author: OLSZEWSKI, Judge.

text:
    661 A.2d 9
    DUQUESNE LITHO, INC., Appellee, v. ROBERTS & JAWORSKI, INC., George L. Ball and Public Strategies, Inc. Appeal of PUBLIC STRATEGIES, INC.
    Superior Court of Pennsylvania.
    Argued May 16, 1995.
    Filed June 22, 1995.

      Arnold H. Caplan, Pittsburgh, for Ball, appellee.
    Ann Bailey, Pittsburgh, for appellant.
    Before POPOVICH, HUDOCK and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge.

In late 1989 or early 1990, George Ball decided to run for the office of controller of the City of Pittsburgh. Pursuant to 25 Pa.S.A. § 3242, Ball organized an unincorporated political association called Citizens for George Ball (the Committee) to handle campaign matters. On August 3, 1990, the Committee contracted with Public Strategies, Inc. (Public), a political consulting organization, to assist with the campaign. Public and the Committee signed two consulting agreements (Agreements) spelling out the rights and duties of the respective parties.

In the spring of 1991, Public contracted with Roberts & Jaworski, Inc. (R & J) for the design of certain campaign flyers. R & J subsequently hired Duquesne Litho, Inc. (Duquesne) to do the printing work on the flyers. After Public received drafts of the flyers, and obtained the approval of both Ball and the Committee, the flyers were produced and distributed. Notwithstanding these and other campaign efforts, Ball was defeated in the election for controller.

After the election, Duquesne sought payment for its work in printing the flyers. Unable to collect, Duquesne filed a civil action in arbitration against R & J, seeking money damages for the costs of printing, plus interest. R & J joined Public and Ball as additional defendants. Following a 1992 hearing, the arbitration board awarded Duquesne $16,554 against R & J, and also awarded R & J $16,554 against Public. The arbitrators found that Ball was not liable to either R & J or Public.

Both R & J and Public appealed the arbitration award. The Honorable Livingstone M. Johnson convened a de novo hearing on July 9, 1993. During the course of the hearing, Judge Johnson directed a verdict against R & J in favor of Duquesne for $18,693, plus interest and costs. Judge Johnson also directed a verdict against Public in favor of R & J in the amount of $20,847.27, plus interest and costs. At the conclusion of the hearing, Judge Johnson entered a verdict in favor of Ball against Public. Public now appeals the trial court’s order in favor of Ball.

Public seeks to hold Ball personally liable for the printing expenses it paid to R & J. After careful review of the parties’ relationships, we agree with the trial court that Public has failed to establish Ball’s personal liability.

Public first argues that Ball is personally liable for the Committee’s debts pursuant to the common-law liability rules of unincorporated associations. Before we can address Ball’s potential liability for the Committee’s debts, we must first determine whether the Committee actually owed a debt to Public. In the Agreements between Public and the Committee, there is no mention of reimbursement or payment of business expenses such as these printing costs. The Agreements specifically state that Public is an independent contractor who will receive a consulting fee in return for performing certain services. Presumably, Public did not intend to subsidize the cost of printing items such as flyers, yet no provision was made for these costs in the contract. Despite this poor drafting, the Committee’s treasurer did acknowledge that the Committee owed certain reimbursement money to Public. Therefore, we will assume, arguendo, that Public has established the existence of a debt.

Turning to Ball’s personal liability for this Committee debt, our Supreme Court has held that a candidate or other member of an unincorporated political association or committee is not personally liable simply by virtue of his membership. Bloom v. Vauclain, 329 Pa. 460, 462-64, 198 A. 78, 79 (1938). It was held that:

Voluntary associations, for ... political ... purposes, ... are not partnerships, nor have their members the powers and responsibilities of partners. The officers, or a committee, or any number of members of such a party have no right to contract debts which will be valid against every member of the party, or of the committee, from the mere fact that he is a member of the party, or of the committee. But those who make a contract, not forbidden by law, are personally liable, and all are included in such liability who assented to the undertaking.

Id. (quoting Franklin Paper Co. v. Gorman, 76 Pa.Super. 276, 280 (1921)). Thus, a candidate or other member will only be personally liable for a political committee’s debts if he actually authorized, assented to, or ratified the obligation. Id.; see also Rove & Co. v. Thornburgh, 824 F.Supp. 662 (W.D.Texas 1993), aff’d, 39 F.3d 1273 (6th Cir.1994) (discussing Texas and Pennsylvania law).

While the results of this rule may seem harsh at times, courts have not hesitated to enforce it because candidates and other members do have certain safeguards available to them. A candidate could easily incorporate his campaign committee and thus shield himself from personal liability. See Rove, 39 F.3d at 1299. A candidate could also include contractual provisions in all committee agreements with third parties that exclude the candidate from personal liability. Id. Thus, a candidate is not without protections under the law.

In the instant case, we agree with the trial court that candidate Ball did take the appropriate steps to protect himself. While the Agreements between Public and the Committee do not contain an express provision limiting the personal liability of Ball, they do demonstrate a clear understanding between the parties that Ball would not be held personally liable. In the first Agreement dated August 3, 1990, Ball’s name was initially typed under the signature line along with the name of the Committee. R.R. 371a. Ball’s name was crossed out and replaced with “Gail Ball, Chairperson for.” Id. Thus, the parties here evidenced an understanding that Ball would not be personally responsible for the Committee’s debts.

