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Cholewka v. Gelso

Superior Court of Pennsylvania

July 27, 2018

DAWN CHOLEWKA AND RONALD H. CHOLEWKA, HUSBAND AND WIFE Appellants
v.
ALDO GELSO AND INGEBORG GELSO, HUSBAND AND WIFE
v.
RICHARD NEIDKOWSKI AND LITTLE RICHIE'S LANDSCAPING, LLC

          Appeal from the Order Entered August 2, 2017 In the Court of Common Pleas of Pike County Civil Division at No(s): 2013- CIV-1292

          BEFORE: OTT, J., STABILE, J., and MUSMANNO, J.

          OPINION

          OTT, J.

         Ronald H. and Dawn Cholewka (collectively "the Cholewkas"), husband and wife, appeal from the order entered August 2, 2017, in the Pike County Court of Common Pleas, granting summary judgment in favor of additional defendants Richard Neidkowski and Richie's Landscaping, LLC (collectively "Neidkowski"). The order also made final a prior order, entered September 23, 2016, granting summary judgment in favor of the original defendants Aldo Gelso and Ingeborg Gelso (collectively "the Gelsos"). The Cholewkas raise three issues on appeal challenging the trial court's grant of summary judgment in favor of Neidkowski and the Gelsos. For the reasons below, we affirm in part, vacate in part, and remand.

         The facts underlying this appeal are as follows. At all relevant times, the Gelsos owned a property located at 149 Hatton Road, Hawley, Pennsylvania. On March 12, 2012, they leased the property to the Cholewkas, as well as their daughter, Heather Cholewka, and her boyfriend, Richard Neidkowski. All four tenants signed the lease, agreed to accept the property "as is," and agreed to make all repairs during their tenancy. Motion for Summary Judgment of Gelso, 6/3/2016, Exhibit A, Lease Agreement (hereinafter "Lease Agreement"), at ¶¶ 8-9. The Cholewkas moved into the upstairs portion of the property, while Heather, Neidkowski and their child moved into the downstairs portion of the property. Sometime thereafter, Neidkowski installed a gravel parking pad next to the asphalt driveway so that he would have a space to park his work truck. The parking pad was situated two to three inches below the surface level of the driveway. See Deposition of Richard Neidkowski, 12/15/2014, at 22-23.

         On October 4, 2012, at approximately 9:15 p.m., Dawn intended to take her dog for a walk. However, the dog immediately slipped off the leash and ran towards the back of the house, which was a wooded area. Although there was a light illuminating the front door and the back porch, the sides of the house, including the gravel parking pad, had no lighting. Both Dawn and Ronald walked to the back of the house to look for the dog. Ronald then went back into the house to retrieve a flashlight. In the meantime, Dawn walked around the side of the house where the parking pad was located. However, as she stepped up on the asphalt driveway from the parking pad, she tripped and fell, resulting in a fractured tibia.

         On August 12, 2013, the Cholewkas filed a negligence action against the landlords, the Gelsos, followed by an amended complaint on September 26, 2013. They alleged the Gelsos were negligent for failing to warn them of the dangerous condition caused by the uneven driveway and lack of lighting in the area. On January 16, 2014, counsel for the Gelsos filed a notice of Aldo Gelso's death. No personal representative was substituted in his place. After submitting an answer and new matter on April 1, 2014, the Gelsos filed a motion for leave to join Neidkowski and the company he owns, Little Richard's Landscaping, as additional defendants.[1]

         On June 3, 2016, the Gelsos filed a motion for summary judgment, asserting the Cholewkas failed to establish the necessary elements of a negligence action. By order dated September 23, 2016, the court granted summary judgment in favor of the Gelsos. This Court subsequently denied the Cholewkas' request for permission to appeal. See Order, January 10, 2017. On May 5, 2017, Neidkowski also filed a motion for summary judgment asserting, inter alia, he owed no duty to the Cholewkas. By order dated August 2, 2017, the trial court granted Neidkowski's motion. This timely appeal followed.[2] [3]

