J-A26043-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

NAKIA CARTAGENA,                            :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                    Appellant               :
                                            :
              v.                            :
                                            :
RIVERLIFT INDUSTRIES, INC., A               :
PENNSYLVANIA FICTITIOUS NAMES               :
A/K/A CLAIRTON SLAG, INC., A                :
PENNSYLVANIA COMPANY, AND                   :
CAMPBELL TRANSPORTATION                     :
COMPANY INC., A PENNSYLVANIA                :
CORPORATION                                 :           No. 455 WDA 2016

                Appeal from the Order entered February 25, 2016
               in the Court of Common Pleas of Allegheny County,
                       Civil Division, No(s): GD 14 020667

BEFORE: BENDER, P.J.E., RANSOM and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED DECEMBER 19, 2016

        Nakia Cartagena (“Cartagena”) appeals from the Order denying his

Motion for Reconsideration of a prior Order sustaining the Preliminary

Objections filed by RiverLift Industries, Inc. (“RiverLift”).1 We affirm.

        Cartagena was employed as a coal sample lab technician by Conti

Testing Laboratories, Inc. (“Conti”), an independent analytical laboratory

that analyzes and measures coal, coke, petroleum coke and blends.

Amended Complaint, ¶ 6.         RiverLift owns a coal loading dock in West

Elizabeth, Pennsylvania. Id. at ¶ 2. Campbell Transportation Company, Inc.

(“Campbell”) operates tugboats and barges.        Id. at ¶ 3.   Cartagena’s job



1
    The remaining captioned defendants are not parties to this appeal.
J-A26043-16


duties required him to board barges to gauge the amount of coal being

transported. Id. at ¶ 7. On November 30, 2012, Cartagena was required to

board a barge operated by Campbell, which was being pulled by a tugboat

also operated by Campbell.     Id. at ¶ 9. Cartagena intended to board the

barge from a catwalk on RiverLift’s dock which he had routinely used in the

past.    Id.   However, on the date in question, Cartagena was not able to

access the catwalk. Id. at ¶ 10. Thereafter, a Campbell deckhand obtained

a ladder for Cartagena to use in order to board the barge. Id. at ¶ 12.2 The

ladder did not have slip resistant feet, and the Campbell deckhand

attempted to secure the bottom of the ladder as Cartagena descended it.

Id. at ¶¶ 13, 15. As Cartagena descended the ladder, it became unstable,

either because the Campbell tug boat operator caused the barge to shift, or

because the Campbell deckhand had not adequately secured the ladder. Id.

at ¶ 17. When Cartagena was halfway down the ladder, it shifted, causing

him to fall onto the metal decking of the barge, resulting in injuries to

Cartagena. Id. at ¶ 18, 21.

        In February 2015, Cartagena filed a Complaint against RiverLift and

Ingram Barge Company (“Ingram”).         However, as Ingram was named

erroneously, it was subsequently dismissed from the action. In June 2015,

Cartagena filed an Amended Complaint asserting a premises liability claim



2
  Cartagena alleged that the ladder was owned by RiverLift, and was
obtained from RiverLift’s dock. See Amended Complaint, ¶¶ 13, 34.



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and negligence claim against RiverLift, and a negligence claim against

Campbell. On August 12, 2015, RiverLift filed Preliminary Objections, in the

nature of a demurrer pursuant to Pa.R.C.P. 1028(a)(4), to the claims

asserted against it in the Amended Complaint.          On August 19, 2015,

Cartagena’s claim against Campbell was stayed under the Limitation of

Liability Act, 46 U.S.C. § 30501, et seq., pursuant to an action pending in

the United States District Court for the Western District of Pennsylvania

(hereinafter “the Federal Limitation Action”).      In an Order entered on

October 28, 2015, the trial court sustained RiverLift’s Preliminary Objections

and dismissed, with prejudice, the claims in Cartagena’s Amended Complaint

directed against RiverLift.

      On November 6, 2015, Cartagena filed a Motion for Reconsideration of

the Order, and sought leave to file a second amended complaint.             On

November 23, 2015, without the trial court’s authorization, Cartagena filed a

Second Amended Complaint.       RiverLift filed a Motion to Strike the Second

Amended Complaint, and sought leave to file a response to Cartagena’s

Motion for Reconsideration. On January 28, 2016, the trial court conducted

a hearing on RiverLift’s Motion, and thereafter granted RiverLift leave to file

a response to Cartagena’s Motion for Reconsideration.      In its Response to

Cartagena’s Motion for Reconsideration, RiverLift attached a copy of

Cartagena’s deposition, taken in the Federal Limitation Action, wherein he

conceded that, although he did not know from where the Campbell deckhand



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obtained the ladder, the deckhand was below him, inside the barge, and did

not obtain the ladder from RiverLift’s dock.        See Response to Motion for

Reconsideration, Exhibit B at 198-200. Cartagena further conceded that no

RiverLift employee was on the dock on the day of the accident, and no

RiverLift employee ever told him to use a ladder to board the barge. See id.

