J. A01006/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

RYAN C. BODECKER,                        :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                        Appellant        :
                                         :
                   v.                    :
                                         :          No. 590 WDA 2014
JOYCE E. BELL, BRIAN E. BELL AND         :
DAWN E. BELL-STRYKER                     :


                Appeal from the Order Entered March 31, 2014,
               in the Court of Common Pleas of McKean County
                       Civil Division at No. 856 CD 2011


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED MAY 11, 2015

     Ryan C. Bodecker appeals from the order entered March 31, 2014,

granting summary judgment for defendants/appellees Joyce E. Bell and

Dawn E. Bell-Stryker, and dismissing the complaint. We affirm.

                 This case arises out of [an] incident that
           occurred on May 29, 2011 on the premises located at
           309 Fulton     Street,     Smethport,    Pennsylvania.
           Defendants Dawn Bell Stryker and Brian Bell are title
           owners to the land. Defendant Joyce Bell-Stryker
           [sic] maintains a life estate in the land based on the
           following language in the deed: “ALSO EXCEPTING
           AND RESERVING unto the Grantor the full use,
           control, income and possession of said pieces,
           parcels or lots of land for and during her natural life.”
           Defendant Joyce-Bell [sic] Stryker lived at the
           premises from April 12, 2000 until March 1, 2010,
           when she moved to New Hampshire. Defendant
           Dawn Bell-Stryker has never lived in the residence
           and     she    currently     lives  in    Tyngsboroug,
           Massachusetts. Defendant Brian Bell lives at an
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            unknown location probably somewhere in Delaware
            or New Hampshire and has also never lived at the
            residence in question.

                  On February 13, 2010, Kristina Johnston
            leased the residence and lived there with various
            family members. She paid rent in checks or money
            orders made to both Joyce Bell and Dawn
            Bell-Stryker. In April 2011, some shingles were
            blown off the roof of the Fulton Street residence
            during a high windstorm. Ms. Johnston reported the
            damage to Defendant Joyce Bell. Defendant Joyce
            Bell then contacted her insurance agent, Burns and
            Burns of Bradford, PA, to report the damage. (Joyce
            Bell and Dawn Bell-Stryker are listed as the insured
            on the property). An adjuster was sent to the house
            and made an estimate. The insurance company then
            sent $2,000 to Defendant Joyce Bell to be used to
            repair the damage. Defendant Joyce Bell asked her
            son Brian Bell to repair the damage and handed over
            the $2,000 check to him.

                  Defendant Joyce Bell hired Brian Bell because
            she had seen him replace the roof on her home with
            the help of her husband. She had also been told by
            Brian Bell that he had worked on roofs in the past.
            Brian Bell enlisted the help of Fred Gamby to help
            repair the roof.

                   On May 29, 2011, Ryan Bodecker was at the
            Fulton Street residence visiting Amber Lawson, a
            child of Kristina Johnston. Mr. Bodecker was asked
            to help Brian Bell and Fred Gamby position an
            aluminum ladder. While assisting, the ladder either
            contacted or came close to the overhead power lines
            running alongside the house.          Mr. Bodecker,
            Brian Bell, and Fred Gamby all sustained injuries due
            [to] the resulting electrical shock.

Trial court opinion, 3/31/14 at 2-3.

      Appellant filed a complaint on April 19, 2012. The procedural history

of this matter is set forth in the trial court’s March 31, 2014 Opinion and


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Order at pages 1-2.        On February 6, 2014, defendants Joyce Bell and

Dawn Bell-Stryker (“Bell-Stryker”) filed a motion for summary judgment

which was granted on March 31, 2014.1             This timely appeal followed.

Appellant has complied with Pa.R.A.P. 1925(b), and the trial court has filed

an opinion.

        Appellant has raised the following issues for this court’s review:

              I.    WHEN VIEWED IN THE CONTEXT OF THE
                    ENTIRE RECORD WHETHER THE LOWER
                    COURT ERRED AS A MATTER OF LAW AND/OR
                    COMMITTED AN ABUSE OF DISCRETION WHEN
                    IT GRANTED SUMMARY JUDGMENT IN FAVOR
                    OF BELL AND BELL-STRYKER[?]

