Wheeler, J. v. United States Steel ( 2022 )


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  • J-S15018-22
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    JASON WHEELER, ADMINISTRATOR     :   IN THE SUPERIOR COURT OF
    OF THE ESTATE OF JOHN M.         :        PENNSYLVANIA
    WHEELER, DECEASED                :
    :
    Appellant      :
    :
    :
    v.                  :
    :   No. 744 EDA 2021
    :
    BELDEN WIRE & CABLE COMPANY BF   :
    GOODRICH COMPANY BUCYRUS         :
    INTERNATIONAL BRAND              :
    INSULATION, INC. CBS             :
    CORPORATION, FORMERLY            :
    WESTINGHOUSE ELECTRIC CORP.      :
    CRANE COMPANY CROUSE HINDS       :
    N/K/A COOPER CROUSE-HIND         :
    EATON CORPORATION FERRO          :
    ENGINEERING FOSECO, INC.         :
    FOSTER WHEELER, LLC GENERAL      :
    ELECTRIC COMPANY GOODYEAR        :
    TIRE AND RUBBER COMPANY          :
    GRAYBAR ELECTRIC COMPANY, INC.   :
    GREENE, TWEEK & COMPANY GTE      :
    PRODUCTS OF CONNECTICUT          :
    CORPORATION HAJOCA               :
    CORPORATION HARNISCHFEGER        :
    CORP. C/O CT CORP. HONEYWELL     :
    CORPORATION A.O. SMITH           :
    CORPORATION INGERSOLL RAND &     :
    COMPANY J.H. FRANCE              :
    REFRACTORIES COMPANY LAMONS      :
    GASKETS METROPOLITAN LIFE        :
    INSURANCE COMPANY MINNESOTA      :
    MINING AND MANUFACTURING         :
    PECORA CORPORATION PNEUMP        :
    ABEX, LLC ROCK BESTOS COMPANY    :
    C/O U.S. CORPORATION COMPANY     :
    ROYAL ELECTRIC SUPPLY COMPANY    :
    SAGER CORPORATION ACCO CHAIN     :
    AND LIFTING SHEPARD NILES SID    :
    J-S15018-22
    HARVEY MID ATLANTIC, INC. SOS            :
    PRODUCTS COMPANY SQUARE D                :
    COMPANY SHEPARD NILES TEREX              :
    CORP USX CORPORATION WHITING             :
    INTERNATIONAL ALLEN BRADLEY              :
    COMPANY ALLEN SHERMAN HOFF               :
    ALLIED GLOVE CORPORATION                 :
    ATLANTIC CRANES BEAZER EAST              :
    (F/K/A KOPPERS) C/O THREE RIVERS         :
    MANAGEMENT                               :
    Appeal from the Order Entered March 26, 2021
    In the Court of Common Pleas of Philadelphia County
    Civil Division at July Term, 2016 No. 2344
    BEFORE: NICHOLS, J., MURRAY, J., and SULLIVAN, J.
    MEMORANDUM BY MURRAY, J.:                             FILED JUNE 23, 2022
    Jason Wheeler (Appellant), administrator of the Estate of John M.
    Wheeler (Mr. Wheeler), deceased, appeals from the order entering summary
    judgment in favor of Defendant/Appellee, United States Steel (USX), in this
    asbestos exposure action. We affirm.
    The trial court summarized the relevant facts and procedural history as
    follows:
    [Mr. Wheeler] worked as a millwright at the USX plant in Fairless
    Hills, Pennsylvania from January 1, 1967 to December 31, 1991.
    According to a coworker, when he first met Mr. Wheeler in 1972,
    they were both working 90 percent of the time in the sintering
    plant and 10 percent at the blast furnace at the Fairless Hills
    location. The coworker, Richard Funk, testified that [he believed]
    he and Mr. Wheeler were exposed to asbestos in tape, hoses
    wrapped in asbestos, gaskets, packing, braided steel rope
    wrapped with asbestos-impregnated rags and a bucket conveyor.
    Mr. Funk could recall the names of only three products that he
    testified contained asbestos: Garlock packing, Garlock gaskets
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    and Crane valves. He testified that he knew that the packing and
    gaskets contained asbestos because he “could see it.”
    Another coworker, Joseph Varano, testified that he saw Mr.
    Wheeler handle brake shoes at the Fairless Hills plant during the
    mid-1970s. Mr. Varano further testified that he believed the brake
    shoes contained asbestos because of the heat they had to
    withstand. He said that Mr. Wheeler was exposed to asbestos
    because as the brakes wore, they created a significant amount of
    dust.
