J-A24007-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ROBERT SHERRY

Appellant

v.

SHEETZ, INC.

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 528 WDA 2020

Appeal from the Order Entered April 2, 2020

In the Court of Common Pleas of Blair County Civil Division at No(s):

2016 GN 2647

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 18, 2020

Appellant, Robert Sherry, appeals from the trial court’s April 2, 2020

order granting summary judgment in favor of Appellee, Sheetz, Inc. We

affirm.

The trial court summarized the factual and procedural history of this

case as follows:

This civil action arises out of a physical assault that took place on

March 2, 2016[,] in the parking lot of the Sheetz Store located at

the intersection of 6th Avenue and 58th Street within Altoona, Blair

County, PA. This location is known as Sheetz “Store No. 7[.”]

[Appellant] was assaulted by Eric Hageder, who was involved in

extensive criminal activity [on] that date which began in Robinson,

PA[,] and ended after a 40[-]mile police chase in Huntingdon, PA.

Earlier on the date in question, Hageder had physically assaulted

his girlfriend at his girlfriend’s grandmother’s house. He then

went to a friend’s house and stole a car. He later robbed a man

at a convenience store in Indiana, PA[,] by beating him with a tire

iron and stealing his wallet and cigarettes. Hageder then drove

until he arrived at the Sheetz Store No. 7, whereupon he assaulted

[Appellant] in the parking lot and stole his truck. The subject

incident started at approximately 3:14 a.m.
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[On February 15, 2018, Appellant filed an amended complaint

against Sheetz, alleging that Sheetz was negligent, inter alia, “[i]n

failing to provide adequate security when there was a history of

violent crimes in the parking lot of the subject store,” and “[i]n

failing to provide adequate security given the subject store’s

location and the nature of the store’s business which included

money handling, an on-site ATM and public restrooms[.]” See

Amended Complaint, 2/15/18, at ¶¶ 24(s), (u).] On December 6,

2019, [Sheetz] filed a Motion for Summary Judgment and Brief in

Support. After being granted an extension of time, [Appellant]

filed a Response to [Sheetz’s] Motion for Summary Judgment and

Brief in Opposition to [Sheetz’s] Motion for Summary Judgment

on January 15, 2020. In his response, [Appellant] included an

expert report and curriculum vitae from Jack F. Dowling, attached

as Exhibit D to [Appellant’s] Brief. [Sheetz] filed a Motion to Strike

Expert Report of Jack Dowling, CPP[,] on January 22, 2020. On

or about January 29, 2020, [Appellant] filed a Response to

[Sheetz’s] Motion to Strike Expert Report. [This court] entered

an Opinion and Order[,] dated February 14, 2020[,] denying

[Sheetz’s] Motion to Strike Expert Report. With leave of court, [Sheetz] filed a Reply Brief in Support of its

Motion for Summary Judgment on March 11, 2020. [Appellant]

filed a Sur-Reply Brief in Opposition to [Sheetz’s] Motion for

Summary Judgment on March 27, 2020.

On April 2, 2020, [this court] entered an Opinion and Order

granting [Sheetz’s] Motion for Summary Judgment.

On April 27, 2020, [Appellant’s] timely Notice of Appeal was

docketed.[1] On April 24, 2020, [this court] issued a [Pa.R.A.P.]

1925(b) Order directing ... Appellant to file a concise statement of ... errors complained of on appeal no later than twenty-one (21)

days after filing and service of the Rule 1925(b) Order.[2] []

Appellant timely complied with such order, filing his Statement of

Errors Complained of on Appeal on May 15, 2020.

Pa.R.A.P. 1925(a) Opinion, 5/26/20, at 1-3 (internal citations omitted).

____________________________________________

1 Appellant’s notice of appeal was dated April 21, 2020.

2 The trial court’s Rule 1925(b) order was docketed on April 27, 2020, the

same day that Appellant’s notice of appeal was entered on the docket.
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Further, the trial court provided the following synopsis of Sheetz’s

motion for summary judgment and Appellant’s response thereto:

In its motion, [Sheetz] sets forth as “Undisputed Material Facts”

the averments contained within paragraphs 1 through 10. In

[Appellant’s] Response to [Sheetz’s] Motion for Summary

Judgment, [Appellant] “admits that [Sheetz] has accurately

recited certain of Eric Hageder’s pre–assault activities, as

transcribed and testified to by Officer [Christine] Heck.” These

admissions apply for paragraphs 1 through 8, inclusive, and

paragraph 10. Therefore, as a result, the following facts have

been admitted for purposes of our decision hereunder:

1. This case arises out [of] an assault that took place on

[Appellant] by Eric Hageder in the parking lot owned by

Sheetz, Inc.[,] being operated as a convenience store at the

intersection of Sixth Avenue and 58th Street in Altoona

(hereinafter “Sheetz store” or “Store No. 7”) on March 2,

2016.

2. Prior to arriving at Store No. 7, Hageder assaulted his

companion, Margaret Lynn Polhamus, at Polhamus’[s]

grandmother’s house in Robinson, PA[,] by punching her in

the face, kicking her in the stomach[,] and shooting her up

with heroin.

3. After beating up Ms. Polhamus, Hageder went to a friend’s

house and stole his friend’s car.

4. After stealing his friend’s car, Hageder robbed a man at

a convenience store in Indiana, PA, by beating the man with

a tire iron and stealing his wallet and cigarettes.

5. Hageder then drove for a while until he arrived at the

Sheetz Store in Altoona, where he assaulted [Appellant] and

stole [Appellant’s] truck.

6. The surveillance video of the assault at the Sheetz store

depicts Hageder arriving in the Sheetz parking lot at

3:14:18 a.m.[,] and Hageder opening the hood of the first

stolen vehicle as if there were mechanical problems.

