J-A10028-17

                             2017 PA Super 322

CHRISTOPHER KOVACEVICH                          IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellant

                   v.

REGIONAL PRODUCE COOPERATIVE
CORPORATION

                        Appellee                    No. 1774 EDA 2016


                Appeal from the Order Dated April 29, 2016
           In the Court of Common Pleas of Philadelphia County
                    Civil Division at No(s): 130703315


BEFORE: DUBOW, J., SOLANO, J., and FORD ELLIOTT, P.J.E.

OPINION BY SOLANO, J.                            FILED OCTOBER 13, 2017

     Appellant Christopher Kovacevich appeals the order dated April 29,

2016, denying his motion to remove the non-suit entered in favor of

Appellee Regional Produce Cooperative Corporation (“RPCC”). We affirm.

     RPCC is the management company that oversees operation of the

Philadelphia Wholesale Produce Market (“the Market”), a food terminal and

distribution center in South Philadelphia.   The Market is housed in a large

rectangular building containing private areas that are leased by multiple

tenants for wholesale and retail sales of their produce. Between the tenant

areas of the building is a large central concourse that is a common area

maintained by RPCC. Trial Ct. Op. at 2.

     T.M. Kovacevich, Inc. (“TMK”) is one of the tenants leasing space in

the Market.    Appellant was employed by TMK as a salesman.              On

February 18, 2013, as Appellant was standing in front of a pallet in a
J-A10028-17


refrigerated area of TMK’s leased space, his co-worker, Ernest Scarlata,

approached him from behind while driving a pallet jack 1 manufactured by

Crown Equipment Corporation that had a tall load of fruit loaded onto the

vehicle’s fork. Rather than driving the pallet jack with the fork behind him,

Scarlata drove it “forks first.” The loaded fruit obstructed Scarlata’s view,

and Scarlata drove the pallet jack into Appellant’s back, causing Appellant to

incur serious injuries.

       On July 25, 2013, Appellant filed a complaint against Crown, alleging

products liability, and against RPCC, alleging negligence. 2 The negligence

claim against RPCC was based on a premises liability theory; Appellant

alleged that RPCC had control over the employees of its tenants in the

Market and therefore was responsible for the negligence of Scarlata in

operating the pallet jack. Paragraph 9 of the complaint stated:

       At all times relevant hereto, . . . [RPCC] owned, leased,
       possessed,    inspected,   managed,   controlled,    supervised,
       maintained and/or was responsible for overseeing the aforesaid
       wholesale warehouse, including but not limited to all aspects of
       the design including safety and compliance with [the
       Occupational Safety and Health Administration (“OSHA”)], the
       International Building Code, Pennsylvania and Philadelphia
       Building Codes and other applicable workplace safety laws,
       including safe materials handling.

____________________________________________


1     A pallet jack is a motorized forklift with a “fork” at one end that is used
to pick up pallets.

2    Appellant also brought claims against Material Handling Supply, Inc.
and the Philadelphia Regional Port Authority, but the claim against Material
Handling was settled and the claim against the Authority was dismissed.


                                           -2-
J-A10028-17


       Appellant claimed that Scarlata failed to operate the pallet jack in a

safe manner. He claimed further that RPCC was responsible for that failure

because Scarlata did not receive training and certification to operate a pallet

jack under OSHA Standard 1910.178, 29 C.F.R. § 1910.178, which applies

to “maintenance, and use of fork trucks, tractors, platform lift trucks,

motorized hand trucks, and other specialized industrial trucks powered by

electric motors or internal combustion engines.” See id. § 1910.178(a)(1).

Subsection (l) of that Standard, titled “Operator training,” states, in part:

       (1) Safe operation.

             (i) The employer shall ensure that each powered industrial
       truck operator is competent to operate a powered industrial
       truck safely, as demonstrated by the successful completion of
       the training and evaluation specified in this paragraph (l).[3]

              (ii) Prior to permitting an employee to operate a powered
       industrial truck (except for training purposes), the employer
       shall ensure that each operator has successfully completed the
       training required by this paragraph (l) . . . .

       ....

