from the Judgment Entered May 25, 2016 In the Court of Common
Pleas of Philadelphia County Civil Division at No(s):
BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E.
the entry of judgment against defendant Tamika Thomas,
Appellant Desiree Reason challenges the order granting
summary judgment in favor of the remaining defendants,
Appellees Kathryn's Korner Thrift Shop, Drueding Center,
Inc., Holy Redeemer Health System, and Nadine Riley, with
respect to an alleged assault that occurred while Reason was
shopping at the thrift shop. We affirm.
incident that gives rise to this suit occurred on September
19, 2012, at the thrift shop's location on North Lawrence
Street in Philadelphia. Trial Ct. Op. at 3. Those premises
are owned by Drueding Center, which, in turn, is owned by
Holy Redeemer. Reason went to the thrift shop as a business
invitee, and she was a frequent customer of the shop.
is the cashier at the thrift shop, and Riley's daughter,
Tamika Thomas, was at the thrift shop at the time of the
incident. Thomas was a monthly visitor to the thrift shop,
but was not a thrift shop employee. Thomas has a history of
mental illness, but there is no evidence in the record that
she has a history of violence. Riley Dep., 10/16/15, at
28-29. Reason alleged that Thomas takes daily medication for
her condition, but that she failed to take her medication on
the day of the incident and that Riley knew of that lapse.
to Reason, the incident occurred when she brought items to
Reilly's check-out counter. She made some purchases and
left other items on the counter. Thomas, who was standing in
front of the register at this time, accused Reason of
throwing socks at Reilly and punched Reason in the face.
Reason and Thomas left the store and began to fight outside.
Trial Ct. Op. at 3-4 (citations omitted).
claims that she pushed a button in the store to summon help.
Riley says she believed that the button directly summoned the
police, but the button instead may have been wired to alert
someone at the reception desk of Drueding, who then called
another employee, Calvin Collins, to check on the alert.
See Calvin Collins Dep., 10/16/15, at 9-10.
ten minutes after Reason and Thomas left the store, Riley
followed them outside and made a phone call on her cell
phone. She claims to have called the police. See
Trial Ct. Op. at 8; Riley Dep. at 34.
three men on bikes arrived on the scene and held Reason down
while Thomas punched her and Reason punched back. Trial Ct.
Op. at 4. Store employees stood outside and watched the fight
but did not participate in it. Collins then interceded and
broke up the fight. Later, the police arrived, and Reason
brought them into the store. Id.; see Riley
Dep. at 34.
11, 2014, Reason initiated this action. As amended, her
complaint made claims against the Thrift Shop, Drueding, Holy
Redeemer, Riley, and Thomas for negligence, false
imprisonment, and civil conspiracy; she also sued all
defendants except Riley for assault and battery, sued all
defendants except Thomas for concerted tortious conduct, and
sued all defendants except Riley and Thomas for negligent
hiring and supervision. Fourth Am. Compl., 2/2/15, at 7-19
November 2, 2015, all of the defendants except Thomas moved
for summary judgment. They contended that they did not breach
any duties owed to Reason, did not cause her any physical
harm or place her in fear of harm, did not conspire to cause
her harm or aid and abet anyone who allegedly injured her,
and did not negligently hire or supervise any employees.
Appellees' Mot. for Summ. J. at 4-32 (citing Counts I,
III-VIII of Fourth Am. Compl., 2/2/15, at 7-19 ¶¶
27-29, 32-85); Mem. of Law in Supp. of Appellees' Mot.
for Summ. J. at 5-14. On December 17, 2015, the trial court
granted the motion for summary judgment, leaving Thomas as
the sole defendant in the action.
January 8, 2016, the case against Thomas was listed for
arbitration. Thomas did not appear at the arbitration, and on
April 14, 2016, the arbitrators entered a report and award
against Thomas and in favor of Reason in the amount of $40,
000.00. Report & Award of Arbitrators, 4/14/16, at 1. On
May 25, 2016, Reason filed a praecipe to enter judgment
against Thomas in that amount.
9, 2016, Reason filed a notice of appeal to this Court. In a
Rule 1925(b) statement, she challenged the trial court's
entry of summary judgment in favor of the defendants other
than Thomas. On December 16, 2016, the trial court filed a
Rule 1925(a) opinion in which it expressed the view that
Reason had waived her right to appeal by failing to file her
notice of appeal within 30 days of the court's December
17, 2015 summary judgment order. Reason now raises the
1. Did [Reason] file a timely Notice of Appeal when said
Notice was filed within thirty days after the final Order
disposing of all parties to this action?
2. Did the trial court err as a matter of law by granting
summary judgement and holding that [Reason's] claims
against Kathryn's Korner Thrift Shop, Drueding Center,
Inc., Holy Redeemer Health System and Nadine Riley, are
Appellant's Brief at 3 (issues renumbered; suggested
of Reason's Appeal
opinion, the trial court stated that Reason's appeal was
untimely, and that all of her issues therefore were waived,
because the notice of appeal was not filed within 30 days of
the order granting summary judgment. Trial Ct. Op. at 5.
Reason contends that she filed a timely appeal following
entry of the judgment against Thomas, the final defendant in
the case. Appellant's Brief at 11. She continues that
"[t]he [trial c]ourt's Order of December 17, 2016
was not a final Order as it did not dispose of all claims of
all parties in accordance with Pa. R. A. P. 341(a)(1)."
