Hare, J. v. Zaffino, M.

J-A12030-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JAMES M. HARE, JR. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
MARK ZAFFINO, D/B/A MARK : No. 1349 WDA 2018
ZAFFINO SNOW REMOVAL :
Appeal from the Order Entered August 21, 2018
In the Court of Common Pleas of Warren County Civil Division at No(s):
2016-597
BEFORE: BENDER, P.J.E., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED AUGUST 28, 2019
Appellant, James M. Hare, Jr., appeals from the August 21, 2018 Order,
entered in the Warren County Court of Common Pleas, granting the Motion for
Summary Judgment filed by Mark Zaffino, d/b/a Mark Zaffino Snow Removal
(“Appellee”). After careful review, we affirm.
In its August 21, 2018 Memorandum Opinion, the trial court set forth
the uncontested facts and procedural history as follows:
[Appellee] owns and operates a snow removal business in Warren,
Pennsylvania. Following a bid solicitation, Kiantone Pipeline
Corporation [“Property Owner”] contracted with [Appellee] to
provide snow removal services at Cobham Park Tank Farm,
located in Warren, Pennsylvania [(“Snow Removal Agreement”)].
The Tank Farm is an industrial park used for storage of crude oil
and oil products. It is accessed exclusively by unpaved cinder
roadways, which provide routes to various oil tanks throughout
the property. The roadways are used by trucks entering and
leaving the site, and [by] workers traveling throughout the
property. The [S]now [R]emoval [Agreement] required
J-A12030-19
[Appellee] to complete all necessary snow removal services before
7:00am, or after an accumulation of 3 inches of snow, and to lay
down cinder upon request.
On the evening of January 4, and into the morning of January 5,
2015, a significant snowstorm occurred in the Warren area
causing a substantial accumulation of snow and ice at the Tank
Farm. Harry Rosquist (“Rosquist”), an employee of [Appellee],
plowed the [T]ank [F]arm on the morning of January 5, 2015,
between 4:25am and 5:30am. Rosquist partially performed the
necessary snow removal, leaving an area of roadway untouched.
[Appellant], an employee of the [Property Owner], arrived at the
Tank Farm at approximately 5:30am on January 5, 2015. [He]
testified at deposition that the snowstorm was ongoing when he
arrived. He estimated an approximate amount of 5 ½ to 6 inches
of snow was already on the ground. While attempting to walk on
the unplowed area of roadway, [Appellant] slipped and fell on the
ice and snow[,] which caused him to sustain a fracture to his left
leg.
Trial Ct. Op., 8/21/18, at 2 (footnotes omitted).
On March 20, 2017, Appellant filed a Complaint against Appellee solely
alleging a theory of negligence.1 On April 3, 2017, Appellee filed an Answer
and New Matter. At the close of discovery, on June 13, 2018, Appellee filed a
Motion for Summary Judgment and Brief in Support, to which Appellant filed
a Response.
On July 18, 2018, the trial court held a hearing on the Motion for
Summary Judgment. Prior to issuing a decision, the court requested that the
parties submit briefs addressing Appellant’s allegation that Appellee had an
____________________________________________
1 Appellant did not allege that Appellee had breached the Snow Removal
Agreement with the Property Owner, that Appellant was an intended third-
party beneficiary of the Snow Removal Agreement, or that Appellee owed a
duty to Appellant pursuant to Restatement (Second) of Torts §§ 323 and
324A.
-2-
J-A12030-19
increased duty of care to Appellant by virtue of Appellee’s Snow Removal
Agreement with the Property Owner that rendered the “hills and ridges”
doctrine inapplicable. The court also directed the parties to identify any
outstanding factual issues that required resolution prior to it rendering a
decision. Both parties complied with the court’s directive; however, neither
party raised any factual disputes requiring resolution in their briefs.
Following its consideration of the Motion for Summary Judgment,
Appellant’s Response, the parties’ arguments, and their supplemental briefs,
the court granted Summary Judgment in favor of Appellee. In sum, the court
agreed with Appellee that the “hills and ridges” doctrine insulated Appellee
from liability for the snow and ice condition present at the Tank Farm on the
morning of January 5, 2015. The court rejected Appellant’s contention that
the “hills and ridges” doctrine did not apply because: (1) Appellee had entered
into the Snow Removal Agreement, which triggered a higher duty on him; or
(2) Appellee was not the owner of the land.
This timely appeal followed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises the following two issues on appeal:
1. Whether the trial court erred in affording [Appellee] the
protection of the “hills and ridges” doctrine when [Appellee]
was neither an owner nor possessor of the land where
[Appellant] was injured?
