J-A03009-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SU HUNG AND CLEMENT HUNG : IN THE SUPERIOR COURT OF
INDIVIDUALLY AND AS H/W : PENNSYLVANIA
:
Appellants :
:
v. :
:
PARKWAY CORPORATION :
:
Appellee : No. 3728 EDA 2016
Appeal from the Order November 15, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 3472 September Term, 2015
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.
MEMORANDUM BY GANTMAN, P.J.: FILED FEBRUARY 21, 2018
Appellants, Su Hung and Clement Hung individually and as h/w, appeal
from the order of the Philadelphia Court of Common Pleas that granted
summary judgment in favor of Appellee Parkway Corporation in this
negligence slip-and-fall action. We affirm.
In its opinion, the trial court fully and correctly set forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them.
Appellant raises the following issues on appeal:
WHETHER THE [TRIAL] COURT ERRED WHEN IT
DETERMINED [APPELLANTS’] CLAIM WAS BARRED UNDER
THE “HILLS AND RIDGES” DOCTRINE.
WHETHER THE [TRIAL] COURT ERRED WHEN IT
DETERMINED THAT THERE WAS NO ISSUE OF MATERIAL
FACT AS TO WHETHER “GENERALLY SLIPPERY
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A03009-18
CONDITIONS” EXISTED.
WHETHER THE [TRIAL] COURT ERRED IN ITS DECISION
THAT [MS. HUNG] FAILED TO SUFFICIENTLY PLEAD
EXCESSIVE-SLOPE THEORIES IN HER COMPLAINT.
WHETHER THE [TRIAL] COURT ERRED IN ITS FAILURE TO
PROPERLY ADDRESS APPELLANTS’ EXCESSIVE SLOPE
CLAIMS.
(Appellant’s Brief at 4).
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
(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, 768 A.2d 1089 (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.
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J-A03009-18
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 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)
(emphasis added, internal citations and quotation marks omitted).
The Pennsylvania Rules of Civil Procedure provide:
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
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J-A03009-18
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 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.
Note: Rule 1035.2 sets forth the general principle
that a motion for summary judgment is based on
an evidentiary record which entitles the moving
party to judgment as a matter of law.
* * *
Pa.R.C.P. 1035.2 (emphasis added).
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. Harmotta v. Bender, 601 A.2d 837 (Pa.Super. 1992).
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 a 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 378-79 (quoting Rinaldi v. Levine, 406 Pa. 74, 78, 176 A.2d 623,
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J-A03009-18
625 (1962)).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the reasoned opinion of the Honorable Karen Shreeves-
Johns, we conclude Appellants’ issues merit no relief. The trial court opinion
comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion, filed November 16, 2016, at 9-17)
(finding: (1-4) undisputed facts viewed in light most favorable to Appellants
show that it was just below or around freezing in hours before and during
Ms. Hung’s fall, with prior and ongoing light precipitation as rain; sidewalk at
issue had ice formed due to recent precipitation, with no ice or snow
persisting in area of Ms. Hung’s route or on street surface at intersection of
8th and Arch Streets, but there was ice on exposed surfaces in some parts of
Philadelphia; Appellants cannot recover because these circumstances
constitute “generally icy conditions” for purposes of “hills and ridges”
doctrine; it would not have been reasonable to expect Appellee to alleviate
icy condition given undisputed facts about temperature and continued
precipitation conditions prevailing in community when Ms. Hung fell or
shortly before she fell; conditions at issue were generally slippery conditions,
so “hills and ridges” doctrine applies; all parties agree Ms. Hung slipped on
smooth, mirror-like ice, not on accumulated hill or ridge of snow and ice, so
Appellants cannot establish breach of duty; Appellants also argue ramp at
issue was excessively sloped and had reduced slip resistance; nevertheless,
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Appellants failed to plead “excessive slope” theory in their complaint;
moreover, there is no evidence of record that “excessive slope” caused ice to
exist or persist, or that ice existed or persisted on ramp for any duration
beyond timeframe of active precipitation in community; court properly
granted summary judgment in favor of Appellee). The record supports the
court’s decision, and we see no reason to disturb it. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/21/2018
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Circulated 02/06/2018 03:21 PM
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IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CIVIL TRIAL DIVISION
SU HUNG and CLEMENT HUNG, COURT OF COMMON PLEAS
Individually and as h/w, PHILADELPHIA COUNTY
Plaintiffs,
v. SEPTEMBER TERM 2015
NO. 3472
PARKWAY CORPORATION,
Defendant. 3728 EDA 2016
OPINION PURSUANT TO Pa.R.A.P. 1925(a)
Plaintiffs Su Hung and Clement Hung, individually and as h/w (heteinafter
"Plaintiff-Appellant"), appeal the trial court's Order of November 16, 2016, which granted
a summary judgment motion in favor of Defendant Parkway Corporation (hereinafter
"Defendant-Appellee"), disposing of the case. The Notice of Appeal was filed on
November 23, 2016. Plaintiff-Appellant simultaneously filed a Motion for
Reconsideration of the trial court's grant of summary judgment. This, the trial court denied
by Order on December 22, 2016.
