author: NICKLEACH, P.J.,

text:
    Beatty v. Lee’s Woodland Lanes

      Robert A. Cinpinski, for plaintiff.

      Thomas W Smith, for defendant.
    June 6, 2005
   NICKLEACH, P.J.,

Before the court for disposition is the defendants’ motion for summary judgment. This negligence action arises out of an accident which occurred October 10, 1999, at Lee’s Woodland Lanes, a bowling alley in Leechburg, Pennsylvania. The plaintiffs are Christine L. Beatty and Lonnie Beatty, wife and husband. The named defendants are Lee’s Woodland Lanes, Continental Bowling Partnership, and Richard Snyder, Joseph Tamburino and Walter Zimmerman (the partners). Mrs. Beatty has sued under a negligence theory for injuries she allegedly received when she slipped and fell on an oiled bowling lane while attempting to retrieve her 18-month-old son. Mr. Beatty has sued for loss of consortium. The pertinent facts are as follows.

STATEMENT OF THE FACTS

On September 30, 1988, Continental Bowling Partnership purchased the real property and bowling alley facility known as Lee’s Woodland Lanes. Defendants’ answer to interrogatory no. 2. The partnership purchasing the property consisted of Richard Snyder, Joseph Tamburino and Walter Zimmerman. See deed attached to complaint; August 25, 1988 partnership agreement attached to defendants’ response to request for production of document.

The bowling alleys and bowling equipment were already in existence on site when the real property was acquired and the bowling alley had already been operating as a business open to the public. Answers to interrog. nos. 4,53. No alterations of any substance had been made to the bowling lanes since the bowling business was acquired by the partnership in 1988. Answer to interrog. no. 57. (emphasis added)

After the partnership purchased the property, it leased the premises to Continental Bowling Corp. (the Corporation), a corporation which defendants Snyder, Tamburino and Zimmerman had formed on May 3, 1988. Def’s answer to interrog. no. 8. The corporation commenced operation of Lee’s Woodland Lanes in October 1988. Id.

There was no written lease between the partnership and the corporation, nor was there any public record indicating that the bowling alley business had been leased or that the bowling alley business was being operated by anyone other than the record owner of the real estate (the partnership). Answer to interrog. nos. 10,11 and 12. The corporation operated the bowling alley business under the names Lee’s Lanes and Lee’s Woodland Lanes and held itself out to the public as doing business under those names. Answers to interrog. nos. 14 and 15. Neither the corporation nor the partnership ever registered Lee’s Woodland Lanes or Lee’s Lanes as a fictitious name. Answer to interrog. no. 20.

Both the partnership’s mailing address and the corporation’s mailing address are R.D. #1, Box 409, Vandergrift, Pennsylvania, the same address as Lee’s Woodland Lanes. Answer to interrog. no. 62. The partnership’s office, place of business and records and the corporation’s office are located at Lee’s Woodland Lanes, R.D. #1, Box 409, Vandergrift, Pennsylvania. Answer to interrog. no. 61; see 1999 Corporation Income Tax Return attached to brief in response to motion.

The three shareholders of the corporation at the time of plaintiff’s accident in 1999 were Zimmerman, Snyder and Tamburino. Answer to interrog. no. 24. “On the date of the accident, the president of Continental Bowling Corp. was Joseph S. Tamburino, the secretary was Richard Snyder, and the treasurer was Walter Zimmerman. Joseph S. Tamburino, as of the date of the accident, was in the process of retiring and had little to no involvement in the day-to-day operation of the bowling business. The responsibilities for the day-to-day operations fell to Walter E. Zimmerman and Richard Snyder. Walter E. Zimmerman was primarily in charge of the mechanical operations of the bowling alley, such as the pin setting machines, ball returns, etc. Richard Snyder dealt more with the part of the operation, involving the front desk, leagues, birthday parties, etc.” Answer to interrog. no. 26.

In response to the question, “Have any of the defendants ever performed work on behalf of, or with regard to, the real estate or the entity that owns said real estate ... ? If so, identify what work, duties and responsibilities were performed, when and by whom,” defendants replied, “See preceding answers.” Answer to interrog. no. 27. Defendants then deny that the partnership had performed any work with regard to the bowling alley business, stating that Snyder and Zimmerman performed the work outlined above in their capacities as officers of Continental Bowling Corp. Answer to interrog. no. 28. “As of the date of the accident, . . . Tamburino, . . . Zimmerman, and... Snyder had responsibilities for the management, operation, maintenance and policy making of the bowling alley business.” Answer to interrog. no. 32.

Asked who was responsible for researching, reviewing, inspecting, establishing, maintaining and monitoring of safety policies and procedures, as well as for decisions regarding the same for the owners ofthe real estate at the time of the accident, defendants responded, “As of the date of the accident, mo delegation ofspecific duties regarding safety p&Ucies and procedures had been established for Continental Bowling Partnership. However, to the extent that any such safety policies or procedures were instituted, they would have been instituted by Walter E. Zimmerman and Richard Snyder. ” Answer to interrog. no. 33. (emphasis added)

Both families and children were permitted to bowl at almost any time of day at Lee’s, except for the time periods when adult nighttime leagues were bowling. Answer to interrog. no. 41. Lee’s “has always encouraged the participation of children.” Answer to interrog. no. 49. Plaintiffs and their three children were permitted to enter the premises on October 10,1999, and bowl. Answer to interrog. no. 50. Mrs. Beatty was not a regular or experienced bowler. Beatty affidavit, para. 7, attached to plaintiffs’ brief in response to motion for summary judgment. Prior to the date and incident in question, Mrs. Beatty may have bowled on one or two occasions. Id. at para. 8.

Before Lonnie Jr. and her other two children began to bowl, Mrs. Beatty gave them certain instructions. She instructed the children to pick up the bowling ball, walk down the approach area, swing the ball back, let go of it, and roll the ball down the lane. Beatty depo. at 47-48, exhibit A of brief in support of motion for summary judgment. She could not be certain that she told Lonnie not to cross the foul line, although she thought she probably did. Id. at 48. Mrs. Beatty did demonstrate for the children where they were to stop and release the ball, which was behind the foul line. Id.

When he bowled, Lonnie was not able to swing the ball back and bring it forward as his mother had demonstrated. Id. at 49. Instead, he would pick the ball up with two hands, push it, and let go of it. Id. He would walk up to the foul line and roll the ball from there. Id. Mrs. Beatty would walk along with him and accompany him to the line. Id. Lonnie had bowled approximately five frames prior to the incident in question. Id. at 47.

Just prior to the incident, Mrs. Beatty helped Lonnie pick up the ball and walk to the beginning of the lane and told him to push the balk. Id. at 50. This time, Lonnie did not push the ball very hard and it rolled down the lane quite slowly. Id. Lonnie proceeded to cross the foul line to go after the ball. Id. He was not running, but “moving briskly,” “trotting pretty good down there.” Id. at 51, 53.

Moving quickly, Mrs. Beatty took approximately two large steps past the foul line to catch her son. Id. at 51-52. She estimated that when she caught Lonnie Jr., she was approximately four or five feet past the line marking the end of the approach lane, six feet at the most. Id. at 51 -52. When she picked Lonnie up just above his waist, her feet went out from under her and she fell down on her buttocks and tailbone. Id. at 51-53. She was not able to break her fall because she was holding Lonnie with both hands. Id. at 50-51. When she fell, Lonnie fell as well, hitting the back of his head on the lane. Id.

At the time of the incident, Mrs. Beatty was not aware that the bowling lanes were oiled and that the lane area past the foul line was significantly more slippery than the area behind the foul line. Id. at para. 9. There were no signs or other materials on display at Lee’s that day that warned or advised bowlers or other members of the public not to enter the portion of the bowling alley past the foul line. Answer to interrog. no. 38. There were also no signs or materials on display warning or advising bowlers or others that this portion of the lane was more slippery than the area behind the foul line, or of any dangers of entering this portion of the alley. Answer to interrog. no. 39.

In addition, there were no training or other orientation sessions for first-time, novice or casual bowlers, such as Mrs. Beatty and her family, to provide them with notice or warning of the increased degree of slipperiness of the lane past the foul line, to warn them that they should not enter the bowling lane past the foul line, and to notify them that, if they needed to enter that area, extreme caution should be exercised. Id. at para. 13.

The American Bowling Congress (ABC) is an organization that approves bowling alleys “in order to maintain uniformity among them.” Affidavit of Richard Snyder, an officer of Continental Bowling Inc., para. 4. “The ABC has promulgated rules and guidelines specifying the amount, thickness, and location of dressing that must be applied to bowling lanes.” Id. at para. 5. The ABC rule regarding lane dressing reads as follows:

“(1) Dressing must be distributed from edgeboard to edgeboard for the entire predetermined distance down the lane (for example, and without limiting the distance, 35-40 feet from the foul line). Following any application of dressing, in the dressed portion of the lane there shall be a minimum of three units of dressing at all points on the lane surface.
“A unit is defined as a measurement of dressing film thickness equivalent to .0167 cubic centimeters of dressing per square foot of lane surface as measured by ABC/ WIBC approved lane dressing measuring equipment.
“Any stripping (cleaning) of dressing from the lanes must be uniform from edgeboard to edgeboard, and at least from the headpin to the distance to which dressing has been applied.” Id. at para. 6.

Bowling alleys are subject to inspections by ABC as set forth in the following ABC regulations:

“Any WIBC/ABC local association representative designated by the inspection coordinator, as well as any authorized representative of WIBC/ABC, shall be permitted at any time to inspect a certified center for compliance with bowling equipment specifications and lane dressing requirements; and to inspect all equipment the center uses to maintain its lanes.

