*1 that, improper,” but also commented its such
opinion, statements “were not so in- prejudicial jury
flammable and so malign the fairness of proceedings.” 6/11/99, Opinion,
Trial Court 7. I cannot enough
find of record to overturn this
first-hand determination. the re- While concerning
marks and par- evidence unjustified
ents’ conduct could be deemed improper, and certainly should not be child,
imputed to the I considered have
carefully the trial court’s curative instruc-
tion and conclude it was to re- adequate any prejudicial
move jury. effect
The instruction specifically emphati-
cally jury disregard directed the such
evidence, and I would affirm the therefore
learned court.
Amy BULLMAN, Appellant, S.
James M. GIUNTOLI and Barbara Gi
untoli, Augus His Wife Heinz C. Individually
tine H.C.A. d/b/a
Construction, Appellees.
Superior Court of Pennsylvania.
Argued April 2000.
Filed Sept.
Reargument Denied Nov. *2 and a
bearing porch, covered into the basement and become a paraplegic? We vacate remand. 1, 1996, February Appellant On
(hereafter Bullman), along par- with her ents, visited the construction site of a new was béing home which built for Appellees, (Giuntolis), James and Barbara Giuntoli who were friends of parents, Bullman’s with the intention of unfin- viewing the ished home. As of that date the basic in place, structure was the house had been a roof place. framed and was in Around perimeter open the house an was “ditch” approximately excavation six to eight eight and deep. feet wide to nine feet only apparent The access to the interior home provided by the unfinished was wooden or plank approximately board long and twenty feet one foot wide. This board crossed excavation ditch onto an porch unfinished area and into the main portion home. Underneath the Caroselli, R. Pittsburgh, ap- William for basement, out house was a which extended pellant. porch. porch covered insulation boards had been placed Kahn, H. Pittsburgh, Lisa for James there to retain heat and allow for the Giuntoli, appellee. pouring of the basement floor. Joseph Kubit, Butler, E. Heinz Au- Bullman 8 Since had desired to see the gustine, appellee. home, interior of unfinished she
stepped crossing the board began onto JOHNSON, BEFORE: HUDOCK and the board toward the entrance of BROSKY, According deposition JJ. house. to her testi-
mony,
safely
Bullman
exca-
traversed the
vation ditch and was over
unfinished
BROSKY, J.
porch
causing
when the
area
board moved
¶ This
appeal
is an
an order
her
her to lose
balance. As Bullman was
granting Appellees’
summary
motion for
losing
stepped
her balance she
onto
judgment. Appellant
question
raises one
porch
regain
in an
flooring of the
effort to
review:
our
but,
stability,
porch
as the
was covered
board,
only with insulation
which could not
the trial
in grant-
Whether
court erred
weight,
through
sustain her
she fell
summary judgment
ing
on the basis of
into
insulation board
the basement. As
assumption of the risk where there ex-
fall,
result of
Bullman
sustained severe
isted a material
fact as to
issue of
injury
quadriplegic.
and is now a
[Bullman],
whether
a visitor to
resi-
site,
12, 1997,
subjectively
August
dential construction
filed a
On
Bullman
plank providing
against
knew that a
access
both
complaint
the Giuntolis
move, causing
Augustine,
would
her to lose her Heinz
individually,
C.
balance, step
through
alleging
onto and fall
(Augustine),
H.C.A. Construction
boards, which
appeared
weight-
negligence
seeking damages
causes in
judgment as a matter
September
entitled to
injury.
for her
On
personal
summary
determining whether
Giuntolis filed a motion for
law....
asserting
Augustine
judgment
judgment
that as
Con-
a trial court
grant
contractor
independent
against
struction was
the mov-
must resolve all doubts
possession”
were
“in
the Giuntolis
the record in a
party and examine
ing
oc-
property
on the date
accident
non-moving
favorable to
light most
also
Bullman
asserting
curred and
may only be
Summary judgment
party.
voluntarily
assumed the risk of
clear and
granted in cases
injury
granted the
sustained. The court
moving party is
free from doubt
assump-
basis
Giuntolis’ motion on the
judgment
a matter of law.
entitled to
tion of
risk
Giun-
and did
consider
Corp.,
Motor
Sebelin Yamaha
*4
summary judgment
tolis other basis for
(citations
904,
(Pa.Super.1998)
omit-
906
relief.
