Petition for Writ of Certiorari — Primo v. Colanero Contracting Co.

Supreme Court, U.S.

FILED

01 254 JUL 24 2001

NO.

OFFICE OF THE CLERK

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 2001

EDWARD PRIMO and

DELORES PRIMO, h/y,

Petitioners

V.

COLANERO CONTRACTING COMPANY,

COLANERO EQUIPMENT COMPANY and

CSX TRANSPORTATION, INC.

Respondents

On Petition for a Writ of Certiorari to the

Pennsylvania Superior Court

PETITION FOR A WRIT OF CERTIORARI

Frank D. Branella, Esquire

1500 Walnut Street

Suite 501

Philadelphia, PA 19102

(215) 546-3300

Counsel of Record

QUESTIONS PRESENTED

1. Where a state mandates a right of appellate review

from judgments in civil actions, do the Due Process and the

Equal Protection Clauses require that all appropriately filed

and perfected appeals receive equal consideration on the

merits?

2. Does the Due Process Clause require a state court

trial judge to assign specific reasons for the entry of a directed

verdict against a plaintiff where state law guarantees a right to

trial by jury?

3. Were the Petitioners denied due process where none

of the State Courts indicated any basis for the entry of a

directed verdict in favor of the Respondent, CSX

Transportation Co., Inc.?

PARTIES TO THE PROCEEDING

Petitioners (Plaintiffs and Appellants below):

The Petitioners are Edward Primo and his wife, Delores

Primo.

Represented by:

Frank D. Branella, Esquire

1500 Walnut Street

Suite 501

Philadelphia, PA 19102

Respondents (Defendants and Appellees below):

The Respondents are Colanero Contracting Company,

Colanero Equipment Company and CSX Transportation, Inc.

Represented by:

John A. Orlando, Esquire

1800 One Liberty Place

Philadelphia, PA 19103

Counsel for Colanero Contracting Company and

Colanero Equipment Company

Edward J. Kelbon, Jr., Esquire

3800 Centre Square West

Philadelphia, PA 19102

Counsel for CSX Transportation, Inc.

ll

—

TABLE OF CONTENTS

PETITION

BARE CW PUTER noc cc ccccccccscccccesces Vv

PRELIMINARY STATEMENT ..................... l

Es ane esd oka anaes todos aes l

eS Ae Py Pe EE yy a l

CONSTITUTIONAL PROVISIONS INVOLVED ....... 3

SIATEMENT OF THECASE . 2... .cccccccccccccces 3

REASONS FOR GRANTING THE PETITION ........ 12

A. CLARIFICATION OF THE DUE PROCESS RIGHTS

OF LITIGANTS TO MEANINGFUL APPELLATE

EU DUCE, gc oc cwccccéccncecen 12

i RE A ear ras ae eS ee Re 16

A NDI

Primo v. Colanero Contracting Co., No. 9206-1443 (Trial

A Tn a a ae Onn ed a ie Al

EERE Sa tS are ear ane ae Pr Al5

ill

March 21, 2000 Judgment of the Superior Court ...... Al9

May 31, 2000 Order denying reargument ............ A20

March 31, 2001 Order of the Supreme Court

RIN 6 3 6G bed banc diwscdieks see's A2]

April 25, 2001 Order denying reargument............ A22

1V

TABLE OF AUTHORITIES

Federal Cases

Abdulai v. Ashcroft, 239 F.3d 542, 549 (3 Cir. 2001) .... 2

Anthony v. Interform Corp., 96 F.3d 692 (3 Cir. 1996) .. 13

Evitts v. Lucey, 469 U.S. 387 (1985) ................. 12

Griffin v. Illinois, 351 U.S. 12 (1956) .........000000. 12

In re Real Estate Title and Settlement Services Antitrust

Litigation, 869 F.2d 760 (3™ Cir. 1989) cert. denied sub nom

Chicago Title Ins. Co. v. Tuscon unified School Dist., 493 U.S.

Ei CHOY b.60 save dkssseeies eee ee 13

ALLE. 0. Slide, FIO as VOTO 6 he ivnandkesed os 12-

Marincas v. Lewis, 92 F.3d 195 (3d Cir. 1996) ......... 13

Matthews v. Eldridge, 424 U.S. 319 (1976) ........... 12

Mayer v. Chicago, 404 U.S. 189 (1971) .............. 12

U.S. ex re. Marelia v. Burke, 101 F.Supp. 615 (E.D.Pa. 1951)

aff'd 197 F.2d 856 cert. denied 344 U.S. 868........... 13

U.S. v. Turley,89] F.2d 57 (3rd Cir. 1989) ............. 2

State Cases

Com. v. Karn, 168 Pa-Cmmwilth. 435, 650 A.2d 1176

{| SR eer aie Se ON AO ee 2

Federal Statutes and Rules of Court

28 U.S.C. § 1257 (a)

State Statutes and Rules of Court

65 Pa.Code. § 65.37

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vi

PRELIMINARY STATEMENT

Petitioners respectfully request that Your Honorable

Court issue a Writ of Certiorari to the Pennsylvania Superior

Court in order to determine the constitutional significance of

the refusal of state appellate courts to review a directed verdict

in favor of one defendant and a judgment notwithstanding a

unanimous jury verdict entered by the Trial Court in favor of

another defendant.

OPINIONS BELOW

The memorandum opinion of the Pennsylvania Superior

Court is not reported. A complete copy of the opinion is

contained in the Appendix at Al5 - Al9. The opinion of the

Court of Common Pleas of Philadelphia County, First Judicial

District of Pennsylvania, is not reported. A complete copy of

that opinion is contained in the Appendix at Al-A14.

JURISDICTION

Petitioners respectfully request that Your Honorable

Court review the decision of the Pennsylvania Superior Court

pursuant to the Court’s jurisdiction conferred by 28 U.S.C. §

1257 (a) in that the Petitioners are seeking review of a state

court decision concerning rights, immunities or privileges

arising under the Constitution of the United States.

A unanimous jury verdict in the amount of Seven

Hundred Thousand ($700,000.00) Dollars was returned in favor

of the Petitioners as a result of the injuries sustained by the

Petitioner, Edward Primo. The Trial Court entered a judgement

notwithstanding the verdict in favor of the Respondents,

Colanero Contracting Company and its affiliate, Colanero

Equipment Company (collectively designated “Colanero”

herein). Prior thereto, the Trial Court granted a Motion for a

2

Directed Verdict in favor of the Respondent, CSX

Transportation, Inc. and against the Petitioners. The Petitioners

filed a timely appeal to the Pennsylvania Superior Court and the

Trial Court’s decision was affirmed on March 21, 2000 by way

of an unpublished memorandum decision having no |

precedential value.' Reconsideration was sought, and an Order |

denying rehearing was entered on May 31, 2000.

|

A timely Petition for Allowance of Appeal was filed in

the Pennsylvania Supreme Court and an Order denying

discretionary review was entered by that Court on March 13,

2001. The Pennsylvania Supreme Court thereafter denied the

Petitioners’ request for reconsideration on April 25, 2001. The

instant petition is being filed with 90 days from the denial of

reconsideration by the Pennsylvania Supreme Court.

