J-A31035-17


                                2018 PA Super 17

 DAVID COLLINS AND KATRINA               :   IN THE SUPERIOR COURT OF
 CANNON-COLLINS                          :        PENNSYLVANIA
                                         :
                    Appellant            :
                                         :
                                         :
              v.                         :
                                         :
                                         :   No. 1484 EDA 2017
 PHILADELPHIA SUBURBAN                   :
 DEVELOPMENT CORPORATION AND             :
 ROSS'S HOME IMPROVEMENT, INC.           :

              Appeal from the Judgment Entered May 30, 2017
    In the Court of Common Pleas of Philadelphia County Civil Division at
                     No(s): April Term, 2015 No. 3519


BEFORE:    PANELLA, J., OLSON, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.:                        FILED JANUARY 31, 2018

      David Collins (“Mr. Collins”) and Katrina Cannon-Collins (“Mrs. Cannon-

Collins”) (collectively “Appellants”) appeal from the judgment entered on May

30, 2017, in this slip and fall case.   During the course of the proceedings

below, the trial court entered summary judgment in favor of Philadelphia

Suburban Development Corporation (“PSDC”) on the basis the “hills and

ridges” doctrine precluded a finding of liability. On appeal, Appellants claim

the trial court erred in granting PSDC’s motion for summary judgment. After

a careful review, we affirm.

      The relevant facts and procedural history are as follows: On April 30,

2015, Appellants filed a civil complaint against PSDC and Ross’s Home

Improvement, Inc. (“Ross’s”) averring that, on January 21, 2014, Mr. Collins
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* Former Justice specially assigned to the Superior Court.
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slipped and fell on an ice/snow covered sidewalk on property owned by PSDC

and leased to Mr. Collins’ employer, the Pennsylvania Board of Probation and

Parole. Mr. Collins averred PSDC had contracted with Ross’s for maintenance

of the premises, including ice and snow removal. Mr. Collins averred that,

due to the negligence of PSDC and Ross’s, he suffered severe injury from the

fall, and his wife, Mrs. Cannon-Collins, averred a loss of consortium.

Thereafter, with court approval, Appellants filed an amended complaint

naming as additional defendants Earl Ross, individually, and his additional

businesses: Ecosystem Gardening, Goodman & Ross Trucking & Excavation

Construction, LLC, and EVR Landscaping.

      On August 2, 2016, PSDC filed a motion for summary judgment.

Therein, PSDC noted that Mr. Collins, who was a parole agent and worked at

an office on the premises, admitted he “was aware that it had been snowing.

There was a substantial amount of snow on the ground before [his] fall.” PSDC

Motion for Summary Judgment, filed 8/1/16, at 2 (quoting Mr. Collins’

Deposition, 2/9/16, at 41-46). Further, PSDC indicated Mr. Collins admitted

“[f]rom early that morning to the time of [his] fall there was a blizzard

occurring. So, there was a lot of snow falling and that accumulated on the

ground over a number of hours.” Id. (quoting Mr. Collins’ Answers to PSDC’s

Interrogatories, at No. 31).

      PSDC noted Mr. Collins’ work partner, Kevin Dodson, confirmed it had

been snowing on the day of Mr. Collins’ fall and it had taken the ambulance a


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“long time” to arrive due to the weather conditions. Id. Further, PSDC noted

Edward Furlong, the district director of the Board of Probation and Parole,

testified “it was a very snowy day and [his] recollection [was] that [the office]

closed early.” Id. at 3 (quoting Mr. Furlong’s Deposition, 2/10/16, at 37).

PSDC indicated a security video of the parking lot showed Mr. Collins’ accident

and the video confirmed it was snowing at the time the fall occurred.1

       Accordingly, based on the evidence produced during discovery, PSDC

argued there was no dispute Mr. Collins slipped and fell on ice/snow from the

active blizzard, and thus, PSDC sought summary judgment on the basis it did

not breach any duty it owed to Mr. Collins. Specifically, PSDC argued that,

pursuant to the hills and ridges doctrine, it had no duty to remove ice/snow

from the premises during the blizzard.2

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1 The trial court noted in its opinion that it reviewed the video and “[n]o
reasonable person viewing the video could conclude that the weather
conditions at the time of the fall were anything other than those of a blizzard.”
Trial Court Opinion, filed 1/8/17, at 4 n.1. This Court has not been provided
with the video; however, no party has challenged the trial court’s
characterization of what the video depicted.