Appellant’s brief at 2.

              Summary judgment may be granted when the
              pleadings, depositions, answers to interrogatories,
              and admissions on file, together with the affidavits, if
              any, show that there is no genuine issue as to any
              material fact and that the moving party is entitled to
              judgment as a matter of law. Pa.R.C.P. 1035(b),
              42 Pa.C.S.A.      When considering a motion for
              summary judgment, the trial court must examine the
              record in the light most favorable to the non-moving
              party, accept as true all well-pleaded facts in the
              non-moving party’s pleadings, and give him the
              benefit of all reasonable inferences drawn therefrom.
              Dibble v. Security of America Life Ins., 404
              Pa.Super. 205, 590 A.2d 352 (1991); Lower Lake
              Dock Co. v. Messinger Bearing Corp., 395
              Pa.Super. 456, 577 A.2d 631 (1990). Summary
              judgment should be granted only in cases that are
              free and clear of doubt. Marks v. Tasman, 527 Pa.
              132, 589 A.2d 205 (1991). We will overturn a trial
              court’s entry of summary judgment only if we find an


1
    On March 21, 2014, default judgment was entered against Brian Bell, only.


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              error of law or clear abuse of discretion.      Lower
              Lake Dock Co., supra.

DeWeese v. Anchor Hocking Consumer and Indus. Products Group,

628 A.2d 421, 422-423 (Pa.Super. 1993).

              It is well-settled that a party may not defeat a
              motion for summary judgment by relying on the
              allegations of his complaint.      Rather, he must
              present depositions, affidavits, or other acceptable
              documents that show there is a factual issue for a
              jury’s consideration.    Brecher v. Cutler, 396
              Pa.Super. 211, 578 A.2d 481 (1990).

Id. at 424.

                     Thus, our responsibility as an appellate court is
              to determine whether the record either establishes
              that the material facts are undisputed or contains
              insufficient evidence of facts to make out a prima
              facie cause of action, such that there is no issue to
              be decided by the fact-finder. [Lackner v. Glosser,
              892 A.2d 21, 29 (Pa.Super. 2006)]; see Pa.R.C.P.
              1035.2.[Footnote 3] If there is evidence that would
              allow a fact-finder to render a verdict in favor of the
              non-moving party, then summary judgment should
              be denied. Lackner, supra at 29[.]

                    [Footnote 3] Rule 1035.2 provides:

                          After the relevant pleadings are
                          closed, but within such time as not
                          to unreasonably delay trial, any
                          party may move for summary
                          judgment in whole or in part as a
                          matter of law (1) whenever there
                          is no genuine issue of any material
                          fact as to a necessary element of
                          the cause of action or defense
                          which could be established by
                          additional discovery or expert
                          report, or



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                          (2) if, after the completion of
                          discovery relevant to the motion,
                          including the production of expert
                          reports, an adverse party who will
                          bear the burden of proof at trial
                          has failed to produce evidence of
                          facts essential to the cause of
                          action or defense which in a jury
                          trial would require the issues to be
                          submitted to a jury.

                    Pa.R.C.P. 1035.2.

Jones v. Levin, 940 A.2d 451, 453-454 (Pa.Super. 2007).

                    To prevail in a negligence suit, the complaining
              party must prove four elements:

              1.    A duty or obligation recognized by law.

              2.    A breach of the duty.

              3.    Causal connection between the actor’s
                    breach of the duty and the resulting
                    injury.

              4.    Actual loss or      damage    suffered    by
                    complainant.

              Lux v. Gerald E. Ort Trucking, Inc., 887 A.2d
              1281, 1286 (Pa.Super.2005), appeal denied, 587
              Pa. 731, 901 A.2d 499 (2006) (citation omitted and
              emphasis removed).

Id. at 454.

