Franciscus, J. v. Sevdik, T. , 2016 Pa. Super. 52 ( 2016 )

J-A27002-15
2016 Pa. Super. 52
JAMES AND MAUREEN FRANCISCUS, AS IN THE SUPERIOR COURT OF
PARENTS AND NATURAL GUARDIANS OF PENNSYLVANIA
FEMINA FRANCISCUS,
Appellants
v.
TOLGA SEVDIK, AN INDIVIDUAL,
ASHLEY DAILEY, AN INDIVIDUAL AND
JOHN STEIGERWALD, AN INDIVIDUAL
T/D/B/A FETCH PET CARE OF WEST
HILLS/SOUTH HILLS,
Appellee No. 1699 WDA 2014
Appeal from the Order December 16, 2013
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD 11-025355
BEFORE: BOWES, OLSON, AND STABILE, JJ.
OPINION BY BOWES, J.: FILED FEBRUARY 29, 2016
James and Maureen Franciscus (“Parents”) commenced the within
negligence action to recover damages for injuries sustained by their minor
daughter, Femina, when she was bitten by Tolga Sevdik’s pit bull, Julius. At
the time of incident, the dog was being walked by Ashley Dailey, an
employee of Fetch Pet Care of West Hills/South Hills, which is owned and
operated by John Steigerwald (collectively “Pet Care defendants”). The trial
court granted summary judgment in favor of the Pet Care defendants, and
the case against Mr. Sevdik was tried and an arbitration award in the
amount of $4,000 was entered in favor of Parents. After thorough review,
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we vacate the summary judgment order and remand for further
proceedings.1
On December 18, 2009, five-year-old Femina was playing outside her
home when she encountered Julius who was being walked by Ms. Dailey.
The child asked if she could pet the dog, and when she bent over to do so,
the dog jumped up and bit her on the chin. Femina was taken to Mercy
Hospital for treatment.
Parents commenced this negligence action against Mr. Sevdik, the
owner of the dog, Ms. Dailey, the dog walker, and Mr. Steigerwald, the
individual owner and operator of Fetch Pet Care of West Hills/South Hills.
After the close of the pleadings and discovery, all defendants filed motions
for summary judgment. The trial court denied Mr. Sedvik’s motion for
summary judgment but granted summary judgment in favor of the Pet Care
defendants, finding no evidence from which one could infer the latter should
have been aware of the dog’s dangerous propensities.
The parties agreed that the case against Mr. Sevdik would be
transferred to the arbitration division and that the decision of the arbitrators
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1
Parents purport to appeal from the order granting summary judgment in
favor of the Pet Care defendants. This appeal properly lies from the final
judgment disposing of all issues as to all parties, which constituted the final
order entered against Mr. Sevdik. See footnote 2, infra. We note that once
a final, appealable order has been appealed, any prior interlocutory order
can be called into question. K.H. v. J.R., 826 A.2d 863 (Pa. 2003).
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would be final. The case was tried on September 17, 2014, and the board of
arbitrators returned a verdict in favor of Parents in the amount of $4,000.2
On October 14, 2014, Parents filed the within appeal challenging the
propriety of the trial court’s grant of summary judgment in favor of the Pet
Care defendants.3
Parents raise four issues on appeal:
1. Whether the trial court properly considered evidence of record
from which a conclusion could be drawn that the dog service
had been put on notice of the dog’s dangerous propensities?
2. Whether the lower court correctly found that based upon the
record, the Defendants were entitled to summary judgment
as a matter of law?
3. What evidence of record caused the trial court to find that
summary judgment was proper for the Defendant dog service
but not for the Defendant dog owner?
4. Whether it is an established fact that the pit bull breed has a
dangerous propensity for inflicting serious injuries on people?
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2
A review of the docket reveals that neither Parents nor Mr. Sevdik
praeciped for the entry of final judgment on the verdict. Thus, technically,
the instant appeal is premature. However, the parties agreed that the
arbitration verdict would be binding, clearly intending it “to be a final
pronouncement on the matters.” Bonavitacola v. Cluver, 619 A.2d 1363
(Pa.Super. 1993). In these circumstances, considerations of judicial
economy permit us to “regard as done that which ought to have been done.”
Johnson the Florist, Inc. v. TEDCO Constr. Corp., 657 A.2d 511, 514-15
(Pa.Super. 1995); accord Mackall v. Fleegle, 801 A.2d 577 (Pa.Super.
2002). We will consider this appeal as being properly before our Court from
the judgment entered on the arbitration award.
