text:
    Roberts v. Nafus

      June 6, 2013 —

      James A. Butz, for plaintiff

      John L. Dewitsky, Jr., for defendant
   HIGGINS,./.,

This matter comes before the court on plaintiff Daniel Roberts’ (hereinafter referred to as “father”) complaint for custody. On August 14,2012, father filed a complaint for custody concerning Novaleigh Roberts (hereinafter referred to as “Novaleigh”), age 5, date of birth 6/6/2007. Novaleigh’s mother is defendant Teresa M. Nafus (hereinafter referred at as “mother”). Mother seeks take Novaleigh with her to Michigan where she relocated in October 2011. Mother and father were never married and although father is listed as “father” on Novaleigh’s birth certificate, he is not the biological father of Novaleigh.

Our first inquiry, therefore, is whether father has standing to pursue custody of Novaleigh. 23 Pa. C.S.A. §5324, states in pertinent part:

The following individuals may file an action under this chapter for any form of physical custody or legal custody:
(1) A parent of the child.
(2) A person who stands in loco parentis to the child.

23 Pa. C.S.A. §5324(1),(2).

Mother testified at our initial hearing on January 11, 2013 (hereinafter referred to as “N.T. 1/11/13) that she became pregnant while she was living in North Carolina. [N.T., 1/11/13] Mother was dating Jason Matthews, Novaleigh’s biological father and during her pregnancy she considered giving Novaleigh up for adoption. [N.T., 1/11/13] During cross examination, mother stated that Mr. Matthews asked mother to abort the pregnancy as he was unable to raise a child. [N.T., 1/11/13] Mother also stated that Mr. Matthews has never met Novaleigh. [N.T., 1/11/13]

Father testified at our subsequent hearing on February 20, 2013 (hereinafter referred to as “N.T. 2/20/13) that he had known mother since high school. [N.T.2/20/13] Father reconnected with mother in March 2007 through the website Myspace.com. [N.T. 2/20/13] Mother was experiencing depression so father traveled to North Carolina to help mother move back to this area. [N.T.2/20/13] Mother and father began dating and living together. [N.T.2/20/13] Father told mother that he would “step in” as dad and he is listed as father on Novaleigh’s birth certificate. [N.T.2/20/13] Father and mother signed an acknowledgement that father was Novaleigh’s father. [N.T. 2/20/13] Novaleigh has father’s last name as her surname. [N.T.2/20/13]

In September 2007, mother and Novaleigh started living with father. [N.T., 1/11/13] Novaleigh was 3 months old when she began living with father. [N.T., 1/11/13] Father has been the only “father” in Novaleigh’s life. [N.T. 2/20/13] Since Novaleigh was bom she has had no contact with the biological father and no other person has asserted paternity. [N.T., 2/20/13] Mother refers to father as a loving man, however, in September 2011, mother and father ended their relationship. [N.T. 1/11/13] Nevertheless, Novaleigh has continued to live with father. [N.T., 1/11/13] In October 2011, mother permitted Novaleigh to remain with father when she moved to Kalamazoo Michigan. [N.T., 1/11/13]

Standing to pursue any form of physical custody is granted to any person who is a parent of the child. Under the facts set forth above, we have no doubt that father is Novaleigh’s parent. Father is listed as father onNovaleigh’s birth certificate and he has been her father since her birth. Father provided support, cares for and loves Novaleigh. Father testified that he has changed Novaleigh’s diapers, fed, clothed, played and generally taken care of all her needs. Novaleigh calls father “daddy.” Furthermore, our Superior Court has stated that [standing will be found where the child has established a strong psychological bonds with a person who, although not a biological parent, has lived with the child and provided care, nurture, and affection, assuming in the child’s eye a stature like that of a parent.” S.A. v. C.G.R., 856 A.2d 1248 (Pa. Super. 2004) (citation omitted). Therefore, we believe that even if mother could successfully challenge father’s status as Novaleigh’s father, father has standing to pursue custody pursuant to 23 Pa. C.S.A.§5324(2). We will now address the merits of father’s request for custody.

In a child custody case, our ultimate purpose is to determine what is in the best interest of the child. Clapper v. Harvey, 716 A.2d 1271, 1273 (Pa. Super 1998) (citation omitted). In determining the best interest of the child, we must proceed on a case-by-case basis and we must consider all factors that legitimately affect the child’s physical, intellectual, moral and spiritual well-being. Fuehrer v Fuehrer, 906 A.2d 1198, 1200 (Pa. Super. 2006) (citations omitted).

Pennsylvania state legislature has defined elements, which are to be considered in custody cases. The statute, in relevant part, is as follows:

(a) Factors. — In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
(2) The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.
(3) The parental duties performed by each party on behalf of the child.
(4) The need for stability and continuity in the child’s education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.
(9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.
(10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or member of a party’s household.
(15) The mental and physical condition of a party or member of a party’s household.
(16) Any other relevant factor.

23 Pa.C.S.A. §5328(a).

As the Pennsylvania courts have interpreted, the statute requires that in any custody case, our paramount concern must be for the best interest of the child after considering all factors set forth above. S.M. v. J.M, 811 A.2d 621, 623 (Pa. Super. 2002)(citations omitted). As the best interest of the child is a nebulous concept, we will consider all relevant factors affecting the child’s well-being. Landis v. Landis, 869 A.2d at 1003 (Pa.Super. 2005). There are no presumptions in favor of either parent. Sawko v. Sawko, 625 A.2d 692 (Pa. Super. 1993). Accordingly, we will make its determination based solely on the particular facts and circumstances of each case. Id.

Instantly, we find that Novaleigh is a healthy 5 year old child. It is apparent from the testimony that Novaleigh is deeply loved by both of her parents and family. Both parents seem to want what is best for Novaleigh. However, our concern must be for the best interest of Novaleigh and not that of mother or father.

In considering the above factors, we find that numbers 2, 8, 15 and 16 have no application to this case. In regard to numbers 3, 9 and 10, we find that these factors weigh equally in regard to both parents. Factor 1 favors father slightly. Father has maintained contact with mother concerning Novaleigh’s progress and care. [N.T., 2/20/13] Since October 2011, father has made sure that Novaleigh was accessible by telephone for mother to communicate with her. [N.T., 2/20/13] There is no evidence that father has hindered mother’s access to Novaleigh either by telephone, computer or otherwise. Although no evidence was introduced to suggest that mother would not permit frequent and continued contact with father should Novaleigh be permitted to relocate to Michigan, we find that the evidence presented at hearing demonstrates that father would encourage and permit frequent contact between Novaleigh and mother, therefore, factor 1 favors father slightly.

In regard to factors 4 and 5, we believe that these weigh in favor of father. Father has provided stability and continuity in Novaleigh’s life. Father attends to all of Novaleigh’s needs including assisting her with school work, playtime and socialization. Father takes Novaleigh to see extended family members, including mother’s family. He takes Novaleigh to see her friends outside of the school and daycare settings and father takes Novaleigh fishing as well. Mother, however, has relocated several times and is currently living in an area where Novaleigh does not have any family, with the exception of her half-brother Austin who is 15 years old. Mother testified about the “Kalamazoo promise” which is a program for children in Kalamazoo Michigan to obtain a free or reduced college education. While this sounds an excellent program, we cannot base our decision to permit Navaleigh to relocate based solely on the basis of this program. We also note that mother has not filed a petition to relocate which was noted in the custody conciliator’s recommendations which were made an interim order of court. Additionally, we also consider that need for stability in Novaleigh’s life and the availability of extended family. Given the evidence we heard at hearing and considering all the facts in this case, we find that factors 4 and 5 weigh in favor of father.

Factor 6 weighs in favor of mother. Mother and Austin live together in Michigan and we believe that continuing relationship between Novaleigh and Austin is important. However, the unavailability of extended family members must also be considered. Nevertheless, factor 6 favors mother.

The proximity of distance between the parties’ households is a difficult consideration in this case. There is approximately 600 miles between the households. Clearly this favors father who has remained in the home which Novaleigh knows as “home.” Mother has chosen to relocate to Michigan which removes Novaleigh from her familiar environment.

Factor 12 favors father. While mother testified that she has made child care plans, we believe that the proximity of both mother’s and father’s extended family to father’s home weighs in favor of father’s ability to care for Novaleigh. Father stated that he continues to take Novaleigh to daycare to keep continuity in her life. He also testified to other family members who help care for Novaleigh, including Aunt Linda and mother’s mother, Bev. Accordingly, we find that factor 12 favors father.

Finally, we find that factor 14 weighs against mother. Mother testified at hearing that she smoked marijuana, however, she quit in September 2011 when she moved to Michigan. During his testimony, father stated that Mother smoked marijuana every day. [N.T., 2/20/13] Although mother denies ingesting any marijuana in Michigan, we must consider this factor as a history of drug use which weighs against mother. In addition, mother desires to relocate Novaleigh to Michigan, therefore, we must engage in a discussion pursuant in Gruber v. Gruber, 400 Pa.Super. 174, 583 A.2d 434 (1990).

