J.A13041/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


HARRIETT HUEITT,                           :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                         Appellant         :
                                           :
                    v.                     :
                                           :
PHILADELPHIA MEDIA HOLDINGS, LLC           :
D/B/A THE PHILADELPHIA DAILY NEWS          :
AND JEFFREY ALEXANDER VARGAS               :
                                           :
                    v.                     :
                                           :
TIMOTHY KEELEY A/K/A/                      :
TIMOTHY B. KEELEY, SR.                     :     No. 2632 EDA 2013

                  Appeal from the Order Entered June 13, 2011
              In the Court of Common Pleas of Philadelphia County
                                Civil No(s).: 3553

BEFORE: ALLEN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED JULY 14, 2015

        Appellant, Harriett Hueitt, appeals from the order entered in the

Philadelphia County Court of Common Pleas granting the summary judgment

motion of Appellee, Philadelphia Media Holdings, LLC, doing business as the

Philadelphia Daily News (“Daily News”).1 Hueitt claims the trial court erred

by not holding that Daily News violated a legal duty and that the peculiar

risk doctrine applied. We reverse and remand.


*
    Former Justice specially assigned to the Superior Cnewourt.
1
  Daily News is the only appellee.      The procedural posture is explained,
infra.
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      We state the facts2 as set forth by a prior panel of this Court:

            We briefly state the facts, which are generally
         undisputed, in the light most favorable to Ms. Hueitt. In
         the early morning of October 6, 2006, Ms. Hueitt was
         driving on Island Avenue in northeast Philadelphia. [While
         the traffic light was green,3 s]he stopped at the
         intersection with Bartram Avenue to purchase a
         Philadelphia Daily News newspaper from a street vendor.
         Mr. [Jeffrey] Vargas, who was driving behind Ms. Hueitt,
         rear-ended her vehicle.     As a result, Ms. Hueitt was
         injured.

            The street vendor is known as a “hawker.”[FN] The Daily
         News sells newspapers to contractors.      Ex. B to Daily
         News’s Mem. of Law in Support of Mot. for Summ. J. The
         contractors, in turn, hire and train homeless or
         disadvantaged people—“hawkers”—to sell newspapers.
         Id. The agreement between the Daily News and the
         contractors specifies the general areas within which they
         may sell. Ex. C. to Daily News’ Mem. of Law in Support of
         Mot. for Summ. J. The agreement also contains a risk of
         loss provision:

               RISK OF LOSS. Upon Contractor’s pick-up of
               Newspapers from [Daily News], the risk of loss
               with respect to the Newspapers, and the title to
               the Newspapers, passes to Contractor who then
               becomes responsible for any damaged or extra
               Newspapers that were picked up. In addition,

2
  Like the prior panel of this Court, we disregard any factual allegations by
the parties unsubstantiated by the certified record or outside our scope of
review. See Hueitt v. Phila. Media Holdings, LLC, 1922 EDA 2011, slip
op. at 2 (Pa. Super. Jan. 28, 2013) (“Hueitt I”) (citing Commonwealth v.
Preston, 904 A.2d 1, 6-7 (Pa. Super. 2006) (en banc)).
3
  As Hueitt approached the intersection, “she saw that the light for her
direction of travel was green. . . . She slowed her car, tapped her horn,
then stopped . . . . While she was stopped, she observed the traffic light for
her direction of travel was still green.” Hueitt’s Supplement to Opp. to Daily
News’ Mot. for Summ. J., 5/31/11, at 2.




                                     -2-
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                Contractor bears all other risks incurred in
                running Contractor’s business, including the risk
                of loss of non-payment by purchasers.

           Id. The contractors also indemnify Daily News for any
           injuries resulting from any actions or omissions by the
           contractors and hawkers. Id.


           FN
              The parties   dispute   whether   the   contractors   are
           independent.