In order to facilitate an immediate
ted).
appeal Bullman asked the
to amend
court
ruling
its
to
the
order
indicate that
again
This
asks us to once
appeal
6
preclude
of the
would
an
assumption
risk
assumption
the
of
of the
revisit
matter
Augustine.
action
The
modi-
against
court
is,
a
risk,
party
where
a situation
present
fied
as
and the
requested
its order
face of a known
voluntarily
the
proceeds
appeal followed.
a
As
seen from even
readily
risk.1
can be
law,
of
area of
the
cursory research
of
appeal
5 When
an
assumption of risk has been
grant
summary
a
doctrine of
judgment,
of
we consider
and
fallen from the
very problematic
the
has
following principles:
judiciary
legal
of
the
and
favor
some of
only
will
the trial court’s
reverse
[We]
fact,
In
a
the doctrine as
commentators.2
judgment
of
the
entry
has
nar-
separate affirmative defense
court
an
of dis-
[trial
committed]
abuse
abolishment
our Su-
rowly survived
Summary
an
cretion or
error of law.
attests,
As this case
preme Court.3
judgment is
when
proper
pleadings,
At
frequently misapplied.
doctrine is
depositions,
interrogatories,
answers to
courts,
times,
file,
in reliance
demon-
admissions
affidavits
doctrine,
incorrectly precluded cases
genuine
strate that there exists no
issue
have
thus,
jury,
precipitating
of
fact
is
a
moving party
going
material
and the
from
to
noting
assumption
are
a determination that
Under the Restatement of Torts there
types
"assumption
apply
equate
four
Our
risk.”
does not
does
risk
type,
relates
the fourth
volun-
legally
discussion
is
finding
that the defendant
tarily encountering,
proceeding
or
in the face
merely
plaintiffs injury,
it
liable for the
of,
risk,
majority
a known
do the
of cases
as
prevented
plaintiff will not be
means that the
discussed
presenting
inquiry
a fault
into the
based
infra.
from
If, despite
responsibility
injury.
many
reason the doctrine has caused
The
doctrine,
plaintiffs
inapplicability of the
problems might
speculation, yet it
open
be
sustaining of
negligence
contributed
very
in the
techni-
seems that sometimes lost
responsibility
apportionment
injury,
engrossing
regarding the
cal and
discussions
comparative negli-
naturally
will follow
under
doctrine,
elements,
assumption of the risk
its
be
gence law
the defendant will
relieved
it,
policies
applicability
behind
and its
responsibility commensurately, if
alto-
facts,
non-applicability
given set
is an
to a
gether.
appreciation
it is
affirmative
overall
only, and not an ultimate conclusion
defense
Court,
by Supreme
evidenced
3.The
as
liability.
party
raises the
of fault or
When
Clyde,
opinions in the cases of Howell v.
lead
risk,
litigates
defense of
151,
(1993),
A.2d
and Rutter
533 Pa.
1107
vigorously,
the deci-
matter
and then loses
District,
County
Beaver
School
sion,
v. Northeastern
feeling
if
that the
is created
seems
(1981),
twice
when,
Pa.
a plaintiff will not be precluded from danger fully unless the was known and recovering except where it is beyond appreciated. As related the comments Indeed, (Second) the Restatement longer Pennsylvania of Torts defense no exists in after terms assumption this form of of the risk as passage comparative negligence statute essentially "contributory negligence.” Of § 42 Pa.C.S.A. course, contributory negligence separate as a (Second) Torts, to dam- Appellant brought suit recover Restatement at a 7- injury § 496 for an sustained ages D: Ac- by appellees. Eleven store owned b. The of risk is basis testimony en- cording she appellant’s the risk plaintiffs accept consent day it had tered store on appellees’ himself. he and look out for Therefore mat raining, stepped onto floor found, been will not the absence of an be and, just doorway located inside express agreement clearly which is so to mat, fell construed, step her first off any be to assume risk unless admitted that Appellant linoleum floor. he of its This knowledge has existence. immediately at the floor glanced he must not she means that be aware it and prior onto noticed danger, stepping the facts which create but must Based this ad- appreciate danger appeared also itself it wet. character, nature, extent mission trial court concluded it the risk” which make unreasonable. appellant had “assumed and, therefore, was injury she sustained applied c. to be is a sub- The standard recovery. precluded from jective one, particular plain- of what the sees, knows, tiff in fact understands we this decision concluded appreciates. In this differs from the in finding erred as- court had objective which is applied standard sumption pre- risk under the facts (See contributory negligence. §§ sented there. We stated: 290.) age, If reason or appellant do assumed a we not believe information, experience, lack of intelli- circumstances that in- known under risk gence, plaintiff judgment, does right of a dicates an abandonment the risk in a understand involved complain. “preliminary conduct” of situation; known he will not taken to *6 walking into the store is such that risk, it although may assume the still be accompanied regarded should be contributory found that his conduct is a slippery risk of a fall on assuming the it negligence because does not conform did not become aware Appellant floor. community to standard rea- the of the just until danger” before “known man. sonable inju- caused step she took the her above, Indeed, ry. danger 11 it is not in to avoid the surprising Given the order necessary for her to assumption might then doc- it have been that the the risk stop opin- in in mid-stride. our applied trine been rather narrow herself has fashion, ion not circumstances to which years, in