from the Order Dated April 29, 2016 In the Court of Common
Pleas of Philadelphia County Civil Division at No(s):
BEFORE: DUBOW, J., SOLANO, J., and FORD ELLIOTT, P.J.E.
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.
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.
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 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
25, 2013, Appellant filed a complaint against Crown, alleging
products liability, and against RPCC, alleging
negligence. 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
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
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
(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
(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.
"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
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.  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.
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.
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.
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.
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).
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 ...