J-S76032-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ANTOINETTE BROWN IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

KINSER B604, LLC

Appellee

 v.

ALLEN VERNAL AND EDWANDA 

SHEPHERD

 Appellee

No. 1633 EDA 2016

 

Appeal from the Order Entered April 27, 2016

In the Court of Common Pleas of Northampton County 

Civil Division at No(s): No. CV-2014-9136

BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 21, 2016

Appellant, Antoinette Brown (“Ms. Brown”), appeals from the April 27, 

2016, order granting summary judgment in favor of Appellees Allen Vernal1

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 As the trial court noted, “Vernal Allen” has been misidentified in pleadings, 

as well as the caption, as “Allen Vernal.” For the sake of consistency, we 

shall refer to this Appellee as “Allen Vernal.” 
J-S76032-16

- 2 -

and Edwanda Shepherd (“Mr. Vernal” and “Ms. Shepherd,” respectively).2 

After a careful review, we affirm. 

The relevant facts and procedural history are as follows: On 

September 25, 2014, Ms. Brown filed a complaint sounding in negligence 

against Kinser, the owner of a single family row home located at 604 Carlton 

Street, in Bethlehem, PA. As the basis for her claims, Ms. Brown alleged 

that, on February 17, 2014, she was at the property as an invitee for a 

scheduled hair appointment and could access the salon only by climbing the 

stairs leading from the sidewalk of the property to the front door of the 

property. Ms. Brown alleged that at some time prior to her appointment 

there had been precipitation in the form of snow, rain, or freezing rain; 

however, the precipitation had stopped prior to her arrival at the property. 

She averred there had been no snow or ice removal performed on the 

property and, as a result thereof, the sidewalk leading to the property, as 

well as the steps leading to the front door, were covered in snow and ice. 

Ms. Brown indicated that she slipped and fell off the steps, thereby receiving 

substantial injuries, including damage to her legs necessitating surgery and 

____________________________________________

2

In its April 27, 2016, order, the trial court also granted summary judgment 

in favor of Kinser B604, LLC (“Kinser”). However, in her notice of appeal, 

Ms. Brown indicated she was appealing the the entry of summary judgment 

in favor of Mr. Vernal and Ms. Shepherd only. Moreover, Ms. Brown has 

developed no argument on appeal pertaining to Kinser. Consequently, we 

affirm the entry of summary judgment in favor of Kinser on this basis.
J-S76032-16

- 3 -

resulting in permanent disfigurement and loss of mobility. Accordingly, she 

sought damages for her pain and suffering, as well as lost wages. 

Kinser filed an answer with new matter, as well as a joinder complaint 

to add as defendants Mr. Vernal and Ms. Shepherd, who were the tenants of 

the property.3 Therein, Kinser presented claims of indemnification and/or 

contribution, and additionally averred Mr. Vernal and Ms. Shepherd were 

solely liable to Ms. Brown. Ms. Brown filed an answer to Kinser’s new 

matter, and Mr. Vernal and Ms. Shepherd filed an answer to Kinser’s joinder 

complaint. 

On December 31, 2015, Ms. Brown filed a motion for partial summary 

judgment and a supporting brief. Ms. Brown averred there had been a 

blizzard for three days, which stopped on or before February 16, 2014, and 

no snow or ice removal had been performed prior to her arrival at the 

property on February 17, 2014. Accordingly, more than twenty-four hours 

had elapsed since the end of the blizzard and the day Ms. Brown slipped and 

fell. She indicated that, after having her hair done and upon leaving the 

____________________________________________

3 With regard to the right to join additional defendants, Pa.R.C.P. 2252 

provides:

[A]ny party may join as an additional defendant any person not a 

party to the action who may be [] solely liable on the underlying 

cause of action against the joining party, or. . .liable to or with the 

joining party on any cause of action arising out of the transaction 

or occurrence or series of transactions or occurrences upon which 

the underlying cause of action against the joining party is based.

Pa.R.C.P. 2252. 
J-S76032-16

- 4 -

property, she slipped and fell as she attempted to descend the exterior 

steps, which were covered with snow and ice. Ms. Brown noted that Kinser 

owned the property, and Mr. Vernal had leased the property; however, the 

lease expired on December 31, 2013. Ms. Brown indicated that, after 2012, 

no agent of Kinser had removed ice or snow from the subject property. 

In developing her motion, Ms. Brown relied upon Article 721.03 of the

City of Bethlehem’s ordinances4and Restatement (Second) of Torts §§ 355-

362, governing the liability of lessors to persons who enter upon the land. 

She reasoned that Kinser had responsibilities for snow and ice removal 

under the former rendering it liable for her injuries as a landlord maintaining 

control over a portion of the premises under the latter. She further reasoned 

that, in the absence of a written lease between Kinser and the occupants of 

the property apportioning responsibility for ice and snow removal, Kinser 

was responsible for the same and liable to Ms. Brown. Ms. Brown’s Motion 

for Partial Summary Judgment, filed 12/31/15.5 

Furthermore, in developing her motion, Ms. Brown relied upon Section 

107.7 of the International Property Maintenance Code, which was adopted 

____________________________________________

4 Article 721.03 provides, in relevant part, that “[n]o person owning, 

controlling or occupying any lot. . .shall allow or permit any. . . snow [or] 

ice. . .to remain upon the pavements, sidewalks, footways or rights-of-way 

in front of or adjoining such lot for a period longer than twenty-four hours 

after the rain, snow, [or sleet].” Id. Exhibit D. Moreover, Article 721.03 

indicates that one who neglects to remove such snow or ice within the 

specified time is guilty of maintaining a nuisance. Id.

5 The motion is not paginated. 
J-S76032-16

- 5 -

by the City of Bethlehem.6 Ms. Brown noted that Kinser had no agent living 

within 20 miles of Bethlehem, and thus, she suggested Kinser was in 

violation of Section 107.7 of the Code.7 

Kinser, as well as Mr. Vernal and Ms. Shepherd, filed responses to Ms. 

Brown’s partial motion for summary judgment. Moreover, on February 4, 

2016, Mr. Vernal and Ms. Shepherd filed a joint motion for summary 

judgment. Therein, pointing to Ms. Brown’s admissions made during her 

deposition testimony, they sought summary judgment on the basis of the 

assumption of risk doctrine. Specifically, Mr. Vernal and Ms. Shepherd 

indicated that Ms. Brown admitted the following uncontradicted facts during 

her deposition: 

On the way to [the subject property Ms. Brown] and her 

daughter noticed lots of snow on the ground that was frozen. 

For many parts of the walk they had to walk in the street 

because sidewalks were still full of snow and ice; and they had 

to climb over piles of snow to get from [the] street to the 

sidewalk.

When they got to [the subject property], there was a small 

pathway to the front steps with ice and snow on the steps. It 

____________________________________________

6 Section 107.7 provides “no certificate of occupancy shall be issued for a 

rental dwelling. . .unless there is provided to the inspection bureau the name 

and address of an agent residing within a 20 mile radius of the City of 

Bethlehem[.]” Ms. Brown’s Motion for Partial Summary Judgment, filed 

12/31/15. 

