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2001 PA Super 338
PERRY AND MARY MARGARET
IN THE SUPERIOR COURT OF
PETRONGOLA, HUSBAND AND WIFE,
COMCAST-SPECTACOR, L.P., SPECTRUM :
ARENA LIMITED PARTNERSHIP AND
PHILADELPHIA PHANTOMS LIMITED
No. 542 EDA 2001
Appeal from the Order dated January 23, 2001
In the Court of Common Pleas of Philadelphia County
Civil, No. 03258, September Term, 1999
BEFORE: MCEWEN, P.J.E., JOYCE, and KELLY, JJ.
OPINION BY KELLY, J.:
Filed: November 28, 2001
Appellant1, Perry Petrongola, asks us to determine whether the trial
court erred in finding Appellees, as owners and operators of a hockey arena,
owed "no duty" to protect Appellant from an errant puck that struck him in
the mouth during the course of a hockey game. In addition, we must
determine if a question exists as to whether Appellees assumed a duty to
protect Appellant from that errant puck. Finally, Appellant asks us to decide
whether the trial court improperly relied on the "assumption of the risk"
defense in granting Appellees' motion for summary judgment, and whether
1 We note that Appellant's wife, Mary Margaret Petrongola, is also a party to
this case. Her claims, however, are entirely dependent upon Perry
Petrongola's claims. Thus, for purposes of this appeal, we will address both
parties as Appellant. Our ruling, however, is binding upon Mary Margaret
the trial court erred in granting Appellees' motion for summary judgment
after it had previously denied Appellees' motion for judgment on the
We hold that Appellees had "no duty" to protect Appellant from an
errant puck entering the seating portion of the arena, as such instances are
a common, frequent, and expected occurrence at a hockey game; the
Spectrum hockey facility did not deviate from any established custom of
safety that would give rise to liability for the injuries sustained by Appellant;
Appellees did not assume a duty to protect Appellant merely by erecting a
plexiglass shield around the ice surface; and the trial court did not
improperly rely on the "assumption of the risk" defense in granting
Appellees' motion for summary judgment. Finally, we hold that it was
proper for the trial court to grant Appellees' motion for summary judgment
although it had previously denied Appellees' motion for judgment on the
pleadings. Accordingly, we affirm the trial court's order granting Appellees'
motion for summary judgment.
The relevant facts and procedural history of this case are as follows.
Appellant, Perry Petrongola, was a Philadelphia Phantoms season ticket
holder. Appellee, Comcast-Spectacor, L.P., owns the CoreStates Spectrum.
The Philadelphia Phantoms' home arena is the CoreStates Spectrum. The
playing surface at the Spectrum is almost entirely surrounded by a shield of
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plexiglass and dasher boards2 that extend from the ice surface to a height of
nine (9) feet. However, the dasher boards directly in front of the players'
benches do not contain the plexiglass shield so that the players may freely
move from the ice to the bench, and vice-versa, during the game.
Additionally, the path that leads from the players' bench to the players'
locker room has a five-foot gap3 where no plexiglass was ever erected. On
October 10, 1997, Appellant was seated in his season seat, which is located
adjacent to the tunnel that leads from the bench to the players' locker room.
During the game an errant puck traveled through the five-foot gap in the
plexiglass and struck Appellant in the mouth.
On November 30, 1999, Appellant filed a civil complaint against
Appellees alleging that as a result of the incident, he suffered damage to his
teeth and mouth, which necessitated a significant amount of stitches and
dental work. Appellant also alleged he suffered an injury to his back, which
required surgery. Appellant claimed that his injuries were suffered as a
2 Dasher boards are panels four feet high, which surround the ice rink. The
plexiglass shield is attached to the top of the dasher boards.
3 In parts of his brief Appellant asserts that the "gap" in the plexiglass is five
feet wide, in other parts, he asserts that the "gap" is twenty-five feet wide.
