Pettyjohn, E. v. Chester Downs, Etc. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ELEANORA PETTYJOHN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
CHESTER DOWNS AND MARINA, LLC, : No. 1271 EDA 2021
D/B/A HARRAH’S PHILADELPHIA :
CASINO AND RACETRACK :
Appeal from the Judgment Entered May 25, 2021
In the Court of Common Pleas of Delaware County Civil Division at
No(s): 2019-002508
BEFORE: BOWES, J., STABILE, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED APRIL 19, 2022
Eleanora Pettyjohn (Pettyjohn) appeals from the judgment entered in
the Delaware County Court of Common Pleas after the trial court granted
summary judgment in favor of Chester Downs and Marina, LLC, d/b/a Harrah’s
Philadelphia Casino and Racetrack (Casino), in this personal injury action. On
appeal, Pettyjohn contends the trial court abused its discretion or committed
an error of law by: (1) determining Pettyjohn failed to prove she had a right
to relief under Section 343 of the Restatement (Second) of Torts; (2) failing
to consider Pettyjohn’s right to relief under Section 344 of the Restatement;
(3) failing to consider the fact that Casino participated in the spoliation of
evidence; (4) failing to state the reasons for its decision on the record or in a
written opinion; (5) failing to examine the entire record before granting
summary judgment; and (6) denying Pettyjohn due process of law when it
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neglected to rule upon her petition for reconsideration in a timely manner.
Because we conclude Pettyjohn proffered sufficient evidence to create a
genuine issue of material fact concerning her right to relief under Section 343
of the Restatement, we reverse the order granting summary judgment in favor
of Casino, and remand for further proceedings.
The relevant facts and procedural history are as follows. On September
5, 2017, Pettyjohn was a customer at Casino “when she was caused to lose
her footing and fall[.]” Pettyjohn’s Complaint 3/21/19, at ¶ 5. She avers that
the area of carpet where she fell “contained a defective condition.” Id. In
her answers to Casino interrogatories, Pettyjohn explained: “My foot felt like
it got caught up in a tear or rip in the carpet[.]” Casino Motion for Summary
Judgment, 2/2/21, Exhibit C, Pettyjohn’s Answers to Interrogatories, at 2
(unpaginated). See also id. at Exhibit D, Deposition of Pettyjohn, 12/19/19
(Pettyjohn Deposition), at 47 (stating she thought “it was a tear in the carpet”
that caused her to fall). As a result of the fall, Pettyjohn sustained significant
injuries, including a left hip fracture which required surgery. See Pettyjohn’s
Complaint at ¶ 9.
On March 21, 2019, Pettyjohn filed a civil complaint alleging Casino
failed to, inter alia, maintain the carpet or inspect it for defects, and that
Casino’s negligence was the cause of her injuries. See Pettyjohn’s Complaint
at ¶¶ 8-9. Casino filed an answer with new matter on April 24, 2019. On
December 11, 2020, the court entered an order, scheduling trial for the April
2021 term. See Order, 12/11/20, at 1. The order further directed that any
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motions for summary judgment be filed no later than 60 days before the trial
term. Id.
On January 26, 2021, Pettyjohn’s counsel, Robert G. Mangold, Esquire,
took the deposition of Casino’s Security and Risk Manager, Lawrence Moore.
Pettyjohn’s Petition for Reconsideration of this Court’s Order Granting Casino’s
Motion for Summary Judgment, 6/2/21, Exhibit C, Deposition of Lawrence
Moore, 1/26/21 (Moore Deposition), at 11.1 During the deposition, Attorney
Mangold requested additional discovery from Casino including, inter alia, “any
records involving the replacement of the carpet [i]n the area of the fall.”2 Id.
at 46.
Before providing any additional discovery, Casino filed a motion for
summary judgment on February 2, 2021.3 Casino argued that Pettyjohn
failed to produce sufficient evidence that it breached a duty owed to her. See
Casino’s Memorandum of Law in Support of its Motion for Summary Judgment,
2/2/21, at 8. Specifically, Casino asserted that Pettyjohn failed to prove the
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1 Although selected pages from Moore’s deposition were attached to Casino’s
motion for summary judgment (Exhibit E) and Pettyjohn’s answer thereto
(Exhibit B), the entire deposition is attached to Pettyjohn’s June 2, 2021,
Petition for Reconsideration as Exhibit C.