              Ms. Hueitt filed a complaint against the Daily News and
           Mr. Vargas. Ms. Hueitt raised two separate claims: a claim
           of negligence against the Daily News and a claim of
           negligence against Mr. Vargas. Ms. Hueitt’s Am. Compl.
           The Daily News joined Timothy B. Keeley, also known as
           Timothy B. Keeley, Sr., as an additional defendant.
           Joinder Compl. of Daily News. The Daily News alleged Mr.
           Keeley was the contractor who supervised the hawker in
           this case and also invoked indemnification. Mr. Vargas
           raised a cross-claim of negligence against the Daily News.
           Mr. Vargas’s Answer with New Matter to Ms. Huiett’s Am.
           Compl. No party sued the hawker.


Hueitt v. Phila. Media Holdings, LLC, 1922 EDA 2011, slip op. at 2-4 (Pa.

Super. Jan. 28, 2013) (“Hueitt I”).

     With respect to her claim of negligence against Daily News, she

averred:

           23. At all times relevant to this action, an unidentified
           individual was working in the capacity of an employee,
           agent, servant and business representative of [Daily
           News].

           24. [Daily News] and its predecessors contracted, hired
           and used individuals to sell its newspaper[,] the
           Philadelphia Daily News[,] at various [i]ntersections
           throughout Philadelphia. The intersection at Island and


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         Bartram was an intersection that has vendors of [Daily
         News] engaged in furtherance of the business of [Daily
         News] on a regular basis.

         25. The individuals hired by [Daily News] would walk out in
         traffic and seek to sale [sic] newspapers at intersections.

         25. [sic] The act of attempting to make a sale of a product
         in a designated roadway such as Island Bartram avenues is
         negligent, unsafe and dangerous, in that their actions
         impede the safe flow of traffic and result in traffic stopping
         on roadways.

         26. [Daily News’] act of soliciting and selling a newspaper
         to [Hueitt] on the roadway of Island Avenue was negligent
         and unsafe act.

         25. [sic] As a direct and proximate result of the negligence
         of [Daily News’] agent, employee, and/or contractor,
         [Hueitt], has sustained severe and painful injuries, both
         physical and emotional, temporary and permanent,
         [Hueitt] has incurred and will in the future incur
         substantial expenses for medical care and treatment, past
         and future lost wages and a loss of earning capacity, and
         [Hueitt] has been otherwise injured and damaged, all
         without any negligence on the part of [Hueitt] contributing
         thereto.

Hueitt’s Compl., 9/17/08, at 6-7. Daily News denied the allegations.

      “Discovery ensued.     The Daily News filed a motion for summary

judgment.” Hueitt I, at 4. Daily News’ summary judgment motion alleged

as follows:

         15. Here, [Daily News] owed no duty to [Hueitt] for the
         alleged actions of this hawker hired by its independent
         contractors.

         16. Under Pennsylvania Law, when an injury is done by an
         “independent contractor,” the person employing him is
         generally not responsible to the person injured.
         Restatement (Second) of Torts § 409 (“[T]he employer of


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        an independent contractor is not liable for physical harm
        caused to another by an act or omission of the contractor
        or his servants.”).

        17. The two exceptions to this general rule of non-liability
        are (1) if the hiring party exercised “control over the
        means and methods of the contractor’s work” and (2) if
        the work being performed poses a special danger or is
        particularly risky. Farabaugh v. Pa. Tpk. Comm’n, 911
        A.2d 1264, 1273, 1276 (Pa. 2006).

        18. Clearly, neither exception applies to the case at bar.

        19. First, the business of selling newspapers is evidently
        not the type of “peculiar risk” which the courts intended to
        carve out by this exception.

        20. Secondly, the evidence of record establishes that
        [Daily News] had no control over the training, hiring, or
        distribution of newspapers through the “hawkers” hired by
        its independent contractor.

        21. As a result, there is no duty on the part of [Daily
        News] for actions allegedly taken by one of the
        independent news “hawkers.”

        22. Consequently, as the record makes clear, [Hueitt]
        cannot establish a prima facie case against [Daily News]
        and [it] is not liable as a matter of law.