After viewing the pertinent photos in the record, we conclude that the gap,
clearly, does not reach a width of twenty-five feet. We will use Appellant's
assertion of five feet for purposes of this opinion. (See Exhibit A attached to
Appellant's Response to [Appellees'] Motion for Judgment on the Pleadings;
R.R. 59a-62a). In addition, Appellant's reproduced record does not contain
the proper pagination. See Pa.R.A.P 2173, Numbering of Pages. For that
reason we have added the suffix "a" when citing to a page from Appellant's
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result of Appellees' negligence. On June 1, 2000, Appellees filed a motion
for judgment on the pleadings, asserting they had "no duty" under
Pennsylvania law to protect Appellant from risks to spectators inherent in the
game of hockey. The trial court denied this motion. After the parties
completed discovery, Appellees filed a motion for summary judgment.
Again, Appellees cited the "no duty" rule in their motion. Appellant also filed
a motion for summary judgment. On January 23, 2001, the trial court
granted Appellees' motion for summary judgment, denied Appellant's motion
for summary judgment, and dismissed the case with prejudice. This timely
On appeal, Appellant raises the following issues for our review:
WHETHER THE TRIAL COURT'S APPLICATION OF THE "NO
DUTY" RULE IN THIS CASE WAS IN ERROR?
WHETHER THE [APPELLEES,] BY THEIR CONDUCT[,]
ASSUMED A DUTY TO [APPELLANT,] MR. PETRONGOLA,
PURSUANT TO THE RESTATEMENT OF TORTS (SECOND) §
WHETHER THE TRIAL COURT'S RELIANCE UPON THE
ASSUMPTION OF THE RISK DEFENSE WAS MISPLACED IN
WHETHER THE DENIAL OF THE [APPELLEES'] MOTION FOR
JUDGMENT ON THE PLEADINGS ESTABLISHED THE LAW
OF THE CASE AND THEREBY PRECLUDED THE TRIAL
COURT FROM ENTERTAINING OR GRANTING [APPELLEES']
MOTION FOR SUMMARY JUDGMENT WHICH WAS BASED
ON THE EXACT SAME ISSUE WITH NO NEW EVIDENCE OR
(Appellants' Brief at 4).
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Summary judgment is governed by the Pennsylvania Rules of Civi l
Procedure as follows:
RULE 1035.2 MOTION
After the relevant pleadings are closed, but within such
time as not to unreasonably delay trial, any party may
move for summary judgment in whole or in part as a
matter of law
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
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 A proper grant of summary judgment
depends upon an evidentiary record that either (1) shows
the material facts are undisputed or (2) contains
insufficient evidence of facts to make out a prima facie
cause of action or defense and, therefore, there is no issue
to be submitted to the jury. Pa.R.C.P. 1035.2 Note.
Where a motion for summary judgment is based upon
insufficient evidence of facts, the adverse party must come
forward with evidence essential to preserve the cause of
action. If the non-moving party fails to come forward with
sufficient evidence to establish or contest a material issue
to the case, the moving party is entitled to judgment as a
matter of law. The non-moving party must adduce
sufficient evidence on an issue essential to its case and on
which it bears the burden of proof such that a jury could
return a verdict favorable to the non-moving party. As
with all summary judgment cases, the court must examine
the record in the light most favorable to the non-moving
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party and resolve all doubts against the moving party as to
the existence of a triable issue.
Upon appellate review, we are not bound by the trial
court's conclusions of law, but may reach our own
conclusions. In reviewing a grant of summary judgment,
the appellate court may disturb the trial court's order only
upon an error of law or an abuse of discretion. The scope
of review is plenary and the appellate court applies the
same standard for summary judgment as the trial court.
McCarthy v. Dan Lepore & Sons Co., Inc., 724 A.2d 938, 940-41
(Pa.Super. 1998), appeal denied, 560 Pa. 707, 743 A.2d 921 (1999) (some
internal citations omitted). See also Moses v. T.N.T. Red Star Exp., 725
A.2d 792 (Pa. Super. 1999), appeal denied, 559 Pa. 692, 739 A.2d 1058
In his first issue, Appellant asserts that the trial court erred when it
applied the "no duty" rule in granting Appellees' motion for summary
judgment. Appellant argues that but for the design and maintenance of the
playing area, the speeding hockey puck would not have caused Appellant's
injuries. In support of this contention, Appellant presented (1) the opinion
of an expert, Steve Bernheim (see letter dated November 20, 2000,
attached as Exhibit C to Appellees' Motion for Summary Judgment; R.R.
