J-A35012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PATRICIA HEICHEL AND GERALD                       IN THE SUPERIOR COURT OF
HEICHEL, HER HUSBAND,                                   PENNSYLVANIA

                            Appellants

                      v.

SMITH PAVING AND CONSTRUCTION
COMPANY A/K/A SMITH PAVING &
CONSTRUCTION COMPANY, AND GRUBB
& ELLIS MANAGEMENT SERVICES, INC.,

                            Appellees                 No. 1864 WDA 2014


             Appeal from the Order Entered November 12, 2014
             In the Court of Common Pleas of Lawrence County
                    Civil Division at No(s): 2010-10057


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

MEMORANDUM BY BENDER, P.J.E.:                      FILED JANUARY 25, 2016

      Appellants, Patricia and Gerald Heichel, appeal from the order granting

summary judgment in favor of Appellees, Grubb & Ellis Management

Services, Inc. (Grubb & Ellis) and Smith Paving and Construction Company

a/k/a Smith Paving & Construction Company (Smith Paving). After careful

review, we affirm.

      The   trial   court   summarized   the   relevant   facts   and   procedural

background of this case in its Pa.R.A.P. 1925(a) opinion, as follows:

      Grubb & Ellis is the property manager for the Liberty Mutual
      Building which is located at 2501 Wilmington Road, New Castle,
      Lawrence County, Pennsylvania. Liberty Mutual entered into a
      contract with [] Smith Paving for snow removal on the Liberty
      Mutual premises for the 2007 through 2008 winter. [] Smith
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     Paving’s main responsibilities pursuant to the contract were to
     remove snow and ice from the parking lot and walkway area.

     On February 12, 2008, [] Smith Paving provided continuous
     snow removal services to the Liberty Mutual premises
     commencing at 4:00 a.m. to midnight. There was a total charge
     for 20 hours of continuous service on that date for an amount of
     $11,800.00.      The service included 20 hours of plow truck
     service, 80 tons of salt, 20 hours of backhoe service, 5 hours of
     plow truck service, 10 hours of labor on the sidewalks and 60
     bags of calcium. On that date, the New Castle area received six
     to ten inches of snow that changed to ice and freezing rain.
     There were no complaints made to [] Smith Paving or [] Grubb &
     Ellis that there was ice or snow on the Liberty Mutual parking lot
     or sidewalks. On that date, Patricia Heichel was leaving work
     and traversing the parking lot on the Liberty Mutual premises on
     her way to her vehicle when she fell. Mrs. Heichel failed to
     explain whether the parking lot, encompassing the immediate
     area of her fall, was covered with snow or ice nor could she
     recall many details from that incident, which included the type of
     shoes she was wearing or the time when the fall occurred. She
     also does not recall the cause of her fall. Lori Thorman, Mrs.
     Heichel’s co-worker, responded to the report that Mrs. Heichel
     fell. Ms. Thorman testified that she had to walk “very cautiously
     and it was slippery” in the general area of the walkways and
     parking lot. She recounted that she had to hold onto the
     security guard and was taking small steps when walking on that
     area. Ms. Thorman explained that the parking lot was slippery
     but did not describe whether there was ice or snow in that area.
     It must be noted that Ms. Thorman was walking on the parking
     lot after Mrs. Heichel fell. There is no other testimony stating
     that the parking lot or walkways were covered with snow and ice
     at the time of Mrs. Heichel’s fall.        [Appellants] originally
     presented black and white photographs derived from Liberty
     Mutual’s surveillance cameras that depicted the condition of the
     parking lot and the area where Mrs. Heichel fell. However, those
     photographs were taken from a distance that makes it difficult to
     decipher the condition of the parking lot.

