J-A11017-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WITOLD KISIEL IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

ZBIGNIEW WISZYNSKI

Appellee No. 1605 MDA 2016

Appeal from the Order Entered August 19, 2016

In the Court of Common Pleas of York County

Civil Division at No(s): 2014-SU-1415-54

BEFORE: SHOGAN, J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY MOULTON, J.: FILED AUGUST 14, 2017

Witold Kisiel appeals, pro se, from the August 19, 2016 order entered 

in the York County Court of Common Pleas granting summary judgment in 

favor of Zbigniew Wiszynski. We affirm.

This matter arises out of a collision between Kisiel and Wiszynski while 

skiing downhill on a mountain slope in Warrington Township, York County. 

On May 22, 2014, Kisiel filed a complaint against Wiszynski sounding in 

negligence. On June 30, 2016, Wiszynski filed a motion for summary 

judgment. On August 19, 2016, the trial court granted Wiszynski’s motion. 

Kisiel timely appealed. 1

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1

Preliminarily, we must discuss Kisiel’s failure to comply with multiple 

Pennsylvania Rules of Appellate Procedure. Kisiel’s brief fails to include a 

(Footnote Continued Next Page)
J-A11017-17

- 2 -

Kisiel raises the following issue2on appeal: Whether the trial court 

erred in granting summary judgment to Wiszynski?

Our scope and standard of review when reviewing a grant of summary 

judgment are well-settled: 

[O]ur scope of review is plenary, and our standard of 

review is the same as that applied by the trial court. Our 

Supreme Court has stated the applicable standard of 

(Footnote Continued) _______________________

statement of jurisdiction, the order in question, a statement of the scope 

and standard of review, a statement of the questions involved, or a 

summary of the argument. See Pa.R.A.P. 2111, 2114, 2115 2116, 2117, 

and 2118. Kisiel’s brief contains very little citation to relevant authority as 

well as inadequate reference to matters in the record and fails to show 

where in the record he preserved his issues for appeal. See Pa.R.A.P. 

2119(b), (c), and (e). 

“Although Pennsylvania courts endeavor to be fair to pro se litigants in 

light of the challenges they face conforming to practices with which 

attorneys are far more familiar, [we] nonetheless long have recognized that 

we must demand that pro se litigants comply substantially with our rules of 

procedure.” Commonwealth v. Spuck, 86 A.3d 870, 874 (Pa.Super. 2014) 

(internal citation omitted). Further, “‘[t]his Court will not act as counsel’ for 

an appellant who has not substantially complied with our rules.” Id.

(quoting Bombar v. W. Am. Ins. Co., 932 A.2d 78, 93 (Pa.Super. 2007)). 

Based on Kisiel’s failure to adhere to the Rules of Appellate Procedure, this 

Court has the right to quash or dismiss his appeal pursuant to Rule 

2101. See Pa.R.A.P. 2101 (noting that parties appearing before this Court 

“shall conform in all material respects with the requirements of these rules 

as nearly as the circumstances of the particular case will admit . . . and, if 

the defects are in the brief or reproduced record of the appellant and are 

substantial,” we may quash or dismiss the appeal). However, “in the 

interest of justice we address the arguments that can reasonably be 

discerned from this defective brief.” Commonwealth v. Lyons, 833 A.2d 

245, 252 (Pa.Super. 2003).

2 Although Kisiel does not include a statement of questions involved in 

his brief, we are able to discern his sole issue.
J-A11017-17

- 3 -

review as follows: [A]n appellate court may reverse the 

entry of a summary judgment only where it finds that the 

lower court erred in concluding that the matter presented 

no genuine issue as to any material fact and that it is clear 

that the moving party was entitled to a judgment as a 

matter of law. In making this assessment, 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. 

As our inquiry involves solely questions of law, our review 

is de novo. 

Thus, our responsibility as an appellate court is to 

determine whether the record either establishes that the 

material facts are undisputed or contains insufficient 

evidence of facts to make out a prima facie cause of 

action, such that there is no issue to be decided by the 

fact-finder. If there is evidence that would allow a factfinder to render a verdict in favor of the non-moving party, 

then summary judgment should be denied.

Reinoso v. Heritage Warminster SPE LLC, 108 A.3d 80, 84 (Pa.Super.) 

(quoting Mull v. Ickes, 994 A.2d 1137, 1139–40 (Pa.Super. 2010)), app. 

denied, 117 A.3d 298 (Pa. 2015). 

