Weeks, M. v. G&E Real Estate Management Services

J-A10025-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARTIN WEEKS, JR. IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

G&E REAL ESTATE MANAGEMENT

SERVICES, INC., D/B/A NEWMARK

GRUBB KNIGHT FRANK; CROWN ENERGY

SERVICES, INC. OF CALIFORNIA D/B/A

ABLE ENGINEERING SERVICES, INC.;

AND GCCFC 2007-GG9 MALL OFFICE

LIMITED PARTNERSHIP

Appellees No. 2355 EDA 2016

Appeal from the Judgment Entered September 15, 2016

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): 1957 July Term, 2014

BEFORE: DUBOW, J., SOLANO, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SOLANO, J.: FILED SEPTEMBER 28, 2017

Appellant, Martin Weeks, Jr., appeals from the judgment entered on

September 15, 2016, in favor of Appellees, G&E Real Estate Management

Services, Inc., d/b/a Newmark Gruff Knight Frank (“G&E Real Estate”);

Crown Energy Services, Inc. of California, d/b/a Able Engineering Services,

Inc. (“Crown”); and GCCFC 2007-GG9 Mall Office Limited Partnership

(“GCCFC Partnership”) in this negligence action. We affirm.

We rely on the trial court’s description of this case:

This matter involves an electrocution incident that occurred at

the Public Ledger Building (“Public Ledger Building” or

“Property”) in Philadelphia. The Public Ledger Building is a

[twelve]-story, Georgian Revival-style office building that was

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built in 1924 and located at the corner of 6th and Market

Streets, overlooking historic Independence Mall. In March 2014,

the building owners, LNR Partners, LLC (“LNR”) foreclosed upon

the Public Ledger Building, due to their default on a $42.5 million

loan secured by the Property. GCCFC Partnership, an entity

controlled by LNR, then took ownership of the Public Ledger

Building and engaged G&E Real Estate to manage the Property.

In turn, G&E Real Estate subcontracted responsibility for

performing the building’s maintenance and repairs to [Crown].

Andrew Pogas (chief engineer for [Crown]) [and] Timothy Borek

(assistant chief engineer and plant manager for [Crown]) were

employees of [Crown], and responsible for the Public Ledger

Building during the aforementioned subcontracting agreement.

In early May 2014, Pogas hired Appellant and Appellant’s

acquaintance, Allen Madjarcic, to remove trash and other

unwanted materials from the Property. This was debris that was

typically discarded by various building tenants moving in and

out. This work was given with the understanding that neither

man would be paid for his effort; instead, Appellant and

Madjarcic were given permission to remove scrap metal from the

Property, which they could then sell for cash at a junkyard.

On the days they were offered work, Appellant and Madjarcic

followed a specific routine. They would drive [to] the Public

Ledger Building early-to-midmorning, park their truck by the

Property’s freight elevator, and then call to say they had arrived.

Either Timothy Borek or Andrew Pogas would then come down

from their office on the Property’s 13th floor via the freight

elevator and meet them in the parking area. Borek or Pogas

would escort [Appellant and Madjarcic] to wherever [they] were

[supposed to work] that day and give [Appellant and Madjarcic]

instruction [about] what to take and what not to take. Pogas

and/or Borek would tell the men to clean out a specific area of

the Property, such as a single room, and would keep tabs on

Appellant and Madjarcic as they worked to complete that day’s

assignment. Once they fulfilled each task, Appellant and

Madjarcic would then return to Pogas for further instructions.

Finally, Appellant and Madjarcic would leave the Public Ledger

Building before 3 PM, so that they could get to the junkyard with

their haul before closing time.