‘As an unpublished memorandum decision, the

Court’s opinion is not generally available to the public and it

has absolutely no precedential value. See, e.g., Jn re Estate

of Glover,447 Pa.Super. 509, 669 A.2d 1011 (1996)

(memorandum decisions are not to be accorded precedential

weight.); Com. v. Karn, 168 Pa.Cmmwith. 435, 650 A.2d 1176

(1994) (same); U.S. v. Turley,891 F.2d 57 (3rd Cir. 1989) (same);

65 Pa.Code. § 65.37 (“unpublished memorandum decision

shall not be relied upon or cited by a Court or a party in any

other action . . .”).

OE

3

CONSTITUTIONAL PROVISIONS INVOLVED

The First Amendment to the Constitution of the United

States provides:

Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press; or the

right of the people peaceable to assemble, and to

petition the Government for a redress of grievances.

The Fourteenth Amendment to the Constitution of the

United States provides:

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State deprive

any person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE

This is a complex premises liability case involving an

April 24, 1995 severe crush injury to the left shoulder of the

Petitioner, Edward Primo, which occurred when a trailer

adjacent to the trailer on which he was working toppled over

due to the placement of the trailers on unstable topsoil

consisting of construction debris.

The site of the incident is located on a parcel of real

4

estate which is adjacent to Kingsessing Avenue between 68"

and 69" Streets, Philadelphia, PA which was apparently leased

from CSX Transportation, Inc. (“CSX” herein) by a third party

having a long affiliation with Colanero. The parcel also abuts

the property owned by Colanero. The accident was caused by

the instability of the ground soil at the site of the accident,

which in turn, rendered it incapable of supporting the weight of

the trailers, and the dangerous condition was caused by the

frequent use of the premises by Colanero in storing large

construction equipment, trucks and trailers on it and in using

the property as a dump site for construction debris for as long

as thirteen years, all of which was known by CSX.

At trial, the Petitioner, Edward Primo, testified that at

the time of the accident, he had been working for Giulietta

Construction Company for approximately three weeks as a

“low-boy” truck driver (N.T. p. 61-2). On the day of the

accident, he was instructed by his supervisor, James Dadario,

Jr., to go to the site in order to transport an empty trailer to

Giulietta’ New Jersey construction yard (N.T. p. 68, 161.) Mr.

Primo was accompanied to the site by John English, James

Dadario, Jr. and an individual known only as “J.B.” (N.T. p.

68).

Mr. Primo arrived at the area between 8:00 a.m. and

8:30 a.m., and was initially instructed to help collect nuts, bolts

and equipment (N.T. p. 69). Mr. Dadario, Jr. then instructed

Mr. Primo to raise the landing gear on the empty trailer which

was located approximately five feet away from another trailer

(N.T. p. 76).

As Mr. Primo began to raise the landing gear so that the

tractor could be attached, the adjacent trailer suddenly pivoted

on its axis and toppled into Mr. Primo causing him to become

5

pinned between both trailers (N.T. p. 83). James Dadario, Jr.

immediately retrieved the “low-boy” tractor and rammed it into

the fallen trailer in order to free Mr. Primo (N.T. p. 84).

Prior to the accident, Mr. Primo had the occasion to visit

the site of the accident once while working for another

company. At that time, Mr. Primo was delivering a dumpster

to the general vicinity of the accident because the contractors

located nearby were “cleaning some pieces in the yards.” (N.T.

p. 62). While waiting at the site, Mr. Primo actually observed

Colanero dump-truck operators dumping construction fill and

debris from the beds of their trucks over the land encompassing

the site of the accident (N.T. p. 62). The drivers raised the beds

of their dump-trucks, and repeatedly slammed the tailgates by

accelerating and rapidly stopping to loosen the dirt and debris

trapped by the “dog house” (N.T. p. 63 - 4).? Of critical

importance in that aspect, Colanero admitted that it “did store

dirt on the premises that is the location of plaintiffs alleged

accident, for approximately two weeks.” (R. 49a).

At trial, Mr. Primo further testified that he initially lost

consciousness following the crush injury, and that he

remembered co-worker John English holding and rocking him

as he regained his senses (N.T. p. 87). He stated that he felt

like he “died and came back. There was blood everywhere.”

(N.T. p. 87). Blood was streaming down his face and hair (N.T.

p. 87). “I was bleeding from my hair follicles, and my eyes and

my skin.” (N.T. p. 87). Mr. Primo was subsequently

transported to the emergency room at the Hospital of the

’The “dog house” refers to the structure in the bed of

the dump-truck which encloses the hydraulic equipment used

to raise and lower the bed.

6

University of Pennsylvania, where he remained for

approximately one week during which he was placed on a

morphine drip and muscle relaxants (N.T. pp 88 - 90).

After his release from the hospital, Mr. Primo was taken

home by his 78 year old mother and his younger sister (N.T. p.

92). He continued under the care of his treating physician, Dr.

Esterhai, and continues to see him on a routine basis, which is

now more than six years after the accident (N.T. p. 92).

Dr. Daniel J. Parenti, a board certified physician

specializing in internal medicine, testified on behalf of the

Petitioners (N.T. p. 768). Mr. Primo was examined by Dr.

Parenti on August 15, 1997 at which time Mr. Primo

complained of chronic shortness of breath ever since the

accident (N.T. p. 770 - 1). Dr. Parenti explained to the jurors

that Mr. Primo sustained a “crushing injury from shoulder to

shoulder. He sustained multiple rib fractures.” (N.T. p. 772).

“What he was left with when everything settled down, he has

an obvious indentation or deformity in the upper chest . . . and

it’s very painful to the touch.” (N.T. p. 773). The condition is

permanent, and it has resulted in significant limitation (N.T. p.

777).

On the issue of causation, the Petitioners presented the

expert soil compression testimony of Samuel J. Sero, P.E., who

testified that the cause of the injuries sustained by Mr. Primo

was the inability of the loose topsoil, which was composed of

“dirty fill,” to sustain the weight load of the trailers parked

thereon. Mr. Sero examined the site of the accident on March

19, 1997, and it was immediately obvious to him that the

condition of the site had recently been altered by scraping the

loose topsoil into discrete mounds (N.T. p. 251). All that

remained of the original topsoil layer were several piles of

7

“dirty fill” and it was obvious that the topsoil had been

removed (N.T. p. 254). At the inspection, Mr. Sero initially

observed a “combination front-loader backhoe sitting off to the

side. The tracks from this device were seen very clearly on the

ground and dust it left behind. So were the scrape marks from

the dirt that had been removed . . . ” (N.T. p. 251).

