J-S44005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PATRICK J. MCHALE, III, EXECUTOR OF             IN THE SUPERIOR COURT OF
THE ESTATE OF BETTY JANE MCHALE,                      PENNSYLVANIA
DECEASED AND PATRICK J. MCHALE, III,
IN HIS OWN RIGHT,

                            Appellant

                       v.

RIDDLE MEMORIAL HOSPITAL AND MAIN
LINE HEALTH, INC. AND JOHN S.
MCMANUS INC., SHEWARDSHIP
PARTNERSHIP, LLC, TIMOTHY HAAHS &
ASSOCIATES, INC. AND TRAFFIC &
SAFETY SIGNS, INC. AND STRIPE-A-LOT,
INC.

                            Appellee                No. 3749 EDA 2016


              Appeal from the Order Entered September 22, 2015
               In the Court of Common Pleas of Delaware County
                        Civil Division at No(s): 13-5890


BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                  FILED SEPTEMBER 22, 2017

       Appellant, Patrick J. McHale, III, Executor of the Estate of Betty Jane

McHale, deceased, and in his own right, appeals from the trial court’s order

entered September 22, 2015, granting summary judgment in favor of

Appellees, Riddle Memorial Hospital and Main Line Health, Inc. (referred to

collectively herein as “RMH/MLH”).1,2 We affirm.

____________________________________________


1
  The trial court explains why Appellant is presently contesting the
September 22, 2015 order infra.
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      The trial court summarized the procedural and factual history of this

case as follows:
      Appellant initiated the instant action against [RMH/MLH] with the
      filing of a complaint on June 14, 2013[,] seeking damages for an
      alleged accident that occurred in a multileveled garage owned by
      [RMH/MLH]. Appellant filed an amended complaint on October
      10, 2013. Appellant claims that the decedent, Betty McHale
      [(“Decedent”)], tripped and fell over a parking bumper while
      returning from her cardiac rehabilitation appointment to her
      vehicle, which was parked in a handicap spot. There were no
      witnesses to the accident and [D]ecedent slipped into a coma
      following the accident and never regained consciousness.

      [RMH/MLH] filed a joinder complaint on November 6, 2013[,]
      joining John S. McManus, Inc., Sheward Partnership, LLC[,] and
      Timothy Haahs & Associate, Inc. as additional defendants. John
      S. McManus filed a joinder complaint on April 28, 2014[,] joining
      Traffic & Safety Signs, Inc. and Stripe-A-Lot as additional
      defendants.     [RMH/MLH] filed their motion for summary
      judgment on January 16, 2015. Appellant filed a response to
      that motion on March 25, 2015[,] and [RMH/MLH] filed a reply
      memorandum on April 7, 2015. A hearing on the motion for
      summary judgment was held on August 13, 2015. Pursuant to
      the additional case law provided by Appellant at the hearing,
      [RMH/MLH] filed a second reply memorandum on August 24,
      2015. The motion for summary judgment was granted by Order
      dated September 21, 2015[,] and docketed on September 22,
      2015. Appellant filed a notice of appeal on September 29, 2015.
      On August 2, 2016, the Superior Court quashed the September
      21, 2015 appeal as it was not based on a final order that
      disposed of all claims. The August 2, 2016 Order stated, “[o]ur
      review of the record in this case reveals that a claim against …
      Stripe-A-Lot remains pending in the trial court.” On November
      17, 2016, Appellant filed a Praecipe to Discontinue the action
      against … Stripe-A-Lot, rendering the September 21, 2015 Order

                       _______________________
(Footnote Continued)
2
  On appeal, Appellant only challenges the propriety of the entry of summary
judgment in favor of RMH/MLH, and not the entry of summary judgment in
favor of any of the additional defendants. See Appellant’s Reply Brief at 1.



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      granting Summary Judgment final to all parties. Appellant filed
      the instant notice of appeal on November 29, 2016.

Trial Court Opinion (TCO), 1/24/2017, at 2-3 (internal citations omitted).

      Following Appellant’s November 29, 2016 notice of appeal, the trial

court did not direct Appellant to file a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal.      The trial court subsequently issued an opinion

dated January 24, 2017, setting forth its reasoning for granting summary

judgment in favor of RMH/MLH.       As discussed further infra, the trial court

explained that “Appellant failed to provide any evidence to [his] claim that

the negligence of [RMH/MLH] caused [D]ecedent’s accident and injuries….”

Id. at 1-2 (emphasis added).

      Presently, on appeal, Appellant raises the following issues for our

review:
          1. Did the trial court commit an error of law by failing to
             apply the appropriate standard of review when deciding
             the motions for summary judgment?

          2. Did the trial court commit an error of law in concluding
             that Appellant did not present sufficient direct and
             circumstantial evidence to create a genuine issue of
             material fact requiring submission to the jury of issueas
             [sic] to whether [RMH/MLH] had breached its duty of care
             to Decedent…?

