J-S13027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARK SUPIK                                        IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellant

                    v.

RICHARD R. LINGENFELTER T/D/B/A
SPIRIT OF THE NORTH CAMPGROUND

                         Appellee                     No. 1498 WDA 2014


                   Appeal from the Order August 11, 2014
              In the Court of Common Pleas of Jefferson County
                     Civil Division at No(s): 68 C.D. 2012


BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                               FILED APRIL 07, 2015

      Appellant, Mark Supik, appeals from the August 11, 2014 order

granting the motion for summary judgment filed by Appellee, Richard R.

Lingenfelter t/d/b/a Spirit of the North Campground (Lingenfelter).       After

careful review, we affirm.

      We summarize the relevant factual and procedural background of this

case as follows.    Appellant leased a campsite lot at Spirit of the North

Campground (the Campground) from Lingenfelter.          Appellant’s Complaint,

1/19/12, at 3, ¶ 3. At approximately 8:00 a.m. on the morning of January

23, 2010, Appellant left his trailer at the Campground to use the public

facilities. Id. at 4, ¶ 7, 8.   The road toward the facilities was covered in

snow and ice.    Id. at 4, ¶ 10.     Appellant slipped and fell three times and
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claimed injuries to his head, neck, back, and wrist.                Id. at 4, ¶ 13;

Lingenfelter’s Motion for Summary Judgment, 3/4/14, at Exhibit A (Answer

to Lingenfelter’s First Set of Interrogatories at 3-4, ¶ 19).

       Almost two years later on January 19, 2012, Appellant filed a

complaint alleging negligence against Lingenfelter.             Lingenfelter filed an

answer and new matter on February 23, 2012.                On March 4, 2014, after

discovery    had    concluded,      Lingenfelter   filed   a   motion   for   summary

judgment.1 Appellant filed a response in opposition to Lingenfelter’s motion

for summary judgment on April 3, 2014 to which Lingenfelter responded on

April 10, 2014. The trial court conducted a hearing on the motion on July

21, 2014 and granted Lingenfelter’s motion for summary judgment on

August 11, 2014. Appellant filed a timely notice of appeal on September 10,

2014.2


____________________________________________


1
  We note Lingenfelter filed his notice of service of discovery on March 1,
2012. Appellant failed to respond. Lingenfelter then filed a motion to
compel on May 22, 2012, which the trial court granted on the same day.
Appellant failed to comply with the order, and Lingenfelter filed a motion for
sanctions on July 12, 2012.         Thereafter, Appellant responded to the
discovery request, and Lingenfelter withdrew his motion for sanctions on
August 31, 2012. A deposition of Appellant was ultimately conducted on
October 9, 2012. The docket does not reflect that Appellant sought any
discovery from Lingenfelter in this matter.
2
   Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925. In its Rule 1925 opinion, the trial court relies on
its analysis in its August 11, 2014 opinion granting summary judgment.
Trial Court Opinion, 10/2/14.



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       We first observe the required “statement of the question involved”

section is conspicuously absent from Appellant’s brief. See Appellant’s Brief

at 1-11; Pa.R.A.P. 2111(4) (requiring a “[s]tatement of the questions

involved” section to be included in each appellant’s brief); Pa.R.A.P. 2116

(requiring, in relevant part, “[t]he statement of the questions involved must

state concisely the issued to be resolved, expressed in the terms and

circumstances of the case but without unnecessary detail[]”). Despite this

blatant omission and noncompliance with our rules of appellate procedure,

Appellant’s “summary of the argument” section informs this Court that

Appellant challenges the entry of summary judgment because Appellant

believes “[t]he trial court ignored and discounted evidence that created an

issue of material fact.”3 Appellant’s Brief at 5. While we note, with strong

disapproval, this glaring defect in Appellant’s brief, it does not preclude

meaningful appellate review, so we proceed to examine Appellant’s claim.

See Green v. Green, 69 A.3d 282, 285 n. 2 (Pa. Super. 2013) (observing if

an appellant’s nonconformance with the rules of appellate procedure does



____________________________________________


3
   Appellant’s Rule 1925(b) statement preserved challenges to the trial
court’s grant of summary judgment. Specifically, Appellant averred that the
trial court misapplied the summary judgment standard and the hills and
ridges doctrine and erred in granting the motion for summary judgment
against “the weight and sufficiency of the evidence presented at the
hearing.” Appellant’s Rule 1925(b) Statement, 9/30/2014.