    William McLean, a former employee of Crane, testified that he
    designed valves that incorporated packing material and gaskets
    that contained asbestos. He also testified that Crane sold packing
    material and gaskets that contained asbestos independent of the
    valves he designed. Clayton Jewitt, a retired Garlock employee,
    testified that company produced gaskets and packing material
    that contained asbestos.
    Trial Court Opinion, 7/15/21, at 1-3 (record citations and footnote omitted).
    On July 22, 2016, Mr. Wheeler filed the underlying complaint against 45
    defendants.1 In his complaint, Mr. Wheeler made the following allegations
    against USX:
    [Mr. Wheeler’s] work history is as follows:
    (a)    From 01/01/67 to 12/31/91 — [USX] (Fairless Hills,
    PA)
    ***
    [Mr. Wheeler] was exposed to asbestos at [Fairless Hills].
    ***
    ____________________________________________
    1With respect to the 44 non-USX defendants, Appellant settled some claims,
    and the trial court granted motions for summary judgment in others (which
    Appellant did not appeal). See Response to Rule to Show Cause, 7/8/21 at
    1-2 (unnumbered).
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    USX knew of the hazards of asbestos and failed to protect or warn
    [Mr. Wheeler] of the hazards as an employer should have done.
    Complaint, 7/22/16, at ¶¶ 6, 7, and 10(ah).           Mr. Wheeler claimed he
    developed lung cancer as a result of his exposure to asbestos. See id. ¶ 13.
    However, Mr. Wheeler also admitted he was a heavy smoker during the
    relevant period. See id. at ¶ 4. Mr. Wheeler died on November 24, 2016;
    his counsel did not depose Mr. Wheeler prior to his death.2 See Trial Court
    Opinion, 7/15/21, at 3 n.2; USX’s Brief at 2 n.1.
    Following the close of discovery, USX filed a motion for summary
    judgment; Appellant filed a response. In its motion, USX averred Appellant
    “failed to establish a prima facie case of negligence by failing to establish the
    existence of a duty or alleged breach on the part of [USX] and have not
    provided legally sufficient evidence of exposure to asbestos by Mr. Wheeler at
    [USX].” Motion for Summary Judgment, 9/15/20, at 2.
    On March 23, 2021, the trial court granted USX’s motion. Appellant filed
    a timely notice of appeal and both Appellant and the trial court complied with
    Pa.R.A.P. 1925. On August 13, 2021, Appellant requested remand to the trial
    court for the filing on an amended Rule 1925(b) statement. We granted the
    request on September 15, 2021. Appellant filed an amended Rule 1925(b)
    ____________________________________________
    2 On January 5, 2021, the trial court issued an order granting the motion to
    substitute Appellant as plaintiff. See Trial Court Opinion, 7/15/21, at 3 n.2.
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    statement, and on December 8, 2021, the trial court issued a supplemental
    opinion.
    Appellant presents the following issues for review:
    1. Did the [trial] court commit an error of law in holding that an
    employee was not a business invitee?
    2. Did the [trial] court commit an error of law by holding that
    [Appellant] had to prove specific asbestos product exposures at
    the USX workplace to hold USX liable?
    3. Did the [trial] court commit an error of law by sua sponte
    excluding some [of Appellant’s] documentary evidence as not
    authenticated?
    4. Did the [trial] court commit an error of law by requiring
    [Appellant’s] expert to use “magic words” in his report such as
    “standard of care” and “negligent”?
    Appellant’s Brief at 5 (reordered).
    Our standard of review is well-settled. This Court
    may disturb the order of the trial court only where it is established
    that the court committed an error of law or abused its discretion.
    As with all questions of law, our review is plenary.
    In evaluating the trial court’s decision to enter summary
    judgment, we focus on the legal standard articulated in the
    summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
    where there is no genuine issue of material fact and the moving
    party is entitled to relief as a matter of law, summary judgment
    may be entered. … Lastly, we will view the record in the light
    most favorable to the non-moving party, and all doubts as to the
    existence of a genuine issue of material fact must be resolved
    against the moving party.
    Thompson v. Ginkel, 
    95 A.3d 900
    , 904 (Pa. Super. 2014) (citation omitted).
