J-A01019-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

XIAOWU LI,                                 : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                  Appellant                :
                                           :
             v.                            :
                                           :
BEULAH PRESBYTERIAN CHURCH,                :
                                           :
                  Appellee                 : No. 726 WDA 2014

                  Appeal from the Order February 10, 2014,
                  Court of Common Pleas, Allegheny County,
                      Civil Division at No. GD 10-20553

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and ALLEN, JJ.

MEMORANDUM BY DONOHUE, J.:                           FILED MARCH 10, 2015

      Appellant, Xiaowu Li (“Li”), appeals pro se from the order entered on

February 10, 2014 by the Court of Common Pleas of Allegheny County,

denying Li’s motion to remove the compulsory nonsuit entered by the trial

court. After careful review, we affirm in part and vacate in part.

      This case stems from an accident that occurred on February 13, 2009

at a roller skating event that resulted in Li sustaining fractures to her leg and

ankle. On January 14, 2011, Li filed a complaint alleging multiple counts of

negligence on the part of defendants Bellefield Church (“Bellefield”),

Pittsburgh Regional International Student Ministries (“PRISM”), and Beulah

Presbyterian Church (“Beulah”). In her amended complaint, Li alleged the

following.    On the date in question, representatives from defendants

Bellefield and PRISM invited Li to a roller skating event held at Beulah’s
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church gymnasium.      Amended Complaint, 3/11/11, ¶ 5.       Li averred that

when she arrived at the event, she informed one of the event’s organizers

that it was her first time roller skating and that she would need assistance

because she was unable to skate without help.      Id. ¶ 7.   Li claimed that

after she put on her roller skates, her volunteer assistant, Jeremy Gelpi

(“Gelpi”), helped her onto the skating floor and then “suddenly and without

warning, withdrew his aid and assistance and abandoned [her].” Id. ¶ 8. Li

alleged that because Gelpi withdrew his aid and assistance, she fell to the

floor and sustained serious injuries. Id. ¶ 9.

      On March 25, 2011, Bellefield filed preliminary objections, which the

trial court sustained on May 24, 2011, thereby dismissing Bellefield from the

case. On September 12, 2011, PRISM filed a motion for judgment on the

pleadings.   On December 5, 2011, Li consented to discontinuing her case

against PRISM.    On December 28, 2011, Beulah filed a motion for partial

judgment on the pleadings.       On April 9, 2012, the trial court granted

Beulah’s motion for partial judgment of the pleadings, striking eight of the

fourteen allegations of negligence from Li’s amended complaint.

      Following the April 9, 2012 order granting partial judgment on the

pleadings, Li’s remaining theories of liability are summarized as follows.

First, Li asserted that Beulah’s gymnasium did not conform to the safety

standards of the roller skating industry and was therefore not a suitable

venue for a roller skating event. See id. ¶ 25(h)-(l). Second, Li argues that



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Beulah failed to ensure that she received appropriate instruction on how to

skate and that Beulah did not provide her with an assistant with sufficient

training to help her.   See id. ¶ 25(g).   Third, Li contends that Beulah is

liable for her injuries under sections 323 and 324 of the Restatement

(Second) of Torts because she did not know how to skate and Gelpi, who

had taken charge of her, withdrew his assistance and caused her to fall.

See id. ¶ 25(m); see also N.T., 11/27/13, at 9-12.

     On November 21, 2013, Beulah filed a motion in limine that, inter alia,

sought to prevent Li from introducing evidence relating to her own lay

opinion regarding certain roller skating industry standards.1   Specifically,

Beulah sought to preclude Li from testifying about the roller skating

industry’s standards for proper rink design and about the roller skating

industry’s standards for instructing or assisting new skaters. On November

27, 2013, prior to beginning the trial that day, the trial court granted

Beulah’s motion in limine.     Based upon the trial court’s exclusion of

evidence, Beulah orally moved for summary judgment on Li’s remaining

claims.   Counsel for Beulah added that “[t]his motion might also be

captioned, since we are at the time of trial, a motion for compulsory




1
   This motion also sought to preclude Li from introducing certain medical
records and medical bills. See Motion In Limine, 11/21/13, ¶¶ 22-29.
Because Li has at no point challenged the trial court’s decision to preclude
this evidence, we do not address it in this Memorandum.


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nonsuit.”   N.T., 11/27/13, at 45.   On December 2, 2013, the trial court

entered a compulsory nonsuit.

      On December 6, 2013, Li filed a motion to remove the compulsory

nonsuit, which the trial court denied on February 10, 2014.      On March 4,

2014, Li filed a timely notice of appeal. On March 11, 2014, the trial court

ordered Li to file a concise statement of the errors complained of on appeal

pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure.

