Cotter, W. v. Tandy Corp. v. Millcreek v. Thompson (memorandum)
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J-A16033-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 WILLIAM COTTER, Appellant v. TANDY CORPORATION d/b/a RADIO SHACK AND K-MART CORPORATION, v. MILLCREEK REALTY ASSOCIATES, LTD, v. SHAWN R. THOMPSON AND S.R. THOMPSON ENTERPRISES, INC., Appellees : : : : : : : : : : : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1524 WDA 2013 Appeal from the Order entered on September 13, 2013 in the Court of Common Pleas of Erie County, Civil Division, No. 10299-2011 WILLIAM COTTER, Appellant v. TANDY CORPORATION d/b/a RADIO SHACK AND K-MART CORPORATION, v. MILLCREEK REALTY ASSOCIATES, LTD, v. SHAWN R. THOMPSON AND S.R. : : : : : : : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA J-A16033-14 THOMPSON ENTERPRISES, INC., : : : : : : APPEAL OF: RADIO SHACK CORPORATION Appellee No. 1568 WDA 2013 Appeal from the Order entered on September 13, 2013 in the Court of Common Pleas of Erie County, Civil Division, No. 10299-2011 BEFORE: DONOHUE, OTT and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED JUNE 20, 2014 judgment against him and in favor of Tandy Corporation, d/b/a Radio Shack -Ma - filed a crossagainst Radio Shack on its breach of contract, contribution and indemnification actions against Millcreek. We affirm. In its Opinion, the trial court summarized the relevant history underlying the instant appeal as follows: [Cotter] alleges that on February 3, 2009, he sustained injuries arising from a fall on a sidewalk adjacent to the Radio Shack store in the K-Mart West Plaza shopping center in Erie On April 4, 2011, [Cotter] filed his [C]omplaint alleging [that] he slipped and fell on the sidewalk of the shopping center as he was exiting Radio[] Shack. On May 2, 2011, [Cotter] filed an [A]mended [C]omplaint, claiming that he -2- J-A16033-14 slipped and fell on an isolated patch of black ice located on the sidewalk adjacent to Radio Shack before entering the Store. [Cotter] assert[ed] that both Radio Shack and K-Mart were responsible for the care and maintenance of the sidewalk. In their respective answers and new matter, Radio Shack and Kmaintenance. Radio[]Shack claimed that Millcreek [] was responsible for, cared for, supervised and maintained the sidewalk. On June 27, 2011, it filed a [Joinder C]omplaint joining Millcreek and asserted claims for breach of contract and contribution and indemnity. Radio Shack assert[ed] that it leased its store premises from Millcreek, and that Millcreek was responsible for the maintenance of the common areas of the shopping center. On September 8, 2011, Millcreek filed an [A]nswer, [N]ew [M]atter and [C]ross[C]omplaint. Millcreek admitted it was the landlord of the e for the maintenance of common areas. However, it further asserted that pursuant to contract, [Thompson] was responsible. On September 15, 2011, Millcreek filed a [C]omplaint to 24, 2006 contract for snow plowing and removal at the K-Mart Plaza West. On January 9, 2012, [Cotter] filed a [S]econd [A]mended [C]omplaint. Generally, it contained the same factual averments and causes of action as the [A]mended [C]omplaint except for references to particular injuries. Radio Shack and K-Mart filed their respective [A]nswers and [N]ew [M]atter, denying that they were responsible for the care and maintenance of the sidewalk. On March 22, 2013 and April 10, 2013, Radio[]Shack and K-Mart respectively filed summary judgment motions/supporting briefs. [Cotter] filed responsive briefs to each [M]otion. -3- J-A16033-14 Trial Court Opinion, 5/20/13, at 1-3 (emphasis in original, citations omitted). Millcreek and Thompson also filed summary judgment motions. The trial negligence claims. The trial court additionally granted summary judgment in Millcreek.1 The trial court further entered summary judgment against Radio Shack on its breach of contract, indemnity and contribution cross-claims against Millcreek. Finally, the trial court entered summary judgment in favor of Thompson on all claims. judgment against him and in favor of K-Mart, Radio Shack and Millcreek.2 Thereafter, Cotter timely filed a Pa.R.A.P. 1925(b) Concise Statement of Matters Complained of on Appeal. In this appeal, Cotter presents the following claim for our review: Whether the trial court erred in concluding as a matter of law that [Cotter] failed to adduce sufficient evidence, direct and/or circumstantial, that either Radio Shack or K-Mart were liable to him, that there was no evidence that Radio Shack or K-Mart were under a duty to maintain the sidewalk where [Cotter] fell[,] and that there was no duty on the part of Radio Shack or K-Mart to clear the sidewalk where [Cotter] fell on ice or snow or warn him of any danger[ous] conditions? 1 claim against Radio Shack. 2 No party appealed the entry of summary judgment in favor of Thompson. -4- J-A16033-14 Brief for Appellant at 4. In its cross-appeal, Radio Shack presents the following claims for our review: [A.] Whether the [t]rial [c]ourt erred in concluding as a matter of contract and contribution and indemnification[,] arising out of a lease agreement, are conditional upon an actual finding of negligence by [the Defendants] in the underlying action [where] [B.] Whether the [t]rial [c]ourt erred in concluding as a matter of law that the lease agreement entered into between Radio[]Shack and Millcreek does not require Millcreek to under any circumstances? appeal. Cotter claims that the trial court erred in granting summary judgment against him and in favor of the Defendants. Brief for Appellant at 9. Cotter asserts that he presented circumstantial evidence of the liability of Radio Shack and/or K-Mart to him as a business/public invitee. Id. at 11. In support, Cotter directs this Court to his deposition testimony, which explained the incident as follows: I walked toward Radio Shack; I got on the sidewalk. I