J-A12040-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GARY MEDSGER AND REGINA MEDSGER,                  IN THE SUPERIOR COURT OF
HIS WIFE,                                               PENNSYLVANIA

                            Appellants

                       v.

HAWAIIAN TAN AND NAILS, INC.;
GREGORY KUNTZ; AND STEPHANIE
MATKOVICH,

                            Appellees                No. 1635 WDA 2016


                Appeal from the Order Entered October 13, 2016
               In the Court of Common Pleas of Allegheny County
                     Civil Division at No(s): G.D. 13-008034


BEFORE: OLSON, SOLANO and RANSOM, JJ.

MEMORANDUM BY OLSON, J.:                       FILED NOVEMBER 20, 2017

       In this appeal, Appellants, Gary Medsger and Regina Medsger

(husband and wife), challenge two orders entered in the Civil Division of the

Court of Common Pleas of Allegheny County. The first, entered on August

20, 2015, granted summary judgment in favor of Appellee, Hawaiian Tan

and Nails, Inc. (Hawaiian Tan). The second, entered on October 11, 2016,

granted summary judgment in favor of Gregory Kuntz (Kuntz).1             After

careful review, we vacate and remand for trial.
____________________________________________


1 Appellants’ claims against other defendants named in the case were finally
resolved as of October 13, 2016, when the trial court entered an order that
acknowledged a pro rata joint tortfeasor release executed in favor of
Stephanie Matkovich (Matkovich) and that designated the summary
judgment orders entered in favor of Hawaiian Tan and Kuntz as final
(Footnote Continued Next Page)
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      We summarize the factual and procedural history in this case as

follows.   Kuntz is the owner of a property located at 8200 Perry Highway,

also known as State Route 19, in McCandless Township.            The property

consists of a building and adjacent parking lot.    Hawaiian Tan operates a

tanning and nail salon at the Perry Highway location pursuant to a lease

agreement with Kuntz.

      Matkovich was a patron of the Hawaiian Tan salon. At 6:00 p.m. on

November 8, 2011, just after dusk, Matkovich was exiting the salon’s

parking lot and attempting to cross the northbound lanes on Perry Highway

and turn left onto the southbound lanes.        At that time, Gary Medsger

(Medsger) was traveling on his motorcycle in a northerly direction on Perry

Highway. Perry Highway is a four-lane roadway with two lanes each running

generally in northerly and southerly directions; Medsger was traveling in the

leftmost, or passing, lane of the two northbound lanes along Perry Highway.

As Matkovich turned onto the highway, her vehicle collided with Medsger’s

motorcycle in the northbound passing lane.         Medsger sustained serious

injuries as a result of the accident.

(Footnote Continued) _______________________

pursuant to Pa.R.A.P. 341(a) and (b)(1) (appeal may be taken as of right
from any final order of a trial court, which includes any order that disposes
of all claims and all parties). Prior to this, Appellants voluntarily dismissed
Stephen Anthony Malkovich from the litigation.           Also, the trial court
previously entered judgment on the pleadings in favor of McCandless
Township and the Pennsylvania Department of Transportation. None of the
issues raised in this appeal involve the termination of Appellants’ claims
against these former defendants.



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       At the time of the collision, five temporary yard signs advertising

Hawaiian Tan’s business had been erected along a grassy portion of the

property located at 8200 Perry Highway situated adjacent to the road

surface. Two of the signs read “New Bulbs,” two of the signs read “5 Tans

$19.99,” and one sign read “Hot New Bulbs.” The printed words appeared in

red   lettering    on   a    rectangular       white   surface   with   dimensions   of

approximately 18 in. x 24 in.         The segment of the property on which the

signs were located was to the left of the exit used by Matkovich. Three of

the signs were within a few feet of where Kunz’s property met the curb

bordering Perry Highway. The signs stood approximately three feet above

the ground.

       Appellants filed their original complaint on May 9, 2013. Pertinent to

this appeal, Count I alleged, inter alia, that Hawaiian Tan negligently caused

Appellants to sustain injuries and damages by erecting signs in violation of

local ordinances, placing its signs too close to Perry Highway, and situating

its signs in such a manner so as to impair the view of motorists such as

Matkovich.      Count II alleged, inter alia, that Kuntz negligently harmed

Appellants by permitting Hawaiian Tan to erect and maintain its signs at the

Perry Highway property.2

____________________________________________


2  Count III of Appellants’ original complaint asserted claims against
Matkovich; however, the parties resolved those claims by executing a
release agreement. In addition, Appellants twice amended their complaint
by adding additional claims and parties. As we stated supra, however,
(Footnote Continued Next Page)


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        The trial court granted summary judgment motions filed by Hawaiian

Tan and Kuntz on August 20, 2015 and October 11, 2016, respectively.

Thereafter, the      court entered an          order   on October 13, 2016    that

acknowledged a joint tortfeaser release executed in favor of Matkovich and

that designated the orders granting summary judgment as final, appealable

orders pursuant to Pa.R.A.P. 341.              Appellants filed a timely appeal on

October 27, 2016 and the trial court issued its opinion on November 18,

2016.

        Appellants raise the following issue for our consideration:

        Did the [trial court] err in granting [s]ummary [j]udgment [] in
        favor of [Hawaiian Tan and Kuntz] where genuine issues of
        material fact existed as to whether the negligent placement of
        advertising signs in violation of numerous federal, state, and
        local laws and ordinances [was] a factual cause of Gary
        Medsger’s injuries?

Appellants’ Brief at 3.

