MEMORANDUM AND ORDER

J. CURTIS JOYNER, District Judge.

This civil action has been brought before the Court on Motion for Summary Judgment of Defendants OYR Realty Partners, L.P., OYR Realty Partners II, L.P., OYR Realty Partners, III, L.P., OYR Realty Partners, IV, L.P., OYR Realty GP, LLC and OYR Realty Partners GP, LLC, Logan Plaza Condominium Association, Inc., and Stonehenge Advisors, Inc. (the "OYR Defendants"). For the reasons which follow, the motion shall be granted in part and denied in part.

History of the Case

This case arose on Saturday, July 14, 2012 at approximately 6:30 p.m. in the rear parking lot of the Robinson Building in the Logan Plaza complex located at 5201 Old York Road in the Logan section of Philadelphia. At that date and time, Plaintiff Fillmore Johnson exited the rear door of the building which housed his employer, Vision Quest, when he was attacked and robbed by two masked men while he was placing a bag into the trunk of his car. In the course of the robbery and attack, Mr. Johnson sustained physical injuries to his head, right shoulder, face and arm as well as emotional trauma and was robbed of more than $250 and his GPS. Although he reported the crime to the Philadelphia Police Department, the perpetrators were never found.

Mr. Johnson and his wife Felicia instituted this suit on July 10, 2014 in the Philadelphia County Court of Common Pleas against Defendants, as the purported owners and possessors of the property and/or the entity responsible for providing the security thereto. Because the Johnsons had moved to Kentucky in the intervening two years since the attack and the citizenship of the parties was then diverse, Defendant Securitas filed a Notice of Removal to this Court on August 6, 2014. An Amended Complaint was subsequently filed on March 20, 2015 to add OYR Realty Partners GP, LLC, Logan Plaza Condominium Association and Stonehenge Advisors, Inc. as defendants.1 In both the original and the amended complaints, Plaintiffs sought relief from all of the defendants for their injuries and loss of consortium under the theory of negligence. Discovery has since closed and by the motion now before us, Defendants seek the entry of summary judgment in their favor on the grounds that, inter alia, there is insufficient evidence to establish a prima facie case of negligence against them and/or one or the other of them were not owners or possessors of the parking area where Mr. Johnson was injured and therefore owed no duty to the plaintiffs.

Standards Governing Summary Judgment Motions

The principles guiding the determination of motions for summary judgment are stated as follows in Fed. R. Civ. P. 56(a):

Where the defendant is the moving party, the burden is on the defendant to show that the plaintiff has failed to establish one or more essential elements of her case. Burton v. Teleflex, Inc., 707 F.3d 417, 425 (3d Cir. 2013)(citing Hugh v. Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005)). In all cases, the initial burden is on the party seeking summary judgment to point to the evidence which it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L. Ed. 2d 265 (1986); United States v. Donovan, 661 F.3d 174, 185 (3d Cir. 2011).

The court reviewing a motion for summary judgment should view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Scheidemantle v. Slippery Rock University, State System of Higher Educ., 470 F.3d 535, 538 (3d Cir. 2006)). The line between reasonable inferences and impermissible speculation is often "thin," but is nevertheless critical because "an inference based upon a speculation or conjecture does not create a material factual dispute sufficient to defeat summary judgment." Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014)(quoting Robertson v. Allied Signal, Inc., 914 F.2d 360, 382, n.12 (3d Cir. 1990) and Fragale & Sons Beverage Co. v. Dill, 760 F.2d 469, 474 (3d Cir. 1985)).

Inferences must flow directly from admissible evidence. Id. Further, an issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party, and a factual dispute is material only if it might affect the outcome of the suit under governing law. Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L. Ed. 2d 202 (1986)). In any event, to survive summary judgment, the non-moving party must present more than a mere scintilla of evidence; there must be evidence on which the jury could reasonably find for the non-movant. Burton, supra,(quoting Jakimas v. Hoffman-LaRoche, Inc., 485 F.3d 770, 777 (3d Cir. 2007)).

Discussion

As noted, Plaintiffs' cause of action is premised upon the theory that Defendants were negligent in providing proper security for the parking lot area where the husband-plaintiff was attacked and injured. "As a court sitting in diversity, we `must apply the substantive law of the state whose laws govern the action.'" Midgette v. Wal-Mart Stores, Inc., 317 F.Supp.2d 550, 556-557 (E.D. Pa. 2004), aff'd 121 Fed. Appx. 980 (3d Cir. 2005)(quoting Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L. Ed. 1188 (1938) and Robertson v. Allied Signal, Inc., 914 F.2d 360, 378 (3d Cir. 1990)). In this case therefore, we apply the law of Pennsylvania.

