J-S15018-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JASON WHEELER, ADMINISTRATOR : IN THE SUPERIOR COURT OF
OF THE ESTATE OF JOHN M. : PENNSYLVANIA
WHEELER, DECEASED :
:
Appellant :
:
:
v. :
: No. 744 EDA 2021
:
BELDEN WIRE & CABLE COMPANY BF :
GOODRICH COMPANY BUCYRUS :
INTERNATIONAL BRAND :
INSULATION, INC. CBS :
CORPORATION, FORMERLY :
WESTINGHOUSE ELECTRIC CORP. :
CRANE COMPANY CROUSE HINDS :
N/K/A COOPER CROUSE-HIND :
EATON CORPORATION FERRO :
ENGINEERING FOSECO, INC. :
FOSTER WHEELER, LLC GENERAL :
ELECTRIC COMPANY GOODYEAR :
TIRE AND RUBBER COMPANY :
GRAYBAR ELECTRIC COMPANY, INC. :
GREENE, TWEEK & COMPANY GTE :
PRODUCTS OF CONNECTICUT :
CORPORATION HAJOCA :
CORPORATION HARNISCHFEGER :
CORP. C/O CT CORP. HONEYWELL :
CORPORATION A.O. SMITH :
CORPORATION INGERSOLL RAND & :
COMPANY J.H. FRANCE :
REFRACTORIES COMPANY LAMONS :
GASKETS METROPOLITAN LIFE :
INSURANCE COMPANY MINNESOTA :
MINING AND MANUFACTURING :
PECORA CORPORATION PNEUMP :
ABEX, LLC ROCK BESTOS COMPANY :
C/O U.S. CORPORATION COMPANY :
ROYAL ELECTRIC SUPPLY COMPANY :
SAGER CORPORATION ACCO CHAIN :
AND LIFTING SHEPARD NILES SID :
J-S15018-22
HARVEY MID ATLANTIC, INC. SOS :
PRODUCTS COMPANY SQUARE D :
COMPANY SHEPARD NILES TEREX :
CORP USX CORPORATION WHITING :
INTERNATIONAL ALLEN BRADLEY :
COMPANY ALLEN SHERMAN HOFF :
ALLIED GLOVE CORPORATION :
ATLANTIC CRANES BEAZER EAST :
(F/K/A KOPPERS) C/O THREE RIVERS :
MANAGEMENT :
Appeal from the Order Entered March 26, 2021
In the Court of Common Pleas of Philadelphia County
Civil Division at July Term, 2016 No. 2344
BEFORE: NICHOLS, J., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY MURRAY, J.: FILED JUNE 23, 2022
Jason Wheeler (Appellant), administrator of the Estate of John M.
Wheeler (Mr. Wheeler), deceased, appeals from the order entering summary
judgment in favor of Defendant/Appellee, United States Steel (USX), in this
asbestos exposure action. We affirm.
The trial court summarized the relevant facts and procedural history as
follows:
[Mr. Wheeler] worked as a millwright at the USX plant in Fairless
Hills, Pennsylvania from January 1, 1967 to December 31, 1991.
According to a coworker, when he first met Mr. Wheeler in 1972,
they were both working 90 percent of the time in the sintering
plant and 10 percent at the blast furnace at the Fairless Hills
location. The coworker, Richard Funk, testified that [he believed]
he and Mr. Wheeler were exposed to asbestos in tape, hoses
wrapped in asbestos, gaskets, packing, braided steel rope
wrapped with asbestos-impregnated rags and a bucket conveyor.
Mr. Funk could recall the names of only three products that he
testified contained asbestos: Garlock packing, Garlock gaskets
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and Crane valves. He testified that he knew that the packing and
gaskets contained asbestos because he “could see it.”
Another coworker, Joseph Varano, testified that he saw Mr.
Wheeler handle brake shoes at the Fairless Hills plant during the
mid-1970s. Mr. Varano further testified that he believed the brake
shoes contained asbestos because of the heat they had to
withstand. He said that Mr. Wheeler was exposed to asbestos
because as the brakes wore, they created a significant amount of
dust.
