J-A02017-14


                                  2014 PA Super 184

VINCENT P. NERTAVICH, JR.                         IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

PPL ELECTRIC UTILITIES, KTA, KTA-
TATOR, INC.,
KTA/SET ENVIRONMENTAL, S-E
TECHNOLOGIES, INC.,
ALEXANDER ANDREW, INC., D/B/A
FALLTECH, ALEXANDER
ANDREW, INC., FALLTECH, THOMAS &
BETTS CORP.,
THOMAS & BETTS CORP., D/B/A OR T/A
MEYER STEEL STRUCTURES, F/K/A I.T.T.
- MEYER
INDUSTRIES, F/K/A MEYER INDUSTRIES,
MEYER
STEEL STRUCTURES F/K/A I.T.T.- MEYER
INDUSTRIES,
F/K/A MEYER STEEL STRUCTURES, ITT-
MEYER INDUSTRIES,
MEYER INDUSTRIES, MEYER MACHINE,
INC. AND WINOLA
INDUSTRIAL, INC.

APPEAL OF: PPL ELECTRIC UTILITIES
CORPORATION

                                                      No. 3415 EDA 2012


             Appeal from the Judgment Entered December 5, 2012
             In the Court of Common Pleas of Philadelphia County
               Civil Division at No(s): No. 2316 Sept. Term 2009


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


*
    Retired Senior Judge assigned to the Superior Court.
J-A02017-14



OPINION BY OTT, J.:                                 FILED AUGUST 27, 2014



$2,494,542.35, entered December 5, 2012, in the Philadelphia County Court

of Common Pleas, in favor of Vincent P. Nertavich, Jr., for the injuries he

sustained when he fell 40 feet while working as the employee of an

independent contractor1                                                      2
                                                                                 On

appeal, PPL argues the trial court erred in failing to grant judgment

notwithstanding the verdict (j.n.o.v.) or a new trial.     For the reasons set

forth below, we conclude that PPL was entitled to the grant of j.n.o.v., and,

accordingly, reverse the judgment entered in favor of Nertavich.

       The facts underlying this appeal are summarized by the trial court as

follows:

             Defendant     PPL     owns       90-foot-high,    10-foot-in
       circumference tubular steel electric transmission poles. Some of
       these poles need to be repainted from time to time to prevent
       structural decay.      PPL contracted with QSC [Painting,
                                                       contract called for
       work to begin in August 2007 and be completed by November

____________________________________________


1


2

and Thomas & Betts Corp., were either dismissed by the trial court or settled
prior to trial. Thomas & Betts was the manufacturer of both the electric
transmission pole and ladder upon which Nertavich was working when he

sale of the pole was dismissed pretrial by summary judgment. His claim
with respect to the ladder proceeded to trial, but the jury found Thomas &
Betts was not negligent.



                                           -2-
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           That PPL Specification document contained a variety of
     detailed requirements about the job. It prescribed each step
     how to paint the poles.

                                       ....

          While the workmen painted, power might continue to
     surge through the lines attached to the poles. As a result, the

     insulators, making sure that paint does not splatter or drip onto

     off the insulators.      Also, PPL maintained control over the

     known as a contract field representative, for the project who was

     materials, quality assurance, general safety, work procedures
     a
     the circuit breakers so that the workers would not be

     PPL representative would not allow workers on the poles until
     the lines were set.



     the contractor to ensure that safety requirements of the contract




     involving   a   direct   threat   or   imminent   danger,   the   field
     Repre


     ordered from Defendant Thomas & Betts, with PPL establishing
     their specifications.     The pole specifications included the
     dimensions of the pole, its paint, and the number and type of
     attachment points. PPL was aware that the poles would need
     repainting every 15 to 20 years. PPL did not specify that the
     poles should have any vangs[, i.e., pieces of metal,] welded onto
                               anyard or other suspension device could
     attach to the pole. The only attachment points on the poles,
     besides those at the top of the poles and on the arms for
     electrical wires, were a series of brackets running up one side of

                                       -3-
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           That PPL Specification document contained a variety of
     detailed requirements about the job. It prescribed each step
     how to paint the poles.

                                       ....

          While the workmen painted, power might continue to
     surge through the lines attached to the poles. As a result, the

     insulators, making sure that paint does not splatter or drip onto

     off the insulators.      Also, PPL maintained control over the

     known as a contract field representative, for the project who was

     materials, quality assurance, general safety, work procedures
     a
     the circuit breakers so that the workers would not be

     PPL representative would not allow workers on the poles until
     the lines were set.



     the contractor to ensure that safety requirements of the contract




     involving   a   direct   threat   or   imminent   danger,   the   field
     Repre


     ordered from Defendant Thomas & Betts, with PPL establishing
     their specifications.     The pole specifications included the
     dimensions of the pole, its paint, and the number and type of
     attachment points. PPL was aware that the poles would need
     repainting every 15 to 20 years. PPL did not specify that the
     poles should have any vangs[, i.e., pieces of metal,] welded onto
                               anyard or other suspension device could
     attach to the pole. The only attachment points on the poles,
     besides those at the top of the poles and on the arms for
     electrical wires, were a series of brackets running up one side of

                                       -3-
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       [Nertavich] lost 3 inches in height as his body literally
       compacted from the fall.

Trial Court Opinion, 6/14/2013, at 2-6 (footnotes and record citations

omitted).

       Nertavich initiated this personal injury/products liability action by writ

of summons on September 23, 2009.                  After filing a complaint and first

amended complaint, Nertavich filed a second amended complaint on April



Falltech, Thomas & Betts, and Winola Industrial, Inc.               which designed,

manufactured,       and/or     sold   fall     protection   equipment,   the   electric

transmission poles, and the single-rail ladders4

    PPL and KTA/Set Environmental, the owner of the utility poles and an

engineering consulting company hired to oversee the painting work,

respectively.     Nertavich raised claims of general negligence, professional

negligence, strict liability, and breach of warranty, as well as sought punitive

damages.

