J-A11017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WITOLD KISIEL                                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellant

                       v.

ZBIGNIEW WISZYNSKI

                            Appellee                   No. 1605 MDA 2016


                 Appeal from the Order Entered August 19, 2016
                  In the Court of Common Pleas of York County
                    Civil Division at No(s): 2014-SU-1415-54


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

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

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

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

favor of Zbigniew Wiszynski. We affirm.

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

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

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

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

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

Kisiel timely appealed. 1
____________________________________________


       *
           Former Justice specially assigned to the Superior Court.
       1
       Preliminarily, we must discuss Kisiel’s failure to comply with multiple
Pennsylvania Rules of Appellate Procedure. Kisiel’s brief fails to include a
(Footnote Continued Next Page)
J-A11017-17



      Kisiel raises the following issue2 on appeal:    Whether the trial court

erred in granting summary judgment to Wiszynski?

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

judgment are well-settled:

             [O]ur scope of review is plenary, and our standard of
          review is the same as that applied by the trial court. Our
          Supreme Court has stated the applicable standard of
                       _______________________
(Footnote Continued)

statement of jurisdiction, the order in question, a statement of the scope
and standard of review, a statement of the questions involved, or a
summary of the argument. See Pa.R.A.P. 2111, 2114, 2115 2116, 2117,
and 2118. Kisiel’s brief contains very little citation to relevant authority as
well as inadequate reference to matters in the record and fails to show
where in the record he preserved his issues for appeal. See Pa.R.A.P.
2119(b), (c), and (e).

       “Although Pennsylvania courts endeavor to be fair to pro se litigants in
light of the challenges they face conforming to practices with which
attorneys are far more familiar, [we] nonetheless long have recognized that
we must demand that pro se litigants comply substantially with our rules of
procedure.” Commonwealth v. Spuck, 86 A.3d 870, 874 (Pa.Super. 2014)
(internal citation omitted). Further, “‘[t]his Court will not act as counsel’ for
an appellant who has not substantially complied with our rules.” Id.
(quoting Bombar v. W. Am. Ins. Co., 932 A.2d 78, 93 (Pa.Super. 2007)).
Based on Kisiel’s failure to adhere to the Rules of Appellate Procedure, this
Court has the right to quash or dismiss his appeal pursuant to Rule
2101. See Pa.R.A.P. 2101 (noting that parties appearing before this Court
“shall conform in all material respects with the requirements of these rules
as nearly as the circumstances of the particular case will admit . . . and, if
the defects are in the brief or reproduced record of the appellant and are
substantial,” we may quash or dismiss the appeal). However, “in the
interest of justice we address the arguments that can reasonably be
discerned from this defective brief.” Commonwealth v. Lyons, 833 A.2d
245, 252 (Pa.Super. 2003).
      2
        Although Kisiel does not include a statement of questions involved in
his brief, we are able to discern his sole issue.



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J-A11017-17


         review as follows: [A]n appellate court may reverse the
         entry of a summary judgment only where it finds that the
         lower court erred in concluding that the matter presented
         no genuine issue as to any material fact and that it is clear
         that the moving party was entitled to a judgment as a
         matter of law. In making this assessment, we view the
         record in the light most favorable to the non-moving party,
         and all doubts as to the existence of a genuine issue of
         material fact must be resolved against the moving party.
         As our inquiry involves solely questions of law, our review
         is de novo.

            Thus, our responsibility as an appellate court is to
         determine whether the record either establishes that the
         material facts are undisputed or contains insufficient
         evidence of facts to make out a prima facie cause of
         action, such that there is no issue to be decided by the
         fact-finder. If there is evidence that would allow a fact-
         finder to render a verdict in favor of the non-moving party,
         then summary judgment should be denied.

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

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

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

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

provides in relevant part:

         (c) DOWNHILL SKIING.—

               (1) The General Assembly finds that the sport
               of downhill skiing is practiced by a large
               number of citizens of this Commonwealth and
               also attracts to this Commonwealth large
               numbers      of    nonresidents     significantly
               contributing    to   the    economy    of    this
               Commonwealth. It is recognized that as in
               some other sports, there are inherent risks in
               the sport of downhill skiing.

               (2) The doctrine of voluntary assumption of
               risk as it applies to downhill skiing injuries and


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J-A11017-17


                 damages is not modified by subsections (a)
                 and (a.1).

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

Court explained that although the doctrine of comparative negligence 3 has

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

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

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

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

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

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

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

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

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

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

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

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

whether summary judgment is appropriate in an action for injuries sustained

while skiing:


____________________________________________


       3
        Generally, in a negligence action, a plaintiff’s own negligence will not
bar recovery as long as the plaintiff’s negligence is not greater than that
attributed to the defendant; rather, damages are diminished in proportion to
the amount of negligence attributable to the plaintiff. 42 Pa.C.S. § 7102(a).
This framework is known as comparative negligence.



                                           -4-
J-A11017-17


            First, this Court must determine whether [Appellant]
         was engaged in the sport of downhill skiing at the time of
         [his] injury. If that answer is affirmative, we must then
         determine whether the risk ... is one of the “inherent risks”
         of downhill skiing, which [Appellant] must be deemed to
         have assumed under the Act. If so, then summary
         judgment was appropriate because, as a matter of law,
         [Appellant] cannot recover for [his] injuries.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

acquaintance skier who just told you that he will follow you.” Id. at 3.


                                     -5-
J-A11017-17


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

Bell:

           [O]ur Supreme Court has specifically accounted for the
           exact risk of harm [the appellant]’s claim arises from and
           categorized this risk – the risk of colliding with another
           skier or snowboarder – as a risk of downhill skiing that is
           common, frequent, expected and, therefore, inherent to
           the sport of downhill skiing.

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

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

Id.     Neither the legislature nor our jurisprudence recognizes a distinction

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

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

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

properly granted Wiszynski’s motion for summary judgment.

        Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/2017




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