William McLean, a former employee of Crane, testified that he
designed valves that incorporated packing material and gaskets
that contained asbestos. He also testified that Crane sold packing
material and gaskets that contained asbestos independent of the
valves he designed. Clayton Jewitt, a retired Garlock employee,
testified that company produced gaskets and packing material
that contained asbestos.
Trial Court Opinion, 7/15/21, at 1-3 (record citations and footnote omitted).
On July 22, 2016, Mr. Wheeler filed the underlying complaint against 45
defendants.1 In his complaint, Mr. Wheeler made the following allegations
against USX:
[Mr. Wheeler’s] work history is as follows:
(a) From 01/01/67 to 12/31/91 — [USX] (Fairless Hills,
PA)
***
[Mr. Wheeler] was exposed to asbestos at [Fairless Hills].
***
____________________________________________
1With respect to the 44 non-USX defendants, Appellant settled some claims,
and the trial court granted motions for summary judgment in others (which
Appellant did not appeal). See Response to Rule to Show Cause, 7/8/21 at
1-2 (unnumbered).
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USX knew of the hazards of asbestos and failed to protect or warn
[Mr. Wheeler] of the hazards as an employer should have done.
Complaint, 7/22/16, at ¶¶ 6, 7, and 10(ah). Mr. Wheeler claimed he
developed lung cancer as a result of his exposure to asbestos. See id. ¶ 13.
However, Mr. Wheeler also admitted he was a heavy smoker during the
relevant period. See id. at ¶ 4. Mr. Wheeler died on November 24, 2016;
his counsel did not depose Mr. Wheeler prior to his death.2 See Trial Court
Opinion, 7/15/21, at 3 n.2; USX’s Brief at 2 n.1.
Following the close of discovery, USX filed a motion for summary
judgment; Appellant filed a response. In its motion, USX averred Appellant
“failed to establish a prima facie case of negligence by failing to establish the
existence of a duty or alleged breach on the part of [USX] and have not
provided legally sufficient evidence of exposure to asbestos by Mr. Wheeler at
[USX].” Motion for Summary Judgment, 9/15/20, at 2.
On March 23, 2021, the trial court granted USX’s motion. Appellant filed
a timely notice of appeal and both Appellant and the trial court complied with
Pa.R.A.P. 1925. On August 13, 2021, Appellant requested remand to the trial
court for the filing on an amended Rule 1925(b) statement. We granted the
request on September 15, 2021. Appellant filed an amended Rule 1925(b)
____________________________________________
2 On January 5, 2021, the trial court issued an order granting the motion to
substitute Appellant as plaintiff. See Trial Court Opinion, 7/15/21, at 3 n.2.
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statement, and on December 8, 2021, the trial court issued a supplemental
opinion.
Appellant presents the following issues for review:
1. Did the [trial] court commit an error of law in holding that an
employee was not a business invitee?
2. Did the [trial] court commit an error of law by holding that
[Appellant] had to prove specific asbestos product exposures at
the USX workplace to hold USX liable?
3. Did the [trial] court commit an error of law by sua sponte
excluding some [of Appellant’s] documentary evidence as not
authenticated?
4. Did the [trial] court commit an error of law by requiring
[Appellant’s] expert to use “magic words” in his report such as
“standard of care” and “negligent”?
Appellant’s Brief at 5 (reordered).
Our standard of review is well-settled. This Court
may disturb the order of the trial court only where it is established
that the court committed an error of law or abused its discretion.
As with all questions of law, our review is plenary.
In evaluating the trial court’s decision to enter summary
judgment, we focus on the legal standard articulated in the
summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
where there is no genuine issue of material fact and the moving
party is entitled to relief as a matter of law, summary judgment
may be entered. … Lastly, we will view the record in the light
most favorable to the non-moving party, and all doubts as to the
existence of a genuine issue of material fact must be resolved
against the moving party.
Thompson v. Ginkel, 95 A.3d 900, 904 (Pa. Super. 2014) (citation omitted).
Because Appellant bases his allegations of negligence on USX’s status
as a landowner, his claims cannot be analyzed under the standard set forth in
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Eckenrod v. GAF Corp., 544 A.2d 50, 52 (Pa. Super. 1988), for the resolution
of strict liability against an asbestos manufacturer.3 Gutteridge v. A.P.
