Neidert, Z. v. Charlie, A.

J-A11024-16
2016 Pa. Super. 138
ZACHARY NEIDERT IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ALBERT CHARLIE, III
Appellee No. 1903 EDA 2015
Appeal from the Order Entered June 11, 2015
In the Court of Common Pleas of Lehigh County
Civil Division at No(s): 2014-C-2423
ZACHARY NEIDERT IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ALBERT CHARLIE, III
Appellee No. 2841 EDA 2015
Appeal from the Judgment Entered November 13, 2015
In the Court of Common Pleas of Lehigh County
Civil Division at No(s): 2014-C-2423
BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*
OPINION BY MUNDY, J.: FILED JUNE 29, 2016
Appellant, Zachary Neidert, appeals from the June 11, 2015 order
granting the motion for compulsory non-suit made by Appellee, Albert
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*
Former Justice specially assigned to the Superior Court.
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Charlie, III, and the subsequent November 13, 2015 judgment entered in
Appellee’s favor. After careful review, we dismiss the appeal at 1903 EDA
2015 and affirm the judgment in the appeal at 2841 EDA 2015.
The trial court summarized the relevant factual history of this case as
follows.
On August 21, 2012, while working as an
employee of Riley’s Pub, located at 4505 Main
Street, Egypt, Lehigh County, Pennsylvania,
[Appellant] was injured from using a “door in the
floor” of the building owned by [Appellee], who was
also [Appellant]’s boss and is the sole owner of the
stock in the business entity, Brooke Derek, Inc.,
which is the business that operates Riley’s Pub.
[Appellant] pursued his case for damages
against [Appellee] under the theory that [Appellee]
is not entitled to the immunity traditionally granted
to co-employees by the Workers’ Compensation Act
because he stood in a dual capacity with respect to
the building and business operation and that, as the
building’s owner, he owed a separate duty to
[Appellant] with respect to building conditions and
safety. The parties do not dispute that [Appellant]
was acting in the course and scope of his
employment at the time of the incident or that
[Appellant] applied for and received worker’s
compensation benefits, including a settlement
payment from Brooke Derek, Inc.
Trial Court Opinion, 9/10/15, at 2.
On July 25, 2014, Appellant filed a complaint, alleging negligence on
the part of Appellee when Appellant was injured as a result of a bar patron
falling through a trap door when Appellant was using it. Appellant’s
Complaint, 7/25/14, at ¶¶ 8-11. Appellee filed an answer with new matter
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on September 17, 2014, to which Appellant filed his response on October 8,
2014. Appellee filed a motion for summary judgment on March 17, 2015,
which the trial court denied on April 30, 2015. The case proceeded to trial
June 9, 2015. On June 11, 2015, Appellee made an oral motion for a
compulsory nonsuit, which the trial court granted. N.T., 6/9/15, at 223,
242.1 Appellant filed a timely post-trial motion on June 22, 2015 to remove
the nonsuit, as well as for a new trial.2 Appellant filed a supplemental post-
trial motion on June 23, 2015. On June 26, 2015, Appellant filed a notice of
appeal, which was docketed in this Court at 1903 EDA 2015. On July 20,
2015, Appellee filed an application to quash Appellant’s appeal, as the trial
court had not yet resolved his post-trial motions.
Meanwhile, on September 10, 2015, the trial court denied Appellant’s
post-trial motions. On September 17, 2015, Appellant filed a second notice
of appeal, which was docketed in this Court at 2841 EDA 2015. On
November 10, 2015, this Court entered an order directing Appellant to
praecipe the trial court prothonotary to enter judgment within 10 days.
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1
There is only one transcript for the trial in the certified record. Therefore,
for convenience, we label the notes of testimony as “6/9/15” even though
the transcript spans from June 9 through June 11, 2015.
2
We observe that the tenth day fell on Sunday, June 21, 2015. When
computing a filing period, “[if] the last day of any such period shall fall on
Saturday or Sunday … such day shall be omitted from the computation.” 1
Pa.C.S.A. § 1908. Therefore, the tenth day for Appellant to file a timely
post-trial motion was on Monday, June 22, 2015. As a result, we deem his
post-trial motion timely filed.
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Appellant timely complied with our order on November 13, 2015.
Thereafter, on December 28, 2015, in light of Appellant’s compliance, this
Court entered another order denying Appellee’s application to quash, and
ordered the two appeals consolidated.3 See generally Superior Court
Order, 12/28/15 at 1; Pa.R.A.P. 513.
On appeal, Appellant raises the following two issues for our review.
A. Whether the trial court committed an abuse of
discretion and/or error of law in failing to
provide Appellant with the benefit of all
favorable testimony and every reasonable
inference of fact regarding the establishment
of an independent cause of action against
[Appellee], as a landlord, separate and apart
from any duty Appellee may have had as an
employee of Brooke Derek, Inc.?