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not hinder review of the issues or prejudice the parties, this Court will

address the merits of the appeal).4

       Our standard of review of an order granting summary judgment is well

settled.    Our task is “to determine whether the trial court abused its

discretion or committed an error of law[,] and our scope of review is

plenary.” Rodriguez v. Kravco Simon Co.,--- A.3d ---, 2015 WL 720553,

at *1 (Pa. Super. 2015) (citation omitted).

              In evaluating the trial court’s decision to enter
              summary judgment, we focus on the legal standard
              articulated in the summary judgment rule. Pa.R.C.P.
              1035.2. The rule states that where there is no
              genuine issue of material fact and the moving party
              is entitled to relief as a matter of law, summary
              judgment may be entered. When the non-moving
              party bears the burden of proof on an issue, he may
              not merely rely on his pleadings or answers in order
              to survive summary judgment. Failure of a non-
              moving party to adduce sufficient evidence on an
              issue essential to his case and on which [he] bears
              the burden of proof … establishes the entitlement of
              the moving party to judgment as a matter of law.
              Lastly, we will review the record in the light most
              favorable to the non-moving party, and all doubts as
              to the existence of a genuine issue of material fact
              must be resolved against the moving party.

Cigna Corp. v. Executive Risk Indem., Inc., --- A.3d ---, 2015 WL

836933, at *3 (Pa. Super. 2015) (citation omitted). “[O]ur responsibility as

an appellate court is to determine whether the record either establishes that

____________________________________________


4
 We note Lingenfelter responded to the substance of Appellant’s argument
and did not contend this defect in Appellant’s brief resulted in prejudice.



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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.” Reinoso v. Heritage Warminster SPE LLC, --

- A.3d ---, 2015 WL        161934    at *3   (en banc)     (citation omitted).

Consequently, if the record contains evidence that would allow a fact-finder

to return a verdict in favor of the non-movant, then summary judgment is

not proper. Id.

      Appellant challenges the trial court’s finding that no genuine issue of

material fact existed.   Appellant’s Brief at 8.   Specifically, the trial court

found Appellant’s falls resulted from the generally icy conditions on the flat

surfaces at the Campground. Trial Court Opinion, 8/11/14, at 4. Therefore,

the trial court reasoned, the hills and ridges doctrine protected Lingenfelter

from liability because Appellant was unable to establish his falls were a

result of an unreasonable accumulation of snow or ice in ridges or

elevations. Id. Appellant contends that the trial court’s application of the

hills and ridges doctrine is inapplicable and that issues of fact remain.

Appellant’s Brief at 8. Appellant advances the following argument.

            The existence of the photographs [taken at
            Campground] depicting the character of the ridges
            and calling into question whether the hills and ridges
            doctrine applies, as well as testimony from
            [A]ppellant concerning the cause of his slip, when
            taken in the light most favorable to the non-moving
            party[,] create several issues of material fact that
            must be left to the jury.




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Id.   Lingenfelter responds by asserting that, “[Appellant’s] evidence of

generally slippery conditions and icy roadways covered by fresh snow are

not sufficient to establish liability[.]”   Lingenfelter’s Brief at 8.   Further,

“[t]here is nothing of record by which it can be inferred that there was

anything more than a natural accumulation of snow/ice on the road and

steps.” Id. at 11.

      We now turn to an examination of the hills and ridges doctrine to

determine if the trial court erred in applying it to the facts of the instant

case. The hills and ridges doctrine is a “long standing and well entrenched

legal principle ….”     Biernacki v. Presque Isle Condominiums Unit

Owners Ass’n, Inc., 828 A.2d 1114, 1116 (Pa. Super. 2003) (internal

quotation marks and citation omitted).

