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Kote v. Bank of New York Mellon

Superior Court of Pennsylvania

August 25, 2017

SPIRO KOTE, Appellant
v.
THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWABS, INC., ASSETBACKED CERTIFICATE SERIES 2006-20 AND CARRINGTON REAL ESTATE SERVICES, LLC AND SAFEGUARD PROPERTIES, LLC, Appellees

         Appeal from the Judgment Entered July 14, 2016 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): December Term, 2014 003476

          BEFORE: BENDER, P.J.E., BOWES and SHOGAN, JJ.

          OPINION

          SHOGAN, J.

         Appellant, Spiro Kote ("Kote"), appeals from the judgment entered on July 14, 2016. The July 14, 2016 judgment made final the March 15, 2016 orders that sustained preliminary objections filed by Carrington Real Estate Services, LLC ("Carrington") and Safeguard Properties, LLC ("Safeguard"), and granted the motion for judgment on the pleadings filed by The Bank of New York Mellon, formerly known as The Bank of New York, as Trustee for the Certificateholders CWABS, Inc., Assetbacked Certificate Series 2006-20 ("BNY Mellon").[1] After careful review, we affirm.

The trial court summarized the background of this matter as follows:
On January 28, 2014, between 7:00pm and 8:00pm, [Kote] made a Chinese food delivery to a foreclosed and vacant property located at 6298 Kindred Street in the Oxford Circle section of Philadelphia, PA (herein, the "Property"). [Kote] made the delivery as a result of a phone order. [Kote] knocked on the front door and, after being admitted, was shot in the chest multiple times by an unknown assailant or assailants who were inside the Property. [Kote] suffered serious bodily injury as a result of the shooting. Complaint at ¶ 11-13.
[Appellee] BNY Mellon owned, operated, possessed, maintained and controlled the foreclosed and vacant property. BNY Mellon entered into an agreement with [Appellee] Carrington to act as … BNY Mellon's agent in the sale of the Property. Carrington also maintained and controlled the Property in its capacity as an agent of BNY Mellon. [Appellee] Safeguard was hired to secure and inspect the Property. Id. at ¶ 5-10.

Trial Court Opinion, 12/22/16, at 1-2.

         Kote filed his initial complaint against Appellees on December 23, 2014, and following numerous responsive pleadings, Kote filed a first amended complaint on December 28, 2015. In the amended complaint, Kote alleged that Appellees knew or should have known that criminal acts have occurred in the area of the property at 6298 Kindred Street in Philadelphia ("the Property") where Kote was attacked. First Amended Complaint, 12/28/15, at ¶¶ 17-24. Kote further asserted that he was injured due to Appellees' negligence, failure to comply with the City of Philadelphia Property Maintenance Code, and violations of the Restatement (Second) of Torts. Id. BNY Mellon filed its answer and affirmative defenses on January 19, 2016, admitting that it was the owner of the Property. Answer and Affirmative Defenses to Plaintiff's Amended Complaint on Behalf of BNY Mellon, 1/19/16, at ¶ 5. BNY Mellon further admitted that it entered into an agreement with Carrington to act as its agent in the sale of the Property. Id. at ¶ 6. BNY Mellon also admitted that Safeguard was responsible for securing and inspecting the Property. Id. at ¶ 9.

         Safeguard and Carrington filed preliminary objections on January 22, 2016, and January 25, 2016, respectively. BNY Mellon filed its motion for judgment on the pleadings on June 2, 2016. As noted above, the trial court sustained the preliminary objections, and dismissed all claims against Carrington and Safeguard. Additionally, the trial court granted BNY Mellon's motion for judgment on the pleadings. This timely appeal followed. Both Kote and the trial court complied with Pa.R.A.P. 1925.

         On appeal, Kote raises the following issues for this Court's consideration:

1) Was Appellant Kote a business visitor under Section 332 of the Restatement (Second) of Torts?
2) Did BNY Mellon violate its duty to business visitors under Section 344 of the Restatement (Second) of Torts to discover intentionally harmful acts of third persons or to warn or protect against them?
3) Did BNY Mellon violate its duty under Section 324A of the Restatement (Second) of Torts by failing to exercise reasonable care concerning its undertaking to render services?
4) Did BNY Mellon violate its duty under Section 365 of the Restatement (Second) of Torts by failing to exercise reasonable care to disclose disrepair and its unreasonable risk and to make it reasonably safe?
5) Was the criminal act of third parties a superseding cause of the injuries to Appellant Kote according to Section 448 of the Restatement (Second) of Torts?
6) Is Appellant Kote protected by the Philadelphia Property Maintenance Code, thereby justifying application of negligence per se?
7) Are Carrington and Safeguard, agents of BNY Mellon, bound by the same duties as BNY Mellon, and did they violate the same duties as BNY Mellon?

Kote's Brief at 5-6 (italicization omitted).

         The standard we apply when reviewing the grant of a motion for judgment on the pleadings and preliminary objections in the nature of a demurrer is as follows:

Entry of judgment on the pleadings is permitted under Pennsylvania Rule of Civil Procedure 1034, which provides that "after the pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for judgment on the pleadings." Pa.R.C.P. 1034(a). A motion for judgment on the pleadings is similar to a demurrer. It may be entered when there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law.
Appellate review of an order granting a motion for judgment on the pleadings is plenary. The appellate court will apply the same standard employed by the trial court. A trial court must confine its consideration to the pleadings and relevant documents. The court must accept as true all well pleaded statements of fact, admissions, and any documents properly attached to the pleadings presented by the party against whom the motion is filed, considering only those facts which were specifically admitted.
We will affirm the grant of such a motion only when the moving party's right to succeed is certain and the case is so free from doubt that the trial would clearly be a fruitless exercise.
Coleman v. Duane Morris, LLP, 58 A.3d 833, 836 (Pa. Super. 2012) (citations omitted). Our review of an order sustaining preliminary objections in the nature of a demurrer involves similar principles.
Our standard of review of an order of the trial court overruling or [sustaining] preliminary objections is to determine whether the trial court committed an error of law. When considering the appropriateness of a ruling on preliminary objections, the appellate court must apply the same standard as the trial court.
Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. When considering preliminary objections, all material facts set forth in the challenged pleadings are admitted as true, as well as all inferences reasonably deducible therefrom. Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.
Richmond v. McHale, 35 A.3d 779, 783 (Pa. Super. 2012), quoting Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011).

Southwestern Energy Production Co. v. Forest Resources, LLC, 83 A.3d 177, 185 (Pa. Super. 2013).

         In his first issue, Kote argues that the trial court erred in failing to deem Kote a business visitor under of the Restatement (Second) of Torts ...


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