After working their way through the Property’s upper floors over

the course of several months, Appellant and Madjarcic eventually

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started working in its basement, which covered a massive area

approximately four to five football fields in size. In June 2014,

Bogas took Appellant and Madjarcic on a walkthrough of the

basement, during the course of which Appellant became fixated

with one of the Public Ledger Building’s switchgears, a “very

large” electrical transformer that connected directly to the power

grid and converted the incoming high-voltage energy to a lower

voltage for use inside the Property. The switchgear was encased

in a metal cover and located inside a chicken wire screened-in

enclosure. This enclosure could only be entered in the front via

a wooden access door. Multiple warning signs were posted on

and around the switchgear, including one that said “DANGER,”

which depicted a red humanoid figure with a lightning bolt, one

reading “AUTHORIZED PERSONNEL ONLY,” another declaring

“CAUTION UPPER SWITCH SECTIONS ARE ALWAYS ALIVE,” and

others stating “13,200 VOLTS,” “HIGH VOLTAGE POWER,” and

“DANGER THIS ENCLOSURE CONTAINS HIGH VOLTAGE

ELECTRICAL EQUIPMENT AND MUST NOT BE ENTERED EXCEPT

BY PERMISSION.” Appellant’s interest was likely piqued because

“a section of [the switchgear’s] cover had been removed and you

could see all of the copper in it. There was [sic] big huge copper

coils. There was thick copper wire.” N.T. 3/9/16 at 63; see N.T.

3/7/16 at 147-48, 253; N.T. 3/8/16 at 29-30, 34-35 (Appellant

and Madjarcic testifying to the outsize monetary value of the

switchgear’s copper, relative to other metals).

Appellant inquired about the switchgear, as he did not know

what it was, whereupon Pogas explained its function. This

prompted Appellant to ask whether it was fair game for removal,

to which Pogas unequivocally replied it was not. However, this

apparently did not dampen Appellant’s interest, as he

subsequently asked Pogas during a separate conversation

whether he would receive an electric shock if he touched the

switchgear. Pogas informed them the top was actively receiving

current, but the rest of the switchgear was not, and would not

unless they somehow managed to activate it. Undeterred,

Appellant subsequently remarked to Borek that Pogas had said

the switchgear was “dead,” and proceeded to poke the

machinery’s exterior with his fingers. Borek advised Appellant

and Madjarcic not to touch the switchgear and, within less than a

day, told Pogas about his conversation with the men. Pogas

then sought out Appellant and Madjarcic, reiterating his previous

admonishment by bluntly telling Appellant and Madjarcic “listen,

you got to understand, stay away from this thing. We’re not

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getting rid of [the switchgear], just leave it alone.” N.T 3/9/16

at 67.

Determined to steal the copper wiring, Appellant and Madjarcic

nevertheless ignored these warnings. On June 25, 2014, they

left their assigned work area in the basement, purloined a ladder

from a separate storage area in the basement, ripped open the

chicken wire meshing that enclosed the area where the

switchgear equipment was located, and surreptitiously entered

the switchgear enclosure from the rear of an adjacent enclosure.

Once inside with the ladder, Appellant and Madjarcic embarked

upon a foolhardy attempt to dismantle the switchgear in order to

steal the copper wire. While Madjarcic was inspecting the top of

the switchgear, Appellant thrust his left arm elbow-deep into the

machinery and began removing it using a socket wrench,

causing more than 13,000 volts of electricity to course through

his body when the wrench and his arm came into contact with an

energized section of the switchgear. The intensity of this voltage

rendered Appellant unable to move, due to involuntary muscle

spasms, until Madjarcic was able to pull him backwards towards

safety. Though Appellant survived, he suffered severe burns

along his left arm and torso, and ultimately had to have two

necrotized fingers amputated from his left hand.

On July 17, 2014, Appellant filed suit via Writ of Summons,

followed by a Complaint on October 23, 2014, and an Amended

Complaint on December 10, 2014, in which he named G&E Real

Estate, [Crown], PLB Partners, LLC, and LNR as defendants.7

Therein, Appellant asserted he was given permission to

dismantle the live electrical switchgear and remove the copper

wiring inside, and that there were not sufficient warnings posted

around the machinery, arguing that these entities’ allegedly

negligent and/or reckless conduct had caused him to sustain

horrific injuries.

7

The latter two entities were ultimately released from this

case via joint stipulation prior to trial.