                    Pennsylvania law follows the general rule that
              a lessor of land is not liable to the lessee or to
              others, including business invitees,[2] for the
              physical harm caused by either natural or artificial
              conditions on the land which existed when the land
              was transferred or which arise after the transfer of

2
    Here, appellant was a social guest, or licensee.


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          possession. Dinio v. Goshorn, 437 Pa. 224, 228-
          229, 270 A.2d 203, 206 (1969); Pierce v.
          Philadelphia Housing Authority, 337 Pa.Super.
          254, 257, 486 A.2d 1004, 1005 (1985) (citations
          omitted); Craig v. Ryan, 201 Pa.Super. 307, 191
          A.2d 711 (1963); Restatement (Second) of Torts
          §§ 355-356 (1965). This principle is based upon the
          theory that when the lessor leases the land, the law
          regards the lease transaction as the equivalent to
          the sale of the land for the term of the lease.
          Restatement (Second) of Torts § 356, Comment a.

                 There are several exceptions to this general
          rule: where the lessor contracts to repair; where the
          lessor fails to disclose dangerous conditions to the
          lessee; where the land is leased for the purpose of
          inviting the public; where the lessor retains a portion
          of the land but allows the lessee to use it; where the
          lessor retains a portion of the land that is necessary
          to maintain the leased part in a safe condition; and,
          where the lessor negligently makes repairs on the
          land while it is in the possession of the lessee.
          Smith v. M.P.W. Realty Company, Inc., 423 Pa.
          536, 225 A.2d 227 (1967); Miller v. Atlantic
          Refining Co., 12 D & C.2d 713, (1957) aff’d, 393
          Pa. 466, 143 A.2d 380 (1958); Pierce, supra;
          Yarkosky v. The Caldwell Store, Inc., 189
          Pa.Super. 475, 151 A.2d 839 (1959); Coradi v.
          Sterling Oil Co., 378 Pa. 68, 105 A.2d 98 (1954);
          Goodman v. Corn Exchange National Bank and
          Trust Co., 331 Pa. 587, 200 A. 642 (1938);
          Restatement (Second) of Torts §§ 357-362 (1965).
          Initially, we note that Restatement sections 355-362
          specifically deal with the liability of lessors of land to
          persons on the land. A review of these sections
          evidences that liability is premised primarily on
          possession and control, and not merely ownership.
          See Smith v. King’s Grant Condominium, 418
          Pa.Super. 260, 614 A.2d 261 (1992) (while
          ownership may be a factor under Restatement
          (Second) of Torts, § 364(c) liability is premised on
          possession and control); Juarbe v. City of
          Philadelphia, 288 Pa.Super. 330, 431 A.2d 1073
          (1981) (lessor may be held liable for injuries


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           sustained on his property if he maintains possession
           and control over the property).

Deeter v. Dull Corp., Inc., 617 A.2d 336, 338-339 (Pa.Super. 1992),

appeal denied, 629 A.2d 1380 (Pa. 1993) (footnote omitted).         See also

Jones, 940 A.2d at 454 (“As a general rule, a landlord out of possession is

not liable for injuries incurred by third parties on the leased premises

because the landlord has no duty to such persons.”) (citations omitted).

     Here, neither Joyce Bell nor Dawn Bell-Stryker was in possession or

control of the land.    Therefore, the general rule applies.   With regard to

Bell-Stryker, she owned the property but otherwise had no real connection

to it. As the trial court explained, “She had no control or possession of the

property in question.    She did not call the insurance company after the

lessee reported the damage. She did not receive the insurance check after

the adjuster made the estimate. She did not arrange for Brian Bell to make

the repairs. Her only possible connection to the property was that of rent

collector.” (Opinion and Order, 3/31/14 at 7.)

     With regard to Joyce Bell, she reserved unto herself use of the

property for the remainder of her lifetime. However, appellant admits that

Johnson was the tenant of the property.      Since Johnson was renting the

property and was in possession and control of the property, Joyce Bell and

Bell-Stryker were absentee landlords and were not in possession of the

property at the time of the accident. They had no duty to appellant. The




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trial court did not err in finding that Joyce Bell and Bell-Stryker were not

liable.

