Finley, E. v. Kencor, Inc.

• Court: Superior Court of Pennsylvania
• Decided: March 5, 2025
• Docket: 2148 EDA 2023
• Status: Unpublished

Opinion

J-S40031-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

ERICA FINLEY : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : KENCOR, INC., KEYSTONE PROPERTY : No. 2148 EDA 2023 GROUP, ELEVATOR CODE : INSPECTIONS, INC., AMERIHEALTH : NORTHEAST, LLC, AMERIHEALTH : ADMINISTRATORS, INC., : AMERIHEALTH SERVICES, INC., 300 : AIRPORT KPG III, LLC, C&D : SECURITY MANAGEMENT, INC. : UNIVERSAL PROTECTION SERVICES, : LLC, C&D ENTERPRISES, INC., 200 : AIRPORT KPG III, LLC, GAL : MANUFACTURING COMPANY, LLC, : VANTAGE ELEVATOR SOLUTIONS :

Appeal from the Order Entered July 17, 2023 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 191200047

BEFORE: STABILE, J., McLAUGHLIN, J., and LANE, J.

MEMORANDUM BY LANE, J.: FILED MARCH 5, 2025

Erica Finley (“Finley”) appeals from the order denying her post-trial

motion to remove the nonsuit entered in favor of Kencor, Inc. (“Kencor”),

Keystone Property Group (“Keystone”), and 200 Airport KPG III, LLC (“200

Airport”) (collectively, the “Defendants”). 1 We affirm. ____________________________________________

1 “Where a court has entered a judgment of compulsory nonsuit, the appeal

lies not from the entry of the judgment itself, but rather from the court’s (Footnote Continued Next Page) J-S40031-24

On December 2, 2019, Finley commenced this personal injury action by

complaint against, inter alia, the Defendants.2 Finley alleged that, on June 6,

2018, the Defendants’ negligent maintenance of an elevator in an office

building located at 200 Stevens Drive, Philadelphia (the “Building”), caused

the elevator door to “suddenly and without warning close[]” on Finley, leading

to injuries to her right arm. First Amended Complaint, 5/29/20, at ¶ 70.

200 Airport owns the Building, and Keystone is the property manager

for the Building. Kencor performed maintenance on the elevators at the

Building pursuant to a maintenance agreement with Keystone. On the date

of the incident, Finley was an employee of AmeriHealth Caritas

(“AmeriHealth”), which leased the Building from 200 Airport.

This matter proceeded to a jury trial in March 2023. Finley testified

that, on June 6, 2018, she was entering Elevator 1 in the lobby of the Building

to return to her office, when the elevator door “slammed” on her right thumb,

causing her right arm to twist. N.T., 3/21/23, at 118, 120. Finley described

the force from the elevator door as “a fast slam.” Id. at 122. James Filippone

(“Filippone”), Finley’s expert witness in elevator maintenance and elevator

accident reconstruction, opined that Elevator 1’s “doors closed too fast on

____________________________________________

refusal to remove it.” Baird v. Smiley, 169 A.3d 120, 122 n.1 (Pa. Super. 2017) (citation omitted). 2 None of the other named defendants remained in this action at the time of

trial. The trial court granted the unopposed summary judgment motion brought by GAL Manufacturing Company, LLC and Vantage Elevator Solutions, and Finley stipulated to the dismissal of the remaining defendants.

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[Finley] and she injured her hand” as a result. Finley’s Post-Trial Motion to

Remove Nonsuit, 3/28/23, Exhibit D, at 30 (Filippone testifying via video

deposition);3 see N.T., 3/22/23, at 30-32, 37-38 (Finley stipulating to

Filippone’s expert qualifications and playing his video deposition).

We now review the evidence related to whether the Defendants’ actual

or constructive knowledge of any issues with the door closing speed for

Elevator 1. Finley testified she rode the elevators in the Building regularly

from 2012, when she began working at AmeriHealth, through the date of the

incident at issue. See N.T., 3/21/23, at 108, 158. Finley stated she had

never experienced any issues with Elevator 1 prior to June 8, 2018, and she

was not aware of any instances when the doors of Elevator 1 improperly closed

on others. See id. at 159. Finley’s expert, Filippone, did not offer an opinion

regarding whether the Defendants were or should have been on notice

regarding Elevator 1’s allegedly unsafe door speed.

Roland Chase (“Chase”), AmeriHealth’s security manager, testified he

reviewed the Building’s security video coinciding with the instances when

Finley swiped her security card to enter the lobby area on June 6, 2018. See ____________________________________________

3 We observe that only four pages of Filippone’s video deposition transcript appear in the certified record for this appeal. See Finley’s Post-Trial Motion to Remove Nonsuit, 3/28/23, Exhibit D (reproducing pages 30 to 32 of the Filippone deposition transcript); Defendants Keystone and 200 Airport’s Opposition to Finley’s Post-Trial Motion, 4/6/23, Exhibit 1 (reproducing page 53 of the Filippone deposition transcript); see also Pa.R.A.P. 1921, note (providing that an “appellate court may consider only the facts which have been duly certified in the record on appeal” and “[u]ltimate responsibility for a complete record rests with the party raising” the appellate issue).