“A minimum of one inspection per season shall be required at each center....” Id. at para. 8. (emphasis added)

“Lee’s Woodland Lanes uses an automatic oiling machine to apply oil to the lanes.” Id. at para. 9. “On October 10, 1999, the dressing on all of the lanes at Lee’s Woodland Lanes was in compliance with ABC regulations.” Id. at para. 10.

The sheriff served Lee’s Woodland Lanes by serving Walter Zimmerman, “owner,” at the bowling alley premises, R.D. #1, Box 409, Vandergrift, Pennsylvania. See sheriff’s return of service dated October 24, 2001. The sheriff served the partnership In the same manner. Id. The sheriff also served Zimmerman and Richard Snyder at Lee’s Lanes as individuals in their own right. See sheriff’s returns dated October 24, 2001.

DISCUSSION

The standard to be used in determining whether to grant a motion for summary judgment is well-established. Pa.R.C.P. 1035.2(2) provides that summary judgment shall be granted “if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.”

In determining whether to grant summary judgment, a trial court must resolve all doubts against the moving party and examine the record in a light most favorable to the non-moving party. Kelly v. Ziolko, 705 A.2d 868, 870 (Pa. Super. 1997). Summary judgment may only be granted in cases where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law. Id. The moving party bears the burden of proving that there is no genuine issue of material fact and that judgment as a matter of law is appropriate. Butterfield v. Giuntoli, 448 Pa. Super. 1, 10, 670 A.2d 646, 651 (1995).

Defendants seek summary judgment in their favor on two general grounds. First, the defendants allege that none of the named defendants was in possession of the bowling alley at the time of the accident, and that summary judgment should be granted to all defendants on that basis. Second, defendants argue that, because oiled bowling lanes are a condition inherent in the sport of bowling, the “no-duty” rule applicable to patrons of amusement facilities bars plaintiffs from recovery.

The first issue we will address is whether summary judgment should be granted to all the named defendants on the basis that only the corporation was in possession of the bowling alley premises and it is not a named defendant in this case. According to defendants, the premises known as Lee’s Woodland Lanes were at the time of the accident in the sole and exclusive possession of “Continental Bowling Inc.” Motion for summary judgment, paras. 8 and 9. Defendants also state “there was no legal entity known as Lee’s Woodland Lanes.” Id. at para. 10. On the basis that only the corporation was in possession of Lee’s Lanes, defendants seek summary judgment in favor of the partnership, Snyder, Tamburino and Zimmerman, and “Lee’s Lanes.”

This presents the threshold issue of whether the corporation is in fact a party in this case. The case law governing here is found under Pa.R.C.P. 1033, which states in pertinent part: “A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of the action, correct the name of a party or amend his pleading.” Id. (emphasis added)

The test for whether or not to allow the name of a party to be corrected is “whether the right party was sued but under a wrong designation, or whether a wrong party was sued and the amendment was designed to substitute another and distinct party.” Gozdonovic v. Pleasant Hills Realty Co., 351 Pa. 23, 29, 53 A.2d 73, 76 (1947).

In Gozdonovic, plaintiff named “Pleasant Hills Realty Company, a corporation” as a defendant in his negligence action for injuries received when a realty company employee left his car unattended, causing the car to crash into plaintiff. After plaintiff subsequently discovered that the realty company was not a corporation but a partnership, he moved to amend and was permitted to do so, although the statute of limitations had already run. Id. at 29, 53 A.2d at 76.

The Supreme Court affirmed the trial court’s ruling, reasoning that the amendment “did not substitute any new parties upon whom the liability could be imposed; the action was still directed against the entity which was [the worker’s] employer, and the designation of that entity could properly be changed from, that of a corporation to partnership.” Id. at 29-30, 53 A.2d at 76. (emphasis added)

In Powell v. Sutliff, 410 Pa. 436, 189 A.2d 864 (1963), plaintiff originally filed suit against “Ellis Sutliff and Leo E. Sutliff, individually and as partners, t/d/b/a Sutliff Chevrolet Company” and served the writ of summons on “Leo E. Sutliff, the individual in charge of the Chevrolet Company.” Id. at 437, 189 A.2d at 865. In his subsequently-filed complaint, the plaintiff designated defendants in the identical manner. Id. After the statute of limitations expired, plaintiff discovered that Sutliff Chevrolet was a corporation, not a partnership, and thereafter moved to amend his complaint to change the designation of the defendant company. Id. The trial court refused to permit the amendment, stating this would impermissibly introduce a new party into the action after the statute of limitatiosts had run. Id.

The Supreme Court reversed, holding that the requested amendment should have been allowed because “the original complaint sought to impose liability against the assets of the business entity known as Sutliff Chevrolet Company. As in Gozdonovic, the proposed amendment merely seeks to correct the designation of that business entity, in this case, from a partnership to a corporation.” Id. at 438-39, 189 A.2d at 865. (footnote omitted)

In the instant case, defendants admit;

“The entity operating the bowling business, Continental Corp., has never held itself out to the public as doing business under the name of Continental Bowling Partnership. It has, however, held itself out to the public as doing business under both Lee’s Woodland Lanes and Lee’s Lanes. No fictitious names have been registered.” Defendants’ answer to interrog. no. 20. (emphasis added)

Plaintiffs had no way of knowing that the corporation was the legal entity in possession of the bowling alley. Public property records indicated only that the partnership owned the property, there was no public record of any lease, the telephone book listed the name of the bowling alley as Lee’s Woodland Lanes, the bowling alley business held itself out to the public and advertised itself as Lee’s Woodland Lanes, and there was no fictitious name filing.

The complaint thus named the partnership, the three individual partners, and “Tee’s Woodland Lanes, whose status as a legal entity is unknown, however, who at all times relevant hereto, was maintained as a place of business situate at R.D. #1 Box 409, Vandergrift, Parks Township ... 15690.'' Complaint, para. 3. (emphasis added)

The court finds that given all of the above facts, when plaintiffs filed suit against Lee’s Woodland Lanes, they filed suit against the corporation. Thus, amendment of the complaint to correct the name and averments regarding Lee’s Woodland Lanes will be permitted. See also, Fretts v. Pavetti, 282 Pa. Super. 166, 171-72, 422 A.2d 881, 882-83 (1980) (statute of limitations did not prevent amendment of pleadings directing suit against sole proprietor of store in which plaintiff was injured, rather than originally designated corporation, in that counsel for plaintiffs logically assumed that business was a. corporation due to its improper registration under Fictitious Names Act, and corporation named did not actually exist and sole proprietor had been only person involved since outset of action); Thomas v. Duquesne Light Co., 376 Pa. Super. 1, 7, 545 A.2d 289, 292 (1988) (tort plaintiffs were entitled to amend complaint so as to allege that sole proprietorship defendant was in fact corporation, although statute of limitations had run; complaint was served by banding copy to corporate treasurer and corporate president signed answer to complaint in her capacity as president of corporation); Waugh v. Steelton Taxicab Co., 371 Pa. 436, 89 A.2d 527 (1952); Paulish v. Bakaitis, 442 Pa. 434, 440, 275 A.2d 318, 320 (1971) and Thomas, supra (delay in seeking leave to amend not dispositive).

We next address the argument that the defendants were not in possession of the bowling alley premises and therefore cannot be liable to plaintiffs. Since the corporation admittedly was in possession of the bowling alley facilities at all pertinent times, this argument obviously does not apply to the corporation. Defendants make the following argument for why the partnership and named individuals are not liable in this case:

“The law in Pennsylvania is dear that liability for injuries occurring as a result of the condition of the premises can attach only to a party who has possession and control of the area where the injury occurred. Williams v. Wolf, 169 Pa. Super. 628, 84 A.2d 215 (1951). Whether a person or party is a ‘possessor’ of land is determined on the basis of the Restatement (Second) of Torts, [section] 328(E). Blackman v. Fed. Realty Inv. Trust, 444 Pa. Super. 411, 664 A.2d 139(1995). Section328(E)states:

“Section 328E Possessor of land defined
“A possessor of land is
“(a) a person who is in occupation of the land with intent to control it or
“(b) a person who has been in occupation of the land with intent to control it, if no other person has subsequently occupied it with intent to control it or
“(c) a person who is entitled to immediate occupation of the land, if no other person is in possession under clauses (a) and (b).
“The rationale for the rule regarding possessors of premises is that the person in possession of the property ordinarily is in the best position to discover and/or control its dangers. Smith v. King’s Grant Condominium, 418 Pa. Super. 260, 267, 614 A.2d 261, 265 (1992),... aff’d, 537 Pa. 51, 640 A.2d 1276 (1994).” Brief in support of motion for summary judgment at 5.

Defendants also note that from the time a lease begins, the tenant is the possessor of the leased premises, citing 2401 Pennsylvania Avenue Corporation v. Federation of Jewish Agencies of Greater Philadelphia, 319 Pa. Super. 228, 466 A.2d 132 (1983), aff’d, 507 Pa. 166, 489 A.2d 733 (1988). Id. at 6. For all these reasons, according to defendants, after the partnership leased the bowling alley to the corporation in 1988, the partnership and the individual partners were no longer in possession of the premises.