7. Less than five minutes later, at 3:19:07 [a.m.], the

assault of [Appellant] began.
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8. The assault lasted approximately 33 seconds, ending at

3:19:40 [a.m]. 9. Hageder was on the Sheetz premises for just over 5

minutes.[3]

10. Based upon statements transcribed by the Altoona

Police Department, as set forth in the police interview of

Hageder by then[-]Sergeant Ben Jones..., Hageder stated

the following:

a. When asked why he came to Altoona, Hageder said

“Nothing, really[.”]

b. Hageder was told that he’d had 15 to 20 cop cars

chasing him after the assault at Sheetz and he replied, “I was hoping for more[.”]

c. Hageder was told he was chased by cops for 40

miles, to which he responded, “I thought that was

pretty damn good[.”]

d. Hageder wanted to be on the news broadcast.

e. Hageder was already on parole for aggravated

assault and stated that his being arrested was “[n]ot

my first rodeo[.”]

f. Hageder wanted to “go out suicide by fucking

cop[.”]

g. When asked why Hageder committed these crimes,

Hageder stated[,] “I went fucking nuts. That’s my

side of the story. I went fucking nuts[.”]

The Sheetz surveillance videos further confirm that neither Mr.

Hageder nor the passenger in his vehicle, Ms. Polhamus, ever

entered the store, remaining inside and around their vehicle from

3:14:18 [a.m.,] until the assault commenced at 3:19:07 [a.m.],

a time period just short of five minutes. The actual assault by Mr.

Hageder upon [Appellant] began at approximately 3:19:07

[a.m.,] and ended at 3:19:40 [a.m.], covering a time span of ____________________________________________

3 Appellant believes that Hageder was on Sheetz’s premises for approximately

six minutes. See Appellant’s Response to Sheetz’s Motion for Summary

Judgment, 1/15/20, at 3 (unnumbered pages).
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approximately 33 seconds. After the assault, Mr. Hageder

obtained the keys and stole [Appellant’s] truck. He and Ms.

Polhamus left the area, resulting in an eventual high[-]speed

pursuit by the Pennsylvania State Police before he was

apprehended and arrested. *** Summary of [Appellant’s] Arguments and [Sheetz’s] Reponses:

[Appellant] filed a detailed 57-page Brief in Opposition to

[Sheetz’s] Motion for Summary Judgment and a 10-page Sur- Reply Brief. [Appellant’s] arguments in defense of the summary

judgment motion are summarized as follows:

1. Inadequate Staffing at Store No. 7. It is undisputed that on the

date in question, there were three (3) employees working at Store

No. 7 — Samantha Woomer, Melissa Snyder and Amy Stiffler.

During her deposition, Ms. Snyder, a Salesperson, testified that

she did not think that staffing at Store No. 7 was adequate,

particularly due to the fact that an adjacent business (Blair Sign

Company) let out at 3:00 a.m.[,] and the influx of customers

made it difficult for three employees to cover their duties. Ms.

Snyder opined that this raised concern[s] from her perspective as

to safety and security, and she claimed she raised these concerns

with management.

In his Brief, [Appellant] sets forth a detailed timeline as to what

each employee was doing during the relevant time frame on the

date in question. In summary, [Appellant] argues that despite the

fact that Mr. Hageder and Ms. Polhamus were loitering outside for

a few minutes prior to the assault and only a few feet outside the

58th Street entrance to Store No. 7, that no store employee

observed them park in a handicapped spot; no one noticed

suspicious loitering activities; no one observed the physical

assault of Mr. Hageder upon [Appellant]; nor did any employee

observe Mr. Hageder’s and Ms. Polhamus’[s] theft of [Appellant’s]

truck and their getaway.

In response, [Sheetz] asserts that the record does not establish

negligence on its part relative to staffing. Karen Rhoades, who

has served as the Manager of Store No. 7 for eighteen (18) years,

testified that although employees may grumble at times as to the

work to be done, the store has always been staffed properly. She

explained that staffing is determined by customer flow tracked by
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a system called Kronos. Sam Janisko, Sheetz Production and

Facilities Manager, explained that Sheetz[’s] staffing is not

governed solely by Kronos, but that the Operations Department

ultimately controls staffing[,] and that as to security issues, that

“...it[ is] inherently a part of it based on our history.”

Thus, [Sheetz] argues that the record evidence does not support

[Appellant’s] allegation that Store No. 7 was understaffed, and

further, there is no record evidence that additional staffing would

have prevented the criminal assault by Hageder upon [Appellant.]

2. Inadequate Lighting at Store No. 7. [Appellant] also alleges

that there was inadequate lighting at Store No. 7. [Appellant]

cites deposition testimony of Sheetz employees (or former

employees) as follows: “If we would have been able to see outside the windows, I

could have at least of hollered out through the door, ‘hey[,]’ you know — at least try to get them deterred[.”]

“...it[ i]s something that shouldn’t have happened...[.] We

should have been able to see somebody ... right outside our

windows from the registers, of what was happening to

somebody. And we didn’t see that...[.] We should have

been able to see outside those windows...[.] It’s [j]ust we

didn’t see what was going on right in front of us.” -Amy

Stiffler, deposition of February 18, 2019.

[]Question – [“]Do you recall, as part of your training, there

being any distinction made between watching out for

suspicious behavior in the middle of the day versus the

middle of the night?[”]

Answer – [“]I don’t recall if it was in the training or not, or

if it was just within me. I know at night time I was definitely

more aware.[”]

Question – [“]And why is that?[”]

Answer – [“]Because it’s Altoona and it[ is] dark. More

crimes happen at night th[a]n during the day.” -Samantha

Woomer, deposition of February 18, 2019.

[“]We always told them that it was hard to see out unless

someone’s headlights were on, shining in. Then we could

see that. But we did complain to them that we could not
J-A24007-20

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see out those windows at night[.”] -Melissa Snyder,

deposition of February 18, 2019.

In support of this theory of liability, [Appellant] is also relying

upon [his] expert witness, Jack Dowling, who is

President/Princip[al] Consultant of JD Security Consultants, LLC[],

located in Downingtown, PA. Mr. Dowling has prepared an expert

report summarizing his findings and conclusions relative to this

case. In summary fashion, Mr. Dowling found that both the

original lighting specifications from 2004[,] and the upgrade of

lighting specifications from 2016 for Store No. 7[,] did not meet

the Illuminating Engineering Society of North America (hereinafter “IESNA[”]) Guidelines for Security Lighting. As a result, Mr.

Dowling has opined that it is reasonable to conclude that the

security lighting at the time of incident was also below the IESNA

Guidelines.

