J-A20018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

EDWARD ECKER,                               IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                      Appellant

                 v.

NATIONAL RAILROAD PASSENGER
CORPORATION A/K/A AMTRAK,

                      Appellee

                 v.

CONTROLLED F.O.R.C.E., INC.,

                      Appellee                  No. 2360 EDA 2014


         Appeal from the Judgment Entered September 9, 2014
          In the Court of Common Pleas of Philadelphia County
          Civil Division at No(s): January Term, 2013 No. 1226



EDWARD ECKER,                               IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                      Appellee

                 v.

NATIONAL RAILROAD PASSENGER
CORPORATION A/K/A AMTRAK,

                      Appellee

                 v.

CONTROLLED F.O.R.C.E., INC.,

                      Appellant                 No. 2608 EDA 2014
J-A20018-15




                   Appeal from the Order Dated August 5, 2014
              In the Court of Common Pleas of Philadelphia County
              Civil Division at No(s): January Term, 2013 No. 1226


BEFORE: DONOHUE, SHOGAN, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED OCTOBER 05, 2015

       These are consolidated appeals. Following our thorough review of the

record, the parties’ arguments, and the applicable law, we affirm.

       Edward Ecker (“Ecker”), age fifty-three, was an Amtrak police officer

who filed suit in this negligence action pursuant to the Federal Employers’

Liability Action (“FELA”), 45 U.S.C. § 51, on January 15, 2013, against

Amtrak, Appellee herein. Ecker injured his shoulder on October 19, 2012,

while participating in a defensive tactics training class taught by Controlled

F.O.R.C.E., Inc. (“CF”) in a training room of Amtrak’s station at 30th Street

in Philadelphia.1 After a four-day trial, a jury found in favor of Amtrak and

CF on May 5, 2014. Following the denial of his motion for a new trial, Ecker

filed a notice of appeal at docket number 2360 EDA 2014. When the trial

court subsequently granted Amtrak’s requested indemnification for the costs




____________________________________________


1
    Amtrak joined CF as an additional defendant on May 22, 2013.




                                           -2-
J-A20018-15


of defense, CF filed a notice of appeal at docket number 2608 EDA 2014.2

On October 1, 2014, we consolidated the appeals sua sponte.

                       Appeal by Ecker at 2360 EDA 2014

       The trial court summarized the factual underpinnings of this case as

follows:

              On May 31, 2012, Amtrak and [CF] entered into a contract
       for [CF] to teach several defensive training tactics courses to
       Amtrak police officers on Amtrak property. On October 19,
       2012, [Ecker] attended the training class and injured his
       shoulder while performing a training exercise. [Ecker] claimed
       that he injured himself because the parties did not supply
       sufficiently thick mats on which he performed the training
       exercises. (See Complaint).

Trial Court Opinion, 3/13/15, at 2. At trial, Ecker described the occurrence

of injury as follows:

             [Amtrak Police Officer] Harper happened to be standing in
       my location just around me. We looked at each other and we
       agree that let’s give [the exercise] a try. So we turned around,
       got down on the floor with our backs up against each other. We
       attempted to do the exercise. I believe I got off the floor a little
       bit. Exactly how high, I have no idea; but at that point it was
       the very first time I tried it. I fell. Like, I was losing my
       balance. I threw my arm out instinctively to keep from falling off
       over to the side. So I just threw my arm out there.

N.T., 4/29/14, at 173.         Ecker also testified that the training room “was

poorly lit, dingy looking, dirty. Looked like nobody had been back there in

____________________________________________


2
   Thus, CF is an appellee in the appeal filed by Appellant Ecker at docket
number 2360 EDA 2014. CF is the appellant in the appeal it filed regarding
the trial court’s ruling that CF must indemnify Amtrak, Appellee therein, at
docket number 2608 EDA 2014.



                                           -3-
J-A20018-15


years.” Id. at 167. Ecker stated that he talked to the CF instructor about

the conditions in the training room, as follows:

        So I just said, mentioned to the instructor I thought that the
        flooring that was down seemed a little thin since I’ve been to
        many defensive tactics courses over the years and usually you
        do takedowns in defensive tactics. Now I didn’t know what to
        expect out of this class, but if it was like every other defensive
        tactics training I’d been to, I just believed that we were going to
        do some kind of takedowns. And I thought that the flooring with
        the concrete floor, when you’re—I mean, I mean, if I’m on patrol
        you take what you get. You have no choice on that. But if I’m
        in a controlled environment, I just think if I’m going to be taken
        down to the floor, I didn’t think the carpeting or padding it had
        there was appropriate.