However, the evidence shows that both the partnership and the corporation kept their offices at the bowling alley, kept records there and conducted their business there. Both the partnership and the corporation also utilized Lee’s mailing address as their mailing address. Two partners, Zimmerman and Snyder, conducted the day-to-day affairs of the bowling alley, ostensibly as officers and employees of the corporation. The three partners were the corporation’s only shareholders and officers. Given the above, the court finds that there is a genuine issue of material fact as to whether the partnership and the corporation were in joint possession of the bowling alley premises during any time relevant to the lawsuit. See Kobylinski v. Hipps, 359 Pa. Super. 549, 555, 519 A.2d 488, 491 (1986) (landlord may be liable if it has retained control over a portion of the property which is necessary to the safe use of the premises or shares with the lessee the right to possess any section of the property). Therefore, the court will not grant summaiy judgment to the partnership or to the individual partners on the basis that they were not in possession of the bowling alley.

Moreover, while “[ojrdinarily, a lessor not in possession is not liable in trespass to invitees of his lessee, ... section 359 . . . of the Restatement (Second) of Torts creates an exception to this general rule.” Jones v. Three Rivers Management Corp., 483 Pa. 75, 89 n.10, 394 A.2d 546, 553 n.10 (1978). Section 359 provides:

“Land leased for purpose involving admission of public
“A lessor who leases land for a purpose which involves the admission of the public is subject to liability for physical harm caused to persons who enter the land for that purpose by a condition of the land existing when the lessee takes possession, if the lessor
“(a) knows or by the exercise of reasonable care could discover that the condition involves an unreasonable risk of harm to such persons, and
“(b) has reason to expect that the lessee will admit them before the land is put in safe condition for their reception, and
“(c) fails to exercise reasonable care to discover or to remedy the condition, or otherwise to protect such persons against it.” Restatement (Second) of Torts §359 (1965).

Pennsylvania has adopted section 359. Jones at 89 n.10, 394 A.2d at 553 n.10. The record shows that the bowling alley had been an operating business open to the public prior to the partnership’s purchase of it in 1988, and that neither the partnership nor the corporation subsequently made any substantial changes to the facilities. Given this history, a genuine issue of material fact exists as to whether the partnership might be liable to plaintiffs pursuant to section 359. For all these reasons, the court will not grant summary judgment in favor of the partnership or the named individual partners.

We turn next to the argument that as a matter of law, defendants had no duty to Mrs. Beatty because Lee’s Lanes is an amusement facility, and the risk of a bowler being injured while bowling is inherent in the nature of the activity itself.

In support of this “no-duty” proposition, defendants cite Romeo v. The Pittsburgh Associates d/b/a The Pittsburgh Pirates, 787 A.2d 1027, 1030 (Pa. Super. 2001), which restated the general rule in Pennsylvania that “operators of a baseball stadium, amusement park, or other such amusement facilities have no duty to protect or to warn spectators from ‘common, frequent and expected’ risks inherent in the activity. Id., citing Hughes v. Seven Springs Farm Inc., 563 Pa. 501, 509, 762 A.2d 339, 343 (2000). (emphasis added)

In Romeo, the plaintiff was injured by a foul ball while sitting in the stands during a Pittsburgh Pirates baseball game. The court said, “[T]he risk of being struck by a foul ball while sitting in the bleachers is exactly the type of ‘common, frequent, and expected’ risk inherent in a baseball game” and held that the defendant ball club had no duty to warn or protect plaintiff in that situation. Id. at 1031.

Romeo contrasted its case with the fact situation in Jones v. Three Rivers Management Corp., 483 Pa. 75, 394 A.2d 546 (1978). In Jones, the Pennsylvania Supreme Court upheld a jury verdict for a plaintiff who had been struck by a foul ball during pregame batting practice while using the interior walkway from the stadium’s outer concourse to the seats. The Supreme Court noted in Jones, “Only when the plaintiff introduces adequate evidence that the amusement facility in which he was injured deviated in some relevant respect from established custom will it be proper for an ‘inherent-risk’ case to go to the jury.” id., 483 Pa. at 84, 394 A.2d at 550.

The court further explained that an amusement facility “will be liable for injuries to his patrons only where he fails to ‘use reasonable cars in the construction, maintenance and management Of (the facility), having regard to the character of the exhibitions given and the customary conduct of patrons invited. ’ ” Id. at 549. (citations omitted) (emphasis in original)

The Jones court found that the facts before it presented exactly such a case, “[since] the openings built into the wall over right field are ail architectural feature of Three Rivers Stadium which are not an inherent feature of the spectator sport of baseball. They are not compelled by, or associated with, the ordinary manner in which baseball is played or viewed.” Id. at 86, 394 A.2d at 551. (footnote omitted) Thus, the court ruled the defendant could be found liable to the plaintiff for what was, in essence, a case alleging negligent design.

The Jones court cautioned that the “no-duty” rules “apply only to risks which are ‘common, frequent and expected,’ Goade, supra, and in no way affect the duty oftheatres, amusement parks and sports facilities to protect patrons from foreseeable dangerous conditions not inherent in the amusement activityId. at 85, 394 A.2d at 551. (emphasis added)

Jones went on to discuss the duties of a possessor of land toward business invitees:

“Possessors of land owe a duty to protect invitees from foreseeable harm. Restatement (Second) of Torts §§341 A, 343, 343A (1965). With respect to dangers which are obvious, the Restatement rule provides:
“ ‘A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.’ Restatement (Second) of Torts §343.
“Comment f to that section is worthy of note:
“ ‘ There are, however, cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection.’
“Thus, an invitee in certain circumstances must be protected even from obvious dangers.” Id. at 88, 394 A.2d at 552. (emphasis added)

In the instant case, defendants argue that Mrs. Beatty is deemed to have anticipated the risk of slipping on oiled lanes because oiled bowling lañes are inherent to the sport of bowling. However, the slippery condition of the lanes past the foul line was a “foreseeable dangerous condition not inherent in the amusement activity,” because under ordinary and usual circumstances one need not and would not be expected to step into the highly oiled area past the foul line to bowl. See Jones at 85, 394 A.2d at 551.

Plaintiffs allege that “based upon the nature of defendants’ business, the defendants’ invitation to families to bring young children and to utilise the defendants’ facilities and the defendants permitting the plaintiff and others similarly situate to do so, it is reasonably foreseeable that the plaintiff’s children would enter upon the ‘lane’ area of the premises, and that the plaintiff, Christine L. Beatty, as the parent or other supervising individual, would immediately enter upo® the ‘lane’ to retrieve said young child, and that upo® doing so, she would fall and be injured.” Complaint at para. 24.

Here, plaintiffs are alleging that the defendants failed to exercise reasonable care in the management of Lee’s Lane’s by failing to employ reasonable procedures to notify and warn patrons, especially those with small children, of the increased slipperiness of the bowling lanes past the foul lines and of the dangers of traversing that part of the lane. See Jones, 483 Pa. at 81, 394 A.2d at 549 (an operator of a place of amusement will be liable for injuries to his patrons where he fails to use reasonable care in the construction, maintenance and management of the facility).

The court finds that walking out on the lane area past the approach area and foul line is not a risk inherent to the sport of bowling. Thus, the no-duty rule does not apply and plaintiffs are entitled to show that the defendants breached a duty of reasonable care to, at the very least, provide some instruction and warnings regarding the increased slipperiness of the lane area. For all the above reasons, defendants’ motion for summary judgment is hereby denied.

An appropriate order will be entered.

ORDER

And now, June 6, 2005, after careful consideration of the entire record, it is ordered, adjudged and decreed that defendants’ motion for summary judgment against plaintiffs, and in favor of defendants, is hereby denied. It is further ordered, adjudged and decreed that plaintiffs are hereby granted leave to amend their complaint to correct the name of defendant Lee’s Woodland Lanes to Continental Bowling Corp., the legal entity which conducted business as Lee’s Woodland Lanes.

      . Although defendants sometimes refer to the corporation as Continental Bowling inc., the certifícate of incorporation and other corporate documents show that the name of the corporation is Continental Bowling Corp. See certificate attached to brief in response to motion for summary judgment.

      . The telephone book listing for Lee’s Woodland Lanes gives its address as R.D. #1, Box 409, Vandergrift. See copy of telephone book listing attached to plaintiff’s brief in opposition to motion for summary judgment.

      . Tamburino was never served. According to the return of service, Snyder and Zimmerman told the sheriff’s deputy that Tamburino lived in Philadelphia, Pennsylvania, and had not been a partner since April 2000. See sheriff’s return dated October 24,2001.

      . In their brief in response to defendants’ motion for summary judgment, as well as in their omQ argument, plaintiffs have asked for permission to amend the caption and complaint to include Continental Bowling Corp. as a named party.

      . If the amendment would substitute another and distinct party, a plaintiff is precluded from doing so after the expiration of the applicable statute of limitations. Hence, the Beattys would be precluded from adding the corporation as a defendant now if it is deemed to be another and distinct party, because the applicable statute of limitations expired in October 2001.

      . Although in their summary judgment motion, defendants state that there was no legal entity known as Lee’s Woodland Lanes, the court notes that counsel initially entered its appearance for “Lee’s Woodland Lanes, Richard Snyder, Joseph Tamburino, Waiter Zimmerman and Continental Bowling Partnership, defendants,” and has continuously filed documents on behalf of all of those named defendants.

      . The writ of summons addressed to Lee’s Woodland Lanes was served on Walter Zimmerman, an employee, officer and shareholder of the corporation, at the corporation’s place of business. Thus, the corporation was properly served. See sheriff’s return dated October 24, 2001.

      . See Telega v. Security Bureau Inc., 719 A.2d 372 (Pa. Super. 1998) (no duty rule did not bar recovery by spectators at professional football game against provider of stadium security service for injuries incurred during disturbance among fans seeking souvenir ball in end zone).

