J-A27002-15



                             2016 PA Super 52

JAMES AND MAUREEN FRANCISCUS, AS              IN THE SUPERIOR COURT OF
PARENTS AND NATURAL GUARDIANS OF                    PENNSYLVANIA
FEMINA FRANCISCUS,

                        Appellants

                   v.

TOLGA SEVDIK, AN INDIVIDUAL,
ASHLEY DAILEY, AN INDIVIDUAL AND
JOHN STEIGERWALD, AN INDIVIDUAL
T/D/B/A FETCH PET CARE OF WEST
HILLS/SOUTH HILLS,

                        Appellee                  No. 1699 WDA 2014


                 Appeal from the Order December 16, 2013
            In the Court of Common Pleas of Allegheny County
                   Civil Division at No(s): GD 11-025355

BEFORE: BOWES, OLSON, AND STABILE, JJ.

OPINION BY BOWES, J.:                         FILED FEBRUARY 29, 2016

     James and Maureen Franciscus (“Parents”) commenced the within

negligence action to recover damages for injuries sustained by their minor

daughter, Femina, when she was bitten by Tolga Sevdik’s pit bull, Julius. At

the time of incident, the dog was being walked by Ashley Dailey, an

employee of Fetch Pet Care of West Hills/South Hills, which is owned and

operated by John Steigerwald (collectively “Pet Care defendants”). The trial

court granted summary judgment in favor of the Pet Care defendants, and

the case against Mr. Sevdik was tried and an arbitration award in the

amount of $4,000 was entered in favor of Parents. After thorough review,
J-A27002-15



we   vacate     the   summary       judgment     order    and   remand   for   further

proceedings.1

       On December 18, 2009, five-year-old Femina was playing outside her

home when she encountered Julius who was being walked by Ms. Dailey.

The child asked if she could pet the dog, and when she bent over to do so,

the dog jumped up and bit her on the chin.               Femina was taken to Mercy

Hospital for treatment.

       Parents commenced this negligence action against Mr. Sevdik, the

owner of the dog, Ms. Dailey, the dog walker, and Mr. Steigerwald, the

individual owner and operator of Fetch Pet Care of West Hills/South Hills.

After the close of the pleadings and discovery, all defendants filed motions

for summary judgment.           The trial court denied Mr. Sedvik’s motion for

summary judgment but granted summary judgment in favor of the Pet Care

defendants, finding no evidence from which one could infer the latter should

have been aware of the dog’s dangerous propensities.

       The parties agreed that the case against Mr. Sevdik would be

transferred to the arbitration division and that the decision of the arbitrators

____________________________________________


1
   Parents purport to appeal from the order granting summary judgment in
favor of the Pet Care defendants. This appeal properly lies from the final
judgment disposing of all issues as to all parties, which constituted the final
order entered against Mr. Sevdik. See footnote 2, infra. We note that once
a final, appealable order has been appealed, any prior interlocutory order
can be called into question. K.H. v. J.R., 826 A.2d 863 (Pa. 2003).



                                           -2-
J-A27002-15



would be final. The case was tried on September 17, 2014, and the board of

arbitrators returned a verdict in favor of Parents in the amount of $4,000.2

On October 14, 2014, Parents filed the within appeal challenging the

propriety of the trial court’s grant of summary judgment in favor of the Pet

Care defendants.3

        Parents raise four issues on appeal:

        1. Whether the trial court properly considered evidence of record
           from which a conclusion could be drawn that the dog service
           had been put on notice of the dog’s dangerous propensities?

        2. Whether the lower court correctly found that based upon the
           record, the Defendants were entitled to summary judgment
           as a matter of law?

        3. What evidence of record caused the trial court to find that
           summary judgment was proper for the Defendant dog service
           but not for the Defendant dog owner?

        4. Whether it is an established fact that the pit bull breed has a
           dangerous propensity for inflicting serious injuries on people?

____________________________________________


2
  A review of the docket reveals that neither Parents nor Mr. Sevdik
praeciped for the entry of final judgment on the verdict. Thus, technically,
the instant appeal is premature. However, the parties agreed that the
arbitration verdict would be binding, clearly intending it “to be a final
pronouncement on the matters.” Bonavitacola v. Cluver, 619 A.2d 1363
(Pa.Super. 1993).     In these circumstances, considerations of judicial
economy permit us to “regard as done that which ought to have been done.”
Johnson the Florist, Inc. v. TEDCO Constr. Corp., 657 A.2d 511, 514-15
(Pa.Super. 1995); accord Mackall v. Fleegle, 801 A.2d 577 (Pa.Super.
2002). We will consider this appeal as being properly before our Court from
the judgment entered on the arbitration award.
3
    Mr. Sevdik is not participating in the within appeal.