more these are particularly recent as an apply the should affirma- as it is a drastic to state doctrine quite measure Rather, these circum- very possible that tive defense. despite presence comparison negligence negligence that at least to a stances invite contributed nonetheless, under law. party’s injuries, plaintiff applicable “estopped” prevented should from similar conclusion 13 We reached a holding liable court because party of Struble v. Val- the aforementioned case such plaintiffs actions are Academy, 445 ley Forge Military Pa.Su- having any should abandoned be viewed as (1995). There, A.2d 4 per. 665 Thus, particular, to right complain. injured Academy when student of was find recent reflect a reluctance to decisions cannon, which was load- ceremonial/“toy” assumption applicable the risk unless it discharged while only,” ed with “blanks specific quite that the risk clear of, in front located the student was appreci- injury fully was both occasioned of, the cannon’s mouth side slightly accepted. voluntarily ated and leg. the student’s causing injury to at- when the student discharged cannon Corp., 435 Hardy 12 In v. Southland (1994): lanyard after it be- tempted loosen the Pa.Super. A.2d 839 came stuck between the body wheel and of debris in prevent order to an accident. However, cannon. The trial court refused to appreciation general of a charge jury on the assump- doctrine of prevent risk was not sufficient to the case tion prompting of the risk Academy’s Instead, going jury. that ap- appeal when the jury found for the student preciation required weighing of fault un- in a negligence action. comparative negligence der principles. glanced Had Barrett down and seen the
¶ 14 Although the student indicated that vinyl siding proceed and then chose to he was aware that he should not stand despite presence experienced its then front of the cannon while it was being fall, may very implicat- the case well have discharged, though and even the student assumption ed the risk. caused the cannon discharge when he pulled on lanyard while attempting to ¶ Similarly, Long Hy- Norriton it, dislodge we concluded that the case did draulics, Inc., Pa.Super. 662 A.2d support an assumption of the risk de- an order granting we reversed conclusion, fense. In reaching this we fo- summary judgment in favor of several de- upon cused the fact that the student had assumption fendants on the basis of indicated that he was unaware that injured risk. There a worker was when he cannon, blanks, being loaded with could slipped hydraulic fluid and fell while cause the type injury sustained and also trying by hydraulic being avoid struck that the cannon always required con- lift that suddenly shifted downward toward siderably pressure more lanyard him. The evidence cited to discharge it than the ap- student had summary judgment included Thus, plied day. given the above- hydraulic the fact that the lifts had “shift- standard, quoted panel is clear that the “quite ed” a few times” and also that the did not believe that the student’s actions hydraulic lifts had been leaking fluid for amounted to a voluntary assumption of some appellant time and that risk under circumstances that “relieved aware of both of panel’s these facts. The the defendant of responsibility inju- for the decision reflects a belief that this evidence ries sustained.” did not establish the essential elements of doctrine, of the risk name-
¶ 15 Similarly, in Barrett v. Freda ly injury that the risk of from the transac- Builders, Inc., vid *7 actually place tion that was so imme- took A.2d 129 we reversed the finding of diately apparent equivalent to be to an as assumption of the risk where an insulation appreciation acceptance and of that risk installer, stilts, working on two foot slipped and a relinquishment right of the to com- and fell on a discarded piece siding. of plain. Central to our decision was the fact that ¶ plaintiff the specific did not see the piece 17 A in similar result was reached the vinyl of siding which he stepped on and aforementioned Handschuh v. Albert De- Indeed, caused him to fall. pro velopment, Barrett 574 A.2d (1990). vides a useful lesson. The mere fact one 693 In Handschuh we found that in engages activity that has some inherent properly request the court had denied a danger does not mean that one cannot instruct jury theory assump- on the of recover from a negligent party inju when involving tion of the risk in an action ry is subsequently sustained. Mr. Barrett death of a plumbing contractor who sus- clearly appreciation had an injuries of a certain tained when a trench in which he amount of risk the venture. Working laying was pipe collapsed. Mr. Handschuh certainly dangerous stilts is more general than was aware of of the risk ditch working while standing ground. on firm collapses and it had even been believed Additionally, he had taken time to clear a particular job that this would be “delicate.” path where he working would be safety precaution from As a Mr. Handschuh had colliding falling or warning assuming the risk of duty any to shout a if a lookout Yet, if a ski trail sudden- something. of The with collapse presented. evidence a was causing warning, falls injury ly, when a seam devel- without off fatal resulted and oneself, The a if one injure in the lookout shouted fall and oped trench. one to warning responded by machinery Mr. in a and Handschuh left heavy collides with retreating area, the trench but he did not of as up thought one cannot be skiing hesitating After mo- exit the trench. area that risk the ski having assumed ment, again Mr. Handschuh turned when lia- should not be insulated operator him, causing of hit him to the bulk the dirt merely bility injury because injuries. fatal stated that al- sustain We that has inher- activity an engaged skier though job contained a definite ele- ent or attendant risks. appreciated, ment of risk that was the risk prologue, above 20 With the as not so imminent as to constitute
