THOMAS BEAUFORD IN THE SUPERIOR COURT OF …

J-A10034-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

THOMAS BEAUFORD

Appellant

v.

DEFINITIVE PROPERTIES, LLC AND SECOND NATURE LANDSCAPING

Appellee

: :

: :

: :

: :

: :

IN THE SUPERIOR COURT OF PENNSYLVANIA

No. 2766 EDA 2018

Appeal from the Orders Entered August 16, 2018

In the Court of Common Pleas of Delaware County Civil Division at No(s): No. CV-2016-008925

BEFORE: GANTMAN, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.E.: FILED MAY 23, 2019

Appellant, Thomas Beauford, appeals from the orders granting summary

judgment in the Delaware County Court of Common Pleas, in favor of

Appellees Definitive Properties, LLC (“Definitive”) and Second Nature

Landscaping (“Second Nature”), respectively.1 We affirm.

____________________________________________

1 Appellant initially sued several business entities at two separate docket numbers. By order of December 5, 2017, the trial court consolidated the two

complaints for all purposes under docket No. CV-2016-008925. Thus, Appellant was not required to file two notices of appeal per Commonwealth

v. Walker, ___ Pa. ___, 185 A.3d 969 (2018) (holding that, as of June 1, 2018, common practice of filing single notice of appeal from disposition

involving more than one docket would no longer be tolerated, because it violates Pa.R.A.P. 341, which requires filing of “separate appeals from an order

that resolves issues arising on more than one docket”).

Additionally, by stipulation filed on July 26, 2016, the parties agreed to the dismissal of the third and only remaining defendant named in the complaints.

Thus, the appeal is from final orders and properly before us.

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In its opinion, the trial court accurately set forth the relevant facts and

procedural history of this case. Therefore, we have no reason to restate them.

Appellant raises one issue for our review:

WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND OTHERWISE COMMITTED AN ERROR OF LAW WHEN IT

IMPROPERLY GRANTED [APPELLEES’] MOTIONS FOR SUMMARY JUDGMENT AND DISCONTINUED [APPELLANT’S]

CASE?

(Appellant’s Brief at viii).

Initially we observe:

“Our scope of review of an order granting summary

judgment is plenary.” Harber Philadelphia Center City Office Ltd. v. LPCI Ltd. Partnership, 764 A.2d 1100,

1103 (Pa.Super. 2000), appeal denied, 566 Pa. 664, 782 A.2d 546 (2001). “[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.” Id.

“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. 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.” Caro v. Glah, 867 A.2d 531, 533

(Pa.Super. 2004) (citing Pappas v. Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536 U.S.

938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002)).

Motions for summary judgment necessarily and directly

implicate the plaintiff’s proof of the elements of [his] cause

of action. Grandelli v. Methodist Hosp., 777 A.2d 1138, 1145 n.7 (Pa.Super. 2001). 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.” Pa.R.C.P. 1035.2. Thus, a record that

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supports summary judgment will either (1) show the material facts are undisputed or (2) contain insufficient

evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted

to the jury. Grandelli, supra at 1143 (citing Pa.R.C.P. 1035.2 Note). “Upon appellate review, we are not bound by

the trial court’s conclusions of law, but may reach our own conclusions.” Grandelli, supra at 1144. The appellate

Court may disturb the trial court’s order only upon an error

of law or an abuse of discretion. Caro, supra.

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). “Where the

discretion exercised by the trial court is challenged on appeal, the party bringing the challenge bears a heavy

burden.” Paden v. Baker Concrete Constr., Inc., 540 Pa.

409, [412,] 658 A.2d 341, 343 (1995) (citation omitted).

[I]t is not sufficient to persuade the appellate court

that it might have reached a different conclusion if…charged with the duty imposed on the court below;

it is necessary to go further and show an abuse of the discretionary power. An abuse of discretion is not

merely an error of judgment, but if in reaching a

conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the

result of partiality, prejudice, bias or ill will, as shown by the evidence or the record, discretion is abused.

