J-S49017-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ANDRE ABNEY IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellant
v.
AMERICAN EXPO CORP D/B/A GREATER
PHILADELPHIA EXPO CENTER AND
GREATER PHILADELPHIA EXPO CENTER
AND SUBURBAN INVESTMENT CORP.
AND LEN SAMMONS PRODUCTIONS,
INC.
Appellees No. 1360 EDA 2019
Appeal from the Order Dated February 14, 2019
In the Court of Common Pleas of Montgomery County
Civil Division at No: 2017-18649
BEFORE: BENDER, P.J.E., STABILE, J. and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 25, 2019
Appellant, Andre Abney, appeals from the February 14, 2019 order of
the Court of Common Pleas of Montgomery County, granting summary
judgment in this premises liability action in favor of Suburban Management
Company, Inc. (“Suburban”).1 The trial court previously granted summary
judgment in favor of Suburban’s co-defendants, American Expo Corp d/b/a
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 While not relevant to our disposition, we note for the sake of accuracy that
Suburban Management Company, Inc. was incorrectly identified in the
pleadings as Suburban Investment Corp.
J-S49017-19
Greater Philadelphia Expo Center (“American Expo”) and Len Sammons
Productions, Inc. (“Sammons”) (all collectively “Appellees”). See Trial Court
Order, 11/9/18. Appellant claims the trial court abused its discretion and
committed error of law by granting summary judgment in light of the
existence of genuine issues of material fact. Following review, we affirm.
In its Rule 1925(a) opinion, the trial court explained:
American Expo is the lessee and operator of the Greater
Philadelphia Expo Center. Sammons contracted with American
Expo to conduct a motorsports show at the Expo Center.
Sammons, in turn, contracted with non-party Reber-Friel to
perform services for the show, including the assembly of trade
booths. [Appellant] was an employee of Reber-Friel.
During the course of his work, [Appellant] was loading equipment
located in a trailer owned by Reber-Friel. The trailer was docked
at a roll-up door in the wall of the Expo Center, akin to a loading
dock, so that the trailer could be entered from inside the building.
[Appellant] saw that the interior of the trailer had no lighting of
its own and was dark. He nevertheless entered the trailer and
tripped over a dolly, sustaining injuries. He brought this action
for negligence against [Appellees], claiming that they should have
acted to light the interior of the trailer, such as by wall lights that
could be maneuvered to shine into the trailer.
At his deposition, [Appellant] testified to the condition of the
trailer as follows:
∙ There were no lights in the interior of the trailer. (Abney
Dep., at 66-67.
∙ [Appellant] could not see inside the trailer when he entered
it. (Abney Dep., at 40, 42, 45).
∙ Once he entered the trailer, he was “totally blind.” (Abney
Dep., at 48.)
∙ [Appellant] was five to seven feet inside the trailer when he
tripped and fell. (Abney Dep., at 52.)
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∙ The Expo Center itself was sufficiently lighted so that
[Appellant] could get to the entrance to the trailer without
a problem. It was only when he entered the trailer that it
was too dark for him to see. (Abney Dep., at 47-48, 62.)
Trial Court Opinion, 2/22/19, at 1-2 (footnotes omitted).
American Expo and Sammons filed motions for summary judgment. The
trial court heard argument on November 2, 2018 and granted the motions by
order entered November 9, 2018. Appellant filed an appeal to this Court. We
quashed the appeal in light of the fact the November 9, 2018 order did not
dispose of claims against Suburban. Suburban subsequently filed a motion
for summary judgment. By order entered February 14, 2019, the trial court
entered an order granting the motion. This timely appeal followed. Both
Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents three identical issues for this Court’s consideration,
each of which claims the trial court “abused its discretion and erred as a matter
of law” in granting summary judgment in favor of American Expo, Sammons
and Suburban, respectively, “despite the presentation of record evidence
establishing that genuine issues of any material fact in dispute exist in this
case.” Appellant’s Brief at 5. With respect to American Expo and Sammons,
Appellant sets forth two identical sub-issues, arguing the existence of material
fact as to whether either Appellee was in possession of the site of Appellant’s
fall and questioning whether Appellant’s “mere general awareness of
‘darkness’ in the subject trailer is insufficient to show that he subjectively
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appreciated the specific risk of tripping over the subject dolly and fracturing
his arm.” Appellant’s Brief at ii. With respect to Suburban, Appellant presents
two sub-issues. Appellant first argues the existence of a material fact as to
the scope of Suburban’s “duty with respect to the dangerous condition that it
created,” and also suggests Suburban is not entitled to summary judgment
under the doctrine of stare decisis.” Id. at iii.
