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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ALBERT E. EISBACHER AND LUCILLE                IN THE SUPERIOR COURT OF
EISBACHER, HIS WIFE                                  PENNSYLVANIA

                        Appellants

                   v.

MAYTAG CORPORATION, MAYTAG SALES
INC., MAYTAG NORTHEAST, REGIONAL
DISTRIBUTION CENTER, F.R.
COVINGTON PROPERTY HOLDING L.P.,
FIRST INDUSTRIAL DEVELOPMENT
INVESTORS, LLC, FIRST INDUSTRIAL
DEVELOPMENT SERVICES, FIRST
INDUSTRIAL REALTY, COVINGTON
INDUSTRIAL PARK OWNER’S
ASSOCIATION, AKA COVINGTON
INDUSTRIAL PARK, AND CAMMEBY’S
MANAGEMENT COMPANY LLC.

                        Appellee                   No. 1163 MDA 2015


               Appeal from the Order Entered May 28, 2015
           In the Court of Common Pleas of Lackawanna County
                    Civil Division at No(s): 08-CV-1534


BEFORE: BOWES, OTT AND FITZGERALD,* JJ.

CONCURRING MEMORANDUM BY BOWES, J.:                FILED MARCH 09, 2017

     I concur in the learned majority’s decision to vacate the trial court’s

entry of summary judgment and remand for further proceedings. It is my

belief that the record is more than sufficient to conclusively establish that




* Former Justice assigned to the Superior Court.
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Maytag was the possessor of the premises and owed a duty to Appellant, its

invitee.1

       I write separately because I do not share my colleagues’ belief that the

lease fails to resolve the issue of possession. The lease between Goldsboro

and Maytag establishes that the trailer drop lot was not a common area

under Goldsboro’s possession and control. The diagrams appended thereto

clearly indicate that the trailer drop lot is part of Maytag’s sixty-acre leased

premises. In order for a party to be a "possessor" of land, it must fit one of

the following descriptions: it must be in occupation of the land with the

intent to control it, it must have been in occupation of the land with intent to

control it if no other party has done so subsequently, or it is entitled to

immediate      occupation      if   neither    of   the   other   alternatives   apply.

Restatement (Second) of Torts § 328E (1965); Rudy v. A-Best Prods. Co.,

870 A.2d 330, 333 (Pa.Super. 2005). The only party that meets that test is

Maytag. It occupied the trailer drop lot with intent to control it.



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1
   Maytag has not challenged Appellant’s contention that he was a business
visitor of Maytag, i.e., one “invited to enter or remain on land for a purpose
directly or indirectly connected with business dealings with the possessor of
land.”     Gutteridge v. A.P. Green Servs., 804 A.2d 643, 655-656
(Pa.Super. 2002). A possessor of land owes a business invitee the highest
duty owed to any entrant upon land, and must protect an invitee not only
against known dangers, but also against those that might be discovered with
reasonable care. Id.



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       All of the evidence confirms that Maytag was the possessor of the

trailer drop lot.2 Maytag leased the property for use as a distribution center

and warehouse for appliances.            Maytag’s leased premises were entirely

fenced in, and there was one means of ingress and egress onto Maytag’s

property.     That access road was controlled by a guardhouse staffed by

Maytag’s contractor.

       Truck drivers delivering empty trailers and retrieving loaded trailers for

delivery stopped at the guardhouse before entering Maytag’s premises.

They then proceeded to the trailer drop lot, a lot allegedly constructed by

Maytag after it leased the property. Maytag stored trailers on the lot until its

yard jockey or spotter moved them to the warehouse doors for loading. The

lot consisted of paved access roads between rows of trailers sitting on

unpaved dirt or hardpan surfaces. Appellant offered considerable evidence

that, during the winter, snow and ice accumulated in the areas beneath and

adjacent to the trailers and mixed with the hard-packed dirt.       The surface

was rough and uneven due to ruts created by tire tracks, the constant

movement of tractors and trailers, and repeated freeze and thaw.
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2
   While there is authority for the proposition that whether a party is a
possessor of land is a question for the factfinder, in each instance there was
a genuine factual dispute as to who occupied and controlled the property or
who had the right to control the property. see Leichter v. Eastern Realty
Company, 516 A.2d 1247, 1249 (Pa.Super. 1986); Blackman v. Federal
Realty Inv. Trust, 664 A.2d 139, 142 (Pa.Super. 1995). Herein, Maytag
clearly occupied and controlled the property.



