author: FORD ELLIOTT, Judge:

text:
    606 A.2d 916
    Dorothy L. DUDLEY, Administratrix of the Estate of Orlando A. Dudley, Deceased, on Behalf of Estate of Orlando A. Dudley, Deceased, v. USX CORPORATION v. Alfonzo DUDLEY, an Individual, Josh Steel Company, a Corporation, B. Zeff Company, Inc., a Corporation, and Isadore Joshowitz and Bennet S. Zeff, Individuals. Appeal of Dorothy L. DUDLEY, Administratrix of the Estate of Orlando A. Dudley, Deceased, Appellant. Dorothy L. DUDLEY, Administratrix of the Estate of Orlando A. Dudley, Deceased, on Behalf of the Estate of Orlando A. Dudley, Deceased, Appellant, v. USX CORPORATION v. Alfonzo DUDLEY, an Individual, Josh Steel Company, a Corporation, B. Zeff Company, Inc., a Corporation, and Isadore Joshowitz and Bennet S. Zeff, Individuals.
    Superior Court of Pennsylvania.
    Argued April 16, 1991.
    Filed March 4, 1992.
    Reargument Denied May 12, 1992.

      Samual J. Cordes, Pittsburgh and Michael A. Murphy, Pittsburgh, for appellant.
    David A. Luptak, Pittsburgh, for USC Corp., appellee. Shelley B. Campbell, Pittsburgh, for Josh Steel, Joshowitz & Zeff, appellees (at 1218) and for Josh Steel & Joshowitz, appellees (1219).
    Before McEWEN, DEL SOLE and FORD ELLIOTT, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from the June 12, 1990 and June 26, 1990 orders of the Court of Common Pleas of Allegheny County, granting summary judgment to defendant, USX Corporation, and additional defendants, Josh Steel Company, B. Zeff Company, Inc., Isadore Joshowitz, and Bennett S. Zeff. We affirm.

Orlando A. Dudley, a 16 year old, was electrocuted while attempting to steal copper cable from a tower in USX’s Carrie Furnace Plant in Rankin Borough, Allegheny County. Dorothy L. Dudley, administratrix of the estate of Orlando Dudley, filed suit against USX alleging negligence in the maintenance and security of its Carrie Plant property. USX joined Josh Steel Company and B. Zeff Company, Inc., both scrap dealers, as additional defendants, alleging that they encouraged this theft by the purchase of stolen copper cable at various times prior to this incident. Both of the decedents’ parents were later joined as additional defendants on a theory of negligent parental supervision.

The pleadings and discovery in this case reveal that Orlando Dudley, along with two companions, entered the Carrie Furnace Plant facility on October 4, 1986, for the express purpose of stealing copper cable from the plant. Upon entering the plant, Orlando Dudley and his two companions proceeded to a tower from which was strung copper lines. The base of the tower was enclosed with a circular grate welded onto the tower so as to prevent unauthorized access to the tower’s ladder. One of the three trespassers used a mallet to break off the circular grate. After the grate was broken, all three climbed to a ledge on the tower at a height of approximately 138 feet. When Orlando Dudley touched an energized transmission cable with his hacksaw, he was electrocuted.

The Carrie Furnace facility had been idle for several years prior to this incident. However, one power plant within the facility remained operational in order to generate electricity for the Homestead Works; another USX facility located across the river from the Carrie Furnace facility.

USX had barricaded the tunnel entrances to the Carrie Furnace facility by filling the tunnels with tons of slag, rocks, and railroad ties. A fence was erected at the main gate of the facility to prevent unauthorized access. USX had erected "No Trespassing” signs around the perimeter of the facility, and several "Danger — High Voltage” signs within the facility. A private security firm had been retained to patrol the facility and apprehend trespassers.

In fact, Orlando Dudley had been confronted by the security officers, plant officers, and local police officials about trespassing on the property, prior to the October 1986 incident. One of Mr. Dudley’s companions testified as to the stepped up security efforts in the months preceding the accident. Another companion testified that he understood that the steel grate was welded to the bottom of the tower to prevent access to the ladder and that he had warned Mr. Dudley that he did not believe it would be safe to climb the ladder to the tower.

Following discovery, the trial court granted USX’s motion for summary judgment on the basis that the facts of record establish that Mr. Dudley’s death was not the result of any culpable conduct on the part of USX, because USX did not engage in any wanton or willful misconduct. Similarly, the trial court also granted additional defendants’ motions for summary judgment concluding that the evidence failed to establish liability under the proposed theories. Appellant has filed this timely appeal from the orders granting the various summary judgment motions.

Appellant raises three issues for our consideration.

I. Whether the trial court erred in granting summary judgment to USX Corporation?
II. Whether the trial court erred in granting summary judgment to additional defendants, scrap dealers Josh Steel Co. and B. Zeff Company?
III. Whether the trial court erred in granting summary judgment to the principal officers of the scrap dealers, Isadore Joshowitz and Bennett S. Zeff?

Prior to addressing the merits of the issues presented for our review, it is necessary first to consider the propriety of the trial court’s disposition of the summary judgment motions in light of the Nanty-Glo rule. Appellant, citing to Curran v. Philadelphia Newspapers, 497 Pa. 163, 439 A.2d 652 (1982), presented a Nanty-Glo issue when arguing that the trial court improperly usurped the role of the jury by passing on the credibility of the moving party’s witnesses in granting the various summary judgment motions. In granting the summary judgment motions, the trial court relied upon the pleadings, admissions, depositions of USX personnel and decedent’s co-trespassers, and the answers to interrogatories supplied by USX personnel and the co-trespassers along with accompanying documents. Recent decisions of this court, interpreting the Nanty-Glo rule, have held that the party moving for summary judgment may not rely solely upon its own testimonial affidavits or depositions, or those of its witnesses, to establish the non-existence of genuine issues of material fact. See Garcia v. Savage, 402 Pa.Super. 324, 586 A.2d 1375 (1991). At first glance, applying recent decisions of this court, it would appear that the trial court violated the Nanty-Glo rule when deciding the various summary judgment motions. However, upon closer scrutiny, we find no application of the Nanty-Glo rule to the circumstances of this case.

Any analysis of the Nanty-Glo rule must necessarily start with the case giving birth to the rule, Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932). Nanty-Glo involved an assumpsit action by the Borough of Nanty-Glo against American Surety Company, which held a bond on the borough tax collector, Benjamin Estep. An audit of the borough records for the year 1922 revealed that Estep was short in his tax accounts by $4,743.09. The borough filed suit against American Surety to recover that amount under the official bond held on Mr. Estep. At trial, the borough produced two witnesses to testify as to material facts necessary for the borough to make out its case. Estep testified that the money he had collected in his official capacity as tax collector, but failed to turn over to the borough, was used for his own purposes. Carlisle, a borough clerk, testified that he sent a letter to American Surety notifying them of the shortage, four days after council received the audit report indicating the shortage. Those two facts, the improper use of the money by Estep and the timely notification to American Surety, had to be established in order for the borough to recover under the terms of the bond.

American Surety offered no evidence to contradict the testimony of those witnesses. At the conclusion of all testimony, the trial judge granted the borough's motion for binding instructions and directed a verdict in its favor. American Surety appealed, arguing that the trial court erred in directing a verdict for the plaintiff because it took from the jury the opportunity to pass upon the truth of the oral testimony setting forth matters essential to plaintiff’s recovery. In announcing its decision, the court quoted language from the case of Reel v. Elder, 62 Pa. 308, 316 (1869), which has subsequently become the oft-cited language when referencing Nanty-Glo.

However clear and indisputable may be the proof when it depends on oral testimony, it is nevertheless the province of the jury to decide, under instructions from the court, as to the law applicable to the facts, and subject to the salutary power of the court to award a new trial if they should deem the verdict contrary to the weight of the evidence.

Nanty-Glo, 309 Pa. at 238, 163 A. at 524.

From 1932, when the Nanty-Glo decision was handed down, until 1970, the courts consistently applied Nanty-Glo to situations involving binding instructions and directed verdicts. The rule has been uniformly held to provide that binding instructions and a directed verdict are not proper when the moving party relies solely upon oral testimony to prove facts necessary to make a prima facie case.

