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March 17, 2026 Get Citation Alerts Download PDF Add Note

C.J.K. v. Thomas, J.

Superior Court of Pennsylvania

• Citations: None known
• Docket Number: 763 WDA 2025
• Precedential Status: Non-Precedential

• Judges: Bender

• Opinion

• Authorities (16)

• Cited By (0)

• Summaries (0)

• Similar Cases (822)

• PDF

Combined Opinion

                        by [John T. Bender](https://www.courtlistener.com/person/8224/john-t-bender/)

J-A29037-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

C.J.K., A MINOR, BY AND THROUGH : IN THE SUPERIOR COURT OF
HIS PARENTS AND NATURAL : PENNSYLVANIA
GUARDIANS, MELISSA HUDAK AND :
FRANK KICHAK, AND MELISSA :
HUDAK AND FRANK KICHAK, :
INDIVIDUALLY :
:
Appellants :
: No. 763 WDA 2025
:
v. :
:
:
JAMES P. THOMAS AND MARY ANN :
THOMAS :

Appeal from the Order Entered June 3, 2025
In the Court of Common Pleas of Mercer County
Civil Division at No. 2023-03162

BEFORE: OLSON, J., DUBOW, J., and BENDER, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED: March 17, 2026

In this negligence case, C.J.K., a minor, by and through his parents and

natural guardians, Melissa Hudak and Frank Kichak, and Melissa Hudak and

Frank Kichak, individually (collectively, Appellants), appeal from the order

granting summary judgment in favor of their former landlords, James P.

Thomas and Mary Ann Thomas (the Thomases), and dismissing Appellants’

complaint. We affirm.

Case History

The trial court summarized the underlying facts as follows:

On September 7, 2022, the Minor-Plaintiff, [C.J.K.], who was
under two years old at the time of the incident alleged herein, was
J-A29037-25

present at … an apartment which had recently been rented by his
parents…. The apartment was located on the second floor of the
building and had two stairways providing access. One of these
stairways was covered by a sliding plastic partition or accordion-
style door. At some point while in the apartment, C.J.K. moved
away from his parents, who were occupied at the time. Shortly
after, a noise was heard, followed by crying, and C.J.K. was found
at the bottom of a stairway. It is alleged C.J.K. fell down the
stairs, which consisted of seventeen steps, and landed on a tile
surface.

C.J.K. sustained injuries, including bruising and bleeding on his
head. C.J.K. was taken to Sharon Hospital, where a CT scan was
performed. Due to concerns about a possible fracture or brain
bleed, C.J.K. was airlifted to Akron Children’s Hospital. C.J.K. was
admitted overnight for observation and discharged the following
day. His parents were given instructions to monitor for further
symptoms but did not report any subsequent medical visits related
to the incident.

Trial Court Opinion (TCO), 8/8/25, at 1-2 (unnumbered).

On September 28, 2023, Appellants filed a complaint alleging that C.J.K.

fell as a result of the Thomases’ negligence. They alleged, inter alia, that the

Thomases were negligent “in failing to properly inspect, maintain, or secure

the sliding partition door,” and “permitting a dangerous condition to remain

on the premises and for failing to warn [Appellants] of said dangerous

condition.”1 TCO at 2.

---

1 Appellants originally filed their complaint in Lawrence County.
The Thomases
raised preliminary objections to venue based on both parties residing in Mercer
County, the “incident giving rise to the cause of action” occurring in Mercer
County, and Appellants “fail[ing] to allege any basis for venue in Lawrence
County.” Preliminary Objections, 10/6/23, at ¶¶ 1, 3. On November 8, 2023,
the Lawrence County Court of Common Pleas sustained the preliminary
objections and transferred the case to Mercer County.

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J-A29037-25

On December 19, 2023, the Thomases filed an answer, new matter, and

crossclaim. The parties continued to file pleadings and engage in discovery.

