Sausman, S. v. Keisserman, B.

J-S44004-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

SEAN PATRICK SAUSMAN AND : IN THE SUPERIOR COURT OF

KHUSHBU J. SHAH : PENNSYLVANIA

:

:

v. :

:

:

BORIS KEISSERMAN AND VRTX :

INVESTMENTS, INC. : No. 423 EDA 2023

:

Appellants :

Appeal from the Judgment Entered May 8, 2023

In the Court of Common Pleas of Philadelphia County Civil Division at

No(s): 200401444

BEFORE: OLSON, J., NICHOLS, J., and COLINS, J. *

MEMORANDUM BY OLSON, J.: FILED DECEMBER 3, 2024

Appellants, Boris Keisserman (“Keisserman”) and VRTX Investments,

Inc., (“VRTX” or “Appellants” collectively) appeal from the judgment entered

on May 8, 2023.1 After careful consideration, we conclude that the trial court

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* Retired Senior Judge assigned to the Superior Court.

1 Appellants purport to appeal from the trial court’s order entered on January

20, 2023, granting in part and denying in part, Appellants’ post-trial motion.

An appeal, however, is properly taken from the entry of judgment. See

Pa.R.A.P. 301(a) (providing that no order of court shall be appealable until it

is entered on the appropriate docket); Johnston the Florist, Inc. v. TEDCO

Const. Corp., 657 A.2d 511, 514 (Pa. Super. 1995) (an appeal from an order

denying a post-trial motion is interlocutory). On April 26, 2023, this Court

entered an order directing Appellants to praecipe the trial court for the entry

of judgment and to file a certified copy of the trial court docket showing entry

of judgment with this Court. Judgment was entered on May 8, 2023, thereby

perfecting this Court’s jurisdiction. See Pa.R.A.P. 905(a)(5) (notice of appeal

filed after a decision but before entry of an appealable order shall be treated

(Footnote Continued Next Page)

J-S44004-23

erred as a matter of law. Accordingly, we vacate the May 8, 2023 judgment

as it pertains to Keisserman, and affirm in all other respects.

We briefly summarize the facts and procedural history of this case as

follows. In February 2019, Sean Patrick Sausman and Khushbu J. Shah

(“Plaintiffs”) purchased a residential rowhouse located at 2330 East Thompson

Street in Philadelphia, Pennsylvania. Approximately ten months later, VRTX

began excavating the adjacent property located at 2332 East Thompson

Street. On October 2, 2020, Plaintiffs filed a complaint against Appellants

naming Keisserman, in his individual capacity as owner of the adjoining

property, and VRTX, as the general contractor conducting the excavation

work, alleging that underpinning2 and construction work at 2332 East

Thompson Street damaged Plaintiffs’ foundation and structural walls. In their

complaint, Plaintiffs raised claims of trespass, private nuisance, negligence,

and negligence per se. However, as discussed below, Plaintiffs did not plead

or otherwise differentiate liability between the individual defendants in their

complaint and, instead, couched all of their claims against Appellants

collectively. On October 24, 2022, the court held a bench trial. On October

31, 2022, the trial court entered a verdict in favor of Plaintiffs in the amount

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as filed on the day of entry). On May 11, 2023, this Court entered an order

discharging our April 26, 2023 order. We have changed the caption to reflect

that the appeal is taken from the judgment entered on May 8, 2023.

2 Underpinning involves below-ground construction work undertaken to

strengthen and support a structure. See Merriam-Webster’s Collegiate

Dictionary, Eleventh Edition (2003) at 1364.

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of $100,000.00. On November 10, 2022, Appellants moved for leave to file a

post-trial motion nunc pro tunc and, on the same day, filed a motion

requesting post-trial relief pending the receipt of the trial transcripts. By order

entered on November 15, 2022, the trial court granted Appellants’ request to

file a post-sentence motion nunc pro tunc after transcription of the notes of

testimony. On December 7, 2022, the trial court granted Plaintiffs’ request

for delay damages, pursuant to Pa.R.C.P. 238, and awarded Plaintiffs the

amount of $4,587.00 against Appellants, jointly and severally. As previously

mentioned, on January 20, 2023, the trial court granted Appellants’ post-trial

motion in part and denied it part, clarifying and amending its prior October

31, 2022 order to reflect that Keisserman and VRTX were jointly and severally

liable for the $100,00.00 judgment. This timely appeal resulted. 3

On appeal, Appellants present the following issues 4 for our review:

1. Did the trial court commit an error of law or abuse of discretion

by admitting and solely relying upon, over Appellants’

objections, the testimony of Carlo Batts, [Plaintiffs’] real estate

appraiser, to find that repairs valued at $100,000[.00] are

warranted, where the expert admitted he was not qualified as

a contractor, engineer, or architect and even [Plaintiffs’] own

engineering expert did not opine that such repairs were

needed?

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3 On February 14, 2023, Appellants filed a single notice of appeal. On

February 16, 2023, the trial court directed Appellants to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellants jointly and timely complied. The trial court issued an opinion

pursuant to Pa.R.A.P. 1925(a) on August 2, 2023.

4 We have reordered Appellants’ issues for ease of discussion.

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2. Whether the trial court committed an abuse of discretion in

prohibiting [Appellants’] expert engineer[,] Jay Rosen[,] from

testifying about documents and evidence that were previously

admitted [] at trial[?]

3. Did the trial court err as a matter of law in finding []

Keisserman [] personally, and jointly and severally liable along

with [] VRTX, where the trial court’s basis for finding liability

was that “[] Keisserman hired the general contractor,” and that

the Philadelphia Department of Licensing [and] Inspections

issued violations that were “addressed to [] Keisserman and

listed the property he owns as the project subject to the

violations”?

4. Whether the trial court committed an abuse of discretion in

failing to find that [Plaintiffs] were contributorily negligent

when they failed to remedy known structural and water

infiltration issues prior to VRTX’s activity at the neighboring

property?

5. Whether the trial court committed an abuse of discretion in

finding Appellants liable for trespass and nuisance against

[Plaintiffs]?

Appellants’ Brief, at 2-4.

In the first issue stated above, Appellants argue that the trial court erred

by relying upon the opinion of Plaintiffs’ proffered expert, Carlos Batts (Batts),

in assessing damages at $100,000.00, because there was evidence of

“structural cracking and water infiltration” before Plaintiffs purchased the

subject property and Plaintiffs failed to remediate the preexisting conditions.