7 As the trial court aptly noted, in the conclusion of her motion for partial 

summary judgment, Ms. Brown summarily sought a finding of liability as to 

Kinser, Mr. Vernal, and Ms. Shepherd. However, consistent with her 

complaint, Ms. Brown’s arguments in her motion are directed to Kinser 

solely. 
J-S76032-16

- 6 -

was light out and [Ms.] Brown could see the snow and ice on the 

steps to [the subject property]. It was slippery. There was a 

banister on the right [s]ide of the steps and [Ms.] Brown sent 

her daughter up the steps ahead of her to make sure that she 

wouldn’t fall. They held onto the banister as they went up on 

the right side of the steps, which was a little clearer. 

After a while, [Ms.] Brown left [the subject property] to go 

to a store to get some supplies for her hair. She left her 

daughter [at the property] to play[.] It was still light out and 

she went out the same door[,] stayed on the side of the steps[,] 

and held onto the banister with her left-hand going down. The 

steps were still slippery. When she returned she came back up 

the steps again holding onto the banister and staying to the right 

because the steps were slippery.

[Ms.] Brown never told [Ms. Shepherd] that the steps were 

icy or slippery. She never asked her to put anything on the 

steps, or clear them to help. She never asked [Ms. Shepherd] if 

there was another exit.

Mr. Vernal and Ms. Shepherd’s Motion for Summary Judgment, filed 2/4/168

(citations to Ms. Brown’s deposition omitted). 

Further, they indicated Ms. Brown admitted that, after her 

appointment, she called a cab to retrieve her and her daughter, and the cab 

driver told Ms. Brown to leave her bags/purse by the door and he would 

carry them. Id. Ms. Brown admitted during the deposition that she was 

aware that it was icy and she had to be careful as she descended the stairs. 

Id. However, Ms. Brown chose to carry her purse and another bag, thus 

descending the stairs without holding onto the railing resulting in her 

slipping and falling. Id. Accordingly, Mr. Vernal and Ms. Shepherd claimed 

____________________________________________

8 The motion is not paginated. 
J-S76032-16

- 7 -

Ms. Brown was barred from recovery under the assumption of risk doctrine. 

On February 16, 2016, Kinser filed a motion for summary judgment 

averring it was entitled to judgment as it “is undisputed that [Kinser] was 

under no duty to act for the protection of [Ms. Brown] at the time of [her] 

alleged slip-and-fall at the single family rental property occupied by [Mr. 

Vernal and Ms. Shepherd].” Kinser’s Motion for Summary Judgment, filed 

2/16/16.9 To this end, Kinser argued it was a landlord out of possession 

who had no control over any portion of the premises.10 

Alternatively, echoing in large part the same portions of Ms. Brown’s 

uncontradicted deposition testimony as set forth in Mr. Vernal and Ms. 

Shepherd’s summary judgment motion, Kinser argued it was relieved of any 

duty to protect Ms. Brown under the assumption of risk doctrine. 

Ms. Brown filed an answer to Mr. Vernal and Ms. Shepherd’s joint 

motion for summary judgment. Therein, she admitted all factual allegations 

contained in Mr. Vernal and Ms. Shepherd’s motion for summary judgment. 

____________________________________________

9 The motion is not paginated. 

10 In support thereof, Kinser averred it was undisputed that, although the 

initial lease between Kinser and Mr. Vernal expired on December 31, 2012, 

the parties had executed a written lease extension, thus extending the term 

of the written lease to December 31, 2013. Moreover, it was undisputed 

that, prior to the expiration of the extension, the parties verbally agreed to 

extend the lease on a month-to-month basis indefinitely, and as of the filing 

of the motion, Mr. Vernal and Ms. Shepherd remained as tenants. Kinser 

noted the parties’ written lease agreements provided that the tenant was to 

“keep the property clean and safe,” and Kinser retained no control or 

possession over any portion of the premises, including the steps at issue. 
J-S76032-16

- 8 -

Her only denial was to the averment “[Ms. Brown] is barred from recovery 

by the doctrine of assumption of the risk[,]” since such averment constituted 

a conclusion of law to which no response was needed. Ms. Brown’s Answer, 

filed 3/7/16.11 Additionally, in her brief in opposition to Mr. Vernal and Ms. 

Shepherd’s motion for summary, Ms. Brown confined her argument to the 

issue of duty,12 i.e., which defendant (the property owner or the tenants) 

had the duty to ensure the steps were free from snow and ice. She averred 

that Kinser (the property owner) owed her the duty since there was no 

written lease in place at the time of the incident. 

Ms. Brown also filed an answer to Kinser’s motion for summary 

judgment. Therein, she admitted all of the factual allegations contained in 

Kinser’s motion as to the circumstances of her fall. 

By order and opinion entered on April 27, 2016, the trial court denied 

Ms. Brown’s motion for partial summary judgment, but granted Kinser’s, as 

well as Mr. Vernal and Ms. Shepherd’s, motions for summary judgment. Ms. 

Brown filed a timely notice of appeal specifically indicating that she was 

appealing from the order entered on April 27, 2016, “with respect[] to Allen 

Vernal and [Ed]wanda Shepherd, only.” The trial court directed Ms. Brown 

____________________________________________

11 The answer is not paginated. 

12 She also argued that the trial court should dismiss Mr. Vernal and Ms. 

Shepherd’s joint motion for summary judgment on the basis it was untimely 

filed. The trial court explained in its order/opinion that their motion was not 

untimely filed. See Trial Court Order/Opinion, filed 4/27/16, at 10. 
J-S76032-16

- 9 -

to file a Pa.R.A.P. 1925(b) statement, Ms. Brown timely complied, and the 

trial court filed a brief Pa.R.A.P. 1925(a) opinion relying on its previous 

order/opinion. 

With regard to the trial court’s entry of summary judgment in favor of 

Mr. Vernal and Ms. Shepherd, Ms. Brown presents the following issue on 

appeal:

Did the [trial court] err in not giving proper weight to the 

fact that on all previous occasions when [Ms. Brown] entered or 

exited the home it was daylight and on the occasion when [Ms. 

Brown] left the home and slipped and fell, it was nighttime and 

there was no porch light turned on which made conditions 

entirely different from any previous time [Ms. Brown] entered or 

exited the [subject premises]?

Ms. Browns’ Brief at 4. 

Ms. Brown alleges that the trial court erred in holding, as a matter of 

law, that she assumed the risk of her injury, thus relieving Mr. Vernal and 

Ms. Shepherd of a duty of care. In this regard, she avers that there are 

genuine issues of material fact. Specifically, she avers that she “testified 

that there was no snow and ice on the stairs during the day and that on all 

other occasions prior to her leaving the home that evening when she entered 

or existed the house it was daylight out.” Ms. Brown’s Brief at 11. She

notes that, had she slipped on the stairs during the daylight hours, she 

would not contest that she is barred from recovery under the assumption of 

risk doctrine. Id. at 12. However, Ms. Brown avers that she is not barred 

under the assumption of risk doctrine since:
J-S76032-16

- 10 -

[S]he came to the steps for the first time in the dark with no 

porch light lit when she exited the premises and was injured. 

This was the first time she had come to this risk and she was not 

previously aware of it nor was there any other option for egress.

Id. at 13. 

We note the following relevant legal precepts. 

[S]ummary judgment is appropriate 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. 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. 