114a-116a); (2) the "Standard Guide for Ice Hockey Playing Facilities,"
issued by the American Society for Testing Materials (ASTM) (see ASTM
Designation F1703-96, attached as Exhibit F to Appellees' Motion for
Summary Judgment; R.R. 126a-132a); and (3) the 1996-97 Official Rules
for the A.H.L. (see A.H.L. Official Rules, attached as Exhibit G to Appellant's
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Response to Appellees' Motion for Summary Judgment; R.R. 202a-203a).
Mr. Bernheim contends that Appellees had a duty to abide by the ASTM
standards, and that Appellees failed to do so in maintaining the Spectrum
hockey facility. (See Exhibit C, supra) Specifically, Bernheim states that
the bench area should have been equipped with a plexiglass shield
"extending six feet above the dasher board panel." (Id.) In addition,
Appellant asserts ASTM standard F1703-96 [(5.4)]4 mandates that plexiglass
surrounds the players' boxes. (Appellant's Brief at 16). Finally, Appellant
claims that the gap in the plexiglass violated a league rule that requires a
shield to protect the spectators. Appellant submits that the Spectrum's
hockey configuration, therefore, deviated in some relevant way from an
established custom, and that deviation caused Appellant's injuries. For
these reasons, Appellant concludes that the trial court erred in granting
Appellees' motion for summary judgment. We disagree.
To recover under a claim for negligence, the plaintiff must prove the
following elements: "that the defendant owed a duty of care to the plaintiff,
the defendant breached that duty, the breach resulted in injury to the
plaintiff, and the plaintiff suffered an actual loss or damage." Martin v.
Evans, 551 Pa. 496, 502, 711 A.2d 458, 461 (1998).
Whether a duty exists under a particular set of facts is a
question of law. It has long been hornbook law that a duty
4 Appellant refers to this section as (5.5). The ASTM Standards do not
contain a rule F1703-96 (5.5). Section (5.4), however, mimics Appellant's
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arises only when one engages in conduct which
foreseeably creates an unreasonable risk of harm to
When considering the question of duty, it is
necessary to determine whether a defendant is
under any obligation for the benefit of the particular
plaintiff...and, unless there is a duty upon the
defendant in favor of the plaintiff that has been
breached, there can be no cause of action based
upon negligence. Whether a duty exists is ultimately
a question of fairness. The inquiry involves weighing
the relationship of the parties, the nature of the risk
and the public interest in the proposed solution. Our
duty analysis depends on many factors and is
necessarily rooted in public policy considerations,
i.e., our ideas of history, morals, justice, and society
in general in determining where the loss should
fall.... Furthermore, duty is only a word with which
we state our conclusion that there is or is not to be
liability; it necessarily begs the question.... To give it
any greater mystique would unduly hamper our
system of jurisprudence in adjusting to the changing
Herczeg v. Hampton Tp. Mun. Authority, 766 A.2d 866 (Pa.Super. 2001)
(quoting Campo v. St. Luke's Hosp., 755 A.2d 20, 24 (Pa.Super. 2000),
appeal denied, 546 Pa. 723, 766 A.2d 1242 (2000) (citations and quotation
A review of cases from outside this jurisdiction reveals that there is a
wide variation of rules relating to the duty owed by owners of hockey arenas
to their patrons, ranging from "no duty" to an ordinary duty of care. See
Schneider v. American Hockey and Ice Skating Center, 777 A.2d 380
(N.J.Super. 2001) (holding hockey arenas have "limited duty" and must
provide "protected seating" for those who request it and for spectators in
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"most dangerous" section of stands); Teneyck v. Roller Hockey Colorado,
Ltd., 10 P.3d 707 (Colo.App. 2000) (finding "no duty" rule inapplicable
where legislature enacted premises liability statute and exempted baseball
stadiums, and ski resorts, but not hockey arenas); Riley v. Chicago
Cougars Hockey Club, Inc., 427 N.E.2d 290 (Ill.App. 1981) (holding "no
duty" rule inapplicable because of "fundamental differences" between
baseball and hockey); Modec v. City of Eveleth, 29 N.W.2d 453 (Minn.
