J-A26029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

STEVEN & VICKI ROWLES                   :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                   Appellants           :
                                        :
                                        :
             v.                         :
                                        :
                                        :
RICHARD HORNING                         :   No. 129 MDA 2017

             Appeal from the Judgment Entered April 18, 2017
   In the Court of Common Pleas of Juniata County Civil Division at No(s):
                                257-2013


BEFORE: BOWES, J., OLSON, J., and RANSOM, J.

MEMORANDUM BY OLSON, J.:                           FILED MARCH 21, 2018

      Appellants, Steven and Vicki Rowles (husband and wife), appeal from

the judgment entered on April 18, 2017 in the Civil Division of the Court of

Common Pleas of Juniata County. We affirm.

      This case arose from a fall that occurred on August 2, 2012 at a

property located at 120 Pennview Drive Lot 16, in Mifflintown, Pennsylvania.

At all relevant times, Richard Horning (Horning) owned the property and

Appellants resided in a mobile home on the subject premises.      During the

summer of 2012, Horning dug a series of ditches on the property as part of

an improvement project, one of which ran behind Appellants’ mobile home.

The ditches remained open for approximately 30 days from early July 2012

until the day following Appellant Steven Rowles’ injury.    During the time

when the ditch was open, a sump pump was used to remove rainwater that

collected in the basin.
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      On August 2, 2012, Steven Rowles claimed that he was standing near

his mobile home to inspect tomato plants in his garden when the ground

beneath his feet gave way and caused him to fall approximately four feet

into the open ditch.   On August 26, 2013, Appellants filed a complaint to

recover damages from Horning.     The complaint alleged that Horning was

negligent because he failed to warn business invitees such as Steven Rowles

of a dangerous condition on the property and because he failed to maintain

the property in a safe condition by constructing a ditch that was subject to

collapse.

      A bench trial ensued on November 3, 2016 in the Juanita County Court

of Common Pleas. On December 2, 2016, the court issued a verdict in favor

of Horning and against Appellants. In an accompanying memorandum, the

court apportioned negligence 50% to Steven Rowles and 50% to Horning but

explained that, “[it was] satisfied that there were no extenuating

circumstances or other conditions that caused the fall of [Steven

Rowles], other than his own negligence in not observing the

hazardous condition, which was patently obvious. In other words,

[the court] saw no evidence that the ditch collapsed.”           Trial Court

Opinion, 12/2/16, at 2 (emphasis added).

      Appellants filed a motion for post-trial relief on December 14, 2016.

The motion alleged that Appellants were entitled to recover damages under

the Comparative Negligence Act, 42 Pa.C.S.A. § 7102(a), because the

negligence attributed to Steven Rowles did not exceed that apportioned to

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J-A26029-17



Horning. See Appellants’ Motion for Post-Trial Relief, 12/14/16, at 2. The

motion further asked the court to “enter an award of damages consistent

with the evidence presented at trial[.]” See id. The court denied relief by

order entered on December 22, 2016. In its accompanying memorandum,

the court explained:

       While it is certainly true that this [c]ourt found that both parties
       were 50% negligent and, actually, this [c]ourt confirms that
       finding. [sic] However, the negligence of [Horning], as
       pointed out in the [December 2, 2016 memorandum], was
       not the cause of the accident. [Steven Rowles] had alleged
       that the bank gave away [sic], which probably would have
       resulted in a greater percentage of negligence attributed to
       [Horning] than to [Steven Rowles] but the fact that the ditch
       was there, the existence of the ditch was negligent, however,
       the causal negligence was in the conduct of [Steven
       Rowles] simply falling in the hole, as opposed to any
       conduct of [Horning].

       Accordingly, even though the [c]ourt still believes both sides
       were 50% negligent, the causal negligence cannot be
       attributed to the conduct of [Horning] but, rather, to the
       conduct of [Steven Rowles].”

Trial Court Opinion, 12/22/16, at 1 (emphasis added).

       Appellants filed a timely notice of appeal on January 13, 2017.