was of analysis an of the facts we undertake Thus, right complain. waiver of the above, here present case. related As assumption the risk was application of observe firsthand Bullman desired to implicated. progress acquain the construction an 18 After the above work arrival at the Upon tance’s home. it that to grant decisions should be clear site, only apparent ingress method of summary judgment on basis of as foot plank was one approximately over sumption risk it first be con of the must open plank wide. The crossed over cluded, law, party a matter of that the eight ditch of feet continued six consciously appreciated the risk that at crossing porch appeared over a area that endeavor, tended certain assumed the roughly to Bullman to finished be injury by engaging risk of the endeavor successfully Bullman covered with wood. the risk in despite appreciation began ditch but crossed the excavation volved, was, the injury and that sustained while plank lose her balance as the moved fact, injury risk the same area. In an effort porch she was over appreciated and assumed. This last fac foot placed her balance she her regain tor, certainly component although logical porch but fell covering on the material doctrine, assumption risk also board through the insulation and sustained appears to be a block in stumbling as injury. sumption of the risk Even if it analysis. bar, certainly case 21 In the could assumed that there is an assumed argued Bullman indeed actions, component risk to one’s it does not her might naturally she lose risk that necessarily that any type injury follow plank and fall traversing while balance suffered becomes immune endeavor into ditch. excavation the excavation Logically speaking, injury from suit. peril open ditch was and obvious *8 sustained must be result of same un- plank wide is well crossing one-foot appreciated risk assumed. of by virtually all individuals derstood ¶ To point, illustrate this consider Nevertheless, Bullman age. adult since example assumption frequently cited ditch, fall into we do did not the excavation the risk: one attends a baseball or when premise controlling. not the above find hockey game presumed one is to assume ¶ stated, just per- from Bullman’s might hit a baseball As the risk that he be exca- Nevertheless, hazard was the spective if one is struck obvious puck. or that her and which vation ditch he before intentionally a baseball thrown into the entry into stands, gain to intentionally required shot into her traversal puck However, testimony indi- seats, her to have the home. one cannot be deemed of a appreciation she no Similarly, one cated that had assumed that risk. who proved to be falling through risk what skiing might thought of as engages be covering insulation porch. argue grant board Her tolis that of summary testimony she indicated that observed the judgment should affirmed be nevertheless porch area to be covered what she ground they the other had raised in the Thus, thought considering was wood.5 motion for judgment, namely, knowledge possession, in her Bullman they possession” that were “out of the could be to have found assumed the property during the construction of the falling risk of into the excavation ditch. light home. Although, its conclusion section, safely Once she that traversed risk, on assumption of the the trial court risk she had Despite had assumed ended. issue, Appellees did not address this cor- obviously the fact that there were other rectly empowered assert that we are her, perils they still fully around were not affirm on any the trial court basis if the thus, appreciated, they could not be volun- Korvette’s, decision is correct. Gilbert v. tarily assumed.6 Inc., 457 Pa. 327 A.2d 96 n. 5 short, In23 (1974).7 under uncontradicted Thus, compelled we feel to review record, facts of it cannot be said that Bull- argument. assess the Giuntolis’ man “assumed of sustaining the risk” injury actually she sustained. mere Concurring 25 Our and Dissent fact that she a certain assumed risk in ing colleague with this disagrees position crossing the board into the house cannot multi-part sets forth a spirited argu be used to Appellees immunize the from ment to belief that we his should liability for any injury may she have Appellee’s address assertion. The Dis (cid:127) sustaining misfortune and to sent argues first the Giuntolis are have, may fact,
which their
negligence
precluded
“raising” this argument
contributed.
of the
Since
risk
they
because
not file a cross-appeal.
did
risk,
requires
subjective appreciation
However,
acknowledge
fails to
Dissent
Bullman could not have assumed the risk
granted
since the
were
Giuntolis
sum
ascertain,
that she did not
even if the
below,
mary judgment
“ag
were not
injury actually sustained is similar to the
grieved” by the order under consideration
Thus,
risk assumed.
the granting of sum-
and, thus,
entitled to cross-ap
were not
mary judgment on
basis of
the as-
Grab,
peal. See
705 A.2d
Smith v.
sumption of
the risk doctrine was
error.
cross-appeal
(Pa.Super.1997)(quashing
cross-appellant
aggrieved by
the order
Perhaps anticipating
pos
result,
from).
sibility
accord,
Appellees
appealed
of the
In Re
above
Giun-
In
Miller
Deposition,
pp.
