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J. S51024/11 2011 PA Super 217 GEORGE AND JACKIE CASSELBURY, Appellants v. AMERICAN FOOD SERVICE, Appellee : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA

No. 217 MDA 2011

Appeal from the Order entered December 29, 2010, Court of Common Pleas, Bradford County, Civil Division at No. 584 CV 2007 BEFORE: GANTMAN, DONOHUE and MUNDY, JJ. OPINION BY DONOHUE, J.: Appellants, Casselbury ("Mrs. George Casselbury ("Mr. Filed: October 12, 2011 Casselbury") and and Jackie Mr.

Casselbury"

individually,

collectively

with

Casselbury, "the Casselburys"), appeal from the trial court's December 29, 2010 order granting summary judgment in favor of Appellee, American Food Service ("AFS"). We reverse and remand. The record reflects that Mr. Casselbury worked at the OSRAM/Sylvania ("OSRAM") industrial plant in Towanda, Pennsylvania. Pursuant to a

contract between OSRAM and AFS, AFS provided food services at the OSRAM cafeteria. On July 24, 2006, Mr. Casselbury slipped and fell while walking near a dumpster outside the OSRAM plant, suffering injuries. Mr. Casselbury believed he slipped on cooking oil that was leaking from the dumpster. Subsequently, the Casselburys initiated this tort action against AFS, alleging

J. S51024/11 that AFS breached its duty to dispose of cooking oil properly, and that AFS' breach of its duty caused physical injuries to Mr. Casselbury. Casselbury asserted a loss of consortium claim. After the parties conducted discovery, AFS filed a motion for summary judgment pursuant to Pa.R.C.P. 1035.2. The trial court heard oral argument on May 7, 2010 and granted AFS' motion on December 29, 2010. timely appeal followed.1 The Casselburys raise three arguments for our review: A. Whether [the Casselburys] have put forth sufficient evidence to establish that [AFS] owed a duty to [Mr. Casselbury] and such duty was breached? The record reveals that the Casselburys failed to serve a copy of the notice of appeal on the trial court in accordance with Pa.R.A.P. 906(a)(2). Accordingly, the trial court never entered an order pursuant to Pa.R.A.P. 1925. Upon learning of the Casselburys' failure to serve a copy of the notice of appeal, the trial court issued an opinion suggesting that this Court remand the matter to the trial court for the issuance of an opinion addressing the Casselburys' appellate issues. Trial Court Opinion, 2/7/11, at 1-2. When an appellant fails to serve the notice of appeal on the trial court per Rule 906(a)(2), this Court has discretion to take any appropriate action, including a remand to the trial court for the completion of omitted procedural steps. Meadows v. Goodman, 993 A.2d 912, 914 (Pa. Super. 2010) (citing Pa.R.A.P. 902). The appellant's lack of compliance with Rule 906(a)(2) does not affect the validity of the appeal, however, and a remand is not required. Id. In the instant matter, the trial court issued an opinion on December 29, 2010 accompanying its order granting summary judgment in favor of AFS. That opinion addresses the issues the Casselburys raise in this appeal. While we do not condone the Casselburys' procedural error, we conclude that a remand is unnecessary because the error has not hampered this Court's review. -21

Mrs.

This

J. S51024/11 B. Whether [the Casselburys] have established a genuine issue of material fact, through the witness' testimony, so as to preclude the granting of summary judgment? C. Whether the expert report of Kenneth T. Vail, in and of itself, should have preclude [sic] the granting of summary judgment? The Casselburys' Brief at 2. Each of the Casselburys' issues challenges the trial court's finding that no triable issue of fact exists as to whether AFS owed a duty to Mr. Casselbury and breached it. issues together. We will therefore address the Casselburys'

Rule 1035.2 provides that summary judgment is

appropriate under the following circumstances: (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) 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. Pa.R.C.P. 1035.2. We review the trial court's order granting summary judgment according to the following standard: When considering a motion for summary judgment, the trial court must take all facts of record and reasonable inferences therefrom in a light most favorable to the non-moving party. In so doing, the

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J. S51024/11 trial court must resolve all doubts as to the existence of a genuine issue of material fact against the moving party, and, thus, may only grant summary judgment where the right to such judgment is clear and free from all doubt. On appellate review, then, an appellate court may reverse a grant of summary judgment if there has been an error of law or an abuse of discretion. But the issue as to whether there are no genuine issues as to any material fact presents a question of law, and therefore, on that question our standard of review is de novo. This means we need not defer to the determinations made by the lower tribunals. Summers v. Certainteed Corp., 606 Pa. 294, 307, 997 A.2d 1152, 1159 (2010) (internal citations and quotation marks omitted). In order to prevail on a negligence cause of action, Mr. Casselbury must establish that AFS owed him a duty, that AFS breached that duty, and that Mr. Casselbury suffered damage as a result of AFS' breach. See

Merlini v. Gallitzin Water Auth., 602 Pa. 346, 354, 980 A.2d 502, 506 (2009). The Casselburys argue that AFS' duty in this case arises from the contract between AFS and OSRAM. The Casselburys rely on

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