Monti, L. v. Pet Supplies Plus

J-A17024-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LORI MONTI : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
PET SUPPLIES PLUS, LLC, PET :
SUPPLIES PLUS, LLC, F/K/A PSP :
PARENT, LLC. AND POCONO RETAIL :
ASSOCIATES, LLC : No. 3210 EDA 2019

Appeal from the Order Entered October 4, 2019
In the Court of Common Pleas of Monroe County Civil Division at No(s):
No. 8681-CV-2015

BEFORE: BOWES, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McCAFFERY, J.: FILED JULY 21, 2020

Lori Monti (Appellant) appeals from the October 4, 2019 order of the

Monroe County Court of Common Pleas granting the motion of Pocono Retail

Associates, LLC (Pocono Retail Associates) for summary judgment. On appeal,

Appellant also challenges the trial court’s December 28, 2018, order granting

the motion of Pet Supplies Plus, LLC, Pet Supplies Plus, LLC, f/k/a PSP Parent

LLC’s (collectively Pet Supplies) for summary judgment. Appellant avers the

trial court erred in granting these motions because genuine issues of material

fact existed and in violating the Nanty-Glo rule.1 We affirm.
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1 Nanty-Glo v. American Surety Co., 163 A. 523, 524 (Pa. 1932). See
Lineberger v. Wyeth, 894 A.2d 141, 149 (Pa. Super. 2006) (“The Nanty–
Glo rule prohibits summary judgment ‘where the moving party relies
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We take the following factual background and procedural history from

the trial courts’ opinions and our independent review of the certified record.

Pocono Commons is a multi-tenant shopping center, owned
and managed by Pocono Retail Associates. Pet Supplies is a
tenant within Pocono Commons, occupying the interior space of
one building, pursuant to the terms of a written lease agreement
with Pocono Retail Associates.

Trial Ct. Op., 12/28/18, at 2 (citation omitted).

Section 9 of the lease agreement[ ] states that “[Pocono
Retail Associates] grants as a revocable license to [Pet Supplies]
and [Pet Supplies’] customers and invites the privilege to use the
Common Areas.” . . . Similarly, Section 6(e)[ ] states that while
Pet Supplies is responsible for contributing its proportionate share
of the costs, Pocono Retail Associates’ retains certain duties,
including: “operating, managing . . . insuring, repairing, replacing,
and maintaining the Common Areas.” [emphasis added].

Id. at 9 (emphases omitted); see also Lease Agreement, 6/23/00, at 5-6.

The trial court summarized the allegations in Appellant’s complaint as

follows:

On or about March 4, 2014, at approximately 3:00 pm,
[Appellant2] was walking out of the “Pet Supplies Plus” store . . .
On the sidewalk, immediately outside of the store, her walker
wheel became lodged in a “dip in the sidewalk” with gravel in and
around the dip. [Appellant] proceeded to slip, trip, and fall,
flipping over her walker and smashing her face on the concrete.

____________________________________________

exclusively on oral testimony, either through testimonial affidavits or
deposition testimony, to establish the absence of a genuine issue of material
fact . . .’”).

2We note that Appellant was in her mid-30’s when the accident occurred and
she was diagnosed with multiple sclerosis in 1999. Appellant’s Deposition,
12/15/16, at 13.

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As a result, [Appellant] sustained bodily injuries, such as
bleeding, abrasions, and contusions, to her muscles, bones,
tendons, discs, ligaments, nerves, nose, back, head, neck, right
side of body, face, and right pinkie finger. She also sustained
multiple nasal fractures, multiple septal fractures, facial scarring,
a closed head injury, and aggravation of pre-existing conditions.
[Appellant] is seeking damages in excess of $50,000, together
with interest and costs from all [Appellees], both jointly and
individually.

Trial Ct. Op., 12/28/18, at 2-3, citing Appellant’s Complaint, 5/7/15, at ¶¶ 18,

23, 25.