§
at
quoted previously:
Bullman's
35 and 129.
"Thus
condi-
We
although
reproduced
note that
Bullman’s
premises upon
may
tion of
which he enters
page
deposition,
contains
35 of her
record
him,.but
quite apparent
danger arising
which sets forth the above referenced testimo-
may
from the
be neither
condition
known nor
ny,
ap-
it was not contained in the material
or,
all,
apparent,
apparent
if known or
pended
opposition
to her brief in
to the Giun-
may appear
slight
to be so
as to be
him
summary judgment,
tolis' motion for
at least
negligible.
plaintiff
a case the
does
such
not in the record
was forwarded
to us.
not assume the
His failure to exercise
risk.
Despite this
Bullman’s
absence
brief indicates
due care
or to understand
either to discover
appended. Consequently,
that it is so
it is
danger
properly
a matter of
is not
as-
page
depo-
unclear
whether or not
risk,
sumption
defense of con-
but
presented
sition was
Nevertheless,
the trial
court or not.
tributory negligence.”
fact
the same
is touched
*9
page
deposition,
on
129 of the
which was
appended
support
to the
brief in
Giuntolis’
of
also,
Walker,
Boyer
7. See
v.
714
458
summary judgment.
their motion for
Conse-
(Pa.Super.1998),
v. Nationwide Mut.
Fennell
quently,
testimony is of
this
record and was
Ins.,
534,
603
Fire
412
A.2d 1064
before the trial court.
Giordano,
(1992)
384 Pa.Su
and Gutman
78,
per.
all of
Pa. 575
serts,
any
of
cases where
Inc.,
“I am unaware
Paving
& Son
Pa.Cmwlth.
(1993). Thus,
Supreme
under-
they
at-
this
or our
Court
577 Appellant’s Brief error, states, to be “[accordingly, done.”13 the court work arguments appeal.” the on 18. we examine it is points The court then out Id. ¶ Au- Bullman and both response, 33 as grounds, to affirm on other empowered in opposition in the briefs gustine assert for utilize this as the reason principle if to summary judgment14 the motion for the on Ul- addressing arguments appeal. were the question of whether Giuntolis the considering arguments timately, after the property control of the possession in by and after conclud- pursued parties, the on being the house was constructed argument by appel- that the advanced ing 1, jury’s the is a matter for February 1996 summary granting in lee course, our con- given Of determination. merit, re- panel the
judgment lacked above, order can affirm the we clusion versed, today. as we do if summary judgment only Giun- granting ¶ prin- the panel 31 Because the recited judgment summary entitled to tolis were in can assume question, safely we ciple would re- possession issue. This on appellee’s found panel that had no mate- that there are quire conclusion meritorious, have af- position would for and that the Giun- rial facts resolution Also, ground. given firmed on that a matter judgment are entitled to as tolis panel prin- which the recites the context turn, above, require law. The would upon grounds,” of affirmance ciple “other facts to the that all relevant an assessment they princi- it can be assumed believed this developed have been determination argu- required them to address the ple jury no reasonable could conclude by parties despite raised ments Baxter, contrary. Washington v. See they grounds fact that did not address the (1998). Pa. A.2d 733 Review- 553 719 the trial relied court standard, we light of this ing the record Thus, in- judgment. summary despite think can reach this conclusion. do not we Dissenting Concurring of our sistence Thus, were not we that Giuntolis conclude that we colleague contrary, we feel judgment on this summary entitled mat- obligated are to review additional ground. ter raised the Giuntolis. correctly assert Giuntolis Although 34 argu- Turning to the alternative who turns work that a landowner over Giuntiolis, they as- ment advanced con- property to an independent his/her they were entitled to sert liability in connec- tractor has no further because, in- judgment employers as of an work, § the Restate- tion with contractor, dependent were not (Second) (1965), further Torts ment not be of the land and could possession provides: injuries from work resulting held liable an inde- the work to who entrusts One Relying Brletich v. thereon. performed contractor, but retains the who pendent Corporation, 445 Pa. States United Steel work, sub- any part control (1971), and Motter harm to oth- liability physical ject Partnership, Meadows Limited safety employer owes for whose ers A.2d 887 care, reasonable duty to exercise state, correctly [land- “when Giuntolis his to exercise is caused failure indepen- turns the work over to an owner] control reasonable care. his with and know- experience contractor with dent (Second) § of Torts Restatement how, own equipment who selects his re of the record 35 A review has no of land employees, possessor a far taking that Mr. Giuntoli was veals liability in connection further briefs, argue, choosing fruit- reply instead to premise can be at section This basic found out, (Second) of Torts. that we should not lessly, it turns 409 of Restatement consider issue. Augustine chose to nor 14. Neither Bullman challenge in their the merits of this address *12 more than passive role in overseeing the contractors visitors had voiced such and/or construction of the house. Mr. Giuntoli directly concerns to him.