Nevertheless, Mr. Sero took samples of the soil from one of the

mounds and performed compression testing on the sample

(N.T. p. 255). He opined that the soil was “very bad soil, loose

and not capable of sustaining much loading whatsoever.”

Accordingly, Mr. Sero testified that:

“Mr. Primo’s injury is due to the fact that the soil where

the trailer was placed, especially a loaded trailer is

placed, was bad soil conditions. It was a dirty fill

topsoil material that settled in and dropped the trailer.

The fact that there is also some slight slope in this land

just helped gravity to take effect after that. Once it

settled down and stated to go, [the trailer] fell over on

*The Petitioners argued to the Trial Court that the recent

modification of the scene of the accident was admissible proof of

the liability of Colanero under a spoliation theory. Colanero

induced James Dadario, Jr., an occasional Colanero subcontractor,

to alter the surface immediately prior to the inspection. John

English, a-former co-employee of Mr. Primo who still works for

Dadario, testified that he was once employed by Colanero (N.T. p.

1016), and that he has maintained a relationship to Colanero for ten

to fifteen years (N.T. p. 1016 - 18). With a likely wink, Mr.

English was informed of the site inspection by a Colanero

employee, Howard Carty: “I told him it wouldn’t look very good

to go out and move the pile of trash that they had out there, no.”

(N.T. p. 726 - 7). Nevertheless, that was exactly what Mr. English

did. He was the operator of the backhoe observed by Petitioners’

expert which was depicted in trial exhibits. (N.T. p. 1025).

the trailer next to it.

(N.T. p. 256).

On cross-examination, Mr. Sero testified that the trailer

would not have toppled if it had been placed on stable ground,

and that there was no mechanical reason for the trailer to have

toppled (N.T. p. 288, R. 9a). When asked if it would have

made any difference if tire chocks had been employed to arrest

movement of the trailer, Mr. Sero noted that the use of chocks

would be immaterial since chocks would only stop lateral

movement; they are unable to prevent a trailer from overturning

sideways along its central axis (N.T. p. 289).

Mr. Steven Colanero, one of the chief officers of the

Colanero companies, also testified at trial. He admitted that

Colanero employees park heavy construction equipment on the

land (N.T. p. 442, 451). At times, Colanero employees have

moved dirt and debris around on the land (N.T. p. 445,). Debris

left by others on Kingsessing Avenue would be pushed onto the

vacant lot where Mr. Primo was injured by Colanero employees

so that access to the Colanero facility would not be impeded

(N.T. p. 496).

Importantly, when questioned on cross-examination

concerning whether Colanero employees dumped the debris

depicted in the mounds observed by the Petitioners’ soil

compression expert, Mr. Colanero candidly admitted that “it

was done without my knowledge.” (N.T. p. 447). Mr.

Colanero likewise admitted that Colanero may have used the

area of the accident for as long as thirteen years (N.T. p. 448).

Mr. Colanero also testified that the mounds of debris

represented in various photographic exhibits introduced by the

9

Petitioners is construction rubble. He admitted the possibility

that Colanero employees could have place the rubble on the site

(N.T. p. 492), and that the debris could have been removed

from Colanero construction sites (N.T. p. 495).*

With regard to CSX, the evidence at trial established

that CSX railroad examiners routinely traveled over the site of

Mr. Primo’s accident and parked on the premises to examine its

nearby railroad tracks. In that regard, long time Colanero

employee Howard M. Carty testified that CSX vehicles parked

on the premises on a yearly basis from at least 1981 until the

time of the accident (N.T. p. 701). The CSX drivers would

have had to drive over the precise location of the accident, and

at times, the premises was littered with debris (N.T. p. 715 - 6).

Accordingly, the Petitioners argued to the Trial Court that CSX

voluntarily chose to turn a blind eye to the defective and

dangerous condition of its realty.

After the close of evidence, all of the Defendants

“Messrs. Cavacini and Carty, both of whom are employed

by Colanero, also testified at trial. In substance, Mr. Cavacini, a 30

year employee, testified that the 21 dump trucks owned by

Colanero return to the Colanero facility located across from the site

“of the accident nightly (N.T. p. 819 - 20, R. 26a - 27a). The

construction debris pictured on R. 35a is similar in type and grade

to the construction debris which Colanero removes from its

construction sites (N.T. p. 824, R. 28a). Finally, Mr. Cavacini

admitted that Colanero dump trucks return to the Colanero facility

loaded with construction fill on occasions (N.T. p. 698). Mr. Carty

testified that Colanero owns a variety of heavy construction

vehicles which could dig ruts into the soil (N.T. p. 688).

Importantly, Colanero uses the CSX property on an “as needed”

basis for temporary storage and parking of the heavy equipment

(N.T. p. 695, R. 19a).

10

requested the entry of a directed verdict against the Plaintiff.

The motions were granted as to CSX Transportation Co.

(“CSX” herein) and the City of Philadelphia, but denied with

regard to Defendants, Colanero Construction Company and

Colanero Equipment Company (collectively designated as

“Colanero” herein).

Following the verdict, Colanero filed a timely post-trial

motion requesting judgment notwithstanding the verdict, or in

the alternative, a new trial. Due to the directed verdict in favor

of CSX, the Plaintiffs also sought post-trial relief. The Trial

Court entertained oral argument, and thereafter entered an

Order entering judgment notwithstanding the verdict in favor

of Colanero,° and denying all other requests for post-trial relief

including Colanero’s request for a new trial and the Plaintiff's

Motion for a New Trial with respect to CSX. In essence, the

Trial Court determined that the Petitioners failed to prove that

the condition of the soil caused the injuries sustained by Mr.

Primo, and that in any event, failed to prove that Colanero was

responsible therefor. With regard to the directed verdict

entered in favor of CSX, the Trial Court simply refused to set

forth any reasons for the Trial Court’s actions and termed the

*In view of the constant, thirteen year long use of the

CSX property by Colanero and its destruction of the topsoil,

the Jury had ample evidence of Colanero’s liability. The

Trial Court, however, determined that causation was lacking

‘ because there was no proof that the soil examined by Mr.

Sero was the precise soil located on the premises at the time

of the accident.

1]

matter “frivolous.”

