J-S70032-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 JAMES DAVID,                              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                     Appellant             :
                                           :
               v.                          :
                                           :
 ALICE M. GETZ, LAWRENCE GETZ II,          :
 ROBERT B. GETZ & GETZ PERSONAL            :
 CARE HOME INC.                            :
                                           :
                     Appellees             :        No. 756 EDA 2018

                 Appeal from the Order Dated February 8, 2018
                In the Court of Common Pleas of Carbon County
                      Civil Division at No(s): No. 16-0398


BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.:                       FILED JANUARY 03, 2019

      Appellant, James David, appeals from the order entered in the Carbon

County Court of Common Pleas, which granted summary judgment in favor of

Appellees, Alice M. Getz, Lawrence Getz, II, Robert B. Getz, and Getz Personal

Care Home, Inc., and against Appellant in Appellant’s slip and fall/premises

liability action. We affirm.

      The trial court set forth the relevant facts and procedural history as

follows:

           On February 26, 2016, [Appellant] filed a complaint in
           negligence against [Appellees], Alice M. Getz, Lawrence
           Getz, II, Robert B. Getz, and Getz Personal Care Home, Inc.
           The complaint avers that [Appellant] fell while on
           [Appellees’] property located at 1752 State Route 534,
           Albrightsville, Carbon County, Pennsylvania and that
           [Appellees], as owners, had a duty to clear the snow and ice
           from that property.
J-S70032-18



         The incident giving rise to this action occurred on February
         28, 2014. At that time, [Appellant] was dating Kathy
         DiGregorio, who was a tenant at the subject property. After
         picking up Miss DiGregorio from work and going out for
         dinner, [Appellant] drove her to the property. There is no
         sidewalk or paved surface from the driveway to the house,
         and the yard was covered with snow and ice from a recent
         storm. There was no cleared path through the snow. Miss
         DiGregorio exited [Appellant’s] vehicle and walked through
         the snow toward the front door of the house. [Appellant]
         attempted to follow her but fell in the ice and snow, injuring
         his leg and ankle.

         The subject property was leased by [Appellee], Alice Getz,
         to Kathy DiGregorio beginning on October 1, 2012. Kathy
         DiGregorio was in possession of the entire premises
         throughout the duration of the lease. On January 29, 2014,
         Alice Getz transferred ownership of the subject premises to
         her sons, [Appellees] Lawrence Getz, II, and Robert Getz.

         Alice Getz filed a motion for summary judgment and a brief
         in support thereof on August 2, 2017. Lawrence Getz,
         Robert Getz, and Getz Personal Care Home, Inc. submitted
         their own motion for summary judgment and supporting
         brief on August 3, 2017. [Appellant] filed an answer to the
         latter motion for summary judgment on September 8, 2017.
         [Appellees] claim that Alice, Lawrence, and Robert Getz are
         landlords out of possession of the subject property and are,
         thus, immunized from liability relating to the maintenance
         of that property.

         On February 8, 2018, this [c]ourt granted [Appellees’]
         motions for summary judgment.           On March 9, 2018,
         [Appellant] filed a notice of appeal to the Superior Court.
         On March 12, 2018, this [c]ourt entered an order directing
         [Appellant] to file of record, within twenty-one (21) days, a
         concise statement of the matters complained of on appeal
         pursuant to Pennsylvania Rule of Appellate Procedure
         1925(b).     On April 2, 2018, [this court] received
         “[Appellant’s] Concise Statement of Matters Complained of
         on Appeal Pursuant to Pa.R.A.P. 1925(b)”….

(Trial Court Opinion, filed April 27, 2018, at 1-3).

                                      -2-
J-S70032-18


      Appellant raises the following issues for our review:

         SHOULD THE MOTIONS FOR SUMMARY JUDGMENT BE
         GRANTED IN LIGHT OF THE PLEADINGS AND DEPOSITION?

         ARE THERE GENUINE ISSUES OF MATERIAL FACT?

(Appellant’s Brief at 5).