When there is a request by one of the parents to relocate with the child, then the best interest analysis must incorporate the three factors originally outlined in Gruber. See Landis, 869 A.2d at 1011 (in a relocation case, the Gruber factors must be considered and applied “under the umbrella of the ultimate objective of determining the best interests of the child”) (citation omitted). Specifically, under Gruber, the court must consider the following:

the potential advantages of the proposed move and the likelihood that the move would substantially improve the quality of life for the custodial parent and the children and is not the result of a momentary whim on the part of the custodial parent; **** the integrity of the motives of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it; [and] the availability of realistic, substitute visitation arrangements which will adequately foster an ongoing relationship between the child and the non-custodial parent. Landis, 869A.2dat 1011-12 (citations omitted). Collins v. Collins, 897 A.2d at 471-472.

In Klos v. Klos, 934 A.2d 724 (Pa. Super. 2007), our Superior Court stated:

Where a custody order exists prior to the petition to relocate, the parent who desires to relocate bears the burden of proving the aforementioned elements. Id., 897 A.2d at 472 n.6. On the other hand, where the trial court is to formulate a primary physical custody order as well as to decide a petition for relocation, both parents stand on equal footing, sharing the burden of production and persuasion to demonstrate that the living situation that they will provide to the children serves the children’s best interests. Id., 897 A.2d at 472. Consequently, while important, the Gruber factors are but one aspect of the overall best interest analysis that is required when the trial court is formulating a primary physical custody order as well as deciding a petition for relocation. Collins, 897 A.2d at 472. Klos, 934 A.2d at 728-729 (footnote omitted).

No final custody order has been entered in this case. A custody conciliation conference was held on September 5, 2012, which led to an interim order dated September 11, 2012 awarding father primary physical custody under and subject to partial physical custody of mother. Therefore, this is not purely a relocation case; the standard described by the Klos court is the one that is applicable. The Gruber factors must be considered, but in the context of the overall best interests of Novaleigh.

Both parents impressed the court with their sincere interest in their child’s welfare. We believe that father is sincere when he testified that Novaleigh is the “greatest thing that ever happened to me.” [N.T., 2/20/13] Father was present at Novaleigh’s birth. [N.T., 2/20/13] Father has provided Novaleigh with a stable environment and has taken care of her since her birth. [N.T., 2/20/13] Father testified credibly that he changed her diapers, bathed, clothed, fed, played and generally attended all of the needs. [N.T., 2/20/13] Father has provided all care for Novaleigh since mother relocated to Michigan in October 2011, except for a three week period when Novaleigh resided with mother in Michigan. [N.T., 2/20/13] Father stated that he is unemployed presently but has been discussing a new position at a car care center scheduled to open soon. [N.T., 2/20/13] Even through father is not currently employed, he takes Novaleigh to daycare where the bus picks her up for school and later drops her off after school. [N.T., 2/20/13] Father would like Novaleigh’s schedule to be consistent, especially when he returns to full time employment. [N.T., 2/20/13]

In addition, father has extended family in the area to assist him with Novaleigh’s care. [N.T., 2/20/13] Father takes Novaleigh to see “Grammy” father’s mother) weekly and has maintained contract with mother’s mother, who also lives close to father. [N.T., 2/20/13] Although father initially made an agreement with mother to allow Novaleigh to relocate to Michigan, father is concerned that mother’s apartment is not big enough for Austin, Novaleigh and mother. [N.T., 2/20/13] Father also expressed concerns that Novaleigh would be taken from her family, friends and school by moving to Michigan. [N.T., 2/20/13]

On the other hand, since March 2012, Mother has obtained a larger apartment in Kalamazoo Michigan. [N.T., 2/20/13] We believe that Novaleigh would benefit from having her brother at home with her in Michigan. However, mother indicated in our 2/20/13 hearing that she has had to take a second job (with the same company) to be able to afford to drive back to Pennsylvania. [N.T., 2/20/13] Mother also testified that it is difficult for her to call Novaleigh because of work schedule conflicts. [N.T., 2/20/13] Nevertheless, mother indicates that she will only work during the days when Novaleigh comes to live with her. Mother has presented a day care plan at a facility a couple of blocks from her apartment where Novaleigh would be cared for between 1 and 11/2 hours each day. Mother also testified that things would be different from Novaleigh’s first stay with her in Michigan. [N.T., 2/20/13] Mother believes that Novaleigh had no adjustment period in March 2012 and she now has a larger apartment. [N.T., 2/20/13]

Addressing the Gruber factors, we find that while the move to Kalamazoo Michigan is of benefit to mother because of her job situation, it is not in the best interests of Novaleigh. The move would require Novaleigh to leave her familiar surroundings, friends and school. Novaleigh has a great support system here which includes mother’s family. While we find no improper motive in mother’s decision to relocate, we do not find that the move would substantially improve the quality of Novaleigh’s life. We believe that there would be a period of adjustment and a considerable loss of deeply-rooted ongoing relationships with father, his family and the loss of support from mother’s family. Nevertheless, we also find no improper motives in father’s decision to oppose the move, because he believes that keeping Novaleigh in her current home and familiar settings is preferable to completely changing schools to live 600 miles from the majority of her family. Our decision began by placing the parents on equal footing and thereafter applying the circumstances discussed above. After careful reflection, we are convinced that Novaleigh’s best interests are served by maintaining the status quo and allowing father to continue with primary physical custody. Partial custody arrangements will be made for mother during school holidays with extended visits during summer vacation.

For the foregoing reasons, we believe that the current custody arrangement is in Novaleigh’s best interest. Accordingly, we enter the following order:

ORDER

And now, this 6th day of June 2013, following a custody hearing before the court during which Teresa M. Nafus (mother) was represented by John L. Dewitsky, Jr., Esquire, and Daniel Roberts (father) was represented by James A. Butz, Esquire, all prior custody orders with respect to the minor child, Novaleigh Roberts, born June 6, 2007, are rescinded and the following order is entered:

1. SHARED LEGAL CUSTODY

Mother and father shall share legal custody of the minor child. For purposes of this recommendation, “shared legal custody” shall mean:

(a) All decisions affecting the child’s growth and development, including but not limited to education, choice of school, medical and dental treatment, religious training, athletic pursuits and extracurricular activities shall be considered major decisions, and shall be made by the parties jointly after discussion and consultation with each other with a view toward obtaining and following a harmonious policy in the child’s best interest;

(b) Each party agrees to keep the other informed of the progress of the child’s education and social adjustment. Each party agrees not to impair the other party’s right to shared legal or physical custody of the child. Each party agrees to give support to the other in the role as parent and take into account the consensus of the other for the physical and emotional well-being of the child with the recognition that their life styles may be different;

(c) While in the presence of the child, neither party shall make or permit any other person to make any remarks or do anything which would in any way be construed as derogatory or uncomplimentary to the other parent. It shall be the express duty of each parent to uphold the other parent as one whom the child should love and respect;

(d) It shall be the obligation of each parent to make the child available to the other in accordance with the following schedule and to encourage them to participate in the plan hereby set forth;

(e) Each parent shall have the duty to notify the other of any event or activity that could reasonably be expected to be of significant concern to the other parent or to the child;

(f) The parents shall communicate with one another concerning any parenting issues requiring consultation and agreement regarding a proposed modification of the custody schedule which may, from time to time, become necessary, and shall specifically not use the child as a messenger at any time. Neither party shall discuss with the child any proposed changes to this schedule or any other issue requiring consultation and agreement prior to discussing the matter and agreement with the other parent;

(g) With regard to any emergency decisions which must be made, the parent with whom the child is physically residing at the time shall be permitted to make a decision necessitated by the emergency without consulting the other parent in advance; however, that parent shall inform the other of the emergency and consult with him or her as soon as possible. Day to day decisions of a routine nature will be the responsibility of the parent having physical custody at that time;

(h) Mother and father agree to share complete and full information from any doctor, dentist, teacher or other authority, and each parent may have copies of any reports given to them as a parent. Each parent shall also request any authority to forward copies to both parents at their respective addresses. Such documents include, but are not limited to, medical reports, athletic and school reports, birth certificates, etc. Both parents may and are encouraged to attend conferences and activities with the child. Both parents shall be listed with any school or day care center as parents to be contacted in the event of an emergency and to be notified regarding school events. Mother and father agree to share copies of any school notices in a timely fashion;

(i) Both parents shall attempt to avoid scheduling any activities or appointments for the child which would require his/her attendance or participation during the time when he/she is scheduled to be in the physical custody of the other parent without the parent’s prior approval; however, both parents agree to cooperate and be flexible in accommodating the child’s scheduled activities.

2. SHARED PHYSICAL CUSTODY

The parities shall share physical custody of the minor children with father exercising primary physical custody of the child, under and subject to the mother’s partial physical custody rights as follows:

(a) During the school year, at any time there is at least a seven day school holiday, mother shall have custody of the child for the entire school vacation;
(b) During the summer school vacation, from the third day after school ends to the Saturday at 12:00 p.m. (noon) one week before school begins;
(c) Anytime while in Pennsylvania upon reasonable notice to Father to be exercised in 48 hour increments; and
(d) Additionally, the parties shall share custody of the children according to such terms to which they may agree.

