J-A08028-16
                              2016 PA Super 178
DAVID AND DEBORAH BARNES, H/W                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellants

                    v.

ALCOA, INC., F/K/A THE PITTSBURGH
REDUCTION COMPANY AND ALUMINUM
COMPANY OF AMERICA AND AEES, INC.
F/K/A ALCOA FUJIKURA, INC. AND
ALCOA INTER-AMERICA, INC., AND
ALCOA SERVICE CORPORATION AND
KAWNEER COMPANY, INC. AND G & M
CRAWFORD, INC.

                         Appellees                   No. 202 EDA 2015


           Appeal from the Judgment Entered February 11, 2015
            In the Court of Common Pleas of Philadelphia County
           Civil Division at No(s): December Term, 2012 No. 0844

BEFORE: BOWES, OLSON and STRASSBURGER,* JJ.

OPINION BY OLSON, J.:                              FILED AUGUST 12, 2016

      David and Deborah Barnes (collectively “Appellants”) appeal from the

judgment entered on February 11, 2015, as made final by the order entered

on May 31, 2016. We affirm.

      The factual background of this case is as follows. Kawneer Company,

Inc. (“Kawneer”), a wholly owned subsidiary of Alcoa, Inc. (“Alcoa”)

contracted with G&M Crawford, Inc. (“G&M”) to clear snow and ice from its

production facility’s parking lot.    On February 8, 2011, David Barnes was

walking to his car after completing his shift at Kawneer’s facility.    David




* Retired Senior Judge assigned to the Superior Court
J-A08028-16


Barnes fell on snow and ice and fractured his femur. This fracture required

amputation of David Barnes’ leg above his knee.

      The procedural history of this case is as follows.    On December 7,

2012, Appellants filed a complaint against several parties, including, inter

alia, Alcoa and G&M. On February 14, 2013, Appellants filed their second

amended complaint.        Trial commenced on October 20, 2014.         At the

conclusion of the Appellants’ case-in-chief on October 27, 2014, Alcoa and

G&M moved for a compulsory nonsuit.         The trial court granted Alcoa’s

nonsuit motion but denied G&M’s nonsuit request.        Eventually, the jury

returned a verdict in favor of Appellants, and against G&M, in the amount of

$1,300,000.00.

      On November 7, 2014, Appellants filed a post-trial motion to lift the

nonsuit against Alcoa.    The trial court denied the motion on December 3,

2014. Appellants filed a premature notice of appeal on December 31, 2014.

Eventually, judgment was entered in favor of Alcoa and against Appellants.

On May 31, 2016, Appellants filed a notice of discontinuance as to G&M.

Appellants’ notice of appeal is therefore considered filed as of May 31, 2016.

See Pa.R.A.P. 905(a)(5).

      Appellants present one issue for our review:

      Whether the trial court erred as a matter of law in entering a
      nonsuit in favor of [] Alcoa. . . ?

Appellants’ Brief at 3.




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       Appellants argue that the trial court erred in granting Alcoa’s nonsuit

motion for two reasons.        First, they argue that Alcoa was liable for

negligently hiring/supervising G&M to remove snow from Kawneer’s parking

lot.   Second, they argue that Alcoa was liable under section 324A of the

Restatement (Second) of Torts. Alcoa contends that Appellants waived their

arguments for failure to raise the relevant issues in their post-trial motion

and for failure to include the issues in their concise statement of errors

complained of on appeal pursuant to Pennsylvania Rule of Appellate

Procedure 1925(b) (“concise statement”).     Furthermore, Alcoa argues that

even if Appellants preserved their claims for appellate review, the trial court

properly granted a compulsory nonsuit.

       We first consider whether Appellants preserved their section 324A and

negligent hiring/supervision claims. Initially, we examine Appellants’ post-

trial motion.    Pennsylvania Rule of Civil Procedure 227.1 provides, in

relevant part, that “post-trial relief may not be granted unless the grounds

therefor . . . are specified in the motion. The motion shall state how the

grounds were asserted in pre-trial proceedings or at trial. Grounds not

specified are deemed waived unless leave is granted upon cause shown to

specify additional grounds.”     Pa.R.C.P. 227.1(b)(2).    Alcoa argues that

Appellants’ claims were not raised in their post-trial motion and, therefore,

were not preserved for appellate review.      Appellants, on the other hand,




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contend that their post-trial motion adequately addressed their section 324A

and negligent hiring/supervision claims.