This case involves the Pennsylvania Skier’s Responsibility Act, which 

provides in relevant part:

(c) DOWNHILL SKIING.—

(1) The General Assembly finds that the sport 

of downhill skiing is practiced by a large 

number of citizens of this Commonwealth and 

also attracts to this Commonwealth large 

numbers of nonresidents significantly 

contributing to the economy of this

Commonwealth. It is recognized that as in 

some other sports, there are inherent risks in 

the sport of downhill skiing.

(2) The doctrine of voluntary assumption of 

risk as it applies to downhill skiing injuries and 
J-A11017-17

- 4 -

damages is not modified by subsections (a) 

and (a.1).

42 Pa.C.S. § 7102(c). In Bell v. Dean, 5 A.3d 268 (Pa.Super. 2010), this 

Court explained that although the doctrine of comparative negligence3 has 

largely superseded the common law doctrine of assumption of the risk, “the 

legislature specifically retained the doctrine of assumption of the risk as a 

defense with respect to the sport of downhill skiing.” Id. at 268. Where the 

defense of assumption of the risk applies, the “defendant is said to owe no 

duty of care to [the] plaintiff, and [the] plaintiff’s negligence cause of action 

must fail. [The] [p]laintiff cannot prove [the] defendant’s negligence 

without first proving [that the] defendant owed him a duty of care.” Id. at 

269. We concluded that the Skier’s Responsibility Act “and the ‘no duty’ 

common law doctrine of assumption of the risk, which it preserves, . . . 

apply equally as a potential bar to negligence actions between patrons and 

ski resorts and between two or more patrons of a ski resort.” Id.

In Bell, we reiterated our Supreme Court’s test for determining 

whether summary judgment is appropriate in an action for injuries sustained 

while skiing:

____________________________________________

3 Generally, in a negligence action, a plaintiff’s own negligence will not 

bar recovery as long as the plaintiff’s negligence is not greater than that 

attributed to the defendant; rather, damages are diminished in proportion to 

the amount of negligence attributable to the plaintiff. 42 Pa.C.S. § 7102(a). 

This framework is known as comparative negligence.
J-A11017-17

- 5 -

First, this Court must determine whether [Appellant] 

was engaged in the sport of downhill skiing at the time of 

[his] injury. If that answer is affirmative, we must then 

determine whether the risk ... is one of the “inherent risks” 

of downhill skiing, which [Appellant] must be deemed to 

have assumed under the Act. If so, then summary 

judgment was appropriate because, as a matter of law, 

[Appellant] cannot recover for [his] injuries.

Id. at 269-70 (quoting Hughes v. Seven Springs Farm, Inc., 762 A.2d 

339, 344 (Pa. 2000)). The “risks inherent to the sport of downhill skiing 

[are] those that are common, frequent, and expected[,]” including the risk 

of colliding with another skier. Id. at 270 (quotation omitted).

Kisiel avers that, on the date of the collision, he and Wiszynski had 

agreed on which path to follow down the ski slope. Wiszynski then stated 

that he would follow Kisiel. The pair proceeded down the hill. At some point 

thereafter, Wiszynski appeared to lose control. Kisiel claims that despite 

having time to avoid hitting him, Wiszynski collided with Kisiel. 

Kisiel contends that the “risk of being hit from behind . . . after verbal 

agreement by the two skiers to follow one another” is not an inherent risk of 

downhill skiing as contemplated by the Skier’s Responsibility Act. Kisiel’s Br. 

at 1. Kisiel attempts to distinguish this matter from prior cases involving the 

Skier’s Responsibility Act, arguing that they involved parties who “did not 

know each other and did not have any agreement between them that the 

one will follow the other.” Id. at 2. He argues that “the risk to be hit from 

the back by an unknown skier is much greater than to be hit by an 

acquaintance skier who just told you that he will follow you.” Id. at 3.
J-A11017-17

- 6 -

Kisiel’s attempt to distinguish Bell is unconvincing. As we stated in 

Bell:

[O]ur Supreme Court has specifically accounted for the 

exact risk of harm [the appellant]’s claim arises from and 

categorized this risk – the risk of colliding with another 

skier or snowboarder – as a risk of downhill skiing that is 

common, frequent, expected and, therefore, inherent to 

the sport of downhill skiing.

5 A.3d at 273. Thus, by engaging in downhill skiing, Kisiel has, by law, 

assumed the risk of collision, and Wiszynski owed no duty to protect Kisiel. 

Id. Neither the legislature nor our jurisprudence recognizes a distinction 

where the parties know each other or have an agreement regarding their 

skiing. Therefore, because there were no genuine issues of material fact and 

Wiszynski was entitled to judgment as a matter of law, the trial court 

properly granted Wiszynski’s motion for summary judgment.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/14/2017