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.

Truax v. Roulhac, 126 A.3d 991, 996 (Pa.Super. 2015) (en 

banc)(citations omitted).

An order granting summary judgment will be reversed if 

the trial court committed an error of law or abused its discretion. 

Id. The decision relating 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.” Id. at 997 (citation omitted). It is settled 

that, “If there is evidence that would allow a fact-finder to 

render a verdict in favor of the non-moving party, then summary 

judgment should be denied.” Id. (citation omitted).

Malanchuk v. Sivchuk, ___ A.3d ___, 2016 WL 4943061, *4 (Pa.Super. 

filed Sept. 15, 2016) (citations, quotation marks, and quotations omitted).

Moreover, under the rule announced in Borough of Nanty–Glo v. 

American Surety Co. of New York, 309 Pa. 236, 163 A. 523, 524 (1932), 

summary judgment is prohibited “where the moving party relies exclusively 
J-S76032-16

- 11 -

on oral testimony, either through testimonial affidavits or deposition 

testimony, to establish the absence of a genuine issue of material fact 

except where the moving party supports the motion by using admissions of 

the opposing party or the opposing party's own witness.” Lineberger v. 

Wyeth, 894 A.2d 141, 149 (Pa.Super. 2006) (quotation and quotation 

marks omitted) (emphasis in original). Additionally, it is well settled that 

arguments not presented to the trial court in opposition to summary 

judgment cannot be raised for the first time on appeal. McHugh v. Proctor 

v. Gamble, 875 A.2d 1148, 1151 (Pa.Super. 2005) (citations omitted). 

Here, we initially note that, in their motion for summary judgment, Mr. 

Vernal and Ms. Shepherd argued that Ms. Brown was barred from recovery 

under the doctrine of assumption of the risk. In her answer and supporting 

brief in opposition to Mr. Vernal and Ms. Shepherd’s joint motion for 

summary judgment, Ms. Brown admitted the facts as alleged by Mr. Vernal 

and Ms. Shepherd and did not address their assumption of risk argument. 

As the trial court notes in in its order/opinion, “[i]n her brief contra the 

instant motion, [Ms. Brown] wholly fails to address [Mr. Vernal and Ms. 

Shepherd’s] reliance on the assumption of the risk doctrine, electing instead 

to further her theory that. . .Kinser is liable for her injuries.” Trial Court 

Order/Opinion, filed 4/27/16, at 11. 

In the case sub judice, Ms. Brown has alleged, for the first time on 

appeal, that there is a genuine issue of material fact, i.e., that there was no 
J-S76032-16

- 12 -

snow or ice on the stairs during the daylight hours, and thus, Ms. Brown was 

not aware of the dangerous conditions when she slipped and fell in 

attempting to descend the stairs during the nighttime hours. As she did not 

raise this argument in opposition to Mr. Vernal and Ms. Shepherd’s motion 

for summary judgment, it is proper to affirm the trial court’s entry of 

summary judgment in favor of Mr. Vernal and Ms. Shepherd on this basis. 

See McHugh, supra.

Additionally, we agree with the trial court that there is no genuine 

issue of material fact, and Mr. Vernal and Ms. Shepherd are entitled to 

judgment as a matter of law under the assumption of risk doctrine. In this 

regard, we rely on the trial court’s well-reasoned order/opinion. See Trial 

Court Order/Opinion, filed 4/27/16, at 11-14. Further, we note that the 

basis of Ms. Brown’s appellate argument is that she testified during her 

deposition that there was no snow or ice on the stairs during the daylight 

hours, and thus, the danger was not known or obvious to her when she later 

descended the stairs in the dark without a porch light. See Ms. Brown’s 

Brief at 11-12. However, she is mistaken in her characterization of her 

deposition testimony. In fact, during her deposition, Ms. Brown repeatedly 

admitted that she saw thick ice on the stairs when she initially arrived at the 

property, as well as when she returned to the property after buying supplies. 

Ms. Brown’s Deposition testimony, dated 10/14/15, at 36-39, 45. Ms. 

Brown testified that, when she slipped and fell down the stairs, “I wasn’t 
J-S76032-16

- 13 -

rushing. I wasn’t—no, I wouldn’t say I was rushing because I knew it [sic] 

was ice, so I had to be careful.” Id. at 57. Further, when asked if she 

knew the steps were covered in ice when she descended and fell, Ms. Brown 

replied, “Yes.” Id.

For all of the aforementioned reasons, we affirm the trial court’s April 

27, 2016, order entering summary judgment in favor of Kinser, Mr. Vernal, 

and Ms. Shepherd. We direct the parties to attach a copy of the trial court’s 

April 27, 2016, order/opinion in the event of further proceedings. 

Affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/21/2016
260a · 

N~ County. ~ .tho· basis h her ¢1alms, Plaintiff alleged that on or about February 11. 

2014,ao waa at tho subject property as an invitee. when~~ fell- upon let and snow that had not 

btcn xemoved by Defendant Kinser> 'thereby sustaining mjutles to her legs requhing attglcal 

.. 

. . 

This action comm.encod on s~ 25, 2(114, wich tho filing of• Complaint wherein 

Plaintiff Antoinotte Bl'OWll brought claims for negligence and fosa of wagoa apiDSt Defendant 

Kmsct B604,. U.C. aa 1he owner of a property located at '604 Culton Street in Bethlehem, 

2 

v; -i 

. : 

ALLEN VERNAL and WANDA SHEPHERD, :. · Addit.lon•lDefend1111s. 

ORDER QF CODRT 

A.ND NOW, this -,J) ~ of April, 2016. aim• COllBideration of the parties' 

te&peottvo~ons> it is hereby ORDIUlED and DIRIC'l'El> thaa: . 

1. Plaintlff.Amoinetto.Brown'a Motion for Partial Swnmaty JudgmentisDENlED; 

2. D•dmrt Kinser B604• ILC~sMononfor Summ.aey Jud~ntia GRANTED; a:11(1 

3. Additional De&Adanta Motion fot Summaty Iudgm«mt is GRANTED. 

The ?ationalo -for this Otdet is set fQrth more :fully bi the tbllowing St~ent of R.casom. 

• STATEMENT OFUASONS 

..... ' 

ClVIL DMSION i§ g r! 

~ §5. 

1,7\ 

»- ""'ti 

ANTOINETTE BROWN,- 

!£?•1 ;g 

~ 

t'l 

..... 

.PlaiotJff r··h 

.V, Ji. 

i rn 

. KINSERB604, LLC, . ~ 

~ o 

Dttondaat C·Of 48..CV·i014-91.i "' ij 

lN THE COURT OF COMMON PLIA.S OF NORTJUMPTQN COUNTY, 

lENNSYJ;tV AN.IA 

.: 

·I 

~ 

• 

Circulated 09/30/2016 10:20 AM
261.a 

. . 