      Pennsylvania appellate courts have rarely discussed the specificity

required under Rule 227.1(b)(2) with respect to removing a compulsory

nonsuit.    Most cases in which the appellate courts of this Commonwealth

discuss the specificity requirement for removing a compulsory nonsuit

addressed situations in which the defendant offered evidence at trial prior to

moving for nonsuit.     Prior to 2001, a defendant could not move for a

compulsory nonsuit after offering evidence at trial.        See Pa.R.C.P. 230.1

cmt. This Court held, under the prior rule, that failure to argue in a post-

trial motion that the trial court erred in granting a nonsuit because the

defendant offered evidence at trial waived the issue for appellate review.

E.g., Dietzel v. Gurman, 806 A.2d 1264, 1269 (Pa. Super. 2002) (citations

omitted).

      In those cases, the trial court may have forgotten that the defendant

presented evidence during the plaintiff’s case-in-chief and/or may have

forgotten former-Rule 230.1’s prohibition on offering evidence prior to

moving for a compulsory nonsuit. Thus, requiring a plaintiff to specify in the

post-trial motion that the trial court erred by granting a nonsuit after the

defendant offered evidence served the general purpose of Rule 227.1.         It

gave the trial court the opportunity to fix its error prior to the filing of a

notice of appeal, helping to preserve judicial resources.



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      This is different than the circumstances present in the case sub judice.

First, the rules have changed and no longer prohibit defendants from moving

for nonsuit after introducing evidence at trial.       Second, the issue here is

whether Appellants raised issues by name, or obvious reference, in their

post-trial motion.     Third, Appellants’ claims are consistent with themes

raised throughout the case.

      In this case, the trial court knew exactly the theories of liability upon

which Appellants      were proceeding,       i.e., section 324A and negligent

hiring/supervision.    Appellants’ second amended complaint, although not

specifying those grounds by name, pleads the requisite facts to establish

section 324A and negligent hiring/supervision liability.          See Appellants’

Second Amended Complaint, 2/14/13, at 8-12. Alcoa’s motion for summary

judgment,    while    not   using   the   terms   “section   324A”   or   “negligent

hiring/supervision,” essentially argued that there were no factual disputes

and Alcoa was entitled to judgment as a matter of law with respect to those

claims.   See generally Alcoa’s Motion for Summary Judgment, 6/2/14.

Furthermore, Alcoa’s motion for a compulsory nonsuit, while not using the

terms “section 324A” or “negligent hiring/supervision,” essentially argued

that Appellants failed to satisfy their prima facie case with respect to those

claims.   See Alcoa’s Motion for Nonsuit, 10/27/14.1          Appellants’ post-trial


1
 In their reply brief, Appellants argue that Alcoa waived certain arguments
by not raising those issues in its motion for compulsory nonsuit. Appellants’
(Footnote Continued Next Page)


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motion employed similar terminology to that used in their second amended

complaint.   Finally, the trial court addressed the issues relevant to section

324A and negligent hiring/supervision claims in its Rule 1925(a) opinion.

See Trial Court Opinion, 8/31/15, at 3-6.           Thus, we conclude that

Appellants’ post-trial motion sufficiently challenged, substantively if not by

name, the trial court’s grant of a compulsory nonsuit with respect to the

section 324A and negligent hiring/supervision claims.

      Alcoa next argues that Appellants waived their section 324A and

negligent hiring/supervision claims for failing to raise those issues in their

concise statement. Pennsylvania Rule of Appellate Procedure 1925 provides,

in relevant part, that, “Issues not included in [a concise statement] . . . are

waived.” Pa.R.A.P. 1925(b)(4)(vii). As this Court recently explained:

      Rule 1925 is intended to aid trial judges in identifying and
      focusing upon those issues which the parties plan to raise on
      appeal. Rule 1925 is thus a crucial component of the appellate
      process. When a court has to guess what issues an appellant is
      appealing, that is not enough for meaningful review. When an
      appellant fails [to] adequately [] identify in a concise manner the
      issues sought to be pursued on appeal, the trial court is impeded
      in its preparation of a legal analysis which is pertinent to those
      issues. In other words, a [c]oncise [s]tatement which is too
                       _______________________
(Footnote Continued)
Reply Brief at 16-17. This argument is without merit. In its motion for
nonsuit, Alcoa argued that it did not hire or supervise G&M. See Alcoa’s
Motion for Nonsuit, 10/27/14, at 2-3. Similarly, Alcoa argued that it did not
undertake a duty to ensure the safety of the parking lot in which David
Barnes fell. See id. at 3-4, 7-8. Alcoa, like Appellants, used language that
did not closely conform to the elements of negligent hiring/supervision and
section 324A claims; however, the substance of Alcoa’s arguments were
clear. We therefore decline to find that Alcoa waived its arguments for the
same reason we decline to find Appellants’ arguments waived.



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J-A08028-16


      vague to allow the court to identify the issues raised on appeal is
      the functional equivalent of no [c]oncise [s]tatement at all.

Commonwealth v. Ray, 134 A.3d 1109, 1114 (Pa. Super. 2016) (citation

omitted).

      In this case, Appellants’ concise statement alleged that the trial

“[c]ourt erred or abused its discretion in granting [Alcoa] a [nonsuit] when

factual disputes existed over whether [Alcoa] employed personnel at

[Kawneer’s facility] who were responsible for maintenance, selection of

contractors, supervision of contractors, parking procedures, snow plowing

procedures, and safety of the grounds.”       Appellants’ Concise Statement,

1/26/15, at 2. This allegation of error raised themes consistently asserted

by Appellants throughout trial and clearly conveyed to the trial court that

Appellants believed that there was sufficient evidence for their negligent

hiring/supervision claim to go to the jury and that granting Alcoa’s

compulsory nonsuit motion as to this theory of liability was an error.

      Appellants’ concise statement also alleged that the trial court erred in

granting Alcoa’s nonsuit motion because “Alcoa[’s] policies that contractors

were required to follow were inadequate [and] Alcoa[ ] failed to detect the

dangerous conditions of the parking lot during Alcoa[’s] safety audits[.]” Id.

at 2-3.     In this portion of their concise statement, Appellants essentially

argued that they presented a prima facie case of negligence under section

324A and that the trial court erred in granting Alcoa’s nonsuit motion as to

the section 324A theory of liability. Thus, Appellants included both claims in


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their concise statement and have preserved those issues for appellate

review.

     Turning to the merits of the issues presented by Appellants,

     [o]ur standard of review is well-established: 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
     plaintiff[s], 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.

Printed Image of York, Inc. v. Mifflin Press, Ltd., 133 A.3d 55, 59 (Pa.

Super. 2016) (citation omitted).

     We first address Appellants’ argument that the trial court erred by

granting a compulsory nonsuit as to their negligent hiring/supervision claim.

All parties agree that G&M was hired and supervised by Calvin Fox (“Fox”)

and Daniel Carr (“Carr”).   Appellants argue that they presented sufficient

evidence in their case-in-chief for the jury to infer that Fox and Carr were

Alcoa employees.     Alcoa, on the other hand, argues that there was

insufficient evidence for the jury to infer that Fox and Carr were Alcoa

employees.

     Carr testified that he was a Kawneer employee. N.T., 4/8/14, at 11-

12. Appellants cite to no portion of Carr’s testimony in which he stated he

was an Alcoa employee. The only portion of the record cited by Appellants

are the above pages in which Carr testified that he was a Kawneer


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J-A08028-16


employee.   See Appellants’ Brief at 22, quoting N.T., 4/8/14, at 11-12.

Appellants rely on the fact Alcoa’s name was listed on Carr’s paycheck. See

id. Our Supreme Court has held, however, that the fact a parent company’s

name is listed on an employee’s check is not evidence the employee is

employed by the parent company instead of the subsidiary.     See Kiehl v.

Action Mfg. Co., 535 A.2d 571, 574 (Pa. 1987), citing Venezia v. Phila.

Elec. Co., 177 A. 25, 26 (Pa. 1935). Instead, Appellants needed to show

Alcoa had the “power and authority to direct and control” Carr’s actions in

order for him to be deemed an employee. Gillingham v. Consol Energy,

Inc., 51 A.3d 841, 855 (Pa. Super. 2012). Thus, the mere fact that Alcoa’s

name was on Carr’s paycheck was insufficient to raise a factual question for

the jury.

