United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 1120 20th Street, N.W., Ninth Floor

 Washington, D.C. 20036-3457

SECRETARY OF LABOR,

Complainant,

v. OSHRC Docket No. 15-1048

J. D. ECKMAN, INC., 

Respondent.

Appearances: Nicholas C. Geale, Acting Solicitor of Labor

Oscar L. Hampton III, Regional Solicitor 

Andrea Luby, Senior Trial Attorney

U.S. Department of Labor, Office of the Solicitor, Philadelphia, Pennsylvania

For the Secretary

Thomas M. L. Metzger, Esq.1

Bryan Gramlich, Esq.

Littler Mendelson, P.C., 

Columbus, Ohio

For the Respondent

Before: Dennis L. Phillips

Administrative Law Judge

 

1 Thomas Benjamin Huggett, Esq., Little Mendelson, P.C., Philadelphia, PA, represented Respondent at the trial. 
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DECISION AND ORDER

This proceeding is before the Occupational Safety and Health Review Commission

(Commission) pursuant to sections 2-33 of the Occupational Safety and Health Act of 1970, 29 

U.S.C. §§ 651-678 (OSH Act). On December 3, 2014, at approximately 11:00 p.m., a driver of 

a 2004 Jeep Liberty veered into Respondent’s worksite in the westbound lanes of Route 422

(also known as Benjamin Franklin Highway) in Pottstown, Pennsylvania, and crashed into 

Respondent’s superintendent, killing him.2 (Tr. 56; Exs. 1 at “A”, 5 at 0211, 18 (police 

incident report)). The next day, the Occupational Safety and Health Administration (OSHA)

inspected Respondent’s traffic control worksite on highway Route 422. As a result of the 

inspection, OSHA issued one three-item citation to J. D. Eckman, Inc. (Respondent or J. D. 

Eckman), alleging serious violations of the OSH Act and proposing a total penalty of $21,000.

Respondent filed a timely notice of contest, bringing this matter before the 

Commission. Respondent raised the following as defenses:

1) The Complaint fails to state a claim upon which relief may be granted. Specifically, 

OSHA has not met its burden of establishing that: the cited standard applies, the 

employer failed to comply with the terms of the cited standard, and the employer either 

knew or could have known of the violative condition via reasonable diligence.

2) The allegations in the Complaint are barred by their isolated occurrence. The actions of 

the driver of the Jeep Liberty were the sole cause of the accident.

3) The violations for which Respondent was cited are unenforceable due to vagueness/lack 

of clarity. 

4) Respondent has been denied due process, including, but not limited to, being cited for 

failure to comply with interpretations of which they were not given adequate notice

(manuals and publications incorporated into OSHA standards do not provide the 

requisite clarity for enforcement purposes).

 

2 The driver was eventually cited for his actions “under Pennsylvania Title 75 Vehicle code, Section 33-26 for 

duties within a construction zone, and also Title 75 ...17-46F, for insurance – not having insurance on his vehicle.” 

(Tr. 360-61). 
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5) Respondent lacked the necessary knowledge of the alleged hazardous conditions to

support a citation.

(Answer at 5; Joint Pre-Hearing Statement (Jt. Pre-Hr’g St.) at 10). 

A hearing was held in Philadelphia, Pennsylvania on December 1 and 2, 2016. Both 

parties filed post-hearing briefs. For the reasons set forth below, the Court vacates all three of 

the citation items and proposed penalties. 

STIPULATIONS3

The following statements were stipulated as facts by the parties before trial and entered 

into the record at the request of the parties at trial:

1. Jurisdiction of this action is conferred upon the Occupational Safety and Health 

Administration by Section 10(c) of the Occupational Safety and Health Act.

2. Respondent, J.D. Eckman, Inc., is a corporation that had employees setting up 

a traffic control zone at approximately 422 WB Mile 171.2 in Pottstown, 

Pennsylvania. Respondent is, and at all times hereinafter mentioned, was a 

business engaged in construction.

3. Respondent uses tools, equipment, machinery, materials, goods, and supplies 

which have originated in whole or in part from locations outside the state of 

Pennsylvania.

4. Respondent is an employer engaged in a business affecting commerce within 

the meaning of Section 3(5) of the Act, 29 U.S.C. § 652(5).

5. Respondent employs approximately 450 employees in various construction 

activities, including approximately 11 employees on Route 422.

6. Beginning on December 4, 2014, an authorized representative of the Secretary 

of Labor inspected Respondent’s Worksite after Respondent notified OSHA of 

a fatality that occurred at the worksite the previous day. 

