J-A12030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 JAMES M. HARE, JR.                      :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellant             :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 MARK ZAFFINO, D/B/A MARK                :   No. 1349 WDA 2018
 ZAFFINO SNOW REMOVAL                    :

              Appeal from the Order Entered August 21, 2018
  In the Court of Common Pleas of Warren County Civil Division at No(s):
                                2016-597


BEFORE: BENDER, P.J.E., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                          FILED AUGUST 28, 2019

      Appellant, James M. Hare, Jr., appeals from the August 21, 2018 Order,

entered in the Warren County Court of Common Pleas, granting the Motion for

Summary Judgment filed by Mark Zaffino, d/b/a Mark Zaffino Snow Removal

(“Appellee”). After careful review, we affirm.

      In its August 21, 2018 Memorandum Opinion, the trial court set forth

the uncontested facts and procedural history as follows:

      [Appellee] owns and operates a snow removal business in Warren,
      Pennsylvania. Following a bid solicitation, Kiantone Pipeline
      Corporation [“Property Owner”] contracted with [Appellee] to
      provide snow removal services at Cobham Park Tank Farm,
      located in Warren, Pennsylvania [(“Snow Removal Agreement”)].
      The Tank Farm is an industrial park used for storage of crude oil
      and oil products. It is accessed exclusively by unpaved cinder
      roadways, which provide routes to various oil tanks throughout
      the property. The roadways are used by trucks entering and
      leaving the site, and [by] workers traveling throughout the
      property.    The [S]now [R]emoval [Agreement] required
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       [Appellee] to complete all necessary snow removal services before
       7:00am, or after an accumulation of 3 inches of snow, and to lay
       down cinder upon request.

       On the evening of January 4, and into the morning of January 5,
       2015, a significant snowstorm occurred in the Warren area
       causing a substantial accumulation of snow and ice at the Tank
       Farm. Harry Rosquist (“Rosquist”), an employee of [Appellee],
       plowed the [T]ank [F]arm on the morning of January 5, 2015,
       between 4:25am and 5:30am. Rosquist partially performed the
       necessary snow removal, leaving an area of roadway untouched.

       [Appellant], an employee of the [Property Owner], arrived at the
       Tank Farm at approximately 5:30am on January 5, 2015. [He]
       testified at deposition that the snowstorm was ongoing when he
       arrived. He estimated an approximate amount of 5 ½ to 6 inches
       of snow was already on the ground. While attempting to walk on
       the unplowed area of roadway, [Appellant] slipped and fell on the
       ice and snow[,] which caused him to sustain a fracture to his left
       leg.

Trial Ct. Op., 8/21/18, at 2 (footnotes omitted).

       On March 20, 2017, Appellant filed a Complaint against Appellee solely

alleging a theory of negligence.1 On April 3, 2017, Appellee filed an Answer

and New Matter. At the close of discovery, on June 13, 2018, Appellee filed a

Motion for Summary Judgment and Brief in Support, to which Appellant filed

a Response.

       On July 18, 2018, the trial court held a hearing on the Motion for

Summary Judgment. Prior to issuing a decision, the court requested that the

parties submit briefs addressing Appellant’s allegation that Appellee had an

____________________________________________


1 Appellant did not allege that Appellee had breached the Snow Removal
Agreement with the Property Owner, that Appellant was an intended third-
party beneficiary of the Snow Removal Agreement, or that Appellee owed a
duty to Appellant pursuant to Restatement (Second) of Torts §§ 323 and
324A.

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increased duty of care to Appellant by virtue of Appellee’s Snow Removal

Agreement with the Property Owner that rendered the “hills and ridges”

doctrine inapplicable.   The court also directed the parties to identify any

outstanding factual issues that required resolution prior to it rendering a

decision. Both parties complied with the court’s directive; however, neither

party raised any factual disputes requiring resolution in their briefs.

      Following its consideration of the Motion for Summary Judgment,

Appellant’s Response, the parties’ arguments, and their supplemental briefs,

the court granted Summary Judgment in favor of Appellee. In sum, the court

agreed with Appellee that the “hills and ridges” doctrine insulated Appellee

from liability for the snow and ice condition present at the Tank Farm on the

morning of January 5, 2015. The court rejected Appellant’s contention that

the “hills and ridges” doctrine did not apply because: (1) Appellee had entered

into the Snow Removal Agreement, which triggered a higher duty on him; or

(2) Appellee was not the owner of the land.

      This timely appeal followed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      Appellant raises the following two issues on appeal:

      1. Whether the trial court erred in affording [Appellee] the
         protection of the “hills and ridges” doctrine when [Appellee]
         was neither an owner nor possessor of the land where
         [Appellant] was injured?

