J-S18033-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARY TOSTO IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
GIANT FOOD STORES, LLC AND
SHOOSTER PROPERTIES
Appellee No. 2049 EDA 2014
Appeal from the Order Entered June 17, 2014
In the Court of Common Pleas of Bucks County
Civil Division at No(s): 2010-11043
BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.
MEMORANDUM BY MUNDY, J.: FILED APRIL 02, 2015
Appellant, Mary Tosto, appeals from the June 17, 2014 order, granting
the motion for summary judgment filed by Appellees, Giant Food Stores, LLC
and Shooster Properties1 (collectively, Giant). After careful review, we
affirm.
We summarize the relevant factual and procedural background of this
case as follows. On February 8, 2009, Tosto alleges that she slipped and fell
on ice that had formed in the parking lot of one of Giant’s stores in
Bensalem, Pennsylvania. Trial Court Opinion, 9/24/14, at 1. Tosto alleges
that she sustained serious injuries including a “left knee contusion, neck
injury with radiculopathy, [] back injury with radiculopathy and a left
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1
Shooster Properties has not filed an appellee brief in this matter.
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shoulder injury.”2 Tosto’s Complaint, 7/29/10, at ¶ 8. Tosto filed her
complaint on July 29, 2010, alleging various grounds of negligence against
Giant. Id. at ¶ 7. Giant filed its answer and new matter on May 25, 2011.
On September 5, 2013, Giant filed a motion for summary judgment. Tosto
filed her answer on October 7, 2013. On June 17, 2014, the trial court
entered an order granting Giant’s motion for summary judgment. On July 3,
2014, Tosto filed a timely notice of appeal.3
On appeal, Tosto raises the following issue for our review.
A lease agreement gave [Giant] an easement over
the parking lot where [Tosto] fell on ice. In granting
summary judgment to Giant, did the [trial] court
commit an error of law or abuse its discretion by
failing to allow the jury to decide whether Giant was
a “possessor” of the area sufficient to subject Giant
to liability, as required by Leichter v. E. Realty Co.,
516 A.2d 1247, 1249[,] 1250 ([Pa. Super.] 1986)[,
appeal denied, Leichter v. Acme Mkts., Inc., 527
A.2d 542 (Pa. 1987)]?
Tosto’s Brief at 3 (parallel citation omitted).
We begin by noting our well-settled standard of review.
“[O]ur 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[,] and our scope of review
____________________________________________
2
Tosto originally filed this action in Philadelphia County. However, the
parties stipulated to transfer venue in this case to Bucks County.
Stipulation, 9/21/10, at 1.
3
Tosto and the trial court have complied with Pennsylvania Rule of Appellate
Procedure 1925.
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is plenary.” Petrina v. Allied Glove Corp., 46 A.3d
795, 797–798 (Pa. Super. 2012) (citations omitted).
“We view the record in the light most favorable to
the nonmoving party, and all doubts as to the
existence of a genuine issue of material fact must be
resolved against the moving party.” Barnes v.
Keller, 62 A.3d 382, 385 (Pa. Super. 2012), citing
Erie Ins. Exch. v. Larrimore, 987 A.2d 732, 736
(Pa. Super. 2009) (citation omitted). “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.” Id. The rule governing summary
judgment has been codified at Pennsylvania Rule of
Civil Procedure 1035.2, which states as follows.
Rule 1035.2. Motion
After the relevant pleadings are closed, but
within such time as not to unreasonably delay
trial, any party may move for summary
judgment in whole or in part as a matter of law
(1) 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, or
(2) 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.
Pa.R.C.P. 1035.2.
“Where the non-moving party bears the
burden of proof on an issue, he may not merely rely
on his pleadings or answers in order to survive
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summary judgment.” Babb v. Ctr. Cmty. Hosp.,
47 A.3d 1214, 1223 (Pa. Super. 2012) (citations
omitted), appeal denied, 65 A.3d 412 (Pa. 2013).
Further, “failure of a non-moving party to adduce
sufficient evidence on an issue essential to his case
and on which he bears the burden of proof
establishes the entitlement of the moving party to
judgment as a matter of law.” Id.
Thus, our responsibility as an appellate
court is to determine whether the record either
establishes that the material facts are
undisputed or contains insufficient evidence of
facts to make out a prima facie cause of
action, such that there is no issue to be
decided by the fact-finder. If there is evidence
that would allow a fact-finder to render a
verdict in favor of the non-moving party, then
summary judgment should be denied.