         All of the Cholewkas' issues on appeal challenge the trial court's award of summary judgment to the defendants and the additional defendants. When reviewing an order of the trial court granting summary judgment, we are guided by the following:

Summary judgment is appropriate where the record clearly demonstrates there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812 A.2d 1218, 1221 (2002); Pa. R.C.P. No. 1035.2(1). When considering a motion for summary judgment, the trial court must take all facts of record and reasonable inferences therefrom in a light most favorable to the non-moving party. Toy[ v. Metropolitan Life Ins. Co.], 928 A.2d [186, ] 195 [(Pa. 2007)]. Whether there are no genuine issues as to any material fact presents a question of law, and therefore, our standard of review is de novo and our scope of review plenary. Weaver v. Lancaster Newspapers, Inc., 592 Pa. 458, 926 A.2d 899, 902-03 (2007).

Estate of Agnew v. Ross, 152 A.3d 247, 259 (Pa. 2017). "In sum, only when the facts are so clear that reasonable minds cannot differ, may a trial court properly enter summary judgment." Roche v. Ugly Duckling Car Sales, Inc., 879 A.2d 785, 789 (Pa. Super. 2005) (quotation omitted), appeal denied, 901 A.2d 499 (Pa. 2006).

         The Cholewkas' first two issues challenge the court's award of summary judgment to additional defendant, Neidkowski. In their opening argument, the Cholewkas contend the trial court erred or abused its discretion in concluding Neidkowski owed no duty of care to them because they were all co-possessors of the same land. See Cholewkas' Brief at 19.

         The Restatement (Second) of Torts defines a possessor of land as, inter alia, "a person who is in occupation of the land with intent to control it[.]" Restatement (Second) of Torts § 328E (1965).[4] It is well-established that "[t]he standard of care a possessor of land owes to one who enters upon the land depends upon whether the person entering is a trespasser, licensee, or invitee." Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983). In the present case, it is clear Dawn was not a trespasser at the time of the accident.[5]However, the Cholewkas maintain she was either a gratuitous licensee or an invitee. See Cholewkas' Brief at 21.

         Pursuant to the Restatement, a licensee is "a person who is privileged to enter or remain on land only by virtue of the possessor's consent." Restatement (Second) of Torts § 330 (1965). An invitee is categorized as either a public invitee or a business visitor. See id. at § 332.

[]A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.
[]A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.

Id.

         As noted above, the trial court concluded Neidkowski owed no duty to Dawn because she was a co-possessor of the property in question. In the order granting Neidkowski summary judgment, the court opined:

In this case, [the Cholewkas] do not qualify as trespassers, [licensees], or invitees. [The Cholewkas] were privileged to enter and remain on the property, and so cannot be considered trespassers. [The Cholewkas] were not privileged to enter or remain on the property only by virtue of the possessor's consent, and so cannot be considered licensees. [The Cholewkas] were neither invited to enter or remain on land as members of the public, nor invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of land, and so cannot be considered invitees. Rather, the facts of this case indicate that [the Cholewkas], along with Heather [] and [] Neidkowski, all qualify as possessors of land in accord with the Restatement (Second) of Torts.
The record indicates that a single agreement between [the Cholewkas], [] Neidkowski, and Heather [] and [the Gelsos] governed the lease of the property; a single document signed by [the Cholewkas], [] Neidkowski, and Heather []. Also, rent for the property was the responsibility of all signatories to the Lease Agreement despite any private understanding regarding appropriate apportionment that the signatories may have reached between themselves. Finally, the home on the property is a single-family dwelling, not a multi-family dwelling or townhome-style development. The record indicates [the Cholewkas] occupied the upper level while [] Neidkowski and Heather [] occupied the lower level, as agreed between those lessees. However, the Lease Agreement failed to indicate that the upper and lower levels of the dwelling were separate, or considered separate, for the purpose of leasing the property.
In light of these facts, this Court finds that all signatories to the Lease Agreement were possessors of the property at the time of [Dawn's] injuries. Logic dictates that [the Cholewkas] cannot be both possessors of land ...

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