      . The difficulty of separating th®, inquiry of whether a duty exists from the question of assumption, oif risk necessitates that the two will sometimes be discussed in taRdteSt rather than separately. See Carrender v. Fitterer, 503 Pa. 178, 188, 469 A.2d 120, 125 (1983) (citations omitted) (emphasis added) (“to say that the invitee assumed the risk of injury from a known and avoidable danger is simply another way of expressing the lack of any duty on the part of the possessor to protect the invitee against such dangers.”).


source: Caselaw Access Project

author: LASH, J.,

license: Public Domain

text:
    FDA Packaging Inc. v. Advance Personnel Staffing Inc.

      Michael D. Kristofco, for plaintiff.

      Kevin A. Moore, for defendant.
    June 1, 2005
   LASH, J.,

The matter before this court is the emergency petition of plaintiff, FDA Packaging Inc., to stay arbitration proceedings pursuant to FDA’s declaratory judgment action. Defendant, Advance Personnel Staffing Inc., has moved for arbitration, seeking damages from FDA for breach of contract for failure to make payments when due. Our determination on whether to stay the arbitration rests on whether FDA is bound by an agreement executed on FDA’s behalf by FDA’s office manager, as the agreement contains an arbitration provision requiring that all controversies or disputes between the parties be resolved by arbitration. For reasons set forth herein, this court denies FDA’s emergency petition for stay of arbitration and dismisses the declaratory judgment action.

On or about November 8, 2001, the parties entered into a contract entitled, “New account and identification agreement” (first agreement), which provided that Advance would supply temporary employees for FDA in exchange for payment for services rendered by the temporary employees. The agreement was little more than an outline of the parties’ responsibilities, and contained no arbitration provision.

The parties worked together under the first agreement. Over time, Advance was called upon to supply an increasing number of employees for FDA. Accordingly, Advance sought a new agreement to protect its status as a primary staffer, holding discussions with J. Brian McHugh, the president of FDA. Understanding that an agreement was reached, Advance prepared and submitted a writing entitled, “Primary staffing vendor agreement” (second agreement), setting forth that Advance would provide to FDA all necessary temporary employees for certain enumerated jobs, and that Advance Personnel would be the primaiy vendor provider of assigned employees. The second agreement was executed on April 16, 2003, by Rose Marie Larson on behalf of Advance and Deborah Dierolf, FDA’s office manager, on behalf of FDA.

The second agreement contains the following arbitration provision:

“Remedies
“(44) Arbitration
“(a) Any controversy or dispute between the parties, whether arising out of OP in connection with this Agreement or otherwise, shall be resolved in an arbitration under the Federal Arbitration Act and before the American Arbitration Association in accordance with AAA’s then obtaining Commercial Arbitration Rules at the AAA location closest to Advance Personnel’s office. The administrative cost of the arbitration and the arbitrator’s fee shall be shared equally by the parties.
“(b) In such arbitration, the arbitrator shall have no authority or power to amend, modify, or in any other way change any of the terms of this agreement. All decisions of such arbitrator shall be final and binding upon both parties. The prevailing party In such arbitration as determined by the arbitrator in his or her decision shall be awarded an amount equal to its reasonable attorney’s fees incurred in connection with such arbitration, in addition to what other relief may be awarded.
“(c) Judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction thereof.”

According to Advance, FDA fell behind on its payments. Eventually, in late 2004, Advance removed its employees from the FDA plant. On or about November 19, 2004, Advance commenced an arbitration proceeding with the American Arbitration Association, seeking monies owed by FDA of approximately $183,000. According to Advance, FDA did not respond to the arbitration demand, nor to correspondence sent to FDA from AAA dated December 3, 2004, giving FDA until December 17,2004, to file an answer to the complaint.

An arbitrator was appointed and preliminary matters scheduled. FDA responded by objecting to the arbitration proceeding. On April 22, 2005, the arbitrator ruled on jurisdiction, stating the following:

“American Arbitration Association
“Order no.
“Case no. 14 181 02243 04
“Order on Jurisdiction To Determine Arbitrability of This Dispute
“Pursuant to the preliminary hearing and scheduling order dated March 30,2005, in the above-referenced case, respondent filed an objection to arbitration and, in the alternative, answering statement on April 8,2005. Claimant filed its reply to respondent’s objection to arbitration on April 15, 2005.
“Pursuant to the Commercial Arbitration Rules, specifically R-7, the arbitrator has the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement. Further, a party must object to the jurisdiction of the arbitrator or the arbitrability of a claim no later than the filing of an answering statement to the claim.
“This case was filed by claimant on or about November 23, 2004. By letter dated December 3, 2004, AAA gave respondent the opportunity to file an answer to the complaint on or before December 17,2004. Respondent did not file an answer and did not file an objection to the arbitrability of the claim or the jurisdiction of the arbitrator on or before December 17, 2004. Accordingly, I find that respondent has waived its right to challenge the arbitrability of these proceedings. This case shall proceed in accordance with the preliminary hearing and scheduling order.
“Dated April 22, 2005
“/s/Judy Weintraub, Arbitrator”

On April 16, 2005, FDA filed the within complaint for declaratory judgment requesting that this court temporarily and permanently stay the arbitration initiated by Advance and declare that the second agreement was, in whole or in part, null and void. Further, due to the pendency of the arbitration hearing, FDA filed, on April 21, 2005, an emergency petition to stay the arbitration. Argument on the emergency petition was scheduled by the Honorable Albert A. Stallone, senior judge, for May 16, 2005. The arbitration hearing was stayed, pending further order of court. Further, on motion of Advance to conduct discovery, Senior Judge Stallone ordered that depositions be taken on disputed issues of fact.

The parties conducted depositions to produce evidence on the issue of whether Deborah Dierolf was authorized to execute the second agreement on behalf of FDA. Depositions were made part of the record and argument was held on May 16, 2005.

Preliminarily, we must decide whether the arbitration question is within our purview. The arbitrator determined otherwise, ruling she had the power to rule on her own jurisdiction. The arbitrator relied upon Rule R-7 of the Commercial Arbitration Rules, which states:

''R-7. Jurisdiction
“(a) The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement.
“(b) The arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part. Such an arbitration clause shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitrator that the contract is null and void shall not for that reason alone render invalid the arbitration clause.
“(c) A party must object to the jurisdiction of the arbitrator or to the arbitrability of a claim or counterclaim no later than the filing of the answering statement to the claim or counterclaim that gives rise to the objection. The arbitrator may rule on such objections as a preliminary matter or as part of the final award.”

The arbitrator went on to find that, pursuant to R-7(c), FDA had waived its rights to challenge the arbitrability of the proceedings by failing to respond or object to the arbitrability of the claim on or before December 17, 2004.

FDA claims that this court, not the arbitrator, must decide jurisdiction, relying on section 7304(b) of the Uniform Arbitration Act, which sets forth:

“(b) Stay of arbitration. — On application of a party to a court to stay an arbitration proceeding threatened or commenced, the court may stay an arbitration on a showing that there is no agreement to arbitrate. When in substantial and bona fide dispute, such an issue shall be forthwith and summarily tried and determined, and a stay of the arbitration proceedings shall be ordered if the court finds for the moving party. If the court finds for the opposing party, the court shall order the parties to proceed with arbitration.”

In the case of Ross Development Co. v. Advanced Building Development Inc., 803 A.2d 194, 196-97 (Pa. Super. 2002), the Superior Court, construing section 7304(b), states:

“In a proceeding to stay or to compel arbitration, the question of whether the parties agreed to arbitrate, commonly referred to as ‘substantive arbitrability,’ is generally one for the courts and not for the arbitrators. AT & T Technologies Inc. v. Communications Workers of Am., 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). On the other hand, resolution of procedural questions, including whether the invocation of arbitration was proper or timely, is left to the arbitrator. Mack Mfg. Corp. v. International Union, United Auto., Aircraft and Agric. Implement Workers Local 677, 368 Pa. 37, 81 A.2d 562 (1951). Such questions may be referred to as ‘procedural arbitrability.’
“In Pennsylvania, our Supreme Court has held that:
“When one party to an agreement to arbitrate seeks to enjoin the other from proceeding to arbitration, judicial inquiry is limited to the question of whether an agreement to arbitrate was entered into and whether the dispute falls within the scope of the arbitration provision, (citation omitted) Thus, a party who can establish that he did not agree to arbitrate, or that the agreement to arbitrate, limited in scope, did not embrace the disputes in issue, may be entitled to enjoin an arbitration proceedings [sic].
''Kardon v. Portare, 466 Pa. 306, 309-10, 353 A.2d 368, 369 (1976) (quoting Flightways Corp. v. Keystone Helicopter Corp., 459 Pa. 660, 331 A.2d 184, 185 (1975)); see also, Paone v. Dean Witter Reynolds Inc., 789 A.2d 221 (Pa. Super. 2001) (holding same). Again, the question of substantive arbitration is for the courts while procedural arbitration is left to the arbitrators.”

As the arbitration provision sets forth that the arbitration proceedings are to be conducted under the Federal Arbitration Act, this court sought guidance from the federal court to consider the issue of jurisdiction within the context of the FAA. The case of Bertram v. Beneficial Consumer Discount Company, 286 F. Supp.2d 453, 457-58 (M.D. Pa. 2003), provides a thorough and extensive analysis:

“The FAA, which provides a framework for the implementation and enforcement of private arbitration agreements, establishes a strong presumption in favor of arbitration over litigation. [Sandvik AB v. Advent Int’l Corp., 220 F.3d 99, 106 (3d Cir. 2000).] Even in circumstances in which the validity of the contract is in dispute, the statute mandates courts to reserve these issues for the arbitrator. 9 U.S.C. §2; Sandvik, 220 F.3d at 104. The FAA provides that, when the court is ‘satisfied that the making of the [arbitration clause] ... is not in issue,’ it ‘shall. . . stay the trial of the action’ pending arbitration. 9 U.S.C. §§2-4 (emphasis added); see also, Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-404, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967). Phrasing this requirement in the negative, the court may decline to enforce an arbitration clause only when the making of the clause itself, not merely the making of the contract as a whole, is disputed. See id.

