J-A19019-16


                                  2017 PA Super 12
PAUL WELSH                                           IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellant

                       v.

NATIONAL RAILROAD PASSENGER
CORPORATION A/K/A AMTRAK

                                                          No. 1997 EDA 2015


                   Appeal from the Order Entered June 11, 2015
               In the Court of Common Pleas of Philadelphia County
                        Civil Division at No(s): 130902418


BEFORE:      FORD ELLIOTT, P.J.E., OTT, J., and FITZGERALD, J.*

OPINION BY OTT, J.:                                       Filed January 17, 2017

         Paul Welsh, having brought a negligence action under the Federal

Employers' Liability Act ( "FELA "), appeals from the order entered June 11,

2015, in the Court of Common Pleas of Philadelphia County, that granted

summary judgment in favor of National Railroad Passenger Corporation

a   /k/a/ Amtrak ( "Amtrak ").   Welsh claims the trial court erred in (1) failing to

consider signed but unsworn statements from three present and /or former

Amtrak police officers in support of Welsh's opposition to summary

judgment, (2) treating Welsh's general denials and denials based on

conclusions of law in response to Amtrak's summary judgment motion as

admissions, and (3) granting summary judgment despite the existence of


*   Former Justice specially assigned to the Superior Court.
J-A19019-16



evidence of   a   reasonably unsafe work place in   a FELA   action.' Based upon
the following, we affirm.

        The facts underlying this appeal were summarized by the trial     court:2


        On August 16,     2012, beginning at 9 p.m., Mr. Welsh was
        assigned to surveillance at the Penn Coach Yards which are the
        train yards at 30th Street Station in Philadelphia. According to
        Mr. Welsh, there was no briefing given for this assignment, or
        any discussion as to what would happen if there was any suspect
        activity in the Yard. The grounds of Penn Coach Yards were in
        poor condition and have very little artificial lighting. Depressions,
        gullies, debris, potholes, and uneven surfaces exist on the
        premises. The area around the Yard is also covered with stone
        ballast.

        During that rainy night, Mr. Welsh and another Amtrak officer
        followed a suspect for a period of time via a surveillance vehicle
        until contact was lost after the suspect headed toward a wire
        shed in the Yard. At some point after his fellow officer left the
        surveillance vehicle to run to the wire shed, Mr. Welsh also left
        the vehicle and ran toward the suspect. As he ran roughly
        seventy -five yards on ballast stones toward the suspect, Mr.
        Welsh felt a sharp pain in his lower back.

        The next day, the symptoms in his lower back became severe as
        he felt numbness from his lower back to his legs. Mr. Welsh
        alleges he suffered an aggravation of cervical disc disease and a
        lumbar disc herniation, for which he underwent surgery.

Trial Court Opinion, 10/6/2015, at 13 -14.




'   We have reordered Welsh's claims for purposes of our discussion.

2 Although Welsh claimed injuries from two incidents in his complaint, one
occurring on August 16, 2012 (Count I) and the other on August 5, 2011
(Count II), he only appeals from the grant of summary judgment as to
Count I. See Appellant's Brief, at 2.


                                        -2
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      The complaint provides no substantive details regarding either the

happening of the accident or the injuries allegedly suffered by Welsh. The

complaint states, in relevant part:

      9.   After there was some activity that required his
      attention, [Welsh] began to run in the yard [Amtrak's Penn
      Coach Yard] from his location to a storage facility, [Welsh]
      injured his back while in route.

      10. The area where [Welsh] was required to perform his
      work was unsafe and not properly maintained and had not
      been inspected. All the acts and omissions giving rise to
      this claim occurred in Philadelphia, PA.

Complaint, 9/20/2013, Count I.

      On September 11, 2014, Welsh was deposed.         He gave the following

description of the incident:

      Welsh: I know Joe jumped out of the back of the van and I was
      a second or two behind him.

           [3]
      Q:         Okay.

      A: And then we ran through the compound to the - there's a
      rolling gate, a vehicle gate. Joe ran wide of the area so he was
      to my right maybe 50 -foot and I was to the left and I was
      running more directly towards the    -   to the gate or where the
      gate would open up.

      Q: Okay. So up until this point, you're observing the suspect.   Is
      he walking or running through the yard?

      A: He was walking.