Id. at 26-30. Appellants assert that Plaintiffs’ proffered expert engineer, Peter

Tantala (Tantala) admitted that he failed to consider preexisting damage prior

to issuing his opinion. Id. at 31. Regarding Batts, Appellants contend that

he is a real estate appraiser who “admitted that he was not a contractor nor

an engineer nor an architect nor a home inspector” and that his testimony was

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“contrary to the standards of qualifying as an expert” and, therefore, he should

have been precluded from “opin[ing] on whether structural engineering fixes

were required” at the subject property. Id. at 37. Appellants argue that the

error was compounded when the trial court permitted Batts to testify about

the cost of repairs “based upon the admission of a repair estimate from a

contractor, Swift & Sons, who did not testify at trial.” Id. at 36. Appellants

challenge the methods of appraisal and whether the Swift & Sons repair

estimate was properly authenticated. Id. at 38-39. In a similar vein, as

presented in issue two above, Appellants also argue they presented an expert

engineer, Jay Rosen (Rosen), who “did not believe that such repairs were

required” and “did not believe that digging down was necessary.” Id. at 38

n.8; see also id. at 41 (“Rosen, an engineer, testified that the appraiser’s

belief that digging out the entirety of [the] Philadelphia rowhome basement

and underpinning was not a necessary repair, but rather, is a common way

for homeowners to finish or improve utilitarian rowhouse basements and

increase living space, not remedy cracks in [an] old basement slab.”)

(emphasis in original).

We have stated:

The admission of expert testimony is a matter of discretion for the

trial court and will not be remanded, overruled or disturbed unless

there was a clear abuse of discretion. Indeed, admission of the

disputed testimony must be shown to have been not only

erroneous but also harmful. Evidentiary rulings which did not

affect the verdict will not provide a basis for disturbing the jury's

judgment.

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We recognize, of course, that expert testimony is incompetent if

it lacks an adequate basis in fact. While an expert's opinion need

not be based on absolute certainty, an opinion based on mere

possibilities is not competent evidence. This means that expert

testimony cannot be based solely upon conjecture or surmise.

Rather, an expert's assumptions must be based upon such facts

as the jury would be warranted in finding from the evidence.

Helpin v. Trustees of Univ. of Pennsylvania, 969 A.2d 601, 617 (Pa.

Super. 2009) (internal citations, quotations, and brackets omitted).

Accordingly, the Pennsylvania Rules of Evidence provide as follows:

Rule 703. Bases of an Expert’s Opinion Testimony

An expert may base an opinion on facts or data in the case

that the expert has been made aware of or personally

observed. If experts in the particular field would reasonably

rely on those kinds of facts or data in forming an opinion on

the subject; they need not be admissible for the opinion to

be admitted.

Pa.R.E. 703.

Once admitted as an expert,

[i]t is well-established that an expert may express an opinion

which is based on material not in evidence, including other expert

opinion, where such material is of a type customarily relied on by

experts in his or her profession. Such material may be disclosed

at trial even though it might otherwise be hearsay (e.g., where

the material is the opinion of a treating physician or other expert

and that expert does not testify). Such hearsay is admissible

because the expert's reliance on the material provides its own

indication of the material's trustworthiness: The fact that experts

reasonably and regularly rely on this type of information merely

to practice their profession lends strong indicia of reliability to

source material, when it is presented through a qualified expert's

eyes.

Boucher v. Pennsylvania Hosp., 831 A.2d 623, 628 (Pa. Super. 2003)

(internal citations and quotations omitted).

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“Further, the weight to be given to an expert's testimony is for the

factfinder.” Rigler v. Treen, 660 A.2d 111, 116 (Pa. Super. 1995) (citation

omitted). “In reviewing the trial court's exercise of its discretion on this issue,

we also keep in mind that the law of Pennsylvania imposes a liberal standard

for qualification of an expert, allowing a witness to testify as an expert if he

has any reasonable pretension of specialized knowledge on the subject under

investigation.” Id. (internal citation and quotations omitted).

Here, the trial court determined that Batts was a qualified expert as a

certified real estate appraiser, with a degree in urban planning, who was

qualified to testify about repair costs and loss in market value. Trial Court

Opinion, 8/2/2023, at 15. The trial court stated that “Batts inspected the

property, was accompanied by a contractor [from Swift & Sons], and

developed a report based upon his observations and the documents he

reviewed” and his “methodology is generally accepted[.]” Id. Moreover, the

trial court found that it was not error for Batts to rely on the Swift & Sons

report because “an expert may express an opinion which is based on material

not in evidence, including other expert opinion, where such material is relied

upon by experts in his or her profession” and that “appraisal experts

reasonably and regularly in their role[s, as appraisers,] bring a contractor to

get estimates for the cost of repairs, in addition to evaluating the property

with their own expertise.” Id. at 16. On the other hand, the trial court

determined that Appellants’ expert, Rosen, “testified that his report did not

rely upon any plans, inspection approvals, violations, Geotech reports, the

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cost repair estimate prepared [by] the contractor, or any other construction

documents.” Id. at 20. Because Rosen only relied upon his visual inspection

of the subject property, the trial court “ordered [] Rosen to not testify about

the Swift & Sons construction estimate” and instead “confined the expert

witness to the four corners of his report.” Id.

Based upon our review of the record and the applicable law as forth

above, we discern no abuse of discretion or error of law regarding the

admission of expert testimony. It was not error to permit Batts to testify as

an expert in real estate appraisal or for him to rely on an estimate from a

contractor who, along with Batts, was present for inspection following the

alleged damage. The bulk of Appellants’ claim, however, goes to the weight

of expert opinion, not admissibility. The trial court had discretion to admit

and appropriately weigh the evidence. Based upon our appellate standard of

review, we will not usurp those determinations, and we conclude that the trial

court did not abuse its discretion in considering the scope of Rosen’s

testimony. Accordingly, we conclude that Appellant’s first two issues are

without merit.

Next, as set forth in the third issue above, Appellants contend that the

trial court erred by holding Keisserman personally, jointly, and severally liable

with VRTX. Id. at 15-25. Appellants argue that although “Keisserman owned

the property at 2332 East Thompson Street [and h]e financed the

construction, [he] had no hand in managing construction, was never at the

jobsite, hired VRTX to manage and direct all construction activities and

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subcontractors, including the foundation subcontractors who performed the

underpinning [work] that [Plaintiffs], and the trial court, assert[] was the

cause of damage[.]” Id. at 23-24. As such, Appellants maintain that “[t]here

were no allegations or testimony adduced at trial [which established] that

individual Keisserman personally engaged in any acts constituting trespass,

private nuisance, or negligence.” Id. at 15; see also id. at 20 (“[Plaintiffs]

introduced no evidence that individual Appellant Keisserman breached any

duty of care ow[]ed because Keisserman performed no work at issue on the

properties at issue.”) (emphasis in original).

According to Appellants, the trial court, in concluding that Keisserman

could be held vicariously liable, erred in relying on Restatement (Second) of

Torts § 422A and § 819.5 Appellants contend that these provisions of the

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5 Section 422(A) provides, in pertinent part:

One who employs an independent contractor to do work which the

employer knows or should know to be likely to withdraw lateral

support from the land of another is subject to the same liability

for the contractor's withdrawal of such support as if the employer

had retained the work in his own hands.

