Long, C. v. Bethany Children's Home

L
J-A04022-21


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    CALVIN LONG, INDIVIDUALLY AND              :   IN THE SUPERIOR COURT OF
    AS ADMINISTRATOR OF THE ESTATE             :        PENNSYLVANIA
    OF: CARLEY LONG                            :
                                               :
                       Appellant               :
                                               :
                v.                             :
                                               :
    BETHANY CHILDREN’S HOME, INC.,             :
    D.B.A. BETHANY CHILDREN’S HOME,            :
    NORFOLK SOUTHERN CORPORATION               :
    AND NORFOLK SOUTHERN RAILWAY               :
    COMPANY                                    :
                                               :
                       Appellees               :      No. 3528 EDA 2019

             Appeal from the Judgment Entered December 5, 2019
             In the Court of Common Pleas of Philadelphia County
                    Civil Division at No(s): No. 170403305


BEFORE:      STABILE, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY KING, J.:                               FILED: MARCH 26, 2021

        Appellant, Calvin Long, individually and as administrator of the estate

of Carley Long, appeals from the judgment entered in the Philadelphia County

Court of Common Pleas, following entry of an order granting judgment

notwithstanding the verdict (“JNOV”) in favor of Appellee, Bethany Children’s

Home, Inc., d.b.a. Bethany Children’s Home (“Bethany”).1 We affirm.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 In a separate order, entered January 15, 2019, the court granted the
summary judgment motion filed by Appellees Norfolk Southern Corporation
and Norfolk Southern Railway Company (collectively, “Norfolk”).
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      The trial court opinion set forth the relevant facts of this appeal as

follows:

           The decedent, Carley Long [(“Decedent”)], was a sixteen-
           year-old girl who resided by court order at Bethany
           Children’s Home.      Her time at Bethany followed a
           troublesome upbringing, in which she was subject to both
           physical and verbal abuse from her parents. Her father,
           [Appellant], was prone to drug and alcohol abuse, leading
           to the parents’ separation and his time in rehabilitation, at
           which point the Office of Children, Youth and Families
           became involved on [Decedent’s] behalf. On May 6, 2015,
           [Decedent] left her bedroom at Bethany and fled the
           building by walking down the central stairway to the
           basement emergency exit. [Decedent] tragically died after
           escaping when she was struck by [Norfolk’s] train in an
           apparent suicide. The Register for the Probate of Wills in
           Berks County then granted her estate’s Letters of
           Administration to [Appellant], evidenced in a short
           certificate.

(Trial Court Opinion, entered November 15, 2019, at 1-2) (internal citations

to the record omitted).

      Appellant commenced this action by filing a praecipe to issue writ of

summons on April 24, 2017. On July 13, 2017, Appellant filed a complaint

raising two counts of negligence, as well as wrongful death and survival

actions.    The court issued a case management order on August 4, 2017.

Among other things, the order established a September 3, 2018 deadline for

the identification of experts and submission of expert reports. Significantly,

Appellant failed to serve any expert report regarding Norfolk’s conduct before

the deadline.

      After the close of pleadings, Norfolk moved for summary judgment on


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September 28, 2018. Norfolk alleged that Decedent was a trespasser on its

property, and it owed no duty of care to Decedent except to refrain from

causing her harm through willful or wanton conduct. Norfolk emphasized that

Appellant’s complaint alleged negligence only, and the complaint did not

include allegations of willful or wanton conduct. Further, Norfolk argued that

the record did not include any evidence that it acted willfully or wantonly in

conjunction with Decedent’s death.

      On October 1, 2018, Appellant filed a motion to amend the complaint,

seeking to incorporate language regarding Norfolk’s willful and wanton

conduct.   That same day, Appellant filed a motion for extraordinary relief,

requesting that the court extend the deadline for the submission of expert

reports.   The court denied Appellant’s motion for extraordinary relief on

October 19, 2018. On October 29, 2018, the court denied Appellant’s motion

to amend the complaint.

      Also on October 29, 2018, Appellant filed an answer to Norfolk’s

summary judgment motion. Almost two months later, on December 18, 2018,

Appellant filed a praecipe to attach an expert report to its answer to the

summary judgment motion. The report was authored by Richard Beall, who

purported to be an expert in the area of railroad operations and safety issues.

In his report, Mr. Beall opined that Norfolk’s train engineer acted recklessly,

wantonly, and with indifference and disregard for human life. On December

20, 2018, Norfolk filed a supplement to its summary judgment motion,


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opposing Appellant’s praecipe to attach.