     As a result of the incident, [Appellants] filed suit on January 13,
     2010, asserting claims of negligence against [] Smith Paving and
     [] Grubb & Ellis. Gerald Heichel asserted a claim for loss of
     consortium against [Appellees]. On March 29, 2010, [] Smith
     Paving filed an Answer, New Matter and Crossclaim [p]ursuant
     [t]o Pa.R.C.P. No. 1031.1, in which it contends that it is entitled

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     to contribution or indemnity from [] Grubb & Ellis, if [] Smith
     Paving is found to be liable in this case. On April 29, 2010, []
     Grubb & Ellis filed its Answer, New Matter and Crossclaim
     [p]ursuant to Pa.R.C.P. No. 1031.1, asserting it is a third party
     beneficiary of the contract between Liberty Mutual and [] Smith
     Paving and it is entitled to contribution or indemnity from []
     Smith Paving if it is found to be liable in the current matter. On
     May 10, 2010, [] Smith Paving filed a Reply to [] Grubb & Ellis’
     Crossclaim, and [] Grubb & Ellis filed its Reply to [] Smith
     Paving’s Crossclaim. On March 17, 2014, [] Smith Paving filed
     its Motion for Summary Judgment. [] Grubb & Ellis also filed a
     Motion for Summary Judgment on March 26, 2014.                  Both
     Motions for Summary Judgment argued that [Appellants] failed
     to establish a prima facie case for negligence as they are unable
     to establish the cause of Patricia Heichel’s fall nor are they able
     to demonstrate that the snow or ice accumulated in ridges or
     elevations of such size to unreasonably obstruct travel and
     create[] a dangerous condition. [] Grubb & Ellis also asserted
     that it is entitled to summary judgment on its crossclaim as it is
     a third party beneficiary of the contract between [] Smith Paving
     and Liberty Mutual in which [] Smith Paving agreed to
     [i]ndemnify [] Grubb & Ellis for liabilities arising out of [] Smith
     Paving’s performance of snow removal on the premises in
     question. The [c]ourt granted [Appellees’] Motions for Summary
     Judgment and it dismissed [Appellants’] Complaint on October
     15, 2014. As such, the [c]ourt did not address the Motions for
     Summary Judgment concerning [Appellees’] crossclaims.
     [Appellants] then filed a Motion for Reconsideration on October
     28, 2014, in which it provided the [c]ourt with several
     documents [to which] the [c]ourt did not have access [] when
     deciding the Motions for Summary Judgment which included the
     Noga Ambulance Incident Report, the Emergency Room Report
     from Jameson Memorial Hospital and higher quality photographs
     that more clearly depicted the condition of the parking lot. On
     November 12, 2014, the [c]ourt denied [Appellants’] Motion for
     Reconsideration. In response, [Appellants] filed their Notice of
     Appeal on the same date. Appellants have timely filed [their]
     Concise Statement of Matters [sic] Complained of on Appeal.

Trial Court Opinion (TCO), 12/22/14, at 3-5.

     Herein, Appellants raise the following issues for our review on appeal:




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      I.     Whether the [t]rial [c]ourt erred in concluding as a matter
             of law that Appellants’ evidence was insufficient to
             establish that the icy condition of the parking lot was the
             legal cause of [Mrs. Heichel’s] injury[?]

      II.    Whether the [t]rial [c]ourt erred in deciding genuine issues
             of material fact regarding the condition of the property and
             the cause of [Mrs.] Heichel’s injury[?]

      III.   Whether the [t]rial [c]ourt abused its discretion in failing
             to grant reconsideration when [] Appellants presented
             medical records and clearer photographs of the accident
             scene confirming that [Mrs.] Heichel’s fall was caused by
             an icy condition which existed in the designated
             walkway[?]

      IV.    Whether the [t]rial [c]ourt abused its discretion in failing
             to grant reconsideration where controlling case law renders
             the evidence contained in Appellant[s’] medical records
             sufficient to raise a genuine issue of material fact requiring
             jury resolution[?]

Appellants’ Brief at 9-10.

      Our standard of review with respect to a trial court’s decision to grant

or deny a motion for summary judgment is well-settled:

      A reviewing court may disturb the order of the trial court only
      where it is established that the court committed an error of law
      or abused its discretion. As with all questions of law, our review
      is plenary.