       PPL filed a motion for summary judgment on July 5, 2011, which the

trial court denied on September 1, 2011.5              The case proceeded to a jury

____________________________________________


4




5
  The other defendants also filed motions for summary judgment. Relevant
to this appeal, Thomas & Betts filed a motion for partial summary judgment,
                           products liability claim with respect to the
manufacture and design of the transmission pole was barred by the statute
(Footnote Continued Next Page)


                                             -5-
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       the pole.   These brackets served as attachment points for
       removable single-

       wobble, frightening workers. There was no place for a worker
       climbing the pole to attach a lanyard or lifeline, except for
       somewhere on these ladders. There were two types of ladders.
       Both consisted of a central metal beam with metal pegs
       protruding out to the left and right. The first, termed a working
       ladder, had parallel pegs on each side to give the appearance of
       a straight bar across the rail so that a worker could stand level.
       The second type, the climbing ladder, had alternating pegs
       staggered at regular intervals up each side of the rail. The
       ladders came from the manufacturer with two bolts that attach
       through their bottom to secure them to the pole. QSC, not
       having another means of lifting its workers into place to paint
       the pole, asked PPL for the removable ladders. PPL provided
       QSC with the ladders, but not with the bolts.

              On September
       ground working on a PPL pole. More experienced workers were
       painting the pole above him. He was standing on one of the
       climbing ladders. QSC provided [Nertavich] with a pole belt, a
       body harness, and two lanyards. One lanyard was to attach to
       the pole belt, and the other was to attach to the body harness to
       serve as a lifeline. [Nertavich] used only the pole belt and one
       lanyard. He testified at trial that on previous jobs he had used
       only the pole belt and one lanyard, and that no one told him he
       had to use the harness as well.[3] The one lanyard he used was
       coated in dried paint. [Nertavich] tied the paint-coated lanyard
       to the ladder above him, a working ladder, by looping it around a
       left peg. [Nertavich], holding on to the lanyard, leaned out to
       his left to slap paint on a hard-to-reach spot on the back of the
       pole. The ladder above him to which he was tied off wobbled
       several inches to the left. The lanyard unlooped. [Nertavich] fell
       40 feet, landing on his feet.        The fall fractured his feet,
       dislocated his ankles, fractured his knee, his right femur, his
       right hip, and burst several of his lumbar spine disks.

____________________________________________


3
 Indeed, Nertavich admitted that his body harness was in his truck on the
day of his accident. N.T., 3/1/2012, at 129-130.




                                           -4-
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trial, commencing in February of 2012.            PPL moved for a nonsuit at the

                                    -in-chief, and a directed verdict at the close of

all testimony, both of which were denied by the trial court.6          On March 9,

2012, the jury returned a verdict in favor of Nertavich in the amount of

$4,613,150.00.         However, the jury found PPL 51% causally negligent for



injuries. The jury also found that the ladder designed by Thomas & Betts

was not defective.7

        Both parties sought post-trial relief.      On March 13, 2012, Nertavich

filed a motion for delay damages, and, on March 19, 2012, PPL filed post-

trial motions seeking j.n.o.v. or a new trial.             The trial court granted

              motion, and, on April 9, 2012, entered a molded verdict in the

amount of $2,494,542.35 in favor of Nertavich and against PPL.8 Thereafter,

                                                               -trial motion, and on




                       _______________________
(Footnote Continued)

of repose. See 42 Pa.C.S. § 5536. The trial court agreed, and dismissed
that claim. See Order, 9/1/2011.
6
    The trial court did, howe


7
    Accordingly, Thomas & Betts has not filed a brief in this appeal.
8
    The molded verdict reflects both a reduction in the total award based upon




                                            -6-
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December 5, 2012, judgment was entered on the verdict. This timely appeal

followed.9

       PPL raises the following four issues on appeal:

       (1)    Is PPL entitled to judgment notwithstanding the verdict for
              injuries sustained by an employee of an independent
              contractor when controlling Pennylvania law, as reflected
              in Beil v. Telesis Construction, Inc., 608 Pa. 273, 11 A.3d
              456 (Pa. 2011), requires that PPL exercise significant
              control over the manner, methods, means, and operative

              that is specifically related to the accident, and the evidence
              at trial established that the independent contractor itself
              directed and exercised control over its work?

       (2)    Is PPL entitled to a new trial on liability when the Court
              improperly permitted Nertavich to introduce evidence of
                                               including such things as

              onsite safety representative, and a common law duty to
              hire competent contractors    when those purported duties
              are inconsistent with Beil or otherwise inapplicable under
              the law?

       (3)    Is PPL entitled to a new trial on liability when the Court
              instructed the jury contrary to Beil?

       (4)    Is PPL entitled to judgment notwithstanding the verdict
              when the evidence established that Nertavich assumed the
              risk of his fall?

                  -4. Because we conclude that PPL is entitled to j.n.o.v. on its

first issue, we need not address its remaining claims.




____________________________________________


9
  The trial court did not direct PPL to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).



                                           -7-
J-A02017-14



not responsible for the acts or omissions of such independent contractor or

                 Beil, supra, 11 A.3d at 466 (emphasis supplied).

      This foundational law is based upon the long-standing notion
      that one is not vicariously liable for the negligence of an
      independent contractor, because engaging an independent

      manner of doing the work contracted for. How can the other
      party control the contractor who is engaged to do the work, and
      who presumably knows more about doing it than the man who
      by contract authorized him to do it? Responsibility goes with
                   Silveus v. Grossman, 307 Pa. 272, 278, 161 A.
      362, 364 (1932).

Id.

      However, this general rule is subject to certain exceptions. Relevant



414 of the Restatement (Second) of Torts:

      One who entrusts work to an independent contractor, but who
      retains the control of any part of the work, is subject to liability
      for physical harm to others for whose safety the employer owes
      a duty to exercise reasonable care, which is caused by his failure
      to exercise his control with reasonable care.

Restatement (Second) of Torts § 414 (1965).