      As stated above, there is a “contracts to repair” exception; however,

here, there is no evidence that the defendants took part in the planning of

the repair project or were aware of the details of how the project was to be

completed. Both Joyce Bell and Bell-Stryker were hundreds of miles away in

New England at the time. There is no evidence that they were consulted by

Brian Bell and Fred Gamby while the roofing project was being performed in

Smethport.     The only evidence connecting the defendants to the May 29,

2011 accident is that they had title to the premises and they were aware

that Brian Bell and Fred Gamby were going to repair the roof.            This is

insufficient for a cause of action in negligence.

      As the trial court states, the crux of appellant’s complaint is really that

Joyce Bell and Bell-Stryker are liable for negligently hiring Brian Bell to fix

the roof.    The trial court determined that no reasonable person could

conclude that Joyce Bell was negligent in her selection of Brian Bell as an

independent contractor, where he had helped her husband replace the roof

on their home and appellant failed to produce any evidence that Joyce Bell

had a peculiar duty to protect appellant from harm.        (Opinion and Order,

3/31/14 at 8.)

             As a general rule, “the employer of an independent
             contractor is not liable for the physical harm caused
             [to] another by an act or omission of the contractor
             or his servant.”       Mentzer v. Ognibene, 408


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          Pa.Super. 578, 589, 597 A.2d 604, 610 (1991),
          alloc. denied, 530 Pa. 660, 609 A.2d 168 (1992)
          (citing Hader v. Coplay Cement Mfg. Co., 410 Pa.
          139, 151, 189 A.2d 271, 277 (1963) (citations
          omitted)).     “An independent contractor is in
          possession of the necessary area occupied by the
          work contemplated under the contract, and his
          responsibility replaces that of the owner who is,
          during the performance of the work by the
          contractor, out of possession and without control
          over the work or the premises.” Mentzer, 408
          Pa.Super. at 589, 597 A.2d at 610 (citing Hader,
          410 Pa. at 151, 189 A.2d at 277).

Motter v. Meadows Ltd. Partnership, 680 A.2d 887, 890 (Pa.Super.

1996).

          An exception to this general rule is recognized,
          where the independent contractor is hired to do work
          which the employer should recognize as likely to
          create a special danger or peculiar risk of physical
          harm to others unless special precautions are taken.
          Restatement (Second) of Torts, §§ 416 and 427
          (1965) (adopted as law of Pennsylvania in
          Philadelphia Elec. Co. v. James Julian, Inc., 425
          Pa. 217, 228 A.2d 669 (1967)).

Id.

          To determine whether a special danger or peculiar
          risk exists, the court in Ortiz v. Ra–El Dev. Corp.,
          365 Pa.Super. 48, 528 A.2d 1355 (1987), alloc.
          denied, 517 Pa. 608, 536 A.2d 1332 (1987),
          established a two prong test:       1) Was the risk
          foreseeable to the employer of the independent
          contractor at the time the contract was executed?;
          and 2) Was the risk different from the usual and
          ordinary risk associated with the general type of
          work done, i.e., does the specific project or task
          chosen by the employer involve circumstances that
          were substantially out-of-the-ordinary? Id. at 53,
          528 A.2d at 1359. This two step process requires
          that:


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                  “the risk be recognizable in advance and
                  contemplated by the employer [of the
                  independent contractor] at the time the
                  contract was formed . . . [and that] it
                  must not be a risk created solely by the
                  contractor’s ‘collateral negligence’ . . .
                  [i.e.,] negligence consisting wholly of the
                  improper manner in which the contractor
                  performs the operative details of the
                  work.”

             Edwards v. Franklin & Marshall College, 444
             Pa.Super. 1, 7, 663 A.2d 187, 190 (1995) (quoting
             Mentzer, 408 Pa.Super. at 592, 597 A.2d at 610).