3 All questions are by defense counsel unless otherwise noted. All answers
are by Welsh.


                                      -3
J-A19019-16


      Q: Okay. And at some point, you said you   jump out of the
      surveillance truck. Were there any issues when you jumped
      out? Did you feel any pain or -

     A: No, I don't recall any pain jumping out of the vehicle. I
     recall, and my concern was still what was going on in the
     compound, but as I was running, I felt a sharp pain in my right
      lower back.

N.T. Deposition,    9/11/14, at 148.

      Q: Okay.   And at this point, he's restrained [the suspect] and
      under arrest, and Ron, Frank, and Joe [other officers] are all
      present there as well, correct?

     A: Yes.

      Q: Did you mention        your injury to any of them?

     A: No.

      Q: Okay.      And what is the sensation or the pain that you felt at
     that point?

     A: There was a, I think it was, I know it was down the left leg,
     because I had problems lifting my left leg, but the pain was
      down the     ...   center of my back.

      Q: Okay. Well, how would you describe the pain?

     A: The next day, it was severe.

      Q: Okay. At the        time of the injury, how would you describe it?

     A:   It was fine.        I thought it was      a   59- year -old guy with sore
      muscles. I didn't think anything of it.

      Q: Okay. Did you         trip at all while running?

     A: No, I did not.

      Q: Did you slip or      twist   in any way?




                                            -4
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         A: No, I don't believe I did.   I mean I was running on   a    ballast
         and -

         Q: And   what were you wearing on this day?

         A: The same shoes actually. The same low cut work boots that I
         chose.

Id. at   153 -54.

         Q: Okay. Were you aware of the conditions of Penn Coach yard?
         You said you had previously done surveillance there and that this
         was on some ballasts. Were you aware that [sic] any particular
         conditions of the ballasts?

         A: Not any particular, I knew that, I know the coach yard is
         either ballasts, which is predominantly what it is and there's
         some blacktop area, but,

         Q: Okay.  And is it uneven, are there spots where it's pitched
         one way or the other, or how would you describe the area of the
         yard where you were in?

         A:It's an area where vehicles travel back and forth.          It's not
         made for pedestrian traffic, let alone running.

Id. at   175-76.4

         Q: Okay.    What do you believe AMTRAK could have done to
         prevent this injury?

         A: Well, the area itself is on a good day is not conducive to
         walking, let alone running. I don't know how they could make
         that safer. And if the area was lit better, it only had, you can



4 Immediately after this exchange, Welsh was shown photographs of the
area where the surveillance van was parked and where the arrest occurred.
Those photographs are not found in the certified record. The photographs
appended to Welsh's response to the motion for summary judgment do not
show what was described at the deposition.



                                         -5
J-A19019-16


       see the poles that the lights were on. And other than that, it's
       just whatever city lights would light up the area there.

        Q: Okay. Do you believe      there's anything you could have done to
        prevent this injury?

       A: Not going to work that day. No. No, I don't.

Id. at 181-82.
AFFIDAVITS

       As noted above, Welsh now raises three issues in support of his claim

that the trial court erred          in   granting Amtrak's motion for summary

judgment.5 Welsh first contends the trial court erred in failing to consider




5   This Court's scope and standard of review of     a   trial court's order granting
summary judgment       is   well-settled:
       In reviewing an order granting summary judgment, our scope of
       review is plenary, and our standard of review is the same as that
       applied by the trial court. Our Supreme Court has stated the
       applicable standard of review as follows: [A]n appellate court
       may reverse the entry of a summary judgment only where it
       finds that the lower court erred in concluding that the matter
       presented no genuine issue as to any material fact and that it is
       clear that the moving party was entitled to a judgment as a
       matter of law. In making this assessment, 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. As our inquiry involves solely
       questions of law, our review is de novo.

       Thus, our responsibility as an appellate court is to determine
       whether the record either establishes that the material facts are
       undisputed or contains insufficient evidence of facts to make out
       a prima facie cause of action, such that there is no issue to be
       decided by the fact-finder. If there is evidence that would allow a
(Footnote Continued Next Page)


                                            -6
J-A19019-16


signed but unsworn statements from three Amtrak police officers,                     all

asserting the Penn Coach Yard was an unsafe workplace.                The trial court

noted that it dismissed the use of the affidavits because they failed to state

they were made under penalty of perjury pursuant to 18 Pa.C.S.           §   4904.

      With respect to      a   motion for summary judgment, the "record" as used

in both   the Pennsylvania and Philadelphia rules,      is   defined as including any

affidavits. See Pa.R.C.P. 1035.1(2). See also, Pa.R.C.P. 1035.4 (governing

affidavits supporting or defending      a   motion for summary judgment).