      The Beil Court discussed the degree of control necessary to hold an

owner liable for injuries suffered by an employee of an independent

contractor under Section 414:

            The primary question in many premises cases, as is the
      issue before us, is whether the property owner hirer of the
      independent contractor retained sufficient control of the work to
      be legally responsible for the harm to the plaintiff. Comment c
      to Section 414 provides the most commonly used test for
      determining whether an employer/landowner retained sufficient
      control. More precisely, comment c speaks to the degree of


                                     -9-
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     First, PPL contends it is entitled to j.n.o.v. because Nertavich failed to

establish that it retained control over the manner, methods, means, and



overcome the general rule that an owner owes no duty to the employees of

an independent contractor.

                      be entered upon two bases: (1) where the movant is

entitled to judgment as a matter of law; and/or, (2) the evidence was such

that no two reasonable minds could disagree that the verdict should have

                                 Egan v. USI Mid-Atl., Inc., 92 A.3d 1, 19-



decision granting or denying a post-trial motion for j.n.o.v. is well-

established:

     When a court reviews a motion for judgment n.o.v., the
     reviewing court considers the evidence in the light most
     favorable to the verdict winner, who must receive the benefit of
     every reasonable inference of fact arising therefrom, and any
     conflict in the evidence must be resolved in his or her favor. A
     judgment n.o.v. should only be entered in a clear case.

Beil v. Telesis Const. Inc., 11 A.3d 456, 462 (Pa. 2011) (citations

omitted). Further, we will not substitute our judgment for that of the fact

finder when it comes to questions of credibility and weight of the evidence.

Egan, supra, 92 A.3d at 20 (citation omitted).

     In Beil, the case upon which PPL relies for support of its appeal, the




                                    -8-
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not responsible for the acts or omissions of such independent contractor or

                 Beil, supra, 11 A.3d at 466 (emphasis supplied).

      This foundational law is based upon the long-standing notion
      that one is not vicariously liable for the negligence of an
      independent contractor, because engaging an independent

      manner of doing the work contracted for. How can the other
      party control the contractor who is engaged to do the work, and
      who presumably knows more about doing it than the man who
      by contract authorized him to do it? Responsibility goes with
                   Silveus v. Grossman, 307 Pa. 272, 278, 161 A.
      362, 364 (1932).

Id.

      However, this general rule is subject to certain exceptions. Relevant



414 of the Restatement (Second) of Torts:

      One who entrusts work to an independent contractor, but who
      retains the control of any part of the work, is subject to liability
      for physical harm to others for whose safety the employer owes
      a duty to exercise reasonable care, which is caused by his failure
      to exercise his control with reasonable care.

Restatement (Second) of Torts § 414 (1965).

      The Beil Court discussed the degree of control necessary to hold an

owner liable for injuries suffered by an employee of an independent

contractor under Section 414:

            The primary question in many premises cases, as is the
      issue before us, is whether the property owner hirer of the
      independent contractor retained sufficient control of the work to
      be legally responsible for the harm to the plaintiff. Comment c
      to Section 414 provides the most commonly used test for
      determining whether an employer/landowner retained sufficient
      control. More precisely, comment c speaks to the degree of


                                     -9-
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      because the poles were energized, and there were no other
      attachment points on the poles to rig other climbing devices.
      QSC had to request these ladders from PPL to climb the poles.

            These facts, especially the way in which PPL dictated how
      QSC workers were to perform their painting work coupled with
      evidence of control over safety and access, evince the quality of
      control that the Supreme Court found lacking in Beil. The
      qualitative element being present, it was for the jury to
      determine if the quantity of control necessary to make PPL liable
      existed. There were ample facts in evidence, including the

      to determine that the necessary quantum of control existed as
      they did.

Id. at 16-17 (footnote omitted).

      Conversely, PPL argues the type of control Nertavich claims it retained

over the jobsite in this case is the same type of control the Supreme Court

found insufficient in Beil

       -run Beil through a so-



matter of law. We agree.

      Beil

decision on the issue of landowner liability for injuries sustained by the

employee of an independent contractor.        A discussion of the facts and

disposition in Beil will be helpful to our resolution of the present case. They

are as follows.

      Lafayette Colleg



Telesis subcontracted the roofing work to Kunsman Roofing and Siding

                                                                           also

                                    - 12 -
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restore stonework on the exterior of the building.        On the day of the

accident, Beil was installing flashing on the roof. He used scaffolding erected

by MPS, after consultation with the College, to access the roof.          While

ascending the ladder with 15 pounds of flashing, he fell 30 feet, and

sustained serious injuries.   Beil subsequently filed a personal injury action

against the College, Telesis, and MPS.        A jury awarded damages of $6.8

million, and apportioned liability as follows: Telesis 50% liable, the College

35% liable, MPS 10% liable and Beil 5% liable. The College appealed, and

this Court reversed and remanded for the entry of j.n.o.v. in favor of the

College.    Beil then petitioned the Supreme Court for allowance of appeal.

See Beil, supra, 11 A.3d at 458-462.           On appeal, the Supreme Court



retain sufficient control of the premises to subject it to liability pursuant to

                                                        Id. at 472.



retained control of the premises in two broad categories: safety and access.

Id. at 46



Id.   He presented the following evidence in support of that claim:         (1)

Telesis was contractually obligated to comply with the safety directives of

                                  -site project manager was consulted as to




                                     - 13 -
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      because the poles were energized, and there were no other
      attachment points on the poles to rig other climbing devices.
      QSC had to request these ladders from PPL to climb the poles.

            These facts, especially the way in which PPL dictated how
      QSC workers were to perform their painting work coupled with
      evidence of control over safety and access, evince the quality of
      control that the Supreme Court found lacking in Beil. The
      qualitative element being present, it was for the jury to
      determine if the quantity of control necessary to make PPL liable
      existed. There were ample facts in evidence, including the

      to determine that the necessary quantum of control existed as
      they did.

Id. at 16-17 (footnote omitted).

      Conversely, PPL argues the type of control Nertavich claims it retained

over the jobsite in this case is the same type of control the Supreme Court

found insufficient in Beil

       -run Beil through a so-



matter of law. We agree.

      Beil

decision on the issue of landowner liability for injuries sustained by the

employee of an independent contractor.        A discussion of the facts and

disposition in Beil will be helpful to our resolution of the present case. They

are as follows.