After the completion of discovery, the Thomases filed a motion for summary

judgment. The Thomases argued that Appellants failed to produce sufficient

evidence to demonstrate a duty owed or an injury resulting from any alleged

breach of duty. They specifically averred that they were landlords out of

possession, and as such, had no duty to protect C.J.K. Motion for Summary

Judgment, 2/4/25, at ¶ 5. The Thomases also averred that “medical records

do not support [Appellants’] unsubstantiated allegations of brain injury to

[C.J.K.,]” and that Appellants “produced no expert report supporting the

allegation of a ‘brain bleed’ or brain damage resulting from this fall.” Id. at

¶¶ 8-9. Appellants filed a response denying these averments. See Response

in Opposition to Motion for Summary Judgment, 3/4/25, at ¶¶ 5, 8-9. The

trial court heard oral argument on June 2, 2025. On June 3, 2025, the trial

court entered an order and opinion granting the Thomases’ motion for

summary judgment and dismissing Appellants’ complaint. Appellants filed a

timely appeal on June 20, 2025. On July 10, 2025, they filed a court-ordered

concise statement of errors pursuant to Pa.R.A.P. 1925(b). Appellants raise

the following question for review:

Whether the trial court erred in granting summary [judgment]
when it ruled as a matter of law that there were no facts of record
to state a prima facia [sic] case of negligence, causation and
damages?

Appellants’ Brief at 2.

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Discussion

In considering the trial court’s order granting summary judgment,

[w]e view the record in the light most favorable to the nonmoving
party, and all doubts as to the existence of a genuine issue of
material fact must be resolved against the moving party. Only
where there is no genuine issue as to any material fact and it is
clear that the moving party is entitled to a judgment as a matter
of law will summary judgment be entered. Our scope of review of
a trial court’s order granting or denying summary judgment is
plenary, and our standard of review is clear: the trial court’s order
will be reversed only where it is established that the court
committed an error of law or abused its discretion.

Siciliano v. Mueller, 149 A.3d 863, 864 (Pa. Super. 2016) (citation omitted).

The record subject to review is explicitly limited to (1) pleadings; (2)

depositions, admissions, responses to interrogatories, affidavits; and (3)

reports signed by expert witnesses that comply with the rules of discovery.

Finder v. Crawford, 167 A.3d 40, 44 (Pa. Super. 2017) (citing Pa.R.Civ.P.

1035.1). Our review of the record in this case reveals no error or abuse of

discretion.

I. Waiver

First, we agree with the trial court’s conclusion that Appellants’ claims

are “waived for failure to comply with the mandates of Rule 1925(b).” TCO

at 6. In determining “whether an appellant has waived their issues based on

non-compliance with Pa.R.A.P. 1925, it is the trial court’s order that triggers

an appellant’s obligation.” Greater Erie Indus. Development Corp. v.

Presque Isle Downs, Inc., 88 A.3d 222, 225 (Pa. Super. 2014) (citations

omitted). Here, the trial court “cautioned that any issue not properly included

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in the statement timely filed and served pursuant to Pa.R.A.P. 1925(b) shall

be deemed waived.” Order, 6/23/25. Appellants’ concise statement, in

entirety, reads:

1. The matters complained of by Appellants on appeal are as follows:

a. The [t]rial [c]ourt erred in granting [the Thomases’]
Motion for Summary Judgment when it ruled as a matter
of law that there were no facts of record to state a prima
facia [sic] case of negligence, causation, and damages.

Concise Statement of Errors Complained of on Appeal, 7/10/25.

As the trial court observes, Appellants’ concise statement is “broad and

conclusory,” “suffers from a lack of the requisite specificity required by

Pa.R.A.P. 1925(b),” and “fails to direct the [trial c]ourt to any particular place

in the record, identify any material factual dispute, or specify the precise legal

error purportedly committed.” TCO at 5. This Court has held that a concise

statement “which is too vague to allow the court to identify the issues raised

on appeal is the functional equivalent of no [c]oncise [s]tatement at all.”

Lineberger v. Wyeth, 894 A.2d 141, 148 (Pa. Super. 2006) (citation

omitted). In Lineberger, the appellant challenged the grant of summary

judgment, but filed a concise statement which “announced a very general

proposition; namely, that the trial court erred when it granted [the

defendant’s] summary judgment motion,” and “did not reiterate the

arguments the appellant raised in opposition to summary judgment.” Id. at

148-49. The trial court in Lineberger suggested that the appellant failed to

preserve any issue for appellate review and this Court agreed. Id. at 149.

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Similarly, and consistent with Lineberger, we find that Appellants failed to

preserve their appellate claims. However, in the absence of waiver, the claims

would not merit relief.

