J-A29039-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    PENNSBURY VILLAGE                          :   IN THE SUPERIOR COURT OF
    CONDOMINIUM ASSOCIATION                    :        PENNSYLVANIA
                                               :
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :   No. 825 WDA 2019
    LAUREN RIZZO                               :

               Appeal from the Order Entered February 12, 2019
       In the Court of Common Pleas of Allegheny County Civil Division at
                            No(s): GD-17-001965


BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                          FILED JANUARY 2, 2020

        Pennsbury Village Condominium Association (Pennsbury) appeals from

the order of the Court of Common Pleas of Allegheny County (trial court)

denying its motion for summary judgment in this premises liability action.1




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*   Retired Senior Judge assigned to the Superior Court.

1 Generally, “an order denying summary judgment is [] a non-appealable
interlocutory order.” McDonald v. Whitewater Challengers, Inc., 116
A.3d 99, 104 (Pa. Super. 2015), appeal denied, 130 A.3d 1291 (Pa. 2015)
(citation omitted). However, as outlined below, Pennsbury filed, and this
Court granted, a petition for review of this interlocutory appeal; thus this
appeal is properly before us. See McDonald, supra at 104-05 (reviewing
order denying motion for summary judgment where parties requested, and
the Court granted, permission to file interlocutory appeal); see also Pa.R.A.P.
1311(b).
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The trial court agrees that it denied the motion in error.      After our own

independent review, we reverse.

      We take the following pertinent facts and procedural history from our

review of the certified record. On February 7, 2017, Lauren Rizzo (Rizzo) filed

a complaint alleging that she slipped and fell on ice at Pennsbury’s apartment

building. After Rizzo filed a series of amended complaints, Pennsbury filed an

answer and new matter to which Rizzo replied.

      On March 1, 2018, Pennsbury served Rizzo with supplemental

interrogatories and a request for production of documents. After Rizzo failed

to respond, on August 3, 2018, the trial court granted Pennsbury’s motion to

compel, ordering Rizzo to provide answers to the discovery requests. After

Rizzo still failed to produce the discovery, Pennsbury filed a motion for

sanctions that the trial court granted, ordering that Rizzo be precluded from

entering any testimony at trial regarding liability or damages if she did not

respond to the discovery requests with five days. Rizzo failed to do so.

      Pennsbury then filed a motion for summary judgment in which it argued

that Rizzo could not sustain her burden of proof because she was precluded

from offering liability and damages testimony and evidence at trial. Rizzo did

not respond. After argument, the trial court denied the motion for summary

judgment. Pennsbury’s motion for reconsideration, or alternatively, motion

to certify the February 12, 2019 order for permissive appeal, was denied by




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operation of law.        See 42 Pa.C.S. § 702(b), Interlocutory Appeals by

Permission.

       Pennsbury then filed a petition for review with this Court to consider the

appeal that we granted. See Pa.R.A.P. 1311(b); (Order, Docket No. 53 WDM

2019). Pennsbury timely appealed the trial court’s order denying summary

judgment and complied with Rule 1925(b).2 See Pa.R.A.P. 1925(b).

       On August 1, 2019, the trial court filed a Rule 1925(a) opinion in which

it stated that it erroneously denied the motion for summary judgment under

the mistaken belief that, during the earlier stages of the litigation, there may

have been documents produced that were admissible at trial without further

testimony. See Pa.R.A.P. 1925(a); (Trial Court Opinion, 8/01/19, at 2-3).

The court now requests that we vacate its order denying summary judgment.

(See id. at 3).       However, before we do so, we must conduct our own

independent review of the court and Pennsbury’s representation that the

motion for summary judgment should have been granted.

       “An appellate court applies the same standard for summary judgment

as the trial court.” Donegal Mut. Ins. Co. v. Fackler, 835 A.2d 712, 715

(Pa. Super. 2003), appeal denied, 857 A.2d 679 (Pa. 2004) (citation omitted).

“Summary judgment is proper when the pleadings, depositions, answers to



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2 Rizzo did not file an appellee’s brief. See Pa.R.A.P. 2185(a)(1) (“The
appellee shall serve and file appellee’s brief within 30 days after service of
appellant’s brief and reproduced record.”).

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interrogatories, admissions on file, and affidavits demonstrate that there

exists no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law.”        Id. at 716 (citation omitted); see also

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 and must resolve all doubts

as to the existence of a genuine issue of material fact against the moving

party.” Nicolaou v. Martin, 195 A.3d 880, 891 (Pa. 2018) (citation omitted).

“[A] non-moving party may not rely merely upon controverted allegations in

the pleadings. Rather, the non-moving party must set forth specific facts by

way of affidavit, or by some other way as provided by [the Pennsylvania Rules

of Civil Procedure], demonstrating that a genuine issue of material fact exists.”

Fackler, supra at 715 (citation omitted).

      To establish a claim for premises liability, a plaintiff must establish “(1)

a duty recognized by law; (2) a breach of that duty; (3) a causal connection

between the breach and the resulting injury; and (4) actual loss or damage to

the plaintiff.” Jones v. Levin, 940 A.2d 451, 454 (Pa. Super. 2007).

      Here, our review confirms that Rizzo failed to comply with either the

court’s order that she provide discovery or its sanctions order. Therefore, she

was precluded from offering any evidence at trial of Pennsbury’s alleged

liability or her own damages. In fact, she did not even respond to Pennsbury’s

motion for summary judgment in an attempt to demonstrate that a genuine


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issue of material fact exists. See Fackler, supra at 715. Therefore, as a

matter of law, Rizzo is unable to establish all elements of a claim of premises

liability. See Levin, supra at 454.

      Accordingly, because there is no genuine issue of material fact to submit

to a jury, we agree with the trial court that it should have granted Pennsbury’s

motion for summary judgment and reverse the trial court’s order denying

summary judgment.

      Order reversed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/2/2020




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