2401 WALNUT, L.P. v. AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY INC.

Filing 94

MEMORANDUM AND ORDER THAT DEFENDANT AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC.'S MOTION TO DISMISS THE NEGLIGENCE COUNT OF THE AMENDED COMPLAINT IS GRANTED. THE CROSS-MOTIONS FOR PARTIAL SUMMARY JUDGMENT OF PLAINTIFF 2401 WALNUT L.P. AND DEFENDANT AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC. ARE BOTH DENIED. SIGNED BY HONORABLE LOUIS H. POLLAK ON 2/16/09. 2/18/09 ENTERED AND COPIES MAILED AND E-MAILED.(ah)

IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA

2 4 0 1 WALNUT, L.P., P la in tif f , v. A M E R IC A N EXPRESS TRAVEL R E L A T E D SERVICES COMPANY, I N C ., D e f e n d a n t. C iv . No. 07-1281

O P IN IO N P o lla k , J. February 16, 2009

B e f o re the court are defendant's motion to dismiss count two of plaintiff's a m e n d e d complaint, Docket No. 71, and the parties' cross-motions for partial summary ju d g m e n t as to count one of the amended complaint, Docket Nos. 78 and 79. These m o tio n s raise common questions of law and will be addressed concurrently.1 For the re a s o n s that follow, defendant's motion to dismiss count two of the amended complaint w ill be granted, and both of the cross-motions for partial summary judgment will be d e n ie d . I. Facts T h e relevant facts of this case, many of which were set forth in the court's

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This court has diversity jurisdiction over the action pursuant to 28 U.S.C. § 1332. -1-

memorandum and order granting defendant's first motion for partial summary judgment, D o c k e t No. 65, are as follows: Plaintiff, 2401 Walnut L.P., owns an office building at 2 4 0 1 Walnut Street, Philadelphia (hereinafter the "Building"). Defendant American E x p re s s Travel Related Services Company, Inc. ("American Express") was at one time p la in tif f 's tenant in the Building under the terms of a commercial lease that commenced o n October 1, 2003 and is now terminated. The parties entered into this lease pursuant to a n agreement wherein American Express agreed to purchase the stock of the building's th e n -o w n e r, Rosenbluth International, Inc. ("Rosenbluth"). T h e Building once served as Rosenbluth's company headquarters. On July 11, 2 0 0 3 , American Express entered into a Stock Purchase Agreement ("SPA") with R o s e n b lu th for the purchase of all shares of Rosenbluth stock. The SPA provided that c e rta in of Rosenbluth's assets would be excluded from the purchase, and that Rosenbluth w o u ld transfer these assets to a third party prior to the closing. SPA § 5.8. Among these e x c lu d e d assets was the Building, though American Express would acquire the "tangible p ro p e rty located in the building": Prior to the Closing, [Rosenbluth] shall take all reasonably appropriate and n e c e s s a ry action to dispose of or transfer the following assets of the Company [ R o s e n b lu th ] effective as of the Closing Date and to transfer or to discharge the re la te d liabilities . . . : the real property (land and building) for the Company's h e a d q u a rte rs located in Philadelphia, PA, including the adjacent parking lot (the " H e a d q u a rte rs" ), but not the computers, equipment and other tangible property lo c a te d in the building, which Headquarters shall be transferred to an assignee or tra n s f e re e who agrees to enter into a lease agreement, dated as of the Closing D a te , in the form of Exhibit 7.1 (xiii) attached hereto (the "Headquarters Lease A g re e m e n t" ) and obtain any consents related thereto . . . ." -2-