7. On June 3, 2015, the Secretary issued to Respondent a Citation and Notification 

of Penalty pursuant to Sections 9 and 10 of the Act. Respondent contests the 

 

3 The Court notes that in the Jt. Pre-Hr’g St., the stipulations are incorrectly numbered: the number 5 is repeated. 

Thus, there are eleven factual stipulations rather than the ten as numbered in the Jt. Pre-Hr’g St. and as discussed 

at the trial. (Jt. Pre-Hr’g St. at 6-8; Tr. 20). The Court has corrected the numbering here in this Decision and 

Order.
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validity of the citations, classifications, penalties and abatement dates in that 

Citation.

8. Respondent filed a timely Notice of Contest with OSHA, contesting all 

substantive provisions of the Citations, and the proposed penalties. The notice 

was duly transmitted to the Occupational Safety and Health Review 

Commission.

9. On December 3, 2014, at Respondent’s worksite, Respondent’s employees 

were eradicating lines and painting additional lines to establish long-term traffic 

control patterns in preparation for upcoming work. 

10. At 8:30 p.m. on December 3, 2014, east bound work had been completed and 

west bound work was started. In this phase, the long term traffic pattern 

reduced two lanes of 422 west bound into a single lane. The left lane would be 

closed to create a permanent work zone behind a concrete barrier. A long term 

traffic attenuator and concrete barrier was to be set to transition the flow of 

traffic. Because of this, several white dash lines needed to be eradicated and a 

new tapered yellow line (left side) needed to be painted before the concrete 

barrier was set. The location of this transition taper was to be established just 

west on the ramp from Route 100 south. 

11. Before this long term pattern had been set up, Respondent’s employee, [the 

decedent]4, was struck by a vehicle. [The decedent] died from the injuries that 

he suffered from this collision.

(Jt. Pre-Hr’g St. at 6-8; Tr. 20).

JURISDICTION

The record establishes that, at the time of the fatal incident, Respondent was 

setting up a traffic control zone in the west bound lanes of Route 422 in Pottstown, 

Pennsylvania in preparation for a bridge construction project. (Stipulations (Stip.) 

at ¶ 2; Tr. 20). The record also establishes that Respondent had eleven employees working 

on the Route 422 project and employs approximately 450 employees in various construction 

activities overall. (Stip, at ¶ 5; Tr. 20, 37). The construction industry as a whole affects 

commerce, and even small employers within that industry are engaged in commerce. 

 

4 For personal privacy reasons, the name of the decedent has been omitted from this Decision and Order.
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Slingluff v. OSHRC, 425 F.3d 861, 866-67 (10th Cir. 2005); Clarence M. Jones, d/b/a C.

Jones Co., 11 BNA OSHC 1529, 1531 (No. 77-3676, 1983). Additionally, Respondent

filed a timely notice of contest and admits that, as of the date of the alleged violations, it was 

an employer engaged in business affecting commerce within the meaning of section 3(5) of 

the OSH Act. (Answer at ¶¶ 3, 4; Stip. at ¶ 4; Tr. 20). 

Based upon the record, the Court finds that at all relevant times Respondent was 

engaged in a business affecting commerce and was an employer within the meaning of sections

3(3) and 3(5) of the OSH Act. The Court concludes that the Commission has jurisdiction over 

the parties and subject matter in this case, and Respondent is covered under the OSH Act. 

OSHA CITATION

Citation 1, Item 1 alleges a serious violation of section (5)(a)(1), the “general duty 

clause,” of the OSH Act and proposes a $7,000 penalty.5 The Secretary claims that 

Respondent violated the general duty clause because Respondent:

did not furnish employment and a place of employment which were free from 

recognized hazards that were causing or likely to cause death or serious physical 

harm to employees in that the employer failed to protect employees from vehicle 

strikes by not establishing a safe temporary work zone.

(Citation at 6). The Secretary further claims that at: 

422 W, mile marker 171.2 – On or about 12/3/2014, the employer created a 

dangerous work zone by placing traffic control devices at 120 foot intervals instead 

of the required 40 foot intervals. The employees were not protected from vehicle 

strikes.

 

5 Section 5(a)(1) of the OSH Act, the “general duty clause,” requires that each employer “furnish to each of his 

employees employment and a place of employment which are free from recognized hazards that are causing or are 

likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1).
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(Citation at 6). As a means of abatement, the Secretary proposed that “[a]mong other methods, 

a feasible and acceptable means of abatement would be to comply with PA Pub. 213 for proper 

placement of traffic control devices.”6 (Citation at 6).

