concluding visitor to home under construction did not appreciate risk of falling through insulation board covering porch, precluding summary judgment, even though she may have assumed certain risk in crossing plank over open excavation ditch to get to the porch
How later courts described this case
- concluding visitor to home under construction did not appreciate risk of falling through insulation board covering porch, precluding summary judgment, even though she may have assumed certain risk in crossing plank over open excavation ditch to get to the porch
- explaining courts are reluctant to find assumption of the risk unless it is “quite clear that the specific risk that occasioned injury was both fully appreciated and voluntarily accepted”
- explaining courts are reluctant to find assumption of the risk unless "quite clear that the specific risk that occasioned injury was both fully appreciated and voluntarily accepted"
- “[A]s the doctrine has not been formally abolished by our Supreme Court, we are obligated to apply the doctrine despite its less than wholehearted support.”
Written by the judges who cited it.
The opinion
*579 JOHNSON, J.,
Concurring and Dissenting:
¶ 1 I join my colleagues in so much of the well-reasoned majority opinion as would reverse the order granting summary judgment on the basis of the doctrine of assumption of the risk. The trial court’s alleged error in granting summary judgment on this basis is the only issue presented to this Court on this appeal. Nevertheless, James and Barbara Giuntoli, the appellees, argue that even if the trial court was wrong on its analysis of the assumption of the risk, the Giuntolis are entitled to prevail on the basis that they were not in possession of the land upon which the plaintiffs injuries occurred. However, the Giuntolis have not brought a cross-appeal to this Court. The very issue that they ask us to review was included in the matters presented to the trial court but expressly not considered or decided by that court. I believe we are precluded from reviewing this issue and, accordingly, I must respectfully dissent.
¶ 2 Amy S. Bullman, plaintiff, filed the only appeal from the order granting summary judgment. She asks us to consider only one issue. Her Statement of Question Involved sets forth:
WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT ON THE BASIS OF ASSUMPTION OF THE RISK WHERE THERE EXISTED A MATERIAL ISSUE OF FACT AS TO WHETHER THE PLAINTIFF, A VISITOR TO A RESIDENTIAL CONSTRUCTION SITE, SUBJECTIVELY KNEW THAT A PLANK PROVIDING ACCESS WOULD MOVE, CAUSING HER TO LOSE HER BALANCE, STEP ONTO AND FALL THROUGH BOARDS, WHICH APPEARED TO BE WEIGHT-BEARING AND COVERED A PORCH, INTO THE BASEMENT AND BECOME A PARAPLEGIC?
Brief of Appellant at 3. The Giuntolis attempt to inject a second issue into the appeal by setting forth what they describe as a “Counter[-]statement of the Questions Involved,” as follows:
II. WERE DEFENDANTS GIUNTO-LI ENTITLED TO SUMMARY JUDGMENT SINCE AS EMPLOYERS OF AN INDEPENDENT CONTRACTOR, THEY WERE NOT IN POSSESSION OF THE LAND AND CANNOT BE HELD LIABLE FOR INJURIES RESULTING FROM WORK, PERFORMED THEREON [?].
(NOT ANSWERED BY THE COURT BELOW)
Brief of Appellees James and Barbara Gi-untoli at 1.
¶ 3 Both Bullman and Heinz C. Augustine have objected to the Giuntolis’ attempt to engage this Court in a matter not addressed by the trial court, albeit for different reasons. In his Reply Brief, Augustine, the contractor on the job-site where Bullman sustained injury, correctly argues that the Honorable Thomas J. Doerr made no findings of fact at any stage of the proceedings in the trial court regarding who was in possession of the premises at the time of Bullman’s fall. Reply Brief for Appellee [Augustine] at 4. I agree with Augustine that it is inappropriate for this Court to undertake the resolution of this issue that necessarily demands factual findings. See Commonwealth v. Glover, 497 Pa. 433 , 441 A.2d 1216, 1217 (1982) (quoting Reed v. Universal C.I.T. Credit Corp., 434 Pa. 212 , 253 A.2d 101, 104 (1969) (declaring that a reviewing court does not sit as trier of issues of fact and will not invade the trial court’s area of judicial process)). Before Judge Doerr, Augustine had argued that he should not be found to have been in possession of the premises at the time of Bullman’s fall. Reply Brief [Augustine] at 4. He correctly asserts on appeal that Judge Doerr did not reach the issue of possession in his analysis disposing of the motion for summary judgment. See id.
¶ 4 Bullman argues similarly. She contends, and I agree, that it is inappropriate *580 for the Giuntolis to raise an issue that was not presented in Bullman’s brief and, further, was not an issue addressed by Judge Doerr in his opinion that formed the basis of the appeal. Reply Brief [Bullman] at 1.
¶ 5 An appellee may not raise issues on appeal not raised by the appellant except by filing a cross appeal. See Sateach v. Beaver Meadows Zoning Hearing Board of Appeals, 676 A.2d 747, 751 (Pa.Cmwlth.1996). Where an appellee addresses an issue on appeal not raised by the appellant and not addressed in a cross-appeal, the issue is deemed waived. Id.; Barnes v. McKellar, 434 Pa.Super. 597 , 644 A.2d 770 , 777 n. 5 (1994) (holding request by party as appellee will not be considered where party did not include such request in brief as appellant and no cross-appeal filed).