According to [Appellant’s] expert, potential threats in Sheetz

convenience stores are produced by[,] and the opportunity

created by[,] inadequacies in security programs such as lighting,

visibility, security camera placement, security signage, staffing

levels, staff and employee alertness and reporting. Mr. Dowling

identified the lack of reasonable security as being the main factor

that created the opportunity for the subject crime to occur by

limiting the observation of Mr. Hageder by the Sheetz employees

in the store and the [Security Operations Center’s (“SOC”)]

staffing monitoring the store via the video security system. Mr.

Dowling opined that the lighting level resulted in Mr. Hageder[’s]

being able to remain unnoticed by Sheetz[’s] store staff and by

SOC employees, thus allowing Mr. Hageder to remain

unchallenged by Sheetz personnel prior to his assault upon

[Appellant]. [Appellant] asserts that review of the Sheetz surveillance videos

confirms Mr. Dowling’s findings, i.e., that the parking lot where

[Appellant’s] assault occurred was so poorly lit that one has a

difficult time, based upon review of the surveillance videos alone, ... identify[ing] the activities of the persons depicted in the video.

[Appellant] argues that there was also testimony elicited from

witnesses during discovery that Sheetz Store No. 7 was more

dimly lit than other Sheetz convenience stores in the area,

including from [Appellant] himself, who was a truck driver for CLI

Transport, a subsidiary of Sheetz. [Appellant] had made

deliveries to various Sheetz stores over 19 years. In his

deposition testimony, he stated that Store No. 7 was “dark and
J-A24007-20

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dismissal[,”] compared to the illumination at other Sheetz stores.

As an example, [Appellant] cited Sheetz’s Beale Avenue and

Patton stores as being better lit than Store No. 7. He described

the Beale Avenue store as one where “you can play football at

3:00 in the morning in the parking lot[,”] and Store No. 7 as one

“you can’t see that far in front of your face, where this

happened[.” Appellant] further testified that when he made gas

deliveries to Store No. 7, he needed to get cones out and put them

on the manhole cover because there was not enough light to see

the manhole.

In response, [Sheetz] asserts that the lighting at all Sheetz stores,

including Store No. 7, exceed the recommendations for lighting

standards set by IESNA, as well as other Codes. [Sheetz] also

points out there are no written records of any complaints by any

employee, nor any knowledge of any complaint regarding lighting

by any Sheetz managers. Finally, [Sheetz] asserts that any “such

[anecdotal] and undocumented hind-sight testimony” does not

demonstrate either foreseeability or causation.

3. Lack of Crime Risk Analysis/Lack of Security. [Appellant’s]

expert, Mr. Dowling, opined that a security/crime risk assessment

for Store No. 7 was required to determine the appropriate level of

security needed for the store. Sheetz has admitted that it did not

perform a security/crime risk assessment. [Appellant] asserts

that the security/crime risk assessment is an accepted, common

and standard practice in the security industry. Mr. Dowling

explained that a security/crime risk assessment discovers the

actual threats, inherent threats and potential threats facing the

store[,] and that without such assessment, a security program

cannot be adequately implemented and effectively maintained.

[Appellant] cites data obtained from the Altoona Police

Department through discovery[,] which he believes supports his

theory of liability ... against [Sheetz]. Specifically as to Store No.

7, the Altoona Police Department (hereinafter “APD”) indicated

that there was a total of 64 complaint reports filed for Store No. 7

between 3/2/11 and 3/2/16. Classifications of crimes by the APD

were 64 total complaint reports; 35 violent or potentially violent

reports (assault, suspicious activity, harassment, disturbance,

intoxication and drug abuse) and 60 outside occurrences. The

vast majority (over 90%) of the reported incidents were related

to incidents occurring outside the store, thus, [Appellant] asserts

that this area would be considered at high risk of violence, with a

corresponding high level of security required.
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[Appellant] also cites in his [b]rief that the numerous training

materials and corporate policies of Sheetz support [Appellant’s]

arguments that 24-hour retail outlets have long been considered

as one of the most dangerous business locations[,] and that the

employees and customers of such establishments are at high risk

for violence, including robbery.

In response, [Sheetz] points to the following deposition testimony

from the individuals who were working at the Sheetz Store No. 7

on the night in question.

Melissa Snyder testified as follows:

a. She’d never witnessed another assault at Sheetz Store

No. 7 prior to the subject assault.

b. That the area in which Store No. 7 is located is not a high

crime area.

c. That she would have had no idea that Hageder was going

to assault [Appellant] on the night in question.

Samantha Woomer, a former Sheetz Shift Supervisor and sales

person who worked at Store No. 7 from 2005 through 2017,

including the shift when the crime took place, testified as follows:

a. The assault by Hageder on [Appellant] was an “off the

wall incident[.”]

b. She had never experienced an incident like this in Store

No. 7 in her 12 years there.

c. She had never even seen a fight at Sheetz Store No. 7.

Amy Stiffler had worked for Sheetz for about 10 years from 2008

until 2018, and was on duty at Store No. 7 on the night in

question. Ms. Stiffler testified as follows:

a. She recalled only one violent criminal incident when a

shooting outside of Store No. 7 occurred “way before”

[Appellant’s] assault.

b. In trying to recall when that incident occurred, she

testified that it was even before the shooting at the Subway

near the Logan Valley Mall, which occurred in 2009.
J-A24007-20

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[Sheetz] notes that the Altoona Police records show that a violent,

criminal assault at Store No. 7 occurred one time in the 5-years

predating the Hageder assault.

[Sheetz] further asserts that of the 67 incidents from the 5-year

period before the subject assault, commencing in 2011, there

were only three incidents that could remotely or arguably

resemble the subject incident. Those incidents include April 14,

2014, when one driver in a car followed another into the parking

lot, got out a bat, and threatened to break out the back window

of the other. No physical assault or violence was done. On March

29, 2015, two girls got into what was described as a “nuisance

fight” and left the premises before the police came. The police

report indicated that no one was in danger and that no alcohol or

drugs were involved. Finally, there was an incident where a victim

was stabbed[,] and the call to police came from the Altoona

Hospital.