visited the daily construction site on a ¶ whole, 37 Viewed as a the record does basis and frequently stopped by paint picture of a situation where an morning evening. Additionally, Mr. agreement was reached and Augustine was Giuintoli, during home, construction of the extended unfettered discretion to deliver a made various changes to the plans and/or completed structure. Mr. main- Giuntoli specifications by telephone either or tained an active oversight project of the directly communicating Augustine. compliance Mr. Giuntoli ensure with the contract testified at his deposition that he made Moreover, these visits “to quality quality see the of work. he reserved work, progress that had been responsibility completion for of certain made, if there was a deviation from some- parts project of the for Lastly, himself. thing you thought shouldn’t have oc- fact registered complaint that he Giuntoli, Dep. curred.” p. of J. concern regarding very means of egress used Bullman at reflects least a 36 Mr. Giuntoli also reserved certain aspects of consciousness of some authority the home to influ- construction to other subcontractors, in particular, ence decisions regarding safety areas relat- kitchen, ing bathroom, light- worksite, and the if not authority absolute to dic- ing to be installed the home. As to Thus, tate such matters. when the whole matters, these Mr. Giuntoli was overseeing of the record is considered we believe that the work of the subcontractors and Augus- there at jury question exists least a as to Thus, tine was not involved. from one the applicability of the defense raised perspective it could be argued that the Giuntolis.15 Consequently, we cannot Giuntolis were operating “general” as con- affirm the granting summary judgment tractors and contracting the work out to a on the theory. basis variety of “subcontractors.” Additionally, ¶ 38 For the above we vacate reasons there was an any language absence of the order granting summary judgment in the construction contract that would have Appellees favor of and remand for a con- acknowledged that the Giuntolis were re- linquishing possession proceedings. tinuation of property Augustine during construction. Perhaps ¶ 39 Order vacated. Case remanded. most us, relevant to the action before Mr. relinquished. Jurisdiction Giuntoli deposition indicated at that he had expressed Augustine concerns to about the J., JOHNSON,
use of gangplank persons flies a accessing Concurring wife, the home after his and certain sub- and Dissenting Opinion. respect disagree In this we with the Dis- determine whether or of material not issues sent that "necessarily resolution of this say summary issue fact exist. This is not to findings.” demands factual Concurring judgment granted can not be factual Dissenting Opinion However, p. 3. Our conclusion record. if a resolution of facts is today goes no required grant summary judgment further than to state that the it can summary judg- Giuntolis were not entitled only be done when the record so overwhelm- possession” theory. ment below on the "out ingly favors one conclusion that reasonable summary judgment The standard light is well minds could not differ. of this stan- dard, previously. known and Summary was recited the Giuntolis would not have been enti- judgment granted only can be summary judgment when there tled to below unless the exists no issue of material fact for resolution overwhelming evidence was so that reason- moving party trial and the is entitled to able minds could not have differed that the entry judgment in its favor possession. as matter of Giuntolis were out of Our con- law. When the summary merely recognizes trial court rules on clusion that the evidence is judgment, empowered it is not overwhelming to resolve fac- not so as to demand this con- finder, disputes tual or act as fact but clusion. Questions J.,
JOHNSON, Concurring “Counter[-]statement as Involved,” follows: Dissenting: as DEFENDANTS GIUNTO- my in much of II. WERE join colleagues I so majority ENTITLED TO JUDG- opinion LI SUMMARY well-reasoned would the order AS OF reverse MENT EMPLOYERS SINCE CONTRACTOR, judgment on the basis doctrine AN INDEPENDENT court’s of the risk. THEY NOT IN POSSESSION WERE *13 judg- alleged granting summary error BE THE LAND AND CANNOT OF only pre- ment this issue basis is RE- HELD LIABLE FOR INJURIES appeal. this Court on this Nev- sented to WORK, PER- FROM SULTING Giuntoli, ertheless, and Barbara James THEREON [?]