J-A20027-23
2023 PA Super 177
ROBERT KISTLER AND VIRGINIA : IN THE SUPERIOR COURT OF
KISTLER, H/W : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 1694 MDA 2022
MICHELLE M. DIETRICH, KENNETH P. :
LEIBY, AND BRIAN W. GELSINGER :
v. :
:
:
DESTINEE R. WOLBER :
Appeal from the Order Entered November 21, 2022
In the Court of Common Pleas of Berks County
Civil Division at 19-4136
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
OPINION BY MURRAY, J.: FILED: SEPTEMBER 22, 2023
Robert Kistler (Kistler) and his wife, Virginia Kistler (collectively
Appellants), appeal from the orders granting summary judgment in favor of
Michelle M. Dietrich (Dietrich) and Kenneth P. Leiby (Leiby) (collectively
Defendants), and dismissing Appellants’ claims with prejudice.1 We affirm.
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* Former Justice specially assigned to the Superior Court.
1 As we discuss below, the trial court entered two separate orders.
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Appellants initiated this negligence and loss of consortium action in May
2019.2 On September 1, 2018, Kistler was injured while riding his motorcycle
by a residence at 523 West State Street, Hamburg, Pennsylvania (Dietrich
property). Complaint, 5/14/19, ¶ 6. At the time of the accident, “Defendants
… were conducting an [e]state [s]ale at the [Dietrich property] …, which was
advertised in publications of general circulation….” Id. ¶ 7; see also id. ¶ 3
(claiming Leiby owns the auction company involved in the estate sale). The
complaint pled:
On … September 1, 2018, at about 9:00 a.m., … Kistler[] was the
operator of his Harley Davidson motorcycle, westbound, on West
State Street … in the vicinity of … [the Dietrich property], near its
intersection with Clayton Avenue. … Destinee R. Wolber
[(Wolber) ] was the operator of a 2017 Chevrolet traveling
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southbound on Clayton Avenue approaching the intersection of
West State Street …, when she crossed the path and right-of-way
of [Kistler], causing a very serious collision between her and
[Kistler], resulting in [Kistler] sustaining serious and permanent
injuries….
Id. ¶ 6 (footnote added).
According to Appellants:
[T]he general public … attend[ed] the [] estate sale, in large
numbers, and by automobile, causing a very dangerous condition
to other motorists in the area, as the persons attending the estate
sale by automobile[] parked in an area of the public roadway that
prohibited parking, creating visual limitations and deficiencies to
other motorists who were simply traveling through the area ….
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2 The complaint also named Brian W. Gelsinger (Gelsinger), but the
parties
subsequently stipulated to the dismissal of Appellants’ claims against
Gelsinger.
3 Wolber is not a party to this appeal.
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Id. ¶ 9 (some capitalization modified). Appellants averred that Defendants
acted negligently in, inter alia, “creating an unreasonable risk of harm to
[Kistler] by causing a foreseeable hazard to all motorists in the area of [the
Dietrich property] at the time of this accident,” id. ¶ 15(a), “[f]ailing to have
traffic and parking control measures in place … to prevent a foreseeable and
unreasonable risk of harm to all motorists,” id. ¶ 15(b), and “[f]ailing to have
or employ necessary personnel to control traffic and parking….” Id. ¶ 15(c).
On June 13, 2019, Defendants filed an answer, new matter, and
crossclaims. On June 7, 2022, following discovery (including depositions of
Kistler, Dietrich, and others), Defendants filed for summary judgment.
Defendants claimed Appellants failed to state a negligence claim because
Defendants owed no legal duty to Kistler. Appellants filed a response on July
7, 2022, claiming genuine issues of material fact existed as to whether
Defendants had and breached a duty of care. Response, 7/7/22, ¶¶ 26-27.
The trial court held a hearing on the summary judgment motion on November
15, 2022.
On November 21, 2022, the trial court entered two separate orders
granting summary judgment in favor of Dietrich and Leiby, respectively, and
dismissing Appellants’ claims with prejudice. The court issued an opinion with
the orders in which it cited Newell v. Mont. W., Inc., 154 A.3d 819 (Pa.
