Pennsbury Village v. Rizzo, L. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PENNSBURY VILLAGE : IN THE SUPERIOR COURT OF
CONDOMINIUM ASSOCIATION : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 825 WDA 2019
LAUREN RIZZO :
Appeal from the Order Entered February 12, 2019
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD-17-001965
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED JANUARY 2, 2020
Pennsbury Village Condominium Association (Pennsbury) appeals from
the order of the Court of Common Pleas of Allegheny County (trial court)
denying its motion for summary judgment in this premises liability action.1
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* Retired Senior Judge assigned to the Superior Court.
1 Generally, “an order denying summary judgment is [] a non-appealable
interlocutory order.” McDonald v. Whitewater Challengers, Inc., 116
A.3d 99, 104 (Pa. Super. 2015), appeal denied, 130 A.3d 1291 (Pa. 2015)
(citation omitted). However, as outlined below, Pennsbury filed, and this
Court granted, a petition for review of this interlocutory appeal; thus this
appeal is properly before us. See McDonald, supra at 104-05 (reviewing
order denying motion for summary judgment where parties requested, and
the Court granted, permission to file interlocutory appeal); see also Pa.R.A.P.
1311(b).
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The trial court agrees that it denied the motion in error. After our own
independent review, we reverse.
We take the following pertinent facts and procedural history from our
review of the certified record. On February 7, 2017, Lauren Rizzo (Rizzo) filed
a complaint alleging that she slipped and fell on ice at Pennsbury’s apartment
building. After Rizzo filed a series of amended complaints, Pennsbury filed an
answer and new matter to which Rizzo replied.
On March 1, 2018, Pennsbury served Rizzo with supplemental
interrogatories and a request for production of documents. After Rizzo failed
to respond, on August 3, 2018, the trial court granted Pennsbury’s motion to
compel, ordering Rizzo to provide answers to the discovery requests. After
Rizzo still failed to produce the discovery, Pennsbury filed a motion for
sanctions that the trial court granted, ordering that Rizzo be precluded from
entering any testimony at trial regarding liability or damages if she did not
respond to the discovery requests with five days. Rizzo failed to do so.
Pennsbury then filed a motion for summary judgment in which it argued
that Rizzo could not sustain her burden of proof because she was precluded
from offering liability and damages testimony and evidence at trial. Rizzo did
not respond. After argument, the trial court denied the motion for summary
judgment. Pennsbury’s motion for reconsideration, or alternatively, motion
to certify the February 12, 2019 order for permissive appeal, was denied by
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operation of law. See 42 Pa.C.S. § 702(b), Interlocutory Appeals by
Permission.
Pennsbury then filed a petition for review with this Court to consider the
appeal that we granted. See Pa.R.A.P. 1311(b); (Order, Docket No. 53 WDM
2019). Pennsbury timely appealed the trial court’s order denying summary
judgment and complied with Rule 1925(b).2 See Pa.R.A.P. 1925(b).
On August 1, 2019, the trial court filed a Rule 1925(a) opinion in which
it stated that it erroneously denied the motion for summary judgment under
the mistaken belief that, during the earlier stages of the litigation, there may
have been documents produced that were admissible at trial without further
testimony. See Pa.R.A.P. 1925(a); (Trial Court Opinion, 8/01/19, at 2-3).
The court now requests that we vacate its order denying summary judgment.
(See id. at 3). However, before we do so, we must conduct our own
independent review of the court and Pennsbury’s representation that the
motion for summary judgment should have been granted.
“An appellate court applies the same standard for summary judgment
as the trial court.” Donegal Mut. Ins. Co. v. Fackler, 835 A.2d 712, 715
(Pa. Super. 2003), appeal denied, 857 A.2d 679 (Pa. 2004) (citation omitted).
“Summary judgment is proper when the pleadings, depositions, answers to
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2 Rizzo did not file an appellee’s brief. See Pa.R.A.P. 2185(a)(1) (“The
appellee shall serve and file appellee’s brief within 30 days after service of
appellant’s brief and reproduced record.”).
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interrogatories, admissions on file, and affidavits demonstrate that there
exists no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law.” Id. at 716 (citation omitted); see also
Pa.R.C.P. 1035.2(1). “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 and must resolve all doubts
as to the existence of a genuine issue of material fact against the moving
party.” Nicolaou v. Martin, 195 A.3d 880, 891 (Pa. 2018) (citation omitted).
“[A] non-moving party may not rely merely upon controverted allegations in
the pleadings. Rather, the non-moving party must set forth specific facts by
way of affidavit, or by some other way as provided by [the Pennsylvania Rules
of Civil Procedure], demonstrating that a genuine issue of material fact exists.”
Fackler, supra at 715 (citation omitted).
To establish a claim for premises liability, a plaintiff must establish “(1)
a duty recognized by law; (2) a breach of that duty; (3) a causal connection
between the breach and the resulting injury; and (4) actual loss or damage to
the plaintiff.” Jones v. Levin, 940 A.2d 451, 454 (Pa. Super. 2007).
Here, our review confirms that Rizzo failed to comply with either the
court’s order that she provide discovery or its sanctions order. Therefore, she
was precluded from offering any evidence at trial of Pennsbury’s alleged
liability or her own damages. In fact, she did not even respond to Pennsbury’s
motion for summary judgment in an attempt to demonstrate that a genuine
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issue of material fact exists. See Fackler, supra at 715. Therefore, as a
matter of law, Rizzo is unable to establish all elements of a claim of premises
liability. See Levin, supra at 454.
Accordingly, because there is no genuine issue of material fact to submit
to a jury, we agree with the trial court that it should have granted Pennsbury’s
motion for summary judgment and reverse the trial court’s order denying
summary judgment.
Order reversed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/2/2020
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