      In evaluating the trial court’s decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
      where there is no genuine issue of material fact and the moving
      party is entitled to relief as a matter of law, summary judgment
      may be entered. 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 summary judgment. Failure of a
      non-moving party to adduce sufficient evidence on an issue
      essential to his case and on which it bears the burden of proof
      establishes the entitlement of the moving party to judgment as a
      matter of law. Lastly, we will view the record in the light most
      favorable to the non-moving party, and all doubts as to the

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

Thompson v. Ginkel, 95 A.3d 900, 904 (Pa. Super. 2014) (citations

omitted).

      Preliminarily, we note that Appellants have failed to establish a prima

facie case of negligence against Appellees. The Pennsylvania Supreme Court

set forth the following pertinent principles of law in Amon v. Shemaka, 214

A.2d 238 (Pa. 1965):

      (1)     In order to recover, a plaintiff must prove by a fair
              preponderance of the evidence that the defendant was
              negligent, and that his negligence was the proximate
              cause of the accident;

      (2)     Moreover, the mere happening of an accident or an injury
              does not establish negligence nor raise an inference or a
              presumption of negligence nor make out a prima facie case
              of negligence[.]

Id. at 239.     In order to establish a claim for negligence, a plaintiff must

prove all of the following elements: “(1) the defendant owed a duty to the

plaintiff; (2) the defendant breached that duty; (3) a causal connection

between the breach and the resulting injury suffered by the plaintiff; and (4)

actual loss suffered by the plaintiff.”    Reeves v. Middletown Athletic

Ass’n, 866 A.2d 1115, 1126 (Pa. Super. 2004).

      Appellants first contend that the trial court erred in concluding, as a

matter of law, that there was insufficient evidence to establish that the icy

condition of the parking lot was the legal cause of Mrs. Heichel’s injury.




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Appellant’s Brief at 15. However, based upon the following, we uphold the

trial court’s decision:

       In Pennsylvania[,] there is no liability created by a general
       slippery condition on the surface of a parking lot. It must
       appear that there were dangerous conditions due to ridges or
       elevations, which were allowed to remain for an unreasonable
       length of time. Plaintiff must also show that these ridges or
       elevations were the cause of the fall and in the absence of proof
       of this, the plaintiff has no basis for recovery.

Roland v. Kravco, Inc., 513 A.2d 1029 (Pa. Super. 1986) (citations

omitted). Moreover, it has long been held by the courts in Pennsylvania that

a landowner has no absolute duty to keep his premises and sidewalks free

from snow and ice at all times, as these formations are a natural

phenomenon and are incidental to our climate. Rinaldi v. Levine, 176 A.2d

623,     625   (Pa.   Super.   1962).    See   also   Wentz   v.   Pennswood

Apartments, 518 A.2d 314, 316 (Pa. Super. 1986) (“[A]n owner or occupier

of land is not liable for general slippery conditions, for to require that one’s

walks be always free of ice and snow would be to impose an impossible

burden in view of the climatic conditions in this hemisphere.”).

       It has been consistently held by this Court that in order to recover for

a fall on an ice or snow covered sidewalk or parking lot, a plaintiff must

prove:

       (1) that snow and ice had accumulated on the sidewalk in ridges
       or elevations of such size and character as to unreasonably
       obstruct travel and constitute a danger to pedestrians travelling
       thereon; (2) that the property owner had notice, either actual or
       constructive, of the existence of such condition; (3) that it was



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      the dangerous accumulation of snow and ice which caused the
      plaintiff to fall.

Harmotta v. Bender, 601 A.2d 837, 841 (Pa. Super. 1992). “Absent proof

of all such facts, [a] plaintiff has no basis for recovery.” Rinaldi, 176 A.2d

at 625 (emphasis in original).

      In the case at hand, there is no evidence of ridges or elevations. To

the contrary, there is only evidence of generally slippery conditions.        It is

undisputed that on the date of the underlying incident, there was a major

snow storm and the entire New Castle area received 6 to 10 inches of snow.