The Sheetz Store No. 7 incident reports show that, in addition to

the fight between the two females on March 29, 2015 referenced

above, there was also an incident where a female hit a male on

July 27, 2012. No injuries or weapons were involved.

Further, there were emails between Sheetz employees exchanged

the day of the subject incident that support [Sheetz’s] theory that

the criminal assault by Hageder upon [Appellant] was not

foreseeable at Store No. 7. Those would include the following:

a. Chris Fasick remarked[,] “[W]hen I saw #7, I couldn’t

believe it.[”]

b. Travis Sheetz observed that this is the “[l]ast place you

would expect.”

c. Stephanie Doliveira stated, “This is crazy...[.] And the

fact that this is Store #7.”

d. Holly Tekely emailed, “OMG - at #7 ???? I always thought

that was a safe place.”

[Sheetz] also cites the deposition of [Appellant] himself.

[Appellant] testified that he had been to Store No. 7 “lots of

times[,]” but he never told anyone at Sheetz that he thought it

was dangerous[.] Nobody ever threatened him at Store No. 7. [Appellant] himself did not testify that he had been attacked there
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previously and he knew of nobody else ever having been attacked

there.

In response to [Appellant’s] allegations relative to the video

surveillance, Officer Heck testified that such video surveillance is

not only of good quality, but actually described the surveillance

and staff at Sheetz to be “remarkable.[”] Officer Heck went so far

as to say that the Sheetz video is much better quality than other

retail stores in the area.

Jennifer McCullough, who has been a Security Operations Analyst

at Sheetz for 12[-]and[-]1⁄2 years, testified that at every single

Sheetz location, there are 16 to 32 surveillance cameras. Ms.

McCullough’s job, along with other [a]nalysts, is to provide safety

and security for employees and customers[,] and they do this by

monitoring videos at the [SOC,] which are capable of seeing and

hearing any store in real time any time a store sends an alarm to

the SOC. From that point, the SOC can communicate with the

store with a voice-down where an incident is happening and also

dispatch the proper authorities, whether police, fire or

paramedical.

Further, the Sheetz Stores are equipped with multiple safety

buttons and each employee wears a safety pendant so that any

employee can notify the SOC at any time from any location. The

SOC also tests every store every two weeks to make sure the

buttons and pendants are working.

In response to [Appellant’s] arguments about the lack of security

guards at Store No. 7, Kathy Potter, who is the Manager of the

Loss Investigation Team and the SOC, was called twice to testify

during discovery. Ms. Potter testified that there were no security

guards at Store No. 7 on the date of the Hageder assault because

there was simply no reason to have them, given the history of the

store. She explained that where circumstances and history

warranted, Sheetz would employ security guards. She gave as an

example Store No. 354 (known locally as the “Super Sheetz”

located on 17th Street and Pleasant Valley Boulevard). Ms. Potter

explained that in contrast to Store No. 7, the store at 354 is a

large new store, with new concepts such as a restaurant and sale

of alcohol. It has served as a draw for young people to loiter and

race around the parking lot. [Appellant] has not shown that

similar conditions existed at Store No. 7.

During her second deposition, Ms. Potter explained that the reason

that there were not security guards at other stores, such as Store
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No. 7, is that “there haven’t been issues...[.] And if there is an

issue, it is a transient issue. And it could not be anticipated.”

In consideration that Sheetz Store No. 7 is open 24 hours a day,

365 days per year, [Sheetz] argues that the evidence of record

does not support [Appellant’s] claims that Store No. 7 is in an area

that would be considered “at high risk of violence.” Further,

[Sheetz] states that [Appellant] has not established of record that

there was a lack of security, or a need for additional security, at

Store No. 7, nor that [Sheetz’s] operations were unsafe or

unreasonable.

4. Alleged Failure to Follow Sheetz’s Robbery Prevention Plan. At

the time of [Appellant’s] assault, Sheetz had implemented a

“Robbery Prevention Plan[,”] which was intended to provide

information to Sheetz employees to be used to maintain a safe

store environment. In his Brief, [Appellant] cited, in extensive

detail, references to [Sheetz’s] Robbery Prevention Plan and its

stated goals, including to “maintain a safe store environment”; “maintaining good lighting and visibility”; the concerns for

“customer awareness”; that “employee awareness can discourage

a potential criminal”; and that “if there are any concerns about

suspicious behavior or loitering, alert a management person.”

[Appellant] cited additional similar language contained in the

[Sheetz] Robbery Prevention Plan as well as its training videos in

his Brief.

In his expert report, Mr. Dowling emphasized that Sheetz

acknowledged a duty owed to its customers by reference to that

part of the training video, wherein the narrator states:

“...violence and robbery prevention ... it’s your responsibility

to keep yourself and your customers safe...[.]”

[Appellant] points out that as a supplement to its training videos,

Sheetz also has newly[-]hired employees review a “Safety 5-in-5”

computer presentation, which reiterates the same concepts and

safety measures as set forth in the training video.

Notwithstanding the Robbery Prevention Plan and the training that

is offered to [Sheetz’s] employees, [Sheetz] asserts that there is

absolutely no evidence of record to support that any Sheetz

employee at Store No. 7 on the date in question had any reason

to suspect that the criminal acts of Hageder were going to occur.
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Trial Court Opinion (“TCO”), 4/2/20, at 5-7, 8-23 (some original brackets and

internal citations omitted; emphasis in original). In granting summary judgment in favor of Sheetz, the trial court found

“as a matter of law that Hageder’s actions were not reasonably foreseeable

and were the sole proximate cause of [Appellant’s] injuries.” Id. at 36. More

specifically, it opined:

In close examination of [Appellant’s] claims, [Appellant] alleges

that additional lighting would have prevented the criminal assault

by Hageder upon [Appellant]. [Appellant] alleges that if the three

store employees on the night in question were observing the

security videos and/or looking out the window, that they could

have prevented the criminal assault by Hageder upon [Appellant]. [Appellant] alleges that additional staffing and/or brighter

illumination would have prevented the criminal assault by Hageder

upon [Appellant]. [Appellant] further alleges that inadequate

and/or inconsistent training or practice of employees regarding

safety concerns contributed or caused [Appellant’s] injuries. Each

of [Appellant’s] claims is speculative and conjectural.

