J-A14041-16


                                   2016 PA Super 180

EDWARD R. KRISHACK,                                   IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                              Appellant

                       v.

MILTON HERSHEY SCHOOL,

                              Appellee                     No. 1408 MDA 2015


                  Appeal from the Order Entered July 23, 2015
                in the Court of Common Pleas of Dauphin County
                     Civil Division at No.: 2013-CV-08243-CV


BEFORE: BOWES, J., OTT, J., and PLATT, J.*

OPINION BY PLATT, J.:                                     FILED AUGUST 15, 2016

        Appellant, Edward R. Krishack, appeals from the trial court’s order

granting summary judgment in favor of Appellee, Milton Hershey School

(MHS), in this negligence action. We affirm.

        We take the following background from our review of the certified

record. From 1948 through 1953, Appellant resided at MHS, which provides

free education and a home for children “from families of low income, limited

resources,    and    social    need[.]”        (Amended   Complaint,   10/22/13,   at

unnumbered page 1).1           While Appellant was at MHS, the students lived in

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*
    Retired Senior Judge assigned to the Superior Court.
1
 Appellant originally filed his action against MHS in Washington County on
April 5, 2013. However, the Washington County Court of Common Pleas
(Footnote Continued Next Page)
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farm homes with house parents and, in addition to attending school, they

performed farm chores, including putting up hay and cleaning the chicken

coop. (See id. at unnumbered pages 3-5). The children did their chores in

the mornings before school, and upon returning home after school.                  (See

Official Handbook for MHS House Parents, at 37).

      After   leaving      MHS     in   1953,    Appellant   lived   at   an   unrelated

Pennsylvania farm for three weeks, where he also performed chores such as

milking, and cleaning up after, cows. (See Appellant’s Deposition, 6/27/13,

at 21-22). Thereafter, Appellant lived with a foster family in Pennsylvania

until his graduation from high school in 1955.               (See id. at 23).      After

graduating, Appellant lived in Ohio, where he worked in construction

performing general labor such as raking and shoveling dirt. (See id. at 24,

61). Appellant then lived in several locations throughout the United States

before returning to Ohio, where he resided from 1961 through 2005. (See

Appellant’s Answers to Interrogatories, at 3-4).             While in Ohio, Appellant

purchased his first horse in 1969; and he owned and worked with horses at

dirt race tracks, until 2005. (See id. at 8; Appellant’s Deposition, at 41, 45,

51-52).

      In 1998, Appellant sought treatment from pulmonologist, Dr. Randall

Harris, for emphysema resulting from his “long-standing tobacco abuse.”
                       _______________________
(Footnote Continued)

transferred the case to Dauphin County on September 19, 2013, due to its
lack of jurisdiction.



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J-A14041-16


(Deposition of Dr. Randall Harris, 1/07/14, at 16-17). Appellant was sixty-

one years old at the time, and had “an extensive smoking history[,]” which

included smoking one-and-a-half packs a day for approximately forty years,

beginning at the age of eighteen. (Dr. Harris Medical Record for Appellant,

7/13/98, at unnumbered page 1; see also Expert Report of Dr. David

Laman, 9/11/14, at unnumbered page 1; Appellant’s Deposition, at 142-44).

While treating Appellant for emphysema, Dr. Harris diagnosed him with an

old granuloma, or stable calcified deposit, detected on his lung in a 2001 x-

ray. (See Deposition of Dr. Randall Harris, at 37-38). Dr. Harris noted that

there were no symptoms associated with the stable calcified deposits, and

that no treatment was necessary. (See id. at 38; see also id. at 41 (“It’s

stable. It’s calcified. It’s chronic.”)). The calcified deposit resulted from a

history of interstitial fibrosis, for which Dr. Harris did not know the cause.

(See id. at 44).

       Twelve years later, in 2013, Appellant filed a complaint against MHS

alleging that he “suffers from old granulomatous [disease] consistent with

old fungal-related histoplasmosis.”2           (Amended Complaint, at unnumbered

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2
  Histoplasma capsulatum fungus causes histoplasmosis, which is commonly
found in the major river valleys of the United States, including the Ohio
River, and the eastern portion of the United States, including Pennsylvania.
(See Affidavit of David Laman, M.D., 2/09/15, at 3; Expert Report of David
F. Goldsmith, PhD, 9/01/14, at 4). The fungus grows well in soils that are
high in nitrogen, and bird fecal matter can be a source for its growth. (See
Expert Report of David F. Goldsmith, PhD, at 4). According to Dr. Harris,
(Footnote Continued Next Page)


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J-A14041-16


page 5).    Specifically, Appellant maintains that his exposure to “hay dust

and farm related excreta” as a result of his performance of farm-related

chores as an MHS student from 1948 until 1953, resulted in his old

granulomatous disease.           (Id. at unnumbered page 6; see id. at 5).