¶ 6 Our Supreme Court has refused to consider the arguments of an appellee contesting a trial court ruling where appellee took no appeal from the trial court’s order. See City of Philadelphia, Tax Review Bd. v. Manheim Laundry Co., 398 Pa. 265 , 157 A.2d 372, 374 (1960) (declining to address arguments raised by City of Philadelphia concerning taxation of allegedly non-taxable laundry services, where city failed to file cross-appeal from order imposing partial tax). Accord Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226 , 478 A.2d 800, 804 (1984) (holding mother/ap-pellee precluded from raising issue concerning trial court’s failure to interview children where no cross-appeal taken). See also Pennsylvania Human Relations Comm’n. v. Chester Hous. Auth., 458 Pa. 67 , 327 A.2d 335 , 338 n. 12 (1974) (holding housing authority precluded from raising issues decided adversely to it by Commonwealth Court where no appeal taken by authority/appellee).
¶ 7 Similarly, our Court has refused to entertain issues presented by the appellee, where no cross-appeal has been filed. See and compare Osborne v. Carmichaels Mining Machine Repair, Inc., 427 Pa.Super. 159 , 628 A.2d 874 , 877 n. 3 (1993) (holding estate administratrix/appellee cannot raise issue concerning propriety of deduction of good will asset from amount due under stock redemption agreement where no cross-appeal filed as permitted under Pa.R.A.P. 903(b)) with Arcidiacono v. Timeless Towns of the Americas, Inc., 363 Pa.Super. 528 , 526 A.2d 804 , 806 n. 2 (1987) (concluding appellee’s allegation of trial court error in charging jury not before this Court where no cross-appeal filed) and Philadelphia Bond & Mortgage Co. v. Highland Crest Homes, Inc., 235 Pa.Super. 252 , 340 A.2d 476 , 479 n. 1 (1975) (rejecting appellee’s attempt to raise an issue concerning corporate defendant’s liability on a judgment note where individual defendanVappellant had not raised the matter and appellee had not filed a cross-appeal).
¶ 8 Our scope of review, when reviewing a grant of summary judgment, is limited to determining whether there was an error of law or a clear abuse of discretion by the trial court. Tenaglia v. Proctor & Gamble, Inc., 737 A.2d 306, 307 (Pa.Super.1999). I agree with my colleagues that the trial court erred in granting summary judgment on the basis of assumption of the risk. That ends our task and completes our responsibility. Here, where Judge Doerr did not address the issue that the Giuntolis are raising, there can be no error of law or abuse of discretion for this Court to review in that regard. Having determined that the trial court has erred in deciding the only issue properly before us, the only course is to remand the matter for further proceedings. Upon remand, this Court should refrain from indicating what conclusions might properly be drawn in the event the Giuntolis renew their request for summary judgment based on the alternate theory of owners out of possession, a theory that the trial court has not yet addressed. See Frey by Frey v. Smith by Smith, 454 Pa.Super. 242 , 685 A.2d 169, 173 (1996) (quoting Clevenstein v. Rizzuto, 439 Pa. 397 , 266 A.2d 623, 626 (1970) (holding reversal of grant of demurrer does not indicate any conclusion as to what decision *581 should be, after development of all the facts)). Under our scope of review, all this Court is authorized to declare is that summary judgment should not have been granted based upon a theory of assumption of the risk. See Id.
¶ 9 My colleagues invoke Gilbert v. Kor-vette’s, Inc., 457 Pa. 602 , 327 A.2d 94 , 96 n. 5 (1974) as support for engaging in an issue not addressed by the trial court. I can agree that a reviewing court may, under certain circumstances, affirm the trial court on a different basis than that advanced by the trial court. Donnelly v. Bauer, 553 Pa. 596 , 720 A.2d 447, 454 (1998); Boyer v. Walker, 714 A.2d 458 , 463 n. 10 (Pa.Super.1998) (affirming trial court order granting summary judgment). However, I am unaware of any cases where this Court or our Supreme Court undertook to consider an issue not addressed by the trial court in reversing the trial court order. The cases cited by my colleagues in footnote 7 of the majority opinion do not support a proposition entitling a reviewing court to entertain issues not addressed by the trial court while reversing an order granting summary judgment. Boyer, 714 A.2d at 463 n. 10 and Fennell v. Nationwide Mutual Fire Insurance Co., 412 Pa.Super. 534 , 603 A.2d 1064 (1992) both involve matters where this Court affirmed an order granting summary judgment, thereby concluding the case, barring further appeal. In Gutman v. Giordano, 384 Pa.Super. 78 , 557 A.2d 782 (1989), this Court addressed the trial court’s reliance on the doctrine of res judi-cata even though the appellant sought to argue that the trial court had erred on an issue of the statute of limitations. Id. at 783. In reversing the order granting summary judgment, the Gutman court was steadfast in limiting its analysis to the only issue upon which the trial court had relied in granting judgment. Id. None of these cases permit a reasonable inference that a reviewing court, while reversing on the only issue brought before it, may consider sua sponte matters not addressed by the trial court but raised by a non-appealing party in an appellee’s brief in violation of Pa.R.A.P. 2112 and 2116(a).
¶ 10 My colleagues have felt “compelled to review and assess the Giuntolis’ argument” relying solely on a principle of law inapplicable to matters where the trial court order is being reversed. Majority Opinion at 574. After stating that this Court is empowered to affirm the trial court on any basis, my colleagues proceed to find certain facts based upon their “review of the record” and then conclude that they are unable to affirm the granting of summary judgment on the theory propounded by the Giuntolis. In my view, this analysis violates the rule of law upon which my colleagues enter into their review and intrudes upon the proper role of the trial court as the exclusive fact-finder. Donnelly, 720 A.2d at 454 ; Reed, 253 A.2d at 104 .
¶ 11 For all of the above reasons, I must respectfully dissent from so much of my esteemed colleagues’ decision as undertakes an analysis of an issue that has not been presented by the appellant but has merely been submitted as a “counter-statement” by an appellee who has not filed a cross-appeal.