Magaskie, D. v. Wawa, Inc.

J-A28003-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MAGASKIE, DANIEL AND MAGASKIE, IN THE SUPERIOR COURT OF
NICOLE, H/W PENNSYLVANIA

Appellants

v.

WAWA, INC.

Appellee No. 424 EDA 2015

Appeal from the Judgment Entered March 20, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 130901343

BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.

MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 10, 2015

Appellants, Daniel Magaskie and Nicole Magaskie, H/W, appeal from

the judgment entered in the Philadelphia County Court of Commons Pleas,

following a jury verdict in favor of Appellee, Wawa, Inc. (“Wawa”), in this

slip-and-fall case. We affirm.

The trial court opinion sets forth the relevant facts of this case as

follows:

On October 29, 2011, an unseasonably early snowstorm
hit the Schwenksville area, causing snow to accumulate on
[Appellant] Mr. Magaskie’s vehicle which was parked at his
home. The following morning, [Appellant] Mr. Magaskie, a
private investigator by trade, was on his way to work when
he stopped at [Wawa’s] convenience store/gas station,
located at 4121 Skippack Pike, Schwenksville,
Pennsylvania. After arriving at the Schwenksville Wawa,
[Appellant] Mr. Magaskie parked in front of the gas pumps,
got out of his car, and proceeded to brush the
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aforementioned snow off his car and on to the ground near
the gas pumps. [Appellant] Mr. Magaskie walked on and
around the area where he had thrown the snow, and then
proceeded to walk towards the Wawa, at which point he
slipped and fell in the parking lot. Richard Morton, the
Wawa’s manager, then came out to assist [Appellant] Mr.
Magaskie and to survey the area. This entire incident,
from start to finish, was captured on video by the
Schwenksville Wawa’s surveillance system.

[Appellant] Mr. Magaskie suffered injuries to his left knee
as a result of his fall, necessitating arthroscopic surgery to
remove part of the meniscus, as well as physical therapy.
[Appellant] Mr. Magaskie claimed that this knee injury was
affecting his quality of life, including intermittent pain and
difficulty walking and in getting up from a seated position.

Subsequently, on May 9, 2013, [Appellant] Mr. Magaskie
was involved in an unrelated car accident during which his
vehicle was allegedly rear-ended by a third party.
Thereafter, [Appellant] Mr. Magaskie sought treatment
from a number of doctors, including Dr. Kenneth Izzo, for
issues related to his neck and lower back stemming from
the car accident. Dr. Izzo first met with [Appellant] Mr.
Magaskie in May 2013 wherein [Appellant] Mr. Magaskie
advised Dr. Izzo that he was having difficulty standing up
from the seated position due to lower back pain. Dr. Izzo
also stated that [Appellant] Mr. Magaskie’s first steps were
“slow and antalgic”—again as a result of [Appellant] Mr.
Magaskie’s back pain caused by the car accident.
[Appellant] Mr. Magaskie told Dr. Izzo that his car accident
had limited him in many of his life activities, including
driving.

(Trial Court Opinion, filed March 26, 2015, at 1-3) (internal citations to

record omitted). Procedurally, Appellants filed a complaint in negligence

against Wawa on September 12, 2013.1 Following a two-day trial, a jury

____________________________________________

1
Appellant Nicole Magaskie brought a claim for loss of consortium.

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returned a verdict in favor of Wawa, finding that Wawa had not been

negligent. On January 22, 2015, Appellants filed a timely post-trial motion,

which the court denied on January 28, 2015. Appellants filed a premature

notice of appeal on February 3, 2015. On February 11, 2015, the court

ordered Appellants to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). Appellants filed their Rule 1925(b)

statement on February 16, 2015. On March 12, 2015, this Court entered a

per curiam order directing Appellants to praecipe for entry of final judgment.

On March 20, 2015, Appellants filed a praecipe for entry of final judgment on

the verdict in favor of Wawa, which the prothonotary entered that day.2

Appellants raise two issues for our review, which we have reordered

for purposes of disposition:

DID THE [TRIAL] COURT COMMIT PREJUDICIAL,
REVERSIBLE ERROR WHEN IT REFUSED TO INSTRUCT THE
JURY ABOUT THE ISOLATED PATCH [O]F ICE EXCEPTION
TO THE HILLS AND RIDGES DOCTRINE?