2 In addition, a “Rider” was attached to the notice of Moore’s deposition which
requested, among other things, the “[d]ate of carpet installation, repairs and
nature of repairs to carpet[.]” Deposition of Moore, Exhibit 1, Rider to Notice
of Deposition.
3 February 2nd was 58 days before the April 1st trial term.
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area of the carpet where she fell was in a dangerous condition, and even if so,
that Casino had actual or constructive notice of the danger. Id. at 9-11.
On February 16, 2021, Attorney Mangold sent a follow-up letter to
Casino’s attorney regarding the supplemental discovery requests he made
during Moore’s deposition. Pettyjohn’s Petition for Reconsideration, Exhibit D,
Letter from Mangold to Casino’s Attorney, 2/16/21. His request included
“[a]ny document that is related to the replacement of the casino carpets in
the area of [Pettyjohn’s] fall.” Id.
On March 5, 2021, Pettyjohn filed an answer to Casino’s motion for
summary judgment, asserting she produced sufficient evidence to submit her
case to a jury.4 In support of her claim, Pettyjohn attached an affidavit from
witness, Savette Taylor, who averred she was present at Casino at the time
of Pettyjohn’s fall, and accompanied Pettyjohn to the hospital. Pettyjohn’s
Answer to Casino’s Motion for Summary Judgment, 3/5/21, Exhibit A, Affidavit
of Savette Taylor, 3/2/21 (Taylor Affidavit) at 1 (unpaginated). Taylor further
attested that, while at the hospital, she
noticed something protruding out of [Pettyjohn’s] left sneaker
which looked like a piece of carpet at the casino. When [she]
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4 Pursuant to Pennsylvania Rule of Civil Procedure 1035.3, an adverse party
has 30 days to file a response to a motion for summary judgment, which, in
this case, would have been March 4, 2021. See Pa.R.C.P. 1035.3(a). The
trial court noted in its opinion that although Pettyjohn’s response was untimely
(by one day), it was “not so much so that the [c]ourt [would] disregard it.”
Order, 3/24/21, at 1 n.1. See Pa.R.C.P. 1035.3, Explanatory Cmt.-1996
(noting the “rule permits entry of judgment for failure to respond to the motion
but does not require it”).
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looked closely, it was stuck between the sole and the main part of
the shoe and it was protruding out. It was not on her shoe but
locked in between the sole which was partly detached.
Id. Taylor stated she took a picture of the shoe. Id. She also claimed she
returned to the casino, and noticed that the carpet in the area Pettyjohn fell
“had pieces . . . that were sticking up” and “looked frayed and torn.” Id. It
merits mention that despite reference to the photograph of Pettyjohn’s shoe,
no photo was attached to Taylor’s affidavit or Pettyjohn’s answer.5
On May 25, 2021, the trial court entered an order granting Casino’s
motion for summary judgment and dismissing Pettyjohn’s claims with
prejudice.6 See Order, 5/25/21, at 9. Although the court found Pettyjohn
presented sufficient evidence “that might allow a jury to find that the carpet
where [she] fell was torn or ripped (since Pettyjohn so stated both in her
deposition and in her Interrogatory Answers) and that such condition could
have been dangerous[,]” it, nevertheless, concluded “there [was] no evidence
in the record . . . that the torn carpet existed for such a length of time that in
the exercise of reasonable care, [Casino] should have known of it[, and t]he
lack of evidence that [Casino] ha[d] actual or constructive notice of the alleged
condition on [the] premises is fatal to Pettyjohn’s claim.” Id. at 5, 8.
Eight days later, on June 2, 2021, Pettyjohn filed a petition for
reconsideration, asserting that Casino provided “material and relevant”
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5The photograph was later attached to Pettyjohn’s petition for reconsideration
as Exhibit B.
6 The order was dated May 24, 2021, but not docketed until the next day.
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supplemental discovery on March 15, 2021 — which was, notably, after
Casino’s motion for summary judgment and Pettyjohn’s answer had been filed.