2 PSDC further argued it contracted with Ross’s to remove the ice/snow, relied
on the expertise of Ross’s for so doing, and did not exercise control over the
means and methods of Ross’s work. PSDC Motion for Summary Judgment,
filed 8/1/16, at 4. Thus, PSDC argued Ross’s was an independent contractor
and, consequently, PSDC was not liable for the lack of ice/snow removal.
Moreover, PSDC argued it was not negligent in selecting Ross’s for the
purposes of ice/snow removal. Having found the hills and ridges doctrine
precluded liability as to PSDC, the trial court declined to reach PSDC’s
additional arguments. See Trial Court Opinion, filed 1/8/17, at 7 n.2.




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       On August 31, 2016, Appellants filed an answer in opposition to the

motion for summary judgment, to which PSDC filed a response. Appellants

filed a second answer on September 23, 2016. By order entered on October

3, 2016, the trial court granted PSDC’s motion for summary judgment and

dismissed Appellants’ claims against PSDC.3 In granting PSDC’s motion for

summary judgment, the trial court relied on the doctrine of hills and ridges,

which is “a long standing and well entrenched legal principle that protects an

owner or occupier of land from liability for generally slippery conditions

resulting from ice and snow where the owner has not permitted the ice and

snow to unreasonably accumulate in ridges or elevations.”          Biernacki v.

Presque Isle Condominiums Unit Owners Ass’n, Inc., 828 A.2d 1114,

1116 (Pa.Super. 2003) (quotation and quotation marks omitted).

       The remainder of the case proceed to arbitration, and on February 27,

2017, the board of arbitrators awarded $400,000, reduced to the arbitration

maximum of $50,000, for Mr. Collins against all remaining defendants below.

Additionally, the board of arbitrators awarded Mrs. Cannon-Collins $50,000

for her loss of consortium claim. Appellants did not appeal to the Court of

Common Pleas, and on May 30, 2017, judgment was entered in favor of

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3 Appellants filed an appeal to this Court from the trial court’s October 3, 2016,
order; however, since the order did not dispose of all parties and all claims,
this Court quashed the appeal. Collins v. Phila. Sub. Development, et al.,
3588 EDA 2016 (Pa.Super. filed 1/10/17) (per curiam order).




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Appellants based on the board of arbitrators’ award. A timely appeal followed,

and the trial court filed an opinion.4

       On appeal, Appellants challenge solely the trial court’s grant of summary

judgment in favor of PSDC. Specifically, Appellants argue the trial court erred

in holding that the hills and ridges doctrine precluded Appellants’ negligence

claim as to PSDC. In this regard, Appellants argue there was a genuine issue

of material fact as to whether they met an exception to the hills and ridges

doctrine, i.e., that the icy/snowy condition of the sidewalk was caused by

PSDC’s antecedent negligence.

       In this regard, Appellants first argue there is no evidence that PSDC

made any attempts to have the premises pretreated with a deicing product

prior to the beginning of the forecasted snowstorm and, as testified to by

Appellants’ expert, such pretreatment would have “resulted in a much safer

environment for [Mr.] Collins.”            Appellants’ Brief at 13.   Accordingly,

Appellants argue “there exists a triable fact as to whether PSDC had a duty to

pretreat the area where [Mr.] Collins fell as opined by [ ] Appellants’ expert.”

Id. at 16.

       Next, Appellants argue their expert testified that the standards for the

ice/snow removal industry provide that PSDC should have reduced its snow

removal agreement with Ross’s to writing, conducted a preseason site


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4The trial court did not direct Appellants to file a Pa.R.A.P. 1925(b) statement,
and consequently, no such statement was filed.

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inspection, and discussed safety precautions to be taken in relation to

snowstorms. See id. at 12-13. Appellants argue that PSDC’s failure in this

regard created a genuine issue of material fact as to whether PSDC’s

negligence caused Mr. Collins’ fall.

      Finally, Appellants argue there is a genuine issue of material fact as to

whether a defective condition (a ramp) hidden by the snow mounds

contributed to Mr. Collins’ fall such that PSDC’s liability was not precluded by

the hills and ridges doctrine. See id. at 16.

      In response, PSDC notes that Mr. Collins admitted during his deposition

that he first noticed it was snowing at 8:30 a.m., and when he fell sometime

between 12:30 p.m. and 1:00 p.m., it was still snowing. See PSDC’s Brief at

11. Consequently, PSDC argues that the trial court properly determined that

there was no genuine issue of material fact and, pursuant to the hills and

ridges doctrine, Appellants’ negligence claim as to PSDC was barred as a

matter of law.

