J-A05039-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GEORGE C. AND PAMELA M.                        IN THE SUPERIOR COURT OF
GUTSCHALL, H/W,                                      PENNSYLVANIA

                            Appellants

                       v.

METROPOLITAN EDISON COMPANY AND
PENNSYLVANIA POWER & LIGHT CO.,
A/K/A PPL CORPORATION,

                            Appellees               No. 1973 EDA 2014


                   Appeal from the Order Entered May 23, 2014
             In the Court of Common Pleas of Philadelphia County
             Civil Division at No(s): November Term, 2012 No. 927


BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.

MEMORANDUM BY SHOGAN, J.:                             FILED MAY 01, 2015

       Appellants George C. Gutschall and Pamela M. Gutschall, husband and

wife, appeal from the order granting summary judgment in favor of Appellee

Metropolitan Edison Company (“MetEd”).1 We affirm.

       On November 9, 2012, Appellants commenced suit against several

defendants contending that Mr. Gutschall contracted lung cancer as a result

of being exposed to asbestos at various sites.       With regard to MetEd,

____________________________________________


1
  Appellants filed a notice of appeal from the orders granting summary
judgment in favor of MetEd and Pennsylvania Power & Light Company
(“PP&L”). Notice of appeal, 6/27/14. Appellants subsequently petitioned to
discontinue the suit against PP&L only, and on November 10, 2014, this
Court granted that petition. As a result, the appeal before us involves only
the summary judgment order entered in favor of MetEd.
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Appellants contend that Mr. Gutschall was exposed to asbestos while

working as a boilermaker at MetEd’s facilities located at Three Mile Island,

Portland and Titus.

     MetEd and PP&L filed motions for summary judgment and Appellants

filed answers to those motions.    By orders dated May 23, 2014, the trial

court granted summary judgment in favor of MetEd and PP&L. On June 3,

2014, the case settled as to all remaining defendants.

     On June 27, 2014, Appellants filed a notice of appeal from the orders

granting summary judgment in favor of MetEd and PP&L. On July 1, 2014,

the trial court issued two orders, one for each order appealed from, directing

Appellants to file a separate Pa.R.A.P. 1925(b) statement for each order. On

July 22, 2014, Appellants filed a single Pa.R.A.P. 1925(b) statement, with no

clear delineation of the matters complained of as to each Appellee. The trial

court prepared a Pa.R.A.P. 1925(a) opinion and in it described the Pa.R.A.P.

1925(b) statement as follows:     “Appellants’ Statement is five pages long,

contains forty four paragraphs, plus subparts and exhibits, and is vague,

rambling and overbroad.” Trial Court Opinion, 8/12/14, at 2.

     Appellants present the following issues for our review:

     I.    Did the lower court err by inferring, contrary to the
           evidence of record, that MetEd did not retain control of its
           premises during repairs for which Mr. Gutschall was
           working on the premises for independent contractors?

     II.   Did the lower court err when it inferred that Plaintiff had
           not demonstrated MetEd’s superior knowledge of the
           hazards of asbestos?


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      III.   Did the lower court err when it inferred that Mr. Gutschall
             did not prove exposure to asbestos while on MetEd’s
             premises?

      IV.    Should the lower court’s suggestion that that Plaintiffs’
             appeal should be waived for failure to comply with
             Pa.R.A.P. 1925(b)?

Appellants’ Brief at 4 (verbatim).

      We must first address Appellants’ last issue in order to determine

whether the issues have been properly preserved for our review.            See

Commonwealth v. Wholaver, 903 A.2d 1178, 1184 (Pa. 2006) (holding

appellate courts may sua sponte determine whether issues have been

properly preserved on appeal).       As this Court has noted, the fact that a

Pa.R.A.P. 1925(b) statement is timely filed does not automatically equate to

issue preservation.   Jiricko v. Geico Ins. Co., 947 A.2d 206, 210 (Pa.

Super. 2008).     “[T]he Pa.R.A.P.1925(b) statement must be sufficiently

‘concise’ and ‘coherent’ such that the trial court judge may be able to

identify the issues to be raised on appeal, and the circumstances must not

suggest the existence of bad faith.” Id.

      In attempting to address the claims raised in Appellants’ Pa.R.A.P.

1925(b) statement, the trial court concluded that Appellants had “waived

their right to appeal due to their failure to file a concise and coherent

Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P.