We note that on December 15, 2016, Appellees’ counsel deposed

Appellant. During this deposition, Appellee’s counsel presented Appellant with

two photographs taken by Appellant’s friend, Maria Ramos, 45 minutes after

the fall occurred. Appellant circled the area where her walker “became stuck.”

Appellant’s Deposition at 36-38. Appellant also explained due to a previous

incident where she fell and broke her leg, she had become “more careful”

when walking, but “when [she had] the walker, [she] did not look at the floor.”

Id. at 87-89. Appellant also testified as follows:

[Counsel:] If it weren’t for someone telling you what caused you
to fall, did you have any idea of what caused you to fall?

[Appellant:] No.

Id. at 92-93. Furthermore, Appellant’s sister, Jayme Steadman, who

witnessed the fall, was also deposed on August 31, 2017. See Jayme

Steadman’s Deposition, 8/31/17.

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Appellant filed a complaint on May 7, 2015, in the Philadelphia County

Court of Common Pleas, alleging negligence against Pet Supplies, Hickory

Plaza Shopping Center, Inc., JJ Gumberg Company, and Cedarwood

Development, Inc. The trial court summarized the ensuing procedural history:

Due to improper venue, her Complaint was transferred to the
Monroe County Court of Common Pleas on November 13, 2015.
On December 4, 2015, all parties filed a stipulation in agreement
to allow Pet Supplies to file a Joinder Complaint against Pocono
Retail Associates, which was filed on December 10, 2015.

Following the parties’ stipulation for joinder, a series of
stipulations were filed to dismiss several of the original
Defendants. On February 29, 2016, all parties agreed to a
stipulation, allowing original Defendants, Hickory Plaza Shopping
Center, Inc., and JJ Gumberg Company to be voluntarily dismissed
from the action with prejudice. Then, on March 10, 2016, all
parties stipulated to dismiss original Defendant, Cedarwood
Development, Inc. with prejudice. With the court’s acceptance of
these stipulations, the remaining Defendants included Pet
Supplies and Pocono Retail Associates.

On April 4, 2016, Pocono Retail Associates filed [its] Reply
and New Matter to Pet Supplies[’] Joinder Complaint. After
preliminary objections by Pet Supplies, Pocono Retail Associates
filed an Amended Answer and New Matter on November 18, 2016.
On November 6, 2017, Pet Supplies filed their first Motion for
Summary Judgment, and on February 26, 2018 this [c]ourt denied
that motion as premature. Also on February 26, 2018, this [c]ourt
issued to the parties a case management order, setting the date
for completion of discovery for March 30, 2018. After the end of
discovery, on May 30, 2018, Pocono Retail Associates filed a
Motion for Summary Judgment. The next day, Pet Supplies
renewed their Motion for Summary Judgment.

Trial Ct. Op., 12/28/18, at 2-4.

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On December 28, 2018, the trial court granted Pet Supplies’ motion for

summary judgment against Appellant and Pocono Retail Associates. The trial

court also granted in part and denied in part Pocono Retail Associates’ motion

for summary judgment. The trial court granted this motion as to Appellant’s

premises liability claim for the defect in the transitory spill of the gravel, but

it denied in part the motion concerning the “dip or defect” in the sidewalk.

The trial court found there was a genuine issue of material fact as to the

triviality of the alleged defect. Order, 12/28/18.

On January 8, 2019, Pocono Retail Associates filed a motion for

reconsideration of the trial court’s December 28, 2018, order. Attached to

Pocono’s Retail Associates’ reconsideration motion, was a letter by its expert,

David J. Littlewood, PE. This letter explained his examination of the sidewalk,

specifically the area Appellant circled in the photograph presented during her

deposition on December 15, 2016: “The joint of the sidewalk pads outside

[Pet Supplies’] door that [Appellant] circled in a photograph and indicated was

the ‘dip in the sidewalk’ that contributed to her fall was measured to be an

approximately 3/16 inch change in elevation at the highest change in

elevation.” See Pocono Retail Associates’ Motion for Summary Judgment,

1/8/19, Exhibit B, Letter from David J. Littlewood, 5/30/18, at 5.