The matter proceeded to a jury trial on March 7, 2016, which

was presided over by th[e trial c]ourt. Ultimately, the jury

returned the following verdict on March 10, 2016 in favor of

[Crown,] G&E Real Estate[, and GCCFC Partnership]:

1. Appellant was a trespasser in the switchgear enclosure at the

time of the accident; 2. [Crown,] G&E Real Estate[, and GCCFC

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Partnership] had breached their duty to Appellant, as a

trespasser, by committing willful and wanton misconduct;

3. [Crown] had acted negligently,[1] but G&E Real Estate [and

GCCFC Partnership] had not; and 4. [Crown]’s, G&E Real

Estate’s[, and GCCFC Partnership’s] conduct was [not] the

factual cause of the harm suffered by Appellant. Subsequently,

Appellant filed a Motion for Post-Trial Relief on March 17, 2016[,

which included a challenge to the weight of the evidence and a

motion for new trial. Appellant’s Mot. for Post-Trial Relief,

3/17/16, at 2-3 ¶¶ 9, 11 & ad damnum clause]. . . . After

considering the arguments presented in the parties’ respective

submissions, th[e trial c]ourt denied Appellant’s Motion on

July 14, 2016, a decision which Appellant appealed to the

Superior Court on July 20, 2016.

Trial Ct. Op. at 1-6 (some footnotes and citations to the record omitted;

some formatting altered).

Appellant now raises the following issues on appeal:

1. Did the trial court err in failing to grant [Appellant]’s

motion for post-trial relief, and order a new trial on the issue of

damages, where the jury found that [Appellees] had . . .

engaged in culpable conduct, and where both medical experts

agreed that the incident resulted in electrical burn injuries

resulting in finger amputations, but found that [Appellees’]

conduct was not a factual cause of [Appellant]’s harm?

2. Where the jury found that [Appellees] had acted willfully or

wantonly in connection with the incident at issue, and where the

injuries that resulted were admitted by [Appellees’] medical

expert, but the jury found that the conduct of [Appellees] was

not a factual cause of harm to [Appellant], was the jury’s verdict

against the weight of the evidence?

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1

In the jury charge, the trial court equated Question 3 on the verdict sheet

(“Were any of the Defendants negligent?”), with whether “they breached any

duty of care.” N.T., 3/9/16, at 186; see also id. at 187 (“there’s the duty

of care . . . and if you think they breached that, then you’ll be determining

whether you think they’re negligent”). “[T]he law presumes that the jury

will follow the court’s instructions.” Commonwealth v. Busanet, 54 A.3d

35, 65 (Pa. 2012), cert. denied, 134 S.Ct. 178 (2013).

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3. Where the jury’s verdict established liability, but [the] jury

did not find that the culpable conduct was a factual cause of

harm despite the existence of undisputed injuries, resulting in a

verdict against the weight of the evidence, did the trial court err

in failing to award a new trial on damages pursuant to the

holdings in Andrews v. Jackson, 800 A.2d 959 (Pa.Super.

2002), Mietelski v. Banks, 854 A.2d 579 (Pa.Super. 2004)[,]

and Mano v. Madden, 738 A.2d 493 (Pa.Super. 1999)?

Appellant’s Brief at 4. These three questions all overlap, as they each

concern whether: (1) the jury properly found that Appellees’ conduct was

not the factual cause of Appellant’s harm; and (2) if that finding was against

the weight of the evidence, whether the trial court should have granted a

new trial on the issue of damages. Appellant’s Brief at 4. Thus, we combine

our analysis, as did the trial court. Trial Ct. Op. at 6-10.

Appellant contends that “the jury verdict on ‘factual cause’ was against

the weight of the evidence.” Appellant’s Brief at 13.2 He continues that

“[t]he finding of willful or wanton misconduct, in combination with

[Appellant]’s clear and objective injuries present particularly strong reasons

to grant a new trial on damages on the particular facts of this case.” Id. at

17. Appellant argues that his medical expert “confirmed the causation of

[his] injuries.” Id. at 26.

Crown answers that “the jury was entitled to find [Crown’s] conduct

negligent but not the factual cause of [Appellant]’s injuries” and that

____________________________________________

2

Appellant preserved his challenge to the weight of the evidence through his

motion for post-trial relief, requesting a new trial.