Daily News’ Mot. for Summ. J., 4/29/11, at 3-4.         In sum, Daily News

challenged that it owed a duty to Hueitt because it purportedly employed an

independent contractor who, in turn, hired vendors to sell Daily News’

newspapers. See id.

     Hueitt opposed Daily News’ motion for summary judgment, and

responded to paragraphs 15 and 18-22, as follows:

        15. Denied. [Daily News] implemented a program of direct
        sales with knowledge of the dangerous practices at issue


                                    -5-
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           and took no action to review, inspect or monitor the
           practices of the individuals selling [Daily News’] product.

                                    *    *    *

           18. Denied.

           19. Denied. Selling newspapers in the median of traffic
           and in traffic lanes is illegal, against Pennsylvania State
           and Philadelphia Code, is unsafe and dangerous both to
           the vendor and individuals operating vehicles and as such
           [Daily News] does not have the protection of the
           independent contractor law.

           20. Denied.

           21. Denied.

           22. Denied.

Hueitt’s Opp’n to Daily News’ Mot. for Summ. J., 5/26/11, at 2-3.

        In support of her opposition, Hueitt also included a counterstatement

of “facts,”4 as follows:

           7. The placement of vendors in roadways catering to
           operators of vehicles while they are driving their vehicles is
           a dangerous and unsafe practice that can lead to
           foreseeable harm and against the law in the City of
           Philadelphia and the Commonwealth of Pennsylvania.

           8. [Daily News] and/or individuals hired by [Daily News]
           would walk out into traffic and seek to sale [sic]
           newspapers at intersections and [Daily News] authorized
           the sales, dropped off the papers and selected the
           locations from which the sales would take place.

           9. The act of attempting to make a sale of a product in a
           designated roadway such as Island Bartram avenues is

4
    Some “facts” were arguably legal conclusions.




                                        -6-
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         negligent, unsafe and dangerous, in that their actions
         impede the safe flow of traffic and results in traffic
         stopping on roadways.

Id. at 4-5 (citations to exhibits omitted).

      Her opposition also included the following deposition testimony from

Frederick Lehmen, Jr., Daily News’ corporate designee:

         [Hueitt’s counsel]. Okay. Are you aware of any other
         incidents occurring, car accidents in particular, as a result
         of the sale of the newspapers in any of the areas of the
         city?

         A. Related to the Hawker Program?

         Q. Yeah.

         A. We had an incident a while ago where we had a Hawker
         struck by a vehicle. It was a vehicle—I think a police
         pursuit.

         [Daily News’ counsel]. Just note my objection. If it’s not
         substantially similar, I don’t think it’s relevant. But you’ve
         answered the question.

         [A.] It was, approximately, five years ago.

         [Hueitt’s counsel]. How about anything similar to this
         incident, where there’s a rear-ender or something happens
         while the newspaper is, actually, being sold?

         A. Absolutely not. I don’t recall anything like that.

                                  *    *      *

         Q. Okay. Is there an understanding that the newspapers
         will be sold on city streets? I mean, literally on the
         streets, not necessarily on the corners.          But these
         gentlemen and women will interact with the traffic, the
         stopped traffic at the lights and make the sales?




                                      -7-
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        A. Is the understanding—I’m not sure what you mean by
        that.

        Q. Well, is that something that you know happens or—

        A. I mean, I have been on street corners myself in the City
        of Philadelphia and I see Hawkers out there and when the
        light turns red you will see them handling the paper and
        seeing if somebody wants to buy the paper, sure.

        Q. If you drive in the city—

        A. You see it.

        Q. —it’s a common experience?

        A. Yeah.

        Q. That’s what I mean.      Is there anything that the
        newspapers does to restrict how they sell or to educate
        them how to sell or do anything to give them instructions
        on what needs to be done during the sales?