Citation 1, Item 2 alleges a serious violation of 29 C.F.R. § 1926.202/Manual of 

Uniform Traffic Control Devices (MUTCD) 1988 Edition, Section 6F-8(a)(2) and proposes a 

$7,000 penalty.7 The Secretary claims that Respondent violated the cited standard because: 

Barricades for protection employees did not conform to the portions of the 

American National Standards Institute D6.1-1971, Manual on Uniform Traffic 

Control Devices for Streets and Highways, relating to barricades, in that employees 

were not protected while placing temporary traffic control devices.

(Citation at 7). The Secretary further claims that at “422 W, mile marker 171.2 – On or about 

12/3/2014, the employer did not ensure a truck mounted attenuator (TMA) was used to protect 

employees placing temporary traffic control devices near moving vehicles.” (Complaint at 7).

Citation 1, Item 3 alleges a serious violation of 29 C.F.R § 1926.200(g)(2)/MUTCD 

1988 Edition, Section 6C-3, and proposes a $7,000 penalty.8 The Secretary claims that 

Respondent violated the cited standard because:

Traffic control signs or devices used for protection of construction workers did not 

conform to Part VI of the Manual of Uniform Traffic Control Devices (MUTCD), 

1988 Edition, Revision 3 in that the employer did not provide a roadway transition 

taper of the requisite length to ensure safe vehicle routing around the temporary 

work control zone.

(Citation at 8). The Secretary further claims that at:

 

6 PA Pub. 213 refers to Pennsylvania Publication 213, Temporary Traffic Control Guidelines (PA Pub. 213).

7 Section 1926.202, a “Signs, Signals and Barricades” standard which incorporates by reference a portion of the 

Federal Highway Administration MUTCD states: “Barricades for protection of employees shall conform to Part 

VI of the Manual on Uniform Traffic Control Devices (1988 Edition, Revision 3, or the Millennium Edition), 

incorporated by reference in section 1926.6.” 29 C.F.R. § 1926.202. (Tr. 194; Ex. 2 at 000124).

8 Section 1926.200(g)(2), also incorporating by reference a portion of the MUTCD, states: “All traffic control 

signs or devices used for protection of construction workers shall conform to Part VI of the MUTCD, 1988 

Edition, Revision 3, or Part VI of the MUTCD, Millennium Edition, incorporated by reference in Sec. 1926.6.” 

29 C.F.R. § 1926.200(g)(2). 
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422 W, mile marker 171.2 – On or about 12/3/2014, the employer did not establish 

a transition taper for the temporary traffic control zone to endure safe vehicle 

routing and that was incompliance with Table VI-2 of the MUTCD, 1988 Edition, 

Revision 3. The employer’s installed taper was approximately 120 feet in length 

which was much shorter than the approximately 300 feet required by Table VI-2.

(Citation at 8). 

INFLUENTIAL ISSUES OF FACT AND LAW

For convenience purposes, the Court states up front that the following issues of fact and 

issues of law are found to have the most influence on the analysis of the citation items in this 

case. 

The most influential issues of fact include:

1) Did the Secretary establish the precise traffic cone spacing of the straightaway9and

the length of the transition taper, as alleged in Citation 1, Items 1 & 3, while 

Respondent was working (not after the incident)? The Court finds that he did not.

2) Did the Secretary establish that Respondent used a TMA on its worksite with the 

purpose of being a TMA at the time of the incident, as alleged in Citation 1, Item 2? 

The Court finds that he did not.

The most influential issues of law include:

1) Did the Secretary establish that the traffic cone spacing of the straightaway was part 

of a hazard, as defined by Commission precedent, for the alleged general duty 

clause violation as cited in Citation 1, Item 1? The Court finds that he did not.

2) Are the provisions of the MUTCD that are referenced in Citation 1, Items 2 and 3,

mandatory, as defined by 29 C.F.R. § 1926.6(a)10 (which is incorporated by 

 

9 To more clearly identify the cones at issue in Citation 1, Item 1, the Court uses the term “straightaway” to 

describe the location of the cones as they were placed on or near the dashed lines along the centerline of Route 

422 west at the time of the incident. The Court acknowledges that the videos and photographs taken after the 

incident show that the “straightaway” was slightly curved. (Tr. 381-82; Exs. 3, 13, A, E at 4). 