In 1970, the Nanty-Glo rule was first applied in a summary judgment setting in the case of Bremmer v. Protected Home Mutual Life Ins. Co., 436 Pa. 494, 260 A.2d 785 (1970). Bremmer involved an action to recover proceeds under a policy of life insurance. A key element necessary to a successful recovery by Mrs. Bremmer was whether her husband answered questions truthfully on the insurance application. The issue of the truthfulness of these answers became a material factual dispute in the case. Relying only upon the deposition testimony of two doctors whom the insured had visited prior to applying for the insurance, the company moved for summary judgment arguing that the doctors’ testimony conclusively established that the insured had given false statements to the company. On appeal, the supreme court concluded that the trial court had erred in granting summary judgment since the moving party had relied exclusively upon oral testimony to resolve disputed issues of fact.

Herein, the determination of whether or not the insured gave false and fraudulent statements depends upon a consideration of the testimony of Dr. Hipps and Dr. D’Angelo. This testimony was oral____ [I]t has long been the rule in Pennsylvania that where the testimony of the party having the burden of proof is oral, the credibility of that testimony is always for the jury.

Bremmer, 436 Pa. at 498, 260 A.2d at 787 (citations omitted). The key to the holding in Bremmer is that the plaintiff had alleged facts which, if true, would have established a prima facie case under the appropriate cause of action. However, there was a dispute between the parties regarding some of the material facts; facts which impacted directly on the resolution of the case. The trial court erroneously tried to resolve those factual disputes by deferring to the oral testimony of the moving party’s witnesses. The trial court was violating the rule laid down in Nanty-Glo in that it was taking from the province of the jury the role of evaluating the credibility of witnesses, in particular, as it relates to issues of fact germane to the disposition of the case.

Since Bremmer, there have been numerous cases addressing the Nanty-Glo doctrine in the context of summary judgments. See, e.g., Penn Center Home, Inc. v. Hoffman, supra; Thompson Coal Co. v. Pike Coal Co., supra; Johmon v. Johnson, supra; Garcia v. Savage, supra; Troy v. Kampgrounds of America, Inc., supra. A review of these cases demonstrates that there is an inherent three-step process involved in determining whether the Nanty-Glo rule applies so as to preclude a grant of summary judgment. Initially, it must be determined whether the plaintiff has alleged facts sufficient to establish a prima facie case. If so, the second step is to determine whether there is any discrepancy as to any facts material to the case. Finally, it must be determined whether, in granting summary judgment, the trial court has usurped improperly the role of the jury by resolving any material issues of fact.

It is only when the third stage is reached that Nanty-Glo comes into play. Thus, it is true that Nanty-Glo precludes summary judgment where the moving party relies solely upon testimonial affidavits and depositions of his witnesses to resolve material issues of fact. However, if there are no material issues of fact, or if the non-moving party has failed, in the first instance, to allege facts sufficient to make out a prima facie case, then summary judgment may be granted properly, even if the moving party has only set forth the pleadings and depositions of his witnesses in support thereof. Hence the language of Pa. R.C.P. 1035, which provides that “[ajfter the pleadings are closed, but within such time as not to delay trial, any party may move for summary judgment on the pleadings and any depositions, answers to interrogatories, admissions on file and supporting affidavits.” Pa.R.C.P. No. 1035(a). Error only occurs if the moving party, in relying upon the testimonial affidavits of his witnesses, is attempting to resolve a material issue of fact, or more importantly, is attempting to demons irate the lack of any material issues of fact by asserting that the testimony of his witnesses is uncontradicted.

If there are no material issues of fact in dispute, and plaintiff has failed to allege facts sufficient to make out a prima facie case, as a matter of law, then summary judgment may be granted properly. Such was the result reached by our supreme court in Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979). When confronted with appellant’s argument that the trial court erred in granting summary judgment, in light of Bremmer, supra, and Nanty-Glo, supra, the court concluded:

We have no credibility issue here. Assuming everything that appellants argue is accepted as pristine truth, appellants fail to make out a prima facie case as a matter of law, not as a matter of fact.

Thompson Coal Co., 488 Pa. at 213-14, 412 A.2d at 474.

The same result can and should be reached in the present case. Returning to the three-step approach, outlined previously, when addressing Nanty-Glo issues; we are presently at the first step in that process. Did the plaintiff allege facts, which if proven to be true, would make out a prima facie case as a matter of law? Appellant fails at this first level. Even assuming everything alleged by appellant in the pleadings as true, and giving appellant the benefit of all reasonable inferences to be drawn from these alleged facts, appellant has failed to establish a prima facie case, as a matter of law. There are no credibility issues to be decided at this stage, hence, Nanty-Glo should not be a consideration.

Reviewing only the pleadings and appellant’s own response to the summary judgment motion, in a light most favorable to appellant, reveals the following facts. USX had an operational electric tower in an otherwise nonoperational plant. USX owned this property and had every right to have this tower operational. The decedent, Orlando Dudley, along with two companions, entered onto USX property, without authorization, for the purpose of stealing copper cable. Upon entering the USX facility through a tunnel leading into the mill, the three trespassers decided to climb one of the electric transmission towers to steal copper cable. The tower’s ladder was surrounded by a circular steel “guard” which USX personnel had welded to the ladder to prevent unauthorized persons from climbing the ladder. Dudley and his companions broke the steel guard off the ladder by smashing it with a mallet. After removing the protective guard, Dudley and his companions proceeded to climb the 140-foot tower. Upon reaching the platform, Dudley contacted an energized wire with the blade of a hacksaw and was electrocuted. The wire was energized in order to supply power to a pump house at USX’s Homestead Works. Orlando Dudley died as a result of the electrocution.

These facts are all established in the complaint and the responses in opposition to the various summary judgment motions. These are facts which are not in dispute, and which the trial court could properly consider without violating the Nanty-Glo rule. Reviewing these facts, the trial court could correctly conclude that appellants failed to plead facts sufficient to make out a prima facie case against USX or the additional defendants, and that, as a matter of law, USX and the additional defendants were entitled to summary judgment.

The decedent, Orlando Dudley, was, without a doubt, a trespasser on USX’s property. That fact is admitted by appellant in her pleadings. The'standard of care owed to trespassers on land has been defined by our supreme court to be the avoidance of willful or wanton misconduct. Evans v. Philadelphia Transportation Co., 418 Pa. 567, 212 A.2d 440 (1965). Willful misconduct is conduct of such a nature that the actor desired to bring about the result that followed or at least was aware that it was substantially certain to follow. Wanton misconduct refers to conduct wherein the actor intentionally performs an act of an unreasonable character in disregard to a risk known to him or so obvious that he must be taken to have been aware of it and so great as to make it highly probable that harm would follow. Id. Wanton misconduct is ordinarily accompanied by a conscious indifference to the consequences and only exists where the danger to plaintiff is realized and is so recklessly disregarded that there is at least a willingness to inflict injury, if not the actual intent to do same.

It is clearly within the province of the trial court to grant summary judgment when there are fatal deficiencies in the allegations of the complaint as to the theory of liability upon which the plaintiff is attempting to proceed. See Johnson v. Johnson, 410 Pa.Super. 631, 600 A.2d 965 (1991) (this court affirmed grant of summary judgment where plaintiff failed to allege facts sufficient to establish a prima facie case under proposed theories of liability); Eckenrod v. GAF Corp., 375 Pa.Super. 187, 544 A.2d 50 (1988).

Appellant failed to allege facts which, even if true, would establish that USX’s behavior was of a wanton or willful nature. Absent such factual allegations of willfulness or wantonness, appellant was unable to make out a prima facie case against USX. Thus, the trial court was correct in granting USX’s motion for summary judgment, for while the question of whether possessors of land violated the standard of care to one who enters upon their land is normally a question of fact for the jury, the question may be decided by the courts where reasonable minds could not differ as to the conclusion. See Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983).

Appellant’s second issue focuses on whether the trial court erred in granting summary judgment to additional defendants, Josh Steel Co. and B. Zeff Company, Inc. According to appellant, since these appellees knowingly purchased stolen copper, they were encouraging trespassers such as Mr. Dudley to enter USX’s property and risk injury to steal the copper.

With respect to the grant of summary judgment in favor of these additional defendants, appellant has again raised a Nanty-Glo argument. Appellant claims that summary judgment was improperly granted because the additional defendants relied upon their own testimony, or that of their witness to support the motion. However, as set out earlier, a Nanty-Glo analysis necessarily requires initially determining whether the complaint against the additional defendants alleged facts sufficient to establish a prima facie case of negligence against these parties. Again, as with the allegations against USX, the allegations against the additional defendants are fatally flawed.