3. HOLIDAYS

The parties shall alternate the major holidays as the parties may agree. If unable to agree, the alternating holiday schedule shall include the holidays of Thanksgiving, Christmas and Easter. The period of holiday custody shall include the entire school vacation. These periods of holiday custody shall begin with mother on Thanksgiving 2013. Mother shall have partial custody on Mother’s Day and father shall have partial custody on Father’s Day.

4.TRANSPORTATION

In order to facilitate the exchange of partial custody of the minor child, it shall be the responsibility of the parties to meet at a place 2/3 the distance from the father’s residence and 1/3 the distance from mother’s residence. Appropriate passenger restraint devices shall be utilized by the child while being transported.

5.TELEPHONE ACCESS

Each parent shall allow the other parent to have private, liberal and reasonable telephone access with the minor child during that parent’s period of partial custody. This shall include the child initiating such contact. Reasonable telephone access shall be construed to be during the child’s normal waking hours, emergencies excepted. If the calling parent leaves a message at the residence of the custodial parent, custodial parent shall require the child to return the telephone.

6.NOTICE: CHANGE OF RESIDENCE OR RELOCATION

Before a party may relocate the children OR change the residence of the children in a manner which significantly impairs the ability of the other individuals with custody rights to the children to exercise those rights, the party must comply with the requirements and obligations of Pennsylvania’s Custody Law set forth in 23 Pa. C.S.A.§5337.

      . Mother had a document drawn up stating that father would keep Novaleigh until December 26, 2011 unless mother requested father to keep her longer. Mother was unable to have Novaleigh come to Michigan until March 2012, when Novaleigh lived with mother for three weeks. In April 2012, mother returned Novaleigh to father due to housing constraints. Novaleigh has lived with father in Monroe County since that time.


source: Caselaw Access Project

author: BERNSTEIN, J.,

license: Public Domain

text:
    Nertavich v. PPL Electric Utilities

      June 14, 2013

      James B. Dilsheimer, for plaintiff

      Luke A. Repici, Andrew R Susko and Edward M. Koch, for defendants
   BERNSTEIN, J.,

— Plaintiff Vincent Nertavich, Jr. suffered catastrophic injuries when he fell 40 feet from a electric transmission pole that he was painting owned by defendant PPL. He sued defendant PPL and the manufacturer of the ladder he used to climb the pole, defendant Thomas & Betts Corporation. After an eleven day trial, the jury found in favor of the plaintiff and against defendant PPL in the amount of $4,613,150. The jury found plaintiff 49 percent causally negligent and defendant PPL 51 percent causally negligent. Defendant Thomas & Betts was found not liable. Defendant PPL makes this timely appeal.

Defendant PPL owns 90-foot-high, 10-foot-in circumference tubular steel electric transmission poles. Some of these poles need to be repainted from time to time to prevent structural decay. PPL contracted with QSC Corporation, plaintiff’s employer, to paint the poles. The contract called for work to begin in August 2007 and be completed by November 2007. It directed that “[a] 11 work shall be performed according to the attached PPL EU ‘Specification for the Maintenance Painting of Transmission Structures’ revision dated 8/3/07.”

That PPL specification document contained a variety of detailed requirements about the job. It prescribed each step how to paint the poles. The paint, a special type specified in the contract, would arrive at the worksite compounded and ready for use, could only be thinned with the approval of PPL’s field representative, and had to be mixed and stirred frequently. First, the poles had to be cleaned and dried. Tarps had to be laid out on the ground beneath the poles in all directions to catch debris. Before painting QSC workers were to clean and prepare the poles with solvents, hand tools, and power tools so that no loose rust, dirt, oil, or other material was on the pole. Second, the poles were to be painted:

Paint shall be applied by roller, brush, and/or mitt. When brushing is used, all brush marks and laps shall be concealed and joints between successive days’ work shall not be visible. All paint shall be applied without runs or sagging of the paint. Additional coats shall be applied when undercoats, stains, or other conditions show through the final coat of paint, until the paint film is of uniform finish, color, appearance and thickness.

The workmen were to be extremely careful to paint all hard to reach surfaces. They could only use spray paint with approval of PPL’s authorized representative, and even then the representative could require the workers to demonstrate the painting method first. All of the workmen’s tools were subject to PPL’s authorized representative’s inspection, and the representative could require tools removed and replaced.

Third, once a coat of paint had been applied, it had to be allowed to “dry firm and hard before the succeeding coat is applied,” and each successive coat had to be a lighter shade than the last. Fourth, the paint materials had to be labeled with a full description and manufacturer information, and then stored in a separate structure. Fifth, the PPL authorized representative was to walk around the work area with the workmen and dispose of any paint containers, rages, debris, or refuse. Finally, the PPL authorized representative would measure the film thickness of the paint, ensure that it was uniform, and direct the workers to repaint or make spot repairs to any areas that were defaced or not uniform. The contract required that “[t]he periphery of the existing coating surrounding spot repair areas shall be feathered-edged for a distance of approximately 1” to provide for a smooth coating transition.”

While the workmen painted, power might continue to surge through the lines attached to the poles. As a result, the workers had to take “extra precautions when painting near insulators, making sure that paint does not splatter or drip onto insulators,” and the workers would not be allowed to wipe paint off the insulators. Also, PPL maintained control over the worksite: PPL supplied an “authorized representative,” also known as a contract field representative, for the project who was “the daily source of contact...in the areas of any question, materials, quality assurance, general safety, work procedures and schedule.” PPL had to go to the power substations and set the circuit breakers so that the workers would not be electrocuted. PPL employed a “green tag” procedure where the PPL representative would not allow workers on the poles until the lines were set.

Pursuant to PPL’s internal guidelines for safety and health procedures, the PPL field representative had the duty to “monitor the contractor to ensure that safety requirements of the contract are adhered to. The PPL contract filed representative will, as warranted by the nature of the work being performed and the contractor’s record of performance, observe the contractor’s performance.” The PPL field representative had the authority to “stop the contractor’s work for severe or repeated safety violations,” and “if the PPL Field Representative observes an unsafe work practice involving a direct threat or imminent danger, the field Representative immediately will direct that all work stop[.]”

PPL’s poles dated from the 1980s. The poles were custom ordered from defendant Thomas & Betts, with PPL establishing their specifications. The pole specifications included the dimensions of the pole, its paint, and the number and type of attachment points. PPL was aware that the poles would need repainting every 15 to 20 years. PPL did not specify that the poles should have any vangs welded onto them so that a worker’s lanyard or other suspension device could attach to the pole. The only attachment points on the poles, beside those at the top of the poles and on the arms for electrical wires, were a series of brackets running up one side of the pole. These brackets served as attachment points for removable single-rail ladders, known as “chicken” ladders. They are known as “chicken” ladders because they are unstable and wobble, frightening workers. There was no place for a worker climbing the pole to attach a lanyard or lifeline, except for somewhere on these ladders. There were two types of ladders. Both consisted of a central metal beam with metal pegs protruding out to the left and right. The first, termed a working ladder, had parallel pegs on each side to give the appearance of a straight bar across the rail so that a worker could stand level. The second type, the climbing ladder, had alternating pegs staggered at regular intervals up each side of the rail. The ladders came from the manufacturer with two bolts that attach through their bottom to secure them to the pole. QSC, not having another means of lifting its workers into place to paint the pole, asked PPL for the removable ladders. PPL provided QSC with the ladders, but not with the bolts.

On September 23, 2007, plaintiff Vincent Nertavich was 40 feet off the ground working on a PPL pole. More experienced workers were painting the pole above him. He was standing on one of the climbing ladders. QSC provided plaintiff with a pole belt, a body harness, and two lanyards. One lanyard was to attach to the pole belt, and the other was to attach to the body harness to serve as a lifeline. Plaintiff used only the pole belt and one lanyard. He testified at trial that on previous jobs he had used only the pole belt and one lanyard, and that no one told him he had to use the harness as well. The one lanyard he used was coated in dried paint. Plaintiff tied the paint-coated lanyard to the ladder above him, a working ladder, by looping it around a left peg. Plaintiff, holding on to the lanyard, leaned out to his left to slap paint on a hard-to-reach spot on the back of the pole. The ladder above him to which he was tied off wobbled several inches to the left. The lanyard unlooped. Plaintiff fell 40 feet, landing on his feet The fall fractured his feet, dislocated his ankles, fractured his knee, his right femur, his right hip, and burst several of his lumbar spine disks. Plaintiff lost 3 inches in height as his body literally compacted from the fall.

PPL’s field representative for the QSC job was Wayne Grim. At trial, Grim testified that the QSC job was his first as a PPL field representative for a pole painting operation. He admitted that he was familiar with PPL’s guidelines for safety and health procedures. He knew that it was his duty to monitor the work and ensure it was performed in a safe manner. He understood that if something unsafe occurred, he had a duty to stop the work until the unsafe condition was corrected. He conceded that part of his job was to monitor that the workers wore appropriate fall protection, and to stop work if they did not. However, Grim had no experience in climbing a transmission pole, and no training on PPL’s own internal requirements of fall protection, which included a requirement that a locking hook be used to attach a lanyard to an anchor point.

