J-A20027-23

2023 PA Super 177

ROBERT KISTLER AND VIRGINIA 

KISTLER, H/W 

Appellants

v.

MICHELLE M. DIETRICH, KENNETH P. 

LEIBY, AND BRIAN W. GELSINGER

v.

DESTINEE R. WOLBER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1694 MDA 2022

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)3] was the operator of a 2017 Chevrolet traveling 

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 ....

____________________________________________

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,

____________________________________________

(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