Case Information
PA Super 12 IN THE SUPERIOR COURT OF PAUL WELSH
PENNSYLVANIA Appellant
v.
NATIONAL RAILROAD PASSENGER
CORPORATION A /K /A AMTRAK
No. EDA 2015 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.* Filed January 17, 2017
OPINION BY OTT, J.: Paul Welsh, having brought negligence action under the Federal Employers' Liability Act ( "FELA "), appeals from order entered June 11, 2015, the Court of Common Pleas Philadelphia County, granted summary judgment favor of National Railroad Passenger Corporation a /k /a/ Amtrak ( "Amtrak "). claims the trial court erred (1) failing consider signed but unsworn statements from three present and /or former police officers support of Welsh's opposition summary judgment, (2) treating Welsh's general denials denials based on conclusions law response to Amtrak's summary judgment as admissions, (3) granting summary despite the existence of * Former Justice specially assigned the Superior Court. a reasonably unsafe work place in a FELA action.' Based upon following, we affirm. facts underlying this appeal were summarized the court:2
On August 16, 2012, beginning at 9 p.m., Mr. Welsh was assigned to surveillance at the Penn Coach Yards which the train yards at 30th Street Station in Philadelphia. According to Mr. Welsh, there was briefing given for this assignment, or any discussion as what would happen if was any suspect activity Yard. The grounds of Penn Coach Yards were poor condition and have very little artificial lighting. Depressions, gullies, debris, potholes, and uneven surfaces exist on premises. The area around the Yard also covered stone ballast.
During rainy night, Mr. Welsh and another officer followed suspect for period of time via surveillance vehicle until contact lost after the suspect headed toward wire shed Yard. At some point after his fellow officer left the surveillance vehicle to run the wire shed, Mr. Welsh also left the vehicle ran toward the suspect. As he ran roughly seventy -five yards on ballast stones toward the suspect, Mr. Welsh felt sharp pain his lower back. next day, symptoms his lower back became severe as
he felt numbness from his lower back his legs. Mr. Welsh alleges he suffered aggravation of cervical disc disease lumbar disc herniation, for which he underwent surgery.
Trial Court Opinion, 10/6/2015, 13 -14.
' We have reordered Welsh's claims purposes of our discussion. Although claimed injuries from two incidents complaint, one occurring August 16, (Count I) other on August 5, 2011 (Count II), he only appeals from grant summary Count I. See Appellant's Brief, at
J-A19019-16 complaint provides substantive details regarding either
happening of the accident or injuries allegedly suffered Welsh. The complaint states, relevant part:
9. After was some activity that required his attention, [Welsh] began to run the yard [Amtrak's Penn Coach Yard] from his location storage facility, [Welsh] injured back while route.
10. The area where [Welsh] was required perform his work was unsafe properly maintained had not been inspected. All acts omissions giving rise claim occurred 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 back of the van and I was second or two behind him. Q: [3] Okay.
A: And then we ran through the compound - there's rolling gate, vehicle gate. Joe ran wide of the area so he was my right maybe 50 -foot and I was left and I was running more directly towards the gate or where the gate would open up.
Q: Okay. So up until this point, you're observing suspect. Is he walking running through the yard?
A: He walking. All questions are by defense counsel unless otherwise noted. All answers
are by Welsh.
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Q: Okay. And at some point, you said you jump out of the surveillance truck. Were 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, my concern was still what was going compound, but as I was running, I felt sharp pain my right lower back.
N.T. Deposition, 9/11/14, at
Q: Okay. And at this point, he's restrained [the suspect] and under arrest, and Ron, Frank, Joe [other officers] all present there well, correct?
A: Yes.
Q: Did you mention your injury to any of them?
A: No.
Q: Okay. And what the sensation pain you felt at point? A: There was a, I think it was, I know it was down left leg, because I had problems lifting my left leg, but the pain was down ... center of my back.
Q: Okay. Well, how would you describe the pain?
A: next day, it was severe.
Q: Okay. At the time injury, how would you describe it? A: It was fine. I thought it 59- year -old guy sore muscles. I didn't think anything of it.
Q: Okay. Did you trip all while running?
A: No, I did not.
Q: Did you slip or twist any way?