      Lafayette Colleg



Telesis subcontracted the roofing work to Kunsman Roofing and Siding

                                                                           also

                                    - 12 -
J-A02017-14




restore stonework on the exterior of the building.        On the day of the

accident, Beil was installing flashing on the roof. He used scaffolding erected

by MPS, after consultation with the College, to access the roof.          While

ascending the ladder with 15 pounds of flashing, he fell 30 feet, and

sustained serious injuries.   Beil subsequently filed a personal injury action

against the College, Telesis, and MPS.        A jury awarded damages of $6.8

million, and apportioned liability as follows: Telesis 50% liable, the College

35% liable, MPS 10% liable and Beil 5% liable. The College appealed, and

this Court reversed and remanded for the entry of j.n.o.v. in favor of the

College.    Beil then petitioned the Supreme Court for allowance of appeal.

See Beil, supra, 11 A.3d at 458-462.           On appeal, the Supreme Court



retain sufficient control of the premises to subject it to liability pursuant to

                                                        Id. at 472.



retained control of the premises in two broad categories: safety and access.

Id. at 46



Id.   He presented the following evidence in support of that claim:         (1)

Telesis was contractually obligated to comply with the safety directives of

                                  -site project manager was consulted as to




                                     - 13 -
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a post-accident email that the roofers were working in a potentially unsafe



expert testimony that the College controlled safety at the site.     Id.   With



certain are

Id. at 469. In support of this contention, he produced evidence that: (1)

the College denied the roofers access to certain areas of the building; (2) the

subcontractors had to obtain written permission to enter the building; and

(3) the College hired MPS, whose scaffolding was used, and the College was

consulted as to where to place the scaffolding. Id. at 469-470.

       However, the Supreme Court held that a property owner may retain a

certain degree of authority over safety issues, as well as regulate the use of




retaining a certain degree of authority over safety issues, such as

supervising and enforcing safety requirements, and even imposing its own

safety requirements at a work site, does not constitute control for purposes

                        Id. at 469 (footnote omitted).     Rather, a property



public policy. Id. at 468.




subs

                                    - 14 -
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                                               Id. at 471. Rather, the Court

explained,


      [did] not directly relate to the decis

      equipment, which Kunsman contracted to provide, and Telesis
      contracted to ensure was safe.       While MPS permitted the
      Kunsman roofers to use its scaffolding, Telesis did not anticipate
      or rely upon the use of MPS scaffolding for access to the roof,
      and access was for Kunsman to determine.

Id.   Accordingly, the Beil

exercised certain authority regarding safety and regulated access to, and

use of, certain areas of the premises, this is not the type of conduct that

                                                           Id. at 472.

      In the present case, however, the trial court opined that the facts

                                  ly the way in which PPL dictated how QSC

workers were to perform their painting work coupled with evidence of control

over safety and access, evince the quality of control that the Supreme Court

found lacking in Beil                                           17 (footnote




actual exercise



to be sufficient in the present case] are the very same theories of control




                                     - 15 -
J-A02017-14



rejected by Beil and its ancestors.

follow, we agree.

        With respect to the contract provisions,10 the trial court first found that

                                      which included such details as the specific

type of paint to use, how to apply the paint (i.e., by concealing brush marks,

without runs, by applying a uniform finish and thickness, etc.), and the
                                                         11
                             -                                constituted control




specifications had nothing



directed QSC workers how to tie off to the pole, how to climb the pole, or




____________________________________________


10
                                         rpretation is to ascertain the intent
of the contracting parties. In cases of a written contract, the intent of the
                             Lesko v. Frankford Hospital-Bucks County,
15 A.3d 337, 342 (Pa. 2011) (quotation omitted).
11
     See Contract, 8/30/2007, Attachment A, at 2, ¶ 17.




                                          - 16 -
J-A02017-14



Id. at 1062.

       In the present case, the contract provided quality specifications for the

painting of the transmission poles.13

to do with these quality specifications.           Rather, Nervatich fell when the

ladder he tied off on wobbled, and the single lanyard he used as fall

protection slid off the rung.14 Moreover, Nertavich has failed to identify any

contractual provisions that instructed QSC how to climb the poles safely

to complete the painting work.15 Rather, the contract specifically provided

                                                                               ing

equipment necessary to complete this painting contract in an efficient




____________________________________________


13
  Gallus Wukitsch, who at the time of the accident was a senior engineer in
P                                                                         -
                                  -in-chief. He explained why the contract

Keeler and Long product, you d


understand that the paint we were specifying had certain requirements by
                                                  Id. at 53.
14



                               nyard attached which is how he had been working
                                      -226
15
   As we will discuss infra, Nertavich also contends that PPL actually
controlled how QSC climbed the poles.




                                          - 19 -
J-A02017-14



A, at 3, ¶¶ 23 and 26. As




specifications set forth in the contract did not establish that



accident.16

       Secondly, with regard to the terms of the contract, the trial court also

                                                                     See Trial

Court Opinion, 6/14/2013, at 16-17. Specifically, the court noted that (1)

the contract specified safety provisions to be followed, and (2) created the

position of a PPL contract field supervisor, Wayne Grim, whose duty it was to

monitor safety conditions at the work site and hold daily safety meetings.17
____________________________________________


16
                                                             f the operational



the contract provided specific, detailed painting specifications. However,
how QSC was to achieve those specifications was up to the company, itself.


at 146; Videotaped Deposition of John Pateras, 7/22/2010, at 31. More
importantly, as discussed supra, the contract did not specify how QSC was
                                                               .
17
   As became evident during trial, Mr. Grim had no training or experience
climbing steel transmission poles. N.T., 2/29/2012, at 154. However, he
                                                                   Id. at
170. Indeed, Nertavich confirmed that no one from PPL directed the
painters as to how to do their jobs, and QSC had its own foreman, Mike
Healy, who rotated between three or four QSC painting crews on the PPL
(Footnote Continued Next Page)


                                          - 20 -
J-A02017-14



Id. at 1062.

       In the present case, the contract provided quality specifications for the

painting of the transmission poles.13

to do with these quality specifications.           Rather, Nervatich fell when the

ladder he tied off on wobbled, and the single lanyard he used as fall

protection slid off the rung.14 Moreover, Nertavich has failed to identify any

contractual provisions that instructed QSC how to climb the poles safely

to complete the painting work.15 Rather, the contract specifically provided

                                                                               ing

equipment necessary to complete this painting contract in an efficient




____________________________________________


13
  Gallus Wukitsch, who at the time of the accident was a senior engineer in
P                                                                         -
                                  -in-chief. He explained why the contract

Keeler and Long product, you d


understand that the paint we were specifying had certain requirements by
                                                  Id. at 53.
14



                               nyard attached which is how he had been working
                                      -226
15
   As we will discuss infra, Nertavich also contends that PPL actually
controlled how QSC climbed the poles.