Public’s president, Mr. Zabierek, conceded that he understood that Ball was not to be personally liable. Counsel asked Zabierek, “when you entered the two contracts with the committee, you neither expected nor intended George Ball the individual to be liable on the committee’s contracts; is that correct? At that time.” R.R. 57a. Zabierek answered, “At that time, no.” Id. Furthermore, some time after the signing of the Agreements, Ball refused to sign a promissory note assuming personal liability. All of this evidence points to a clear understanding between the parties that Ball would not be personally liable for the Committee’s debts. We find, therefore, that the parties’ specific agreement that Ball would not be liable controls and takes precedence over the general common law rule that candidates may be liable for their committee’s debts.

Public also asserts that the Committee was Ball’s general agent, with the authority to bind Ball personally. Public relies on a 1942 Common Pleas Court case, which held that a filing with the Secretary of State naming a political committee and authorizing it to perform certain acts created an agency relationship. Bell Telephone Co. v. Pinchot, 4 Monroe L.R. 75 (Pa.Com.Pl.1942). Even if we accepted this as persuasive authority, the decision in Bell would not control the disposition of this case. While the filing in Bell authorized the committee to collect and disburse funds and to incur liabilities in the interest of the campaign, the filing in this case only stated that the Committee could receive or disburse funds on behalf of Ball’s campaign. Unlike in Bell, this is a limited, rather than a general, grant of agency authority. Moreover, Public was aware of the limited nature of this agency. As discussed above, Ball made it clear that the Committee did not have the authority to bind him personally, and Public conceded that it knew of that limitation. We find therefore that this limited grant of authority does not serve to make Ball personally responsible for all of the liabilities incurred by the Committee.

Public also argues that it should be allowed to recover against Ball on a theory of unjust enrichment. A recovery for unjust enrichment is proper if one party is enriched by another, and an injustice would result if recovery for the enrichment is denied. Chesney v. Stevens, 435 Pa.Super. 71, 77, 644 A.2d 1240, 1243 n. 4 (1994). This Court has noted that the most significant question in this analysis is “whether the enrichment of the defendant is unjust. The doctrine does not apply simply because the defendant may have benefited as a result of the actions of the plaintiff.” Styer v. Hugo, 422 Pa.Super. 262, 268, 619 A.2d 347, 350 (1993) (emphasis in original), aff’d per curiam, 535 Pa. 610, 637 A.2d 276 (1994).

In this case, we find that while Ball was enriched by Public’s efforts in securing the flyers, there will be no injustice in denying recovery. Public was an experienced consulting firm that knew the risks associated with campaign financing. Despite these risks and despite knowing that Ball had not assumed personal liability, Public contracted with R & J to print a large quantity of flyers. Meanwhile, Public kept assuring Ball that its fundraising efforts would probably bring in between $80,000 and $100,000. Instead, Public’s fundraising efforts only garnered about $5,000. Since Ball relied on Public’s assurances that fundraising money would cover expenses such as these flyers, and since Ball has already paid in excess of $40,000 to cover other expenses left after Public’s fundraising efforts failed, we agree with the trial court that a denial of recovery will not confer an unjust benefit upon Ball.

Lastly, Public points to a number of comments by the trial court and alleges that the comments indicate that the court relied on irrelevant matters. We have examined the statements that Public highlights, and find nothing improper in them. The trial court spent a great deal of time on the record explaining its reasoning in this case. The court discussed credibility and factual findings, and commented on a great deal of the evidence. While it is true that some of the evidence commented on was not necessary or even relevant to the legal determination of Ball’s personal liability, there was nothing improper about the statements. The trial court simply provided a thorough discussion of all of its factual findings, and ultimately relied on the relevant evidence to come to a proper legal conclusion. Since we find no error in this discussion, or in the court’s application of the law, we affirm the order below.

Affirmed.

POPOVICH, J., concurs in the result.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    661 A.2d 13
    Peggy Ann GERTZ, Appellee, v. TEMPLE UNIVERSITY—OF The COMMONWEALTH SYSTEM OF HIGHER EDUCATION, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 26, 1995.
    Filed June 27, 1995.

      Joe H. Tucker, Philadelphia, for appellant.
    Daniel J. Gever, Huntingdon Valley, for appellee.
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

Appellee Peggy Ann Gertz was employed by appellant Temple University at the university hospital. Temple Hospital is located in Philadelphia on Broad and Ontario Streets. Broad Street is the western boundary and Germantown Avenue is the eastern boundary of the hospital. Another street, Watts Street, is in the middle of, and parallel to, Broad and Germantown. Watts Street is bounded by Tioga Street to the south and Venango Street to the north. Temple Hospital is just south of Watts Street and adjacent to Tioga Street.

On June 9, 1992, Gertz finished work at 5:00 p.m., exited the Tioga Street hospital exit, crossed Tioga Street, and proceeded north up Watts Street. Gertz was going to the Fischer’s Restaurant parking lot, one-half block north on Watts Street, where she had parked her car. While this lot was not a hospital-owned parking lot, a number of hospital employees paid to park there.