J-A19019-16 A: No, I don't believe I did. I mean I was running on ballast and
Q: And what were you wearing on this day? A: same shoes actually. The same low cut work boots I chose.
Id. at 153 -54.
Q: Okay. Were you aware of the conditions Penn Coach yard? You said you had previously done surveillance there and that this was on some ballasts. Were you aware [sic] any particular conditions of ballasts?
A: Not any particular, I knew that, I know coach yard either ballasts, which is predominantly what it is there's some blacktop area, but,
Q: Okay. And it uneven, are spots where it's pitched one way other, or how would you describe area of the yard where you were in?
A: It's area where vehicles travel back forth. It's not made for pedestrian traffic, let alone running.
Id. 175-76.4
Q: Okay. What do you believe AMTRAK could have done to prevent this injury?
A: Well, area itself good day not conducive walking, let alone running. I don't know how they could make safer. And if area was lit better, it only had, you can Immediately after exchange, Welsh was shown photographs of the area where the surveillance van was parked where the arrest occurred. Those photographs not found the certified record. photographs appended Welsh's response summary do not show what described at the deposition.
J-A19019-16
see the poles that the lights were on. And other than that, it's just whatever city lights would light up the area there.
Q: Okay. Do you believe there's anything you could have done prevent this injury?
A: Not going to work that day. No. No, I don't.
Id. 181-82.
AFFIDAVITS
As noted above, Welsh now raises three issues support of claim that the trial court erred granting Amtrak's motion for summary judgment.5 first contends the trial court erred failing consider This Court's scope standard of review of trial court's order granting summary judgment is well-settled:
In reviewing an order granting summary judgment, our scope of review is plenary, our standard of review is the same as that applied court. Our Supreme Court has stated the applicable standard of review as follows: [A]n appellate court may reverse entry of summary judgment only where it finds that the lower court erred concluding that matter presented no genuine issue as to any material fact that it clear the moving party entitled as a matter law. In making assessment, we view the record light most favorable the nonmoving party, and all doubts as the existence of genuine issue material fact must be resolved against the moving party. As our inquiry involves solely questions of law, our review is de novo.
Thus, our responsibility appellate court determine whether record either establishes material facts are undisputed or contains insufficient evidence of facts make out prima facie cause of action, such there issue to be decided the fact-finder. If that would allow (Footnote Continued Next Page)
J-A19019-16
signed but unsworn statements from three Amtrak police officers, all asserting the Penn Coach Yard unsafe workplace. The court noted it dismissed the use of the affidavits because they failed to state they were made under penalty of perjury pursuant 18 Pa.C.S. §
With respect motion for summary judgment, the "record" as used both Pennsylvania Philadelphia rules, defined including any affidavits. See Pa.R.C.P. 1035.1(2). See also, Pa.R.C.P. 1035.4 (governing affidavits supporting or defending for summary judgment). "submitted three signed statements from current former Police Officers were familiar walking ground conditions Amtrak's Penn Coach Yard." Appellant's Brief at 18.6 The Note Rule 1035.1 refers Pa.R.C.P. 76 definition of "affidavit." Neither Rule 1035.1 nor Rule 76 refer to signed statements. An affidavit specifically defined as:
(Footnote Continued)
fact -finder render verdict favor of the non -moving party, then summary should be denied.
Gerber v. Piergossi, 142 A.3d 854, (Pa. Super. 2016) (citation omitted). three Amtrak officers Dan Iacona, Douglas Paige, and John
Cullinan. Welsh also submitted similar signed statement included photographs purportedly showing the conditions Penn Coach Yard. instant argument only addresses three statements other officers, not Welsh's. This appears to be because Welsh's statement addresses injury allegedly suffered regarding Count II of the complaint, which subject appeal.
J-A19019-16
A statement writing of fact or facts, signed by the person making it, that either (1) is sworn to or affirmed before an officer authorized by law to administer oaths, or before particular officer individual designated by law one before who, it may be taken, and officially certified under seal of office, or (2) unsworn contains statement that it made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification authorities.
Pa.R.C.P. 76. Definitions.