Restatement (Second) of Torts § 422A (1965). Section 819 addresses

circumstances in which lateral support of land has been negligently withdrawn,

and states:

One who negligently withdraws lateral support of land in another's

possession, or of artificial additions to it, is subject to liability for

harm resulting to the other's land and to the artificial additions on

it.

Restatement (Second) of Torts § 819 (1979).

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Restatement, which pertain to damage resulting from the removal of lateral

support by adjacent landowners, have not yet been adopted in Pennsylvania.

Id. at 16. Instead, Appellants argue that only Sections 409, 416, and 427 of

the Restatement are applicable since they have been adopted in Pennsylvania.

Appellants further point out that the applicable Restatement provisions

“provide [only] a narrow exception to the general rule that property owners

are not liable for the acts of independent contractors, i.e., where the work is

of the type that an employer should recognize as likely to create a special

danger or ‘peculiar risk’ of physical harm to others unless special precautions

are taken.” Id. at 17. Here, Appellants assert that Plaintiffs did not aver in

their complaint, and did not otherwise present evidence to suggest, “that

excavation and underpinning are unusually dangerous activities.” Id. at 18.

Moreover, Appellants assert that there were no allegations or evidence

presented suggesting “Keisserman [under]took any acts that would support

his individual liability for the acts of [] VRTX, an independent contractor.” Id.

at 19. Appellants suggest that there was no evidence that Keisserman

directed VRTX in its underpinning operations or that those operations

presented a particular risk “for [the purpose of] imputing vicarious liability in

construction work.” Id. at 20. Because VRTX was an independent contractor

and “[t]here was no evidence individual Appellant Keisserman acted

negligently,” Appellants contend that Plaintiffs “failed to plead vicarious

liability, or otherwise assert facts supporting a vicarious liability claim.” Id.

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at 20-23. Appellants, therefore, conclude that Keisserman was entitled to

post-trial relief.

Our review of a trial court's denial of a motion for post-trial relief is

limited:

Our review is limited to determining whether the trial court abused

its discretion or committed an error of law. An abuse of discretion

exists when the trial court has rendered a judgment that is

manifestly unreasonable, arbitrary, or capricious, has failed to

apply the law, or was motivated by partiality, prejudice, bias, or

ill will. If the alleged mistake concerned an error of law, we will

scrutinize for legal error. On questions of law, our standard of

review is de novo and our scope of review is plenary.

Zaleppa v. Seiwell, 9 A.3d 632, 635 (Pa. Super. 2010) (citations

and quotation marks omitted).

* * *

A plaintiff may pursue a negligence action against a defendant on

the theory of direct liability or vicarious liability. Under a direct

liability theory, a plaintiff seeks to hold the defendant responsible

for harm the defendant caused by the breach of a duty owing

directly to the plaintiff. Vicarious liability, on the other hand, is a

policy-based allocation of risk. Vicarious liability, sometimes

referred to as imputed negligence, means in its simplest form that,

by reason of some relation existing between A and B, the

negligence of A is to be charged against B although B has played

no part in it, has done nothing whatever to aid or encourage it, or

indeed has done all that he possibly can to prevent it. Once the

requisite relationship (i.e., employment, agency) is demonstrated,

the innocent victim has recourse against the principal, even if the

ultimately responsible agent is unavailable or lacks the ability to

pay.

Green v. Pa. Hosp., 123 A.3d 310, 316 (Pa. 2015) (citations and

quotation marks omitted).

* * *

Under Pennsylvania law, in order to hold an employer vicariously

liable for the negligent acts of its employee, these acts must be

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committed during the course of and within the scope of the

employment.

[Generally,] [t]he conduct of an employee is considered

within the scope of employment for purposes of vicarious

liability if: (1) it is of a kind and nature that the employee is

employed to perform; (2) it occurs substantially within the

authorized time and space limits; (3) it is actuated, at least

in part, by a purpose to serve the employer; and (4) if force

is intentionally used by the employee against another, the

use of force is not unexpected by the employer.

Ludwig v. McDonald, 204 A.3d 935, 943 (Pa. Super. 2019)

(citations and quotation marks omitted); see also Restatement

2d of Agency, § 228.

“Generally, the scope of [an employee's] employment is a fact

question for the [factfinder]. Where the facts are not in dispute,

however, the question of whether ... the [employee] is within the

scope of this [] employment is for the court.” Ferrell v. Martin,

419 A.2d 152, 155 (Pa. Super. 1980); see also Ludwig, 204 A.3d

at 943.

Spencer v. Johnson, 249 A.3d 529, 549–550 (Pa. Super. 2021). Our

Supreme Court has stated that it is the plaintiff’s burden to prove negligence

“against a defendant on theories of direct and vicarious liability, asserted

either concomitantly or alternately.” Scampone v. Highland Park Care

Ctr., LLC, 57 A.3d 582, 597 (Pa. 2012).

Pennsylvania courts look to the Restatement (Second) of Torts to

ascertain whether an employer is liable for the actions of an independent

contractor. Pursuant to Restatement (Second) of Torts, § 409, “the employer

of an independent contractor is not liable for physical harm caused to another

by an act or omission of the contractor or his servants.” Restatement

(Second) of Torts § 409 (1965) (adopted as law in Pennsylvania in

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Philadelphia Elec. Co. v. James Julian, Inc., 228 A.2d 669 (Pa. 1967)).

“An exception to this general rule is recognized, where the independent

contractor is hired to do work which the employer should recognize as likely

to create a special danger or peculiar risk of physical harm to others unless

special precautions are taken.” Motter v. Meadows Ltd. P'ship, 680 A.2d

887, 890 (Pa. Super. 1996), citing Restatement (Second) of Torts, §§ 416 and

427 (1965) (adopted as law in James Julian, supra).

More specifically, Section 416 of the Restatement (Second) of Torts,

provides:

One who employs an independent contractor to do work which the

employer should recognize as likely to create during its progress

a peculiar risk of physical harm to others unless special

precautions are taken, is subject to liability for physical harm

caused to them by the failure of the contractor to exercise

reasonable care to take such precautions, even though the

employer has provided for such precautions in the contract or

otherwise.

Restatement (Second) of Torts § 416 (1965).

Likewise, Section 427 of the Restatement (Second) of Torts, states:

One who employs an independent contractor to do work involving

a special danger to others which the employer knows or has

reason to know to be inherent in or normal to the work, or which

he contemplates or has reason to contemplate when making the

contract, is subject to liability for physical harm caused to such

others by the contractor's failure to take reasonable precautions

against such danger.