Pettyjohn’s Petition for Reconsideration at 1-2 (unpaginated). Specifically,
Pettyjohn averred “the documents supplied by [Casino] relate to the
installation of the subject carpet and defects that were noted involving the
carpet needing repairs due to it becoming unglued in many areas in June,
2017, just three months before [Pettyjohn’s] injury on September 5, 2017.”
Id. at 2. She attached to her petition a June 7, 2017, “Requisition” from
Casino which requested the carpet installer “Re-glue carpet at various
locations where needed.” Pettyjohn’s Memorandum of Law in Support of Her
Petition for Reconsideration of this Court’s Order Granting Summary
Judgment, 6/2/21, Exhibit F, Requisition issued 6/7/17.
Casino opposed Pettyjohn’s petition, arguing that the supplemental
discovery was irrelevant to her claims because it related to “a repair to
unglued sections of the carpet that were completed in June 2017, three
months prior to [Pettyjohn’s] alleged incident.” Casino’s Opposition to
Pettyjohn’s Petition for Reconsideration, 6/17/21, at ¶ 6. Casino emphasized
that Pettyjohn alleged her injury resulted from carpet that was “torn or
frayed.” Id. at ¶ 7. Moreover, it explained the work order document “only
proves that [Casino] had actual notice of an alleged defect, completely
different from the defect [Pettyjohn] alleges to have caused her injury, took
the necessary steps to remediate said defect, and fixed same three months
prior to [Pettyjohn’s] incident.” Id.
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On June 24, 2021 — 30 days after the trial court granted summary
judgment, but before the court ruled on her petition for reconsideration —
Pettyjohn filed a notice of appeal. See Pa.R.A.P. 903(2) (notice of appeal
“shall be filed within 30 days after the entry of the order from which the appeal
is taken”). Thereafter, on June 30th, the trial court entered an order denying
Appellant’s petition for reconsideration as moot because Pettyjohn’s “Notice
of Appeal . . . divested [the c]ourt of jurisdiction to rule on the Reconsideration
Petition[.]” See Order, 6/30/21, at 1.7 We note the trial court did not direct
Pettyjohn to file a Pa.R.A.P. 1925(b) concise statement of errors complained
of on appeal.
Pettyjohn raises the following claims on appeal, which we have
reorganized for purposes of disposition:
I. Whether the Trial Court committed error of law or abuse of
discretion when it failed to correctly consider that under the
Restatement (Second) of Torts § 343: (a) [Pettyjohn] need
not prove notice where the harmful condition is created by
the possessor or agent; (b) question of knowledge by
Possessor is immaterial where Possessor has duty to
inspect; (c) rebuttable presumption of negligence can be
inferred; (d) rebuttable presumption shifts the burden of
proof; (e) [Casino] failed to show the exercise of due care
as [it] did not perform inspections and admitted same of
record; (f) jury may find notice where condition frequently
recurred, thus obviating additional proof of notice[?]
II. Whether Trial Court committed error of law or abuse of
discretion when it failed to correctly consider that under
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7 Pettyjohn also filed a notice of appeal from this order, which this Court
quashed sua sponte because an order denying a petition for reconsideration
is not an appealable order. See 1331 EDA 2021, Order, 9/15/21.
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Restatement (Second) of Torts § 344, [Pettyjohn] need not
prove notice (actual or constructive)[?]
III. Whether the Trial Court committed an error of law or abuse
of discretion when it failed to correctly consider the
overwhelming evidence of spoliation by the withholding of
evidence by [Casino] of “a carpet that contained a defective
condition[?]”
IV. Whether the Trial Court committed error of law or abuse of
discretion when it failed to state, in a written opinion or on
the record, the reasons for its decision(s)[?]
V. Whether the Trial Court committed error of law or abuse of
discretion when it failed to examine the entire record and
determine whether the facts there appearing will support a
recovery under any theory of law before deciding on the
Motion for Summary Judgment and the [Petition] for
Reconsideration[?]