    Because Appellant bases his allegations of negligence on USX’s status
    as a landowner, his claims cannot be analyzed under the standard set forth in
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    Eckenrod v. GAF Corp., 
    544 A.2d 50
    , 52 (Pa. Super. 1988), for the resolution
    of strict liability against an asbestos manufacturer.3     Gutteridge v. A.P.
    Green Services, Inc., 
    804 A.2d 643
    , 654 (Pa. Super. 2002) (“[I]t is readily
    apparent that [appellant’s] claims against Appellee based on its status as a
    landowner cannot be analyzed under the standard set forth in Eckenrod for
    the resolution of strict liability claims against an asbestos manufacturer.”). To
    recover damages in a negligence action, as opposed to obtaining recovery on
    a strict liability asbestos claim, a plaintiff must establish that a particular
    defendant’s negligence was the proximate cause of his or her injuries. 
    Id.
    Further, for premises liability to attach, Appellant must first establish
    that the defendant was a possessor of the site. Rudy v. A-Best Products
    Co., 
    870 A.2d 330
    , 333 (Pa. Super. 2005); Restatement (2d) of Torts, § 328E.
    Here, USX has not disputed it was the sole possessor of the land. See USX’s
    Brief at 19-32.
    The standard of care a possessor of land owes to one who enters upon
    the land depends upon whether the latter is a trespasser, licensee, or invitee.
    Gutteridge, 
    804 A.2d at 655
    . In his first issue, Appellant argues that “an
    employee is a business invitee of the employer.” Appellant’s Brief at 22; see
    ____________________________________________
    3 In its initial Rule 1925(a) opinion, the trial court erroneously analyzed this
    case under the Eckenrod standard. See Trial Court Opinion, 7/15/21, at 6-
    7. The error was harmless, as the court rectified the error and provided
    analysis under the common-law negligence standard in its supplemental Rule
    1925(a) opinion. Trial Court Opinion, 12/8/21, at 3-4.
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    also id. at 22-26.    However, Appellant subsequently abandons this claim,
    stating:
    Although [Appellant] argued in his Pa.R.A.P. 1925(b) statement
    that under [the Pennsylvania Supreme Court’s decision in Tooey
    v. AK Steel Corp., 
    81 A.3d 851
    , 855 (Pa. 2013)] an employee is
    a business invitee to whom the employer owes the “highest duty
    of care,” [Appellant] acknowledges that the Pennsylvania
    Supreme Court has not so held. Since the evidence is this case is
    more than enough to prove a prima facie case of ordinary
    negligence against employer USX, [Appellant] has concluded that
    this case is not an appropriate vehicle to argue the “highest duty”
    standard applied.
    
    Id.
     at 43 n.15. Accordingly, we need not address this issue further.
    In his second issue, Appellant challenges the trial court’s determination
    that he failed to establish “a prima facie case of negligence against defendant
    USX.” Id. at 38; see also id. at 38-52. We disagree.
    In Tooey, supra, our Supreme Court held:
    Employers, like any other entity not covered by the [Worker’s
    Compensation] Act, will be subject to traditional tort liability
    requiring a showing by the plaintiff of, inter alia,
    negligence on the part of the employer, and employers will
    retain all of their common law defenses. Plaintiffs, in turn,
    will bear the higher burden of proof in terms of causation
    and liability.
    Tooey, 81 A.3d at 865 (emphasis added). To make a prima facie case of
    negligence, Appellant must establish:     (1) duty; (2) breach of duty; (3) a
    causal connection between the breach of duty and injury; and (4) actual loss
    or damages that result from the breach. See Gutteridge, 
    804 A.2d at 654
    .
    Here, the trial court referenced its original opinion, stating:
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    Mr. Wheeler relied on improperly speculative testimony by two co-
    workers and an expert report that was devoid of any opinion
    regarding USX’s negligence. (See 1925(a) Opinion, §§ II.B-C).
    [Appellant] therefore failed to submit evidence of either general
    exposure to asbestos or exposure to specific asbestos products.
    Therefore, [Appellant] would not survive summary judgment
    under either the Eckenrod product liability standard or the Tooey
    negligence standard.
    Trial Court Opinion, 12/8/21, at 4.
    In its initial opinion, the trial court discussed the relevant law and
    evidence provided by Appellant as follows:
    It is hornbook law that the testimony of all witnesses must be
    based on personal knowledge. Pa.R.Evid. 602. Rule 701 of The
    Pennsylvania Rules of Evidence permits witnesses not testifying
    as experts to give opinions but only if those opinions are
    “rationally based on the witness’s perception” and “not based on
    scientific, technical, or other specialized knowledge[.]” Pa.R.Evid.