          3. Did the trial court commit an error of law in substituting its
             own, incorrect version of the facts, usurping the province
             of the jury, to conclude that there was no basis upon which
             a jury could properly find that [Decedent] fell over the five
             and one-half inch high concrete colored parking bumper as
             she walked from the handicapped designated walkway to
             the driver’s side door of her car?

          4. Were the multiple statements made by [Decedent] to
             medical personnel both at the scene of her fall and in the


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J-S44005-17


            Emergency Room immediately thereafter admissible as
            substantive evidence under Pennsylvania law?

Appellant’s Brief at 3.

      Initially, we set forth our standard of review:
      [S]ummary 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. 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. 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.

Truax v. Roulhac, 126 A.3d 991, 996 (Pa. Super. 2015) (en banc) (internal

citations and quotations omitted). We additionally note:
      [O]ur 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.

Id. at 997 (citations omitted). “[F]ailure of a non-moving party to adduce

sufficient evidence on an issue essential to his case and on which he bears

the burden of proof establishes the entitlement of the moving party to

judgment as a matter of law.” Id. (citation omitted). Finally, “an appellate

court may reverse a grant of summary judgment if there has been an error

of law or an abuse of discretion.” Id. at 996 (citation omitted).

      As stated above, Appellant claims that the trial court committed an

error of law “by failing to apply the appropriate standard of review when


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J-S44005-17



deciding the motions for summary judgment[.]”         Appellant’s Brief at 14

(emphasis and unnecessary capitalization omitted). He challenges the trial

court’s finding that “any conclusions concerning the cause of [D]ecedent’s

fall would necessarily be the result of pure speculation and conjecture.” Id.

at 15 (citation omitted).   Appellant cites to the expert report of John S.

Posusney, P.E., in which Mr. Posusney “opine[s] that the placement of the

low, hard to discern, unpainted parking bumpers was a breach of

[RMH/MLH’s] duty to [their] business invitee, [Decedent], and created a

trap, in conjunction with the non-compliant handicapped walkway, for the

unwary pedestrian.” Id. at 9; see also id. at 16-20. Thus, Appellant claims

that “the logical, favorable inference which [Decedent] was entitled to as a

matter of law in a ruling on a [m]otion for [s]ummary [j]udgment was that

she fell over the low, hard to see parking bumper as she attempted to get to

the driver’s side door of her vehicle.” Id. at 21.

      In granting summary judgment in favor of RMH/MLH, the trial court

determined that Appellant failed to provide evidence that RMH/MLH’s alleged

negligence (i.e., the condition of the parking bumper or walkway) caused

Decedent’s fall and resulting injuries.    See TCO at 1-2.      Specifically, it

explained:
      In the instant action, Appellant only provided proof of the alleged
      negligence and that an accident occurred. The only evidence
      produced shows that [D]ecedent was found on the ground near
      an unknown vehicle, that she told someone she tripped over a
      curb, which that person interpreted to mean a parking bumper,
      and that the parking spaces in the garage had unpainted parking
      bumpers. Appellant failed to produce evidence concerning how

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J-S44005-17


        [D]ecedent tripped, how [D]ecedent fell or the location of the
        fall. There is no evidence to show why [D]ecedent believed it
        was a parking bumper she fell or tripped over or how long it took
        her to reach such a conclusion. There is also no evidence to
        show what path [D]ecedent took to her vehicle, which parking
        bumper, if any, [D]ecedent fell over or near or what [D]ecedent
        was doing at the time of her fall. Even if [D]ecedent did, in fact,
        trip and fall over a parking bumper, there is no evidence to
        establish that it was the condition of the garage or the parking
        bumper that caused her to trip and fall. Furthermore, there is
        no evidence of whether [D]ecedent saw or was aware of the
        parking bumper prior to or at the time of her fall or, if
        [D]ecedent did not see the parking bumper, whether [D]ecedent
        could have seen the parking bumper with reasonable due care
        (i.e., whether the parking bumper was in plain sight or hidden).
        Any conclusions concerning the cause of [D]ecedent’s fall would
        necessarily be the result of pure speculation and conjecture.

