J-A23041-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
MICHAEL J. MUDRA, SR. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SCHLUMBERGER TECHNOLOGY : CORPORATION : : No. 1439 MDA 2021 Appellant :
Appeal from the Judgment Entered November 8, 2021 In the Court of Common Pleas of Bradford County Civil Division at No(s): 2012CV0283
BEFORE: BOWES, J., McCAFFERY, J., and STEVENS, P.J.E.*
CONCURRING MEMORANDUM BY BOWES, J.: FILED: JULY 26, 2023
I agree with my learned colleague’s decision to affirm the November 8,
2021 judgment entered in favor of Michael J. Mudra, and I join Parts II-VI of
the memorandum. Likewise, I share the majority’s concern about the conflict
within our jurisprudence as to whether a party may appeal the denial of a
motion for summary judgment after a trial has been held without first reviving
the issues in a motion for judgment notwithstanding the verdict (“JNOV”).
However, I write separately to highlight the non-reviewability of the legal issue
the majority addresses concerning the open and obvious doctrine based upon
Appellant’s failure to assert it in the predicate motion for JNOV or challenge
the denial of JNOV in its post-trial motion.
____________________________________________
* Former Justice specially assigned to the Superior Court. J-A23041-22
A succinct review of the relevant facts and procedural history is
warranted. Mr. Mudra sued Appellant alleging that he suffered injuries when
he tripped over a twelve-inch diameter hose that obstructed his descent of a
ladder at a gas-drilling site that Appellant was supervising on behalf of the
leaseholder, Chesapeake. Essentially, Mr. Mudra contended that Appellant
negligently placed the hose near the ladder. Following discovery, Appellant
filed a motion for summary judgment invoking, inter alia, the open and
obvious doctrine, i.e., “Because the facts of record establish that the hose was
an open and obvious condition of which [Mr. Mudra] was already admittedly
aware prior to tripping, [Appellant] therefore owed no duty to protect
[Mr. Mudra] from it and is entitled to judgment as a matter of law.” Motion
for Summary Judgment, 9/13/19 unnumbered at 2. The trial court denied the
motion, finding, in part, “despite the fact that the danger the hose posed was,
at least to some extent, open and obvious, there is an issue of fact as to
whether [Appellant] should have anticipated that harm could occur
notwithstanding the open and obvious nature of the dangerous condition.”
Order, 1/24/20, at 1.
Thereafter, the case proceeded to trial. At the close of Mr. Mudra’s case
in chief, Appellant orally moved for a directed verdict1 based upon the open
1 Appellant’s motion for a directed verdict was premature insofar as it was presented before the submission of all evidence. Phrased differently, unlike a motion for compulsory nonsuit, a motion for directed verdict challenges the (Footnote Continued Next Page)
-2- J-A23041-22
and obvious rule, which the trial court denied for the “same reason [it]
discussed [in denying] the summary judgment motion.” N.T., 11/4/20, at 38.
The trial court succinctly explained, “there’s been plenty of evidence for them
to determine that [Appellant] was in control of that area. That they were in
control of those hoses, that it was a dangerous condition, that it was reported,
. . . and that you owed a duty to [Mr. Mudra].” Id. at 39. Then, after the
jury verdict in favor of Mr. Mudra, Appellant made a general, unspecified oral
motion for JNOV arguing, in total, “I don’t think the evidence supports the
verdict.” The oral motion was summarily denied. Id. at 229.
Presently, Appellant questions, inter alia, “[w]hether the trial court erred
in denying the motion for summary judgment of Appellant . . . because the
open and obvious doctrine precluded the claims of [Mr. Mudra].” Appellant’s
brief at 5. The majority concluded that this claim was not properly framed for
appellate review, relying upon Whitaker v. Frankford Hospital of City of
Philadelphia, 984 A.2d 512, 517 (Pa.Super. 2009), for the proposition that
once a case proceeds to trial and the defendant presents a defense, the denial
of a motion for summary judgment becomes moot. See Majority
Memorandum at 7.
sufficiency of all evidence and not simply the plaintiff’s evidence. See Rogers v. Thomas, 291 A.3d 865, 882 (Pa.Super. 2023) (en banc). Hence, Appellant’s purported motion for a directed verdict is more accurately characterized as a motion for compulsory nonsuit.
-3- J-A23041-22
In my view, the majority correctly concludes that we cannot review
Appellant’s post-verdict challenge to the denial of summary judgment.
Indeed, from my perspective, the denial of summary judgment simply is not
appealable, absent limited exceptions that are not applicable in this case.
Rather, a party wishing to challenge the denial of a motion for summary
judgment should seek immediate permission to appeal that interlocutory order
to this Court. This is particularly so when the motion involves solely a legal
issue. If a party chooses not to seek permission to appeal, it must reassert
the basis for relief in a motion for JNOV following trial to preserve it, with the
disposition of that motion supplying the basis for appellate review.