Grim was at the worksite every day. He observed the QSC workers while they were on the poles. On multiple occasions Grim observed plaintiff working on the poles. He observed the fall protection plaintiff used, how plaintiff was tied on to the pole, and how plaintiff used only one lanyard to secure himself. Grim did not think anything was improper. He testified that he did not think there was anything wrong with a worker using only one lanyard, and that he would not stop work because of it. He did not think anything was wrong with a worker only wrapping their lanyard around one of the pegs of the ladders, and would not stop work because of it. Grim had never discussed use of safety equipment with the workers before work began. Over the course of days of observation, Grim never told plaintiff that he was doing anything improper.

Another PPL employee, Gallus Wukitsch, also testified at trial. He was a senior engineer in 2007, and PPL’s contract administrator for the QSC job. Wukitsch was asked about PPL’s control over the job through contractual provisions. He was questioned about the contract provision that required the workers to take extra precaution when painting around a insulator, and prohibiting them from wiping paint off the insulators:

Q: That was, in other words, telling QSC how, in one manner, how they were going to be doing their work around the insulators on the poles; is that right?
A: Yes.

He was asked about the contract provision requiring workers to lay out tarps before work began to catch debris:

Q: [Tjhat’s how you’re telling them in the contract how they’re supposed to do this part of the work[?]
A: Yes.

He was also asked about the contract provision mandating how spot repairs had to be feathered-edged:

Q: So this was basically telling QSC, in one respect, how they were to do the actual touch-up work, spot painting work; is that right?
A: Yes.

Mr. Wukitsch also testified about PPL’s role in ensuring job site safety. He admitted that under the terms of the contract and PPL’s internal operating documents, PPL retained a duly to monitor the work during the existence of the contract. He testified that Mr. Grim, as PPL’s field representative, had the duty to observe the workers, and ensure that they were wearing full body harnesses and were properly tying off to the pole. Further, Mr. Grim had the duty to ensure safety meetings were held every day at the worksite. Mr. Grim had the ability and duty to shut down the work if he saw that it was not being done safely. Failure of a worker to wear a safety harness while climbing was a severe safety violation. Mr. Grim was responsible for halting operations if he saw a worker without a harness. Mr. Wukitsch was the PPL manager who put in a request for a field representative for the QSC job, and set out the specifications. In his specifications he did not request someone trained in pole climbing, or who knew anything about tying off. Nonetheless, even though Mr. Grim had no specific training, Mr. Wukitsch believed that Mr. Grim was qualified to fulfill his duties.

At trial plaintiff called Stephen Estrin as an expert on occupational safety and health. Estrin testified that PPL had a duty under the Occupational Safety and Health Act (OSHA) to monitor QSC worker safety at the worksite. Estrin opined that PPL breached that duty in various respects. First, the standard industry practice under OSHA prohibits the use of single-rail ladders. PPL should have gone to the worksite and stopped any work being done on the single-rail ladders. At the very least, PPL should have provided QSC with the bolts to secure the ladders to the pole. Second, it was inappropriate under OSHA and PPL’s internal safety and health guidelines for workers to attach their lanyards to the ladders. PPL should have ensured that there was a proper way for the workers to be able to tie off and proper anchorage points on the pole. Third, PPL had a duty under OSHA and good construction site practice to ensure that the workers were using proper fall protection. The duty obliged the PPL representative to examine plaintiff’s equipment before plaintiff climbed the pole. Fourth, OSHA and industry practice required PPL to provide a competent person on the job site to evaluate worker safety. In Estrin’s opinion, Mr. Grim was not a competent person for the job. Mr. Grim had no experience and inadequate training in fall protection procedure; he did not even know what safety concerns to look for.

Plaintiff also presented an electrical consulting engineer, Gregory Booth, as an expert in engineering design and project management. Booth testified that PPL had a duty under industry practices, the National Electrical Safety Code (NESC), and PPL’s own internal safety operating guidelines, to monitor worker safety. An electric utility company, which has thousands or even hundreds of thousands of utility poles which its employees climb every day, necessarily knows the best and most appropriate way to protect workers climbing the poles. Because PPL kept the power lines energized, PPL did not allow QSC to use aerial lifts or other poles that would come in proximity to the power lines, leaving QSC with only the option to use the single-rail ladders. PPL should have held a pre-work conference with the QSC workers to tell them about NESC standards for fall protection, and the specific dangers of working on the ladders. Instead, PPL field representative Mr. Grim, held what Booth considered an incomplete pre-work conference, where Mr. Grim only discussed the green-tag procedure with the workers but made no mention of fall protection.

According to Booth, Mr. Grim asPPLfieldrepresentative had overlapping safety obligations with QSC’s supervisor at the worksite, including the obligation to stop work whenever he observed a worker endangering their life or the life of others. Under industry practice, the NESC, or PPL’s internal safety guidelines, a worker tying off by wrapping his lanyard on the peg of a ladder constitutes a serious safety violation that the field representative should recognize warrants the stop of work. Mr. Grim, not having been properly trained in climbing poles and having no experience, was not qualified to serve as PPL’s contract field representative. In Booth’s opinion, PPL breached its standard of care merely by having Mr. Grim serve as contract field representative on the job.

PPL claims multiple errors it believes entitle it alternately to judgment notwithstanding the verdict or a new trial. Judgment notwithstanding the verdict, or JNOV, is the court directing verdict in favor of the losing party despite a verdict to the contrary. JNOV is an extreme remedy which is properly entered by the trial court only where, viewing the evidence in the light most favorable to the verdict winner, the facts are so clear that no two reasonable minds could disagree that the verdict was improper, or the movant is entitled to judgment as a matter of law.

Grant of a new trial is an extraordinary remedy. The decision of whether to grant a new trial rests in the discretion of the trial judge. The trial court follows a two-step process: the trial court must decide whether one or more mistakes occurred at trial, and then it must determine whether any mistake was a sufficient basis for granting a new trial. A new trial should only be granted when “the juiy’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail,” or the moving party demonstrates to the trial court that he or she has suffered prejudice from a legal mistake. A new trial is not warranted merely because some irregularity occurred during the trial or another trial judge would have ruled differently.

Many of the claimed errors overlap.

A. PPL’s Negligence was Properly Submitted to and Determined by the Jury under the Retained Control Exception to Landowner Liability.

PPL argues that it cannot be held liable for plaintiff’s injuries. Particularly PPL relies on Pennsylvania Supreme Court’s decision in Beil v. Telesis Construction. Inc. to categorically argue that as the hirer of an independent contractor to perform work on its property, PPL owed plaintiff no duty.

Generally, a landowner who employs an independent contractor owes only the duty of reasonable care to have the property in a safe condition for work, and to warn of known defects, but is not otherwise vicariously liable for injuries to the independent contractor’s employees.

Section 414 of the Restatement (Second) of Torts provides the retained control exception to the no-duty rule:

One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.

The comments to §414 further outline the exception. Comment (a) explains “[i]f the employer of an independent contractor retains control over the operative detail of doing any part of the work, he is subject to liability for the negligence of the employees of the contractor engaged thereinf.]” This is so even if the owner retains only limited control over the work:

The employer may, however, retain a control less than that which is necessary to subject him to liability as master. He may retain only the power to direct the order in which the work shall be done, or to forbid its being done in a manner likely to be dangerous to himself or others. Such a supervisory control may not subject him to liability under the principles of Agency, but he may be liable under the rule stated in this Section unless he exercises his supervisory control with reasonable care so as to prevent the work which he has ordered to be done from causing injury to others.

Comment (c), however, explains that the owner must exercise at least some modicum of control over the way and means that the contractor performs:

In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods, of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.

The Pennsylvania Supreme Court applied the retained control exception to determine a landowner was liable for a contractor’s injuries in Byrd v. Merwin. The contractor testified at trial that the owner controlled when and where work began and the order in which the work was to be completed, and that the contractor was not in complete control of the project. Rather, the owner exercised some command. The court found that those facts aligned with the descriptions of control described in comment (a) to §414, in particular the owner’s control over the order in which work was performed.

In two subsequent cases, the Supreme Court determined that the retained control exception did not apply. In Farabaugh v. Pennsylvania Turnpike Commission, the landowner showed a safety videotape to the contractor’s workers before work began, and hired a construction manager to supervise safety issues for the project and conduct safety inspections. But the landowner completely turned over control of the worksite to the contractor in all other respects, and there was no evidence that the landowner exerted any control over how the work was to be performed. The court noted that it would be against public policy to impose liability on the landowner merely for hiring a manager to supervise safety and showing a safety video to the contractor’s workers because it would discourage safety measures, and held that the plaintiff had not presented sufficient evidence to prove that the landowner “retained] control over [the contractor’s] means and methods for purposes of a Section 414 analysis.” However, the Court held that the manager could potentially be liable to the plaintiff because it took an active role in ensuring worksite safety.

The Supreme Court most recently addressed the retained control exception in Beil. There the landowner was a college that hired a contractor to renovate its engineering building, including roofing, siding, and masonry work. The contractor, in turn, hired subcontractors to perform the work. The plaintiff was a worker injured when he fell from scaffolding while carrying materials to the roof without wearing any fall protection. In its agreement with the contractor, the landowner retained the ability to set limitations on use of the property, and made the contractor agree to comply with any safety direction or rules reasonably issued by the landowner to prevent injuries. The landowner also had a project manager who controlled worker access to the engineering building because part of it was being used by students. The landowner did not allow smoking in the building, and did not allow the workers to take breaks in front of the building after a worker made offensive comments to a female student. However, there was no evidence that the landowner exercised any control, contractually or in fact, over how the workers performed the masonry and roofing work.