Id. at 168.

        As noted, after a four-day jury trial, the jury found in favor of Amtrak

and CF. Ecker filed a motion for a new trial on May 12, 2014, which the trial

court denied on June 19, 2014. Subsequently, Ecker filed a notice of appeal

on July 15, 2014.3       Both Ecker and the trial court complied with Pa.R.A.P.

1925.

        Ecker presents the following two issues in his appeal:

         I.   Did the trial court err when it precluded evidence of a prior
              similar accident in the same location that occurred shortly
              before Appellant’s accident?


____________________________________________


3
    Because judgment had not been entered on the docket as required by
Pa.R.A.P. 301, Ecker was directed to praecipe the trial court to enter
judgment.      Judgment was entered on September 9, 2014, and the
previously filed notice of appeal, therefore, is treated as filed after the entry
of judgment. See Pa.R.A.P. 905(a).



                                           -4-
J-A20018-15


       II.   Did the trial court err when it precluded evidence of
             subsequent remedial measures including preclusion of
             questions to [CF’s] liability expert of subsequent remedial
             measures?

Ecker’s Brief at 3 (full capitalization omitted).

      Ecker’s challenges are to evidentiary rulings by the trial court.

Questions concerning the admissibility of evidence lie within the sound

discretion of the trial court, and we will not reverse the court’s decision

absent a clear abuse of discretion or misapplication of the law.         Koller

Concrete, Inc. v. Tube City IMS, LLC, 115 A.3d 312, 316 (Pa. Super.

2015). “For a ruling on the admissibility of evidence to constitute reversible

error, it must have been harmful or prejudicial to the complaining party.”

Id.   “An abuse of discretion occurs where the trial court ‘reaches a

conclusion that overrides or misapplies the law, or where the judgment

exercised is manifestly unreasonable, or is the result of partiality, prejudice,

bias, or ill will.’” Brady v. Urbas, 111 A.3d 1155, 1161 (Pa. 2015) (citing

Commonwealth v. Wright, 78 A.3d 1070, 1080 (2013)).               “An abuse of

discretion may not be found merely because an appellate court might have

reached a different conclusion . . . .” Keystone Dedicated Logistics, LLC

v. JGB Enterprises, Inc., 77 A.3d 1, 11 (Pa. Super. 2013).

      The above issues relate to the trial court’s grant of CF’s motions in

limine. CF filed two motions in limine on April 11, 2014. The first sought to




                                       -5-
J-A20018-15


preclude evidence of a prior injury sustained by Amtrak Police Officer Robert

McCleary.4     McCleary had injured his arm the day prior to Ecker’s injury,

while participating in the same training program. The second motion sought

to preclude evidence of post-accident changes to the training room.

Following oral argument, the trial court granted the motions on the first day

of trial, April 28, 2014.

       A motion in limine is used before trial to obtain a ruling on the

admissibility of evidence.           Northeast Fence & Iron Works, Inc. v.

Murphy Quigley Co., Inc., 933 A.2d 664 (Pa. Super. 2007). “It gives the

trial judge the opportunity to weigh potentially prejudicial and harmful

evidence before the trial occurs, thus preventing the evidence from ever

reaching the jury.” Parr v. Ford Motor Co., 109 A.3d 682, 690 (Pa. Super.

2014), appeal denied, ___ A.3d ___, 2015 WL 3500130 (Pa. filed May 27,

2015). A trial court’s decision to grant a motion in limine “is subject to an

evidentiary abuse of discretion standard of review.” Id.

       Ecker    maintains     that    evidence   of   McCleary’s   prior   injury   was

admissible, citing DiFrancesco v. Excam, Inc., 642 A.2d 529, 535 (Pa.

Super. 1994), in support. DiFrancesco was a products liability case where

an injured pistol buyer brought an action against the seller, distributor, and

manufacturer of the pistol.          This Court determined that evidence of other
____________________________________________


4
  At oral argument on the motion in limine, the potential witness McCleary
was referred to as McThiery. N.T., 4/29/14, at 6.