Within minutes of leaving the building, Gertz tripped and fell on a pole protruding from the sidewalk. She suffered a partially dislocated jaw and a cut chin as a result of her fall. As the sidewalk was owned by Temple, Gertz brought the present tort action alleging that a condition on Temple’s property caused her injuries.

This case initially went to arbitration, where a panel found in Gertz’s favor. When Temple appealed that determination, a trial date was set in the Court of Common Pleas. Following a one-day bench trial on February 18, 1994, the Honorable Berel Caesar entered a verdict for $10,000 in Gertz’s favor.

On March 10, 1994, Temple filed an appeal to this Court without first filing post-trial motions. While we quashed the untimely appeal, Judge Caesar entered an order on April 5, 1994 allowing Temple to file post-trial motions nunc pro tunc. Gertz filed a motion to reconsider the April 5 order. Judge Caesar denied the motion to reconsider, but granted counsel fees to Gertz in the amount of $1,000. After post-trial motions were filed and denied, Temple filed the instant timely appeal to this Court.

Initially, Gertz challenges the trial court’s decision to allow Temple to file post-trial motions nunc pro tunc. A trial court has broad discretion to entertain an untimely procedural motion. Wittig v. Carlacci, 370 Pa.Super. 584, 586, 537 A.2d 29, 30 (1988). In this case, Gertz did not initially object to Temple’s motion, and her only statement of prejudice is a bald allegation that “prejudice to Appellee appear[s] plainly of record.” Brief for appellee at 13. In such a case, we will not find that the trial court committed an abuse of discretion in allowing Temple to file post-trial motions. See Wittig, 370 Pa.Super. at 586, 537 A.2d at 30.

Regarding the merits, Temple asserts that Gertz may not properly maintain this tort action because she is limited to the remedies provided in the Worker’s Compensation Act. We disagree, and affirm the order of the trial court.

In 1915, the Worker’s Compensation Act (the Act) was established to provide a remedy for work-related injuries. 77 P.S. § 1 et seq. The Act sought to balance the rights of employees and employers. Employees were granted the right to compensation for all work-related injuries without the need to establish fault. In exchange, employees forfeited the right to sue their employers in tort for these injuries. Employers accepted the liability-without-fault concept in exchange for protection from potentially larger tort verdicts. See generally Snyder v. Pocono Medical Center, 440 Pa.Super. 606, 610, 656 A.2d 534, 536 (1995) (discussing compromises inherent in the Act).

A key provision in maintaining this delicate balance between the respective parties’ rights is the exclusivity provision of the Act. 77 P.S. § 481(a). This provision mandates that “[w]here an employee’s injury is compensable under the Act, the compensation provided by the statute is the employee’s exclusive remedy.” Snyder, 440 Pa.Super. at 611, 656 A.2d at 536. Thus, an injured employee cannot maintain a tort action against his or her employer if the injury is compensable under the provisions of the Act.

In order to be compensable under the Act, an injury must arise in the course of employment and be related thereto. 77 P.S. § 411. The phrase “injury arising in the course of employment” is defined by the Act as follows:

[A]ll other injuries sustained while the employe is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer’s premises or elsewhere, and ... all injuries caused by the condition of the premises or by the operation of the employer’s business or affairs thereon, sustained by the employe, who, though not so engaged, is injured upon the premises occupied by or under the control of the employer, or upon which the employer’s business or affairs are being carried on, the employe’s presence thereon being required by the nature of his employment.

77 P.S. § 411(1).

In this case, Judge Caesar found that Gertz’s injury was not an injury arising in the course of employment under either of the two clauses in the statutory definition: Gertz was not actually furthering Temple’s affairs, nor was she injured by a condition on a portion of Temple’s premises where her presence was required. On appeal, Temple challenges only the latter finding.

Pursuant to the second clause of the statutory definition, a compensable injury occurs when an employee: 1) is on the employer’s premises; 2) is required to be present on the premises by the nature of his or her employment; and 3) sustains an injury caused by a condition on the premises. 77 P.S. § 411(1); see also Harris v. W.C.A.B. (Willowcrest-Bamberger), 90 Pa.Commw. 483, 486-88, 496 A.2d 87, 89 (1985) (citing Workmen’s Compensation Appeal Board v. United States Steel Corp., 31 Pa.Commw. 329, 376 A.2d 271 (1977)). As Gertz was clearly injured by a condition on the sidewalk, we need only consider whether the sidewalk was a part of Temple’s premises and whether Gertz was required to be on that sidewalk by the nature of her employment.