3
Mr. Sevdik is not participating in the within appeal.
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Appellants’ brief at 4.
Parents’ first three issues implicate the propriety of the trial court’s
grant of summary judgment and we will discuss them together. The
following principles govern our review.
[S]ummary judgment is appropriate only in those cases
where the record clearly demonstrates that there is no genuine
issue of material fact and that the moving party is entitled to
judgment as a matter of law. When considering a motion for
summary judgment, the trial court must take all facts of record
and reasonable inferences therefrom in a light most favorable to
the non-moving party. In so doing, the trial court must resolve
all doubts as to the existence of a genuine issue of material fact
against the moving party, and, thus, may only grant summary
judgment where the right to such judgment is clear and free
from all doubt. On appellate review, then, an appellate court
may reverse a grant of summary judgment if there has been an
error of law or an abuse of discretion. But the issue as to
whether there are no genuine issues as to any material fact
presents a question of law, and therefore, on that question our
standard of review is de novo. This means we need not defer to
the determinations made by the lower tribunals. To the extent
that this Court must resolve a question of law, we shall review
the grant of summary judgment in the context of the entire
record.
Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) (internal
quotations and citations omitted).
At issue herein is whether, on the record before us, the trial court
erred in finding no evidence that the Pet Care defendants knew or should
have known of Julius’ dangerous propensities that could subject them to
liability for negligence. Generally,
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“one who possesses or harbors a domestic animal that he does
not know or have reason to know to be abnormally dangerous, is
subject to liability for harm done by the animal if, but only if,
(a) he intentionally causes the animal to do the harm, or
(b) he is negligent in failing to prevent the harm.
Kinley v. Bierly, 876 A.2d 419, 422 (Pa.Super. 2005) (quoting Restatement
(Second) of Torts § 518: Liability for Harm Done by Domestic Animals That
Are Not Abnormally Dangerous). A dog owner is subject to liability for
negligence for injuries caused by his dog when he knows or has reason to
know that the dog has dangerous propensities and yet fails to exercise
reasonable care to secure the dog to prevent it from injuring another.
Deardorff v Burger, 606 A.2d 489, 492 (Pa.Super. 1992). The same
liability extends to custodians and keepers of a dog with known dangerous
propensities while the dog is in their custody and control.4
Parents contend that, as a pet sitter, the Pet Care defendants were
subject to the same liability as an owner while the dog was in their custody
and control. They maintain that the record establishes that both Mr. Sevdik
and Ms. Dailey knew that the sixty to seventy pound dog with a stocky body
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4
This is consistent with the Pennsylvania Dog Law, 3 P.S. § 459-102, which
defines owners as “every person who keeps or harbors such, or has it in his
care.” See Commonwealth v. Seyler, 929 A.2d 262 (Pa.Cmwlth. 2007)
(upholding defendant’s conviction of summary offenses under the Dog Law
where dog resided in her home and she was walking the dog at the time of
the attack).
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and a big head had an energetic nature and a tendency to jump on people.
This awareness, according to Parents, implies actual or constructive
knowledge of the dog’s dangerous propensities. In support thereof, they
rely upon Groner v. Hedrick, 169 A.2d 302, 303 (Pa. 1961), for the
proposition that "the law makes no distinction between an animal dangerous
from viciousness and one merely mischievous or dangerous from
playfulness," and the animal's motivation or "the mood in which it inflicts
harm is immaterial." Therein, the Court cited the Restatement (Second) of
Torts § 518 (1), which defines a dangerous propensity as including the
tendency of an animal to do any act that might endanger the safety of a
person in a given situation. See also Rosenberry v. Evans, 48 A.3d 1255
(Pa.Super. 2012) (whether dog’s tic, which caused the animal to clench her
teeth in a biting motion, may constitute a dangerous propensity, precluding
grant of summary judgment).
In further support of their contention that Julius had dangerous
propensities known to his owner and the Pet Care defendants, the Parents
offered the following. Mr. Sevdik stated to Mrs. Franciscus that, “I always
told her [Ms. Dailey] to make sure [the dog] was muzzled.”5 Plaintiffs’
Answers to Interrogatories, No. 11; Maureen Franciscus Deposition,
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5
A muzzle is defined as “[a] device, in any arrangement of straps or wires,
placed over an animal's mouth to prevent the animal from biting or eating.”