      Welsh "submitted three signed statements from current and former

Amtrak Police Officers that were familiar with the walking and ground

conditions in Amtrak's Penn Coach Yard." Appellant's Brief at         18.6   The Note

to Rule 1035.1 refers to Pa.R.C.P. 76 for the definition of "affidavit." Neither

Rule 1035.1     nor Rule 76 refer to signed statements.               An affidavit is

specifically defined as:

(Footnote Continued)

      fact -finder to render a verdict in favor of the non -moving party,
      then summary judgment should be denied.

Gerber v. Piergossi, 142 A.3d 854, 858                (Pa.   Super. 2016) (citation
omitted).

6  The three Amtrak officers are Dan Iacona, Douglas Paige, and John
Cullinan. Welsh also submitted a similar signed statement that included
photographs purportedly showing the conditions at the Penn Coach Yard.
The instant argument only addresses the three statements of the other
officers, not Welsh's.     This appears to be because Welsh's statement
addresses the injury allegedly suffered regarding Count II of the complaint,
which is not subject to this appeal.


                                            -7
J-A19019-16


      A  statement in writing of a fact or facts, signed by the person
      making it, that either (1) is sworn to or affirmed before an
      officer authorized by law to administer oaths, or before a
      particular officer or individual designated by law as one before
      who, it may be taken, and officially certified under seal of office,
      or (2) is unsworn and contains a statement that it is made
      subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn
      falsification to authorities.

Pa.R.C.P. 76. Definitions.

      None of the statements complies with the requirements found in Rule

76. As the trial court found, "The documents signed by Mr. Welsh and the

three other Amtrak police officers were not 'affidavits' because they did not

include   a   notary's jurat; nor were they made subject to the penalties of 18

Pa.C.S. § 4904." Trial Court Opinion at 6.

      While all statements claim to have been made under oath, the

Appellant's brief clarifies that the oath referred to is simply the oath taken

by an Amtrak police officer to "uphold the tenants                 [sic] of justice."

Appellant's Brief at 19. The requirements of an affidavit are clearly stated in

the Rules of Civil Procedure and those requirements do not contain an

exemption for any class of persons or jobs that have their own oaths. Welsh

has provided no authority to support his contention that police officers, or

any   other such       oath   taker,    are    exempt from   the    straight- forward

requirements for an affidavit.         Therefore, because the statements do not

comply with the requirements to be considered an affidavit, and the rules do

not allow consideration of signed statements, the trial court committed no



                                          -8
J-A19019-16


abuse of discretion or error of law in refusing to consider them. Welsh is not

entitled to relief on this issue.

GENERAL DENIALS

        Next, Welsh asserts the trial court erred in treating the general denials

and denials based on conclusions of law in response to the motion for

summary judgment as admissions. Here, he raises two sub -arguments, (1)

the trial court ignored the dictates of Pa.R.C.P. 1029(e), which allows

general denials, and (2) the trial court unfairly punished Welsh for failing to

cite to the record despite Amtrak's similar failings.'

        Welsh asserts the trial court improperly rejected the general denials in

violation of Pa.R.C.P. 1029(e), which he correctly notes allows for the use of

general denials. Specifically Rule 1029(e) states:

        In an action seeking monetary relief for bodily injury, death, or
        property damage, averments in a pleading to which a
        responsive pleading is required may be denied generally except
        the following averments of fact which must be denied
        specifically:

Pa.R.C.P. 1029(e) (emphasis added).8

        Rule 1029(e) clearly applies to pleadings.       A pleading is defined in

Pa.R.C.P. 1017 as:




' We    have reordered the issues.
8
    The exceptions do not apply to the instant matter.



                                       -9
J-A19019-16


         (a) Except as provided by Rule 1041.1E91, the pleadings in an
         actions are limited to

            (1)   a   complaint and an answer thereto,

            (2) a reply if the answer contains                         new   matter,     a
            counterclaim or a cross -claim,

            (3) a counter -reply if the reply to          a   counterclaim or cross -
            claim contains new matter,

            (4)   a   preliminary objection and     a    response thereto.

Pa.R.C.P. 1017(a)(1) -(4).

         A motion      for summary judgment    is       not   a   pleading; therefore, Pa.R.C.P.