Upon entry of the adverse judgment, the Plaintiff filed

a timely appeal to the Pennsylvania Superior Court. On March

21, 2000, the Court entered a judgment affirming the Court of

Common Pleas. In doing so, however, the Superior Court did

not engage in any form of reasoned analysis of the case; it

merely recited an incomplete version of the evidence and

affirmed the Trial Court’s decision based on the “adequate”

opinion of the Trial Judge. Because of the apparent lack of

actual appellate review by the Superior Court, the Petitioners

filed a Petition for Reargument expressly noting the Petitioners’

contention that the failure of the Superior Court to engage in a

reasoned analysis resulted in a due process violation. The

Court, however, entered an Order on May 31, 2000 denying the

Plaintiffs’ April 4, 2000 Petition for Reargument.

The Petitioners thereafter filed a timely Petition for

Allowance of Appeal in the Pennsylvania Supreme Court again

contending that the Petitioners have been denied due process.

That petition was denied and the Supreme Court denied the

subsequent Petition for Reargument on April 25, 2001.

‘The Petitioners and CSX filed extensive briefs in the Trial

Court concerning a host of issues including the duty to discover a

dangerous condition and to disclose it to Mr. Primo. None of those

issues were addressed by the Trial Court during an in-chambers

hearing on the CSX Motion for a Directed Verdict, the hearing on

the Petitioners’ Post-Verdict Motion or in the Trial Court’s opinion.

Likewise, the Pennsylvania Superior Court refused to discuss the

issues, and the Pennsylvania Supreme Court refused to review the

matter. The Petitioners still have not the slightest idea of the Trial

Court’s reasons for the directed verdict.

12

REASONS FOR GRANTING THE PETITION

A. CLARIFICATION OF THE DUE PROCESS RIGHTS

OF LITIGANTS TO MEANINGFUL APPELLATE

REVIEW Is NECESSARY

Initially, the Petitioners recognize that “a State is not

required by the Federal Constitution to provide appellate courts

or a right to appellate review at all.” Griffin v. Illinois, 351

U.S. 12, 18 (1956) (plurality opinion). However, the power to

eliminate appeals does not carry with it the power to maintain

a procedurally deficient appellate process. See, e.g., Evitts v.

Lucey, 469 U.S. 387, 400-05 (1985) (although due process does

not require that a state provide any appeal, it does require that

a defendant receive effective assistance of counsel on the first

appeal as of right, if such an appeal is provided); Mayer v.

Chicago, 404 U.S. 189, 198 (1971) (ifthe Government chooses

to provide for appeals, an impecunious defendant in a petty

offense prosecution “cannot be denied a record of sufficient

completeness to permit proper (appellate) consideration of his

claims" (internal quotation marks omitted)); see also M.L.B. v.

S.L.J., 519 U.S. 102, 117-124 (1996) (state cannot use parent's

inability to pay record preparation fees as grounds for denying

an appeal in a proceeding that could result in permanent

termination of her parental nights). Indeed, “[t]he fundamental

requirment of due process is the opportunity to be heard at a

meaningful time and in a meaningful manner.” Matthews v.

Eldridge, 424 U.S. 319 (1976) (quotation marks and citation

omitted.)

Procedural due process does not protect litigants from

any particular outcome; instead, it protects against an arbitrary

denial of rights. /n re Real Estate Title and Settlement Services

Antitrust Litigation, 869 F.2d 760 (3™ Cir. 1989) cert. denied

13

sub nom Chicago Title Ins. Co. v. Tuscon unified School Dist.,

493 U.S. 821 (1989). To that extent, “[a] decision maker must

‘actually consider the evidence and argument that a party

presents.” Abdulai v. Ashcroft, 239 F.3d 542, 549 (3™ Cir.

2001) (citation omitted.) Accordingly, the appellate body

denies due process when it “‘act[s] as a mere rubber-stanp.” /d.

at 550 citing Marincas v. Lewis, 92 F.3d 195, 202 n.7 (3d Cir.

1996).

Essentially, the concept of due process of law requires

fairness and justice in judicial proceedings and in determining

whether such fairness and justice are present, the entire judicial

process including review on appeal must be considered._ U.S.

ex re. Marelia v. Burke, 101 F.Supp. 615 (E.D.Pa. 1951) aff'd

197 F.2d 856 cert. denied 344 U.S. 868. Thus, the

fundamental requirement of due process is the opportunity to be

heard at a meaningful time and in a meaningful manner.

Anthony v. Interform Corp., 96 F.3d 692 (3™ Cir. 1996).

Turning to the case at bar, it is obvious that the

Pennsylvania scheme of appellate review failed in this instance.

The Superior Court’s complete commentary on the merits

consists of a single paragraph:

After reviewing the parties' briefs, the record,

- and the relevant law, we conclude that the opinion

authored by the Honorable Judge Carolyn E. Temin,

adequately addresses and disposes of the issues raised

on appeal. We, therefore, rely upon Judge Temin's

opinion, a copy of which is attached for your review.

Importantly, the Superior Court’s opinion does not

indicate any basis for its conclusion. Rather, it acts as a mere

rubber stamp of the Trial Court’s decision. When coupled with

14

the Trial Court’s refusal to entertain any argument regarding

the liability of CSX and the Court’s lip-service to its post-trial

motion scope of review with respect to the evidence of

Colanero’s liability, it becomes obvious that the Petitioners’

rights to due process of law have been eviscerated, as well as

the Petitioners’ fundamental First Amendment right to petition

the government for the redress of grievances.

Finally, the failure of the Pennsylvania appellate courts

to engage in meaningful appellate review occurs on a

widespread basis. The Superior Court’s internet site’ contains

poignant examples of the Court’s use of unpublished

memorandum decisions to dispose of its docket. An

examination of the Court’s own statistics reveals a vast

disparity in the rate of reversal between those decisions in

which an opinion has been published and those cases in which

an unpublished memorandum opinion has been employed:

Superior Court Case Distribution Data

1989 - 2000

Year Published Reversed % Unpublished Reversed %

1989 729 204 = 27.9835 3665 360 9.82265

1990 743 210 28.2638 3451 393 11.38800

1991 700 235 33.5714 3499 428 12.23207

1992 715 241 33.7062 3698 480 12.97999

1993 692 234 = =33.8150 4387 578 13.17529

The world wide web site for the Pennsylvania Superior

Court webpage containing a link to its statistical data is located at

http://www.superior.court.state.pa.us/about.htm.

15

1994 $33 187 35.0844 4044 443 10.95450

1995 647 213° 32.9211 4289 543 12.66029

1996 544 179 =. 32.9044 4437 442 9.96169

1997 457 144 31.5098 4512 521 1 1.54699

1998 416 124 29.8076 4387 622 12.72764

1999 365 115 =: 31.5068 5758 980 17.01980

2000 456 134 =629.3859 4566 537 11.76084

Mean 583.0833 185 = =—s- 31.7050 4266.083333 527.25 12.1858]

16

CONCLUSION

For the foregoing reasons, the Petitioners respectfully

request that Your Honorable Court grant the instant petition and

issue a Writ of Certiorari to the Pennsylvania Superior Court.