    701(a) and (c).
    Courts have regularly applied these principles in asbestos cases.
    See, e.g., Gibson v. Workers’ Comp. Appeal Bd (Armco
    Stainless & Alloy Prods.), 
    861 A.2d 938
    , 946 (Pa. 2004)
    (testimony of a co-worker who stated he had seen a substance he
    “believed” to be asbestos at the factory where he and the claimant
    had worked insufficient to establish asbestos existed in the
    workplace); Samarin v. GAF Corp., 
    571 A.2d 398
    , 403-404, 409
    (Pa. Super. 1989) (witness’s testimony regarding a material’s high
    heat application insufficient to support the conclusion that a
    product contained asbestos); Bushless v. GAF Corp., 
    585 A.2d 496
    , 503 (Pa. Super. 1990) (statement that a person knew a
    product contained asbestos from his years of experience and
    because of the product’s ability to withstand high temperature
    insufficient to create an issue of material fact that the product
    contained asbestos).
    The testimony in these cases contrasts with matters in which a
    coworker testified he knew a product contained asbestos because
    it was labeled as containing asbestos. See, e.g., Harahan v.
    AC&S, Inc., 
    816 A.2d 296
    , 298 (Pa. Super. 2003). It should be
    noted that neither Mr. Funk nor Mr. Varano gave any testimony
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    that they saw any product Mr. Wheeler worked with or around
    labeled as containing asbestos.
    ***
    In this case, neither one of Mr. Wheeler’s coworkers testified that
    they had personal knowledge of the presence of asbestos in the
    Fairless Hills plant at the time Mr. Wheeler worked there. Mr. Funk
    testified that he knew that the packing and gaskets at the plant
    contained asbestos because he “could see it.” (Funk Tr. at 158:16-
    20; 169:21-24.)         He provided no basis, however, for this
    testimony. Similarly, Mr. Varano testified that he “believed” the
    brake shoes at the plant contained asbestos because of the heat
    they had to withstand and because they created a significant
    amount of dust. (Varano Tr. at 46:5-47:22.) Again, he failed to
    present any foundation for this opinion. Under Gibson, Krauss
    [v. Trane, 
    104 A.3d 556
    , 568 (Pa. Super. 2014) (co-worker’s
    opinion based on his “knowledge and belief” that products
    decedent worked with contained asbestos was insufficient
    evidence to survive motion for summary judgment)], Samarin
    and Bushless, 
    supra,
     [trial c]ourt correctly determined that the
    proffered evidence was insufficient to create an issue of fact that
    Mr. Wheeler was exposed to asbestos at the Fairless Hills plant.
    Trial Court Opinion, 7/15/21, at 8-10 (footnote omitted).
    Thus, the trial court focused on causation, and found Appellant failed to
    prove a causal connection. The record and law supports the court’s conclusion
    that the testimony of Mr. Wheeler’s co-workers was not sufficient to survive
    summary judgment. See Samarin, 571 A.2d at 403-404, 409. Appellant’s
    second issue does not merit relief.
    In his third issue, Appellant claims the trial court, “erred by sua sponte
    excluding documentary evidence [Appellant] offered against USX without
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    providing [Appellant] an opportunity to respond.”4 Appellant’s Brief at 25;
    see also id. at 25-38. We disagree.
    Decisions regarding admissibility of evidence “are within the sound
    discretion of the trial court and will not be overturned absent an abuse of
    discretion or misapplication of law. In addition, for a ruling on evidence to
    constitute reversible error, it must have been harmful or prejudicial to the
    complaining party.” Phillips v. Lock, 
    86 A.3d 906
    , 920 (Pa. Super. 2014)
    (citation omitted). In opposing a motion for summary judgment, the party
    must identify “evidence in the record” showing a genuine dispute of material
    fact. See Pa.R.C.P. 1035.3. The Rules of Civil Procedure define “record” as
    pleadings, depositions, answers to interrogatories, admissions, affidavits, and
    ____________________________________________
    4 Appellant fails to identify the documents he believes were wrongly excluded.
    Appellant attached over 300 pages of exhibits to his response to USX’s motion
    for summary judgment. As the trial court correctly observed, many of the
    exhibits are illegible. Trial Court Opinion, 7/15/21, at 2 n.2. It is not this
    Court’s responsibility to comb through the record seeking the factual
    underpinnings of Appellant’s claim. Commonwealth v. Mulholland, 
    702 A.2d 1027
    , 1034 n.5 (Pa. 1997) (“In a record containing thousands of pages,
    this court will not search every page to substantiate a party’s incomplete
    argument”).
