J

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

MARY TOSTO IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.
GIANT FOOD STORES, L LC 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 Properties 1 (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.J

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shoulder injury.” 2 Tosto’s Complaint, 7/29/10, at ¶ 8. T osto 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 g ave [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 t he 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 omit ted).
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 trans fer 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.J

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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 i s 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 n ecessary 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 w ill 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 bu rden of proof on an issue, he may not merely rely on his pleadings or answers in order to surviveJ

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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, “fail ure 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 appell ate 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 t here 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.J

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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 person s 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 ag ainst it.

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

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-

R ESTATEMENT (S ECOND ) OF T ORTS § 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

- t enant 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 keep ing 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, [ou r 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 , requi res 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.J

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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 l ot. 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 ap pellant 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,J

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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 h old 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 fa lse. 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 troub lesome 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 “posses sor” 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 ju ry 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 holderJ

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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 q uestion. 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 “ co ntrary 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 he reafter 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 doe s 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’sJ

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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

no te 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

discretio n 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