J-A11024-16

                                  2016 PA Super 138



ZACHARY NEIDERT                                   IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

ALBERT CHARLIE, III

                            Appellee                  No. 1903 EDA 2015


                  Appeal from the Order Entered June 11, 2015
                 In the Court of Common Pleas of Lehigh County
                       Civil Division at No(s): 2014-C-2423


ZACHARY NEIDERT                                   IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

ALBERT CHARLIE, III

                            Appellee                  No. 2841 EDA 2015


             Appeal from the Judgment Entered November 13, 2015
                In the Court of Common Pleas of Lehigh County
                      Civil Division at No(s): 2014-C-2423


BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*

OPINION BY MUNDY, J.:                                   FILED JUNE 29, 2016

        Appellant, Zachary Neidert, appeals from the June 11, 2015 order

granting the motion for compulsory non-suit made by Appellee, Albert

____________________________________________
*
    Former Justice specially assigned to the Superior Court.
J-A11024-16


Charlie, III, and the subsequent November 13, 2015 judgment entered in

Appellee’s favor. After careful review, we dismiss the appeal at 1903 EDA

2015 and affirm the judgment in the appeal at 2841 EDA 2015.

      The trial court summarized the relevant factual history of this case as

follows.

                   On August 21, 2012, while working as an
            employee of Riley’s Pub, located at 4505 Main
            Street,    Egypt,    Lehigh  County,    Pennsylvania,
            [Appellant] was injured from using a “door in the
            floor” of the building owned by [Appellee], who was
            also [Appellant]’s boss and is the sole owner of the
            stock in the business entity, Brooke Derek, Inc.,
            which is the business that operates Riley’s Pub.

                  [Appellant] pursued his case for damages
            against [Appellee] under the theory that [Appellee]
            is not entitled to the immunity traditionally granted
            to co-employees by the Workers’ Compensation Act
            because he stood in a dual capacity with respect to
            the building and business operation and that, as the
            building’s owner, he owed a separate duty to
            [Appellant] with respect to building conditions and
            safety. The parties do not dispute that [Appellant]
            was acting in the course and scope of his
            employment at the time of the incident or that
            [Appellant] applied for and received worker’s
            compensation benefits, including a settlement
            payment from Brooke Derek, Inc.

Trial Court Opinion, 9/10/15, at 2.

      On July 25, 2014, Appellant filed a complaint, alleging negligence on

the part of Appellee when Appellant was injured as a result of a bar patron

falling through a trap door when Appellant was using it.            Appellant’s

Complaint, 7/25/14, at ¶¶ 8-11. Appellee filed an answer with new matter


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J-A11024-16


on September 17, 2014, to which Appellant filed his response on October 8,

2014. Appellee filed a motion for summary judgment on March 17, 2015,

which the trial court denied on April 30, 2015. The case proceeded to trial

June 9, 2015.       On June 11, 2015, Appellee made an oral motion for a

compulsory nonsuit, which the trial court granted.      N.T., 6/9/15, at 223,

242.1 Appellant filed a timely post-trial motion on June 22, 2015 to remove

the nonsuit, as well as for a new trial.2 Appellant filed a supplemental post-

trial motion on June 23, 2015. On June 26, 2015, Appellant filed a notice of

appeal, which was docketed in this Court at 1903 EDA 2015. On July 20,

2015, Appellee filed an application to quash Appellant’s appeal, as the trial

court had not yet resolved his post-trial motions.

       Meanwhile, on September 10, 2015, the trial court denied Appellant’s

post-trial motions. On September 17, 2015, Appellant filed a second notice

of appeal, which was docketed in this Court at 2841 EDA 2015.                On

November 10, 2015, this Court entered an order directing Appellant to

praecipe the trial court prothonotary to enter judgment within 10 days.
____________________________________________
1
  There is only one transcript for the trial in the certified record. Therefore,
for convenience, we label the notes of testimony as “6/9/15” even though
the transcript spans from June 9 through June 11, 2015.
2
  We observe that the tenth day fell on Sunday, June 21, 2015. When
computing a filing period, “[if] the last day of any such period shall fall on
Saturday or Sunday … such day shall be omitted from the computation.” 1
Pa.C.S.A. § 1908. Therefore, the tenth day for Appellant to file a timely
post-trial motion was on Monday, June 22, 2015. As a result, we deem his
post-trial motion timely filed.