Even assuming, arguendo, that this sidewalk is part of Temple’s premises, we find that Gertz’s presence on it was not required by the nature of her employment. In Eberle v. Union Dental Company, an employee had just finished work, exited the building, and proceeded down the street to catch a train. 390 Pa. 112, 113-14, 134 A.2d 559, 559-60 (1957). Upon crossing a driveway that interrupted the sidewalk, the employee slipped and injured himself. Id. While not addressing whether the driveway was part of the employer’s premises, our Supreme Court held that the employee’s presence was not required by the nature of his employment. Id. at 116-18, 134 A.2d at 561. The Eberle Court noted:

[W]hen claimant stepped to the cement sidewalk at the foot of the stairs, as he left the building, his employment for the day terminated. On reaching the sidewalk claimant turned south to his right, but not because of anything further required of him ‘by the nature of his employment’.... When he stepped on to the brick driveway the reciprocal obligations of claimant and the employer, each to the other, had been satisfied for the day. When injured, claimant was no more than a member of the public using the sidewalk as a pedestrian ... there was nothing in the nature of his employment which required him to walk upon the driveway.

Id. (quoting Eberle v. Union Dental Company, 182 Pa.Super. 519, 522-23, 128 A.2d 136, 139 (1956)) (emphasis in original). As the employee had failed to establish that his presence on the driveway was required by the nature of his employment, his injury was outside the scope of the Act.

Similarly, Temple has failed to establish that Gertz’s presence on the sidewalk where she was injured was required by the nature of her employment. Gertz had finished work for the day, exited from one of the many available hospital exits, and proceeded down Watts Street to retrieve her car. As with the employee in Eberle, Gertz left work and proceeded in a direction wholly of her own choosing. She was not guided by anything related to her employment, and therefore was simply another member of the general pedestrian public.

This situation is distinguishable from one where an employee is in or en route to an employer-provided parking lot. E.g., Epler v. North American Rockwell Corp., 482 Pa. 391, 393 A.2d 1163 (1978). When parking is provided, the employer has in essence directed which way the employee will go immediately after work. Id. Unlike the claimant in Eberle, an employee with employer-provided parking is not going his or her own way as a member of the general pedestrian public, but rather is being directed to a predetermined location. When such direction is given, the employee’s presence is “required by the nature of his or her employment.” In the absence of such direction, the off-duty employee becomes a member of the general public and is no longer entitled to compensation under the Act.

Notwithstanding Temple’s arguments to the contrary, we find that Workmen’s Compensation Appeal Board v. L.L. Stearns & Sons, 20 Pa.Commw. 244, 341 A.2d 543 (1975), is consistent with the above analysis. In Steams, the claimant/employee punched out of work, exited through the required employee exit, proceeded along the sidewalk abutting the store, and injured herself on a sidewalk extension. In deciding to allow recovery under the Act, the Commonwealth Court emphasized that “it was the employer’s ... requirement of which door to use in leaving, which necessarily required the employee’s presence outside the building on the sidewalk controlled by the employer.” Id. at 250, 341 A.2d at 546. As in Epler, the employer essentially directed the path that the employee would take to leave work. Thus, the employee’s presence on the sidewalk was required by the nature of her employment.

Since Gertz was not provided with parking, or directed to leave work through a certain exit, her case is not controlled by Epler or Steams. When she left the building, she was no longer being guided by anything related to her employment. As she proceeded down Watts Street, she was simply a member of the general public, and was not in any place that she was required to be by the nature of her employment. Gertz’s injury, therefore, did not occur in the course of employment, as that term is defined in the Act.

Once we determine that this injury is not compensable under the Act, Gertz is free to sue her employer in tort to recover damages. We conclude, therefore, that the trial court did not err in finding that Gertz was allowed to maintain this tort action against Temple.

Affirmed.

      . While Gertz correctly points out that the trial court did not have jurisdiction over the case at the time that it granted Temple’s motion, due to a pending appeal in this Court, it did have jurisdiction by the time that it actually considered the merits of the post-trial motions because the untimely appeal had been quashed. Given that the trial court had proper jurisdiction when it considered the merits of the post-trial motions, we will not dismiss the instant appeal on procedural grounds. See Pa.R.C.P. 126 (stating that the rules should be liberally construed to secure justice, and that procedural errors may be overlooked where the substantive rights of the parties are not affected).

      . Temple also asserts error in the trial court’s granting of $1,000 in counsel fees to Gertz as a sanction for untimely filing of post-trial motions. As the record supports the trial court’s conclusions that counsel’s lack of diligence unnecessarily delayed the proceedings and caused additional legal work, we find that the trial court was within its discretion to award this sanction. 42 Pa.C.S.A. § 2503(7).


author: WIEAND, Judge:

text:
    661 A.2d 17
    Ronald LEHMAN, Appellant, v. NATIONAL RAILROAD PASSENGER CORPORATION, Appellee.
    Superior Court of Pennsylvania.
    Argued April 20, 1995.
    Filed July 11, 1995.

      William L. Keller, Philadelphia, for appellant.
    Christopher J. Haare, Philadelphia, for appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   WIEAND, Judge:

Ronald Lehman, an employee of National Railroad Passenger Corporation (Amtrak), was injured when train passengers allowed a trunk to fall on his foot. Lehman filed an action against his employer under the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51, et seq. He contended that his injury had been caused by the negligence of Amtrak in failing to provide him with a safe place to work. The trial court, on motion of Amtrak, entered summary judgment dismissing the cause of action. Lehman appealed. After careful review, we affirm.