      Our standard of review of an order granting summary judgment requires

us to determine whether the trial court abused its discretion or committed an

error of law. Mee v. Safeco Ins. Co. of Am., 908 A.2d 344, 347 (Pa.Super.

2006).

         Judicial discretion requires action in conformity with law on
         facts and circumstances before the trial court after hearing
         and consideration. Consequently, the court abuses its
         discretion if, in resolving the issue for decision, it misapplies
         the law or exercises its discretion in a manner lacking
         reason. Similarly, the trial court abuses its discretion if it
         does not follow legal procedure.

Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000) (internal

citations omitted). Our scope of review is plenary. Pappas v. Asbel, 564 Pa.

407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536 U.S. 938, 122 S.Ct.

2618, 153 L.Ed.2d 802 (2002). In reviewing a trial court’s grant of summary

judgment,

         [W]e 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 a judgment as a matter of
         law will summary judgment be entered. All doubts as to the

                                       -3-
J-S70032-18


         existence of a genuine issue of a material fact must be
         resolved against the moving party.

         Motions for summary judgment necessarily and directly
         implicate the plaintiff’s proof of the elements of [a] 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. In other words, 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 and the moving party
         is entitled to judgment as a matter of law, summary
         judgment is appropriate. Thus, a record that supports
         summary judgment either (1) shows the material facts are
         undisputed or (2) contains insufficient evidence of facts to
         make out a prima facie cause of action or defense.

         Upon appellate review, we are not bound by the trial court’s
         conclusions of law, but may reach our own conclusions.

Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006)

(internal citations and quotation marks omitted).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Steven R.

Serfass, we conclude Appellant’s issues merit no relief. The trial court opinion

comprehensively discusses and properly disposes of the questions presented.

(See Trial Court Opinion, filed April 27, 2018, at 3-6) (finding: Appellant

admits that Ms. DiGregorio was tenant/lessee of subject property at time of

his fall; Appellant failed to plead any exception to general rule in Pennsylvania

that lessor of land is not liable to lessee or to others, including invitees, for


                                      -4-
J-S70032-18


physical harm caused by natural or artificial conditions on land which existed

when land was transferred or which arose after transfer of possession; thus,

Appellees/lessors are not liable for Appellant’s harm1; additionally, Appellee

Getz Personal Care Home, Inc. does not and has not ever owned subject

property).2 Accordingly, we affirm on the basis of the trial court’s opinion.

       Order affirmed.




____________________________________________


1Moreover, under the express terms of the lease agreement, Ms. DiGregorio
was solely responsible to keep and maintain the property free of ice and snow.

2 Issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed waived
for appellate review. Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d
775 (2005). A Rule 1925(b) statement that is not specific enough for the trial
court to identify and address the issues Appellant wishes to raise on appeal
may also result in waiver.       Commonwealth v. Reeves, 907 A.2d 1
(Pa.Super. 2006), appeal denied, 591 Pa. 712, 919 A.2d 956 (2007).
Instantly, Appellant complains on appeal that there is a genuine dispute of
material fact concerning the validity of the lease agreement because the lease
is between Alice Getz and Ms. DiGregorio, but Lawrence and Robert Getz
owned the property at the time of Appellant’s fall. Appellant did not specify
this claim in his Rule 1925(b) statement, however, so he waived this claim on
appeal. See id. Moreover, even if properly preserved, Appellant’s claim would
merit no relief for the reasons stated in the trial court’s order granting
summary judgment in favor of Appellees. (See Order Granting Summary
Judgment, dated February 8, 2018, at n.1) (finding: when original lessor sells
land, purchaser steps into shoes of original lessor and can enforce terms of
original lease; thus, transfer of ownership did not affect validity of lease
agreement).

                                           -5-
J-S70032-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/3/19




                          -6-
                                                                           Circulated 12/04/2018 02:58 PM




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   John Molnar, Esquire                           Counsel for Plaintiff
   Kevin C. McNamara, Esquire                     Counsel for Alice M. Getz
   James R. Nanovic, Esquire                      Counsel for Lawrence Getz,
                                                  II, Robert B. Getz, and Getz
                                                  Personal Care Home, Inc.