       (6) Certification. The employer shall certify that each operator
       has been trained and evaluated as required by this paragraph
____________________________________________


3       The Standard requires training in, among other things, operating
instructions, warnings, and precautions for the type of truck that will be
operated; truck controls and instrumentation; steering and maneuvering;
visibility (including restrictions due to loading); fork and attachment
adaptation, operation, and use limitations; vehicle capacity and stability;
vehicle inspection and maintenance; operating limitations; surface conditions
where the vehicle will be operated; composition and stability of loads to be
carried; load stacking and unstacking; pedestrian traffic near vehicle
operations; and operation in narrow aisles, in hazardous locations, and on
ramps and sloped surfaces. 29 C.F.R. § 1910.178(l)(3). An operator’s
performance must be evaluated every three years. Id. § 1910.178(l)(4)(iii).


                                           -3-
J-A10028-17


       (l). The certification shall include the name of the operator, the
       date of the training, the date of the evaluation, and the identity
       of the person(s) performing the training or evaluation.

29 C.F.R. § 1910.178(l)(1), (6).               Appellant contends that RPCC was a

“controlling employer” at the Market and therefore had a duty to assure that

its tenants’ workers received the training and certification required by OSHA.

He contends further that by negligently breaching this alleged duty, RPCC

became liable to Appellant for his injuries.

       Appellant’s “controlling employer” theory stems from OSHA regulatory

policy. OSHA publishes a Field Inspection Reference Manual that “provides

current information and guidance to [OSHA’s] national, regional, and area

offices   concerning     OSHA’s      policy     and    procedures   for     implementing

inspections, issuing citations and proposing penalties.”             See OSHA Field

Inspection Ref. Manual at ABSTRACT-2, (2016), available at https://www

.osha.gov/OshDoc/Directive_pdf/CPL_02-00-160.pdf, at                 1-1.      In 1999,

OSHA suspended a portion of that Manual that set forth OSHA’s policy for

issuing citations at multi-employer worksites.                See OSHA Compliance

Directive   02-00-124      (Dec.    10,   1999)       (formerly   numbered     2-0-124),

available at https://www.osha.gov/pls/oshaweb/owadisp.show_document?p

_table=DIRECTIVES&p_id=2024#CHANGES. 4                    Directive 02-00-124 stated


____________________________________________


4      The compliance directive is in the certified record. The OSHA Manual
is referenced in the compliance directive but is not in the certified record;
we take judicial notice of it. The cited Internet locations are as of the date
of this opinion.


                                           -4-
J-A10028-17


that in the future, “[o]n multi-employer worksites (in all industry sectors),

more than one employer may be citable for a hazardous condition that

violates an OSHA standard,” and that one type of employer that could be

cited for a violation at the site was a “controlling employer” that had

obligations with respect to OSHA requirements.          See id. § X.A.     The

Directive defined a “controlling employer” as one “who has general

supervisory authority over the worksite, including the power to correct

safety and health violations itself or require others to correct them,” and

said that an employer could meet this definition as a result of its contractual

rights with respect to a jobsite or “if, in actual practice, it exercises broad

control over subcontractors at the site.” Id. § X.E.1., 5. Appellant sought

to prove that RPCC was such a controlling employer at the Market with

respect to assuring its tenants’ compliance with OSHA responsibilities.

      Appellant’s case against RPCC and Crown Equipment was tried before

the Honorable Marlene Lachman and a jury on January 8-21, 2016. During

trial, Appellant presented witnesses who sought to show that RPCC met the

criteria to be a controlling employer. At the close of Appellant’s case, the

court entered a non-suit on the claim against RPCC.       On Appellant’s claim

against Crown, the jury rendered a verdict of no liability.

      Appellant filed a motion for post-trial relief, requesting that the trial

court remove the non-suit. In support of his motion, Appellant filed a copy

of a July 20, 2012 letter from James Maddux, the director of OSHA’s

“Directorate of Construction,” to the president of Clapp Research Associates,

                                     -5-
J-A10028-17


P.C., that answered a Clapp inquiry about OSHA’s multi-employer worksite

policy and made comments about the policy’s scope; the letter had not

previously been made a part of the record.

