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Reason v. Kathryn's Korner Thrift Shop

Superior Court of Pennsylvania

August 17, 2017


         Appeal from the Judgment Entered May 25, 2016 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 140701113

          BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E. [*]


          SOLANO, J.

         Following the entry of judgment against defendant Tamika Thomas, [1] 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.

         The 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.

         Riley 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.

         According 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).

         Riley 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.

         About 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.

         Meanwhile, 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.

         On July 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 ¶¶ 27-85.

         On 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.[2] On December 17, 2015, [3]the trial court granted the motion for summary judgment, leaving Thomas as the sole defendant in the action.

         On 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.

         On June 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 following issues:

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 without merit?

Appellant's Brief at 3 (issues renumbered; suggested answers omitted).

         Timeliness of Reason's Appeal

         In its 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.[4] Reason is correct.

         Pennsylvania 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.

         Summary Judgment

         Entry 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 report, or
(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 non-moving party.

Newell v. Montana West, Inc., 154 A.3d 819, 821-22 (Pa. Super. 2017) (citations and internal quotation marks omitted).

         Preliminarily, 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").

         With 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 adds:

[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.

         Duty to Protect against ...

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