David, J. v. Getz, A.

J-S70032-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JAMES DAVID, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
ALICE M. GETZ, LAWRENCE GETZ II, :
ROBERT B. GETZ & GETZ PERSONAL :
CARE HOME INC. :
:
Appellees : No. 756 EDA 2018
Appeal from the Order Dated February 8, 2018
In the Court of Common Pleas of Carbon County
Civil Division at No(s): No. 16-0398
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 03, 2019
Appellant, James David, appeals from the order entered in the Carbon
County Court of Common Pleas, which granted summary judgment in favor of
Appellees, Alice M. Getz, Lawrence Getz, II, Robert B. Getz, and Getz Personal
Care Home, Inc., and against Appellant in Appellant’s slip and fall/premises
liability action. We affirm.
The trial court set forth the relevant facts and procedural history as
follows:
On February 26, 2016, [Appellant] filed a complaint in
negligence against [Appellees], Alice M. Getz, Lawrence
Getz, II, Robert B. Getz, and Getz Personal Care Home, Inc.
The complaint avers that [Appellant] fell while on
[Appellees’] property located at 1752 State Route 534,
Albrightsville, Carbon County, Pennsylvania and that
[Appellees], as owners, had a duty to clear the snow and ice
from that property.
J-S70032-18
The incident giving rise to this action occurred on February
28, 2014. At that time, [Appellant] was dating Kathy
DiGregorio, who was a tenant at the subject property. After
picking up Miss DiGregorio from work and going out for
dinner, [Appellant] drove her to the property. There is no
sidewalk or paved surface from the driveway to the house,
and the yard was covered with snow and ice from a recent
storm. There was no cleared path through the snow. Miss
DiGregorio exited [Appellant’s] vehicle and walked through
the snow toward the front door of the house. [Appellant]
attempted to follow her but fell in the ice and snow, injuring
his leg and ankle.
The subject property was leased by [Appellee], Alice Getz,
to Kathy DiGregorio beginning on October 1, 2012. Kathy
DiGregorio was in possession of the entire premises
throughout the duration of the lease. On January 29, 2014,
Alice Getz transferred ownership of the subject premises to
her sons, [Appellees] Lawrence Getz, II, and Robert Getz.
Alice Getz filed a motion for summary judgment and a brief
in support thereof on August 2, 2017. Lawrence Getz,
Robert Getz, and Getz Personal Care Home, Inc. submitted
their own motion for summary judgment and supporting
brief on August 3, 2017. [Appellant] filed an answer to the
latter motion for summary judgment on September 8, 2017.
[Appellees] claim that Alice, Lawrence, and Robert Getz are
landlords out of possession of the subject property and are,
thus, immunized from liability relating to the maintenance
of that property.
On February 8, 2018, this [c]ourt granted [Appellees’]
motions for summary judgment. On March 9, 2018,
[Appellant] filed a notice of appeal to the Superior Court.
On March 12, 2018, this [c]ourt entered an order directing
[Appellant] to file of record, within twenty-one (21) days, a
concise statement of the matters complained of on appeal
pursuant to Pennsylvania Rule of Appellate Procedure
1925(b). On April 2, 2018, [this court] received
“[Appellant’s] Concise Statement of Matters Complained of
on Appeal Pursuant to Pa.R.A.P. 1925(b)”….
(Trial Court Opinion, filed April 27, 2018, at 1-3).
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J-S70032-18
Appellant raises the following issues for our review:
SHOULD THE MOTIONS FOR SUMMARY JUDGMENT BE
GRANTED IN LIGHT OF THE PLEADINGS AND DEPOSITION?
ARE THERE GENUINE ISSUES OF MATERIAL FACT?
(Appellant’s Brief at 5).
Our standard of review of an order granting summary judgment requires
us to determine whether the trial court abused its discretion or committed an
error of law. Mee v. Safeco Ins. Co. of Am., 908 A.2d 344, 347 (Pa.Super.
2006).
Judicial discretion requires action in conformity with law on
facts and circumstances before the trial court after hearing
and consideration. Consequently, the court abuses its
discretion if, in resolving the issue for decision, it misapplies
the law or exercises its discretion in a manner lacking
reason. Similarly, the trial court abuses its discretion if it
does not follow legal procedure.
Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000) (internal
citations omitted). Our scope of review is plenary. Pappas v. Asbel, 564 Pa.
407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536 U.S. 938, 122 S. Ct.
2618, 153 L. Ed. 2d 802 (2002). In reviewing a trial court’s grant of summary
judgment,
[W]e apply the same standard as the trial court, reviewing
all the evidence of record to determine whether there exists
a genuine issue of material fact. We view the record in the
light most favorable to the non-moving party, and all doubts
as to the existence of a genuine issue of material fact must
be resolved against the moving party. Only where there is
no genuine issue as to any material fact and it is clear that
the moving party is entitled to a judgment as a matter of
law will summary judgment be entered. All doubts as to the
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J-S70032-18
existence of a genuine issue of a material fact must be
resolved against the moving party.