        Appellant attempts to support [his] conclusions with the fact that
        one of the parking bumpers may not have been centered in one
        of the parking spaces and that one of several available pathways
        to [D]ecedent’s vehicle was not code compliant. However, there
        is no factual support for the conclusion that [D]ecedent used the
        defective pathway since it was one of at least two (2) paths to
        her vehicle, or that [D]ecedent tripped over any particular
        parking bumper.[3] Any such conclusions would be the result of
____________________________________________


3
    Appellant’s expert, Mr. Posusney, specifically stated:
        Given the direction that [Decedent] was walking before she
        tripped, the parked vehicle in the third handicap parking [space]
        would have impeded her view. Furthermore, there was an
        encroachment into the accessible route as the result of a
        concrete column near the third handicap space. This caused
        [Decedent] to be further to her right to avoid this obstruction on
        her left, closer to the parked vehicle and the incident concrete
        wheel stop. Additionally, the accessible route had an excessive
        cross slope away from the wall on her left. This also directed her
        to her right, to the bottom of the “hill.” The accessible route was
        an un[-]level walking surface and difficult to walk on. Her left
        leg was uphill and her right leg was down hill [sic].            As
        [Decedent] turned to her right to access her vehicle, she was
        tripped by the end of the concrete wheel stop15 that projected
(Footnote Continued Next Page)


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J-S44005-17


      pure speculation and conjecture.        Therefore, any evidence
      concerning that walkway or particular parking bumper is not
      relevant and allowing a jury to consider those facts as proof of
      causation would be extremely prejudicial to [RMH/MLH].
      Furthermore, without evidence that [D]ecedent did in fact use
      the subject walkway and did in fact trip over that particular
      parking bumper, there is no proof that those alleged defects
      caused [D]ecedent’s fall and injuries, as Appellant’s theory is one
      of many possibilities that could have reasonably caused
      [D]ecedent to fall. As such, Appellant has failed to meet their
      burden and summary judgment in [RMH/MLH’s] favor is proper.

TCO at 8-10 (internal citations omitted).         We agree with the trial court’s

analysis.

      This Court has previously explained:
      In trying to recover for an action in negligence, a party must
      prove four elements. They are:

            1. A duty or obligation recognized by law.

            2. A breach of the duty.

            3. Causal connection between the actor’s breach of
            the duty and the resulting injury.

                       _______________________
(Footnote Continued)

      beyond the side of the vehicle in the third handicap parking
      space.
            15
              It cannot be ascertained if the concrete wheel stop was
            centered in the parking space at the time of the accident.

See Appellant’s Brief at 18-19. Based on our review of the record, we agree
with the trial court and RMH/MLH that “Mr. Posusney predicated his findings
and conclusions on facts not found in the record.” See RMH/MLH’s Brief at
13; TCO at 9. We note that, “[E]xpert testimony is incompetent if it lacks an
adequate basis in fact. While an expert’s opinion need not be based on
absolute certainty, an opinion based on mere possibilities is not competent
evidence. This means that expert testimony cannot be based solely upon
conjecture or surmise.”        Helpin v. Trustees of University of
Pennsylvania, 969 A.2d 601, 617 (Pa. Super. 2009) (citation omitted).



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J-S44005-17


          4. Actual loss or damage suffered by complainant.

       It is beyond question that the mere existence of negligence and
       the occurrence of injury are insufficient to impose liability upon
       anyone as there remains to be proved the link of causation.
       Furthermore, our Supreme Court has stated that “... even when
       it is established that the defendant breached some duty of care
       owed the plaintiff, it is incumbent on a plaintiff to establish a
       causal connection between defendant’s conduct, and it must be
       shown to have been the proximate cause[4] of plaintiff’s injury.”

Lux, 887 A.2d at 1286 (emphasis in original; internal citations omitted).

       In their briefs, both parties discuss the case of First v. Zem Zem

Temple, 686 A.2d 18 (Pa. Super. 1996). In that case, while at a wedding

reception, a woman fell while dancing on a dance floor “consist[ing] of

numerous panels which were made of a wooden parquet-type material[.]”

Id. at 20 (citation omitted).           The woman subsequently sued multiple

defendants connected to the dance floor, alleging, in part, that they “were

negligent in failing to insure that the dance floor was safe, failing to install it

properly, failing to inspect the floor properly and failing to warn [the woman]

of the dangerous condition.” Id. During discovery, the disc jockey at the

wedding testified that “a section of the dance floor … was discolored and

extremely, extremely slippery[,]” and that “in one area where the panels of

the dance floor were connected there was a metal lip, which was raised
____________________________________________


4
  “Proximate causation is defined as a wrongful act which was a substantial
factor in bringing about the plaintiff’s harm.”    Lux v. Gerald E. Ort
Trucking, Inc., 887 A.2d 1281, 1286 (Pa. Super. 2005) (citation omitted).
“Proximate cause is a question of law to be determined by the court before
the issue of actual cause may be put to the jury.” Id. at 1287 (citation
omitted).



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J-S44005-17



higher than the other areas of the floor.” Id. (internal quotation marks and

citations omitted).    The woman also testified that “she fell because the heel

of her shoe slipped on the dance floor’s wooden surface, and that she

observed that the dance floor had a section which was lighter in color than

the other areas of the floor.” Id.