On March 25, 2014, Li filed a timely Rule 1925(b) statement.

      We summarize the issues Li seeks to raise on appeal as follows2: (1)

whether the trial court violated the coordinate jurisdiction rule by allowing

the compulsory nonsuit; (2) whether the trial court erred in granting

Beulah’s motion in limine, which precluded her from providing her own lay

opinion testimony regarding the roller skating industry’s standards for

proper rink design and the roller skating industry’s standards for instructing

or assisting new skaters; (3) whether the trial court erred in granting a


2
   The argument section of Li’s appellate brief violates Rule 2119(a) of the
Pennsylvania Rules of Appellate Procedure. Rule 2119(a) provides that the
argument section of an appellate brief “shall be divided into as many parts
as there are questions to be argued.” Pa.R.A.P. 2119(a). The Statement of
the Questions Involved section of Li’s appellate brief raises four issues for
our review and determination. Li’s Brief at 8. However, Li divides the
argument section of her appellate brief into six parts, resulting in several
sections with overlapping arguments. See id. Accordingly, Li’s brief is
difficult to comprehend. Therefore, we have summarized and reordered the
issues Li seeks to raise on appeal. See Cresswell v. End, 831 A.2d 673,
675 n.1 (Pa. Super. 2003) (overlooking briefing errors because the
gravamen of the appellants’ arguments could be discerned from other
portions of their brief).


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compulsory nonsuit pursuant to Rule 230.1 of the Pennsylvania Rules of Civil

Procedure prior to the presentation of Li’s case. See Li’s Brief at 12-23.

      For her first issue on appeal, Li argues that the trial court violated the

coordinate jurisdiction rule by allowing the compulsory nonsuit. Li cites no

authority whatsoever in this section of her appellate brief and does not

provide any explanation or argument for how the trial court violated the

coordinate jurisdiction rule. See Li’s Brief at 14-15. “Although this Court is

willing to liberally construe materials filed by a pro se litigant, pro se status

confers no special benefit upon the appellant.”      Wilkins v. Marsico, 903

A.2d 1281, 1284-85 (Pa. Super. 2006).        “The argument portion of a brief

must include pertinent discussion of the point raised as well as citations to

relevant authority.”   Iron Age Corp. v. Dvorak, 880 A.2d 657, 665 (Pa.

Super. 2005); Pa.R.A.P. 2119(a)-(b).        Moreover, “[f]ailure to develop an

argument results in waiver of the claim.”      Plastipak Packaging, Inc. v.

DePasquale, 937 A.2d 1106, 1112 (Pa. Super. 2007). Accordingly, we find

that Li has waived this issue.

      Next, Li argues that the trial court erred in granting Beulah’s motion in

limine, which precluded her from providing her own lay opinion testimony

relating to the roller skating industry’s standards for proper rink design and

to the roller skating industry’s standards for instructing or assisting new

skaters. See Li’s Brief at 15-21. This barred Li from recovering under her

improper rink design and improper instruction and assistance theories of



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liability.   See id.   The trial court explained its decision to grant Beulah’s

motion in limine as follows:

              Because Li proposed to demonstrate a failure of the
              physical aspects of the Beulah gymnasium to
              conform to standards within the indoor roller skating
              rink industry, her case would require a competent
              articulation of contemporary design and maintenance
              standards to the jury. Li had no witness competent
              to provide such testimony. Further, to the extent
              that Li’s case asserted that this defendant’s conduct,
              as opposed to physical characteristics of the rink,
              failed to adhere to safe practices within that same
              industry, testimony from a witness competent to
              describe current standards and accepted practices
              within the industry was necessary so that a jury
              might attempt an informed comparison of the
              conduct of Beulah against prevailing practices. Li
              proposed no witness other than herself to establish
              that Beulah failed to conform to accepted practices
              applicable to indoor roller skating.

Trial Court Opinion, 6/30/14, at 4-5.

       Li does not develop any argument that the trial court erred in granting

Beulah’s motion in limine. See Li’s Brief at 15-21. Other than the heading

of this section of her appellate brief, Li makes no reference to the trial

court’s determination that she needed to provide expert testimony to prevail

on her improper rink design and improper instruction and assistance theories

of liability and that she herself was not competent to testify as an expert.

See id.      Instead, Li uses this section of her appellate brief to argue the

merits of her claims that Beulah’s gymnasium was not a proper roller skating

rink and that the assistance she received fell below the industry standard.




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See id.     Li provides no argument on the question of whether expert

testimony is required in this instance and cites no authority to support a

finding that her own testimony on this subject is permissible. See Li’s Brief

at 15-21.