State courts enjoy concurrent jurisdiction with the federal courts in actions under FELA. 45 U.S.C. § 56. “[T]hose FELA cases adjudicated in state courts are subject to state procedural rules, but the substantive law governing them is federal.” Harding v. Consolidated Rail Corp., 423 Pa.Super. 208, 216, 620 A.2d 1185, 1188 (1993).

Summary judgment is properly granted where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b).

Summary judgment should be granted only in the clearest case, where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co. Inc., 522 Pa. 367, 369, 562 A.2d 279, 280 (1989). The moving party has the burden of proving that there is no genuine issue of material fact. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979). The record and any inferences therefrom must be viewed in the light most favorable to the nonmoving party, and any doubt must be resolved against the moving party. Davis v. Pennzoil, 438 Pa. 194, 264 A.2d 597 (1970). The trial court will be overturned on the entry of summary judgment only if there has been an error of law or a clear abuse of discretion. Hetrick v. Apollo Gas Co., 415 Pa.Super. 189, 608 A.2d 1074 (1992).

Anderson v. Moore, 437 Pa.Super. 642, 645, 650 A.2d 1090, 1092 (1994). Under FELA,

the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee’s contributory negligence. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death.

Rogers v. Missouri Pac. R.R., 352 U.S. 500, 506-507, 77 S.Ct. 443, 448-449, 1 L.Ed.2d 493, 499 (1957) (footnotes omitted). The Superior Court has said that “only in the most frivolous cases may the courts deny an FELA plaintiff his qualified right to a jury trial.” Ciarolla v. Union R.R., 235 Pa.Super. 137, 141, 338 A.2d 669, 671 (1975) (en banc).

A cause of action for negligence under FELA requires a want of due or ordinary care, proximate causation of the injury, and an injury. Urie v. Thompson, 337 U.S. 163, 177, 69 S.Ct. 1018, 1028, 93 L.Ed. 1282, 1296 (1949). See: Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 67, 63 S.Ct. 444, 451, 87 L.Ed. 610, 617 (1943) (“the employer’s liability is to be determined under the general rule which defines negligence”). Furthermore,

At common law the duty of the employer to use reasonable care in furnishing his employees with a safe place to work was plain. 3 Labatt, Master & Servant (2d ed.) § 917. That rule is deeply engrained in federal jurisprudence. Patton v. Texas & P. Ry. Co., 179 U.S. 658, 664, 21 S.Ct. 275, 277, 45 L.Ed. 361, and cases cited; Kreigh v. Westinghouse, C., K. & Co., 214 U.S. 249, 256, 257, 29 S.Ct. 619, 621, 622, 53 L.Ed. 984; Kenmont Coal Co. v. Patton, 6 Cir., 268 F. 334, 336. As stated by this Court in the Patton case it is a duty which becomes “more imperative” as the risk increases. “Reasonable care becomes, then, a demand of higher supremacy, and yet, in all cases it is a question of the reasonableness of the care, reasonableness depending upon the danger attending the place or the machinery.” 179 U.S. page 664, 21 S.Ct. page 278, 45 L.Ed. 361. It is that rule which obtains under the Employers’ Liability Act. See Coal & Coke Ry. Co. v. Deal, 4 Cir., 231 F. 604; Northwestern Pac. R. Co. v. Fiedler, 9 Cir., 52 F.2d 400; Thomson v. Boles, 8 Cir., 123 F.2d 487; 2 Roberts, Federal Liabilities of Carriers (2d ed.) § 807. That duty of the carrier is a “continuing one” (Kreigh v. Westinghouse, C., K. & Co., supra, 214 U.S. page 256, 29 S.Ct. page 622, 53 L.Ed. 984) from which the carrier is not relieved by the fact that the employee’s work at the place in question is fleeting or infrequent.

Bailey v. Central Vt. Ry., 319 U.S. 350, 352-353, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444, 1447 (1943). “Of course in any case the standard of care must be commensurate to the dangers of the business.” Tiller, 318 U.S. at 67, 63 S.Ct. at 451, 87 L.Ed. at 618.

FELA, however, does not transform an employer into an insurer. Inman v. Baltimore & O.R.R., 361 U.S. 138, 140, 80 S.Ct. 242, 243, 4 L.Ed.2d 198, 201 (1959). “[Reasonable foreseeability of harm is an essential ingredient of [FELA] negligence.” Gallick v. Baltimore & O.R.R., 372 U.S. 108, 117, 83 S.Ct. 659, 665, 9 L.Ed.2d 618, 626 (1963).

Lehman, a long-time employee of Amtrak, was working as an assistant conductor on a Metroliner train originating in Washington, D.C., with stops in Baltimore, Wilmington, Philadelphia and New York. His duties included the screening of passengers who were carrying unwieldly, large or heavy luggage. If the luggage was too large or too heavy, the passenger was instructed to check the same instead of carrying it on the train. Lehman’s duties also required that he assist passengers with the storage of their luggage where this could be done without injury to himself. Finally, appellant was charged with collecting tickets and making station announcements.