            [T]he doctrine of hills and ridges provides that an
            owner or occupier of land is not liable for general
            slippery conditions, for to require that one’s walks be
            always free of ice and snow would be to impose an
            impossible burden in view of the climatic conditions
            in the hemisphere. Snow and ice upon a pavement
            create merely transient danger, and the only duty
            upon the property owner or tenant is to act within a
            reasonable time after notice to remove it when it is
            in a dangerous condition.

Harvey v. Rouse Chamberlin, Ltd., 901 A.2d 523, 526 (Pa. Super. 2006)

(citation omitted). Further, in order to recover for a fall on an ice or snow

covered surface, a plaintiff must demonstrate the following.

            (1) [T]hat the snow and ice had accumulated on the
            sidewalk in ridges or elevations of such size and
            character as to unreasonably obstruct travel and

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            constitute a danger to pedestrians traveling 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.

Biernacki, supra at 1117 (citation omitted).

      Instantly, the trial court explained its rationale in light of the evidence

of record as follows.

                  In his answers to interrogatories and
            [deposition]   testimony,    [Appellant]   described
            generally icy conditions across the hard surfaces at
            the Campground. He also noted that all the areas
            were snow-covered and that more sleet and snow
            had fallen the night before his accident. Nowhere
            did he describe ridges and elevations of snow and
            ice, however, nor did anyone else on his behalf.

                   The photographs do not suggest that
            Lingenfelter allowed ice and snow to unreasonably
            accumulate in ridges or elevations, either. As Photos
            One through Three depict, the buildup [of snow]
            near where [Appellant] fell cannot reasonably be
            characterized as anything more than mild, and Photo
            Four does not cast doubt on that characterization.
            Rather, it was shot from a different angle from which
            relative elevations could not be determined, whereas
            the other photographs plainly depicted that the
            vertical difference between the road surface and the
            tops of the snow banks was minimal. No reasonable
            jury could conclude otherwise.

                   Assuming, however, that a reasonable jury
            could agree that the photographs depicted
            unacceptable ridges or elevations, Lingenfelter would
            still be entitled to summary judgment based on
            [Appellant’s] failure to produce evidence tending to
            show that they were the cause of his fall. Most
            clearly describing the mechanics of it, he specified
            only that he “slipped and fell on the steps while
            dislodging a chunk of ice from the restrooms,” and

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            that he “stopped there [at the bottom of the steps
            …], and there was a piece of ice right there,
            probably.”     The latter statement, insofar as it
            described causation, was merely conjecture, and
            neither lent itself to the reasonable inference that an
            unreasonable accumulation of ice and snow at the
            bottom of the steps precipitated his fall.

                   Because [Appellant] is unable as a matter of
            law to establish liability against Lingenfelter, [],
            [Lingenfelter] is entitled to summary judgment in
            this case.

Trial Court Opinion, 8/11/14, at 4 (citations omitted).

      We agree with the trial court that Appellant failed to demonstrate that

the snow and ice had accumulated in ridges or elevations such that it

unreasonably obstructed travel and constituted a danger to pedestrians, and

Appellant failed to produce evidence that a dangerous accumulation of snow

or ice caused him to fall. See Biernacki, supra.

      In response to Lingenfelter’s interrogatories, Appellant recounts the

events leading to his falls.

            [Appellant], on the morning of January 23, 2010[,]
            was traveling from his campsite to the facility
            designated by the [C]ampground as the restroom
            area. To use the restrooms, [Appellant] had to cross
            open land and a roadway, each of which had fresh
            snow on top of old ice. [Appellant] slipped and fell
            on the ice going to the restroom, injuring his elbow,
            back and head.

                                      …

            On the way out of the restroom facility, and while
            exercising care on the snow and ice covered steps,
            [Appellant] slipped and fell on the steps while


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              dislodging a chunk of ice from the roof of the
              restrooms. …

Lingenfelter’s Motion for Summary Judgment, 3/4/14, at Exhibit A (Answer

to Lingenfelter’s First Set of Interrogatories at 3-4, ¶ 19).5 In response to

an inquiry about the weather conditions at the time of the incident, Appellant

reported there were “[s]cattered snow showers, though not at the time of

injury.   Some blowing snow.           Lighting was daylight during partly cloudy

day.” Id. at 4, ¶ 21. Further, Appellant testified regarding his falls at his

deposition as follows.