10 Section 1926.6(a) states in pertinent part: 

The standards of agencies of the U.S. Government, and organizations which are not agencies of the 

U.S. Government which are incorporated by reference in this part, have the same force and effect 

as other standards in this part. Only the mandatory provisions (i.e., provisions containing the word 

"shall" or other mandatory language) of standards incorporated by reference are adopted as 

standards under the Occupational Safety and Health Act. 

29 C.F.R. § 1926.6(a) (emphasis added).
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reference in the cited standards in Citation 1, Items 2 and 3)? The Court finds that 

these provisions of the MUTCD are not mandatory. 

BACKGROUND

Schuylkill Project

Respondent is a bridge and highway construction company working primarily in 

Pennsylvania.

11

 At the time of the incident, Respondent was under contract with the 

Pennsylvania Department of Transportation (PennDOT) to, among other things, repair a bridge 

over the Schuylkill River along Route 422 near Pottstown, Pennsylvania. (Ex. 4 at 5 

(Respondent’s contract with PennDOT)). The worksite at issue here was located on the westbound lanes of Route 422 around mile marker 171 leading up to the Schuylkill River when 

heading west. (Tr. 36-39, 71-72; Exs. 5 at 1, 15 at 1). Before Respondent could begin working 

on the bridge over the Schuylkill, Respondent had to create this worksite on Route 422. To 

create this worksite, Respondent had to implement a long-term traffic control pattern that was

developed by PennDOT and incorporated into Respondent’s contract with PennDOT. This 

long-term traffic control pattern would allow traffic to approach the bridge over the Schuylkill

and cross it, while work was being done “in a permanent work zone” on Route 422. 

(Respondent’s Brief (Resp’t Br.) at 2).

To establish the long-term traffic control pattern, however, Respondent first had to 

prepare Route 422 for the changes, i.e., remove the existing “dash” lines on the road and paint 

new lines on the road to convey to another subcontractor where to place the “long-term traffic 

control” Jersey barriers the following day. On the night of the incident, Respondent was 

engaged in this work, using a “short-term” traffic control pattern. Because the “long-term” 

Jersey barriers were not on the road yet, Respondent’s workers on Route 422 in the late-night 

 

11 Respondent’s headquarters is in Atglen, Pennsylvania. (Tr. 37).
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hours of December 3, 2014, relied on “temporary” traffic control measures to designate its 

work area in the left-hand lane from the still flowing traffic in the right-hand lane on westbound Route 422. 

The differences between the “long-term” traffic control measures and the “short-term” 

traffic control measures are relevant to this case. Both used the warning signage put in place 

well before the work zone. Both used an illuminated arrow sign in the transition taper12 to alert 

travelers to the lane shift from two lanes to single lane traffic. However, the “long-term traffic 

control plan” would utilize concrete Jersey barriers to protect the bridge construction 

worksite.13 (Resp’t Br. at 2). The “short-term traffic control plan,” which existed on the night 

of the incident, utilized traffic cones that were not permanent and easily moved by a single 

worker. (Tr. 128-29). These traffic cones were stackable, “rubberized, bright orange with two 

stripes of reflectorization on them.” They were approximately 30 inches high and weighed 

about 12-20 pounds each. (Tr. 128-29). 

The decedent, age 60, was the lead superintendent of the worksite at issue here. 

According to the record, the decedent had been called in from vacation on the day of the 

 

12 PA Pub. 213 defines “Taper” as: 

A series of channelizing devices and/or paint lines installed for the purpose of moving traffic out of or 

into the normal path. Various taper types have differing minimum lengths, most of which are based upon 

an ‘L’ distance. The formula to determine distance L is shown on the corresponding PATA notes page. 

It should be noted that the taper length is a distance per lane; so if a single taper covers two lanes, the 

total taper length will be double the calculated or minimum distance.

• Merging Taper – Used when drivers in multiple lanes are required to merge into a common 

road space. Minimum length is L.

• Shifting Taper – Used when a lateral shift is needed. Minimum length required is distance 1⁄2 

L, unless traffic is approaching a one-lane, two-way condition; in this case the minimum length 

is 50’. ...

(Ex. 10 at 000310). 

13 Superintendent Robert Schaeffer testified that the barriers to be delivered on December 4, 2014 to the worksite 

were to include both concrete and metal barriers. (Tr. 151).
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incident to help the other Respondent superintendents at this worksite, Dave Gardner and 

Robert Schaeffer. Additionally, a foreman from another one of Respondent’s Route 422 

worksites (also contracted with PennDOT), Randy Ruof, was sent that day to help with the

project at issue here.