Respectfully submitted,

Frank D. Branella, Esquire

APPENDIX

APPENDIX

TABLE OF CONTENTS

Primo v. Colanero Contracting Co., No. 9206-1443 (Trial Court)

ks eRe Eee Ee ea Ce Al

CO ey a rere ee err ere rrr ras Al5

March 21, 2000 Judgment of the Superior Court ....... Al9

May 31, 2000 Order denying reargument ............. A20

March 31, 2001 Order of the Supreme Court

denying allocatur ..... PERO AOR eu oe Reena A21

April 25, 2001 Order denying reargument............. A22

Al

IN THE COURT OF COMMON PLEAS OF

PHILADELPHIA

TRIAL DIVISION - CIVIL SECTION

EDWARD PRIMO and : FEBRUARY TERM, 1996

DELORES PRIMO

VS.

COLANERO CONTRACT- :

ING CO., COLANERO

EQUIPMENT CO., CSX

TRANSPORTATION, INC. :

and the CITY OF PHILADEL-

PHIA : CP 9602-1443

OPINION

TEMIN, J. DATE: September 3, 1999

Plaintiff sued as a result of injuries sustained in a

work-related accident. This case was tried before this Court and

a jury commencing on March 22, 1999. On March25, 1999 the

Court granted a motion for directed verdict in favor of defendants

CSX Transportation, Inc.("CSX") and the City of Philadelphia.

A motion for directed verdict by Colanero Contracting Co. and

Colanero Equipment Co.'s (Colanero) was denied. On March 30,

1999 the jury returned a verdict for the plaintiff husband against

Colanero in the amount of $600,000 and in favor of the plaintiff

wife against Colanero in the amount of $100,000. After trial,

Colanero filed a timely motion for post-trial relief requesting

judgment notwithstanding the verdict; or in the alternative, anew

trial. Subsequently, plaintiff filed a "contingent" motion for anew

trial requesting that CSX be included as defendant in the new trial

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in the event that Colanero's motion is granted. Argument on the

motions were heard on August 2, 1999. For the reasons stated

below, this Court grants Colanero's motion for judgement n.o.v..

I. Judgment Notwithstanding the Verdict

In considering a motion for a judgment notwithstanding

the verdict, the court must view the evidence in the light most

favorable to the non-moving party. Murray v. Philadelphia

Asbestos Corp., 433 Pa. 206, 640 A.2d 446, 448 (1 994). Using

this standard, judgment notwithstanding the verdict is proper

when no two reasonable minds can fail to agree that the verdict

was improper. 14. At trial, the plaintiff proved the following:

On the morning of April 24, 1995 plaintiff's employer,

Guilietta Construction Co, ("Guilietta"), sent him and co-workers

James Dadario III and "J.B." to pick up a trailer from a lot in

Philadelphia and deliver it to it's New Jersey equipment site. The

trailer was located on a lot that was owned by CSX and used by

Guilietta.* The site used by Guilietta was adjacent to one of

Colanero's equipment yards. The sites occupied by Guilietta and

Colanero were located in an industrial area on Kingsessing

Avenue between 68th and 69th Streets. Approximately half-way

between 68th and 69th Streets, Kingsessing Avenue's paved

surfaced ends. At that point, Kingsessing Avenue is an

amorphous dirt road whose boundaries are difficult to distinguish

from the dirt lots located on either side. The only reference point

‘There was no evidence that Guilietta had permission

to do so and this Court found that Guilietta had the status of

a trespasser. Although there was some mention during in

camera discussion of a lease between Guilietta and CSX, this

fact was never introduced in evidence at trial.

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that could be used to determine where the street should have been

was a utility pole near Guilietta's yard. It was uncontradicted that

in pictures introduced at trial, the "street" was located to the right

of the pole and the lot was located to the left. Parallel to CSX's

property there was an embankment, at the bottom of which were

railroad tracks owned by CSX. Other than having its' employees

clear debris from the embankment and tracks once or twice a

year, CSX did not enter the property.

On the morning of the accident, Guilietta's lot had one

empty trailer and one loaded trailer parked upon it. The trailers

were parked parallel to each other on a downward slope,

separated by distance estimated at 2 to 5 feet.’ The front of the

trailers were lower than the rear but were otherwise squarely on

the ground. Plaintiff testified that a section of concrete block had

been placed by plaintiff's co-worker in front of the set of wheels

on the loaded trailer that were closest to the empty trailer. This

practice, known as "chocking", is used to prevent a detached

trailer from moving while it is separated from a truck.'® Plaintiff

assumed that because the one wheel was properly chocked, that

all other of the other wheels were properly chocked as well. As

*Estimates as to the actual distance between the

trailers varied. Plaintiff testified the distance was "[w]ide

enough for someone to walk in the straightway without

turning sideways." (N.T. 3/22/99, 79) Though the minimum

clearances needed to operate to the landing gear were given,

the actual distance was never offered. Plaintiff's expert stated

that proper spacing between trailers is 2 to 4 feet or enough

room to properly operate the landing gear. (N.T. 3-23-99,

361)

Plaintiff's expert testified that the chocking of one

axle is proper. (N.T. 3-23-99, 365)

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a result, he did not take the time to inspect the wheels he could

not see.

Contradictory testimony was presented regarding the

condition of the soil on the day of the accident. At one point,

plaintiff testified that the ground was lumpy and covered with red

brick, asphalt and concrete. Plaintiff later testified that he did not

sink into the ground while walking on it and that he did not notice

any holes in the ground. Plaintiff's co-worker, John English,

stated at deposition that the trailer's tires were not sunk into the

ground on the date of the accident. For the purpose of this

motion, this Court will assume that the ground was loose and full

of debris. '!

Plaintiff was ordered by James Dadario III, the son of the

owner of Guilietta, to raise the empty trailer to allow a tractor to

pull beneath it and link up. The trailer was equipped with a

"landing gear" that, when cranked, would either extend or retract

a pair of "legs" to aid in coupling or separation of a tractor. When

extended, the landing gear provided enough clearance under the

trailer to allow a tractor to either pull out from under it or back up

underneath it. Once extended, the landing gear is then retracted

and the trailer is either set in place on the tractor chasis or on the

ground. The crank for the landing gear of the empty trailer was

located on the side closest to the loaded trailer. As the plaintiff

turned the crank to lower the landing gear, the loaded trailer tilted

and fell towards the empty trailer pinning the plaintiff between

the two trailers. As a result, the plaintiff was crushed and suffered

extensive injuries to his chest, back, arms and legs.