1925(b).” Trial Court Opinion, 8/12/14, at 3. The trial court also concluded

that Appellants had acted in bad faith in filing their Pa.R.A.P. 1925(b)

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statement.      Id. at 6.     In support of this conclusion, the trial court aptly

summarized the law in this area when it provided the following explanation:

      Appellants’ Statement is not merely the result of inartful
      drafting, but is clearly an attempt to overwhelm the trial court by
      asserting a multitude of issues which Appellants do not wish to
      raise and/or cannot raise on appeal, including the issue of
      whether [the trial court] erred in issuing [an order dated April 7,
      2014], which is not properly before the Superior Court because it
      was never appealed. The Pennsylvania Supreme Court has
      determined that in a rare case, where a trial court concludes
      there was an attempt to thwart the appellate process by
      including an exceptionally large number[] of issues in a Rule
      1925(b) statement, waiver may result.          Eiser v. Brown &
      Williamson Tobacco Corporation, 938 A.2d 417, 428 (Pa. 2007).
      When a trial court finds an appellant has acted in bad faith in
      filing a 1925(b) statement, appellant’s conduct constitutes a
      violation of Rule 1925(b). Id. at 421. In the instant matter,
      [the trial court] finds that Appellants acted in bad faith in filing
      their Statement of Matters Complained of on Appeal, and
      intended to deliberately circumvent the meaning and purpose of
      Rule 1925(b). Therefore, pursuant to Pa.R.A.P. 1925(b) and
      [case law], Appellants have waived their right to appeal.

Id.

      Furthermore, Pa.R.A.P. 1925(b)(4) addresses the requirements of the

statement, and the possibility of waiver. Specifically, it provides, in relevant

part, as follows:      “The Statement should not be redundant or provide

lengthy explanations as to any error.          Where nonredundant, non-frivolous

issues are set forth in an appropriately concise manner, the number of errors

raised   will   not   alone    be   grounds    for   finding   waiver.”   Pa.R.A.P.

1925(b)(4)(iv); Jiricko, 947 A.2d at 211 n. 8, 213 (holding that it was not

merely the fact the Pa.R.A.P. 1925(b) statement was lengthy; but rather,




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the fact that appellant’s statement was redundant, confusing, and at times

incoherent which required waiver).

      In the case sub judice, as noted, Appellants were directed to file a

Pa.R.A.P. 1925(b) statement for each order granting summary judgment to

each Appellee. Orders, 7/1/14; Corrective Order, 7/2/14. In contravention

of the trial court’s orders, Appellants filed a single Pa.R.A.P. 1925(b)

statement.

      Moreover, a review of the content of the statement reveals significant

failure to comply with the dictates and purpose of Pa.R.A.P. 1925(b).

Appellants’   statement   is   five   pages   long   and    consists    of   forty-four

paragraphs.     Plaintiff’s Pa.R.A.P. 1925(b) Statement, 7/22/14, at 1-5.

Multiple paragraphs include more than one allegation.             Id.    Two of the

paragraphs include four subparts.        Id. at 4-5.       Appellants make broad

allegations regarding MetEd’s liability. Id. at 1-5. The statement is vague,

rambling, redundant and largely incoherent.                Id.   Having reviewed

Appellants’ Pa.R.A.P. 1925(b) statement, we can appreciate the trial court’s

frustration and difficulty in attempting to craft a response.

      We agree with the trial court’s conclusion that Appellants’ Pa.R.A.P.

1925(b) statement is not written in a concise or coherent manner.                  The

statement did not concisely identify for the trial court the issues to be raised

on appeal. Not only was the statement lengthy, but it was also redundant,

confusing and incoherent.      Additionally, we conclude that the trial court’s


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finding that Appellants acted in bad faith in filing this Pa.R.A.P. 1925(b)

statement is supported by the evidence of record. The lengthy, redundant,

and often incoherent Pa.R.A.P. 1925(b) statement could be viewed as

Appellants’ attempt to overwhelm the trial court and thwart the appellate

process.   Furthermore, Appellants’ decision to utterly disregard the trial

court’s dictate to file a separate Pa.R.A.P. 1925(b) statement for each

Appellee and order also supports that conclusion.            Because the record

supports   the   trial   court’s   determination   that   Appellants   deliberately

circumvented the meaning and purpose of Rule 1925(b) and acted in bad

faith, we conclude that the trial court properly determined that Appellants’

issues are waived.