B. Did the [trial] court commit an abuse of
discretion and/or error of law in failing to
follow the “law of the case”, in which the [trial]
court, albeit a different judge, had already
ruled that the very same evidence as was
presented at trial, created an issue for the jury
to decide?
Appellant’s Brief at 3.
We begin by noting our well-settled standard of review.
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3
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925. We further note that Appellant’s appeal properly
lies from the entry of judgment. See Billig v. Skvarla, 853 A.2d 1042,
1048 (Pa. Super. 2004) (stating, “in a case where nonsuit was entered, the
appeal properly lies from the judgment entered after denial of a motion to
remove nonsuit[]”). Therefore, as Appellant’s appeal at 1903 EDA 2015 was
premature and duplicative of his appeal at 2841 EDA 2015, we dismiss the
appeal at 1903 EDA 2015.
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An order denying a motion to remove a
compulsory nonsuit will be reversed on appeal
only for an abuse of discretion or error of law.
A trial court’s entry of compulsory nonsuit is
proper where the plaintiff has not introduced
sufficient evidence to establish the necessary
elements to maintain a cause of action, and it
is the duty of the trial court to make a
determination prior to submission of the case
to a jury. In making this determination the
plaintiff must be given the benefit of every fact
and all reasonable inferences arising from the
evidence and all conflicts in evidence must be
resolved in plaintiff’s favor.
Alfonsi v. Huntington Hosp., Inc., 798 A.2d 216,
218 (Pa. Super. 2002). “Additionally, a compulsory
nonsuit is valid only in a clear case where the facts
and circumstances lead to one conclusion—the
absence of liability.” Harvilla v. Delcamp, 555
A.2d 763, 764 (Pa. 1989).
Allen-Myland, Inc. v. Garmin Int’l, Inc., --- A.3d ---, 2016 WL 3068393,
at *11 (Pa. Super. 2016) (parallel citations omitted).
In his first issue, Appellant argues that the trial court erred when it
granted Appellee’s motion for a compulsory nonsuit on the theory that he
could not establish a cause of action under the dual capacity doctrine. The
Workers Compensation Act generally bars all common law suits against an
employer, because the Act is the exclusive remedy for injuries sustained
when an individual is acting within the scope of his employment. Soto v.
Nabisco, Inc., 32 A.3d 787, 790 (Pa. Super. 2011) (citation omitted),
appeal denied, 50 A.3d 126 (Pa. 2012); see also generally 77 P.S.
§ 481(a).
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However, Pennsylvania courts have recognized a “dual capacity”
exception to this bar, which this Court has described in the following terms.
The “dual capacity” doctrine provides:
Under this doctrine, an employer normally
shielded from tort liability by the exclusive
remedy principle may become liable in tort to
his own employee if he occupies, in addition to
his capacity as employer, a second capacity
that confers on him obligations independent of
those imposed on him as an employer.
Callender v. Goodyear Tire and Rubber Co., 564
A.2d 180, 185 (Pa. Super. 1989) (quoting 2A Larson,
Workmen’s Compensation Law, § 72.80, at 14–112
(1976)). Generally, “the Pennsylvania Superior
Court has taken an unfavorable view of the dual
capacity doctrine.” Van Doren v. Coe Press
Equipment Corp., 592 F. Supp. 2d 776, 799 (E.D.
Pa. 2008) (citing Heimbach v. Heimbach, 584 A.2d
1008 (Pa. Super. 1991); Callender, supra).
The Pennsylvania Supreme Court has applied the
“dual capacity” doctrine in only one case. Tatrai v.
Presbyterian University Hospital, 439 A.2d 1162
(Pa. 1982). That case involved a hospital employee
who became ill while at work. Because there was no
doctor on duty at Employee Health Services, the
employee’s supervisor instructed the employee to go
to the general emergency room of the hospital for
medical care. While on the x-ray table in the
hospital emergency room, the employee was injured
after the foot stand broke loose; and she fell to the
floor. The Supreme Court reasoned that the
employee, at the time of her injury in the general
hospital emergency room, was in the same position
as any other member of the public receiving medical
treatment because the emergency room was open to
the general public. Therefore, the Court held that
the hospital owed the employee the same duty it
owed the general members of the public who came
to the hospital emergency room for medical care.
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Thus, the hospital was not immune under the WCA
from suit for the injuries the employee sustained in
the general hospital emergency room, where the
hospital held itself out to the public as a health care
provider; the Court said:
There is no reason to distinguish [the
employee] from any other member of the
public injured during the course of treatment.