at 200-201.     On February 25, 2016, following a hearing, the trial court

denied the Motion for Reconsideration, and affirmed its October 28, 2015

Order dismissing all claims against RiverLift, with prejudice.                RiverLift

thereafter sought a determination of finality, pursuant to Pa.R.A.P. 341(c),

of   the   February    25,    2016   Order    denying      Cartagena’s     Motion   for

Reconsideration.      On March 17, 2016, the trial court entered an Order

deeming its February 25, 2016 Order final and appealable.                   Cartagena

thereafter filed a timely Notice of Appeal of the trial court’s February 25,

2016 Order.

      On appeal, Cartagena raises the following issues for our review:

      1. Did the trial court err as a matter of law by sustaining
         RiverLift’s [P]reliminary [O]bjection[s] in the nature of a
         demurrer?

      2. Did the trial court abuse its discretion by dismissing the
         claims against RiverLift with prejudice?

Brief for Appellant at 3.

      We will address Cartagena’s issues simultaneously. In his first issue,

Cartagena     contends      that,   when   ruling   upon     RiverLift’s   Preliminary

Objections, which were in the nature of a demurrer, the trial court was


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precluded from considering evidence outside the face of the Amended

Complaint.    Id. at 7-8.   Cartagena points to the trial court’s Pa.R.A.P.

1925(a) Opinion, and claims that the trial court’s comments therein indicate

that it considered evidence outside the Amended Complaint, such as

Cartagena’s deposition testimony.3 Brief for Appellant at 7-9.

      Cartagena argues that the averments of his Amended Complaint set

forth a claim for premises liability against RiverLift. Id. at 9-13. Cartagena

contends that he was a business invitee on RiverLift’s dock, and that he was


3
  In its Pa.R.A.P. 1925(a) Opinion, the trial court incorrectly stated that the
Preliminary Objections filed by RiverLift raised questions of fact. See Trial
Court Opinion, 4/18/16, at 2. However, because RiverLift’s Preliminary
Objections were in the nature of a demurrer, no question of fact was raised.
See Mellon Bank, N.A. v. Fabinyi, 650 A.2d 895, 899 (Pa. Super. 1994)
(finding that the trial court erred in considering “factual matters beyond the
complaint” when ruling upon preliminary objection in nature of a demurrer).
The trial court also incorrectly indicated that Cartagena’s deposition was
taken in connection with this case. See Trial Court Opinion, 4/18/16, at 2.
However, our review reveals that Cartagena’s deposition was taken in
connection with the Federal Limitation Action. Further, the trial court
incorrectly stated that excerpts of Cartagena’s deposition were attached to
RiverLift’s Brief in Support of its Preliminary Objections. See id. However,
Cartegena’s deposition was not taken until February 10, 2016, which was six
months after RiverLift had filed its Brief in Support of its Preliminary
Objections, and more than three months after the trial court had sustained
RiverLift’s Preliminary Objections. Thus, the trial court did not rely on
Cartagena’s deposition when it sustained RiverLift’s Preliminary Objections.
Finally, the trial court incorrectly indicated that Cartagena provided an
expert report from James R. Petrie (“the Petrie report”). However, our
review of the record reveals that Cartagena attached the Petrie report to the
Second Amended Complaint, which was filed, without leave of court, one
month after the trial court had sustained RiverLift’s Preliminary Objections.
Thus, the trial court did not rely on the Petrie report when it sustained
RiverLift’s Preliminary Objections.




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unable to access the catwalk that he would normally use to access barges.

Id. at 10. Cartagena asserts that, because the catwalk was inaccessible on

the day of the incident, a hazardous condition was created that required him

to use a ladder to access the barge.       Id. at 10-11.     Cartagena further

asserts that RiverLift should have known that invitees would fail to protect

themselves against unreasonable risks of danger.        Id. at 11.   Cartagena

points to the averments of his Second Amended Complaint, and to the Petrie

report attached thereto, and summarily argues that these documents

establish that RiverLift’s actions fell below a standard of care. Id. at 12-13.

      Cartagena further argues that the averments of his Amended

Complaint set forth a claim for negligence against RiverLift.        Id. at 13.

Cartagena contends that RiverLift was not reasonably prudent in providing a

ladder without slip resistant feet, and that its provision of the ladder was the

factual and proximate cause of his injuries. Id. at 14-15. Cartagena asserts

that his allegations of other causation theories in the Amended Complaint do

not preclude him from also arguing that RiverLift caused his injuries, so long

as RiverLift’s actions were a substantial cause of his injuries. Id. Cartagena

claims that the effect of RiverLift’s actions in providing the ladder is unknown

at this stage of the proceedings, but cannot be ruled out as a substantial

factor. Id. at 16-17. Cartagena also argues that any lapse of time is not

significant enough to prevent RiverLift’s actions from being considered as a

substantial factor. Id. at 17. Finally, Cartagena contends that the question



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of whether RiverLift’s actions were a substantial factor in causing his injuries

should have been submitted to a jury. Id.