In Pennsylvania, "[n]egligence is the absence of ordinary care that a reasonably prudent person would exercise in the same or similar circumstances." Schemberg v. Smicherko, 2014 PA Super 23, at *9-*10, 85 A.3d 1071, 1075 (Pa. Super. 2014)(quoting Merlini ex rel Merlini v. Gallitzin Water Authority, 602 Pa. 346, 980 A.2d 502, 506 (Pa. 2009). "The primary element in any negligence cause of action is that the defendant owes a duty of care to the plaintiff." Id,(quoting Althaus ex rel. Althaus v. Cohen, 562 Pa. 547, 756 A.2d 1166, 1168 (Pa. 2000)). Hence, under Pennsylvania common law, the elements of a negligence claim include: a legally recognized duty, a breach of that duty, a causal relationship between the defendant's negligence and the plaintiff's injuries, and damages. City of Philadelphia v. Beretta U.S.A. Corp., 277 F.3d 415, 422 (3d Cir. 2002)(citing Martin v. Evans, 551 Pa. 496, 711 A.2d 458, 461 (1998)); Truax v. Roulhac, 2015 PA Super. 217, 2015 Pa. Super. LEXIS 584 at *10 (Oct. 7, 2015).

In general, Pennsylvania holds that there is no duty to control the conduct of a third party to protect another from harm. DeJesus v. U.S. Dept. Of Veterans Affairs, 479 F.3d 271, 279-280 (3d Cir. 2007)(citing Emerich v. Philadelphia Center for Human Development, Inc., 554 Pa. 209, 720 A.2d 1032, 1036 (1998)). However, a judicial exception to this general rule has been recognized where a defendant stands in some special relationship with either the person whose conduct needs to be controlled or where the defendant is in a relationship with the intended victim of the conduct, which gives to the intended victim a right to protection. Emerich, supra(citing Restatement (Second) of Torts §315 (1965))2. Consequently, in the absence of a pre-existing duty, a party cannot be held liable for the criminal actions of a third party unless that party assumed a duty, through some act of its own. Midgette, 317 F. Supp. 2d at 557-558.

In the seminal case of Feld v. Merriam, 506 Pa. 383, 485 A.2d 742, 746 (1984), the Pennsylvania Supreme Court was confronted with the "threshold question whether a landlord has any duty to protect tenants from the foreseeable criminal acts of third persons, and if so, under what circumstances." 506 Pa. at 390, 485 A.2d at 745. Finding no reason to impose a general duty on landlords to protect tenants against criminal intrusion, the Supreme Court nevertheless looked to Restatement (Second) of Torts, §3233 and held:

Feld, 506 Pa. at 393-394, 506 A.2d at 747.

A. OYR Realty Partners II, LP, OYR Realty Partners III, LP, OYR Realty Partners IV, LP, OYR Realty GP LLC and OYR Realty Partners GP, LLC

For their first legal argument in support of their motion for summary judgment, Defendants OYR Realty Partners II, LP, OYR Realty Partners III, LP, OYR Realty Partners IV, LP, OYR Realty GP LLC and OYR Realty Partners GP, LLC assert that they have no ownership interest in the premises where the incident occurred and thus owed no duty to the plaintiff. (OYR Defendants' Memorandum of Law in Support of Motion for Summary Judgment, 9-13).

In the case at hand, the record contains evidence that as of March 26, 2009, Defendant OYR Realty Partners, LP was "the owner in fee simple of the land and all of the improvements thereon . . . commonly known as 5201 Old York Road in Philadelphia," and that on that date it executed an "Amended and Restated Declaration of Condominium" thereby establishing the Logan Plaza Condominium which consisted of five separate units. (OYR Defendants' Motion for Summary Judgment, Exhibit "G"). Pursuant to those condominium documents, Logan Plaza Condominium Association is the entity charged with the management of the 5201 Old York Road property, including the parking areas around 13th Street and Wagner Avenue. (Shaeffer Dep., 28-29).

It further appears that at present, Defendant OYR Realty GP, LLC owns all of the exterior and several of the buildings contained within Logan Plaza, including all of the parking lots, which are situate along 13th Street and Wagner Avenue. (Deposition of Richard Shaeffer, attached to Defendant Securitas' Motion for Summary Judgment as Exhibit "K," pp. 20, 24). The Robinson Building, which has Vision Quest, Husband-Plaintiff's former employer as its sole tenant, is now owned by OYR Realty Partners LP, II. (Shaeffer Dep., 21-23). Defendant OYR Realty Partners, III, LP owns the complex' Sley Building. (Shaeffer Dep., 23-24). Accordingly, while Defendants OYR Realty Partners III, LP, OYR Realty Partners IV, LP and OYR Realty Partners GP, LLC have no ownership interest in any part of the property which is relevant to this action, Defendants OYR Realty Partners II, LP and OYR Realty GP, LLC do. The motion shall be granted as to OYR Realty Partners III, LP, OYR Realty Partners IV, LP and OYR Realty Partners GP, LLC but denied as to OYR Realty Partners II, LP and OYR Realty GP, LLC on the basis of ownership.