Id. (internal quotations and citations omitted).

Bartlett v. Bradford Publishing, Inc., 885 A.2d 562, 566 (Pa.Super. 2005).

Lineberger v. Wyeth, 894 A.2d 141, 145-46 (Pa.Super. 2006).

After a thorough review of the record, the briefs of the parties, the

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applicable law, and the well-reasoned opinion of the Honorable G. Michael

Green, we conclude Appellant’s issue merits no relief. The trial court opinion

comprehensively discusses and properly disposes of the question presented.

(See Trial Court Opinion, filed November 20, 2018, at 9-13) (finding:

Appellant failed to present any facts indicating Definitive possessed actual or

constructive notice of purported icy condition; Appellant slipped and fell on

alleged ice puddle during active weather event such that “generally slippery

conditions” prevailed in community; Definitive had no obligation to correct

conditions until reasonable time after weather event ended; likewise,

Appellant failed to present evidence that once Second Nature had responded

to clear snow and apply salt, it had any further obligation to return to property

unless called by Definitive).2 Accordingly, we affirm on the basis of the trial

court’s opinion.

Orders affirmed.

____________________________________________

2 With respect to Appellant’s argument against Second Nature that the trial

court violated the rule established in Borough of Nanty-Glo v. American Surety Co. of New York, 309 Pa. 236, 163 A. 523 (1932), the record shows

the court did not rely solely on oral testimony from Second Nature’s witnesses. Rather, the court also considered Appellant’s own deposition

testimony when entering summary judgment in favor of Second Nature. Thus, this particular claim merits no relief. See Lineberger, supra (explaining

Nanty-Glo rule prohibits summary judgment where moving party relies exclusively on oral testimony, either through testimonial or deposition

testimony, to establish absence of genuine issue of material fact except where moving party supports motion by using admissions of opposing party

or opposing party’s own witnesses).

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/23/19

Circulated 05/14/2019 03:05 PM

IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA

CIVIL ACTION - LAW

THOMAS BEAUFORD

v.

SECOND NATURE LANDSCAPING and CONSTRUCTION, INC.

THOMAS BEAUFORD

v.

DEFINITIVE PROPERTIES, LLC d/b/a DANIEL SCOTT COMMON and NEMEX LANDSCAPING AND DESIGN, INC.

NO. 2016-8925

NO. 2017-9544

Marc I. Simon, Esquire Counsel for AppellanUPlaintiff Thomas Beauford

Andrew B. Adair, Esquire Counsel for Appellee/Defendant Definitive Properties, LLC d/b/a/ Daniel Scott Commons

Bryan A. George, Esquire Counsel for Appellee/Defendant Second Nature Landscaping & Construction, LLC

GREEN, J. DATE: November 19, 2018

OPINION

By two separate Orders dated August 16, 2018, the Motion for

Summary Judgment of Defendant Definitive Properties, LLC d/b/a/ Daniel

Scott Commons (hereinafter "Definitive"} and the Motion for Summary

Judgment of Defendant Second Nature Landscaping & Construction, LLC

(hereinafter "Second Nature") were each granted. Plaintiff Thomas Beauford

filed the instant appeals.

PROCEDURAL AND FACTUAL HISTORY

This negligence action arises from an alleged slip and fall accident

occurring at approximately 10:30 p.m. on March 10, 2015 outside of an

apartment building owned by Definitive and located at 1426 West Congress

Street, City of Chester, Delaware County, Pennsylvania (the "Property"). The

Property is a two-story apartment building accessible from a concrete

walkway that leads to four (4) concrete steps up to a concrete landing. At

the time of Plaintiff Beauford's incident, Definitive contracted with Second

Nature to provide snow removal services at the Property. The contract

required Second Nature to automatically respond within twenty-four (24)

hours when snowfall amounts reached a certain depth. The scope of the

services provided by Second Nature included the removal of snow from, and

salting of walkways, steps and landings appurtenant to the Property.1

On March 5, 2015, five days prior to the alleged incident, there was

sufficient snowfall in the Chester area to automatically trigger a response by

Second Nature. (Definitive, 6/14/18 MSJ, Exh. D.) After the snow stopped

1 By Order .dated December 5, 2017, the trial court consolidated separate liability actions brought against each named Defendant.