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Appellant “was required to prove a causal connection between [Crown]’s

conduct and [his] injury.” Crown’s Brief at 5.3

In their briefs to this Court, the parties debate the applicability of two

lines of case law. Appellant relies on decisions in personal injury actions

arising out of motor vehicle collisions, Neison v. Hines, 653 A.3d 634 (Pa.

1995); Mano v. Madden, 738 A.2d 493, 497-98 (Pa. Super. 1999) (en

banc); and Andrews v. Jackson, 800 A.2d 959, 965 (Pa. Super.), appeal

denied, 813 A.2d 835 (Pa. 2002). He argues that these decisions hold that

a jury in a personal injury action may not disregard expert medical

testimony that the plaintiff suffered injury as a result of the accident at issue

and that the jury’s finding that Appellees’ conduct was not the factual cause

of Appellant’s injuries violated this rule. Crown relies on Daniel v. William

R. Dratch Co., 849 A.2d 1265 (Pa. Super 2004), a premises liability action,

which, Crown contends, supports the verdict in this case. Because we

ultimately agree with Crown on this issue, we repeat Crown’s analysis at

length:

In Daniel, the plaintiff truck driver who was picking up 800-

pound barrels of scrap metal from the defendant’s premises

when he allegedly slipped on a wet, greasy spot on the floor.

849 A.2d at 1266. The plaintiff claimed the defendant

negligently maintained its loading dock by allowing oil to build up

on the floor, which when combined with water from either a

leaking roof or heater ma[de] the floor slippery, causing plaintiff

to slip, fall, and injure himself. Id. The defendant contended

the plaintiff did not slip on a wet and oily surface but instead lost

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3

Neither G&E Real Estate nor GCCFC Partnership filed a brief.

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control of the 800-pound drum “because they were so heavy

that he could not keep them stable.” Id. at 1269.

The plaintiff and the defendant in Daniel each proffered

evidence as to their respective theories of causation in a

premises liability negligence action. The jury concluded that,

although the defendant had been negligent, its negligence was

not a substantial factor in causing the plaintiff’s injury; hence,

the jury rendered a verdict in favor of the defendant. 849 A.2d

at 1266. The plaintiff appealed, contending the jury’s verdict

was against the weight of the evidence. Id. at 1267. This Court

affirmed the judgment, concluding the trial court did not abuse

its discretion in denying the plaintiff’s motion for a new trial,

because the jury had acted well within its purview in determining

the defendant’s version of events was more credible. Id. at

1267-73.

In Daniel, the plaintiff’s argument on appeal was virtually

identical to [Appellant]’s argument in this appeal, that “where a

jury has found that a defendant was negligent and the existence

of an injury was conceded to and not questioned by [the]

defendant, the jury is not permitted to find [that] the

defendant’s negligence was not a substantial factor in bringing

about at least some of [the] plaintiff’s injuries.” 849 A.2d at

1268. . . .

This Court in Daniel rejected the plaintiff’s argument Andrews

and other motor vehicle accident cases reached beyond their

unique set of circumstances to other types of negligence cases.

This Court observed Andrews and its ilk addressed only “the

issue of whether a jury that has found the operator of a motor

vehicle to be negligent in causing a collision may then find that

this negligence was not a substantial factor in causing an

uncontroverted injury that resulted from the collision.” 849 A.2d

at 1268. In Andrews and other cases like it, “the jury’s finding

of negligence established that the negligent operator of the

vehicle caused the collision.” Id. at 1268 (emphasis added). By

contrast, in Daniel, “the jury’s decision . . . that [the defendant]

was negligent did not establish that its negligence caused the

alleged accident in which [the plaintiff] injured himself.” Id.

(emphasis added).

In Daniel this Court confined its holding in Andrews to cases

involving motor vehicle accidents.

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Id. at 7-10. Appellant replies that cases following Daniel are unpublished

and non-precedential and this Court should not rely upon “only one

published case.” Appellant’s Reply Brief at 2.

Our standard of review of review for a challenge to the weight of the

evidence is as follows:

The weight of the evidence is exclusively for the finder of fact,

who is free to believe all, none or some of the evidence and to

determine the credibility of the witnesses.