Restatement (Second) of Torts § 427 (1965). “[T]his Court has noted that

the terms ‘special danger’ or ‘peculiar risk’ are used interchangeably.”

Edwards v. Franklin & Marshall Coll., 663 A.2d 187, 189 (Pa. Super. 1995)

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(citation omitted). These exceptions are to be viewed narrowly. Motter, 680

A.2d at 891; see also Ortiz, 528 A.2d at 1359 (citation omitted) (“In order

for the liability concepts involving contractors to retain any meaning,

especially in industries such as construction where almost every job task

involves the potential for injury unless ordinary care is exercised, peculiar risk

situations should be viewed narrowly, as any other exception to the general

rule is usually viewed.”).

With regard to special danger and peculiar risk, as we explained in Ortiz

v. Ra-El Dev. Corp., 528 A.2d 1355 (Pa. Super. 1987):

The rationale underlying liability is that an employer of the

independent contractor ought to anticipate a heightened level of

risk where the work is especially dangerous or peculiarly risky. It

is reasonable for the employer to take precautions or cause the

independent contractor to take precautions to minimize the

possibility of injury to others. After all, it is the employer who

primarily benefits from the contractor's work and the employer

who selects the independent contractor. Furthermore, the

employer is in a position to make the selection of the independent

contractor based on competency. The employer also may demand

indemnity from the contractor. Finally, the employer, anticipating

the risk, can purchase insurance to cover it.

* * *

The question then becomes, what constitutes a ‘special danger’ or

‘peculiar risk?’ … We [held] that a special danger or peculiar risk

exists where:

1) the risk is foreseeable to the employer of the independent

contractor at the time the contract is executed, i.e., a

reasonable person, in the position of the employer, would

foresee the risk and recognize the need to take special

measures; and

2) the risk is different from the usual and ordinary risk

associated with the general type of work done, i.e., the

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specific project or task chosen by the employer involves

circumstances that are substantially out-of-the-ordinary.

Ortiz, 528 A.2d 1355, 1357–1358 (internal citation omitted; emphasis in

original). We have found that “the definition of ‘peculiar risk’ or ‘special

danger’ requires that ‘... the risk be recognizable in advance and contemplated

by the employer [of the independent contractor] at the time the contract was

formed.... [and that] it must not be a risk created solely by the contractor's

‘collateral negligence’ ... [i.e.,] negligence consisting wholly of the improper

manner in which the contractor performs the operative details of the work.’”

Edwards, 663 A.2d at 190 (internal citation omitted).

Here, as Appellants suggest, the trial court erroneously failed to

undertake any analysis to determine the applicability of Restatement (Second)

of Torts, §§ 409, 416, and 427, as adopted in Pennsylvania. It was Plaintiffs’

burden to plead and prove Keisserman’s vicarious liability and, in this case,

undertake an inquiry into whether the excavation at issue constituted a

peculiar risk or special danger as required. The trial court’s subsequent failure

to analyze the facts of this case pursuant to Ortiz, supra, constituted legal

error.6

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6 Furthermore, we recognize that “[c]haracterizing all excavation work as

involving a special danger or peculiar risk would render the terms ‘special

danger’ or ‘peculiar risk’ meaningless” and “to find every trench inherently

dangerous would allow the exception[s] … of the Restatement to swallow the

general rule in Section 409[.]” Dunkle v. Middleburg Mun. Auth., 842 A.2d

477, 484 (Cmwlth. Ct. 2004) (examining Motter and concluding that where

there has been a failure to establish that the particular trenching presented a

(Footnote Continued Next Page)

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Instead, the trial court applied §§ 422(A) and 819, set forth above,

(neither of which have been adopted by our Supreme Court as the common

law of Pennsylvania) without assessing § 409 and the narrow exceptions

adopted under Pennsylvania law in §§ 416 and 427. The Restatement

(Second) has not been adopted in its entirety in Pennsylvania and specific

sections do not become the law in the Commonwealth until our Supreme Court

adopts each individually:

The Restatements are the product of the American Law Institute,

a non-profit organization of 4000 lawyers, judges, and law

professors, established to produce scholarly work to clarify,

modernize, and otherwise improve the law. They synthesize the

common law and articulate the reasoned, mainstream, modern

consensus.

To be sure, even when restatement provisions have been adopted

by [our Supreme] Court, they are not controlling in the manner of

a statute.

Marion v. Bryn Mawr Tr. Co., 288 A.3d 76, 86 (Pa. 2023) (internal citations,

quotations, ellipses, and original brackets omitted); citing Coyle by Coyle v.

Richardson-Merrell, Inc., 584 A.2d 1383, 1385 (Pa. 1991) (“Even where

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peculiar risk or danger, “the trial court correctly applied the common law rule

that an employer will not be held vicariously liable for the tortious conduct of

its contractors”). “This is not to say that all trenching activities are ordinary”

and the “plaintiff still has the opportunity to establish that ‘the risk is different

from the usual and ordinary risk associated with the general type of work

done.’” Dunkle, 842 A.2d at 484 (citation omitted). “The distinction between

ordinary risk and peculiar risk is a mixed question of law and fact which can

be made, in clear cases, by the trial judge as a matter of law” but, again,

“should be viewed narrowly” as exceptions to the general rule. Motter, 680

A.2d at 891 (citations omitted). Here, however, neither Plaintiffs nor the trial

court undertook such an assessment before, during, or after trial.

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[our Supreme] Court has ‘adopted’ a section of the Restatement as the law of

Pennsylvania, the language is not to be considered controlling in the manner

of a statute. Such precepts, though they may govern large numbers of cases,

are nothing other than common law pronouncements by the courts; their

validity depends solely on the reasoning that supports them. Where the facts

of a case demonstrate that the rule outruns the reason, the court has the

power, indeed the obligation, to refuse to apply the rule, a power for the most

part unavailable where the rule is legislatively ordained. Were it otherwise,

[the Pennsylvania Supreme Court’s] recognition of the work of the American

Law Institute would approach an improper conferral of legislative authority.”).

Thus, as they have not been adopted by our Supreme Court, it was error for

the trial court to rely upon Sections 422(A) and 819 of the Restatement

(Second) of Torts. As “[a]n intermediate appellate court, this Court is

obligated to follow the precedent set down by our Supreme Court. It is not

the prerogative of an intermediate appellate court to enunciate new precepts

of law or to expand existing legal doctrines. Such is a province reserved to

the Supreme Court.” Bell v. Willis, 80 A.3d 476, 479 (Pa. Super. 2013). For

these reasons, the trial court erred in relying upon Restatement Second of

Torts, Sections 422(A) and § 819.