       The court conducted a hearing on Norfolk’s summary judgment motion

on January 3, 2019.2 (See Opinion and Order, entered January 15, 2019, at

3). During the hearing, Norfolk presented video from the “RailView” recording

device that was affixed to the front of the train that struck Decedent. (Id.)

“The video confirmed that the train’s crew sounded the train’s horn the instant

that [Decedent] came into view up until the moment of impact.”             (Id.)

(internal footnote omitted). By order and opinion entered January 15, 2019,

the trial court granted Norfolk’s summary judgment motion. The court did not

consider Appellant’s untimely expert report in deciding to grant the summary

judgment motion, expressly concluding:

           [Norfolk] did not willfully or wantonly fail to guard or warn
           [Decedent] against a dangerous condition, use, or activity
           on its property. Regarding any willful conduct by [Norfolk],
           no fact of record suggests that [Norfolk] desired to bring
           about the [collision], or that [Norfolk or the train’s crew]
           were at least aware that [the collision] was substantially
           certain to ensue.

(Id. at 13) (internal citation and quotation marks omitted).

       Appellant and Bethany proceeded to trial on March 22, 2019. On April

8, 2019, the jury returned its verdict in favor of Appellant and against

Bethany.     Specifically, the jury found that Bethany was negligent, and its

negligence was a factual cause of harm to Decedent.           The jury awarded


____________________________________________


2The certified record does not include notes of testimony for the January 3,
2019 hearing.

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$625,000.00 in damages to the survivors, plus $2,300,000.00 in damages to

Decedent for future loss of earnings and lost earnings capacity. Thus, the jury

awarded a total of $2,925,000.00 in damages.

      Bethany timely filed post-trial motions on April 18, 2019. In its motions,

Bethany requested the entry of JNOV due to Appellant’s failure to present

sufficient evidence to establish a breach of duty or proximate causation. In

the alternative, Bethany requested a new trial on all issues due to the

misconduct of Appellant’s trial counsel.      By order and opinion entered

November 15, 2019, the court granted Bethany’s motion for entry of JNOV

and vacated the jury verdict on all claims. In its opinion, the court agreed

with Bethany that Appellant failed to present sufficient evidence to establish

a breach of duty or proximate causation. (See Trial Court Opinion at 4-13).

The court also found that, if it had not granted the motion for JNOV, Bethany

was entitled to a new trial due to the misconduct of Appellant’s trial counsel.

(Id. at 17-21).

      On December 5, 2019, Appellant filed a praecipe to enter judgment in

favor of Bethany and against Appellant.     Appellant timely filed a notice of

appeal on December 6, 2019.       On December 9, 2019, the court ordered

Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained

of on appeal. Appellant timely filed his Rule 1925(b) statement on December

30, 2019.

      Appellant now raises four issues for our review:


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         Whether, viewing the entire record in the light most
         favorable to [Appellant], the verdict winner, and, granting
         him every favorable inference therefrom, there was
         sufficient, competent evidence to sustain the verdict, and
         therefore, the trial court erred and/or abused its discretion
         when it granted Judgment NOV in favor of Appellee Bethany
         … on the bases that [Appellant] failed to adduce evidence at
         trial sufficient to establish that: (1) Bethany breached any
         duty to [Decedent]; and/or (2) that Bethany proximately
         caused [Decedent’s] death?

         Whether Bethany waived its challenge to the jury’s verdict
         based upon its challenge to the sufficiency of the evidence
         adduced at trial regarding the proximate cause of
         [Decedent’s] death?

         Whether, on the sole basis of counsel for [Appellant’s]
         alleged “pervasive misconduct” during trial, the trial court
         erred and/or committed an abuse of discretion in finding
         that it would have granted a new trial if it had not granted
         JNOV where: the alleged “misconduct” was questionable;
         the trial court took affirmative steps to cure any harm before
         the jury; and where Bethany never moved for a mistrial nor
         accepted the trial court’s multiple sua sponte offers to
         Bethany to declare a mistrial?

         Whether the trial court erred and/or committed an abuse of
         discretion in granting summary judgment in favor of
         [Norfolk] by finding that the Pennsylvania Railroad Civil
         Immunity Statute, 42 Pa.C.S. § 8339.1, applied to
         immunize Norfolk from any liability in this case due to its
         finding that [Decedent] was a “trespasser” upon the train
         tracks on the night of her death and/or that Norfolk’s
         conduct did not constitute a “willful or wanton failure to
         guard or warn against” being struck by a freight train,
         despite the supplementation of the summary judgment
         record by [Appellant] in his opposition to summary
         judgment to include the report of an expert in railroad
         operations and safety, concluding that Norfolk’s train
         engineer acted recklessly, wantonly and improperly and
         with indifference and disregard of human life?