The court stated that the control required to meet §414’s retained control exception can be demonstrated through contractual provisions that give the landowner control over the manner, method, and operative details of the work, or can be demonstrated by actual control over the work. However, “the question of the quantum of retained control necessary to make the owner of the premises liable is a question for the jury.” The evidence of control in this case fell into two broad categories: safety and access. Regarding safety, the court held that a landowner who retains some control over safety, like the landowner college, has not exercised sufficient control. However, the court did not “rule out the possibility that, in certain circumstances not present in this matter, a property owner’s actions concerning safety matters could constitute sufficient control over the manner in which work is done such that the owner is subject to liability.” Turning to access, the court examined both comment (a) and (c) to §414 to determine that for access to be evidence of control, it had to impact the operational detail or manner in which work was completed. The landowner college’s regulation of access to the engineering building was tangential to the work of the contractors and was not qualitatively sufficient.

Here, PPL through its contract and specifications told QSC workers what paint to use, and every step of how to use it. It told the workers to lay out tarps beneath the poles, to mix and stir the paint, to clean and dry the poles, to paint the poles with rollers, brushes, and mitts, to let the paint dry hard and firm, then to apply successive coats, to clean up the work area by disposing of paint containers and debris, and finally to make spot repairs-in a specific feather-edged manner-when directed to do so by PPL. PPL’s own contract manager testified at trial that these provisions told QSC workers how to perform the operative details of their job.

The contract also called for safety provisions to be followed, and established the position of the PPL contract field representative. PPL’s contract field representative, Mr. Grim, was at the worksite every day, and knew that it was his duty to stop work if he saw an unsafe condition, even if he was not knowledgeable enough to know when such a condition existed. Mr. Grim was supposed to hold safety meetings every day for the workers, even though he did not. He had the duty to inspect worker fall protection.

Also, PPL exerted great control over access to the property. Through its green tag procedure, PPL retained control of the property, and significantly limited worker access to the poles because of the live electric wires. Workers could not get on the poles until Mr. Grim let them. Also, the available ways to scale the poles were essentially limited to the single-rail ladders because the poles were energized, and there were no other attachment points on the poles to rig other climbing devices. QSC had to request these ladders from PPL to climb the poles.

These facts, especially the way in which PPL dictated how QSC workers were to perform their painting work coupled with evidence of control over safety and access, evince the quality of control that the Supreme Court found lacking in Beil. The qualitative element being present, it was for the jury to determine if the quantity of control necessary to make PPL liable existed. There were ample facts in evidence, including the contract and testimony from PPL’s own employees, for the jury to determine that the necessary quantum of control existed as they did.

B. The Jury Charge, Based on the Standard Instructions, Accurately Provided the Jury with the Law Necessary to Determine the Factual Issues Presented.

Defendant PPL claims multiple errors in the jury charge related to negligence on the basis that it inaccurately conveyed the principles of Beil. The court charged the jury as follows:

This is a negligence case. And the first question is: was PPL Electric Utilities Corporation negligent? And it has a place for you to check yes or no. The legal term negligence, otherwise known as carelessness, is the absence of ordinary care that a reasonably prudent person would use under the circumstances presented. Negligent conduct may consist of an act or or a failure to act when there is a duty to do something....Now, you’ve heard two weeks, I guess, of testimony about PPL and [QSC]. And that’s what we call an independent contractor. PPL hired [QSC], an independent contractor. The employer of an independent contractor — and all that means is PPL — is not usually responsible for any negligent conduct of the contractor or its employees. The exception is where the employer, PPL, retains control over any part of the work. Also, you should know that a person or a corporation, PPL, who undertakes to provide services necessary for the safety of somebody else, assumes a duty to use reasonable care in performing those services.

While acknowledging that it constitutes the standard jury instruction, defendant PPL argues that the portion of the charge explaining the retained control exception, and the sentence of the charge that explains that an individual who provides services necessary for the safety of another assumes a duty to perform those services non-negligently are erroneous. Instead, defendant PPL contends that the court should have given its proposed jury charges, consisting of five verbose and repetitive pages containing multiple citations to and quotes taken from Beil}

A court’s primary duty when charging a jury is to clarify the issues so that the jury may understand the questions to be resolved. The court is free to formulate and express the charge in any way the court sees fit so long as it fairly and accurately relates the law to the jury. The court may be guided by standard jury instructions, but is not required to use any prescribed language. The jury charge is taken as a whole, against the backdrop of all the evidence. The court may refuse to give a requested point for charge if the point has already been adequately and sufficiently covered by another general or specific instruction. Also, the court need not give a point for charge that requires modification, qualification, or refinement because it is not the duty of the court to restate points that are inadequate as stated. Because the purpose of the jury charge is to clarify issues for the jury, it is axiomatic that a court does not need to give a confusing proposed point for charge.

Here, the court gave the jury, almost verbatim, the suggested standard civil jury charge related to the retained control exception. The court instructed the jury that the retained control exception applied if PPL “retained control over any part of the work.” Section 414 of the Restatement (Second) of Torts provides that the exception applies if the landowner “retains the control of any part of the work.” Comment (a) to §414 explains the exception applies if the landowner “retains control over the operative detail of doing any part of the work.” The Supreme Court in Beil relied on both §414 and comment (a) as accurate statements of the law. The Supreme Court’s statement in Beil that the exception applies when the “owner retains control over the manner in which the work is done” is substantially the same as saying that the owner must control any part of the work. This court used language calculated to accurately and concisely convey to the jury the main concept behind §414. The five pages worth of instructions that defendant PPL argues should have been given would have only served to confuse the issues.

Likewise, defendant mistakenly argues that the court erred by giving the portion of the charge explaining that one that provides a service for another’s safety must do so with reasonable care. It has long been Pennsylvania law that one who assumes a duty, for whatever reason, and negligently performs that duty so that another is harmed is liable for the harm. Even if a defendant does not initially owe the plaintiff any legal duty to perform an act, the defendant will be liable if he acts negligently. Evidence was presented at trial that PPL had assumed responsibility for QSC worker safety contractually and actually. It was for the jury to determine if PPL breached its duty.

Thus, the court’s jury charge was sufficient and proper.

C. The Court Properly Admitted Evidence of Defendant PPL’s Negligence, Including Industry Standards and the Specifications PPL Dictated for its Poles.

Defendant PPL asserts a bevy of alleged errors related to evidence of its negligence. PPL argues that the court impermissibly allowed evidence of PPL’s OSHA and NESC violations, that QSC did not properly train and institute safety precautions for its workers, Mr. Grim’s lack of knowledge and experience regarding safety issues, the design specifications of the pole and the ladders, and alternative methods of climbing the poles. PPL contends this evidence was irrelevant because PPL did not owe plaintiff any duty.

A claim of negligence consists of a duty, a breach of that duty, causation, and damages. A plaintiff may proceed against a defendant on a theory of of direct liability, vicarious liability, or both. A defendant landowner may be vicariously liable for the negligent, acts or omissions of a contractor under the retained control exception, and may also be directly liable for his own negligent acts. A defendant may have a preexisting legal duty, or may assume a duty to act with reasonable care by providing services to protect people or their property. A defendant can take on duties to supervise safety oversight by contract or practice and be held liable for negligent performance. Generally, industry standards and regulations are relevant and admissible on the issue of negligence.

Here, plaintiff presented evidence that defendant PPL was directly negligent. PPL’s internal operating procedures required that its contract field supervisor to monitor worksite safety. PPL’s field contract supervisor Mr. Grim knew that he had duties to monitor the worksite. He knew he had to stop work if he saw an unsafe condition. He knew that he was supposed to ensure that the workers wore proper fall protection. PPL’s contract administrator Mr. Wukitsch confirmed Mr. Grim’s duties to monitor safety, and added that Mr. Grim was supposed to make sure there were daily safety meetings.

PPL set out specifications for its poles that ensured limited access and tie-off points for anyone attempting to scale the pole, even while knowing that the pole would have to be re-painted. The only way to climb the pole was by the single-rail ladders, and the only place for a worker to tie-off is on the ladder itself. Having created this condition, PPL then did not give QSC the bolts to secure the ladders to the pole. Had these bolts been used, the ladders would not have shifted several inches to each side as the worker moved. PPL field representative Mr. Grim should have been aware of the dangers posed by the job to the QSC workers, and admittedly had a duty to ensure the workers knew of the dangers and were prepared to face them. However, neither before awarding the contract nor after work commenced did PPL discern QSC workers’ knowledge, training, or preparedness on how to climb and tie-off on its pole.

Plaintiff’s experts testified that under industry practice, which included OSHA and the NÉSC, defendant PPL breached its duties. PPL should not have allowed QSC workers to tie off to the single-rail ladders, and at the very least should have given QSC the bolt to secure the ladders. PPL had a duty to provide a competent field representative. But, they provided Mr. Grim, who knew so little about climbing a transmission pole that he did not even know plaintiff was tied-off incorrectly. Mr. Grim did not inspect QSC worker equipment, or ensure safety meetings were held.