Id., citing Reeser v. NGK N. Am., Inc., 14 A.3d
896, 898 (Pa. Super. 2011), quoting Jones v.
Levin, 940 A.2d 451, 452–454 (Pa. Super. 2007)
(internal citations omitted).
Cadena v. Latch, 78 A.3d 636, 638-639 (Pa. Super. 2013).
Tosto’s argument on appeal is that Giant was a possessor of an
easement in the parking lot where she slipped and fell. Tosto’s Brief at 9.
Therefore, in her view, this shifted the duty of maintenance from the
landlord to Giant as the tenant. Id. at 10. Giant counters that no such
easement exists, and the trial court’s grant of summary judgment was
proper. Giant’s Brief at 26.
Generally, the Restatement (Second) of Torts imposes a duty upon
businesses that are open to the public to protect the public from harm while
on their premises.
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§ 344 Business Premises Open to Public: Acts
of Third Persons or Animals
A possessor of land who holds it open to the public
for entry for his business purposes is subject to
liability to members of the public while they are upon
the land for such a purpose, for physical harm
caused by the accidental, negligent, or intentionally
harmful acts of third persons or animals, and by the
failure of the possessor to exercise reasonable care
to
(a) discover that such acts are being done or are
likely to be done, or
(b) give a warning adequate to enable the visitors to
avoid the harm, or otherwise to protect them against
it.
RESTATEMENT (SECOND) OF TORTS § 344 (1965); see also Stanton v.
Lackawanna Energy, Ltd., 886 A.2d 667, 677 (Pa. 2005) (citing to and
applying Section 344). Likewise, the Restatement defines a possessor of
land as follows.
§ 328E Possessor of Land Defined
A possessor of land is
(a) a person who is in occupation of the land with
intent to control it or
(b) a person who has been in occupation of land with
intent to control it, if no other person has
subsequently occupied it with intent to control it, or
(c) a person who is entitled to immediate occupation
of the land, if no other person is in possession under
Clauses (a) and (b).
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RESTATEMENT (SECOND) OF TORTS § 328E (1965); see also Stanton, supra
(citing to and applying Section 328E).
Our Supreme Court has stated that when there is an area of land with
multiple tenants, the duty of care to maintain the common areas of the land
remains with the landlord.
In Pennsylvania, it has long been established
as a principle of landlord-tenant law that where the
owner of real estate leases various parts thereof to
several tenants, but retains possession and control of
the common passage-ways and aisles which are to
be used by business invitees of the various tenants,
the obligation of keeping the common aisles safe for
the business invitees is imposed upon the landlord
and not upon the tenants, in the absence of a
contrary provision in the lease or leases[.]
Leary v. Lawrence Sales Corp., 275 A.2d 32, 34 (Pa. 1971) (citations
omitted). Tosto correctly notes that in Stanton, our Supreme Court noted
that when an easement is involved, “an owner of an easement is generally
considered a possessor of property and is required to maintain its
easement.” Stanton, supra at 677. “Accordingly, [our Supreme] Court
has held that an easement holder is subject to the same liability as any
other possessor of the premises.” Id.
The crux of Tosto’s argument is that our opinion in Leichter, which
our Supreme Court cited to with approval in Stanton, requires that a jury
decide the question as to whether Giant was a possessor of land within the
meaning of Sections 328E and 344 of the Restatement. This Court
summarized the facts of Leichter as follows.
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Plaintiff brought suit in a representative
capacity as executrix of the estate of her
deceased husband, who suffered a myocardial
infarction as the result of being abducted from
a parking lot owned by Eastern Realty
Company. There is substantial agreement that
on or about 8:00 p.m. on September 10, 1980,
the Leichters drove to the Bala Cynwyd
Shopping Center to shop at defendant Acme
Supermarket. The shopping center consisted
of fourteen stores, all tenants of Eastern Realty
Company, Acme Markets, Inc. and the Lord &
Taylor store. By agreement dated April [3,
1956], the predecessor in title to Eastern
Realty Incorporated had granted to the
predecessor of Acme Markets, Incorporated an
easement for ingress and egress over a portion
of the land and the privilege for its business
invitees to park in its parking lot. These same
rights were provided for Eastern’s tenants in
their leasing agreements.