                                           -3-
J-A27002-15



Appellants’ brief at 4.

      Parents’ first three issues implicate the propriety of the trial court’s

grant of summary judgment and we will discuss them together.               The

following principles govern our 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. On appellate review, then, an appellate court
      may reverse a grant of summary judgment if there has been an
      error of law or an abuse of discretion. But the issue as to
      whether there are no genuine issues as to any material fact
      presents a question of law, and therefore, on that question our
      standard of review is de novo. This means we need not defer to
      the determinations made by the lower tribunals. To the extent
      that this Court must resolve a question of law, we shall review
      the grant of summary judgment in the context of the entire
      record.

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) (internal

quotations and citations omitted).

      At issue herein is whether, on the record before us, the trial court

erred in finding no evidence that the Pet Care defendants knew or should

have known of Julius’ dangerous propensities that could subject them to

liability for negligence. Generally,




                                       -4-
J-A27002-15



       “one who possesses or harbors a domestic animal that he does
       not know or have reason to know to be abnormally dangerous, is
       subject to liability for harm done by the animal if, but only if,

       (a) he intentionally causes the animal to do the harm, or

       (b) he is negligent in failing to prevent the harm.

Kinley v. Bierly, 876 A.2d 419, 422 (Pa.Super. 2005) (quoting Restatement

(Second) of Torts § 518: Liability for Harm Done by Domestic Animals That

Are Not Abnormally Dangerous).             A dog owner is subject to liability for

negligence for injuries caused by his dog when he knows or has reason to

know that the dog has dangerous propensities and yet fails to exercise

reasonable care to secure the dog to prevent it from injuring another.

Deardorff v Burger, 606 A.2d 489, 492 (Pa.Super. 1992).                 The same

liability extends to custodians and keepers of a dog with known dangerous

propensities while the dog is in their custody and control.4

       Parents contend that, as a pet sitter, the Pet Care defendants were

subject to the same liability as an owner while the dog was in their custody

and control. They maintain that the record establishes that both Mr. Sevdik

and Ms. Dailey knew that the sixty to seventy pound dog with a stocky body

____________________________________________


4
  This is consistent with the Pennsylvania Dog Law, 3 P.S. § 459-102, which
defines owners as “every person who keeps or harbors such, or has it in his
care.” See Commonwealth v. Seyler, 929 A.2d 262 (Pa.Cmwlth. 2007)
(upholding defendant’s conviction of summary offenses under the Dog Law
where dog resided in her home and she was walking the dog at the time of
the attack).



                                           -5-
J-A27002-15



and a big head had an energetic nature and a tendency to jump on people.

This awareness, according to Parents, implies actual or constructive

knowledge of the dog’s dangerous propensities.                  In support thereof, they

rely upon Groner v. Hedrick, 169 A.2d 302, 303 (Pa. 1961), for the

proposition that "the law makes no distinction between an animal dangerous

from    viciousness     and    one    merely         mischievous    or   dangerous     from

playfulness," and the animal's motivation or "the mood in which it inflicts

harm is immaterial." Therein, the Court cited the Restatement (Second) of

Torts § 518 (1), which defines a dangerous propensity as including the

tendency of an animal to do any act that might endanger the safety of a

person in a given situation. See also Rosenberry v. Evans, 48 A.3d 1255

(Pa.Super. 2012) (whether dog’s tic, which caused the animal to clench her

teeth in a biting motion, may constitute a dangerous propensity, precluding

grant of summary judgment).

       In further support of their contention that Julius had dangerous

propensities known to his owner and the Pet Care defendants, the Parents

offered the following. Mr. Sevdik stated to Mrs. Franciscus that, “I always

told her [Ms. Dailey] to make sure [the dog] was muzzled.”5                       Plaintiffs’

Answers     to   Interrogatories,     No.      11;    Maureen      Franciscus   Deposition,
____________________________________________


5
  A muzzle is defined as “[a] device, in any arrangement of straps or wires,
placed over an animal's mouth to prevent the animal from biting or eating.”
3 P.S. § 459-102.



                                            -6-
J-A27002-15



2/27/13, at 5-7. He had a “Beware of Dog” sign on his front door. Finally,

the Petsitting Work Order completed by Mr. Sevdik advised Pet Care that

Julius should be walked for thirty minutes, “no dogs, children; Broadway ---

a lot of dogs/people ---avoid.” This evidence created reasonable inferences

that Julius had dangerous propensities and that Mr. Sevdik and the Pet Care

defendants knew of them.