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id. at 46, 50-51. Chase stated he did not observe any issues on the video

related to the operation of the elevators, and he did not report any problems

with the elevators to Keystone. See id. at 73-74. Chase testified that Finley

informed him that her thumb “got caught” in the elevator doors, not that the

doors closed on her. Id. at 69, 77.

Wendy Williams (“Williams”), a leave specialist at AmeriHealth, met with

Finley on June 8, 2018, and completed a Workers’ Compensation incident

report documenting their conversation. See id. at 78-81. Williams testified

that Finley informed her that “her hand got stuck in the elevator.” Id. at 83-

84. Williams did not report to her supervisor any issues with the operation of

Elevator 1 following her conversation with Finley. See id. at 85-86.

Michael McQuaid, Keystone’s property manager for the Building,

testified that Elevator Code Inspections, Inc. (“ECI”) performed a semi-annual

inspection of the Building’s elevators on April 17, 2018. See id. at 87, 94-95,

103. The April 23, 2018 inspection report ECI provided to McQuaid revealed

no deficiencies with the operation of the elevators at the Building. See id. at

104. McQuaid testified that he was not aware of any issues with Elevator 1 in

the months prior to the June 6, 2018 incident. See id. at 103.

In her case in chief, Finley presented the testimony of two Kencor

employees as on cross-examination: Jason Marvel (“Marvel”), an elevator

mechanic, and Matthew Hollinshead (“Hollinshead”), the service manager.

See N.T., 3/22/23, at 46, 99. Pursuant to its contract with Keystone, Kencor

performed monthly preventive maintenance on the elevators in the Building

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and responded to maintenance calls when issues with the elevators arose.

See id. at 46-47, 100-04. Both Marvel and Hollinshead denied receiving any

reports that the elevator doors on Elevator 1 were closing too quickly, either

before or after the June 6, 2018 incident. See id. at 80-81, 127, 133.

Marvel stated he visited the Building on March 5, 2018, in response to

a maintenance call report that the doors of Elevator 1 were intermittently

failing to open on the third floor. See id. at 59-61, 81. During the

maintenance call, Marvel physically inspected Elevator 1, checked Elevator 1’s

fault log and found no faults, rode on the elevator for several hours, and

monitored it from the machine room. See id. at 63-64, 82-84. After nearly

five hours of testing, Marvel was unable to recreate the “door not opening

issue.” Id. at 64, 85. Marvel stated that, if the doors had closed too quickly

for the manufacturer’s specifications, a fault would appear in the fault log.

See id. at 94-95.

Ultimately, Marvel determined that Elevator 1 was safe and placed it

back into service. See id. at 93. Crucially, Marvel and Hollinshead reported

that the March 5, 2018 call did not provide any indication that there were any

issues with Elevator 1’s door closing speed. See id. at 97-98 (Marvel stating

that the March 5, 2018 call was for “the exact opposite” issue and “had nothing

to do with the door closing at all”), 130 (Hollinshead stating that the

maintenance call did not relate to the closing speed of Elevator 1’s doors and

would have given Marvel no reason to check the door closing time).

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After the March 5, 2018 service call, Marvel performed regular monthly

maintenance visits at the Building on March 20, April 17, and May 15, 2018.

See id. at 87-90. At each of these visits, Marvel visually inspected the

elevator doors closing to ensure that they did not close too quickly and

checked the fault logs for each elevator. See id. at 76-79. Marvel discovered

no issues with respect to the operation of the elevators during the March,

April, and May monthly visits. See id. at 87-90.

Hollinshead testified that, to comply with the maximum kinetic force

requirement set forth in the applicable safety code, Elevator 1’s minimum door

closing time was 1.69 seconds. See id. at 105-08. While Hollinshead

conceded that Kencor’s elevator mechanics did not time the elevator doors

closing with a stopwatch during monthly visits, he stated that mechanics were

able to ensure code compliance by confirming that the elevator doors did not

close in less than two seconds. See id. at 111-12, 125. Hollinshead testified

that he relied on ECI to calculate and test the kinetic force generated by

elevator doors, in accordance with the provisions of the code. See id. at 115-

17. Hollinshead reiterated that ECI reported no deficiencies in the operations

of the Building’s elevators in its April 23, 2018 semi-annual inspection report.

See id. at 131-33.