VI. Whether there was a breakdown in the court system and
error of law or abuse of discretion when the Trial Court failed
to correctly construe Pa.R.A.P. 1701 that denied [Pettyjohn]
due process, and is a breakdown in the court system that
entitles [Pettyjohn] to nunc pro tunc review[?]
Pettyjohn’s Brief at 2-4.
Our review of an order granting summary judgment is guided by the
following:
When a party seeks summary judgment, a court shall enter
judgment whenever there is no genuine issue of any material fact
as to a necessary element of the cause of action or defense that
could be established by additional discovery. A motion for
summary judgment is based on an evidentiary record that entitles
the moving party to a judgment as a matter of law. In considering
the merits of a motion for summary judgment, a court views the
record in the light most favorable to the non-moving party,
and all doubts as to the existence of a genuine issue of
material fact must be resolved against the moving party.
Finally, the court may grant summary judgment only when
the right to such a judgment is clear and free from doubt.
An appellate court may reverse the granting of a motion for
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summary judgment if there has been an error of law or an abuse
of discretion.
Gallagher v. GEICO Indem. Co., 201 A.3d 131, 136–37 (Pa. 2019)
(citations and quotation marks omitted; emphases added).
In her first issue, Pettyjohn contends the trial court abused its discretion
when it granted Casino’s motion for summary judgment based on the lack of
evidence that Casino had actual or constructive notice of the alleged carpet
defect.8 See Pettyjohn’s Brief at 24. She insists that a plaintiff is not required
to prove notice when the possessor of land creates the harmful condition. See
id. at 27-28. Because the record contains “ample evidence” that Casino
“intentionally failed [its] duty to inspect the carpet for defective conditions[,]”
Pettyjohn contends Casino “created the harmful transitory condition.” Id. at
28 (footnote omitted).
Further, Pettyjohn asserts that a jury could presume the accident
occurred as a result of Casino’s negligence when “as here, the cause of the
injury is under the management of [Casino] and the accident is such that if
does not happen in the ordinary course of things if [Casino] use[d] proper
care.” Pettyjohn’s Brief at 29. She also maintains Casino admitted its
employees do not inspect the carpet or keep inspection records, but that they
“previously witnessed ‘ripped carpeting at the casino’ and ‘torn . . . carpeting
. . . that had a piece of duct tape over it[.]” Id. at 31 (record citations
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8 As noted supra, the trial court found there was sufficient evidence for a jury
to conclude “the carpet where Pettyjohn fell was torn or ripped . . . and that
such condition could have been dangerous.” Order, 5/25/21, at 5.
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omitted). Accordingly, Pettyjohn asserts: “Where the condition is one which
the owner knows has frequently recurred, the jury may properly find that the
owner had actual notice of the condition, thereby obviating additional proof
by the invitee that the owner had constructive notice of it.” Id. at 32
(emphasis omitted). Thus, she insists the record contained sufficient evidence
to demonstrate a genuine issue of material fact “regarding the Restatement
(Second) of Torts § 343 standard[.]” Id. at 33.
There is no dispute that Pettyjohn was a business invitee of Casino at
the time of her fall. See Walker v. Drexel Univ., 971 A.2d 521, 524 n.1
(2009) (“A business invitee is a person who is invited to enter or remain on
the land of another for a purpose directly or indirectly connected with business
dealings with the possessor of the land.”) (citation omitted). “The duty of care
owed to a business invitee (or business visitor) is the highest duty owed to
any entrant upon land.” Gutteridge v. A.P. Green Servs., Inc., 804 A.2d
643, 656 (Pa. Super. 2002) (citation omitted and emphasis added). It
requires a possessor of land to protect the invitee from known dangers, as
well as “those which might be discovered with reasonable care. Id. (citation
omitted). As outlined in Section 343 of the Restatement (Second) of Torts:
A possessor of land is subject to liability for physical harm caused
to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would
discover the condition, and should realize that it involves an
unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the
danger, or will fail to protect themselves against it, and
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(c) fails to exercise reasonable care to protect them against
the danger.