The trial court granted reconsideration and heard oral argument on July

3, 2019. During this hearing, Pocono Retail Associates reiterated Littlewood’s

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findings. Upon inquiry from the trial court, Appellant confirmed she did not

have any expert report:

THE COURT:. . . So my question to you is, based on what the
[two photographs taken by Maria Ramos] show, one of you is
saying it shows nothing, the other is saying it shows deterioration
and erosion, so my question to you is, do you have a witness, or
an expert, or anybody, who can say they looked at the expansion
joint and that it was anything other than a standard expansion
joint? That it, for example, the concrete was breaking, that the
depression was a half inch by six inches wide, that it was, that
there was a big crater in this expansion joint, do you have
anybody to say anything?

[Appellant’s Counsel]: I don’t have anybody to say anything
of that nature. I would rely on the [pictures.]

N.T. Reconsideration H’rg, 7/3/19, at 15.

After reviewing the parties’ briefs, the trial court granted Pocono Retail

Associates’ motion for summary judgment. See Order, 10/4/19, at 8-9. The

trial court reasoned no genuine issues of material fact existed in this matter

because Appellant provided no evidence of the size or depth of the alleged

defect of the sidewalk. The court considered the defect trivial. Trial Ct. Op.,

10/4/19, at 5-6. On October 15, 2019, Appellant filed a timely notice of appeal

and filed a court-ordered Pa.R.A.P. 1925(b) statement on November 6, 2019.3

Appellant presents three issues for our review:

____________________________________________

3 Preliminarily, we note with displeasure that Appellant’s Rule 1925(b)
statement is five pages in length and raises ten issues. We remind counsel
that “[t]he Statement shall concisely identify each ruling or error that the
appellant intends to challenge with sufficient detail to identify all pertinent
issues for the judge.” Pa.R.A.P. 1925(b)(4)(ii) (emphasis added).

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1. Did the trial court commit error by determining that the
sidewalk defect was trivial as a matter of law and that there were
no genuine issues of material fact when the record supported that
that gap between the sidewalk panels caused [Appellant] to flip
over her walker and smash her face on concrete, and further
commit error by entering an order granting reconsideration of
Pocono Retail Associates, LLC’s Motion for Summary Judgment,
based largely on a testimonial affidavit of Pocono Retail
Associates’ paid expert witness?

2. Did the trial court commit error by entering an order granting
Summary Judgment determining that no general issues of
material facts existed as to the gravel on the sidewalk that
contributed to [Appellant’s] fall?

3. Did the trial court commit error . . . by entering an order
granting summary judgment, determining that no genuine issues
of material facts existed as to the duty of [Pet Supplies] to protect
business invitees who were entering or exiting the Pet Supplies
Plus Store?

Appellant’s Brief at 5.4

In her first issue, Appellant avers the trial court erred in finding the

defect in the sidewalk to be trivial as a matter of law. Appellant contends the

fact that the break or deviation in the sidewalk is small does not render it

trivial. Appellant’s Brief at 23. Appellant supports her contention with several

cases concerning triviality and the size of defects, specifically: Breskin v. 535

Fifth Avenue, 113 A.2d 316 (Pa. 1955), and Shaw v. Thomas Jefferson

University, 80 A.3d 540 (Pa. Cmwlth. 2013). In Breskin, the Supreme Court

____________________________________________

4 We further note Appellant’s principal brief, at 43 pages, does not comply
with Pa.R.A.P. 2135. See Pa.R.A.P. 2135(a)(1) (“A party shall file a certificate
of compliance with the word count limit if the principal brief is longer than 30
pages . . .”).