Green Services, Inc., 804 A.2d 643, 654 (Pa. Super. 2002) (“[I]t is readily
apparent that [appellant’s] claims against Appellee based on its status as a
landowner cannot be analyzed under the standard set forth in Eckenrod for
the resolution of strict liability claims against an asbestos manufacturer.”). To
recover damages in a negligence action, as opposed to obtaining recovery on
a strict liability asbestos claim, a plaintiff must establish that a particular
defendant’s negligence was the proximate cause of his or her injuries. Id.
Further, for premises liability to attach, Appellant must first establish
that the defendant was a possessor of the site. Rudy v. A-Best Products
Co., 870 A.2d 330, 333 (Pa. Super. 2005); Restatement (2d) of Torts, § 328E.
Here, USX has not disputed it was the sole possessor of the land. See USX’s
Brief at 19-32.
The standard of care a possessor of land owes to one who enters upon
the land depends upon whether the latter is a trespasser, licensee, or invitee.
Gutteridge, 804 A.2d at 655. In his first issue, Appellant argues that “an
employee is a business invitee of the employer.” Appellant’s Brief at 22; see
____________________________________________
3 In its initial Rule 1925(a) opinion, the trial court erroneously analyzed this
case under the Eckenrod standard. See Trial Court Opinion, 7/15/21, at 6-
7. The error was harmless, as the court rectified the error and provided
analysis under the common-law negligence standard in its supplemental Rule
1925(a) opinion. Trial Court Opinion, 12/8/21, at 3-4.
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also id. at 22-26. However, Appellant subsequently abandons this claim,
stating:
Although [Appellant] argued in his Pa.R.A.P. 1925(b) statement
that under [the Pennsylvania Supreme Court’s decision in Tooey
v. AK Steel Corp., 81 A.3d 851, 855 (Pa. 2013)] an employee is
a business invitee to whom the employer owes the “highest duty
of care,” [Appellant] acknowledges that the Pennsylvania
Supreme Court has not so held. Since the evidence is this case is
more than enough to prove a prima facie case of ordinary
negligence against employer USX, [Appellant] has concluded that
this case is not an appropriate vehicle to argue the “highest duty”
standard applied.
Id. at 43 n.15. Accordingly, we need not address this issue further.
In his second issue, Appellant challenges the trial court’s determination
that he failed to establish “a prima facie case of negligence against defendant
USX.” Id. at 38; see also id. at 38-52. We disagree.
In Tooey, supra, our Supreme Court held:
Employers, like any other entity not covered by the [Worker’s
Compensation] Act, will be subject to traditional tort liability
requiring a showing by the plaintiff of, inter alia,
negligence on the part of the employer, and employers will
retain all of their common law defenses. Plaintiffs, in turn,
will bear the higher burden of proof in terms of causation
and liability.
Tooey, 81 A.3d at 865 (emphasis added). To make a prima facie case of
negligence, Appellant must establish: (1) duty; (2) breach of duty; (3) a
causal connection between the breach of duty and injury; and (4) actual loss
or damages that result from the breach. See Gutteridge, 804 A.2d at 654.
Here, the trial court referenced its original opinion, stating:
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Mr. Wheeler relied on improperly speculative testimony by two co-
workers and an expert report that was devoid of any opinion
regarding USX’s negligence. (See 1925(a) Opinion, §§ II.B-C).
[Appellant] therefore failed to submit evidence of either general
exposure to asbestos or exposure to specific asbestos products.
Therefore, [Appellant] would not survive summary judgment
under either the Eckenrod product liability standard or the Tooey
negligence standard.
Trial Court Opinion, 12/8/21, at 4.
In its initial opinion, the trial court discussed the relevant law and
evidence provided by Appellant as follows:
It is hornbook law that the testimony of all witnesses must be
based on personal knowledge. Pa.R.Evid. 602. Rule 701 of The
Pennsylvania Rules of Evidence permits witnesses not testifying
as experts to give opinions but only if those opinions are
“rationally based on the witness’s perception” and “not based on
scientific, technical, or other specialized knowledge[.]” Pa.R.Evid.