(Appellant’s Brief at 5-7).


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     The following standard governs our review of a trial court’s decision to

grant JNOV:

        In reviewing a trial court’s decision whether or not to grant
        judgment in favor of one of the parties, we must consider
        the evidence, together with all favorable inferences drawn
        therefrom, in a light most favorable to the verdict winner.
        Our standard[s] of review when considering motions for a
        directed verdict and [JNOV] are identical. We will reverse a
        trial court’s grant or denial of a [JNOV] only when we find
        an abuse of discretion or an error of law that controlled the
        outcome of the case. Further, the standard of review for an
        appellate court is the same as that for a trial court.

        There are two bases upon which a [JNOV] can be entered;
        one, the movant is entitled to judgment as a matter of law
        and/or two, the evidence is such that no two reasonable
        minds could disagree that the outcome should have been
        rendered in favor of the movant. With the first, the court
        reviews the record and concludes that, even with all factual
        inferences decided adverse to the movant, the law
        nonetheless requires a verdict in his favor. Whereas with
        the second, the court reviews the evidentiary record and
        concludes that the evidence was such that a verdict for the
        movant was beyond peradventure.

Reott v. Asia Trend, Inc., 

7 A.3d 830

, 835 (Pa.Super. 2010), affirmed, 

618

Pa. 228

, 

55 A.3d 1088

(2012) (quoting Campisi v. Acme Markets, Inc., 

915

A.2d 117

, 119 (Pa.Super. 2006)).

     In his first issue, Appellant cites testimony from Bethany’s employees

to establish the duties it owed to Decedent, as well as the ways in which

Bethany breached those duties. Appellant alleges that Bethany employees did

not receive training on what to do when a child runs away from the facility,

and Bethany failed to provide employees with relevant information about

Decedent’s background or the likelihood that she might run away. Appellant

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relies on testimony from James Taylor, who worked inside Decedent’s

residence hall,3 for the proposition that Bethany “had to know” that its

residence hall staff could not always keep the children they supervised in

auditory or visual range. (Appellant’s Brief at 32). Based upon the foregoing,

Appellant insists Bethany breached duties by failing to provide proper training

to its employees, failing to have adequate procedures for dealing with runaway

children, and failing to provide proper supervision of Decedent.

       Appellant also relies on testimony from Brian Hazlak, a Pennsylvania

Department of Human Services (“DHS”) employee, who investigated the

events leading to Decedent’s death.              Appellant emphasizes Mr. Hazlak’s

testimony that his department prepared a report to cite Bethany for a violation

of 55 Pa. Code § 3800.55(a), a regulation governing children’s residential

facilities in Pennsylvania.4 Appellant argues that Mr. Hazlak’s testimony and

the violation report confirm that Bethany breached its duty to provide proper

supervision of Decedent, and the court should not have granted JNOV based


____________________________________________


3At the time of her death, Decedent lived in a building on Bethany’s campus
known as Dubbs Cottage. (See N.T. Trial, 3/29/19 afternoon session, at 8).
Throughout the record, the building is referred to as “Dubbs,” the “cottage,”
or the “cabin.”

4 Appellant explains that “[t]he description of the violation states that [at] the
time [Decedent] eloped neither of the two Bethany staff members present at
the Dubbs Cottage … were in ‘visual or auditory range’ of her during the time
[Decedent] left the cottage.” (Appellant’s Brief at 36) (citing N.T. Trial,
3/29/19 morning session, at 70).



                                           -8-
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upon a finding of insufficient evidence to establish a breach of duty.

       Regarding the element of causation, Appellant contends “the trial court

held that [Decedent] committed suicide, although that question was never put

to the jury.” (Id. at 41). Appellant claims the court “made that unilateral

finding of fact, because such a finding was a necessary factual predicate to

the trial court’s conclusion that Bethany was relieved of liability based upon

the lack of proximate causation.”5             (Id.)   Appellant maintains the issue of

suicide was not pled or stipulated, Bethany bore the burden of proving suicide

as an affirmative defense, and the question of whether Decedent committed

suicide should have gone to the jury. Appellant complains the court could not

have unilaterally determined that Decedent committed suicide as a basis for

granting JNOV, and the court’s analysis of the proximate cause issue was

flawed. Appellant concludes this Court must vacate the order granting JNOV

on these bases. We disagree.

       “In trying to recover for an action in negligence, a party must prove four

elements.”     Lux v. Gerald E. Ort Trucking, Inc., 

887 A.2d 1281

, 1286

(Pa.Super. 2005), appeal denied, 

587 Pa. 731

, 

901 A.2d 499

(2006).