It is easy to determine now, after the fact, that the parking of the

vehicle in the Sheetz parking lot and opening [of] the hood by

Hageder, as if there were mechanical problems, was simply a ruse

as he awaited an individual upon whom he would inflict the

intentional assault. We do not agree with [Appellant] that the

mere fact that someone would have pulled into the Sheetz parking

lot at 3:00 o’clock in the morning to check under the hood for

potential car trouble somehow should have alerted the Sheetz

employees that a criminal assault was about to take place. There

is nothing that [Appellant] has pointed to in the record that

credibly supports that Hageder and his companion were acting in

a threatening or suspicious manner prior to the assault. We

believe the time element is significant to our determination. The

assault began within 5 minutes after Hageder arrived at the

Sheetz parking lot. The entire assault lasted approximately 33

seconds. Hageder was on the Sheetz premises for a total of just

over 5 minutes. Such hardly constitutes “loitering” that should

have alerted the Sheetz employees that a criminal assault was

about to take place.
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***

In summary, there is nothing to point to in the record which would

establish proximate cause between any action or inaction of

Sheetz[,] and the injuries sustained by [Appellant]. What

happened to [Appellant] is horrible and most unfortunate.

Hageder is 100% responsible, however, for [Appellant’s] injuries

as a result of his intentional criminal assault....

Id. at 27-28, 34. Presently, Appellant raises several issues for our review:

[1.] Whether the lower court abused its discretion and

commit[ted] errors of law in holding that no material questions of

fact existed as to Sheetz’[s] negligence?

[2.] Whether the lower court abused its discretion and

commit[ted] an error of law in holding that the risk of criminal

conduct by a third person on Sheetz’[s] premises was not

reasonably foreseeable — i.e., the robbery/assault of [Appellant]

was a superseding/intervening cause of [his] harm?

[3.] Even assuming that the lower court was correct in holding

that the robbery/assault of [Appellant] was not reasonably

foreseeable (i.e., a superseding/intervening event), did the lower

court err in holding that a material question of fact did not exist

with respect to Sheetz’[s] negligence in failing to detect/deter the

robbery/assault once the robbery/assault began?

[4.] Did the lower court abuse its discretion and commit an error

of law in considering the breadth of the crime spree of

[Appellant’s] assailant prior to the robbery/assault of [Appellant]?

[5.] Did the lower court improperly rely upon hearsay evidence in

granting Sheetz’[s] Motion for Summary Judgment?

[6.] Did the lower court abuse its discretion and commit an error

of law in failing to consider the opinions of [Appellant’s] expert

witness, Jack Dowling?

Appellant’s Brief at 4-5.

At the outset, we acknowledge:

Entry of summary judgment is governed by Rule 1035.2 of the

Rules of Civil Procedure:
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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. In addition:

Our standard of review of an appeal from an order granting

summary judgment is well settled: Summary judgment may

be granted only in the clearest of cases where the record

shows that there are no genuine issues of material fact and

also demonstrates that the moving party is entitled to

judgment as a matter of law. Whether there is a genuine

issue of material fact is a question of law, and therefore our

standard of review is de novo and our scope of review is

plenary. When reviewing a grant of summary judgment, we

must examine the record in a light most favorable to the

non-moving party.

Reason v. Kathryn’s Korner Thrift Shop, 169 A.3d 96, 100 (Pa. Super.

2017) (internal citation omitted).

Issues 1 and 2

We address Appellant’s first and second issues together as they both

contest the trial court’s causation determinations. See Appellant’s Brief at 33

(arguing that the trial court “abused its discretion and committed errors of law

in holding that no material questions of fact existed as to whether Sheetz’[s]

negligence was the proximate cause of [Appellant’s] harm”) (unnecessary
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capitalization and emphasis omitted); id. at 42 (stating that the trial court

“abused its discretion and committed an error of law in holding that the risk

of criminal conduct by a third person on Sheetz’[s] premises was not

reasonably foreseeable — i.e., the robbery/assault of [Appellant] was a

superseding/intervening cause of [Appellant’s] harm”) (unnecessary

capitalization and emphasis omitted). It is well-established in our Commonwealth that,

[i]n order to hold a defendant liable for negligence, the plaintiff

must prove the following four elements: (1) a legally recognized

duty that the defendant conform to a standard of care; (2) the

defendant breached that duty; (3) causation between the conduct

and the resulting injury; and (4) actual damage to the plaintiff.

Reason, 169 A.3d at 101 (citation omitted).

This Court has explained:

“Generally, there is no duty to control the acts of a third party

unless the [d]efendant stands in some special relationship with

either the person whose conduct needs to be controlled or ... with

the intended victim of the conduct, which gives the intended

victim a right to protection.” Paliometros v. Loyola, 932 A.2d

128, 133 (Pa. Super. 2007) (citation and internal quotation marks

omitted). A “special relationship” exists between a business and

its invitee. Id. (citing T.A. v. Allen, ... 669 A.2d 360 ([Pa. Super.]

1995) (en banc), appeal denied, ... 676 A.2d 1201 ([Pa.] 1996);

Restatement (Second) of Torts § 314A(2)–(3) (1965)). In T.A., we explained:

[A]n invitee is described as follows:

(1) An invitee is either a public invitee or a business

visitor.

(2) A public invitee is a person who is invited to enter

or remain on land as a member of the public for a

purpose for which the land is held open to the public.
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(3) A business visitor is a person who is invited to

enter or remain on land for a purpose directly or

indirectly connected with the business dealings with

the possessor of the land.

Restatement (Second) of Torts § 332. Ott v. Unclaimed Freight

Co., ... 577 A.2d 894, 896 ([Pa. Super.] 1990). ***

This Court examined the duty to protect business invitees from

the intentional or negligent acts of third parties in Truax v.

Roulhac, 126 A.3d 991, 997-98 (Pa. Super.[ 2015]), appeal

denied, ... 129 A.3d 1244 ([Pa.] 2015). The Court in that case

observed that this duty is expressed in Section 344 of the

Restatement (Second) of Torts, which states:

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.