Appellant filed an amended complaint on April 5, 2013. MHS filed an answer

and new matter on November 4, 2013, and a motion for summary judgment

on May 9, 2014. MHS argued that Appellant’s complaint was barred by the

statute of limitations. The court denied the motion on August 7, 2014.

      Thereafter, the parties conducted extensive discovery that included

interrogatories, depositions, and expert reports. On January 15, 2015, MHS

filed a motion for summary judgment in which it maintained that “Appellant

failed to provide any evidence that the fungus that causes histoplasmosis

was ever present at [MHS], much less when he was a student.” (MHS Brief,

at 5) (citing MHS Motion for Summary Judgment, 1/15/15). The court heard

argument on the motion on April 7, 2015, and granted it on July 23, 2015,

on the basis advanced by MHS, that Appellant failed to present any evidence

that the Histoplasma capsulatum fungus ever existed at MHS.       (See Trial




                       _______________________
(Footnote Continued)

histoplasmosis is the leading cause of granulomatous disease in Ohio
residents. (See Deposition of Dr. Harris, at 24).




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J-A14041-16


Court Opinion, 7/28/15, at unnumbered pages 1, 4).            Appellant timely

appealed.3

       Appellant presents two questions for the Court’s review:

       I.    Did the trial court err in granting [MHS’s] summary
       judgment motion by disregarding the expert reports and
       affidavit, a part of the record evidence, which conclude the
       extreme exposures while at [MHS] resulted in Appellant
       experiencing symptoms which were a response to H. capsulatum
       fungus exposure thereby raising a genuine issue of material fact
       as to whether Appellant’s exposures at [MHS] caused his
       pulmonary injury/illness?

       II.  Did the trial court err when it determined that the opinions
       expressed in Appellant’s experts’ reports were not competent
       and were based on speculation and conjecture?

(Appellant’s Brief, at 4) (unnecessary capitalization omitted).4

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3
  Appellant filed a timely statement of errors complained on appeal on
September 1, 2015, pursuant to the trial court’s order. See Pa.R.A.P.
1925(b). The court filed an opinion on September 3, 2015, in which it relied
on the reasons stated in its July 28, 2015 opinion. See Pa.R.A.P. 1925(a).
4
  Although Appellant alleges that he raises two questions for our review, we
will address them together because they both challenge the trial court’s
decision to grant MHS’s motion for summary judgment. In fact, in violation
of Rule 2119(a), Appellant himself combines the two issues under the first
heading in the argument section of his brief, “there is sufficient evidence in
the record to raise a genuine issue of material fact as to whether
[Appellant’s] heavy and frequent exposures at [MHS] caused his injuries.”
(Appellant’s Brief, at 15) (most capitalization omitted); see also Pa.R.A.P.
2119(a). Under the second heading in the argument section, Appellant
factually distinguishes the cases relied upon by the trial court.        (See
Appellant’s Brief, at 28-35). Even assuming arguendo that some of the
cases relied upon by the trial court were factually distinguishable, as we
discuss in the body of this decision, the trial court properly found that
summary judgment was appropriate for Appellant’s failure to establish a
genuine issue of material fact regarding proximate causation.



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J-A14041-16


      Our standard of review is well-settled:

             Our standard of review of an order granting summary
      judgment requires us to determine whether the trial court
      abused its discretion or committed an error of law[,] and our
      scope of review is plenary. We view the record in the light most
      favorable to the nonmoving party, and all doubts as to the
      existence of a genuine issue of material fact must be resolved
      against the moving party. Only where there is no genuine issue
      as to any material fact and it is clear that the moving party is
      entitled to a judgment as a matter of law will summary
      judgment be entered.

                                  *    *    *

      . . . [F]ailure of a nonmoving party to adduce sufficient evidence
      on an issue essential to his case and on which he bears the
      burden of proof establishes the entitlement of the moving party
      to judgment as a matter of law.

Rodriguez v. Kravco Simon Co., 111 A.3d 1191, 1193 (Pa. Super. 2015)

(citation omitted).