701(a) and (c).
Courts have regularly applied these principles in asbestos cases.
See, e.g., Gibson v. Workers’ Comp. Appeal Bd (Armco
Stainless & Alloy Prods.), 861 A.2d 938, 946 (Pa. 2004)
(testimony of a co-worker who stated he had seen a substance he
“believed” to be asbestos at the factory where he and the claimant
had worked insufficient to establish asbestos existed in the
workplace); Samarin v. GAF Corp., 571 A.2d 398, 403-404, 409
(Pa. Super. 1989) (witness’s testimony regarding a material’s high
heat application insufficient to support the conclusion that a
product contained asbestos); Bushless v. GAF Corp., 585 A.2d
496, 503 (Pa. Super. 1990) (statement that a person knew a
product contained asbestos from his years of experience and
because of the product’s ability to withstand high temperature
insufficient to create an issue of material fact that the product
contained asbestos).
The testimony in these cases contrasts with matters in which a
coworker testified he knew a product contained asbestos because
it was labeled as containing asbestos. See, e.g., Harahan v.
AC&S, Inc., 816 A.2d 296, 298 (Pa. Super. 2003). It should be
noted that neither Mr. Funk nor Mr. Varano gave any testimony
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that they saw any product Mr. Wheeler worked with or around
labeled as containing asbestos.
***
In this case, neither one of Mr. Wheeler’s coworkers testified that
they had personal knowledge of the presence of asbestos in the
Fairless Hills plant at the time Mr. Wheeler worked there. Mr. Funk
testified that he knew that the packing and gaskets at the plant
contained asbestos because he “could see it.” (Funk Tr. at 158:16-
20; 169:21-24.) He provided no basis, however, for this
testimony. Similarly, Mr. Varano testified that he “believed” the
brake shoes at the plant contained asbestos because of the heat
they had to withstand and because they created a significant
amount of dust. (Varano Tr. at 46:5-47:22.) Again, he failed to
present any foundation for this opinion. Under Gibson, Krauss
[v. Trane, 104 A.3d 556, 568 (Pa. Super. 2014) (co-worker’s
opinion based on his “knowledge and belief” that products
decedent worked with contained asbestos was insufficient
evidence to survive motion for summary judgment)], Samarin
and Bushless, supra, [trial c]ourt correctly determined that the
proffered evidence was insufficient to create an issue of fact that
Mr. Wheeler was exposed to asbestos at the Fairless Hills plant.
Trial Court Opinion, 7/15/21, at 8-10 (footnote omitted).
Thus, the trial court focused on causation, and found Appellant failed to
prove a causal connection. The record and law supports the court’s conclusion
that the testimony of Mr. Wheeler’s co-workers was not sufficient to survive
summary judgment. See Samarin, 571 A.2d at 403-404, 409. Appellant’s
second issue does not merit relief.
In his third issue, Appellant claims the trial court, “erred by sua sponte
excluding documentary evidence [Appellant] offered against USX without
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providing [Appellant] an opportunity to respond.”4 Appellant’s Brief at 25;
see also id. at 25-38. We disagree.
Decisions regarding admissibility of evidence “are within the sound
discretion of the trial court and will not be overturned absent an abuse of
discretion or misapplication of law. In addition, for a ruling on evidence to
constitute reversible error, it must have been harmful or prejudicial to the
complaining party.” Phillips v. Lock, 86 A.3d 906, 920 (Pa. Super. 2014)
(citation omitted). In opposing a motion for summary judgment, the party
must identify “evidence in the record” showing a genuine dispute of material
fact. See Pa.R.C.P. 1035.3. The Rules of Civil Procedure define “record” as
pleadings, depositions, answers to interrogatories, admissions, affidavits, and
____________________________________________
4 Appellant fails to identify the documents he believes were wrongly excluded.
Appellant attached over 300 pages of exhibits to his response to USX’s motion
for summary judgment. As the trial court correctly observed, many of the
exhibits are illegible. Trial Court Opinion, 7/15/21, at 2 n.2. It is not this
Court’s responsibility to comb through the record seeking the factual
underpinnings of Appellant’s claim. Commonwealth v. Mulholland, 702
A.2d 1027, 1034 n.5 (Pa. 1997) (“In a record containing thousands of pages,
this court will not search every page to substantiate a party’s incomplete
argument”).