      Further, PSDC argues Appellants’ reliance on the neglect-based

exception to the hills and ridges doctrine is misplaced. PSDC notes there is

no duty on landowners in Pennsylvania to pretreat their premises prior to a

snowstorm, oral contracts for snow removal are valid, and there is no dispute

that Mr. Collins fell as a result of the natural accumulation of recent ice/snow

as opposed to a condition caused by PSDC’s neglect. Id. at 18-19.




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      In reviewing Appellants’ challenge to the trial court’s granting of

summary judgment, we recognize:

             Our scope of review. . .[of summary judgment orders]. . .is
      plenary. We apply the same standard as the trial court, reviewing
      all the evidence of record to determine whether there exists a
      genuine issue of material fact. 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. Only where there is no genuine issue
      as to any material fact and it is clear that the moving party is
      entitled to judgment as a matter of law will summary judgment
      be entered.
             Motions for summary judgment necessarily and directly
      implicate the plaintiff[s’] proof of the elements of [their] cause of
      action. Summary judgment is proper 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. Thus a record that supports
      summary judgment will either (1) show the material facts are
      undisputed or (2) contain insufficient evidence of facts to make
      out a prima facie cause of action or defense and, therefore, there
      is no issue to be submitted to the jury. Upon appellate review we
      are not bound by the trial court’s conclusions of law, but may
      reach our own conclusions. The appellate Court may disturb the
      trial court’s order only upon an error of law or an abuse of
      discretion.

Alexander v. City of Meadville, 61 A.3d 218, 221 (Pa.Super. 2012)

(quotation omitted).

      For a party to prevail in a negligence action, a plaintiff must prove that

the defendant “owed a duty of care to the plaintiff, that duty was breached,

the breach resulted in the plaintiff’s injury, and the plaintiff suffered an actual

loss or damages.” Merlini ex rel. Merlini v. Gallitzin Water Authority,



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J-A31035-17


602 Pa. 346, 980 A.2d 502, 506 (2009). A land possessor is subject to liability

for physical harm caused to an invitee5 only if the following conditions are

satisfied:

       [the land possessor] knows of or reasonably should have known
       of the condition and the condition involves an unreasonable risk
       of harm, [the possessor] should expect that the invitee will not
       realize it or will fail to protect [himself] against it, and the
       [possessor] fails to exercise reasonable care to protect the invitee
       against the danger.

Estate of Swift v. Northeastern Hosp. of Philadelphia, 690 A.2d 719, 722

(Pa.Super. 1997) (citation omitted).             An invitee must present evidence

proving “either the [possessor] of the land had a hand in creating the harmful

condition, or he had actual or constructive notice of such condition.” Id. What

constitutes constructive notice depends on the circumstances of the case, but

one of the most important factors to consider is the time that elapsed between

the origin of the condition and the accident. Neve v. Insalaco's, 771 A.2d

786, 791 (Pa.Super. 2001).

       The hills and ridges doctrine, “as defined and applied by the courts of

Pennsylvania, is a refinement or clarification of the duty owed by a possessor

of land and is applicable to a single type of dangerous condition, i.e., ice and

snow.” Wentz v. Pennswood Apartments, 518 A.2d 314, 316 (Pa.Super.

1986). See Williams v. Shultz, 429 Pa. 429, 240 A.2d 812, 813-14 (1968)



____________________________________________


5There is no dispute that Mr. Collins was an invitee at the time of his fall and
PSDC was a possessor of the premises.

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J-A31035-17


(indicating that the doctrine of hills and ridges applies to preclude liability

where “the accident occurred at a time when general slippery conditions

prevailed in the community as a result of recent precipitation”) (citations

omitted)).

            In order to recover for a fall on an ice or snow covered
      surface, a plaintiff must show:
                  (1) that snow and ice had accumulated on the
                  sidewalk in ridges or elevations of such size and
                  character as to unreasonably obstruct travel
                  and constitute a danger to pedestrians
                  travelling thereon; (2) that the property owner
                  had notice, either actual or constructive, of the
                  existence of such condition; [and] (3) that it
                  was the dangerous accumulation of snow and
                  ice which caused the plaintiff to fall.
            This Court has further opined that “the only duty upon the
      property owner or tenant is to act within a reasonable time after
      notice to remove [the snow and ice] when it is in a dangerous
      condition.”