''The material on the ground is commonly referred to

as "construction fill." Construction fill is composed of various

types of material excavated from construction sites.

AS

At trial, plaintiff introduced two experts, Samuel Sero

(Sero), an expert on soil conditions and, Robert Nocivelli

(Nocivelli), a truck and trailer expert. On or about March 19,

1997 Sero visited the accident site and found the lot surface of the

lot was firm and compacted. He testified that there were several

mounds of debris on the lot on that day. He opined that all of the

mounds were created by machinery that pushed the loose debris

that had been on the surface of the lot, including the accident

area, into piles. He concluded that the removal of the loose

material accounted for the compact surface on the day of his visit.

Sero removed some loose soil from one of the mounds and

performed compaction tests on the soil samples. Sero concluded

that the soil Plaintiff testified that he was on Kingsessing Avenue

between 68th and 69th Streets while working for another

employer prior to working for Guilietta. (N.T. 3/22/99, 62) He

observed Colanero' 5 employees on Guilietta' 5 lot cleaning their

trucks and causing "a little bit" of debris to accumulate on the

ground some distance from the accident scene. (N.T. 3/22/99,

103, 194) The common method for removing residue from the

bed of a dump trucks requires the operator to fully raise the bed

into the dumping position and release the lower catch on the

tailgate. (N.T. 3-22-99, 64) The truck is then quickly driven

forward and quickly stopped. (N.T. 3-22-99, 64) The abrupt stop

causes the tailgate to slam into the bed and jar loose any debris

that is stuck to the inside of the bed. (N.T. 3-22-99, 64) Because

the bed is fully raised, any residue that is loosened falls to the

ground under the released tailgate. (N.T. 3-22-99, 64)

and debris, of the type from the sample, could not be compacted

enough to safely support a trailer. Sero assumed that the material

he extracted from the mound in March 1997 was similar to the

material on the ground on April 24, 1995. He concluded that the

trailer tipped over because of the loose soil conditions.

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Nocivelli never visited the accident but, instead, used

Sero's conclusions and photographs an4 a survey of the lot taken

approximately one year after the accident. He opined that it was

improper to place a trailer on the site of the accident because the

ground was too soft to support the weight of the trailer on the

landing gear and the ground was not level. He stated that the

slope of the lot and the condition of the soil allowed the landing

gear to sink into the soil causing the loaded trailer to tilt toward

the empty trailer.

Plaintiff claims that: Colanero was negligent in dumping

and spreading dirt and debris over a lot where heavy machinery

was regularly stored and maintained; Colanero's activities on the

lot created the loose soil conditions, and, those conditions caused

the trailer to shift and injure plaintiff~ Thus, plaintiff had to prove

both that the soil conditions were a substantial cause of the

accident and that Colanero was responsible for the soil

conditions. Judgment notwithstanding the verdict may be granted

if the plaintiff does not introduce prima facie evidence of both

negligence and proximate cause. Howell V. Clyde, 533 Pa. 151,

156,620 A.2d 1107, 1109(1993).

Evidence presented at trial demonstrated that Colanero

had permission to enter Guilietta's lot and that Colanero's

equipment had, at times, been on parts of Guilietta’s lot, but not

where the accident occurred.'* There is also evidence that

Colanero's vehicles occasionally parked on the lot

"Defendant testified that there were "occasions" when

it's vehicles drove over some part of the lot. (N.T. 3-23-99,

543) It's equipment drove on the land "once a year, once

every two years.” (N.T. 3-24-99, 689) 3

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for short periods of time when it's own yard was congested, but

never overnight. Also, that Colanero used the lot to turn pieces of

large equipment around when the equipment required an area

wider than the "street" to make a turn.

Plaintiff testified that six or seven months prior to the

accident, two of Colanero's dump trucks were cleaning out

residue left in the beds of their trucks on Guilietta’ 5 lot. Plaintiff

saw Colanero's employees performing a maneuver commonly

used by dump truck drivers to dislodge any remains of a load that

may have stuck to the insides of the dump body." The area was

a common site for illegal dumping by others as well. When the

illegally dumped material blocked the entrance to Colanero's

yard, Colanero pushed the debris out of the way with its’

machinery to restore access.

“Plaintiff testified that he was on Kingsessing Avenue

between 68th and 69th Streets while working for another

employer prior to working for Guilietta. (N.T. 3/22/99, 62)

He observed Colanero' 5 employees on Guilietta’ 5 lot

cleaning their trucks and causing "a little bit" of debris to

accumulate on the ground some distance from the accident

scene. (N.T. 3/22/99, 103, 194) The common method for

removing residue from the bed of a dump trucks requires the

operator to fully raise the bed into the dumping position and

release the lower catch on the tailgate. (N.T. 3-22-99, 64) The

truck is then quickly driven forward and quickly

stopped.(N.T. 3-22-99, 64) The abrupt stop causes the tailgate

to slam into the bed and jar loose any debris that is stuck to

the inside of the bed. (N.T. 3-22-99, 64) Because the bed is

fully raised, any residue that is loosened falls to the ground

under the released tailgate. (N.T. 3-22-99, 64)

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Plaintiff failed to prove that the soil conditions caused the

accident. The only evidence that soil conditions caused the

accident was Sero's testimony. Sero had not been to the accident

site until March of 1997 at which time he took samples for

testing. Sero's opinion assumes that the soil taken in March 1997

was similar to the soil on the day of the accident in April 1995.

No facts were proven which support Sero's conclusion that the

testing sample is representative of the soil in 1995. Sero

speculated that the composition of the sample was similar to the

material on

the lot on the day of the accident. Such speculation can not form

the basis of an expert opinion. Hussey v. May Department Stores

Inc., 283 Pa. Super. 431, 436, 357 A.2d 635, 637 (1976). Sero's

testimony was improperly admitted. Without Sero's testimony,

there is no causal connection established between Colanero and

the accident.

Plaintiff has failed to prove that Colanero was responsible

for the soil conditions. Even if the opinion of the plaintiffs soil

expert is accepted as true, plaintiff has failed to establish a causal

connection between the condition of the soil at the accident site

on the day of the accident and any activity by Colanero. Plaintiff

introduced evidence that Colanero drove equipment upon some

area of the parcel where the accident occurred, but not on the date

of the accident. Additionally, evidence showed that Colanero

bulldozed dirt and debris left by others and, at one point six or

seven months before the accident, dropped a negligible amount

of debris on the lot. Plaintiff's evidence of Colanero's

responsibility for the soil conditions was limited to testimony that

Colanero had been on Guilietta's lot in the past, Colanero

excavated dirt and debris from construction sites in the course of

its' business, Colanero had the equipment to spread the dirt and

debris and that dirt and debris was on Guilietta's lot.

ee

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Though material removed from construction sites can

vary depending on the particular job site from which it is

removed, the material at the accident site had some similarities to

the type of material that has been excavated by Colanero as part

of it's business. However, Stephen Colanero, the owner of

Colanero, noted differences between the debris in the trial

photographs and the debris that is common on Colanero's job

sites. Mr. Colanero also noted that with rare exceptions, his

company's material is taken directly to recycling centers and not

to any of its' equipment yards. Plaintiff has not produced

evidence that Colanero was the source of the soil on Guilietta's

lot or that Colanero altered the terrain of the lot other than

unblocking the entrances to its' site.