                                          - 19 -
J-A02017-14



A, at 3, ¶¶ 23 and 26. As




specifications set forth in the contract did not establish that



accident.16

       Secondly, with regard to the terms of the contract, the trial court also

                                                                     See Trial

Court Opinion, 6/14/2013, at 16-17. Specifically, the court noted that (1)

the contract specified safety provisions to be followed, and (2) created the

position of a PPL contract field supervisor, Wayne Grim, whose duty it was to

monitor safety conditions at the work site and hold daily safety meetings.17
____________________________________________


16
                                                             f the operational



the contract provided specific, detailed painting specifications. However,
how QSC was to achieve those specifications was up to the company, itself.


at 146; Videotaped Deposition of John Pateras, 7/22/2010, at 31. More
importantly, as discussed supra, the contract did not specify how QSC was
                                                               .
17
   As became evident during trial, Mr. Grim had no training or experience
climbing steel transmission poles. N.T., 2/29/2012, at 154. However, he
                                                                   Id. at
170. Indeed, Nertavich confirmed that no one from PPL directed the
painters as to how to do their jobs, and QSC had its own foreman, Mike
Healy, who rotated between three or four QSC painting crews on the PPL
(Footnote Continued Next Page)


                                          - 20 -
J-A02017-14




at 17.

         However, the Beil Court made clear that a property owner who retains



enforcing     safety    requirements,      and      even   imposing   its   own   safety

requirements at a work site, does not constitute control for purposes of

imposing liabil         Beil, supra, 11 A.3d at 469. Moreover, the terms of the

contract in the present case clearly placed responsibility for job site safety

upon QSC. The contract explicitly provided:


         responsibilities under this Contract while performing Work on



         for safety-related reasons, these actions are for the primary
         purpose of protecting Company personnel and property.
         Contractor shall remain solely responsible for the safe
         performance of the Work under this Contract.                  The
         provisions of this article shall be interpreted and construed in a

         contractor.

Contract, 8/30/2007, at 6-7, ¶ M (emphasis supplied). See id. at 5, ¶¶ D



                       _______________________
(Footnote Continued)

job. N.T., 3/1/2012, at 161-                         -worker Ryan Wheeler
testified that Healy would yell at the painters if they were not using fall
protection on a pole. See N.T., 2/27/2012, at 132; Videotaped Deposition
of Ryan Wheeler, 7/21/2010 at 90.



                                           - 21 -
J-A02017-14



            18
                                   shall take all reasonable precautions for the

safety of all Contractor          personnel engaged in the     Work and shall



                                                                See also id. at



be safely painted in [their] entirety prior to start of work on that



to provide all personal protecti




                                                                         19
                                                      -related reason         that

type of safety oversight was the same which the Supreme Court found

permissible in Beil.      See Beil, supra

property owner retaining a certain degree of authority over safety issues,

such as supervising and enforcing safety requirements, and even imposing

its own safety requirements at a work site, does not constitute control for

                                         See also LaChance, supra, 869 A.2d at

1060-                                                             ised to assure

itself that [independent contractor] performed its work safely, as [it] had
____________________________________________


18

Painting
19
     See Contract, 8/30/2007, at 5-6, ¶ F.



                                          - 22 -
J-A02017-14



agreed in its contract, did not make [landowner] the guarantor of the safety




        Moreover, with respect to the contract, the trial court also found PPL



                                                               fied that this



areas of any questions, materials, quality assurance, general safety, work



Moreover, the t

to as GSP-19, which stated that the contract field representative was to



                                                cedures, Section 19 (Revised-



establishment of the position of contract field representative demonstrated



Nerta

        However, in                                                , 911 A.2d

1264 (Pa. 2006), the Supreme Court rejected a similar claim that a

                                -site safety supervisor established that the

landowner retained control over the worksite.




                                     - 23 -
J-A02017-14



of a section of an expressway in western Pennsylvania.           PTC also hired



responsible to administer and oversee several projects, as well as monitor

the safety procedures of the other contractors. Id. at 1268. Farabaugh, an

employee of NESL, was fatally injured when he drove a loaded, off-highway

dump truck up a hill and the haul road he was traveling on collapsed due to

instability in the hill. His Estate argued at trial that the haul road did not

comply with safety measures.              Id. at 1269.   The trial court granted

summary judgment in favor of PTC and Trumbull, and the Commonwealth

Court reversed. Id. at 1270-1271.



                                               20
                                                                         at PTC



safety orientation videotape to all those employed on the jobsite, (2) by
____________________________________________


20

reversal of summary judgment with respect to Trumbull, concluding:

       [u]nder the relevant contract
       of care to Decedent based upon its contractual obligation to
       perform safety inspections and other monitoring functions. A
       determination of the scope of the duty and whether this duty
       was breached, however, requires further development of the

       proximate cause of the accident.

Id. at 1267.    Unlike in the present case, Trumbull was contractually
obligated to monitor safety on the job site.




                                          - 24 -
J-A02017-14



employing an on-site safety inspector, and (3) by contracting with Trumbull

to provide construction management services. Id. at 1273-1274. However,



                                     LaChance

dictates that [a landowner] monitor the safety of its highway construction

                                                                          Id.

at 1275, quoting LaChance, 869 A.2d at 1064.              Furthermore, the

Farabaugh Court held:

      It would likewise disserve public policy to impose liability
      on PTC for going one step further and hiring a contractor
      specifically to supervise safety issues on site in addition
      to requiring its general contractor to be responsible for
      safety under its own contract with PTC.             Instead, we
                                         ct with PTC, PTC turned over
      control of the worksite to its general contractor, NESL, and did

      of a Section 414 analysis.

Id. at 1275.

