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- A20027

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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 order s 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.

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.

1 As we discuss below, the trial court entered two separate orders.J

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Appellants initiated th is negligence and loss of consortium action in May

2019

. 2 O n September 1, 2018, Kistler was injured while riding his motorcycle

by a r esidence 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]al e 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. Wo l ber [ (Wolber) 3 ] was the operator of a 2017 Chevrolet traveling southbound on Clayton Avenue approaching the i ntersection 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 ser ious 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 a ttending 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 d ismissal of Appellants’ claims against Gelsinger.

3 Wolber is not a party to this appeal.J

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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....” I d. ¶ 15( c).

O n June 13, 2019, Defendants filed an answer , new matter, and

cross claims

. On June 7, 2022, f ollowing discovery (including depositions of

Kistler, Dietrich

, and others), Defendants filed for summary judgment

.

Defendants claim ed 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

. Respo nse, 7/7/22, ¶¶ 26

- 27.

The trial court held a hearing on the summary judgment motion on November

15, 2022

.

On November 21, 2022, t he trial court entered two separate orders

granting summary judgment in favor of Dietrich and Leiby

, respectively, and

dismi ssing 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 establishJ

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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 quash ed . 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

, s t ating :

Due to the factual and procedural circumstances, Appellants

treated the [ two November 21, 2022, ] o rders as one decision and thus, believed that one a ppeal was proper.

... Leiby and

... Dietrich [] filed m otions for s ummary j udgment based upon the same factual record, same arguments and same legal authority. On November 15, 2022, oral argument on Defendants’ m otion for

s ummary j udgment was heard simultaneously. ... [ T]here was

one o pinion in support of both o rders

... .

Response to Rule, 2/15/23, at 2 (capitalization modified)

. T his Court

discharged the RTSC on February 22, 2023. Accordingly, we consider

Appellants’ claims

.

Appellant s 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
atten ding 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 Auct ioneer, voluntarily assumed a duty of care?J

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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

reasonabl e 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).J

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Preliminarily, we note Appellants ’ brief does not comply with Pa.R.A.P.

2119(a), which requires t he 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 d eemed pertinent.

Id. Appellants ’ a rgument headings do not correspond with Appellants’ issues

.

Nonetheless, we overlook th is 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 conditi on 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. A ppellants contend

,

“Dietrich voluntarily assumed a duty of care when she directed individuals toJ

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park off [the Dietrich] property without any considerati on 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 grant ed 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” (capita lization 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 utilizi ng 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.”)

.J

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Defendants argue the trial court properly applied this Court’s decision in

Newell

. Leiby Brief at 23

- 3 0 ; D ietrich 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 limit ed ability to

prevent.”) ; D ietrich 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

pre sently exists under Pennsylvania law or any duty that Appellants argue

should be cre ated 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 we st side of State Ro u te 309 , a four

- lane public highway

maintained by the Commonwealth. Id. Without permission of the landowner,

d ecedent parked his car on the property of DHL Machine Company (DHL)

,

located on the east side of Route 309 and across from Montana We st. Id.

D ecedent left Montana West at about 11:00 p.m. and attempt ed to cross

Route 309 to return to his vehicle ; an auto mobile struck and killed decedent

.

Id.J

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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 oth er side of Route

309 and of crossing R oute 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 f irst 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 82 6. The Newell Cou rt 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 MontanaJ

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West, [] Dietrich undertook the responsibility to direct parking and diverted

people to park adjacent to [the Dietrich] property.”)

. In support o f their claim

that Defendants assumed a duty, Appellants cite to the Restatement (Second)

of Torts §§ 323 4 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.

R ESTATEMENT (S ECOND ) OF T ORTS , § 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 pers on 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)J

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While Newell is not directly on point, it is persuasive. Applying Newell

,

the trial court explain ed :

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 r ecord 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).

U pon 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 dut y to Kistler; the

Restatement sections Appellants cite are unavailing. S ee Feld v. Merriam

,

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(b) he has undertaken to perform a duty owed by the other to

the th ird person, or

(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

R ESTATEMENT (S ECOND ) OF T ORTS , § 324A.J

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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 discretio n in granting summary judgment.

Order s affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9 / 2 2 /2023