Super. 2017), to support its conclusion that Appellants failed to establish
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Defendants owed any duty to Kistler. Trial Court Opinion, 11/21/22, at 3.
Appellants timely appealed and complied with Pa.R.A.P. 1925.
On February 7, 2023, this Court issued upon Appellants a rule to show
cause (RTSC) why the appeal should not be quashed. The RTSC observed
that Appellants appealed from two separate orders, and it was unclear
whether the orders dismissed all claims against all parties. RTSC, 2/7/23, at
1. Appellants timely responded to the RTSC, stating:
Due to the factual and procedural circumstances, Appellants
treated the [two November 21, 2022,] orders as one decision and
thus, believed that one appeal was proper. … Leiby and …
Dietrich[] filed motions for summary judgment based upon the
same factual record, same arguments and same legal authority.
On November 15, 2022, oral argument on Defendants’ motion for
summary judgment was heard simultaneously. … [T]here was
one opinion in support of both orders ….
Response to Rule, 2/15/23, at 2 (capitalization modified). This Court
discharged the RTSC on February 22, 2023. Accordingly, we consider
Appellants’ claims.
Appellants present the following issues:
1. Did the trial court abuse its discretion and make an[] error of
law when it determined the record is devoid of evidence that
anyone connected to the accident[] was an invitee of, or even
attended the auction[,] where genuine issues of material fact
exist as to whether the vehicles were parked by persons
attending the [e]state [s]ale?
2. Did the trial court err as a matter of law where the undisputed
facts establish that the Defendants, Michelle M. Dietrich,
Executrix of the Estate of Marie E. Dietrich, deceased and
Kenneth P. Leiby a/k/a d/b/a Kenneth Leiby Auctioneer,
voluntarily assumed a duty of care?
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a. Did the trial court err as a matter of law, when it
determined that Defendants … did not owe [] Kistler[] a
duty to protect[,] where the factual record demonstrates
Defendant, Dietrich, directed individuals to park off of her
property without any consideration of where people
would park in the absence of legal on-street parking; and
once the landowner takes some affirmative action to
protect, the landowner and its agent must undertake and
perform the duty in a safe and reasonable manner?
3. Did the trial court err as a matter of law and/or abuse its
discretion by determining that Defendants owed no duty to
[Appellants,] where genuine issues of material fact exist as to
whether Defendants violated the Restatement (Second) of
Torts, Section 323 when they undertook a duty then
abandoned it; knew or should have known they had created a
hazard; had the means, methods and opportunity to correct
and/or warn against the hazard and failed to take any
reasonable precautions to prevent the known risk of harm?
Appellants’ Brief at 4-5.
When reviewing a challenge to the grant of summary judgment:
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. 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. Our scope of review of
a trial court’s order granting … summary judgment is plenary, and
our standard of review is clear[;] the trial court’s order will be
reversed only where it is established that the court committed an
error of law or abused its discretion.
Pergolese v. Std. Fire Ins. Co., 162 A.3d 481, 486 (Pa. Super. 2017)
(citation omitted). “Only when the facts are so clear that reasonable minds
could not differ can a trial court properly enter summary judgment.” Straw
v. Fair, 187 A.3d 966, 982 (Pa. Super. 2018) (citation omitted).
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Preliminarily, we note Appellants’ brief does not comply with Pa.R.A.P.
2119(a), which requires the argument section
be divided into as many parts as there are questions to be argued;
and shall have at the head of each part - in distinctive type … -
the particular point treated therein, followed by such discussion
and citation of authorities as are deemed pertinent.
Id. Appellants’ argument headings do not correspond with Appellants’ issues.
Nonetheless, we overlook this defect; like Appellants, we address the issues
together.
The crux of this appeal is whether Defendants owed a duty of care to
Kistler. This issue presents a question of law, for which our standard of review
is de novo and our scope of review is plenary. Maas v. UPMC Presbyterian
Shadyside, 234 A.3d 427, 436 (Pa. 2020).