Each passenger car had an overhead luggage area and a small room for garment bags in which other items could also be stored. During his years of employment by Amtrak, appellant had frequently directed passengers to check large and unwieldly luggage in the baggage car. He knew that luggage was not to be allowed in the aisle, and he was able to detect readily if luggage was too large for the overhead storage area. On the day of the accident, the aisle was clear, and appellant had not observed any luggage that had been stored unsafely in the overhead storage area. More specifically, there was no evidence that the trunk which was allowed to fall on his foot had been too large or unwieldly to have been stored in the overhead area. Appellant, himself, concedes that he did not observe the trunk until the moment when two passengers allowed it to fall on his foot. Under these circumstances, we agree with the trial court that appellant’s evidence was insufficient to establish that Amtrak had been negligent in failing to provide appellant with a safe place in which to work. The evidence shows only that an accident happened; there is no evidence that it was caused by Amtrak’s negligence.

Appellant argues, however, that on the day of the accident the train’s public address system was not operational, and this made it necessary for him to walk through the cars assigned to him on occasions when he might otherwise have used the public address system. He concedes, however, that other duties required that he be physically present in the cars. Therefore, we are constrained to agree with the trial court that the failure of the public address system was not a legal cause of the accident which caused appellant’s injury.

The trial court found support for its decision in an opinion filed by the Court of Appeals for the First Circuit in Conway v. Consolidated Rail Corp., 720 F.2d 221 (1st Cir.1983), cert. denied, 466 U.S. 937, 104 S.Ct. 1911, 80 L.Ed.2d 459 (1984). Appellant argues that Conway was incorrectly decided and, in any event, can be distinguished factually from the instant case. Even if not controlling, we agree with the trial court that Conway suggests the manner in which the Court of Appeals for the First Circuit views a factual scenario similar to that in the instant case.

The order entering summary judgment is affirmed.

      . The provisions of 45 U.S.C. § 51, in pertinent part, are as follows:
      Every common carrier by railroad while engaging in commerce ... shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.

      . The trial court granted a motion to reconsider but subsequently reinstated the summary judgment.


author: TAMILIA, Judge: BECK, Judge,

text:
    661 A.2d 370
    Maria ZADORI v. Thomas ZADORI, Appellant.
    Superior Court of Pennsylvania.
    Argued March 28, 1995.
    Filed May 31, 1995.
    Reargument Denied Aug. 11, 1995.

      James P. Ferry, Hazleton, for appellant.
    Before BECK, TAMILIA and CERCONE, JJ.
   TAMILIA, Judge:

Thomas Zadori appeals from the November 30, 1993 and March 21, 1994 Orders addressing, inter alia, the paternity of the parties’ minor son and the appellant’s obligation to pay spousal support.

The parties married on October 5, 1989 and on November 21, 1989, appellee gave birth to a baby boy. The parties separated on August 20, 1992 and on September 15, 1992, appellant filed for custody, fearing appellee would return with their son to her native Hungary. Wife, unbeknownst to appellant, filed a complaint for child support at this same time. After the support hearing conducted September 29, 1992, an interim Order for support and visitation was entered on October 23,1992. Exceptions taken by appellant were denied. On October 30, 1992, appellant petitioned for an Order directing the parties to submit to blood tests to establish the paternity of the child. The Domestic Relations Office suggested appellant’s request be denied based on his previously filed custody action identifying himself as the father. On December 11, 1992, appellant requested a stay with regard to the support Order and a trial on the issue of paternity. On February 18, 1993, a hearing was conducted with regard to these issues, wherein appellee admitted appellant was not the child’s father, and appellant testified concerning his relationship with the then four and one-half (4jé) year old child. Appellant’s requests were denied by Order dated April 19, 1993. Thereafter, an interim support Order was entered directing appellant to pay child and spousal support. Appellant’s exceptions to this Order were denied by Order dated November 30, 1993, and an appeal to this Court was subsequently filed. On March 2, 1994, an Order was entered finding appellant was the father of the minor child and directing him to pay child support. This Order was amended, sua sponte, on March 21, 1994 to include contributions for various child care costs, and to negate that portion of its Opinion which found wife had failed to preserve for the master the issue of spousal support, and award appellee $17 per week spousal support. Appellant also appealed this Order.

Father first argues the trial court erred by denying his request for HLA (human leukocyte antigen) blood testing, and by refusing to provide him with a trial on the issue of paternity as is mandated by Pa.R.C.P. 1910.15(b). Appellant argues the child was born only three or four months after the parties began sexual relations, and appellee has readily admitted appellant is not the father of her child who was conceived while she was still living in Hungary.