      The trial court denied Appellant’s post-trial motion on April 29, 2016,

and entered judgment in favor of RPCC. In a Rule 1925(a) opinion, the trial

court explained that it had ruled in favor of RPCC for three reasons:      (1)

most fundamentally, the OSHA “controlling employer” policy concerns only

OSHA enforcement actions and does not give rise to a legal duty that can

provide a basis for damages recovery under Pennsylvania law, Trial Ct. Op.

at 7-9; (2) even if the policy did provide some basis for creating a duty, it

did not control in this case because it has been applied only in the

construction context, id. at 4-7; and (3) even if the policy applied here,

there was insufficient evidence to enable a jury to find that RPCC was a

controlling employer under it, id. at 9-20.

      On May 27, 2016, Appellant filed a notice of his appeal to this Court, in

which he presents three issues for our review:

      1.    Whether the [t]rial [c]ourt abused its discretion and erred
      as a matter of law in granting [RPCC’s] Motion for Non-Suit
      because [RPCC] was a “controlling employer” at the multi-
      employer worksite where [Appellant]’s accident occurred and
      improperly removed the issue from the determination of the
      jury.

      2.   Whether the [t]rial [c]ourt abused its discretion and erred
      as a matter of law by failing to consider, or give appropriate
      weight to, the terms of OSHA Directive CPL 02-00-124 and the
      terms of OSHA’s July 20, 2012 response to inquiry in
      determining whether the multi-employer worksite policy should
      be applied to construction sites only.

                                     -6-
J-A10028-17



      3.      Irrespective of whether [RPCC] was a “controlling
      employer” of the subject premises pursuant to OSHA, whether
      the [t]rial [c]ourt abused its discretion and erred as a matter of
      law by apparently failing to consider [Appellant’s] theory of
      liability under Sections 343 and 344 of the Restatement
      (Second) of Torts.

Appellant’s Brief at 3 (suggested answers omitted).

      Our review is governed by the following:

      A nonsuit is proper only if the jury, viewing the evidence and all
      reasonable inferences arising from it in the light most favorable
      to the plaintiffs, could not reasonably conclude that the elements
      of the cause of action had been established. Furthermore, all
      conflicts in the evidence must be resolved in the plaintiff[’s]
      favor. In reviewing the evidence presented we must keep in
      mind that a jury may not be permitted to reach a verdict based
      on mere conjecture or speculation. We will reverse only if the
      trial court abused its discretion or made an error of law.

Gavin v. Loeffelbein, 161 A.3d 340, 355 (Pa. Super. 2017).

      The overarching question in this case is whether RPCC engaged in

negligent conduct for which it may be held liable to Appellant in tort.    To

hold a defendant liable for negligence, the plaintiff must prove that: (1) the

defendant had a legally recognized duty to conform to a standard of care;

(2) the defendant breached that duty; (3) the defendant’s conduct caused

the resulting injury; and (4) the plaintiff incurred actual damage. Newell v.

Montana West, Inc., 154 A.3d 819, 822 (Pa. Super. 2017).                   The

determinative element in this case is the first: duty. Appellant asks us to

recognize a legal duty of RPCC under Pennsylvania law that is based on

OSHA’s enforcement policy regarding “controlling employers.”       We agree



                                    -7-
J-A10028-17


with the trial court that recognition of a tort duty on that basis is

inappropriate in this case and that RPCC therefore was entitled to a nonsuit.

      Appellant begins his argument by citing Section 286 of the Second

Restatement of Torts (1965), which states:

      When Standard of Conduct Defined by Legislation or
      Regulation Will Be Adopted

      The court may adopt as the standard of conduct of a reasonable
      man the requirements of a legislative enactment or an
      administrative regulation whose purpose is found to be
      exclusively or in part

      (a) to protect a class of persons which includes the one whose
      interest is invaded, and

      (b) to protect the particular interest which is invaded, and

      (c) to protect that interest against the kind of harm which has
      resulted, and

      (d) to protect that interest against the particular hazard from
      which the harm results.

Pennsylvania courts have used this provision to “define the standard of a

‘reasonable   man’   by adopting standards of conduct         from legislative

enactments designed to protect a class of individuals.”      C.C.H. v. Phila.

Phillies, Inc., 940 A.2d 336, 347 (Pa. 2008). We therefore have looked to

OSHA regulations to determine the appropriate standards applicable to

erection of scaffolding, Wood v. Smith, 495 A.2d 601, 603-04 (Pa. Super.