As this Court explained in Charlie v. Erie Ins. Exchange, 100 A.3d
244 (Pa. Super. 2014):
The standard and scope of review for summary judgment is well-
established:
Pennsylvania law provides that summary judgment may be
granted only in those cases in which the record clearly
shows that no genuine issues of material fact exist and that
the moving party is entitled to judgment as a matter of law.
The moving party has the burden of proving that no genuine
issues of material fact exist. In determining whether to
grant summary judgment, the trial court must view the
record in the light most favorable to the non-moving party
and must resolve all doubts as to the existence of a genuine
issue of material fact against the moving party. Thus,
summary judgment is proper only when the
uncontr[o]verted allegations in the pleadings, depositions,
answers to interrogatories, admissions of record, and
submitted affidavits demonstrate that no genuine issue of
material fact exists, and that the moving party is entitled to
judgment as a matter of law. In sum, only when the facts
are so clear that reasonable minds cannot differ, may a trial
court properly enter summary judgment. . . . With regard
to questions of law, an appellate court's scope of review is
plenary. The Superior Court will reverse a grant of summary
judgment only if the trial court has committed an error of
law or abused its discretion.
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Id. at 250 (quoting Gutteridge v. A.P. Green Servs. Inc., 804 A.3d 643,
651 (Pa. Super. 2002)). Further, “[t]he determination [of] whether to impose
affirmative common-law duties as a predicate to civil liability is a matter of
law; accordingly, our review is plenary.” Id. (citing Seebold v. Prison
Health Servs., Inc., 557 A.2d 1232, 1243 (Pa. 2012)).
As noted above, Appellant argues the existence of material facts
regarding whether American Expo and/or Sammons were in possession of the
site where Appellant fell. In response, American Expo asserts, inter alia, that
Appellant’s employer maintained exclusive right of control over the trailer in
which Appellant fell, American Expo’s Brief at 19, while Sammons contends
Appellant cannot succeed in his attempt to create a duty for an injury simply
because his employer’s tractor-trailer was located in the loading dock area.
Sammons’ Brief at 5.
As the trial court explained, American Expo, as operator of the
Philadelphia Expo Center, contracted with Sammons to conduct a motorsports
show at the Expo Center and Sammons, in turn, contracted with Appellant’s
employer, Reber-Friel, to perform services for the show. Trial Court Opinion,
2/22/19, at 1. As such, Reber-Friel was performing its services as an
independent contractor. We first examine whether either Appellee owed any
duty to Appellant as an employee of an independent contractor.
The parties here agree that Appellant was a business invitee at the time
of his injury. In Gutteridge, we recognized:
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The duty of care owed to a business invitee (or business visitor)
is the highest duty owed to any entrant upon land. The landowner
must protect an invitee not only against known dangers, but also
against those which might be discovered with reasonable care.
Our case law sets forth the duty that a possessor of land owes to
business invitees as follows:
A possessor of land is subject to liability for physical harm
caused to his invitees by a condition on the land if, but only
if, he
(a) knows or by the exercise of reasonable care would
discover the condition, and should realize that it involves an
unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the
danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against
the danger.
Summers v. Giant Food Stores, Inc., 743 A.2d 498, 506 (Pa.
Super. 1999) (en banc), appeal denied, 564 Pa. 713, 764 A.2d
1071 (2001).
Gutteridge, 804 A.2d at 656 (citations omitted).