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J-A11024-16


Appellant    timely    complied     with   our   order   on   November     13,   2015.

Thereafter, on December 28, 2015, in light of Appellant’s compliance, this

Court entered another order denying Appellee’s application to quash, and

ordered the two appeals consolidated.3             See generally Superior Court

Order, 12/28/15 at 1; Pa.R.A.P. 513.

       On appeal, Appellant raises the following two issues for our review.

              A.      Whether the trial court committed an abuse of
                      discretion and/or error of law in failing to
                      provide Appellant with the benefit of all
                      favorable testimony and every reasonable
                      inference of fact regarding the establishment
                      of an independent cause of action against
                      [Appellee], as a landlord, separate and apart
                      from any duty Appellee may have had as an
                      employee of Brooke Derek, Inc.?

              B.      Did the [trial] court commit an abuse of
                      discretion and/or error of law in failing to
                      follow the “law of the case”, in which the [trial]
                      court, albeit a different judge, had already
                      ruled that the very same evidence as was
                      presented at trial, created an issue for the jury
                      to decide?

Appellant’s Brief at 3.

       We begin by noting our well-settled standard of review.
____________________________________________
3
   Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925. We further note that Appellant’s appeal properly
lies from the entry of judgment. See Billig v. Skvarla, 853 A.2d 1042,
1048 (Pa. Super. 2004) (stating, “in a case where nonsuit was entered, the
appeal properly lies from the judgment entered after denial of a motion to
remove nonsuit[]”). Therefore, as Appellant’s appeal at 1903 EDA 2015 was
premature and duplicative of his appeal at 2841 EDA 2015, we dismiss the
appeal at 1903 EDA 2015.



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J-A11024-16


                  An order denying a motion to remove a
                  compulsory nonsuit will be reversed on appeal
                  only for an abuse of discretion or error of law.
                  A trial court’s entry of compulsory nonsuit is
                  proper where the plaintiff has not introduced
                  sufficient evidence to establish the necessary
                  elements to maintain a cause of action, and it
                  is the duty of the trial court to make a
                  determination prior to submission of the case
                  to a jury. In making this determination the
                  plaintiff must be given the benefit of every fact
                  and all reasonable inferences arising from the
                  evidence and all conflicts in evidence must be
                  resolved in plaintiff’s favor.

            Alfonsi v. Huntington Hosp., Inc., 798 A.2d 216,
            218 (Pa. Super. 2002). “Additionally, a compulsory
            nonsuit is valid only in a clear case where the facts
            and circumstances lead to one conclusion—the
            absence of liability.” Harvilla v. Delcamp, 555
            A.2d 763, 764 (Pa. 1989).

Allen-Myland, Inc. v. Garmin Int’l, Inc., --- A.3d ---, 2016 WL 3068393,

at *11 (Pa. Super. 2016) (parallel citations omitted).

      In his first issue, Appellant argues that the trial court erred when it

granted Appellee’s motion for a compulsory nonsuit on the theory that he

could not establish a cause of action under the dual capacity doctrine. The

Workers Compensation Act generally bars all common law suits against an

employer, because the Act is the exclusive remedy for injuries sustained

when an individual is acting within the scope of his employment.      Soto v.

Nabisco, Inc., 32 A.3d 787, 790 (Pa. Super. 2011) (citation omitted),

appeal denied, 50 A.3d 126 (Pa. 2012); see also generally 77 P.S.

§ 481(a).


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J-A11024-16


      However, Pennsylvania courts have recognized a “dual capacity”

exception to this bar, which this Court has described in the following terms.