1985), appeal dismissed, 518 A.2d 266 (Pa. 1986), and maintenance of




                                     -8-
J-A10028-17


equipment used in a forge, Brogley v. Chambersburg Eng’g Co., 452

A.2d 743, 745-46 (Pa. Super. 1962).5

       But in looking to pronouncements from OSHA, the Supreme Court has

been careful to distinguish between those setting standards of care and

those that merely describe OSHA’s enforcement policies. The leading case is

Leonard v. Commonwealth, Dep’t of Transp., 771 A.2d 1238 (Pa. 2001).

The plaintiff suffered injuries from a forty-foot fall while he was working for a

steel erection company at a highway construction site. He sought to recover

damages from the project’s general contractor, asserting a breach of a duty

to provide a safe workplace and, in particular, to comply with OSHA

regulations regarding safety lines and nets. In that connection, he cited an

OSHA regulation stating that a prime contractor and a subcontractor “shall

be deemed to have joint responsibility” for safety on the job. Id. at 1241

(citing 29 C.F.R. § 1926.16(d)).          The Supreme Court held the regulation

inapplicable, explaining:

       The regulations cited by Leonard expressly state that they
       concern the scope of enforcement of OSHA requirements. In
       particular, 29 C.F.R. § 1926.16(d) states:      “Where joint
       responsibility exists, both the prime contractor and his
       subcontractor or subcontractors, regardless of tier, shall be
____________________________________________


5      Appellant’s reliance on McLaughlin v. Gastrointestinal Specialists,
Inc., 696 A.2d 173 (Pa. Super. 1997), is misplaced. We held in that case
that it violated public policy to take retaliatory action against an employee
who complained to her employer about workplace safety, and we cited the
Occupational Safety and Health Act in reaching our conclusion. The case
had nothing to do with whether there was a tort duty giving rise to a right to
recovery for personal injuries.


                                           -9-
J-A10028-17


       considered subject to the enforcement provisions of the Act.”
       (Emphasis added).       The fact that OSHA requirements were
       applicable to the project does not, however, mean that [the
       general contractor] had a presence at the site or control over the
       work done by [the steel erector].       Absent those elements,
       liability does not attach.

Id.6

       In Leonard, the Supreme Court considered an OSHA regulation.

Here, not even a regulation is at issue. The “controlling employer” policy on

which Appellant relies is embodied only in an OSHA “compliance directive,”

which, as its name suggests, does no more than provide guidance to OSHA

field offices about how to enforce that agency’s requirements.            See, e.g.,

Aguirre v. Turner Constr. Co., 582 F.3d 808, 814-15 (7th Cir. 2009).

Generally, federal agency guidance documents do not determine rights or

obligations or cause legal consequences, because, by its very nature,

“guidance” is not supposed to have a binding legal effect. See Cement Kiln

Recycling Coal. v. EPA, 493 F.3d 207, 226 n.14 (D.C. Cir. 2007) (noting

that policy statements have no binding effect and leave decision makers free

to exercise discretion).         See generally Nw. Youth Servs., Inc. v.

Commonwealth, Dep't of Pub. Welfare, 66 A.3d 301, 310–12, 314-16

(Pa.   2013)     (discussing     law    relating   to   federal   and   Pennsylvania

administrative guidance materials). We note that Section 286 of the Second


____________________________________________


6      We note with dismay that although Leonard was highlighted by the
trial court in its decision, see Trial Ct. Op. at 8, Appellant fails to cite it in his
brief.


                                          - 10 -
J-A10028-17


Restatement, on which Appellant relies, discusses adoption of standards

from “a legislative enactment or an administrative regulation,” not a

guidance document.

     In any event, apart from its technical administrative status, we

conclude that Compliance Directive 02-00-124 does not set forth the type of

legal requirements that may be used to formulate a Pennsylvania legal duty

under Leonard. The Directive was issued to supplant a section of OSHA’s

Field Inspection Reference Manual, which “provides current information and

guidance to [OSHA’s] national, regional, and area offices concerning OSHA’s

policy and procedures for implementing inspections, issuing citations and

proposing penalties.” OSHA Field Inspection Ref. Manual, at ABSTRACT-2.

