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Kovacevich v. Regional Produce Cooperative Corp.

Superior Court of Pennsylvania

October 13, 2017


         Appeal from the Order Dated April 29, 2016 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 130703315.



          SOLANO, J.

         Appellant Christopher Kovacevich appeals the order dated April 29, 2016, denying his motion to remove the non-suit entered in favor of Appellee Regional Produce Cooperative Corporation ("RPCC"). We affirm.

         RPCC is the management company that oversees operation of the Philadelphia Wholesale Produce Market ("the Market"), a food terminal and distribution center in South Philadelphia. The Market is housed in a large rectangular building containing private areas that are leased by multiple tenants for wholesale and retail sales of their produce. Between the tenant areas of the building is a large central concourse that is a common area maintained by RPCC. Trial Ct. Op. at 2.

         T.M. Kovacevich, Inc. ("TMK") is one of the tenants leasing space in the Market. Appellant was employed by TMK as a salesman. On February 18, 2013, as Appellant was standing in front of a pallet in a refrigerated area of TMK's leased space, his co-worker, Ernest Scarlata, approached him from behind while driving a pallet jack[1] manufactured by Crown Equipment Corporation that had a tall load of fruit loaded onto the vehicle's fork. Rather than driving the pallet jack with the fork behind him, Scarlata drove it "forks first." The loaded fruit obstructed Scarlata's view, and Scarlata drove the pallet jack into Appellant's back, causing Appellant to incur serious injuries.

         On July 25, 2013, Appellant filed a complaint against Crown, alleging products liability, and against RPCC, alleging negligence.[2] The negligence claim against RPCC was based on a premises liability theory; Appellant alleged that RPCC had control over the employees of its tenants in the Market and therefore was responsible for the negligence of Scarlata in operating the pallet jack. Paragraph 9 of the complaint stated:

At all times relevant hereto, . . . [RPCC] owned, leased, possessed, inspected, managed, controlled, supervised, maintained and/or was responsible for overseeing the aforesaid wholesale warehouse, including but not limited to all aspects of the design including safety and compliance with [the Occupational Safety and Health Administration ("OSHA")], the International Building Code, Pennsylvania and Philadelphia Building Codes and other applicable workplace safety laws, including safe materials handling.

         Appellant claimed that Scarlata failed to operate the pallet jack in a safe manner. He claimed further that RPCC was responsible for that failure because Scarlata did not receive training and certification to operate a pallet jack under OSHA Standard 1910.178, 29 C.F.R. § 1910.178, which applies to "maintenance, and use of fork trucks, tractors, platform lift trucks, motorized hand trucks, and other specialized industrial trucks powered by electric motors or internal combustion engines." See id. § 1910.178(a)(1). Subsection (1) of that Standard, titled "Operator training, " states, in part:

(1) Safe operation.
(i) The employer shall ensure that each powered industrial truck operator is competent to operate a powered industrial truck safely, as demonstrated by the successful completion of the training and evaluation specified in this paragraph (1).[3]
(ii) Prior to permitting an employee to operate a powered industrial truck (except for training purposes), the employer shall ensure that each operator has successfully completed the training required by this paragraph (1) . . . .
. . . .
(6) Certification. The employer shall certify that each operator has been trained and evaluated as required by this paragraph
(I). The certification shall include the name of the operator, the date of the training, the date of the evaluation, and the identity of the person(s) performing the training or evaluation.

29 C.F.R. § 1910.178(1)(1), (6). Appellant contends that RPCC was a "controlling employer" at the Market and therefore had a duty to assure that its tenants' workers received the training and certification required by OSHA. He contends further that by negligently breaching this alleged duty, RPCC became liable to Appellant for his injuries.

