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Welsh v. National Railroad Passenger Corp.

Superior Court of Pennsylvania

January 17, 2017

PAUL WELSH Appellant

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

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


          OTT, J.

         Paul Welsh, having brought a negligence action under the Federal Employers' Liability Act ("FELA"), appeals from the order entered June 11, 2015, in the Court of Common Pleas of Philadelphia County, that granted summary judgment in favor of National Railroad Passenger Corporation a/k/a/ Amtrak ("Amtrak"). Welsh claims the trial court erred in (1) failing to consider signed but unsworn statements from three present and/or former Amtrak police officers in support of Welsh's opposition to summary judgment, (2) treating Welsh's general denials and denials based on conclusions of law in response to Amtrak's summary judgment motion as admissions, and (3) granting summary judgment despite the existence of evidence of a reasonably unsafe work place in a FELA action.[1] Based upon the following, we affirm.

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

On August 16, 2012, beginning at 9 p.m., Mr. Welsh was assigned to surveillance at the Penn Coach Yards which are the train yards at 30th Street Station in Philadelphia. According to Mr. Welsh, there was no briefing given for this assignment, or any discussion as to what would happen if there was any suspect activity in the Yard. The grounds of Penn Coach Yards were in poor condition and have very little artificial lighting. Depressions, gullies, debris, potholes, and uneven surfaces exist on the premises. The area around the Yard is also covered with stone ballast.
During that rainy night, Mr. Welsh and another Amtrak officer followed a suspect for a period of time via a surveillance vehicle until contact was lost after the suspect headed toward a wire shed in the Yard. At some point after his fellow officer left the surveillance vehicle to run to the wire shed, Mr. Welsh also left the vehicle and ran toward the suspect. As he ran roughly seventy-five yards on ballast stones toward the suspect, Mr. Welsh felt a sharp pain in his lower back.
The next day, the symptoms in his lower back became severe as he felt numbness from his lower back to his legs. Mr. Welsh alleges he suffered an aggravation of cervical disc disease and a lumbar disc herniation, for which he underwent surgery.

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

         The complaint provides no substantive details regarding either the happening of the accident or the injuries allegedly suffered by Welsh. The complaint states, in relevant part:

9. After there was some activity that required his attention, [Welsh] began to run in the yard [Amtrak's Penn Coach Yard] from his location to a storage facility, [Welsh] injured his back while in route.
10. The area where [Welsh] was required to perform his work was unsafe and not properly maintained and had not been inspected. All the acts and omissions giving rise to this claim occurred in Philadelphia, PA.

         Complaint, 9/20/2013, Count I.

         On September 11, 2014, Welsh was deposed. He gave the following description of the incident:

Welsh: I know Joe jumped out of the back of the van and I was a second or two behind him.
Q:[3] Okay.
A: And then we ran through the compound to the - there's a rolling gate, a vehicle gate. Joe ran wide of the area so he was to my right maybe 50-foot and I was to the left and I was running more directly towards the - to the gate or where the gate would open up.
Q: Okay. So up until this point, you're observing the suspect. Is he walking or running through the yard?
A: He was walking.
Q: Okay. And at some point, you said you jump out of the surveillance truck. Were there any issues when you jumped out? Did you feel any pain or -
A: No, I don't recall any pain jumping out of the vehicle. I recall, and my concern was still what was going on in the compound, but as I was running, I felt a sharp pain in my right lower back.

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

Q: Okay. And at this point, he's restrained [the suspect] and under arrest, and Ron, Frank, and Joe [other officers] are all present there as well, correct?
A: Yes.
Q: Did you mention your injury to any of them?
A: No.
Q: Okay. And what is the sensation or the pain that you felt at that point?
A: There was a, I think it was, I know it was down the left leg, because I had problems lifting my left leg, but the pain was down the ... center of my back.
Q: Okay. Well, how would you describe the pain?
A: The next day, it was severe.
Q: Okay. At the time of the injury, how would you describe it?
A: It was fine. I thought it was a 59-year-old guy with sore muscles. I didn't think anything of it.
Q: Okay. Did you trip at all while running?
A: No, I did not.
Q: Did you slip or twist in any way?
A: No, I don't believe I did. I mean I was running on a ballast and-
Q: And what were you wearing on this day?
A: The same shoes actually. The same low cut work boots that ...

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