      However, assuming arguendo that Appellants’ issues raised on appeal

were not waived, we would find that Appellants’ remaining issues lack merit

and provide no basis for relief. Appellants’ remaining three claims challenge

the trial court’s entry of summary judgment in favor of MetEd.           An order

granting summary judgment is subject to the following scope and standard

of appellate review:

             Our standard of review on an appeal from the grant of a
      motion for summary judgment is well-settled. A reviewing court
      may disturb the order of the trial court only where it is
      established that the court committed an error of law or abused
      its discretion. As with all questions of law, our review is plenary.

           In evaluating the trial court’s decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
      where there is no genuine issue of material fact and the moving

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      party is entitled to relief as a matter of law, summary judgment
      may be entered. Where the nonmoving party bears the burden
      of proof on an issue, he may not merely rely on his pleadings or
      answers in order to survive summary judgment. Failure of a
      non-moving party to adduce sufficient evidence on an issue
      essential to his case and on which he bears the burden of proof
      establishes the entitlement of the moving party to judgment as a
      matter of law. Lastly, we will review the record in the light most
      favorable to the non-moving party, and all doubts as to the
      existence of a genuine issue of material fact must be resolved
      against the moving party.

Shepard v. Temple University, 948 A.2d 852, 856 (Pa. Super. 2008)

(quoting Murphy v. Duquesne University, 777 A.2d 418, 429 (Pa. 2001)).

      Appellants first argue that the trial court erred by “inferring” that

MetEd did not retain control of its premises during the repairs being

conducted by Mr. Gutschall and his employer.          Appellants’ Brief at 12.

Appellants contend that there is a genuine issue of material fact in this case

as to whether the landowner, here MetEd, retained sufficient control to make

it liable for injuries to a business invitee, and in support of that contention,

cite Beil v. Telesis Constr., Inc., 11 A.3d 456, 467 (Pa. 2011).            Id.

Appellants assert that they have presented evidence that MetEd retained

control of the Three Mile Island plant during the years that Mr. Gutschall

worked there.   Id. at 13. In support of this contention, Appellants assert

that while Mr. Gutschall worked there, “there were MetEd employees around

where he was working.” Id. at 13-14. Additionally, Appellants rely on what

they describe as MetEd’s “judicial admission” in a previously decided case,




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Rudy v. A-Best Products Co., 870 A.2d 330 (Pa. Super. 2005),2 that “at

all pertinent times [from 1969-1980] only MetEd was in possession of the

[Three Mile Island] power station.” Id. at 14.

       To the extent that Appellants are attempting to establish the

application of the “retained control exception,” as set forth in Beil v. Telesis

Constr., Inc., 11 A.3d 456 (Pa. 2011),3 any such claim is waived.

Appellants failed to raise this claim in their response to MetEd’s motion for

summary judgment.          Furthermore, despite Appellants’ assertion, the trial

court made no determination on the “retained control exception,” most

certainly due to Appellants’ failure to raise it. To the extent that Appellants’

argument pertains to possession of the land in the context of the “superior

knowledge exception” to premises liability, we shall address that claim in our

discussion of Appellants’ second issue.

       Appellants next argue that the trial court erred when it “inferred that

[Appellants] had not demonstrated the premises owner’s superior knowledge

____________________________________________


2
  We note that Rudy also involved MetEd as the defendant and the subject
property was Three Mile Island.
3
  “For over 100 years, the accepted and general rule regarding liability in our
Commonwealth has been that a landowner who engages an independent
contractor is not responsible for the acts or omissions of such independent
contractor or his employees.” Beil, 11 A.3d at 466. Section 414 of the
Restatement (Second) of Torts, which has been adopted in Pennsylvania,
sets forth one such exception to the general rule, the “retained control
exception,” by imposing liability on the premises owner when the owner
retains control over the manner in which the work is done. Id.



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of the hazards of asbestos.” Appellants’ Brief at 16. Appellants aver that

the trial court improperly concluded that Mr. Gutschall and the Boilermakers’

Union knew of the hazards of asbestos exposure starting in 1969, the year in

which Mr. Gutschall first did boiler-making work. Id. Appellants argue that

MetEd failed to proffer evidence as to what year Mr. Gutschall acquired this

knowledge and how such knowledge had been disseminated to union and

non-union permit workers. Id. at 20. Appellants also contend that the trial

court erred in concluding that Appellants did not proffer an expert opinion on

MetEd’s knowledge of the hazards of asbestos. Id. at 22. Appellants argue

that the report from their expert, Arthur Frank, M.D., Ph.D., and other

documentary evidence established that MetEd knew of the asbestos hazards

years before Mr. Gutschall began working on the premises. Id.