The purpose of the Directive was to “clarif[y] the Agency’s multi-employer

citation policy” by giving “clearer and more detailed guidance than did the

earlier description of the policy in the [Field Manual], including new

examples explaining when citations should and should not be issued to

exposing, creating, correcting, and controlling employers.” Directive 02-00-

124, §§ I, IX.A (emphasis added).       The actual policy declared by the

Directive states that “more than one employer may be citable for a

hazardous condition that violates an OSHA standard.” Id. § X.A. (emphasis

added). It thus makes clear that it is discussing only OSHA policy regarding

the issuance of administrative citations for violations of OSHA requirements.

Hence, like the regulation in Leonard, Compliance Directive 02-00-124

concerns only “the scope of enforcement of OSHA requirements,” and its

                                   - 11 -
J-A10028-17


provisions thus “do not establish liability” under Pennsylvania tort law. 771

A.2d at 1241.

      Our conclusion is reinforced in this case by the limited scope that the

OSHA compliance directive has been given by courts that have considered it.

As the trial court explained, the directive has not been applied outside the

construction industry. Trial Ct. Op. at 4-7.

      The directive relates to OSHA’s aim to make multiple employers

responsible for a safety hazard at a worksite by stating that a “controlling

employer” can be cited for an OSHA violation even though it did not actually

commit the violation itself.      OSHA claims authority to impose such

responsibility under the Occupational Safety and Health Act, 29 U.S.C.

§ 654(a)(2), which says only that “[e]ach employer . . . shall comply with

occupational safety and health standards promulgated under this chapter.”

Courts in construction cases have upheld OSHA’s robust assertion of broad

authority under this provision in light of the unique problems posed by

construction worksites. As one court explained:

      The [multi-employer] doctrine has its genesis in the construction
      industry where numerous employers, often subcontractors, work
      in the same general area, and where hazards created by one
      employer often pose dangers to employees of other
      employers. . . .

      The multi-employer doctrine is particularly applicable to multi-
      employer construction worksites, and in fact has been limited
      in application to that context. The nature of construction
      requires that subcontractors work in close proximity with one
      another and with the general contractor at the same worksite.
      “In this situation, a hazard created and controlled by one
      employer can affect the safety of employees of other employers
      on the site.” Rules of craft jurisdiction, however, may limit one
                                    - 12 -
J-A10028-17


       subcontractor's ability to abate hazards posed to its own
       employees that were created by another subcontractor or a
       general contractor.     To alleviate these hazards and ensure
       compliance with safety standards, the general rule regarding
       multi-employer construction worksites is that employers will be
       liable under § 654(a)(2) for hazards the employer either created
       or controlled, regardless of whose employees are threatened by
       the hazard. Thus, a subcontractor that creates a hazard may be
       cited under (a)(2) even if its own employees are not threatened.
       Similarly, a general contractor, which often will not have created
       the hazard but will be in control of the worksite and have
       authority to abate the hazard, may be cited under (a)(2) if it
       unreasonably fails to correct a hazard it created or unreasonably
       fails to direct a subcontractor to correct a hazard created by the
       subcontractor.

Universal Constr. Co. v. Occupational Safety & Health Rev. Comm.,

182 F.3d 726, 728, 730 (10th Cir. 1999) (emphasis added; citations

omitted). 7   But although OSHA’s compliance directive states that OSHA’s

controlling employer policy applies “in all industry sectors,” not just

construction, Directive 02-00-124, § X.A, 8 no court has ever applied the



____________________________________________


7      See also United States v. MYR Grp., Inc., 361 F.3d 364, 366 (7th
Cir. 2004) (“since the contractor is subject to OSHA’s regulations of safety in
construction by virtue of being engaged in the construction business, and
has to comply with those regulations in order to protect his own workers at
the site, it is sensible to think of him as assuming the same duty to the other
workers at the site who might be injured or killed if he violated the
regulations”).