      The defendants moved for summary judgment, arguing that the

woman “did not fall until she was approximately three or four feet away from

these areas[,]” and therefore “the slippery or raised areas of the dance floor

could not have caused [her] to fall.” Id. at 20-21 (citation omitted). The

trial court agreed and entered summary judgment in favor of defendants,

determining that the woman “could not identify the reason she fell … and

could not prove directly that the identified ‘hazards’ on the floor caused her

to fall.” Id. at 21.

      On appeal, we reversed, concluding that the woman “presented

sufficient circumstantial evidence from which a jury could infer reasonably

that a slippery or raised area of the floor caused [her] to fall.” Id. (footnote

omitted). We observed:
      Although it is clear that a jury is not permitted to reach a verdict
      based upon guess or speculation, it is equally clear that a jury
      may draw inferences from all of the evidence presented. Cade
      v. McDanel, 451 Pa.Super. 368, 679 A.2d 1266 (1996).

         It is not necessary, under Pennsylvania law, that every fact
         or circumstance point unerringly to liability; it is enough
         that there be sufficient facts for the jury to say reasonably
         that the preponderance favors liability....The facts are for
         the jury in any case whether based upon direct or
         circumstantial      evidence      where      a   reasonable


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J-S44005-17


           conclusion can be arrived at which would place
           liability on the defendant. It is the duty of [the]
           plaintiffs to produce substantial evidence which, if
           believed, warrants the verdict they seek. The right of
           a litigant to have the jury pass upon the facts is not to be
           that a reasonable man might properly find either way. A
           substantial part of the right to trial by jury is taken away
           when judges withdraw close cases from the jury.
           Therefore, when a party who has the burden of proof
           relies upon circumstantial evidence and inferences
           reasonably deductible therefrom, such evidence, in
           order to prevail, must be adequate to establish the
           conclusion sought and must so preponderate in favor
           of that conclusion as to outweigh in the mind of the
           fact-finder any other evidence and reasonable
           inferences      therefrom     which      are    inconsistent
           therewith.

      Cade, 679 A.2d at 1271 (quoting Smith v. Bell Telephone Co.
      of Pennsylvania, 397 Pa. 134, 153 A.2d 477, 480 (1959)).

First, 686 A.2d at 21 (emphasis added). Based on the foregoing, the First

Court determined that “[w]ithout resort to conjecture, the jury would have

had a rational basis to choose, over any other inference suggested by the

evidence, the inference that there was a defect in the dance floor, that the

dance floor was unsafe and that [the woman] fell as a result thereof.” Id. at

22.

      Assuming arguendo that Decedent did trip over a parking bumper in

the case sub judice, it is totally ambiguous why Decedent may have tripped

over it.    Unlike in First where there was evidence that the woman fell

because her shoe’s heel slipped on the dance floor’s surface and the disc

jockey confirmed that sections of the dance floor were “extremely

slippery[,]” First, 686 A.2d at 20, there is no similar evidence in this case



                                      - 10 -
J-S44005-17



that Decedent tripped over the parking bumper because it was allegedly

unpainted or off-centered, as argued by Appellant. As discerned by the trial

court, “[t]he only evidence produced shows that [D]ecedent was found on

the ground near an unknown vehicle, that she told someone she tripped

over a curb, which that person interpreted to mean a parking bumper, and

that the parking spaces in the garage had unpainted parking bumpers.” TCO

at 8.5 Thus, it would be conjecture to find that RMH/MLH’s purported failure

to maintain painted parking bumpers or compliant walkways caused

Decedent to fall. Further, as the trial court emphasized above, “Appellant’s

theory is one of many possibilities that could have reasonably caused

[D]ecedent to fall.” Id. at 9. In contrast to First — where the woman could

testify to the nature and location of her fall, and there was a witness to it —

the jury here would have no rational basis to choose Appellant’s theory of

causation over any other theory suggested by the evidence given the

meager factual record.         See First, 686 A.2d at 21, 22.    We therefore

conclude that Appellant has not proffered sufficient evidence to establish a

causal connection between RMH/MLH’s allegedly non-compliant parking

bumper and walkway, and Decedent’s injuries.           As Appellant has not
____________________________________________


5
  Accord Appellant’s Brief at 4-7, 33 (“[Decedent] was on her way to her car
to get home; her car was parked in the fourth handicapped space from the
walkway, she was found on the ground, in the area of the handicapped
parking spaces, sitting up after having fallen and injured her hand, shoulder,
chest, face and head in a fall which she consistently and repeatedly
described as a trip over the parking curb.”).



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J-S44005-17



persuaded us that the trial court committed an error of law or abused its

discretion, we affirm the trial court’s order granting summary judgment to

RMH/MLH.6

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/22/2017




____________________________________________


6
  Because we deem this issue to be dispositive, we do not address
Appellant’s other issues.



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