      The evidence Appellants rely upon for Fox falls even shorter of

presenting a factual dispute for the jury. Appellants rely upon an expert’s

testimony that Fox was an employee of Alcoa. See Appellants’ Brief at 22,

citing N.T., 10/24/14, at 151-152. In this testimony, however, the expert

stated that Fox testified he was a Kawneer employee – not an Alcoa

employee. N.T., 10/24/14, at 153. The expert gave no explanation as to

why he concluded that Fox was an Alcoa employee instead of a Kawneer

employee.   Again, Appellants failed to show the requisite level of control

over Fox’s work functions by Alcoa.     See Gillingham, 51 A.3d at 855




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J-A08028-16


(citation omitted). Thus, Appellants presented no evidence for the jury that

either Carr or Fox was an employee of Alcoa.

     Appellants also argue that the contract between G&M and Kawneer

indicates that Alcoa was responsible for hiring and supervising G&M as a

snow removal company. The cardinal rule of contract interpretation is that

the plain language of the contract is the principal evidence of the parties’

intent. Stewart v. GGNSC-Canonsburg, L.P., 9 A.3d 215, 220 (Pa. Super.

2010). In this case, the contract is unambiguous – it is between G&M and

Kawneer (the property owner) not G&M and Alcoa. See Appellants’ Exhibit 1

(listing the contract parties as G&M and Kawneer).      The mere fact that

Kawneer used Alcoa’s standard terms and conditions and gave Alcoa the

right to approve subcontractors does not mean that the contract was

between Alcoa and G&M.     Furthermore, the venue selection clause in the

contract (which selected Allegheny County – the location of Alcoa’s

headquarters) had no bearing on who hired or monitored the performance of

G&M. As the contract was between G&M and Kawneer, Appellants’ reliance

thereon is misplaced.   Cf. Appellants’ Brief at 20 (“G&M [] performed its

snow removal services in accordance with a contract between G&M [] and

Kawneer.”).

     Appellants presented no evidence at trial that either Carr or Fox was

an employee of Alcoa. Pursuant to Pennsylvania Supreme Court precedent,

the fact that Carr’s paycheck had Alcoa’s name on it was not evidence that



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the jury could use to determine that Carr was an employee of Alcoa. The

expert who testified that Fox was an employee of Alcoa admitted that Fox

testified that he was a Kawneer employee. The expert offered no evidence

from which the jury could conclude that Fox was an Alcoa employee. Finally,

the contract between G&M and Kawneer only supported Alcoa’s position that

it did not hire and/or supervise G&M.         Thus, there was no competent

evidence admitted at trial from which the jury could find that Carr and Fox

were Alcoa employees or that G&M was hired by Alcoa.            Any finding that

G&M was hired and/or supervised by Alcoa would have been mere

speculation and the trial court acted properly in removing this speculative

claim from the jury. See Printed Image, 133 A.3d at 59 (citation omitted).

Accordingly, the trial court correctly granted Alcoa’s motion for a compulsory

nonsuit as to Appellants’ negligent hiring/supervision claim.

      Next, Appellants argue that the trial court erred in granting a

compulsory nonsuit as to their section 324A claim against Alcoa. 2       Section

324A provides that:

      One who undertakes, gratuitously or for consideration, to render
      services to another which he should recognize as necessary for
      the protection of a third person or his things, is subject to
      liability to the third person for physical harm resulting from his
      failure to exercise reasonable care to protect his undertaking, if


2
  Our Supreme Court has adopted section 324A as the law of this
Commonwealth. Cantwell v. Allegheny Cnty., 483 A.2d 1350, 1353–1354
(Pa. 1984).




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      (a) his failure to exercise reasonable care increases the risk of
      such harm, or

      (b) he has undertaken to perform a duty owed by the other to
      the third person, or

      (c) the harm is suffered because of reliance of the other or the
      third person upon the undertaking.

Moranko v. Downs Racing LP, 118 A.3d 1111, 1114-1115 (Pa. Super.

2015) (en banc), appeal denied, 132 A.3d 459 (Pa. 2016), quoting

Restatement (Second) of Torts § 324A (1965) (emphasis removed).