        Appellants challenge orders that entered summary judgment in favor

of Hawaiian Tan and Kuntz, claiming that the trial court erred in finding that

there were no genuine issues of material fact pertaining to whether the

placement of Hawaiian Tan’s advertising signs were a factual cause of

Medsger’s injuries. The governing standard of review applied in such cases

is as follows.

(Footnote Continued) _______________________

those claims are no longer pending and no challenge to the dismissal of
those claims has been raised in this appeal.



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       As has been oft declared by [the Pennsylvania Supreme Court],
       “summary judgment is appropriate only in those cases where the
       record clearly demonstrates that there is no genuine issue of
       material fact and that the moving party is entitled to judgment
       as a matter of law.” Atcovitz v. Gulph Mills Tennis Club,
       Inc., 812 A.2d 1218, 1221 (Pa. 2002); Pa. R.C.P. 1035.2(1).
       When considering a motion for summary judgment, the trial
       court must take all facts of record and reasonable inferences
       therefrom in a light most favorable to the non-moving party.
       Toy v. Metropolitan Life Ins. Co., 928 A.2d 186, 195 (Pa.
       2007). In so doing, the trial court must resolve all doubts as to
       the existence of a genuine issue of material fact against the
       moving party, and, thus, may only grant summary judgment
       “where the right to such judgment is clear and free from all
       doubt.” Id. On appellate review, then,

         an appellate court may reverse a grant of summary
         judgment if there has been an error of law or an abuse of
         discretion. But the issue as to whether there are no
         genuine issues as to any material fact presents a
         question of law, and therefore, on that question [the]
         standard of review is de novo. This means we need not
         defer to the determinations made by the lower tribunals.

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010)

(emphasis     added)      (parallel   citations   omitted),   quoting   Weaver   v.

Lancaster Newspapers, Inc., 926 A.2d 899, 902-903 (Pa. 2007).

       The trial court granted summary judgment in favor of Hawaiian Tan

and Kuntz on the basis that Appellants “failed to present a prima facie case

that the placement of [Hawaiian Tan’s] advertising signs contributed to the

accident by blocking Matkovich’s view of [Perry Highway].”3 Trial Court

____________________________________________


3 The trial court observed that it was incumbent upon Appellants to
establish, by way of circumstantial evidence, a prima facie against Hawaiian
Tan and Kuntz since, during her deposition, Matkovich denied that Hawaiian
(Footnote Continued Next Page)


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Opinion, 11/18/16, at 2. Rejecting Appellants’ arguments against the entry

of summary judgment, the court explained that:

      there is insufficient circumstantial evidence from which a jury
      could conclude that a sign or signs blocked view of [Perry
      Highway].     The fact that the signs might have been in
      Matkovich’s field of vision as she looked leftward and exited the
      parking lot does not permit the inference that the signs, in fact,
      blocked her view.

Id. at 4. The trial court rejected an affidavit submitted by Nathan Medsger,

Appellants’ son, which attached several photographs depicting Hawaiian

Tan’s signs in a grassy area to the left of the lane exiting the parking lot and

adjacent to Perry Highway.             The court criticized the affidavit as an

unscientific recreation of the scene of the accident which lacked assurances

that it accurately reflected Matkovich’s viewpoint as she exited the parking

lot and entered the flow of traffic on Perry Highway.        In the trial court’s

view, neither the photographs nor the affidavit raised a genuine issue of fact

as to whether the placement of Hawaiian Tan’s signs impaired Matkovich’s

view as she entered the highway.

      We conclude that the trial court erred as a matter of law in

determining that genuine issues of fact did not preclude summary judgment

in this case. It is well settled under Pennsylvania law that the credibility and

weight attributable to witness testimony are not proper considerations at

(Footnote Continued) _______________________

Tan’s signs blocked her view of Perry Highway.             Trial Court Opinion,
11/18/16, at 2.



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summary judgment; instead, such determinations fall within the exclusive

province of the jury. See In re Estate of Hunter, 205 A.2d 97, 102 (Pa.

1964) (“The credibility of witnesses, professional or lay, and the weight to be

given to their testimony is strictly within the proper province of the trier of

fact.”).

      At the summary judgment stage, a trial court is required to consider

all facts of record, and all reasonable inferences therefrom, in a light most

favorable to the non-moving party.      Toy, 928 A.2d at 195.      This clearly

includes the facts brought to light through the affidavit of Nathan Medsger

and submitted in opposition to the motions filed by Hawaiian Tan and Kuntz.

In our view, when viewed in the light most favorable to Appellants, the

information contained within Nathan Medsger’s affidavit, together with the

photographs attached thereto, raised a plausible claim that Hawaiian Tan’s

signs impaired the view of motorists such as Matkovich and, therefore, the

placement of the signs could be regarded by a jury as negligence which

served as the proximate cause of the accident. It is irrelevant at this stage

in the litigation whether Nathan Medsger qualified as an expert witness, as

the trial court appears to imply.   See Trial Court Opinion, 11/18/16, at 4

(noting that Nathan Medsger was not an accident reconstruction expert and

his testimony would not have been admissible at trial).     At the very least,

Appellants were entitled to introduce the photographs at trial and have the

jury weigh the credibility of Matkovich’s explanation of the accident within


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the context of this evidence. Accordingly, it was error for the trial court to

reject Appellants’ claims at the summary judgment stage.

      Orders vacated. Case remanded. Jurisdiction relinquished.

      Solano, J. concurs in result.

      Ransom, J. concurs in result.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2017




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