A child born to a married woman is presumed to be a child of the marriage and of the woman’s husband. Everett v. Anglemeyer, 425 Pa.Super. 587, 625 A.2d 1252 (1993). This presumption of legitimacy can be overcome, however, by clear and convincing evidence husband had no access to wife during the relevant period. Freedman v. McCandless, 539 Pa. 584, 654 A.2d 529 (1995); John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990). Here, not only did appellant have no access to wife during the time the child was most likely conceived, mother repeatedly admits appellant is not the biological father. Blood tests, if permitted, would merely confirm that upon which the parties have agreed: appellant is not the biological father of now five and one-half 0) year old Thomas. But as the trial court accurately points out, paternity and the concomitant duty to support may be established constructively. Chrzanowski v. Chrzanowski, 325 Pa.Super. 298, 472 A.2d 1128 (1984). A support Order need not be based on paternity alone, but may be premised on the “existence of a parental relationship giving rise to a duty to support.” Id. at 304, 472 A.2d at 1131. “Estoppel in paternity actions is merely the legal determination that because of a person’s conduct (e.g., holding out the child as his own, or supporting the child) that person, regardless of his true biological status, will not be permitted to deny parentage----” Freedman, supra, at 591, 592, 654 A.2d at 532-533. Paternity by estoppel may be established when a putative father marries the mother, holds the child out as his own and lists his name as the father on the birth certificate. See John M., supra, 524 Pa.Super. 306, 571 A.2d 1380; see also Matter of Montenegro, 365 Pa.Super. 98, 528 A.2d 1381 (1987).

In the matter before us, appellant knew the child was not his on the date he was born. In fact, appellant avers in his brief the full term child, also named Thomas, was bom only three months after the parties began sexual relations. Nevertheless, appellant agreed to amend the child’s birth certificate to list himself as the birth father and, despite appellant’s initial misgivings, the parties along with the child lived together as a family for almost three years after Thomas’ birth. During this time, appellant admittedly fed, clothed, housed and provided for the physical, medical and emotional needs of the child. When appellee unexpectedly left the marital residence, appellant waited only one week before filing for visitation and/or custody.

As stated above, a blood test would merely affirm the fact appellant is not the biological father of Thomas. Biology aside, because the record is replete with evidence establishing appellant did indeed hold the child out as his own for almost three years prior to separation, we agree with the trial court’s finding of paternity by estoppel. Since the requirements of the law to establish paternity, albeit not in biological sense, have been met, appellant is estopped from now denying paternity, and evidence of blood tests, even if conducted, would be inadmissible to disprove paternity for any purpose. See Matter of Montenegro, supra.

Appellant also contends the court erred by “issuing an amended Order on March 21, 1994 applying for spousal support when Maria Zadori failed to preserve the issue of spousal support by filing of exceptions to the recommended order of support which did not provide for spousal support, pursuant to PA. Rules of Civil Procedure 1910.12(e).” (Appellant’s brief at p. 13.) The Domestic Relations Officer’s October 8, 1992 proposed Order addressing appellee’s request for, inter alia, child and spousal support, directed appellant to pay child support and provide medical insurance for wife and child when available, was adopted as an interim Order on October 23, 1992. Husband filed exceptions to the interim Order while wife did not. Husband argues appellee’s failure to object at that time constituted a waiver of her right to now request spousal support.

In explaining its decision to consider and grant appellee’s request for spousal support, the trial court reasoned:

While it is acknowledged that MARIA ZADORI did not file her own exceptions, she was notified in writing by the Domestic Relations Section of the county court that the hearing before the master would be a de novo hearing.
For over a decade this court has afforded all litigants in support cases the wide latitude afforded by due process in [sic] have a de novo hearing before the permanent hearing officer or master. This court has intentionally chosen to allow individuals, who are frequently not represented by counsel, the opportunity to present all claims and make all arguments before the support master where, for the first time, a permanent record is made of the proceedings. This court has utilized over the years a hybrid support hearing procedure at the de novo hearing before the support officer which permits all issues, even those not raised by exception to the recommendation of the support officer, to be heard and considered. As such, the hybrid de facto hearing procedure does not cause the harsh result of waiver of issues not preserved by exception. This court has always utilized a concept that fundamental fairness and justice, and not strict adherence to procedural technicalities, must always be the goal of true justice. It was therefore, obligatory that this court enter an amended order on March 21, 1994, as was thus written.

(Slip Op., Muroski, J., 8/4/94, pp. 8-9.) We agree with the reasoning of the trial court and therefore find appellant’s argument to be devoid of merit.

Based on the foregoing reasons of law and fact, we affirm the Orders of November 30, 1993 and March 21, 1994.

Orders affirmed.

BECK, J., files a concurring opinion.

BECK, Judge,

concurring.

I agree with the result reached by the majority. I write separately, however, to address a recent decision by a panel of this court that might appear to support a different result.

In Kohler v. Bleem, 439 Pa.Super. 385, 654 A.2d 569 (1995), a panel of this court reversed the trial court’s ruling that appellant, Benjamin Kohler, was estopped from denying paternity. The action concerned a child born to Mrs. Kohler during her marriage to Mr. Kohler, but after Mr. Kohler had a vasectomy and tests confirmed his sterility. Mrs. Kohler told her husband that the father of the child was a man living in Buffalo whose exact whereabouts she did not know. Despite the circumstances, Mr. Kohler accepted the child into his home, held the child out as his own, and provided support for both Mrs. Kohler and the child. Five years later, Mr. Kohler learned that the father of the child was not a stranger, but rather was a neighbor and friend, David Bleem, with whom Mrs. Kohler had a long-term affair. One year after learning of the relationship between Mrs. Kohler and Mr. Bleem, Mr. Kohler left the marital home, stating that while he could live with the idea that a stranger had fathered his wife’s child, he could not tolerate the idea of living next door to the man.