Recognizing that the trial court’s denial of Appellant’s motion for
summary judgment regarding the open and obvious doctrine was not properly
framed for appellate review, the majority sought to address that issue in the
context of the denial of JNOV. Id. at 7-9. There are two problems with this
perspective. First, as I indicated supra, Appellant did not assert any issues
concerning the application of the open and obvious doctrine in the oral motion
for JNOV that simply asserted, “I don’t think the evidence supports the
verdict.” N.T., 11/4/20, at 229. Thus, unlike the circumstances of
Turnpaugh Chiropractic Health & Wellness Ctr., P.C. v. Erie Ins. Exch.,
--- A.3d---, 2023 PA Super 99 (Pa.Super. 2023) (Stevens, J.), (Bowes, J.,
concurring), where this Court recently addressed the denial of summary
judgment in the context of the trial court’s denial of appellant’s subsequent
-4- J-A23041-22
motion for JNOV asserting the same underlying claim, in the case at bar,
Appellant failed to revive the pertinent claim in its motion for JNOV.
Moreover, while Appellant filed a comprehensive post-trial motion, it
neglected to challenge the trial court’s denial of the oral motion for
JNOV. Instead, in pertinent part, Appellant’s post-trial motion asserted that
the trial court “erred and abused its discretion in denying [its] motion for
summary judgment” and the motion for directed verdict.2 Motion for Post Trial
Relief, 11/13/20, at ¶¶15 and 20. Insofar as Appellant’s post-trial motion
failed to challenge the denial of JNOV, that issue is waived. See Garwood v.
Ameriprise Financial, 240 A.3d 945, 948 (Pa. Super.2020) (issue not raised
by post-trial motions were waived)). Hence, the majority errs in choosing to
address the merits of the issue in this context on appeal.
2 While the majority concludes that the denial of a motion for directed verdict
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J-A23041-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
MICHAEL J. MUDRA, SR. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SCHLUMBERGER TECHNOLOGY : CORPORATION : : No. 1439 MDA 2021 Appellant :
Appeal from the Judgment Entered November 8, 2021 In the Court of Common Pleas of Bradford County Civil Division at No(s): 2012CV0283
BEFORE: BOWES, J., McCAFFERY, J., and STEVENS, P.J.E.*
CONCURRING MEMORANDUM BY BOWES, J.: FILED: JULY 26, 2023
I agree with my learned colleague’s decision to affirm the November 8,
2021 judgment entered in favor of Michael J. Mudra, and I join Parts II-VI of
the memorandum. Likewise, I share the majority’s concern about the conflict
within our jurisprudence as to whether a party may appeal the denial of a
motion for summary judgment after a trial has been held without first reviving
the issues in a motion for judgment notwithstanding the verdict (“JNOV”).
However, I write separately to highlight the non-reviewability of the legal issue
the majority addresses concerning the open and obvious doctrine based upon
Appellant’s failure to assert it in the predicate motion for JNOV or challenge
the denial of JNOV in its post-trial motion.
____________________________________________
* Former Justice specially assigned to the Superior Court. J-A23041-22
A succinct review of the relevant facts and procedural history is
warranted. Mr. Mudra sued Appellant alleging that he suffered injuries when
he tripped over a twelve-inch diameter hose that obstructed his descent of a
ladder at a gas-drilling site that Appellant was supervising on behalf of the
leaseholder, Chesapeake. Essentially, Mr. Mudra contended that Appellant
negligently placed the hose near the ladder. Following discovery, Appellant
filed a motion for summary judgment invoking, inter alia, the open and
obvious doctrine, i.e., “Because the facts of record establish that the hose was
an open and obvious condition of which [Mr. Mudra] was already admittedly
aware prior to tripping, [Appellant] therefore owed no duty to protect
[Mr. Mudra] from it and is entitled to judgment as a matter of law.” Motion
for Summary Judgment, 9/13/19 unnumbered at 2. The trial court denied the
motion, finding, in part, “despite the fact that the danger the hose posed was,
at least to some extent, open and obvious, there is an issue of fact as to
whether [Appellant] should have anticipated that harm could occur
notwithstanding the open and obvious nature of the dangerous condition.”
Order, 1/24/20, at 1.
Thereafter, the case proceeded to trial. At the close of Mr. Mudra’s case
in chief, Appellant orally moved for a directed verdict1 based upon the open
1 Appellant’s motion for a directed verdict was premature insofar as it was presented before the submission of all evidence. Phrased differently, unlike a motion for compulsory nonsuit, a motion for directed verdict challenges the (Footnote Continued Next Page)
-2- J-A23041-22
and obvious rule, which the trial court denied for the “same reason [it]
discussed [in denying] the summary judgment motion.” N.T., 11/4/20, at 38.