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of Pennsylvania found a break in the sidewalk of 1 to 1.5 inches was not trivial

as a matter of law. Appellant’s Brief at 23. In Shaw, the Commonwealth

Court of Pennsylvania recognized the Supreme Court’s finding that issues of

“whether a sidewalk defect was trivial and whether a defendant has been

negligent in permitting the sidewalk defect to exist should be submitted to the

jury when there are genuine issues of material fact based on the surrounding

circumstances.” Appellant’s Brief at 24 citing Shaw, 80 A.3d at 543. Finally,

Appellant argues the trial court erred in granting Pocono Retail Associates’

motion for summary judgment because the court violated the Nanty-Glo rule.

Appellant contends it improperly accepted the letter of Pocono Retail

Associates’ expert, David Littlewood, citing purported measurements of the

defect in the sidewalk measuring less than 1/4 of an inch. Appellant’s Brief at

34.

Our scope and standard of review of an appeal from the grant of a

motion for summary judgment is well-settled:

[O]ur scope of review is plenary, and our standard of review is the
same as that applied by the trial court. Our Supreme Court has
stated the applicable standard of review as follows: [A]n appellate
court may reverse the entry of a summary judgment only where
it finds that the lower court erred in concluding that the matter
presented no genuine issue as to any material fact and that it is
clear that the moving party was entitled to a judgment as a matter
of law. In making this assessment, 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. As our inquiry involves solely questions
of law, our review is de novo.

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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.

Reinoso v. Heritage Warminster SPE LLC, 108 A.3d 80, 84 (Pa. Super.

2015) (en banc) (citation omitted).

Pennsylvania Rule of Civil Procedure 1035.2(a)(2) states:

[A]ny party may move for summary judgment in whole or in part
as a matter of law

* * *

. . . if, after the completion of discovery relevant to the motion
[for summary judgment], 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). The official note to this rule states in relevant part, “To

defeat this motion [for summary judgment], the adverse party must come

forth with evidence showing the existence of the facts essential to the cause

of action or defense.” Id., note.

When a defect is “trivial,” because it does not involve an unreasonable

risk of harm, then a possessor of land is not responsible for discovering,

warning, or fixing that defect. In Mull v. Ickes, 994 A.2d 1137 (Pa. Super.

2010), this Court set forth the general rule regarding trivial defects:

Although property owners have a duty to maintain their sidewalks
in a safe condition, property owners are not responsible for trivial

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defects that exist in the sidewalk. Our courts have held that an
elevation, depression, or irregularity in a sidewalk or in a street or
highway may be so trivial that, as a matter of law, courts are
bound to hold that there was no negligence in permitting such
depression or irregularity to exist.

Id. at 1140 (citations omitted). There is “‘[n]o definite or mathematical rule

[that] can be laid down as to the depth or size of a sidewalk depression’ to

determine whether the defect is trivial as a matter of law.” Id. at 1140

(citations omitted). Triviality is determined primarily by the size of the

irregularity. “The extent of irregularity which may be present in a street . . .

varies with other circumstances, such as amount of travel, actual location of

the rise or depression, character of material with which the pavement or walk

is constructed, nature of the irregularity, and other circumstances.” Henn v.

City of Pittsburgh, 22 A.2d 742, 743 (Pa. 1941) (citations omitted); see

also Mull, 994 A.2d at 1140 (reversing grant of summary judgment for trivial

defect where insurance company noticed pavement height of 5/8 inches was

a hazard before plaintiff was injured). If the defect is not obviously trivial, the

question of negligence then must be submitted to a jury. Mull, 994 A.2d at

1140.

In the instant matter, the trial court reasoned:

[Appellant] has provided no evidence to this [c]ourt of the size or
depth of the alleged defect in the sidewalk. [Appellant’s] sole
possible evidence of size or depth is documented in the
photographs taken by Maria Ramos, a friend of [Appellant], who
was not present at the time of the accident. Ms. Ramos took two
photos roughly 45 minutes following [Appellant’s] incident. Her
photos are primarily from a high downward pointing angle, as
opposed to a low side angle, and do not contain any object of

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known size for scaling. For these reasons it is difficult if not
impossible for this [c]ourt, or a jury, to visually assess the rough
or relative size or depth of the alleged defect using the
photographs. Taking the photographs in the light most favorable
to [Appellant], the photographs do depict an expansion joint
between two slabs of concrete with light concrete deterioration
and a white gravel-like substance in and around the crack.
However, the size and depth of the expansion joint are unknown.