2 Aft« thc TOll,vantpleadhijtalt olosed, but widin .uch dmc •• i,ct ti> unreasonably dlllay trial, qy JIRrtY ll'\IY 

movo for NllJDat1 j'1<fament·tn. wlto& or In part u a inatmt of~ (l) whenolier Iller& b 110 pnulnt Imo Qf any 

Jlltedal Act et • w e.11e<1oaearf olOtMnt « t. osuso of ac:don ar defeJ1So whw\ c0\114 llO o81ab118ked by addltf o118l 

dflcovwyorexpertrq,ort.or(2)Jg11M1h,()O~ofdbcoweyl!flevottolltomo&Q,luoludlng1hoprocluction 

ot oicpert reports, an tdvom p~ who wm bear th& bllr4tn of proof et trtal hta L'IIW w pro- evidence or r. 

2 

Summary j~t sems to oliminate the waste of tfmo and resouro~ of both litigants 

and ~e Cotut in• whete a. trial would l>e a.usoless formalif.).'. L{w y. B@Jm.et 567. A.2d 691, 

092 (Pi. Super. ~989). A.motion fbr summary judgment may only be grantod when Jt i! a~pa-ent 

from the entire .record. inolusive of the pleadings, depositions, af:tlcfavlf&, answers to interrogatories 

~ admiasiom on file, that there are no triable issues. of ~o.tial *ct in th& case and the movant 

· fs cnfltled to &UIIUllatf judgment u a :matter ~ law. P AltC.P. 1035.2. a A mat&ial !tot is one 

.. •. Subsequent t(l tho accomplishment of service, Defe;ndant Iinstr animered the Complaint 

on February 171 2015, at ~oh time Defmdant lins« also fil~ aJoinderCOmplaint agaltlst the 

. ' 

tenants oftM proporiy, Additional Domndants, V~al Allen and Bdw~a Shopherd.1 Additional 

DcfandantB answered 1h.o J'oJnder·Complaitrt on.Apll 9~ 2015. A status conterence was held on 

September 14, 2015 boforo the Honorable Mfahael J. Koury, at whfch time deadliw wero set fur· 

diacove11 and the flling <>f dfsp.ositive motfoms •. 

. Plaintififimely f.dcd a Motioil for Partial Summary 1udatMnt, and thoredwr, peiendant 

Kinser ud the Additlonal D*1dants £fled -~· ~wn Motion, foi· Summary Judgment TIR,so 

~Uers wero <kleignate~ io ibe undersigned via tlw Argument Coun list of March 22, 2016, at 

w3tlch timo argurncrt was held on Additiond l>e&ndan:ts' Motion for Summaty Judgment. The 

. xemainfng motions~ submitted on brief. AJl tmei, (3) motione are now ready for disposition. 

. Standard of Law 

... 

. . 

int&rventio11t ·pmmanent di81li=mellf, pe.1.tnan~t loss of sensation, Jhnited .mobility and loss of 

employment. Qommabtt. ffll4-l:2. 

. ~·.' 

/ .. 
262a· 

3 

fllentfal l> 1lio causo of a~on or deftmse which ht tjury trial W011ld require rho mues to be 1111binltt~ to a jwy. 

. J>J..R.Crl.P.1035.2. . . • 

·, 

I 

lli&inst. all Dcfendanta with reap~t to· ~ clafms against fhOl.'11, Howmr, in keeping with het 

Complaint. all of her argmncnt; are addressed to Detmdint Kinser. As tM b.asis of her moti~ 

Plmiff telies upon Bethlehffl1 ·Citf Or<linanco ... Article 721. Arlmlo 1733, § 107.7 of the 

. . 

. . 

Pltlintiff's Mot.ton for Partial Summary J'nqment as .Aaafmt Defendant Kf1iser 

lll4DefendantKfuer's.MMfontorS11mmaryJudP1ont 

. 

~ wrltt~ Plaintiffs. Mo~ ti .Pa1:tlal 8Ulll0lal1 Judgment seeks a ·finding of llabllity 

Discunfon 

· 1992). 

Manufacturjp,s Co •• 591 A.2d 106 {Pa. Super. ~?91); Summary j~ent ahoulcl only b& g1'80ted 

in those eases that aro free and clw. ftom doubt. lohnao,t1 v. Hani1, 615 A2d 771 (P.a; Super. 

parties aooldng to avoid th8 entry of BUl11DlatY judgmont ~them may not rest 

upon avem,.ems contained itt ihelr pleadings; t~Cll.'. they are 1-equlred to show, by 

dtpoeifions. answers to mterrogatorics, ••slooa or didAvfls that t.hore is a 

gonuinoi98UQ for trial. and 1he CC>llrt'inuat ~ eontrov«tedfaot.tcontalned 1n the 

phacllngs ~ res~t i1B roviffi" to material filed in support of and In opposition 10 

a motion for summary judgment anci to those, allegations m pleadings that are 

llnoonhvvorted. Tho 00111.ft in ·iuling on a motion :fur aumma1y judpnent, must · · · 

. ignore oontmve.m,d faots comained in tho pleadings. 

OVerly v. I8ss,.SS4 A,2d 970. 912 (Pa. Super. 1989).. . 

μi.rosolviog i ~ judptentmoti~ lt Js not& prcvino~ of the Court to deeid& the 

facts, ·but only to ucorllin whether any issu~. of m.atcrl«l faot. cxlsta. Qodlewskl v, Pars 

• • • I • 

However, 

- - 

whk:h affects the ou~ of a cese, Be1Qb y. Uums ln(J. SGQJl'lt.Yb, 5~3 A.2d nss, 1286 

(Pa. Supe.i:. 19.91), 111 considering a ~otlon :tbr summm.y judgtnen1, tfie Onttt must revlew the 

1-e001'd in th& llgbt most favorable to 1he JW.n,,movant, resolv~ ~I doubts Jn their favor. rd. 

·I 

. l 

i 
·2s3a 

4. 

~ ~ 360 ftl1dm llabm a lessor who~ control of a port!on ot~leaeed promise& It an BCddcnt 

000\ll's ·011 the re.mined pordon otJaad tEd 1~ fessoe orot&er, lawfulzypmo110y th&eolllent of the lenlll' or kssoo 

co ~d10 use that land; f 361·~ liable a l.fflOrwhGllllintalnsecntrolofaportlan oflanddiltls t$Cea&ary 

to 11\e uso of 1ho Itlltd po.111on; and § 362 RXldcn llable a leuor who naaflgGntly lllllea or purport& •to rt1af<e ttpalta 

on tho ~4-whtlt ~ fa id1a ponenlon of his louee." RBSt'Ar.BMllNr(SECOND) OP TORTS, §§ 360·%2. 

. . Bethlehem City OrdmlU\oe." Artiole 721 is ~led '1Streets and Sidewalka.» MmnoMin 

ofLawinSypportolthe'M01ionfbrSμnmwyJudgmem~JMndmtKinserB~04.LLC.Bxhibit 

K. S\lbseotlon 72 i.03 af the ordinanoe is entitled ''Remove! of Snow. Ioe 01• Rubbish," aad it 

provi~s ar mllows: 

~o person owning. coo.t1:01llni o,.• occu:r>ying any lot adjoining~ ftontinaupon any 

of tho streets, aide-.lb, lanes, alleys, pavemonts, footways or nahts-of .. way In the 

City shall allow ot peimit any mud, sand:, gtavet leaves. stiow, iw or !Ubbfsh of 

M'J sort ot desaripdon t<>" bo <X" remain upon the ptrl~ idewalks, footweys or 

rJ&bts-of~way Jn i:ont of"ot e4folnins suoh lot ~r a_p«iod longer than t.wenty·fuur 

hO\Jl'I at\:cr tho rain, MlOW, sleet or hall whioh is tbe tauae tMreofltas o1'118ed to fall 

or dlerfhe aamo has been depo*<f thtt"eon Jn aD1 i:namier. . . 

tif:c land bl .r"Plir" and fails to do so, and § 360 through § 362 1.ffldm ale.9Sor Hable w.der certain 

ciroumstancos Wht!lre·m, teta.ins co.ntrol of a portion of the land,3 

. . 