      In the case sub judice, because Appellants predicate their allegations

of negligence on MetEd’s status as a landowner, their claims against MetEd

cannot be analyzed under the standard set forth in Eckenrod v. GAF Corp.,

544 A.2d 50, 52 (Pa. Super. 1988), for the resolution of strict liability claims

against an asbestos manufacturer.      Gutteridge v. A.P. Green Services,

Inc., 804 A.2d 643, 654 (Pa. Super. 2002).          To recover damages in a

negligence action, as opposed to obtaining recovery on a strict liability

asbestos claim, a plaintiff must establish that a particular defendant’s

negligence was the proximate cause of his or her injuries. Id.




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       In order for premises liability to attach, Appellants must first establish

that the defendant was in fact possessor of the site.        Rudy, 870 A.2d at

333; Restatement (2d) of Torts, § 328E.            In the case sub judice, MetEd

admits that it was sole possessor of the land. MetEd’s Brief at 21.4

       The standard of care a possessor of land owes to one who enters upon

the land depends upon whether the latter is a trespasser, licensee, or

invitee.     Gutteridge, 804 A.2d at 655.             Employees of independent

contractors are “invitees” who fall within the classification of “business

visitors.”   Id.   The duty of care owed to a business invitee (or business

visitor) is the highest duty owed to any entrant upon land. Id. at 656. Our

case law sets forth the duty that a possessor of land owes to business

invitees as follows:

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

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

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

____________________________________________


4
  As noted in Appellants’ argument on their first issue, Appellants appear to
confuse a landowner’s possession of property with the control a landowner
exercises over an independent contractor as related to the “retained control
exception.” The fact that MetEd possessed the land, however, is not the
same as establishing that MetEd was liable based on the “retained control
exception.”



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

             Pennsylvania law imposes no general duty on property
     owners to prepare and maintain a safe building for the benefit of
     a contractor’s employees who are working on that building.
     Rather, our law generally insulates property owners from liability
     for the negligence of independent contractors and places
     responsibility for the protection of the contractor’s employees on
     the contractor and the employees themselves. Nevertheless, . .
     . a landowner must protect an invitee not only against known
     dangers, but also against those which might be discovered with
     reasonable care. Additionally, certain exceptions exist to the
     general rule that otherwise would limit the property owner’s
     liability.

Gutteridge, 804 A.2d at 656 (internal citations omitted).

     During the times that Mr. Gutschall was on MetEd’s premises, he was

employed by independent contractors.        As such, Mr. Gutschall was an

“invitee.” Accordingly, MetEd should be insulated from liability for injuries

caused to Mr. Gutschall through any negligence of its independent

contractors.

     Appellants, however, contend that MetEd is liable under the “superior

knowledge” exception to this general rule regarding premises liability.

Gutteridge provides the following guidance on this exception:

     [T]he employer of an independent contractor has no duty to
     warn either the contractor or his employees of a condition that is
     at least as obvious to them as it is to him. The question of
     whether a landowner owes a duty to warn an independent
     contractor of dangerous conditions on the premises turns on
     whether the owner possesses “superior knowledge” or
     information which places him in a better position to appreciate
     the risk posed to the contractor or his employees by the
     dangerous conditions.


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Gutteridge, 804 A.2d at 657-658.

     In considering the evidence of record in the context of the “superior

knowledge” exception, the trial court concluded:

           In the instant matter, the record shows that Mr. Gutschall
     worked for independent contractors on [MetEd’s] premises as an
     experienced union boilermaker who had substantial knowledge
     of the hazards of asbestos through his union, employers and
     coworkers.    Therefore, Appellants have failed to meet their
     burden of proving that [MetEd] had superior knowledge of this
     hazard, and consequently [MetEd] had no duty to warn either
     Mr. Gutschall or his employers of a condition that was at least as
     obvious to them as it was to [MetEd].