Furthermore, the record reflects that Smith Paving provided 20 hours of

continuous snow removal services on the Liberty Mutual premises, beginning

at 4 a.m. that day, and that the weather conditions changed from snow to

freezing rain shortly before Mrs. Heichel’s fall.   Appellees cannot be held

responsible for the sudden change in weather, and Appellants have failed to

establish any negligence on the part of Appellees, where Appellees had been

performing ongoing snow removal throughout the day.

      Additionally, Mrs. Heichel is admittedly amnesic as to the events

surrounding her fall. As noted by the trial court in its Rule 1925 opinion:

      [Appellants] have failed to present the [c]ourt with adequate
      evidence to demonstrate that Mrs. Heichel’s fall was caused by
      icy conditions on the Liberty Mutual premises. The only firsthand
      testimony that indicates that the parking lot or walkway was icy
      was provided by Ms. Thorman, who stated that she had to hold
      onto the security guard while walking towards Mrs. Heichel
      because it was slippery. She further stated that the entire
      parking lot was a sheet of ice due to a sudden change in the
      weather conditions, but she failed to explain the condition of the
      location where Mrs. Heichel fell. It is important to note that Ms.


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      Thorman’s testimony is in regards to the general slippery
      conditions caused by the inclement weather and does not relay
      the conditions of the specific location where Mrs. Heichel fell.
      Ms. Thorman went to the parking lot after Mrs. Heichel had
      fallen, so she is unable to speak to the conditions of the parking
      lot at the time of the fall.

TCO at 13 (emphasis added).

      Appellants further claim that the trial court abused its discretion in

denying their motion for reconsideration. More specifically, Appellants assert

that they presented portions of Mrs. Heichel’s medical records with their

motion for reconsideration, in response to the trial court’s concern over her

inability to remember or identify the cause of her fall. Appellants’ Brief at

45.    Additionally, Appellants aver that they provided higher quality

surveillance photographs in response to the trial court’s statement that the

photographic evidence was “difficult to decipher,” and that this sharper,

clearer photographic evidence provides direct evidence of the icy condition of

the walkway at the time of Mrs. Heichel’s fall. Id. at 46.

      However, as explained in the trial court’s well-thought-out opinion:

      [Appellants] have failed to provide any testimony concerning the
      conditions of the specific area where Mrs. Heichel fell or how she
      fell. Attached to their Motion for Reconsideration, [Appellants]
      provided the [c]ourt with medical records from Noga Ambulance
      Service and Emergency Room Records from Jameson Memorial
      Hospital that indicate Mrs. Heichel was injured by slipping on ice
      while walking on the Liberty Mutual Parking Lot. The Noga
      Ambulance Incident Report stated that the parking lot was
      extremely slippery due to the weather conditions and ongoing
      snow removal, which appeared to be observations made by the
      ambulance personnel concerning the general condition of the
      parking lot. The Ambulance Incident Report also explained that
      Mrs. Heichel indicated that she fell on ice. [Appellants] provided
      the [c]ourt with pictures captured on Liberty Mutual surveillance

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      cameras in an attempt to demonstrate the condition of the
      parking lot, but no other testimony concerning the condition of
      the parking lot or the walkway. Those pictures, which appear to
      demonstrate that the snow and ice were properly removed from
      the Liberty Mutual premises, are taken from a distance and are
      difficult to decipher.    It must be noted that [Appellants]
      presented the [c]ourt with higher quality pictures attached to
      their Motion for Reconsideration; however, those pictures
      illustrate that there were generally slippery conditions in the
      area and do not demonstrate the condition of the parking lot in
      the exact area where Mrs. Heichel fell. The Court has the
      discretion whether to consider additional evidence when deciding
      a motion for reconsideration.      West Pottsgrove Twp. v.
      Moyer, 2010 WL 9519343 (Pa. Cmwlth. 2010). The [c]ourt has
      decided not to consider that evidence because [Appellants] had
      the evidence in their possession when they responded to
      [Appellees’] Motions for Summary Judgment and they failed to
      present the same when they were required to in response to the
      Motion for Summary Judgment.          Hence, it was not newly
      acquired evidence and the [c]ourt did not consider it when it
      decided [Appellants’] Motion for Reconsideration.