                                MEMORANDUM OPINION

   Serfass, J. - April 27, 2018

        James David, (hereinafter "Plaintiff"), has taken this appeal

   from our order of February 8, 2018, granting Defendants' motion

   for summary judgment. We file the following Memorandum Opinion

   pursuant to Pennsylvania Rule of Appellate Procedure 1925(a) and

   recommend that the aforesaid order be affirmed for the reasons set

   forth hereinafter.

                        FACTUAL AND PROCEDURAL HISTORY

        On   February     26,   2016,        Plaintiff         filed   a   complaint              in

   negligence against Defendants, Alice M. Getz, Lawrence Getz, II,

   Robert B. Getz, and. Getz Personal Care Home ,                   Inc . The complaint
------------------                  -----------------------   ---------
   avers that Plaintiff fell while on Defendants' property located at

                                        FS-16-18
                                              1
1752 State Route 534, Albrightsville, Carbon County, Pennsylvania

and that Defendants, as owners, had a duty to clear the snow and

ice from that property.

      The incident giving rise to this action occurred on February

28, 2014. At that time, Plaintiff was dating Kathy DiGregorio, who

was   a   tenant   at   the   subject   property.   After picking up Miss

DiGregorio from work and going out for dinner, Plaintiff drove her

to the property. There is no sidewalk or paved surface from the

driveway to the house, and the yard was covered with snow and ice

from a recent storm. There was no cleared path through the snow.

Miss DiGregorio exited Plaintiff's vehicle and walked through the

snow toward the front door of the house. Plaintiff attempted to

follow her but fell in the ice and snow, injuring his leg and

ankle.

      The subject property was leased by Defendant, Alice Getz, to

Kathy DiGregorio beginning on October 1, 2012. Kathy DiGregorio

was in possession of the entire premises throughout the duration

of the lease. On January 29, 2014, Alice Getz transferred ownership

of the subject premises to her sons, Defendants Lawrence Getz, II,

and Robert Getz.

      Alice Getz filed a motion for summary judgment and a brief in

support thereof on August 2, 2017. Lawrence Getz, Robert Getz, and

                          �ome----;--Tn-c--subm±tte-d-t-h-e±r-own-mot-±on---f-o·
                                           .                                   ....r---

summary judgment and supporting brief on August 3, 2017. Plaintiff
                                   FS-16-18
                                        2
filed an answer         to   the    latter motion        for    summary judgment on

September    8,    2017.     Defendants       claim that Alice,          Lawrence,     and

Robert Getz are landlords out of possession of the subject property

and are, thus, immunized from liability relating to the maintenance

of that pr_operty.

      On February 8,         2018, this Court granted Defendants' motions

for summary judgment. On March 9, 2018, Plaintiff filed a notice

of appeal to the Superior Court.                   On March 12,       2018,    this Court

entered an order directing Plaintiff to file of record,                            within

twenty-one {21) days, a concise statement of the matters complained

of on appeal pursuant to Pennsylvania Rule of Appellate Procedure

1925 (b) .   On    April     2,    2018,    we     received    "Plaintiff's       Concise

Statement of Matters Complained of on Appeal Pursuant to Pa.R.A.P.

1925 (b)"    in which he          raises     twelve    {12)    issues    for    appellate

review.

                                      DISCUSSION

        The issues Plaintiff raises on appeal can be simplified into

(3) separate questions: 1) Whether this Court erred in failing to

find any genuine issues of material fact; 2)                      Whether this Court

failed to examine the record in the light most favorable to the

Plaintiff;        and   3}    Whether       this    Court     erred     in    determining

Defendants        are    immunized         from     liability     relating        to   the



turn.
                                           FS-16-18
                                              3
                  I.     This Court committed no error in finding that there are no

                         genuine issues of material fact

                       Plaintiff claims that Defendants failed to demonstrate that

             there are no genuine issues_ of material fact and that this Court

             erred in finding that there areno such issues. Thus, according to

             Plaintiff, summary judgment was not warranted.