          They are:

          1. A duty or obligation recognized by law.
____________________________________________


5 Appellant adds that “[o]nce the trial court pronounced that [Decedent’s]
death was by suicide, it was able to parrot Bethany’s post-trial motion and
brief and conclude that since Pennsylvania Courts have generally held that
suicide is an intervening act, it relieves the original tortfeasor of liability.”
(Appellant’s Brief at 41).

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          2. A breach of the duty.

          3. Causal connection between the actor’s breach of the duty
          and the resulting injury.

          4. Actual loss or damage suffered by complainant.

Id. (emphasis omitted).

“The

burden of proving the existence of negligence rests upon the party

who has asserted it.” Schmoyer by Schmoyer v. Mexico Forge, Inc., 

649

A.2d 705

, 707 (Pa.Super. 1994). “The mere fact that an accident has occurred

does not entitle the injured person to a verdict. A plaintiff must show that the

defendant owed a duty of care, and that this duty was breached.” Rauch v.

Mike-Mayer, 

783 A.2d 815

, 824 n.8 (Pa.Super. 2001), appeal denied, 

568

Pa. 634

, 

793 A.2d 909

(2002) (internal citations omitted).

      “The duty which is owed in any given situation depends primarily upon

the relationship between the parties at the time of the injury.” 

Schmoyer,

supra

at 708. “Unless there is a special relationship between the defendant

and the plaintiff, the only duty owed by the defendant to the plaintiff is the

general duty imposed upon all persons not to expose others to risks of injury

which are reasonably foreseeable.”

Id.

“Under Pennsylvania law,

the issue of whether a defendant has breached

its duty is normally submitted to the jury.” Truax v. Roulhac, 

126 A.3d 991

,

1000 (Pa.Super. 2015) (en banc), appeal denied, 

634 Pa. 737

, 

129 A.3d 1244

(2015).


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          While the existence of a duty is a question of law, whether
          there has been a neglect of such duty is generally for the
          jury. However, the issue of whether an act or a failure to
          act constitutes negligence may be removed from
          consideration by a jury and decided as a matter of law when
          the case is free from doubt and there is no possibility that a
          reasonable jury could find negligence.

Id. at 1000-01

(quoting Emerich v. Philadelphia Center for Human

Development, Inc., 

554 Pa. 209

, 233, 

720 A.2d 1032

, 1044 (1998)). “The

violation of a statute may serve as the basis for a finding of negligence per

se; this concept establishes both duty and breach of duty where an individual

violates an applicable statute, ordinance or regulation designed to prevent a

public harm.”      Campo v. St. Luke’s Hosp., 

755 A.2d 20

, 25 (Pa.Super.

2000), appeal denied, 564 Pa 723, 

766 A.2d 1242

(2001).

       Additionally, the purpose of Chapter 3800 of the Pennsylvania

Administrative Code “is to protect the health, safety and well-being of children

receiving care in a child residential facility through the formulation, application

and enforcement of minimum licensing requirements.”6 55 Pa. Code § 3800.1.

Chapter 3800 mandates that “[t]here shall be one child care worker present

with the children for every eight children who are 6 years of age or older,

during awake hours.” 55 Pa. Code § 3800.55(a). “While children are at the

facility, children shall be supervised during awake and sleeping hours by

conducting observational checks of each child at least every hour.” 55 Pa.


____________________________________________


6 Bethany “is a residential congregate care facility for children,” subject to the
requirements of Chapter 3800. (Bethany’s Brief at 4).

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Code § 3800.57(a).

      Instantly, Appellant provided trial testimony from Mr. Hazlak, a licensing

supervisor at DHS.    Mr. Hazlak testified that his department has oversight

responsibilities for “Chapter 3800 licensed residential facilities for children” in

the Northeast region of the Commonwealth.          (N.T. Trial, 3/29/19 morning

session, at 57).    The day after Decedent’s death, Mr. Hazlak’s supervisor

instructed him to visit Bethany’s campus and investigate the incident. When

Mr. Hazlak arrived on campus, he interviewed staff members and discovered

that they had found a suicide note in Decedent’s bedroom. (See

id. at 60).

Mr. Hazlak reviewed Decedent’s file “to measure it for regulatory compliance

and to try to piece together what had happened … to see if the facility had

done everything in its power to keep the child safe.” (Id. at 61). Mr. Hazlak

also conducted a walk-through of Decedent’s residence hall and reviewed

security camera footage. After viewing the footage, Mr. Hazlak estimated that

Bethany personnel did not have contact with Decedent for about an hour

before her death.