                                           -6-
J-A20018-15


accidental gun discharges, which were different models than the one that

accidentally discharged and injured the buyer, were not so dissimilar as to

render the evidence inadmissible. Id. at 535. Ecker also cites Lockley v.

CSX Transp., Inc., 5 A.3d 383, 395 (Pa. Super. 2010), suggesting that the

impact of the challenged evidence was tempered by the trial court’s

instruction that evidence is admissible only if the prior accident is sufficiently

similar to the incident involving the plaintiff and that it occurred under

sufficiently similar circumstances.   Ecker asserts that CF and Amtrak were

put on notice that the environment was unsafe when the injury occurred to

McCleary the day before Ecker was hurt.        Ecker contends that whether to

admit such evidence is a “fact-specific inquiry,” and he acknowledges that

the burden is on him, the party introducing the evidence, to establish the

accident’s similarity to the present incident. Blumer v. Ford Motor Co, 20

A.3d 1222, 1228–1229 (Pa. Super. 2011).

      Ecker proffers that the trial court failed to consider the following

factually relevant factors:

      1)   Both accidents occurred at the 30th Street Station training
      room;

      2)    the same Amtrak instructors were present and providing
      instruction to the groups at the time of the accidents;

      3)    the same [CF] instructor was present and providing
      instruction to the group[s] at the time of the accidents;

      4)    the accident occurred during the training class;




                                      -7-
J-A20018-15


      5)    both injuries involved trauma to an upper extremity that
      struck a concrete floor;

      6)    both individuals received first aid from the instructors; and

      7)    both cases were investigated by the same Amtrak [C]laims
      Agent[,] Barbara Maine[, whom Ecker] intended to call as a
      witness.

Ecker’s Brief at 16.     However, Ecker fails to support these factors by any

reference to the record. Thus, they merely are bald allegations in his brief.

“It is not this Court’s responsibility to comb through the record seeking the

factual underpinnings of [an appellant’s] claim.” Irwin Union Nat. Bank &

Trust Co. v. Famous, 4 A.3d 1099, 1103 (Pa. Super. 2010).

      CF responds that Ecker failed to meet his burden of showing that the

two incidents had substantial similarity.    CF’s Brief at 9.   CF mimics the

holding of the trial court, explained below. Amtrak asserts that Ecker failed

to prove a “fact-based inquiry,” maintaining that Ecker showed only that

both injuries occurred in the same training class at the same location.

Amtrak’s Brief at 6. Amtrack claims that Ecker failed to identify evidence of

the circumstances surrounding the McCleary incident and avers that the fact

that the two men suffered upper extremity injuries “is not indicative of

similarity.” Id. at 7.

      The trial court precluded evidence of McCleary’s injury, holding that

Ecker failed to establish that the prior accident was substantially similar to

the instant incident.     The trial court stated that the only evidence Ecker

submitted was the deposition of Amtrak Police Captain Lee O’Brien

                                      -8-
J-A20018-15


(“O’Brien”).   The trial court determined that while O’Brien stated that he

received a report concerning injury to McCleary, he “had no other details and

was not even certain when the other incident occurred.” Trial Court Opinion,

3/13/15, at 5.

      The record supports this assessment by the trial court. O’Brien, who

controlled the Mid-Atlantic Amtrak Police Department, Patrol Division, was

deposed on December 2, 2013.        Lee O’Brien Deposition, 12/2/13; Ecker’s

Answer to Motion in Limine, 4/21/14, at Plaintiff’s Exhibit 2. Ecker’s counsel

asked O’Brien, who arranged the defense tactics course for Amtrak, if he

“receive[d] notice of any individuals reporting that they had an injury during

class,” and he replied, “Yes.” Id. at 44. “I had a report of an injury where

an officer fell off the surface and injured his elbow, and then I received a

report of an injury with Officer Ecker.”     Id.   Counsel asked if the elbow

injury occurred before or after Ecker’s injury, and the witness answered, “I

don’t recall, but I believe it was before.” Id. at 46. O’Brien testified that

“[a]ccording to policy, there’s an investigation done when there’s an officer

injury.” Id. at 45–46. He continued, “The only time that I would be notified

is if the accident investigation or the incident investigation determined that it

was part of the class that got him injured or it was an unsafe condition.” Id.

at 46. Counsel inquired, “Were you notified of those things?” and O’Brien

responded, “No.” Id.