The risk of injury which [the employee]
suffered was a risk to which any member of
the general public receiving like treatment
would have been subjected. The occurrence of
the injury was not made more likely by the fact
of her employment.
Id. at 1166.
Soto, supra at 791-792 (parallel citations omitted).
In this case, the trial court concluded that Appellant could not meet
the dual capacity exception based on the following rationale.
At the trial in the case at hand, [Appellant]
simply failed to introduce enough evidence to prove
that his claim fell within the narrow confines of the
dual capacity exception to immunity. [Appellant]’s
response to this issue was to focus only on the fact
that [Appellee] owned the building. The fallacy in
this position is that it is nearly impossible to separate
[Appellee]’s involvement as co-employee/boss of
[Appellant] from his role as building owner. The
facts offered in [Appellant]’s case in-chief illustrate
this impossibility.
[Appellee] was the only shareholder of Brooke
Derek, Inc., the only officer, and the only person
who would act for the company. Indeed, [Appellant]
described [Appellee] as the one that would get
things done around the bar. Those things included
signing checks, setting prices, buying new equipment
and completing repairs when necessary. [Appellee]
did all of these things [and] was the one that owned
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the building. Moreover, [Appellee] hired [Appellant]
to work at Riley’s. [Appellant] was introduced to the
“door in the floor” by [Appellee] while both were at
work. Finally, [Appellee] developed safety
instructions and a procedure for how to access the
basement through the door in the floor that all of the
employees were supposed to follow. [Appellant] was
instructed on these procedures. In summary,
[Appellee] was in ultimate, overall control of the bar
operation and the building at the same time.
The evidence presented during [Appellant]’s
case in[-]chief was not simply that the door was
dangerous but also that the nature of [Appellee]’s
business operations or decisions he made as the
proprietor of the business were a substantial
contributing factor. For example, [Appellant]
claimed that [Appellee] failed to open an alternative
other path that existed on the first floor of the
building, that his instructions to employees to block
the public side of the door with barstools were
inadequate and that the business contained
distracting visual materials, like a television, popcorn
machine, and advertisements which tend to divert
attention from the door in the floor.
Each of these arguments implicates things
[Appellee] did or did not do as a business proprietor,
not as [an] owner of the building or the landlord and
the law is crystal clear that [Appellee] is immune
from suit for such claims. It was impossible to ask
the jury to consider the liability of [Appellee] as
building owner based upon alleged architectural
shortcomings of the door, but at the same time
expect the jury to ignore theories of negligence that
[Appellant] introduced, but for which [Appellee] is
immune. Practically speaking, recognition of
[Appellant]’s case would automatically expose
[Appellee] to both workers’ compensation claims and
liability suits every time there is an employee injury-
incident arising from any condition on the premises.
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Trial Court Opinion, 9/10/15, at 6-7 (some internal quotations marks and
citations omitted).
After careful review of the certified record, we conclude Appellant is
not entitled to relief. As the trial court points out, it was not contested at
trial that Appellee was the only corporate officer. N.T., 6/9/15, at 184.
Appellant testified that he was hired to work at Riley’s Pub by Appellee and
that Appellee “was the person who would get things done around the bar”
and “was ultimately in control of things” at the Pub. Id. at 106, 107.
Appellant also admitted that while in his capacity of managing the Pub,
Appellee showed Appellant the trap door around the time he began working
at the Pub. Id. at 109. Appellee also provided Appellant safety instructions
regarding the trap door. Id. at 183. Appellant acknowledged receiving
these instructions. Id. at 109-110.
Our Supreme Court has explained that the dual capacity exception is a
narrow one.
[I]t is this clear that the focus of the “dual capacity”
exception is on the circumstances in which the
worker’s injury occurs. But no such exception can
exist where, as in the matters now before us, the
employee’s compensable injury occurred while he
was actually engaged in the performance of his job.
Heath v. Church’s Fried Chicken, Inc., 546 A.2d 1120, 1121 (Pa. 1988)
(emphasis in original), quoting Lewis v. Sch. Dist. of Phila., 538 A.2d 862,
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869 (Pa. 1988).4 As noted above, in Tatrai, our Supreme Court held the
dual capacity exception applied because, “the [hospital] employee, at the
time of her injury in the general hospital emergency room, was in the same
position as any other member of the public receiving medical treatment
because the emergency room was open to the general public.” Tatrai,
supra at 1165. Our Supreme Court noted that the plaintiff’s injury was “an
event totally extraneous to the employment scheme.” Id. Here, there is no
dispute that Appellant’s injury occurred while he was engaged in the
performance of his job, which is not “extraneous to the employment
scheme.” Id. Based on these considerations, we conclude the trial court did
not abuse its discretion when it granted Appellee’s motion for a compulsory
nonsuit. See Allen-Myland, Inc., supra.