The trial court succinctly explained, “there’s been plenty of evidence for them
to determine that [Appellant] was in control of that area. That they were in
control of those hoses, that it was a dangerous condition, that it was reported,
. . . and that you owed a duty to [Mr. Mudra].” Id. at 39. Then, after the
jury verdict in favor of Mr. Mudra, Appellant made a general, unspecified oral
motion for JNOV arguing, in total, “I don’t think the evidence supports the
verdict.” The oral motion was summarily denied. Id. at 229.
Presently, Appellant questions, inter alia, “[w]hether the trial court erred
in denying the motion for summary judgment of Appellant . . . because the
open and obvious doctrine precluded the claims of [Mr. Mudra].” Appellant’s
brief at 5. The majority concluded that this claim was not properly framed for
appellate review, relying upon Whitaker v. Frankford Hospital of City of
Philadelphia, 984 A.2d 512, 517 (Pa.Super. 2009), for the proposition that
once a case proceeds to trial and the defendant presents a defense, the denial
of a motion for summary judgment becomes moot. See Majority
Memorandum at 7.
sufficiency of all evidence and not simply the plaintiff’s evidence. See Rogers v. Thomas, 291 A.3d 865, 882 (Pa.Super. 2023) (en banc). Hence, Appellant’s purported motion for a directed verdict is more accurately characterized as a motion for compulsory nonsuit.
-3- J-A23041-22
In my view, the majority correctly concludes that we cannot review
Appellant’s post-verdict challenge to the denial of summary judgment.
Indeed, from my perspective, the denial of summary judgment simply is not
appealable, absent limited exceptions that are not applicable in this case.
Rather, a party wishing to challenge the denial of a motion for summary
judgment should seek immediate permission to appeal that interlocutory order
to this Court. This is particularly so when the motion involves solely a legal
issue. If a party chooses not to seek permission to appeal, it must reassert
the basis for relief in a motion for JNOV following trial to preserve it, with the
disposition of that motion supplying the basis for appellate review.
Recognizing that the trial court’s denial of Appellant’s motion for
summary judgment regarding the open and obvious doctrine was not properly
framed for appellate review, the majority sought to address that issue in the
context of the denial of JNOV. Id. at 7-9. There are two problems with this
perspective. First, as I indicated supra, Appellant did not assert any issues
concerning the application of the open and obvious doctrine in the oral motion
for JNOV that simply asserted, “I don’t think the evidence supports the
verdict.” N.T., 11/4/20, at 229. Thus, unlike the circumstances of
Turnpaugh Chiropractic Health & Wellness Ctr., P.C. v. Erie Ins. Exch.,
--- A.3d---, 2023 PA Super 99 (Pa.Super. 2023) (Stevens, J.), (Bowes, J.,
concurring), where this Court recently addressed the denial of summary
judgment in the context of the trial court’s denial of appellant’s subsequent
-4- J-A23041-22
motion for JNOV asserting the same underlying claim, in the case at bar,
Appellant failed to revive the pertinent claim in its motion for JNOV.
Moreover, while Appellant filed a comprehensive post-trial motion, it
neglected to challenge the trial court’s denial of the oral motion for
JNOV. Instead, in pertinent part, Appellant’s post-trial motion asserted that
the trial court “erred and abused its discretion in denying [its] motion for
summary judgment” and the motion for directed verdict.2 Motion for Post Trial
Relief, 11/13/20, at ¶¶15 and 20. Insofar as Appellant’s post-trial motion
failed to challenge the denial of JNOV, that issue is waived. See Garwood v.
Ameriprise Financial, 240 A.3d 945, 948 (Pa. Super.2020) (issue not raised
by post-trial motions were waived)). Hence, the majority errs in choosing to
address the merits of the issue in this context on appeal.
2 While the majority concludes that the denial of a motion for directed verdict
is not properly framed for review, see Majority Memorandum at 7, I would not summarily foreclose post-verdict review of orders denying motions for directed verdict considering the functional overlap between a motion for directed verdict and a motion for JNOV. See Rogers v. Thomas, 291 A.3d 865, 882 (Pa.Super. 2023) (en banc) (“A motion for directed verdict, like a motion seeking [JNOV], requires a court to test the sufficiency of all evidence at the close of a case”). However, as I explained in footnote one on page two of this concurrence, the premature motion for a directed verdict that Appellant filed in this case was, essentially, a motion for compulsory non-suit, which is unquestionably mooted by the subsequent presentation of evidence by the defense. See Whitaker v. Frankford Hospital of City of Philadelphia, 984 A.2d 512, 517 (Pa.Super. 2009) (recognizing that, once defendant presented defense, “the trial court’s refusal to grant . . . a compulsory nonsuit became moot.”). Thus, I agree with the majority’s conclusion that Appellant’s motion for a directed verdict did not provide a basis for review in this case.
-5- J-A23041-22
Accordingly, I do not join Part I of the memorandum. However, since
the majority ultimately rejected the merits of Appellant’s argument, I concur
in the resulting disposition and join the learned majority only as to Parts II-VI
of the memorandum.
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