J-S18033-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARY TOSTO IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

GIANT FOOD STORES, LLC AND 

SHOOSTER PROPERTIES

Appellee No. 2049 EDA 2014

Appeal from the Order Entered June 17, 2014

In the Court of Common Pleas of Bucks County

Civil Division at No(s): 2010-11043

BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.: FILED APRIL 02, 2015

Appellant, Mary Tosto, appeals from the June 17, 2014 order, granting 

the motion for summary judgment filed by Appellees, Giant Food Stores, LLC 

and Shooster Properties1(collectively, Giant). After careful review, we 

affirm.

We summarize the relevant factual and procedural background of this 

case as follows. On February 8, 2009, Tosto alleges that she slipped and fell 

on ice that had formed in the parking lot of one of Giant’s stores in 

Bensalem, Pennsylvania. Trial Court Opinion, 9/24/14, at 1. Tosto alleges 

that she sustained serious injuries including a “left knee contusion, neck 

injury with radiculopathy, [] back injury with radiculopathy and a left 

____________________________________________

1 Shooster Properties has not filed an appellee brief in this matter.
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shoulder injury.”2 Tosto’s Complaint, 7/29/10, at ¶ 8. Tosto filed her 

complaint on July 29, 2010, alleging various grounds of negligence against 

Giant. Id. at ¶ 7. Giant filed its answer and new matter on May 25, 2011. 

On September 5, 2013, Giant filed a motion for summary judgment. Tosto 

filed her answer on October 7, 2013. On June 17, 2014, the trial court 

entered an order granting Giant’s motion for summary judgment. On July 3, 

2014, Tosto filed a timely notice of appeal.3

On appeal, Tosto raises the following issue for our review.

A lease agreement gave [Giant] an easement over 

the parking lot where [Tosto] fell on ice. In granting 

summary judgment to Giant, did the [trial] court 

commit an error of law or abuse its discretion by 

failing to allow the jury to decide whether Giant was 

a “possessor” of the area sufficient to subject Giant 

to liability, as required by Leichter v. E. Realty Co., 

516 A.2d 1247, 1249[,] 1250 ([Pa. Super.] 1986)[, 

appeal denied, Leichter v. Acme Mkts., Inc., 527 

A.2d 542 (Pa. 1987)]?

Tosto’s Brief at 3 (parallel citation omitted).

We begin by noting our well-settled standard of review.

“[O]ur standard of review of an order granting 

summary judgment requires us to determine 

whether the trial court abused its discretion or 

committed an error of law[,] and our scope of review 

____________________________________________

2 Tosto originally filed this action in Philadelphia County. However, the 

parties stipulated to transfer venue in this case to Bucks County. 

Stipulation, 9/21/10, at 1.

3 Tosto and the trial court have complied with Pennsylvania Rule of Appellate 

Procedure 1925.
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is plenary.” Petrina v. Allied Glove Corp., 46 A.3d 

795, 797–798 (Pa. Super. 2012) (citations omitted). 

“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.” Barnes v. 

Keller, 62 A.3d 382, 385 (Pa. Super. 2012), citing 

Erie Ins. Exch. v. Larrimore, 987 A.2d 732, 736 

(Pa. Super. 2009) (citation omitted). “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.” Id. The rule governing summary 

judgment has been codified at Pennsylvania Rule of 

Civil Procedure 1035.2, which states as follows.

Rule 1035.2. Motion

After the relevant pleadings are closed, but 

within such time as not to unreasonably delay 

trial, any party may move for summary 

judgment in whole or in part as a matter of law

(1) whenever there is no genuine issue 

of any material fact as to a necessary 

element of the cause of action or defense 

which could be established by additional 

discovery or expert report, or

(2) if, after the completion of discovery 

relevant to the motion, including the 

production of expert reports, an adverse 

party who will bear the burden of proof 

at trial has failed to produce evidence of 

facts essential to the cause of action or 

defense which in a jury trial would 

require the issues to be submitted to a 

jury.

Pa.R.C.P. 1035.2.

“Where the non-moving party bears the 

burden of proof on an issue, he may not merely rely 

on his pleadings or answers in order to survive 
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summary judgment.” Babb v. Ctr. Cmty. Hosp.,

47 A.3d 1214, 1223 (Pa. Super. 2012) (citations 

omitted), appeal denied, 65 A.3d 412 (Pa. 2013). 

Further, “failure of a non-moving party to adduce 

sufficient evidence on an issue essential to his case 

and on which he bears the burden of proof 

establishes the entitlement of the moving party to 

judgment as a matter of law.” Id.