            The “dual capacity” doctrine provides:

                  Under this doctrine, an employer normally
                  shielded from tort liability by the exclusive
                  remedy principle may become liable in tort to
                  his own employee if he occupies, in addition to
                  his capacity as employer, a second capacity
                  that confers on him obligations independent of
                  those imposed on him as an employer.

            Callender v. Goodyear Tire and Rubber Co., 564
            A.2d 180, 185 (Pa. Super. 1989) (quoting 2A Larson,
            Workmen’s Compensation Law, § 72.80, at 14–112
            (1976)).    Generally, “the Pennsylvania Superior
            Court has taken an unfavorable view of the dual
            capacity doctrine.” Van Doren v. Coe Press
            Equipment Corp., 592 F.Supp.2d 776, 799 (E.D.
            Pa. 2008) (citing Heimbach v. Heimbach, 584 A.2d
            1008 (Pa. Super. 1991); Callender, supra).

            The Pennsylvania Supreme Court has applied the
            “dual capacity” doctrine in only one case. Tatrai v.
            Presbyterian University Hospital, 439 A.2d 1162
            (Pa. 1982). That case involved a hospital employee
            who became ill while at work. Because there was no
            doctor on duty at Employee Health Services, the
            employee’s supervisor instructed the employee to go
            to the general emergency room of the hospital for
            medical care.     While on the x-ray table in the
            hospital emergency room, the employee was injured
            after the foot stand broke loose; and she fell to the
            floor.   The Supreme Court reasoned that the
            employee, at the time of her injury in the general
            hospital emergency room, was in the same position
            as any other member of the public receiving medical
            treatment because the emergency room was open to
            the general public. Therefore, the Court held that
            the hospital owed the employee the same duty it
            owed the general members of the public who came
            to the hospital emergency room for medical care.

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J-A11024-16


           Thus, the hospital was not immune under the WCA
           from suit for the injuries the employee sustained in
           the general hospital emergency room, where the
           hospital held itself out to the public as a health care
           provider; the Court said:

                 There is no reason to distinguish [the
                 employee] from any other member of the
                 public injured during the course of treatment.
                 The risk of injury which [the employee]
                 suffered was a risk to which any member of
                 the general public receiving like treatment
                 would have been subjected. The occurrence of
                 the injury was not made more likely by the fact
                 of her employment.

           Id. at 1166.

Soto, supra at 791-792 (parallel citations omitted).

     In this case, the trial court concluded that Appellant could not meet

the dual capacity exception based on the following rationale.

                  At the trial in the case at hand, [Appellant]
           simply failed to introduce enough evidence to prove
           that his claim fell within the narrow confines of the
           dual capacity exception to immunity. [Appellant]’s
           response to this issue was to focus only on the fact
           that [Appellee] owned the building. The fallacy in
           this position is that it is nearly impossible to separate
           [Appellee]’s involvement as co-employee/boss of
           [Appellant] from his role as building owner. The
           facts offered in [Appellant]’s case in-chief illustrate
           this impossibility.

                  [Appellee] was the only shareholder of Brooke
           Derek, Inc., the only officer, and the only person
           who would act for the company. Indeed, [Appellant]
           described [Appellee] as the one that would get
           things done around the bar. Those things included
           signing checks, setting prices, buying new equipment
           and completing repairs when necessary. [Appellee]
           did all of these things [and] was the one that owned

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J-A11024-16


          the building. Moreover, [Appellee] hired [Appellant]
          to work at Riley’s. [Appellant] was introduced to the
          “door in the floor” by [Appellee] while both were at
          work.       Finally, [Appellee] developed safety
          instructions and a procedure for how to access the
          basement through the door in the floor that all of the
          employees were supposed to follow. [Appellant] was
          instructed on these procedures.         In summary,
          [Appellee] was in ultimate, overall control of the bar
          operation and the building at the same time.