      In this case, Appellant maintains that the trial court improperly

entered summary judgment because it “erred in determining that Dr.

Laman’s opinion is based on mere speculation and conjecture[]” where he

employed “simple deductive reasoning to opine that [Appellant] contracted

histoplasmosis while at [MHS.]” (Appellant’s Brief, at 15, 18). We disagree.

      This Court has long-observed that:

            To prove their negligence claim, [p]laintiffs[] [are]
      required to establish: a legally recognized duty or obligation
      owed them by [defendant]; a breach of that duty; a causal
      connection between the breach of duty and the resulting injury;
      and actual loss or damage suffered by plaintiffs. Even with proof
      of both breach of duty as prescribed under statute and the
      occurrence of injury, therefore, [plaintiffs are] still obligated to
      show the two were linked by causation.

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J-A14041-16



            To prove causation, a demonstration that the breach of
     duty was both the proximate cause and actual cause of injury
     [is] required. It is not sufficient . . . that a negligent act may be
     viewed, in retrospect, to have been one of the happenings in the
     series of events leading up to an injury. Even if the requirement
     of actual causation has been satisfied, there remains the issue of
     proximate or legal cause. . . .

            Proximate causation is defined as a wrongful act which was
     a substantial factor in bringing about the plaintiff’s harm. A
     determination of proximate or legal causation therefore
     essentially regards whether the alleged negligence was so
     remote that as a matter of law, the defendant cannot be held
     legally responsible for the subsequent harm.

Eckroth v. Penn. Elec., Inc., 12 A.3d 422, 427-28 (Pa. Super. 2010),

appeal denied, 21 A.3d 678 (Pa. 2011) (citations and quotation marks

omitted). Further:

     A plaintiff cannot survive summary judgment when mere
     speculation would be required for the jury to find in plaintiff’s
     favor. A jury is not permitted to find that it was a defendant’s
     [negligence] that caused the plaintiff’s injury based solely upon
     speculation and conjecture; there must be evidence upon which
     logically its conclusion must be based. In fact, the trial court has
     a duty to prevent questions from going to the jury which would
     require it to reach a verdict based on conjecture, surmise, guess
     or speculation.      Additionally, a party is not entitled to an
     inference of fact that amounts merely to a guess or conjecture.

Krauss v. Trane U.S. Inc., 104 A.3d 556, 568 (Pa. Super. 2014) (citations

and quotation marks omitted).

     In the case before us, the trial court observed:

           [Appellant] asserts that, at MHS, he was required to work
     in a commercial farming environment where he was exposed to
     extreme amounts of dangerous agriculture-related dust and
     particulates without respiratory protection. . . .


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J-A14041-16


                                *    *    *

     . . . [Appellant] presents reports of experts, namely David
     Laman, M.D., who is a board certified pulmonologist and David
     F. Goldsmith MSPH, PhD, who is an occupational and
     environmental epidemiologist. These reports adequately opine
     to a reasonable degree of certainty that histoplasmosis is caused
     by exposure to H. capsulatum soil fungus. Furthermore, both of
     these experts opine to a reasonable degree of certainty that the
     H. capsulatum soil fungus can be found with and among bird
     feces, especially in chicken coops.

           Expert testimony is incompetent if it lacks an adequate
     basis in fact. [See] Gillingham v. Consol Energy, Inc.,[] 51
     A.3d 841, 849 ([Pa. Super.] 2012)[, appeal denied, 75 A.3d
     1282 (Pa. 2013)]. An opinion based on mere possibilities,
     conjecture or surmise is, therefore, not competent. [See i]d.
     The expert’s assumptions must be based upon facts that the jury
     would be warranted in finding from the evidence. [See i]d.

           According to [Appellant’s] experts’ reports, Histoplasmosis
     is only caused by exposure to H. capsulatum fungus. The
     missing link is that [Appellant] has not shown that the H.
     capsulatum fungus was present at MHS when [he] was at the
     school or even that this particular fungus was ever present at
     the school. Neither Dr. Laman nor Dr. Goldsmith have provided
     any factual basis for their assertions that H. capsulatium fungus
     was present at MHS while [Appellant] was attending and
     performing farm chores or at any other time. Rather, both
     experts make a speculative assumption that the fungus must
     have been present at MHS while [Appellant] resided there
     because [he] developed histoplasmosis. Dr. Laman opines that
     chicken coops have been identified as a source of the H.
     capsulatum fungus, but does not opine that this fungus is
     present in all chicken coops, or even that it is present in the
     majority of chicken coops. Neither expert performed any tests
     of the soil at MHS. Additionally, [Appellant] has not identified
     any other person or persons with whom [he] attended MHS who
     has developed histoplasmosis. If this case were to go to a jury,
     the jury would have no factual evidence upon which to find that
     [Appellant’s] histoplasmosis was caused by his work at [] MHS.
     Thus, the jury would be asked to make a decision based upon
     mere conjecture and speculation that the fungus must have
     existed there because [Appellant] developed histoplasmosis