Motions for summary judgment necessarily and directly
implicate the plaintiff’s proof of the elements of [a] cause of
action. Summary judgment is proper if, after the
completion of discovery relevant to the motion, including
the production of expert reports, an adverse party who will
bear the burden of proof at trial has failed to produce
evidence of facts essential to the cause of action or defense
which in a jury trial would require the issues to be submitted
to a jury. In other words, whenever there is no genuine
issue of any material fact as to a necessary element of the
cause of action or defense, which could be established by
additional discovery or expert report and the moving party
is entitled to judgment as a matter of law, summary
judgment is appropriate. Thus, a record that supports
summary judgment either (1) shows the material facts are
undisputed or (2) contains insufficient evidence of facts to
make out a prima facie cause of action or defense.
Upon appellate review, we are not bound by the trial court’s
conclusions of law, but may reach our own conclusions.
Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006)
(internal citations and quotation marks omitted).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Steven R.
Serfass, we conclude Appellant’s issues merit no relief. The trial court opinion
comprehensively discusses and properly disposes of the questions presented.
(See Trial Court Opinion, filed April 27, 2018, at 3-6) (finding: Appellant
admits that Ms. DiGregorio was tenant/lessee of subject property at time of
his fall; Appellant failed to plead any exception to general rule in Pennsylvania
that lessor of land is not liable to lessee or to others, including invitees, for
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J-S70032-18
physical harm caused by natural or artificial conditions on land which existed
when land was transferred or which arose after transfer of possession; thus,
Appellees/lessors are not liable for Appellant’s harm1; additionally, Appellee
Getz Personal Care Home, Inc. does not and has not ever owned subject
property).2 Accordingly, we affirm on the basis of the trial court’s opinion.
Order affirmed.
____________________________________________
1Moreover, under the express terms of the lease agreement, Ms. DiGregorio
was solely responsible to keep and maintain the property free of ice and snow.
2 Issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed waived
for appellate review. Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d
775 (2005). A Rule 1925(b) statement that is not specific enough for the trial
court to identify and address the issues Appellant wishes to raise on appeal
may also result in waiver. Commonwealth v. Reeves, 907 A.2d 1
(Pa.Super. 2006), appeal denied, 591 Pa. 712, 919 A.2d 956 (2007).
Instantly, Appellant complains on appeal that there is a genuine dispute of
material fact concerning the validity of the lease agreement because the lease
is between Alice Getz and Ms. DiGregorio, but Lawrence and Robert Getz
owned the property at the time of Appellant’s fall. Appellant did not specify
this claim in his Rule 1925(b) statement, however, so he waived this claim on
appeal. See id. Moreover, even if properly preserved, Appellant’s claim would
merit no relief for the reasons stated in the trial court’s order granting
summary judgment in favor of Appellees. (See Order Granting Summary
Judgment, dated February 8, 2018, at n.1) (finding: when original lessor sells
land, purchaser steps into shoes of original lessor and can enforce terms of
original lease; thus, transfer of ownership did not affect validity of lease
agreement).
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J-S70032-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/3/19
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Circulated 12/04/2018 02:58 PM
IN THE C:,()URT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIA
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Defendants
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John Molnar, Esquire Counsel for Plaintiff
Kevin C. McNamara, Esquire Counsel for Alice M. Getz
James R. Nanovic, Esquire Counsel for Lawrence Getz,
II, Robert B. Getz, and Getz
Personal Care Home, Inc.
MEMORANDUM OPINION
Serfass, J. - April 27, 2018
James David, (hereinafter "Plaintiff"), has taken this appeal
from our order of February 8, 2018, granting Defendants' motion
for summary judgment. We file the following Memorandum Opinion
pursuant to Pennsylvania Rule of Appellate Procedure 1925(a) and
recommend that the aforesaid order be affirmed for the reasons set
forth hereinafter.
FACTUAL AND PROCEDURAL HISTORY
On February 26, 2016, Plaintiff filed a complaint in
negligence against Defendants, Alice M. Getz, Lawrence Getz, II,
Robert B. Getz, and. Getz Personal Care Home , Inc . The complaint
------------------ ----------------------- ---------
avers that Plaintiff fell while on Defendants' property located at
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1752 State Route 534, Albrightsville, Carbon County, Pennsylvania
and that Defendants, as owners, had a duty to clear the snow and
ice from that property.
The incident giving rise to this action occurred on February
28, 2014. At that time, Plaintiff was dating Kathy DiGregorio, who
was a tenant at the subject property. After picking up Miss
DiGregorio from work and going out for dinner, Plaintiff drove her
to the property. There is no sidewalk or paved surface from the
driveway to the house, and the yard was covered with snow and ice
from a recent storm. There was no cleared path through the snow.