14

 (Tr. 39). As a superintendent, the decedent was above foreman Ruof 

“in the chain of command.”15 (Tr. 37-38). Juan Villasenor was driving the Ford pattern truck 

with a TMA attached on the night of the incident.16 (Tr. 271-72, 276). The record shows the 

Ford pattern truck was used to set the cones on the roadway on December 3, 2014. (Tr. 46, 77, 

105-06, 367-68). 

Worksite Description

The worksite at issue was located within the westbound lanes of Route 422 around mile 

marker 171.17 Starting at about two miles to the east of mile marker 171 were advance 

warning signs providing notice to travelers that the lanes of westbound Route 422 would be 

shifting from two lanes to one lane, with the left lane closing.18 (Tr. 44, 254-55 identifying Ex. 

1319 at counter 17-19 seconds). Leading up to approximately mile marker 171, Respondent set 

 

14 Respondent had multiple other contracts with PennDOT at the same time as the one at issue. (Tr. 39). Foreman 

Ruof was pulled from his other project to work on the project at issue, and at times during his testimony, Ruof 

expressed some unfamiliarity with specifics about the project at issue because, “like I said, this wasn’t my 

project[.]” (Tr. 109).

15 Ruof and the decedent had known each other and previously worked together on other projects for the past three 

to four years. (Tr. 39; Ex. 18 at 17). Ruof said that the decedent was Respondent’s traffic expert. (Tr. 121). 

Ruof testified that the decedent was “good to his crew, good to his men,” and that Ruof never had to bring any 

safety issue to the decedent’s attention because the decedent had always “taken care” of it. (Tr. 39).

16 Villasenor did not testify at the hearing.

17 The westbound lanes were 12 feet wide each. (Tr. 224).

18 These advance warning signs up that night included a “work area ahead” sign, a “lane closure ahead” sign, and 

a merge sign. (Tr. 44). 

19 The Court is using the videos and testimony thereon to describe the worksite here, but the Court recognizes that 

the video in Exhibit 13 (and related Ex. 13 still photographs in Ex. 3) and Exhibit A show the worksite after the 

incident took place. The Court is mindful that the testimony regarding these videos is indicative of the worksite 

after the incident took place. The Court is also mindful that these videos serve as a basis of OSHA’s 

investigation, subsequent citation and the Secretary’s prima facie case here. 
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up a transition taper consisting of rubberized orange cones that had the purpose of closing off 

the left-hand lane. (Tr. 311-13 identifying Ex. 13 at counter 39-40 seconds, 390 identifying 

Ex. A at counter 2 minutes, 25 seconds). The first cone at the beginning of the taper was

adjacent to the roadway’s guardrail. (Ex. A, at counter 2 minutes, 27/28 seconds). There was 

also an arrow board owned by Respondent situated in the left-hand shoulder.

20

 (Tr. 75, 91-92; 

Exs. 3 at 1 [Top Photograph at “A”], 9, 13 at counter 45 seconds). The length of this transition

taper is at issue in Citation 1, Item 3. 

The travelling traffic, as a result, continued along the right-hand lane of westbound 

Route 422. Running between this dead lane and active lane of traffic was a line of traffic cones 

set on or near the dashed lines of Route 422.21 (Tr. 97, 259; Exs. 9 at 3, 13 at counter 49

seconds). The spacing of these cones in this straightaway is at issue in Citation 1, Item 1.

With regard to Citation 1, Item 2, the focus is on the evidence surrounding TMAs. At 

the time of the incident, Respondent was preparing the dead lane of traffic to be permanently 

demarcated by Jersey barriers from the active lane up to and over the Schuylkill River, which 

was approximately a mile west along Route 422. It was OSHA’s Compliance Officer (CO)

Edwardo22 Santiago’s understanding, based upon Ruof and Gardner, that Respondent had a 

truck with a TMA parked alongside Detective Thomas Barton of the North Coventry Township 

Police Department (NCTPD) away from Respondent’s operations inside the pattern, while

another pattern truck with a TMA was en route, “doing the loop around,” from the west-end of 

 

20 According to Ruof, the arrow board had “flashing lights that indicate direction, or there’s four corners, or just a 

regular bar or an arrow going one way left or right.” (Tr. 44).