      2. Whether the court below erred in determining that [Appellee]
         did not accept a higher standard of care by agreeing to plow
         the area in question during a snow event any time three (3”)


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           inches of snow had fallen and to spread cinders upon each
           plowing to facilitate ongoing operations?

Appellant’s Brief at 4.

      In his first issue, Appellant claims the trial court erred in granting

summary judgment in favor of Appellee based on its finding that the “hills and

ridges” doctrine applied to absolve Appellee of liability, even though he was

neither the owner nor possessor of the land and had assumed a heightened

duty to maintain the property pursuant to the Snow Removal Agreement. Id.

at 11-15.

      Our Supreme Court has clarified our role as the appellate court as

follows:

      On appellate review [ ], 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) (citations

and quotation omitted).

      A trial court may grant summary judgment “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.” Id.

(citation and quotation omitted); see also Pa.R.C.P. 1035.2(1).         “When

considering a motion for summary judgment, the trial court must take all facts



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of record and reasonable inferences therefrom in a light most favorable to the

non-moving party.”    Summers, supra at 1159 (citation omitted).        “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.” Id. (citation and internal quotation marks omitted).

      The “hills and ridges” doctrine protects an owner or occupier from

liability for generally slippery conditions resulting from ice and snow if the

owner has not permitted the ice and snow to accumulate unreasonably into

ridges or elevations. See generally Harmotta v. Bender, 601 A.2d 837,

841-42 (Pa. Super. 1992) (reviewing the “hills and ridges” doctrine).       To

overcome the application of the “hills and ridges” doctrine in this context, a

plaintiff is required to prove: “(1) that snow and ice had accumulated on the

sidewalk in ridges or elevations of such size and character as to unreasonably

obstruct travel and constitute a danger to pedestrians travelling thereon; (2)

that the property owner had notice, either actual or constructive, of the

existence of such condition; (3) that it was the dangerous accumulation of

snow and ice which caused the plaintiff to fall.” Id. at 841 (quoting Gilligan

v. Villanova University, 584 A.2d 1005, 1007 (Pa. Super. 1991).

      [T]he only duty upon the property owner or tenant is to act within a

reasonable time after notice to remove [the snow and ice] when it is in a

dangerous condition.” Gilligan, 584 A.2d at 1007 (citation omitted).




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      Additionally, it is well-established that “[a]n 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.”            Motter v. Meadows Ltd.

Partnership, 680 A.2d 887, 890 (Pa. Super. 1996) (citation omitted). See

also Harvey v. Rouse Chamberlin, Ltd., 901 A.2d 523, 526 n.4 (Pa. Super.

2006) (where this Court applied the principle that an independent contractor

is in possession of land to the context of the applicability of the “hills and

ridges” doctrine”).

      Generally, when a plaintiff brings a tort action against an independent

contractor, the court will apply the “hills and ridges” doctrine. See Biernacki

v. Presque Isle Condo. Unit Owners Ass’n, Inc., 828 A.2d 1114, 1117

(Pa. Super. 2003).

      Applying these principles to the facts of this case, the trial court, citing,

inter alia, Harvey, supra, explained its conclusion that “[a]s a possessor of

land, [Appellee] would fall under the liability protections of the hills and ridges

doctrine.” Trial Ct. Op. at 4.

      In light of the foregoing case law and the undisputed facts, we agree

with the trial court that, as an independent contractor, Appellee was entitled

to invoke the protections of the “hills and ridges” doctrine.        Appellant is,

therefore, not entitled to relief on this claim.




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      In his second issue, Appellant makes two arguments. First, he claims

that Appellee is liable for Appellant’s injury pursuant to Restatement (Second)

of Torts §§ 323 and 324A, because Appellant in the Snow Removal Agreement

undertook a duty to render services, but failed to exercise reasonable care in

performing those services. Appellant’s Brief at 16-18.

      With respect to his argument predicated on the Restatement (Second)

of Torts, this Court’s review of the record indicates that Appellant has raised

it for the first time on appeal. It is, therefore, waived.