Id. Reason is correct.
Rule of Appellate Procedure 341(a)(1) states: "an appeal
may be taken as of right from any final order of a government
unit or trial court." Pa.R.A.P. 341(b)(1) defines a
"final order" as "any order that . . .
disposes of all claims and of all parties." The trial
court granted Appellees' motion for summary judgment on
December 17, 2015. Subsequent to the granting of that motion,
outstanding claims remained pending against Thomas. Thus, the
order granting summary judgment was not a final order,
because it did not dispose of all claims and of all parties.
See Pa.R.A.P. 341(a); Brickman Grp., Ltd. v. CGU
Ins. Co., 829 A.2d 1160, 1163-65 (Pa. Super. 2003). The
remaining claims against Thomas were resolved upon entry of
the judgment filed against Thomas on May 25, 2016. Hence,
Reason could not properly file an appeal with this Court
until after May 25, 2016, and her notice of appeal filed on
June 9, 2016, was timely.
of summary judgment is governed by Rule 1035.2 of the Rules
of Civil Procedure:
After the relevant pleadings are closed, but within such time
as not to unreasonably delay trial, any party may move for
summary judgment in whole or in part as a matter of law
(1) whenever there is no genuine issue of any material fact
as to a necessary element of the cause of action or defense
which could be established by additional discovery or expert
(2) if, after the completion of discovery relevant to the
motion, including the production of expert reports, an
adverse party who will bear the burden of proof at trial has
failed to produce evidence of facts essential to the cause of
action or defense which in a jury trial would require the
issues to be submitted to a jury.
Pa.R.C.P. 1035.2. In addition:
Our standard of review of an appeal from an order granting
summary judgment is well settled: Summary judgment may be
granted only in the clearest of cases where the record shows
that there are no genuine issues of material fact and also
demonstrates that the moving party is entitled to judgment as
a matter of law. Whether there is a genuine issue of material
fact is a question of law, and therefore our standard of
review is de novo and our scope of review is
plenary. When reviewing a grant of summary judgment, we must
examine the record in a light most favorable to the
Newell v. Montana West, Inc., 154 A.3d 819, 821-22
(Pa. Super. 2017) (citations and internal quotation marks
we note that Reason's Fourth Amended Complaint made
claims of false imprisonment, civil conspiracy, assault,
battery, concerted tortious conduct, and negligent hiring and
supervision against Appellees, but Reason does not address
any of these counts in her brief to this Court. She makes
arguments only about her other negligence claims.
See Reason's Brief at 6-10, 12. Any challenges
to the trial court's summary judgment on the claims of
false imprisonment, civil conspiracy, assault, battery,
concerted tortious conduct, and negligent hiring and
supervision are therefore waived. See Signora v. Liberty
Travel, Inc., 846 A.2d 145, 147 (Pa. Super. 2004) (when
appellant's brief makes no argument in support of an
issue, this Court will not consider the merits of thereof);
Moses Taylor Hosp. v. White, 799 A.2d 802, 804 (Pa.
Super. 2002) (issues addressed elsewhere but not argued in
briefs are waived), appeal denied, 808 A.2d 572 (Pa.
2002); Butler v. Illes, 747 A.2d 943, 944 (Pa.
Super. 2000) ("When issues are not properly raised and
developed in briefs, when briefs are wholly inadequate to
present specific issues for review, a court will not consider
the merits thereof").
respect to her remaining negligence claims, Reason argues
that the trial court "erred in entering summary judgment
for [Appellees] as there exist genuine issues of material
fact regarding whether [Appellees'] negligent conduct led
to [Reason]'s injuries." Appellant's Brief at 6.
[Reason] presents a prima facie case for negligence
against the [Appellees] for violating their duty to [Reason]
and genuine issues of material fact exist as to the
[Appellees'] response to the incident and the foreseeable
nature of the incident.
[Appellees] owed [Reason] the same duty owed to all business
invitees and whether their specific actions adequately
satisfied or breached this duty is an issue to be determined
by a jury. . . .
[Reason] further contends that there are several instances
where the actions, or non-actions, taken by [Appellees']
employees, both prior to the incident and during the
incident, could permit a reasonable jury to infer that
[Appellees] acted negligently and failed in their duty to
[Reason] and that said failure is causally related to
[Reason]'s resulting damages.
Id. at 7-9 (some formatting altered).
Under Pennsylvania law -
In order to hold a defendant liable for negligence, the
plaintiff must prove the following four elements: (1) a
legally recognized duty that the defendant conform to a
standard of care; (2) the defendant breached that duty; (3)
causation between the conduct and the resulting injury; and
(4) actual damage to the plaintiff.
Newell, 154 A.3d at 822 (quoted citation omitted).
Appellees contend that Reason's negligence claims fail to
satisfy the first element, duty. In response, Reason argues
that Appellees owed her two legally recognized duties: a duty
to take precautions against the potential dangerous acts of
third parties like Thomas; and a duty to aid or otherwise to
respond adequately to the actual harms that were being
committed against her by Thomas. Appellant's Brief at 7,
9-10. In other words, Reason contends that Appellees had a
duty to prevent injury from Thomas' assault, and to come
to Reason's rescue once the assault began. We address
each of these theories separately.
to Protect against ...