J-A33021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MADGE AUSTIN                                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

WOODWARD PROPERTIES, INC.

                            Appellee                  No. 427 EDA 2015


              Appeal from the Judgment Entered January 28, 2015
              In the Court of Common Pleas of Philadelphia County
                Civil Division at No: August Term, 2013, No. 3481


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                             FILED April 21, 2016

        Appellant, Madge Austin, appeals from the January 28, 2015 judgment

entered in the Court of Common Pleas of Philadelphia County following that

court’s entry of a January 5, 2015 order denying her motion to remove a

compulsory nonsuit entered in favor of Appellee, Woodward Properties, Inc. 1

Following review, we affirm.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Appellant suggests she is appealing from both the November 18, 2014
order granting the nonsuit and the January 5, 2015 order denying removal
of the nonsuit. However, the appeal properly lies from judgment entered on
the order denying removal of the nonsuit.     See, e.g., Harvey v. Rouse
Chamberlin, Ltd., 901 A.2d 523, 524 n. 1 (Pa. Super. 2006) (quoting Billig
v. Skvarta, 853 A.2d 1028, 1030 n. 1 (Pa. Super. 2004) (“[I]n a case
where nonsuit was entered, the appeal properly lies from the judgment
(Footnote Continued Next Page)
J-A33021-15


      The    trial   court    provided     the    following   procedural   and   factual

background:

                                    Procedural History

            This is a Motion for Post-Trial Relief filed by Plaintiff Madge
      Austin, after a November 13th, 2014, decision granting
      Defendant's Compulsory Nonsuit pursuant to [Pa.R.C.P] 230.1.

           Plaintiff Madge Austin commenced this lawsuit by filing a
      Complaint on January 6, 2014 alleging negligence against
      Defendant Woodward Properties, Inc.

            On November 3rd, 2014, the Honorable Mark I. Bernstein
      signed an Order bifurcating the case, thus, only the liability
      portion proceeded to trial.

            On November 24th, 2014, Plaintiff timely filed a Motion for
      Post-Trial Relief; challenging the decision to grant the Nonsuit.

                                      Factual History

             This lawsuit stems from the evening of February 26, 2013,
      when Plaintiff fell down part of an interior stairway at the
      Stonehurst Court Apartments, an apartment complex in Upper
      Darby, PA, owned by Stonehurst Walnut Associate, LP and
      managed by Defendant, Woodward Properties, Inc. Plaintiff had
      been working occasionally as a babysitter for Maureen Loughery, a
      third-floor tenant at the Stonehurst Court Apartments.

            Plaintiff alleged injuries occurred when she slipped and fell on
      a partially eaten piece of pizza, on a piece of greasy wax paper on
      one of the stairs, as she descended from the second to the first
      floor. Plaintiff admitted that the debris was approximately the size
      of a dinner plate and had no explanation for why she failed to
      notice the alleged debris in time to avoid stepping on it. After two
      (2) days of trial, this Court granted Defendant's motion for nonsuit
                       _______________________
(Footnote Continued)

entered after denial of a motion to remove nonsuit.”)).               The caption has
been corrected accordingly.




                                            -2-
J-A33021-15


       based on Plaintiffs failure to meet her burden of proving notice by
       not introducing evidence as to how long the transitory debris had
       been on the stairs.

Trial Court Memorandum, 1/5/15, at 1-2 (footnote omitted).

       On January 28, 2015, the trial court’s order was reduced to judgment.

This timely appeal followed.

       Appellant presents three issues for our consideration:

       1. Was the [t]rial [c]ourt’s entry of nonsuit an error of law or
          abuse of discretion when [Appellant] submitted evidence that
          [Appellee] was on notice of a recurring danger of trash on the
          steps, that [Appellee] attempted to make the steps safer prior
          to [Appellant’s] fall, and a jury could conclude, based on the
          evidence, that [Appellee’s] effort to make the steps safer was
          not reasonable?

       2. Was the [t]rial [c]ourt’s entry of nonsuit an error of law or an
          abuse of discretion when the [r]ecord supports a finding that
          [Appellee’s] conduct created an unreasonable risk of harm to
          invitees and it failed to act reasonably to protect invitees in
          response to a known danger?

       3. Was it an error of law or an abuse of discretion when the
          [t]rial [c]ourt refused to permit [Appellant] from presenting a
          theory of liability that [Appellee’s] breach of its management
          contract caused harm to [Appellant]?