For the reasons discussed above, this court grants the

defendant's motion for judgement notwithstanding the verdict.

II. Motion for a New Trial

Defendant alternatively seeks a new trial. The granting of

judgement n.o.v. renders this issue is moot. However, in the

interest of judicial economy, it will be addressed. In addition to

the issues discussed above, Colanero claims that: the trial court

erred in permitting Sero to testified as an expert; defendant's

cross-examination of the plaintiff was improperly limited;

plaintiff's attorney made improper and prejudicial remarks during

trial; and the verdict was the product of jury confusion. These

issues are addressed seriatim below:

Denial of Defendant's Motion in Limine to Exclude Sero's

Testimony '

Colanero filed a motion in limine claiming that Sero's

testimony should have been excluded on the grounds that he was

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not properly qualified to testified as an expert on soil conditions.

The Trial Court has wide discretion in assessing the qualification

of experts and the admission of expert testimony. Miller v. Brass

Rail Tavern Inc., 541 Pa. 474, 664 A.2d 525 (1995).

Pennsylvania Rule of Evidence 702 states the basis on which an

expert may be qualified:

“if scientific, technical or other specialized knowledge

beyond that possessed by a layperson will assist the

trier of fact to understand the evidence or determine a

fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training or education may

testily thereto in the form of an opinion or otherwise.

Mr. Sero was properly qualified to offer an expert

opinion on soil conditions. The liberal

standard for expert qualification in Pennsylvania is

well-settled. Miller, 541 Pa. at 480-81, 664 A.2d at 528. The

test to be applied when qualifying an expert is whether the

witness has any reasonable pretension to specialized

knowledge on the subject matter under investigation

(emphasis in original). Jd.. Mr. Sero's work experience and

patents demonstrate the requisite qualification for presenting

expert testimony on load bearing capabilities of soil. The

motion in limine was properly denied.’

Cross-Examination of Plaintiff

Colanero maintains that several statements made by

‘Colanero's claim that Sero's testimony was

inadmissable because it was merely speculative is discussed,

supra, at page 7.

ee ne OT

:

All

plaintiff regarding his living conditions after the accident

rendered the collateral source rule inoperative, thus creating

the opportunity for cross-examination on the receipt of

worker's compensation. Boudwin v. Yellow Cab Co., 410 Pa.

31, 188 A.2d 259 (1963). Colanero argues that the court

improperly limited the scope of cross-examination by not

permitting this inquiry.

Plaintiff testified that he was forced to borrow money

and live in his brothers basement after the accident. Colanero

contends both that this testimony opened the door to

questioning on the receipt of worker's compensation and to

the plaintiffs credibility. Though plaintiff testified as to his

lifestyle after the accident, he neither stated that he had not

received any support or that any medical bills were left

unpaid. The mere fact that plaintiff described his living

conditions does not amount to an inference that he did not

receive worker's compensation. See Gigliotti v. Machuca, 409

Pa. Super 50, 597 A.2d 655 (1991). The Court properly

refused to allow defendant to conduct cross-examination on

the issue of the receipt of worker's compensation.

Improper and Prejudicial Remarks by Plaintiff's

Attorney

Colanero asserts that plaintiff's attorney, Mr. Frank D.

Branella, Esquire, made numerous remarks directed at the

jury concerning evidence and issues that had been ruled

inadmissable and made improper appeals to the prejudices

and sympathies of the jury Colanero points to several

instances where Mr. Branella posed misleading and irrelevant

questions, made nonverbal communication with the jurors,

ignored prior court rulings and argued facts not in evidence.

In addition, Colanero cited several instances of appealing to

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the juror's sympathies.

It is true that at times, Mr. Branella's behavior was -

improper and worthy of reprimand. However, any possible

taint from Mr. Branella's statements or gestures was cured by

this Court's prompt and thorough cautionary instructions to

the jury. Th addition, much of his questionable conduct

occurred outside the presence of the jury. In the recent case

of Commonwealth v. Rico, —_ Pa 5711 A.2d 990 (1998)

the Superior Court of Pennsylvania affirmed this Court's

refusal to grant a new trial based on the arguably outrageous

conduct of the prosecutor. In Rico, immediate and lengthy

cautionary instructions given by this Court to the jury were

found to be curative of misconduct far more egregious than

that of Mr. Branella. Defendant is not entitled to relief on this

ground.

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The Verdict was the Product of Jury Confusion

Defendant cites the disregard for the instruction on the

verdict sheet as evidence of jury contusion.'* During the jury

charge, the Court instructed the jury on the proper use of the

verdict sheet. During the charge the Court explained Question

4:

. . We are going to go to the next question which

reads: Was the negligence of plaintiff Edward Primo a

substantial factor in causing the harm suffered by the

plaintiff, Edward Primo? If your answer is yes, go to the

next question (# 5). If your answer is no, the you go to

Question Number 6. But for the sake of going over the

verdict sheet, we will got to the next question. If you

get to question number 5, it means you have found both

the defendant and plaintiff were negligent, and in each

case the negligence was a substantial factor in causing

the harm to the plaintiff (N.T. 3-30-99, 1126)

oe

Contrary to the instructions, the jury answered

question 5 even though they answered "no" to question 4.

When questioned about the deviation from the instructions,

the foreperson indicated that "some of us thought he (Primo)

was just a little bit negligent and we thought we should say

so." (N.T. 3-30-99, 1138) At the request of a "couple" of

jurors, the foreperson indicated on question 5 that plaintiff

was 4% negligent. (N.T. 3-30-99, 1133-35) Regardless, none

’Colanero also claims that questions asked by the jury

during deliberations indicate jury confusion. This Court did

not find the questions unusual. This claim does not merit

discussion.

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of the jurors found that his negligence was a substantial factor

in bringing about his harm. When polled in open court, all 12

jurors agreed with the verdict. The assertion of jury confusion

is not supported by the record. Commonwealth v Tressler,

526 Pa. 139, 14546, 584 A.2d 930, 933 (1990). There is no

reason to grant a new trial on this ground.