Thereafter, pursuant to an order of court, Appellants filed a concise

statement of errors complained of on appeal on February 13, 2017.1            See

Pa.R.A.P. 1925(b). The trial court issued its Rule 1925(a) opinion on April

____________________________________________


1 In their concise statement, Appellants raised the three issues included in
their brief on appeal.



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J-A26029-17


26, 2017.   The court’s opinion reiterated its determinations that:   (1) the

ditch at the property did not collapse; (2) the issue of causation was

resolved in favor of Horning; (3) the apportionment of negligence was

irrelevant to the court’s verdict; and, (4) Steven Rowles was familiar with

the area and his fall resulted from inattention.     See Trial Court Opinion,

4/26/17, at 3. This appeal followed.

     Appellants raise the following claims in their brief:


     Did the [t]rial [c]ourt commit an error of law and/or abuse its
     discretion when the [c]ourt found in favor of [Horning] and
     against [Appellants], when the [c]ourt failed to properly apply
     the Pennsylvania Comparative Negligence Statute 42 Pa.C.S.[A.]
     § 7102(a) after finding [] Steven Rowles 50% negligent and
     finding [Horning] 50% negligent?

     Did the [t]rial [c]ourt commit an error of law/abuse its discretion
     when it failed to award damages to [Appellants] consistent with
     a finding of 50% negligence on the part of [] Steven Rowles and
     50% negligence on the part of [Horning], under the
     Pennsylvania Comparative Negligence Statute?

     Did the [t]rial [c]ourt commit an error of law/abuse its discretion
     when the [t]rial [c]ourt found in favor of [Horning], a finding
     that was inconsistent with the evidence of a ditch collapse
     presented at trial which supported a finding fully in favor of
     [Appellants]. In the alternative, even if [] Steven Rowles were
     50% negligent, the [t]rial [c]ourt should have found in favor of
     [Appellants] based on the evidence of liability and causation
     presented at trial, including photographic evidence of the
     overhang of a nearby ditch that was comparable to the subject
     ditch, testimony of [] Steven Rowles of the collapse, testimony
     of [Horning] that if the ditch was wet it would collapse and
     evidence that the ditch was wet through a NOAA certified
     weather report showing rain and [Horning’s] testimony that
     water was pumped from the ditch?




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J-A26029-17



Appellants’ Brief at 4-5.

      Appellants’ first two claims center upon the impropriety of the trial

court’s verdict because of the court’s misapplication of the Pennsylvania

Comparative Negligence Act (the Act), 42 Pa.C.S.A. § 7102(a). Accordingly,

we dispose of these claims in a single discussion.

      It is well-settled:

      Our appellate role in cases arising from non-jury trial verdicts is
      to determine whether the findings of the trial court are
      supported by competent evidence and whether the trial court
      committed error in any application of the law. The findings of
      fact of the trial judge must be given the same weight and effect
      on appeal as the verdict of a jury. We consider the evidence in a
      light most favorable to the verdict winner. We will reverse the
      trial court only if its findings of fact are not supported by
      competent evidence in the record or if its findings are premised
      on an error of law. However, [where] the issue ... concerns a
      question of law, our scope of review is plenary.

      The trial court's conclusions of law on appeal originating from a
      non-jury trial are not binding on an appellate court because it is
      the appellate court's duty to determine if the trial court correctly
      applied the law to the facts of the case.

Stephan v. Waldron Elec. Heating and Cooling, LLC, 100 A.3d 660,

664-665 (Pa. Super. 2014) (quotation omitted).

      Appellants claim that the trial court wrongly applied the Act.

Specifically, they assert that because the court apportioned negligence at

50% each to Steven Rowles and Horning, the negligence of Steven Rowles

did not exceed that of Horning and Appellants were entitled to a recovery,

albeit a reduced one, under the Act. We disagree.



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J-A26029-17


      The Act provides:

      (a)    General rule.--In all actions brought to recover damages
             for negligence resulting in death or injury to person or
             property, the fact that the plaintiff may have been guilty of
             contributory negligence shall not bar a recovery by the
             plaintiff or his legal representative where such negligence
             was not greater than the causal negligence of the
             defendant or defendants against whom recovery is sought,
             but any damages sustained by the plaintiff shall be
             diminished in proportion to the amount of negligence
             attributed to the plaintiff.