                                      -9-
J-A20018-15


       The trial court held that Ecker “failed to provide . . . the trial court

with any definitive evidence that the other incident was similar to this

one and even when the other incident occurred.”          Trial Court Opinion,

3/13/15, at 5 (emphasis added). We agree. We recently reiterated that it is

the burden of the proponent of evidence, “to establish, to the court’s

satisfaction, the similarity between other accidents and the subject accident

before this evidence could have been admitted for any purpose.” Parr, 109

A.3d at 698–699 (citing Hutchinson v. Penske Truck Leasing Co., 876

A.2d 978 (Pa. Super. 2005)). During argument before the trial court, Ecker

failed to show the required similarity between Ecker’s injury and McCleary’s

injury. N.T., 4/29/14, at 6–8. The trial court did not abuse its discretion in

concluding that Ecker failed to sustain his burden of establishing the

requisite similarity.5

       Ecker next assails the trial court’s decision to preclude Ecker’s

questioning of CF’s expert witness in the field of police training, Anthony

Grano (“Grano”), former CF instructor and owner, regarding Amtrak’s use of

protective floor mats subsequent to Ecker’s injury. As noted supra, on April

11, 2014, CF filed a motion in limine to preclude evidence of post-accident
____________________________________________


5
   In addition, we note that Ecker admitted that he failed to include McCleary
as a potential witness in his Pretrial Memorandum and Supplemental Pretrial
Memorandum, in violation of the trial court’s April 23, 2013 Case
Management Order advising that “[c]ounsel should expect witnesses not
listed [in the pretrial memorandum] to be precluded from testifying at trial.”
Order, 4/23/13.



                                          - 10 -
J-A20018-15


changes to the training room.     Amtrak joined in this motion, and the trial

court granted it on April 28, 2014. Ecker contends that he should have been

permitted to discuss the fact that “several months” after his injury, “Amtrak

placed padded mats in the [training] room for future training groups.”

Ecker’s Brief at 18.

      Ecker submits that the location of both accidents was the 8th floor of

Amtrak’s 30th Street Station. He describes the location as an open storage

space that was in disrepair and had wires hanging and broken chairs. The

floor was made of concrete and “was not proper for individuals for doing

tactics that required contact with the floor. The only protection on the floor

was a rug which was identified to be like a blanket.”      Ecker’s Brief at 18.

Ecker posits that several months after his injury, Amtrak placed padded

mats in the room for future training groups. Id. Ecker argues that Pa.R.E.

407 permits evidence of subsequent remedial measures with a proper

limiting instruction when the measures are offered for impeachment.         He

maintains that he desired to impeach Grano, who, Ecker submits, was

accepted as a “13th hour expert without any pretrial disclosure.”      Ecker’s

Brief at 19.

      In support of its decision granting CF’s and Amtrak’s motion in limine,

the trial court cited Pa.R.E. 407, which provides as follows:

      Rule 407. Subsequent Remedial Measures

      When measures are taken by a party that would have made an
      earlier injury or harm less likely to occur, evidence of the

                                    - 11 -
J-A20018-15


      subsequent measures is not admissible against that party to
      prove:

               negligence;

               culpable conduct;

               a defect in a product or its design; or

               a need for a warning or instruction.

The trial court underscored, however, the Rule’s final provision that:

      the court may admit this evidence for another purpose such as
      impeachment or—if disputed—proving ownership, control, or
      the feasibility of precautionary measures.

Pa.R.E. 407 (emphasis added).       The trial court considered Pa.R.E. 403, in

tandem, which states as follows:

      Rule 403. Excluding Relevant Evidence for Prejudice,
      Confusion, Waste of Time, or Other Reasons

      The court may exclude relevant evidence if its probative value is
      outweighed by a danger of one or more of the following: unfair
      prejudice, confusing the issues, misleading the jury, undue
      delay, wasting time, or needlessly presenting cumulative
      evidence.

Pa.R.E. 403.