“Thus, for purposes of determining the enforceability of an arbitration clause, the FAA requires the court conceptually to sever the arbitration provisions from the remainder of the contract. See Sandvik, 220 F.3d at 106. Under this principle, deemed the doctrine of severability, courts analyze arbitration clauses as individual agreements, executed concurrently with, but not as part of, the encompassing contract. See id. Application of this doctrine means, somewhat anomalously, that a prima facie finding that a contract is voidable does not render an embedded arbitration clause voidable or unenforceable. Id. Rather, as stated in the FAA, only when the making of the clause itself is in issue is the arbitration provision rendered ineffective. 9 U.S.C. §§2-4; Prima Paint, 388 U.S. at 403-404, 87 S.Ct. 1801. Thus, to avoid arbitration under the FAA, the challenging party must establish grounds for declaring a contract voidable that relate specifically to the arbitration clause, viewed independently from the remainder of the contract. Sandvik, 220 F.3d at 106.

“Although the severability doctrine requires enforcement of an arbitration agreement embedded in an otherwise voidable contract, it does not permit enforcement when the encompassing contract is considered void ab initio. Id.; see also, China Minmetals Materials Imp. & Exp. Co. v. Chi Mei Corp., 334 F.3d 274, 282 (3d Cir. 2003). The reasons for this disjunction lies in the distinction between voidable and void contracts. A voidable contract is one in which a party has the power, ‘by a manifestation of election to do so,’ either to disaffirm the agreement, avoiding the legal duties imposed by it, or to ratify the agreement, mandating performance of the contractual obligations by both parties.[] Restatement (Second) of Contracts §7 (1981), cited in Sandvik, 220 F.3d at 107. A claim that a contract is voidable does not challenge the existence or prima facie validity of the underlying agreement, but charges that inequitable conduct associated with the formation or performance of the agreement renders it unenforceable at the election of the aggrieved party. See id.; Sandvik, 220 F.3d at 107-109. Such a claim does not implicate the making of the arbitration clause itself, and, thus, the FAA requires the court to enforce an embedded arbitration agreement in these circumstances. See id.

“In contrast, a declaration that a contract is void nullifies all aspects of the agreement, including an embedded arbitration clause, giving neither party the power to rectify or disaffirm its provisions.[] Restatement (Second) of Contracts §7 cmt.a (‘[A void contract] is not a contract at all.’); Sandvik, 220 F.3d at 107-109. Essential to this concept is the principle that a void contract lacks legal existence from inception, and that the subsequent judicial declaration merely clarifies, rather than alters, the legal relationship of the parties. See id. Because arguments that a contract is void ab initio threaten the existence of all provisions of the agreement, including an embedded arbitration clause, such a claim necessarily puts the making of the arbitration clause in issue, rendering resolution of the claim improper for arbitration under the FAA. Id.; see 9 U.S.C. §§2-4.

“Thus, the FAA mandates enforcement of arbitration provisions in all but two circumstances: (1) when a party alleges that the contract as a whole is void ab initio for any reason, or (2) when a party alleges that the arbitration clause itself is voidable for reasons related specifically to the arbitration clause. In all other situations, the FAA requires the court to enforce the terms of the clause and to refer the matter to arbitration.”

FDA seeks to establish that execution of the second agreement was unauthorized. If so, the agreement and the arbitration provision contained within would be void ab initio. Thus, it is for this court to determine whether FDA’s position has merit.

Upon review of the record, this court finds that FDA is bound by the terms of the arbitration agreement and therefore this matter should proceed to arbitration. This holding stems from our finding that Brian McHugh, president of FDA, authorized Deborah Dierolf to act as the agent of FDA and to execute documents on its behalf.

In the case of Volunteer Fire Company of New Buffalo v. Hilltop Oil Co., 412 Pa. Super. 140, 146-47, 602 A.2d 1348, 1351-52 (1992), the Superior Court provides a good overview of the law of agency:

“Agency ‘cannot be assumed from the mere fact that one does an act for another.’ Bross v. Varner, 159 Pa. Super. 495, 497, 48 A.2d 880, 881 (1946). Whether an agency relationship exists is a question of fact. Bolus v. United Penn Bank, 363 Pa. Super. 247, 259, 525 A.2d 1215, 1221 (1987), allocatur denied, 518 Pa. 627, 541 A.2d 1138 (1988). The party asserting an agency relationship has the burden of proving it by a fair preponderance of the evidence. Apex Financial Corp. v. Decker, 245 Pa. Super. 439, 443, 369 A.2d 483, 485 (1976). Agency is created where there exists a ‘manifestation by the principal that the agent shall act for him, the agent’s acceptance of tbs undertaking and the understanding of the parties that the principal is to be in control of the undertaking.’ Scott v. Purcell, 264 Pa. Super 354, 363, 399 A.2d 1088, 1093 (1979), citing Restatement (Second) of Agency §1(1) (1958) (Comment). Before a fact-finder can conclude that an agency relationship exists and that the principal is bound by a particular act of the agent, the fact-finder must determine that one of the following exists:

“(1) express authority directly granted by the principal to bind the principal as to certain matters; or
“(2) implied authority to bind the principal to those acts of the agent that are necessary, proper and usual in the exercise of the agent’s express authority; or
“(3) apparent authority, i.e. authority that the principal has by words or conduct held the alleged agent out as having; or
“(4) authority that the principal is estopped to deny.
“Bolus v. United Penn Bank, supra at 260, 525 A.2d at 1221.”

The record provides ample evidence that the authority necessary to enter into the second contract was granted to Deborah Dierolf by Brian McHugh. In her deposition, Ms. Dierolf testified as follows:

“Q. Well, let me ask you about that. Did Brian McHugh often have you sign things on his behalf?
“A. Yes.
“Q. And when you did so, did you write his name as you did on the first agreement?
“A. Depends what it was. Most vendor agreements, when people were asking for who the president of the company was, yes, I would sign Brian’s name. If it was an agreement that didn’t require a title, I would often sign my name.
“Q. Now, when you would sign Brian’s name to an agreement, would you do that without showing him the agreement first?
“A. No.
“Q. So every time you signed his name to an agreement, it was after he reviewed the agreement and told you to go ahead and sign it?
“A. Correct.
“Q. Now, when you signed agreements in your own name, did you follow that same procedure?
“A. Yes. Brian knew eveiything I signed. I signed contracts with Dempsey uniform and changed the contract several times. I signed an agreement with them, paying back uniforms that were taken out of the plant when we owed money. They charged a fee if uniforms left. There was a payment arrangement that was made ....
“Q. what was the purpose of that document that you signed, that you recall?
“A. Advance had worked — The only agreement that Advance Personnel and FDA had was the original, as far as I remember, vendor agreement, which was more of an informational piece. At this point, Advance Personnel was becoming the primary staffing unit for FDA in charge of supplying the whole building. And if they could not supply, then they were to go elsewhere and get other temps from other companies. As it ended up, Advance ended up supplying the majority of the employees. Brian didn’t care who supplied the temps or how they got there; just that the bodies were there on a daily basis.
“Q. How did this agreement come to be executed? Who physically handed you this document?
“A. Roe Larson brought it in after she had met with Brian and Scott McHmgfo. And I believe Rosemarie LaManna was there discussing the details of the document. This came a day or two later and needed signed [sic]. Brian and Scott had already worked out the details with Advance Personnel as the primary staffing company. It was held in the conference room.
“Q. Were you part of that meeting?
“A. No, I was not. I was told afterwards Advance was coming in. Roe was go lag to bring in the contract. They needed signed [sic].
“Q. Did anybody tell you what the agreement was between the parties?
“A. Just that Advance Personnel was going to be the primary supplier of temporary employees for FDA Packaging.
“Q. Who told you that?
“A. Brian.
“Q. And who told you that Roe Larson was going to be bringing in an agreement?
“A. Brian. Roe Larson was their contact, so she would have been the person bringing it in.
“Q. Did he tell you what that agreement was going to be?
“A. I just told you that. He told me that Advance Personnel was going to be the supplier of temporary — of all the temporary employees for FDA. They were going to be the primary source....
“Q. Now, when Rose Marie Larson brought in the document marked as Brian McHugh exhibit B, did— had it already been signed by her?
“A. No. She signed it when I signed.
“Q. So she brought it in and sat down with you?
“A. And we both signed it.
“Q. Both signed it together?
“A. Correct.
“Q. What did she do? Did she take it back?
“A. We made a copy to keep at FDA, and she took her copy, correct.
“Q. During that meeting, was there anybody else involved in that meeting?
“A. No.
“Q. So I take it then, based upon your description as to how this happened, you didn’t show this document to Brian McHugh before you signed it?
“A. Yes. I left my office, showed Brian, came back. Roe stayed in my office. I signed the document.
“Q. When you showed Brian, what did you tell him?
“A. I said, here is the agreement that Roe brought in for Advance Personnel, I’m sure he did not read word for word the agreement.
“Q. Did you read it?
“A. Yes. Up til this point, Advance Personnel had been supplying temps to FDA, being paid on a regular basis. And even after this agreement, there was no lapse in them supplying temps or lapse in FDA paying them. FDA may have paid them slowly all times based on cash flow, but there was no lapse in payment.
“Q. What did Brian McFIugh say to you after you showed him this document?
“A. Take care of it, Deb. Like I said, Brian was focused on the plant and the plant making money. He didn’t care how we got people; just that they were there ....” Oral deposition of Deborah Dierolf, May 6,2005, pp. 8-9, 12-13 and 15-16.