Restatement (Second) of Torts § 343. See also Gillingham v. Consol
Energy, Inc., 51 A.3d 841, 850 (Pa. Super. 2012). The Comment to Section
343 further explains:
[A]n invitee enters upon an implied representation or assurance
that the land has been prepared and made ready and safe for his
reception. He is therefore entitled to expect that the
possessor will exercise reasonable care to make the land
safe for his entry, or for his use for the purposes of the
invitation. He is entitled to expect such care not only in the
original construction of the premises, and any activities of the
possessor or his employees which may affect their condition, but
also in inspection to discover their actual condition and any
latent defects, followed by such repair, safeguards, or warning
as may be reasonably necessary for his protection under the
circumstances.
. . . To the invitee the possessor owes not only this duty, but also
the additional duty to exercise reasonable affirmative care to
see that the premises are safe for the reception of the
visitor, or at least to ascertain the condition of the land, and
to give such warning that the visitor may decide intelligently
whether or not to accept the invitation, or may protect himself
against the danger if he does accept it.
Restatement (Second) of Torts § 343, cmt. b. (emphases added).
Nevertheless, this Court has explained that a business owner “is not an
insurer of the safety of its customers” and
the mere existence of a harmful condition in a public place of
business, or the mere happening of an accident due to such a
condition is neither, in and of itself, evidence of a breach of the
proprietor’s duty of care to his invitees, nor raises a presumption
of negligence.
Myers v. Penn Traffic Co., 606 A.2d 926, 928 (Pa. Super. 1992) (en banc)
(citation omitted).
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Here, based upon the record before it, the trial court found Pettyjohn
failed to present sufficient evidence that Casino knew or should have known
there was a defect in the carpet where Pettyjohn fell. See Order, 5/25/21, at
8. The court emphasized that, rather than address Casino’s lack of notice
argument, Pettyjohn focused on Casino’s admitted failure to conduct
“reasonable inspections.” Id. at 7 (citation omitted). The trial court opined:
. . . Pettyjohn’s framing of the inquiry, . . . sidesteps the factors
that inform whether [Casino] had notice — evidence that the
condition existed for such a length of time that in the exercise of
reasonable care, the owner should have known of it. . . .
* * *
[T]here is no evidence in the record before this Court that the torn
carpet existed for such a length of time that in the exercise of
reasonable care, [Casino] should have known of it. Put differently,
the record evidence — including Pettyjohn’s own testimony that
she was not aware of how long the alleged tear in the carpet
existed before she fell, and that she does not know whether
[Casino] knew about the alleged tear — would leave a fact finder
to “merely guess” the amount of time the alleged tear in the
carpet existed before the incident. The lack of evidence that
[Casino] had actual or constructive notice of the alleged condition
on [the] premises is fatal to Pettyjohn’s claim. In light of all record
evidence, submitted by both Pettyjohn and [Casino], the Court
concludes that reasonable minds could not differ as to whether
[Casino] had the requisite notice that would otherwise — but not
here — suffice to trigger [Casino’s] liability for Pettyjohn’s injuries.
Id. at 7-9.
Upon our review, we conclude the trial court erred when it granted
summary judgment in favor of Casino. We acknowledge that, at the time the
court considered the motion for summary judgment, the only evidence before
it concerning Casino’s notice, or lack thereof, of the defective carpet was: (1)
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Pettyjohn’s testimony that she did not look down at the ground before she
fell; (2) Taylor’s statement that she noticed a “piece of the carpet” in
Pettyjohn’s shoe while at the hospital; (3) Taylor’s statement that, after the
incident, she went back to the casino and noticed that, in the area where
Pettyjohn fell, “the carpet had pieces of it that were sticking up” that “looked
frayed and torn[,]” and “looked like they had been there for a long time[;]”
and (4) Casino’s acknowledgment that its security officers do not inspect the
carpet for defects, but instead, report any hazards they notice as they roam
the floor. See Pettyjohn’s Deposition at 47; Moore’s Deposition at 33-34;
Taylor Affidavit at 1. Construing these facts in the light most favorable to the
non-moving party, in accordance with our standard of review, we conclude
Pettyjohn proffered sufficient evidence to raise a genuine issue of material fact
as to whether Casino had constructive notice of the defect before her fall.
