J-A02028-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ESTATE OF CATHERINE GENOVESE

 Appellants 

 

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

RITE AID STORES

 Appellee

APPEAL OF: CRYSTAL J. GENOVESE, AS 

EXECUTRIX FOR THE ESTATE OF 

CATHERINE GENOVESE, GIUSEPPE 

GENOVESE, SR., HUSBAND OF 

CATHERINE GENOVESE AND GIUSEPPE 

GENOVESE, JR., FRANK GENOVESE AND 

CRYSTAL LIA, CHILDREN OF CATHERINE 

GENOVESE

No. 1830 EDA 2014

Appeal from the Order Entered May 12, 2014

In the Court of Common Pleas of Pike County

Civil Division at No.: 1220-2011 Civil

BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.

MEMORANDUM BY WECHT, J.: FILED APRIL 01, 2015

Crystal J. Genovese, as executrix for the estate of Catherine Genovese 

(“Mrs. Genovese”); Giuseppe Genovese, Sr., husband of Catherine 

Genovese; and Giuseppe Genovese, Jr., Frank Genovese and Crystal Lia, 

children of Catherine Genovese, appeal from the order entered May 12, 

2014, granting summary judgment in favor of Rite Aid Stores in this 

wrongful death action. We affirm.

The trial court set forth the following facts:
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The following facts from the incident on April 24, 2010 are 

undisputed: Mrs. Genovese dropped her husband off at Silver 

Lake Tavern on the afternoon of April 24 and then travelled to 

Lords Valley to shop. At some point during her shopping trip, 

Mrs. Genovese entered Rite Aid. The assistant manager, Richard 

Ramme, noticed Mrs. Genovese looked ill. Mr. Ramme 

approached Mrs. Genovese and asked if she needed anything. 

After initially saying “no”, Mrs. Genovese requested a glass of 

water, which Mr. Ramme provided. Mr. Ramme again asked if 

he could do anything and Mrs. Genovese stated she’d just like to 

sit. Mr. Ramme told Mrs. Genovese to “flag down” an employee 

if she needed anything and then went back to work. When Mr. 

Ramme returned to check on Mrs. Genovese, she had left the 

store. Thereafter, Mrs. Genovese returned to Silver Lake Tavern 

to meet her family. Mrs. Genovese informed her family that she 

did not feel well and Mr. Genovese decided to drive her to the 

hospital. Shortly after arriving at the hospital, Mrs. Genovese 

passed away from athero sclerotic cardiovascular disease.

Trial Court Opinion (“T.C.O.”), 7/28/2014, at 2.

On July 21, 2011, Mrs. Genovese’s estate, along with her husband and 

children (collectively, “Appellants”), filed a praecipe for writ of summons 

against Rite Aid Stores (“Rite Aid”). Thereafter, Appellants filed a two-count 

complaint alleging that Rite Aid Store #2702 negligently caused Mrs. 

Genovese’s death. On December 16, 2011, Rite Aid filed an answer with 

new matter, and on December 9, 2013, Rite Aid filed a motion for summary 

judgment. Oral arguments were held before the trial court on March 24, 

2014. On May 12, 2014, the trial court granted Rite Aid’s motion for 

summary judgment.

On June 10, 2014, Appellants timely appealed to the Superior Court. 

On June 30, 2014, they filed a concise statement of errors complained of on 
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appeal pursuant to Pa.R.A.P. 1925(b). On July 28, 2014, the trial court 

entered its opinion pursuant to Pa.R.A.P. 1925(a).

Appellants raise seven duplicative and overlapping questions for our 

review:

1. Did the [trial c]ourt commit an error of law by failing to 

recognize . . . Rite Aid owed Mrs. Genovese, as [a] business 

invitee who became ill and injured on its premises, a duty of 

care, pursuant to Restatement of Torts 2d, § 314(a)?

2. Did the [trial c]ourt commit an error of law by failing to 

follow Campbell v. Eitak, 893 A.2d 749 (Pa. Super. . . . 2006), 

which imposes a duty on businesses, such as []Rite Aid, to 

summon medical assistance for an ill or injured business invitees 

[sic] on its premises?

3. Did the [trial c]ourt commit reversible error by ignoring 

expert and circumstantial evidence read in [Appellants’] best 

light—of the fact that Richard Ramme saw Mrs. Genovese was 

severely ill, and therefore injured, and took it upon himself to 

assist Mrs. Genovese (due to the severity of her ill and injured 

condition), aided [Mrs. Genovese], and then left [Mrs. Genovese] 

alone (contrary to [Rite Aid’s] Safety Manual), and then returned 

to double-check on [Mrs. Genovese], at which point she was 

gone—which if accepted in the light most favorable to 

[]Appellants, demonstrates []Rite Aid assumed the duty of 

reasonable conduct and care to Mrs. Genovese?