For his part, Brian McHugh denies ever giving Deborah Dierolf authority to bind FDA to the second agreement. However, his son, Brian Scott McHugh (Scott McHugh), a 49 percent shareholder and vice president of FDA, expressly contradicted his father’s testimony. In his testimony, Scott McHugh related that Deborah Dierolf was given the authority by Brian McHugh to sign contracts such as the second agreement. In fact, he stated that Brian McHugh’s method was to avoid reading documents or paying attention to the nature of the transaction, conferring authority on another to handle it on his behalf to provide him the ability to deny being bound by the terms of the contract at a later point in time.

Scott McHugh’s testimony is credible, for, among other things, it goes directly against his own interest. In speaking of the second agreement, he believes that FDA is bound by its terms and that this was “unfortunate.” He only found out about the second agreement in approximately July of2004 and was very unhappy about it. He further testified that he and his father had a heated exchange about the second agreement after questioning his father whether he read the contract and how he could agree to its terms.

On the issue at bar, this court finds credible the testimony of Deborah Dierolf and Scott McHugh, and finds the testimony of Brian McHugh to lack credibility. The deposition testimony established that FDA’s common course of dealing was evident in the execution of the second agreement. Deborah Dierolf, within the scope of her authority, had the tacit approval of President McHugh to execute the agreement and did so. Subsequently, the parties performed under the terms of the agreement. It was not until over a year later, when Scott McHugh began questioning the existence of the second agreement and his father’s methods, that the enforceability of the second agreement was called into question. Because we conclude that the second agreement is a valid, not a void, contract, Advance is entitled to rely on the terms of the second agreement and to proceed to arbitration in accordance with the arbitration provisions.

Therefore, we enter the following order:

ORDER

And now, June 1, 2005, upon consideration of the emergency petition of FDA Packaging Inc. to stay arbitration, response thereto, briefs filed by the parties, and upon consideration of the record, this court denies the petition. Further, on motion of defendant, Advance Personnel Staffing Inc., the within declaratory judgment action is dismissed.

      . As FDA filed no answer, the last day to object would be the last day permitted for filing, December 17, 2004.

      . 42 Pa.C.S. §7304(b).

      . Voidable contracts often arise in circumstances in which the contract is tainted by unconscionability, duress, misrepresentation, fraud, or other bad faith conduct. See e.g., Restatement (Second) of Contracts §7 (1981).

      . Void contracts generally arise in cases of forgery of a party’s name or unauthorized execution of an agreement on behalf of another party. See e.g., Restatement (Second) of Contracts §7 cmt. a.

      . For the record, we also note that the arbitrator never ruled on this very issue, relying instead on FDA’s failure to object as a basis for waiver under R-7(c). However, FDA cannot be subject to R-7(c) or any of the AAA rules if it is not subject to the arbitration provision itself. Assuming jurisdiction, the arbitrator should have first ruled on the validity of the contract before determining whether FDA had waived its right to object.

      . Oral deposition of Brian Scott McHugh, pp. 16-18, 52-53.

      . Oral deposition of Brian Scott McHugh, pp. 27-29.


author: STALLONE, J,

text:
    Kehler v. Carrasquillo

      Alisa P. Marion, for appellants.

      Kenneth A. Goodman, for appellees.
    April 19, 2005
   STALLONE, J,

This is an automobile negligence action arising out of a two-car, “rear-end” collision which occurred on April 4, 1997, between a vehicle being driven by the appellant John G. Kehler, and a second vehicle being driven by appellee John A. Carrasquillo and owned by his wife, appellee Karen A. Carrasquillo. In their complaint, Mr. Kehler and his wife, appellant Irene Kehler, asserted claims for negligence on the part of Mr. Carrasquillo and for negligent entrustment against Mrs. Carrasquillo. After a three-day trial, a jury found in favor of Mr. and Mrs. Carrasquillo on the basis that the admitted negligence of Mr. Kehler was not a factual cause of the harm complained of by the appellants.

Mr. and Mrs. Kehler filed a motion for post-trial relief, which we denied after hearing oral argument. They thereafter filed a timely appeal to the Superior Court of Pennsylvania, in which ¡fey are raising two issues for appellate review.

Mr. and Mrs. Kehler first contend that this court erred in denying their motion to strike the jury impaneled on August 17, 2004, which was not filed until November 1, 2004, two days prior to the start of trial. In making this claim, Mr. and Mrs. Kehler are alleging that certain statements made by this court during the course of jury selection demonstrated the court’s bias, partiality and prejudice against them relative to the merits of this case.

Under Pennsylvania law, there is no doubt that parties to a lawsuit are entitled to a trial before an impartial jury which has not been influenced by a trial court’s showing of bias, partiality or prejudice toward either side. Downey v. Weston, 451 Pa. 259, 301 A.2d 635 (1973). In order for the moving party to prevail, however, such conduct must be clearly reflected in the record. Corbin v. Cowan, 716 A.2d 614, 619 (Pa. Super. 1998) (quoting Nemeth v. Nemeth, 306 Pa. Super. 47, 53, 451 A.2d 1384, 1388 (1982)).

The transcript of the jury selection shows that Bradley T. Beckman, Esquire, who was representing Mr. and Mrs. Kehler at the time of jury selection, asked the following question of the entire jury venire on August 17, 2004 (N.T., jury selection, p. 11):

“Is there anybody that believes that, because of their upbringing, moral, religious or other beliefs, that they would have a difficult time setting aside whatever beliefs that they have to award money damages to the plaintiff if you believe the plaintiff is entitled to money damages?” which led to the following response from juror no. 32 and reply from this court (N.T., jury selection, pp. 11-13):

“Wilson Kauffman: Juror no. 32, Wilson Kauffman. I would have a problem with that. It sounds like it’s been a long time between what happened and today’s proceeding. ...
“The Court: Counsel, you asked a very broad question and I just want you to know that whatever response there is here is not going to constitute a basis for a mistrial. I’m not going to start all over with another jury. . . you know what I am talking about and I don’t like that (kind of) question to begin with. Does anyone feel this or does anyone feel that or does anyone have a problem with this or that.
“J don’t think they are appropriate questions but I am going to let you ask them. But I am letting you know that you ’re going to have to live with whatever those answers are and don’t tell me those answers by the juror taint the jury (panel) and, therefore, you want to discharge the jury and start all over again at another time.”

Not being content with allowing the matter to end at that point, Attorney Beckman continued to press the issue, not at side-bar but in front of the entire venire (N.T., jury selection, pp. 13-15):

“Mr. Beckman: Okay. First, I want to say in my career I have never had occasion to ask any court to throw out the panel. But I want to respond to why this case has taken so long. John Kehler was driving the car and he hired a lawyer, he hired Alisa Marion who works in my office. The lawsuit was filed within the time period allowed under Pennsylvania law, two years you have got to file it. It is not up to the lawyers to pick the trial date. We just work here. We are subject to the rules of this honorable court.
“Wilson Kauffman: You asked me—
“The Court: So now you say it is this court that didn’t pick a trial date. When was the case certified ready for trial?
“Mr. Beckman: I don’t have that information with me, your honor.
“The Court: The answer is that the court, the judges, have nothing to do with when the case is going to come before a jury for trial until it’s certified by the lawyers for trial. You know, I can only tell you this, that the case had not been given to me tmtil maybe four or five months ago. But when was it certified for trial?
“Mr. Beckman: When this case was with another judge here in Berks County for some reason, unbeknownst at least to me, it was transferred to your honor ...
“The Court: Well, the case was transferred to me for trial on April 13, 2004. It wasn’t certified for trial until November 12,2003. So that should answer the question. Does that answer your question?
“Wilson Kauffman: I was attempting to answer his question. He asked if anybody had any beliefs why— that would hinder their ability to judge or make a decision in the case, which it’s been a long time. There are a lot of lawsuits clouding our courts. From my upbringing, you have — now, I don’t want to say what’s on my mind but I don’t think that — I think it should have been handled a long time ago, not wait this long.
“The Court: Well, the system in Pennsylvania is that the case does not come to the court for trial until the lawyers say they are ready for trial. And that date is what I said, November 12, 2003.
“Wilson Kauffman: I just mean from 1997 with the accident date until—
“The Court: That’s right and that’s why I am going into this because I don’t like when the perception out there is that it takes our courts here in Pennsylvania a long time to get the work done.”

As jury selection was progressing and while individual voir dire was being conducted of several other prospective jurors, Attorney Beckman once more initiated the following colloquy, this time at side-bar, with this court (N.T., jury selection, pp. 29-30):

“Mr. Beckman: Judge, I would like to put on the record right up front that I think it was inappropriate to have that speech directed at me about the timing of this case in front of this jury panel. I had nothing to do with why my client did not get this case to trial and I think it was inappropriate for the court to make the comments that were made, and to allow that one potential juror to stand up and make his speech as to why he felt it’s wrong for an accident that occurred in 1997 to come to this court.
“The Court: Mr. Beckman, as I said earlier, you ’re the one who invited that answer by asking that question that was so broad. That’s how that came up. And then you were the one who responded by placing it (the blame) on the court. It is the responsibility of the lawyers. We have nothing to do with when the cases come up.
“The only thing that I did not know the answer to was that question and I responded to that because this jury may be interested in hearing it. You’re the one that opened the door to it. That’s all that was said here ....”

