Stobodzian, E. v. PNC Financial Serv. Group ( 2014 )

J-A18031-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
EDWARD STOBODZIAN IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
PNC FINANCIAL SERVICES GROUP,
T/D/B/A PNC BANK, N.A.; ZAORSKI-
YAROSZ ASSOC. T/D/B/A VARSITY
LAWN CARE, AND Y & E LANDSCAPTING,
T/D/B/A VARSITY LAWN CARE
v.
JOHN RECKLITIS, INDIVIDUALLY
AND/OR D/B/A J & J. SNOWPLOWING,
JASON SAMLER, INDIVIDUALLY AND/OR
D/B/A J & J SNOWPLOWING
Appellees No. 33 MDA 2014
Appeal from the Judgment Entered January 3, 2014
In the Court of Common Pleas of Luzerne County
Civil Division at No(s): 15208-2010
BEFORE: LAZARUS, J., WECHT, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 05, 2014
Edward Stobodzian appeals from the judgment entered on January 3,
2014 in the Court of Common Pleas of Luzerne County in favor of Appellees.1
Upon review, we affirm.
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1
post-trial motions. Such orders are interlocutory and generally not
appealable. Brown v. Philadelphia College of Osteopathic Medicine,
760 A.2d 863, 865 (Pa. Super. 2000). Stobodzian filed his notice of appeal
(Footnote Continued Next Page)
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The trial court summarized the relevant facts and procedural history as
follows:
[Stobodzian] initiated this matter by filing a Complaint against
[PNC Bank], Zaorski-Yaroza Associates, t/d/b/a Varsity Lawn
Care and Y&E Landscaping, Inc., t/d/b/a Varsity Lawn Care on
negligence [that caused] a slip and fall occurring on February 12,
2010 in the parking lot of the PNC Bank in Hazleton. In his
complaint, [Stobodzian] alleged that he slipped on an
accumulation of snow/ice while lawfully on the premises of PNC
Bank to deliver coins in connection with his job duties.
On January 10, 2011, [John Recklitis, Jason Samler and J&J
Snowplowing] were joined as additional defendants. A trial
commenced on September 30, 2013.
Trial Court Opinion, 11/27/13, at 1.
There was uncontradicted testimony at trial regarding the
snowfall in the Hazleton area on February 10 and 11, 2010.
Jason Samler, a co-owner of the Additional Defendant, J&J
Snowplowing, testified that the snowfall on February 10, 2010
was approximately 22 inches. He also testified that it had
stopped snowing on the morning of February 11, 2010. The
other owner of J&J Snowplowing, John Recklitis, testified that the
snowstorm began on February 10, 2010 and ended by 9:00 a.m.
on February 11, 2010.
During trial [Stobodzian] was cross-examined regarding answers
to interrogatories he had previously provided. In response to an
interrogatory regarding the condition of the plot, [Stobodzian]
walkways were snow-covered. There was a base of ice under
_______________________
(Footnote Continued)
on December 18, 2013; however, judgment on the verdict was not entered
until January 31, 2014. Because a final judgment entered during the
pendency of an appeal is sufficient to perfect appellate jurisdiction, we may
review his claim. See Drum v. Shaull Equipment and Supply Co., 787
A.2d 1050 (Pa. Super. 2001).
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Id. at 4.
After two days of testimony, the jury rendered a verdict against
[Stobodzian] and determined that none of the Defendants or
Additional Defendants were negligent.
On October 9, 2013, [Stobodzian] filed a Motion for Judgment
Notwithstanding the Verdict and/or Motion for New Trial and
Brief. All Defendants responded to the Motion and submitted
briefs or memorandums in support of their responses.
Id. at 2.
judgment notwithstanding the verdict and a new trial. This timely appeal
followed.
On appeal, Stobodzian presents a single issue for our review:
25, which provided the jury with instructions that gave [Appellees] the
ing a
2
Brief of Appellant, at 4.