. FORMED if argue that trial court appellees, even the (NOT THE BY COURT ANSWERED assump- of wrong analysis on its BELOW) risk, entitled tion of the the Giuntolis are and Barbara Appellees Brief James Gi- prevail on the that were not they basis untoli at 1. possession of the land However, injuries Augus 3 Both Bullman and Heinz C. plaintiffs occurred. brought cross-appeal objected attempt have not tine have Giuntolis Giuntolis’ they matter very engage to this Court. The issue that this Court in a not ad court, mat- by ask us to review was included in the albeit for dressed differ Brief, ters trial court but ex- presented Augus In his Reply ent reasons. tine, that pressly job-site not considered or decided on the contractor precluded court. I believe are from correctly we injury, argues Bullman sustained and, I reviewing accordingly, this issue that the Thomas J. Doerr made Honorable must respectfully dissent. at findings any stage of fact no regarding in the trial court proceedings Bullman, 2 Amy plaintiff, S. filed premises was in at possession who only appeal order sum- Reply the time of Bullman’s fall. Brief for mary judgment. us She asks to consider I Appellee [Augustine] agree at 4. Ques- one issue. Her Statement of it is this Augustine inappropriate that tion Involved sets forth: to undertake the resolution of Court WHETHER THE TRIAL COURT necessarily that factual issue demands IN ERRED GRANTING SUMMARY Glover, findings. v. See Commonwealth JUDGMENT ON THE OF AS- BASIS (1982) 1216, 433, 1217 Pa. 441 A.2d SUMPTION OF THE RISK WHERE v. C.I.T. Credit (quoting Reed Universal THERE EXISTED A MATERIAL IS- (1969) 212, 101, 104 434 Pa. 253 A.2d Corp., SUE FACT TO OF AS WHETHER (declaring court does not PLAINTIFF, A THE A TO VISITOR will as trier of issues of fact and not sit CONSTRUCTION RESIDENTIAL judicial invade the trial area court’s SITE, THAT KNEW SUBJECTIVELY Doerr, Judge Augustine process)). Before A PLANK ACCESS PROVIDING he not be found to argued should MOVE, HER TO WOULD CAUSING at possession premises have been BALANCE, HER STEP ONTO LOSE Reply Brief the time of Bullman’s fall. BOARDS, FALL THROUGH AND correctly 4. He asserts on [Augustine] at BE APPEARED TO WHICH not reach the Judge Doerr did appeal AND WEIGHT-BEARING COVERED analysis possession dispos his issue PORCH, A THE INTO BASEMENT summary judgment. ing of the motion BECOME A PARAPLEGIC? AND See id. at- Appellant Brief Giuntolis similarly. She con- argues 4 Bullman tempt inject a second issue into tends, inappropriate I it is appeal setting agree, what describe forth for the Giuntolis to raise an issue that was cannot raise issue concerning propriety of and, presented Bullman’s brief fur- good deduction of will asset from amount ther, was not an by Judge issue addressed due under redemption agreement stock Doerr in opinion his that formed the basis cross-appeal where no permitted filed as of the appeal. Reply Brief [Bullman] at 1. 903(b)) under Pa.R.A.P. with Arcidiacono Americas, v. Inc., Timeless Towns ¶ An appellee may not raise issues on 528, Pa.Super. 526 A.2d 806 n. 2 appeal not raised the appellant except (1987) (concluding appellee’s allegation of by filing a cross appeal. See Sateach v. trial court in charging jury error not be- Beaver Meadows Zoning Hearing Board fore this Court where no cross-appeal (Pa.Cmwlth. Appeals, 676 A.2d filed) Philadelphia Bond & Mortgage 1996). appellee Where an addresses an Homes, Inc., Co. Highland Crest on appeal issue appellant raised 479 n. 1 and not addressed in cross-appeal, (1975) (rejecting appellee’s attempt Id.; issue is deemed waived. *14 Barnes v. raise an concerning corporate issue McKellar, defen- 597, 770, 434 Pa.Super. 644 A.2d dant’s (1994) liability judgment note where 777 n. 5 (holding request by party defendanVappellant individual had not appellee as will not be considered where raised the appellee matter and had not party did not request include such in brief filed a cross-appeal). appellant filed). as and no cross-appeal Supreme 6 Our Court has refused to review, 8 scope Our of when reviewing consider the arguments of an appellee con- grant summary of judgment, is limited to testing a ruling trial court appellee where determining whether there was an error of appeal took no from the trial court’s order. law or a by clear abuse of discretion City See Philadelphia, Tax Review Bd. of trial court. Tenaglia v. Proctor & Gam Co., v. 265, Manheim Laundry 398 Pa. 157 ble, Inc., (Pa.Su 306, 737 A.2d 307 372, (1960) A.2d 374 (declining to address per.1999). agree I my colleagues arguments by City raised of Philadelphia the trial court in granting summary erred concerning taxation of allegedly non-tax- judgment on the