                                                                   tract field

representative, responsible for, inter alia

practices, did not evidence its retention of control over all matters of work



for th

8/30/2007, at 7 ¶ M.




misplaced. The GSP         internal company documents that set forth safety

                                     - 25 -
J-A02017-14



                                                                              -51.   In

particular, while GSP 19, which governs contractor safety, states that the

                                                            ontractor to ensure that




Section 19 (Revised January 2005) at ¶¶ 5.4, 7.2. See also id. at ¶ 7.1.

Therefore, although GSP 19 encourages PPL employees to monitor the safety



safety matters on the job site.         Moreo

internal documents, which are not provided to the independent contractors

or their employees. N.T., 2/29/2012, at 136. Accordingly, we conclude that

                                                                              te based

                                                                 See Beil, supra, 11

A.3d at 467.

        Turning to the second part of the Beil control test, PPL may still be



based on its actual conduct. Id.
                                                   21
                                                        sufficient to find it liable for



____________________________________________


21
     Trial Court Opinion, 6/14/2013, at 17.




                                          - 26 -
J-A02017-14



                                                                           s to



                                                                           -rail

ladders; and (3) by providing these ladders to QSC without the necessary

bolts to secure them to the transmission poles.      See Trial Court Opinion,

6/14/2013, at 17, 21.     PPL argues, conversely, that none of this evidence

demonstrated its retention of control over the job site.



it wa



engineer, Wukitsch described the procedure as follows:

        Green tag procedure allows us to work on facilities.   And what

        contacts a line or some other thing, the lines trip out and
        automatically reclose.


                                          cker real fast. Lines trip and



               With a green tag permit, we actually go to the end points
        at the substations, at the circuit breakers. We change the
        condition of those circuit breakers so that if at any time those
        electrical lines would trip for any reason, they would


N.T., 2/29/2012, at 14-                                         ephen Estrin,

testified that the procedure was necessary to ensure that QSC workers were




                                     - 27 -
J-A02017-14




the job site:

      QSC was not given unfettered discretion of when, where and
      how to work. They had to get this tag before they could work.
      So if they arrived on the job site at 0700 and PPL had not issued
      the green tag, they could not access the pole and perform work.
      They would have to wait till [PPL] issued them the tag.

Id. at 105.

      PPL contends, however, that this argument is similar to the controlled

access claim rejected by the Supreme Court in Beil.       In Beil, the College

                                                 ted with MPS as to where to

erect its scaffolding, which Beil later used to access the roof. Nonetheless,

the Beil

                                                                          ontrol

over the manner, method, means, or operative detail in which the work is

                Beil, 11 A.3d at 471. The Court opined:

      They are tangential to the substantive work of the contractor,
      and subcontractor. Simply stated, the College did not control
      the way the workers did their work.


                         does not directly relate to the decision of

      scaffolding instead of [its] own equipment, which [it]
      contracted to provide, and [the general contractor]
      contracted to ensure was safe. While MPS permitted the
      [subcontractor] roofers to use its scaffolding, [the general
      contractor] did not anticipate or rely upon the use of MPS
      scaffolding for access to the roof, and access was for [the
      subcontractor] to determine.

Id. (emphasis supplied and record citation omitted).


                                     - 28 -
J-A02017-14



       Similarly, here, the green tag permit simply indicated to QSC that the

pole was not energized, and it was safe for QSC to perform its painting work,

pursuant to the contract, by whatever means it saw fit. Indeed, the permit

procedure did not directly relate to the decision of QSC concerning how its

employees would climb the poles. As the Beil

novel, if not absurd, interpretation of Section 414 if an independent



                                                   Id. at 470.   Furthermore, the

issuance of a green tag permit for the pole had nothing to do with the
                         22
                              Accordingly, we find that the green tag permit




       Second, the trial court also

to the poles by limiting the available ways to scale the poles to the use of

single rail ladders. Trial Court Opinion, 6/14/2013, at 17. Indeed, Nertavich

                                                            t any other means for



       This finding, however, ignores the specific terms of the contract that



____________________________________________


22
  Had Nertavich been electrocuted as a result of the improper issuance of a
green tag permit, we would be inclined to conclude that PPL maintained
control over that aspect of the job site, and was subject to liability.




                                          - 29 -
J-A02017-14



equipmen




Contractor to field locate the structu



                                   Id. at 1.         The contract also stated that the

                                                                           ot be safely

                                                                                    Id.

at 2, ¶ 12. Accordingly, the terms of the contract placed all responsibility for

determining how to access the transmission poles upon the knowledgeable

independent contractor, QSC.



QSC, the experienced contractor, not PPL, determined how to climb the




Deposition of John Pateras, 7/22/2010, at 31.                  He confirmed that the

                                                                -rail ladders, to access



                                       23
                                            Id. at 32. See also N.T., 2/27/2012, at
____________________________________________


23
     We note that Nertavich argues PPL was negligent for not questioning QSC


Program (Revision No. 3), 11/27/1995, at 61.                     However, the above
(Footnote Continued Next Page)


                                            - 30 -
J-A02017-14




co-




                                                            .   However, this

argument ignores the reality that QSC was the expert painting contractor,

with 16 years of experience in industrial painting, and most of its experience

working for power companies, such as PPL.            N.T., 2/28/12, at 146;

Videotaped Deposition of John Pateras, 7/22/2010, at 14-15.           In fact,

Wukitsch testified that all of the contractors who attended the pre-bid

meeting, including QSC, understood that they would be accessing the

                                                                   rs told him

they had used them before. N.T., 2/29/2012, at 110-111. PPL provided the

job specifications, and deferred to the specialized expertise of the contractor

to determine how to safely complete the work.       Accordingly, we conclude

                       suggest or provide alternative means to access the

transmission poles is not evidence of its retention of control over the job

site.
                       _______________________
(Footnote Continued)


was entitled to rely on the expertise of the independent contractor it hired to
perform this specialized work.




                                           - 31 -
J-A02017-14




supplying the single-rail ladders to QSC. The cour




supply their ladders only after it was unable to obtain them itself. Pateras



      But I do remember in the bidding process that originally we were
      supposed to furnish the climbing devices. I called the company

      furnish it. Then I believe I had spoke[n] to PP&L and told them
      about the problem. And PP&L furnished some climbing devices.