The trial court further relied upon the Pennsylvania Supreme Court’s

1954 decision in Warfel v. Vondersmith, 101 A.2d 736 (Pa. 1954). In that

case,

a general contractor, entered into a contract with Lancaster

Newspapers, Inc., to demolish old structures and erect a new

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building on property belonging to it in the City of Lancaster. The

new building was of heavy construction and required excavation

for foundations and cellar to a depth of [] 16 to 20 feet below the

street level. Defendants are the owners of a property adjoining

that of the Newspapers, and on it was erected a two-story brick

store building together with a one-story structure used as a store

room. These buildings were situated along the boundary line

between the two properties; neither of them had a cellar or

basement, but they rested on foundations which in general

extended not more than 3 or 4 feet below the surface of the

ground.

Plaintiff's plans called for an excavation along the boundary line

for a distance of approximately 160 feet. Before starting

operations [plaintiff] notified defendants of his intentions and that

they should take all necessary measures to support their

buildings. After some consultation and negotiations which proved

abortive, defendants employed another contractor who undertook

to protect their buildings from collapse by erecting certain

temporary roof props or cribbing inside their buildings. Plaintiff

notified defendants that in his opinion these precautions were

wholly inadequate, but defendants refused to do any underpinning

or shoring outside or under their buildings. Thereupon, allegedly

in order to prevent interference with his work and injury to his

workmen or other persons, plaintiff proceeded to underpin

defendants' buildings at a cost of $3,572.37. Defendants had

given plaintiff permission to enter upon their premises for that

purpose but made no promise, express or implied, to pay the cost.

Plaintiff brought the present action to recover the cost of the work.

Defendants not only denied any obligation on their part to make

such payment but filed a counterclaim for alleged damage to their

property due to blasting and other operations conducted by

plaintiff. The jury returned a verdict for plaintiff in the sum of

$3,183.05, apparently the full amount of the claim less part of the

counterclaim.

Warfel, 101 A.2d at 737.

The trial court herein relied upon certain selected portions of the Warfel

decision to conclude that Keisserman was personally and vicariously liable for

the acts of VRTX. Trial Court Opinion, 8/2/2023, at 11-14. Citing Warfel,

the trial court concluded that an owner of land is entitled to lateral support

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and if an adjoining owner excavates such support and causes the land to fall,

the excavating owner is responsible for damages without regard to the degree

of care exercised or if the work was performed by an independent contractor.

See id. at 11. The trial court further noted that “[t]he excavating owner does

have the duty to give notice to the adjoining owner of his intention to excavate

and thus afford the latter an opportunity to protect his buildings from all likely

injury.” Id.

However, the trial court did not mention, let alone examine or consider,

other relevant portions of the Warfel decision. Importantly, the Warfel Court

stated, in full:

As far as the rights and obligations of one excavating on his own

property are concerned the law is so well established as to require

no citations of the multitude of authorities. At common law an

owner of land is entitled to have it supported in its natural

condition by the land of the adjoining proprietor. This right to

lateral support is a natural right, not simply an easement but an

incident to the land, -a right of property attached to and passing

with the soil. If the adjoining owner by excavation removes such

support, thereby causing the land to fall, he is responsible in

damages without regard to his degree of care or to the fact that

the excavation may have been performed by an independent

contractor. The right to lateral support, however, does not

extend to structures erected on the property which

materially increase the lateral pressure and therefore

contribute to the subsidence of the land. As far as such

structures are concerned an owner may lawfully excavate

on his land although he injures [the structures]; in the

absence of negligence (which varies with the

circumstances) he is not obliged to underpin or otherwise

support them and he incurs no liability for damage which

may be caused them by the excavation. His only duty is to

give notice to the adjoining owner of his intention to excavate and

thus afford the latter an opportunity of protecting his buildings

from all likely injury.

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So much as to the well recognized rights and duties of the

excavating owner. But when we come to a consideration of

the rights and obligations of the adjoining owner we find a

marked dearth of authoritative judicial decision. True, it is

generally held that if such owner wishes to protect his

buildings from collapse it is for him to take the necessary

measures at his own expense. But is he obliged, as a duty

to the excavating owner or contractor, to underpin and

shore up his buildings, and, if he refuses so to do after

having been properly notified, can the excavating owner or

contractor thereupon perform that work and compel him to

pay the cost thereof? The weight of existing authority is to

the effect that his failure to support his building does not

authorize the excavating owner or contractor to do so at

the adjoining owner's expense.

Warfel, 101 A.2d at 737–738 (emphasis added). The trial court herein simply

ignored the language emphasized above.

Moreover, to support its decision, the Warfel Court examined cases in

other jurisdictions to ultimately conclude:

the excavating owner is under no duty to shore up, underpin or

otherwise protect buildings on adjoining land, and, if the adjoining

owner desires such protection he must himself take the necessary

measures for that purpose, such adjoining owner is not obliged to

take such action but may, if he so chooses, allow his building to

remain in the condition resulting from the work of excavation in

the neighboring property. If, on the other hand, the excavating

owner or his contractor deems it necessary for purposes of their

own to shore up or underpin buildings on the adjoining land they

may themselves perform such work but at their own expense.

Id. at 739–740. The trial court did not address these aspects of Warfel.7

____________________________________________

7 Finally, upon further review we note that Warfel has only been cited

generally in one other decision in the Commonwealth, not applicable herein.

Rhoads Indus., Inc. v. Shoreline und., Inc., 2022 WL 612662 (E.D. Pa.

Mar. 1, 2022) (unpublished memorandum). The Rhoads court was called

(Footnote Continued Next Page)

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For all of the foregoing reasons, the trial court erroneously found

Keisserman vicariously liable based upon the record before us. Plaintiffs bore

the burden of pleading and then establishing their claims against both

defendants and did not do so. More specifically, Plaintiffs needed to assert

and prove negligence against both parties to show joint and several liability

or, alternatively, negligence against VRTX, as contractor, with vicarious

liability attributed to Keisserman.8 Moreover, in proving vicarious liability

____________________________________________

upon to determine whether the case, involving “pile driving” should survive

summary judgment or required expert testimony. The Rhoads Court noted

that “the Pennsylvania Supreme Court has long-held that ‘one who employs

an independent contractor to do work involving a special danger to others’

may be subject to liability for resulting harm, such as damage to physical

property” but recognized that “a determination as to whether pile driving is

an ‘abnormally dangerous activity’ under Pennsylvania law [was] not presently

before” it. Id. at *6 and n.8.