basis of services, laundry able city where failed to risk. That our completes ends task and file cross-appeal from imposing par- order Here, responsibility. our Judge tax). tial Accord Commonwealth ex rel. Doerr did not issue that address the Robinson, 226, Robinson v. 505 Pa. 478 Giuntolis raising, are there can be no error (1984) 800, A.2d 804 (holding mother/ap- of law or abuse of discretion for this Court pellee precluded raising from issue con- regard. Having review that deter cerning trial court’s failure to interview mined that the trial court has erred in taken). children where no cross-appeal us, deciding properly before only issue See also Pennsylvania Human Relations course is to remand the matter Auth., Comm’n. v. Chester Hous. 458 Pa. remand, Upon for further proceedings. 67, 335, (1974) 327 A.2d 338 n. 12 (holding indicating this Court should refrain from housing authority precluded raising might what properly conclusions be drawn adversely issues decided to it Common- in the event Giuntolis renew their re wealth Court appeal where no taken quest summary judgment based on the authority/appellee). theory alternate out posses of owners
¶ Similarly, sion, 7 our Court has refused to theory that the trial court has not presented by entertain issues appellee, yet Frey by Frey addressed. See v. Smith Smith, where no cross-appeal 242, 169, has been filed. See 454 A.2d 685 (1996) compare v. Rizzuto, Osborne Carmichaels (quoting 173 Clevenstein v. Inc., Mining (1970) (hold Machine Repair, 397, 623, 427 Pa.Su- 439 Pa. 266 A.2d 626 159, (1993) 874, per. 628 A.2d 877 n. 3 ing grant reversal of does of demurrer (holding estate administratrix/appellee indicate any conclusion as to what decision
581 in an brief violation be, appellee’s all the development party after should 2116(a). facts)). review, all this scope our Pa.R.A.P. 2112 Under declare that sum- is authorized to is Court ¶ My colleagues “compelled have felt 10 not have been mary judgment should argu- review and assess the Giuntolis’ theory assump- granted upon based law solely principle on a relying ment” tion of the risk. See Id. trial where the inapplicable to matters colleagues v. Kor- My9 invoke Gilbert Majority being reversed. court order is 94, vette’s, Inc., n. 327 A.2d 96 Pa. stating After this Opinion (1974) in an engaging empowered Court affirm I by the trial court. issue not addressed basis, my proceed colleagues on any court may, can that a court agree their “re- upon find facts based certain circumstances, under certain affirm of the record” then conclude view than that trial court on different basis granting are unable affirm Donnelly v. advanced trial court. theory summary judgment pro- Bauer, Pa. 720 A.2d view, my by the Giuntolis. pounded Walker, (1998); Boyer analysis upon violates the rule of law n. 10 trial court (Pa.Super.1998) (affirming my into re- colleagues enter their judgment). order role of proper view and intrudes However, any I am cases unaware trial court as exclusive fact-finder. Supreme where this Court or our Court 454; Reed, Donnelly, A.2d at 253 A.2d *15 undertook to an issue not ad- consider at 104. reversing dressed the trial court reasons, I must 11 For all of the above by my trial order. The cases court cited my from much of respectfully dissent so majority 7 of the colleagues footnote as under- colleagues’ esteemed decision opinion proposition do not a enti- an not analysis an issue has takes tling reviewing court to entertain issues has presented by appellant but been trial court re- addressed while merely been as a “counter-state- submitted summary judg- an order versing granting appellee who has filed Boyer, ment. 714 A.2d at n. 10 and ment” an cross-appeal. v. Insur- Fennell Nationwide Mutual Fire Co., ance A.2d 1064 Pa.Super.
(1992) this both involve matters where granting Court an order sum- affirmed
mary thereby concluding judgment,
case, barring appeal. In further Gutman Giordano,
v. the trial Court addressed judi-
court’s reliance on the doctrine of res Pennsylvania, though appellant sought cata even COMMONWEALTH Appellant, argue that trial court erred Id. issue of the statute of limitations. reversing granting the order sum- SALER, Appellee. Raphael mary judgment, the Gutman court only analysis its limiting steadfast Pennsylvania. Superior Court relied which the trial court had issue judgment. Id. of these None Jan. Argued cases reasonable inference permit 11, 2000. Filed Oct. court, on the reversing while it, consider brought may before issue by sua not addressed sponte matters non-appealing but court raised