____________________________________________

2
Ordinarily, an appeal properly lies from the entry of judgment, not from
the order denying post-trial motions. See Johnston the Florist, Inc. v.
TEDCO Constr. Corp., 657 A.2d 511 (Pa.Super. 1995) (en banc).
Nevertheless, a final judgment entered during the pendency of an appeal is
sufficient to perfect appellate jurisdiction. Drum v. Shaull Equipment and
Supply, Co., 787 A.2d 1050 (Pa.Super. 2001), appeal denied, 569 Pa. 693,
803 A.2d 735 (2002). Appellants’ notice of appeal was premature when
filed, but it related forward to March 20, 2015, the date the final judgment
was entered. See Pa.R.A.P. 905(a)(5) (stating: “A notice of appeal filed
after the announcement of a determination but before the entry of an
appealable order shall be treated as filed after such entry and on the day
thereof”). Hence, no jurisdictional impediments impede our review.

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DID THE [TRIAL] COURT COMMIT PREJUDICIAL,
REVERSIBLE ERROR WHEN IT ALLOWED DEFENSE
COUNSEL TO CROSS EXAMINE [APPELLANT MR.
MAGASKIE] BY READING STATEMENTS, OBSERVATIONS,
AND CONCLUSIONS (HEARSAY) WRITTEN BY DR. IZZO
WHEN NONE OF THOSE STATEMENTS, OBSERVATIONS OR
CONCLUSIONS QUALIFIED AS EXCEPTIONS TO HEARSAY?

(Appellants’ Brief at 4).

In their first issue, Appellants argue the evidence showed Appellant

Mr. Magaskie slipped on a patch of ice in the Wawa parking lot, and that

there were no “generally slippery conditions” in the lot. Appellants contend

they were entitled to a jury instruction on the “isolated patch of ice”

exception to the “hills and ridges” doctrine.3 Appellants conclude the trial

court abused its discretion when it denied Appellants’ requested instruction.

We disagree.

Our standard of review regarding jury instructions is
limited to determining whether the trial court committed a
clear abuse of discretion or error of law which controlled
the outcome of the case.

Error in a charge is sufficient ground for a new trial if
the charge as a whole is inadequate or not clear or
has a tendency to mislead or confuse rather than
clarify a material issue. A charge will be found
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3
Appellants requested the following instruction: “In Pennsylvania, a store
owner is liable if a customer slips and falls on a ‘specific, localized, isolated
patch of ice’ if the store owner knew or should have known about that patch
of ice. If you find that [Appellant] Dan Magaskie slipped on a specific,
localized, isolated patch of ice, and if you find that Wawa knew or should
have known about that ice, you must find that Wawa was negligent for
failing to make their parking lot safe and for failing to warn [Appellant] Dan
Magaskie of the slippery condition.” See Appellants’ Brief at 18-19.

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adequate unless the issues are not made clear to the
jury or the jury was palpably misled by what the trial
judge said or unless there is an omission in the
charge which amounts to a fundamental error. In
reviewing a trial court’s charge to the jury we must
look to the charge in its entirety.

Underwood ex rel. Underwood v. Wind, 954 A.2d 1199 (Pa.Super. 2008)

(citations omitted).

To prevail in a negligence action, a plaintiff must establish the

defendant “owed a duty of care to the plaintiff, that duty was breached, the

breach resulted in the plaintiff’s injury, and the plaintiff suffered an actual

loss or damages.” Merlini ex rel. Merlini v. Gallitzin Water Authority,

602 Pa. 346, 354, 980 A.2d 502, 506 (2009). A land possessor is liable for

physical harm caused to an invitee only if the following conditions are

satisfied:

[The land possessor] knows of or reasonably should have
known of the condition and the condition involves an
unreasonable risk of harm, he should expect that the
invitee[s] will not realize it or will fail to protect themselves
against it, and the party fails to exercise reasonable care
to protect the invitees against the danger.