See Restatement (Second) of Torts § 343; Gallagher, 201 A.3d at 136–37.
This Court has previously explained:
What constitutes constructive notice must depend on the
circumstances of each case, but one of the most important factors
to be taken into consideration is the time elapsing between the
origin of the defect or hazardous condition and the accident. The
relative durability of the defect comprises a related factor. For
example, in Rogers[ v. Horn & Hardart Barking Co., 127 A.2d
762, 764 (Pa. Super. 1956),] we held that spilt soup on the floor
was too transitory a condition to charge the defendant with notice.
Much differently, in Hartigan[ v. Clark, 165 A.2d 647, 652 (Pa.
1960),] our Supreme Court held that a store patron who tripped
on a raised metal strip on a stair could charge the proprietor with
notice because of the durability of the condition, if a witness saw
the defect immediately thereafter.
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In sum, to charge a defendant store with constructive notice
of a harmful condition a plaintiff need not produce positive
testimony as to how long the defect existed if: (1) the defect is
of a type with an inherently sustained duration, as opposed
to a transitory spill which could have occurred an instant before
the accident; and (2) a witness saw the defect immediately
before or after the accident.
Neve v. Insalaco's, 771 A.2d 786, 791 (Pa. Super. 2001) (some citations
omitted and emphases added).
Here, the evidence produced by Pettyjohn, if credited by the fact finder,
would support a conclusion that the defect in the carpet was not a transitory
condition (such as spilt liquid), but rather one with an “inherently sustained
duration,” and one that a witness (Taylor) saw “immediately . . . after the
accident.” Neve, 771 A.2d at 791. Indeed, in her affidavit, Taylor attested
that she returned to the Casino after the accident and observed — in the area
where Pettyjohn fell — “the carpet had pieces of it that were sticking up . . .
and it looked like they had been there for a long time.” Taylor Affidavit at 1.
Moreover, the deposition testimony of Casino’s Security and Risk
Manager Lawrence Moore and Security Shift Supervisor Michael Zanghi, both
of which were before the trial court, reveals that Casino had no system in
place to affirmatively inspect the casino floor and discover latent defects. See
Moore’s Deposition, at 33-35 (explaining that Casino does not “inspect” for
hazards, but that security officers have responsibility to report any hazards
they notice while “roaming their zone”);9 Casino’s Motion for Summary
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9This portion of Moore’s deposition was attached to Pettyjohn’s answer to
Casino’s summary judgment motion as Exhibit B.
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Judgment, 2/2/21, Exhibit F, Deposition of Michael Zanghi, 1/27/21, at 14
(acknowledging he did not “perform inspections of the casino area regardless
of whether a fall has already occurred or as a proactive measure”).10
Accordingly, we conclude the trial court erred when it failed to review the
evidence in the light most favorable to Pettyjohn (the non-moving party) and
resolve all doubts as to the existence of a genuine issue of material fact in her
favor. See Gallagher, 201 A.3d at 136–37. Indeed, our review of the record
reveals a genuine issue of material fact concerning Casino’s constructive
notice of the carpeting defect.11 Thus, we reverse the order granting summary
judgment and remand for further proceedings.
Due to our disposition of Pettyjohn’s first issue, we need only briefly
address her remaining claims. In her second claim, Pettyjohn argues the trial
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10 Pettyjohn also argues Casino was on notice of the carpet defects because
Moore acknowledged in his deposition that he “previously witnessed ‘ripped
carpeting at the casino’ and ‘torn . . . carpeting . . . that had a piece of duct
tape over it[.]” Pettyjohn’s Brief at 31, citing Moore’s Deposition at 38-40.
However, that portion of Moore’s deposition was not before the court at the
time it ruled on the summary judgment motion. Rather, it was attached to
Pettyjohn’s petition for reconsideration, filed after the court entered its ruling.
Thus, we do not consider it in our analysis.