Our standard of review in examining jury instructions
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2
The hills and ridges doctrine is a long-standing and well-entrenched legal
principle that protects an owner or occupier of land from liability for
generally slippery conditions resulting from ice and snow where the owner
has not permitted the ice and snow to accumulate unreasonably in ridges or
elevations. Harmotta v. Bender, 601 A.2d 837, 842 (Pa. Super. 1992).
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is limited to determining whether the trial court committed a
clear abuse of discretion or error of law controlling the outcome
review is plenary. In reviewing a challenge to a jury instruction,
the entire charge is considered, as opposed to merely discrete
portions thereof. Trial courts are given latitude and discretion in
phrasing instructions and are free to use their own expressions
so long as the law is clearly and accurately presented to the
jury.
Cooper ex rel. Cooper v. Lankenau Hosp., 51 A.3d 183, 187 (Pa. 2012)
(citations omitted). Error in a charge is a sufficient ground for a new trial if
the charge as a whole is inadequate or not clear or has a tendency to
mislead or confuse rather than clarify a material issue. Stewart v. Motts
Radiator, 654 A.2d 535, 540 (Pa. 1995). A charge will be found adequate
misled by what the trial judge said or unless there is an omission in the
Stewart, supra, (quoting
Voitasefski v. Pittsburgh Rys. Co., 69 A.2d 370, 373 (Pa. 1949)).
In the present case, the trial court charged the jury with Pa. SSJI (Civ)
18.90, which describes an ow
abutting a walking surface, commonly referred to as the hills and ridges
doctrine. The instruction read as follows:
One in possession of land is required to remove ice and snow
that has accumulated on the pubic walking surface abutting his
or her property within a reasonable time after he or she is on
notice that a dangerous condition exists. To establish liability
upon the landowner, the plaintiff must prove that each of the
following three essentials was present: First, that ice and snow
had accumulated on the walking surface in ridges or elevations
that unreasonably obstructed travel and were a danger to
persons traveling on the walk. Second, that the defendant
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property owner knew or should have known of the existence of
such conditions. Third, that it was the dangerous accumulation
of ice and snow that caused the plaintiff to fall.
N.T. Trial, 10/02/13, at 107.
At trial, all parties testified to the generally slippery conditions in the
community on the day in question. Specifically, Jason Samler of J&J
Snowplowing testified that the snowstorm resulted in approximately 22
128, 137. In addition, John Recklitis of J&J Snowplowing testified that the
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Id. at 156. Stobodzian also testified, stating that on the
day of the accident the snow came up to the sole of his boot and was a
mixture of dark gray ice and snow. Id. at 171. Based on this
uncontradicted testimony establishing generally slippery conditions resulting
from an entirely natural accumulation of snow and ice, the trial judge
instructed the jury on the hills and ridges doctrine. Trial Court Opinion,
11/27/13, at 4.
Stobodzian argues that the trial court erred in instructing the jury on
the hills and ridges doctrine because the snow and ice complained of was the
result of an artificial condition created by human intervention. See Harvey
v. Chamberlain, 901 A.2d 523 (Pa. Super 2006) (hills and ridges doctrine
only applies in cases where snow and ice complained of are result of entirely
natural accumulation). In support of his argument, Stobodzian points to
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trial testimony describing how vehicles pulling into the parking lot would
drag snow and slush in with them.
Our review of the trial transcript reveals several witnesses did testify
that cars could drag slush from the road into the parking lot, N.T. Trial,
9/30/13, at 96, 102, 114, 144. However, this slush was primarily located at
the ingress/egress of the parking lot. Id. We agree with the trial court that
a hills and ridges instruction, as did the testimony of the other witnesses
who testified at trial. Trial Court Opinion, 11/27/13, at 4. Although
Stobodzian sought to argue at trial that the slush in the parking lot was an
artificial condition created by human intervention, uncontradicted testimony
established that generally slippery conditions existed in the community due
to a natural accumulation of snow on the day Stobodzian fell. Therefore, a
hills and ridges instruction was appropriate. Accordingly, the trial court did
not commit an abuse of discretion or an error of law controlling the outcome
of the case. Cooper ex rel. Cooper, supra.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/2014
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