Biernacki, 828 A.2d at 1117 (quotations omitted).

      As this Court has held, “the hills and ridges doctrine may be applied only

in cases where the snow and ice complained of are the result of an entirely

natural accumulation following a recent snowfall[.]”       Harvey v. Rouse

Chamberlin, Ltd., 901 A.2d 523, 526 (Pa.Super. 2006) (quotation marks,

quotation, and emphasis omitted)). Further, “the protection afforded by the

doctrine is predicated on the assumption that ‘[t]hese formations are [n]atural

phenomena incidental to our climate[.]’” Id. (quotation and citation omitted).




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      In concluding there were no genuine issues of material fact and PSDC

was entitled to judgment as a matter of law in the instant case, the trial court

relevantly held the following:

            According to [Mr. Collins’ deposition testimony], he first
      noticed that it was snowing that morning at 8:30 a.m. He
      admitted that a substantial amount of snow had accumulated on
      the ground prior to his fall. [Mr. Collins] claimed that he walked
      with extreme caution in the [parking] lot given the dangerous
      condition. As [Mr. Collins] walked from his automobile to the
      building, he slipped and fell just after 1:30 p.m. that day.
      Additionally, [Mr. Collins] noted that, from the early morning of
      January 21, 2014, to the time of his fall that day, there was a
      blizzard occurring. Consequently, the weather conditions shortly
      before and at the time of the [slip and fall] are uncontested.
                                      ***
            [T]he hills and ridges doctrine requires that an owner or
      occupier of land, after notice of a dangerous condition of hills and
      ridges of natural accumulations of snow or ice, act within a
      reasonable amount of time to eliminate the dangerous condition.
      For example, in Biernacki[, supra], the Superior Court held that
      the trial court was not in error of law when it granted summary
      judgment to a defendant for fail[ing] to clear snow from a parking
      lot by 7:45 a.m. the morning after a snowfall had occurred
      overnight. [Id.]
             The instant case is an extreme example of the principle of
      Biernacki-to wit, that in order to proceed to the jury, a plaintiff
      must offer some facts from which a jury could conclude that a
      reasonable amount of time had elapsed between the notice of the
      dangerous condition of natural accumulations of snow or ice in the
      form of hills and ridges and the onset of the duty to eliminate the
      hills and ridges. In Biernacki, the Superior Court held that the
      trial court did not err in granting summary judgment to a
      [defendant] on the basis that [it was not reasonable for the snow
      and ice in the parking lot, that had begun to fall sometime the
      night before, to be removed by 7:45 a.m., the following morning,
      when the plaintiff fell].
            In the instant case, the parties agree that [Mr. Collins] fell
      in the midst of an active blizzard. Thus, [Mr. Collins] has no
      evidence from which a jury could conclude that a reasonable


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      amount of time had elapsed between notice of the dangerous
      condition and the beginning of the duty to clear the lot [and
      sidewalk].
            [Appellants are] asking the trial court to hold that a
      landowner or occupier has a duty to keep one’s walks or lots free
      and clear of ice and snow in the midst of a blizzard. However, if
      the court held such, then it would impose an impossible burden
      on landowners and occupiers in view of the climatic conditions in
      this hemisphere.

Trial Court Opinion, filed 1/8/17, at 4, 6-7 (footnote and citations omitted).

      We agree with the trial court’s sound reasoning. There is no factual

dispute that Mr. Collins slipped and fell on ice/snow during an active blizzard;

that is, at a time when “generally slippery conditions” prevailed in the

community. See Alexander, supra (explaining the hills and ridges doctrine).

Moreover, under prevailing law, a landowner has no obligation to correct the

conditions until a reasonable time after the winter storm has ended.    See id.

Accordingly, as a matter of law, PSDC had no duty to remove the ice and

snow, which began at approximately 8:30 a.m., from the sidewalk at the time

Mr. Collins fell between 1:30 p.m. and 2:00 p.m., particularly in light of the

fact the blizzard was still occurring at this time.    See Biernacki, supra

(holding landowner did not have duty to remove snow by the next morning

after snowfall); Gilligan v. Villanova University, 584 A.2d 1005, 1007

(Pa.Super. 1991) (“Snow and ice upon a pavement create merely transient

danger, and the only duty upon the property owner or tenant is to act within

a reasonable time after notice to remove it when it is in a dangerous

condition.”) (citations omitted)).