N.T., 2/28/12, at 146; Videotaped Deposition of John Pateras, 7/22/2010, at

71.   Pateras testified that he was at the warehouse when his employees



                                               Id. at 73.    Moreover, Wukitsch

testified that after PPL located the single-rail ladders,

      [w]e showed [QSC] what we had and said:               We would make
      these available for your use.

      working order. They were the ones who picked them up and
      took them out to the job site, installed them.

N.T., 2/29/2012, at 35 (emphasis supplied). Indeed, Wukitsch testified that



for all c

                Id. at 114-115. See also Contract, 8/30/2007, Attachment

A at 3, ¶ 23.   He explained that the language was added to make clear that

                                      - 32 -
J-A02017-14



                                               he ladders, carry them, put them on,

                   Id. at 115.

       Therefore, while PPL made available to QSC the actual ladders the

contractor used to climb the transmission poles, we do not find that, by

                                                         PPL only made the ladders

available when QSC was unable to obtain them on its own.              Significantly,

there was no evidence that PPL mandated that QSC use these particular

ladders to climb the transmission poles.             Indeed, the language of the

contract was cle

rigging equipment necessary to complete this painting contract in an



after inspection of the ladders, was free to reject them, or choose a different

means to climb the poles. Accordingly, we conclude the trial court erred in

                                                       -rail ladders Nertavich used

the climb the transmission poles established its retention of control over the

job site.24

____________________________________________


24
   We do not find that the decision of the Pennsylvania Supreme Court in
Byrd v. Merwin, 317 A.2d 280 (Pa. 1974), mandates a different result. In
that case, Byrd was an employee of an electrical subcontractor hired to

contractor on the job.

was installing electrical wiring. The usual procedure in such situations was
to install the staircase prior to wiring the house. Id. at 518.

(Footnote Continued Next Page)


                                          - 33 -
J-A02017-14



        Because we conclude that the evidence, viewed in the light most

favorable to Nertavich, did not establish that PPL retained sufficient control

over the job site, based on the contract provisions and actual control, to

subject it to liability



motion for j.n.o.v.




presented evidence that PPL was directly liable for his injuries. He argues

 Beil                                            direct liability when the landowner,

                       _______________________
(Footnote Continued)

        Byrd sued both Olin and Merwin, and a jury returned a verdict in his


Section 414 of the Restatement. On appeal, the Supreme Court reversed,


                                         Id. at 282.    Further, Merwin, the general

                                        Id.
must be remembered that it was Olin who ordered electrical work started
b                              Id.

      First, we note that Byrd was a plurality decision, with three justices
joining the majority, two justices concurring in the result, and one justice
dissenting. In addition, the facts in Byrd were clear that the owner retained
control of the work site and actually instructed the subcontractor when and
where to begin his work. There is no such degree of control in the present
case.




                                           - 34 -
J-A02017-14



as here, engages in its own, independent negligent conduct that directly




of law, we conclude that his claims of direct negligence in the present case

fail.25

          Nertavich claims PPL was directly liable for his injuries based on the



the Restatement (Second) of Torts, because PPL provided single-rail ladders,

____________________________________________


25
   We note that both the trial court and Nertavich cite Chenot v. A.P. Green
Services, Inc., 895 A.2d 55 (Pa. Super. 2006), for the proposition that a
land owner may be directly liable to the employee of an independent
contractor for its own negligent acts. Trial Court Opinion, 6/14/2013, at 20
                                            we disagree that Chenot stands
for such a broad principal of law. Indeed, the Chenot Court simply found


     In that case, Chenot was exposed to asbestos dust while working as
an employee of Philip Carey, an independent contractor retained by Koppers
Company to install new insulation in one of its manufacturing facilities.
Chenot later contracted mesothelioma as a result of this exposure. Chenot,
supra, 895 A.2d at 58. In concluding that Koppers owned a duty of care to

of a danger on his premises has a duty to warn an independent contractor of
that danger, whether or not the contractor exercises full control over the
premises. Id. at 64.

     Therefore, rather than stand for the broad proposition that a
landowner may be directly liable to the employee of an independent

doctrine, a doctrine which the trial court found inapplicable in the present
case. See




                                          - 35 -
J-A02017-14



without accompanying bolts to secure the ladders to the transmission poles,

and provided an unqualified contract field representative to monitor safety

practices on the job site; (2) negligent design of the transmission poles,

because PPL failed to require the pole manufacturer to include lifeline
                                                                        26
                                                                             and the

National Electric Safety Code (NESC).              For the reasons that follow, we

conclude that none of these theories should have been presented to the

jury.



Section 323 of the Restatement (Second) of Torts, commonly known as the
                            27
                                 imposes liability when one gratuitously undertakes

to perform a service for another:

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

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

        (b) the harm is suffered because of the other's reliance upon the
        undertaking.

Restatement (Second) of Torts § 323 (1965).
____________________________________________


26
     Occupational Safety and Health Act, 29 U.S.C. § 651 et seq.
27
   Filter v. McCabe, 733 A.2d 1274, 1276 (Pa. Super. 1999), appeal
denied, 758 A.2d 1200 (Pa. 2000).




                                          - 36 -
J-A02017-14




QSC with the single-rail ladders, it did so negligently when it failed to also

provide the bolts to secure the ladders to the transmission poles.        We



increased the risk of harm to Nertavich or that Nertavich, or, in fact, QSC,



with the single-rail ladders supplied by PPL, and, indeed, had requested



were aware that the ladder could be secured to the transmission pole with a

bolt. For example, another QSC painter, Donald Thompson, testified that he



ladders in question.   N.T., 3/7/2012, at 157.    He explained that he had

painted more than 5,000 poles, and while some had ladders permanently

attach                                                            Id. at 157-

158. He also testified why he never used bolts when he installed the single-

rail ladders:


      gets hard. The red primer was 6000 primer. It sets in there,
      and you have to sometimes beat them out to get it to come back
      out.

Id.



as their use on the PPL job. Id. Moreover, Nertavich, himself, testified that

prior to the PPL job, he had painted approximately two dozen similar


                                    - 37 -
J-A02017-14




including the one in question. N.T., 3/1/2012, at 23, 25-26. He testified he

had never seen a bolt attaching the ladder to the poles on any job. Id. at

36-37.