        A. I believe that’s all up to the independent—up to these
        folks, the counselors.

        Q. Has there ever been a situation where the newspaper
        has instructed the Hawkers or the counselors not to sell in
        a certain location?

        A. Not to my knowledge. Absolutely not.

Dep. of Lehmen, 9/25/08, at 13-18.

        On June 13, 2011, the trial court granted the Daily News’s
        motion and dismissed Ms. Hueitt’s claims against the Daily
        News only. Order, 6/13/11. The order did not express
        “that an immediate appeal would facilitate resolution of the
        entire case.” See Pa.R.A.P. 341.

           Ms. Hueitt filed a timely notice of appeal on July 7,
        2011. On July 22, 2011, the trial court sua sponte ordered
        that “Plaintiff’s[ ] case against . . . Timothy Keeley is non-
        prossed.” Order, 7/22/11.


                                       -8-
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Hueitt I, at 3-4 (footnote omitted).

      The trial court’s Pa.R.A.P. 1925(a) decision stated that Daily News did

not owe a duty of care to Hueitt. Trial Ct. Op., 8/2/11, at 3-4; accord Trial

Ct. Op., 10/7/13, at 3-4. The trial court reasoned as follows:

            Generally, where the defendant and plaintiff are
         strangers, a [c]ourt applies a general duty of care required
         of all persons to not place another at an unreasonable risk
         of harm by way of their actions.

            Duty, in any given situation, is predicated upon the
         relationship existing between the parties at the relevant
         time.

            The facts herein reveal that the newspaper hawker was
         standing in the intersection of the street. It was Ms. Hueitt
         who drive towards him and then stopped her vehicle.
         Where the parties are strangers to each other[,] the scope
         of general duty of care is limited to those risks which are
         reasonably foreseeable. . . . In this case, Ms. Hueitt did
         not present anything in these facts to put a newspaper
         hawker on notice that Mr. Vargas would drive in a
         negligent manner.

Trial Ct. Op., 8/2/11, at 3 (citations omitted).

      The Hueitt I panel quashed the appeal because outstanding claims

existed as between Hueitt and Vargas and between Vargas and Daily News.

Subsequently, the court entered an order—prepared by the parties—that

essentially resolved the outstanding claims.5 Order, 8/14/13. Hueitt timely


5
  The order effectively preserved the parties’ abilities to proceed on any
claims if Hueitt successfully appealed. Vargas did not explicitly discontinue
and end his negligence cross-claim against Daily News.            All parties
essentially agreed, however, that no outstanding claims remain.          See



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appealed. The court did not order her to comply with Pa.R.A.P. 1925(b), but

filed a Rule 1925(a) decision.

      Hueitt raises the following issues:

         Did the trial court err when it found . . . Daily News had no
         duty to Ms. Hueitt when it created the unsafe condition
         that led to her motor vehicle accident by creating and
         implementing its “hawker program”?

         Did the trial court err when it failed to find that the
         [peculiar] risk doctrine applied to the sales practice
         created by . . . Daily News’ “hawker program” contract
         with vendor Keeley?

Hueitt’s Brief at 4.

      We summarize Hueitt’s arguments for both of her issues. She broadly

contends the trial court erred by not creating a duty. Hueitt also argues that

the peculiar risk doctrine applies. She contends that selling newspapers at

an intersection is inherently risky. Id. at 19. Hueitt maintains that this risk

arises from the nature or the manner of performance of selling newspapers

at an intersection.    Id.       She states that Keeley, as an independent

contractor, recognized this risk at the time he hired the hawker. Id. at 19-

20. Hueitt cites several sections of the Vehicle Code and other regulations

that purportedly recognize that a pedestrian on a roadway is a hazard. She




Pa.R.A.P. 341; Levitt v. Patrick, 976 A.2d 581, 588 (Pa. Super. 2009)
(“The Pennsylvania Rules of Civil Procedure permit a party to ‘commence a
second action upon the same cause of action’ after a discontinuance.
Pa.R.C.P. 231.”).