Seotion 3571'el1ders ltahle a lessor who <1ontmcts •ty a cavonant Jn ~loase or otherwi~ to keep 

. . . 

.: 

1nterna1iona.l Propel'ly Mmnter:wiioo Oode, and. tho ~tatement (Second) of Toi'fl §§. 355-362, to 

arp that De&ndant had tesp011slbilities for snow and ice .removal under the former rendering it . 

. Jiablo wt Plaintiff'S mjut~ aB alandlor~ mainfaμiliig COJltl'Ol rJVOf ~.POttiOll_Of tbe prelllfSCS under 

thc1atter. · 

Soction 355 ~1he llostatement sets fi)1th the genwali~l~ that uccptas otherwise pi'OvfJ~ · 

"a les,ot of land is not aubject to liability to his lcaoo or others upon the land with the COD$ent of 

tho lessee or aublesaeo for phfsiolll harm caused by any dan,er~ oomiltion wbic.h comes into 

. . . 

oxistence after tne lessee hll8 taken pussesslon." RBs!A 'raMBNr (S!CONt>) OF TORTS §· 355 (i965). 

'fho exeq,tion3 to that general 1'1le are sot forth ac §§ 351 and 360 to 362 of the Re&atement 
264a 

5 

. . 

City ofBetblel=n, autho.clied m ac~ept service of proco,s on t,plf <I the title ownel' or operm 

of said d.~Wng:" Plaintiff's Motimi for Partial ~wnmazy Jlldsmmt Under· Pa,R.c.e 1035.2, 

Exhibit F. Plaintlft's rclianco OD. this Codo aeotton a,iJpeara limited to pointing out that at the time 

· Defimdtnt purchased tne subject prop~, it did not have an agent ~ding withln twenty (20) 

· miles of tho Qty ~uoquited by§ 101.1. rtobJdffs MotlQn 1br Partial Sumnw.'Y Juclamm Undet 

Pa,ltCP. 103~.2, Blhibfts A, F. Whilo Plaintiff appears to auggesttltai s~:tanur& would render 

. . Corti&ate of Oocupancy alwl be issued for any rental dwelling •.• tmle9 aien, irpriwidcd.tothe 

. . . 

Jnspeotion Bureau 1bo name and addreBS of an agent resJding wi1hin a twottty·nulo radi~s of the 

. . 

bet.ween ~~ant KJnscr and tho AdditiOJlal O,!®dants apportionills reaponsiblIUy fur ice and 

8110W removal, DefmdantXinser was responsible for tho aa~e1U1d« City of Bethlehem Orcllnanoo 

Artiole 721, and is strlcdy Uablo to Plaintiff tbereundor. 

Finally, Plabl.ti~ eitea to Artiole 1'133, § 107.7 -0ftho ~ematlonalProperty Main~noeCodo as adopwd by tb8 City ·of Be1hl~ ontitled "Absentee L!Qldkrit provides that n[,n]o 

-i 

. . 

Any person owning, controlling and/or pJowm, an off street parking lot ma. • 

sJdewa1k andlor any of!ierprop&ity adjoinillg or 13:onting-qpon uy &fJ:ett; sidewalk, · . 

I~ alley, pav«nMt, footwq _or right-of .. way bi the C!ty who plow, or oau• w 

pJaco SJlbW, mud, san4, gtiavel, tca.vos or rubbish of any iatt or de.rrtlptkm ~to the 

streot,, stdowalk. WI.~ alley, pav<ment, footwa.y ot:rJgbt..of.way orrepos!uw mch 

mlfOrials ftom thti parfcm, lano to the traffic lane of a.street orolrtwayw.biohoauses 

uobsfruotion~theno.rmalflowofvehlon1at.ttafflc.shall~&guiltyofmalntaining 

~ nuisance and upon convfotion th•r ~ he punished aa provided in Seotion 

721,99. 

A1XY petson ownins, '! · controlling or oaoupying such Iat who ncgleo1S to remove the 

1llUd. sand, gravel, leaves, S110W, ice or rubbish of any 80lt or desotlptfofi from the 

pavement, aldo-walb, tootwaya or tlghfs-of~way in ftont of or a4ioloJng his lot 

withhl the timf s~eoified In this se~tlon, shall be gq!lty ~ inafn!afnlng a nuisance, 

. and upon oonviolion sball be punish.ad as p.tovided in Section 721.99, 
265a 

6 

. . 

prlndples aside> Def.&ndant K.inaei· oan bo held Hablo to Plaintiff pursuant to local ordinanoe. 

· In order to establi.sh. that ono ·is a ludlotd out of pos8ffl.lon, the landlord must be able to 

demonstrate the exist'cnO&. of a lease with the wnant. 

The relatiol!Bblp of landlord. and tenant is always 01~1ed by a contract, either 

expren or implied, and it cannot exist wi~ut .such a (!0]1fl-acl: Tho contract which 

gives dse to the relattonabip of Js~ord and ~ ie known as- a !we. A lease 

record demonstratea that D11fon.dantl{i11ser is a landlord out of possess~on and ther~ not Hable 

to Plaintiff under -to11: law prlno4'Jes as ·a ntatter of faw; and second. 'Mtether> puttbig tort law 

·. b:t r~v.ing th~ ~es· motions, the Cow.t must fust consider Vihether the evidence of 

Defendant Ki.mier suggestt fhAt 1lwe ru.-e issues ofntatetial fact with re~d t.o whether the area 

~here Plaintlft'foll wu.oleet ~ coveted ht loo and snaw, and whether she £ell on the propeity or 

tho sldowa1k adjacent ther~o, whioh preclude en.n~ of swnmary ju~~fin Plaintiff's -~or: 

. . . 

Bethleb.rn City Ordinane~ .. Artiole 121. which, they assert, must be read 1n part mat,ria with 

. . 

Ardclo 173 9 of the Ordinance, entitled i'Regu!ated Rental Unit Oocupatioy. »4 In th~ alte.matl'l/4, 

. - . 

., afr1 Cwfioate of Ocoupanoy .inwfid, fhe Coui-t finds ~s arawne,nt whoJly il'ooevant to the 

disposition of the insmnt motio.u, which fB addioessed to whether or not Defendattt KJnsel' is liable 

to Plaimiff "1tdet tort law. atld/01· under local ordinance, 

ln response to Plalntitrs mot!on and in support of its own moilonfot awnmuy judgment. 

· DofendamKimor.mekes a fhteahold argument thf:t it ls a. landlord out of possession. and that es 

· sucho it has no 1i~ty to Plafntiff undel'. the ~atomcnt. Basod Ol1 the evidenoc add~d. during 

disoowry, Defendant further a.sserts that it cannot be held llablt to Plaintiff ~ven pursuan~ to 
266a 

1 

Who t&reapontlbk fbt snowati.d.lcu~J under the loat? 