      “This Court will not develop arguments on the behalf of an appellant or

comb the record for factual underpinnings to support an appellant’s

position.” Keller v. Mey, 67 A.3d 1, 7 (Pa. Super. 2013). Therefore, we

find that Li has waived any challenge to the trial court’s decision granting

Beulah’s motion in limine.     See J.J. DeLuca Co., Inc. v. Toll Naval

Associates, 56 A.3d 402, 411 (Pa. Super. 2012) (holding that issue on

appeal is waived where appellant fails to develop argument of trial court

error).

      Next, Li argues that the trial court did not have the authority to enter

a compulsory nonsuit prior to the presentation of her case in chief. See Li’s

Brief at 12-14. The trial court acknowledges that a compulsory nonsuit was

not the appropriate procedural mechanism to use to dismiss this case prior

to Li presenting her evidence. See Trial Court Opinion, 6/30/14, at 12-13.

Rather, the trial court asserts that we should construe the dismissal of Li’s

case as the grant of summary judgment. See id.

      We agree with both Li and the trial court that a compulsory nonsuit

was not appropriate in this case. Rule 230.1(a)(1) of the Pennsylvania Rules

of Civil Procedure provides:   “In an action involving only one plaintiff and



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one defendant, the court, on oral motion of the defendant, may enter a

nonsuit on any and all causes of action if, at the close of the plaintiff’s

case on liability, the plaintiff has failed to establish a right to relief.”

Pa.R.C.P. 230.1(a)(1) (emphasis added). Our Supreme Court has explicitly

held that a “nonsuit may not be entered by the trial court pursuant to Rule

230.1(a)(1)     prior   to   the   commencement     of   trial     before   plaintiff’s

presentation of evidence as to liability.”    Lewis v. United Hosps., Inc.,

692 A.2d 1055, 1058 (Pa. 1997). Therefore, we conclude that the grant of a

compulsory nonsuit was not proper in this case.

     Instead, as it readily concedes, the trial court should have considered

Beulah’s motion as a motion for summary judgment.                Where a trial court

improperly enters a nonsuit prior to the commencement of trial and before a

plaintiff’s presentation of evidence, we are to construe the court’s order as

“one for either summary judgment or for judgment on the pleadings. Id. In

Wujcik v. Yorktowne Dental Assocs., Inc., 701 A.2d 581 (Pa. Super.

1997), our Court applied the rule from Lewis, explaining:

              While we agree that entry of a compulsory nonsuit
              before trial is improper, we nevertheless are
              convinced that [the trial court] had the authority to
              dismiss appellant’s case prior to trial. As we have
              previously held, it is entirely appropriate for a trial
              judge, at a pre-trial conference, to decide issues of
              law based on admitted or undenied facts appearing
              of record. Thus, [the trial court] had the pre-trial
              authority to determine that appellant’s offer of proof
              of damages was legally insufficient and to dismiss his
              cause of action. Of course, [the trial court] should



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           have treated appellee’s objection to appellant’s
           proposed method of proof as either a motion for
           summary judgment or for judgment on the
           pleadings. Cf. [Lewis, 692 A.2d at 1057-58]
           (compulsory nonsuit granted before plaintiffs had
           opportunity to present evidence was error; court
           should have treated motion as either one for
           summary judgment or judgment on the pleadings;
           thus, a motion to remove the nonsuit was not
           necessary to perfect an appeal); [Gallagher v.
           Harleysville Mut. Ins. Co., 617 A.2d 790, 796 (Pa.
           Super. 1992)] (same).

Id. at 583-84 (citations omitted).   Accordingly, we will construe the trial

court’s order granting a compulsory nonsuit as the grant of a motion for

summary judgment.     See id.; see also Valles v. Albert Einstein Med.

Ctr., 805 A.2d 1232, 1235 n.6 (Pa. 2002) (construing the improper grant of

a compulsory nonsuit prior to the plaintiff’s case in chief as a motion for

summary judgment).

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

or deny summary judgment is as follows:

           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



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            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 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) (quoting JP

Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1261–62 (Pa. Super.

2013)).

      Li argues that the trial court should not have dismissed her case

because Beulah is liable to her under sections 323 and 324 of the

Restatement (Second) of Torts.3      See Li’s Brief at 23-24.      Section 323

provides as follows:

            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. Section 324 further provides:



3
  Pennsylvania has adopted sections 323 and 324 Restatement (Second) of
Torts. Filter v. McCabe, 733 A.2d 1274, 1276 (Pa. Super. 1999).