      It is axiomatic that “[i]ssues not raised in the lower court are waived

and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). Indeed,

our Supreme Court has explained the reasons for this as follows:

      Issue preservation is foundational to proper appellate review. Our
      rules of appellate procedure mandate that “[i]ssues not raised in
      the lower court are waived and cannot be raised for the first time
      on appeal.” Pa.R.A.P. 302(a). By requiring that an issue be
      considered waived if raised for the first time on appeal, our courts
      ensure that the trial court that initially hears a dispute has had an
      opportunity to consider the issue. Lincoln Philadelphia Realty
      Assoc. v. Bd. or Revision of Taxes of Philadelphia, 758 A.2d
      1178, 1186 (Pa. 2000). This jurisprudential mandate is also
      grounded upon the principle that a trial court, like an
      administrative agency, must be given the opportunity to correct
      its errors as early as possible. Wing v. Com. Unemployment
      Comp. Bd. of Review, 436 A.2d 179, 181 (Pa. 1981). Related
      thereto, we have explained in detail the importance of this
      preservation requirement as it advances the orderly and efficient
      use of our judicial resources. See generally Dilliplaine v.
      Lehigh Valley Trust Co., 322 A.2d 114, 116–17 (Pa. 1974).
      Finally, concepts of fairness and expense to the parties are
      implicated as well. Id.




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In re F.C. III, 2 A.3d 1201, 1211-12 (Pa. 2010). Moreover, where there is

a failure to preserve a claim in the court below, this Court may not address

the claim sua sponte. Steiner v. Markel, 968 A.2d 1253, 1257 (Pa. 2009).

      In the alternative, Appellant argues that the trial court erred in applying

the “hills and ridges” doctrine to protect Appellee from liability because the

Snow Removal Agreement between Appellee and the Property Owner imposed

upon Appellee a heightened duty that supersedes the applicability of the “hills

and ridges” doctrine; and Appellee’s breach of that heightened duty renders

Appellee liable to Appellant under a theory of negligence. Appellant’s Brief at

19-21. In other words, Appellant argues that the express terms of the Snow

Removal Agreement between the Property Owner and Appellee imposed a

duty to remove snow at specific times and in specific amounts. Since Appellee

failed to remove the snow as required in the Snow Removal Agreement,

Appellant asserts that Appellee breached its duty to Appellant and is liable

under a theory of negligence.

      In support of this claim, Appellant relies on Biernacki, supra to impose

upon Appellee the duty to Appellant that Appellee undertook in the Snow

Removal Agreement.         In Biernacki, the plaintiff sued her landlord

(“Landlord”) only in negligence after she fell in the Landlord’s parking lot on a

snowy morning.     Biernacki, 828 A.2d at 1115.        The plaintiff’s theory of

liability was that the Landlord negligently permitted snow and ice containing

hills and ridges to remain in its parking lot following a recent storm. Id. The

Landlord, in turn, joined the contractor it had hired to clear the snow

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(“Contractor”).   Id.   The plaintiff did not assert a cross-claim against the

Contractor.

      Both the Landlord and Contractor filed motions for summary judgment

based on the doctrine of “hills and ridges,” which the trial court granted. On

appeal, the Biernacki plaintiff argued that the lower court erred in applying

the “hills and ridges” doctrine because the Lease imposed on the Landlord a

duty to remove the snow and the trial court erred in lowering this duty by

applying the doctrine of “hills and ridges.” Id. at 1117. The Superior Court,

however, rejected this argument and concluded that, because the Lease did

not provide an “independent standard stating the degree to which or the time

period within which the snow must be removed,” the “hills and ridges” doctrine

defined the Landlord’s duty and thus, insulated the Landlord from liability for

the plaintiff’s injuries. Id.

      Important to our analysis in this case, the Biernacki Court only

addressed the duty that the Landlord owed the plaintiff arising from the Lease

and did not address the duty that the Contractor owed the plaintiff, or any

third party, in a negligence claim.

      With this in mind, we decline to accept Appellant’s reliance on Biernacki

court in support of his claim that Appellee owes a duty to Appellant defined

by the terms of the Snow Removal Agreement. The Biernacki court focused

on the parties’ lease to determine the Landlord’s duty to its tenant. In the

instant case, Appellant is not a party to the Snow Removal Agreement and

Biernacki does not address the duty of a party to a contract to a third party,

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let alone impose such a duty. Without some legal basis to impose a duty on

Appellee pursuant to the Snow Removal Agreement under a theory of

negligence, Appellant’s argument fails.2

       In sum, it is undisputed that at the time of Appellant’s fall, the snow

was continuing and had not accumulated to point that “hills and ridges” had

formed. Also, since Appellant has failed to establish that, under a theory of

general negligence, the Snow Removal Agreement imposed on Appellee a duty

to Appellant, we are constrained to affirm the trial court’s grant of the Motion

for Summary Judgment.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/2019




____________________________________________


2 While Appellee’s alleged failure to exercise reasonable care in performing the
snow removal services it undertook to perform may give rise to a
Restatement-based tort claim against Appellee, as noted supra, Appellant
failed to plead such a claim.


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