This evidence ofPPL’s direct negligence was admissible to prove PPL breached a duty owed to plaintiff.

D. The Court Properly Found that Assumption of the Risk did not Apply Where There was no Evidence that the Plaintiff Appreciated a Risk and Incurred it Anyway.

Defendant PPL contends that the court should have granted it judgment on the basis that plaintiff assumed the risk of his fall, or alternatively put the issue to the jury.

Assumption of the risk is an affirmative defense that arises when a plaintiff apprehends a danger, and then consciously decides to tempt fate and face the danger. It is a judicially created doctrine developed during the industrial revolution to relieve employers from bearing the full cost that necessarily will accrue when workers must perform dangerous jobs. Assumption of the risk is essentially a form of estoppel in the context of tort, barring the plaintiff from recoveiy. Over time, the policies underlying the doctrine have eroded, and assumption of the risk has all but been abolished and replaced with comparative negligence except in specialized circumstances. Those circumstances are very narrow. A defendant must establish beyond question the two components to the doctrine: the plaintiff must have perceived the risk, and then the plaintiff must have voluntarily faced the risk. To be voluntary, the circumstances must show that the plaintiff manifested a willingness to accept the risk, over and above mere contributory negligence, so that the plaintiff has gone so far as to abandon his right to complain.

Assumption of the risk is a question for the court to decide and not a matter for the jury. The court can only decide that the plaintiff has assumed the risk where it is beyond question that the plaintiff voluntarily and knowingly faced an obvious danger. The court must decide that reasonable minds could not differ as to whether the plaintiff assumed the risk. If the court does not as a matter of law decide that the plaintiff assumed the risk, then the jury is only to be given a comparative negligence charge.

The doctrine has been severely limited except for the most egregious situations where the plaintiff has clearly taken on the risk. The seminal example of assumption of the risk is Carrender v. Fitterer, where our Supreme Court determined that a woman who knowingly chose to park her car in an icy area of a parking lot, even though there were other areas free of ice and snow, assumed the risk when she slipped and fell on the ice, and was barred from recoveiy. However, a plaintiff will not be considered to have assumed the risk merely because he has a dangerous job. In Staub v. Toy Factory. Inc., a worker was injured while installing roof insulation when he stepped in a hole that he knew existed but did not know its exact location. The Superior Court held assumption of the risk was inapplicable. Specifically, the Superior Court held that in the context of workplace negligence with a dangerous job, the worker’s “conduct is better judged by its reasonableness, that is, by negligence principles. A trial court should not, therefore, decide the issue as one of duty or lack thereof; instead, the issue should go to the jury as one of comparative negligence.”

Here, plaintiff testified that he performed his job in the same way that he always had previously, and that he did not know that he was tied off improperly. He testified that he did not know the danger that he was in. He did not know that he needed to wear a harness. His job, which included reaching out and slapping paint on to the back of a pole, was dangerous. But there was no evidence presented that plaintiff subjectively expected that his lanyard would slip, and yet faced the risk anyway. Defendant did not prove that, as a matter of law, plaintiff assumed the risk. The case properly went to the jury for determination based on comparative negligence principles. Thus, the court properly denied defendant’s request that the jury be given an assumption of the risk charge.

For the reasons set forth above, post-verdict motions were denied.

      . Contract for transmission structure painting between PPL Electric Utilities Corp. and QSC Painting, Aug. 30,2007, pg. 1 (Ex. P-83).

      . Attachment A to contract for transmission structure painting between PPL Electric Utilities Corp. and QSC Painting, Aug. 30, 2007, ¶1 (Ex. P-83).

      . Specification for the maintenance painting of transmission structures, Aug. 3,2007, appended to contract for transmission structure painting between PPL Electric Utilities Corp. and QSC Painting, Aug. 30,2007, §§8.2, 8.3, 8.4 (Ex. P-83).

      . Specification for the maintenance painting of transmission structures §8.5 (Ex. P-83).

      . Attachment A to contract for transmission structure painting between PPL Electric Utilities Corp. and QSC Painting, Aug. 30, 2007, ¶11 (Ex. P-83).

      . Specification for the maintenance painting of transmission structures §6.0 (Ex. P-83).

      . Specification for the maintenance painting of transmission structures §8.6 (Ex. P-83).

      . Specification for the maintenance painting of transmission structures §8.7 (Ex. P-83).

      . Specification for the maintenance painting of transmission structures §8.10 (Ex. P-83).

      . Specification for the maintenance painting of transmission structures §9.0 (Ex. P-83).

      . Specification for the maintenance painting of transmission structures §8.8 (Ex. P-83).

      . Specification for the maintenance painting of transmission structures §13.0 (Ex. P-83).

      . Specification for the maintenance painting of transmission structures §14.0 (Ex. P-83).

      . Specification for the maintenance painting of transmission structures §15.0 (Ex. P-83).

      . Attachment A ¶17 (Ex. P-83).

      . Attachment A ¶4 (Ex. P-83).

      . Attachment A ¶2 (Ex. P-83).

      . Attachment A ¶6 (Ex. P-83).

      . N.T. 02/29/12, pg. 14 line 2-pg. 15 line 5.

      . N.T. 02/29/12, pg. 15 line 25-pg. 16 line 5.

      . General Safety & Health Procedures Section 19, “Contractor Safety,” revised January 2005, pg. 8, §7.2 (Ex. P-68).

      . Id.

      . N.T. 02/29/12, pg. 17, lines 6-8.

      . N.T. 02/29/12, pg. 21 line 5-pg. 22 line 15.

      . N.T. 02/29/12, pg. 22 line 16-pg. 24 line 4.

      . N.T. 02/29/12, pg. 19, lines 6-14.

      . A vang is a welded-on piece of metal to which a worker can attach a lanyard or other fall protection. N.T. 03/29/12, pg. 29 line 25 — pg. 30 line 3.

      . N.T. 02/29/12, pg. 29 line 24-pg. 30 line 19.

      . N.T. 02/29/12, pg. 26 line 10-pg. 27 line 21.

      . N.T. 02/29/12, pg. 26 line 18-pg. 27 line 7.

      . N.T. 03/07/12, pg. 169 line 2-pg. 170 line 17.

      . N.T. 02/29/12, pg. 29, lines 13-18.

      . N.T. 02/29/12, pg. 36 line 3-pg. 37 line 9. See also Ex. P-52.

      . N.T. 02/29/12, pg. 37 line 24-pg. 38 line 6; N.T. 03/02/12, pg. 40, lines 8-12.

       N.T. 02/29/12, pg. 33, lines 7-20.

      . N.T. 03/07/12, pg. 160, line 4.

      . N.T. 02/29/12, pg. 159, lines 12-20.

      . N.T. 03/01/12, pg. 24, lines 2-5.

      . N.T. 03/01/12, pg. 33, lines 3-22.

      . N.T. 03/01/12, pg. 73 line 24-pg. 75 line 8.

      . N.T. 03/01/12, pg. 57 line 22-pg. 61 line 20.

      . N.T. 03/01/12, pg. 65 line 24-pg. 71 line 11.

      . N.T. 03/01/12, pg. 75 line 6-pg. 76 line 9.

      . N.T. 03/01/12, pg. 80 line 16-pg. 84 line 25.

      . N.T. 02/29/12, pg. 154, lines 7-13.

      . N.T. 02/29/12, pg. 154 line 23-pg. 155 line 3.

      . N.T. 02/29/12, pg. 158, lines 9-14.

      . N.T. 02/29/12, pg. 158, lines 15-25.

      . N.T. 02/29/12, pg. 159, line 25-pg. 160 line 9.

      . N.T. 02/29/12, pg. 154 line 14-pg. 156 line 5.

      . N.T. 02/29/12, pg. 157, lines 12-13.

      . N.T. 02/29/12, pg. 159, lines 2-7.

      . N.T. 02/29/12, pg. 167, lines 16-22. He observed plaintiff with great enough detail to remember an occasion on which he saw plaintiff smoking a cigarette while on the pole. N.T. 02/29/12, pg. 184 line 21 — pg. 185 line 9.

      . N.T. 02/29/12, pg. 167 line 23-pg. 168 line 4.

      . N.T. 02/29/12, pg. 168, lines 5-14.

      . N.T. 02/29/12, pg. 169 line 2-pg. 170 line 19.

      . N.T. 02/29/12, pg. 172 line 23-pg. 173 line 8.

      . N.T. 02/29/12, pg. 168, lines 5-14.

      . N.T. 02/29/12, pg. 79, lines 13-15.

      . N.T. 02/29/12, pg. 52, lines 7-11.

      . N.T. 02/29/12, pg. 54 line 23-pg. 55 line 2.

      . N.T. 02/29/12, pg. 56, lines 9-12.

      . N.T. 02/29/12, pg. 70, lines 18-22.

      . N.T. 02/29/12, pg. 78, lines 4-24.

      . N.T. 02/29/12, pg. 79, lines 10-19.

      . N.T. 02/29/12, pg. 73 line 22-pg. 74 line 7.

      . N.T. 02/29/12, pg. 81, line 8-12.