              [Attorney for Lingenfelter]:

              Q. What were the weather conditions like when you
              drove up to the [C]ampground prior to your fall?

              [Appellant]:

              A. There was a little snow; snowing a little bit.

              Q. And tell me about what you remember of the
              weather from the time that you got to your trailer
              until the time of your fall.

              A. It was snowing lightly, and it was icy and that,
              and that’s it. It was just snowing lightly.

              Q. You said it was icy?

              A. I said snowing lightly, and underneath the snow
              there was ice.

____________________________________________


5
  Appellant’s answer to Lingenfelter’s first set of interrogatories does not
contain pagination. For ease of reference, we have assigned each page a
corresponding page number.



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              Q.   And was there ice when you got to the
              [C]ampground?

              A. Huh-uh (no). It was cold.

              Q. So how long were you at the trailer prior to your
              fall?

              A. A day, a day before or so.

                                               …

              Q. So tell me about your trip from your cabin,
              across the turf, to the time you fell.

              A. Okay. Everything was all good in the hood till I
              got to the road to go to the trailer, and it was all ice.
              I was walking slow, and I fell twice before I got
              there. I had to crawl. And then I went up in there,
              and then coming down, I slipped, and then I got
              hurt.

Id. at Exhibit B (N.T., 10/9/12, at 25-26, 31).

       The record clearly demonstrates that conditions at the Campground

were icy because of recent snowfall and that Appellant’s falls occurred while

walking on flat, snow and ice covered surfaces.6          While the photographs

relied on by Appellant suggest a slight buildup of snow in the area where

Appellant contends he fell for the third time, nowhere in his complaint
____________________________________________


6
   To the extent Appellant attempts to argue the motion for summary
judgment was improper because discovery had not concluded, we find this
claim meritless and unsupported by the record. Appellant’s Brief at 8. As
noted, Lingenfelter sought discovery several times from Appellant before
Appellant complied with the orders of the trial court. Moreover, at no time
from the filing of the complaint onward did Appellant seek any formal
discovery from Lingenfelter. See Appellant’s Brief at 8.




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against Lingenfelter, his answer to interrogatories, or in his deposition

testimony, does he attribute his fall to an unreasonable accumulation of ice

or snow in ridges or elevations obstructing his travel. See id. at Exhibit B

(Photographs One through Four); see generally Appellant’s Complaint,

1/19/12, 3-6;       Lingenfelter’s Motion for Summary Judgment, 3/4/14, at

Exhibit A (Answer to Lingenfelter’s First Set of Interrogatories at 1-5); id. at

Exhibit B (N.T., 10/9/12, at 3-51).7               Rather, Appellant consistently

maintained that the surface of the road and stairs were generally slippery

and icy. Moreover, Appellant unequivocally stated his third fall occurred as

he was coming down the stairs.                 Lingenfelter’s Motion for Summary

Judgment, 3/4/14, at Exhibit B (N.T., 10/9/12, at 31). A reasonable fact-

finder, therefore, could not conclude any accumulation of snow in the area

surrounding the base of the stairs obstructed his path down the stairs. See

Reinoso, supra; Biernacki, supra.              Nor does Appellant contend, at any

time, that his two falls preceding his entry into the facilities, which occurred

on the road, were the result of snow or ice accumulation in ridges or

elevations.

       Based on the foregoing and our review of all the evidence of record,

we conclude Appellant has failed to adduce sufficient evidence on an issue

____________________________________________


7
  Appellant testified his girlfriend took these photographs of the area right
after the incident occurred. Lingenfelter’s Motion for Summary Judgment,
3/4/14, at Exhibit B (N.T., 10/9/12, at 39).



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essential to his case on which he bore the burden of proof.         See Cigna

Corp., supra.     In particular, viewing the evidence in the light most

favorable to Appellant, he has failed to adduce evidence that there was an

unreasonable accumulation of ice or snow that unreasonably obstructed his

travel or constituted a danger to pedestrians or that the possible buildup of

snow was the cause of his falls.         See id.; see Biernacki, supra.

Accordingly, the trial court did not err in granting summary judgment in

favor of Lingenfelter, and the August 11, 2014 order is affirmed.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2015




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