      Our Supreme Court has stated:

      The admission of [evidence of subsequent remedial measures]
      cannot be defended on principle. It is not more likely to show
      that there was negligence before the accident than that the
      occurrence of the accident first suggested the use of methods or
      appliances not before thought of; it applies to conduct before an
      accident a standard of duty determined by after-acquired
      knowledge; it punishes a prudent and well-meaning defendant
      who guards against the recurrence of an accident he had no
      reason to anticipate, or who out of a considerate regard for the


                                     - 12 -
J-A20018-15


      safety of others exercises a higher degree of care than the law
      requires.

Duchess v. Langston Corp., 769 A.2d 1131, 1137 n.7 (Pa. 2001) (citation

omitted); see also Columbia & Puget Sound RRCo. v. Hawthorne, 144

U.S. 202, 207-208 (1892) (describing evidence of remedial measures as

incompetent in that the taking of such precautions against the future is “not

to be construed as an admission of responsibility for the past, has no

legitimate tendency to prove that the defendant had been negligent before

the accident happened, and is calculated to distract the minds of the jury

from the real issue, and create a prejudice against the defendant.”);

Hoffmaster v. County of Allegheny, 550 A.2d 1023, 1028 (Pa. Cmwlth.

1988) (stating that “evidence of other accidents that occur subsequent to

that upon which the litigation is brought is not admissible to show knowledge

of a condition prior to an accident.”).

      CF maintains that the trial court determined that Amtrak’s placement

of thicker mats in the training room was irrelevant because CF was not the

party who altered the flooring, in that CF’s contract had expired, and CF no

longer was involved in training Amtrak employees. Amtrak points out that

the Rule’s exclusion of evidence of subsequent remedial measures was

subject to certain exceptions, one of which was feasibility. That exception,

however, presupposes that feasibility is contested by the party against

whom the evidence is offered. Duchess, 769 A.2d at 1134. Amtrak posits

that was not the case here. “Neither Amtrak nor [CF] ever contended that

                                     - 13 -
J-A20018-15


some other, thicker floor cover could not have been used during the

training.” Amtrak’s Brief at 9. As Amtrak’s counsel argued to the trial court:

“We’re not taking a position that this was not feasible.          We’re taking a

position we just didn’t do it.”      N.T., 4/29/14, at 23.     Amtrak avers that

Grano made the same point when, during cross-examination by Ecker’s

counsel, he acknowledged not only the feasibility of using mats during

[Ecker’s] training, but also CF’s use of mats in other training classes:

      Q. Now, in terms of the feasibility, meaning was it possible to
      have mats placed down on the floor at 30th Street Station on
      October 19, 2012?

      A. . . . Is it possible?

      Q. Yes.

      A. Sure, it’s possible.

N.T., 5/1/14, at 11. As Amtrak explains, it did not challenge the feasibility

of putting thicker padding on the training floor.         Therefore, because the

feasibility of precautionary measures was not in dispute, “the trial court

properly precluded evidence of Amtrak’s replacement of the existing flooring

with thicker mats after [Ecker’s] alleged injury.” CF’s Brief at 12.

      Since Amtrak did not contest the feasibility of precautionary measures,

the issue was not in dispute. Thus, pursuant to Pa.R.E. 407, the trial court

properly precluded Ecker from introducing into evidence the fact that Amtrak

replaced the existing floor covering with thicker mats after Ecker’s injury

because   such evidence          would not   constitute   impeachment evidence.


                                       - 14 -
J-A20018-15


Moreover, as found by the trial court, the subsequent remedial measures

were not relevant to CF because CF did not alter the floor’s surface, and CF

was not involved in training Amtrak employees at the time the floor was

altered. Trial Court Opinion, 3/13/15, at 8. We conclude the trial court did

not abuse its discretion in the evidentiary rulings identified by Ecker.

                       Appeal by CF at 2608 EDA 2014

        On June 2, 2014, Amtrak filed a motion for counsel fees claiming that

CF was contractually obligated to indemnify Amtrak for the costs of defense

in light of the jury’s verdict absolving Amtrak of liability.    CF opposed the

motion, asserting the plain language of the contract.         On August 5, 2014,

the trial court granted Amtrak’s June 2, 2014 request for indemnification for

costs of defense. CF appealed this order on September 3, 2014, at docket

number 2608 EDA 2014. Both CF and the trial court complied with Pa.R.A.P.

1925.