The three elements of a claim of negligence, as was raised against the additional defendants, include proof of a duty of care owed to plaintiff; breach of that duty by defendant; and injuries which were proximately caused by the breach. Zanine v. Gallagher, 345 Pa.Super. 119, 497 A.2d 1332 (1985). Assuming that the allegations in the complaint against the additional defendants are true, and these parties did knowingly purchase stolen copper cable from Mr. Dudley and his companions; the complaint is still flawed in that there are no factual allegations to support the elements of duty and causation.

As a general rule the scope of duty any one person owes to another is limited to those risks that are reasonably foreseeable by the actor in the circumstances of the case. Zanine, supra. That general duty is only modified when a special relationship exists between the parties, such as landowner and invitee. No such special relationship existed between the additional defendants and Mr. Dudley, therefore, the scope of their duty was limited to those risks which were reasonably foreseeable. As this court has noted, “[w]ant of ordinary care consists in failure to anticipate what is reasonably probable — not what is remotely possible.” Mathis v. United Engineers & Contractors, Inc., 381 Pa.Super. 466, 554 A.2d 96, 100 (1989).

Clearly, the facts developed only from the pleadings in this case reveal that the harm which befell Mr. Dudley was not reasonably foreseeable to appellees, even if they were knowingly purchasing stolen copper wire from Mr. Dudley. It is hardly reasonable to foresee that Mr. Dudley would forcibly remove a metal barricade from the base of a tower, ascend the tower, and attempt to cut an energized line with a hacksaw. While this court may consider the alleged conduct of these additional defendants to be reprehensible, the acts of purchasing the copper wire are too far removed from the reckless acts of Mr. Dudley to hold that these additional defendants owed Mr. Dudley a duty to protect him from this harm which occurred.

Similarly, these are insufficient allegations to establish proximate causation. Proximate causation is defined as a wrongful act which was a substantial factor in bringing about the plaintiffs harm. Whitner v. Lojeski, 437 Pa. 448, 458, 263 A.2d 889, 894 (1970), citing Restatement (Second) of Torts, § 431 (1965). Proximate cause does not exist where the causal chain of events resulting in plaintiffs injury is so remote as to appear highly extraordinary that the conduct could have brought about the harm. See Brown v. Tinneny, 280 Pa.Super. 512, 421 A.2d 839 (1980). In the present case, the causal chain of events leading up to Mr. Dudley’s death is too remote to conclude that the alleged actions of these additional defendants were a substantial factor in bringing about Mr. Dudley’s death. Thus, as we concluded with respect to USX’s motion for summary judgment, the trial court did not err in granting summary judgment in favor of the additional defendants.

Finally, appellant questions whether the trial court erred in granting summary judgment in favor of Isadore Joshowitz and Bennett S. Zeff, the individual owners of the additional defendant corporations. An officer of a corporation can only be held personally liable for the tort of the corporation if he participated in the tort. Wicks v. Milzoco Builders, Inc., 503 Pa. 614, 470 A.2d 86 (1983). As we have already concluded that the respective corporate defendants have not committed any torts, then it necessarily follows that neither did the officers of those corporations. Thus, we conclude that the trial court did not err in granting summary judgment in favor of Isadore Joshowitz and Bennett S. Zeff.

For the foregoing reasons, we hold that the trial court’s orders of June 16 and June 26, 1990, were correct.

Orders and judgments affirmed. Jurisdiction relinquished.

      . For other recent appellate cases offering interpretations of the Nanty-Glo rule, see Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989); Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979); Johnson v. Johnson, 410 Pa.Super. 631, 600 A.2d 965 (1991); Larsen v. Philadelphia Newspapers, et al., 411 Pa.Super. 534, 602 A.2d 324 (1991); Troy v. Kampgrounds of America, Inc., 399 Pa.Super. 41, 581 A.2d 665 (1990).

      . The Nanty-Glo rule becomes all the more important when considering that under Rule 1035, the non-moving party is not required to respond to the summary judgment motion or to file counter-affidavits. See O’Neill v. Checker Motors Corp., 389 Pa.Super. 430, 567 A.2d 680 (1989); Wright v. North American Life Assur. Co., 372 Pa.Super. 272, 539 A.2d 434 (1988). Thus, when the moving party files his or her motion and supports the same with testimonial affidavits, it may often appear, perhaps mistakenly, that there are no issues of fact.

      . Contrast this case with one in which Nanty-Glo was properly considered and the differences are striking. Take, for example, the case of Garcia v. Savage, supra. Without delving too deeply into the facts, Garcia involved an action by the employee of one subcontractor against another subcontractor whose employees’ negligence allegedly caused his injuries. At the initial level, there were no fatal deficiencies in Garcia’s theory of liability against Savage, the second subcontractor. Garcia alleged facts which, if proven, would establish a prima fade case of negligence against Savage under a theory of vicarious liability for the negligent acts of its employees. At the next level, however, it is clear that certain facts, material to the resolution of the case, were at issue.
      In particular, an issue arose as to whose control the three workers were under at the time of the accident. Garcia alleged that they were under Savage’s control, making it liable under a theory of respondent superior. Savage alleged that the employees were under the control of the general contractor. Savage moved for summary judgment and supported the motion with deposition testimony of the workers themselves and the general contractor, to the effect that the workers were under the control of the general contractor when the accident occurred. The trial court granted the summary judgment motion of Savage.
      On appeal, this court reversed, reasoning that Nanty-Glo precluded the grant of summary judgment. In this case, an analysis of Nanty-Glo was warranted and correct. As previously stated, Garcia’s theory of liability was not fatally deficient, as in the present case, and there was a genuine issue of material fact surrounding the control of the workers. Yet, Savage attempted to resolve that issue of fact by relying upon the deposition testimony of the workers and the general contractor.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    606 A.2d 923
    ALLIED MATERIAL HANDLING SYSTEMS, Appellant, v. Francis A. AGOSTINI, Jr., Dianne M. Agostini, Patrick A. Testa, Kathleen Testa and First American Title Ins. Company.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1991.
    Filed March 12, 1992.
    Reargument Denied May 15, 1992.

      John P. Yatsko, Norristown, for appellant.
    Edward J. Hayes, Philadelphia, for appellees.
    Before CAVANAUGH, FORD ELLIOTT and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment entered by the Court of Common Pleas of Montgomery County dismissing appellant’s posttrial motions after the court denied appellant’s petition for declaratory judgment. On appeal, appellant raises the following issues:

1. WHETHER THE FILING OF A PRAECIPE TO REVIVE A JUDGMENT MUST INCLUDE THE ENTRY OF A NEW JUDGMENT IN ORDER TO PRESERVE AND CONTINUE THE LIEN OF JUDGMENT.
2. WHETHER A TITLE INSURANCE COMPANY WHICH HAD OVERLOOKED A JUDGMENT LIEN IN ITS RECORD SEARCH CAN BE HELD DIRECTLY LIABLE TO THE LIEN HOLDER AFTER BEING SPECIFICALLY JOINED IN AS A PARTY DEFENDANT.

For the following reasons, we affirm.

The relevant facts are as follows:

In March of 1975 [appellees] Francis and Diane Agostini executed a judgment note in favor of Allied [appellant herein] for $15,000 in return for a personal loan. In September of 1975 the Agostinis had defaulted on the loan and Allied entered judgment on the note. At the time the judgment was entered the Agostinis owned real property at 3120 Middle School Road, Norristown, and the judgment became a lien on the property.
In July of 1981 Allied attempted to revive the judgment. Allied filed a praecipe for a writ of revival pursuant to Pa. R.C.P. 3025 and complied with the service requirements of Pa. R.C.P. 3028. The Agostinis failed to plead to the writ and Allied neglected to file a praecipe for entry of default judgment against the Agostinis. No revived judgment was therefore entered against the Agostinis at this time.
Allied attempted to revive the judgment again in 1986 but again they failed to follow through on the procedure by filing a praecipe for judgment against the defendants.
The Agostinis sold the 3120 Middle School premises to Patrick and Kathleen Testa on November 4, 1983. The title that was sold to the Testas was insured by [appellee], First American. The debt to Allied was not satisfied before or after the sale.
Allied joined First American as defendant and applied for declaratory judgment on the issue of whether First American is liable to the appellant in the amount of the 1975 judgment. The appellant contends that it has a judgment lien on the premises in question and that First American is liable for the judgment by virtue of the insurance policy it issued on the title transfer to the Testas.

Opinion, Salus J., at 1-3. A hearing was held, after which the trial court denied the application for declaratory judgment by order dated January 28, 1991. The trial court denied appellant’s post-trial motion, and this timely appeal followed.