Having no other objective evidence of a defect, we turn now
to the circumstantial evidence presented by [Appellant]. In the
Complaint, [Appellant] alleges that she suffered a “slip and fall on
loose gravel and cracked/broken sidewalk” outside the Pet
Supplies Store. [Appellant] clarifies in her deposition that her
walker wheel got stuck in “[l]ike a dip with gravel.” However, at
one point, [Appellant] agrees that the spot her wheels got stuck
at was merely an expansion joint in the sidewalk. [Appellant]
further states that upon returning to the site of her injury a couple
months later, having no evidence there were repairs to the
sidewalk, that “[i]t looked fine.” Such admissions by [Appellant]
support Pocono Retail [Associates’] expert witness, David
Littlewood’s affidavit, in which he states the difference in elevation
between concrete slabs are less than 1/4 inch, within nationally
recognized sidewalk safety standards, no other defects in the
sidewalk were observed, and no repairs appear to have been
made.

Trial Ct. Op., 10/4/19, at 5-6 (record citations omitted).

We emphasize the trial court found Appellant provided no evidence of

the size, depth, or condition of the alleged defect in the pavement. She

likewise provided no expert witness or report. While Appellant averred that

her walker became stuck in an expansion joint in the sidewalk, she only

provided two aerial photographs of the alleged defect, which did not show any

height difference. We note Appellant also stated, in her deposition, that if no

one had told her what caused her to fall, she would not have known. See

Appellant’s Deposition at 92-93. At the reconsideration hearing, Appellant’s

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counsel conceded Appellant’s testimony, the two photographs taken by Maria

Ramos, and Ramos’ potential testimony would be the only evidence to

substantiate Appellant’s claims. See Pa.R.C.P. 1035(a)(2). Thus, Appellant

is entitled no relief on her claim that the trial court erred in finding the sidewalk

defect trivial as a matter of law.

Additionally, the Nanty–Glo rule prohibits summary judgment “where

the moving party relies exclusively on oral testimony, either through

testimonial affidavits or deposition testimony, to establish the absence of a

genuine issue of material fact except where the moving party supports

the motion by using admissions of the opposing party or the opposing

party’s own witness.” Lineberger, 894 A.2d at 149 (emphasis added).

Here, the trial court reasoned:

Although [Appellant] argues that Pocono Retail [Associates’]
expert witness’s affidavit should not be considered under the
Nanty-Glo Borough rule, we find that since Pocono Retail
[Associates’] Motion for Summary Judgment also relies upon the
admissions of [Appellant’s] own witnesses, the Nanty-Glo rule is
inapplicable, and summary judgment may be properly considered.

Trial Ct. Op. at 6-7. Neither party disputes that Appellant is a crucial witness.

Pocono Retail Associates supported its summary judgment motion with

statements made by Appellant during her deposition. Therefore, the court’s

consideration of these statements in these summary judgment proceedings

were proper under the Nanty-Glo exception. See Lineberger, 894 A.2d at

149. Thus, Appellant's Nanty–Glo argument must fail.

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In her second and third issues, Appellant claims the trial court erred in

granting summary judgment when it determined that no issue of material fact

existed regarding the gravel on the pavement and how it contributed to

Appellant’s fall. Appellant’s Brief at 35. Appellant contends the combination

of the amount of gravel on the pavement and its presence immediately in

front of a store that was open to the public presented an issue of material fact

for the fact finder to determine whether Appellees had notice of the condition

and whether they were negligent. Id. at 38. Appellant also argues the trial

court erred by granting summary judgment to Pet Supplies and finding they

had no duty to protect business invitees against dangers at the entrance of

the store. Id. at 38. Appellant avers the mere fact that there was a lease

agreement between Pet Supplies and Pocono Retail Associates does not

abrogate the heightened duty that Pet Supplies owed to Appellant as a

business invitee when the incident occurred no “more than a few steps” away

from Pet Supplies’ location. Id. at 39.