4. Did the [trial c]ourt commit reversible error by making a 

factual determination inconsistent with the Summary Judgment 

standard that “the Trial Court must view the record in the light 

most favorable to the non-moving party and must resolve all 

doubts as to the existence of a genuine issue of material fact 

against the moving party” when the [trial c]ourt failed to 

recognize “reasonable minds would differ” with regard to the 

question of whether, under the circumstances, []Rite Aid 

breached its duty of care arising under either its Safety Manual 

or as it’s [sic] on the job training required, which it owed to Mrs. 

Genovese, as an injured/ill, business invitee on []Rite Aid’s 

premises?
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5. Did the [trial c]ourt commit an error of law by not ruling 

that OSHA or Labor and Industry regulation, legislative[ly] 

created, required []Rite Aid to properly train [sic] its personnel 

to handle illness or injury incidents, such as [Mrs.] Genovese’s 

incident on []Rite Aid’s premises?

6. Did the [trial c]ourt commit an error of law by not finding 

[]Rite Aid had a duty of care to require its employees to properly 

follow [sic] []Rite Aid’s Retail Safety Manuel [sic], and that []Rite 

Aid, therefore failed to train, educate, and/or enforce on its own 

personnel the need to follow its own Retail Safety Manual?

7. Did the [trial c]ourt commit an error of law by not finding 

[]Rite Aid had a duty of care to require its employees to properly 

follow [sic] []Rite Aid’s Safety Manual, and that []Rite Aid, 

therefore failed to train, educate, and/or enforce on its own 

personnel the need to follow its own Retail Safety Manual?

Appellants’ Brief at 4-6.

Our standard of review is well-settled:

This Court may reverse a trial court’s order granting or denying 

summary judgment only if there has been an error of law or an 

abuse of discretion. To the extent that we must resolve a 

question of law, we shall review the grant of summary judgment 

in the context of the entire record. The record includes all 

pleadings, as well as any depositions, answers to interrogatories, 

admissions, affidavits, and expert reports. We examine the 

record in a light most favorable to the non-moving party, and we 

resolve all doubts as to the existence of a genuine issue of 

material fact against the moving party. Summary judgment is 

proper only if the moving party’s right is clear and free from 

doubt.

Scungio Borst & Assocs. v. 410 Shurs Lane Devs., LLC, 106 A.3d 103, 

105 (Pa. Super. 2014) (citations and quotation marks omitted). “Failure of a 

non[-]moving party to adduce sufficient evidence on an issue essential to his 

case and on which it bears the burden of proof establishes the entitlement of 
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the moving party to judgment as a matter of law.” Thompson v. Ginkel, 

95 A.3d 900, 904 (Pa. Super. 2014).

In their first issue, Appellants contend that the trial court erred “by 

failing to recognize []Rite Aid owed Mrs. Genovese, as [a] business invitee 

who became ill and injured on its premises, a duty of care.” Appellants’ 

Brief at 15. We disagree.

Appellants seek to recover under the theory that, under the 

Restatement (Second) of Torts, Rite Aid was negligent in failing to provide 

additional aid to Mrs. Genovese:

To recover under a claim for negligence, the plaintiff must prove 

the following elements: that the defendant owed a duty of care

to the plaintiff, the defendant breached that duty, the breach 

resulted in injury to the plaintiff, and the plaintiff suffered an 

actual loss or damage. Whether a duty exists under a particular 

set of facts is a question of law. It has long been hornbook law 

that a duty arises only when one engages in conduct which 

foreseeably creates an unreasonable risk of harm to others.

The determination of whether a duty exists in a particular 

case involves the weighing of several discrete factors 

which include: (1) the relationship between the parties; 

(2) the social utility of the actor’s conduct; (3) the nature 

of the risk imposed and foreseeability of the harm 

incurred; (4) the consequences of imposing a duty upon 

the actor; and (5) the [over all] public interest in the 

proposed solution.

Montagazzi v. Crisci, 994 A.2d 626, 631 (Pa. Super. 2010) (citations and 

quotation marks omitted); see id. at 632-33 (“If it appeared that the 

deceased, by his own carelessness, contributed in any degree to the 

accident which caused the loss of his life, the defendants ought not to have 
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been held to answer for the consequences resulting from that accident.”) 

(citing Brown v. French, 104 Pa. 604 (Pa. 1883)). The Restatement 

(Second) of Torts sets for the relevant duty arising between a possessor of 

land and members of the public:

§ 314A Special Relations Giving Rise to Duty to Aid or 

Protect

(1) A common carrier is under a duty to its passengers to take 

reasonable action

(a) to protect them against unreasonable risk of 

physical harm, and

(b) to give them first aid after it knows or has reason 

to know that they are ill or injured, and to care for them 

until they can be cared for by others.