SPA § 5.8. The closing was completed on September 30, 2003. A s required by the SPA, Rosenbluth transferred the Building to a third party, p la in tif f 2401 Walnut L.P. The transfer, as described in the deed, included the Building " a n d improvements thereon erected." See Deed. Plaintiff entered into the "Headquarters L e a s e Agreement" with American Express referenced in § 5.8 of the SPA. Under the le a s e 's terms, American Express was required, upon termination of the lease, to "leave th e Building . . . in good order and condition, ordinary wear and tear, damage by fire or o th e r casualty alone excepted," Lease § 6(a). American Express was also responsible, u n d e r the lease, "for making all repairs . . . foreseen and unforeseen, required to keep and m a in ta in the structural and non-structural portions of the Building and Property . . . in g o o d order and condition." Id. § 6(b). The lease further provided that American Express, a t its own expense, would remove all items of its property from the Building upon te rm in a tio n of the lease: T e n a n t shall at the expiration or earlier termination of this lease or of Tenant's rig h t of possession, also remove from the Building all furniture, trade fixtures, o f f ic e equipment and all other items of Tenant's property so that the Landlord may a g a in have and repossess the Building. . . . Tenant shall repair, at or before the e x p ira tio n or termination of this Lease or of Tenant's right of possession, all d a m a g e done to the Building or any other part of the Building by installation or re m o v a l of furniture and property by Tenant . . . . L e a s e § 6(a). 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 -3-

of Common Pleas. Defendant then removed the case to this court. In its one-count first a m e n d e d complaint, plaintiff alleged that defendant failed to satisfy its obligation to leave th e building in satisfactory condition and failed to comply with its obligation to remove th e following items from the Building: (1 )[ K ]itc h e n fixtures and signage (including, without limitation, equipment, p lu m b in g , and grease traps), (2) "Continuum" trade space and all s p e c ia liz e d rooms (including ceilings, walls, flooring and signage), (3) c u s to m iz e d trade spaces (including, without limitation, data room, theater, a n d network operations center), (4) customized components (including, w ith o u t limitation, halon fire system), (5) satellite dishes, projection e q u ip m e n t, screens and other related equipment, (6) metal rods left in b u ild in g where signage for Rosenbluth International was removed by T e n a n t, (7) customized fixtures in basement including a gym and lockers, (8 ) signage throughout building including wall name plates, (9) piping from w a te r purification systems on each floor, and (10) superfluous cabling and w irin g that runs throughout the building. A m . Compl. ¶ 11. In the parties' first cross-motions for partial summary judgment, d e f e n d a n t 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 o f the Building that plaintiff purchased pursuant to the SPA, and that therefore defendant h a d no obligation to remove the items, which belonged to plaintiff, upon termination of th e lease. In January 2008, the court accepted this argument and awarded partial s u m m a ry judgment to defendant. Docket No. 65. In April 2008, plaintiff, with the permission of Magistrate Judge Angell, filed a tw o -c o u n t second amended complaint. In the second amended complaint, plaintiff again a lle g e s that defendant failed to satisfy its obligation to leave the building in satisfactory -4-

condition. However, the second amended complaint omits the claim in the first amended c o m p la in t upon which this court granted summary judgment -- that defendant failed to re m o v e certain items -- and, in its stead, alleges that defendant improperly removed items th a t were "fixtures" of the Building: In breach of paragraph 6(a) of the Lease, [American Express] has removed v a rio u s fixtures in the Building that are [plaintiff's] property and not [ A m e ric a n Express's] property, including, without limitation, (1) kitchen f ix tu re s and signage (including, without limitation, equipment, and p lu m b in g ), (2) portions of the "Continuum" trade space and all specialized ro o m s (including ceilings, walls, flooring and signage), (3) portions of c u s to m iz e d spaces (including, without limitation, data room, theater, and n e tw o rk operations center), (4) portions of customized components (in c lu d in g , without limitation, built-in computer fixtures), (5) audio-visual f ix tu re s , projection equipment fixtures, screens, plasma TVs and other re la te d fixtures, (6) signage for Rosenbluth International, (7) customized f ix tu re s in basement including, without limitation, gym fixtures and m irro re d walls, (8) signage throughout building including, without lim ita tio n , wall name plates, (9) water purification systems on each floor, (1 0 ) electrical, computer, satellite and/or telephone system fixtures, and (1 0 ) built-in work station fixtures and furniture fixtures. S e c o n d Am. Compl. ¶ 12. This allegation is the gravamen of both a breach-of-the-lease c la im (count one) and a negligence claim (count two). In May 2008, defendant moved to dismiss count two of the second amended c o m p la in t. In its motion to dismiss, defendant argues that plaintiff's negligence count is e s s e n tia lly duplicative of its breach-of-the-lease count and is therefore barred under P e n n sylv a n ia 's "gist-of-the-action" and "economic loss" doctrines. The parties then s u b m itte d cross-motions for partial summary judgment on the question whether American E x p re s s breached the lease by improperly removing fixtures that, as part of the Building, -5-