To hold a defendant liable for negligence, a plaintiff must prove: “(1) a

legally recognized duty that the defendant conform to a standard of care; (2)

the defendant breached that duty; (3) causation between the conduct and the

resulting injury; and (4) actual damage to the plaintiff.” Truax v. Roulhac,

126 A.3d 991, 997 (Pa. Super. 2015). “The level of any duty owed to one

present on another’s land depends on that person’s status.” Id.

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In determining the scope of the duty owed by a property owner to a

business invitee, Pennsylvania courts have adopted Section 343 of the

Restatement (Second) of Torts which provides:

With respect to conditions on the land which are known to or
discoverable by the possessor, the possessor is subject to liability
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 invitee, 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.”

Reinoso, 108 A.3d at 85, quoting Restatement (Second) of Torts, § 343.

Importantly:

An invitee is entitled to expect that the possessor will take
reasonable care to ascertain the actual condition of the premises
and, having discovered it, either to make it reasonably safe by
repair or to give warning of the actual condition and the risk
involved therein. Therefore an invitee is not required to be on the
alert to discover defects which, if [she] were a mere licensee,
entitled to expect nothing but notice of known defects, he might
be negligent in not discovering. . . .

Id., quoting Restatement (Second) of Torts § 343, comment.

In its December 28, 2018, order and opinion, the trial court stated:

As the plaintiff in this action, [Appellant] bears the burden
of providing sufficient facts to support a prima facie negligence
case. Assuming arguendo that the language in the lease
agreement is at all relevant to her negligence, [Appellant]
admittedly lacks even a scintilla of factual evidence to support Pet
Supplies placed or spilt the gravel (or any other item) on the
exterior sidewalk in violation of that lease agreement. The record

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reflects that during discovery, [Appellant] did not depose any of
Pet Supplies’ employees. Furthermore, [Appellant] has not
directed this [c]ourt toward any facts or evidence garnered during
discovery, such as surveillance footage or photographs or witness
testimony, showing that Pet Supplies placed any item on the area
where [Appellant] slipped, tripped, and fell.

We hold that viewing the facts in the light most favorable to
[Appellant], she lacks sufficient evidence to demonstrate a prima
facie case of negligence under the theory of vicarious liability
against Pet Supplies. Specifically, [Appellant] failed to present
any facts showing an agent of Pet Supplies, such as an employee,
acted negligently in any way related to her accident or is in
anyway responsible for the origin of the gravel-like substance she
slipped tripped or fell upon. . . .

* * *

[Appellant] has provided this [c]ourt with absolutely no
evidence, testimony or otherwise, as to the cause, origin, or
duration of the gravel. On the contrary, she attempts to argue
that the origin of the gravel should be a jury question. We find
that without sufficient facts as to the origin, cause or duration of
the gravel, it would be impossible for a jury to reach a conclusion
that would not require them to resort to conjecture, guess, or
speculate as to the element of constructive notice. Without
further evidence of duration, the jury could not know whether the
gravel was dropped mere minutes before [Appellant] slipped, or
whether the gravel had been in that location for hours or even
days.

Trial Ct. Op., 12/28/18, at 12, 18-19.

Here, Appellant, a business invitee, provided no evidence demonstrating

the cause, origin, or duration of the gravel spill. Appellant merely mentions

its existence where the fall occurred. Appellant has not provided any evidence

raising an issue of fact whether Pet Supplies breached their duty of care or if

any of its employees created the alleged hazard. Thus, Appellant has not

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proven her negligence claim. See Truax, 126 A.3d at 997; Reinoso, 108

A.3d at 86. Appellant is not entitled relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/21/20

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