Clearly, the record shows no evidence of bias, prejudice, or partiality on the part of this court, but only our effort to answer a prospective juror’s question and to clarify statements made by Attorney Beckman attributing responsibility to this court for any perceived delay in bringing this case to trial. We wanted to make it clear that a civil case does not come before the court until it is certified as ready for trial by counsel for the parties. Clearly, nothing was said by this court that was prejudicial to Mr. and Mrs. Kehler and/or the merits of their case.

The bottom line is that we are not persuaded that the jury’s verdict was impacted in any way by what transpired during jury selection, especially given the fact that juror no. 32 was stricken by agreement of counsel for cause and did not serve as a member of the trial jury; that the actual trial did not begin until November 3,2004, more than two and one half months later (with the consent of the parties), and that Mr. and Mrs. Kehler were represented by different counsel, Alisa P. Marion, Esquire, at the trial. Accordingly, we did not err in denying theirmotionto strike jury impaneled on August 17,2004.

Secondly, Mr. and Mrs. Kehler argue that the jury’s verdict should be set aside and a new trial granted on the basis that it was against the weight of the evidence. We strongly disagree.

In Pennsylvania, the decision as to whether to grant a new trial based on a weight of the evidence claim is within the sound discretion of the trial judge. Martin v. Evans, 551 Pa. 496, 502-503, 711 A.2d 458, 461 (1998). Anew trial based on a weight of the evidence claim will not be granted unless the verdict is so contrary to the evidence as to shock the court’s sense of justice. Daniel v. William R. Drach Co. Inc., 849 A.2d 1265, 1276 (Pa. Super. 2004); Nemirovsky v. Nemirovsky, 776 A.2d 988, 993 (Pa. Super. 2001). More importantly, a mere conflict in the testimony will not suffice as grounds for a new trial. Id.

In this case, Mr. and Mrs. Kehler presented testimony from Robert Singh M.D., an expert in the fields of sports medicine and emergency medicine. He testified that it was his opinion, within a reasonable degree of medical certainty, that Mr. Kehler had suffered a herniated disc as a result of the April 4,1997 collision. (N.T., trial, pp. 116-17.) In response, Mr. and Mrs. Carrasquillo presented expert testimony from Peter Feinstein M.D., an orthopedic surgeon, and from Todd Siegel M.D., a radiologist.

In his videotaped deposition testimony, Dr. Feinstein admitted that he initially agreed that Mr. Kehler had sustained a herniated disc at the C5-6 level as a result of “trauma,” and that it resulted from the April 4,1997 collision. (N.T., videotaped deposition of Peter Feinstein M.D., pp. 18, 19, 26, 28.) However, after defense counsel had sent him additional records which showed that Mr. Kehler had received chiropractic treatment over a two- to three-month period in 1995 following a minor motor vehicle collision, he could not now say with certainty whether that trauma was in the form of the 1995 motor vehicle collision or a “slip and fall” that Mr. Kehler sustained at work in 1998. (N.T., videotaped deposition of Peter Feinstein M.D., pp. 27-28, 29, 33.) Therefore, Dr. Feinstein was no longer of the opinion that the hemiated disc at C5-6 was caused by the April 4, 1997 collision. (N.T., videotaped deposition of Peter Feinstein M.D., pp. 27-28.) Dr. Feinstein attributed the change in his opinion, in part, to his belief that Mr. Kehler had not been truthful about his medical history at the time that he examined Mr. Kehler. (N.T., videotaped deposition of Peter Feinstein M.D., p. 24):

“One is he denied ever having any subsequent injuries to the automobile accident in 1997 and that’s not the truth. The second is that the nature of that injury in 1998 was sufficient in his own right to cause symptoms and problems as he presented to me when I did my independent medical evaluation, whether an accident occurred in 1997 ornot. So he’s got two issues here. One is he had problems before the accident and then he had an accident — another injury after the accident, both of which he denied.”

Moving on to Dr. Siegel, the record shows that he also agreed that Mr. Kehler had suffered a herniated disc at the C5-6 level. (N.T., videotaped deposition of Todd Siegel M.D., p. 34.) Flowever, Dr. Siegel was of the opinion that the herniation was caused not by trauma, but by progressive degeneration of the disc at C5-6. (N.T., videotaped deposition of Todd Siegel M.D., p. 34.) He testified that he based his opinion upon x-rays which were taken immediately after the 1995 motor vehicle collision, which showed mild degenerative disc disease already present at the C5-6 level. (N.T., videotaped deposition of Todd Siegel M.D., pp. 25,26,34.) According to Dr. Siegel, Mr. Kehler’s disc herniation was associated with the formation of “spurs,” and that chronic disc herniation was causing compression of his spinal cord. (N.T., videotaped deposition of Todd Siegel M.D., p. 36.) Dr. Siegel’s opinion, within a reasonable degree of medical certainty, was that Mr. Kehler’s herniated disc was attributable to a chronic degenerative process that pre-existed the April 4, 1997 collision, and that the x-rays did not show any progression in the degenerative process between 1995 and 1997. (N.T., videotaped deposition of Todd Siegel M.D., pp. 29, 36, 37.) As a result, the C5-6 disc herniation did not occur as a result of the April 4, 1997 collision. (N.T., videotaped deposition of Todd Siegel M.D., p. 142.)

Under Pennsylvania law, it is well settled that it is the jury’s duty to evaluate all of the evidence and to resolve questions of credibility and conflicts in the evidence; and, where a verdict is based on substantial, even though conflicting, evidence, it is conclusive. Stewart v. Owens-Corning Fiberglas, 806 A.2d 34 (Pa. Super. 2002); Vattimo v. Eaborn Truck Service Inc., 777 A.2d 1163 (Pa. Super. 2001). Here, the jury, after considering all of the evidence, including the testimony of Dr. Singh, Dr. Feinstein and Dr. Siegel, determined that Mr. and Mrs. Kehler had failed to meet their burden of proving by a preponderance of the credible evidence that the April 4, 1997 collision was a factual cause of the harm complained of.

Based upon our review of the record, we see no reason to disturb the jury’s verdict and, therefore, we reject their claim that the verdict was contrary to the weight of the evidence.

And so, for these reasons, we affirm our denial of Mr. and Mrs. Kehler’s motion for post-trial relief and respectfully request that this appeal be denied.

      . Mrs. Kehler asserted a separate claim for loss of consortium against both Mr. and Mrs. Carrasquillo.

      . All italicized language is for emphasis only.

      . See Pa.R.C.P. 227.1.

      . In their concise statement of matters complained of on appeal filed pursuant to Pa.R.A.P. 1925(a), Mr. and Mrs. Kehler allege:
      (a) The court erred in denying fheir motion to strike the jury impaneled on August 17, 2004; and
      (b) The jury was impermissibly prejudiced during the voir dire process on August 17,2004, and thus tendered a verdict that clearly shocks the conscience and must be set aside and a new trial granted.
      Since both of these two issues relate to what transpired at jury selection, we have elected to treat them as one in the interest of judicial economy.

      . We denied this motion after hearing oral argument on the morning of the first day.

      . This case was certified as ready for trial before Judge Jeffrey L. Schmehl, to whom this case was originally assigned, on November 12, 2003. On January 8, 2004, Judge Schmehl held a pretrial settlement conference with the parties. He subsequently reassigned this case to the undersigned, in his capacity as administrative head of the Civil Court, on February 4,2004, and scheduled jury selection for April 13, 2004. Attorney Beckman conveniently failed to inform the venire, that it was at the request of his office, that jury selection was continued from April 13,2004 to May 10,2004, and then at his request a second time from May 10,2004 to August 17,2004, the day that the jury was impaneled. Interestingly, it appears from the record that, based upon defense counsel’s cross-examination of Robert Singh M.D., Mr. and Mrs. Kehler’s expert witness, that his report was not submitted to their counsel until August 10,2004, these requested continuances were not based on conflicts with other trial attachments, as represented to this court, but because Attorney Beckman’s office was not ready for trial.

      . In their concise statement of matters complained of on appeal, Mr. and Mrs. Kehler allege, as a separate issue, that the jury’s failure to award damages was contrary to the law. However, as both issues are essentially the same, we will likewise treat them as one single issue for purposes of this appeal.

      . It is undisputed that Mr. Kehler did not receive any medical treatment whatsoever and was completely asymptomatic with regard to his cervical spine between December 1993, and April 4,1997. (N.T., videotaped deposition of Peter Feinstein M.D., p. 35.)


author: CARRAFIELLO, J,

text:
    Maiale v. Procaccino

      Robert R Stein, for plaintiff.

      Dante Rohr, for defendants.
    June 16, 2005
   CARRAFIELLO, J,

Eugene Maiale, plaintiff below, appeals the April 4, 2005 order of the Court of Common Pleas granting defendants, Virgil and Norma Procaccino’s, motion in limine to preclude the testimony of any expert witnesses on behalf of plaintiff and their motion for summary judgment.

FACTUAL AND PROCEDURAL HISTORY

Eugene Maiale (appellant) is the owner of a building comprising three residential trinity type townhouses located at 227 Fitzwaier Street in Philadelphia. In early 2002, Virgil and Norma Procaccino (appellees) purchased property located at 229 Fitzwater Street, which is adjacent to appellant’s property, to build their primary residence. Appellees arranged for the clearing of their property in preparation of the construction of their new home, yard and garden. This work included the demolition and removal of a garage located at the rear of their property, whose roof was attached to the wall forming the boundary with appellant’s property, and whose concrete floor provided an additional water barrier. Appellees replaced the garage with a garden and a retaining wall was built, under the supervision of appellant, consisting of a block wall extending six feet below grade butted against the entire length of appellant’s basement wall and sealed with bituminous water repellant material, wire lath and stucco.