To state a cause of action for negligence, a plaintiff must establish, inter
alia, the defendant owed a legal duty. Rogers v. Thomas, 291 A.3d 865,
874 (Pa. Super. 2023) (en banc) (detailing elements of a negligence claim);
Newell, 154 A.3d at 822 (“duty is an essential element of a negligence claim”
(citation omitted)); Pomroy v. Hosp. of the Univ. of Pa., 105 A.3d 740,
746 (Pa. Super. 2014) (“A breach of a legal duty is a condition precedent to a
finding of negligence.” (citation omitted)).
Appellants claim the trial court erred in granting summary judgment
because Appellants established that Defendants owed Kistler a duty of
reasonable care. See Appellants’ Brief at 32-48. Appellants contend,
“Dietrich voluntarily assumed a duty of care when she directed individuals to
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park off [the Dietrich] property without any consideration of where people
would park in the absence of legal on-street parking.” Id. at 37; see also id.
at 47 (“Dietrich undertook the responsibility to direct parking and diverted
people to park adjacent to her property.”). According to Appellants, “Dietrich
and her agent[,] Leiby[,] undertook a duty then abandoned it,” “knew or
should have known that they created a hazard,” and “failed to take any
reasonable precautions to prevent the known risk of harm.” Id. at 47-48.
“[W]hether Defendants, in their joint enterprise, acted negligently in
undertaking these duties on the day Mr. Kistler was injured created a question
of fact for the jury to decide.” Id. at 48.
Defendants counter that the trial court properly granted summary
judgment. Leiby Brief at 20 (“There is simply no evidence that Defendant[s]
… owed [] Appellants a duty to direct traffic around the location of the estate
sale,” or “evidence that Defendant[s] voluntarily assumed a duty to []
Appellants” (capitalization modified)); Dietrich Brief at 26 (claiming
Defendants “did not owe Kistler a duty to restrict parking on West State Street
or to provide off-street parking for all of the estate [sale] attendees on the
Dietrich pr[operty] to keep them from utilizing legal, on-street parking.”), and
id. at 28 (emphasizing “it is undisputed that parking was permitted on both
sides of the street on West State Street in the vicinity of the Dietrich
property.”).
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Defendants argue the trial court properly applied this Court’s decision in
Newell. Leiby Brief at 23-30; Dietrich Brief at 24 (“While ‘not on all fours’
with the case at bar, Newell … is sufficiently similar to be very instructive.”),
and id. at 24-26. Defendants claim Appellants’ proposed duty of care is not
supported by precedent, and the trial court properly rejected Appellants’
attempt to create a new legal duty. Leiby Brief at 30 (complaining Appellants’
proposed duty “would subject landowners to broad liabilities for any injury or
harm created on a property that the landowner has limited ability to
prevent.”); Dietrich Brief at 27 (claiming there is “no basis in law or fact to
impose a newly-created duty”), and id. at 14 (“This includes any duty that
presently exists under Pennsylvania law or any duty that Appellants argue
should be created by applying Restatement (Second) of Torts [sections] 323,
324A and 371.”).
In Newell, the decedent attended a concert at a nightclub owned and
operated by defendant Montana West. Newell, 154 A.3d at 821. Montana
West is located on the west side of State Route 309, a four-lane public highway
maintained by the Commonwealth. Id. Without permission of the landowner,
decedent parked his car on the property of DHL Machine Company (DHL),
located on the east side of Route 309 and across from Montana West. Id.
Decedent left Montana West at about 11:00 p.m. and attempted to cross
Route 309 to return to his vehicle; an automobile struck and killed decedent.
Id.
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Donald Newell (Newell), the administrator of decedent’s estate,
commenced an action against Montana West and DHL. Id. Newell claimed
Montana West provided insufficient parking for its customers, “thereby making
it necessary for Decedent to incur the risk of parking on the other side of Route
309 and of crossing Route 309 to reach his car.” Id. The trial court entered
summary judgment for Montana West and DHL “on the grounds that those
defendants did not owe a duty to Decedent when he crossed Route 309 ….”