Appellant’s first contention is that its failure to file a praecipe to enter default judgment after the Agostinis neglected to respond to appellant’s praecipe for writ of revival did not result in a lapse of the judgment lien on the property at issue. Specifically, appellant argues that a judgment only loses its priority if not properly revived. Thus, appellant maintains that although it did not file a praecipe to enter default judgment, the lien remained with the property when it was sold to the Testas because the judgment had previously been docketed and the lien was duly indexed. We disagree.

Rule 3025 of the Pennsylvania Rules of Civil Procedure provides, in relevant part:

A proceeding to revive and continue the lien of a judgment may be commenced by filing with the prothonotary of the county in which the judgment has been entered
(1) a praecipe for a writ of revival____

Pa. R.C.P. 3025(1). Furthermore, Rule 3031 states:

The prothonotary, on praecipe of the plaintiff shall enter judgment against a defendant or terre tenant for failure within the required time to plead to the writ____

Pa. R.C.P. 3031(a) (emphasis added).

In the instant case, appellant failed to comply with Rule 3031 by filing a praecipe to enter judgment. Thus, its attempt to revive its lien was ineffective. See In re Lucas, 41 B.R. 785 (Bankr.E.D.Pa.1984) (no effective revival because creditor failed to file praecipe for entry of default judgment).

Next, we must determine whether the defective revival affected only the priority of the lien or whether the lien itself was extinguished when the Testas purchased the property from the Agostinis before appellant revived it. In other words, we must address the issue of whether a bona fide purchaser for value takes real property free of a dormant lien.

“[A] judgment lien represents security for the underlying debt ... and conveys a right of execution to the judgment creditor in satisfaction of his debt.” In re Upset Sale, Tax Claim Bureau of Berks County, 505 Pa. 327, 334, 479 A.2d 940, 943 (1984) (citations omitted). A judgment continues as a lien for five years from the date on which the judgment was entered. See Judgment Lien Law of 1947, 12 P.S. § 878. After five years, the lien becomes dormant if not immediately revived, although there is a five-year statute of limitations in which a party may revive its lien. 42 Pa.C.S.A. § 5526(1).

“The lien of a judgment may be lost if property is conveyed to innocent purchasers for value or it may lose its priority if the judgment holder fails to file a writ of revival within five years from the date of the entry of the judgment.” Hertzog v. Jung, 40 Pa.D. & C.3d 474, 479 (1986) (citing Swope v. Turner, 193 Pa.Super. 217, 163 A.2d 714 (1960); In re Lucas, 41 B.R. 785 (Bankr.E.D.Pa.1984)), aff'd, 363 Pa.Super. 439, 526 A.2d 425, appeal denied, 516 Pa. 641, 533 A.2d 712 (1986). “If at the time of the debtor’s conveyance, the lien of the judgment has already expired against him, no revival proceedings on the original judgment can operate so as to bind the land in the hands of the purchaser.” Ellinger v. Krach, 150 Pa.Super. 384, 386, 28 A.2d 453, 454 (1942), (citation omitted), aff'd, 346 Pa. 52, 29 A.2d 677 (1943).

In Ellinger, this court held that where an encumbered property is conveyed within five years of entry of judgment, a creditor has five years from the date of recordation of the new deed to revive the judgment lien against the property. Thus, the creditor’s failure to revive the lien until seven years after entry of judgment was not fatal because the conveyance occurred during the* first five years of the lien, and the creditor revived within five years after the new purchaser recorded his deed. The court did recognize, however, that a creditor’s failure to revive a dormant lien before encumbered property is conveyed would be fatal. Id.

Turning to the case before us, not only does appellant’s failure to revive the lien within five years of the entry of judgment affect the priority of the lien, but the conveyance of the property to an innocent purchaser while the lien was dormant also caused the lien to be extinguished. Thus, appellant may not now enforce the judgment against the purchasers. Moreover, we note that appellant did not effectively revive the lien within the statutory period of five years. Thus, the judgment lien expired at the end of the five years, and there is no longer a valid judgment lien that can be revived.

In light of our conclusion that there is no longer a valid lien upon the disputed property, we need not reach appellant’s second issue concerning the possible liability of the title insurance company.

Accordingly, we affirm the judgment of the trial court.

Judgment affirmed.

      . “A terre-tenant is one who has purchased an estate mediately or immediately from the debtor while it is bound by a judgment.” Ellinger v. Krach, 150 Pa.Super. 384, 386, 28 A.2d 453, 454 (1942) (citations omitted), aff'd, 346 Pa. 52, 29 A.2d 677 (1943). See also

        Com., Dept. of Public Welfare v. Andrews, 338 Pa.Super. 211, 487 A.2d 929 (1985).

      . As far as can be determined from the record and parties' briefs, appellant has never, to date, properly revived its judgment lien.

      . Although the Judgment Lien Law has been officially repealed, it still governs insofar as it does not conflict with any other rules. In 1978, the General Assembly passed the Judiciary Repealer Act of April 28, 1978, which repealed the Judgment Lien Law “to the extent that the law is inconsistent with duly promulgated general rules of procedure. 42 Pa.Cons.Stat.Ann. § 20002(a)(1257) (Purdon 1982). However, since no current rule of procedure regulates the duration and scope of judgment liens, sections 878 and 880 continue as part of the common law of Pennsylvania.” Hertzog v. Jung, 363 Pa.Super. 439, 444 n. 2, 526 A.2d 425, 427 n. 2 (1987).

      . Even where no innocent purchaser intervenes, a judgment that is not properly revived is not enforceable. For example, in In re Lucas, supra, the bankruptcy court set aside a sheriffs sale of the debtor’s property, holding that no judgment existed on which to execute, as the creditor never effectively revived its judgment lien against the debtor’s property. Id., 41 B.R. at 787.


author: ROWLEY, President Judge: WIEAND, Judge, OLSZEWSKI, Judge,

text:
    606 A.2d 926
    Doris S. MYERS, Appellant, v. The PENN TRAFFIC COMPANY.
    Superior Court of Pennsylvania.
    Argued Oct. 31, 1991.
    Filed April 13, 1992.

      Thomas A. Beckley, Harrisburg, for appellant.
    Robert A. Mix, Bellefonte, for appellee.
    Before ROWLEY, P.J., and CAVANAUGH, WIEAND, CIRILLO, OLSZEWSKI, KELLY, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   ROWLEY, President Judge:

On July 9, 1986, while shopping in Riverside Market, a supermarket operated by appellee The Penn Traffic Company (Penn), appellant Doris S. Myers slipped in the aisle leading from the produce department to the bakery department. She subsequently filed a complaint against Penn, alleging that it negligently maintained the aisle in an unsafe and slippery condition, failing to warn customers of this condition. Ms. Myers claimed damages in an amount exceeding $180,000.00. On February 8, 1990, Penn filed a motion for summary judgment, which the trial court granted. Ms. Myers then filed this timely appeal.

In this appeal, appellant contends that the trial court erred by failing to read the record in the light most favorably to her, thereby disregarding genuine issues of material fact. After thoroughly considering the parties’ arguments and the applicable case law, we affirm the summary judgment entered in favor of appellee.

In reviewing the trial court’s decision regarding summary judgment, our standard of review is as follows:

[T]his court must determine whether the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. However, summary judgment may only be entered in those cases which are clear and free from doubt. We must determine whether there exists any genuine issue of triable fact____ [T]he record must be examined in the light most favorable to the nonmoving party[, and] ... we must accept as true all properly pleaded facts, as well as all reasonable inferences which might be drawn therefrom.

Overly v. Kass, 382 Pa.Super. 108, 110-11, 554 A.2d 970, 971-72 (1989) (citations and internal quotation marks omitted). Although the moving party has the burden of showing that no genuine issue of material fact exists, id., 382 Pa.Superior Ct. at 111, 554 A.2d at 972, “once the motion for summary judgment has been properly supported, the burden is upon the non-movant to disclose evidence that is the basis for his or her argument resisting summary judgment.” Samarin v. GAF Corp., 391 Pa.Super. 340, 347, 571 A.2d 398, 402 (1989), allocatur denied, 524 Pa. 624, 574 A.2d 66 (1990). This “assure[s] that the motion for summary judgment may ‘pierce the pleading’ and ... require[s] the opposing party to disclose the facts of his claim or defense.” Roland v. Kravco, Inc., 355 Pa.Super. 493, 501, 513 A.2d 1029, 1034 (1986), allocatur denied, 517 Pa. 599, 535 A.2d 1058 (1987) (quoting Goodrich Amram, Procedural Rules Service 2d § 1035(d):5) (emphasis omitted). Finally, the trial court’s decision to grant summary judgment will be affirmed absent an error of law. Overly, supra, 382 Pa.Super. at 111, 554 A.2d at 972.