2. Whether the court below erred in determining that [Appellee]
did not accept a higher standard of care by agreeing to plow
the area in question during a snow event any time three (3”)
-3-
J-A12030-19
inches of snow had fallen and to spread cinders upon each
plowing to facilitate ongoing operations?
Appellant’s Brief at 4.
In his first issue, Appellant claims the trial court erred in granting
summary judgment in favor of Appellee based on its finding that the “hills and
ridges” doctrine applied to absolve Appellee of liability, even though he was
neither the owner nor possessor of the land and had assumed a heightened
duty to maintain the property pursuant to the Snow Removal Agreement. Id.
at 11-15.
Our Supreme Court has clarified our role as the appellate court as
follows:
On appellate review [ ], 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) (citations
and quotation omitted).
A trial court may grant summary judgment “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.” Id.
(citation and quotation omitted); see also Pa.R.C.P. 1035.2(1). “When
considering a motion for summary judgment, the trial court must take all facts
-4-
J-A12030-19
of record and reasonable inferences therefrom in a light most favorable to the
non-moving party.” Summers, supra at 1159 (citation omitted). “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.” Id. (citation and internal quotation marks omitted).
The “hills and ridges” doctrine protects an owner or occupier from
liability for generally slippery conditions resulting from ice and snow if the
owner has not permitted the ice and snow to accumulate unreasonably into
ridges or elevations. See generally Harmotta v. Bender, 601 A.2d 837,
841-42 (Pa. Super. 1992) (reviewing the “hills and ridges” doctrine). To
overcome the application of the “hills and ridges” doctrine in this context, a
plaintiff is required to prove: “(1) that snow and ice had accumulated on the
sidewalk in ridges or elevations of such size and character as to unreasonably
obstruct travel and constitute a danger to pedestrians travelling thereon; (2)
that the property owner had notice, either actual or constructive, of the
existence of such condition; (3) that it was the dangerous accumulation of
snow and ice which caused the plaintiff to fall.” Id. at 841 (quoting Gilligan
v. Villanova University, 584 A.2d 1005, 1007 (Pa. Super. 1991).
[T]he only duty upon the property owner or tenant is to act within a
reasonable time after notice to remove [the snow and ice] when it is in a
dangerous condition.” Gilligan, 584 A.2d at 1007 (citation omitted).
-5-
J-A12030-19
Additionally, it is well-established that “[a]n independent contractor is
in possession of the necessary area occupied by the work contemplated under
the contract, and his responsibility replaces that of the owner who is, during
the performance of the work by the contractor, out of possession and without
control over the work or the premises.” Motter v. Meadows Ltd.
Partnership, 680 A.2d 887, 890 (Pa. Super. 1996) (citation omitted). See
also Harvey v. Rouse Chamberlin, Ltd., 901 A.2d 523, 526 n.4 (Pa. Super.
2006) (where this Court applied the principle that an independent contractor
is in possession of land to the context of the applicability of the “hills and
ridges” doctrine”).
Generally, when a plaintiff brings a tort action against an independent
contractor, the court will apply the “hills and ridges” doctrine. See Biernacki
v. Presque Isle Condo. Unit Owners Ass’n, Inc., 828 A.2d 1114, 1117
(Pa. Super. 2003).
Applying these principles to the facts of this case, the trial court, citing,
inter alia, Harvey, supra, explained its conclusion that “[a]s a possessor of
land, [Appellee] would fall under the liability protections of the hills and ridges
doctrine.” Trial Ct. Op. at 4.
In light of the foregoing case law and the undisputed facts, we agree
with the trial court that, as an independent contractor, Appellee was entitled
to invoke the protections of the “hills and ridges” doctrine. Appellant is,
therefore, not entitled to relief on this claim.
-6-
J-A12030-19
In his second issue, Appellant makes two arguments. First, he claims
that Appellee is liable for Appellant’s injury pursuant to Restatement (Second)
of Torts §§ 323 and 324A, because Appellant in the Snow Removal Agreement
undertook a duty to render services, but failed to exercise reasonable care in
performing those services. Appellant’s Brief at 16-18.
With respect to his argument predicated on the Restatement (Second)
of Torts, this Court’s review of the record indicates that Appellant has raised
it for the first time on appeal. It is, therefore, waived.