Following the Kohlers’ separation, Mrs. Kohler brought a child support action against Mr. Bleem. In that action, Mr. Bleem asserted that both of the Kohlers were estopped from denying Mr. Kohler’s paternity of the child. The trial court agreed, finding that although it was undisputed that Mr. Bleem was the child’s biological father, there was no precedent for avoiding the doctrine of paternity by estoppel and that, under Pennsylvania law, the obligation for support of the child must be placed on Mr. Kohler.

The majority of the panel of this court reversed the decision of the trial court, finding that prior Pennsylvania cases did not address the application of paternity by estoppel to situations “where (1) clear and convincing evidence has been offered to rebut the presumption; (2) the party seeking to invoke estoppel in his or her favor is guilty of fraud or misrepresentation; and (3) there is no intact family.” Kohler, 439 Pa.Super. at 397, 654 A.2d at 575 (emphasis in original). In such cases, the panel majority stated, “it defies both logic and fairness to apply equitable principles to perpetuate a pretense,” id. at 397, 654 A.2d at 575, because the family unit which the doctrine of estoppel was developed to protect no longer exists and because “application of estoppel would punish the party that sought to do what was righteous and reward that party that has perpetrated a fraud,” id. at 397, 654 A.2d at 575-76. The majority noted that Mr. Kohler’s actions in accepting the child knowing that she was not his biological daughter would ordinarily give rise to paternity by estoppel. However, the majority found that in accepting the child Mr. Kohler was “operating under the misrepresentation that an ‘unknown’ man had fathered the child” and “[b]ut for this fact, Mr. Kohler indicated that he would have left his wife immediately,” id. at 398, 654 A.2d at 576. The majority therefore concluded that Mr. Bleem, who was aware of and participated in the misrepresentation, should be precluded from utilizing equitable principles. Accordingly, the majority held, it was error to allow Mr. Bleem to invoke the doctrine of estoppel to preclude Mr. Kohler from denying paternity.

The facts of the case now before us parallel those in Kohler in some respects. Mr. Zadori’s lack of access to Mrs. Zadori during the period in which the child was conceived and Mrs. Zadori’s admissions that the child was fathered by another man constitute clear and convincing evidence to overcome the presumption that Mr. Zadori is the father. Moreover, there is an allegation of fraud or misrepresentation in that Mr. Zadori asserts that Mrs. Zadori led him to believe that the child was his up until the child’s birth, when delivery of a full-term baby only three months after the parties began sexual relations made his non-paternity obvious. Finally, because the parties are separated, it appears that the Zadoris no longer have an intact family unit in need of protection. This case thus appears to fall within the three parameters outlined by the Kohler majority: (1) clear and convincing evidence has been offered to rebut the presumption of paternity; (2) Mrs. Zadori, the party seeking to invoke estoppel in her favor, is guilty of fraud or misrepresentation; and (3) there is no intact family.

However, Kohler diverges from a long and powerful line of cases which support paternity by estoppel. See, e.g., John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990), cert. denied, 498 U.S. 850, 111 S.Ct. 140, 112 L.Ed.2d 107 (1990); Christianson v. Ely, 390 Pa.Super. 398, 568 A.2d 961 (1990); Seger v. Seger, 377 Pa.Super. 391, 547 A.2d 424 (1988); Matter of Montenegro, 365 Pa.Super. 98, 528 A.2d 1381 (1987); see also, Kohler v. Bleem, supra at 401-406, 654 A.2d at 577-80 (Tamilia, J., dissenting). The public policy underlying paternity by estoppel is one which favors legitimacy and prevents an individual who has knowingly assumed the duties of parent from later renouncing those obligations, thereby leaving the child in an unprotected position. Any departure from the well-established principles of paternity by estoppel requires equally strong, countervailing considerations of public policy.

The majority in Kohler found, on the unique facts of that case and in light of the strong policy against permitting a party who has acted in reliance upon an intentional misrepresentation to suffer harm as a result, a sufficient basis to make an exception to the doctrine of paternity by estoppel. However, the decision in Kohler, departing as it does from the well-established legal principles underlying the doctrine of paternity by estoppel, must be limited to the facts of that case in order to avoid any erosion of the important public policies which led to the development of that doctrine.

On the facts of the case before us, I am not persuaded, as was the panel majority in Kohler, that a fraud has been committed that is so egregious as to overcome the public policies protecting the child on whose behalf support is sought. Moreover, there is no allegation in this case that Mr. Zadori relied upon Mrs. Zadori’s misrepresentations in accepting and supporting the child. Accordingly, I see no basis for granting an exception from the principles of paternity by estoppel to Mr. Zadori, the adult who knowingly and voluntarily assumed the responsibilities of parenthood of a child who was not his biological offspring.

Accordingly, I agree with the majority that Mr. Zadori’s conduct estops him from denying paternity of Thomas and hence that the orders denying blood tests and ordering Mr. Zadori to pay support for Thomas should be affirmed.

      . Upon motion filed October 31, 1994, this Court has agreed to consolidate for the purpose of appeal No. 00106 Philadelphia, 1994 and No. 01755 Philadelphia, 1994.

      . Appellee, Maria Zadori, has not filed a brief.