B. OYR Realty Partners, LP

The OYR Defendants next assert that OYR Realty Partners, LP is entitled to judgment as a matter of law because it was not the possessor of the land at the time of Plaintiff's assault and therefore owed no duty to Plaintiffs, and because it is statutorily exempt from suit under the Pennsylvania Uniform Condominium Act.4 Regarding the first portion of its argument concerning possession, Defendants rely upon Article 8, Section 8.2 of the Logan Plaza Declaration of Condominium which delegates the responsibility for the operation, maintenance, repair and replacement of the Common Elements5 to the Association by stating as follows in pertinent part:

In view of the clear and straight-forward nature of this language, we are constrained to agree that insofar as OYR Realty Partners, LP had transferred the responsibility for maintenance, repair, replacement and security to the Logan Plaza Condominium Association, it is properly dismissed as a defendant from this action.

While we need not reach the second prong of Defendants' argument that is, OYR Realty Partners, LP's statutory exemption, we would grant judgment in its favor on this basis as well. Again, we find the language of the Pennsylvania Uniform Condominium Act to be quite clear that where a declarant (which is what OYR Realty Partners, LP is here) has divided the property into units and designated the responsibility for maintenance and upkeep to a condominium association, "an action in tort alleging a wrong done by the association or by an agent or employee of the association, or an action arising from a contract made by or on behalf of the association," is to be brought against the condominium association and is not to be brought against a unit owner. 68 Pa. C. S. A. §3311(a)(2)(i),(ii). Inasmuch as the assault here occurred in the parking lot, a common element, and concerned security, the responsibility for which was delegated to the Logan Plaza Association, we conclude that OYR Realty Partners LP is entitled to judgment in its favor as a matter of law on this ground as well. (See also, Shaeffer Dep., 28-29).

C. Logan Plaza Condominium Association, Inc. and Stonehenge Advisors

The OYR Defendants also claim that there is no evidence to establish a prima facie case of negligence as to Logan Plaza Condominium Association and Stonehenge Advisors, Inc., such that these defendants too are entitled to the entry of judgment in their favor. We disagree.

Here, the record clearly reflects that Defendant Stonehenge Advisors, Inc. has been charged with management of the Logan Plaza properties since January 1, 2011 pursuant to a Management Agreement with Defendant OYR Realty Partners LP dated December 7, 2010. (Shaeffer Dep., 25; Exhibit "D" to OYR Defendants' Motion for Summary Judgment). Richard Shaeffer has been the Logan Plaza Property Manager since he was hired by OYR Realty Partners LP in June, 2005. Subsequent to the decision of the OYR partnerships to contract out the management of the Logan Plaza property and the execution of the Management Agreement between OYR Realty Partners LP and Stonehenge Advisors, Mr. Shaeffer became an employee of Stonehenge Advisors but continued to hold the position of Property Manager for Logan Plaza. (Shaeffer Dep., 10, 12-15). In that capacity, Mr. Shaeffer supervises several other Stonehenge employees — a director of maintenance, a maintenance mechanic and two custodial workers. (Shaeffer Dep., 11). In addition to taking care of the property overall and overseeing the provision of security services, he is responsible for managing the everyday needs of the tenants and addressing any maintenance issues that may arise. (Shaeffer Dep., 14, 27).

On or about January 21, 2011, Mr. Shaeffer as Managing Agent for Stonehenge and on behalf of OYR Realty Group LLC-Logan Plaza Condominium Association, executed a Security Services Agreement with Defendant Securitas Security Services USA, Inc. (hereafter "Securitas") for the provision of security services at Logan Plaza commencing on January 24, 2011. (OYR Defendants' Motion for Summary Judgment, Exhibit "I"; Shaeffer Dep., 26-27). According to Mr. Shaeffer, he was the primary contact with Securitas in the discussion and negotiation of the terms of the agreement and it was and is his obligation to ensure that the security staff provided understands the nature of the facility and their specific duties and responsibilities, to address any concerns, issues or problems which they may have and to provide the day-to-day direction and supervision. (Shaeffer Dep., 28-30).