Following the close of Finley’s case in chief, the Defendants moved for

nonsuit on the basis that Finley did not present evidence showing that they

had actual or constructive notice of a dangerous condition with respect to

Elevator 1. See N.T., 3/23/23, at 49-50. The trial court granted the motion

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for nonsuit. See id. at 117; see also Order, 3/23/23. Finley filed a timely

post-trial motion to remove the nonsuit, which the trial court denied. Finley

filed a timely notice of appeal. Both she and the trial court have complied

with Pa.R.A.P. 1925.

Finley presents the following issues for our review:

1. Did the trial court [] abuse its discretion and commit errors of law in not permitting [Finley] to put on all of the evidence in [Finley’s] case in chief?

2. Did the trial court err[] in granting the non-suit where [Finley] testified that she was injured as a result of the elevator door malfunctioning, crushing [Finley’s] thumb, not allowing her body to pass through the elevator door without injury?

3. Did the trial court err[] and abuse its discretion in granting the [Defendants’] motion for a non-suit?

4. Did the trial court err[] in not granting [Finley’s] post[-]trial motion to remove the non-suit filed on March 28, 2023?

Finley’s Brief at 3 (unnecessary capitalization omitted).

In her first issue, Finley purports to challenge the trial court’s exclusion

of evidence that she sought to raise in her case in chief. However, Finley fails

to mention this issue, let alone develop it in any meaningful manner, in the

argument section of her brief. Therefore, Finley has waived this issue. See

Purple Orchid, Inc. v. Pennsylvania State Police, 813 A.2d 801, 804 (Pa.

2002) (stating that appellant waives issue in statement of questions if it does

not otherwise develop issue in body of appellate brief).

In her remaining three issues, which she presents in a single

consolidated section in her brief, Finley challenges the trial court’s grant of

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nonsuit in favor of the Defendants. We review an order denying a motion to

remove a nonsuit to determine if the trial court committed an abuse of

discretion or error of law. See Baird, 169 A.3d at 124.

A trial court may enter a compulsory nonsuit on any and all causes of action if, at the close of the plaintiff’s case against all defendants on liability, the court finds that the plaintiff has failed to establish a right to relief. Absent such finding, the trial court shall deny the application for a nonsuit. On appeal, entry of a compulsory nonsuit is affirmed only if no liability exists based on the relevant facts and circumstances, with appellant receiving the benefit of every reasonable inference and resolving all evidentiary conflicts in appellant’s favor. The compulsory nonsuit is otherwise properly removed and the matter remanded for a new trial.

Scampone v. Highland Park Care Center, LLC, 57 A.3d 582, 595-96 (Pa.

2012) (citations, quotation marks, and brackets omitted).

To prevail in a negligence action, a plaintiff must prove that the

defendant “owed a duty of care to the plaintiff, that duty was breached, the

breach resulted in the plaintiff’s injury, and the plaintiff suffered an actual loss

or damages.” Collins v. Philadelphia Suburban Development Corp., 179

A.3d 69, 73 (Pa. Super. 2018) (citation omitted). A possessor of land owes a

duty to protect invitees4 from a dangerous condition on the land only if the

possessor:

4 It is undisputed that Finley was a business invitee at the Building on June 6,

2018. “A business invitee is a person who is invited to enter or remain on the land of another for a purpose directly or indirectly connected with business dealings with the possessor of the land.” Emge v. Hagosky, 712 A.2d 315, 317 (Pa. Super. 1998). “The duty owed to a business invitee is the highest duty owed to any entrant upon land.” Id.

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(a) knows or by the exercise or reasonable care would discover the condition, and should realize that it involves an unreasonable risk to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

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

Marshall v. Brown’s IA, LLC, 213 A.3d 263, 270 (Pa. Super. 2019) (citation

omitted); see also Restatement (Second) of Torts § 343.

This Court has explained:

An invitee must present evidence proving either the possessor of the land had a hand in creating the harmful condition, or he had actual or constructive notice of such condition. What constitutes constructive notice depends on the circumstances of the case, but one of the most important factors to consider is the time that elapsed between the origin of the condition and the accident.

Collins, 179 A.3d at 74 (citations, brackets, and quotation marks omitted).

A plaintiff may establish constructive notice of a harmful condition through

evidence that the condition is “of a type with an inherently sustained duration,

as opposed to a transitory” condition and testimony of a witness that they

observed the defect immediately before or after the relevant incident. See

Neve v. Insalaco’s, 771 A.2d 786, 791 (Pa. Super. 2001). “[W]here the

condition is one which the owner knows has frequently recurred, the jury may

properly find that the owner had actual notice of the condition, thereby

obviating additional proof by the invitee that the owner had constructive notice

of it.” Myers v. Penn Traffic Co., 606 A.2d 926, 929 (Pa. Super. 1992) (en

banc) (citation omitted).