…
After completion of the presentation of the
evidence, the trial judge (1) ruled that the principal
issue in the case-whether appellee Acme Markets, as
the holder of an easement for ingress and egress
with a privilege to park on the land, was a
“possessor” of the land-was a matter of law to be
determined by the judge, and then (2) concluded
that Acme was a possessor of the land. The trial
judge then submitted to the jury the issues of (1)
whether there was a breach of the duty which a
possessor owes to a business invitee, and if so, (2)
whether the breach of that duty was the proximate
cause of the appellant’s injuries. The jury returned
with a verdict in favor of appellant and against
appellees. The court en banc, however, ruled that
the trial court had erred in treating the issue as a
matter of law and concluded that the jury should
determine whether appellee Acme Markets was
a possessor of the pertinent land. As a result,
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the court en banc granted the motion for a new trial
that had been presented by Acme Markets.
Leichter, supra at 1249-1250 (emphasis added). This Court held that the
issue of whether an easement holder is a possessor was a question for the
jury to decide. This is because we recognized that not every easement
holder will be found to be a possessor of land.
We hold that the question of whether the
holder of an easement is a “possessor” is a question
for the fact-finder. The expectation that this rather
fundamental question would be quickly addressed
and even resolved by abundant appellate authority
has proven false. Whether a particular issue is to be
confronted as a question of law and, therefore, is
one to be decided by the court, or whether it is a
question of fact to be resolved by a jury, is, once the
study moves beyond the routine and obvious, a most
troublesome inquiry upon which there has been a
dearth of decision.
…
Surely, the device of special interrogatories
can be every bit as helpful to a jury in resolving
issues of a more traditional nature, such as whether
or not an easement holder is a “possessor” of land.
The determination of “possession” and the conclusion
of “control” may only result from the presentation of
facts and factors that reflect (1) that the party holds
an easement, and (2) the manner in which the party
exercises the prerogatives of that easement. The
trial court will, of course, determine whether there
has been such evidence presented as is sufficient to
deny an application for a non-suit. If that application
is refused, it remains for the jury to determine
liability, but the jury must first decide whether the
easement holder was in “possession”. Only then, if
the easement holder is determined to have been in
possession, will the jury proceed to consider, in
order, the issues of whether the easement holder
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breached the duties of an easement holder in
possession, and, if so, whether that breach was the
proximate cause of the injury sustained.
Id. at 1249-1250.
Tosto is correct that Leichter states that the question of whether an
easement holder is a possessor of land is a jury question. However, the
burden is on Tosto to establish as a first-order matter, that an easement
existed. As noted above, it is presumed that the landlord of a shopping
center has a duty to maintain the common use areas of the center unless
there is a “contrary provision in the lease[.]” Leary, supra. Tosto argues
that Section 202 of the lease is such a contrary provision. Tosto’s Brief at 9.
It provides as follows.
Section 202 Common Areas. Together with the
right to the nonexclusive use, in common with
others, of all automobile parking areas, driveways,
footways and other facilities at or upon the Shopping
Center designed for common use, as shall be
installed by Landlord as hereinafter provided,
together with all the appurtenances, if any, now of
hereafter belonging thereto.
Giant’s Answer and New Matter, 5/25/11, at Exhibit 4, at 1.
After careful review of the certified record, we conclude Tosto is not
entitled to relief. The above-mentioned section of the lease between Giant
and the landlord does not mention an easement being created, either
explicitly or by implication. Tosto’s brief states in a conclusory fashion that
“[s]ection 202 of the [l]ease gave Giant an easement over the parking areas
of the shopping center, including the area where Ms. Tosto fell.” Tosto’s
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Brief at 9. However, Tosto’s brief does not explain how Section 202 of the
lease gives rise to even a legal question as to whether an easement existed
in the first instance. Further, upon review of the lease in its entirety, we
note that Section 1201 explicitly states that the landlord “shall keep and
maintain [the common areas] in good repair and condition and reasonably
free of snow, ice, refuse and other obstructions[.]” Giant’s Answer and New
Matter, 5/25/11, at Exhibit 4, at 21. As Tosto cannot show that Giant was
an easement holder, she is not entitled to Leichter’s benefit. Therefore,
there was no issue of material fact for the jury to decide.
Based on the foregoing, we conclude the trial court did not abuse its
discretion when it granted Giant’s motion for summary judgment. See
Cadena, supra. Accordingly, the trial court’s June 17, 2014 order is
affirmed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/2/2015
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