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 fact-finder to render a 

verdict in favor of the non-moving party, then 

summary judgment should be denied.

Id., citing Reeser v. NGK N. Am., Inc., 14 A.3d 

896, 898 (Pa. Super. 2011), quoting Jones v. 

Levin, 940 A.2d 451, 452–454 (Pa. Super. 2007) 

(internal citations omitted).

Cadena v. Latch, 78 A.3d 636, 638-639 (Pa. Super. 2013).

Tosto’s argument on appeal is that Giant was a possessor of an 

easement in the parking lot where she slipped and fell. Tosto’s Brief at 9. 

Therefore, in her view, this shifted the duty of maintenance from the 

landlord to Giant as the tenant. Id. at 10. Giant counters that no such 

easement exists, and the trial court’s grant of summary judgment was 

proper. Giant’s Brief at 26.

Generally, the Restatement (Second) of Torts imposes a duty upon 

businesses that are open to the public to protect the public from harm while 

on their premises.
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§ 344 Business Premises Open to Public: Acts 

of Third Persons or Animals

A possessor of land who holds it open to the public 

for entry for his business purposes is subject to 

liability to members of the public while they are upon 

the land for such a purpose, for physical harm 

caused by the accidental, negligent, or intentionally 

harmful acts of third persons or animals, and by the 

failure of the possessor to exercise reasonable care 

to

(a) discover that such acts are being done or are 

likely to be done, or

(b) give a warning adequate to enable the visitors to 

avoid the harm, or otherwise to protect them against 

it.

RESTATEMENT (SECOND) OF TORTS § 344 (1965); see also Stanton v. 

Lackawanna Energy, Ltd., 886 A.2d 667, 677 (Pa. 2005) (citing to and 

applying Section 344). Likewise, the Restatement defines a possessor of 

land as follows.

§ 328E Possessor of Land Defined

A possessor of land is

(a) a person who is in occupation of the land with 

intent to control it or

(b) a person who has been in occupation of land with 

intent to control it, if no other person has 

subsequently occupied it with intent to control it, or

(c) a person who is entitled to immediate occupation 

of the land, if no other person is in possession under 

Clauses (a) and (b).
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RESTATEMENT (SECOND) OF TORTS § 328E (1965); see also Stanton, supra

(citing to and applying Section 328E).

Our Supreme Court has stated that when there is an area of land with 

multiple tenants, the duty of care to maintain the common areas of the land 

remains with the landlord.

In Pennsylvania, it has long been established 

as a principle of landlord-tenant law that where the 

owner of real estate leases various parts thereof to 

several tenants, but retains possession and control of 

the common passage-ways and aisles which are to 

be used by business invitees of the various tenants, 

the obligation of keeping the common aisles safe for 

the business invitees is imposed upon the landlord 

and not upon the tenants, in the absence of a 

contrary provision in the lease or leases[.]

Leary v. Lawrence Sales Corp., 275 A.2d 32, 34 (Pa. 1971) (citations 

omitted). Tosto correctly notes that in Stanton, our Supreme Court noted 

that when an easement is involved, “an owner of an easement is generally 

considered a possessor of property and is required to maintain its 

easement.” Stanton, supra at 677. “Accordingly, [our Supreme] Court 

has held that an easement holder is subject to the same liability as any 

other possessor of the premises.” Id.

The crux of Tosto’s argument is that our opinion in Leichter, which 

our Supreme Court cited to with approval in Stanton, requires that a jury 

decide the question as to whether Giant was a possessor of land within the 

meaning of Sections 328E and 344 of the Restatement. This Court 

summarized the facts of Leichter as follows.
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Plaintiff brought suit in a representative 

capacity as executrix of the estate of her 

deceased husband, who suffered a myocardial 

infarction as the result of being abducted from 

a parking lot owned by Eastern Realty 

Company. There is substantial agreement that 

on or about 8:00 p.m. on September 10, 1980, 

the Leichters drove to the Bala Cynwyd 

Shopping Center to shop at defendant Acme 

Supermarket. The shopping center consisted 

of fourteen stores, all tenants of Eastern Realty 

Company, Acme Markets, Inc. and the Lord & 

Taylor store. By agreement dated April [3, 

1956], the predecessor in title to Eastern 

Realty Incorporated had granted to the 

predecessor of Acme Markets, Incorporated an 

easement for ingress and egress over a portion 

of the land and the privilege for its business 

invitees to park in its parking lot. These same 

rights were provided for Eastern’s tenants in 

their leasing agreements.

...