8 Upon review of the record, we note the following. Initially, Plaintiffs’

complaint named Appellants individually. See Complaint, 10/2/2020, at ¶¶ 2

and 3 (“Defendant, Boris Keisserman, is an adult individual[;] Defendant VRTX

Investments, Inc, is a Pennsylvania corporation[.]”). However, at counts I-IV

of the complaint, Plaintiffs failed to differentiate the defendants on theories of

direct and vicarious liability, either concomitantly or alternately. See id. at ¶

28 (“As a result of Defendants’ trespass, Plaintiffs have suffered and are

continuing to suffer damages[.]”), ¶ 35 (“As a result of Defendants’ wrongful

interference, Plaintiffs have suffered and are continuing to suffer damages”

for private nuisance.), ¶ 42 (“As a result of Defendants’ negligence, Plaintiffs

have suffered damages[.]”), and ¶ 52 (“As a result of Defendants’ negligence

[per se], Plaintiffs have suffered damages[.]”). Eventually, Plaintiffs argued

that Keisserman was vicariously liable pursuant to Warfel and Restatement

(Second) of Torts § 819. See Plaintiffs’ Trial Brief, 10/25/2022, at 6-7.

Appellants, however, filed a trial brief arguing that Keisserman could not be

held personally liable as a matter of law pursuant to Ortiz and Restatement

(Second) of Torts §§ 409, 416, and 427. See Defendant’s Trial Memorandum

of Law, 10/25/2022, at *2-4 (unpaginated). Plaintiffs, thereafter, failed to

(Footnote Continued Next Page)

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against Keisserman, Pennsylvania law required Plaintiffs to show a special

danger or a peculiar risk as exceptions to the general rule that an employer

not generally liable for the physical harm caused by a contractor pursuant to

Restatement (Second) Torts §§ 409, 416, and 427. Because excavation work

is not generally considered a special danger or peculiar risk, Plaintiffs

____________________________________________

argue concomitant or alterative theories of direct and vicarious liability in their

opening argument before the trial court. See N.T., 10/24/2022, at 9 (“My

clients and the witness testimony here today is going to show and describe

negligent defective construction and what happens to innocent homeowners

who are forced to live next to such work.”). In closing, Plaintiffs solely relied

upon Warfel. See N.T., 10/25/2022, at 115 (“In Warfel[,] the Supreme

Court established a principle of law back in 1954 that holds through to the

current day, and that principle is, [“]if the adjoining landowner by excavation

removes such support thereby [causing] the land to fall, he is responsible for

damage without regard to the degree of care or to the fact that the excavation

may have been performed by an independent contractor.[”]); see also id. at

121 (“[A]s a matter of law[, …]an owner of the property is always liable for

damage caused by an adjacent property during underpinning[.]”). In

contrast, Appellants, in their opening argument asserted that there was no

evidence “that Boris Keisserman, the individually named defendant, was

directing the construction activity on the property and as a matter of law []

cannot be held legally responsible as employer of an independent contractor

who he had hired, paid to manage the construction and work at the site.”).

N.T., 10/24/2022, at 11. Appellants argued similarly in closing. N.T.,

10/25/2022, at 126-127 (arguing Keisserman could not be held liable as a

matter of law because he never went to the property, had no involvement in

hiring subcontractors or “the underpinning team,” and did not direct

construction and that VRTX admitted that it “was solely responsible for

building and managing the property.”). In their post-trial motion, Appellants

continued to argue that Keisserman was not vicariously liable. Appellants

pointed out to the trial court that “Plaintiff[s] failed to plead vicarious liability

or any facts supporting a vicarious liability claim.” Defendants’ Memorandum

of Law for Post-Trial Relief, 11/10/2022, at ¶ C(2); see id. (arguing that Ortiz

and Restatement (Second) Torts §§ 409, 416, and 427 control). Appellants

raised these same issues in their concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b). The trial court, however, never

addressed Appellants’ contentions throughout the litigation or in its

subsequent opinion pursuant to Pa.R.A.P. 1925(a).

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nonetheless had the opportunity to establish that the risk in this specific

instance was different from the usual and ordinary risk associated with the

general type of work done. In order to find vicarious liability, the trial court

was required to conduct an analysis pursuant to Ortiz and make an express

finding. Because the trial court did not, it erred as a matter of law in finding

Keisserman vicariously liable for VTRX’s negligence and Keisserman is entitled

to relief.

Although Appellants do not separately set forth this issue in their

statement of questions presented, Appellants next contend that Plaintiffs

failed to prove causation by a preponderance of the evidence in order to

support a cause of action for negligence against VRTX. Appellants’ Brief at

25. Appellants’ claim turns largely on “pre-existing structural cracking and

water infiltration” in Plaintiffs’ basement as identified by a home inspection

predating the construction at issue. Id. at 26-29. As a result, Appellants

contend that Plaintiffs “failed to distinguish how this pre-existing damage …

was distinct from any alleged damage caused by Appellant VRTX.” Id. at 30.

We will examine this portion of Appellants’ claim with the fourth appellate

issue above, that Plaintiffs were comparatively negligent for failing to fix

“preexisting structural cracks, including cracks in the basement, substandard

framing beneath the first floor, and ongoing water filtration issues at the time

[Plaintiffs] purchased their property.” Id. at 42. Thus, Appellants contend

that the preexisting damage to Plaintiffs’ home was “indistinguishable from

any new damage that might have arisen[.]” Id. at 42-43.

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Our Supreme Court has stated:

When reviewing a sufficiency of the evidence claim in a civil case,

an appellate court, viewing all the evidence and reasonable

inferences therefrom in the light most favorable to the verdict

winner, must determine whether the evidence was sufficient to

enable the factfinder to find that all the elements of the causes of

action were established by a preponderance of the evidence.

Whether a claim was established under a preponderance of the

evidence standard is tantamount to a “more likely than not”

inquiry.

Samuel-Bassett v. Kia Motors Am., Inc., 34 A.3d 1, 34–35 (Pa. 2011)

(internal citations, parentheticals, and most quotations omitted).

We previously determined:

In establishing a cause of action in negligence, plaintiffs bear the

burden of demonstrating that there was a duty or obligation

recognized by law, breach of that duty by the defendants, a causal

connection between the defendants' breach of that duty and the

resulting injury, and actual loss or damage suffered by the

complainants. Essential to [this] theor[y] is the element of

causation.

* * *

Cause in fact or ‘but for’ causation provides that if the harmful

result would not have come about but for the negligent conduct

then there is a direct causal connection between the negligence

and the injury.