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            One who, being under no duty to do so, takes charge
            of another who is helpless adequately to aid or
            protect himself is subject to liability to the other for
            any bodily harm caused to him by

                  (a) the failure of the actor to exercise
                  reasonable care to secure the safety of the
                  other while within the actor’s charge, or

                  (b) the actor’s discontinuing his aid or
                  protection, if by so doing he leaves the other in
                  a worse position than when the actor took
                  charge of him.

Restatement (Second) of Torts § 324.

      Li asserts that she informed staff at the roller skating event that she

was unable to skate without aid and that Beulah assigned Gelpi to assist her.

See Li’s Brief at 22-23. Li contends that after helping her onto the skating

floor, Gelpi failed to exercise reasonable care by suddenly and without

warning withdrawing his aid and assistance while she was skating, causing

her to fall and sustain serious injuries.     See id.   Consequently, Li argues

that Beulah is liable to her under sections 323 and 324. See id.

      The trial court disposed of Li’s section 323 and 324 argument as a

matter of law by applying the doctrine of assumption of the risk. See Trial

Court Opinion, 6/30/14, at 8-12. The trial court determined that Li assumed

the risk of roller skating and that Beulah therefore had no duty to protect Li

against the typical risks of roller skating, such as falling down or being

bumped by other skaters. Id. at 10 (citing Berman v. Radnor Rolls, Inc.,

542 A.2d 525, 531 (Pa. Super. 1988)).           For the following reasons, we



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conclude that the trial court’s application of the doctrine of assumption of

the risk was inappropriate here.

      In dicta in the case of Hughes v. Seven Springs Farm, Inc.,

762 A.2d 339 (2000), our Supreme Court indicated that “[a]s a general rule,

the doctrine of assumption of the risk, with its attendant ‘complexities’ and

‘difficulties,’ has been supplanted by the Pennsylvania General Assembly’s

adoption of a system of recovery based on comparative fault in the

Comparative Negligence Act, 42 Pa.C.S. § 7102(a)-(b).” Id. at 341 (citing

Howell v. Clyde, 620 A.2d 1107 (Pa. 1993)). The Howell case was a non-

binding plurality opinion, however, and as late as 2009, this Court has

continued to apply the assumption of the risk doctrine, albeit while

acknowledging that its “continuing vitality ... remains in doubt.” Zeidman

v. Fisher, 980 A.2d 637, 640 (Pa. Super. 2009).

      In a subsequent case, Montagazzi v. Crisci, 994 A.2d 626 (Pa.

Super. 2010), this Court indicated that the assumption of the risk doctrine is

a “function of the duty analysis” required in any negligence action, citing to

the following passage in Carrender v. Fitterer, 469 A.2d 120 (Pa. 1983):

            Appellee misperceives the relationship between the
            assumption-of-risk doctrine and the rule that a
            possessor of land is not liable to his invitees for
            obvious dangers. When an invitee enters business
            premises, discovers dangerous conditions which are
            both obvious and avoidable, and nevertheless
            proceeds voluntarily to encounter them, the doctrine
            of assumption of risk operates merely as a




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              counterpart to the possessor’s lack of duty to protect
              the invitee from those risks.

Montagazzi, 994 A.2d at 636 (quoting Carrender, 469 A.2d at 125).

       Under this formulation of the doctrine, a person relieves another of

any duty to alleviate dangers when he voluntarily proceeds “to encounter a

known or obvious danger.”      Carrender, 469 A.2d at 125. Accordingly, in

Montagazzi we reiterated that “the question of assumption of the risk

typically remains for the jury,” and that “only where the evidence reveals a

scenario so clear as to void all questions of material fact concerning the

plaintiff’s   own   conduct   can     the   court   enter   summary    judgment.”

Montagazzi, 994 A.2d at 636.

       Li’s section 323 and 324 argument is not that Beulah is liable to her

merely because she fell and injured herself at Beulah’s rink; it is that Gelpi

took charge of her and failed to exercise reasonable care by withdrawing his

aid and causing her to fall.        See Li’s Brief at 23-24.   Here, there is no

evidence of record regarding whether Li assumed any risk.             Thus, in this

case, the doctrine of assumption of the risk did not provide a basis to

dismiss Li’s section 323 and 324 claim as a matter of law on summary

judgment.4      Therefore, we conclude that summary judgment was not

appropriate in this case.     Accordingly, we vacate the trial court’s order


4
   We question whether the doctrine of assumption of the risk is a valid
defense to a section 323 and 324 claim. The trial court provides no
authority to support this notion. Based upon our disposition of this issue
and the state of the record, however, we need not reach this question.


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granting a compulsory nonsuit and remand this case to the trial court for

trial on Li’s claims based on section 323 and 324 of the Restatement

(Second) of Torts.

      Order affirmed in part and vacated in part.       Case remanded.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/10/2015




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