was coming to their door. I slipped, caught myself with my right arm I got up, went in the store and told the manager that I had fallen and that he should do something about the black ice. Id. at 14 (citation omitted). Cotter additionally points out his testimony that he saw black ice on the sidewalk after his fall, although it was invisible to him preceding the accident. Id. According to Cotter, he presented evidence -5- J-A16033-14 that both Radio Shack and K-Mart (1) possessed the land on which he fell; (2) knew or should have known, with the exercise of reasonable care, of the ice on the sidewalk; and (3) failed to exercise reasonable care to protect Cotter from the danger created by the isolated patch of black ice. Id. at 16. In its Opinion, after setting forth the appropriate scope and standard of review and relevant law, the t concluded that it lacks merit. Trial Court Opinion, 5/20/13, at 3-7. We agree with the sound reasoning of the trial court and affirm its entry of summary judgment in favor of the Defendants on this basis. See id. In its cross-appeal, Radio Shack claims that the trial court improperly entered summary judgment against it and in favor of additional defendant -claims. Brief of Radio Shack at 18. Radio Shack argues that the trial court improperly concluded that Radio upon a finding of negligence by the Defendants. Id. at 19. According to Radio Shack, its breach of contract and contribution and indemnification Id. Upon our review of the record, we disagree. of contract and contribution a against Radio Shack: -6- J-A16033-14 15. [Cotter] claims to have slipped and fallen on ice that was allowed to accumulate on the sidewalk of the shopping center located at 2895 West 26th Street, Erie, Pennsylvania[,] on February 3, 2009. 16. [] Radio Shack[] denies such allegations constitute negligence on the part of anyone other than [Cotter;] however, if such allegations are proven true and negligence is found, such negligence was a result of the breach of the terms of the lease agreement between Radio[]Shack [] and [] Millcreek Joinder Complaint of Radio Shack at ¶¶ 15-16 (emphasis added). By its ontract action against Millcreek was conditioned upon a finding of negligence against Radio Shack. Because the ct fails as a matter of law. In Count II of its Joinder Complaint, Radio Shack averred a cause of action against Millcreek for contribution and indemnity. Count II provided, in relevant part, as follows: 18. [Radio Shack] avers that if the allegations contained in , said allegations having been specifically denied, then [Millcreek] is solely and/or jointly and severally liable and/or liable over to [Radio Shack] for the claims of [Cotter], since such injuries and/or losses were the result of actions or omissions of [Millcreek] and not the result of any acts or omissions of [Radio Shack]. 19. [Radio Shack] hereby asserts a right of indemnification or contribution against [Millcreek], pursuant to the terms of [T]he Uniform Contribution Among Tortfeasors Act, 42 Pa.C.S.A. § lease agreement and its amendments, and common law, for the amount of any judgment entered in favor of [Cotter]. -7- J-A16033-14 Joinder Complaint of Radio Shack at ¶¶ 18-19 (emphasis added). Radio Shack claims that it established a common law and statutory cause of action for indemnification and contribution against Millcreek. Therefore, Radio Shack claims, the trial court erred in entering summary judgment against it as to its cross-claim against Millcreek. from one who has been compelled, by reason of some legal obligation, to pay a judgment occasioned by the initial negligence of another who should Willet v. Pa. Med. Catastrophe Loss Fund, 702 A.2d 850, 854 fault shifting mechanism [where a defendant] seeks to recover his loss from a defendant who was actually responsible for the accident which occasioned Id. (citation omitted). Radio Shack claimed indemnification and contribution from Millcreek in Count II of its Joinder Complaint. However, Radio Shack cannot establish common law liability for indemnity and contribution because (a) it was not required to pay a judgment to Cotter, and (b) no party was found liable to Cotter for negligence. As a matter of law, Radio Shack has not See id. established a common law cause of action for indemnity and contribution. Radio Shack also claims that it averred a statutory cause of action for indemnification and contribution. T contribution exists among joint tort- -8- (a). J-A16033-14 -feasor is not entitled to a money judgment for contribution until he has by payment discharged the common liability or has Id. § 8324(b). In the instant case, the trial court entered summary judgment in favor of Radio Shack and are not joint tort-feasors, Section 8324 is inapplicable. ed Millcreek claimed contribution and in entered in favor of [Cotter]. for the amount of any judgment Id. at ¶ 19 (emphasis added). By its , Based upon the express terms of the Joinder Complaint, we agree with for indemnity and contribution against Millcreek a matter of law. -9- J-A16033-14 d Complaint, Radio Shack filed a New Matter Cross-Claim against Millcreek averring, in relevant part, as follows: proven at trial, such allegations being denied, and should it be found that [Radio Shack] is liable to [Cotter], such liability being specifically denied, any injuries or losses sustained by [Cotter] was caused in whole or in part by the misconduct or -Mart], Millcreek [and Thompson], which are solely liable to [Cotter], jointly and severally liable to [Cotter], and/or liable to [Radio Shack] for indemnity and contribution. New Matter and Cross-Claim of Radio Shack, 3/19/12, at ¶ 2 (emphasis -claim was conditioned -claim fails as a matter of law. For the foregoing reasons, we affirm the Orders of the trial court. Orders affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/20/2014 - 10 -
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