1947) (holding limited duty of care owed because spectators assume risk of
being hit with puck at hockey game); Ingersoll v. Onondaga Hockey
Club, Inc., 245 A.D. 137 (N.Y.App.Div. 1935) (holding owners of hockey
arena have no duty to protect spectators from dangers incident to the
¶ 10 In Pennsylvania, the law imposes "no duty" on sports facilities to
protect spectators from risks that are common, frequent, and expected.
Jones v. Three Rivers Management Corp., 483 Pa. 75, 85, 394 A.2d 546,
551 (1978). However, a facility may be held liable if the design of the
facility deviates from the established custom in some relevant way. Id. at
84, 394 A.2d at 550.
¶ 11 In Jones, a ball struck a patron as she walked through an interior
walkway of the stadium during batting practice. The Supreme Court held
that the "no duty" rule was inapplicable to the facts of that case, noting that
the ball struck the patron through a unique opening built into the outfield
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wall. Id. at 86, 394 A.2d at 551-552. The Court stated that this feature of
the stadium was not "an inherent feature of the spectator sport of baseball."
Id. The Court held that a patron cannot be "charged with anticipating as
inherent to baseball the risk of being struck by a baseball while properly
using an interior walkway." Id. A plaintiff, therefore, is not foreclosed from
bringing a suit for negligence against the operator of a sports facility if the
plaintiff can introduce "adequate evidence that the [facility] in which he was
injured deviated in some relevant respect from the established custom." Id.
at 84, 394 A.2d at 550.
¶ 12 More recently, courts of this jurisdiction have addressed the issue of
liability for injuries sustained by patrons while seated in a stadium during a
game. In Telega v. Security Bureau, Inc., 719 A.2d 372 (Pa.Super.
1998), appeal denied, 560 Pa. 687, 742 A.2d 676 (1999), this Court refused
to apply the "no duty" rule in a case where fans pummeled a spectator in an
attempt to retrieve a football that entered the stands from the playing field.
This Court reiterated the fact that the "no duty" rule only applies to injuries
sustained from risks inherent to the game being played. Id. at 376.
Significantly, this Court held, "unlike the risk of being struck by an
errant puck...at a hockey game," being attacked by an unruly mob at a
football game was not an inherent risk associated with the activity. Id. at
377 (emphasis added) (citing Pestalozzi v. Philadelphia Flyers Ltd., 576
A.2d 72, 74 (Pa.Super. 1990)).
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¶ 13 The Pestalozzi case is strikingly similar to the present case. In
Pestalozzi, an errant hockey puck struck the plaintiff as he was seated
close to the ice, but behind the plexiglass. Id. In ruling that such risks
were so inherent in the game of hockey as to be considered "common,
frequent, and expected," the Court opined:
Unlike the spectator in Jones, [supra,] appellant was
struck by the relevant orb while sitting in close proximity
to the playing surface. Also, appellant, unlike his
compatriot in Jones, was struck during the course of the
game. We reject appellant's contention that appellee was
liable for his injuries since he [appellant] sought to avoid
injury by purchasing seats behind the protective plexiglass.
Our review of the record reveals that appellant had
previously attended a professional hockey game and
should have been familiar with the inherent risks involved.
We find, therefore, that the risk of a spectator being
struck by an errant puck, even for an individual
sitting behind plexiglass, is common and reasonably
foreseeable. Thus, we conclude that appellant
assumed the risk of being struck by a flying puck.
Id. at 74. (emphasis added).
¶ 14 In the instant case, being struck by a puck while seated in attendance
at a hockey game is an inherent risk associated with the game. See id.
Appellant was a season ticket holder with the Phantoms. He regularly
attended the games and knew that pucks can, and often do, leave the ice
during play, and enter the stands. Unlike the plaintiff in Jones, supra, the
puck struck Appellant while he was seated in his regular seat, during the
course of the game. That Appellant's selected seats were only partially
protected by a plexiglass shield does not alter or diminish the fact that the
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risk of being hit by an errant puck is, as a matter of law, a "common,
frequent, and expected" part of the game. See Pestalozzi, supra.
¶ 15 Moreover, the standard enunciated in Jones, supra, is that the design
must deviate from the established custom in some relevant way. The
ASTM standards state (see Exhibit F, supra; R.R. at 126a), and Mr.
Bernheim concedes (see Exhibit C, supra; R.R. at 115a), that these
standards were not adopted until 1996.