It is unquestionable that a store owner owes a duty of care to the patrons of the store. However, the owner of the store is not an insurer of the safety of its customers. Moultrey v. Great Atlantic & Pacific Tea Company, 281 Pa.Super. 525, 529-30, 422 A.2d 593, 596 (1980). Moreover,

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.

Id., 281 Pa.Superior Ct. at 530, 422 A.2d at 596.

The parties agree that the duty which the owner of a store owes to its customers is set forth in Restatement (Second) of Torts § 343. Section 343 provides as follows:

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
(c) fails to exercise reasonable care to protect them against the danger.

Appellant contends that the evidence present in the record, viewed in the light most favorably to her, supports her allegation that appellee was negligent under the above standard. Because we conclude that the trial court did not commit an error of law in determining that no triable factual issue exists, we affirm the summary judgment entered in favor of appellee.

In support of her claim against appellee, appellant asserted that either a grape on the floor or an accumulation of wax caused her to fall. We will address these two theories separately. In support of her allegation that she slipped on a grape, appellant relies on a note allegedly written by her immediately after the accident. This note says she “fell on produce on slippery floor.” Appellant also emphasizes the deposition testimony of one of the store’s employees, Timothy Snyder. Mr. Snyder stated that he had heard from another employee that somebody had slipped on grapes. Mr. Snyder could not remember who told him this, but he stated that it was someone who was at the scene of the accident. Mr. Snyder also stated that although he could not say that the other employee was referring to appellant, he knew of no other accidents where someone had slipped on grapes.

Appellee asserts that because the note and Mr. Snyder’s statement are hearsay, and therefore inadmissible, they should not be considered as raising a triable factual issue. Appellant, on the other hand, argues that the note and Mr. Snyder’s statement are admissible under, respectively, the past recollection recorded and the admission by a party exceptions to the hearsay rule. Because resolution of this issue will not affect our disposition of the case, we will assume for purposes of our discussion that the evidence would be admissible at trial.

Even assuming that the above evidence would be admissible, appellant would still not prevail because she has presented no evidence that appellee had notice of the condition or failed to exercise reasonable care. See section 343, supra. Although appellant contends that the trial court erred by failing to view the record in the light most favorable to her, the inferences which she draws from the record in support of her allegation of negligence are not reasonable.

Under section 343, a store must have notice of the harmful condition. In determining whether this element is met, the following principles apply:

[I]f the harmful transitory condition is traceable to the possessor or his agent’s acts, (that is, a condition created by the possessor or those under his authority), then the plaintiff need not prove any notice in order to hold the possessor accountable for the resulting harm. In a related context, 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. Where, however, the evidence indicates that the transitory condition is traceable to persons other than those for whom the owner is, strictly speaking, ordinarily accountable, the jury may not consider the owner’s ultimate liability in the absence of other evidence which tends to prove that the owner had actual notice of the condition or that the condition existed for such a length of time that in the exercise of reasonable care the owner should have known of it.

Moultrey, supra, 281 Pa.Super. at 530-31, 422 A.2d at 596.

Appellant argues that because the condition, that is, produce on the floor, frequently recurred, appellee had actual notice. In support of this argument, she emphasizes the deposition testimony of employees which she contends shows that “produce on the floor in that particular area of the supermarket was a constant, day-long problem which required ‘full-time’ attention.” Appellant’s Brief at 13. Specifically, appellant emphasizes the deposition of Mr. Hunter, who stated that the employees working in the produce section must clean the entire time that they are on duty because filling the produce cases makes a mess. However, there is nothing in the record to indicate that the produce cases had been filled near the time that appellant fell. The fact that putting produce in the cases makes a mess is not relevant if there is nothing to show that the produce cases were in fact filled prior to appellant’s accident.

Citing to the deposition of Robert Parkes, another employee of appellee, appellant also contends that “appellee knew that the problem was so common that [it] had assigned two employees to watch over that particular section, so that if one of them went on break, the other could cover for him.” Id. at 13-14. We disagree with appellant that the inference which she draws from Mr. Parkes’ statements is reasonable. To the contrary, when asked if another employee was supposed to cover for him when he took a break, Mr. Parkes answered “Not all the time____ [M]ost of the time we do try to keep someone out on the floor, you know, for customer service; but, whenever we are only taking a 10-minute break, sometimes we both just go____” Reproduced Record (R.R.) at 226a. Mr. Parkes did not, as appellant asserts, state that one employee is always present in the produce aisle. Furthermore, he stated that most of the time someone is available for customer service; he did not state that someone is always available to clear produce from the floor. Although the non-moving party must be given the benefit of all reasonable inferences, that party need not be given the benefit of inferences not supported by the record or of mere speculation.

Appellant also argues that constructive notice can be inferred from the employees’ antecedent actions in replenishing the produce cases. In support of this argument, she cites the case of Clark v. Glosser Brothers Department Stores, 156 Pa.Super. 193, 39 A.2d 733 (1944). In Clark, the plaintiff fell on tapes which were used in packaging merchandise. The tapes either fell or were thrown to the floor when the defendant store’s employees unpacked the merchandise. The defendant claimed that the plaintiff presented no proof of constructive notice of the condition caused by the tapes. In affirming the judgment entered in favor of the plaintiff, this Court held that proof of constructive notice was unnecessary because the plaintiffs proof

show[ed] that the injuries sustained by her were due to the direct negligence of the defendant’s employes in throwing the tapes in the aisles or not taking reasonable precaution to prevent their falling to the floor____ The defendant’s employes had actual notice of their own alleged negligent acts, which were within the apparent scope of their authority and in the furtherance of the master’s business. The defendant is accordingly chargeable with their dereliction.

Id., 156 Pa.Superior Ct. at 195-96, 39 A.2d at 734.

Appellant contends that the holding in Clark should be controlling in the present case on the basis of Mr. Hunter’s testimony that replenishing the produce cases makes a mess. Appellant contends that this testimony reveals that, as in Clark, the antecedent actions of the store’s employees caused the dangerous condition. In the present case, however, nothing in the record supports an inference that the grape was on the floor because the store’s employees dropped it there when putting produce in the cases. It is just as likely that another customer of the store dropped the grape on the floor. Without evidence that one or the other of these two equally likely occurrences caused the grape to be on the floor, there is no issue to be tried. Any decision would be based on mere speculation. See Martino v. Great Atlantic & Pacific Tea Company, 419 Pa. 229, 213 A.2d 608 (1965).

Furthermore, appellant has presented no evidence that appellee failed to exercise reasonable care. The only fact which she alleges to support her argument is that “although two persons typically were assigned to this area of the supermarket, no one was watching over it for a period of approximately twenty minutes — during a mid-day break taken by one of Penn Traffic’s employees — on the day of the accident.” Appellant’s Brief at 18-19. The fact that the employee was on a break when appellant fell does not in and of itself create an inference of negligence on the part of appellee.

A case substantially similar to the present case was considered by our Supreme Court in Martino v. Great Atlantic & Pacific Tea Company, 419 Pa. 229, 213 A.2d 608 (1965). In Martino, the plaintiff had slipped on a grape on the floor of the defendant’s store. As in the present case, the plaintiff presented testimony that produce frequently fell to the floor. Grapes were an especially pervasive problem, because the scale used to weigh the grapes was located across the aisle from the grape counter. Accordingly, grapes fell to the floor as customers carried them to the scale. The testimony also revealed that, as in the present case, an employee was required to keep the produce area, including the floor, clear of debris. In affirming the non-suit entered in favor of the defendant, the Supreme Court held the following:

So far as this record discloses, the offending grape might have found its way to the floor as a result of the actions by" husband appellant or wife appellant. There is no evidence from which the jury might reach a conclusion as to the cause of the presence of the grape in the aisle, and jurors may not be permitted to reach conclusion based upon guess or conjecture.
Nor can we accept appellant’s argument to the effect that the display of non-packaged grapes on a counter some seven feet from the bags and across an aisle from the scale constitutes negligence in and of itself, since every reasonable effort was made to keep the passageway clean.

Id., 419 Pa. at 234, 213 A.2d at 610.

