Pennsylvania Superior Court clarifies standard for upholding exculpatory clauses


By: Sean Phelan

In the recent case of Keystone Specialty Services Co. v. Ebaugh, No. 1289 WDA 2020 (Pa. Super. Nov. 22, 2021 Olson, J., Nichols, J., and Collins, J.) (Op. by Collins, J.), the Pennsylvania Superior Court affirmed the entry of summary judgment in favor of landlord Defendants in a breach of contract and negligence action. The facts of the case involved alleged water damage to personal property and equipment the Plaintiff purportedly stored in a building owned by the landlord. The damage allegedly resulted from a broken pipe in the building. As part of their affirmative defenses to Plaintiff’s claims, the landlord Defendants asserted several exculpatory provisions in the lease agreement. The trial court entered summary judgment on the basis of the exculpatory clauses and the Plaintiff eventually appealed. Upon Plaintiff’s appeal of the trial court’s entry of summary judgment, the Superior Court noted several procedural errors concerning Plaintiff’s insufficient Concise Statement of Errors Complained of on Appeal, required by Pa. R.A.P. 1925(b).

Although the Plaintiff responded it was unable to discern from the lower court’s Order as to the reasons relied upon by the trial court in entering its decision, the Superior Court ruled that, if a party believes it cannot sufficiently discern the basis for the trial court’s Order in order to identify the issues the party intends to raise on appeal, the party is required to preface the Rule 1925(b) Statement with an explanation as to why the Statement has identified the errors only in general terms. See Pa. R.A.P. 1925(b)(4)(i). On this basis, in terms of the Plaintiff’s failures with its Concise Statement, the court found the Plaintiff’s appeal was barred by the Doctrine of Waiver. The Pennsylvania Superior Court further noted the Plaintiff’s appeal likewise failed on the merits pertaining to its challenge as to validity of the exculpatory clause provisions. Notably, the court held exculpatory clauses and contracts are valid where: (1) they do not contravene public policy, (2) the clauses are between persons relating entirely to their own private affairs, and (3) each party was a free bargaining agent to the agreement. See Op. at 9. Hence, the trial court’s entry of summary judgment was affirmed by the Pennsylvania Superior Court for these multiple reasons.

FMG attorneys stay constantly abreast of these and other notable developments in the real estate and appellate contexts to better assist and aggressively defend our clients. If you or your organization has any questions regarding this pro-landlord ruling, or need assistance pertaining to the proactive defense of matters involving potential contractual defenses in the real estate, property damage or premises liability context, contact Sean Phelan at or your FMG attorney.