11 To the extent that Pettyjohn invokes the doctrine of doctrine of res ipsa
loquiter in her brief, see Pettyjohn’s Brief at 29-30, we note that she
presented no evidence that her fall was the sort that would not occur absent
Casino’s negligence. See Quinby v. Plumsteadville Fam. Prac., Inc., 907
A.2d 1061, 1071 (Pa. 2006) (doctrine of res ipsa loquiter permits “a plaintiff
[to] satisfy [her] burden of producing evidence of a defendant’s negligence by
proving that [s]he has been injured by a casualty of a sort that normally would
not have occurred in the absence of the defendant’s negligence”).
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court abused its discretion when it failed to consider her right to relief under
Section 344 of the Restatement (Second) of Torts. See Pettyjohn’s Brief at
33-36. However, she never raised the applicability of Section 344 before the
trial court in any of her pleadings. Thus, this argument is waived. See
Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and cannot
be raised for the first time on appeal.”). Nonetheless, we note that Section
344 subjects a possessor of land to liability for “physical harms caused by the
accidental, negligent, or intentionally harmful acts of third persons or
animals[.]” Restatement (Second) of Torts § 344. Pettyjohn presented no
evidence that the defect in the carpet was caused by the acts of “third persons
or animals.” Id. Accordingly, Section 344 is simply inapplicable under the
facts of this case.
Next, Pettyjohn argues the trial court abused its discretion or erred as
a matter of law when it failed to consider “the overwhelming evidence” that
Casino participated in the spoliation of evidence. Pettyjohn’s Brief at 17. She
insists Casino’s belated disclosure of the June 2017 “Requisition” order —
which requested that certain areas of the carpet be reglued — equated to the
spoliation of evidence that the carpet contained a defective condition. See id.
at 19-20.
Pettyjohn’s contention is simply incorrect. “‘Spoliation of evidence’ is
the non-preservation or significant alteration of evidence for pending or
future litigation.” Pyeritz v. Commonwealth, 32 A.3d 687, 692 (Pa. 2011)
(emphasis added and footnote omitted).
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The doctrine applies where relevant evidence has been lost or
destroyed. Where a party destroys or loses proof that is pertinent
to a lawsuit, a court may impose a variety of sanctions, among
them entry of judgment against the offending party, exclusion of
evidence, monetary penalties such as fines and attorney fees, and
adverse inference instructions to the jury.
Marshall v. Brown’s IA, LLC, 213 A.3d 263, 268 (Pa. Super. 2019) (citations
and quotation marks omitted).
Here, Pettyjohn does not assert that Casino destroyed or altered
relevant evidence. Rather, she complains Casino failed to disclose potentially
relevant evidence in a timely manner — more appropriately labeled a
discovery violation. Pettyjohn did not request the trial court impose a
discovery sanction, which is a matter reserved for the discretion of the trial
court. See Anthony Biddle Contractors, Inc. v. Preet Allied American
Street, LP, 28 A.3d 916, 926 (Pa. Super. 2011). Moreover, upon remand,
Pettyjohn now has this evidence to present to the trial court in support of her
claims. Thus, her spoilation argument fails.
Appellant’s final three claims all relate to her petition for
reconsideration, which the court did not consider before she filed a notice of
appeal. She argues: (1) the trial court failed to address the supplemental
arguments raised in her reconsideration petition; (2) the court abused its
discretion “by failing to examine the entire record” — i.e., her petition for
reconsideration — to determine whether the facts “support a recovery under
any theory of law[;’]]” and (3) the trial court’s failure to consider her petition
for reconsideration before the time for filing a notice of appeal expired
“constitute[s] a denial of due process, and breakdown in the court system.”
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J-A26043-21
Pettyjohn’s Brief at 36, 40, 44. We conclude that these claims are now moot.
Upon remand, Pettyjohn may submit the additional evidence presented in her
motion for reconsideration to the trial court. Furthermore, we note: “An order
denying reconsideration is unreviewable on appeal[, and] a trial court may . .
. properly refuse to consider new evidence presented for the first time in a
motion for reconsideration.” Bollard & Assocs., Inc. v. H & R Indus., Inc.,
161 A.3d 254, 256 (Pa. Super. 2017).
Accordingly, because we conclude the trial court erred when it granted
summary judgment in favor of Casino, we reverse the order on appeal, and
remand for further proceedings.
Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
Judge Stabile did not participate in the consideration or decision of this
case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/19/2022
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