Ili. Plaintiff's Motion Requesting the Inclusion of CSX

in the Event of a New Trial

Plaintiffs motion is meritless and not worthy of

discussion. There is no evidence from which a jury could find

that CSX was responsible for plaintiff's injuries. The motion

is denied.

For the reasons stated above, defendant Colanero's

motion for judgement n.o.v. is granted. Plaintiff's motion is

denied.

Pan ey At

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EDWARD PRIMO AND : IN THE SUPERIOR

DELORES PRIMO, H/W : COURT OF PENNSYL-

Appellants : VANIA

VS

CITY OF PHILADELPHIA,

COLANERO CONTRACT-

ING CO., COLANERA EQUIP- :

MENT CO., AND CSX TRANS-

PORTATION, INC., : No.2913 EDA 1999

Appellees

Appeal from the Order entered September 7, 1999

In the Court of Common Pleas of Philadelphia

County, Civil No.1443 February Term, 1996

Silla

EDWARD PRIMO AND : IN THE SUPERIOR

DELORES PRIMO, H/W : COURT OF PENNSYL-

Appellees : VANIA

VS

COLANERO CONTRACT-

ING CO., COLANERA mee:

MENT CO.,

Appellants

AND

CSX TRANSPORTATION,

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INC., AND CITY OF

PHILADELPHIA

Appellees : No.3215 EDA 1999

Appeal from the Judgment entered September 23, 1999

In the Court of Common Pleas of Philadelphia County,

Civil No.1443 February Term, 1996

ae Kk

BEFORE: CAVANAUGH, BECK, JJ.. and CIRILLO, P.J.E.

MEMORANDUM: | FILED Mar. 21, 2000

Edward T. Primo and Delores Primo appeal from the

order of the Court of Common Pleas of Philadelphia County

granting the motion of Colanero Contracting Company and

Colanero Equipment Company's (collectively referred to as

Colanero) motion for Judgment Notwithstanding the Verdict

(j.n.o.v.), and granting CSX Transportation, Inc.'s (CSX) and

the City of Philadelphia's motions for a directed verdict. We

affirm.

Edward T. Primo filed complaints against Colanero,

CSX, and the City of Philadelphia after he suffered injuries

to the left shoulder, when a trailer, adjacent to the trailer on

which he was working, fell over and crushed him. The

incident occurred on a section of land which is owned by

appellee, CSX and is adjacent to Kingsessing Avenue

between 68th and 69th Streets, in Philadelphia. The section

of land is also adjacent to property owned by the appellee,

Colanero.

On March 22, 1999, the case was tried before a jury

in the Court of Common Pleas of Philadelphia. On March 25,

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1999, the court granted a motion for directed verdict in favor

of CSX and the City of Philadelphia. A motion for directed

verdict by Colanero was denied. On March 30, 1999, a jury

returned a verdict in favor of Edward Prirno and against

Colanero in the amount of $600,000.00. The jury also

returned a verdict for Delores Primo and against Colanero in

the amount of $100,000.00 for loss of consortium.

Colanero then filed a post-trial motion requesting

j.n.o.v. or alternatively, a new trial. Mr. and Mrs. Primo

subsequently filed a post-trial motion against CSX, alleging

that the court erred in granting CSX's motion for directed

verdict. After oral argument, the trial court denied Mr. and

Mrs. Primo's post-trial motion against CSX and granted

j.n.o.v. in favor of Colanero."®

Mr. and Mrs. Primo raise the following questions for

our review: _

1. Was the evidence which was presented at trial

sufficient to support the jury's verdict in favor of the

Plaintiffs and against the Defendants, Colanero

Contracting Company and Colanero Equipment

Company, with regard to the issue of causation?

y a Did the Trial Court err in holding that the

Defendant, CSX Transportation, Inc., did not owe a

duty to discover the dangerous condition of its real

'SColanero alternatively sought a new trial. The

Honorable Judge Temin determined that the granting of

j.n.o.v. rendered the issue moot.

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estate or warn the Appellant, Edward T. Primo, of the

dangerous condition?

After reviewing the parties' briefs, the record, and the

relevant law, we conclude that the opinion authored by the

Honorable Judge Carolyn E. Temin, adequately addresses and

disposes of the issues raised on appeal. We, therefore, rely

upon Judge Temin's opinion, a copy of which is attached for

your review.

Judgment affirmed.

.

it

¢

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EDWARD PRIMO AND : IN THE SUPERIOR

DELORES PRIMO, H/W : COURT OF PENNSYL-

Appellants : VANIA

VS

CITY OF PHILADELPHIA,

COLANERO CONTRACT-

ING CO., COLANERO EQUIP- :

MENT CO., AND CSX TRANS-

PORTATION, INC., : No.2913 EDA 1999

Appellees

JUDGMENT

ON CONSIDERATION WHEREOF, it is now here

ordered and adjudged by this Court the judgment of the Court of

Common Pleas of PHILADELPHIA County be, and the same is

hereby AFFIRMED.

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EDWARD PRIMO AND : IN THE SUPERIOR

DELORES PRIMO, H/W : COURT OF PENNSYL-

Appellants : VANIA

VS

CITY OF PHILADELPHIA,

COLANERO CONTRACT-

ING CO., COLANERO EQUIP- :

MENT CO., AND CSX TRANS-

PORTATION, INC., ; : No.2913 EDA 1999

Appellees

ORDER

AND NOW, this 31“day of May, 2000, IT IS HEREBY

ORDERED:

THAT the application filed April 4, 2000, requesting

reargument/reconsideration of the decision dated March 21,

2000 is DENIED.

PER CURIUM

i

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IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

EDWARD PRIMO AND : No. 399 E.D. Allocatur

DELORES PRIMO, H/W : Docket 2000

Petitioners :

VS

CITY OF PHILADELPHIA, : Petition for Allowance

COLANERO CONTRACT- : of Appeal from the

ING CO., COLANERO EQUIP- : Superior Court

MENT CO., AND CSX TRANS-

PORTATION, INC.,

Respondents

ORDER |

PER CURIUM:

AND NOW, this 13" day of March, 2001, the Petition for

Allowance of Appeal is hereby DENIED.

Attest: March 14, 2001

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IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

EDWARD PRIMO AND : No. 399 E.D. Allocatur

DELORES PRIMO, H/W : Docket 2000

Petitioners :

VS

CITY OF PHILADELPHIA, : Petition for Allowance

COLANERO CONTRACT- : of Appeal from the

ING CO., COLANERO EQUIP- : Superior Court

MENT CO., AND CSX TRANS-

PORTATION, INC.,

Respondents

ORDER

PER CURIUM:

AND NOW, this 25" day of April, 2001, the Petition for

Allowance of Appeal is hereby DENIED.

Attest: April 25, 2001