The [c]ourt in Truax explained:

Comment f to Section 344 explains the duty to protect

business invitees against third[-]party conduct arises only if

the owner has reason to anticipate such conduct.

f. Duty to police premises. Since the possessor is not

an insurer of the visitor’s safety, he is ordinarily under

no duty to exercise any care until he knows or has

reason to know that the acts of the third person are

occurring, or are about to occur. He may, however,

know or have reason to know, from past experience,

that there is a likelihood of conduct on the part of third

persons in general which is likely to endanger the

safety of the visitor, even though he has no reason to

expect it on the part of any particular individual. If
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the place or character of his business, or his past

experience, is such that he should reasonably

anticipate careless or criminal conduct on the part of

third persons, either generally or at some particular

time, he may be under a duty to take precautions

against it, and to provide a reasonably sufficient

number of servants to afford a reasonable protection.

Restatement (Second) of Torts § 344 cmt. f.

Consequently, [the a]ppellees owed Truax “a duty owed to

any business invitee, namely, that [they] would take

reasonable precaution against harmful third[-]party conduct

that might be reasonably anticipated.” Paliometros..., 932

A.2d [at] 133 ... (citations omitted).

The reason is clear; places to which the general public

are invited might indeed anticipate, either from

common experience or known fact, that places of

general public resort are also places where what men

can do, they might. One who invites all may

reasonably expect that all might not behave, and

bears responsibility for injury that follows the absence

of reasonable precaution against that common

expectation.

Feld v. Merriam, ... 485 A.2d 742, 745 ([Pa.] 1984).

Truax, 126 A.3d at 997-98.

Reason, 169 A.3d at 102-03 (emphasis in original). Here, assuming Appellant established the other elements of negligence,

i.e., that Sheetz had a duty to take reasonable precaution against harmful

third-party conduct that might be reasonably anticipated, breach of that duty, and harm, we agree with the trial court in the case sub judice that Appellant

has not demonstrated that any deficiencies in the security precautions Sheetz

took proximately caused his harm. We have stated that “[p]roximate cause

does not exist where a defendant’s negligence was so remote that the
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defendant cannot be held legally responsible as a matter of law for the harm

that resulted to the plaintiff.” Kote v. Bank of New York Mellon, 169 A.3d

1103, 111 (Pa. Super. 2017) (citation omitted). “To determine proximate

cause, ... the question is whether the defendant’s conduct was a ‘substantial

factor’ in producing the injury.” Brown v. Philadelphia College of

Osteopathic Medicine, 760 A.2d 863, 869 (Pa. Super. 2000) (citation and

some internal quotation marks omitted). Further, “[p]roximate cause is

primarily a problem of law and it is a Pennsylvania court’s responsibility to

evaluate the alleged facts and refuse to find an actor’s conduct the legal cause

of harm when it appears to the court highly extraordinary that the actor’s

conduct should have brought about the harm.” Id. at 868 (citation, internal

quotation marks, and emphasis omitted). “Thus, proximate cause must be

determined by the judge and it must be established before the question of

actual cause is put to the jury.” Id. (citation and internal quotation marks

omitted).

Appellant claims that “material questions of fact have been established

with respect to a myriad of causation theories in this case.” Appellant’s Brief

at 36. He points to his assertions that:

1) Sheetz failed to provide adequate management, supervision,

and oversight or reasonable security and/or protection; 2) Sheetz

failed to ameliorate the risks inherent from dangerous individuals

which it knew or in the exercise of reasonable care should have

known were present on the premises; 3) a dangerous condition

was permitted by Sheetz to persist, remain uncorrected and/or

continue thereby allowing [Appellant] to be attacked; 4) Sheetz

breached its duty to provide reasonable security and protection to

its customers, and to ameliorate the risks inherent from the
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dangerous individuals which it knew, or in the exercise of

reasonable care should have known, were present on its premises;

5) the attack on [Appellant] by a dangerous criminal was allowed

to proceed unabated and unthwarted by the staff/employees of

Sheetz; 6) Sheetz failed to properly assess the condition of

[Appellant’s] assailant prior to allowing him to enter/remain upon

the premises; Sheetz failed to adequately supervise its

employees; 7) Sheetz provided inadequate lighting conditions in

the parking lot of its store; 8) Sheetz failed to prevent

[Appellant’s] assailant from loitering in Sheetz’[s] parking lot; 9)

Sheetz had ineffective video surveillance camera placement; 10)

Sheetz failed to have general security risk assessments

performed; and Sheetz failed to adequately staff and train the

personnel in its [SOC]. Id. at 36-37.

Despite listing all of these purported failings by Sheetz, Appellant has

not established how these things acted as substantial factors in bringing about

his harm.4 Hageder was on Sheetz’s premises for 5-6 minutes total, and his

____________________________________________

4 Appellant also does not specifically discuss in his brief legal authority

pertaining to proximate cause. Rather, he focuses on Section 344 of the

Restatement (Second) of Torts, and cases analyzing it. Section 344 addresses

a business’s duty to protect business invitees from the intentional or negligent

acts of third parties. See Pearson v. Philadelphia Eagles, LLC, 220 A.3d

1154, 1162, 1165 (Pa. Super. 2019) (explaining that, under Section 344, “the

duty to protect business invitees against third[-]party conduct arises only if

the owner has reason to anticipate such conduct[,]” and there was no evidence

that the appellants “knew or had reason to know, from past experience, that

violent assaults were likely to occur in the restrooms that would endanger [the

a]ppellant[s’] invitees. Therefore, ... [the a]ppellants did not act unreasonably

by not stationing security personnel in or directly outside the stadium

restrooms”) (citations omitted); Reason, 169 A.3d at 104 (“[The a]ppellees

had no reason to anticipate violent acts by [the perpetrator] against their

business invitees, and therefore had no duty to protect [the plaintiff] as a

business invitee.”). Appellant overlooks that he still must establish that

Sheetz’s alleged breach of its duty under Section 344 proximately caused his

harm. See, e.g., Rabutino v. Freedom State Realty Co., Inc., 809 A.2d

933, 942 (Pa. Super. 2002) (denying summary judgment in favor of a hotel
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assault on Appellant lasted only 33 seconds. Though Appellant avers that

Hageder’s vehicle was illegally parked in a reserved handicapped spot with its

hood open, and Polhamus’s face showed signs she had been beaten, there is

no evidence that Hageder or Polhamus engaged in any threatening behavior

outside the store that should have somehow alerted the store employees that

a criminal assault was about to occur. As the trial court aptly observed, “[w]e

do not have a situation where someone entered the store and/or was walking

around the outside of the store openly brandishing a weapon or acting in a

threatening or suspicious manner. We do not have a situation where someone

was lingering in or about the store for an unusual length of time.” TCO at 31.