First v. Zem Zem Temple, 686 A.2d 18, 21 (Pa. Super. 1996) (citations

omitted).9

____________________________________________

9 “It is well established that the burden of establishing comparative negligence

rests on the defendant. In demonstrating that the plaintiff was negligent, [a]

defendant has the burden of showing that [plaintiff’s] conduct was

unreasonable under the circumstances.” Rose v. Annabi, 934 A.2d 743, 746-

(Footnote Continued Next Page)

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Here, upon our review of the certified record, we are convinced that, by

a preponderance of the evidence, Plaintiffs proved damage, separate and

apart from the alleged pre-existing damage, that was caused by VRTX’s

excavation. Peter Tantala, admitted without objection as an expert engineer,

testified with the use of trial exhibits, that he observed, inter alia, “fresh recent

cracks between [] two windows, the first story and second story window, as

well as a fresh recent crack above the second story window emanating up

toward the roofline.” N.T., 10/24/2022, at 22; see also id. at 28 (“The

perpendicular wall to the right in this photo is the party wall, and that was the

wall being underpinned or undermined, and the orientation, the location, the

aperture, the width of those cracks, tells us a lot professionally about the

movement. [First], the cracks are fresh and recent. That is clear. Secondly,

the orientation of the cracks indicates that the party wall, as it was

undermined, moved both downward and had an outward lateral

component.”); see also id. at 33 (“In addition to numerous cracks on the

exterior of the building, there were [subtle] signs of cracks on the second

story floor, as well.”). Tantala attributed the damage to VRTX’s construction

because the cracks were in the vicinity of the undermining and had not been

there before construction as evidenced by prior documentation he reviewed.

____________________________________________

747 (Pa. Super. 2007). We reject Appellants’ suggestion that Plaintiffs were

comparatively negligent because, as we will explain, the evidence showed that

the new damage was wholly related to VRTX’s construction and separate and

apart from any prior condition of the property. As such, Plaintiffs did not act

unreasonably and this aspect of Appellant’s claim lacks merit.

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Id. at 23. Sean Sausman testified that after construction began, he noticed

a “giant crack in our house that was not there” previously. Id. at 127. He

described the crack as running the entire length of the basement floor and

then perpendicularly up the rear wall of the house. Id. Sausman further

testified that the new cracks also ran “up the rear exterior wall.” Id. at 128.

He “first noticed the cracking on November 10, 2019,” three days after VRTX

broke ground. Id. at 122-123.

Based on the foregoing evidence, we conclude that Plaintiffs proved by

a preponderance of the evidence that the harmful result would not have come

about but for VRTX’s negligent conduct and there was a direct causal

connection between the negligence and the injury. Appellants’ fourth issue

lacks merit.

In the last issue raised, Appellants contend that the trial court failed to

set forth facts that support its findings that Appellants committed trespass or

should be liable for private nuisance. Appellants’ Brief at 43-47. We examine

each tort separately.10

With regard to trespass, Appellants argue that Keisserman was not

individually liable because he was never “at the construction site or had

anything to do with construction activities aside from hiring Appellant VRTX”

____________________________________________

10 Initially, we recognize that these issues are not consequential as Appellants

fail to explain how vacating judgments for trespass and nuisance would affect

damages in this case. Damages were not apportioned by the trial court and

were awarded solely for repair costs to Plaintiffs’ home as alleged in the count

for negligence.

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and there was no evidence “that VRTX intentionally entered [Plaintiffs’]

property” or that damaging Plaintiffs’ sidewalk “was intentional [because]

Appellant VRTX repaired and replaced the sidewalk” promptly. Id. at 43-44.

Accordingly, Appellants argue that the trial court erred in finding Appellants

liable for trespass because Appellants “intended to be on the land to excavate

and intended for their cement truck to drive over Plaintiffs’ sidewalk.” Id. at

44-45, citing Trial Court Opinion, 8/2/2023, at 23.

Viewing all the evidence and reasonable inferences therefrom in the light

most favorable to the verdict winner, we must determine whether the

evidence was sufficient to enable the factfinder to find that all the elements of

the cause of action were established by a preponderance of the evidence. We

previously determined:

One is subject to liability to another for trespass, irrespective of

whether he thereby causes harm to any legally protected interest

of the other, if he intentionally

(a) enters land in the possession of the other, or causes a

thing or a third person to do so, or

(b) remains on the land, or

(c) fails to remove from the land a thing which he is under

a duty to remove.

In the context of a trespass, “intent” refers to intent to be on the

land.

It is, therefore, immaterial whether or not the actor honestly and

reasonably believes that the land is his own, or that he has the

consent of the possessor or of a third person having power to give

consent on his behalf, or that he has a mistaken belief that he has

some other privilege to enter.

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Stated another way, a person is a trespasser merely by intending

to be where he is. The intent to be on another's land is not

required to prove trespass.

* * *

Additionally, one who intentionally causes a third person to enter

another's land is liable for trespass:

If, by any act of his, the actor intentionally causes a third

person to enter land, he is as fully liable as though he

himself enters. Thus, if the actor has commanded or

requested a third person to enter land in the possession of

another, the actor is responsible for the third person's entry

if it be a trespass. This is an application of the general

principle that one who intentionally causes another to do an

act is under the same liability as though he himself does the

act in question. So too, one who by physical duress causes

a third person to go upon the land of another or who carries

the third person there against his will is liable as a

trespasser, although the third person may not be liable.

A person who authorizes or directs another to trespass is himself

liable as a trespasser to the same extent as if the trespass were

committed directly by himself. This is true even though the

authority or direction be given to one who is an independent

contractor.

Liberty Place Retail Assocs., L.P. v. Israelite Sch. of Universal Prac.

Knowledge, 102 A.3d 501, 506-507 (Pa. Super. 2014) (internal citations and

original brackets omitted).

More specifically, in Liberty Place, we examined our Supreme Court’s

seminal trespass decision in Kopka v. Bell Tel. Co. of Pa., 91 A.2d 232, 235

(1952), and further clarified:

In Kopka, the defendant clearly intended to cause the third party

to trespass. The defendant (a telephone company) had an

agreement with the third party to dig holes for telephone wires

and to erect the wires. Kopka, 91 A.2d at 233. The defendant

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had directed the third party where to dig holes and erect the

telephone poles, including over the plaintiff's land for which the

defendant lacked an easement. Id. On those facts, our Supreme

Court found the defendant liable even though it did not enter the

plaintiff's land. Id. at 234.

Liberty Place, 102 A.3d at 507.

Based on the foregoing, we reject Appellants’ claim that VRTX did not

intentionally enter Plaintiffs’ property without authority. There is no dispute

that VRTX was responsible for driving a cement truck over Plaintiffs’ land.

VRTX was trespassing merely by intending to be where it was and the intent

to be on another's land was not required to prove trespass. Moreover, in

contrast to Kopko, here, there is no evidence that Keisserman gave authority

or directed VRTX to trespass. The owner of VRTX testified that Keisserman

owned the property and only financed the job. N.T., 10/25/2022, at 6. He

later confirmed that Keisserman’s limited involvement in the project was to

“write checks and hire the architect.” Id. at 30. Keisserman testified

similarly. He denied directing VRTX, testifying that he was “not involved at

all,” that he “[j]ust paid” but VRTX managed all aspects of construction and

was “responsible for the entire project.” N.T., 10/24/2022, at 256. As such,

there was simply no evidence that Keisserman directed VRTX to trespass.