belonged to plaintiff. II. Motion to Dismiss In moving to dismiss count two of the amended complaint, defendant contends th a t, given the pendency of count one­the breach-of-the-lease count­Pennsylvania's " g is t-o f -th e -a c tio n " and "economic loss" doctrines preclude plaintiff from pursuing its n e g lig e n c e claim. Plaintiff can defeat the motion to dismiss if it "allege[s] facts that `ra is e a right to relief above the speculative level on the assumption that the allegations in th e complaint are true (even if doubtful in fact).'" Victaulic Co. v. Tieman, 499 F.2d 227, 2 3 4 (3d Cir.2007) (quoting Bell Atlantic Corp. v. Twombly, --- U.S. ----, 127 S.Ct. 1955, 1 9 6 5 (2007)). A . Choice of Law A s an initial matter, plaintiff contends that New York law governs the parties' o b lig a tio n s under the lease, and, alternatively, that plaintiff's claims may be pursued u n d e r Pennsylvania law.2 The lease contains no choice-of-law provision. However, the S to c k Purchase Agreement ("SPA") states: "This Agreement shall be governed by and c o n s tru e d in accordance with the laws of the State of New York without giving effect to a n y choice or conflict of law provision thereof." SPA § 11.9. The SPA also contains

In its January 2008 memorandum and order, the court was called upon to d e te rm in e the parties' obligations under the Stock Purchase Agreement only, and the c o u rt therefore did not need to reach the question of which law controls the terms of the le a s e . -6-

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a clause incorporating exhibits of the SPA into the document itself: "The Exhibits and S c h e d u le s identified in this Agreement are incorporated herein by reference and made a p a rt hereof. In the event of any conflict between the provisions of this Agreement and a n y Schedules or Exhibits, the provisions of this Agreement control." Id. § 11.15. Plaintiff argues that, under this provision, the lease, a form copy of which was included as E x h ib it 7.1 of the SPA, is incorporated as part of the SPA, and is therefore subject to New Y o rk law. See id. § 5.8 ("Headquarters shall be transferred to an assignee or transferee w h o agrees to enter into a lease agreement, dated as of the Closing Date, in the form of E x h ib it 7.1 (xiii) attached hereto (the `Headquarters Lease Agreement') and obtain any c o n s e n ts related thereto . . . ."). However, Rosenbluth and American Express entered into the SPA on July 11, 2 0 0 3 , while, as per the terms of the SPA, 2401 Walnut L.P. and American Express did n o t enter into the lease until September 20, 2003, the date of the closing. While a form of th e lease, not executed by the parties, was attached as an exhibit of the SPA, the actual le a s e agreement between the parties, which was not in effect at the time the parties e n te re d into the SPA, was not an exhibit of the SPA. The lease itself, therefore, was not a d o c u m e n t that was incorporated into the SPA. Rather, § 5.8 of the SPA merely set forth th e intent of Rosenbluth and American Express that a separate contract, a lease to A m e ric a n Express by Rosenbluth's transferee or assignee, would be entered into at a later tim e

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This interpretation of the intended meaning of the SPA is further evident by the S P A 's references to "Transaction Documents" as a document category distinct from " E x h ib its." The SPA defines "Transaction Documents" as "all of the agreements, d o c u m e n ts , instruments and certificates contemplated by this Agreement or to be e x e c u te d by a Party in connection with the consummation of the transactions c o n te m p la te d by this Agreement . . . ." SPA § 1.141 (emphasis added). As defendant n o te s in its reply brief in support of the motion to dismiss, Docket No. 74, while certain c la u s e s in the SPA, including a provision where the parties to the SPA "consent[] to the e x c lu s iv e jurisdiction and venue of the federal and state courts located in the City, C o u n ty, and State of New York," SPA § 11.10, contain express references to " T ra n s a c tio n Documents," neither the SPA's choice-of-law provision, § 11.9, nor the in c o rp o ra tio n clause relied upon by plaintiff in its instant motion, § 11.15, refers to " T ra n s a c tio n Documents."3 Ruling on the parties' first cross-motions for summary ju d g m e n t, this court, addressing a separate clause of the SPA (§ 11.4), determined that " T ra n s a c tio n Documents" identified in the SPA are not integrated into the SPA itself. Docket No. 65 at 10 n.5. Accordingly, the court finds that the terms of the SPA and the le a s e make clear that the lease is a contract separate from -- and not subject to the