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      On the winter day at issue, Appellant, a tractor–trailer driver for a

third-party contractor, described how he entered the drop lot towing an

empty trailer.   He looked for a “hole,” an empty space between other

trailers, and backed in the trailer. In order to disconnect the trailer from the

tractor, it was necessary for him to leave the cab and walk on the

accumulated ice and snow on the unpaved ground between his trailer and

the adjacent trailer to physically remove the pins connecting the tractor and

trailer. He was returning to his cab when he slipped on the uneven ice and

snow, struck his head on the trailer, and was rendered unconscious.

      The majority concludes that there are disputed issues of fact as to

possession of the lot because the lease between Goldsboro and Maytag

provided that Goldsboro would procure snow removal services for all

“parking areas, loading areas, and roadways on the [Maytag’s] premises.” I

disagree.   The issue is not who was responsible for removing snow; the

issue is who possessed, i.e., occupied and controlled, the property.

Goldsboro’s commitment to hire a snow removal contractor, for which

Maytag paid additional rent, did not affect or supplant Maytag’s occupation

of and control over the leased property. Similarly, Dunbar’s occasional entry

onto Maytag’s premises to remove snow did not amount to occupation of the

land with intent to control it.   In short, I believe the majority’s focus on

responsibility for snow removal, though pertinent to the ultimate questions

of negligence and responsibility for Appellant’s injury, is irrelevant to our

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present determination as to whether Maytag possessed the trailer drop lot

and thus owed a duty to Appellant.

     As the possessor of land, Maytag is subject to liability to Appellant, its

business invitee, for physical harm caused by a dangerous condition on its

premises, if it knew or reasonably could have known of the condition and

fails to exercise reasonable care to protect him. Restatement (Second) of

Torts, § 343. The highest duty of care is owed to business invitees such as

Appellant who enter the property in furtherance of the possessor’s business.

That includes a duty to inspect the premises and remedy dangerous

conditions that could be discovered with reasonable care.

     I submit it is precisely because the possessor of land owes a duty to

keep its premises safe for invitees and licensees that Maytag paid additional

rent to Goldsboro for snow removal.        In turn, Goldsboro contracted with

Dunbar’s for the performance of the service. Goldsboro or Dunbar’s may yet

be liable for indemnity to Maytag for the breach of those contracts.

However, the contract provisions regarding snow removal responsibility do

not implicate the larger question of whether Maytag possessed the premises.

They certainly do not operate to relieve Maytag of its common law duty as a

possessor of land to protect its business invitees from dangerous conditions

on the premises.   Maytag’s contention that it did not possess the leased

premises, as defined in the Restatement (Second) of Torts Section 328E,




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merely because another entity occasionally removed snow from the

premises, is legally untenable.

       Certainly, Appellant could have instituted this lawsuit against all three

entities: Maytag, Goldsboro, and Dunbar’s.         Maytag could have joined

Goldsboro and Dunbar’s as parties in this action to determine their liability.

In either case, liability against Goldsboro and Dunbar’s would have been

predicated upon their negligent performance of their contractual obligations

to remove snow, a duty they arguably owed to both Maytag and Appellant.

See Evans, supra; Restatement (Second) of Torts § 324A;3 see also

Farabaugh v. Pennsylvania Turnpike Commission, 911 A.2d 1264,

1283 (Pa. 2006) (quoting Evans, supra and discussing purview of § 324A).

In that event, Appellant could have argued that, since the snow removal
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3
 Section 324A of the Restatement (Second) of Torts, entitled "Liability to
Third Person for Negligent Performance of Undertaking," provides:

       One who undertakes, gratuitously or for consideration, to render
       services to another which he should recognize as necessary for
       the protection of a third person or his things, is subject to
       liability to the third person for physical harm resulting from his
       failure to exercise reasonable care to protect his undertaking, if

       (a) his failure to exercise reasonable care increases the risk of
       such harm, or

       (b) he has undertaken to perform a duty owed by the other to
       the third person, or

       (c) the harm is suffered because of reliance of the other or the
       third person upon the undertaking.



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contract was intended to protect and benefit third persons at risk from injury

due to accumulated ice and snow on Maytag’s property, both Dunbar’s and

Goldsboro were legally obligated to perform their contractual undertaking in

a manner consistent with the standard of care. See Evans v. Otis Elevator

Co., 168 A.2d 573, 575-576 (Pa. 1961) (quoting Prosser, Torts, (2nd ed.

1955), § 85, pp. 514-519). That, however, is not the scenario before us.

      Maytag is the sole defendant and has a duty to Appellant as the

possessor of the premises where he was injured. If Appellant is successful

in proving that Maytag breached its duty of care to provide a reasonably safe

premises for its invitee, Maytag’s recourse is to seek indemnity from

Goldsboro and/or Dunbar’s pursuant to the terms of the contracts.




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