Under the security services agreement, Securitas was to provide 1 security officer posted at the front desk (presumably of every building in the complex), 24 hours a day, seven days a week and 1 security officer posted at the Rear Lobby (again presumably of every building) Monday through Friday between the hours of 8:30 a.m. and 4:30 p.m. The agreement further provides that "Post duties to be confirmed through mutually acknowledged Post Orders." (Exhibit "I"). Insofar as the parking lot on 13th Street along Wagner Avenue is concerned, the assigned security officer on duty during business hours is responsible for enforcing parking rules and regulations, and making sure that the parking spots assigned to particular tenants are being used only by those tenants. During non-business hours, after dark and overnight the security guard on duty is to engage in exterior walking patrols every two or so hours, at 7 p.m., 9 p.m., 11 p.m., 1 a.m., 3 a.m. and 5 a.m. (Shaeffer Dep., 31-33, 38).6 On Saturdays, Sundays, holidays and during the day, the security officers didn't have any responsibility in the rear parking lot. (Shaeffer Dep., 33). Mr. Shaeffer decided to employ the security guards using this protocol because fewer people accessed the building during the evening and weekends and this reduced traffic flow freed up the one security officer on duty during those times to lock the front door and go out on patrol during the designated times. (Shaeffer Dep., 33-35). Similarly, it was thought to be a "prudent security measure" to lock the parking lot gates at 1 a.m. because there was only one security guard on duty and to re-open them at 5 a.m. because there were tenants that started operations very early in the morning. (Shaeffer Dep., 44-45).

Although two of Logan Plaza's tenants — the City of Philadelphia and Vision Quest were 24/7 operations, there was no monitoring of the doors utilized by Vision Quest personnel in the rear of the building at any time during the day or night or on weekends and holidays. (Shaeffer Dep., 44). There was no type of employee sign-in or sign-out procedure in place and Securitas personnel were not required to keep any sort of log book or daily activity diary regarding their activities and observations at Logan Plaza, although they were under instructions to report any suspicious observations or occurrences to 911 and to Mr. Shaeffer. If he was onsite at the time of the event, Mr. Shaeffer would go to see what was happening himself. (Shaeffer Dep., 46-50). Securitas also employed the TOCO system at Logan Plaza whereby the security officers were required to carry a Toco pipe embedded with a chip and run it by the chip readers which were placed throughout the Plaza campus whenever they made their exterior patrols, in order to verify that regular patrols were made. (Shaeffer Dep., 51-54).

Finally, while working security cameras relaying to a monitor at the building's front desk had been installed along the back of the buildings overseeing the rear parking area in 2007, the wiring for those cameras had been ripped out in the build-out of space for the Department of Public Welfare in 2009. Although some consideration had been given to replacing those cameras, that never happened. (Shaeffer Dep., 60-63). Apparently, however, those cameras were still in place on the date of Mr. Johnson's assault, as Vision Quest had requested to look at the security cameras after it learned of what had happened to the plaintiff. (Shaeffer Dep., 60-61). As a result of Vision Quest's request to see the security cameras following Plaintiff's assault, Mr. Shaeffer sent an email to his contact at OYR Realty Partners, Leonard Thylen advising him of the incident and suggesting that again having working exterior cameras should be considered due because the nature of the tenants and their hours of operation create security issues and because there had been a few instances where the use of cameras would have helped to decipher incidents that had occurred in the past with DPW clients. (Shaeffer Dep., 61, 71-73).

All of the foregoing evidence, along with the Philadelphia Police All Incidents Report for 5201 Old York Avenue received in response to Plaintiff's Right to Know Law request, is more than adequate to make out a prima face case of negligence against the defendant Condominium Association and management company Stonehenge under Feld. Clearly, these defendants owed to Defendants the duty to provide security in the parking lot behind the Vision Quest building and there is certainly sufficient evidence in the existing record to raise a genuine issue of material fact as to whether they knew or had reason to suspect that the security which was provided was inadequate. Given that Mr. Johnson was injured as a result of the assault, we find that he has likewise made the requisite prima facie showing as to the elements of causation and damages to survive summary judgment. While moving defendants make much out of the plaintiff's failure to produce an expert report, in Pennsylvania "in negligence actions, expert testimony is not required where the matter under investigation is so simple and the lack of skill or want of care so obvious, as to be within the range of ordinary experience and comprehension of even non professional persons." Truax, supra, at n.3(quoting Ovitsky v. Capital City Econ. Dev. Corp., 2004 PA Super 41, 846 A.2d 124, 126 (Pa. Super. 2004)). "Here, a jury would be capable, even without expert testimony, to decide whether [Defendants] took reasonable care to protect their [tenants] by using common sense notions of safety in evaluating parking lot security measures." Id,(quoting id.). We therefore do not find the lack of an expert report to be dispositive on the matter of movants' negligence and the motion is therefore denied as to Defendants Logan Plaza and Stonehenge.

An order follows.