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opines that Daily News was aware that hawkers sold newspapers at an

intersection and thus should be held liable. We hold Hueitt is due relief.

      In Charlie v. Erie Ins. Exch., 100 A.3d 244 (Pa. Super. 2014), we

set forth the well-settled standard of review:

            Pennsylvania law provides that summary judgment may
         be granted only in those cases in which the record clearly
         shows that no genuine issues of material fact exist and
         that the moving party is entitled to judgment as a matter
         of law. The moving party has the burden of proving that
         no genuine issues of material fact exist. In determining
         whether to grant summary judgment, the trial court must
         view the record in the light most favorable to the non-
         moving party and must resolve all doubts as to the
         existence of a genuine issue of material fact against the
         moving party.

Id. at 250 (citation and punctuation omitted).

      The Charlie Court also discussed the non-exclusive five-factor test for

identifying the existence of a duty:

            A duty arises only when one engages in conduct which
         foreseeably creates an unreasonable risk of harm to
         others.

                                  *      *      *

            The determination of whether a duty exists in a
         particular case involves the weighing of several discrete
         factors which include: (1) the relationship between the
         parties; (2) the social utility of the actor’s conduct; (3) the
         nature of the risk imposed and foreseeability of the harm
         incurred; (4) the consequences of imposing a duty upon
         the actor; and (5) the overall public interest in the
         proposed solution . . . .

Charlie, 100 A.3d at 250-51 (citations and punctuation omitted).




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     In Edwards v. Franklin & Marshall Coll., 663 A.2d 187 (Pa. Super.

1995), Edwards was a construction worker and employee of Benchmark

Construction Company. Id. at 188. Franklin & Marshall College (“Franklin”),

hired Benchmark for some roof renovation.       Id.   Edwards fell through the

roof, was injured, and sued Franklin; Franklin moved for summary judgment

on the basis that Edwards, as an employee of independent contractor

Benchmark, could not recover. Id. at 189.

     The Edwards Court explained the peculiar risk doctrine, as follows:

           The established law in Pennsylvania provides that an
        employer of an independent contractor is not liable for
        physical harm caused to another by an act or omission of
        the contractor or his servants. One exception to this rule
        provides that an employer may be liable for the negligence
        of its employee/independent contractor where the work to
        be performed by the independent contractor involves a
        special danger or peculiar risk.

        The Peculiar Risk Doctrine denotes a concept of employer
        nonliability as set forth in sections 416 and 427 of the
        Restatement (Second) of Torts:

               § 416. Work Dangerous in Absence of
               Special Precautions

               One who employs an independent contractor to
               do work which the employer should recognize as
               likely to create during its progress a peculiar
               risk of physical harm to others unless special
               precautions are taken, is subject to liability for
               physical harm caused to them by the failure of
               the contractor to exercise reasonable care to
               take such precautions, even though the
               employer has provided for such precautions in
               the contract or otherwise.




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               § 427. Negligence as to Danger Inherent in
               the Work

               One who employs an independent contractor to
               do work involving a special danger to others
               which the employer knows or has reason to
               know to be inherent in or normal to the work, or
               which he contemplates or has reason to
               contemplate when making the contract, is
               subject to liability for physical harm caused to
               such others by the contractor’s failure to take
               reasonable precaution against such danger.

                                 *     *      *

        [A] special danger or peculiar risk exists where:

        1) the risk is foreseeable to the employer of the
        independent contractor at the time the contract is
        executed, i.e., a reasonable person, in the position of the
        employer, would foresee the risk and recognize the need
        to take special measures; and

        2) the risk is different from the usual and ordinary risk
        associated with the general type of work done, i.e., the
        specific project or task chosen by the employer involves
        circumstances that are substantially out-of-the-ordinary.[6]




6
  In Ortiz v. Ra-El Development Corp., 528 A.2d 1355 (Pa. Super. 1987),
the Court explained this second prong “involves a two-step analysis”:

        First, we examine the risk that would be posed by the
        general type of work to be performed under typical
        circumstances. . . . Next, we determine whether the
        circumstances under which the general work is done, i.e.,
        the specific project or task, introduces a different kind or
        level of risk.