* * *

(3) A possessor of land who holds it open to the public is 

under a similar duty to members of the public who enter in 

response to his invitation.

Restatement (Second) of Torts § 314A(1), (3).

Here, Appellants contend that the court erred in “failing to recognize 

[that] Rite Aid owed Mrs. Genovese . . . a duty of care.” Appellants’ Brief at 

4. This is contradicted by the trial court, which in fact agreed that Mrs. 

Genovese was a business invitee under the Restatement (Second) of Torts. 

See Order, 5/15/2014, at 3 (“Here, there is no question Mrs. Genovese was 

a business invitee.”). Accordingly, the trial court did find that Rite Aid owed 

Mrs. Genovese a duty of care “to take reasonable action . . . to give [her] 

first aid” after it knew she was ill “and to care for [her] until [she could] be 
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cared for by others.” Restatement (Second) of Torts § 314A(1)(b); see 

also Order, 5/15/2014, at 3. Thus, the dispute revolves around whether 

Rite Aid took “reasonable action” pursuant to the Restatement in response to 

Mrs. Genovese’s illness, and whether that duty rose to the level alleged to 

be necessary by Appellants. Id.

It is undisputed that after speaking to Mrs. Genovese, store manager 

Ramme knew that Mrs. Genovese felt unwell. Ramme provided Mrs. 

Genovese with a glass of water and a seat, and told her to ask any employee 

if she required more assistance. When Ramme returned to check on Mrs. 

Genovese, she had left. We agree with the trial court that the care provided 

to Mrs. Genovese was reasonable as a matter of law. See Order, 

5/15/2014, at 4.

The record establishes that Mrs. Genovese received the assistance that 

she requested, and that she declined further help. Ramme and Rite Aid had 

no way of knowing that Mrs. Genovese’s condition was any more serious 

than indicated by the flu-like symptoms she appeared to have. 

Furthermore, Mrs. Genovese left of her own accord and drove to another 

location. Rite Aid in no way declined to render reasonable assistance or 

otherwise acted to prevent anyone from coming to Mrs. Genovese’s aid. 

Montagazzi, 994 A.2d at 632-33. We agree with the trial court that, as a 

matter of law, Rite Aid fulfilled its duty of care to Mrs. Genovese as a 

business invitee. See Order, 5/15/2014, at 4. Appellants’ first issue does 

not merit relief.
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In their second issue, Appellants contend that the trial court erred in 

failing to follow Campbell v. Eitak, 893 A.2d 749 (Pa. Super. 2006). 

Specifically, they contend that Rite Aid had a duty to summon medical 

assistance for Mrs. Genovese as a business invitee on the premises. 

Appellants’ Brief at 17. We disagree.

In Campbell, supra, a piece of food lodged in the plaintiff’s throat 

while he ate at the defendant’s restaurant. See Campbell, 893 A.2d at 

749. The plaintiff informed the restaurant that he was having difficulty 

breathing, and the restaurant owner advised him to drink some water. 

When the plaintiff told him that this had not made him feel better, the owner 

asked whether the plaintiff wished the restaurant to call 911. The restaurant 

then called 911, and the plaintiff was transported to a hospital where the 

food was removed from his throat; the plaintiff later underwent surgery to 

repair an esophageal tear. Id. at 749-50.

The plaintiff sued the defendant restaurant, alleging negligence 

because the restaurant did not have a procedure in place for responding to a 

choking emergency. The trial court granted the restaurant’s motion for 

summary judgment, finding that the restaurant discharged its duty by calling 

911. On review, we affirmed and, after reviewing decisions from other 

jurisdictions, concluded that “[i]n absence of any legislative pronouncement, 

we hold that the prompt summoning of medical assistance satisfies a 

restaurant’s duty to a patron who is choking.” Id. at 753.
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Campbell is factually inapposite, in that it is specifically limited to 

circumstances of “a restaurant’s duty to a patron who is choking.” Id. 

Here, Mrs. Genovese was not choking, nor did she proactively request the 

assistance provided by Ramme and Rite Aid. In fact, she initially declined 

Ramme’s offers of aid. Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 

278 (U.S. 1990) (recognizing “general liberty interest in refusing medical 

treatment”). Appellants are incorrect to assert that Campbell stands for the 

proposition that businesses have a duty “to summon medical assistance for 

an ill or injured business invitees [sic] on its premises[.]” Appellants’ Brief 

at 17. Campell merely held that, in the case of a man who choked at a 

restaurant, the restaurant fulfilled its duty to take reasonable action to 

provide first aid by summoning medical assistance. Campbell, 893 A.2d at 

753; see also Restatement (Second) of Torts at § 314A. This issue does 

not merit relief.