1029(e) does not apply to this matter.                    The trial court correctly applied

Phila.Civ.R. 1035.2 which forbids the use of general denials and requires

specific denials with reference to the record.                    Accordingly, this argument      is

unavailing and Welsh is not entitled to relief.

         Welsh        also   claims   Amtrak      failed          to   abide       by   Phila.Civ.R.

1035.2(a)(2),10 which similarly requires reference to the record to support

the allegations contained within the motion for summary judgment, yet the

trial court failed to apply the rule to Amtrak. "Such failure to properly apply

the Local Rules to this matter to both sides created                           a   result based on

technicality instead of the facts and law in the case." Appellant's Brief at 24.



9    Rule 1041.1 applies to asbestos litigation.
1°
   See also Pa.R.C.P. 239.7, requiring promulgation by each trial court of
local rule 1035.2.


                                           - 10 -
J-A19019-16


Both the Pennsylvania (Pa.R.C.P.) and Philadelphia Rules of Civil Procedure

(Phila.Civ.R.) are clear in what is required to respond      properly to the

allegations presented in   a   motion for summary judgment. The Pennsylvania

rule states:

      (a) Except as provided in subdivision (e) [not applicable to this
      matter], the adverse party may not rest upon the mere
      allegations of denials of the pleadings but must file a response
      within thirty days after service of the motion identifying

         (1) one or more issues of fact arising from evidence in the
         record controverting the evidence in support of the motion
         or from a challenge to the credibility of one or more of the
         witnesses testifying in support of the motion, or

         (2) evidence in the record establishing the facts essential
         to the cause of action or defense which the motion cites as
         not having been produced.

      (b) An adverse party may supplement the record of set forth the
      reasons why the party cannot present evidence essential to
      justify opposition to the motion and any action proposed to be
      taken by the party to present such evidence.

      Note: Procedural requirements with respect to argument and
      briefs are governed by local rule.

Pa.R.C.P. 1035.3(a)(1), (2).

      Additionally, the Note to Pa.R.C.P. 1035.2 states: "Rule 239.7 requires

every court to promulgate Local Rule 1035.2(a) describing the local court

procedure governing motions for summary judgment."

      The Philadelphia Rules of Civil Procedure have similar substantive

requirements but also direct the respondent as to the proper form of

response. The Philadelphia Rule states, in relevant part:
J-A19019-16


      Response to Motion for Summary Judgment. The adverse
      party or parties must file a response to the motion for summary
      judgment within thirty (30) days of the service of the motion, as
      provided by Pa.R.C.P. 1035.3. The response to the motion shall
      be    divided    into   paragraphs,    numbered      consecutively,
      corresponding to the numbered paragraphs of the motion for
      summary judgment. The response shall state whether each of
      the allegation is admitted or denied.        No general denial is
      acceptable. The factual reasons for the denial or dispute must
      be specifically stated and the "record," (as that term is defined in
      Pa.R.C.P. 1035.1) supporting the denial or dispute must be
      attached as an exhibit. A response may also include additional
      allegations demonstrating any genuine issue of material fact, in
      which event the responding party must reference and attach a
      copy of the "record," (as that term is defined in Pa.R.C.P.
      1035.1) which demonstrates the existence of a genuine issue of
      material fact.

Phila.Civ.R. 1035.2(a)(4).

      The rules of civil procedure require both movant and respondent to

supply specific citation to the record to support averments.      In support of

this argument Welsh cites only to paragraph 109 of the motion for summary

judgment, which states:

      Because the maintenance and inspection of an Amtrak rail yard
      is a subject not within the ken of the average juror, an expert is
      needed for the plaintiff to present evidence of a breach of duty
      by Amtrak.

Appellant's Brief at 24.

      Welsh has not explained how Amtrak's failure to cite to the record

regarding its assertion that Welsh needed to provide expert testimony has

prejudiced him. The trial court made no mention of the lack of such expert

testimony as   a   reason why summary judgment was granted in favor of

Amtrak.    The averment of paragraph 109 is not the legal lynchpin of

                                     - 12 -
J-A19019-16


Amtrak's right to summary judgment.             Even if we reject this averment,

Welsh's failure to properly respond to the other averments provide more

than sufficient grounds to rule in favor of Amtrak.

      Nonetheless, our review of the certified record demonstrates that

Amtrak provided ample citation to the factual record in the initial paragraphs

of the motion.      Paragraphs 100 and 101 of the motion for summary

judgment set forth the federal and state requirements to provide expert

testimony to establish liability for circumstances beyond the common

knowledge of the average juror. Also, many of Amtrak's averments address

Welsh's failure to provide any evidence, such as:

      83. Despite generalized allegations in his Complaint, [Welsh] has
      offered no evidence demonstrating how Amtrak was negligent or
      in any way legally responsible for the alleged incident.