Indeed, plaintiff does not contest that "Transaction Documents" are not in c o rp o ra te d under the terms of SPA § 11.15. -8-

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choice-of-law provision contained in -- the SPA.4 T h e re f o re , the court concludes that Pennsylvania law governs the terms of the le a s e . B. Gist-of-the-Action Doctrine D e f e n d a n t contends that, under Pennsylvania law, the "gist-of-the-action" doctrine f o re c lo s e s plaintiff's negligence claim.5 As the Third Circuit has recently explained, " [ t]h e `gist of the action' doctrine is `designed to maintain the conceptual distinction b e tw e e n breach of contract claims and tort claims [by] precluding plaintiffs from re c a s tin g ordinary breach of contract claims into tort claims.'" Toledo Mack Sales & S e r v ic e , Inc. v. Mack Trucks, Inc., 530 F.3d 204, 229 (3d Cir. 2008) (quoting eToll Inc. v. E lia s /S a v io n Advertising Inc., 811 A.2d 10, 14 (Pa. Super. Ct. 2002)). The "focus of a n a lys is " under this doctrine "is whether `actions lie from a breach of the duties imposed
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The court finds that the terms of the SPA and the lease are sufficiently clear to m a k e this determination as a matter of law with the constraints of Federal Civil Rule of P ro c e d u re 12(b)(6). However, insofar as this determination may be regarded as more a p p ro p ria te ly made on summary judgment, the court finds that the parties -- both of w h ic h addressed this choice-of-law issue at length in their first cross-motions for s u m m a ry judgment -- have been "given reasonable opportunity to present all material m a d e pertinent to" a motion for summary judgment under Federal Civil Rule of P ro c e d u re 56. Accordingly, the court would, if it deemed it necessary to do so, treat d e f e n d a n t's motion to dismiss as one for summary judgment, and reach the same c o n c lu s io n . See Fed. R. Civ. P. 12(c). As my colleague Judge Robreno recently observed, "[a]lthough the Pennsylvania S u p re m e Court has not adopted the "gist of the action" doctrine, numerous state and f e d e ra l courts have predicted that it will." Cottman Transmission Systems, LLC v. K e rs h n e r , 536 F. Supp. 2d 543, 555 n.9 (E.D. Pa. 2008) (citing Third Circuit, Eastern D is tric t of Pennsylvania, and Pennsylvania Superior Court cases so predicting). -95

as a matter of social policy' or `from the breach of duties imposed by mutual consensus.'" Id. (quoting Cambria County v. Int'l Ins. Co., 685 A.2d 581, 590 (Pa. Super. Ct. 1995); s e e also eToll, 811 A.2d at 14 ("[A] claim should be limited to a contract claim when the p a rtie s ' obligations are defined by the terms of the contracts, and not by the larger social p o lic ie s embodied by the law of torts."). As a recent Pennsylvania Superior Court opinion makes clear, the gist-of-thea c tio n doctrine is to be applied with circumspection in a landlord-tenant context. See R e e d v. Dupuis, 920 A.2d 861 (Pa. Super. Ct. 2007). In Reed, the court determined that a re s id e n tia l plaintiff-tenant could pursue a negligence claim against her landlord for in ju rie s , both to her person and to her property, resulting from the landlord's failure to re p a ir damage caused by a flood. The plaintiff's complaint alleged that the landlord o ra lly promised to make such repairs, but never did so. The defendant-landlord c o n te n d e d that the plaintiff's negligence claim was based on contract and was thus f o re c lo s e d under the "gist-of-the-action" doctrine. The Reed court concluded that, c o n tra ry to the conclusion of the trial court that the "`dispute arises from the allocation of m a in te n a n c e duties as set forth in the lease,'" the landlord's liability "d[id] not stem from a n y particular provision of the lease agreement." Id. at 866. Rather, the landlord's lia b ility stemmed from two duties of care, identified in the Restatement (Second) of Torts a n d the Restatement (Second) of Property, owed to the tenant. First, a landlord has "a le g a l duty . . . to exercise reasonable care in fulfilling her promise and correcting the