Therefore, there was evidence that VRTX was liable for trespass, but the trial

court erred by determining Keisserman was also liable. Hence the trial court

erred in entering judgment against Keisserman for trespass.

Finally, Appellants assert there were no facts to support a finding that

Appellants were liable for private nuisance. Appellants’ Brief at 45. Appellants

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claim that “VRTX was engaging in lawfully permitted work that was interrupted

by a neighbor who had speculative fears and anxiety about construction next

door.” Id. at 46. Appellants suggest that “anxiety is not a basis for a lawsuit

and more specifically, not the basis for a nuisance claim.” Id. Appellants

suggest that the trial court relied “solely on Appellant[s] having received

[building] violations … where there was no testimony that [Plaintiffs] could

not, or at any relevant time did not, live in their home or were forced to avoid

or not use any room or appliance, or curtail their homelife in anyway

whatsoever.” Id. at 46-47.

Viewing all the evidence and reasonable inferences therefrom in the light

most favorable to the verdict winner, we must determine whether the

evidence was sufficient to enable the factfinder to find that all the elements of

the cause of action were established by a preponderance of the evidence. We

have previously determined:

In Waschak v. Moffat, 109 A.2d 310 (Pa. 1954), our Supreme

Court adopted Restatement of Torts § 822 as the law of

Pennsylvania. In Kembel v. Schlegel, 478 A.2d 11 (Pa. Super.

1984), we ruled that the successor section in the Restatement

(Second) of Torts § 822 contained the authoritative definition of

the tort of private nuisance. Section 822 provides:

§ 822. General Rule

One is subject to liability for a private nuisance if, but only if, his

conduct is a legal cause of an invasion of another's interest in the

private use and enjoyment of land, and the invasion is either

(a) intentional and unreasonable, or

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(b) unintentional and otherwise actionable under the rules

controlling liability for negligent or reckless conduct, or for

abnormally dangerous conditions or activities.

The Restatement indicates that a defendant is not subject to

liability for an invasion unless the invasion caused significant

harm, which is defined as:

§ 821F. Significant Harm

There is liability for a nuisance only to those to whom it

causes significant harm, of a kind that would be suffered by

a normal person in the community or by property in normal

condition and used for a normal purpose.

Comment C to section 821F further explains the meaning of

significant harm:

c. Significant harm. By significant harm is meant harm of

importance, involving more than slight inconvenience or

petty annoyance. The law does not concern itself with

trifles, and therefore there must be a real and appreciable

invasion of the plaintiff's interests before he can have an

action for either a public or private nuisance....

[I]n the case of a private nuisance, there must be a real and

appreciable interference with the plaintiff's use or

enjoyment of his land before he can have a cause of action.

....

When [the invasion] involves only personal discomfort or

annoyance, it is sometimes difficult to determine whether

the invasion is significant. The standard for the

determination of significant character is the standard of

normal persons or property in the particular locality. If

normal persons living in the community would regard the

invasion in question as definitely offensive, seriously

annoying or intolerable, then the invasion is significant.

Karpiak v. Russo, 676 A.2d 270, 272–273 (Pa. Super. 1996).

Here, Appellants’ claim merely challenges whether there was significant

harm that caused an invasion of Plaintiffs’ interest in the private use and

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enjoyment of their land. Upon our review of the record, Sean Sausman

testified extensively that the construction at issue caused Plaintiffs fear and

anxiety about the structural integrity and safety of their home. See N.T.,

10/24/2022, at 123 (“I wanted to make sure it was a safe home for my wife

and I.”); see also id. at 127 (“I had no idea at the time when we first noticed

[cracking]. I thought the most important thing was to make sure it wasn’t

extending. … Again, I wasn’t sure what to do and my wife was very upset. I

was trying to figure out what our next steps would be[.]”); id. at 130 (“[W]e

monitored extensively. … I had a lot of anxieties and fears about the

underpinning process.”). Based upon the foregoing we conclude that Plaintiffs

provided sufficient evidence that normal persons living in the community

would regard the invasion in question as definitely offensive, seriously

annoying or intolerable, and, therefore the invasion was significant. As such,

Plaintiffs were entitled to judgment against VRTX. With regard to Keisserman,

however, as previously noted in our discussion of trespass, there was simply

no evidence that Keisserman directed VRTX’s activities. Therefore, there was

evidence that VRTX was liable for private nuisance, but the trial court erred

by determining Keisserman was also liable and, therefore, the trial court erred

in entering judgment against Keisserman for private nuisance. 11

____________________________________________

11 Finally, we recognize that the same firm represented both VRTX and

Keisserman throughout litigation and on appeal. See Plaintiffs’ Reply Brief, at

5 n.2. “[A] lawyer shall not represent a client if the representation involves a

concurrent conflict of interest” where, inter alia, “the representation of one

(Footnote Continued Next Page)

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Judgment vacated as to Keisserman. Case affirmed in all other respects.

Jurisdiction relinquished.

Judge Nichols concurs in the result.

Judge Colins files a Concurring Statement which Judge Nichols joins.

____________________________________________

client will be directly adverse to another client” or “there is a significant risk

that the representation of one or more clients will be materially limited by the

lawyer's responsibilities to another client[.]” Pa.R.P.C. 1.7. “[A]ttorneys will

not be permitted to represent conflicting interests unless those interests agree

to be so represented.” Seifert v. Dumatic Indus. Inc., 197 A.2d 454, 455

(Pa. 1964). “It is unprofessional to represent conflicting interests, except by

express consent of all concerned given after a full disclosure of the facts.” Id.

“Within the meaning of [Canon 6 of the Canons of Professional Ethics], a

lawyer represents conflicting interests when, on behalf of one client, it is his

duty to contend for that which duty to another client requires him to oppose.”

Id. at 455 n.2. On appeal, Plaintiffs may have discovered the potential

divergence of interests at this late stage, however, Plaintiffs’ failure to

distinguish between defendants at trial, as detailed at length at n. 8, shows

that Plaintiffs never did anything to bring the conflict before the trial court,

including lodge their own appeal. In turn, at trial, counsel for Appellants were

never called upon to advocate for one client at the expense of another. Under

these circumstances, Plaintiffs failed to raise the issue before the trial court

and the trial court had no occasion to enter an order addressing a potential

conflict. After the appeal was taken, Keisserman then asserted a lack of

evidence to prove vicarious liability and Appellants had every right to

challenge the trial court’s judgment as insufficient under Pennsylvania law. To

the extent that Plaintiffs now suggest that there was a conflict of interest, as

an error correcting court, we find the issue waived. See Pa.R.A.P. 302(a)

(“Issues not raised in the trial court are waived and cannot be raised for the

first time on appeal.”).

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Date: 12/3/2024

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