         Appellant's "controlling employer" theory stems from OSHA regulatory policy. OSHA publishes a Field Inspection Reference Manual that "provides current information and guidance to [OSHA's] national, regional, and area offices concerning OSHA's policy and procedures for implementing inspections, issuing citations and proposing penalties." See OSHA Field Inspection Ref. Manual at ABSTRACT-2, (2016), available at https://www, at 1-1. In 1999, OSHA suspended a portion of that Manual that set forth OSHA's policy for issuing citations at multi-employer worksites. See OSHA Compliance Directive 02-00-124 (Dec. 10, 1999) (formerly numbered 2-0-124), available at _table=DIRECTIVES&p_id=2024#CHANGES. [4] Directive 02-00-124 stated that in the future, "[o]n multi-employer worksites (in all industry sectors), more than one employer may be citable for a hazardous condition that violates an OSHA standard, " and that one type of employer that could be cited for a violation at the site was a "controlling employer" that had obligations with respect to OSHA requirements. See id. § X.A. The Directive defined a "controlling employer" as one "who has general supervisory authority over the worksite, including the power to correct safety and health violations itself or require others to correct them, " and said that an employer could meet this definition as a result of its contractual rights with respect to a jobsite or "if, in actual practice, it exercises broad control over subcontractors at the site." Id. § X.E.1., 5. Appellant sought to prove that RPCC was such a controlling employer at the Market with respect to assuring its tenants' compliance with OSHA responsibilities.

         Appellant's case against RPCC and Crown Equipment was tried before the Honorable Marlene Lachman and a jury on January 8-21, 2016. During trial, Appellant presented witnesses who sought to show that RPCC met the criteria to be a controlling employer. At the close of Appellant's case, the court entered a non-suit on the claim against RPCC. On Appellant's claim against Crown, the jury rendered a verdict of no liability.

         Appellant filed a motion for post-trial relief, requesting that the trial court remove the non-suit. In support of his motion, Appellant filed a copy of a July 20, 2012 letter from James Maddux, the director of OSHA's "Directorate of Construction, " to the president of Clapp Research Associates, P.C., that answered a Clapp inquiry about OSHA's multi-employer worksite policy and made comments about the policy's scope; the letter had not previously been made a part of the record.

         The trial court denied Appellant's post-trial motion on April 29, 2016, and entered judgment in favor of RPCC. In a Rule 1925(a) opinion, the trial court explained that it had ruled in favor of RPCC for three reasons: (1) most fundamentally, the OSHA "controlling employer" policy concerns only OSHA enforcement actions and does not give rise to a legal duty that can provide a basis for damages recovery under Pennsylvania law, Trial Ct. Op. at 7-9; (2) even if the policy did provide some basis for creating a duty, it did not control in this case because it has been applied only in the construction context, id. at 4-7; and (3) even if the policy applied here, there was insufficient evidence to enable a jury to find that RPCC was a controlling employer under it, id. at 9-20.

         On May 27, 2016, Appellant filed a notice of his appeal to this Court, in which he presents three issues for our review:

1. Whether the [t]rial [c]ourt abused its discretion and erred as a matter of law in granting [RPCC's] Motion for Non-Suit because [RPCC] was a "controlling employer" at the multi-employer worksite where [Appellant]'s accident occurred and improperly removed the issue from the determination of the jury.
2. Whether the [t]rial [c]ourt abused its discretion and erred as a matter of law by failing to consider, or give appropriate weight to, the terms of OSHA Directive CPL 02-00-124 and the terms of OSHA's July 20, 2012 response to inquiry in determining whether the multi-employer worksite policy should be applied to construction sites only.
3. Irrespective of whether [RPCC] was a "controlling employer" of the subject premises pursuant to OSHA, whether the [t]rial [c]ourt abused its discretion and erred as a matter of law by apparently failing to consider [Appellant's] theory of liability under Sections 343 and 344 of the Restatement (Second) of Torts.

Appellant's Brief at 3 (suggested answers omitted).

         Our review is governed by the following:

A nonsuit is proper only if the jury, viewing the evidence and all reasonable inferences arising from it in the light most favorable to the plaintiffs, could not reasonably conclude that the elements of the cause of action had been established. Furthermore, all conflicts in the evidence must be resolved in the plaintiff['s] favor. In reviewing the evidence presented we must keep in mind that a jury may not be permitted to reach a verdict based on mere ...

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