Estate of Swift v. Northeastern Hosp. of Philadelphia, 690 A.2d 719,

722 (Pa.Super. 1997), appeal denied, 549 Pa. 716, 701 A.2d 577 (1997)

(citation omitted). The “mere existence of a harmful condition in a public

place of business, or the mere happening of an accident due to such a

condition is neither, in and of itself, evidence of a breach of the proprietor’s

duty of care to his invitees, nor raises a presumption of negligence.” Myers

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v. Penn Traffic Co., 606 A.2d 926, 928 (Pa.Super. 1992) (en banc), appeal

denied, 533 Pa. 625, 620 A.2d 491 (1993). An invitee must present

evidence proving “either the proprietor of the land had a hand in creating

the harmful condition, or he had actual or constructive notice of such

condition.” Estate of Swift, supra at 722. What constitutes constructive

notice depends on the circumstances of the case, but one of the most

important factors to consider is the time that elapsed between the origin of

the condition and the accident. Neve v. Insalaco’s, 771 A.2d 786, 791

(Pa.Super. 2001). The invitee need not produce evidence on how long the

alleged condition existed if the condition is of a type with an “inherently

sustained duration” (as opposed to something transitory such as a spill), and

a witness saw the condition immediately before or after the accident. Id.

This Court has summarized “the doctrine of hills and ridges” as

follows:

This doctrine provides that an owner or occupier of land is
not liable for general slippery conditions, for to require that
one’s walks be always free of ice and snow would be to
impose an impossible burden in view of the climatic
conditions in this hemisphere. Snow and ice upon a
pavement create merely transient danger, and the only
duty upon the property owner or tenant is to act within a
reasonable time after notice to remove it when it is in a
dangerous condition. In order to recover for a fall on an
ice- or snow-covered sidewalk, a plaintiff must 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,

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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.

Gilligan v. Villanova University, 584 A.2d 1005, 1007 (Pa.Super. 1991)

(citations omitted).

An exception to the “hills and ridges” doctrine exists, however, where

the plaintiff can prove “the hazard is not the result of a general slippery

condition prevailing in the community, but of a localized patch of ice.”

Bacsick v. Barnes, 341 A.2d 157, 160 (Pa.Super. 1975) (stating proof of

hills and ridges was not required where plaintiffs produced evidence that

snowbank on defendants’ property was of artificial origin, i.e., created as a

result of street plowing). Under those circumstances, “it is comparatively

easy for a property owner to take the necessary steps to alleviate the

condition, while at the same time considerably more difficult for the

pedestrian to avoid it even exercising the utmost care.” Williams v.

Shultz, 429 Pa. 429, 433, 240 A.2d 812, 814 (1968). When proof of hills

and ridges is not required, a plaintiff still must prove that the defendant

landowner had actual or constructive notice of the hazardous condition.

Bacsick, supra.

Instantly, on October 29, 2011, a snowstorm occurred in the

Schwenksville area. The storm continued into the evening. At

approximately 7:00 a.m. on the following morning, Appellant Mr. Magaskie

cleared snow and slush off his car before driving to the Wawa. After he

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exited his car in the Wawa fuel pump area, he knocked more snow off the

passenger side of the vehicle. Appellant Mr. Magaskie testified that there

was already snow on the ground. He claims he then slipped on a patch of

ice as he walked into the parking lot toward the store.4 Appellant Mr.

Magaskie testified that other areas of the lot where he walked were not

slippery. Nevertheless, the evidence of a snowstorm that had ended only

hours before the incident, and Appellant Mr. Magaskie’s testimony that there

was snow on his car and on the ground outside the Wawa store, established

the existence of generally slippery conditions in the community. See

Bacsick, supra. Thus, the court properly instructed the jury that Appellants

had to prove the alleged ice had accumulated in ridges and elevations of

such size and character as to unreasonably obstruct travel and constitute a

danger to pedestrians. Given the generally slippery conditions in the

community, Appellants were not entitled to an additional instruction on the

“isolated patch of ice” exception. See Gilligan, supra; Bacsick, supra.