      84. Indeed, there is not   a   shred of evidence that any "incident"
      occurred.

Amtrak Motion for Summary Judgment, ¶¶ 83, 84 (emphasis                 in   original).

      Even though the factual averments in these two paragraphs contain no

citation to the record, when Amtrak asserts the record            is   devoid of certain

evidence, logically there can be no specific citation to the record.

      Further, other than pointing to 11109, Welsh has failed to indicate what

other "facts" were left unverified by citation to the record and how he was

prejudiced by that alleged error.

      Finally,   Welsh   claims that any        deficiency   in   the    paragraph        by

paragraph responses to the averments of the motion for summary judgment

                                       - 13 -
J-A19019-16


were corrected by the inclusion of the Counter Statement of Facts in his

response.     The counter statement is   a   fifty -paragraph recitation of various

facts, many of which contain citations to the record.               Paragraphs 30 -50

address the incident in the Penn Coach Rail Yard, which        is   the subject of this

appeal.     However, Welsh does not link any of the counter facts to any

particular averment of the motion for summary judgment. This failure would

require the trial court to guess at which averments in the motion for

summary judgment have been addressed.               The rules of civil procedure

provide for   a   straightforward method of answering      a   motion for summary

judgment that eliminates any such need for guesswork. We will not overrule

a   trial court for failure to engage in such          a   speculative procedure.

Accordingly, Welsh is not entitled to relief on this claim.

OTHERWISE SUFFICIENT EVIDENCE TO SUBMIT TO A JURY

      In his final argument, Welsh claims the trial court erred in granting

summary judgment because even without the above disputed facts, he

provided sufficient evidence to create triable issues. We disagree.

      The trial court correctly recited the legal standards applicable to            a


FELA case.

      FELA states that "[e]very common    carrier by railroad ... shall be
      liable in damages to any person      suffering injury while he is
      employed by such carrier ... for such injury or death resulting in
      whole or in part from the negligence of any of the officers,
      agents, or employees of such carrier." 45 U.S.C.A. § 51.

      The state and federal courts have concurrent jurisdiction over
      FELA cases. "FELA cases adjudicated in state courts are subject

                                      - 14 -
J-A19019-16


     to state procedural rules, but the substantive law governing
     them is federal." Thus, in the case sub judice, we must be
     guided in our determination of whether Appellant presented a
     question for a jury by the standard which the United States
     Supreme Court set forth:

        Under this statute the test of a jury case is simply whether
        the proofs justify with reason the conclusion that employer
        negligence played any part, even the slightest, in
        producing the injury or death for which damages are
        sought. It does not matter that, from the evidence, the
        jury may also with reason, on grounds of probability,
        attribute the result to other causes, including the
        employee's contributory negligence. Judicial appraisal of
        the proofs to determine whether a jury question is
        presented is narrowly limited to the single inquiry whether,
        with reason, the conclusion may be drawn that negligence
        played any part at all in the injury or death.

     Our Court has consistently adhered to the Rogers standard,
     stating that in only the most frivolous cases may the courts deny
     a FELA plaintiff his or her qualified right to a jury trial.


     "[FELA] is to be liberally construed on behalf of injured workers,
     with the result that often recovery will be proper under [FELA]
     when it would not be under the common law of negligence."
     "[T]he test of a case for the jury under the FELA 'is simply
     whether the proofs justify with reason the conclusion that
     employer negligence played any part, even the slightest, in
     producing the injury or death for which damages are sought.' "
     Ciarolla, supra at 672 (emphasis added) (citation omitted).
     "To deprive railroad workers of the benefit of a jury trial in close
     or doubtful cases is to take away a goodly portion of the relief
     which Congress has afforded them."

     Labes v. New Jersey Transit Rail Operations, Inc., 863 A.2d
     1195, 1198 (Pa. Super. 2004) (case citations omitted, paragraph
     break added). In FELA cases, "the plaintiff must prove the
     common       law elements   of   negligence:    duty,    breach,
     foreseeability, and causation." Manson v. Southeastern
     Pennsylvania Transp. Authority, 767 A.2d 1, 3 (Pa. Cmwlth.
     2001).



