J-S18033-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARY TOSTO                                         IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellant

                       v.

GIANT FOOD STORES, LLC AND
SHOOSTER PROPERTIES

                            Appellee                    No. 2049 EDA 2014


                  Appeal from the Order Entered June 17, 2014
                 In the Court of Common Pleas of Bucks County
                       Civil Division at No(s): 2010-11043


BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                                FILED APRIL 02, 2015

        Appellant, Mary Tosto, appeals from the June 17, 2014 order, granting

the motion for summary judgment filed by Appellees, Giant Food Stores, LLC

and Shooster Properties1 (collectively, Giant).        After careful review, we

affirm.

        We summarize the relevant factual and procedural background of this

case as follows. On February 8, 2009, Tosto alleges that she slipped and fell

on ice that had formed in the parking lot of one of Giant’s stores in

Bensalem, Pennsylvania. Trial Court Opinion, 9/24/14, at 1. Tosto alleges

that she sustained serious injuries including a “left knee contusion, neck

injury with radiculopathy, [] back injury with radiculopathy and a left
____________________________________________
1
    Shooster Properties has not filed an appellee brief in this matter.
J-S18033-15


shoulder injury.”2      Tosto’s Complaint, 7/29/10, at ¶ 8.        Tosto filed her

complaint on July 29, 2010, alleging various grounds of negligence against

Giant. Id. at ¶ 7. Giant filed its answer and new matter on May 25, 2011.

On September 5, 2013, Giant filed a motion for summary judgment. Tosto

filed her answer on October 7, 2013.             On June 17, 2014, the trial court

entered an order granting Giant’s motion for summary judgment. On July 3,

2014, Tosto filed a timely notice of appeal.3

       On appeal, Tosto raises the following issue for our review.

              A lease agreement gave [Giant] an easement over
              the parking lot where [Tosto] fell on ice. In granting
              summary judgment to Giant, did the [trial] court
              commit an error of law or abuse its discretion by
              failing to allow the jury to decide whether Giant was
              a “possessor” of the area sufficient to subject Giant
              to liability, as required by Leichter v. E. Realty Co.,
              516 A.2d 1247, 1249[,] 1250 ([Pa. Super.] 1986)[,
              appeal denied, Leichter v. Acme Mkts., Inc., 527
              A.2d 542 (Pa. 1987)]?

Tosto’s Brief at 3 (parallel citation omitted).

       We begin by noting our well-settled standard of review.

              “[O]ur 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[,] and our scope of review
____________________________________________
2
  Tosto originally filed this action in Philadelphia County. However, the
parties stipulated to transfer venue in this case to Bucks County.
Stipulation, 9/21/10, at 1.
3
 Tosto and the trial court have complied with Pennsylvania Rule of Appellate
Procedure 1925.



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J-S18033-15


          is plenary.” Petrina v. Allied Glove Corp., 46 A.3d
          795, 797–798 (Pa. Super. 2012) (citations omitted).
          “We view the record in the light most favorable to
          the nonmoving party, and all doubts as to the
          existence of a genuine issue of material fact must be
          resolved against the moving party.”        Barnes v.
          Keller, 62 A.3d 382, 385 (Pa. Super. 2012), citing
          Erie Ins. Exch. v. Larrimore, 987 A.2d 732, 736
          (Pa. Super. 2009) (citation omitted). “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.”    Id. The rule governing summary
          judgment has been codified at Pennsylvania Rule of
          Civil Procedure 1035.2, which states as follows.

               Rule 1035.2. Motion

               After the relevant pleadings are closed, but
               within such time as not to unreasonably delay
               trial, any party may move for summary
               judgment in whole or in part as a matter of law

                     (1) 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, or

                     (2) 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.

          Pa.R.C.P. 1035.2.

               “Where the non-moving party bears the
          burden of proof on an issue, he may not merely rely
          on his pleadings or answers in order to survive

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            summary judgment.” Babb v. Ctr. Cmty. Hosp.,
            47 A.3d 1214, 1223 (Pa. Super. 2012) (citations
            omitted), appeal denied, 65 A.3d 412 (Pa. 2013).
            Further, “failure 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.

                        Thus, our 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., citing Reeser v. NGK N. Am., Inc., 14 A.3d
            896, 898 (Pa. Super. 2011), quoting Jones v.
            Levin, 940 A.2d 451, 452–454 (Pa. Super. 2007)
            (internal citations omitted).