Trial Court Opinion, 8/12/14, at 11-12.       The trial court provided the

following analysis in concluding that summary judgment should be granted

in favor of MetEd:

            Appellants have not produced sufficient evidence that Met
     Ed had superior knowledge of the hazards of asbestos on its
     premises. Despite attaching hundreds of pages of exhibits to
     their Answer to Met Ed’s Motion for Summary Judgment,
     Appellants provided no documents specific to Appellants’
     contention that Met Ed had superior knowledge of the hazards of
     asbestos on its premises during the relevant time period. Even
     the report of Appellants’ expert, Dr. Frank (Exhibit “F” to
     Appellants’ Answer to Met Ed’s Motion for Summary Judgment)
     makes no reference to any documents which indicate that Met
     Ed had superior knowledge. Instead, on page 2 of the report,
     Dr. Frank makes the general statement, “I will testify as to the
     state of the art of scientific knowledge of the hazards of
     exposure to asbestos, the knowledge that premises owners
     could have had of the hazards of asbestos, and the companies’
     ability and obligation to warn of those dangers.”

          To the contrary, the record clearly shows Mr. Gutschall was
     an experienced union boilermaker who had substantial
     knowledge of the hazards of asbestos through his union,
     employers and coworkers. Consequently, Met Ed had no duty to
     warn either Mr. Gutschall or his employers of a condition that

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      was at least as obvious to them as it was to Met Ed. Therefore,
      [the trial court’s] granting of Met Ed’s Motion for Summary
      Judgment was proper, and should be affirmed.

Trial Court Opinion, 8/12/14, at 16-17 (emphasis added).

      The trial court’s analysis and conclusion are supported by the evidence

of record. Thus, even if this issue was not waived, we would conclude that it

has no merit.

      In their final issue, Appellants argue that the trial court erred “by

granting summary judgment on the basis that [Appellants] failed to prove

asbestos exposure at MetEd’s premises.”            Appellants’ Brief at 26-27.

Despite this claim, Appellants fail to identify where in the trial court’s opinion

that determination is made, and we discern no statement in the trial court’s

opinion wherein it concluded that Appellants failed to prove asbestos

exposure at MetEd facilities. Thus, this claim also lacks merit.

      We further note that our Supreme Court has consistently held that

establishing exposure to asbestos alone is insufficient to establish liability.

In Gregg v. V-J Auto Parts, Co., 943 A.2d 216, 226 (Pa. 2007), the

Supreme Court rejected the viability of the “each and every exposure” or

“any breath” theory.       In summarizing its holding, the Gregg Court

explained:

            In summary, we believe that it is appropriate for courts, at
      the summary judgment stage, to make a reasoned assessment
      concerning whether, in light of the evidence concerning
      frequency, regularity, and proximity of a plaintiff’s/decedent’s
      asserted exposure, a jury would be entitled to make the


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      necessary inference of a sufficient causal connection between
      the defendant’s product and the asserted injury.

Gregg, 943 A.2d at 227.

      In Betz v. Pneumo Abex, LLC, 44 A.3d 27, 30 (Pa. 2012), the

Supreme Court specifically addressed the admissibility of expert opinion of

the “any-exposure” or “any breath” theory of causation, which states, “each

and every fiber of inhaled asbestos is a substantial contributing factor to any

asbestos-related disease.” Id. at 30. The Betz Court precluded the use of

the “any exposure” theory of causation in asbestos cases. Id. at 58.

      Additionally, in Howard v. A.W. Chesterton, Co., 78 A.3d 605, 608

(Pa. 2013) (per curiam) (Howard III), our Supreme Court indicated that

the following principles apply to all asbestos cases involving a dose-

responsive disease:       (1) the “theory that each and every exposure, no

matter how small” is not viable to establish a defendant’s liability; (2) proof

of de minimus exposure to a product is insufficient to establish causation;

(3) an expert must make “some reasoned, individualized assessment of a

plaintiff’s or decedent’s exposure history” in opining about substantial-factor

causation of the asbestos disease; and (4) summary judgment “is an

available vehicle” for challenging de minimus exposure.          Howard III, 78

A.3d at 608.

      Thus,    assuming    arguendo   that     Appellants   established   that   Mr.

Gutschall was exposed to asbestos on MetEd’s premises, such showing alone

would not be sufficient to survive summary judgment. Therefore, if we were


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to address this issue, we would not agree that the trial court abused its

discretion in granting summary judgment in favor of MetEd.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/1/2015




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