Id. at 1358.




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        This Court has further stated that the key to the proper
        application of the two Restatement sections lies in the
        definition of a “peculiar risk” or a “special danger.”

        The risk of harm must arise from the peculiar or
        inherent nature of the task or the manner of
        performance, and not the ordinary negligence which
        might attend the performance of any task. Liability
        does not ordinarily extend to so called “collateral” or
        “casual” negligence on the part of the contractor in the
        performance of the operative details of the work. The
        negligence for which the employer of a general contractor
        is liable must be such as is intimately connected with the
        work authorized and such as is reasonably likely from its
        nature.

        Stated differently, the definition of “peculiar risk” or
        “special danger” requires that the risk be recognizable in
        advance and contemplated by the employer of the
        independent contractor at the time the contract was
        formed and that it must not be a risk created solely by the
        contractor’s “collateral negligence” i.e., negligence
        consisting wholly of the improper manner in which the
        contractor performs the operative details of the work.

        [B]ecause the Peculiar Risk Doctrine is an exception to a
        general rule, it should be viewed narrowly. As this Court
        has stated:

               . . . In order for the liability concepts involving
               contractors to retain any meaning, . . . peculiar
               risk situations should be viewed narrowly, as
               any other exception to a general rule is usually
               viewed.

Id. at 189-91 (emphasis in original and punctuation and some citations

omitted).

     Pursuant to the two-prong test set forth above, the Edwards Court

first ascertained whether “a reasonable person, in the position of the

employer, [would] foresee the risk and recognize the need to take special


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measures.”   Id. at 191.   The Edwards Court stated the trial court found

that both Franklin and Benchmark were aware of the “deteriorating and

dangerous nature of the roof.” Id. Thus, the first step was met. Id. The

second step, however, was not met because Benchmark was in the business

of renovating commercial structures, including roofs, and the risk of falling

through the roof was apparent. Id. The risk of falling through a roof while

renovating the roof was not a risk “substantially out-of-the-ordinary” such

that it meets the definition of a “peculiar risk” or a “special danger.”   Id.

Accordingly, the Edwards Court affirmed the grant of summary judgment in

favor of Franklin as Edwards failed to invoke the narrow exception to the

general rule that “an employer of an independent contractor is not liable for

injuries caused by the negligence of the contractor or its servants.” Id. at

188.

       Instantly, Daily News challenged whether it owed a duty to Hueitt

because it employed an independent contractor who, in turn, hired hawkers

to sell its newspapers. See Daily News’ Mot. for Summ. J., 4/29/11, at 3.

As set forth above, Hueitt contested Daily News’ allegations and countered

that Daily News could not escape liability under the independent contractor

doctrine. See Hueitt’s Opp’n to Daily News’ Mot. for Summ. J., 5/26/11, at

2-3.   Hueitt further cited exhibits that when viewed in the light most

favorable to her, sufficiently identify material issues of fact as to whether a

newspaper vendor could reasonable anticipate a traffic accident would result



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from selling newspapers on the streets. See id. at 4-5, 7; see also Dep. of

Lehmen, 9/25/08, at 13-18.

     Moreover, similar to Edwards, Hueitt cited testimony establishing

Daily News’ awareness that hawkers sold newspapers on street corners and

accidents could occur.    See, e.g., Dep. of Lehmen, 9/25/08, at 13-18.

Thus, unlike Edwards, Hueitt identified material issues of fact regarding

whether Daily News foresaw the risk and whether it differed from the usual

and ordinary risk involved in selling newspapers. See Edwards, 663 A.2d

at 191. Accordingly, after viewing the record in Hueitt’s favor, we reverse

the grant of summary judgment in favor of Daily News and remand for

further proceedings. See Charlie, 100 A.3d at 250.

     Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/14/2015




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