¶ 16 The ASTM guide states in part "1. Scope...[that] [t]he intent is to
provide consistent safety considerations in the design and construction of
new ice hockey rinks." (Exhibit F, supra; R.R. at 126a) (emphasis added)
In its Introduction, the ASTM guide states that it is in the "interest of future
standardization" that all new facilities abide by the dimensions set forth in
the guide. (Id. (emphasis added)). The ASTM manual also states that these
standards apply to the "development of new arenas and to existing arenas
that will be renovated." (Id.) Nowhere do the standards demand that all
existing facilities be immediately reconfigured to conform to these newly
¶ 17 The Spectrum's hockey configuration is approximately 30 years old.
Assuming, arguendo, that the ASTM guide proffered by Appellant sets the
standards for AHL5 hockey arenas constructed after 1996, the ASTM
"Standard Guide for Ice Hockey Playing Facilities, Designation F1703-96"
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does not set the established custom for design and maintenance of pre-1996
facilities such as the CoreStates Spectrum hockey facility.
¶ 18 The A.H.L. rules proffered by Appellant state that the players "shall be
separated from the spectators by a protective glass of sufficient height so as
to afford the necessary protection for the players." (Exhibit G, supra;
R.R. 203a (emphasis added)) The question before us today does not involve
protection for the players; it involves protection for the spectators. Here,
Appellant is required to show that the Spectrum deviated from the
established custom in some relevant way. See Jones, supra. However,
the rule cited by Appellant makes no reference to the established regulations
regarding protection of the spectators. Moreover, the ASTM standards relied
upon by Appellant recognize that "there are a wide variety of playing
facilities currently in use, accompanied by wide disparities in margins of
safety to players and game officials." (Exhibit F, supra; R.R. 126a) The no
duty rule applies to situations that are common, frequent, and expected.
"Most importantly, the Courts have found Appellant is required to introduce
evidence that the amusement facility in which he was injured deviated in
some relevant aspect from the established custom before the case can go to
the jury. Appellant failed in this respect." See Telega, supra at 377
(Joyce, J., dissenting) (internal citation omitted). Appellant's first claim,
5 AHL is the "American Hockey League." Appellee, Philadelphia Phantoms,
play in the AHL which is a farm league for the National Hockey League.
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therefore, warrants no relief.
¶ 19 Next, Appellant argues that even if the "no duty" rule applies,
Appellees assumed a duty of care for Appellant by erecting a plexiglass
shield around the rest of the ice. Appellant asserts that Appellees did not
act reasonably once they assumed that duty. Therefore, Appellees should
be liable for Appellant's injuries. Appellant cites Restatement (Second) of
Torts § 324 as support for this argument. Appellant concludes that this
argument raises a genuine issue of material fact, which precludes judgment
in favor of Appellees as a matter of law. We disagree.
¶ 20 The Restatement (Second) of Torts § 324 states:
One who, being under no duty to do so takes charge of
another who is helpless to adequately aid or protect
himself is subject to liability to the other for any bodily
harm caused by him by (a) the failure of the actor to
exercise reasonable care to secure the safety of the other
while within the actors charge; (b) the actor's
discontinuing his aid or protection, if by doing so he leaves
the other in a worse position than when the actor took
charge of him.
Filter v. McCabe, 733 A.2d 1274, 1277 (Pa.Super. 1999), appeal denied,
563 Pa. 645, 758 A.2d 1200 (2000) (quoting Karavas v. Poulos, 381 Pa.
358, 113 A.2d 300 (1955)). In McCabe, the appellant fell and smacked his
head on a concrete floor in the homeowner's basement. Id. at 1275. The
homeowner assisted the appellant by waking him and placing him on the
couch. The next day the appellant awoke in the morning and proceeded
home. Id. The homeowner called the appellant's home to see if he had
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made it home safely. When the homeowner spoke to the appellant's wife
she told him that her husband was sleeping, the homeowner, however, did
not inform the appellant's wife that her husband had been knocked
unconscious the previous night. The homeowner called again an hour later,
at which time he informed the appellant's wife of the fall. The appellant was
rushed to the hospital but had already suffered permanent brain damage.