Appellant also devotes four pages of argument on this issue to a claim that
the trial court “erred in determining the USX documents were inauthentic.”
Appellant’s Brief at 34; see also id. at 34-38. Appellant fails to identify when
or where the trial court the unspecified documents to be “inauthentic.” We
have not located any such finding. Also, in its opinions, the trial court indicates
the documents were not properly authenticated, which is different from a
finding that the documents “were inauthentic.” See Trial Court Opinion,
7/15/21, at 2-3 n.1; Trial Court Opinion, 12/8/21, at 5-6.
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signed expert witness reports. Pa.R.C.P. 1035.1. Pennsylvania Rule of
Evidence 901 states: “Unless stipulated, to satisfy the requirement of
authenticating or identifying an item of evidence, the proponent must produce
evidence sufficient to support a finding that the item is what the proponent
claims it is.” Pa.R.E. 901(a). Thus, it was Appellant’s responsibility to ensure
the documents he appended to his response were legible, properly verified,
and authenticated. The record reflects he did. See Answer to Motion for
Summary Judgment, 1/6/21, at Exhibits A-DD; Trial Court Opinion, 7/15/21,
at 2-3 n.1.
We have held that a trial court may exclude inadmissible evidence sua
sponte. In re R.T., 778 A.2d 670, 683 (Pa. Super. 2001) (affirming trial
court’s sua sponte ruling that certain testimony was inadmissible hearsay).
We have also upheld a trial court’s refusal to consider evidence raised in
opposition to a motion for summary judgment when the evidence was
unauthenticated, unsworn, or unverified.
In Welsh v. National Railroad Passengers Corp., 154 A.3d 386 (Pa.
Super. 2017), the appellant challenged the trial court’s failure to consider
several unsworn affidavits and unauthenticated photographs he submitted in
response to appellee’s motion for summary judgment. Welsh, 154 A.3d at
390, 395. This Court affirmed the grant of summary judgment, and
specifically upheld the trial court’s exclusion of the inadmissible evidence. Id.
at 391, 396. With respect to the unsworn affidavits, we said:
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Therefore, because the statements do not comply with the
requirements to be considered an affidavit, and the rules do not
allow consideration of signed statements, the trial court
committed no abuse of discretion or error of law in refusing to
consider them. [The appellant] is not entitled to relief on this
issue.
Id. at 391. As to the unauthenticated photographs, we observed:
Additionally, the trial court correctly rejected the use of the scene
photographs as being unauthenticated. The photographs were not
found in the certified record prior to their attachment to [the
appellant’s] response to the motion for summary judgment.
Nothing in the response to the motion for summary judgment
explains the provenance of the photos. Accordingly, the trial court
did not err in rejecting them.
Id. at 396.
Likewise, in Botkin v. Metropolitan Life Ins. Co., 907 A.2d 641 (Pa.
Super. 2006), the trial court refused to consider evidence appended by the
appellant in response to a motion for summary judgment, finding that some
of the evidence was not properly verified, and deeming other proposed
evidence to be inadmissible hearsay. Botkin, 907 A.2d at 644, 648. Again,
we affirmed the grant of summary judgment. We concluded, “absent
verification … the answers to interrogatories create no dispute as to a material
issue of fact in assessing the merits of granting Appellees’ motion for summary
judgment.” Id. at 648 (citation omitted). We reaffirmed “that a motion for
summary judgment cannot be supported or defeated by statements that
include inadmissible hearsay evidence.” Id. at 649 (citation omitted). See
also Conner v. Duffy, 652 A.2d 372, 374 (Pa. Super. 1994) (trial court
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“properly excluded” unverified inadmissible evidence as “inappropriate for
review on summary judgment.” (footnote omitted)).
Here, the trial court stated, “the rules nowhere permit a responding
party to rely on unauthenticated documents. … The [trial c]ourt was not
required to accept [Appellant’s] unauthenticated documents, regardless of
whether USX objected to the documents or not.”5 Trial Court Opinion,
12/8/21, at 5 (citations omitted). Upon review, the record supports the trial
court’s finding that the documents in question were not authenticated.