II. Negligence

Under Pennsylvania law, the “mere fact that an accident occurred does

not give rise to an inference that the injured person was the victim of

negligence.” Toro v. Fitness Int’l LLC, 150 A.3d 968, 976 (Pa. Super. 2016)

(citation omitted). To establish negligence, a plaintiff must prove: (1) a duty

or obligation recognized by law; (2) a breach of that duty; (3) a causal

connection between the conduct and the resulting injury; and (4) actual

damages. Id. at 976–77. “It is a fundamental principle of tort law that there

cannot be a valid claim sounding in negligence unless there is a duty upon the

defendant in favor of the plaintiff which has been breached.” Straw v. Fair,

187 A.3d 966, 983 (Pa. Super. 2018) (citation omitted). “The existence of a

duty is a question of law for the court to decide.” Id. (citation omitted).

The Thomases have maintained they owed no duty to Appellants

because they were landlords out of possession. See Motion for Summary

Judgment at 1; Thomases’ Brief at 6-8. The general rule in Pennsylvania is

that a landlord out of possession is not responsible for injuries suffered on the

leased premises. See Bleam v. Gateway Pro. Ctr. Assocs., 636 A.2d 172,

174 (Pa. Super. 1993). The Pennsylvania Supreme Court recently explained:

Liability is predicated on possession and control of the
premises, as opposed to ownership, because the duty of care
arises out of the possession and control of the premises. See

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Dinio v. Goshorn, 437 Pa. 224, 270 A.2d 203, 206 (1969)
(“[i]t is clear that a landlord out of possession is generally not
liable for bodily harm sustained on his property by the lessee”);
Jones v. Levin, 940 A.2d 451, 454 (Pa. Super. 2007) (“liability
is premised primarily on possession and control, and not
merely [on] ownership.”) (brackets in original) (quoting
Deeter v. Dull Corp., Inc., 420 Pa. Super. 576, 617 A.2d 336,
339 (1992)).

Simone v. Alam, 333 A.3d 359, 368 (Pa. 2025).

Appellants disagree with the Thomases. See Response in Opposition to

Motion for Summary Judgment, 3/4/25, at ¶ 5. They concede that “landlords

out of possession generally have limited liability for injuries occurring on the

premises,” but claim exceptions where a landlord “retains control over certain

areas, has knowledge of a dangerous condition, or if the lease imposes specific

duties on the landlord.” Appellants’ Brief at 8. We have explained:

A landlord out of possession may incur liability (1) if he has
reserved control over a defective portion of the demised
premises; (2) if the demised premises are so dangerously
constructed that the premises are a nuisance per se; (3) if the
lessor has knowledge of a dangerous condition existing on the
demised premises at the time of transferring possession and
fails to disclose the condition to the lessee; (4) if the landlord
leases the property for a purpose involving the admission of
the public and he neglects to inspect for or repair dangerous
conditions existing on the property before possession is
transferred to the lessee; (5) if the lessor undertakes to repair
the demised premises and negligently makes the repairs; or
(6) if the lessor fails to make repairs after having been given
notice of and a reasonable opportunity to remedy a dangerous
condition existing on the leased premises.

Dorsey v. Continental Associates, 591 A.2d 716, 718-719 (Pa. Super.

1991) (citation omitted).

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J-A29037-25

Appellants contend the Thomases reserved control of the apartment

based on the lease provision which allowed Mr. Thomas to enter the premises

to make repairs, and Mr. Thomas’s deposition testimony that he provided

maintenance at the apartment. Appellants’ Brief at 10. However, Appellants’

do not cite pertinent legal authority to support this claim. Appellants also

assert, without citing pertinent evidence or legal authority, that Mr. Thomas

knew the door was dangerous. Id. at 11 (Appellants arguing that because

Mr. Thomas knew of the door’s existence, he also knew it was dangerous).