      Based upon Mr. Hazlak’s investigation, DHS issued a violation report due

to Bethany’s noncompliance with Chapter 3800. The report “indicated that

[Bethany] had violated Regulation 3800.55(a), which states there would be

one child care worker present with the children for every eight children who




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are six years of age or older, during awake hours.”7 (Id. at 69). The report

also claimed that Decedent was in her bedroom on the second floor of the

residence hall, while two Bethany staffers, Patricia Miske and Mr. Taylor, were

on the first floor. Although Bethany had an adequate number of staffers in

the residence hall based on the number of children present, the report

determined that the staffers “were not in visual or auditory range” of Decedent

when she “walked down the central stairway and exited the building through

the basement emergency exit….” (Id. at 70).

       On cross-examination, Mr. Hazlak explained that Regulation 3800.55(a)

does not include a requirement that child care workers remain in visual or

auditory range of the children, but the “compliance guide” issued in

conjunction with the Chapter 3800 regulations includes such a requirement.

(See

id. at 83, 86).

Further, during his walk-through of Decedent’s residence

hall, Mr. Hazlak and his coworker “tested whether or not one could hear

someone walking around upstairs while the other remained” on the first floor

of the residence hall. (Id. at 89). When asked whether someone on the first

floor could hear someone on the second floor talking, Mr. Hazlak responded,

“Not often.” (Id. at 89). Mr. Hazlak subsequently clarified, “If there was a

fight going on and there [were] raised voices, you would be able to” hear it.


____________________________________________


7 At the time of Mr. Hazlak’s inspection, eleven (11) dependent children were
living in Decedent’s residence hall. (See N.T. Trial, 3/29/19 morning session,
at 68). Bethany’s license limited capacity to twelve (12) children inside this
residence hall. (Id. at 67).

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(Id.)

        Bethany’s counsel also confronted Mr. Hazlak with additional facts

included within the DHS violation report:

          [DEFENSE COUNSEL]:        And you said no one had seen
          [Decedent] for an hour?

          [WITNESS]:                Correct.

          [DEFENSE COUNSEL]:        Your own report says that she
          came downstairs within 15 minutes or 20 minutes of leaving
          the cottage, does it not?

          Look at your report. It says at 8:00 she got meds.
          [Decedent] got meds. That’s eyes on, isn’t it?

          [WITNESS]:                Yes.

          [DEFENSE COUNSEL]:        That’s auditory too, isn’t it?

          [WITNESS]:                Yes.

          [DEFENSE COUNSEL]:        At 8:15 she asked for an aspirin?

          [WITNESS]:                Yes.

          [DEFENSE COUNSEL]:        That’s eyes on, isn’t it?

          [WITNESS]:                Yes.

          [DEFENSE COUNSEL]:      That’s eyes on and ears on, right,
          because someone had to … hear her say, I want an aspirin,
          right?

          [WITNESS]:                Correct.

          [DEFENSE COUNSEL]:           So what you just said on the
          stand that no one saw her or supervised her for an hour is
          simply not true, isn’t that correct?

          [WITNESS]:                I suppose it is.


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(Id. at 92-93). Despite this concession, on redirect examination, Mr. Hazlak

reiterated that his inspection led DHS to conclude that Bethany had violated

Regulation 3800.55(a). (See

id. at 95-96).

     Significantly, the trial court evaluated Mr. Hazlak’s testimony and

determined it did not demonstrate a violation of Regulation 3800.55(a).

        Mr. Hazlak did little in way of establishing [Bethany’s] failure
        to properly supervise the children under its care. The
        citation [Appellant] emphasizes does not prove [Bethany]
        breached a duty.          Instead, Mr. Hazlak’s testimony
        obfuscates facts and amplifies inaccuracies that border upon
        impermissible. Chief among these is Mr. Hazlak’s assertion
        that [D]ecedent was not supervised for the hour prior to her
        leaving [Bethany’s] premises. During cross-examination,
        Mr. Hazlak was forced to admit that was simply not true.
        Mr. Hazlak’s report states that [Decedent] received
        medication at 8:00 p.m. and then asked for aspirin at 8:15
        p.m. These two interactions demonstrate that [Decedent]
        was in auditory and visual range in the hour prior to her
        departure, and that [Bethany] was compliant with the
        Commonwealth’s Regulations.

        Although the “auditory range” is not contained within the
        Regulations, testimony from [Bethany’s] staff members
        demonstrates [Bethany] was compliant regardless—that the
        children were in auditory range of staff members. Elaine
        Gilbert[, an administrator for Bethany,] testified extensively
        that staff members on the first floor can hear the children
        moving around on the second floor—sometimes even talking
        in their bedrooms. Ms. Gilbert testified that staff “can tell
        where the kids are just from noises that we hear on the first
        floor.”