Cadena v. Latch, 78 A.3d 636, 638-639 (Pa. Super. 2013).

      Tosto’s argument on appeal is that Giant was a possessor of an

easement in the parking lot where she slipped and fell. Tosto’s Brief at 9.

Therefore, in her view, this shifted the duty of maintenance from the

landlord to Giant as the tenant.   Id. at 10.   Giant counters that no such

easement exists, and the trial court’s grant of summary judgment was

proper. Giant’s Brief at 26.

      Generally, the Restatement (Second) of Torts imposes a duty upon

businesses that are open to the public to protect the public from harm while

on their premises.

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            § 344 Business Premises Open to Public: Acts
            of Third Persons or Animals

            A possessor of land who holds it open to the public
            for entry for his business purposes is subject to
            liability to members of the public while they are upon
            the land for such a purpose, for physical harm
            caused by the accidental, negligent, or intentionally
            harmful acts of third persons or animals, and by the
            failure of the possessor to exercise reasonable care
            to

            (a) discover that such acts are being done or are
            likely to be done, or

            (b) give a warning adequate to enable the visitors to
            avoid the harm, or otherwise to protect them against
            it.

RESTATEMENT (SECOND)     OF   TORTS § 344 (1965); see also Stanton v.

Lackawanna Energy, Ltd., 886 A.2d 667, 677 (Pa. 2005) (citing to and

applying Section 344).    Likewise, the Restatement defines a possessor of

land as follows.

            § 328E Possessor of Land Defined

            A possessor of land is

            (a) a person who is in occupation of the land with
            intent to control it or

            (b) a person who has been in occupation of land with
            intent to control it, if no other person has
            subsequently occupied it with intent to control it, or

            (c) a person who is entitled to immediate occupation
            of the land, if no other person is in possession under
            Clauses (a) and (b).




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RESTATEMENT (SECOND)   OF   TORTS § 328E (1965); see also Stanton, supra

(citing to and applying Section 328E).

     Our Supreme Court has stated that when there is an area of land with

multiple tenants, the duty of care to maintain the common areas of the land

remains with the landlord.

                   In Pennsylvania, it has long been established
             as a principle of landlord-tenant law that where the
             owner of real estate leases various parts thereof to
             several tenants, but retains possession and control of
             the common passage-ways and aisles which are to
             be used by business invitees of the various tenants,
             the obligation of keeping the common aisles safe for
             the business invitees is imposed upon the landlord
             and not upon the tenants, in the absence of a
             contrary provision in the lease or leases[.]

Leary v. Lawrence Sales Corp., 275 A.2d 32, 34 (Pa. 1971) (citations

omitted). Tosto correctly notes that in Stanton, our Supreme Court noted

that when an easement is involved, “an owner of an easement is generally

considered a possessor of property and is required to maintain its

easement.”    Stanton, supra at 677.       “Accordingly, [our Supreme] Court

has held that an easement holder is subject to the same liability as any

other possessor of the premises.” Id.

     The crux of Tosto’s argument is that our opinion in Leichter, which

our Supreme Court cited to with approval in Stanton, requires that a jury

decide the question as to whether Giant was a possessor of land within the

meaning of Sections 328E and 344 of the Restatement.                  This Court

summarized the facts of Leichter as follows.

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               Plaintiff brought suit in a representative
               capacity as executrix of the estate of her
               deceased husband, who suffered a myocardial
               infarction as the result of being abducted from
               a parking lot owned by Eastern Realty
               Company. There is substantial agreement that
               on or about 8:00 p.m. on September 10, 1980,
               the Leichters drove to the Bala Cynwyd
               Shopping Center to shop at defendant Acme
               Supermarket. The shopping center consisted
               of fourteen stores, all tenants of Eastern Realty
               Company, Acme Markets, Inc. and the Lord &
               Taylor store. By agreement dated April [3,
               1956], the predecessor in title to Eastern
               Realty Incorporated had granted to the
               predecessor of Acme Markets, Incorporated an
               easement for ingress and egress over a portion
               of the land and the privilege for its business
               invitees to park in its parking lot. These same
               rights were provided for Eastern’s tenants in
               their leasing agreements.