8     This was the import of the July 20, 2012 OSHA letter that Appellant
sought to file with the trial court in connection with its post-trial motion.
Clapp asked whether a policy on multi-employer responsibility drafted by a
construction industry group would be controlling on this issue, and OSHA
responded that because “[t]he multi-employer policy applies to all work
places, not just construction sites,” OSHA did not adopt the construction
group’s standards. The letter, which was not part of the record when the
(Footnote Continued Next Page)

                                          - 13 -
J-A10028-17


directive outside of the construction context.9 Therefore, even if Appellant

could persuade us to find the compliance directive relevant to determining

RPCC’s duty of care, we still would conclude that there is no ground for using

it as a basis for imposing tort liability on the facts before us.

      Here, as in Leonard, the question of RPCC’s duty to Appellant

therefore must be decided without regard to the OSHA policy statement. In

explaining why it granted RPCC’s motion for nonsuit, the trial court engaged


(Footnote Continued) _______________________

trial court granted the nonsuit, has no force of law and has no bearing on
this case.

9     See Brennan v. Occupational Safety & Health Rev. Comm’n, 513
F.2d 1032 (2d Cir. 1975); Am. Petroleum Inst. v. OSHA, 581 F.2d 493,
508-09 (5th Cir. 1978), aff'd sub nom. Indus. Union Dep't, AFL-CIO v.
Am. Petroleum Inst., 448 U.S. 607 (1980); R.P. Carbone Constr. Co. v.
Occupational Safety & Health Rev. Comm’n, 166 F.3d 815 (6th Cir.
1998); United States v. Pitt-Des Moines, Inc., 168 F.3d 976 (7th Cir.
1999); Marshall v. Knutson Constr. Co., 566 F.2d 596 (8th Cir. 1977);
Beatty Equip. Leasing, Inc. v. Sec’y of Labor, 577 F.2d 534 (9th Cir.
1978); Calloway v. PPG Indus., Inc., 155 F. App’x 450, 455 (11th Cir.
2005) (per curiam); Ariz. Pub. Serv. Co. v. Indus. Comm’n of Ariz., 873
P.2d 679, 681-83 (Ariz. Ct. App. 1994); Wendland v. Ridgefield Constr.
Servs., Inc., 439 A.2d 954, 956 (Conn. 1981); Presley v. Commercial
Moving & Rigging, Inc., 25 A.3d 873, 881, 887 n.12 (D.C. 2011); Dep’t
of Labor v. Hayes Drilling, Inc., 354 S.W.3d 131, 138-39, 140 n.3 (Ky.
Ct. App. 2011) (citing Hargis v. Baize, 168 S.W.3d 36, 43 (Ky. 2005)); C &
M Builders, LLC v. Strub, 22 A.3d 867, 873 n.2 (Md. 2011); Bastian v.
Carlton Cty. Highway Dep’t, 555 N.W.2d 312, 316-18 (Minn. Ct. App.
1996); Costantino v. Ventriglia, 735 A.2d 1180, 1181-84 (N.J. App. Div.
1999), cert. denied, 746 A.2d 456 (N.J. 2000); Flores v. Infrastructure
Repair Serv., LLC, 34 N.Y.S.3d 324, 329 (N.Y. Sup. Ct. 2015); Comm’r of
Labor of N.C. v. Weekley Homes, L.P., 609 S.E.2d 407, 413 (N.C. Ct.
App), appeal dismissed, 616 S.E.2d 227 (N.C. 2005); Martinez Melgoza
& Assocs., Inc. v. Dep't of Labor & Indus., 106 P.3d 776, 779 n.8
(Wash. Ct. App.), review denied, 124 P.3d 304 (Wash. 2005); France v.
S. Equip. Co., 689 S.E.2d 1, 15 (W. Va. 2010).


                                         - 14 -
J-A10028-17


in an extensive discussion of the record to show that Appellant failed to

present sufficient evidence to reach the jury on its “controlling employer”

claim. That same evidentiary review reveals that there is no evidence in the

record by which RPCC can be held to have assumed any duty regarding

safety in the leased areas of the Market building and that it therefore

breached no duty to Appellant that can give rise to a claim for negligence. 10

       RPCC’s leases with its tenants, including TMK, contain no provisions

under which RPCC assumes responsibility for the safety of its tenants’

employees or for those employees’ compliance with workplace safety

standards. Rather, Paragraph 5(d) of TMK’s lease states:

       Lessee, at Lessee’s sole expense, shall fully comply with, and
       cause all of Lessee’s contractors, agents, servants, sub-
       Subtenants, employees and licensees to comply with, all
       Applicable Laws, and will maintain (or cause to be maintained)
       all Authorizations as may be required by Applicable Laws for the
       lawful operation of the Premises and Lessee’s use of and
       operations on, the Property. Without limiting the generality of
       the foregoing, after the Delivery Date, Lessee shall comply with
       the requirements of (a) all zoning, subdivision, building, land use
       and similar Applicable Laws; (b) the Occupational Safety and
       Health Act (and all regulations promulgated thereunder), (e) the
       Americans with Disabilities Act (and all regulations promulgated
       thereunder), as the same may be amended from time to time
       (collectively, the “ADA”); and (d) any Title Exceptions, [real
       estate agreements,] and Environmental Covenants.

____________________________________________


10     Although our rejection of Appellant’s claim based on the OSHA
compliance directive makes it unnecessary to review the trial court’s decision
that Appellant’s evidence was insufficient to prove RPCC is a “controlling
employer” under the OSHA directive, we have reviewed the evidence and
agree with the trial court’s conclusion that Appellant’s evidence was
insufficient.


                                          - 15 -
J-A10028-17


The lease thus specifically required TMK to have its employees comply with

all applicable OSHA regulations and to maintain all authorizations required

by OSHA. The lease imposed no such requirements on RPCC, although RPCC

does make sure that all of its own employees are OSHA-certified.          N.T.,

1/13/16 P.M., at 18-20.

      RPCC’s obligations under the lease were described at trial by its

general manager, Daniel Kane, who explained that those obligations extend

to common areas of the Market building, but not to individual leasehold

areas. The trial court reviewed relevant portions of Mr. Kane’s testimony in

its opinion:

      RPCC’s responsibilities for maintaining the concourse and other
      common spaces include “anything from a light bulb being out
      that needs to be replaced; if one of the dock doors leading
      outside is off track or needs to be replaced; and then we do a
      general sweep and scrub of the floors at the end of each day,” as
      well as monitoring parking and admission for the public, and
      general sanitation and maintenance of the public concourse
      spaces. [N.T., 1/13/16 P.M., at] 54-55. . . .

             Mr. Kane testified that RPCC does not have the power or
      authority to control how tenants’ employees perform their jobs,
      due to the lease and collective bargaining agreements. [N.T.,
      1/13/16 P.M., at 37]. RPCC does not have the ability to hire,
      fire, train, or discipline any employee of the tenants covered by
      the collective bargaining agreements. Id. [at] 58-59.

            “Employers are responsible for the safe operation of their
      employees on the equipment,” Mr. Kane said. [N.T., 1/13/16
      P.M., at] 37. RPCC relied on each of the various tenants to train
      its own employees, which was consistent with the union
      contract.   “We don’t have the ability to train or discipline
      employees that aren’t ours.” Id.

            Specifically, RPCC cannot enforce or require that tenant's
      employees be OSHA-certified to operate powered industrial
      trucks in the common areas. [N.T., 1/13/16 P.M., at] 21.
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J-A10028-17


            We don’t — we don’t control the means and methods
            of how the individual tenants do their business. All
            the employees are union employees. We’re a union
            shop and we respect that, the chain of command
            that occurs within the union collective bargaining
            agreement which doesn’t require [certification].

                                    *****
            Again, per the lease of the — with the tenants and
            also the collective bargaining agreement, we don’t —
            we can’t enforce or require that sort of certification
            amongst employees that are not our own.

      [N.T., 1/13/16 P.M., at] 21.

            Mr. Kane stated that the only action within RPCC’s power
      regarding non-RPCC employees is limited to issuing a “verbal
      correction or reminder of sorts” if Mr. Kane saw them using a
      powered industrial truck unsafely while in the public concourse
      areas. [N.T., 1/13/16 P.M., at] 22. . . .

            Mr. Kane said that RPCC’s safety policies only deal with the
      safety of customers and the security of the Market, and not with
      the safety of tenant[s’] employees. . . .