                                  *     *      *

        The testimony of Patricia Miske likewise stated that on the
        night [Decedent] left [Bethany’s] property, she could “hear
        [the children] walking and talking” and that she “could hear
        the girls moving around…. [She] could hear the showers
        going. You knew they were up there.” [Appellant] asserts

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          … that a DHS worker conducted a test the very next day and
          determined they were not in appropriate visual or auditory
          range for the children. This is a patent mischaracterization
          of the witness testimony. In fact, Mr. Hazlak testified that
          he conducted a test and found that staff would be able to
          hear from the first floor if there was a fight, raised voices,
          crying or if a child is in danger on the second floor. Each of
          these witnesses demonstrates that [Bethany] was actually
          in compliance with the Regulations.

(Trial Court Opinion at 7-8) (internal record citations omitted).

       Even when considering Mr. Hazlak’s testimony in the light most

favorable to Appellant as the verdict winner, the court correctly observed that

Bethany actually complied with Regulation 3800.55(a) on the night of

Decedent’s death. See 

Reott, supra

. As Appellant failed to demonstrate a

violation of Regulation 3800.55(a), Bethany could not have breached a duty

on this basis.    See 

Campo, supra

. Moreover, Appellant failed to present

additional testimony to establish a breach of duty on some other basis.8 On

____________________________________________


8 In its brief, Bethany contends this case involved “a non-secure residential
facility for youths from troubled family situations,” which “is subject to
extensive regulations.” (Bethany’s Brief at 20-21). As such, Bethany argues
that Appellant should have presented an expert to testify about liability at
trial. “[E]xpert testimony is often employed to help jurors understand issues
and evidence which is outside of the average juror’s normal realm of
experience. We have stated that, [t]he employment of testimony of an expert
rises from … a necessity born of the fact that the subject matter of the inquiry
is one involving special skill and training beyond the ken of the ordinary
layman.” Brandon v. Ryder Truck Rental, Inc., 

34 A.3d 104

, 108
(Pa.Super. 2011) (quoting Young v. Com., Dept. of Transp., 

560 Pa. 373

,
376-77, 

744 A.2d 1276

, 1278 (2000)).                Here, Appellant seemingly
acknowledged the need for some expert testimony, as he offered a witness to
testify as an expert in the field of residential treatment facilities. (See N.T.
Trial, 4/3/19, at 44-49). Bethany’s counsel objected to the proposed expert’s



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this record, the court did not err in concluding that Appellant presented

insufficient evidence to establish a breach of duty by Bethany. See 

Truax,

supra

; 

Schmoyer, supra

. Therefore, the court properly granted JNOV on

this basis alone, and Appellant is not entitled to relief on his first claim. 9 See

Reott, supra

.

       In his second issue, Appellant argues Bethany waived its challenge to

the sufficiency of the evidence regarding the proximate cause of Decedent’s

death. As we have already determined that the court properly granted JNOV

based upon the sufficiency of the evidence regarding breach of duty, we need

not address this claim.

       In his third issue, Appellant contends the court erred in determining that

Bethany was entitled to a new trial due to the misconduct of Appellant’s trial

counsel.    Again, as we have already determined that the court properly




____________________________________________


qualifications, the court sustained the objection, and Appellant did not
ultimately present any expert testimony. Although Appellant now attempts to
argue that testimony from its lay witnesses, including Mr. Taylor, was
sufficient to establish Bethany’s breach of duty, we agree with Bethany’s
argument that some expert testimony was required to establish Bethany’s
breach of the relevant standard of care for its industry. See 

Brandon, supra

.

9 Because the court properly granted JNOV based upon its finding that
Appellant presented insufficient evidence to establish a breach of duty, we
need not address Appellant’s related argument regarding the evidence in
support of causation.



                                          - 17 -
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granted JNOV, we need not address this argument related to an alternative

basis for relief set forth in Bethany’s post-trial motions.10

       In his fourth issue, Appellant contends the trial court applied

Pennsylvania’s railroad civil immunity statute to find that Norfolk was immune

from suit. For civil immunity to apply, Appellant asserts “Norfolk must not

have willfully or wantonly failed to guard or warn against a dangerous

condition, use or activity on its property or by its trains.” (Appellant’s Brief at

50). Appellant insists he produced an expert report in response to Norfolk’s

summary judgment motion, which opined that Norfolk’s train engineer acted

recklessly, wantonly, and with indifference and disregard for human life.

Appellant concludes the court completely disregarded his expert report and

improperly granted summary judgment in favor of Norfolk.11 We disagree.