Therefore, we discern no abuse of discretion or error of law in the trial court’s
decision to exclude them from consideration in deciding the motion for
summary judgment. See Welsh, at 396. Appellant’s third issue does not
merit relief.
In his fourth and final issue, Appellant maintains the trial court erred in
failing to credit the report of his expert, Dr. Arthur Frank, because Dr. Frank
did not use “‘magic words’ such as ‘standard of care’ or ‘negligent’ in his
report.” Appellant’s Brief at 52. In in the body of his argument, however,
Appellant abandons this claim, admitting that the trial court rejected Dr.
____________________________________________
5 Appellant argues the documents were admissible as “ancient” documents
pursuant to Pa.R.E. 901(b)(8). Again, Appellant fails to identify the
documents. Also, even he had identified the documents, the claim is waived
because Appellant raised it for the first time in his amended Rule 1925(b)
statement. Cabot Oil and Gas Corp. v. Speer, 241 A.3d 1191, 1196 (Pa.
Super. 2020) (appellant cannot raise issues for first time in Rule 1925(b)
statement); see also Amended Rule 1925(b) Statement, 9/21/21, at 2; Trial
Court Opinion, 12/8/21, at 5-6.
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Frank’s report because it failed to discuss “USX’s knowledge of asbestos at its
facilities.” Id. at 54 (citation omitted). Appellant offers alternative
arguments, including that USX knew or should have known of the hazards of
asbestos because the Pennsylvania Legislature included it in the Occupational
Disease Act of 1939, 77 P.S. § 1201. Id. at 54. Appellant also maintains the
trial court “ignores the lengthy discussion of the state of the art in Dr. Frank’s
affidavit.” Id. at 55 (citation omitted). Lastly, Appellant contends there “was
no need for Dr. Frank to break down Mr. Wheeler’s asbestos exposure into
component parts to be compared with the whole exposure because USX was
responsible for the whole exposure.” Id. at 56-57 (footnote omitted).
Appellant waived these arguments.
Pa.R.A.P. 1925(b) provides that a judge entering an order giving
rise to a notice of appeal “may enter an order directing the
appellant to file of record in the trial court and serve on the judge
a concise statement of the errors complained of on appeal [ ].”
Rule 1925 also states that “[i]ssues not included in the Statement
and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived.” Pa.R.A.P. 1925(b)(4)(vii). In
Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998), our
Supreme Court held that “from this date forward, in order to
preserve their claims for appellate review, [a]ppellants must
comply whenever the trial court orders them to file a Statement
of Matters Complained of on Appeal pursuant to Rule 1925. Any
issues not raised in a 1925(b) statement will be deemed waived.”
Lord, 719 A.2d at 309. This Court has held that [o]ur Supreme
Court intended the holding in Lord to operate as a bright-line rule,
such that failure to comply with the minimal requirements of
Pa.R.A.P. 1925(b) will result in automatic waiver of the issues
raised.
U.S. Bank, N.A. v. Hua, 193 A.3d 994, 996-97 (Pa. Super. 2018) (some
citations omitted).
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While Appellant advanced several theories in his amended Rule 1925(b)
statement as to why the trial court should have found that Dr. Frank’s report
sufficiently linked his lung cancer to exposure at USX, they are not the theories
Appellant advances in his appellate brief. See Amended Pa.R.A.P. 1925(b)
Statement, 9/21/21, at 4-5; Appellant’s Brief at 52-57. Consequently, the
trial court did not address them. See Supplemental Opinion, 12/8/21, at 6-
7. We therefore conclude Appellant waived his fourth issue.6
For the reasons discussed above, the trial court neither abused its
discretion nor committed an error of law in granting USX’s motion for
summary judgment. Accordingly, we affirm.
Order affirmed.
Judge Nichols and Judge Sullivan concur in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2022
____________________________________________
6Appellant further waived these arguments because they “are not included in
[Appellant’s] statement of the question involved or fairly suggested by it.”
See Appellant’s Brief at 5; see also Pa.R.A.P. 2116(a).
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Wheeler, J. v. United States Steel
Combined Opinion