Appellant’s Brief at 5.2

       We begin by setting forth our standard of review.


____________________________________________


2
  We remind counsel for Appellant of the requirement of Pa.R.A.P. 2111(11)
to include with an appellant’s brief a copy of the statement of errors
complained of on appeal filed with the trial court pursuant to Pa.R.A.P.
1925(b) or an averment that no order was entered requiring a statement of
errors.



                                           -3-
J-A33021-15


      Our standard of review is well-established: “A nonsuit is proper
      only if the jury, viewing the evidence and all reasonable
      inferences arising from it in the light most favorable to the
      plaintiff, could not reasonably conclude that the elements of the
      cause of action had been established.” Brinich v. Jencka, 757
A.2d 388, 402 (Pa. Super. 2000), appeal denied, 565 Pa. 634,
      771 A.2d 1276 (2001) (citation and internal quotation marks
      omitted). Furthermore, all conflicts in the evidence must be
      resolved in the plaintiff’s favor.      See Gigus v. Giles &
      Ransome, Inc., 868 A.2d 459, 461 (Pa. Super. 2005), appeal
      denied, [895 A.2d 550 (Pa. 2006)]. In reviewing the evidence
      presented we must keep in mind that a jury may not be
      permitted to reach a verdict based on mere conjecture or
      speculation. See Brinich, 757 A.2d at 402. We will reverse
      only if the trial court abused its discretion or made an error of
      law. See Weiner v. Fisher, 871 A.2d 1283, 1285 (Pa. Super.
      2005).
.
Harvey, 901 A.2d at 526.

      In her first issue, Appellant asserts trial court error of law or abuse of

discretion   for   entering   a   nonsuit   in   light   of   evidence   presented

demonstrating that Appellee was on notice of a recurring danger of trash on

the steps.     Appellant argues the jury could find that Appellee acted

unreasonably its efforts to make the steps safe.

      In its Memorandum, the trial court recognized that Section 343 of the

Restatement (Second) of Torts defines the duty a possessor of property

owes to a business invitee such as Appellant.                 That section, titled

“Dangerous Conditions Known to or Discoverable by Possessor,” provides:

      A possessor of land is subject to liability for physical harm
      caused to his invitees by a condition on the land if, but only if,
      he




                                      -4-
J-A33021-15


         (a) knows or by the exercise of reasonable care would
         discover the condition, and should realize that it involves
         an unreasonable risk of harm to such invitees, and

         (b) should expect that they will not discover or realize the
         danger, or will fail to protect themselves against it, and

         (c) fails to exercise reasonable care to protect them
         against the danger.

Restatement (Second) of Torts, § 343.

      In its Memorandum, the trial court cited various slip and fall cases,

including Zito v. Merit Outlet Stores, 647 A.2d 573 (Pa. Super. 1994), in

which this Court held that “the mere existence of a harmful condition in a

public place of business, or the mere happening of an accident due to such a

condition is neither, in and of itself, evidence of a breach of the proprietor’s

duty of care to his invitees, nor raises a presumption of negligence.” Trial

Court Memorandum, 1/5/15, at 3 (quoting Zito, 647 A.2d at 575, in turn

citing Moultrey v. Great A&P Tea Co., 422 A.2d 593, 596 (Pa. Super.

1980)). Further, “[a] land owner is not an insurer; he is liable only for the

defects that he has actual or constructive notice of; i.e., which could have

been discovered by a reasonable inspection.” Id. (citing, inter alia, Stais v.

Sears-Roebuck & Co., 106 A.2d 216 (Pa. 1954)).

      The trial court recognized that in order “to recover damages in a slip

and fall case, a business invitee must present evidence that ‘proves that the

store owner deviated in some way from his duty of reasonable case under

the existing circumstances.’”   Id. (quoting Zito, 647 A.2d at 575).      “This



                                     -5-
J-A33021-15


evidence must demonstrate that the proprietor knew, or in the exercise of

reasonable care should have known, of the existence of the harmful

condition.” Id.

      The trial court next discussed constructive notice, stating that one of

the most important factors to be considered is “the time elapsing between

the origin of the defect or hazardous condition and the accident.” Id. at 8

(quoting Rogers v. Horn & Hardart Baking Co., 127 A.2d 762, 764 (Pa.