In this instance, Appellant was a business invitee. However, as he
acknowledges, he was in the course of his employment with Reber-Friel at the
time of his injury. In Gutteridge, we explained:
[A] landowner acting solely in its capacity as landowner, “owes a
duty to warn an unknowing independent contractor of existing
dangerous conditions on the landowner’s premises where such
conditions are known or discoverable to the owner.” Colloi v.
Philadelphia Electric Co., 332 Pa. Super. 284, 481 A.2d 616,
619 (1984). The landowner’s “duty to warn is owed irrespective
of whether the independent contractor exercises full control over
the work and premises entrusted to him.” Id. at 619–20.
However, an owner of land who delivers temporary possession of
a portion of the land to an independent contractor owes no duty
to the employees of the independent contractor with respect to an
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obviously dangerous condition on that portion of the land in the
possession of the contractor. Id. at 620. Furthermore, the
employer of an independent contractor has no duty to warn either
the contractor or his employees of a condition that is at least as
obvious to them as it is to him. Colloi, 481 A.2d at 620. The
question of whether a landowner owes a duty to warn an
independent contractor of dangerous conditions on the premises
turns on whether the owner possesses “superior knowledge” or
information which places him in a better position to appreciate the
risk posed to the contractor or his employees by the dangerous
conditions. Id.
Id. at 657-58 (emphasis added).
Although Appellant’s amended complaint includes numerous allegations
of negligence against each Appellee, the gist of his complaint is that Appellees
were negligent for “allowing insufficient lighting conditions to exist at the Expo
Center.” Appellant’s Amended Complaint at ¶¶ 15(a), 26(a), 37(a), and
48(a). In his deposition, Appellant testified that he fell in his employer’s
tractor-trailer in the afternoon of January 21, 2016. Abney Deposition,
4/10/18, at 16-17, 25-26. During that morning, Appellant had unloaded items
from that tractor-trailer using a forklift with a light on it. Id. at 21. After
unloading the trailer, there were no dollies inside the trailer. Id. at 31-32. In
the afternoon, when it was time to load items back into the trailer, Appellant
entered the unlit trailer to see what was on the trailer and how much room
there was. Id. at 38, 43. Even though he was unable to see inside the tractor-
trailer, Appellant walked four or five feet while “totally blind” and tripped over
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a dolly that he was unable to see. Id. at 38-43, 48.2 Although Appellant had
a cell phone with a flashlight in his pocket, he did not use the flashlight. Id.
at 64-65.
Here, the trial court determined:
[Appellant’s] deposition testimony establishes that he was fully
aware of the dark, unlighted condition of the trailer, which was
“at least as obvious” to [Appellant] as it was to [Appellees]. The
record cannot support any finding that [Appellees] possessed
“superior knowledge” of the condition of the trailer that was not
apparent to [Appellant]. Under the authority of Gutteridge and
Colloi, [Appellees] owed no duty to [Appellant] arising from the
dark condition of the trailer.
[Appellant] counters by relying on his testimony that other
exposition centers where he has worked provide wall-mounted
lights that can illuminate the interior of a trailer, and he argues
that this testimony raises a genuine dispute as to the standard
of care in the industry. (Abney Dep., at 16, 84-85.) The problem
with this argument is that before [Appellees] can be held to any
standard of care, they must be shown to have a duty of care to
[Appellant]. Because [Appellees] did not have any duty to
[Appellant] arising from the dark condition of the trailer, they
could not have breached any such duty. See T.A. v. Allen, 669
A.2d 360, 362 (Pa. Super. 1995) (“Where there is no duty of
care, there can be no negligence.”).
Trial Court Opinion, 2/22/19, at 5-6 (citation omitted).3
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2 Later in his deposition, Appellant testified he was “a good 5, 6, feet. 6, 7
feet into the trailer.” Abney Deposition, 4/10/18, at 52.