Similarly, in the present case, appellant has presented no evidence as to the cause of the presence of the grape on the floor. In addition, negligence is not established by the fact that produce frequently fell to the floor when employees filled the produce cases. Furthermore, a lack of reasonable care is not established merely because the employee working in the produce department was on a break when appellant fell. These facts do not lead to a reasonable inference that appellee or its agents were negligent and that negligence caused the grape to be on the floor. A jury would not properly be able to reach a conclusion of negligence on these facts as such a conclusion would be based on guess or conjecture.

If other evidence existed upon which appellant could sustain this theory, that evidence should have been disclosed in opposition to appellee’s motion for summary judgment. See Roland, supra, 355 Pa.Super. at 500-02, 513 A.2d at 1033-34 (holding that if undisclosed evidence might have affected the disposition of the summary judgment motion, the plaintiffs chose not to disclose the basis of their claim, and they did so at their own risk); Brecher v. Cutler, 396 Pa.Super. 211, 578 A.2d 481 (1990) (holding that summary judgment was not improper merely because there was a possibility that literature not yet produced would support the claim); but see Liles v. Balmer, 389 Pa.Super. 451, 567 A.2d 691 (1989) (holding that summary judgment was improperly granted where record did not disclose that the plaintiff would be unable to produce supporting evidence at trial). For the above reasons, we conclude that the trial court did not err in finding no triable issues of fact as to appellant’s grape theory.

We will now address appellant’s second theory of recovery, namely, that appellee had negligently allowed wax to accumulate on the spot where she slipped. To support her theory, appellant relies on her own assertion that the floor was slippery and the deposition testimony of one of appellee’s employees, Robert Kelley. Mr. Kelley stated that upon checking the entire aisle in the area in which he thought appellant fell, he saw a scuff mark in the wax. He also stated that although he could not see whether there was a groove in the wax, he could feel a little groove when he bent down and touched the floor. Appellant contends that this testimony is sufficient to preclude summary judgment. We disagree.

“The real question [in negligent accumulation or application of wax cases] is not whether there was an improper application but whether such alleged improper application created a condition so obviously dangerous as to amount to evidence from which an inference of negligence would arise.” Bowser v. J.C. Penney Company, 354 Pa. 1, 5, 46 A.2d 324, 326 (1946) (citations omitted). Recovery has been permitted where the skid mark caused by the plaintiffs heel had raised sides as if someone had slid through mud and appeared in a yellow waxy substance, Penn v. Isaly Dairy Company, 413 Pa. 548, 198 A.2d 322 (1964); where the floor on which the plaintiff fell had been waxed two and one-half hours prior to the accident and was still oily and gummy, and the plaintiffs heel left an indentation twelve to fourteen inches in length and one-fourth inch in depth, Strout v. American Stores Company, 385 Pa. 230, 122 A.2d 797 (1956); and where the plaintiff fell on a floor which had just been waxed, there was a greasy and waxy substance on the floor similar in consistency to “thick Vaseline,” the wax on the floor where the plaintiff fell was from one to one and three-fourths inches thick, and two other customers slid on the floor near the same time that the plaintiff fell. Ralston v. Merritt, 117 Pa.Super. 487, 178 A. 159 (1935).

In the present case, one cannot reasonably infer that appellee negligently applied wax, or negligently allowed wax to accumulate, merely on the basis that a small groove in the wax was located in the general vicinity of appellant’s fall. As stated above, negligence of a store owner cannot be inferred merely because a customer has an accident.

We recognize that proving negligence in a supermarket slip and fall case “is often a heavy burden on a plaintiff even in a meritorious case[, a]nd ... under some circumstances the difficulties of proof of negligence may be insurmountable____” DeClerico v. Gimbel Brothers, Inc., 160 Pa.Super. 197, 199, 50 A.2d 716, 717 (1947). This is especially true where, as here, the medical problems allegedly caused by the fall do not arise immediately after the fall. In such a case, the person would have no reason to anticipate the need for evidence to support his or her future claim. Nonetheless, in a supermarket slip and fall case it is still incumbent upon the plaintiff to allege sufficient facts and present sufficient evidence to sustain a cause of action against the store owner. In the present case, that burden has not been met.

For the above reasons, we conclude that no genuine issues of material and triable fact exist. Therefore, we affirm the summary judgment in favor of appellee.

Summary judgment affirmed.

WIEAND, J., files a dissenting opinion.

OLSZEWSKI, J., files a dissenting opinion which, was joined by KELLY and FORD ELLIOTT, JJ.

WIEAND, Judge,

dissenting:

I respectfully dissent. In my judgment, there is evidence in this case which is sufficient to establish a prima facie case of negligence against Penn Traffic Company under the principle of law articulated in Section 344 of the Restatement (Second) of Torts.

This section of the Restatement imposes liability upon a possessor of land for the negligent acts of third persons under circumstances identified in the rule as follows:

§ 344. Business Premises Open to Public: Acts of Third Persons or Animals
A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.

The principle may, in limited circumstances, impose upon a storekeeper a duty to police his or her premises. This duty is explained in comment f as follows:

f Duty to police premises. Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.

The Restatement’s duty to police was adopted and applied to a grocery store owner in Miller v. Peter J. Schmitt & Co., Inc., 405 Pa.Super. 502, 592 A.2d 1324 (1991). There, a majority of the Court imposed upon a storekeeper the duty to supervise an independent contractor who delivered ice to the store in order to protect customers against the possibility that the contractor would leave water on the floor causing it to become slippery. The majority thus found liability even though the customer had fallen within moments after the contractor had placed ice in an ice machine and before the contractor had completed his delivery. It did so because the ice had been delivered on a hot day and had been unloaded in an area that was not air conditioned and because the store owner had failed to police the delivery of ice or otherwise take adequate precautions to protect customers. Liability was imposed even though all the evidence was that the contractor, who had been making deliveries of ice for several years, had never before caused a slippery condition by allowing water on the floor.

The evidence in the instant case presents a stronger case of negligence by the store owner than in Miller. Here, there was evidence that the store had been aware that dirt, debris, and produce regularly fell to the floor in the produce area of the market so as to require that personnel frequently attend to the area in order to keep the floor clean. Although the plaintiff was uncertain about what had caused her to fall, she initially believed it to be produce, and a store employee identified the produce as grapes. Her fall occurred while the produce department was unattended.

The majority has declined to consider the applicability of Section 344 of the Restatement (Second) of Torts because its applicability was not discussed by appellant. Although appellant has not referred specifically to Section 344 of the Restatement or the decision in Miller v. Peter J. Schmitt & Co., Inc., supra, her argument is clearly premised upon the storekeeper’s duty to police his premises. Indeed, it is this duty to police the premises which has causéd our colleague, Judge Olszewski, to write also in dissent. He, however, would rely upon language appearing in a Superior Court decision in Moultrey v. Great Atlantic and Pacific Tea Company, 281 Pa.Super. 525, 422 A.2d 593 (1980). I am satisfied, therefore, that it is the duty of a storekeeper to police his premises which is at the heart of the dispute in this case and that Section 344 of the Restatement (Second) of Torts speaks to that issue.

Moreover and in any event, it is the duty of this reviewing court to examine the entire record and determine whether the facts there appearing will support a recovery under any theory, whether or not that theory has been argued by the plaintiff-appellant. In making this determination, a court examines the record in a manner similar to the manner in which a court reviews the pleadings when faced with a motion for judgment on the pleadings or preliminary objections in the nature of a demurrer to the complaint. With respect to the latter, the Superior Court has said,

... a plaintiff is not obliged to state the legal theory or theories underlying his complaint. Pa.R.C.P. 1019(a) requires only allegations of the “material facts on which a cause of action ... is based.” Assertions of legal rights and obligations in a complaint may be construed as conclusions of law, which have no place in a pleading and need not be denied in preliminary objections. GoodrichAmram 2d, Standard Pennsylvania Practice § 1019(a): 12 (collecting cases). This system of fact pleading may sometimes cause both the court and the defendant uncertainty as to the legal grounds of the complaint. Here, for example, the trial court discerned only one possible cause of action, that of fraud and deceit. The complaint, however, stated at least one other cause of action. The obligation to discover the cause or causes of actions is on the court: the plaintiff need not identify them. See Schreiber v. Republic Intermodal Corp., 473 Pa. 614, 375 A.2d 1285 (1977).

McClellan v. Health Maintenance Organization of Pennsylvania, 413 Pa.Super. 128, -, 604 A.2d 1053, 1059-60 (1992), quoting DelConte v. Stefonick, 268 Pa.Super. 572, 577, 408 A.2d 1151, 1153 (1979) (emphasis added). In the case of a motion for summary judgment, it is the court which must determine whether, on the facts appearing of record, there is any legal theory under which the plaintiff can recover.

