J-S12029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DOUGLAS C. CHARNEY, SON &                      IN THE SUPERIOR COURT OF
EXECUTOR OF THE ESTATE OF                            PENNSYLVANIA
D’ARCY C. WAGONHURST, DECEASED,

                            Appellant

                       v.

JENNA REITZ AND FRIENDS OF PEACE
CHURCH, INC.,

                            Appellees               No. 1573 MDA 2017


              Appeal from the Order entered September 21, 2017,
             in the Court of Common Pleas of Cumberland County,
                      Civil Division, at No(s): 2015-03977.


BEFORE: LAZARUS, J., KUNSELMAN, J. and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                         FILED APRIL 20, 2018

       Douglas Charney, on behalf of himself and the estate of his mother,

D‘Arcy Wagonhurst, appeals the trial court’s dismissal of the causes of action

he filed against Friends of Peace Church, Inc. (FOPC).   1   After careful review,

we reverse and remand for further proceedings.




____________________________________________


1  The trial court granted summary judgment in favor of Friends of Peace
Church, Inc. Jenna Reitz did not file for summary judgment. Because the
trial court order was not a final order, as defined by Pa.R.A.P. 341(b),
Charney filed an Application for Determination of Finality Pursuant to
Pa.R.A.P. 341(c). The trial court issued an order indicating that this order
was a final order and that an immediate appeal would facilitate resolution of
the entire case. Accordingly, we will proceed with a decision in this matter.
J-S12029-18



        This case stems from a fatal car accident on December 7, 2014, when

Jenna    Reitz   fatally   struck   84-year-old   D’Arcy   Wagonhurst,   as   Ms.

Wagonhurst was crossing the street to attend a Christmas program at her

church, FOPC.     FOPC does not have adequate parking; it is undisputed that

the church has only four (4) paved parking spots on site. As a result, FOPC

instructed visitors to park across the street in a private commercial lot. This

has gone on for decades.       When visitors park at the commercial lot, they

must walk across St. John’s Church Road, which has very heavy traffic.

        At various times, FOPC undertook safety measures to assist those

crossing the street. On occasion, they gained assistance with traffic control

from local police or firemen. They also used four reflective safety cones to

aid people crossing the street.      FOPC used the cones on the night of the

accident. The location of the cones, on that night, is in dispute.

        Mr. Charney raises one issue on appeal: Whether summary judgment

was inappropriate as to FOPC, because the undisputed facts establish that

the FOPC voluntarily assumed a duty of care for attendees.

        Our scope of review of a trial court's order granting or denying

summary judgment is plenary, and our standard of review is clear: the trial

court's order will be reversed only when it is established that the court

committed an error of law or abused its discretion. Englert v. Fazio Mech.

Services, Inc., 932 A.2d 122, 124 (Pa.Super. 2007) (internal citations

omitted).




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     Summary judgment is appropriate only when the record clearly shows

that there is no genuine issue of material fact and that the moving party is

entitled to judgment as a matter of law. Pa. R.C.P. 1035.2. The reviewing

court must view the record in the light most favorable to the non-moving

party and resolve all doubts as to the existence of a genuine issue of

material fact against the moving party.      Englert, 932 A.2d at 124. Only

when the facts are so clear that reasonable minds could not differ can a trial

court properly enter summary judgment. Id.

     The trial court granted summary judgment based on this Court’s

decision in Newell v. Montana W. Inc., 154 A.3d 819 (Pa.Super. 2017),

which involved similar, but not identical, facts. In that case, Victor Newell

was attending a concert at Montana West, a nightclub located on the side of

a four-lane state highway maintained by the Commonwealth. Id. Without

permission of DHL Machine Company, Newell parked his car on its property,

across the highway from Montana West. Id. While crossing the highway to

return to his car, Newell was hit and killed by a vehicle driving on the

highway.   Id.   Newell’s estate sued Montana West, and the trial court,

granting summary judgment, found that Montana West owed no duty to

Newell. Id.

     In this case, the trial court found the facts to be substantially similar to

Newell and likewise granted summary judgment. The trial court concluded

that FOPC owed no duty to Ms. Wagonhurst.