3 P.S. § 459-102.
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2/27/13, at 5-7. He had a “Beware of Dog” sign on his front door. Finally,
the Petsitting Work Order completed by Mr. Sevdik advised Pet Care that
Julius should be walked for thirty minutes, “no dogs, children; Broadway ---
a lot of dogs/people ---avoid.” This evidence created reasonable inferences
that Julius had dangerous propensities and that Mr. Sevdik and the Pet Care
defendants knew of them.
The record reveals that, despite her acknowledged receipt of Mr.
Sevdik’s instructions, Ms. Dailey permitted the child to approach the
unmuzzled dog. The dog jumped up, and, according to Ms. Dailey, the dog
and the child bumped heads. She did not witness the dog biting the child
but noticed the child bleeding. The child was treated for a five-centimeter T-
shaped bite wound on the left side of her chin that left her with a one-
centimeter scar.
The Pet Care defendants counter that the dog was loving and
affectionate and never exhibited any type of vicious or violent behavior.
They argue that the duty of a pet sitting service is akin to the duty of a
landlord out of possession in Rosenberry, supra. Therein, this Court
declined to impose liability for a pet bite unless the landlord had actual
knowledge of a dangerous animal on its rental property and the right to
control or remove the animal by retaking the premises.
Viewing the record in the light most favorable to the non-moving
party, Parents herein, we find the following. The record evidences that Mr.
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Sevdik, the owner of the dog, had a sign on his residence warning visitors of
the dog. Ms. Dailey was aware that the sixty to seventy pound dog had a
tendency to jump on people when excited. Mr. Sevdik purportedly directed
the Pet Care defendants to use a muzzle when walking the dog but the dog
was unmuzzled on the day in question. The Petsitting Work Order
completed by Mr. Sevdik directed the Pet Care defendants to avoid routes
where there were people, specifically children, and dogs. Giving Parents the
benefit of all reasonable inferences, as we must do, we find sufficient
evidence of record that Julius had a dangerous propensity to jump on people
and possibly bite, if unmuzzled.
Herein, the dog was entrusted to the Pet Care defendants and in their
control when the injury occurred. Since the Pet Care defendants knew the
dog jumped on people, was to be muzzled when walked, and was not to be
walked along routes where there were people, specifically children, and
other dogs, they had a duty to use reasonable care while the dog was in
their charge to protect others from harm. This is far different from the
situation in Rosenberry, supra, where the issue was whether a landlord
out of possession could be subject to liability to a third party injured by a
tenant’s dog on the tenant’s premises. Therein, we held that the landlord
had no duty unless he had both actual knowledge of the dog’s dangerous
propensities and the ability to control or remove the animal by retaking the
premises. The duty herein flows from Pet Care’s contractual undertaking to
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assume responsibility for the dog while it was in its custody and control and
its knowledge of its dangerous propensities. We find the circumstances
herein sufficient to subject the Pet Care defendants to liability for failure use
reasonable care to prevent the dog from harming others while in their
custody and control. Summary judgment was improper.
Due to our disposition, we need not reach the issue whether the trial
court erred in refusing to take judicial notice of dangerous propensities of pit
bulls generally.6 However, since we are remanding for further proceedings,
we note that Pennsylvania law does not recognize a presumption that pit
bulls as a breed are dangerous or have dangerous propensities. Our
legislature, in crafting the Dog Law, did not define a pit bull or any other
particular breed as a dangerous or vicious dog per se. See 3 P.S. § 459-
502-A. Rather, that statute punishes dogs and owners only when a dog
exhibits dangerous behavior. This is consistent with our tort approach to
domesticated animals. Although the Restatement (Second) of Torts § 519,
provides that, where a dog already has been determined to be dangerous
based upon a prior incident, the owner or custodian of a dangerous dog is
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6
For argument in support of this proposition, Appellants refer this Court to
their brief filed in the trial court. We do not permit parties to incorporate by
reference arguments made in other briefs or pleadings. See
Commonwealth v. Briggs, 12 A.3d 291, 342-343 (Pa. 2011) (calling the
practice "unacceptable" “as a substitute for the proper presentation of
arguments in the body of the appellate brief").
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deemed to be carrying on an abnormally dangerous activity and is subject to
strict liability for the harm that results, Pennsylvania has declined to adopt
that rule. We have concluded instead that, “proof of negligence, in contrast
to holding one absolutely liable, is the vehicle by which accountability for
injury sustained because of a dog bite is to be established.” McCloud v.
McLaughlin, 837 A.2d 541, 544 (Pa.Super. 2003) (quoting Deardorff v.
Burger, 606 A.2d 489, 493 (Pa.Super. 1992)).
Order vacated and case remanded for further proceedings consistent
with this opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/29/2016
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