J-A09002-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
JAMES P. PERRY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
MOOSE VENTURES, LLC AND J'S : No. 859 WDA 2023
PLACE INCORPORATED :
Appeal from the Order Entered July 11, 2023
In the Court of Common Pleas of McKean County Civil Division at No(s):
28-CD-2021
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY DUBOW, J.: FILED: May 1, 2024
Appellant, James P. Perry, appeals from the July 11, 2023 order entered
in the McKean County Court of Common Pleas granting the motions for
summary judgment filed by Appellees, Moose Ventures, LLC (“Moose
Ventures) and J’s Place Incorporated (“J’s Place”) (collectively, “Appellees”).
After careful review, we affirm.
The relevant facts and procedural history are as follows. On February
22, 2019, Appellant was injured when he slipped and fell on snow and ice
while traversing an alley located between a building owned by Moose Ventures
and one owned by J’s Place (the “Alley”).
On January 19, 2021, Appellant filed a two-count complaint alleging
claims of negligence against Appellees. Appellees filed answers, new matter,
and cross-claims.
J-A09002-24
After the completion of discovery, on September 28, 2022, and
November 23, 2022, Moose Ventures and J’s Place, respectively, filed motions
for summary judgment. Appellees alleged that, as a threshold matter,
Appellant failed to adduce any evidence that Appellees owned the Alley in
which Appellant fell or that, as landowners of property adjacent to the Alley,
Appellees had any duty to maintain it, or had any duty to ensure or make safe
its condition.1
Moose Ventures attached as an exhibit to its motion the deed by which
it acquired title to its property, which established that the northern boundary
of the Alley formed the southern boundary of Moose Ventures’ parcel. In other
words, the Alley is adjacent to Moose Ventures’ property. Moose Ventures
also attached a July 18, 2019 survey of the property clearly depicting the Alley
as not part of Moose Venture’s parcel. Similarly, J’s Place also attached to its
motion for summary judgment its deed to the property, as well as a portion
of real estate assessment map showing that J’s Place’s property is separate
and distinct from the Alley.
____________________________________________
1 J’s Place also argued that, even if J’s Place owed a duty to Appellant by virtue
of owning or possessing the Alley, the doctrine of “hills and ridges” precluded
Appellant’s recovery. 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. See generally Harmotta v. Bender,
601 A.2d 837, 841-42 (Pa. Super. 1992) (reviewing the “hills and ridges”
doctrine). Since the record is clear that neither Moose Ventures nor J’s Place
owned or possessed the Alley, we need not address this issue.
-2-
J-A09002-24
Appellant filed responses to both motions for summary judgment. With
respect to Moose Ventures, Appellant asserted that a genuine issue of material
fact existed as to whether Moose Ventures owned, possessed, and/or
controlled the portion of the Alley where Appellant fell. Appellant based its
claim that Moose Ventures “possessed” the Alley on a January 22, 2021 letter
from Moose Ventures in which Moose Ventures advised Appellant that he had
no right to be in or on the Alley and that Moose Ventures would pursue legal
action against Appellant for trespass if he entered the Alley. Appellant argued
that this demonstrated that Moose Ventures owned or possessed the Alley.
Appellant also claimed that Moose Ventures “unreasonably and unnecessarily
increased water runoff [into the Alley] which resulted in a risk of harm when
the water froze.” Brief in Opposition to [] Moose Ventures[’] Motion for
Summary Judgment, 10/24/22, at 4 (unpaginated).
In further support of his claim that a genuine issue of material fact
existed, Appellant also cited his own deposition testimony that: (1) Moose
Ventures knew or should have known to maintain its premises because “lots
of individuals use the [A]lley as it is a shortcut[;]” (2) he recalls someone
maintaining the [A]lley by Moose Ventures; and (3) someone told him that
Moose Ventures was responsible for the [A]lley. Id.at 4-5.
In response to J’s Place’s motion for summary judgment, Appellant
claimed that the facts showed that J’s Place possessed, occupied, and/or
exercised control over the Alley on a constant and consistent basis. Appellant
pointed to J’s Place’s discovery responses, which indicated that J’s Place
-3-
J-A09002-24
provided maintenance to the Alley during the winter months by inspecting for
and clearing snow and ice if it accumulated and that J’s Place never contracted
with anyone to perform snow removal in the Alley. Appellant asserted that
J’s Place’s use of the Alley was more than “mere use,” because J’s Place
undertook the above maintenance and the only way to travel between its
building and its garage was by way of the Alley. Appellant, thus, concluded
that J’s Place was a possessor of the Alley and, as such, knew or should have
known of the dangerous conditions in the Alley on the day of Appellant’s fall
and that Appellant would not discover or realize the danger of walking in the
Alley.2
Following consideration of the motions for summary judgment and
Appellant’s responses thereto, the trial court found that the competent
evidence of record clearly demonstrated that neither Moose Ventures nor J’s
Place had any ownership or possessory interest in the Alley in general or the
area where Appellant fell in particular. The court also concluded that neither
Moose Ventures nor J’s Place had any duty to maintain the Alley and,
therefore, could not have breached any duty owed to Appellant. Accordingly,
the trial court entered an order granting Appellees’ motions for summary
judgment.
____________________________________________
2 Appellant also challenged J’s Place’s contention that the doctrine of “hills and
ridges” precluded Appellant’s recovery.