2

falling on March 5, 2015, Second Nature cleared snow from walkways and

also spread thirty 50-pound bags (1,500 lbs. total) of rock salt to remove any

residual snow and prevent the formation of ice. (Definitive 6/14/18 MSJ,

Exhs. D and E. ). Following the snowfall on March 5, 2015, there was no

precipitation of any kind in the Chester area until a rain began to fall between

1 :54 p.m. and 2:04 p.m. on the afternoon of March 10, 2015, the date of the

alleged accident. (Definitive 6/14/18 MSJ, Exh. F.)

On March 10, 2015, the temperature remained above freezing except

for a brief drop to 30.9° Fat 6:51 a.m. (Definitive 6/14/18 MSJ, Exh. F, G,

H). The temperature rose to a high of 55° F by 12:51 p.m . .lit Rain began

to fall between 1 :54 p.m. and 2:04 p.m., and continued before ending at

approximately 12:48 a.m. on March 11, 2015. (Definitive 6/14/18 MSJ, Exh.

F). Once the rain started to fall, the temperature remained in the mid-40s for

the remainder of the day. Id. At the time of Plaintiff's alleged accident -

10:30 p.m. - the temperature was between 44° F and 46° F. (Definitive

6/14/18 MSJ, Exhs. F, G, H).

Plaintiff Beauford maintains he slipped arid fell on an "ice puddle"

which formedat some point after his 11:00 a.m. arrival at the Property on

March 10, 2015 and his 10:30 p.m. departure. (Definitive 6/14/18 MSJ, Exh.

B, p. 13-74.). At deposition, Plaintiff Beauford testified he arrived at the

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Property at approximately 11 :00 a.m. on the morning of March 10, 2015 to

visit his girlfriend who lived in a ground floor apartment designated as 1426-

A. (Definitive 6/14 /18 MSJ, Exh. B., p. 40). As he walked toward the

Property, Plaintiff Beauford noticed the walkway had been cleared of snow

and salt had been applied to the walkway and steps. (kt. at pp. 41-42 and

113-114.). PlaintiffBeauford walked up the steps and entered the apartment

1426-A without any difficulty and remained inside for the remainder of the

day. (kl at pp. 40, 116-17.)

Plaintiff Beauford acknowledged the temperature was warmer during

the day, rising into the mid-40s, and it began to rain at around noon.

(Definitive 6/14/18 MSJ, Exh. F. pp. 49, 74,120). At approximately 10:30

p.m., Beauford left apartment 1426-A. (Id. at pp. 34-35.) It was still raining,

but the temperature had dropped "[e]nough to freeze the water." (� at p.

124.) Plaintiff Beauford testified he stepped out of the door and onto the

landing, turned and said goodbye to his girlfriend, and slipped on an "ice

puddle" at the top of the steps. (kl at 60, 73- 7 4. ). Plaintiff Beauford testified

the "ice puddle" was not present upon his arrival at the Property that morning.

(Id. at 74.). Rather, ·Plaintiff Beauford claims that the "ice puddle" formed

during the evening of March, 10, 2015, when a combination of falling rain and

4

rainwater dripped from a gutter and froze on the landing and steps.

(Definitive 6/14/18 MSJ, Exh. B p. 74, 123.)

STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

The issues raised in Appellants' Concise Statements of Matters Complained

of on Appeal2 are as follows:

1. The trial court abused its discretion and/or otherwise

committed an error of law in granting Defendants' Motion for

Summary Judgment.


committed an error of law in granting Defendants' Motion for

Summary Judgment against Plaintiff where genuine issues of

material fact exists in violation of Pa R.C.P. 1035.2(1).


committed an error of law in ruling that the condition or defect

was one that Defendants had no knowledge of the condition or

defect.


committed an error of law by granting Defendants' Motions for

2 Plaintiff Beauford filed two separate yet identical Concise Statements of Matter Complained of on Appeal on September 21, 2018 and September 24, 2018.