Hung Elal Vs Parkway Corporation-OPFLD
1
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15090347200069
nPll=C::: C:::l=I\IT Pl IR�I IAI\IT T(I P::i R r. D ?��(h\ f) l 208 A.2d 463 (1965). Because of this, the hills-and-
ridges doctrine applies. Rinaldi v. Levine, 406 Pa. 74, 176 A.2d 623, 625 (1962). All
parties agree that Plaintiff-Appellant slipped on smooth, mirror-like ice, not a hill or ridge
of snow and ice, thus Plaintiff-Appellant cannot establish breach of a duty by.Defendant-
Appellant.
Plaintiff-Appellant argues as well that the curb ramp on which Plaintiff-Appellant
fell was excessively sloped and therefore had reduced slip resistance. See Response,·mf33-
42. Plaintiff-Appellant offers an. expert report from John S. Posusney, an engineer, citing
to a provision of the Americans with Disabilities Act, that maximum slope for a curbramp
in new construction shall be 8.33% and that the curb ramp in the instant case was 12.4% at
the time of the fall, thus the slip resistance was reduced such that 9.8% more of Plaintiff-
Appellant's weight needed to rest along the curb ramp's slope to not slip. See Response,
Exh.· A: pp. 1-2. Call this the "excessive slope-excessive slipperiness" theory.
Defendant-Appellee argues, among other arguments, that the excessive slope-
13
excessive slipperiness theory is not pleaded in the Complaint and the statute of limitations
had run. See MSJ, 33-42. Pennsylvania Courts apply the following statement of the law
in such contexts:
For purposes of determining whether a claimed or apparent discrepancy
between pleadings and proof constitutes a variance, the entire pleadings and
evidence. should be considered. Generally, in order to constitute a variance,
the discrepancy must exist between the allegations and proofs of the
particular party, with the result that a party is not permitted to introduce
evidence that is inconsistent with or fails to correspond to the allegations
made by that party.
The modem rules of pleading and practice are relatively liberal.
Consequently, the impact of variance may be diminished by the preference
for a liberal if not informal evaluation of pleadings emphasizing the
determination of cases based upon their merits rather than based on mere
technicalities, which policy, for example, may allow a party to cure a
variance by offering, during or after trial, to amend the pleadings to conform
to the proof.
General pleading allegations which are not objected to because of their
generality, may have the effect of extending the available scope of a party's
proof, such that the proof would not constitute a variance, beyond that which
the party might have been permitted to give under a more specific statement.
Reynolds v. Thomas Jefferson University Hosp., 450 Pa. Super. 327, 676 A.2d
1205, 1209 (1996) (citations omitted).
Plaintiff-Appellant in her Memo of Law for her Response offers three paragraphs
from her Complaint, which she offers as proof that the excessive slope-excessive
slipperiness theory is not in variance with the Complaint. See Response Memo of Law,
pp. x-xi. Those are paragraphs 4, 5, and l S(b), which are reproduced immediately below:
4. On January 10, 2014, plaintiff, Su Hung, was lawfully traversing the
sidewalk located at 721-37 Arch Street, in Philadelphia, Pennsylvania, when
she slipped and fell as a result of a dangerous and defective condition in the
form of ice which was allowed to exist and accumulate in the walkway of
Defendant's property, which said dangerous and defective condition caused
14
Plaintiff to slip and fall to the ground,. resulting in serious and permanent
injuries.