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disrepair -- a duty that is separate and distinct from her contractual duty/promise to repair th e water infiltration." Id. (citing Restatement (Second) of Torts § 357). Second, the la n d lo rd has a "legal duty to exercise reasonable care when he/she undertakes to render s e rv ic e s for a tenant and repairs known dangerous conditions on the leased premises." Id. a t 867 (citing Restatement (Second) of Torts § 323 and Restatement (Second) of Property § 17.6)). These obligations, the court observed, "are not grounded in the lease a g re e m e n t," but are "instead distinct and separate obligations created by `the larger social o b lig a tio n s embodied in the law of torts.'" Id. (quoting eToll, 811 A.2d at 14). Accordingly, the court held that plaintiff's negligence claim was not barred by the "gisto f - t h e - a c t i o n ." Under Reed's holding, a court, in applying the gist-of-the-action doctrine, must d e te rm in e whether the claim in question arises from a legal duty that is "created by the la rg e r social obligations embodied in the law of torts" and is "separate and distinct" from th o s e that the parties have assumed by contract. Id. at 866, 867 (internal quotation marks o m itte d ). Cf. eToll, 811 A.2d at 19 (holding that the "gist-of-the-action" doctrine applies " w h e re the tort claim essentially duplicates a breach of contract claim or the success of w h ic h is wholly dependent on the terms of a contract") (internal quotation marks o m itte d ). In making this determination in the context of a residential lease dispute, one m u s t consider whether application of the gist-of-the-action doctrine would dilute the p ro te c tio n s afforded to the tenant under the state's common law. See Reed, 920 A.2d at

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867 (concluding that, if the gist-of-the-action doctrine were applied to bar plaintiff's n e g lig e n c e claim, "the tort duties imposed upon a landlord under [Restatement (Second) o f Torts § 323 and Restatement (Second) of Property § 17.6] would be rendered m e a n in g le s s , and their underlying social policies would not be given effect"). However, the inquiry in the instant action differs from that undertaken in Reed b e c a u s e rather than considering a residential landlord-tenant relationship, the court e v a lu a te s the obligations of a commercial tenant under a lease that was negotiated in an a rm s -le n g th transaction. See eToll, 811 A.2d at 23 (favorably citing a Pennsylvania C o m m o n w e a lth case for the proposition that there is no "special relationship" between p a rtie s to an arms length commercial lease agreement). The question that then arises is w h e th e r, in the commercial lease context, where no "special relationship" exists, p la in tif f 's negligence claim is sufficiently distinct from plaintiff's breach-of-the-lease c la im as to be capable of being independently pursued. The second amended complaint alleges that defendant, "as tenant of the Building," o w e d -- and breached -- a legal duty "to keep the Building in good order and return it to p la in tif f at the end of the lease term in the same condition as it was received except for o rd in a ry wear and tear." Second Am. Compl. ¶ 22. The duty asserted is, indeed, one that is "created by the larger social obligations embodied in the law of torts." See, e.g., U. S. G y p s u m Co. v. Schiavo Bros., Inc., 668 F.2d 172,174 (3d Cir. 1981) ("The obligation of a te n a n t to return the leasehold property in the condition in which it was received,