Miss DiGregorio exited Plaintiff's vehicle and walked through the
snow toward the front door of the house. Plaintiff attempted to
follow her but fell in the ice and snow, injuring his leg and
ankle.
The subject property was leased by Defendant, Alice Getz, to
Kathy DiGregorio beginning on October 1, 2012. Kathy DiGregorio
was in possession of the entire premises throughout the duration
of the lease. On January 29, 2014, Alice Getz transferred ownership
of the subject premises to her sons, Defendants Lawrence Getz, II,
and Robert Getz.
Alice Getz filed a motion for summary judgment and a brief in
support thereof on August 2, 2017. Lawrence Getz, Robert Getz, and
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summary judgment and supporting brief on August 3, 2017. Plaintiff
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filed an answer to the latter motion for summary judgment on
September 8, 2017. Defendants claim that Alice, Lawrence, and
Robert Getz are landlords out of possession of the subject property
and are, thus, immunized from liability relating to the maintenance
of that pr_operty.
On February 8, 2018, this Court granted Defendants' motions
for summary judgment. On March 9, 2018, Plaintiff filed a notice
of appeal to the Superior Court. On March 12, 2018, this Court
entered an order directing Plaintiff to file of record, within
twenty-one {21) days, a concise statement of the matters complained
of on appeal pursuant to Pennsylvania Rule of Appellate Procedure
1925 (b) . On April 2, 2018, we received "Plaintiff's Concise
Statement of Matters Complained of on Appeal Pursuant to Pa.R.A.P.
1925 (b)" in which he raises twelve {12) issues for appellate
review.
DISCUSSION
The issues Plaintiff raises on appeal can be simplified into
(3) separate questions: 1) Whether this Court erred in failing to
find any genuine issues of material fact; 2) Whether this Court
failed to examine the record in the light most favorable to the
Plaintiff; and 3} Whether this Court erred in determining
Defendants are immunized from liability relating to the
turn.
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I. This Court committed no error in finding that there are no
genuine issues of material fact
Plaintiff claims that Defendants failed to demonstrate that
there are no genuine issues_ of material fact and that this Court
erred in finding that there areno such issues. Thus, according to
Plaintiff, summary judgment was not warranted.
The standards which govern summary judgment are
well settled. When a party seeks summary judgment, a
court shall enter judgment whenever there is no genuine
issue of any material fact as to a necessary element of
the cause of action or defense that could be established
by additional discovery. A motion for summary judgment
is based on an evidentiary record that entitles the
moving party to a judgment as a matter of law. In
considering the merits of a motion for summary judgment,
a court views the record in the light most favorable to
the non-moving party, and all doubts as to the existence
of a genuine issue of material fact must be resolved
against the moving party. Finally, the court may grant
summary judgment only when the right to such a judgment
is clear and free from doubt. An appel l.abe court may
reverse the granting of a motion for summary judgment if
there has been an error of law or an abuse of discretion.
Swords v. Harleysville Insurance Companies, 883 A.2d 562, 566-67
(Pa. 2005) (citations omitted).
The question at issue in this case is whether Defendants are
landlords out of possession of the subject property as that would
immunize them from liability relating to the maintenance of that
property. Pennsylvania law follows the general rule that a lessor
of land is not liable to the lessee or to others, including
_____...._nv.i.t
; ...e=e.....s� for the physical harm caused by �ither natural or
artificial conditions on the land which existed when the land was
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transferred or which arose after the transfer of possession. Deeter
v. Dull Corp., 617 A.2d 336, 338 (Pa.Super. 1992). This principle
is based upon the theory that when the owner leases the land, the
law regards the lease transaction as equivalent to the sale of the
land for the term of the lease. Id. at 339. Liability is premised
primarily on possession and control, and not ownership. Id. There
are several exceptions to this general rule: where the lessor
contracts to repair; where the lessor fails to disclose dangerous
conditions to the lessee; where the land is leased for the purpose
of inviting the public; where the lessor retains a portion of the
land but allows the lessee to use it; where the lessor retains a
portion of the land that is necessary to maintain the leased part
in a safe condition; and, where the lessor negligently makes
repairs on the land while it is in the possession of the lessee.
Id.