                                    -8-
J-A14041-16


      approximately sixty years after he was no longer performing
      farm chores at MHS. This type of conjecture is insufficient to
      allow a jury to decide [Appellant’s] claims.

(Trial Ct. Op., at unnumbered pages 2-4). We agree with the trial court that

Appellant failed to prove proximate causation. See Eckroth, supra at 427-

28.

      Additionally, we are not legally persuaded by Appellant’s argument

that Dr. Laman’s use of “simple deductive reasoning,” and logic, established

that he “developed histoplasmosis while at [MHS].”     (Appellant’s Brief, at

15; see id. at 16-28). Specifically, Appellant claims that “Dr. Laman relied

upon his professional experience which includes a [forty-plus] year career in

the field of respiratory/pulmonary medicine and familiarity with, and working

knowledge of, a wide array of relevant literature in the field.” (Id. at 18)

(record citation omitted). This argument is not compelling.

      The evidence in this case is that Appellant was a student at MHS for

approximately five years, from 1948 to 1953, during which time he

performed farm chores before and after school that included baling hay and

cleaning out a chicken coop. (See Amended Complaint, at 1, 4-5); (Official

Handbook for MHS House Parents, at 37).       Over the approximately sixty

years’ since that time, Appellant has performed similar tasks at other farms,

worked construction as a general laborer, which required the raking and

shoveling of soil, and owned horses that he trained at a dirt track.    (See

Appellant’s Deposition, at 21-22, 41, 45, 51-52, 61); (Appellant’s Answers to


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J-A14041-16


Interrogatories, at 3-4, 8). For the majority of those sixty years, Appellant

lived throughout Ohio and Pennsylvania, both of which are known to have

soil containing H. capsulatum fungus. (See Affidavit of David Laman, M.D.,

at 3; Expert Report of David F. Goldsmith, PhD, at 4). H. capsulatum, which

can be found in the soil of a chicken coop, causes histoplasmosis, but there

was no evidence that the fungus is in all chicken coops or that it was present

at MHS at any time.     (See Affidavit of David Laman, M.D., at 3; Expert

Report of David F. Goldsmith, PhD, at 4; Deposition of Dr. Harris, at 24).

      In 2001, while undergoing therapy for emphysema caused by

approximately forty years of heavy smoking, Appellant was diagnosed with

unrelated old granulomatous disease, or calcified deposits on his lungs.

(See Dr. Harris Medical Record for Appellant, at unnumbered page 1;

Deposition of Dr. Harris, at 37-38; Expert Report of Dr. Laman, at

unnumbered page 1). Dr. Harris, Appellant’s treating pulmonologist, could

not say that histoplasmosis resulted in the old granulomatous disease. (See

Deposition of Dr. Harris, at 42-44).

      Based on these facts, Dr. Laman’s opinion that, because Appellant had

histoplasmosis at some unidentified point in his life, the soil at MHS over

sixty years ago must have contained H. capsulatum, and that this caused his

old   granulomatous    disease,   requires      more   than   “simple   deductive

reasoning,” but instead required impermissible “speculation and conjecture.”

Krauss, supra at 568; (Appellant’s Brief, at 15). Even assuming arguendo,


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J-A14041-16


that Appellant established genuine issues of material fact about whether

MHS breached a duty to him by failing to provide him with respiratory

protection, and that such beach resulted in damages,5 Appellant utterly

failed to prove proximate causation.               See Eckroth, supra at 427-28.

Therefore, we conclude that the trial court properly granted the motion for

summary judgment of MHS. See Rodriguez, supra at 1193.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/15/2016




____________________________________________


5
 Because the trial court granted the motion for summary judgment on the
basis of Appellant’s inability to establish proximate causation, we do not
address the other factors necessary for a negligence claim. See Eckroth,
supra at 427-28.



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