      The record reveals that, despite her acknowledged receipt of Mr.

Sevdik’s instructions, Ms. Dailey permitted the child to approach the

unmuzzled dog. The dog jumped up, and, according to Ms. Dailey, the dog

and the child bumped heads. She did not witness the dog biting the child

but noticed the child bleeding. The child was treated for a five-centimeter T-

shaped bite wound on the left side of her chin that left her with a one-

centimeter scar.

      The Pet Care defendants counter that the dog was loving and

affectionate and never exhibited any type of vicious or violent behavior.

They argue that the duty of a pet sitting service is akin to the duty of a

landlord out of possession in Rosenberry, supra.         Therein, this Court

declined to impose liability for a pet bite unless the landlord had actual

knowledge of a dangerous animal on its rental property and the right to

control or remove the animal by retaking the premises.

      Viewing the record in the light most favorable to the non-moving

party, Parents herein, we find the following. The record evidences that Mr.

                                    -7-
J-A27002-15



Sevdik, the owner of the dog, had a sign on his residence warning visitors of

the dog. Ms. Dailey was aware that the sixty to seventy pound dog had a

tendency to jump on people when excited. Mr. Sevdik purportedly directed

the Pet Care defendants to use a muzzle when walking the dog but the dog

was unmuzzled on the day in question.           The Petsitting Work Order

completed by Mr. Sevdik directed the Pet Care defendants to avoid routes

where there were people, specifically children, and dogs. Giving Parents the

benefit of all reasonable inferences, as we must do, we find sufficient

evidence of record that Julius had a dangerous propensity to jump on people

and possibly bite, if unmuzzled.

      Herein, the dog was entrusted to the Pet Care defendants and in their

control when the injury occurred. Since the Pet Care defendants knew the

dog jumped on people, was to be muzzled when walked, and was not to be

walked along routes where there were people, specifically children, and

other dogs, they had a duty to use reasonable care while the dog was in

their charge to protect others from harm.     This is far different from the

situation in Rosenberry, supra, where the issue was whether a landlord

out of possession could be subject to liability to a third party injured by a

tenant’s dog on the tenant’s premises. Therein, we held that the landlord

had no duty unless he had both actual knowledge of the dog’s dangerous

propensities and the ability to control or remove the animal by retaking the

premises. The duty herein flows from Pet Care’s contractual undertaking to

                                    -8-
J-A27002-15



assume responsibility for the dog while it was in its custody and control and

its knowledge of its dangerous propensities.         We find the circumstances

herein sufficient to subject the Pet Care defendants to liability for failure use

reasonable care to prevent the dog from harming others while in their

custody and control. Summary judgment was improper.

       Due to our disposition, we need not reach the issue whether the trial

court erred in refusing to take judicial notice of dangerous propensities of pit

bulls generally.6 However, since we are remanding for further proceedings,

we note that Pennsylvania law does not recognize a presumption that pit

bulls as a breed are dangerous or have dangerous propensities.               Our

legislature, in crafting the Dog Law, did not define a pit bull or any other

particular breed as a dangerous or vicious dog per se. See 3 P.S. § 459-

502-A.    Rather, that statute punishes dogs and owners only when a dog

exhibits dangerous behavior.         This is consistent with our tort approach to

domesticated animals. Although the Restatement (Second) of Torts § 519,

provides that, where a dog already has been determined to be dangerous

based upon a prior incident, the owner or custodian of a dangerous dog is

____________________________________________


6
   For argument in support of this proposition, Appellants refer this Court to
their brief filed in the trial court. We do not permit parties to incorporate by
reference arguments made in other briefs or pleadings.                      See
Commonwealth v. Briggs, 12 A.3d 291, 342-343 (Pa. 2011) (calling the
practice "unacceptable" “as a substitute for the proper presentation of
arguments in the body of the appellate brief").



                                           -9-
J-A27002-15



deemed to be carrying on an abnormally dangerous activity and is subject to

strict liability for the harm that results, Pennsylvania has declined to adopt

that rule. We have concluded instead that, “proof of negligence, in contrast

to holding one absolutely liable, is the vehicle by which accountability for

injury sustained because of a dog bite is to be established.”    McCloud v.

McLaughlin, 837 A.2d 541, 544 (Pa.Super. 2003) (quoting Deardorff v.

Burger, 606 A.2d 489, 493 (Pa.Super. 1992)).

      Order vacated and case remanded for further proceedings consistent

with this opinion. Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/29/2016




                                     - 10 -