____________________________________________


10  Although we need not address this argument, our review of the record
confirms the court’s finding of pervasive misconduct on the part of Appellant’s
trial counsel. (See Trial Court Opinion at 17-21). We cannot condone trial
counsel’s actions in litigating this case, and we emphasize that such
misconduct alone could justify the granting of a new trial. See Buttaccio v.
American Premier Underwriters, Inc., 

175 A.3d 311

(Pa.Super. 2017)
(stating sheer number of counsel’s improper references can prejudice
opposing party, even where court issues curative instructions; attorneys may
not make irrelevant remarks that are reasonably likely to have direct and
prejudicial effect on award of damages; and court may abuse its discretion if
it fails to grant mistrial in response to counsel’s prejudicial remarks).

11Norfolk’s brief advances two arguments in response to Appellant’s claim: 1)
Appellant did not plead that Norfolk acted willfully or wantonly, and he is not
challenging the trial court’s order denying his motion to amend the complaint;
and 2) although Appellant relies on his expert report to establish that Norfolk
acted wantonly, the court ruled that the report was not part of the summary



                                          - 18 -
J-A04022-21


       Our standard of review of an order granting summary judgment requires

us to determine whether the trial court abused its discretion or committed an

error of law.     Mee v. Safeco Ins. Co. of America, 

908 A.2d 344

, 347

(Pa.Super. 2006).

          Judicial discretion requires action in conformity with law on
          facts and circumstances before the trial court after hearing
          and consideration. Consequently, the court abuses its
          discretion if, in resolving the issue for decision, it misapplies
          the law or exercises its discretion in a manner lacking
          reason. Similarly, the trial court abuses its discretion if it
          does not follow legal procedure.

Miller v. Sacred Heart Hosp., 

753 A.2d 829

, 832 (Pa.Super. 2000) (internal

citations and quotation marks omitted).            Our scope of review is plenary.

Pappas v. Asbel, 

564 Pa. 407

, 418, 

768 A.2d 1089

, 1095 (2001), cert.

denied, 

536 U.S. 938

, 

122 S. Ct. 2618

, 

153 L. Ed. 2d 802

(2002). In reviewing

a trial court’s grant of summary judgment:

          [W]e apply the same standard as the trial court, reviewing
          all the evidence of record to determine whether there exists
          a genuine issue of material fact. We 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. Only where there is
          no genuine issue as to any material fact and it is clear that
          the moving party is entitled to a judgment as a matter of
          law will summary judgment be entered. All doubts as to the
          existence of a genuine issue of a material fact must be
          resolved against the moving party.

          Motions for summary judgment necessarily and directly
          implicate the plaintiff’s proof of the elements of [a] cause of
____________________________________________


judgment record, and Appellant is not challenging this ruling on appeal. (See
Norfolk’s Brief at 9-13).

                                          - 19 -
J-A04022-21


        action.    Summary judgment is proper if, after the
        completion of discovery relevant to the motion, including
        the production of expert reports, an adverse party who will
        bear the burden of proof at trial has failed to produce
        evidence of facts essential to the cause of action or defense
        which in a jury trial would require the issues to be submitted
        to a jury. In other words, whenever there is no genuine
        issue of any material fact as to a necessary element of the
        cause of action or defense, which could be established by
        additional discovery or expert report and the moving party
        is entitled to judgment as a matter of law, summary
        judgment is appropriate. Thus, a record that supports
        summary judgment either (1) shows the material facts are
        undisputed or (2) contains insufficient evidence of facts to
        make out a prima facie cause of action or defense.

        Upon appellate review, we are not bound by the trial court’s
        conclusions of law, but may reach our own conclusions.

Chenot v. A.P. Green Services, Inc., 

895 A.2d 55

, 61 (Pa.Super. 2006)

(internal citations and quotation marks omitted).

     Regarding immunity, Section 8339.1 provides as follows:

        § 8339.1. Railroad civil immunity

            (a) General rule.—A railroad carrier owes no duty of
        care to keep its railroad property safe for entry or use by
        any trespasser who enters upon any railroad property or
        railroad right-of-way or to give any warning to such
        trespasser entering or going on that railroad property of a
        dangerous condition, use or activity thereon. Except as set
        forth in subsection (b), a railroad carrier shall not:

                 (1) Be presumed to extend any assurance to a
           trespasser entering or going on railroad property without
           the railroad carrier’s consent that the railroad property is
           safe for any purpose.

                  (2) Incur any duty of care toward a trespasser
           entering or going on railroad property without the
           railroad carrier’s consent.


                                    - 20 -
J-A04022-21


                  (3) Become liable for any injury to a trespasser
           entering or going on railroad property without the
           railroad carrier’s consent caused by an act or omission of
           such trespasser.