Moreover, Appellants failed to produce evidence of a required element

of their negligence claim, namely, that Wawa had actual or constructive

notice of the alleged patch of ice that caused Appellant Mr. Magaskie to slip

____________________________________________

4
At trial, Appellant Mr. Magaskie testified that he slipped on a patch of flat,
smooth black ice. Nevertheless, on cross-examination, he admitted he had
told one of his doctors that he slipped on snow-covered ice. Additionally,
Wawa’s claims adjuster testified that Appellant Mr. Magaskie had described
the ice as “white” and “shiny.”

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and fall. Cenova, a company responsible for snow and ice management in

Wawa’s parking lot, was at the store the night before the incident. Wawa’s

store manager stated he did not see any ice in the parking lot on the

morning of the incident before Appellant Mr. Magaskie arrived. Appellant Mr.

Magaskie similarly testified that he did not see any ice on the pavement

before he fell. No witness testified to seeing the alleged patch of ice prior to

Appellant’s fall. Further, Appellants offered no evidence regarding the length

of time the alleged ice patch had been in the parking lot. Likewise, no

evidence suggested a history of ice forming in that particular location due to

any kind of irregularity. The record is devoid of evidence that the ice, if it

even existed, was visible or had a source other than the very recent

snowstorm. Therefore, regardless of which jury instruction the court issued,

no jury could have found that Wawa had actual or constructive notice of the

alleged hazardous condition sufficient to impose liability. See Neve, supra;

Estate of Swift, supra.

In their second issue, Appellants argue Dr. Izzo’s letters reporting

Appellant Mr. Magaskie’s medical symptoms were inadmissible hearsay.

Appellants contend the hearsay exception—for statements made for the

purpose of medical diagnosis or treatment—is inapplicable because Dr. Izzo,

not Appellant Mr. Magaskie, made the statements in the letters. Appellants

assert they were prejudiced by the court’s decision to allow Wawa to use the

statements to impeach Appellant Mr. Magaskie’s credibility regarding

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causation, which Appellants claim was crucial in this case because an issue

of fact existed as to whether Appellant Mr. Magaskie slipped on ice or

something else. Appellants conclude this Court should grant them a new

trial. We disagree.

Evidentiary rulings are committed to the sound discretion
of the trial court, and will not be overruled absent an
abuse of discretion or error of law. In order to find that
the trial court’s evidentiary rulings constituted reversible
error, such rulings must not only have been erroneous but
must also have been harmful to the complaining party.

Whitaker v. Frankford Hosp. of City of Philadelphia, 984 A.2d 512, 522

(Pa.Super. 2009). “An evidentiary ruling which did not affect the verdict will

not provide a basis for disturbing the jury’s judgment.” Hart v. W.H.

Stewart, Inc., 523 Pa. 13, 16, 564 A.2d 1250, 1252 (1989) (holding trial

court’s evidentiary ruling on damages, in case where jury had found for

defendant on issue of liability, was harmless and did not entitle plaintiff to

new trial).

Hearsay is defined as “a statement that (1) the declarant does not

make while testifying at the current trial or hearing; and (2) a party offers in

evidence to prove the truth of the matter asserted in the statement.”

Pa.R.E. 801(c). Pennsylvania Rule of Evidence 803(4) sets forth the hearsay

exception regarding statements made for the purpose of medical diagnosis

or treatment as follows:

Rule 803. Exceptions to the Rule Against Hearsay—
Regardless of Whether the Declarant Is Available as
a Witness

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The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a
witness:

* * *

(4) Statement Made for Medical Diagnosis or
Treatment. A statement that:

(A) is made for—and is reasonably pertinent to—medical
treatment or diagnosis in contemplation of treatment; and

(B) describes medical history, past or present
symptoms, pain, or sensations, or the inception or general
character of the cause or external source thereof, insofar
as reasonably pertinent to treatment, or diagnosis in
contemplation of treatment.