        CF presents one question in its appeal, as follows:

              Whether the trial court erred in granting Amtrak’s motion
        for assessment of defense fees and costs and declaring that [CF]
        shall pay the reasonable defense fees and costs incurred by
        Amtrak in the underlying matter where the jury specifically
        exonerated [CF] from liability in connection with the underlying
        matter and where the contract language provides for [CF’s]
        indemnification of Amtrak only for injuries arising out of, caused
        by or resulting from materials or services provided by [CF]?

CF’s Brief at 4.

        CF maintains that Amtrak relied on the language of paragraph twenty-

four of its contract with CF, which provides as follows:

                                      - 15 -
J-A20018-15


      24. Indemnification.

      A. Contractor agrees to defend, indemnify and hold harmless
      Amtrak, its officers, directors, employees, agents, successors,
      assigns and subsidiaries (collectively, “Indemnified Parties”),
      from and against any claims, losses, liabilities (including without
      limitation environmental liabilities), penalties, fines, causes of
      action, suits, costs and expenses incidental thereto, (including
      costs of defense and attorneys’ fees)(collectively “Claims”),
      which any of the Indemnified Parties may hereafter incur, be
      responsible for or pay as a result of breach of warranty, injury or
      death of any person, or damage to or loss (including loss of use)
      of any property, including of the parties thereto, arising out of or
      in any degree directly or indirectly caused by or resulting from
      materials or deliverables supplied by, or from activities of, or
      Services performed by Contractor, Contractor’s officers,
      employees, agents, subcontractors, or any other person acting
      for or with the permission of Contractor under the Contract, or
      as a result of Contractor’s failure to perform its obligations in
      compliance with the Contract Documents.

Defendant’s [Amtrak’s] Answer to Plaintiff’s Complaint with New Matter,

Exhibit C, 3/12/13, Amtrak Services Contract, 1/6/10, ¶ 24.

      CF posits that Amtrak relied on Mace v. Atlantic Ref. & Mktg. Corp.,

785 A.2d 491 (Pa. 2001), in asserting that it was entitled to defense costs

because it had been absolved of liability in the underlying matter. CF avers

that Amtrak ignored the fact that CF, likewise, was absolved from liability.

CF contends that it argued to the trial court that “there must be some

connection to CF’s activities or services in order to trigger its obligation to

indemnify.” CF’s Brief at 11. CF suggests the trial court dismissed this fact

and instead reasoned that the complaint and lawsuit were “a claim” that

Ecker’s injury resulted from CF’s training class. Id. CF argues that the trial

court’s interpretation of the contract language cannot be reconciled with

                                     - 16 -
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Lane v. Commonwealth of Pennsylvania, 954 A.2d 615 (Pa. Super.

2008).    The Lane Court examined the relevant contract language therein

and concluded that indemnification was not required. CF attempts to draw

similarities to Lane.

        CF avers that it did not intend to assume liability for all injuries

associated with its training program regardless of whether it caused those

injuries. Rather, CF posits that it agreed to defend and indemnify Amtrak

only for injuries “arising out of or in any degree directly or indirectly caused

by or resulting from materials or deliverables supplied by, or from activities

of or [s]ervices performed by” CF. CF’s Brief at 15–16. CF suggests that

like the indemnitor in Lane, and in contrast to the indemnitor in Mace, the

jury absolved CF from any liability.      It asserts that the jury verdict is

conclusive of the effect of this contractual language. Lane, 954 A.2d at 622.

        Amtrak urges that the trial court properly discerned the intent of the

parties from the contract itself. It argues that the words of the contract are

clear and unambiguous. Here, the jury assigned no liability to Amtrak for

the injuries and damages allegedly suffered by Ecker during the training.

Amtrak posits that applying basic contract principles, it is clear that Amtrak

is entitled to indemnification because Ecker’s claims, causes of action, and

alleged injuries arose “out of or are to some degree directly or indirectly

caused by or resulting from the services performed by” CF. Amtrak’s Brief

at 4.


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      Amtrak refers to the Perry-Ruzzi rule. This reference is to Perry v.