None statements complies the requirements found Rule 76. As the trial court found, "The documents signed Mr. Welsh and three other Amtrak police officers were not 'affidavits' because they did not include notary's jurat; nor were they made subject the penalties of 18 Pa.C.S. § 4904." Trial Court Opinion at
While all statements claim to have been made under oath, the Appellant's brief clarifies oath referred simply the oath taken an police officer "uphold the tenants [sic] of justice." Appellant's Brief 19. requirements of an affidavit are clearly stated Rules Civil Procedure those requirements do not contain an exemption for any class persons or jobs have their own oaths. Welsh has provided authority support contention police officers, or any other such oath taker, exempt from straight- forward requirements an affidavit. Therefore, because statements do not comply with the requirements be considered affidavit, rules do allow consideration of signed statements, trial court committed no
J-A19019-16 abuse of discretion error of law refusing consider them. Welsh not entitled relief issue.
GENERAL DENIALS
Next, Welsh asserts the trial court erred treating the general denials denials based on conclusions of law response for summary admissions. Here, he raises two sub -arguments, (1) trial court ignored the dictates Pa.R.C.P. 1029(e), which allows general denials, (2) the court unfairly punished Welsh for failing cite to record despite Amtrak's similar failings.' asserts the trial court improperly rejected the general denials in
violation Pa.R.C.P. 1029(e), which he correctly notes allows use of general denials. Specifically Rule 1029(e) states:
In action seeking monetary relief for bodily injury, death, or property damage, averments pleading which responsive pleading required may be denied generally except fact which must be denied following averments of specifically:
Pa.R.C.P. 1029(e) (emphasis added).8
Rule 1029(e) clearly applies pleadings. A pleading defined Pa.R.C.P. as:
' We have reordered the issues. exceptions do apply instant matter.
J-A19019-16
(a) Except provided Rule 1041.1E91, the pleadings an actions limited
(1) a complaint and answer thereto, (2) reply if the answer contains new matter, a counterclaim a cross -claim,
(3) counter -reply if the reply to a counterclaim or cross - claim contains new matter,
(4) preliminary objection response thereto. Pa.R.C.P. 1017(a)(1) -(4).
A for summary not pleading; therefore, Pa.R.C.P. 1029(e) does not apply to this matter. court correctly applied Phila.Civ.R. 1035.2 which forbids the use general denials requires specific denials reference to record. Accordingly, this argument unavailing entitled to relief.
Welsh also claims Amtrak failed to abide Phila.Civ.R. 1035.2(a)(2),10 which similarly requires reference record to support the allegations contained within for summary judgment, yet trial court failed to apply the rule Amtrak. "Such failure properly apply Local Rules matter both sides created result based on technicality instead of the facts and law the case." Appellant's Brief at Rule 1041.1 applies asbestos litigation. 1° See also Pa.R.C.P. 239.7, requiring promulgation by each trial court of local rule 1035.2.
Both the Pennsylvania (Pa.R.C.P.) Philadelphia Rules of Civil Procedure (Phila.Civ.R.) are clear in what required to respond properly to the allegations presented in motion for summary judgment. The Pennsylvania rule states:
(a) Except as provided in subdivision (e) [not applicable to this matter], the adverse party may not rest upon the mere allegations of denials of the pleadings but must file response within thirty days after service of the motion identifying
(1) one or more issues of fact arising from the record controverting the evidence support motion from challenge to credibility of one or more of the witnesses testifying support of the motion, or (2) evidence record establishing the facts essential to cause of action or defense which the cites as not having been produced.
(b) An adverse party may supplement record set forth reasons why party cannot present evidence essential justify opposition any action proposed be taken party present such evidence.
Note: Procedural requirements with respect argument and briefs governed by local rule.
Pa.R.C.P. 1035.3(a)(1), (2).
Additionally, the Note to Pa.R.C.P. 1035.2 states: "Rule 239.7 requires every court promulgate Local Rule 1035.2(a) describing the local court procedure governing motions for summary judgment." Philadelphia Rules Civil Procedure have similar substantive requirements but also direct the respondent the proper form of response. Philadelphia Rule states, relevant part:
Response Motion for Summary Judgment. The adverse party parties must file response to the motion for summary judgment within thirty (30) days of the service of the motion, as provided Pa.R.C.P. 1035.3. The response to shall into paragraphs, numbered be divided consecutively, corresponding the numbered paragraphs of the motion for summary judgment. The response shall state whether each of the allegation is admitted or denied. No general denial is acceptable. factual reasons for the denial or dispute must be specifically stated and the "record," (as that term is defined in Pa.R.C.P. 1035.1) supporting the denial or dispute must be attached as an exhibit. A response may also include additional allegations demonstrating any genuine issue of material fact, which event the responding party must reference attach copy of "record," (as term defined Pa.R.C.P. 1035.1) which demonstrates the existence of genuine issue of material fact.