Super. 1956)). In addition, the trial court noted that Pennsylvania case law

focuses on the relative durability of the defect, i.e., whether it is transitory,

such as soup on a floor, or more durable, such as a raised metal strip on a

stair. Id.

      [W]here the evidence indicates that the transitory defect is
      traceable to persons other than those for whom the owner is
      ordinarily accountable, then “the jury may not consider the
      owner’s ultimate liability in the absence of other evidence which
      tends to prove that the owner had actual notice of the condition
      or that the condition existed for such a length of time that in the
      exercise of reasonable care the owner should have known of it.”

Id. (quoting Moultrey, 422 A.2d at 596).

      The trial court looked to the facts in Moultrey, where the plaintiff

slipped and fell on a cherry in a supermarket. There, the trial court granted

a nonsuit. This Court affirmed, relying in large part on Martino v. Great

Atl. & Pac. Tea Co., 213 A.2d 608 (Pa. 1965), to find that Moultrey failed

to discharge the burden of proving the proprietor had either actual or

constructive notice of the offending transitory defect.


                                      -6-
J-A33021-15


      In Martino, the plaintiff fell in a grocery store after stepping on a

grape. The trial court entered a nonsuit, holding the plaintiff did not present

any proof of how the grape ended up on the floor. Therefore, there was no

evidence from which a jury could determine that the store breached its duty

by not removing it. This Court affirmed, stating:

      Appellant’s burden was to prove that the dangerous condition of
      appellant’s premises causing the fall resulted from appellee’s
      negligence; that appellee was aware that grapes and other
      refuse were on the floor and made no efforts to remove them.
      No such proof was, however, produced. Appellee was not an
      insurer of the safety of business visitors and owed only the duty
      of reasonable care under the circumstances, specifically, to
      correct unsafe conditions discoverable through the exercise of
      reasonable care and diligence. The testimony disclosed that one
      of appellee’s employees was required to and did remove items of
      refuse from the floor when they were noticed.

Martino, 213 A.2d at 608.

      The trial court also considered Markman v. Fred P. Bell Stores, Co.,

132 A. 178 (Pa. 1926), where the plaintiff was injured when she slipped on

vegetable refuse on a wet platform near the store’s entrance. However, in

that case testimony proved that the defendant washed much of its produce

near the store’s entrance, causing refuse to build up and leading to many

complaints about the conditions to the owner and even to the police. Our

Supreme Court affirmed a verdict in favor of the plaintiff, finding the plaintiff

had established that the defendant was on notice of the refuse.

      After reviewing relevant case law, the trial court concluded:

      Similar to Martino and Moultrey, [Appellant] slipped and fell on
      a transitory defect. Like the appellant-invitees in these two

                                      -7-
J-A33021-15


     cases, [] Appellant here also maintains the burden of having to
     prove how long the transitory defect was on the floor. Like in
     Martino and Moultrey, Appellant [] did not offer any such
     proof, either by direct or circumstantial evidence, and in turn,
     failed [to] meet her burden. Dissimilar to the situation in
     Markman, the trash on the steps [was] not a known frequently-
     occurring condition that promoted [sic] frequent notices to
     [Appellee].

     The defect, a partially eaten piece of pizza on a piece of greasy
     wax paper, is not the type of defect with an inherently sustained
     duration. Rather, this was a transitory defect that certainly
     could have occurred on the stairs an instant before the alleged
     accident happened. There was also no witness testifying to
     seeing the transitory defect at any time before the accident, and
     no evidence that [Appellee] created it. As such Pennsylvania law
     requires   [Appellant]    to   produce    some    evidence    that
     demonstrates how long the transitory defect was on the stairs
     before the slip and fall. [Appellant] has failed to meet that
     burden. [Appellant] did not offer any evidence that specifically
     speaks to trash on the stairs being such a consistent problem
     that [Appellee] was well-aware of the issue and on notice as in
     Markman.

Trial Court Memorandum, 1/5/15, at 5-6.

     The trial court acknowledged Appellant’s contention that Appellee was

on constructive notice of debris on the stairs based on testimony of

Appellee’s employee, Christopher Neff, whom Appellant claims testified in his

videotaped deposition that “trash was everywhere.” Id. at 6 n.2. However,

the trial court properly rejected Appellant’s contention, noting Mr. Neff’s

statement was taken out of context and that “when read in its entirety, does

not seem to indicate that there was always trash ‘everywhere,’ but rather

that on any given day, trash could be located anywhere and/or ‘everywhere’

around the building.” Id. We further observe that Mr. Neff described debris


                                    -8-
J-A33021-15


on the premises as items such as gum wrappers and papers and explained

that, when observed, the items were picked up. Deposition of Christopher

Neff, 11/7/14, at 34-35.