In their third issue, Appellants argue that, viewing the evidence in the 

light most favorable to Appellants as the non-moving party, the trial court 

erred in granting summary judgment because Rite Aid “assumed the duty of 

reasonable conduct and care to Mrs. Genovese[.]” Appellants’ Brief at 20. 

We disagree.

Appellants misstate Rite Aid’s duty owed to Mrs. Genovese. See id. 

As previously discussed, the trial court properly concluded that Rite Aid owed 

a duty of “reasonable action” to Mrs. Genovese as a business invitee 

pursuant to the Restatement. See Restatement (Second) of Torts § 314A. 
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Appellants argue that, because Ramme “took it upon himself to assist Mrs. 

Genovese,” Appellants’ Brief at 4, he performed negligently while 

undertaking to provide services to Mrs. Genovese pursuant to the 

Restatement (Second) of Torts at § 323. Section 323 provides:

§ 323 Negligent Performance of Undertaking to 

Render Services

One who undertakes, gratuitously or for consideration, to render 

services to another which he should recognize as necessary for 

the protection of the other’s person or things, is subject to 

liability to the other for physical harm resulting from his failure 

to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of 

such harm, or

(b) the harm is suffered because of the other’s reliance 

upon the undertaking.

Restatement (Second) of Torts § 323.

Viewing the record in the light most favorable to Appellants, it is 

undisputed that Mrs. Genovese refused any additional help offered by 

Ramme and the other employees of Rite Aid and that she left of her own 

volition. It cannot be said that Mrs. Genovese relied upon the employees’ 

assistance or that they increased her risk of harm. Any physical harm she 

suffered did not result from Ramme’s “failure to exercise reasonable care to 

perform his undertaking.” Restatement (Second) of Torts § 323. Cf. Baur 

v. Mesta Mach. Co., 168 A.2d 591, 599 (Pa. Super. 1961) (finding no 

workmen’s compensation liability where decedent complained of flu 
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symptoms at work and suffered fatal heart attack on his way home). This 

issue does not merit relief.

In their fourth through seventh issues, Appellants allege that Rite Aid 

breached its duty to Mrs. Genovese as set forth in its Retail Safety Manual, 

Rite Aid’s training policies, and “OSHA or Labor and Industry Regulation[s].” 

Appellants’ Brief at 5-6. We disagree.

Through the expert reports of John Shane, M.D. and Alan Nudelman, 

Appellants attempt to cast Rite Aid’s duty owed to Mrs. Genovese as a 

genuine issue of material fact that would preclude the award of summary 

judgment and require submission to a jury. Id. at 22, 24. It is wellsettled that whether a duty exists under a particular set of facts is a 

matter of law. See Charlie v. Erie Ins. Exch., 100 A.3d 244, 250 

(Pa. Super. 2014).

Appellants cannot overcome summary judgment by recasting the 

duty of care that Rite Aid owed to Mrs. Genovese. Appellants claim 

that a variety of regulations superseded the Restatement (Second) of 

Torts’ common-law duty owed toward a business invitee. See

Restatement (Second) of Torts § 323. Rite Aid and its employees fulfilled 

the standard of reasonable care toward Mrs. Genovese as a business 

invitee. 

Appellants’ suggested application of these regulations to the 

instant case lacks support in fact or in law. OSHA specifies the safety 

standards an employer owes its employees in the workplace. See, 
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e.g., Stephens v. Paris Cleaners, Inc., 885 A.2d 59, 68 (Pa. Super. 

2005). Appellants do not, and cannot, claim that Mrs. Genovese was 

an employee of Rite Aid when she fell ill. 

Appellants claim that Rite Aid’s safety manuals specify that 911 

should be called when a patron suffers injury. Nowhere does the 

manual so state; it only obligates employees to remain with injured 

persons. See Deposition Exh. 3, Retail Safety Manual, at 3 (“If a 

person becomes injured, stay with the injured person and reassure 

them until medical personnel arrive.”). Appellants conflate illness and 

injury. Even if illness was covered under Rite Aid’s employee safety 

manuals and training, the record shows that Mrs. Genovese denied the 

assistance that was offered to her. See Deposition of Richard Ramme, 

10/16/2012, at 46-47. Finally, while Appellants make a vague 

reference to “labor and industry regulation[s],” they fail to 

meaningfully develop this claim. See Pa.R.A.P. 2119(a), (b).

We agree with the trial court that imposing a duty upon a 

pharmacy to call 911 any time a patron appears to be ill would impose 

an unreasonable burden, and that, under the circumstances of this 

case, Rite Aid and its employees fulfilled their obligations to Mrs. 

Genovese as a business invitee as a matter of law. T.C.O. at 8. 

Accordingly, the trial court did not err in granting summary judgment 

in favor of Rite Aid, and no genuine issues of material fact remain that 

would warrant submission to a jury.
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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/1/2015