In considering a motion for summary judgment, a court “must examine the whole record, including the pleadings, any depositions, any answers to interrogatories, admissions of record, if any, and any affidavits filed by the parties. From this thorough examination the ... court will determine the question of whether there is a genuine issue as to any material fact. On this critical question, the party who brought the motion ha[s] the burden of proving that no genuine issue of fact exists. All doubts as to the existence of a genuine issue of a material fact are to be resolved against the granting of summary judgment.” Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 176, 553 A.2d 900, 903 (1989). In the instant case, this burden was on the defendant-appellee. A summary judgment would have been proper only if it appeared from the record that the material facts were not disputed and that the plaintiff-appellant was not entitled to recover under any theory of law applicable to the facts appearing of record. Because in this case there is a dispute about whether the storekeeper breached a duty to police the produce department of his store, the entry of summary judgment, in my judgment, was inappropriate. Therefore, I would reverse and remand for further proceedings.

OLSZEWSKI, Judge,

dissenting:

I respectfully dissent from the majority’s affirmance of the trial court’s order granting summary judgment in favor of defendant-appellee, Penn Traffic Company (“the store”). I agree with the majority’s statement of the standard of review in summary judgment cases. I do not believe the majority properly applies this standard because it fails to give Myers the benefit of the doubt, as we are required to do at this stage of the proceedings.

The majority first dismisses the produce on the floor theory because it believes that appellant presented no evidence that the store had notice of the condition or failed to exercise reasonable care, as required by the Restatement (Second) of Torts § 343. The majority characterizes the inferences which may be drawn from the record in favor of appellant as unreasonable. I disagree.

As to the store’s notice of the condition of the floor, I too point to Moultrey v. Great Atlantic & Pacific Tea Company, 281 Pa.Super. 525, 422 A.2d 593 (1980), and interpret it to mean precisely what it says. “[W]here 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____” Id. at 530-531, 422 A.2d at 596 (citing, Borsa v. Great Atlantic & Pacific Tea Co., 207 Pa.Super 63 at 68, 215 A.2d 289 at 292 (1965); Clark v. Glosser Bros. Dept. Stores, 156 Pa.Super. 193, 39 A.2d 733 (1944)). All that was required for a showing of actual notice, therefore, was evidence that the store knew that produce frequently fell to the floor and posed safety hazards to customers. The store’s employees admitted in deposition testimony that produce on the floor in the area where appellant allegedly fell was a constant problem. Thus, there was sufficient evidence to send the case to a jury so that they could determine whether the store had actual notice of the condition.

The majority finds no evidence of lack of reasonable care. Again, I disagree. The key evidence Myers presented on this point was the testimony of Robert Parkes, wherein he admitted being on break for a period preceding the fall and that, despite store policy to have two employees in that section, to his knowledge he worked alone that day. A jury could infer lack of care from these facts.

I would characterize the evidence as follows: a genuine factual dispute whether produce was on the floor, an admission that produce on the floor was a recurring problem, and evidence from which it could be inferred that the store did not follow its own policy as to cleaning the area. All doubts must be resolved against the moving party. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 202-204, 412 A.2d 466, 468-469 (1979). Thus, reading the record to favor Myers, there are material, disputed issues of fact as to the existence of a dangerous condition, actual notice and lack of reasonable care.

As to the improperly waxed surface theory, the majority affirms the summary judgment order because Myers has not shown that the uneven surface caused her fall. Once again, I disagree. The majority does not believe that floor wax could have contributed to Myers’ fall because one of the store’s employees testified that he could not see an indentation in the floor but could feel one when he touched the floor. The majority characterizes the case law on this issue as requiring evidence of extremely serious defects in the surface. Recovery on this theory, however, has been allowed when the evidence indicated a scuff mark Vs to lk inch deep. Strout v. American Stores Co., 385 Pa. 230, 232, 122 A.2d 797, 798 (1956). Further, the majority doubts whether the evidence of the unevenness is causally attributable to Myers’ fall. Contrary to the majority’s interpretation of prior case law, an imperfect surface in the area of the fall is sufficient to send the case to the jury. The Strout Court allowed recovery where the evidence revealed a scuff mark in the area of the floor which marked the scene of the plaintiff’s fall. I fail to see the distinction between the specificity of that evidence and the evidence presented by Myers that there was a scuff mark in the area where she fell. At this point in the proceedings, Myers is entitled to the benefit of this inference.

One of the roles of the jury would be to determine whether floor wax contributed to Myers’ fall. At the summary judgment stage of the proceedings, the scuff does not resolve this issue. Rather, it merely indicates that there is an issue which allows the case to proceed to trial. To allow this case to pass summary judgment because the wax had not accumulated to the point of being sticky or gummy is to intrude upon the fact finding province of the jury.

In summary, I believe the majority improperly engages in an assessment of the weight of the evidence presented by Myers rather than inquiring whether any material factual disputes exist. The majority does not read the record to favor Myers, nor does it give her the benefit of any doubt; this is contrary to the law of summary judgment. While I do not opine as to whether Myers’ evidence would be convincing enough to prevail at trial, I believe there have been enough doubts raised so that Myers should be allowed to have her day in court. Accordingly, I dissent.

      . Riverside Markets, Inc. and Crown American Corporation were also named as defendants in this complaint. Riverside Markets, Inc. was dismissed as a defendant by agreement of the parties. Summary judgment was entered in favor of Crown American Corporation, and no appeal has been taken from that summary judgment. Accordingly, Riverside Markets, Inc. and Crown American Corporation are no longer parties to this suit.

      . In his dissent, Judge Wieand concludes that appellant has established a prima facie case under section 344 of the Restatement, entitled "Business Premises Open to Public: Acts of Third Persons or Animals." However, appellant did not invoke this section as a basis for recovery, and neither party has discussed its applicability to the present case. In fact, appellant specifically limits her theory of recovery to section 343. See Appellant’s Brief at 10, 13, 20.

      . Appellant produced this note after repeated prior statements that she did not see what was on the floor. However, credibility of witnesses is not a proper consideration at this juncture as the determination of credibility is a jury function. See Melmed v. Motts, 341 Pa.Super. 427, 431, 491 A.2d 892, 893 (1985).

      . Appellee does not contend that appellant has not satisfied the second element of section 343, namely, whether it should have expected that its customers would not discover or realize the danger or fail to protect themselves against it.

      . The issues are framed in appellant’s statement of questions as follows:
      1. Did the lower Court err by restrictively reading the factual record to ignore facts showing that (a) the defendant’s own employees had a hand in creating the dangerous condition of the floor; [and] (b) the floor in the particular area of the supermarket where the plaintiff fell was constantly littered with debris and required "full-time” attention to keep it clean____
      2. Did the lower Court err by failing to recognize that "notice" of a dangerous condition may be inferred (or satisfied), from a factual showing that the defendant knew that the particular condition was constant, recurring, and needed "full-time” attention?

      . The majority relies greatly upon Martino v. Great Atlantic & Pacific Tea Co., 419 Pa. 229, 213 A.2d 608 (1965), in which the Supreme Court concluded that the injured party had not presented a clear case, as is required to survive a motion for a compulsory non-suit. This case differs greatly from Martino. In Martino the burden was upon the plaintiff, the non-moving party, to present clear and convincing evidence of negligence. In this case, the burden was upon the store, the moving party, to show that no genuine issue of material fact existed. The majority not only shifts the burden to Myers, it places the compulsory non-suit standard upon her prior to her being permitted to present her factual issues to a jury.


text:
    606 A.2d 936
    NORTHEASTERN VENDING COMPANY, Appellant, v. P.D.O., INC., t/a Flood’s.
    Superior Court of Pennsylvania.
    Submitted Jan. 21, 1992.
    Filed April 20, 1992.

      Carl J. Poveromo, Asst. Public Defender, Scranton, for appellant.
    George W. Westervelt, Jr. and John P. Lawler, Stroudsburg, for appellee.
    Before DEL SOLE, HUDOCK and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment entered on November 4, 1991, awarding appellant, Northeastern Vending Company, $4,600.00 in compensatory damages and $1,500.00 in incidental damages against appellee, P.D.O., Inc., t/a Flood’s. Appellant presents the following issues on appeal:

1. Whether the the trial court erred in requiring Northeastern to mitigate damages by re-leasing the equipment and in failing to award damages for Northeastern’s loss of profits?
2. Whether the trial judge’s verdict should be increased to compensate Northeastern for its lost profits?