      We focus on whether Alcoa undertook a duty to ensure the safety of

the parking lot in which David Barnes fell.    Appellants argue that periodic

safety audits performed by Alcoa, along with testimony from Kawneer and

Alcoa employees, satisfied their prima facie burden under section 324A.

Alcoa, on the other hand, contends that it never undertook a duty to ensure

the safety of the parking lot where David Barnes’ fall occurred.

      To establish that Alcoa undertook a duty to safely design and maintain

the parking area, Appellants rely primarily upon the testimony of Axel

Heinrich (“Heinrich”), manager of Kawneer’s facility and Jeffrey Shockey

(“Shockey”), Alcoa’s corporate safety director.    Heinrich testified that he

reported directly to Diana Perreiah, an Alcoa employee.      Heinrich testified

that he reported on the “safe operation of the plant.” N.T., 5/20/14, at 12.

He also testified that Alcoa representatives visited the plant on average

every two to three months. Id. at 18. During some, but not all, of these




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multi-day audits, Alcoa investigated the environmental, health, and safety

aspects of the plant. Id. at 20.

      Shockey testified that he was responsible for strategic direction of

safety for all of Alcoa’s business units.       N.T., 10/24/14, at 186.       Shockey

testified   that   this   direction   applied     to     Kawneer’s   “manufacturing

operations[.]” Id. (emphasis added). Shockey testified that if Alcoa has

“something to bring to the table in safety that they think can help

[Kawneer], we’re all about trying to share and help them with those sort of

things.” Id. at 193. Shockey testified that this included macro-level safety

issues at the Kawneer facility.        See id.         Finally, he testified that using

Alcoa’s standard terms and conditions in contracts helped efficiency and

consistency across Alcoa’s subsidiaries. See id. at 198-199.

      Notably absent from any of the testimony quoted by Appellants in their

brief is a single statement, by either Heinrich or Shockey, relating to the

parking lot in question or the snow removal process for the parking lot. The

reason is apparent when Shockey’s testimony is read in its entirety.

Shockey testified that Kawneer was responsible for the snow removal of the

parking lot and Alcoa was not involved in that process. See id. at 196-197

(directing snow removal was “not [Alcoa’s] role”). Heinrich and Shockey’s

testimony plainly state that the safety audits were meant to address

operational concerns.       See N.T., 10/24/14, at 186.              This is markedly




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different than property maintenance issues, such as clearing the parking lot.

See id. at 196-197.

      Appellants also rely upon a statement that Steve Crawford, owner of

G&M, made at trial. Crawford stated that “I knew safety requirements were

coming from a parent company.” N.T., 10/23/14, at 146. Read in context,

however, Steve Crawford only testified to the fact that Kawneer made its

contractors fill out a survey created by an Alcoa subcontractor. See id. at

146-147. Crawford did not testify that he had any contact with Alcoa or its

employees regarding clearing the Kawneer parking lot.          As such, Steve

Crawford’s testimony, when read in its entirety, supports Alcoa’s position

that only Kawneer was responsible for maintenance of the parking lot.

      Appellants rely upon evidence presented at the summary judgment

stage that showed that

      [a]fter [David] Barnes sustained his injury, Alcoa implemented
      design changes at the Kawneer [plant’s] employee parking lot.
      Specifically, Alcoa mandated the installation of cattle gates to
      create pathways that could be safely plowed, shoveled, salted,
      and sanded from the building across each lane of parking
      through the length of the parking lot.

Appellants’ Brief at 19 (citation omitted).      If Appellants presented this

evidence at trial, we might reach a different conclusion as to the trial court’s

ruling on Alcoa’s nonsuit motion.      As Appellants concede in their brief,

however, they made a strategic decision not to present that evidence at

trial. Appellants’ Brief at 19. We are prohibited from considering evidence

not presented at trial when considering whether the trial court properly


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granted Alcoa’s nonsuit motion.       Thus, Appellants’ reliance upon this

evidence is misplaced. Therefore, Appellants failed to present any evidence

that Alcoa undertook a duty to ensure the safety of the Kawneer facility’s

parking lot and/or snow removal process.       Any verdict based on such a

finding would have relied on speculation. Since the trial court has a duty to

prevent such claims from going to the jury, see Printed Image, 133 A.3d

at 59 (citation omitted), the trial court properly granted Alcoa’s motion for a

compulsory nonsuit as to Appellants’ section 324A claim.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/12/2016




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