    Appellant also devotes four pages of argument on this issue to a claim that
    the trial court “erred in determining the USX documents were inauthentic.”
    Appellant’s Brief at 34; see also id. at 34-38. Appellant fails to identify when
    or where the trial court the unspecified documents to be “inauthentic.” We
    have not located any such finding. Also, in its opinions, the trial court indicates
    the documents were not properly authenticated, which is different from a
    finding that the documents “were inauthentic.” See Trial Court Opinion,
    7/15/21, at 2-3 n.1; Trial Court Opinion, 12/8/21, at 5-6.
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    signed expert witness reports.      Pa.R.C.P. 1035.1.     Pennsylvania Rule of
    Evidence 901 states:      “Unless stipulated, to satisfy the requirement of
    authenticating or identifying an item of evidence, the proponent must produce
    evidence sufficient to support a finding that the item is what the proponent
    claims it is.” Pa.R.E. 901(a). Thus, it was Appellant’s responsibility to ensure
    the documents he appended to his response were legible, properly verified,
    and authenticated.    The record reflects he did.    See Answer to Motion for
    Summary Judgment, 1/6/21, at Exhibits A-DD; Trial Court Opinion, 7/15/21,
    at 2-3 n.1.
    We have held that a trial court may exclude inadmissible evidence sua
    sponte.   In re R.T., 
    778 A.2d 670
    , 683 (Pa. Super. 2001) (affirming trial
    court’s sua sponte ruling that certain testimony was inadmissible hearsay).
    We have also upheld a trial court’s refusal to consider evidence raised in
    opposition to a motion for summary judgment when the evidence was
    unauthenticated, unsworn, or unverified.
    In Welsh v. National Railroad Passengers Corp., 
    154 A.3d 386
     (Pa.
    Super. 2017), the appellant challenged the trial court’s failure to consider
    several unsworn affidavits and unauthenticated photographs he submitted in
    response to appellee’s motion for summary judgment. Welsh, 154 A.3d at
    390, 395.     This Court affirmed the grant of summary judgment, and
    specifically upheld the trial court’s exclusion of the inadmissible evidence. Id.
    at 391, 396. With respect to the unsworn affidavits, we said:
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    Therefore, because the statements do not comply with the
    requirements to be considered an affidavit, and the rules do not
    allow consideration of signed statements, the trial court
    committed no abuse of discretion or error of law in refusing to
    consider them. [The appellant] is not entitled to relief on this
    issue.
    Id. at 391. As to the unauthenticated photographs, we observed:
    Additionally, the trial court correctly rejected the use of the scene
    photographs as being unauthenticated. The photographs were not
    found in the certified record prior to their attachment to [the
    appellant’s] response to the motion for summary judgment.
    Nothing in the response to the motion for summary judgment
    explains the provenance of the photos. Accordingly, the trial court
    did not err in rejecting them.
    Id. at 396.
    Likewise, in Botkin v. Metropolitan Life Ins. Co., 
    907 A.2d 641
     (Pa.
    Super. 2006), the trial court refused to consider evidence appended by the
    appellant in response to a motion for summary judgment, finding that some
    of the evidence was not properly verified, and deeming other proposed
    evidence to be inadmissible hearsay. Botkin, 
    907 A.2d at 644, 648
    . Again,
    we affirmed the grant of summary judgment.             We concluded, “absent
    verification … the answers to interrogatories create no dispute as to a material
    issue of fact in assessing the merits of granting Appellees’ motion for summary
    judgment.” 
    Id. at 648
     (citation omitted). We reaffirmed “that a motion for
    summary judgment cannot be supported or defeated by statements that
    include inadmissible hearsay evidence.” 
    Id. at 649
     (citation omitted). See
    also Conner v. Duffy, 
    652 A.2d 372
    , 374 (Pa. Super. 1994) (trial court
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    “properly excluded” unverified inadmissible evidence as “inappropriate for
    review on summary judgment.” (footnote omitted)).
    Here, the trial court stated, “the rules nowhere permit a responding
    party to rely on unauthenticated documents. …         The [trial c]ourt was not
    required to accept [Appellant’s] unauthenticated documents, regardless of
    whether USX objected to the documents or not.”5             Trial Court Opinion,
    12/8/21, at 5 (citations omitted). Upon review, the record supports the trial
    court’s finding that the documents in question were not authenticated.