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       On appeal, Mr. Carney argues, that the facts of Newell are

distinguishable from this case, because, here, FOPC voluntarily assumed a

duty to protect pedestrians who parked across the street. In so doing, he

claims FOPC may be held liable if it was negligent in fulfilling that duty. We

agree.

       In Newell, a panel of this Court held that Montana West had no duty

to protect the safety of those who parked across the street. We thoroughly

addressed three key issues in that case.        First, we determined that a

landowner owed no duty to pedestrians on adjoining roadways. Id. at 823-

827.     Second, we concluded that a landowner owed no duty to provide

adequate parking on its premises.     Id. at 827-836. Finally, we found the

landowner did not voluntarily assume a duty by employing prior safety

measures. Id. at 836–39.

       Significantly, with respect to this third issue, the complaint in Newell

did not allege that Montana West voluntarily assumed a duty of care.

Rather, it alleged that Montana West “failed to do anything to protect its

customers who were crossing the street to [its] business.”      We concluded

that the evidence failed to show any consistent or ongoing pattern of

conduct by Montana West to voluntarily undertake safety precautions

regarding invitees parking outside its premises. Id. at 837.

       In Newell, we also noted that occasional past voluntary measures to

protect patrons did not change the application of the no-duty rule. Id. at

837-38 (citing Ferreira v. Strack, 636 A.2d 682, 688 (R.I. 1994), where a

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church did not assume a duty to request traffic control by the police or to

warn parishioners of danger, because it sometimes requested such traffic

control services in the past).

        Finally, in Newell, we looked at Section 323 of THE RESTATEMENT

SECOND OF TORTS, which provides that if someone voluntarily undertakes to

render services to another for their protection, that person is liable for

negligence in performing the duty that it voluntarily assumed. 2              The

Supreme Court of Pennsylvania has adopted Section 323.               See Feld v.

Merriam, 485 A.2d 742, 746-47 (Pa. 1984).                   The Supreme Court

emphasized, however, that an invitee “may rely upon a program of

protection only within the reasonable expectations of the program” that the

person voluntarily provided.         Id. at 747.   Thus, if a business voluntarily

offers its invitees services in addition to those that it has a legal duty to

provide, the business may be held liable for negligent provision of those

____________________________________________


2   Section 323 provides:

              One who undertakes, gratuitously or for consideration, to render
        services to another which he should recognize as necessary for the
        protection of the other’s person or things, is subject to liability to the
        other for physical harm resulting from his failure to exercise
        reasonable care to perform his undertaking, if
        (a) his failure to exercise such care increases the risk of such harm,
              or
        (b) the harm is suffered because of the other’s reliance upon the
              undertaking.

Restatement (Second) of Torts § 323.



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services only to the extent of the business’ voluntary undertaking, beyond

which it has no duty. See, e.g., Kerns v. Methodist Hosp., 574 A.2d 1068

(Pa. Super. 1990). We noted in Newell that, under Section 323, the mere

fact that a party gratuitously provides a service does not obligate that party

to continue to provide the service indefinitely and that the party is free to

abandon the undertaking. Newell, 154 A.3d at 838, citing THE RESTATEMENT

SECOND OF TORTS § 323, comment c.

      Applying this rule to the facts, we concluded in Newell that Montana

West did not voluntarily assume a duty to protect its invitees from accidents

on the adjacent highway. Even if Montana West engaged in some protective

conduct on some sporadic prior occasions, such conduct did not rise to the

level of voluntary assumption of a legal duty that obligated Montana West to

provide protective services at all later events.   Additionally, we found no

evidence of any promise or undertaking by Montana West to Newell, implicit

or otherwise, to provide him personally with safe passage to and from the

nearby property or to protect him from an accident on the highway if he

parked across the street.

      Here, Mr. Charney argues that the facts demonstrate that FOPC

voluntarily assumed a duty to its visitors who parked across the street.

First, unlike in Newell, where Montana West attempted to dissuade its

patrons from parking across the street, FOPC encouraged its visitors to park

across the street. FOPC instructed visitors to use the parking lot across St.

