therefore defendant had no obligation to remove the items, which belonged to plaintiff, upon termination of the lease. In January 2008, this court accepted this argument and awarded partial summary judgment to defendant. (Docket No. 65.)
In April 2008, plaintiff, with the permission of Magistrate Judge M. Faith Angell, filed a two-count second amended complaint. In the second amended complaint, plaintiff again alleges that defendant failed to satisfy its obligation to leave the building in satisfactory condition. However, the second amended complaint omits the claim in the first amended complaint upon which this court granted summary judgment-that defendant failed to remove certain items-and, in its stead, alleges that defendant improperly removed items that were "fixtures" of the Building:
In breach of paragraph 6(a) of the Lease, [American Express] has removed various fixtures in the Building that are [plaintiff's] property and not [American Express's] property, including, without limitation, (1) kitchen fixtures and signage (including, without limitation, equipment, and plumbing), (2) portions of the "Continuum" trade space and all specialized rooms (including ceilings, walls, flooring and signage), (3) portions of customized spaces (including, without limitation, data room, theater, and network operations center), (4) portions of customized components (including, without limitation, built-in computer fixtures), (5) audio-visual fixtures, projection equipment fixtures, screens, plasma TVs and other related fixtures, (6) signage for Rosenbluth International, (7) customized fixtures in basement including, without limitation, gym fixtures and mirrored walls, (8) signage throughout building including, without limitation, wall name plates, (9) water purification systems on each floor, (10) electrical, computer, satellite and/or telephone system fixtures, and (11) built-in work station fixtures and furniture fixtures. Second Am. Compl. ¶ 12 (Docket No. 68). With this factual allegation, the second amended complaint alleges both a breach of lease claim (count one) and a negligence claim (count two).
In May 2008, defendant moved to dismiss count two of the second amended complaint. In its motion to dismiss, defendant argued that plaintiff's negligence count is essentially duplicative of its breach-of-the-lease count and is therefore barred under Pennsylvania's "gist-of-the-action" and "economic loss" doctrines. The parties also submitted cross-motions for partial summary judgment on the question whether American ...