Tholwlt. 

·. Wu lhor~ a-verbol agtM11elt betw~en }'OU l!ldMr. All~ ttteilho oxtenslon ran out? 

Y~. 

Ana ck) YoU tnombarrougbly what the tams o.t'that agreement wr:a? 

'f.\{.y rec~lleot.ll.lll would b~ h6 wanted co stay ill tM property, rttlt wuuld contlnu= o it it 

lilwabouttno rostoftho written loase, was it~urwu.toretmdlng lbatthotfflus would~ tn p/aee1 

Yoe, 

f Q: 

. A:: 

... 

Q: 

k 

... 

Q: 

A: 

. ,. 

Qi 

Ar 

writtffl loaso or lease e~cm, paying~o ~e amo1U1t of rent IO Defendant?11 amoothly basis, 

pursuant to a verbal agi~ent to nmain in an ongoing J.at?.dlord·tenant relftfionship for ·~ 

inde&i~petlod.Ig.at_22-2S;26-29;Memor,ndumofLawinSYP]ortoftheMotiQA(W~DmlNY 

J11dgmemof PQforuf!nt\Kii)serB§04. LLC, Bx:ln'bl:tH 1¢43--44. On thosefaots, the Courtflnds the 

record sufflolont to estal,lish that Def~t wa., a Ja:ndlotd out of possession at the time of the 

aeaidentJ)Ul.'Suant to an effeetlvc ow tease that adopted 1ho temts of th~ p~vl~s written ieeso:' 

.. 

. , 

. . 

. - 

·t 

_, mnbr~ any agreomcnt, whether expl'&BB or implied, wbioh gl~ tift to CM 

~lat!onship of landlo1:d and 'tenant. A. lease agreement will only bo itnplied when 

the oifflnnlstllnoes sftow ~t the latidlo:m-tenant rela1ioDship was contemplatod by 

· all patties OQnCemed. A lea~ aai:eement may be in wrltfngor parol ••• 

8A SUUM, PA. .TuR. 2D PROPBRTY § 26a (Aprl12016). 

In the in8tant osse, Dofendant and Additional Defendant executed a wdtt~ .lease for the 

' . 

~ectpl'f.misel ~u January 4. 2012 for the period through December 31, 2012. MemQtandum of 

Law in gort o(~ Moifon for S:urmnmY~t Qf~ur. I(jnsat B6Q4. ij,~ B)Chibit 

D. Thereu~, the fentntleasod ~ enth'e premises~ and wasrespoll91ble for .mping it clean and 

sate. Id. The lease tcrmina1ed at it, etld, date unlesa ext«lded fn \vrldng. Mi Th& parties executed a 

Ieaso extension thtoushDeoembm; 31, 2013. Memomncmm ofLawfnBtn>JQrt QflheMotion fOJ.' 

BWPVY Judament ofDsfimdtmt Kins~ B@t LLQ. Exhibit o atio-21. SubseqDtiy, and at 

~ time of.tho accidfflti Additional Dbl&ldantB continued to reside at the property without a 

I 
267a 

BriofiP.iMR!M10Pla!nttff)M9tlgnfl>rPartiaJ.8ummmyJμife:m,at,BxhlbitAat20,43·4S. 

8 

Based o~ the determination that De&ndant iB a landlotli out of posSA1ssion, tho Court 

co'neludes ~at Ddcndant cannot be held liable to Plaintitf l)ll1'$d to pl'l~1ciples of tort _law. 

'However, fn order te resolve tlae p.resentmotions, fhe Court must also oonsfder whether Defemant 

is Ilable to Plaintiff under Jooid ordinanco. In this regard, Plaintltt 1'0lies on Article 721 af the 

· Bethlehem City Ordinance. which teqtdros that~ ~owilmg, controll!Qg ot ooeupylng.iny lot . 

adjomJng ~ ftontfog upon any of the stree~ .. ·sfdowalks, lanes1 alleyi,, pavemenw. footways or 

rlsh•of-way in tho City , •• [andJ [aJny person owning, conft'Olling and/01· plowing an oft'stl'CCt 

parldng lot ~~, a sidewalk andfor ·any othet ,Pl'Ol)er(y aclj(,.ining or frontfag upon any street, · 

· sidewall(> lftllB, alloy, pavement.. footwty or rlght-of"way in the City" shall remove snow and. ice 

f.tem sue-Ji. mu witbfn twent,~fo\11' (24) hows of woather event that cause, die ·&81Jle. 

"~ fs a famUiar canon of cons~ of statu1es an4 otdi11ances, as ~ of conti·aotst · 

· w1U8, and other wiltten inab.'Umenfs, that pre.,umabl.v evoryword, aen~oe or proVlSion thei:efu is 

in~decl for somci putposo, and aocoixfingly must be given effect" Stei:Ungy. City of Pllil~delP}ua. 

106 A.2d 793. 794 (.Pa. 1954), 

Liko statutes, the-prlnwy oajectf ve of iilteipreflng otdinanoos ls 1o detmnine the 

intesit of dle lcgialativo body that ·enacted 1hc ordinance. Whe.te !he wol'ds in an 

ordinance are h :from all unhiguity, the !ettor of tho 01dfnimcc may not be 

dlsregirded ~ tho pretext ofplll'auina its spitlt. 1 Pa.C.S. § 1921; m alao 1 

Pa.c.s. §. 1903 (woids and. phtaaes in a statute· sllall bo COflBfiued in acc91\iance 

with their common and aooepted usage) , •• TrlbanaJs co.nfr01lfod with interpreting 

ll!defined term, in au ordinance at~ .auid.ed tc oonstme w01'& and pbrasea in a 

swibl&mmter> utilize thet1les otgramnw and apply their common and app,:oved 

lJ8age, attd give undefined tettns thelrplaio, ordirulry meaning. Dtocue of AltoonaJohn8town ,. Ztming HBOri71g Bd. of ]Jqrovgh of Slate College, &99 A..2d 399 (l>a. 

Conunw. 2006). · · · 

Adema Outdoor Admt, LP y. Zonina Haadu Ikle o{ SQm&fiol4 '.l'wl, 909 A.2d 469, 484 (Pa. 

Commw. 2006), 

J . 

! 
268a 

9 

. 

rosponslblo person must be dictated by legal principles. Thus) u hmJ where a landlord is wholly 

out of p~ssion, euob. that ho leases fflo cntm, p:remiscs. does not ~tain ~txol of any porti~ 

and the agreement between landlord and tenant oalls tor tho tenant to rmintain the P1'0p$.l'ty, the 

~- ls thel'Oaponabl~ party under the Jaw. Qittot'PbU9441PbJ11 x,fdm& Bvw CQ .. 145 A. 