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Summary Judgment when Defendant failed to instruct and failed

to warn Plaintiff of the dangerous conditions of the premises.



Summary Judgment by deciding that Plaintiff assumed a risk of

potential danger and thereby absolved the Defendants of any

duty owed to Plaintiff, a business invitee.


committed an error of law when it granted summary judgment in

favor of the Defendants when the Motions were filed in violation

of the so-called "Nanty-Glo" rule; as the Motions relied on the

self-serving testimony of Defendants expert who relies upon data

not even remotely close to the incident site. Nanty-Glo v,

American Surety Co., 309 Pa 236, 238, 163 A. 523 (1932).

Nanty-Glo precludes dismissal as a matter of law where the

· moving party relies solely upon testimonial affidavits and

depositions of his Witnesses to resolve material issues of fact."

Dudley v USX Corp., 414 Pa. Super. 160, 169, 606 A.2d 916,

920 (1992). More specifically, oral testimony alone, either

through testimonial affidavits or depositions, of the moving party

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or the moving party's witnesses, even if contradicted, is generally

insufficient to establish the absence of a genuine issues of

material fact. Id., see also Penn Center House, Inc. v. Hoffman,

520 PA. 171, 553 A.2d. 900 (1989); Pa. R. Civ. P. 1035.2, note

(emphasis added). Thus, there remains genuine issues of

material fact as to liability for the incident which precludes

summary judgment.


committed an error of law in granting the Defendants' Motions for

Summary Judgment by not allowing the jury to make a

determination as to the credibility of Defendants' Expert's

testimony, as "the fact finder is free to accept or reject the

credibility of expert witnesses, and to believe all, part or none of

the evidence." Philadelphia Bd. of Pensions v. Clayton, 987 A.2d

1255, 1262 (Pa. Commw. 2009).


committed an error of law in granting the Defendants' Motions for

Summary Judgment when a genuine issue of material fact exists

as .to whether the Defendants created the condition and/or

7

allowed the condition to remain on the premises thereby causing

the incident.


committed an error of law in granting the Defendants' Motion for


as to whether the Defendants should have had notice of the

condition that caused the incident.


committed an error of law in granting the Defendants' Motion for


as to whether the Defendants should have had persons

specifically tasked with properly and adequately maintaining the

premises to be free of the type of hazardous conditions that

caused the incident.


committed an error of law by granting Defendants' Motion for

Summary Judgment by failing to apply the applicable law

regarding rendering services to others.



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Summary Judgment by failing to apply applicable law regarding

exercising due care.


committed an error of law by granting Defendants' Motion for

Summary Judgment by failing to properly apply the legal

standard in reviewing motions for summary judgment.

DISCUSSION

For a party to prevail in a negligence action, a plaintiff must prove the

defendant owed a duty of care to the plaintiff, that duty was breached, the

breach resulted in the plaintiffs injury, and the plaintiff suffered an actual loss

or damages." Merlini ex rel. Merlini v. Gallitzin Water Authority, 980 A.2d 502,

506 (Pa. 2009}. A land possessor is subject to liability for physical harm

caused to an invitee only if the following conditions are satisfied:

"[the land possessor] knows of or reasonably should have known of the condition and the condition involves an unreasonable risk of harm, [the possessor] should expect that the invitee will not realize it or will fail to protect [himself] against it, and the [possessor] fails to exercise reasonable care to protect the invitee against the danger."

Estate of Swift v. Northeastern Hosp. of Philadelphia, 690 A.2d 719, 722 (Pa.

Super. 1997) (citation omitted}. An invitee must present evidence proving

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either the [possessor] of the land had a hand in creating the harmful

condition, or had actual or constructive notice of such condition. � What

constitutes constructive notice depends on the circumstances of the case,

but one of the most important factors to consider is the time that elapsed

between the origin of the condition and the accident. Neve v. lnsalaco's, 771

A.2d 786, 791 (Pa.Super. 2001 }.