      . N.T. 02/29/12, pg. 82, lines 5-12.

      LÑ.T. 02/29/12, pg. 83 line 13-pg. 84 line 9.

      . N.T. 02/29/12, pg. 85 line 24-pg. 86 line 16.

      . N.T. 03/06/12, pg. 48 line 20-pg. 55 line 23.

      . N.T. 03/06/12, pg. 119, lines 19-20.

      . N.T. 03/06/12, pg. 70, lines 10-13.

      . N.T. 03/06/12, pg. 120, lines 21-23.

      . N.T. 03/06/12, pg. 97, lines 10-16.

      . N.T. 03/06/12, pg. 116, lines 16-18.

      . N.T. 03/06/12, pg. 120 line 24-pg. 121 line 2.

      . N.T. 03/06/12, pg. 143, lines 22-25.

      . N.T. 03/06/12, pg. 143, lines 2-8.

      N.T. 03/06/12, pg. 122, lines 19-22.

      . N.T. 03/06/12, pg. 123, lines 5-11.

      . N.T. 03/06/12, pg. 123, lines 14-22.

      . N.T. 03/01/12, pg. 200, lines 11-18.

      . N.T. 03/01/12, pg. 249 line 20-pg. 250 line 10.

      . N.T. 03/01/12, pg. 261, lines 3-14.

      . N.T. 03/02/12, pg. 18 line 13-pg. 19 line 18.

       N.T. 03/02/12, pg. 21 line 20-pg. 22 line 14.

      . N.T. 03/01/12, pg. 255 line 19-pg. 256 line 9.

      . N.T. 03/01/12, pg. 232, lines 17-22.

      . N.T. 03/02/12, pg. 29, lines 5-16.

      . Green Valley Dry Cleaners. Inc. v. Westmoreland Cnty. Indus. Dev. Corp., 861 A.2d 1013, 1016 (Pa. Commw. Ct. 2004).

      . Rohm & Haas Co. v Cont’l Cas. Co., 732 A.2d 1236, 1248 (Pa. Super. Ct 1999) aff'd, 566 Pa. 464, 781 A.2d 1172(2001).

      . Moure v. Raeuchle, 604 A.2d 1003, 1007 (Pa. 1992).

      . Criswell v. King. 834 A.2d 505, 512 (Pa. 2003).

      . Armbruster v. Horowitz, 813 A.2d 698, 702 (Pa. 2002).

      . Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1122 (Pa. 2000).

      . Renna v. Schadt, 64 A.3d 658,670 (Pa. Super. Ct. 2013) (internal citations omitted).

      . Harman, 756 A.2d at 1122.

      . Id.

      . 11 A.3d 456 (Pa. 2011).

      . Calender v. Allegheney County Sanitary Auth., 222 A.2d 461, 463 (Pa. Super. Ct. 1966).

      . Restatement (Second) of Torts §414 (1965).

      . Restatement (Second) of Torts §414 com. (a).

      . Id.

      . Restatement (Second) of Torts §414 com. (c).

      . 317 A.2d 280 (Pa. 1974).

        . id at 282.

      . Farabaugh v. Pennsylvania Turnpike Com’n, 911 A.2d 1264, 1271 (Pa. 2006).

      . Id. at 1275. See also LaChance v. Michael Baker Corp., 869 A.2d 1054 (Pa. Commw. Ct. 2005) (holding that retained control exception did not apply where landowner contractually retained and exercised right to safety inspections, but did not exercise any other control over the manner or operational details of the project, because contract language was standard and it was against public policy to impose liability on landowner for addressing safety in the contract).

      . Id. at 1282.

      . 11 A.3d456 (Pa. 2011).

      . Id. at 462.

      . Id. at 465.

      . Id. at 467.

      . Id. See also Hargrove v. Frommeyer & Co., 323 A.2d 300, 304 (Pa. Super. Ct. 1974)(holding that evidence of landowner supervising design and construction of building sufficient ot submit issue of control to the jury).

      . Id. at 469.

      . Id. at 469 n. 4.

      . Id. at 471.

      . Plaintiff’s claim survived a motion for summary judgment, a motion for compulsory nonsuit, and a motion for directed verdict, all of which were based on the argument that the claim could not survive under the Beil analysis.

      . Defendant alleges the same defects in the jury verdict sheet.

       N.T. 03/08/12,pg. 296 line21-pg. 298 line23.

      . These were defendants proposed charges 19 through 23.

      . Com. v. Beach, 264 A.2d 712, 714 (Pa. 1970).

      . Butler v. Kiwi, S.A., 604A.2d 270, 273 (Pa. Super. Ct. 1992).

      . Hawthorne v. Dravo Corp., Keystone Div., 508 A.2d 298, 303 (Pa. Super. Ct. 1986).

      . Buckley v. Exodus Transit & Stroage Corp., 744 A.2d 298, 305 (Pa. Super. Ct. 1999).

      . Id. at 306.

        . Id

      . See Ouinby v. Plumsteadville Family Practice, Inc., 907 A.2d 1061, 1069-70 (Pa. 2006) (“A charge will be found adequate unless the issues are not made clear to the jury or the jury was palpably misled by what the trial judge said or unless there is an omission in the charge which amounts to a fundamental error.”).

      . See SSJI 6.140 (2003).

      . Beil, 11 A.3dat466.

      . For this proposition, at oral argument defendant relied upon dicta in Fulmer v. Duquesne Light Co., 543 A.2d 1100, 1105 (Pa. Super. Ct. 1988), that a landowner need not take every precaution to prevent injury to a contractor’s employees. However, that case says nothing that negates a landowner’s duty to act with reasonable care if the landowner does in fact endeavor to take a precaution to prevent worker injuries.

      . Feld v. Merriam, 485 A.2d 742, 746 (Pa. 1984).

      . Pascarella v. Kelley, 105 A.2d 70, 73 (Pa. 1954).

      . Grossman v. Barke, 868 A.2d 561, 566 (Pa. Super. Ct. 2005).

      . Scampone v. Highland Park Care Ctr., LLC, 57 A.3d 582, 597 (Pa. 2012).

      . Chenot v. A.P Green Servs., Inc., 895 A.2d 55, 63 n.6 (Pa. Super. Ct. 2006).

      . Feld, 485 A.2d at 746.

      . See Health v. Huth Enigineers, Inc., 420 A.2d 758, 759 (Pa. Super. Ct. 1980).

      . Birt v. Firstenergy Corp., 891 A.2d 1281, 1290 (Pa. Super. Ct. 2006).

        Bullman v. Giuntoli, 761 A.2d 566, 570 (Pa. Super. Ct. 2000).

      . Staub v. Toy Factory. Inc., 749 A.2d 522, 527-28 (Pa. Super. Ct. 2000).

      . Bullman, 761 A.2d at 570.

        . Staub, 749 A.2d at 528.

      . Bullman, 761 A.2d at 571.

      . Barrett v. Fredavid Builders, Inc., 685 A.2d 129, 131 (Pa. Super. Ct. 1996).

      . Staub, 749 A.2d at 529.

      . Struble v. Valley Forge Military Academy, 665 A.2d 4, 8 (Pa. Super. Ct. 1995). Defendant cites to Longv. Norriton Hydraulics, 662 A.2d 1089 (Pa. Super. Ct. 1995), to argue that Pennsylvania law is unsettled regarding whether assumption of the risk is an issue for the judge or the jury. The Long opinion does not hold, as Defendant implies, that assumption of the risk is a jury matter. The Superior Court in Long found that the trial court improperly granted summary judgment on the basis of assumption of the risk because it was not beyond question that plaintiff knowingly and voluntarily faced an obvious danger, and that the case should proceed to trial. 662 A.2d at 1091. The Superior Court did not, however, state that the issue of assumption of the risk should go to the jury. In Struble, an opinion issued approximately four months after Long and authored by the same judge, the Superior Court explicitly stated “that the question of whether a litigant has assumed the risk is a question of law and not a matter for jury determination,” and further made clear that “once the trial court decides that assumption of the risk is not the basis for a compulsory nonsuit, the jury is to be charged only on comparative negligence.” Struble, 665 A.2d at 8.

      . Long v. Norriton Hydraulics, 662 A.2d 1089, 1091 (Pa. Super. Ct. 1995).

      . Staub, 749 A.2d at 529-30.

      . Struble, 665 A.2d at 8.

      . 469 A.2d 120, 125 (Pa. 1983).

      . Staub v. Toy Fatcory. Inc., 749 A.2d 522 (Pa. Super. Ct. 2000).

      . Id. at 530 (internal quotes and citation omitted).


author: ZULICK, J.,

text:
    America’s Wholesale Lender v. Ryan

      June 19, 2013

      Christopher S. Brown, for plaintiff

      Roseann E. Weisblatt, for defendants

   ZULICK, J.,

— This case arises out of a mortgage entered into by Harold Mooney (Mooney) and America’s Wholesale Lender (AWL). The Property mortgaged was owned by Mooney and Kathleen Ryan (Ryan). AWL seeks to have this court reform the mortgage to encumber Ryan’s interest in the property as well as Mooney’s Ryan opposes this request. Both parties have filed motions for summary judgment, and argued their positions to the court on June 3, 2013.