It is axiomatic that “[i]ssues not raised in the lower court are waived
and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). Indeed,
our Supreme Court has explained the reasons for this as follows:
Issue preservation is foundational to proper appellate review. Our
rules of appellate procedure mandate that “[i]ssues not raised in
the lower court are waived and cannot be raised for the first time
on appeal.” Pa.R.A.P. 302(a). By requiring that an issue be
considered waived if raised for the first time on appeal, our courts
ensure that the trial court that initially hears a dispute has had an
opportunity to consider the issue. Lincoln Philadelphia Realty
Assoc. v. Bd. or Revision of Taxes of Philadelphia, 758 A.2d
1178, 1186 (Pa. 2000). This jurisprudential mandate is also
grounded upon the principle that a trial court, like an
administrative agency, must be given the opportunity to correct
its errors as early as possible. Wing v. Com. Unemployment
Comp. Bd. of Review, 436 A.2d 179, 181 (Pa. 1981). Related
thereto, we have explained in detail the importance of this
preservation requirement as it advances the orderly and efficient
use of our judicial resources. See generally Dilliplaine v.
Lehigh Valley Trust Co., 322 A.2d 114, 116–17 (Pa. 1974).
Finally, concepts of fairness and expense to the parties are
implicated as well. Id.
-7-
J-A12030-19
In re F.C. III, 2 A.3d 1201, 1211-12 (Pa. 2010). Moreover, where there is
a failure to preserve a claim in the court below, this Court may not address
the claim sua sponte. Steiner v. Markel, 968 A.2d 1253, 1257 (Pa. 2009).
In the alternative, Appellant argues that the trial court erred in applying
the “hills and ridges” doctrine to protect Appellee from liability because the
Snow Removal Agreement between Appellee and the Property Owner imposed
upon Appellee a heightened duty that supersedes the applicability of the “hills
and ridges” doctrine; and Appellee’s breach of that heightened duty renders
Appellee liable to Appellant under a theory of negligence. Appellant’s Brief at
19-21. In other words, Appellant argues that the express terms of the Snow
Removal Agreement between the Property Owner and Appellee imposed a
duty to remove snow at specific times and in specific amounts. Since Appellee
failed to remove the snow as required in the Snow Removal Agreement,
Appellant asserts that Appellee breached its duty to Appellant and is liable
under a theory of negligence.
In support of this claim, Appellant relies on Biernacki, supra to impose
upon Appellee the duty to Appellant that Appellee undertook in the Snow
Removal Agreement. In Biernacki, the plaintiff sued her landlord
(“Landlord”) only in negligence after she fell in the Landlord’s parking lot on a
snowy morning. Biernacki, 828 A.2d at 1115. The plaintiff’s theory of
liability was that the Landlord negligently permitted snow and ice containing
hills and ridges to remain in its parking lot following a recent storm. Id. The
Landlord, in turn, joined the contractor it had hired to clear the snow
-8-
J-A12030-19
(“Contractor”). Id. The plaintiff did not assert a cross-claim against the
Contractor.
Both the Landlord and Contractor filed motions for summary judgment
based on the doctrine of “hills and ridges,” which the trial court granted. On
appeal, the Biernacki plaintiff argued that the lower court erred in applying
the “hills and ridges” doctrine because the Lease imposed on the Landlord a
duty to remove the snow and the trial court erred in lowering this duty by
applying the doctrine of “hills and ridges.” Id. at 1117. The Superior Court,
however, rejected this argument and concluded that, because the Lease did
not provide an “independent standard stating the degree to which or the time
period within which the snow must be removed,” the “hills and ridges” doctrine
defined the Landlord’s duty and thus, insulated the Landlord from liability for
the plaintiff’s injuries. Id.
Important to our analysis in this case, the Biernacki Court only
addressed the duty that the Landlord owed the plaintiff arising from the Lease
and did not address the duty that the Contractor owed the plaintiff, or any
third party, in a negligence claim.
With this in mind, we decline to accept Appellant’s reliance on Biernacki
court in support of his claim that Appellee owes a duty to Appellant defined
by the terms of the Snow Removal Agreement. The Biernacki court focused
on the parties’ lease to determine the Landlord’s duty to its tenant. In the
instant case, Appellant is not a party to the Snow Removal Agreement and
Biernacki does not address the duty of a party to a contract to a third party,
-9-
J-A12030-19
let alone impose such a duty. Without some legal basis to impose a duty on
Appellee pursuant to the Snow Removal Agreement under a theory of
negligence, Appellant’s argument fails.2
In sum, it is undisputed that at the time of Appellant’s fall, the snow
was continuing and had not accumulated to point that “hills and ridges” had
formed. Also, since Appellant has failed to establish that, under a theory of
general negligence, the Snow Removal Agreement imposed on Appellee a duty
to Appellant, we are constrained to affirm the trial court’s grant of the Motion
for Summary Judgment.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/2019
____________________________________________
2 While Appellee’s alleged failure to exercise reasonable care in performing the
snow removal services it undertook to perform may give rise to a
Restatement-based tort claim against Appellee, as noted supra, Appellant
failed to plead such a claim.
- 10 -