Id. The trial court dismissed the appellant's complaint. This Court reversed
the trial court and reinstated the complaint. Id. at 1279. This Court held
that because the homeowner had taken steps to assist the appellant once he
was injured, he had a duty to do so in a reasonable manner consistent with
§ 324 of the Restatement (Second) of Torts. Id. at 1278.
¶ 21 Instantly, Appellant has presented no facts to support his claim that
Appellees assumed a duty to protect him as described by Section 324 of the
Restatement (Second) of Torts. Instead, the record shows Appellant
voluntarily took his seat at the Spectrum, as he had so many times in the
past. The Spectrum's hockey configuration had not changed in any way
since Appellant's previous visits. Appellees did not take charge of Appellant
once he entered the facility, and there is nothing to indicate that Appellant
was incapable of taking care of himself.
¶ 22 Under Appellant's analysis, sports arenas that provide any form of
protection between the playing field and the fans, automatically assume a
duty to provide sufficient protection so that no fan will ever come into
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contact with any element of the game. According to Appellant's reasoning, a
failure to do so makes sports arenas potentially liable each time a ball (or
puck) enters the spectators seating area. The law of this jurisdiction,
however, does not impose such a duty on the owners and operators of
sports facilities. See Jones, supra; Telega, supra; Pestalozzi, supra.
Appellant's assertion that Appellees assumed a duty to protect him is not
tenable under prevailing law.
¶ 23 In his third issue Appellant claims that the trial court improperly relied
on the assumption of the risk defense in granting Appellees' motion for
summary judgment. Appellant asserts that the trial court erroneously
intermingled the "assumption of the risk" doctrine with the "no duty" rule.
Appellant concludes that the trial court's reliance on the "assumption of the
risk" doctrine constitutes reversible error. We disagree.
¶ 24 In the trial court opinion, the court states that Appellant, by regularly
attending the hockey games, "assumed the risk" of being hit with a puck.
(Trial Court Opinion at 4). Here, the court did not use the phrase, in its
legal sense, as dispositive of its decision. Essentially the trial court opined
that, because operators of a hockey facility have "no duty" to protect
spectators from the inherent risks of the game, each spectator assumes the
risk of being hit by a puck. (Id.) The trial court did not, in any way, rely
on, or even address the "assumption of the risk" doctrine in granting
Appellees' motion for summary judgment. We conclude, therefore, that the
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trial court properly relied on the "no duty" rule as previously discussed.
Accordingly, Appellant's third issue is belied by the trial court's direct
¶ 25 Finally, Appellant argues that the trial court improperly granted
Appellees' motion for summary judgment, where the court had previously
denied Appellees' motion for judgment on the pleadings. Appellant asserts
that the trial court's denial of Appellees' motion for judgment on the
pleadings established the "law of the case." Appellant further asserts that
Appellees' motion for summary judgment argued the same issues as its
previous motion for judgment on the pleadings, and added no additional
evidence or case law. Appellant concludes that the trial court, therefore,
was precluded from granting Appellees' motion for summary judgment.
(Appellant's Brief at 19-22). We disagree.
¶ 26 The "coordinate jurisdiction rule" generally states "that judges of
coordinate jurisdiction, sitting in the same court cannot overrule each other's
decisions." Domineck v. Mercy Hosp. of Pittsburgh, 673 A.2d 959, 960
(Pa.Super. 1996) (citing Okkerse v. Howe, 521 Pa. 509, 556 A.2d 827
(1989)). The coordinate jurisdiction rule technically applies to different
judges on the same court ruling on an individual case. Domineck, supra.
Well-settled Pennsylvania law states:
The purpose of this rule is to ensure a degree of pretrial
finality so that judicial economy and efficiency can be
maintained. However, the rule is not intended to
preclude granting summary judgment following the
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denial of preliminary objections. The failure to present
a cause of action upon which relief may be granted may be
raised at any time. A motion for summary judgment is
based not only upon the averments of the pleadings but
may also consider discovery depositions, answers to
interrogatories, admissions and affidavits. We can discern
no reason for prohibiting the consideration and granting of
a summary judgment if the record as it then stands
warrants such action.
