DOROTHY DERK

	Plaintiff

vs

CLEO CONFAIR, DEAN SNYDER AND CAREY L. SNYDER

		Defendants

IN THE COURT OF COMMON PLEAS FOR THE 26TH JUDICIAL DISTRICT, MONTOUR COUNTY BRANCH, PENNSYLVANIA
CIVIL ACTION - LAW

CASE NO:  572 OF 1997 CONFAIR'S M/S/J

ROBERT A SEIFERTH ESQUIRE, Attorney for the Plaintiff
JOSEPH G MUZIC JR ESQUIRE, Attorney for the Defendant
FRANK E. GARRIGAN, ESQUIRE, Attorney for the Defendant

MEMORANDUM OPINION

January 24, 2000, James, J.

This case is before the Court to consider a Motion for Summary Judgment filed by Defendant Confair.  The issue is whether the record indicates as a matter of law that Defendant Confair as landlord-out-of-possession is not liable for injuries to Plaintiff  Derk’s (lessee’s) invitee.  Plaintiff has not contested the Motion for Summary Judgment, but Defendant Snyder has objected.
The Complaint alleges that a dangerous condition of the premises existed because the steps were impacted with ice and covered with a thin layer of snow and because the steps contained no banister or railing.  The only other record information before the court is a deposition page of Plaintiff explaining how she fell and a deposition page of Defendant Snyder where he purportedly indicates that he did not tell Defendant Confair about any unsafe conditions.  
“Pursuant to Pa.R.C.P. 1035, summary judgment may be granted when the moving party is entitled to judgment as a matter of law and when there is no genuine issue of material fact.  Such judgment should only be granted where the right is clear and free from doubt.  In making this determination the trial court must examine the record in the light most favorable to the non-moving party.”  Peterson v. Philadelphia Housing Authority, 623 A.2d 904, 905 (Pa.Cmwlth 1993), citing Mullen v. Borough of Parkesburg, 132 Pa.Commonwealth Ct. 321, 323, 572 A.2d 859, 960 (1990).
Both Defendants cite Koblylinski v. Hips, 519 A.2d 488 (Pa.Super. 1986) for the general rule that a landlord-out-of-possession is not liable for injuries sustained by third parties on leased premises.   However, the Kobylinski court cites several exceptions to this rule.  Defendant Confair argues that none of the exceptions apply to this case.  Defendant Confair contends that the only exception that could conceivably apply is the exception where the lessor has knowledge of a dangerous condition existing on the leased premises at the time of transferring possession and fails to disclose the condition to the lessee.  Kobylinski at 491, citing Doyle v. Atlantic Refining Co., 357 Pa. 92, 53 A.2d 68, 71 (1947).
Both Defendants agree that the packed ice and snow does not place any liability upon Defendant Confair as a landlord-out-of-possession.  The dispute concerns the allegations about the lack of a banister or handrail.
Whether a missing banister is a dangerous condition is expressly a question of fact to be determined by the trier of fact.  Peterson, supra at 907.   Nevertheless, in Kobylinski, supra at 491, the court found that the aforesaid exception would not apply where it was “patently clear that the unguarded condition of the outside stairwell was conspicuous at the time the lease was executed and lessee never questioned lessor about its safety.”  
However, based on the minimal facts of record which have been presented to the court, the right of Defendant Confair to Summary Judgment is not clear and free from doubt at this time.

ORDER

AND NOW, this 21st day of January, 2000, Defendant Confair’s Motion for Summary Judgment is denied.

					BY THE COURT

					_________________________________ 
					HONORABLE THOMAS A. JAMES, JR., J.