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George and Jackie Casselbury v. American Food Service

October 12, 2011

GEORGE AND JACKIE CASSELBURY,
APPELLANTS
v.
AMERICAN FOOD SERVICE, APPELLEE



Appeal from the Order entered December 29, 2010, Court of Common Pleas, Bradford County, Civil Division at No. 584 CV 2007

The opinion of the court was delivered by: Donohue, J.:

J. S51024/11

BEFORE: GANTMAN, DONOHUE and MUNDY, JJ.

OPINION BY DONOHUE, J.:

Appellants, George Casselbury ("Mr. Casselbury") and Jackie Casselbury ("Mrs. Casselbury" individually, and collectively with Mr. Casselbury, "the Casselburys"), appeal from the trial court's December 29, 2010 order granting summary judgment in favor of Appellee, American Food Service ("AFS"). We reverse and remand.

The record reflects that Mr. Casselbury worked at the OSRAM/Sylvania ("OSRAM") industrial plant in Towanda, Pennsylvania. Pursuant to a contract between OSRAM and AFS, AFS provided food services at the OSRAM cafeteria. On July 24, 2006, Mr. Casselbury slipped and fell while walking near a dumpster outside the OSRAM plant, suffering injuries. Mr. Casselbury believed he slipped on cooking oil that was leaking from the dumpster. Subsequently, the Casselburys initiated this tort action against AFS, alleging that AFS breached its duty to dispose of cooking oil properly, and that AFS' breach of its duty caused physical injuries to Mr. Casselbury. Mrs. Casselbury asserted a loss of consortium claim.

After the parties conducted discovery, AFS filed a motion for summary judgment pursuant to Pa.R.C.P. 1035.2. The trial court heard oral argument on May 7, 2010 and granted AFS' motion on December 29, 2010. This timely appeal followed.*fn1

The Casselburys raise three arguments for our review:

A. Whether [the Casselburys] have put forth sufficient evidence to establish that [AFS] owed a duty to [Mr. Casselbury] and such duty was breached?

Accordingly, the trial court never entered an order pursuant to Pa.R.A.P. 1925. Upon learning of the Casselburys' failure to serve a copy of the notice of appeal, the trial court issued an opinion suggesting that this Court remand the matter to the trial court for the issuance of an opinion addressing the Casselburys' appellate issues. Trial Court Opinion, 2/7/11, at 1-2.

When an appellant fails to serve the notice of appeal on the trial court per Rule 906(a)(2), this Court has discretion to take any appropriate action, including a remand to the trial court for the completion of omitted procedural steps. Meadows v. Goodman, 993 A.2d 912, 914 (Pa. Super. 2010) (citing Pa.R.A.P. 902). The appellant's lack of compliance with Rule 906(a)(2) does not affect the validity of the appeal, however, and a remand is not required. Id.

In the instant matter, the trial court issued an opinion on December 29, 2010 accompanying its order granting summary judgment in favor of AFS. That opinion addresses the issues the Casselburys raise in this appeal. While we do not condone the Casselburys' procedural error, we conclude that a remand is unnecessary because the error has not hampered this Court's review.

B. Whether [the Casselburys] have established a genuine issue of material fact, through the witness' testimony, so as to preclude the granting of summary judgment?

C. Whether the expert report of Kenneth T. Vail, in and of itself, should have preclude [sic] the granting of summary judgment?

The Casselburys' Brief at 2.

Each of the Casselburys' issues challenges the trial court's finding that no triable issue of fact exists as to whether AFS owed a duty to Mr. Casselbury and breached it. We will therefore address the Casselburys' issues together. Rule 1035.2 provides that ...


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