3 We note that the trial court’s February 22, 2019 opinion was prepared in
response to Appellant’s original appeal that was quashed as interlocutory
because Appellant’s claims against Suburban remained unresolved. In a
footnote, the court explained that the opinion was filed shortly after issuing
its February 14, 2019 order—from which this appeal lies—granting summary
judgment in favor of Suburban, thus resolving all remaining claims against all
remaining parties. Trial Court Opinion, 2/22/19, at 3 n.4. By opinion issued
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There is no suggestion that Appellees were responsible for the condition
inside the trailer owned by Appellant’s employer, including placement of the
dolly inside the trailer. “Pennsylvania courts have repeatedly held that a duty
cannot be imposed upon a landowner if the defective condition was created
by the work of the independent contractor or his employees.” Wombacher
v. Greater Johnstown School District, 20 A.3d 1240, 1243 (Pa. Cmwlth.
2011) (citing Crane v. I.T.E. Circuit Breaker Co., 278 A.2d 362, 364 (Pa.
1971) (additional citation omitted)).4 We find no abuse of discretion or error
of law in the trial court’s determination that Appellees owed no duty to
Appellant. Appellant’s first two issues, directed to the trial court’s grant of
summary judgment in favor of American Expo and Sammons, fail.
Appellant also asserts abuse of discretion and error of law with respect
to the trial court’s grant of summary judgment in favor of Suburban. Appellant
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on May 17, 2019, the trial court acknowledged the filing of a new appeal.
Noting that Appellant’s Rule 1925(b) statement was “substantially identical”
to the statement filed in the prior appeal, the court adopted its February 22,
2019 opinion as its opinion in the instant appeal. Rule 1925(a) Opinion,
5/17/19, at 1. Therefore, we have taken the liberty of substituting “Appellees”
in this excerpt, even though the trial court referred only to American Expo and
Sammons in the February 22, 2019 opinion.
4 “While this Court is not bound by decisions of the Commonwealth Court,
such decisions provide persuasive authority, and we may turn to our
colleagues on the Commonwealth Court for guidance when appropriate.”
Norman for Estate of Shearlds v. Temple University Health System,
208 A.3d 1115, 1120 n. 3 (Pa. Super. 2019) (citation and internal alterations
omitted).
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first argues the existence of a material fact regarding the scope of Suburban’s
duty “with respect to the dangerous condition that it created.” Appellant’s
Brief at iii. Appellant next contends Suburban was not entitled to summary
judgment based on stare decisis. Id.
Appellant alleges an issue of material fact regarding Suburban’s failure
to satisfy its duty to light the common areas of the facility where the Reber-
Friel trailer was parked. Appellant’s Brief at 42. This claim is defeated not
only by the lack of duty on the part of Suburban to an independent contractor
and its employees, but also by Appellant’s own testimony that getting to the
entrance of the trailer was not a problem. Abney Deposition, 4/10/18, at 48.
According to Appellant, the problem started when he moved into the trailer,
at which point he was “totally blind.” Id. As Appellant testified, after he
entered the trailer, “I walked up a couple more feet to see if I could see in.
By that time I felt something hitting my foot. And by that time I was going
down already.” Id. at 49. Although he could not see, he nevertheless “wanted
to go in to see [if I] could I see how much room there was in there. But I
couldn’t.” Id. Therefore, even if Suburban owed a duty to Appellant—and
our case law indicates it did not—by Appellant’s own testimony, he has
established that he fell due to the lack of lighting on the inside of his
employer’s trailer, not the lack of lighting in the venue’s common areas.
Appellant also maintains that Suburban was not entitled to summary
judgment based on stare decisis. As this issue was not preserved in
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Appellant’s Rule 1925(b) statement, it is waived. Pa.R.A.P. 1925(b)(4)(vii).
Even if not waived, the argument fails. As explained in its Rule 1925(a)
opinion, the trial court did not grant summary judgment based on stare
decisis, but rather granted summary judgment based on the lack of any duty
owed to Appellant by Appellees.
Finding neither abuse of discretion nor error of law in the trial court’s
grant of summary judgment in favor of Appellees, we affirm the November 9,
2018 and February 14, 2019 orders.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/25/19
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