Trial Ct. Op. at 13-15.   The trial court also reviewed testimony by TMK’s

operations executives and found nothing in that testimony to contradict that

of Mr. Kane. See id. at 16-18. Our own review of the testimony supports

the trial court’s conclusion.   RPCC therefore did not contractually assume

any duty of care toward Appellant.

      Finally, his appellate brief Appellant contends that, apart from whether

RPCC was a controlling employer, RPCC had a duty of care under Sections




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J-A10028-17


343 and 344 of the Second Restatement of Torts. Appellant’s Brief at 28.11

Section 343 provides:

       A possessor of land is subject to liability for physical harm
       caused to his invitees by a condition on the land if, but only if,
       he

              (a) knows or by the exercise of reasonable care would
              discover the condition, and should realize that it involves
              an unreasonable risk of harm to such invitees, and

              (b) should expect that they will not discover or realize the
              danger, or will fail to protect themselves against it, and

              (c) fails to exercise reasonable care to protect them
              against the danger.

Comment a to Section 343 states that it “should be read together with”

Section 343A, which provides:

       (1) A possessor of land is not liable to his invitees for physical
       harm caused to them by any activity or condition on the land
       whose danger is known or obvious to them, unless the possessor
       should anticipate the harm despite such knowledge or
       obviousness.

       (2) In determining whether the possessor should anticipate harm
       from a known or obvious danger, the fact that the invitee is
       entitled to make use of public land, or of the facilities of a public


____________________________________________


11     Although Appellant did not raise this issue in his post-trial motion, he
did raise it in his brief in support of that motion. Appellant’s Br. in Supp. of
His Mot. for Post-trial Relief at 19-20. Appellant’s motion for post-trial relief
was due prior to transcription of the notes of testimony from the trial.
Appellant’s Mot. for Post-trial Relief at ¶ 28. Appellant thus requested the
right to supplement that motion upon receipt of the notes of testimony. Id.
at ¶¶ 30-31. Hence, we decline to find this issue waived, even though,
generally, “[i]f an issue has not been raised in a post-trial motion, it is
waived for appeal purposes.” Sovereign Bank v. Valentino, 914 A.2d
415, 426 (Pa. Super. 2006) (citations omitted).


                                          - 18 -
J-A10028-17


       utility, is a factor of importance indicating that the harm should
       be anticipated.

Section 344 provides:

       A possessor of land who holds it open to the public for entry for
       his business purposes is subject to liability to members of the
       public while they are upon the land for such a purpose, for
       physical harm caused by the accidental, negligent, or
       intentionally harmful acts of third persons or animals, and by the
       failure of the possessor to exercise reasonable care to

              (a) discover that such acts are being done or are likely to
              be done, or

              (b) give a warning adequate to enable the visitors to avoid
              the harm, or otherwise to protect them against it.

       None of these Restatement provisions applies here.           Appellant’s

accident occurred in a refrigerated portion of TMK’s leased premises, not in a

common area for which RPCC was responsible and in which Appellant was a

business invitee.     Sections 343 and 343A therefore are inapplicable.     And

Section 344 does not apply because a landowner’s liability under that

provision does not extend to protecting the employees of an independent

business operating on its property as a tenant from the acts of other

employees of that business.         Cf. Brletich v. U.S. Steel Corp., 285 A.2d

133, 135 (Pa. 1971) (independent contractor). 12         Because none of the

____________________________________________


12 We also note that there can be no liability under Section 343 unless the
owner “should expect that [invitees] will not discover or realize the danger,
or will fail to protect themselves against it,” nor under Section 343A if the
injury was caused by a known and obvious danger. Campisi v. Acme
Markets, Inc., 915 A.2d 117, 119 (Pa. Super. 2006) (business had no
liability to customer who allegedly was injured when he tripped over cane of
a blind employee, because danger was obvious); see also Atkins v. Urban
(Footnote Continued Next Page)

                                          - 19 -
J-A10028-17


Restatement provisions apply, Appellant’s argument based on them is

without merit.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/13/2017




(Footnote Continued) _______________________

Redevelopment Auth. of Pittsburgh, 414 A.2d 100, 103-04 (Pa. 1980)
(liability depends on the obviousness of the danger and the likelihood that
the invitee would realize the danger and take steps to protect himself).


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