106> 705·07 (Pa. 1929) C'If the owner is out of possessiott becauac of a lease or otho1:wiao. his 

liability ceasoa, and the 1enant or ocqier fa liable :fur mjmiea occurrlng to a third 9erson on tho 

premises, becauae of suoh failuro to-repak a!dBwalks , •• a~ in ,poaaossion is- for all practloal 

:m,bst;tcomld12tiPP&Y/Ql (t>~ lest.vilitedAprU 14, 2016) (omp.wis added). Tholdo.ntlty of the 

• • • • I 

· This dutinitlon, coupled with fflo us~ Qi the word "ort .s.iven its plain meaning, indicate 

that Defend811t cannot be Mid Hable to P1ainti.ff under fbb (:)rdinlnoe. for nothmg ln the ordinarioo 

or the de&itlon apportions liability to any p~· in~vldual: It more]y llolda tho 1'08p0nsi_ble 

p«soi; to a oertaw: aet of 81andards and oonse~uenoes. Thls 'mt.entlon is further evidenced by fbe 

\180 of tho word c•of' ln the rel~ent portion of the ordinance. Merdiun- Webster.com defines !he 

ww:d c•~ as "used as a funotian word ti) indicate .an t1lttma1Jv,.11 b,n,;/Lwww.meaiam.W I 

.. 

.. 

. . 

to Plain1ffl'uncler Al'fiolo 721, the C<>wtm\aSt ~amine the po.rtionof theordinano~ referenclng any 

'person o'WJlin& controillng.or OOCU}>yin1t' api'Opei'f1, pursuant to these princlplei of coustructio.n. 

-i:t,.e Ordhlaru» defines th~ woi'd "Person» u 

atJ:Y natural lndividual, fllDl, 1rUSt, partnership, asBOoiation, or c01poration, ln his 

or ltB ow.n capacity or an. adminiatratoi; cotlBorva~ exeou10r, trustee, reoo!ver,. 01· 

othor ~ntativc appo~ by a eeurt, Wlumever thB word c'l)erBOll" isusccl in 

any section of this ordlnuco J>l~,fl:,fng a. pe11alty or fine as appliod to 

partnorshlps cr associations~ the wo1:d shall includo the pa1'fnets (bofh aetieral and 

. limited) or memb~ thoroof and such word as aP,Rlied to oo~ona ahall · 

· Jnoludo the officers, agent,, or eirlployees tlicreof. who aft rt3P<Jnstble for any 

· vi<JlaJ/on qf said S80tlon. . · · . 

Bot:blohem City Ordinanoe Article 121.01 (en,phasb Etdded). 

In order to determine whether there Is any possibility that Oefcndanf could be Jief d liable ,; 

:· 

I 
2ssa 

10 

. . 

PlaWiff sets forth few fw, and no ·mgume.nt, Jn tm motion ~elf er in her supportmg brlc( with 

reapect to .Addltional Detendants • .Acoordhw', lt ia o1car that J>1aintift 1B not eotitled to aummary 

judgrrmt aa a matter. of law a, to AdditiOll.al Dofo?Jdants, and the Court IllOVes to dlspositlon af 

Additional Defendante' S\UM18l1 judgmentmotion, which is predloetedon th.6 asaumptlonofth& 

rl8k dootrlne. 

Howo~. before th&. Court can reaoh 'tho merlt8· of tho motioJJi it mu.gt first address 

. . . . . 

Plaimifrs contention that the motion must ~o dismf8aed M untimely,·lrt s11ppart thereof, Plaintiff 

r~les on a Status Conference Order 1Jiane(1 by the HODOrablo Michaol J. Koury on Septembei· 2, 

2015 and:filedonSopteoiber 14, 2015. whkb.inpertinentpai:~setforthadmlineofDeccmbor 

311 2015 for 1he filing of alt disposi~ve ~ons. AdditlOllal Defenaants• Motion was fded thlrtyfm (3S) days after1he deadline, on Fe~ruuy 4, 2016. &wevu, the tnBttu was timely praec.tped 

to the. Algtrnent Coort list rif'Maroh 22, 2016J and brlefk ~ 1hnely fifed in aor.ordance with 

N. C.R.C.P. N211(o). 

In reaolviig Plainti~a .objection> the Court ~ guidance in the law goveming tile 

submission of late poat.trial m9ti.ons. In th~ contsx~ a c~. in. the absence of an objection, may 

Pkf ntlfra Motion for Partial Summary JlNlgmeut as to Additional J)efendants 

awlAdditionalDefeadants' Motion for ParUalSlunmat,y Judgment 

. Although Plaintiff's Motion for Partial Summary Judg.tMi).t ls addressed to ~11 Defendants, 

~· 

purposes, ., tho o.wn~ of tho property.'?; 3 Wssr,s PA. PR.Ac. TORTS: L~ w AND ADVOCACY§ S.13 

{Updated Decembet 2015), 

In light of~ fol•in& it 1s apparemt that Defendant Kinser cannot be hetd liable to 

Plaintiff' as a matter ·of Iaw. Aoooidingly, Pefondant Kins~··s Moti0t1 tr Swrunery Judgment iiJ 

GRANTID, and Plamtlffla .Motion fo(ParUal Summary Judgbfflf !s DBN:IED as io Defondant 

I{inffl. 

/ .. 
270a 

11 

' 

. Additional Defendants' summaty judgment motion is p,.«iioltted on a tbnnulation of the. 

~&umption of tho risk doctdM ~ states that: 

[ w]ben an invitee enters business pmses, discovers dangerom cond!ti0l1$ which 

am both obvious and awidublo, and .q.0Vttthoie$8 proceedsvofanta:dly to fflCOW1ter 

them. the dootr.ine of aamnption of risk opexm merely aa a countor,patt to the 

poaee.,sot'1 laok of duty to proteot the invitee ft'OlX>. tho~ lisles, By valuntar!J:y . 

proccedln~ to encolDltlr a known or obvious danger. th& invitee i&-cleemed to have 

agreed to accept the tlsk tl1d to unde?take to took out for himso1£ n ls ·precisaly 

beca11Se the invite~ assumos tho rlsk of~uryftom ob'Vious and avoidable dangers 

that te possesa¢r owes the .invitee no duty to take measures to alleviate those dangeJ.'a. . . 

Montagi y, QmQf.994A.2d~, 635-36(Pa. Bupe,:. 2010). 

l'n furtheranoo ~t their th~ory that Plaintiff's claims ire. baned by the assumption of the 

~ Addltio.nal Defendanttl r~ om Plaintiff's ~·osition iestbnony.t 

. fn her bdof contra the m~ ll'lOtion, Plaintiff MW!ly fails to address . Additional. 

Doion4ffl111t zeliance on tho assumption ofthe risk dootrhlo, electing fmt~ to 1\mher her theory 

1bat Dehdant Kin• is liable ibr hor htjurlos. Without cltmg to OJl~ iota of legal authority, 

.. .. 

''deot to ov.orlook the procedural dofault ••• but if objections ai:e lodged ••. the trial couxt rna.y 

8til1, in ita dito,.~o.n, e1oct to entertain-~ motion 01•·dismiss the inotlon, but must first consider 

whether the· objecting party would be _p1-qiudioed" 11s a n1suit. ArohQs Condo. as,•11, y, Robinson, 

l~l A,3d 122, 129 (Pa. Commw. 2015). Applylng tho 8~ ana!Y&S to Additional Defendants' . 

lat&.aummuy judgment motion, fho QQurtnotcs that Plaintiff &us to aver any ~udi90 resulting 

thereft'Oi:n, and none Js apparem ft'Oll11he reeo1'd. Accordingly. tho Coll1t declines to dismiss the 

.niotlon: aii undmely, and it moves to a consideration of the ~r1ts. 