Appellant’s Brief at 3. For the following reasons, we affirm.

The trial court made the following findings of fact:

1. Plaintiff is Northeastern Vending Company, (hereinafter Northeastern), a subsidiary of Norbeth Corporation, having a principal place of business at 650 N. Main Street, Taylor, Pa. 18517.
2. Defendant is P.D.O., Inc., t/a Flood’s (hereinafter P.D.O.), having a principal place of business at 732 Main Street, Stroudsburg, Pa. 18360.
3. On July 12, 1984, Northeastern entered a Judgment by Confession in the amount of $50,000.00 against P.D.O. The judgment, docketed at No. 1429-1984-Civil, is based on an Exclusive Amusement Machine Location Contract entered into between P.D.O. and Northeastern on August 22, 1983.
4. On July 12, 1984, Northeastern entered a second judgment by confession against P.D.O. in the amount of $10,000.00. This judgment was based on an Exclusive Cigarette Vending Machine Location Contract entered into between Northeastern and P.D.O. on August 22, 1983.
5. On August 14, 1984, P.D.O. filed a Petition to Strike or Open the Judgments docketed at Nos. 1429-1984 and 1430-1984 Civil.
10. Both parties agree that P.D.O. borrowed $5,000.00 from Northeastern on August 22, 1983 and that the money was to be repaid within one year at an interest rate of 18%. This transaction is evidenced by a note signed by Paul D. Oriel acting as an officer of P.D.O.
12. In addition to signing the notes, Paul D. Oriel signed two additional contracts. The first was an “Exclusive Amusement Machine Location Contract” and the second an “Exclusive Cigarette Vending Machine Location Contract.”
13. Each of the contracts contained liquidated damage clauses that were not filled in at the time the parties signed the contracts. The amounts were subsequently filled in by Northeastern.
14. The five thousand dollar note was to be repaid within one year. Originally, P.D.O. was to repay Northeastern $100.00 a week plus its 50% of the profits generated from the juke box and the poker machine. That agreement was orally modified and the parties agreed that P.D.O. was to repay Northeastern $125.00 a week by check and it would retain its 50% of the profits generated by the juke box and the poker machine.
16. With the exception of a few weeks, regular payments on the loan of $125.00 a week were made by P.D.O. to Northeastern beginning in September 1983 and ending in February 1984.
17. The profits from the juke box and the poker machine were divided 50/50 between Northeastern and P.D.O. on a weekly basis with the exception of a few weeks where Paul D. Oriel was not present on the day Northeastern’s serviceman would arrive to determine the weekly profits. The machines would not be emptied by Northeastern’s serviceman unless Paul D. Oriel was present.
18. The profits from the cigarette machine were to be divided on a quarterly basis. On October 10,1983, P.D.O. received $182.00 for its share of the cigarette profits for the third quarter of 1983. P.D.O.’s share of the profits from the cigarette machine for the fourth quarter of 1983 were withheld by Northeastern and applied to the outstanding balance of the $5,000.00 loan.
19. On several occasions in November and December of 1983, P.D.O. requested an accounting of the loan balance from Northeastern.
20. On or about late February or early March of 1984, P.D.O. replaced Northeastern’s vending machines with machines from Detrick Vending.
21. Subsequent to P.D.O.’s replacing Northeastern’s vending machines, Northeastern stored the machines in its warehouse where it maintains several hundred other machines.

Opinion, Vican, J., October 31, 1990, at 1-4.

The trial court held that P.D.O. was in breach of the exclusive dealings contract when it replaced Northeastern’s vending machines with those of another company. The trial court also determined that the liquidated damages provisions were null and void, and awarded Northeastern damages in the amount of $4,500.00 ($2,500.00 balance of principle on the note as of February 1984, plus 6% interest per annum) plus $1,500.00 incidental damages.. On appeal, appellant raises two challenges to the trial court’s award of damages.

A.

Appellant first claims that the trial court erred in requiring it to mitigate damages.

Specifically, appellant recognizes that there is a general duty to mitigate in cases involving commercial transactions, but contends that such a duty is inapplicable where the non-breaching party is a “lost volume seller.” However, this Commonwealth does not recognize the theory of “lost volume seller.” Accordingly, appellant was under a duty to mitigate its damages.

The theory of “lost volume seller” is addressed in the Restatement of Contracts, Second, which provides that:

The mere fact that an injured party can make arrangements for the disposition of the good or services that he was to supply under the contract does not necessarily mean that by doing so he will avoid loss. If he would have entered into both transactions but for the breach, he has “lost volume” as a result of the breach. See Comment f to Section 347.

Restatement of Contracts, Second, Section 350, Comment d. Comment f of Section 347 states that:

If the injured party could and would have entered into the subsequent contract, even if the [first] contract had not been broken, and could have had the benefit of both, he can be said to have “lost volume” and the subsequent transaction is not a substitute for the broken contract. The injured party’s damages are then based on the net profit that he has lost as a result of the broken contract.

Restatement of Contracts, Second, Section 347, Comment f.

This court has never accepted the theory of “lost volume.” In fact, this concept was summarily rejected by our court in Unit Vending Corporation v. Dobbin Enterprises, 194 Pa.Super. 470, 168 A.2d 750 (1961). In that case, this court held that a vending machine operator had a duty to minimize damages resulting from its customer’s breach of an exclusive vending machine placement contract, and was not entitled to be compensated for any profits it might have obtained by placing the machine in another location. This court stated that:

[the plaintiff] should not be compensated for any profits that it might have been able to obtain by placing the machine in another location. It had the duty to minimize its damages by doing so if this were possible.

Id., 194 Pa.Superior Ct. at 476, 168 A.2d at 754 (1961).

Furthermore, we decline appellant’s invitation to now adopt this theory. The theory of “lost volume” erodes the duty to mitigate. Application of the doctrine would encourage the non-breaching party to do nothing to minimize its damages. Moreover, if compensation for “lost volume” was permitted, the non-breaching party would recover lost profits from the breached contract and the profits it would have made had it contracted with someone else. This directly conflicts with the purpose behind awarding contract damages.

When there has been a breach of contract, damages are awarded in order to place the aggrieved party in the same position he would have been in had the contract been performed. The theory behind this philosophy is based on an attempt to make the non-breaching party whole again, not to provide him with a windfall.

Bellefonte Area School District v. Lipner, 81 Pa.Cmwlth. 334, 339, 473 A.2d 741, 744 (1984). Consequently, we reject appellant’s request to adopt the theory of “lost volume.” Moreover, we find that appellant did not fulfill its duty to mitigate damages. Appellant did not remove its machines from Flood’s until September of 1984, almost seven months after P.D.O. stopped using them. Once removed, they were placed in a warehouse. Accordingly, the trial court did not err when it found that Northeastern had a duty to mitigate its damages which it did not fulfill.

B.

Appellant next claims that even if we refuse to accept its theory of “lost volume”, we must still increase its damage award to cover lost profits from the breach of the Northeastern-P.D.O. contract. We disagree.

To recover for lost profits there must be affirmative evidence that the loss resulted from the breach of contract. Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 464 A.2d 1243 (1983). It is not necessary that the amount be shown with absolute or mathematical certainty, but only that it be approximated by competent proof. Bolus v. United Penn Bank, 363 Pa.Super. 247, 525 A.2d 1215 (1987).

Northeastern did not prove its lost profits. The evidence of its alleged lost profits was mostly self-serving documents prepared for trial. Without concrete evidence, such as receipts signed by P.D.O. or verified readings of the meters on the vending machines, the evidence of lost profits was insufficient. Consequently, the trial court correctly assessed damages to be as follows:

The evidence in this case supports the fact that weekly payments in the amount of $125.00 were made by P.D.O. to Northeastern from the last week of August 1983 until February 1984, with the exception of a few weeks. The total amount of the loan was $5,000.00 and was to be repaid within one year at an interest rate of 18%. Using these figures the note would have been half paid at the time of the breach. In addition, the facts presented allow one to logically infer that Northeastern incurred incidental damages as a result of the breach in the form of storage costs for the machines, payroll expenses for its salesmen, and other general costs associated with doing business. Based on the aforementioned criteria, we assess damages in the amount of $2,500.00 (representing the remaining balance on the $5,000.00 loan plus 6% interest per annum from the time of the breach, $600.00) plus $1,500.00 incidental damages, totalling $4,600.00

Opinion, Vican, J., October 31,1991, at 19. Accordingly, we affirm the judgment of the court below.

Judgment affirmed.