-4-
J-A09002-24
This appeal followed. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.3
Appellant raises the following issue on appeal:
Whether the trial court erred/abused its discretion when it granted
[Appellees’] motion for summary judgment when the record
contains sufficient evidence that Appellees[]:
a. owned or possessed the [A]lley where [Appellant] fell;
b. owed a duty to [Appellant] to maintain the [A]lley in a safe
condition or to warn [Appellant] of any dangerous condition in
the [A]lley; and
c. had constructive or actual notice of the conditions in the [A]lley
over which [Appellant] walked or unreasonably permitted an
accumulation of snow or ice to exist?
Appellant’s Brief at 6.
A.
Appellant challenges the trial court’s order granting Appellees’ motions
for summary judgment. Our Supreme Court has clarified our role as the
appellate court as follows:
On appellate review [ ], an appellate court may reverse a grant of
summary judgment if there has been an error of law or an abuse
of discretion. But the issue as to whether there are no genuine
issues as to any material fact presents a question of law, and
therefore, on that question our standard of review is de novo. This
means we need not defer to the determinations made by the lower
tribunals. To the extent that this Court must resolve a question
of law, we shall review the grant of summary judgment in the
context of the entire record.
____________________________________________
3 On October 2, 2023, the trial court filed a Rule 1925(a) opinion in which it
directed this Court to its July 11, 2023 opinion for an explanation of its reasons
for granting Appellees’ motions for summary judgment.
-5-
J-A09002-24
Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) (citations
and quotation omitted).
A trial court may grant summary judgment “only in those cases where
the record clearly demonstrates that there is no genuine issue of material fact
and that the moving party is entitled to judgment as a matter of law.” Id.
(citation and quotation omitted); see also Pa.R.C.P. 1035.2(1). “When
considering a motion for summary judgment, the trial court must take all facts
of record and reasonable inferences therefrom in a light most favorable to the
non-moving party.” Summers, 997 A.2d at 1159. “In so doing, the trial
court must resolve all doubts as to the existence of a genuine issue of material
fact against the moving party, and, thus, may only grant summary judgment
where the right to such judgment is clear and free from all doubt.” Id.
(citation and internal quotation marks omitted).
B.
Appellant asserts that the trial court erred in granting summary
judgment in favor of Appellees because genuine issues of material fact exist
as to whether Appellees owned or possessed the Alley in which Appellant fell,
what duty, if any, they owed to Appellant, and the applicability of the “hills
and ridges” doctrine. Appellant’s Brief at 13-20.
To prove a negligence claim, a plaintiff must demonstrate that “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
-6-
J-A09002-24
or damages.” Merlini v. Gallitzin Water Auth., 980 A.2d 502, 506 (Pa.
2009).
An owner or possessor of land owes a duty to invitees onto his land to
maintain the land in a reasonably safe condition. Brown v. City of Oil City,
294 A.3d 413, 434 (Pa. 2023). See Restatement (Second) of Torts § 342
(explaining that “[a] possessor of land is subject to liability for physical harm
caused to licensees by a condition on the land if” certain conditions are met.)
(emphasis added). Simply, ownership or possession of land is a prerequisite
to the imposition of liability for physical harm arising from a condition on the
land.
With respect to the trial court’s determination that Appellees did not own
or possess the Alley, Appellant argues, without citation to any authority, that
the trial court’s “extreme and/or complete reliance on the deed and map
provided by [Moose Ventures] was improper/incorrect.” Appellant’s Brief at
13. Appellant also argues that, in relying on documents submitted by
Appellees that showed the boundaries of their parcels and the Alley, the court
“failed to consider that all parcels of land exist in relation to the parcels
surrounding them, and based on deed descriptions, may have overlaps or gaps
between parcels.” Id. at 13-14. We highlight, however, that Appellant failed
to provide any legal authority to support its contention that these facts
establish that Moose Ventures possessed the Alley and, thus, had a duty to
Appellant.
-7-
J-A09002-24
With respect to J’s Place, and again without citation to any case law,
Appellant asserts that by J’s Place’s alleged use and maintenance of the Alley,
specifically during winter months, J’s Place clearly showed its intent to control
and/or possess the Alley. Id. at 15. Appellant, thus, concludes that J’s Place’s
actions gave rise to a duty to exercise reasonable care to make the area safe
or to warn Appellant about dangerous conditions in the Alley. Id.
The Honorable Richard A. Masson has authored a comprehensive,
thorough, and well-reasoned opinion, including a discussion of relevant case
law, to explain why the trial court concluded that Appellees did not own or
possess the Alley and, thus, neither Appellee owed Appellant any legal duty.
See Trial Ct. Op., 7/11/23, at 7-8 (concluding that: (1) based on the recorded
property deeds, property surveys, and real estate assessment maps, that
Appellant “adduced no competent evidence to establish either [Appellant]
possessed any record title to the [A]lley”; and (2) that the February 22, 2019
“no trespass” letter “does not remotely suffice in terms of proof of an
ownership interest in or maintenance responsibility for the [A]lley.”). After a
thorough review of the record, the briefs of the parties, and the trial court’s
opinion, we discern no abuse of discretion or error of law in the court’s
conclusion that no genuine issue of material fact “exist in the record that would
-8-
J-A09002-24
permit this case to move forward[.]” Id. at 10.4 We, thus, affirm on the basis
of this portion of the trial court’s July 11, 2023 opinion.
Order affirmed. Appellant is directed to annex a copy of the trial court’s
July 11, 2023 opinion to any future filings.
5/1/2024
____________________________________________
4 In light of our conclusion that the trial court properly found that Appellees
were not the owners or possessors of the Alley, we need not address
Appellant’s argument pertaining to the “hills and ridges” doctrine, which, as
explained above, 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.
-9-