            (b) Limitation.—Nothing in this section limits in any
        way any liability which otherwise exists for willful or wanton
        failure to guard or warn against a dangerous condition, use
        or activity.

            (c)   Definitions.—As used in this section, the following
        words and phrases shall have the meanings given to them
        in this subsection:

           “Trespasser.”     A person who enters onto railroad
        property without any right, lawful authority or the express
        consent of the railroad.

42 Pa.C.S.A. § 8339.1. See also Marsh v. Norfolk Southern, Inc., 

243

F. Supp. 3d 557

(M.D.Pa. 2017) (explaining that under Pennsylvania law,

burden is on trespasser to prove willfulness or wantonness, as required to

impose duty on property owner); Manfred v. National R.R. Passenger

Corp., 

106 F. Supp. 3d 678

(W.D.Pa. 2015) (stating railroad did not have duty

under Pennsylvania law to install fence, erect barricades, or put up warning

signs at right of way where pedestrian was struck and killed by train; danger

of entering railway was too obvious for railroad to believe that trespassers

would not have discovered it).

     Instantly, Appellant argues that the court totally disregarded the expert

opinion of Mr. Beall, who opined that Norfolk acted wantonly through the

actions of its engineers. Appellant, however, ignores the fact that the court

denied his motion for extraordinary relief, which requested the extension of


                                    - 21 -
J-A04022-21


the deadline for the submission of the expert report. In light of the fact that

the court did not extend the discovery deadline, and absent some specific

argument regarding how the court erred in denying his motion for

extraordinary relief, we decline to conclude that the court improperly ignored

the expert report. See Anthony Biddle Contractors, Inc. v. Preet Allied

American Street, LP, 

28 A.3d 916

, 922-23 (Pa.Super. 2011) (asserting

Philadelphia’s case management system is designed to implement and enforce

discovery    deadlines     as   essential      means   for   controlling   trial   courts’

overcrowded dockets; only mechanism to extend discovery deadlines is

through filing petition for extraordinary relief; when case management

deadlines are violated with impunity, abusing party must be prepared to pay

consequences).12 See also 

Manfred, supra

(holding estate of pedestrian

____________________________________________


12 In his reply brief, for the first time on appeal, Appellant offers an argument
regarding why the court erred in refusing to consider its expert report. We
emphasize, however, “[a] claim is waived if it is raised for the first time in a
reply brief.” Wolf v. Scarnati, ___ Pa. ___, ___, 

233 A.3d 679

, 704 (2020).
We also acknowledge that an appellant “may file a brief in reply to matters
raised by appellee’s brief … and not previously addressed in appellant’s brief.”
Pa.R.A.P. 2113(a). Nevertheless, Appellant’s reply brief includes extensive
analysis of the Pennsylvania Rules of Civil Procedure and decisional law
relating to summary judgment matters. Such analysis far exceeds the scope
of the assertions raised in Norfolk’s brief. (See Norfolk’s Brief at 9-13).

Moreover, Appellant relies on Gerrow v. John Royle & Sons, 

572 Pa. 134

,

813 A.2d 778

(2002), for the proposition that he properly “filed and
presented” his expert report prior to the order disposing of Norfolk’s summary
judgment motion. (Appellant’s Reply Brief at 11). Initially, we note that
Gerrow is “a plurality decision of our Supreme Court with no precedential
value[.]” Downey v. Crozer-Chester Medical Center, 

817 A.2d 517

, 528



                                          - 22 -
J-A04022-21


who was struck and killed by train while walking, as trespasser, on railroad’s

track failed to present evidence demonstrating that train’s engineer acted

willfully or wantonly so as to establish railroad’s liability under Pennsylvania

law; engineer was not guilty of wanton misconduct for not applying emergency

brake to slow or stop train until after he realized that pedestrian was not going

to respond to the train’s horn). Therefore, Appellant is not entitled to relief

on his fourth claim, and we affirm the judgment entered in favor of Bethany

and against Appellant.

       Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/26/21




____________________________________________


(Pa.Super. 2003) (en banc), affirmed, 

577 Pa. 672

, 

842 A.2d 406

(2004).
Further, “the majority [in Gerrow] appears to agree that expert opinions can
be attached to a response to a motion for summary judgment pursuant to
Pa.R.C.P. 1035.3(b).”

Id. (footnote omitted). In

the instant case, we
reiterate that Appellant did not actually attach his expert report to his answer
to Norfolk’s summary judgment motion. Rather, almost two months after
filing his answer, Appellant filed a praecipe to attach the expert report to his
answer.

                                          - 23 -

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