TCO at 11-12 (footnote omitted). “A denial of an opportunity for rehearing

or reconsideration for the purpose of receiving additional evidence will not

ordinarily be disturbed by an appellate court. Reversal is appropriate only if

the lower court has committed an abuse of discretion.”      Kruth v. Liberty

Mutual Ins. Co., 499 A.2d 354, 356 (Pa. Super. 1985) (citations omitted).

Based on our review of the record, we find no such abuse of discretion by

the trial court in this case.

      Finally, Appellants contend that the trial court’s denial of their motion

for reconsideration was an abuse of discretion, as the court failed to apply

controlling case law which Appellants suggest is specifically on point.

Appellants’ Brief at 46-49.     Appellants rely solely on Turner v. Valley

Housing Dev. Corp., 972 A.2d 531 (Pa. Super. 2009), which involved a slip

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and fall where there was contradictory evidence regarding the location and

cause of the decedent’s fall.   The appellee in Turner moved for summary

judgment, contending that the appellant had failed to prove causation. The

appellant filed an answer to the motion for summary judgment, asserting

that statements in the decedent’s medical records established the location of

the decedent’s fall.   In response, the appellee filed a motion to strike the

medical records, arguing that the statements in the records were hearsay.

Initially, the trial court granted the motion to strike the third party

statements in the medical records and granted the motion for summary

judgment in favor of the appellee. On appeal, this Court concluded that the

trial court abused its discretion in denying the motion to strike the

statements contained in the medical records and noted that medical records

are admissible under the hearsay rules as evidence of facts contained

therein, but not as evidence of medical opinion or diagnosis. Id. at 537-538

(citing Folger v. Dugan, 876 A.2d 1049, 1055 (Pa. Super. 2005)).

      Here, Appellants contend that, similar to Turner, the trial court

abused its discretion in refusing to consider the statements contained in Mrs.

Heichel’s medical records regarding the cause of her fall. However, in the

present case, Appellants did not attempt to introduce the medical records as

evidence until the filing of their motion for reconsideration, whereas in

Turner, the medical records of the decedent were raised in response to the

motion for summary judgment. As stated above, Pennsylvania courts have

discretion regarding whether or not to consider additional evidence when

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deciding a motion for reconsideration.      See McGrath Constr., Inc. v.

Upper Saucon Twp. Bd. of Supervisors, 952 A.2d 718, 729-730 (Pa.

Cmwlth. 2008). When we determine whether a request for consideration of

such additional evidence should have been granted, we examine whether

“that evidence: 1) is new; 2) could not have been obtained at trial in the

exercise of due diligence; 3) is relevant and non-cumulative; 4) is not for

the purposes of impeachment; 5) and must be likely to compel a different

result.”   Leung v. Pennsylvania Public Utility Comm’n, 582 A.2d 719,

721 (Pa. Super. 1990) (quoting Hydro-Flex, Inc. v. Alter Bolt Co., Inc.,

296 A.2d 874, 877 (Pa. Super. 1972)). As the trial court stated in its Rule

1925(a) opinion, Appellants had the medical records in their possession at

the time they responded to Appellees’ motions for summary judgment, yet

failed to present such evidence at that time.   Thus, the statements in the

medical records are not “new” evidence. Therefore, we determine the trial

court did not abuse its discretion in choosing not to consider this evidence

and denying Appellants’ motion for reconsideration.

      As Appellants failed to establish a genuine issue of material fact, we

conclude that the trial court did not commit an error of law or abuse its

discretion when it granted Appellees’ motions for summary judgment.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/25/2016




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