DISCUSSION

“Summary judgment is only appropriate in cases where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Gleason v. Borough of Moosic, 609 Pa. 353, 361 (2011). A material fact is one that directly affects the outcome of the case. Bartlett v. Bradford Publ’g, Inc., 885 A.2d 562, 568 (Pa. Super. 2008). A court must view the evidence in the light most favorable to the nonmoving party, and all doubts as to a genuine issue of material fact must be resolved against the moving party. Gleason, 609 Pa. at 361 (citing Fine v. Checcio, 582 Pa. 253 (2005)). When the moving party satisfies its initial burden, the nonmoving party may not simply rest upon the allegations or denials contained in the pleadings, instead the nonmoving party must show there is a genuine issue for trial. Preferred Fire Prot., Inc. v. Joseph Davis, Inc., 984 A.2d 20, 24 (Pa. Super. 2008). A nonmoving party’s failure to adduce sufficient evidences on an issue essential to the case establishes that no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. Ario v. Ingram Micro, Inc, 965 A.2d 1194, 1207 n.15 (Pa. 2009).

The relevant facts in the present matter are not in dispute. Mooney and Ryan took title to the mortgaged property (property) in August of 2000 as joint tenants with rights of survivorship. Ryan and Mooney were co-mortgagors on the purchase money mortgage loan, which was issued by Chase Manhattan Bank. While Ryan was unemployed at the time of the 2000 mortgage, she signed the mortgage along with Mooney.

In 2004, Mooney applied to AWL for a mortgage to refinance the existing mortgage on the property. AWL made the mortgage loan to Mooney in the amount of $93,750.00. AWL did not require Ryan to sign the 2004 note and mortgage. Ryan did sign the settlement statement, owner’s affidavit for title insurance and a document entitled “Disbursement Method for Proceeds.” She did not sign the mortgage, the note, or the closing instructions. These documents did not have signature lines for Ryan. The mortgage proceeds check was made out to both Mooney and Ryan. While there is a dispute as to how the proceeds were then used by the defendants, that is not a material issue, for reasons to be discussed. As there are no questions of material fact, the case is ripe for summary judgment.

The Pennsylvania Supreme Court considered the issue of mortgage reformation in Regions Mortg., Inc. v. Muthler, 889 A.2d 39 (Pa. 2005). In Regions, Joseph and Susan Muthler applied for a mortgage to CTX Mortgage Company. Both their names appeared on the mortgage documents as initially drafted, but before closing CTX unilaterally removed Susan Muthler’s name from the mortgage, and she did not sign the mortgage. Shortly thereafter, Joseph Muthler died. Susan Muthler asserted that she had taken the property (which was held as tenants by the entirety) free and clear of the mortgage. Regions, the successor in the mortgage to CTX, filed an action for quiet title.

These facts are almost identical to those in the present matter. In Regions, the supreme court did not allow a reformation of the mortgage. The court held:

when a mortgagee fails to property secure a loan, the equitable remedy of reformation is unavailable unless bad faith, accident, or mutual mistake can be shown, and in the case of unilateral mistake, the party against whom reformation is sought must be shown to have knowledge of the mistake sufficient to justify an inference of fraud or bad faith.

Regions, 889 A.2d at 42. Here, AWL has not made the requisite showings to justify this court reforming the mortgage to encumber Ryan’s interest. Ryan’s failure to sign the mortgage or the note was not an “accident” in the sense that there was no signature line for her on either document. AWL has also not shown, and does not appear to contend, that either defendant acted in bad faith in the execution of the 2004 mortgage.

AWL does contend that the mortgage should be reformed due to the mutual mistake of both the defendants and the mortgagee. AWL argues that the clear intent of both parties was for Mooney and Ryan to sign the mortgage and thereby preserve the joint tenancy ownership of the property.

However, this argument has been rejected by the supreme court in Regions. Regions made a similar argument, alleging that reformation was proper due to mutual mistake. The court stated:

A mutual mistake is “1. A mistake in which each party misunderstands the other’s intent.... 2.A mistake that is shared and relied on by both parties to a contract.” Black’s Law Dictionary 1023 (8th ed. 2004). Regarding the “mistakes” alleged here, there was no evidence that any party misunderstood the other’s intent. The mortgagee clearly understood the Muthlers’ intent, which was to obtain a mortgage to finance the purchase of a property to be held jointly by husband and wife. The Muthlers did not misunderstand the mortgagee’s intent; they merely followed instructions issued by CTX, and acquiesced to CTX’s decision to have Joseph alone execute the mortgage. Thus, none of the allegations satisfy the definition of “mutual mistake.”

Regions, 889 A.2d at 41.

The same logic prevents application of the mutual mistake doctrine here. Ryan and Mooney wished to refinance their mortgage. The mortgagee understood that this was their intent. Defendants signed the documents the mortgagee presented to them for signature. For reasons that are unclear, Ryan was not required to sign either the note or the mortgage. The mistake was therefore solely that of AWL. AWL has made no showing that Ryan knew of the mistake such that an inference of fraud or bad faith could be drawn against her. While AWL undoubtedly erred in failing to have Ryan sign the note and mortgage, “bad decisions are not mistakes that entitle one to reform legal obligations.” Id. at 42. Ryan cannot therefore be held accountable for AWL’s business practices.

AWL seeks to distinguish the present matter from Regions in that the property in Regions was held between the Muthlers as tenants by the entirety, whereas here the property was held as joint tenants with right of survivorship. AWL argues that in order for the joint tenancy to be severed by the 2004 mortgage, there must be sufficient showing that either joint tenant intended to sever one of the four unities comprising the joint tenancy. Plaintiff’s motion for summary judgment at 13. There is no dispute that upon purchase in 2000 defendants created a joint tenancy. “The essence of a JTWROS is the four unities: interest, title, time, and possession.” In re Estate of Quick, 905 A.2d 471, 474 (Pa. 2006). But joint tenancies can be broken. “A joint tenancy is severed when one or more of the four unities is destroyed.” Id. at 475. Such severance can be brought about by action of any of the joint tenants. Id. “Although a voluntary act on the part of one of the joint tenants is adequate to work a severance, that act must be of sufficient manifestation that the actor is unable to retreat from his position of creating a severance of the joint tenancy.”

Here, Mooney granted a mortgage to AWL on his interest in the property. In so doing, he destroyed one of the four unities that are at the heart of a joint tenancy, namely the unity of title. “Where fewer than all of the joint tenants [execute] a mortgage on the joint tenancy property, the mortgage [effectuated] a severance of the joint tenancy.” General Credit Co. v. Cleck, 609 A.2d 553, 557 (Pa. Super. 1992). Mooney, by granting a mortgage on the property, destroyed the joint tenancy and thereby created a tenancy in common. Mooney’s share of the tenancy in common will be subject to the mortgage. Ryan’s share will not.

Finally, AWL argues that Ryan has been unjustly enriched. AWL avers that the money loaned to Mooney was issued as a check to both Mooney and Ryan, and that a substantial part of said loan was used by defendants to pay off the 2000 mortgage. AWL further states that some of the residual amount of the loan was used to pay Ryan’s personal debts, though Ryan denies this to be the case. Ultimately, what the loan proceeds were used, and by whom, are immaterial.

In Pennsylvania, the doctrine of unjust enrichment is well defined.

The elements of unjust enrichment are benefits conferred on defendant by plaintiff, appreciation of such benefits by defendant, and acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value. Whether the doctrine applies depends on the unique factual circumstances of each case. In determining if the doctrine applies, we focus not on the intention of the parties, but rather on whether the defendant has been unjustly enriched.
Moreover, the most significant element of the doctrine 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.

Stoeckinger v. Presidential Financial Corp. of Delaware Valley, 948 A.2d 828 (Pa. Super. 2008) (emphasis added). Here, AWL now acknowledges that it erred in failing to have Ryan sign the 2004 mortgage. As discussed, supra, Ryan had no knowledge of the error, did not act in a fraudulent manner, or induce AWL’s error in bad faith. Further, while the check disbursing the loan funds was made out to both defendants, this was not required. As Mooney was the only signatory to the mortgage, he could have demanded the check be made out solely in his name, that he did not do so, or that he used his proceeds to pay Ryan’s portion of the 2000 mortgage and perhaps some of her personal expenses was his personal decision. It does not implicate defendant Ryan.

While it is no doubt unfortunate for AWL that their mortgage is only secured by Mooney’s interest in the property, there is nothing inherently unjust about such a result. Indeed, considering Ryan’s lack of involvement throughout the entire 2004 mortgage process (her name and signature is conspicuously absent from many of the documents in addition to the mortgage and note) it would be more unjust to encumber her interest in the property in a transaction to which she was not a full party. AWL did not property secure their loan, and therefore cannot seek recompense through unjust enrichment.

ORDER

And now, this 19th day of June, 2013, upon consideration of both parties’ cross motions for summary judgment, their respective briefs and arguments, it is ordered as follows:

1. Plaintiff’s motion for summary judgment is denied.

2. Defendant Kathleen M. Ryan’s motion for summary judgment is granted.

3. Judgment is entered in defendant Kathleen M. Ryan’s favor.