Salerno v. Philadelphia Newspapers, Inc., 546 A.2d 1168, 1170
(Pa.Super. 1988) (internal citations and quotations omitted) (emphasis
Where motions differ in kind, as preliminary objections
differ from motions for judgment on the pleadings, which
differ from summary judgment, a judge ruling on a later
motion is not precluded from granting relief although
another judge has denied an earlier motion. However, a
later motion should not be entertained or granted when a
motion of the same kind has previously been denied,
unless intervening changes in the facts or law clearly
warrant a new look at the question.
Abbott v. Anchor Glass Container Corp., 758 A.2d 1219, 1222-23
(Pa.Super. 2000) (quoting Goldey v. Trustees of the University of
Pennsylvania, 544 Pa. 150, 155-56, 675 A.2d 264, 267 (1996)). A court
of coordinate jurisdiction, therefore, may properly grant a motion for
summary judgment after a previous motion for judgment on the pleadings
has been denied. Austin J. Richards, Inc., v. McClafferty, 538 A.2d 11
(Pa.Super 1988), appeal denied, 520 Pa. 570, 549 A.2d 131 (1988).
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¶ 27 In the present case, the same judge6 ruled on both Appellees' motion
for judgment on the pleadings and Appellees' motion for summary
judgment. We fail to see how the coordinate jurisdiction rule works to
prevent the same judge from granting a motion for summary judgment after
previously denying a motion for judgment on the pleading, where the rule
does not preclude a judge from doing so after another judge has previously
denied a motion for judgment on the pleadings. See Austin J. Richards,
Inc., supra. In addition, Appellant concedes that a motion for summary
judgment and a motion for judgment on the pleadings are "not generally of
the same kind." (Appellant's Brief at 20). See also Abbott, supra. Hence,
the coordinate jurisdiction rule does not necessarily prevent the same judge
from ruling favorably on a motion for summary judgment in a case where he
has previously denied a motion for judgment on the pleadings. See Austin
J. Richards, Inc.
¶ 28 When the trial court denied Appellees' motion for judgment on the
pleadings it had only the complaint and answer on which to base its
decision. Contrary to Appellant's assertion, the trial court had a plethora of
new information when it considered the parties' motions for summary
6 At oral argument a question arose as to whether the same judge issued the
rulings on Appellees' motion for judgment on the pleadings and their motion
for summary judgment. A review of the record indicates that Judge Myrna
Field ruled on both motions. (See Order dated July 12, 2000, denying
Appellees' motion for judgment on the pleadings, and Order dated January
10, 2001, granting Appellees' motion for summary judgment).
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judgment. The record contains depositions, answers, admissions, the ASTM
guide for hockey facilities, the A.H.L. Official Rulebook, and the opinion of
Appellant's expert, Steve Bernheim, all of which were available to the trial
court when it considered Appellees' motion for summary judgment. The
benefit of this additional information, particularly the ASTM Standards, the
opinion of Appellant's expert, and the A.H.L rules, made clear Appellees did
not have a duty to protect Appellant under the circumstances. See
Pestalozzi, supra; See also Jones, supra. Hence, Appellees owed
Appellant no duty of care; therefore, no action in negligence could lie against
Appellees. See Martin, supra. Further, the trial properly found that no
genuine issue of material fact existed as to the no-duty rule, and that
Appellees were entitled to judgment as a matter of law. See Pa.R.C.P. §
1035.2. The trial court's grant of Appellees' motion for summary judgment
after previously denying Appellees' motion for judgment on the pleadings,
therefore, was appropriate. See Austin J. Richards, Inc., supra.
¶ 29 Based upon the foregoing, we hold that Appellees had "no duty" to
protect Appellant from an errant puck entering the spectators' seating area,
as such instances are a common, frequent, and expected occurrence at a
hockey game; the Spectrum hockey facility did not deviate from any
established custom of safety that would give rise to liability for the injuries
sustained by Appellant; Appellees did not assume a duty to protect Appellant
merely by erecting a plexiglass shield around the ice surface; and the trial
- 20 -
court did not improperly rely on the "assumption of the risk" defense in
granting Appellees' motion for summary judgment. Finally, we hold that it
was proper for the trial court to grant Appellees' motion for summary
judgment although it had previously denied Appellees' motion for judgment
on the pleadings. Accordingly, we affirm the trial court's order granting
Appellees' motion for summary judgment.
¶ 30 Order entering summary judgment affirmed.
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