Further, Hageder’s actions on the day in question suggest that he had little, if

any, concern for the store’s security features or the consequences of his

conduct. See id. at 32 (recognizing that Hageder “had his mind set on

engaging in significant and extreme criminal activity”). Under these factual circumstances, Appellant has not demonstrated that

Sheetz’s purportedly deficient lights, staffing, security cameras, employee

training program, management, or monitoring practices, etc., proximately

caused his injuries. The record does not show how any of these allegedly

____________________________________________ where the appellant showed that the hotel may have breached a duty owed

to the decedent under Section 344 by not ejecting out-of-hand drinkers, and

that the confrontation that killed the decedent “may reasonably be understood

to have sprung directly and predictably from the failure to respond adequately

to events as they evolved on the [hotel’s] fifth floor. We therefore find that

[the appellant] has sufficiently established the element of causation with

evidence that [the hotel’s] purported negligence was a substantial factor in

bringing about [the decedent’s] death”).
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deficient safety precautions proximately caused the assault to happen, or how

any different security features would have prevented the assault from

occurring given the facts of this case. Accordingly, we agree with the trial

court that Hageder’s actions were the sole proximate cause of Appellant’s

injuries. Appellant has not convinced us otherwise.

Issue 3

In Appellant’s third issue, he argues that a material question also exists

“as to whether Sheetz failed to timely detect that [Appellant] was in the act

of being violently robbed, and whether Sheetz took reasonable steps to deter

[Appellant’s] assault once it began.” Appellant’s Brief at 54. He says that the

“lower court ruled as a matter of law that ... 33 seconds was not an

unreasonable length of time for either Sheetz’[s] employees or its [SOC] to

not detect that one of its customers was being severely beaten[,]” and

“questions whether the lower court may arbitrarily draw the line as a matter

of law with respect to Sheetz’[s] obligation to detect that one of its customers

was in the process of being severely beaten in the parking lot with a metal

socket wrench and having his truck forcibly stolen, without taking steps to

intervene.” Id. at 55 (emphasis in original). Appellant “asserts that the

actions which could have been taken by Sheetz employees[,] had they been

able to detect that a robbery/assault were occurring[,] are questions of fact

which preclude the entry of summary judgment.” Id.

No relief is due on this basis. Initially, Appellant’s argument on this

issue is a page-and-a-half long, and includes no citation to, or discussion of,
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relevant authority pertaining to an employee’s duty to aid in an ongoing

assault. Thus, we deem it waived. In re M.Z.T.M.W., 163 A.3d 462, 465

(Pa. Super. 2017) (“It is well-settled that this Court will not review a claim

unless it is developed in the argument section of an appellant’s brief, and

supported by citations to relevant authority.”) (citations omitted).

Nevertheless, even if we did not deem this issue waived, we would reject

Appellant’s claim. First, regarding Sheetz’s alleged failure to timely detect

that Appellant was being assaulted, Appellant again has not established that

that failure proximately caused his harm. The assault lasted merely 33

seconds, making it highly unlikely that Sheetz’s failure to timely detect that

the assault was happening brought about Appellant’s injuries. See Brown, supra. Second, even if Sheetz had timely detected that the assault was

occurring, this Court has stated that “a business [is] not required to act as a

policeman in the face of an ongoing assault. Indeed, imposing such a duty

could place the business employees at risk of harm and impose liability on the

business if its employees are injured.” Reason, 169 A.3d at 105.

Consequently, it appears that Sheetz’s employees would not have had a duty

to intervene in the assault once it began even if they had timely detected it.5

____________________________________________

5

Instead, this Court has determined that “a business satisfies its duty to aid

a business invitee by calling 911 or another source of professional medical or

police assistance.” Reason, 169 A.3d at 105-06 (footnote omitted). Here,

Sheetz explains in its brief that,

[a]t the time of the subject accident, three analysts were on

duty[,] including Adam Stoehr. The SOC at the time was directly
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Therefore, had Appellant not waived this issue, we would still conclude that

the trial court did not err in this respect. Issue 4

In Appellant’s fourth issue, he advances that the trial court “abused its

discretion and committed an error of law in considering the breadth of the

crime spree of [Appellant’s] assailant prior to the robbery/assault of

[Appellant].” Appellant’s Brief at 55 (unnecessary capitalization and emphasis

omitted). He claims that “the breadth of ... Hageder’s crime spree before he

arrived at the parking lot of Sheetz Store No. 7 is wholly irrelevant to the

central issue germane to the disposition of Sheetz’s Motion for Summary

Judgment — i.e., whether Sheetz is responsible for injuries to its patrons

caused by criminal conduct of a third party if the possibility or likelihood of

criminal activity ... could reasonably have been foreseen or anticipated.” Id.

at 56-57 (citations omitted).

____________________________________________ connected to Store No. 7[,] and Stoehr was on break and actually

in Store No. 7[,] when Appellant came back into the store after

the Hageder assault. Stoehr rushed back to the SOC and notified

Ms. McCullough[, a Security Operations Analyst at Sheetz,] that

there was an incident and Ms. McCullough had already been told

that emergency personnel had been called and confirmed that

they were on site at 3:27 a.m., less than 8 minutes after the

assault.

Sheetz’s Brief at 10-11 (internal citations omitted). Appellant does not contest

these assertions in his brief. Thus, we do not consider whether Sheetz

breached its duty to aid Appellant by failing to call 911 or another source of

professional assistance.
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We deem this argument waived. In support of his claim, Appellant

provides no authority or discussion about what constitutes relevant evidence.