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reasonable wear and tear excepted, is fundamental to the landlord-tenant relationship, e v e n in a commercial setting.") (applying Pennsylvania law). The legal duty is not, h o w e v e r, one that is "separate and distinct" from the duties that defendant assumed under th e lease. As described above, the lease obligated defendant, as the tenant of the B u ild in g , to "leave the Building . . . in good order and condition, ordinary wear and tear, d a m a g e by fire or other casualty alone excepted," Lease § 6(a), and to make "all repairs . . . foreseen and unforeseen, required to keep and maintain the structural and nons tru c tu ra l portions of the Building and Property . . . in good order and condition." Id. § 6(b). These terms subtly expound upon a tenant's duty under common law "to re tu rn the leasehold property in the condition in which it was received, reasonable wear a n d tear excepted." U. S. Gypsum, 668 F.2d at 174; cf. U. S. Gypsum Co. v. Schiavo B ro s ., Inc., 485 F. Supp. 46, 50 (E.D. Pa. 1979) (noting that the lease at issue in the G y p s u m litigation "did not contain an express clause imposing on the defendant a duty to re tu rn the property"). Such modifications to the leaseholder's common law duty to repair a re , of course, the parties' prerogative to bargain for. See Restatement (Second) Property: L a n d lo r d and Tenant § 12.2 cmt. l ("The obligations assumed by the tenant under a p ro m ise by him to keep the leased property in repair depend, of course, on the intention of th e parties as manifested by the language employed to express the promise."). Accordingly, plaintiff's second amended complaint alleges that defendant violated legal d u tie s that derive from specific provisions of the commercial lease. Application of the

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gist-of-the-action doctrine in this context, where the lease was negotiated between s o p h is tic a te d parties in an arms-length transaction, would not cause the tenant's o b lig a tio n to repair to "be rendered meaningless" and would not cause "underlying social p o lic ie s " not to be given effect. Reed, 920 A.2d at 867. Therefore, the court concludes that plaintiff's negligence claim is barred by P e n n sylv a n ia 's gist-of-the-action doctrine.6 The court will thus dismiss count two of the s e c o n d amended complaint. III. Cross-Motions for Summary Judgment P u rs u a n t to the SPA, the Building was transferred to plaintiff with the condition th a t it be leased to American Express. In its January 2008 memorandum and order, D o c k e t No. 65, this court held that, under the terms of the SPA, American Express did not u n d e rta k e ownership of any items that, under New York law (pursuant to the SPA's c h o ic e -o f -la w provision, § 11.4), were "fixtures" of the Building at the time of the SPA's e x e c u tio n .7 In the second amended complaint, plaintiff alleges that, "[i]n breach of
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Because it so concludes, the court will not address defendant's argument that p la in tif f 's claim is also barred by the economic loss doctrine. Contrary to plaintiff's representations to Judge Angell at a January 2008 d is c o v e ry conference, this court has not ruled on whether any items that have been re m o v e d from the Building were "fixtures" of the Building at the time the parties entered in to the SPA. In its January 2008 memorandum and order, this court addressed the legal s ta tu s of items that American Express allegedly failed to remove from the Building in b re a c h of the lease. The court determined that American Express produced evidence e s ta b lis h in g that these items were "fixtures" under New York law. No determination was m a d e as to the legal status of items that were removed from the Building. Indeed, in a d d re s s in g plaintiff's allegation that defendant "cherry-picked" certain fixtures from the -147

paragraph 6(a) of the Lease, [American Express] has removed various fixtures in the B u ild in g that are [plaintiff's] property and not [American Express's] property . . . ." Second. Am. Compl. ¶ 12. The parties now move for partial summary judgment as to w h e th e r American Express has removed any items that were "fixtures" of the Building, a n d thus belonged to plaintiff under the terms of the SPA. Genuine issues of material fact regarding the disputed items preclude summary ju d g m e n t in favor of either party. As stated in the court's January 2008 memorandum and o rd e r, "[a] fixture is defined as any article of personal property which has become so a f f ix e d to the land that it becomes part of it." J.K.S.P. Restaurant, Inc. V. Nassau County, 1 2 7 A.D.2d 121, 130 (N.Y. App. Div. 2nd Dep't 1987). "`[T]he test to be applied to d e te rm in e whether goods are fixtures requires (1) the actual attachment of the goods to th e real estate, (2) the adaptability of the goods to the use for which the real estate is a p p ro p ria te d , and (3) the intent that the annexation be permanent.'" 1 N.Y. Law & P ra c tic e of Real Property § 1:11 (2d ed.) (quoting Norstar Leasing Services, Inc. v. C o lo n ie Coliseum Enterprises, Inc., 546 N.Y.S.2d 942, 944 (N.Y. Sup. 1989)). The d e te rm in a tio n that an item of property is a "fixture" is thus a fact-specific inquiry. In its motion for partial summary judgment, plaintiff avers that "[h]undreds of