John’s Church Road.    Second, FOPC utilized reflective traffic cones on St

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John’s Church Road.        Mr. Charney argues that the use of traffic cones at

every event since they were purchased, ironically by Ms. Wagonhurst,

demonstrates an undertaking to protect visitors of FOPC.       Use of the cones

on a regular basis, he alleges, unequivocally establishes a consistent or

ongoing pattern of conduct to voluntarily undertake safety precautions

regarding invitees parking in the lot across the street. Third, FOPC hired an

employee whose duties included, among other things, assisting patrons in

crossing St. John’s Church Road. This employee was working on the night of

the accident. We believe these facts distinguish this case from Newell, and

establish that FOPC voluntarily undertook a duty to assist those who parked

in the lot across the street from the church.3      Thus, we conclude that FOPC

owed a duty to Ms. Wagonhurst on the night of her accident.

       Additionally, Mr. Charney suggests that the use of volunteers in the

past and prior requests for officer support also distinguish this case from

Newell, and give rise to the assumption of a duty on the part of FOPC. We

disagree with this argument.         As the court noted in Newell, the mere fact

____________________________________________


3 Mr. Charney also argued that the FOPC board of directors attempted to
undertake additional steps to aid visitors in safely crossing St. John’s Church
Road. They had discussions about placing signs, installing a crosswalk and
requesting volunteer firemen or police to aid in traffic control. For various
reasons, FOPC was prevented from taking any affirmative action to alert
drivers, other than using the traffic cones. Essentially, any additional or
permanent measures were prohibited by PennDOT. We are not persuaded
that any of these additional actions gave rise to a duty on behalf of FOPC.




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that a party gratuitously provides a service does not obligate that party to

continue to provide the service indefinitely and that the party is free to

abandon the undertaking. Newell, 154 A.3d at 838. (citing Rest. 2d Torts,

323, comment c.).

       Nonetheless, we conclude that the FOPC undertook sufficient steps to

voluntarily assume a duty to protect its visitors who parked in the lot across

St. John’s Church Road on the night of the accident. This duty started when

FOPC instructed its visitors to park in this lot.      This fact, alone, might not

create a duty on the part of FOPC.             See Newell, 154 A.3d at 829-30.4

However, this, coupled with the additional facts that FOPC hired an

employee to assist in ensuring the safety of pedestrians, and used reflective

traffic cones regularly, including on the night in question, suggests FOPC

undertook “a consistent or ongoing pattern of conduct to voluntarily protect

invitees who parked across the street.”          Newell, 154 A.3d at 837.   Thus,

whether it acted negligently in undertaking these duties on the night Ms.

Wagonhurst was killed created a question of fact for the jury to decide.

Wilson v. PECO Energy Co., 61 A.3d 229, 233 (Pa. Super. 2012) (whether


____________________________________________


4 In Newell, this Court cited with approval a New York case, where the court
found no duty on the part of a funeral home whose employee instructed
patrons to park at a lot across the street. Id. at 829-830 (citing Santoleri
v. Knightly, 663 N.Y.S.2d 505 (Sup. Ct. Monroe Cnty, 1997). In Santoleri,
the court held patrons who were injured when they were struck crossing the
street had no cause of action against the funeral home. Santoleri, 663
N.Y.S. 2d at 506, 508.



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a defendant exercised reasonable care in the performance of a duty under

section 323 is a question for the jury).

      Although the facts here are somewhat similar to Newell, they differ

significantly, because, unlike Montana West, FOPC regularly undertook

actions to assist visitors when crossing the street.        Therefore, we are

constrained to reverse the decision of the trial court in this matter, with

respect to the issue of whether FOPC owed a duty to pedestrians, like Ms.

Wagonhurst, and remand for a jury trial consistent with this memorandum.

      In its counterstatement of issues on appeal, FOPC asks that, if we

reverse the trial court’s decision regarding lack of a legal duty, we affirm the

dismissal of Mr. Charney’s claim for punitive damages against FOPC.

Although FOPC requested summary judgment on the claim for punitive

damages, the trial court did not rule on this issue, because it granted

summary judgment on the no-duty argument.           As the trial judge failed to

rule on this issue, we are unable to address it in this appeal.

      Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/20/18


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