                The evidence presented during [Appellant]’s
          case in[-]chief was not simply that the door was
          dangerous but also that the nature of [Appellee]’s
          business operations or decisions he made as the
          proprietor of the business were a substantial
          contributing factor.      For example, [Appellant]
          claimed that [Appellee] failed to open an alternative
          other path that existed on the first floor of the
          building, that his instructions to employees to block
          the public side of the door with barstools were
          inadequate and that the business contained
          distracting visual materials, like a television, popcorn
          machine, and advertisements which tend to divert
          attention from the door in the floor.

                  Each of these arguments implicates things
          [Appellee] did or did not do as a business proprietor,
          not as [an] owner of the building or the landlord and
          the law is crystal clear that [Appellee] is immune
          from suit for such claims. It was impossible to ask
          the jury to consider the liability of [Appellee] as
          building owner based upon alleged architectural
          shortcomings of the door, but at the same time
          expect the jury to ignore theories of negligence that
          [Appellant] introduced, but for which [Appellee] is
          immune.         Practically speaking, recognition of
          [Appellant]’s case would automatically expose
          [Appellee] to both workers’ compensation claims and
          liability suits every time there is an employee injury-
          incident arising from any condition on the premises.




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J-A11024-16


Trial Court Opinion, 9/10/15, at 6-7 (some internal quotations marks and

citations omitted).

      After careful review of the certified record, we conclude Appellant is

not entitled to relief. As the trial court points out, it was not contested at

trial that Appellee was the only corporate officer.     N.T., 6/9/15, at 184.

Appellant testified that he was hired to work at Riley’s Pub by Appellee and

that Appellee “was the person who would get things done around the bar”

and “was ultimately in control of things” at the Pub.        Id. at 106, 107.

Appellant also admitted that while in his capacity of managing the Pub,

Appellee showed Appellant the trap door around the time he began working

at the Pub. Id. at 109. Appellee also provided Appellant safety instructions

regarding the trap door.    Id. at 183.     Appellant acknowledged receiving

these instructions. Id. at 109-110.

      Our Supreme Court has explained that the dual capacity exception is a

narrow one.

            [I]t is this clear that the focus of the “dual capacity”
            exception is on the circumstances in which the
            worker’s injury occurs. But no such exception can
            exist where, as in the matters now before us, the
            employee’s compensable injury occurred while he
            was actually engaged in the performance of his job.

Heath v. Church’s Fried Chicken, Inc., 546 A.2d 1120, 1121 (Pa. 1988)

(emphasis in original), quoting Lewis v. Sch. Dist. of Phila., 538 A.2d 862,




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J-A11024-16


869 (Pa. 1988).4      As noted above, in Tatrai, our Supreme Court held the

dual capacity exception applied because, “the [hospital] employee, at the

time of her injury in the general hospital emergency room, was in the same

position as any other member of the public receiving medical treatment

because the emergency room was open to the general public.”          Tatrai,

supra at 1165. Our Supreme Court noted that the plaintiff’s injury was “an

event totally extraneous to the employment scheme.” Id. Here, there is no

dispute that Appellant’s injury occurred while he was engaged in the

performance of his job, which is not “extraneous to the employment

scheme.” Id. Based on these considerations, we conclude the trial court did

not abuse its discretion when it granted Appellee’s motion for a compulsory

nonsuit. See Allen-Myland, Inc., supra.

       In his second issue, Appellant avers that the trial court incorrectly

applied the law of the case doctrine. Appellant’s Brief at 25. Specifically,

Appellant argues that once the trial court denied Appellee’s motion for

summary judgment on the dual capacity issue, a different judge of the same




____________________________________________
4
  We reject Appellant’s reliance on Fern v. Ussler, 630 A.2d 896 (Pa. Super.
1993), appeal granted, 652 A.2d 1326 (Pa. 1994). Fern was a three-judge
panel decision of this Court in which one judge concurred in the result only,
and the third judge filed a dissenting opinion. As such, Fern has no
precedential value.    Although, our Supreme Court purportedly granted
allocatur on December 13, 1994, we have not uncovered any decision from
our Supreme Court in that case.