Id.3

        Here, there was nothing particularly dangerous about repairing the

roof.   All that needed to be done was to replace some shingles that had

blown off during a storm. The insurance company estimated the total cost

of repair as $2,000. This was not a complicated project. As the trial court

states, it was a reasonable assumption that an individual who can replace a

roof can also repair a roof. (Opinion and Order, 3/31/14 at 8.) Certainly, it


3
             § 411. Negligence in Selection of Contractor
             An employer is subject to liability for physical harm
             to third persons caused by his failure to exercise
             reasonable care to employ a competent and careful
             contractor

                   (a) to do work which will involve a risk of
                   physical harm unless it is skillfully and
                   carefully done, or (b) to perform any
                   duty which the employer owes to third
                   persons.

Restatement (Second) of Torts § 411.


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was not reasonably foreseeable that during repair of the roof, an aluminum

ladder would come into contact with nearby power lines, electrocuting

appellant. If anything, it was the contractor, Brian Bell, who created the risk

through his own negligence.     Brian Bell asked appellant for assistance in

moving the ladder. We agree with the trial court that neither Joyce Bell nor

Bell-Stryker had a “peculiar duty” to protect appellant under these

circumstances. They were simply too far removed from the situation.

      Finally, appellant claims that in ruling on the motion for summary

judgment, the trial court ran afoul of the Nanty-Glo rule.            Appellant

complains that the trial court relied on the deposition testimony of Joyce Bell

and Bell-Stryker in concluding that Brian Bell was an independent contractor

and that they were not negligent in hiring him to perform the work.

                   In determining the existence or non-existence
            of a genuine issue of a material fact, courts are
            bound to adhere to the rule of Nanty-Glo v.
            American Surety Co., 309 Pa. 236, 163 A. 523
            (1932) which holds that a court may not summarily
            enter a judgment where the evidence depends upon
            oral testimony.

                  “‘However clear and indisputable may be
                  the proof when it depends on oral
                  testimony, it is nevertheless the province
                  of the jury to decide, under instructions
                  from the court, as to the law applicable
                  to the facts, and subject to the salutary
                  power of the court to award a new trial if
                  they should deem the verdict contrary to
                  the weight of the evidence’: Reel v.
                  Elder, 62 Pa. 308.”




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            309 Pa. at 238, 163 A. at 524. The Nanty-Glo rule
            means that:

                  “Testimonial affidavits of the moving
                  party or his witnesses, not documentary,
                  even if uncontradicted, will not afford
                  sufficient basis for the entry of summary
                  judgment, since the credibility of the
                  testimony is still a matter for the jury.”

            Goodrich-Amram, 2d, supra, § 1035(b): 4 at pp.
            434-35.

Penn Center House, Inc. v. Hoffman, 553 A.2d 900, 903 (Pa. 1989).

      The trial court states that it did consider the deposition testimony of

Joyce Bell and Bell-Stryker; however, it did not rely exclusively on their

testimony. (Trial court opinion, 5/9/14 at 2.) As the trial court points out, it

is undisputed that Joyce Bell and Bell-Stryker were out-of-possession

landlords and that Johnson was renting the property. (Id.) Since Johnson

was the tenant and controlled the property, the general rule applies and

Joyce Bell and Bell-Stryker cannot be liable. (Id.)

      Regarding appellant’s claim of negligent hiring, appellant would first

have to show the existence of an exception to the general rule that an

employer of an independent contractor is not liable. As discussed above, it

is clear that the defendants owed no special duty to appellant. Repairing the

roof did not involve an unreasonable risk of harm. (Id. at 3.) There was

nothing about replacing shingles on the roof that presented a special danger

or was out of the ordinary. As appellees observe, appellant did not gather

any evidence to prove his allegations and cannot simply rely on the


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allegations in his pleadings to defeat a motion for summary judgment.

(Appellees’ brief at 17.)    Appellant did not depose Brian Bell (who,

admittedly, could not be located to be served) or Fred Gamby. Appellant did

not depose any occupant of the premises.     Appellant did not present any

evidence of the professional experience of Brian Bell or Fred Gamby other

than through the testimony of Joyce Bell and Bell-Stryker. (Id.) Appellant

developed no evidence during discovery to support his theories of liability.

Simply stated, there was nothing here that could go to the jury. The trial

court did not err in granting summary judgment for the defendants.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/11/2015




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