       The trial court concluded:

       [B]ecause the defect in question was transitory and there was a
       complete absence of any evidence to indicate who caused the
       defect or how long the half eaten slice of pizza was on the stairs
       prior to the accident, it stands to reason then, that like in
       Martino and Moultrey, this Court’s decision to grant
       [Appellee’s] compulsory non-suit was the correct decision and
       clearly in-line with established Pennsylvania case law.

Trial Court Memorandum, 1/5/15, at 6.            We agree with the trial court’s

determination that the condition that caused Appellant to fall was a

transitory condition.      Further, we agree that there was no evidence to

indicate who was responsible for leaving the debris on the steps or how long

it was there.3       Moreover, if a nonsuit was warranted in Martino and

Moultrey, it is warranted even more in the case before us. In those two

____________________________________________


3
   Appellant focused much attention on the fact the elevators in the
Stonehurst Apartments “rarely worked” necessitating that tenants use the
stairs to take their trash to the outside dumpsters. Appellant’s Brief at 17.
While Appellant testified that the elevator was not working on the evening
she fell, there is no indication how long the elevator was out of service. In
fact, Appellant testified that she took the elevator on more than one
occasion earlier that day. N.T. Trial, 11/21/14, at 139-40. Just as with the
length of time pizza was on the steps, to the extent it is even relevant, a
jury would have to speculate as to how long the elevator was not working on
the day of Appellant’s fall. This, of course, is not permissible. See, e.g.,
Brinich v. Jencka, 757 A.2d at 402 (“A jury . . . is not permitted to reach
its verdict based on mere conjecture or speculation.”).




                                           -9-
J-A33021-15


cases, the plaintiffs fell on produce in the produce sections of grocery stores.

Obviously, the proprietors of those stores knew that the produce was

present in their stores and, in fact, supplied the produce for its customers.

Here, however, we have a partially eaten piece of pizza on the stairwell of an

apartment building. While Appellee took reasonable measures to keep the

premises safe—both through twice-daily inspections by its employee,

Michael Jackson and by virtue of the fact other employees would pick up

items if they saw them—a jury could not reasonably determine that Appellee

should expect a phantom piece of pizza to be discarded on the steps of one

of its residential apartment buildings. Appellant’s first issue fails for lack of

merit.

      In her second issue, Appellant claims the trial court erred or abused its

discretion by granting a nonsuit because evidence supports a finding that the

trash was traceable to Appellee’s conduct. While acknowledging Appellee did

not actually put trash on the steps, Appellant contends Appellee “created the

conditions which made it likely the trash would accumulate on the steps.”

Appellant’s Brief at 18. In particular, Appellant suggests that Appellee knew

“by having elevators that hardly worked and no interior trash cans that trash

accumulates on the steps on a regular basis.”          Id.   Because Appellant

mischaracterizes the testimony, we must reject her assertion.