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J-A11024-16


trial court was barred from granting Appellee’s motion for a compulsory

nonsuit on the same grounds. Id. at 26.

      This Court has previously explained the law of the case doctrine as

follows.

                       The law of the case doctrine refers to a
                       family of rules which embody the concept
                       that a court involved in the later phases
                       of a litigated matter should not reopen
                       questions decided by another judge of
                       that same court or by a higher court in
                       the earlier phases of the matter…. The
                       various rules which make up the law of
                       the case doctrine serve not only to
                       promote the goal of judicial economy …
                       but also operate (1) to protect the
                       settled expectations of the parties; (2) to
                       insure uniformity of decisions; (3) to
                       maintain consistency during the course
                       of a single case; (4) to effectuate the
                       proper and streamlined administration of
                       justice; and (5) to bring litigation to an
                       end.

                 Commonwealth v. McCandless, 880 A.2d
                 1262, 1267 (Pa. Super. 2005), appeal
                 dismissed as improvidently granted, 933 A.2d
                 650 ([Pa.] 2007) (quoting Commonwealth v.
                 Starr, 664 A.2d 1326, 1331 ([Pa.] 1995)).
                 Thus, under the doctrine of the law of the case,

                       when an appellate court has considered
                       and decided a question submitted to it
                       upon appeal, it will not, upon a
                       subsequent appeal on another phase of
                       the case, reverse its previous ruling even
                       though convinced it was erroneous. This
                       rule has been adopted and frequently
                       applied in our own State.       It is not,
                       however, inflexible. It does not have the
                       finality of the doctrine of res judicata.

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J-A11024-16


                       “The prior ruling may have been followed
                       as the law of the case but there is a
                       difference between such adherence and
                       res judicata; one directs discretion, and
                       the other supercedes [sic] it and compels
                       judgment. In other words, in one it is a
                       question of power, in the other of
                       submission.” The rule of the “law of the
                       case” is one largely of convenience and
                       public policy, both of which are served by
                       stability in judicial decisions, and it must
                       be accommodated to the needs of justice
                       by the discriminating exercise of judicial
                       power.

                 [Id.] at 1268 … (quoting Benson v. Benson,
                 624 A.2d 644, 647 ([Pa. Super.] 1993)).

           Commonwealth v. Gacobano, 65 A.3d 416, 419-
           420 (Pa. Super. 2013) (parallel citations omitted).

Commonwealth v. Schultz, 116 A.3d 1116, 1122-1123 (Pa. Super. 2015).

     In this case, the trial court considered the dual capacity issue in the

context of a motion for summary judgment, denied the same, and then

considered the issue anew in Appellee’s motion for a compulsory nonsuit.

This Court has held that the law of the case doctrine does not apply in

certain procedural postures.

           Where the motions differ in kind, as preliminary
           objections differ from motions for judgment on the
           pleadings, which differ from motions for 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
           the law clearly warrant a new look at the question.


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Parker v. Freilich, 803 A.2d 738, 745 (Pa. Super. 2002) (citation omitted),

appeal denied, 820 A.2d 162 (Pa. 2003). In Parker, this Court held that a

trial court is permitted to consider an issue in a motion for compulsory

nonsuit that had been previously addressed in denying a motion for

summary judgment.         Id.   We explained that a motion for summary

judgment and a motion for a compulsory nonsuit “are not motions of the

same kind[.]” Id. This is because the plaintiff’s “presentation of her case in

chief constitutes an intervening change in the facts that warranted a second

consideration of the issue[.]”     Id. at 746.     Therefore, as Appellant’s

argument is foreclosed by Parker, we conclude the trial court did not violate

the law of the case doctrine in considering and granting Appellee’s motion

for a compulsory nonsuit. See Schultz, supra.

      Based on the foregoing, we conclude both of Appellant’s issues on

appeal are devoid of merit.     Accordingly, the trial court’s June 11, 2015

order and its subsequent November 13, 2015 judgment are affirmed.

      Appeal at 1903 EDA 2015 dismissed. Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/29/2016




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