                                    - 15 -
J-A19019-16


      Railroad companies owe their employees a continuing duty to
      use care in order to provide them with a reasonably safe place to
      work. Kimbler, v. Pittsburgh & L.E.R. Co., 331 F.2d 383, 385
      (3rd Cir. 1964).

Trial Court Opinion, 10/6/2015, at   1 -3.


      By rejecting the so- called affidavits of the three Amtrak police officers,

and determining Welsh failed to respond properly to Amtrak's averments in

the motion for summary judgment thereby admitting said averments, Welsh

was left with no evidence to support his claim.      Nonetheless, here, Welsh

argues:

      In this matter, the Trial Court determined that no evidence was
      presented to establish the slightest possibility that [Welsh] was
      not provided a reasonably safe work place. The Court erred in
      making this conclusion. [Welsh] submitted deposition testimony
      to establish that the supervisor in charge of the surveillance
      team conducted no meeting prior to sending the team out to
      coordinate the arrest. This failure led to [Welsh] to run 75 yards
      on uneven ballast with debris in the dark to assist in an arrest
      that was being done by other officers. Running on ballast
      (stones) is not a reasonably safe activity. Running on ballast
      (stones) in a poorly lit area with industrial debris makes the
      work activities more problematic. Mr. Welsh stated that, the
      area was poorly lit and "the area on a good day was not
      conducive for walking let alone running[ "]. When asked what
      Amtrak could have done to prevent the accident, Mr. Welsh
      stated, make the area safer.

      The photographs taken by [Welsh] in his site inspection show
      the area that Mr. Welsh had to run as uneven, with areas
      covered in stone and some areas that are bare. The ground is
      also covered with industrial debris. This evidence along with Mr.
      Welsh's testimony is sufficient to defeat Summary Judgment in a
      Federal Employers' Liability Act case.

Appellant's Brief at 12.



                                      - 16 -
J-A19019-16


      If Welsh needed the trial court to consider     such facts, the response to

the motion for summary judgment needed to place those facts properly

before the trial court by specifically answering the averments of that motion.

Instead, Welsh attempts to rely only on the counterstatement of facts. We

have already found no error in the trial court's rejection of them.

      Additionally, the trial court correctly rejected the use of the scene

photographs as being unauthenticated. The photographs were not found in

the certified record prior to their attachment to Welsh's response to the

motion for summary judgment.           Nothing in the response to the motion for

summary judgment explains the provenance of the photos. Accordingly, the

trial court did not err    in   rejecting them. Also, there is no evidence that   a


failure to hold   a   meeting prior to the surveillance caused the surveillance

van to be parked in any specific area that forced Welsh to run 75 yards. The

photographs depict mud puddles and similar dips in the ground, as well as

randomly piled wood, stray wire lying on the ground and other such detritus.

Welsh's deposition testimony indicated only that he was running on ballastll



11 "Ballast" is not defined in the certified record. The common definition of
ballast is, "Coarse gravel or crushed rock laid to form a bed for roads or
railroads." American Heritage® Dictionary of the English Language, Fifth
Edition. (Copyright © 2016 by Houghton Mifflin Harcourt Publishing
Company. Published by Houghton Mifflin Harcourt Publishing Company.)
Given that the common definition makes it clear that ballast is routinely used
to form railroad beds, we will assume that Amtrak was well aware that the
Penn Coach Yard was primarily ballast, as testified to by Welsh.           See
Deposition, supra, at 175.


                                         - 17 -
J-A19019-16


when he felt the pain in his back.           Having never claimed the puddles, dips,

wood or trash caused his injury, those photograph are irrelevant.

           Essentially, all that remains of Welsh's testimonial evidence              is   that he

felt   a   pain in his back when he ran on ballast. There is no proof of record

that having ballast       in a railyard   constitutes an unsafe work place or, even if

the workplace was unsafe, that the condition actually caused Welsh to suffer

a   herniated disc. The evidence, viewed in the light most favorable to Welsh

as the responding party, demonstrates only             that Welsh initially felt his back

pain while running after        a   suspect on ballast.      As such, there is insufficient

evidence to create       a   viable issue that Amtrak provided Welsh with an unsafe

work place. In light of the foregoing, Welsh           is   not entitled to relief.

           Judgment affirmed.

           Ford Elliott, P.J.E., joins this opinion.

           Fitzgerald, J., concurs in the result.

Judgment Entered.




Jóseph D. Seletyn,
Prothonotary


Date: 1/17/2017




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