    Therefore, we discern no abuse of discretion or error of law in the trial court’s
    decision to exclude them from consideration in deciding the motion for
    summary judgment. See Welsh, at 396. Appellant’s third issue does not
    merit relief.
    In his fourth and final issue, Appellant maintains the trial court erred in
    failing to credit the report of his expert, Dr. Arthur Frank, because Dr. Frank
    did not use “‘magic words’ such as ‘standard of care’ or ‘negligent’ in his
    report.” Appellant’s Brief at 52. In in the body of his argument, however,
    Appellant abandons this claim, admitting that the trial court rejected Dr.
    ____________________________________________
    5 Appellant argues the documents were admissible as “ancient” documents
    pursuant to Pa.R.E. 901(b)(8).      Again, Appellant fails to identify the
    documents. Also, even he had identified the documents, the claim is waived
    because Appellant raised it for the first time in his amended Rule 1925(b)
    statement. Cabot Oil and Gas Corp. v. Speer, 
    241 A.3d 1191
    , 1196 (Pa.
    Super. 2020) (appellant cannot raise issues for first time in Rule 1925(b)
    statement); see also Amended Rule 1925(b) Statement, 9/21/21, at 2; Trial
    Court Opinion, 12/8/21, at 5-6.
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    Frank’s report because it failed to discuss “USX’s knowledge of asbestos at its
    facilities.”   Id. at 54 (citation omitted).        Appellant offers alternative
    arguments, including that USX knew or should have known of the hazards of
    asbestos because the Pennsylvania Legislature included it in the Occupational
    Disease Act of 1939, 77 P.S. § 1201. Id. at 54. Appellant also maintains the
    trial court “ignores the lengthy discussion of the state of the art in Dr. Frank’s
    affidavit.” Id. at 55 (citation omitted). Lastly, Appellant contends there “was
    no need for Dr. Frank to break down Mr. Wheeler’s asbestos exposure into
    component parts to be compared with the whole exposure because USX was
    responsible for the whole exposure.”           Id. at 56-57 (footnote omitted).
    Appellant waived these arguments.
    Pa.R.A.P. 1925(b) provides that a judge entering an order giving
    rise to a notice of appeal “may enter an order directing the
    appellant to file of record in the trial court and serve on the judge
    a concise statement of the errors complained of on appeal [ ].”
    Rule 1925 also states that “[i]ssues not included in the Statement
    and/or not raised in accordance with the provisions of this
    paragraph (b)(4) are waived.” Pa.R.A.P. 1925(b)(4)(vii). In
    Commonwealth v. Lord, 
    553 Pa. 415
    , 
    719 A.2d 306
     (1998), our
    Supreme Court held that “from this date forward, in order to
    preserve their claims for appellate review, [a]ppellants must
    comply whenever the trial court orders them to file a Statement
    of Matters Complained of on Appeal pursuant to Rule 1925. Any
    issues not raised in a 1925(b) statement will be deemed waived.”
    Lord, 
    719 A.2d at 309
    . This Court has held that [o]ur Supreme
    Court intended the holding in Lord to operate as a bright-line rule,
    such that failure to comply with the minimal requirements of
    Pa.R.A.P. 1925(b) will result in automatic waiver of the issues
    raised.
    U.S. Bank, N.A. v. Hua, 
    193 A.3d 994
    , 996-97 (Pa. Super. 2018) (some
    citations omitted).
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    J-S15018-22
    While Appellant advanced several theories in his amended Rule 1925(b)
    statement as to why the trial court should have found that Dr. Frank’s report
    sufficiently linked his lung cancer to exposure at USX, they are not the theories
    Appellant advances in his appellate brief. See Amended Pa.R.A.P. 1925(b)
    Statement, 9/21/21, at 4-5; Appellant’s Brief at 52-57. Consequently, the
    trial court did not address them. See Supplemental Opinion, 12/8/21, at 6-
    7. We therefore conclude Appellant waived his fourth issue.6
    For the reasons discussed above, the trial court neither abused its
    discretion nor committed an error of law in granting USX’s motion for
    summary judgment. Accordingly, we affirm.
    Order affirmed.
    Judge Nichols and Judge Sullivan concur in the result.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 6/23/2022
    ____________________________________________
    6Appellant further waived these arguments because they “are not included in
    [Appellant’s] statement of the question involved or fairly suggested by it.”
    See Appellant’s Brief at 5; see also Pa.R.A.P. 2116(a).
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