                                                              ularly, when his

own co-worker acknowledged that QSC never used bolts to attach the

single-rail ladders to the poles in a temporary application, and Nertavich,

himself admitted he never saw a bolt attaching the ladder to the pole on any

job. Moreover, bec                                      industrial painting

expert, he cannot establish that his accident resulted from



     Second, Nertavich argues PPL was directly liable for his injuries when it

chose to provide an on-site contract field representative to ensure job site

safety procedures were being followed, but then negligently appointed Grim

to the position, who had no training or experience on the proper way to

climb and tie-off on a transmission pole.      We conclude, however, this

argument runs counter to the dictates of Beil, Farabaugh, and LaChance,



     As our sister court stated in LaChance



                                                                   LaChance,

supra, 869 A.2d at 1064. Furthermore, in Farabaugh, the Supreme Court

                                   - 38 -
J-A02017-14



concluded that




safety issues at the job site.           Farabaugh, supra, 911 A.2d at 1275.

Moreover, in Beil, the Supreme Court reiterated that a property owner who



supervising and enforcing safety requirements, and even imposing its own

safety requirements at a work site, does not constitute control for purposes

                           Beil, supra, 11 A.3d at 469 (footnote omitted). To

hold that an owner who designates an, albeit inexperienced, on-site safety

representative may be held liable under Section 323 of the Restatement,

would undercut the case law cited above, as well as the general rule that a

landowner is generally not responsible for the acts or omissions of his

independent contractor.28 Id. at 466.

       Furthermore, the imposition of liability under these circumstances



contract provided for the designation of a contract field representative, who




____________________________________________


28
    Our conclusion might be different if there was any evidence that Grim
provided instructions or directions to Nertavich or the other QSC employees.
However, the testimony was undisputed that Grim provided no direction at
all.




                                          - 39 -
J-A02017-14



questions, materials, quality assurance, general safety, work procedures and
              29
                                                                           solely

responsible

Contract, 8/30/2007, at 7, ¶ M (emphasis supplied). Therefore, we conclude




        Next, Nertavich claims PPL was directly liable for his injuries because it

failed to require the transmission pole manufacturer, Thomas & Betts, to

include lifeline attachment points, or vangs, on the poles. He argues:

        PPL was responsible to advise Thomas & Betts of any attachment
        points it wanted on its poles because PPL was in the best
        position to know what it needed to do on its poles by way of
        access and maintenance. PPL knew that its poles would need to
        be repainted. PPL knew that workers would need to access its
        poles to paint them. PPL, by ordering the ladders to access and
        work on its poles, knew that workers would need to climb the


        should have known, that QSC prohibited the use of single rail
        ladders. PPL knew or should have known that such ladders did
        not provide adequate safe tie-offs for the lifelines needed by the
        workers to perform their duties safely and were also proscribed
        by OSHA.




transmission       pole,   attempts     to     end-

determination that the statute of repose barred any claim based upon the
____________________________________________


29
     Contract, 8/30/2007, Attachment A, at 2, ¶ 6.



                                          - 40 -
J-A02017-14



                                                                          court granted




or manufacture of the transmission pole was barred by the statute of repose,

42 Pa.C.S. § 5536. The statute mandates, in relevant part, that any action



observation of construction, or construction of any improvement to real

property    must    be    commenced       within     12   years   after   completion   of
                                               30
                                                    42 Pa.C.S. § 5536(a).     Therefore,

any challenge to            design of the pole should be similarly barred.31




____________________________________________


30
     Wukitsch testified that the transmission pole that Nertavich was painting

the mid-                                at 17. Therefore, it had been in
place more than 20 years on September 23, 2007, the date of the accident.
31

was tainted by hearing evidence of the defective pole, which was not an
issue in the case. He claims that the only evidence he produced regarding


asserted the pole was defective
n.7. However, PPL did not assert a claim against Thomas & Betts claiming
that the pole was defective.     Rather, its counterclaims asserted only
allegations of joint and several liability and contribution/indemnification.
See
Second Amended Complaint, May 11, 2011, at ¶¶ 119-120.




                                          - 41 -
J-A02017-14


       that under Pennsylvania law the defendants could owe
       plaintiff a duty of care. It is important to reiterate that to use
       the OSHA regulation as evidence here is not to apply the OSHA

       for use as evidence of the standard of care owed to plaintiff.
       This is precisely how the Pennsylvania state courts had
       employed OSHA regulations.          See e.g. Brogley v.
                                 , 306 Pa.Super. 316, 452 A.2d 743,
       746 (1982).

Id. at 1014 (emphasis supplied).      Therefore, the Third Circuit concluded

evidence of the violation of an OSHA regulation was relevant to the issue of

the standard of care, only after the court first determined that the

defendant owed a duty of care to the plaintiff.

       In that case, the Court found that Kane owed a duty to Rolick pursuant



possessor of land must exercise reasonable care to protect invitees from

non-                                                 Id. at 1011.   The Court

recognized that,

       [a]lthough the duty owed to an independent contractor varies
       depending upon the control the possessor maintains over
       the work
       still use reasonable care to make the premises safe or give
       adequate and timely warning of dangers known to him but
       unknown to the contractor....

Id. (citation omitted and emphasis supplied).       Section 343, however, is

inapplicable in the present case because none of the purported causes of

Nert                i.e., the failure to use a second lanyard, the use of a

                       constituted dangers known to PPL, but unknown to

Nertavich or his employer, QSC. Moreover, as discussed supra, we conclude



                                     - 44 -
J-A02017-14



that the evidence presented by Nertavich



we conclude that PPL owed no duty to Nertavich, the employee of an

independent contractor, it would have been improper for the jury to consider




      Therefore, because we conclude that PPL was entitled to judgment as



post trial motion for j.n.o.v. See Egan, supra. Accordingly, we reverse the

judgment entered against PPL, and remand for the entry of j.n.o.v. Because

our dispositi

remaining claims.

      Judgment reversed. Case remanded for entry of j.n.o.v. Jurisdiction

relinquished.

      Strassburger, J., files a Dissenting Opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/27/2014




                                     - 45 -