After completion of the presentation of the 

evidence, the trial judge (1) ruled that the principal 

issue in the case-whether appellee Acme Markets, as 

the holder of an easement for ingress and egress 

with a privilege to park on the land, was a 

“possessor” of the land-was a matter of law to be 

determined by the judge, and then (2) concluded 

that Acme was a possessor of the land. The trial 

judge then submitted to the jury the issues of (1) 

whether there was a breach of the duty which a 

possessor owes to a business invitee, and if so, (2) 

whether the breach of that duty was the proximate 

cause of the appellant’s injuries. The jury returned 

with a verdict in favor of appellant and against 

appellees. The court en banc, however, ruled that 

the trial court had erred in treating the issue as a 

matter of law and concluded that the jury should 

determine whether appellee Acme Markets was 

a possessor of the pertinent land. As a result, 
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the court en banc granted the motion for a new trial 

that had been presented by Acme Markets.

Leichter, supra at 1249-1250 (emphasis added). This Court held that the 

issue of whether an easement holder is a possessor was a question for the 

jury to decide. This is because we recognized that not every easement 

holder will be found to be a possessor of land.

We hold that the question of whether the 

holder of an easement is a “possessor” is a question 

for the fact-finder. The expectation that this rather 

fundamental question would be quickly addressed 

and even resolved by abundant appellate authority 

has proven false. Whether a particular issue is to be 

confronted as a question of law and, therefore, is 

one to be decided by the court, or whether it is a 

question of fact to be resolved by a jury, is, once the 

study moves beyond the routine and obvious, a most 

troublesome inquiry upon which there has been a 

dearth of decision.

...

Surely, the device of special interrogatories 

can be every bit as helpful to a jury in resolving 

issues of a more traditional nature, such as whether 

or not an easement holder is a “possessor” of land. 

The determination of “possession” and the conclusion 

of “control” may only result from the presentation of 

facts and factors that reflect (1) that the party holds 

an easement, and (2) the manner in which the party 

exercises the prerogatives of that easement. The 

trial court will, of course, determine whether there 

has been such evidence presented as is sufficient to 

deny an application for a non-suit. If that application 

is refused, it remains for the jury to determine 

liability, but the jury must first decide whether the 

easement holder was in “possession”. Only then, if 

the easement holder is determined to have been in 

possession, will the jury proceed to consider, in 

order, the issues of whether the easement holder 
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breached the duties of an easement holder in 

possession, and, if so, whether that breach was the 

proximate cause of the injury sustained.

Id. at 1249-1250.

Tosto is correct that Leichter states that the question of whether an 

easement holder is a possessor of land is a jury question. However, the 

burden is on Tosto to establish as a first-order matter, that an easement 

existed. As noted above, it is presumed that the landlord of a shopping 

center has a duty to maintain the common use areas of the center unless 

there is a “contrary provision in the lease[.]” Leary, supra. Tosto argues 

that Section 202 of the lease is such a contrary provision. Tosto’s Brief at 9. 

It provides as follows.

Section 202 Common Areas. Together with the 

right to the nonexclusive use, in common with 

others, of all automobile parking areas, driveways, 

footways and other facilities at or upon the Shopping 

Center designed for common use, as shall be 

installed by Landlord as hereinafter provided, 

together with all the appurtenances, if any, now of 

hereafter belonging thereto.

Giant’s Answer and New Matter, 5/25/11, at Exhibit 4, at 1.

After careful review of the certified record, we conclude Tosto is not 

entitled to relief. The above-mentioned section of the lease between Giant 

and the landlord does not mention an easement being created, either 

explicitly or by implication. Tosto’s brief states in a conclusory fashion that 

“[s]ection 202 of the [l]ease gave Giant an easement over the parking areas 

of the shopping center, including the area where Ms. Tosto fell.” Tosto’s 
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Brief at 9. However, Tosto’s brief does not explain how Section 202 of the 

lease gives rise to even a legal question as to whether an easement existed 

in the first instance. Further, upon review of the lease in its entirety, we 

note that Section 1201 explicitly states that the landlord “shall keep and 

maintain [the common areas] in good repair and condition and reasonably 

free of snow, ice, refuse and other obstructions[.]” Giant’s Answer and New 

Matter, 5/25/11, at Exhibit 4, at 21. As Tosto cannot show that Giant was 

an easement holder, she is not entitled to Leichter’s benefit. Therefore, 

there was no issue of material fact for the jury to decide.

Based on the foregoing, we conclude the trial court did not abuse its 

discretion when it granted Giant’s motion for summary judgment. See 

Cadena, supra. Accordingly, the trial court’s June 17, 2014 order is 

affirmed.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/2/2015