Moreover, the hills and ridges doctrine, "as defined and applied by the

courts of Pennsylvania, is a refinement or clarification of the duty owed by a

possessor of land and is applicable to a single type of dangerous condition,

i.e., ice and snow." Wentz v. Pennswood Apartments, 518 A.2d 314, 316

(Pa.Super. 1986). See Williams v. Shultz, 240 A.2d 812, 813-14 (Pa. 1968)

(indicating the doctrine of hills and ridges applies to preclude liability where

"the accident occurred at a time when general slippery conditions prevailed

in the community as a result of recent precipitation"). In order to recover for

a fall on an ice or snow covered surface, a plaintiff must show:

( 1 ) snow and ice had accumulated on the sidewalk in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians travelling thereon;

(2) the property owner had notice, either actual or constructive, of the existence of such condition; [and]

(3) it was the dangerous accumulation of snow and ice which caused the plaintiff to fall.

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The only duty upon the property owner or tenant is to act within a

reasonable time after notice to remove [the snow and ice] when it is in a

dangerous condition. Biernacki v. Presque Isle Condominiums Unit Owners

Assoc., 828 A.2d at 1114, 11 \7 (Pa.Super. 2003). 11[T]the hills and ridges

doctrine may be applied only in cases where the snow and ice complained

of are the result of an entirely natural accumulation following a recent

snowfall[.]" Harvey v. Rouse Chamberlin, Ltd., 901 A.2d 523, 526 (Pa.Super.

2006).

In concluding there were no genuine issues of material fact and

Defendants were entitled to judgment as a matter of law in the instant case,

the trial court viewed as relevant the following. Rain began to fall between

1 :54 p.m. and 2:04 p.m. on March 10, 2015 and continued throughout the

remainder of the day before ending at approximately 12:48 a.m. on March

11, 2015. (Definitive 6/14/18 MSJ, Exh. F). According to Plaintiff Beauford's

own deposition testimony, he first noticed it was raining around noon and

agreed it was raining when he left the apartment at 10:30 p.m. (12:. at pp. 34-

35, 124). As such, the weather conditions before and at the time of the

incident are uncontested.

The hills and ridges doctrine requires an owner or occupier of land,

after notice of a dangerous condition of hills and ridges of natural 11

accumulations of snow or ice, to act within a reasonable amount of time to

eliminate the dangerous condition. Under the hills and ridges doctrine, a

landowner does not have a general affirmative legal duty to salt or sand a

sidewalk prior to a winter storm. Collins v. Philadelphia Suburban Dev.

Corp., 179 A.3d 69 (Pa. Super. 2018). An invitee who suffers physical harm

on the premises must present evidence proving either the possessor of the

land had a hand in creating the harmful condition, or he had actual or

constructive notice of such condition. llL. At no time, did Plaintiff Beauford

establish any facts to sustain a viable cause of action against Defendant

Definitive. Plaintiff Beauford failed to present any facts indicating Definitive

possessed actual or constructive notice of the purported condition.

Additionally, there is no factual dispute that Plaintiff Beauford slipped and fell

on the purported ice puddle during an active weather event; that is, at a time

when "generally slippery conditions" prevailed in the community. Under

prevailing Pennsylvania law, a landowner has no obligation to correct the

conditions until a reasonable time after the winter storm has ended. Collins

v. Philadelphia Suburban Dev. Corp., 179 A.3d 69, 75 (Pa. Super. 2018).

Likewise, no evidence was presented that once Second Nature had

responded to clear the snow and apply the salt or de-icing materials on or

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about March 5, 2015 they had any obligation to return to the Property, unless

called, by Defendant Definitive.

CONCLUSION

For the foregoing reasons, the August 161 2018 Orders should not be

disturbed on appeal.

BY THE COURT:

N({JI///\___ // G. Michael Green, / J.

/ I /I

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