B u ild in g while leaving others behind, the court wrote that "plaintiff's allegation has no b e a rin g on the issue before the court: whether, irrespective of other items that it removed, A m e ric a n Express is responsible for removing the items listed in plaintiff's complaint." Docket No. 65 at 16. -15-

fixtures were removed by defendant from each floor of the Building." Docket No. 80 at 2 3 . With its previous motion for partial summary judgment, plaintiff proffered extensive d o c u m e n ta tio n of the items that remained in the Building following the termination of the le a s e . However, in support of the present motion, plaintiff has not enumerated the items th a t American Express removed from the Building, or provided any evidence from which th e identity of these items can be discerned. Plaintiff thus asks the court for an award of s u m m a ry judgment on the basis of the categorical assertion, in an affidavit of Charles X. B lo c k , that "[d]uring the term of the Lease, . . . defendant systematically stripped all f ix tu re s of value from the Building, leaving a non-functional shell of the Building it had le a s e d ," and evidence documenting the removal of some of the items. Block Decl., D o c k e t No. 83 at 5. The photographs provided show the places in the building, including th e kitchen, cafeteria, workstations, and trade spaces where items were removed; h o w e v e r, neither the photographs nor the index explain the nature of all the missing ite m s . Block Decl. Ex. N, O. Block also indicates that further discovery is required to d e te rm in e exactly what items purported to be fixtures were removed. Block Reply Decl., D o c k e t No. 92 at 5. Without evidence from which to determine the identity of each c o n te s te d item, this court cannot determine whether that item is a fixture. Conversely, American Express has not produced evidence that warrants an award o f partial summary judgment in its favor. American Express's submissions include a d e c la ra tio n of John R. Schena, who was responsible for American Express's "design and

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construction" of the Building for the purposes of its tenancy,8 asserting that the items that A m e ric a n Express removed from the Building did not include fixtures, Docket No. 78, E x h . E ¶ 8. American Express also has submitted its "Revised Supplemental Responses to Plaintiff's First Set of Interrogatories, Docket No. 78, Exh. F. ¶ 13 and 14, which state th a t American Express has produced documents to plaintiff that identify the items of p ro p e rty that were removed from the Building. As with plaintiff's submissions, so with d e f e n d a n t's submissions. The court cannot, on the basis of what is of record, determine th e identity of each of the contested items. Therefore, a fortiori, the court cannot d e te rm in e whether any of the contested items could be considered a fixture, and hence a c q u ire d by plaintiff with the purchase of the Building. T h u s , since multiple issues of material fact remain, each party's request for partial s u m m a ry judgment must be denied. IV . Conclusion In summary, the lease is governed by Pennsylvania law, and plaintiff's negligence c la im s are barred by the "gist-of-the-action" doctrine. Defendant's motion to dismiss the n e g lig e n c e claims in the Amended Complaint is therefore granted. Because there is in s u f f ic ie n t evidence regarding the identity of the removed items purported to be fixtures,

Mr. Schena is currently a Vice President at American Express. At the time of American Express's acquisition of Rosenbluth, he was Vice President of Project Management at Trammel Crow Co., a company that provided "project management services" for American Express, including "design and construction" of the Building for American Express's use of the property. Schena Decl. ¶ 4. -17-

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the court cannot determine whether these items, or any of them, were indeed fixtures. Accordingly, the cross-motions for summary judgment of plaintiff and defendant re g a rd in g the removed items are therefore denied.

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IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA 2 4 0 1 WALNUT, L.P., P la in tif f , v. A M E R IC A N EXPRESS TRAVEL R E L A T E D SERVICES COMPANY, I N C ., D e f e n d a n t.

C iv . No. 07-1281

ORDER F e b ru a ry 16, 2009 F o r the reasons set forth in the accompanying opinion, it is ORDERED that: (1 ) D e f e n d a n t American Express Travel Related Services Company, Inc.'s m o tio n to dismiss the negligence count of the Amended Complaint (Docket N o . 71) is GRANTED; and (2 ) T h e cross-motions for partial summary judgment of Plaintiff 2401 Walnut, L .P . and Defendant American Express Travel Related Services Company, In c . (Docket Nos. 78 and 79) are both DENIED. B Y THE COURT:

/s/ Louis H. Pollak Pollak, J. -19-