5. On or about January 10, 2014, and for a substantial period of time thereto,
the aforementioned dangerous and defective condition that did and was
allowed to exist upon [sic] Defendants' premises is the sole and direct cause
of Plaintiffs serious, painful and permanent injuries, the exact nature of
which will be described more fully hereinafter.
l 5(b). 6 The aforesaid incident was solely and proximately caused by the
negligence of the. Defendant, its servants, workmen, representatives and/or
employees, which negligence consisted of but was not necessarily limited to
the following:
(b) Failing to properly inspect and remedy the dangerous, unsafe and
defective condition upon the property, upon proper notice, actual or
constructive, of its dangerous condition;
MSJ, Exh. A, ,r,i4, 5, and 15(b).
Even under a liberal interpretation of Plaintiff-Appellant's argument, it does appear
that, under paragraph 4 the dangerous condition is identified as the ice; under paragraph 5
the dangerous condition of ice is identified as the sole and proximate cause of Plaintiffs
fall; and under paragraph 15(b) the negligence with respect to the dangerous condition of
ice consisted of but is not limited to Defendant's negligent inspection of the dangerous ice
or negligent remedy of the dangerous ice. Thus, Plaintiff-Appellant fails to offer an
argument that she can recover on the excessive slope-excessive slipperiness theory.
Reynolds v. Thomas Jefferson University Hosp., 450 Pa. Super. 327, 676 A.2d 1205, 1209
(1996) ("Generally, in order to constitute a variance, the discrepancy must exist between
6
Plaintiff-Appellant, in the block text of her Memo of Law dedicated to her Complaint
15(b), cites to 15(b) but does not quote 15(b); instead, Plaintiff-Appellant uses words
altogether different and not in the Complaint. What is reproduced in this Opinion is the
text of 15(b) of the Complaint.
15
the allegations and proofs of the particular party, with the result that a party is not permitted
to introduce evidence that is inconsistent with or fails to correspond to the allegations made
by that party.) (citations omitted).
On the assumption that Plaintiff-Appellant's excessive slope-excessive slipperiness
theory does not materially vary with paragraphs 4, 5 and 15(b) of Plaintiffs Complaint,
still Plaintiff-Appellant clearly cannot recover. This is because the dangerous condition of
the excessive slope of the curb ramp did not cause the ice to exist or persist, as is required
in cases in which there are not generally slippery conditions of ice or snow for purposes of
the hills-and-ridges doctrine. See, e.g., Tonikv. Apex Garages, Inc., 442 Pa. 373, 275 A.2d
296 ( 1971) · (there was evidence that ice had formed over a crack in the sidewalk and
evidence that there was no recent precipitation); Williams v. Shultz, 429 Pa. 429, 240 A.2d
812 (1968) (evidence that ice had formed in a depression in the sidewalk and evidence that
there had been no rain for five days and no snow for ten days); Holbert v. City of
Philadelphia, 221 Pa. 266, 70 A.746 (1908) ("While, however, the city is not responsible
for the general slippery condition of its sidewalks caused by the recent falling or freezing
of rain or snow, yet the rule does not extend so far as to protect the city from liability for
injuries caused to a person by slipping on ice, in a street or sidewalk, where it has
accumulated by reason of a defect in the street or walk, or by reason of the.neglect to
construct and maintain suitable drains to carry off the water."), There simply is not any
evidence before the court in this motion that the defective condition complained of caused
the ice to exist or persist, or evidence that the ice existed or persisted for any duration
beyond the timeframe of the active precipitation in the community.
16
...
In any event, even on the liberal interpretation of Plaintiff-Appellant's Complaint,
paragraphs 4, 5, and 15(b), Plaintiff-Appellant fail to contain any provision which would
allow an excessive slope theory to proceed.
CONCLUSION
This court's Order granting summary judgment to Defendant-Appellee should be
affirmed. To hold otherwise would be to "impose an impossible burden in view of the
climatic conditions in this hemisphere." Wentz v. Pennswood Apartments. 359 Pa. Super.
1, 5, 518 A.2d 314, 316 (1986).
BY THE COURT:
17
...
TYPE OF ORDER: 1925(a)
PROOF OF SERVICE
I hereby certify that I am this day serving the foregoing Court Order upon the person(s), and in
the manner indicated below:
Appellant Counsel: David Brian Rodden, Esq.
125 North 20th Street
Philadelphia, PA 10103
Type of Service: ( ) Personal Service (X) First Class Mail ( ) Other: _
Appellee Counsel: Brian L. Calistri, Esq.
2000 Market Street, Suite 1300
Philadelphia, PA 19103
Type of Service: ( ) Personal Service (X) First Class Mail ( ) Other: _
Date: February 13, 2017
Law Clerk to the
Honorable Karen Shreeves-Johns