   42 Pa.C.S.A. § 7102(a).

      The plain language of § 7102(a) makes clear that the contributory

negligence of a plaintiff does not bar recovery unless such negligence

exceeds the causal negligence of the defendant against whom recovery is

sought.     In its December 2, 2016 memorandum that accompanied its

verdict, the trial court found that the ditch did not collapse and that the

cause of Steven Rowles’ fall was his own negligence in failing to observe a

patently obvious hazardous condition. Trial Court Opinion, 12/2/16, at 2. In

addition, as set forth above, the court thereafter reaffirmed its determination

that the contributory negligence of Steven Rowles exceeded any causal

negligence on the part of Horning. See Trial Court Opinion, 12/22/16, at 1

(causal negligence was in the conduct of Steven Rowles not Horning’s

conduct); see also Trial Court Opinion, 4/26/17, at 2 (apportionment of

negligence was irrelevant to the verdict since the issue of causation was

resolved in favor of Horning). Because the trial court consistently found that

the   contributory   negligence   of   Steven   Rowles   exceeded   the   causal

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J-A26029-17


negligence of the defendant, we perceive no error in the trial court’s

application of the Act.2

       In their final claim, Appellants assert that the trial court’s verdict was

against the weight of the evidence introduced at trial. Before we reach the

merits of this contention, we first address Horning’s contention that

Appellants waived review of this claim by failing to include it in their motion

for post-trial relief.    As we stated above, Appellants’ motion for post-trial

relief asks the court to enter an award of damages consistent with the

evidence presented at trial. Although this request was vaguely framed and

did not employ the phrase “weight of the evidence,” we deem it sufficient to

preserve appellate review.

       In reviewing Appellants’ claim that the court’s verdict was inconsistent

with the weight of the evidence, the following principles govern our analysis.

       Appellate review of a weight claim is a review of the [trial
       court's] exercise of discretion, not of the underlying question of
       whether the verdict is against the weight of the evidence.
       Because the trial judge has had the opportunity to hear and see
       the evidence presented, an appellate court will give the gravest
       consideration to the findings and reasons advanced by the trial
       judge when reviewing a trial court's determination that the
       verdict is against the weight of the evidence. One of the least
____________________________________________


2 We acknowledge that the trial court’s decision to apportion negligence
which ultimately was not determined to have any causal connection to
Steven Rowles’ injuries was both unfortunate and confusing. Nevertheless,
the court’s consistent explanation that Steven Rowles’s inattention caused
his injuries and that the apportionment of negligence played no role in that
assessment leads us to conclude that the trial court did not err in its
application of § 7102(a).



                                           -7-
J-A26029-17


      assailable reasons for granting or denying a new trial is the
      lower court's conviction that the verdict was or was not against
      the weight of the evidence and that a new trial should be
      granted in the interest of justice.

Phillips v. Lock, 86 A.2d 906, 919 (Pa. Super. 2014).

      “It is well settled that the jury is free to believe all, part, or none of

the evidence and to determine the credibility of the witnesses, and a new

trial based on a weight of the evidence claim is only warranted where the

[factfinder’s] verdict is so contrary to the evidence that it shocks one's sense

of justice.”   Commonwealth v. Houser, 18 A.3d 1128, 1135–1136 (Pa.

Super. 2011).

      Based upon our own independent review of the record, we cannot

conclude that Appellants are entitled to relief based on their claim that the

trial court’s verdict was against the weight of the evidence. The court relied

upon photographic evidence introduced at trial to conclude that the bank

along the ditch did not collapse, as Steven Rowles alleged. See Trial Court

Opinion, 4/26/17, at 2. Moreover, Steven Rowles’ sustained presence in the

vicinity of the ditch made his inattention a highly reasonable factor to

consider when assessing the causes the led to his fall. Thus, on the record

before us, we cannot say with any degree of confidence that the facts found

and inferences drawn by the trial court revealed a palpable abuse of

discretion or that the verdict was so contrary to the evidence as to shock

one's sense of justice. See Samuel-Bassett v. Kia Motors America, Inc.,




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J-A26029-17


34 A.3d 1, 39 (Pa. 2011). Accordingly, Appellants’ weight of the evidence

claim fails.

      Judgment affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/21/2018




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