                            The standards which govern summary judgment are
                       well settled. When a party seeks summary judgment, a
                       court shall enter judgment whenever there is no genuine
                       issue of any material fact as to a necessary element of
                       the cause of action or defense that could be established
                       by additional discovery. A motion for summary judgment
                       is based on an evidentiary record that entitles the
                       moving party to a judgment as a matter of law. In
                       considering the merits of a motion for summary judgment,
                       a court views 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. Finally, the court may grant
                       summary judgment only when the right to such a judgment
                       is clear and free from doubt. An appel l.abe court may
                       reverse the granting of a motion for summary judgment if
                       there has been an error of law or an abuse of discretion.

             Swords v. Harleysville Insurance Companies, 883 A.2d 562, 566-67

             (Pa. 2005)      (citations omitted).

                       The question at issue in this case is whether Defendants are

             landlords out of possession of the subject property as that would

             immunize them from liability relating to the maintenance of that

             property. Pennsylvania law follows the general rule that a lessor

             of    land is not       liable to the lessee or to others,     including

_____...._nv.i.t
          ;     ...e=e.....s� for   the physical harm caused by �ither natural     or

             artificial conditions on the land which existed when the land was
                                                FS-16-18
                                                    4
         transferred or which arose after the transfer of possession. Deeter

         v. Dull Corp., 617 A.2d 336, 338 (Pa.Super. 1992). This principle

         is based upon the theory that when the owner leases the land, the

         law regards the lease transaction as equivalent to the sale of the

         land for the term of the lease. Id. at 339. Liability is premised

         primarily on possession and control, and not ownership.      Id. There

         are several exceptions to this general rule: where the lessor

         contracts to repair; where the lessor fails to disclose dangerous

         conditions to the lessee; where the land is leased for the purpose

         of inviting the public; where the lessor retains a portion of the

         land but allows the lessee to use it; where the lessor retains a

         portion of the land that is necessary to maintain the leased part

         in a safe condition;     and,   where the lessor negligently makes

         repairs on the land while it is in the possession of the lessee.

         Id.

               In this case, Plaintiff admitted that the subject premises

         was being leased and that Kathy DiGregorio was the tenant of the

         subject premises in paragraphs two (2) and four (4), respectively,

         of "Plaintiff's Answer to Motion for Summary Judgment on behalf of

         Defendants' Lawrence Getz,      II, Robert B. Getz, and Getz Person

         Care Home,   Inc."   Further,   there was no claim that Defendants

         retained possession of     any portion of    the property,    so Miss

_____nJJ.,iGregorio was in full possession of t'he property. P1ainE1Tthas

         not pleaded, and there is no evidence, that any of the exceptions
                                         FS-16-18
                                             5
to the landlord out of possession rule apply in this case. Thus,

Defendants,       Alice Getz,       Lawrence Getz,       II,   and Robert Getz,      as

lessors,       cannot be     liable    for the physical harm caused by the

natural accumulation of ice and snow on the property which arose

after    the     transfer     of    possession.       Additionally,    because   Getz

Personal Care Home, Inc. has never owned the subject property nor

had any legal duty to maintain the property,                     it cannot be found

liable as a matter of law.

        There are no genuine issues of material fact in this matter

because Defendant has admitted that Miss DiGregorio was the tenant

of the property and that she had entered into a lease for said

property. Plaintiff mistakes Defendants' ownership of the property

for the possession and control afforded to Miss DiGregorio through

her tenancy.

        Finally,       Plaintiff argues that there are genuine issues of

material fact in regard to the issue of the statute of limitations,

but     this    action     was     filed    within    the    applicable    statute   of

limitations and,          even if     it were not I         such an issue would not

prevent summary judgment in Defendants' favor. We decline to guess

what    issue Appellant was trying to raise as to the statute of

limitations as the Superior Court has held that such attempts would

be futile. Commonwealth v. Lemon, 804 A.2d 34, 38 (Pa.Super. 2002).