Id. Newell appealed. Id.
This Court first determined that Montana West owed no duty to
pedestrians on adjoining roadways. Id. at 823-27. We concluded:
A pedestrian who walks on a public highway places himself at risk
of injury from vehicles traveling on the highway. Any duty of care
owed to that pedestrian must belong to those who maintain the
road and those motorists who are licensed to drive safely on it.
The duty does not extend to landowners who have premises
adjacent to the roadway.
Id. at 826. The Newell Court next held Montana West did not owe any duty
to provide adequate parking on its premises. Id. at 827-36. Finally, we
concluded Montana West did not voluntarily assume a duty by employing prior
safety measures. Id. at 836-39.
Appellants claim Newell is distinguishable, where “Defendants did not
only fail to provide adequate parking for their auction, but also undertook
affirmative conduct which resulted in the creation of obstructed sight lines
which posed a danger to both business invitees and the general public.”
Appellants’ Brief at 38-39 (emphasis omitted); id. at 47 (“unlike Montana
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West, [] Dietrich undertook the responsibility to direct parking and diverted
people to park adjacent to [the Dietrich] property.”). In support of their claim
that Defendants assumed a duty, Appellants cite to the Restatement (Second)
of Torts §§ 3234 and 324A.5 Id. at 46-47.
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4 Section 323 provides:
§ 323 Negligent Performance of Undertaking to Render
Services
One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for the
protection of the other’s person or things, is subject to liability to the
other for physical harm resulting from his failure to exercise reasonable
care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such
harm, or
(b) the harm is suffered because of the other’s reliance upon the
undertaking.
RESTATEMENT (SECOND) OF TORTS, § 323.
5 Section 324A provides:
§ 324A Liability to Third Person for Negligent Performance of
Undertaking
One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for the
protection of a third person or his things, is subject to liability to the
third person for physical harm resulting from his failure to exercise
reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of
such harm, or
(Footnote Continued Next Page)
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While Newell is not directly on point, it is persuasive. Applying Newell,
the trial court explained:
Defendants … did not owe [] Kistler a duty to restrict
parking on West State Street or to provide off-street
parking for all of the estate sale attendees at the Dietrich
property, or any duty, indeed any authority, to keep them
from using legal, on-street parking. Defendants …
additionally did not owe a duty to Kistler to direct traffic and
monitor parking. It is important to note that [] Kistler was not
even attending the auction, rather he was merely driving down
the street near the auction. Furthermore, the record is devoid of
evidence that anyone connected to the accident[,] including those
parked along West State Street where the accident occurred, was
an invitee of, or even attended the auction. [The trial c]ourt also
took note of the undisputed fact that there was a festival being
held near the accident at the same time as the estate auction. []
Kistler admitted in his deposition that he did not attend the auction
and that the individuals who allegedly parked too close to the
intersection have never been identified. It is clear to this [c]ourt
that Defendants did not have any authority to control parking on
public streets, or that they had any duty to [Appellants] to
exercise such control.
Trial Court Opinion, 11/21/22, at 3-4 (emphasis added).
Upon review, we conclude that the trial court’s reasoning is supported
by both the record and applicable legal authority. See id. Contrary to
Appellants’ claim, Defendants did not assume any duty to Kistler; the
Restatement sections Appellants cite are unavailing. See Feld v. Merriam,
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(b) he has undertaken to perform a duty owed by the other to
the third person, or
(c) the harm is suffered because of reliance of the other or the
third person upon the undertaking.
RESTATEMENT (SECOND) OF TORTS, § 324A.
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485 A.2d 742, 746-47 (Pa. 1984) (adopting Restatement Section 323, and
emphasizing an invitee “may rely upon a program of protection only within
the reasonable expectations of the program”). As Appellants failed to
establish that Defendants owed Kistler a duty of care, the trial court did not
err or abuse its discretion in granting summary judgment.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/22/2023
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