The trial court did not make a finding as to whether the Thomases were

landlords out of possession. After careful review of the record and existing

case law, were we to reach this issue, we would be inclined to find, as a matter

of law, that the Thomases were landlords out of possession. See, e.g.,

Deposition Testimony of Melissa Hudak, 6/27/24, at 15-16 (Ms. Hudak stating

she had leased “the whole second floor,” and agreeing “that portion of the

apartment building was [Appellants’] to use exclusively, and nobody else

would be using that portion”); see also Davis v. Wright, 156 A.3d 1261,

1273 (Pa. Super. 2017) (holding that claim based on speculation cannot

survive summary judgment, and “the trial court has a duty to prevent

questions from going to the jury which would require it to reach a verdict

based on conjecture, surmise, guess or speculation.”). However, regardless

of the Thomases’ status as landlords — and whether they had a duty and

breached that duty — the record is insufficient to establish causation. As the

trial court stated, “assuming arguendo [Appellants] could establish a duty and

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J-A29037-25

breach based on the interior accordion door, Appellants failed to produce

evidence establishing the essential elements of causation and damages.” TCO

at 7. The court found Appellants failed to produce “evidence to support a

causal link between the alleged condition of the door and C.J.K.’s fall,” and

“the connection between the alleged breach and the injury remains

speculative and insufficient to survive summary judgment.” Id. We agree.

“[P]roof of injury alone, without more, or of the existence of the

negligent condition without showing that it caused the injury complained of,

is insufficient to establish a case of liability.” Harris v. Hutchinson

Sportsmen's Club and South Union Township, ___ A.3d __, __, 2026

PA Super 21, 2026 WL 292149, at *7 (Pa. Super. 2026) (quoting Sherk v.

Daisy-Heddon, a Div. of Victor Comptometer Corp., 450 A.2d 615, 619

(Pa. 1982) (citations omitted)). In a factually similar case, this Court held

that “the absence of a hand railing does not establish causation on its own.”

Jones v. Plumer, 226 A.3d 1037, 1044 (Pa. Super. 2020), appeal denied,

237 A.3d 407 (Pa. 2020).

In Jones, the plaintiff (Ms. Jones), fell down the stairs of the property

she leased from her landlord. Id. at 1038. Ms. Jones claimed “she tripped

on the premises’ poorly maintained steps, which led down from a porch on the

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side of the building[, and] had no railing.” Id. Ms. Jones initiated a negligence

action, and the defendant filed a motion for summary judgment.2

The landlord’s duty and breach of duty in Jones was not disputed, but

the defendant successfully “attacked Ms. Jones’ lack of evidence of causation.”

Id. at 1039. Like this case, there was no eyewitness who could testify about

the cause of the fall.3 We rejected Ms. Jones’ reliance on the absence of a

railing to prove causation. We held that the “lack of a hand railing, even when

its absence violates a building code[4], is not proof of causation.” Id. at 1043

(citing Wisniewski v. Chestnut Hill Hospital, 170 A.2d 595 (1961)

(Supreme Court of Pennsylvania holding “the lack of a hand railing is not

sufficient to prove fault on the part of the land owner without more”)). We

stated that “the absence of a hand railing does not establish causation on its

own as Ms. Jones’ brief implies.” Id. at 1044. This Court affirmed the grant

of summary judgment because Ms. Jones did not establish how she fell, but

---

2 Because the landlord died before she filed suit, Ms. Jones sued the
administratrix of the landlord’s estate (the defendant). Id. at 1039.

3 Ms. Jones was the only witness, and the Dead Man’s Act prohibited her from

testifying about the cause of her fall. Id. at 1041.

4 Appellants’ claim that the Thomases were negligent per se with respect to

causation by failing to comply with Pennsylvania’s Uniform Construction Code
(UCC) would also be unavailing. See 34 Pa. Code § 50.24 (Exit doors and
exit access doors) and 50.26 (Intercommunicating stairway);
see also TCO at 8 (trial court stating that the UCC “is a regulatory framework
designed to safeguard the public at large, not a narrowly defined class of
individuals[, and] does not support a claim of negligence per se”).

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proved “only that she did,” and a jury “would still need to guess why the fall

occurred.” Id. We concluded:

[The fact] that the steps had no railing is legally insufficient to
place the question of causation before the jury. The absence of a
hand railing does not cause one to fall; its absence only makes it
more difficult to catch oneself after the fall begins. Thus, we
rejected Ms. Jones’ theory of causation.

Id. Here, we likewise reject Appellants’ implication that the existence of the

partition door was sufficient to prove that it caused C.J.K. to fall. See id.

(stating that “the absence of a hand railing does not establish causation on its

own”).

In sum, we find that Appellants’ claims are waived, and even if the

claims were not waived, Appellants failed to established the requisite elements

of negligence to survive summary judgment.

Order affirmed.

DATE: 03/17/2026

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