Pa.R.E. 803(4). “The medical treatment exception to the hearsay rule

provides that testimony repeating out-of-court statements which were made

for purposes of receiving medical treatment are admissible as substantive

evidence.” Estate of Swift, supra at 721. A statement qualifies for the

exception when two requirements are met: (1) the declarant must make the

statement for the purpose of receiving medical treatment, e.g., statements

relating to the cause of the injury; and (2) the statement must be necessary

and proper for diagnosis and treatment. Id.

Additionally, Pennsylvania Rule of Evidence 613 provides in relevant

part:

Rule 613. Witness’s Prior Inconsistent Statement to
Impeach; Witness’s Prior Consistent Statement to
Rehabilitate

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(a) Witness’s Prior Inconsistent Statement to
Impeach. A witness may be examined concerning a prior
inconsistent statement made by the witness to impeach
the witness’s credibility. The statement need not be
shown or its contents disclosed to the witness at that time,
but on request the statement or contents must be shown
or disclosed to an adverse party’s attorney.

* * *

Pa.R.E. 613(a).

A party may impeach the credibility of an adverse witness
by introducing evidence that the witness has made one or
more statements inconsistent with his trial testimony.
Mere dissimilarities or omissions in prior statements…do
not suffice as impeaching evidence; the dissimilarities or
omissions must be substantial enough to cast doubt on a
witness’ testimony to be admissible as prior inconsistent
statements. An inconsistent statement can be admissible
to impeach a witness’ credibility. However, it must be
established that the witness, in fact, made the allegedly
inconsistent statement. [A] summary of a witness’
statement cannot be used for impeachment purposes
absent adoption of the statement by the witness as his/her
own.

McManamon v. Washko, 906 A.2d 1259, 1268 (Pa.Super. 2006), appeal

denied, 591 Pa. 736, 921 A.2d 497 (2007) (internal citations and quotation

marks omitted).

Instantly, Appellant Mr. Magaskie fell in the Wawa parking lot in

October 2011. In May 2013, he was involved in an unrelated car accident.

At trial, Appellant Mr. Magaskie explained that the 2011 Wawa incident had

resulted in an injury to his left leg, which made it difficult for him to walk or

to stand/sit for extended periods without pain. On cross-examination,

Appellant Mr. Magaskie testified that he was seeing Dr. Kenneth Izzo for

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back pain stemming from the 2013 car accident. Appellant Mr. Magaskie

denied that his back pain had also caused him to have problems walking.

Over Appellants’ objection, Wawa’s counsel then referred to statements from

letters written by Dr. Izzo as follows:5

Q. This is a letter dated [May 22, 2014] from Dr. Izzo. …
He actually copies your attorney on it, Mr. Richard Senker.
And it talks about you being involved in a motor vehicle
accident on [May 9, 2013,] which would be after the Wawa
accident, right?

A. Yes.

Q. Is that true?

A. Yes.

Q. Right in here [Dr. Izzo] says, “The patient remains
significantly obese, has some difficult[y] getting up from a
seated position due to back pain. His initial steps are slow
and antalgic, also due to back pain.”

A. I have never seen that letter. I didn’t know he said
that.

* * *

Q. I have another report from [Dr. Izzo] dated December
5, 2013. It gives the same history. It says that you were
in the car accident. This report also copies your attorney,
Mr. Senker, in Plymouth Meeting. … [I]t says, “The
patient has difficulty getting up from a seated position
primarily due to low back pain. His few steps are
somewhat short, antalgic, and labored. This was also felt
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5
Wawa did not introduce the letters themselves as exhibits. The record
does not disclose the purpose or intended recipient(s) of the letters, other
than counsel for Wawa’s indication that Appellants’ counsel was copied on
them.

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to be due to his low back pain.” Are you aware that he
said that?

A. No, I’m not.

Q. You didn’t hurt your back in the auto accident, right?

A. No. But I didn’t say that my back problems, you
know, getting up from a seated position, I never said that
was because of my leg—my back.

Q. Well you told the jury that you are having problems
walking around from the Wawa accident?

A. Once I’m up on my feet.

Q. You didn’t reference any problems from this other
accident, did you?

A. I didn’t know to reference it.

(N.T. Trial, 1/14/15, at 141-43).6 Appellant Mr. Magaskie further testified

that the Wawa accident affected his ability to sit in his car for any length of

time required to drive or to conduct surveillance as part of his job duties.