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Additionally, our Supreme Court has held that an elevator maintenance

company that “undertakes by contract to make periodic examinations and

inspections of equipment” may be liable to third parties injured on an elevator

if the “defective or dangerous condition” that caused the injury was

“discoverable by reasonable inspection.” Evans v. Otis Elevator Co., 168

A.2d 573, 576-77 (Pa. 1961) (affirming jury verdict in favor of plaintiff injured

by falling board in elevator, where witnesses noticed protruding sideboards in

the days prior to the incident and expert opined that a competent inspector

would have ascertained that the sideboards were at risk of colliding with

counterweight); see also Williams v. Otis Elevator Co., 598 A.2d 302, 303-

04 (Pa. Super. 1991) (upholding jury verdict in favor of plaintiff injured when

elevator suddenly lurched as she was exiting, where evidence showed a

“steadily increasing number of” maintenance calls for the elevator and expert

opined that maintenance company should have identified uncorrected

defect).5

5 Under the prevailing law, two distinct standards are at issue in this case.As possessors of the Building, Keystone and 200 Airport may be subject to liability if they had actual or constructive knowledge of the dangerous condition that allegedly caused Finley’s injuries. See Marshall, 213 A.3d at 270. Kencor’s potential liability, which derives from its contract to provide periodic elevator maintenance service, attaches only if Kencor could have discovered the alleged dangerous condition in Elevator 1 “by reasonable inspection.” Evans, 168 A.2d at 576. While the parties do not address this distinction in their briefs, we conclude that the actual or constructive notice and reasonable inspection standards substantially overlap and Finley did not establish a right to relief as to any of the Defendants. See infra.

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Finley argues she demonstrated that the Defendants had notice of a

dangerous condition concerning Elevator 1 based on the March 5, 2018

maintenance call for an intermittent failure of the doors to open. Finley

emphasizes that the call related to “the same doors to the same elevator which

crushed [Finley] on June 6, 2018, some three months after the report of issues

with the elevator doors.” Finley’s Brief at 13-14. Finley avers that “[c]learly,

this evidence is not only constructive notice, but actual notice, that there were

problems with the elevator doors to Elevator 1.” Id. at 14.

The trial court concluded that nonsuit was proper where Finley failed to

present evidence establishing a reasonable inference that the Defendants had

actual or constructive notice of a dangerous condition with respect to Elevator

1’s door speed. The court explained:

At no point did any of . . . Finley’s witnesses testify to any history of any elevator doors closing too fast [in] the [Building.] Finley herself, as well as the multiple witnesses from Keystone and Kencor[,] denied any knowledge of such history. At no point during the four different maintenance/inspection dates — March 5, March 20, April 17, and May 15 — did any of the elevators present indication of the doors closing too fast. The April 23, 2018 inspection report contained no indication of deficiencies. . . . Marvel explained a simple, accurate method to check that the doors were not closing too fast. Such an alleged defect is more transitory that durable in nature. . . . Finley presented no witness beyond herself who observed said defect before or after the incident, and her own testimony is undermined by the absence of any description of door speed in her reports to . . . Chase and . . . Williams the day of the incident.

Absent any evidence of actual or constructive notice of increased door closing speed, and absent any evidence of increased door speed across five different maintenance/inspection

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events in the three months preceding the incident, . . . Finley could not meet her burden.

Trial Court Opinion, 3/28/24, at 9-10.

Based on our review, we conclude that the trial court did not err or abuse

its discretion in granting nonsuit in favor of the Defendants. See Baird, 169

A.3d at 124. As the trial court explained, Finley’s case lacked evidence that

anyone reported an issue with the speed of Elevator 1’s doors before or after

the June 8, 2018 incident. We agree with the trial court that March 5, 2018

service call related to an entirely different issue, “the failure of Elevator 1’s

doors to open on the third floor, not any issue with closing speed.” Trial Court

Opinion, 3/28/24, at 9. The record reflects that Marvel thoroughly

investigated Elevator 1 during the March 5, 2018 call, and three subsequent

monthly maintenance visits and a semi-annual inspection uncovered no issues

with respect to Elevator 1.

We therefore conclude that Finley did not establish a right to relief on

her negligence action where the evidence would not have permitted a jury to

infer that Defendants 200 Airport and Keystone had actual or constructive

notice of a dangerous condition with respect to Elevator 1. See Scampone,

57 A.3d at 595-96; see also Marshall, 213 A.3d at 270. Furthermore, Finley

failed to present evidence demonstrating that Kencor, the company contracted

to perform regular maintenance on the Building’s elevators, ignored a

“defective or dangerous condition” concerning Elevator 1 that was

“discoverable by reasonable inspection.” Evans, 168 A.2d at 576.

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Accordingly, we determine that no relief is due on Finley’s issues. We

affirm the trial court’s order denying Finley’s post-trial motion to remove the

nonsuit.

Order affirmed.

Date: 3/5/2025

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