                                    …

                After completion of the presentation of the
          evidence, the trial judge (1) ruled that the principal
          issue in the case-whether appellee Acme Markets, as
          the holder of an easement for ingress and egress
          with a privilege to park on the land, was a
          “possessor” of the land-was a matter of law to be
          determined by the judge, and then (2) concluded
          that Acme was a possessor of the land. The trial
          judge then submitted to the jury the issues of (1)
          whether there was a breach of the duty which a
          possessor owes to a business invitee, and if so, (2)
          whether the breach of that duty was the proximate
          cause of the appellant’s injuries. The jury returned
          with a verdict in favor of appellant and against
          appellees. The court en banc, however, ruled that
          the trial court had erred in treating the issue as a
          matter of law and concluded that the jury should
          determine whether appellee Acme Markets was
          a possessor of the pertinent land. As a result,


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            the court en banc granted the motion for a new trial
            that had been presented by Acme Markets.

Leichter, supra at 1249-1250 (emphasis added). This Court held that the

issue of whether an easement holder is a possessor was a question for the

jury to decide.   This is because we recognized that not every easement

holder will be found to be a possessor of land.

                  We hold that the question of whether the
            holder of an easement is a “possessor” is a question
            for the fact-finder. The expectation that this rather
            fundamental question would be quickly addressed
            and even resolved by abundant appellate authority
            has proven false. Whether a particular issue is to be
            confronted as a question of law and, therefore, is
            one to be decided by the court, or whether it is a
            question of fact to be resolved by a jury, is, once the
            study moves beyond the routine and obvious, a most
            troublesome inquiry upon which there has been a
            dearth of decision.

                                      …

                    Surely, the device of special interrogatories
            can be every bit as helpful to a jury in resolving
            issues of a more traditional nature, such as whether
            or not an easement holder is a “possessor” of land.
            The determination of “possession” and the conclusion
            of “control” may only result from the presentation of
            facts and factors that reflect (1) that the party holds
            an easement, and (2) the manner in which the party
            exercises the prerogatives of that easement. The
            trial court will, of course, determine whether there
            has been such evidence presented as is sufficient to
            deny an application for a non-suit. If that application
            is refused, it remains for the jury to determine
            liability, but the jury must first decide whether the
            easement holder was in “possession”. Only then, if
            the easement holder is determined to have been in
            possession, will the jury proceed to consider, in
            order, the issues of whether the easement holder

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            breached the duties of an easement holder in
            possession, and, if so, whether that breach was the
            proximate cause of the injury sustained.

Id. at 1249-1250.

      Tosto is correct that Leichter states that the question of whether an

easement holder is a possessor of land is a jury question.       However, the

burden is on Tosto to establish as a first-order matter, that an easement

existed.   As noted above, it is presumed that the landlord of a shopping

center has a duty to maintain the common use areas of the center unless

there is a “contrary provision in the lease[.]” Leary, supra. Tosto argues

that Section 202 of the lease is such a contrary provision. Tosto’s Brief at 9.

It provides as follows.

            Section 202 Common Areas. Together with the
            right to the nonexclusive use, in common with
            others, of all automobile parking areas, driveways,
            footways and other facilities at or upon the Shopping
            Center designed for common use, as shall be
            installed by Landlord as hereinafter provided,
            together with all the appurtenances, if any, now of
            hereafter belonging thereto.

Giant’s Answer and New Matter, 5/25/11, at Exhibit 4, at 1.

      After careful review of the certified record, we conclude Tosto is not

entitled to relief. The above-mentioned section of the lease between Giant

and the landlord does not mention an easement being created, either

explicitly or by implication. Tosto’s brief states in a conclusory fashion that

“[s]ection 202 of the [l]ease gave Giant an easement over the parking areas

of the shopping center, including the area where Ms. Tosto fell.”      Tosto’s

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Brief at 9. However, Tosto’s brief does not explain how Section 202 of the

lease gives rise to even a legal question as to whether an easement existed

in the first instance.   Further, upon review of the lease in its entirety, we

note that Section 1201 explicitly states that the landlord “shall keep and

maintain [the common areas] in good repair and condition and reasonably

free of snow, ice, refuse and other obstructions[.]” Giant’s Answer and New

Matter, 5/25/11, at Exhibit 4, at 21. As Tosto cannot show that Giant was

an easement holder, she is not entitled to Leichter’s benefit.     Therefore,

there was no issue of material fact for the jury to decide.

      Based on the foregoing, we conclude the trial court did not abuse its

discretion when it granted Giant’s motion for summary judgment.           See

Cadena, supra.       Accordingly, the trial court’s June 17, 2014 order is

affirmed.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/2/2015




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