      In his second issue, Cartagena asserts that, even if RiverLift’s

Preliminary Objections were properly sustained on the merits, the trial court

erred by denying him an opportunity to amend his pleading in order to

clarify the facts supporting each cause of action. Id. at 18-19. Cartagena

claims that the trial court had an opportunity to correct this error when it

was presented with Cartagena’s Motion for Reconsideration, but failed to do

so. Id. at 19.

      Initially, the Order from which Cartagena appeals in this matter is the

trial court’s February 25, 2016 Order denying Cartagena’s Motion for

Reconsideration.4   In deciding a motion for reconsideration, a trial court is

invested with broad discretion as to whether or not it will modify or rescind a

prior order.     See 42 Pa.C.S.A. § 5505; PNC Bank, N.A. v. Unknown

Heirs, 929 A.2d 219, 226 (Pa. Super. 2007). Our standard of review of a

motion for reconsideration is limited to whether the trial court manifestly

abused its discretion or committed an error of law.             See Dahl v.

AmeriQuest Mortgage Co., 954 A.2d 588, 593 (Pa. Super. 2008) (citing

4
 An appeal generally does not lie from an order denying reconsideration;
but, rather, from the final order which precedes it. See generally
Cheathem v. Temple Univ. Hosp., 743 A.2d 518, 521 (Pa. Super 1999).
However, in the instant case, no final order had been entered. Instead, the
Order sustaining RiverLift’s Preliminary Objections was an interlocutory
Order, as was the Order denying reconsideration.        Further, the Order
denying reconsideration is the only interlocutory Order that the trial court
designated as final and appealable. See Trial Court Order, 3/17/16, at 1.


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Koresko & Assocs. P.C. v. Farley, 826 A.2d 6, 7 (Pa. Super. 2003)).

Further, an abuse of discretion “is not merely an error of judgment.”

Drelles v. Manufacturers Life Ins. Co., 881 A.2d 822, 830 (Pa. Super.

2005) (citing In re Deed of Trust of Rose Hill Cemetery Ass’n, 216, 590

A.2d 1, 3 (Pa. 1991)). Rather, the standard for abuse of discretion is, “if, in

reaching a conclusion, the law is overridden or misapplied, or the judgment

exercised is manifestly unreasonable or lacking in reason, discretion must be

held to have been abused.” Drelles, 881 A.2d at 830-31.

       Here, Cartagena has failed to demonstrate that the trial court

manifestly abused its discretion or committed a clear error of law in denying

his Motion for Reconsideration. See id. In his Motion for Reconsideration,

Cartagena merely stated that he had attached a proposed pleading that he

believed “would cure the defects complained of in [] RiverLift’s Preliminary

Objections, specifically, [Cartagena’s] Second Amended Complaint includes

[the   Petrie]   report   clearly   spelling   out   liability.”   See   Motion   for

Reconsideration, 11/6/15, at 3.        Cartagena failed to specify in his Motion

which “defects” would be cured, or how they would be cured by the

proposed Second Amended Complaint or the Petrie report. See id.

       Moreover, to the extent that Cartagena contends that the Petrie report

purportedly raised new and material evidence, our review discloses that, in

preparing his report, Petrie did not have the benefit of Cartagena’s

deposition, and premised his conclusions on the inaccurate assumption that



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(1) RiverLift had told Cartagena to use a ladder to access barges when the

catwalk was inaccessible; and (2) that RiverLift owned and supplied the

ladder from which Cartagena fell.               See Petrie Report, 1/25/15, at 3.

Notably,     at   the   time   of    the     hearing    on    Cartagena’s       Motion   for

Reconsideration, the trial court was presented with a copy of Cartagena’s

deposition, wherein Cartagena conceded that, although he did not know

from where the Campbell deckhand obtained the ladder, the deckhand was

below him, inside the barge, and did not obtain the ladder from RiverLift’s

dock.    See Response to Motion for Reconsideration, Exhibit B at 198-200.

Cartagena further conceded that no RiverLift employee was on the dock on

the day of the accident, and no RiverLift employee ever told him to use a

ladder to board the barge. See id. at 200-201.

        As noted above, the trial court was precluded from considering these

additional    materials   when      it   initially   ruled   on   RiverLift’s   Preliminary

Objections, and there is no evidence that it considered anything other than

the averments of the Amended Complaint when it sustained those

Objections.       See note 3, supra.            Nevertheless, when presented with

Cartagena’s Motion for Reconsideration, the trial court was permitted to

consider whether Cartagena could state a cause of action against RiverLift if

permitted to amend his pleading. Based on the record before us, we cannot

state that that the trial court manifestly abused its discretion or committed

an error of law in denying Cartagena’s Motion for Reconsideration, and



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affirming its Order sustaining RiverLift’s Preliminary Objections. Accordingly,

we affirm the trial court’s February 25, 2016 Order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/19/2016




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