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DOROTHY LEICHTER v. EASTERN REALTY COMPANY (10/31/86)

filed: October 31, 1986.

DOROTHY LEICHTER, EXECUTRIX OF THE ESTATE OF LEONARD LEICHTER, APPELLANT,
v.
EASTERN REALTY COMPANY, ACME MARKETS, INC., STROUSE, GREENBERG AND COMPANY, CAMEO STORES, INC., PECK & PECK COMPANY, F.W. WOOLWORTH, PARAMOUNT PHOTO SERVICE, INC., PHILADELPHIA SAVINGS FUND SOCIETY, SUCCESSOR TO WESTERN SAVINGS FUND SOCIETY, DRY GOODS, DOUBLEDAY AND COMPANY, EVANS DRUG, INC., EDISON PENNSYLVANIA STORES, INC., CONSTON, INC., HALPERN'S JUNIOR DEBS, INC., CLASSIC LINEN & BATH, INC., ROSE SHAFER CANDIES, INC., FIDELITY BANK, JEAN MADELINE, INC., SHAWNEE PENN OF BALA CYNWYD, INC. AND THE FLORSHEIM SHOE STORE CO. OF NESHAMINY, APPELLEES. DOROTHY LEICHTER, EXECUTRIX OF LEONARD LEICHTER, APPELLEE, V. EASTERN REALTY COMPANY AND ACME MARKET, INC. AND STROUSE, GREENBERG AND COMPANY AND F.W. WOOLWORTH COMPANY AND PHILADELPHIA SAVINGS FUND SOCIETY AND FIDELITY BANK AND PECK & PECK COMPANY AND ASSOCIATED DRY GOODS CORPORATION T/A LORD AND TAYLOR AND HORN AND HARDART BAKING COMPANY AND DOUBLEDAY AND COMPANY, INC. AND R.L.W., INC. AND BLAIRS OF PA. INC. AND SHAWNEE PENN OF BALA CYNWYD, AND PARAMOUNT PHOTO SERVICE, INC. AND RECORD MUSEUM INC. AND DIAMOND BOYS SHOPS INC. AND PARIS LINEN AND DECORATING SHOPS, INC. AND ROSE SHAEFER CANDIES, INC. AND JEAN MADELINE, INC. AND THE FLORSHEIM SHOE STORE CO. OF BALA CYNWYD, HALPREN'S JUNIOR DEBS, INC. AND CLASSIC LINEN AND BATH, INC. AND BALA PARKWAY, LTD. D/B/A DIAMONDS MEN'S WEAR AND WARNACO, INC. AND GUS MAYER STORES, INC. AND CAMEO STORES, INC. AND EVANS DRUG, INC. AND EDISON PENNSYLVANIA STORES, INC. AND S & H SHOE STORE, INC. AND CONSTON, INC. APPEAL OF ACME MARKETS, INC.



Appeal from the Order entered May 24, 1985 in the Court of Common Pleas of Philadelphia County, Civil No. 3328 August Term 1981.

COUNSEL

Clifford E. Haines, Philadelphia, for appellant and appellee.

John J. O'Brien, West Chester, for appellant and appellees.

Richard A. Kolb, Philadelphia, for Strouse, appellee. Brendan Mailey, Philadelphia, for Cameo, appellee.

McEwen, Olszewski and Kelly, JJ. Kelly, J., files concurring opinion.

Author: Mcewen

[ 358 Pa. Super. Page 190]

We here consider cross appeals from an order which granted the motion of Acme Markets, Inc. (hereinafter referred to as appellee) for a new trial following a verdict in favor of Dorothy Leichter, Executrix of the Estate of Leonard Leichter (hereinafter referred to as appellant). We affirm.

The facts underlying this appeal are aptly summarized in the opinion of the court en banc which considered the post-verdict motions:

Plaintiff brought suit in a representative capacity as executrix of the estate of her deceased husband, who

[ 358 Pa. Super. Page 191]

    suffered a myocardial infarction as the result of being abducted from a parking lot owned by Eastern Realty Company. There is substantial agreement that on or about 8:00 p.m. on September 10, 1980, the Leichters drove to the Bala Cynwyd Shopping Center to shop at defendant Acme Supermarket. The shopping center consisted of fourteen stores, all tenants of Eastern Realty Company, Acme Markets, Inc. and the Lord & Taylor store. By agreement dated April [3, 1956], the predecessor in title to Eastern Realty Incorporated had granted to the predecessor of Acme Markets, Incorporated an easement for ingress and egress over a portion of the land and the privilege for its business invitees to park in its parking lot. These same rights were provided for Eastern's tenants in their leasing agreements. Additionally, there was testimony establishing that the firm Strouse, Greenberg and Company as agent for Eastern managed, operated and maintained this property. It is also admitted that the Leichters, unable to find parking accommodations in Acme's parking lot, parked their automobile in the parking area owned by Eastern. There was testimony that the area utilized by the Leichters was darkened because an overhead light was out of order. Having completed their shopping, decedent returned to the parking area to his car and it was there that he was abducted as a result of which he suffered a heart attack.

After completion of the presentation of the evidence, the trial judge (1) ruled that the principal issue in the case -- whether appellee Acme Markets, as the holder of an easement for ingress and egress with a privilege to park on the land, was a "possessor" of the land -- was a matter of law to be determined by the judge, and then (2) concluded that Acme was a possessor of the land. The trial judge then submitted to the jury the issues of (1) whether there was a breach of the duty which a possessor owes to a business invitee, and if so, (2) whether the breach of that duty was the proximate cause of the appellant's injuries. The jury returned with a verdict in favor of appellant and against appellees. The court en banc, however, ruled that the trial

[ 358 Pa. Super. Page 192]

    court had erred in treating the issue as a matter of law and concluded that the jury should determine whether appellee Acme Markets was a possessor of the pertinent land. As a result, the court en banc granted the motion for a new trial that had been presented by Acme Markets.

We first consider the assertion of appellees in their cross appeal that the court en banc erred when it rejected the motion of appellee Acme Markets, Inc. for the entry of judgment n.o.v. We must be guided in our ...


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