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J-A31035-17


       Having concluded that the hills and ridges doctrine is applicable, we turn

to Appellants’ argument that there is a genuine issue of material fact as to

whether they met an exception to the hills and ridges doctrine. Specifically,

Appellants contend that the hills and ridges doctrine does not apply in

Pennsylvania when an icy/snowy condition is caused by the defendant’s

neglect. Thus, they reason that PSDC’s failure to “treat the premises with

appropriate granular or liquid deicing products” prior to the forecasted

snowstorm constitutes neglect, and therefore, PSDC’s liability was not

precluded by the hills and ridges doctrine. See Appellants’ Brief at 13. While

we agree with Appellants that this Court has recognized various exceptions to

the hills and ridges doctrine, including that “proof of hills and ridges [is not]

required when an icy condition is caused by the defendant’s neglect,”6

Harmotta v. Bender, 601 A.2d 837, 842 (Pa.Super. 1992) (citations

omitted), we disagree that PSDC’s failure to pretreat the sidewalk falls within

this exception.

       On appeal, the sole relevant authority cited by Appellants is Mason v.

Brandywine Construction and Management, Inc., 2017 WL 1150625

(E.D. Pa. filed 3/27/17), a federal district court case to which we are not



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6 For example, this Court has held the hills and ridges doctrine does not
preclude liability where an icy condition is caused by a city’s defective hydrant,
water pipe, drain, or spigot. Harmotta v. Bender, 601 A.2d 837 (Pa.Super.
1992).


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bound. See Werner v. Plater-Zyberk, 799 A.2d 776 (Pa.Super. 2002). In

any event, in Mason, the federal district court ultimately held that “[t]o the

extent that plaintiff’s negligence claim is premised on defendants’ failure to

pretreat the sidewalk prior to the rain and/or freezing rain. . . the Court

concludes that plaintiff has not produced evidence from which a reasonable

jury could find that defendants had a duty to do so.”7 Mason, 2017 WL

1150625, at *7.

       Further, in Morin v. Traveler’s Rest Motel, Inc., 704 A.2d 1085

(Pa.Super. 1997), this Court recognized that a landowner has no duty to salt

or sand a parking lot during/immediately after an ice storm. Thus, we find no

support for Appellants’ argument that a landowner has a general affirmative

legal duty to do so prior to a winter storm. In fact, the entire “gist” of the hills

and ridges doctrine is that a landowner has no duty to correct or take

reasonable measures with regard to storm-created snowy or icy conditions

until a reasonable time after the storm has ceased. See Biernacki, supra.

       Next, in support of the neglect-based exception, Appellants argue their

expert testified that the standards for the ice/snow removal industry provide

PSDC should have reduced its snow removal agreement with Ross’s to writing,



____________________________________________


7 In Mason, the federal court’s holding was based, in part, on the fact the
winter storm was not forecasted. Appellants ask us to draw a distinction
between non-forecasted and forecasted storms, thus imposing a distinct duty
upon landowners to pretreat their premises with regard to forecasted winter
storms. We decline to do so.

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conducted a preseason site inspection, and discussed safety precautions to be

taken in relation to snowstorms. We dispose of this argument simply by noting

that Appellants concede a snowstorm was in progress at the time of Mr.

Collins’ fall. Thus, under the hills and ridges doctrine, PSDC had no affirmative

duty to ensure the removal of the ice/snow until a reasonable time after the

cessation of the winter storm. Absent any evidence that PSDC created the

hazard or exacerbated the storm-created condition, we agree with the trial

court that the hills and ridges doctrine precluded PSDC’s liability. See id.

      Finally, Appellants argue summary judgment is inappropriate since

there is a genuine issue of material fact as to whether a defective condition (a

ramp) hidden by the snow mounds contributed to Mr. Collins’ fall. We find

this issue to be waived.

      Appellants’ entire appellate argument with regard to this claim is as

follows:

            There also exists sufficient evidence that [Mr. Collins’] fall
      was caused by a defective condition[,] which was hidden by the
      snow mounds. Appellants pled in their [c]omplaints that the
      existence of the snow created defective conditions of the
      [p]remises. [Mr.] Collins also testified at his deposition that the
      ramp beneath the snow may have contributed to his fall. R-1.
      0049, 823, 857. This creates a triable issue of fact, making the
      granting of summary judgment inappropriate.

Appellants’ Brief at 16.

      Absent proper development, including citation to relevant authority, we

decline to address this issue further. See Pa.R.A.P. 2119.

      For all of the foregoing reasons, we affirm.

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     Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/31/18




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