In this case, Plaintiff admitted that the subject premises
was being leased and that Kathy DiGregorio was the tenant of the
subject premises in paragraphs two (2) and four (4), respectively,
of "Plaintiff's Answer to Motion for Summary Judgment on behalf of
Defendants' Lawrence Getz, II, Robert B. Getz, and Getz Person
Care Home, Inc." Further, there was no claim that Defendants
retained possession of any portion of the property, so Miss
_____nJJ.,iGregorio was in full possession of t'he property. P1ainE1Tthas
not pleaded, and there is no evidence, that any of the exceptions
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to the landlord out of possession rule apply in this case. Thus,
Defendants, Alice Getz, Lawrence Getz, II, and Robert Getz, as
lessors, cannot be liable for the physical harm caused by the
natural accumulation of ice and snow on the property which arose
after the transfer of possession. Additionally, because Getz
Personal Care Home, Inc. has never owned the subject property nor
had any legal duty to maintain the property, it cannot be found
liable as a matter of law.
There are no genuine issues of material fact in this matter
because Defendant has admitted that Miss DiGregorio was the tenant
of the property and that she had entered into a lease for said
property. Plaintiff mistakes Defendants' ownership of the property
for the possession and control afforded to Miss DiGregorio through
her tenancy.
Finally, Plaintiff argues that there are genuine issues of
material fact in regard to the issue of the statute of limitations,
but this action was filed within the applicable statute of
limitations and, even if it were not I such an issue would not
prevent summary judgment in Defendants' favor. We decline to guess
what issue Appellant was trying to raise as to the statute of
limitations as the Superior Court has held that such attempts would
be futile. Commonwealth v. Lemon, 804 A.2d 34, 38 (Pa.Super. 2002).
An issue raisea. on appeal-is waiv-ed-wlien an appellanr-s
concise statement is too vague for the trial court to identify and
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address any such issues. Commonwealth v. Dowling, 778 A.2d 683,
686 (Pa.Super. 2001). When a court must guess what issue an
appellant is appealing, that is not enough for meaningful review.
Id. (quoting Commonwealth v. Butler, 756 A.2d 55, 57 (Pa.Super.
2000)). Further, if an appellant does not adequately identify in
a concise manner the issue sought to be pursued on appeal, the
trial court is impeded in its preparation of a legal analysis
pertinent to that issue. Id. (quoting In re Estate of Daubert, 757
A.2d 962, 963 (Pa.Super. 2000)}. Ultimately, a concise statement
that is too vague to allow the trial court to identify the issue
raised on appeal is the functional equivalent of no concise
statement at all. Id. at 686-87.
"The trial court may not frame the issues for an appellant,
either by guessing or anticipating." Lemon, 804 A.2d at 38. Because
Appellant's concise statement is vague as to the issue of statute
of limitations, the issue Appellant wishes to raise on appeal would
even be waived if this Court were to correctly guess and address
the issue in our Pa. R.C.P. 1925(a} opinion. Id.
Therefore, Appellant's vague concise statement prevents this
Court from engaging in any meaningful review of that issue and any
attempt to discern the issue would be futile.
II. This Court examined the record in the light most favorable
---·---------
to Plaintiff
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Plaintiff next claims that this Court did not view the record
in the light most favorable to Plaintiff, the non-moving party.
As stated above, when considering the merits of a motion for
summary judgment, the trial court must view the record in the light
most favorable to the non-moving party, and all doubts as to the
existence of a genuine issue of material fact must be resolved
against the moving party. Swords, 883 A.2d at 566-67.
This Court granted Defendant's motion for summary judgment
based upon the admissions of Plaintiff in his submissions to this
Court. Plaintiff provided that "[i]t is admitted that the subject
premises was being leased [,] " and that "Kathy DiGregorio was a
tenant[.]" Even in the light most favorable to Plaintiff, if the
property was being leased, Miss DiGregorio was a tenant, and there
is no evidenrie or claim that Defendants controlled or possessed
any part of the property, then Defendants are landlords out of
possession and are immunized from liability related to the
maintenance of the property. Thus, this Court did not fail to
examine the record in the light most favorable to Plaintiff.
III. This Court did not err in determining that Defendants are
immunized from liability relating to the maintenance of
the subject property
Finally, Plaintiff claims that this Court erred in
determining that Defendanfs are immunizec1-�-ta.-bi:-l"i-ty-rei.-a.tetl
��������
to the maintenance of the property.
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As stated above, Pennsylvania law follows the general rule
that a lessor of land is not liable to the lessee or to others,
including invitees, for the physical harm caused by either natural
or artificial conditions on the land which existed when the land
was transferred or which arose after the transfer of possession.
Deeter, 617 A.2d at 338.
Therefore, because no exceptions to this rule apply in this
case, Defendants, as lessors, are not liable to Plaintiff, an
invitee, for the physical harm caused by the natural accumulation
of ice and snow on the land after the transfer of possession to
Miss DiGregorio.
CONCLUSION'
For the reasons set forth hereinabove, we respectfully
recommend that the instant appeal be denied and that our summary
judgment order of February 8, 2018, be affirmed accordingly.
BY THE COURTa
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Steven R. Serfass, J.
------------�--·· ·-------
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