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[U] Gapsky v. RTM Acquisition Company, LLC

Superior Court of Pennsylvania

March 7, 2014

MICHELLE GAPSKY Appellant
v.
RTM ACQUISITION COMPANY, LLC, T/D/B/A ARBY'S RESTAURANT Appellee

NON-PRECEDENTIAL DECISION

Appeal from the Order January 4, 2013 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD-11-005369

BEFORE: PANELLA, J., ALLEN, J., and STRASSBURGER, J. [*]

MEMORANDUM

PANELLA, J.

Appellant, Michelle Gapsky, appeals from the order entered January 4, 2013, by the Honorable W. Terrence O'Brien, Court of Common Pleas of Allegheny County, which entered summary judgment in favor of Appellee, RTM Acquisition Company, LLC, t/d/b/a Arby's Restaurant (Arby's). We affirm.

Gapsky initiated this action for personal injuries allegedly sustained due to food poisoning. Gapsky alleges that between 3 and 4 p.m. on August 16, 2009, she purchased and consumed a chicken sandwich from an Arby's restaurant located in Ashtabula, Ohio. Complaint, 3/21/11, at ¶ 6. At approximately 5 a.m. the following morning, Gapsky awoke with severe abdominal pain and "constant[, ] unrelenting diarrhea." Id. at ¶ 7. Several days later, on August 21, 2009, Gapsky sought medical treatment at Suburban General Hospital where she was hospitalized for five days and diagnosed with "salmonella poisoning, gastroenteritis, colitis, hypopotassemia, and iron deficiency anemia." Id. at ¶ 8.

On March 21, 2011, Gapsky filed a Complaint alleging a cause of action against Arby's sounding in negligence and strict liability. In the midst of discovery, on September 7, 2012, Arby's filed a motion requesting summary judgment in its favor, on the basis that Gapsky had failed to establish that the chicken sandwich was defective or that her consumption of the sandwich was the cause of her salmonella diagnosis several days later. Following a hearing, the trial court granted Arby's motion for summary judgment and dismissed Gapsky's Complaint with prejudice. See Order, 1/4/13. This timely appeal followed.

On appeal, Gapsky raises the following issues for our review:
1. Did the trial court err in granting summary judgment on the basis that [Gapsky] cannot establish the requisite causation between consumption of the chicken sandwich purchased from [Arby's] and the onset of salmonella poisoning that required her to be hospitalized for five days?
2. Did the trial court err in holding [Gapsky's] evidence to be equivocal and thus was not sufficient to establish causation?

Appellant's Brief at 3.

We review a challenge to the entry of summary judgment as follows:
[We] may disturb the order of the trial court only where it is established that the court committed an error of law or abused its discretion. As with all questions of law, our review is plenary.
In evaluating the trial court's decision to enter summary judgment, we focus on the legal standard articulated in the summary judgment rule. See Pa.R.C.P., Rule 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. Where the nonmoving 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 ...

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