Wawa’s counsel then questioned Appellant Mr. Magaskie regarding the effect

of the 2013 car accident on his driving abilities as follows:

Q. Sir, did this accident in May of [20]13, the next
accident, have any effect on your driving abilities?

A. I don’t understand the question.

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6
The date on the cover page of the transcript is incorrect. Although it states
“January 15, 2015,” the first day of trial actually took place on January 14,
2015. Likewise, the transcript for the second day of trial should be dated
January 15, 2015. All citations to the notes of testimony refer to the actual
dates the testimony was given.

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Q. I want to know if this accident in May of [20]13 also
adversely affected your driving, or your back was hurt
because of your driving, or your driving was affected
because of your back?

A. I really don’t know how to answer that.

Q. Let me see if I can refresh your recollection. This is
again Dr. Izzo, another report of September 10, 2013.
Again, your attorney is copied on it, and he refers to your
car accident.…

* * *

Q. “I reviewed with [Appellant Mr. Magaskie] his
situation. He has definitely experienced increased pain
since the most recent motor vehicle accident of [May 9,
2013]. He states he is limited in many of his activities
including driving.” Did you tell Dr. Izzo that?

A. Your Honor, I need some help here. I don’t know [or]
understand what’s going on.

THE COURT: I’m not here to help you sir. I can’t help
you.

Q. Sir, did you tell Dr. Izzo that you were limited in many
of your activities including driving?

A. I guess so.

Id. at 144-46. The trial court allowed Wawa to use the statements in Dr.

Izzo’s reports under two theories: (1) the “medical treatment” hearsay

exception, and (2) for impeachment purposes.

Dr. Izzo’s reports repeated or alluded to statements made by Appellant

Mr. Magaskie. Those statements were made for the purpose of receiving

medical treatment for injuries Appellant Mr. Magaskie sustained in the car

accident. In one report, Dr. Izzo explicitly noted: “[Appellant Mr. Magaskie]

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states he is limited in many of his activities including driving.” In the other

reports, Dr. Izzo describes Appellant Mr. Magaskie’s subjective feelings of

pain—information that could only have come from Appellant Mr. Magaskie.

Dr. Izzo’s statements relaying what Appellant told him, however, were out-

of-court declarations, not made for the purpose of receiving medical

treatment.7 Further, with respect to the impeachment theory, Appellant Mr.

Magaskie did not adopt the statements in Dr. Izzo’s reports as his own, with

the possible exception of Appellant Mr. Magaskie’s statement to Dr. Izzo that

the car accident had limited his driving abilities. That statement did not

contradict any of Appellant Mr. Magaskie’s trial testimony, in any event.

Nevertheless, to the extent the statements in Dr. Izzo’s letters

constituted hearsay, the use of those statements at trial was not reversible

error. The statements went to the question of damages, which the jury did

not reach because it found in Wawa’s favor on the issue of liability.

Moreover, Wawa’s counsel had already called Appellant Mr. Magaskie’s

credibility into question by, inter alia, introducing Appellant Mr. Magaskie’s

various inconsistent descriptions of the alleged patch of ice. Any additional

effect on Appellant’s credibility was likely negligible.

More importantly, Appellants failed to produce evidence sufficient to

support a verdict finding Wawa negligent. Appellants could not satisfy the
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7
Additionally, Wawa made no attempt to admit Dr. Izzo’s reports under the
“business records” exception to the hearsay rule. See Pa.R.E. 803(6).

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requirements of the “hills and ridges” doctrine, on which the jury was

properly instructed, where Appellant Mr. Magaskie described the texture of

the alleged ice as flat and smooth. See Gilligan, supra. Further,

Appellants failed to present any evidence that Wawa had actual or

constructive notice of the alleged patch of ice. See Estate of Swift, supra.

Therefore, any error in the use of the alleged hearsay did not warrant a new

trial. See Hart, supra; Whitaker, supra. Accordingly, we affirm.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/10/2015

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