      While there was testimony that items such as gum wrappers and

papers could be found on occasion around the apartment complex,


                                     - 10 -
J-A33021-15


Appellee’s employees explained that they monitored the property and would

pick up items as they found them. With regard to interior trash cans, one of

Appellee’s property managers explained that the only interior trash cans

were located in the lower level laundry rooms.      Having trash cans in the

hallways “would be the worse [sic] thing we could do” because “we want the

trash outside the building, not inside.” N.T. Trial, 11/12/14, at 90. There

was no testimony offered by Appellant to support a finding that Appellee’s

actions—whether in terms of the frequency of stairwell inspections or

location of trash facilities—fell below the standard of care for a possessor of

property set forth in the Restatement (Second) of Torts, § 343.          Even

accepting Appellant’s testimony that items such as juice bottles and chip

bags were sometimes encountered in the stairwell, there was no suggestion

that “trash accumulates on the steps on a regular basis” or that Appellee did

not take reasonable measures to keep the stairwells safe.4      Moreover, the

____________________________________________


4
  The testimony most strongly supporting Appellant’s “harmful condition”
argument came from Appellant and from Maureen Loughery, mother of the
children for whom Appellant babysat. Appellant testified that she saw trash
on the floor, “even in the elevators,” three or four times per week, “you
know, the kids, they just leave it there sometimes in the evening.” N.T.
Trial, 11/12/14, at 137-38. Maureen Loughery explained that the trash was
“not a big enough problem where I complained about it, but there was
trash,” usually “where the steps were and the landings . . . [, a]t least once
a month, but it could have been more.” N.T. Trial, 11/10/14, at 143-44.
Ms. Loughery was asked about—and agreed with—her deposition testimony
during which Appellee’s counsel asked about her observations of trash on
the interior stairs. During the deposition she indicated she saw trash
“maybe once a month.” When asked whether that would be “big piles of
(Footnote Continued Next Page)


                                          - 11 -
J-A33021-15


fact elevators sometimes did not work was not shown to be the cause of

Appellant’s fall.      The fact the elevator was not working on the night of

Appellant’s fall did not cause her to fall.         A piece of pizza on greasy wax

paper caused her to fall.          Further, with regard to the elevator itself, by

Appellant’s own testimony it was working earlier in the day.            N.T. Trial,

11/12/14, at 139-40. See also n.3, supra.

       While Appellant argues that Appellee had notice of a harmful condition

because it had a hand in creating it, that assertion simply is not supported

by the evidence presented at trial, giving Appellant the benefit of all

reasonable inferences. Appellant’s second issue fails.

      In her third issue, Appellant asserts trial court error or abuse of

discretion for refusing to permit presentation of a contract theory of liability

against Appellee. Appellant’s argument is devoid of merit. A review of her

complaint confirms that she asserted only negligence against Appellee. In

fact, the complaint does not even mention a management agreement,

perhaps because she was unaware of Appellee’s status as property manager

when she filed the complaint.5             Appellant alleged her fall resulted from

                       _______________________
(Footnote Continued)

trash or like a gum wrapper or piece of paper or something like that,” she
replied, “It varied. Sometimes it was like almost that somebody’s trash bag
broke open so there was like real trash. Sometimes it would just be candy
wrappers or a cup.” Id. at 166-67.
5
  Appellant’s complaint asserts that Appellee is a Pennsylvania corporation
that, “[a]t all relevant times, . . . owned, possessed, leased, rented,
(Footnote Continued Next Page)


                                           - 12 -
J-A33021-15


Appellee’s “carelessness and negligence” for, e.g., failing to maintain and

inspect the stairs properly, permitting a dangerous condition to exist for an

unreasonable length of time, failing to inspect the steps for trash and/or

debris, and failing to inspect and maintain the elevator.            Appellant’s

Complaint at ¶ 9. There are no allegations in the complaint asserting any

contract claims and Appellant did not seek leave to amend to raise them.6

      The trial court explained its refusal to allow presentation of a breach of

contract theory at trial, noting that “since [Appellant] is not a party to the

management agreement or a ‘specifically intended beneficiary’ [Appellant]

did not have standing to argue that [Appellee] was negligent for breach its

responsibilities under the contract.” Trial Court Memorandum, 1/5/15, at 7

(citations to Notes of Testimony omitted). The trial court distinguished the

case relied on by Appellant, Evans v. Otis Elevator Co., 168 A.2d 573, 575

(1961), as a case in which the “plaintiff was actually, and literally, injured by

the elevator itself, not because plaintiff was injured taking an alternate route

as a result of the out of service elevator.” Id. (emphasis in original).



                       _______________________
(Footnote Continued)

managed, controlled and/or maintained the premises of [the apartment]
. . .” Appellant’s Complaint at ¶¶ 2-3.
6
  Not only was the complaint silent as to a maintenance agreement or any
breach thereof, but also no copy of the agreement was attached to the
complaint, as mandated by Pa.R.C.P. 1019(h) and (i) for claims based upon
an agreement.



                                           - 13 -
J-A33021-15


      We find no error of law or abuse of discretion in the trial court’s ruling.

The Appellant filed a complaint sounding in negligence and she was

appropriately limited at trial to the only theory of liability she advanced in

her pleadings.

      We find no error of law or abuse of discretion in the trial court’s grant

of a nonsuit in favor of Appellee. Therefore, we affirm the judgment entered

on January 28, 2015.

      Judgment affirmed.

      President Judge Emeritus Ford Elliott joins the memorandum.

      Judge Strassburger files a concurring and dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/21/2016




                                     - 14 -