We reiterate that “[i]t is well-settled that this Court will not review a claim

unless it is developed in the argument section of an appellant’s brief, and

supported by citations to relevant authority.” See In re M.Z.T.M.W., 163

A.3d at 465 (citations omitted).

Nonetheless, even if not waived, we would determine that Appellant’s

argument is meritless. Appellant’s argument only addresses whether

evidence of the breadth of Hageder’s crime spree was relevant to proving that

Sheetz owed a duty to Appellant. Appellant does not consider if that evidence

was relevant to establishing any other material fact in the case, such as

causation. It is well-established that “[e]vidence is relevant if it tends to

establish some fact material to the case, or if it tends to make a fact at issue

more or less probable.” See Weaver v. Lancaster Newspapers, Inc., 926

A.2d 899, 905 (Pa. 2007) (citations omitted). Evidence that Hageder had

been on a violent crime spree before the assault on Appellant supports that

any breach by Sheetz of its duty to take reasonable precaution against harmful

third-party conduct (for instance, by supposedly having inappropriate security

signage) did not proximately cause Appellant’s harm. See Appellant’s Brief

at 23, 35 (noting that security signage was lacking from Store No. 7).

Hageder’s crime spree shows that “Hageder had his mind set on engaging in

significant and extreme criminal activity[,]” and tends to establish that things

like Sheetz’s purportedly inadequate security signs did not play a substantial
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part in generating Appellant’s harm, as Appellant was unlikely to be deterred

by such things. TCO at 32. Thus, had Appellant not waived this issue, we

would determine that the trial court did not abuse its discretion or err in

considering Hageder’s activities prior to his arriving at Sheetz Store No. 7 due

to their irrelevance. Issue 5

In Appellant’s fifth issue, he contends that the trial court “improperly

relied upon hearsay evidence in granting Sheetz’[s] motion for summary

judgment.” Appellant’s Brief at 58. He says that “Hageder’s alleged out[-

]of[-]court statements contained in a transcription of a recorded statement

given by Hageder to the Altoona Police Department were hearsay.” Id.

Further, he posits that “Hageder’s alleged out[-]of[-]court statements made

to Ms. Polhamus, who repeated the alleged statements in a recorded

statement given by Polhamus to the Altoona Police Department, were hearsay

within hearsay.” Id. He argues that “[a] motion for summary judgment

cannot be supported by statements that include inadmissible hearsay

evidence.” Id. (citing Botkin v. Metropolitan Life Ins. Co., 907 A.2d 641,

649 (Pa. Super. 2006)).

Again, we deem this claim waived. In paragraph 10 of Sheetz’s motion

for summary judgment, Sheetz set forth as undisputed facts certain

statements Hageder had made in his interview with police, see page 4, supra. In responding to that paragraph, Appellant did not specifically claim that those
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statements constituted inadmissible hearsay and, therefore, could not be

considered by the trial court. Rather, he stated:

10. [Appellant] admits that [Sheetz] has accurately described

statements attributed to Mr. Hageder as transcribed by the

Altoona Police Department. [Appellant] is unable to admit or deny ... that Mr. Hageder’s statements were accurately transcribed.

[Appellant] denies that any of the statements referenced in

Paragraph 10 and its sub-paragraph are material to a disposition

of [Sheetz’s] Motion for Summary Judgment.

Appellant’s Response to Sheetz’s Motion for Summary Judgment at 3

(unnumbered). Appellant likewise did not mention that Mr. Hageder’s

statements constituted inadmissible hearsay in his brief in opposition to

Sheetz’s motion for summary judgment. Instead, he waited to raise this

hearsay objection for the first time in his sur-reply brief in opposition to

Sheetz’s Motion for Summary Judgment. See Harber Philadelphia Center

City Office Ltd. v. LPCI Ltd. Partnership, 764 A.2d 1100, 1105 (Pa. Super.

2000) (“Because, under [Pa.R.C.P.] 1035.3, the non-moving party must

respond to a motion for summary judgment, he or she bears the same

responsibility as in any proceeding, to raise all defenses or grounds for relief

at the first opportunity.”).

In any event, even if not waived, any error or abuse of discretion in this

respect would not affect our analysis or disposition. In our view, Hageder’s

post-assault statements constitute cumulative evidence, given that the

evidence of Hageder’s pre-assault activities similarly demonstrate his devil- may-care state of mind on the day in question and suggest that he likely would

not have been deterred by certain safety features, such as security signage.
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Further, regardless of Hageder’s post-assault statements, it remains that

Appellant has not established that Sheetz’s purportedly deficient lights,

staffing, security cameras, employee training program, management, or

monitoring practices, etc., were substantial factors in producing Appellant’s

injuries. Accordingly, the exclusion of Hageder’s post-assault statements

would not change our evaluation.Sixth Issue

In Appellant’s sixth and final issue, he argues that the trial court “abused

its discretion and committed an error of law in failing to consider the opinions

of [Appellant’s] expert witness, Jack Dowling.” Appellant’s Brief at 60

(unnecessary capitalization and emphasis omitted). He asserts that the trial

court’s “reasoning that the Dowling report is irrelevant wholly ignored

technical issues addressed by Mr. Dowling, which spoke to Sheetz’[s] breach

of its duty owed to business invitees caused by 1) inadequate lighting at

Sheetz Store No. 7...; 2) inadequate security/safety procedures at Sheetz

Store No. 7; and 3) crime risk analyses.” Id. at 61. Appellant maintains that

“[t]hese technical issues were not within the ordinary realm of knowledge of

laypersons and are therefore fair game for expert testimony.” Id.

No relief is due on this basis. Here, the trial court stated that Mr.

Dowling’s expert report “has no effect on [its] legal determination herein of

proximate cause.” TCO at 29 (citation omitted). This Court has previously

discerned that an expert’s report can have no effect on a decision that was

based on legal or proximate cause rather than causation in fact. Novak v.
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Jeannette Dist. Memorial Hosp., 600 A.2d 616, 619 (Pa. Super. 1991).

Thus, we ascertain no error or abuse of discretion by the trial court in not

considering Dowling’s opinions in its proximate cause analysis. In conclusion,

because none of Appellant’s issues have merit, we affirm the trial court’s order

granting summary judgment in favor of Sheetz.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/18/2020