J-A22005-19 2019 PA Super 304

PATRICK PEARSON, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : PHILADELPHIA EAGLES, LLC, : EAGLES STADIUM OPERATOR LLC, : AND EXECUTIVE SERVICES : MANAGEMENT INC., : : Appellants : No. 3053 EDA 2018 Appeal from the Judgment Entered October 4, 2018 in the Court of Common Pleas of Philadelphia County Civil Division at No(s): 2016-0800243 BEFORE: MURRAY, J., STRASSBURGER, J.* and PELLEGRINI, J.* CONCURRING OPINION BY STRASSBURGER, J.: FILED OCTOBER 11, 2019 I join the erudite Majority because it accurately sets forth Pennsylvania law. I write separately to reiterate what I have noted for 25 years: Pennsylvania law in the area of premises liability is fundamentally unfair to injured customers. I continue to believe that “[b]etween these two [potentially] innocent parties, fairness should require [the business] to pay as a cost of operating its business.” Rodriguez v. Kravco Simon Co., 111 A.3d 1191, 1193 n.1 (Pa. Super. 2015) (Strassburger, J. specially concurring), citing Goodman v. Chester Downs and Marina, LLC, 39 A.3d 371, 372 (Pa. Super. 2012) (Strassburger, J. concurring), Duff v. Wal-Mart Stores, Inc., GD-01-13235, 2002 WL 34098113 (Pa. Com. Pl. 2002), aff’d 828 A.2d 405 (Pa. Super. 2003) (unpublished memorandum), Landis v. Giant Eagle, Inc.,

* Retired Senior Judge assigned to the Superior Court.

J-A22005-19 GD 91-7779, 142 P.L.J. 263 (Pa. Com. Pl. 1994), aff’d, 655 A.2d 1052 (Pa. Super. 1994) (unpublished memorandum); but see Boukassi v. Wal-Mart Stores, Inc., 2019 WL 3500521 at *5 (Pa. Super. 2019) (unpublished memorandum) (acknowledging and citing my equitable and policy consideration beliefs, but stating “we are constrained to conclude that [Boukassi’s] equitable argument merits no relief consistent with the established case law as applied to the circumstances of this case”); Pa.R.A.P. 126(b).

As I have asserted, equitable considerations should allow a plaintiff to recover under factual situations such as this. Where a customer has sustained injuries although neither the customer nor the [business] has behaved negligently, it would be more fair to hold the [business] responsible than to place the risk on the consumer. [Injuries] such as these are foreseeable risks of conducting this type of business, and commercial businesses are in a far better financial position to absorb the cost by spreading the risk among thousands of customers.

Goodman, 39 A.3d at 372, quoting Duffy, supra. The same equitable and policy considerations apply to the instant case.

Judge Pellegrini joins this concurring opinion.

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