Appellate review of a weight claim is a review of the exercise of

discretion, not of the underlying question of whether the verdict

is against the weight of the evidence. Because the trial judge

has had the opportunity to hear and see the evidence presented,

an appellate court will give the gravest consideration to the

findings and reasons advanced by the trial judge when reviewing

a trial court’s determination that the verdict is against the weight

of the evidence. One of the least assailable reasons for granting

or denying a new trial is the lower court’s conviction that the

verdict was or was not against the weight of the evidence and

that a new trial should be granted in the interest of justice.

Commonwealth v. Talbert, 129 A.3d 536, 545–46 (Pa. Super. 2015)

(internal brackets, citations, and quotation marks omitted; some additional

formatting), appeal denied, 138 A.3d 4 (Pa. 2016). “[T]he grant or denial

of a new trial [also] rests in the discretion of the trial court.” Livelsberger

v. Kreider, 743 A.2d 494, 495 (Pa. Super. 1999) (citation omitted).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Ellen Ceisler,

we conclude that Appellant’s challenge to the weight of the evidence merits

no relief. The trial court opinion comprehensively discusses and properly

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disposes of Appellant’s contentions. See Trial Ct. Op. at 8-10 (finding:

although both Appellant’s and Crown’s medical experts discussed how

Appellant had been electrocuted and had suffered injuries as a result of the

electrocution, “neither doctor opined (or was qualified to opine) about whose

fault it was that the accident happened” (emphasis in original); a jury’s

decision that a defendant breached its duty of care does not establish that

this breach caused the plaintiff’s injuries (citing Daniel, 849 A.2d at 1268-

69); the Andrews line of cases is limited to a jury’s finding on whether the

plaintiff was injured in the accident, not whether defendant’s breach caused

the accident; “two extraordinarily different stories of what transpired on

June 25, 2014 were presented by the opposing parties,” and “it was up to

the jury to weigh the evidence and make credibility determinations”; and

“the jury was clear in [its] finding that whatever actions Appellees may have

committed, that negligence did not cause the Appellant to be injured”).

Thus, with respect to Appellant’s challenge to the weight of the evidence and

his related challenge to the trial court’s denial of his motion for a new trial,

we affirm on the basis of the trial court’s opinion.

The cases on which Appellant relies, including Mano, Neison, and

Mietelski v. Banks, 854 A.2d 579 (Pa. Super. 2004), are inapposite, as

they all involved factual situations in which the cause of the plaintiffs’

injuries was not disputed. In Mano, 738 A.2d at 497-98, the defendant’s

liability for causing the plaintiff’s injuries was fairly determined and free from

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doubt. Similarly, in Neison, 653 A.2d at 637, the plaintiff presented

uncontradicted evidence of a violent automobile accident for which the

defendant conceded negligence. Here, liability was contested at trial.

Appellant mentions Mietelski only in a string cite and does not

attempt to explain its application to his action, even though he listed it as a

controlling decision in his brief’s statement of questions involved. See

Appellant’s Brief at 15. To the extent that we were to consider Mietelski,

we would conclude that it actually undermines Appellant’s argument, as it

clearly distinguishes proof of causation from proof of injury:

Since causation is an essential element of a negligence action,

where the degree of harm resulting from the accident is

contested by the defendant the case remains essentially in the

same posture as a case where causation is fully contested. That

is, the jury must be instructed that the defendant is liable only

for those injuries that the defendant’s negligence was a

substantial factor in bringing about. In such a case, the jury is

still not empowered to reject the uncontested evidence that

some injury has resulted from the accident; however, the

plaintiff is not relieved of his/her obligation to prove that the

injury he/she is seeking recovery for has resulted from the

defendant’s negligence.

854 A.2d at 583-84 (bold emphasis in original; italicized emphasis added)

(footnotes and citations omitted).

Thus, Mano, Mietelski, and Neison are not controlling, and all of

Appellant’s issues lack merit. The parties are instructed to attach a copy of

the trial court’s opinion dated December 2, 2016, to all future filings in this

matter that cite this memorandum.

Judgment affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/28/2017

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