Phila.Civ.R. 1035.2(a)(4).
The rules civil procedure require both movant respondent supply specific citation record to support averments. In support of argument Welsh cites only paragraph 109 for summary judgment, which states:
Because the maintenance inspection of an rail yard subject not within ken of the average juror, expert needed plaintiff present evidence of breach duty Amtrak. Appellant's Brief at has not explained how Amtrak's failure to cite to record
regarding its assertion Welsh needed provide expert testimony has prejudiced him. The court made mention of the lack of such expert testimony reason why summary granted favor of Amtrak. averment of paragraph legal lynchpin of Amtrak's right to summary judgment. Even if we reject this averment, Welsh's failure to properly respond to other averments provide more than sufficient grounds to rule in favor of Amtrak.
Nonetheless, our review of the certified record demonstrates that Amtrak provided ample citation to the factual record the initial paragraphs of the motion. Paragraphs 100 and 101 of the motion for summary set forth the federal state requirements to provide expert testimony establish liability for circumstances beyond the common knowledge of the average juror. Also, many of Amtrak's averments address Welsh's failure provide any evidence, such as:
83. Despite generalized allegations Complaint, [Welsh] has offered demonstrating how Amtrak negligent or any way legally responsible alleged incident. 84. Indeed, there shred of evidence any "incident" occurred.
Amtrak Motion for Summary Judgment, ¶¶ 83, (emphasis original).
Even though the factual averments these two paragraphs contain no citation the record, when asserts the record devoid of certain evidence, logically can be no specific citation record.
Further, other than pointing 11109, Welsh has failed to indicate what other "facts" were left unverified citation record how he was prejudiced alleged error.
Finally, claims any deficiency the paragraph by paragraph responses to averments for summary judgment were corrected inclusion of the Counter Statement Facts in his response. The counter statement fifty -paragraph recitation various facts, many of which contain citations to record. Paragraphs 30 address the incident in Penn Coach Rail Yard, which subject of this appeal. However, Welsh does not link any counter facts any particular averment of the motion for summary judgment. This failure would require the trial court to guess at which averments in for summary judgment have been addressed. The rules of civil procedure provide for straightforward method of answering for summary judgment that eliminates any such need for guesswork. We will not overrule trial court for failure engage such speculative procedure. Accordingly, Welsh entitled relief this claim.
OTHERWISE SUFFICIENT EVIDENCE TO SUBMIT TO A JURY
In final argument, claims the trial court erred granting summary because even without above disputed facts, he provided sufficient create triable issues. We disagree. court correctly recited the legal standards applicable
FELA case.
FELA states "[e]very common carrier railroad ... shall be liable damages any person suffering injury while he employed by such carrier ... such injury or death resulting whole or part from the negligence of any of the officers, agents, employees of such carrier." U.S.C.A. § state federal courts have concurrent jurisdiction over FELA cases. "FELA cases adjudicated state courts subject state procedural rules, but the substantive law governing them is federal." Thus, case sub judice, we must be guided our determination of whether Appellant presented a question for a jury the standard which the United States Supreme Court set forth:
Under statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even slightest, in producing the injury or death for which damages are sought. It does matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute result other causes, including the employee's contributory negligence. Judicial appraisal of jury question the proofs to determine whether presented narrowly limited the single inquiry whether, with reason, the conclusion may be drawn negligence played any part at all injury or death.
Our Court has consistently adhered to Rogers standard, stating only the most frivolous cases may the courts deny FELA plaintiff or her qualified right jury trial. "[FELA] be liberally construed behalf of injured workers, with the result often recovery will be proper under [FELA] when it would not be under the common law of negligence." "[T]he test case for jury under the FELA 'is simply whether the proofs justify reason the conclusion that employer negligence played any part, even slightest, producing the injury or death which damages sought.' " Ciarolla, supra at 672 (emphasis added) (citation omitted). "To deprive railroad workers of the benefit jury close doubtful cases take away goodly portion of the relief which Congress has afforded them."