In his second issue, Appellant avers that the trial court incorrectly
applied the law of the case doctrine. Appellant’s Brief at 25. Specifically,
Appellant argues that once the trial court denied Appellee’s motion for
summary judgment on the dual capacity issue, a different judge of the same
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4
We reject Appellant’s reliance on Fern v. Ussler, 630 A.2d 896 (Pa. Super.
1993), appeal granted, 652 A.2d 1326 (Pa. 1994). Fern was a three-judge
panel decision of this Court in which one judge concurred in the result only,
and the third judge filed a dissenting opinion. As such, Fern has no
precedential value. Although, our Supreme Court purportedly granted
allocatur on December 13, 1994, we have not uncovered any decision from
our Supreme Court in that case.
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trial court was barred from granting Appellee’s motion for a compulsory
nonsuit on the same grounds. Id. at 26.
This Court has previously explained the law of the case doctrine as
follows.
The law of the case doctrine refers to a
family of rules which embody the concept
that a court involved in the later phases
of a litigated matter should not reopen
questions decided by another judge of
that same court or by a higher court in
the earlier phases of the matter…. The
various rules which make up the law of
the case doctrine serve not only to
promote the goal of judicial economy …
but also operate (1) to protect the
settled expectations of the parties; (2) to
insure uniformity of decisions; (3) to
maintain consistency during the course
of a single case; (4) to effectuate the
proper and streamlined administration of
justice; and (5) to bring litigation to an
end.
Commonwealth v. McCandless, 880 A.2d
1262, 1267 (Pa. Super. 2005), appeal
dismissed as improvidently granted, 933 A.2d
650 ([Pa.] 2007) (quoting Commonwealth v.
Starr, 664 A.2d 1326, 1331 ([Pa.] 1995)).
Thus, under the doctrine of the law of the case,
when an appellate court has considered
and decided a question submitted to it
upon appeal, it will not, upon a
subsequent appeal on another phase of
the case, reverse its previous ruling even
though convinced it was erroneous. This
rule has been adopted and frequently
applied in our own State. It is not,
however, inflexible. It does not have the
finality of the doctrine of res judicata.
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“The prior ruling may have been followed
as the law of the case but there is a
difference between such adherence and
res judicata; one directs discretion, and
the other supercedes [sic] it and compels
judgment. In other words, in one it is a
question of power, in the other of
submission.” The rule of the “law of the
case” is one largely of convenience and
public policy, both of which are served by
stability in judicial decisions, and it must
be accommodated to the needs of justice
by the discriminating exercise of judicial
power.
[Id.] at 1268 … (quoting Benson v. Benson,
624 A.2d 644, 647 ([Pa. Super.] 1993)).
Commonwealth v. Gacobano, 65 A.3d 416, 419-
420 (Pa. Super. 2013) (parallel citations omitted).
Commonwealth v. Schultz, 116 A.3d 1116, 1122-1123 (Pa. Super. 2015).
In this case, the trial court considered the dual capacity issue in the
context of a motion for summary judgment, denied the same, and then
considered the issue anew in Appellee’s motion for a compulsory nonsuit.
This Court has held that the law of the case doctrine does not apply in
certain procedural postures.
Where the motions differ in kind, as preliminary
objections differ from motions for judgment on the
pleadings, which differ from motions for summary
judgment, a judge ruling on a later motion is not
precluded from granting relief although another
judge has denied an earlier motion. However, a
later motion should not be entertained or granted
when a motion of the same kind has previously been
denied, unless intervening changes in the facts or
the law clearly warrant a new look at the question.
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Parker v. Freilich, 803 A.2d 738, 745 (Pa. Super. 2002) (citation omitted),
appeal denied, 820 A.2d 162 (Pa. 2003). In Parker, this Court held that a
trial court is permitted to consider an issue in a motion for compulsory
nonsuit that had been previously addressed in denying a motion for
summary judgment. Id. We explained that a motion for summary
judgment and a motion for a compulsory nonsuit “are not motions of the
same kind[.]” Id. This is because the plaintiff’s “presentation of her case in
chief constitutes an intervening change in the facts that warranted a second
consideration of the issue[.]” Id. at 746. Therefore, as Appellant’s
argument is foreclosed by Parker, we conclude the trial court did not violate
the law of the case doctrine in considering and granting Appellee’s motion
for a compulsory nonsuit. See Schultz, supra.
Based on the foregoing, we conclude both of Appellant’s issues on
appeal are devoid of merit. Accordingly, the trial court’s June 11, 2015
order and its subsequent November 13, 2015 judgment are affirmed.
Appeal at 1903 EDA 2015 dismissed. Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/2016
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