Demolition of the existing structure was completed in April 2002, and the premises were occupied by appellees in June of2003. Appellant contends that when appellees demolished the garage in favor of a garden, the below-ground western wall of appellant’s property was exposed to damage from surface waters. Appellant filed a complaint with Licenses and Inspections and Nicholas Spinozzi, the inspector who investigated appellant’s complaint, concluded water was not leaking from appellees’ yard into appellant’s property.

Thereafter, appellant commenced this action by filing a writ of summons on September 5,2003. On October 8, 2004, the Honorable Judge Norman Ackerman issued a case management order which provided December 1, 2004 as the deadline for appellant to submit an expert report. On November 29,2004, appellant filed a motion for extraordinary relief and three days later appellant withdrew prior counsel, and current counsel entered his appearance. On December 15, 2004, Judge Ackerman granted appellant’s motion for extraordinary relief and postponed appellant’s expert report deadline to January 1,2005.

On February 11, 2005, appellees filed a motion in limine to preclude the testimony of any expert witnesses on behalf of plaintiff and a motion for summary judgment. Six days later, appellant served a copy of his expert report upon appellees. On April 4, 2005, after consideration of appellees’ motion and appellant’s response, this court granted appellee’s motion and granted summary judgment. This timely appeal followed.

LEGAL DISCUSSION

Appellant filed a timely 1925(b) concise statement of matters complained of on appeal, alleging that this court erred, “in granting [appelleejs’ motion for summary judgment, as there exists genuine issues of material fact.” Appellant further alleges this court erred, “In granting [appellees’] motion in limine to preclude the testimony of any expert witness on behalf of [appellant] based upon late submission for the following reasons: (a) there would be no prejudice to [appellee]; (b) [appellant] did not act in bad faith; (c) [appellant] did not violate any previous discovery order or court-imposed deadline warranting the harshest of sanctions.” For the following reasons, this court did not err in excluding appellant’s expert report and properly granted summary judgment in favor of appellees.

I. This Court Correctly Precluded Appellant From Introducing an Expert Report That Was Submitted 47 Days After the Deadline Imposed by Judge Ackerman

Appellant argues that this court should have permitted him to introduce his expert report and testimony at trial, in contravention of Judge Ackerman’s order requiring the report to be submitted:by January 1,2005. Pennsylvania courts have long recognized that judges of coordinate jurisdiction sitting in the same case should not overrule each others’ decisions. Okkerse v. Howe, 521 Pa. 509, 516, 556 A.2d 827, 831 (1989). This rule, known as the “coordinate jurisdiction rule,” is a rule of sound jurisprudence based on a policy of fostering the finality of pretrial applications in an effort to maintain judicial economy and efficiency. Id. See also, Golden v. Dion & Rosenau, 410 Pa. Super. 506, 510, 600 A.2d 568, 570 (1991). A court involved in the later phases of a litigated matter should not reopen questions decided by another judge of that same court or by a higher court in the earlier phases of the matter. Commonwealth v. Starr, 541 Pa. 564, 574, 664 A.2d 1326, 1331 (1995); see also, 21 C.J.S. Courts § 149a; 5 Am Jur.2d Appeal and Error §744. Departure from this principle is allowed only in exceptional circumstances such as where there has been an intervening change in the controlling law, a substantial change in the facts or evidence giving rise to the dispute in the matter, or where the prior holding was clearly erroneous and would create a manifest injustice if followed. See Musumeci v. Penn’s Landing Corporation, 433 Pa. Super. 146, 640 A.2d 540 (1994) (the coordinate jurisdiction rule applies in all cases except where newly-discovered evidence or newly-developed legal authority compel a result different than that reached by the first judge).

At the time Judge Ackerman entered his order, appellant had already obtained new counsel and there were no subsequent changed circumstances, newly-discovered evidence, or newly-developed legal authority to compel a different result. Appellant’s expert report was submitted on February 17,2005,47 days late, and within weeks of trial. There was no compelling reason for this court to question or undermine Judge Ackerman’s explicit scheduling order.

On the merits of appellant’s argument, the Pennsylvania Supreme Court has held that, in determining whether to preclude an expert’s testimony at trial when that expert was not identified in interrogatories, the trial court must examine: (1) whether the non-offending party was prejudiced; (2) the merit of the offending party’s excuse for not identifying the expert; and (3) the importance of the excluded testimony. Feingold v. SEPTA, 512 Pa. 567, 517 A.2d 1270 (1986). Appellant failed to offer any meritorious excuse for disobeying Judge Ackeiman’s order as he had already obtained new counsel prior to the entry of the order. Appellant argues that, “ [appellee] s will in no way suffer prejudice due to the fact that [appellee]s’ expert opinions were proffered prior to [appellant] ’s deadline.” See appellant’s response to appellees’ motion for summary judgment, memorandum of law, p. 4. However this court found appellees would be prejudiced by the late submission due to the close proximity to trial and the need to prepare for cross-examination. While the expert report is important, appellant was given every reasonable opportunity to comply with the case management schedule, and indeed could have petitioned for additional extraordinary relief but failed to do so. Thus, the expert report and testimony contained therein were properly excluded.

II. Summary Judgment Was Properly Granted

Appellant also argues that this court erred in granting appellees’ motion for summary judgment, “as there exists genuine issues of material fact.” Summary judgment may be granted whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense. Pa.R.C.P. 1035.2.

This Commonwealth adheres to the common law or “common enemy” rule that regards surface waters as a common enemy which every landowner must fight to get rid of as best he may. Tom Clark Chevrolet v. Pennsylvania Department of Environmental Protection, 816 A.2d 1246, 1252 (Pa. Commw. 2003). A landowner is liable for the effects of surface waters only where he either (a) artificially diverts the water from its natural channel, or (b) unreasonably or unnecessarily increases the quantity or changes the quality of water discharged from his property. Id. at 1253. Failure to control the surface waters discharged through a natural channel as a result of the ordinary and reasonable development of the land is not negligence. Id. at 1254.

Appellees offered the expert testimony of Jon J. Hare, R.A., P.E., P.P, in support of their motion for summary judgment wherein Mr. Hare concluded that appellees took all necessary precautions to protect the party wall foundation between 229 Fitzwater Street and 227 Fitzwater Street. By converting the garage into a garden, appellees have not artificially diverted the waters but simply restored the land and the flow of water over and through the land to its natural state. Appellees’ expert supports the contention that appellees are not liable under the “common enemy” rule.

Appellant only briefly addressed appellees’ arguments in his response to the motion. The full response is as follows:

“In order for [appellee] s to prevail in their motion for summary judgment, they must prove that no issues of material fact exist as to [appellee]s’ negligence. [Appellees], in both their moving papers and expert report, contend that other factors partially or fully contributed to the damage in question. This, in and of itself, raises issues of material fact and credibility, both of which are squarely within the province of the jury.” See appellant’s response to appellees’ motion for summary judgment, memorandum of law, p. 3. (emphasis added) Thus, appellant argues that appellees’ moving papers create genuine issues of material fact.

However, once a sufficient quantum of evidence has been presented establishing the moving party’s entitlement to summary judgment, the burden shifts to the opposing party or parties to demonstrate that the trial would not be a fruitless exercise. Community Medical Services v. Local No. 2665, 292 Pa. Super. 238, 437 A.2d 23 (1981). See also, Brooks v. Joymar Corp., 2 D.&C.4th 387, 389 (1989). Following a prima facie showing by the movant for summary judgment, summary judgment should be granted unless the opposing party offers competent evidence admissible at trial showing that there is a genuine issue as to a material fact. Community Medical Services, 292 Pa. Super, at 238, 437 A.2d at 27.

Although appellant argues that appellees’ “moving papers and expert report” created issues of material fact, appellees’ assertions actually presented enough evidence to show their entitlement to summary judgment to shift the burden to appellant to dissuade this court from granting the same. Appellant has not met this burden.

Appellees’ submissions demonstrate that they replaced the garage with a garden and built a retaining wall, under the supervision of appellant, consisting of a block wall extending six feet below grade, butted against the entire length of appellant’s basement wall and sealed with bituminous water repellant material, wire lath and stucco. The L & I inspector concluded that no water was leaking into appellant’s property from appellees’ yard and the expert report of Mr. Hare concluded that appellees took all necessary precautions to protect the party wall foundation between 229 Fitzwater Street and 227 Fitzwater Street. Appellees did not artificially divert the water from its natural channel, or unreasonably or unnecessarily increase the quantity or change the quality of water discharged from their property. See Tom Clark Chevrolet, 816 A.2d at 1253. Failure to control the surface waters discharged through a natural channel as a result of the ordinary and reasonable development of the land is not negligence. Id. at 1254.

Appellant failed to rebut, disprove, or otherwise show a genuine issue of fact exists as to any of the contentions contained in appellees’ motion for summary judgment. Appellant failed to demonstrate any evidence showing that there were defects in appellees’ construction, or that appellees should have taken any additional precautions. Appellant chose to rest upon the submissions of appellees in attempting to demonstrate that a genuine issue of material fact existed. Under these circumstances, this court is hard-pressed to find that converting a garage into a garden is somehow “unreasonable” under the common enemy rule.

Lastly, there is nothing in appellant’s precluded expert report which would create a genuine issue of material fact if it were admitted. As it was proper for this court to grant appellees’ petition and enter summary judgment, this court’s order of April 4, 2005, should be affirmed.

      . The case was assigned to the “March trial pool,” and would likely have been tried in this court during the month of March 2005. See docket.