        An     issue    raisea.    on appeal-is       waiv-ed-wlien   an   appellanr-s

concise statement is too vague for the trial court to identify and
                                           FS-16-18
                                               6
address any such issues. Commonwealth v. Dowling, 778 A.2d 683,

686   (Pa.Super.    2001).    When a   court must guess what        issue an

appellant is appealing, that is not enough for meaningful review.

Id.   (quoting Commonwealth v. Butler, 756 A.2d 55, 57 (Pa.Super.

2000)). Further, if an appellant does not adequately identify in

a concise manner the issue sought to be pursued on appeal, the

trial court is impeded in its preparation of a legal analysis

pertinent to that issue. Id. (quoting In re Estate of Daubert, 757

A.2d 962, 963      (Pa.Super. 2000)}. Ultimately, a concise statement

that is too vague to allow the trial court to identify the issue

raised    on   appeal   is   the   functional   equivalent   of   no concise

statement at all. Id. at 686-87.

        "The trial court may not frame the issues for an appellant,

either by guessing or anticipating." Lemon, 804 A. 2d at 38. Because

Appellant's concise statement is vague as to the issue of statute

of limitations, the issue Appellant wishes to raise on appeal would

even be waived if this Court were to correctly guess and address

the issue in our Pa. R.C.P. 1925(a} opinion. Id.

      Therefore, Appellant's vague concise statement prevents this

Court from engaging in any meaningful review of that issue and any

attempt to discern the issue would be futile.

  II.     This Court examined the record in the light most favorable
                               ---·---------
          to Plaintiff


                                    FS-16-18
                                       7
     Plaintiff next claims that this Court did not view the record

in the light most favorable to Plaintiff, the non-moving party.

     As stated above, when considering the merits of a motion for

summary judgment, the trial court must 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. Swords, 883 A.2d at 566-67.

     This Court granted Defendant's motion for summary judgment

based upon the admissions of Plaintiff in his submissions to this

Court. Plaintiff provided that "[i]t is admitted that the subject

premises was being leased [,] " and that "Kathy DiGregorio was a

tenant[.]" Even in the light most favorable to Plaintiff, if the

property was being leased, Miss DiGregorio was a tenant, and there

is no evidenrie or claim that Defendants controlled or possessed

any part of the property, then Defendants are landlords out of

possession   and    are   immunized   from   liability    related   to   the

maintenance of the property. Thus, this Court did not fail to

examine the record in the light most favorable to Plaintiff.

  III. This Court did not err in determining that Defendants are

       immunized from liability relating to the maintenance of

       the subject property

     Finally,      Plaintiff   claims     that   this    Court   erred    in

determining that Defendanfs are immunizec1-�-ta.-bi:-l"i-ty-rei.-a.tetl
                                                            ��������

to the maintenance of the property.
                                FS-16-18
                                      8
           As stated above,      Pennsylvania law follows the general rule

   that a lessor of land is not liable to the lessee or to others,

   including invitees, for the physical harm caused by either natural

   or artificial conditions on the land which existed when the land

   was transferred or which arose after the transfer of possession.

   Deeter, 617 A.2d at 338.

           Therefore, because no exceptions to this rule apply in this

   case,    Defendants,    as    lessors,    are not   liable to Plaintiff,     an

   invitee, for the physical harm caused by the natural accumulation

   of ice and snow on the land after the transfer of possession to

   Miss DiGregorio.

                                        CONCLUSION'

           For   the   reasons    set    forth    hereinabove,   we   respectfully

   recommend that the instant appeal be denied and that our summary

   judgment order of February 8, 2018, be affirmed accordingly.

                                            BY THE COURTa

                                                  �� 9}::=�>
                                            Steven R. Serfass, J.




------------�--·· ·-------




                                         FS-16-18
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