I 

,• 
271a 

12 

. . Rostatem~t, sup~ § 343. Thus, as is ~de oloar by sd:011 343A of the 

Rettatemettt. 

"[a] poasessor at land. is not Jiablo to ·his invitees for ph~sical harm 

caused to them by any aotivi1y or con(lition on the land whose · 

· danger is known or obvioos to thcmj unless the· pos.,es.,o1· should. 

antioq1tte the harm despite such knowledgo or obv.ious~ss.i. 

R.Mtomt. · supra1 . § 343.A. Seo Atkir,la 1', Urban Rsi,v,lop,nent Aulh. of 

· Pittsliurglft 489 Pa. 344, 3S2·53• ~14 A,2d 100, 104 (1980) f'the law of 

Ponn,ylvania does notimPQseliability lfit fsteasonableft>rthopo1Se8$orto believe 

that the danp!'01l8 condition woild b~ obvloua to ~ dlscov01'ad by his Jnv.ttce»); 

Pa/inst.Ill' v. MiaW J. Bohb, Ina., 439 Pa. 101, 106-01, 266 A.2d 478, 4801 483. 

(1970) (sam~)l RBpynealc v. Tarantino, 415 Pa. 9-2, 95, 202 A.2d IOS, 107 (1964) 

(s~); Kubacki v. Citluru Water Co., 403 Pa. 472. 170 A.2d 349 (1961) (same), 

A danger i1 deemed to be ~c~oua" when "both fho oondltfo11 Bild th6 rlsk are . 

appal'eot to and would t,o roooamzed by a reasonable man, in the position of the 

vlsltor, ex~slng normal pmieption. ~tellfgenoe, and judgment/' Resta~ent, 

(a) knows .or by .the exeroise of reasonablo oaro would discover the 

oond'~ and sJiould realize that it involve., IUl uniwonable rlsk of harm 

U> such .invitee. and 

{b) should expect that thoy will not discover or realize 1hc danger, or will 

:I.all to protect themselves against it, ~d 

{o) fails to exerolso reasoiiable cat~ t.o protect them againstihe dangei·. · 

... 

. , 

argument. wpra, and has rojo~ it. 

. Posse&sol'i. of hlzld owe· a duty· t-0 prowot iavitees &-Olli foreseoable harm. 

~ement. npra. §§ 341~ 343 & 343A. With respect to eooditbns on the land 

which are kriow.n to or discoverable by the posses,or. · tho possessor fs subjeot to 

liabiley onJy if he, . · . . 

Plafnttff userls thst whon 11thero is a carryover tenant 1iot under t ~tm11 lease this in 110 way 

t'eloases the prop01ty owner from liabilftr on the issue of snow·and foe re.tnoyal .•• The property 

ow.Mr is sedatly liable even if there is 11 tenant and Jn this -0ase there iB no written agreement that 

pas~ an obligation to the tenant fa any Wt\VLJ so liability squarely falls on tho shoukftts of tho 

. property ow.nu~'· Pl$.tiffs Btiel in ()Qposltion to Defendants. All@. Yemai and Bdwancm . 

Shgor41«i.Motion (qr fartial SJmWl!tY JwjgmQQt at 10. The Court lw already analyzed this .. 

! ' 
272a 

13 

fQ..atS1. 

When an inviteo ~ bue-, p,:emises, discovers danp·ous conditloflS wllich 

aro both'obvlous and a.voidib.lei arulnevcrtheleas ptoQe~s volul11811ly to encounter 

~ tho dootrin~ 9£ arsumptiOA of risk oi,orates morely as a e<>lUJteipart to the 

posse1so.r1s laok of cn,tyto proteottM. invitoo ftotn those t.1,lcs. Seo Halper 4 JWBB, 

'ThG Law of Torts. Vol. 2 §'. 21.1{1956); Pros,er, Law of Tprts ~ 68 at 44<"446 ( 4th 

ed. ·1971)~ Restatement, SUl)rils f 49oA oonmmt o & § 496C-~ts b, 4 & e.. 

By volu.nwily pioooeding to encounter a. known or obvlollS·danger, the invitee is 

deemed to ban agreed to accept the dsk aml to undemke to took out .fut• himself. 

Cartfflder Y, 11ttew;. 459 A.2d 120, 123-24~ 125 (Pa. 1983). 

By her dopoaition testimony, Plaintlff t~· tb.attmstops leading to tho s:idl'Walk infi:ont 

·of Additional ·Defy.ndantit tealdenoe wero covercid in foe» and there wa~ no cleaa: path io hiavei1e 

them. Memomndmnof~ in: Sm>Jort oftbo WQtionfor Sutmnarv Judgmento£pefend81>.t, R'.imcr 

~4. LLC, Bxhfbit Fat 36. Wh~n she arrived atth.e hom~ that da7, she used an adJacent baniste1· 

w 'traverse 'tho ,t~ps. Zd. at 38. During Mt visit, she made a trip to the store, onoe again using the 

adJacent banister to (ravetse tho steps on her way ·to thB stor~ ~ upo.n h~r ~m. Ji at 42-45. 

0n these 09(l8Bions, ft WU light oqt; and P!aintift could see the ice md 8110W on. tho steps and she 

noted 1hem to bo eHi,pecy. ~ HoWcMt, at dlo time of .her All, Plaintiff~ travet-sing the steps 

without holding onto tho banister, e-.en though thero wes nothiug proven(lng her ~rorn doing so> 

and ah.e know .6:om._ Iw: experiew:cs earlier that day 1hat tho smps we.ro ~d and slippery~ 

~ f 343A COllllllmlt b, Pora danger to be 11Jmow11,,, itm118t''llotonly be known 

. to exist, but ... also b~reoognized tbatitis d,mgM>us and tho probability and gm,lty 

of tho tbroat<med ham. must be Appreoiated.1• Id. Although tile question of whother 

a danger was known or obvl.ou.$ Ia uauel.ly a question of faot for the Jury, the 

quoetion TDJt1 be decided by the. court where reasonable mhu1s oould not differ as 

to the conoluslon. See RostatMtont, BUpra, § 328B comment, o and d. 
273a 

14 

J. 

llYTBI COURT: 

. . . 

undertaking a known and. avoldable risk). Aooordfng!y, Additional Defelldanra' Motio.u for 

Summary Judgane.nt fB hereby GRANTED, 

.. Upon 

.., consideration, the Coartnnds f.hatPlaintfffwas on notice of an open· and obvious 

ooncfilfoo, and &he could havo a,oided. the same artd p~ve.nred ~1' ltstm by holding the handrail 

acijacent to the stairs,just ai, she did 1hc prlor 1hree (3) timos that she tiivelled the stair• that ~e 

~ . . . 

day.~ Cqttendet Y, Fitteret, 469 A.2~ 120 {Pa.1983) (Plaintlffwa., owed no duty of o~ wh~ 

travmed a oleaiiy ioy patll into a buildhlg usiog available resources to mdy homlf on the wa•1t 

. but did not UBe tVallable. res<>urceB to balance herself upon oxftiDg tfle building. thereby