Labes v. New Jersey Transit Rail Operations, Inc., 863 A.2d 1195, 1198 (Pa. Super. 2004) (case citations omitted, paragraph In FELA cases, "the plaintiff must prove the break added). law elements of negligence: duty, common breach, foreseeability, causation." Manson v. Southeastern Pennsylvania Transp. Authority, 767 A.2d 1, (Pa. Cmwlth. 2001).
Railroad companies owe their employees a continuing duty to use care in order to provide them with reasonably safe place to work. Kimbler, v. Pittsburgh & L.E.R. Co., 331 F.2d 383, 385 (3rd Cir. 1964).
Trial Court Opinion, 10/6/2015, at [1] -3.
By rejecting the so- called affidavits the three Amtrak police officers, determining Welsh failed to respond properly Amtrak's averments in for summary judgment thereby admitting said averments, Welsh was left with no evidence support his claim. Nonetheless, here, Welsh argues:
In this matter, the Trial Court determined that no evidence was presented establish the slightest possibility that [Welsh] was not provided reasonably safe work place. Court erred [Welsh] submitted deposition testimony making conclusion. establish that the supervisor in charge of the surveillance team conducted meeting prior to sending the team out coordinate the arrest. This failure led [Welsh] to run yards on uneven ballast with debris the dark to assist in arrest was being done other officers. Running on ballast (stones) reasonably safe activity. Running on ballast (stones) poorly lit area with industrial debris makes the work activities more problematic. Mr. Welsh stated that, area was poorly lit "the area good day not conducive walking let alone running[ "]. When asked what could have done to prevent the accident, Mr. Welsh stated, make the area safer. photographs taken [Welsh] site inspection show area Mr. had to run uneven, with areas
covered stone some areas are bare. The ground also covered with industrial debris. This along Mr. Welsh's testimony sufficient defeat Summary Judgment Federal Employers' Liability Act case.
Appellant's Brief
If Welsh needed trial court to consider such facts, the response to the motion for summary needed to place those facts properly before the trial court specifically answering the averments of that motion. Instead, attempts to rely only on counterstatement of facts. We have already found no error in court's rejection them.
Additionally, the trial court correctly rejected the use of the scene photographs as being unauthenticated. photographs were not found the certified record prior their attachment to Welsh's response to the for summary judgment. Nothing response to for summary judgment explains the provenance of the photos. Accordingly, the trial court did err rejecting them. Also, that failure hold meeting prior the surveillance caused the surveillance van be parked any specific area that forced Welsh to run 75 yards. The photographs depict mud puddles similar dips the ground, as well as randomly piled wood, stray wire lying on the ground other such detritus. Welsh's deposition testimony indicated only that he was running ballastll [11] "Ballast" not defined the certified record. common definition of ballast is, "Coarse gravel or crushed rock laid form bed roads or railroads." American Heritage® Dictionary English Language, Fifth (Copyright © Houghton Mifflin Harcourt Publishing Edition. Company. Published by Houghton Mifflin Harcourt Publishing Company.) Given the common definition makes it clear that ballast routinely used form railroad beds, we will assume Amtrak well aware Penn Coach Yard was primarily ballast, testified to by Welsh. See Deposition, supra,
when he felt pain his back. Having never claimed puddles, dips, wood or trash caused his injury, those photograph irrelevant.
Essentially, all that remains of Welsh's testimonial evidence is that he felt pain his back when he ran on ballast. There proof of record that having ballast railyard constitutes an unsafe work place or, even if
the workplace unsafe, the condition actually caused Welsh to suffer herniated disc. The evidence, viewed light most favorable Welsh responding party, demonstrates only Welsh initially felt back pain while running after suspect ballast. As such, insufficient create viable issue provided Welsh unsafe work place. In light foregoing, entitled relief.
Judgment affirmed.
Ford Elliott, P.J.E., joins this opinion.
Fitzgerald, J., concurs the result.
Judgment Entered.
Jóseph D. Seletyn,
Prothonotary
Date: 1/17/2017