Payne, 66 A. 553 (Pa. 1907), and Ruzzi v. Butler Petroleum Co., 588

A.2d 1 (Pa. 1991), and the principle that any contractual provision requiring

indemnification for one’s own negligence must be expressed in “unequivocal

terms.” Mace, 785 A.2d at 494. Amtrak contends that if the jury had found

Amtrak causally negligent for Ecker’s injuries, the provision would have had

to pass muster under that rule. However, in the absence of such a finding,

the “general principles of contract interpretation” rather than the Perry-

Ruzzi rule are the proper standard for assessing CF’s obligations under the

contract provision. Amtrak’s Brief at 5.

      Amtrak looks to Mace for guidance in resolving this issue.        Amtrak

argues that CF’s indemnification obligation is not dependent on it being

found liable to Ecker. Rather, it proffers that whether CF was absolved of

liability is irrelevant “with respect to its contractual obligation to indemnify

Amtrak.”   Amtrak’s Brief at 10. It contends that CF’s reliance on Lane is

misplaced, and that Mace controls.

      In holding that its award of attorneys’ fees was proper, the trial court

referred to the May 31, 2012 Amtrak Services Contract between CF and

Amtrak. The trial court examined paragraph twenty-four quoted above and

concluded that the indemnification provision applied. The trial court stated:

            The Supreme Court of Pennsylvania has held that the jury
      verdict determines the standard that the trial court must use to
      interpret an indemnification provision. Ruzzi v. Butler Petroleum
      Co., 527 Pa. 1, 7, 588 A.2d 1, 4 (1991) (reaffirming Perry v.

                                     - 18 -
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     Payne, 217 Pa. 252, 66 A. 553 (1907)). If the jury had found
     that Amtrak was negligent for [Ecker’s] injuries and damages,
     then the “Perry-Ruzzi” rule would apply. This rule provides that
     “If a party seeks to indemnify itself against its own negligence,
     the language seeking to do so in the indemnification provision
     must be clear and unequivocal.” Mace v. Atl. Ref. Mktg. Corp.,
     567 Pa. 71, 76, 785 A.2d 491, 494 (2001).

           In contrast, if the jury finds the indemnified party not
     negligent, then the trial court is to interpret an indemnification
     provision using “general principles of contract interpretation.”
     Mace, 567 Pa. at 79. In particular, the trial court is to “ascertain
     and give effect to the intent of the contracting parties.” Id. at
     80 citing Shovel Transfer & Storage, Inc. v. Pennsylvania Liquor
     Control Bd, 559 Pa. 56, 65, 739 A.2d 133, 137 (1999) (citations
     omitted). Further, “when the words of a contract are clear and
     unambiguous, the meaning of the contract is ascertained from
     the contents alone.”

                                   * * *

           The plain language of the contract states that [CF] “agrees
     to defend, indemnify and hold harmless Amtrak ... against any
     claims ... which Amtrak may hereafter incur, be responsible for,
     or pay as a result of injury or death of any person ... arising out
     of or in any degree directly or indirectly caused by or resulting
     from materials or deliverables supplied by or from activities of,
     or Services performed bv Contractor.

           Parsing out the phrases in the indemnification provision
     reveals that it applies. The Complaint and resulting lawsuit are
     undisputedly a “claim.” The evidence at trial demonstrated that
     Mr. Ecker injured himself while performing a training exercise
     and went to the hospital for treatment. Therefore, the “claim” is
     “a result of injury” that “ar[ose] out of or any degree directly or
     indirectly caused by” the training classes that Appellee [CF]
     conducted.

           Appellant [CF] argues that it is not obligated to indemnify
     Amtrak because the jury did not find that [CF] was negligent.
     The indemnification provision in the Service Contract is not so
     limited. The parties agreed in the Service Contract to a much
     broader indemnification provision, one in which [CF] must
     indemnify Amtrak for any claim in which an individual suffered

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     an injury in some manner connected to the services [CF]
     performed. This provision is not limited to [CF’s] negligence[,]
     and using general principles of general contract construction, the
     trial court could not interpret it in such a limited manner.

Trial Court Opinion, 3/13/15, at 9–10 (internal citations omitted)(emphases

in original). We agree with the trial court’s analysis and conclude the trial

court properly ordered CF to indemnify Amtrak for its expenses pursuant to

the service contract between Amtrak and CF.

     Judgment entered September 9, 2014, is affirmed.         Order entered

August 5, 2014, is affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/5/2015




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