21 Ruof testified that many of these cones were moved from the middle of the roadway to the left-hand shoulder to 

make room for emergency vehicles to reach the decedent, and so they are not in full view in the video and pictures 

introduced at trial. (Tr. 97-98). Ruof testified that these cones were not moved until after the incident had taken 

place. (Tr. 89).

22 The Court notes that CO Santiago’s first name is also spelled “Eduardo” in the Jt. Pre-Hr’g St. at 5 and the 

Sec’y Br. at 5.
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Respondent’s operations back to the east end of Respondent’s operations. (Tr. 235, 371). The 

Court finds that the record establishes that Respondent had a Ford pattern truck with a TMA 

“doing the loop around,” and was thus not located within the worksite cordoned off by the 

traffic cones at the time of the incident. 

The location of a second truck with a TMA alleged by CO Santiago is, at best, not clear 

based on this record. With regard to this alleged second TMA, the Court first finds that there is 

insufficient evidence in the record to substantiate that another vehicle with a TMA (Peterbilt or 

otherwise), other than the Ford pattern truck with a TMA, was actually present at the worksite 

during the evening of December 3, 2014. Although Mr. Villasenor was identified as the driver 

of the Ford pattern truck with a TMA, no driver was identified as having driven a non-pattern 

truck with a TMA that day at the worksite. No driver of a vehicle with a TMA testified at trial. 

Detective Barton does not recall seeing a vehicle with a TMA other than the Ford pattern truck 

with its TMA at the worksite that evening. Ruof’s March 2015 diagram depicting the 

placement of two pattern trucks at the worksite is unreliable. No pattern truck was parked 

alongside Detective Barton and Officer Tim Roeder at the South Keim Street ramp at the time 

of the incident. As to any second truck with a TMA, CO Santiago testified that “it is not 

certain of its location”, and due to “interchangeable terms,” he was “not sure on the location of 

the TMA.” (Tr. 277, 371, 406-07). No TMA of any kind is in the pictures and videos taken at 

the worksite on the night of the incident. (Exs. 3, 13, A, E). 

The Court further finds that CO Santiago’s account that Gardner told him that a pattern 

truck with a TMA was located in the transition area at the time of the incident was in error, or 

Mr. Gardner was in error in making such an assertion to him, or CO Santiago was confusing 

the Ford pattern truck with a TMA with another, non-pattern truck with a TMA. Gardner 
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arrived at the worksite only minutes before the incident, and he did not testify at the trial. (Tr. 

271-77).

It is undisputed that the Ford pattern truck with its TMA was not located where CO 

Santiago claims it should have been located – within the pattern zone to the east of 

Respondent’s operations near the arrow board to serve as protection of Respondent’s workers 

from errant vehicles. (Tr. 371-72; Ex. 9 at 1 at “E”). The Court finds that the Ford pattern 

truck with its TMA was not in the transition area at the time of incident, but was, instead,

“looping around” back onto Route 422 east. (Tr. 271-77).

The existence and location of any second truck with a TMA at the worksite is a subject 

at issue for Citation 1, Item 2. Under these circumstances, the Court finds that the record does 

not support that there was a second TMA on the worksite on the night of the incident. 

Events on the Evening of December 3, 2014

3:00 P.M.-8:30 P.M.

The parties stipulated that the work Respondent was performing that night was 

eradicating existing road lines and painting new lines, to aid the travelling public to navigate 

around the worksite leading up to the Schuylkill River.23 (Stip. at ¶¶ 9-10). Ruof testified that 

Respondent had already performed the eradication task before he arrived at the worksite that 

day around 3:00 p.m. (Tr. 41, 63). Work continued late into the evening because the tasks for 

that day had to be completed before the following day’s scheduled delivery of concrete Jersey 

barriers. (Tr. 80, 151). By 8:30 p.m., Respondent had completed the east-bound work on

Route 422 and started the west-bound work. (Stip. at ¶ 10). 

 

23 Schaeffer testified the eradication task would have been performed from within a truck, which would have been 

part of a “slow roll” procession. (Tr. 183-85).
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8:30 P.M.-10:30 P.M.

One of the initial tasks on the west-bound lanes was to perform a “slow roll,” to 

establish traffic control. The “slow roll” procession had the purpose of protecting the work 

vehicle performing a task: the lead vehicle, typically termed a pattern truck, would be 

performing a task, while one or two other vehicles trailed behind it slowing down traffic 

behind them. Detective Barton, along with West Pottsgrove Officer Tim Roeder, would help 

with this travelling roadblock.24 (Tr. 285-287, 307-08). During the “slow rolls,” Detective 

Barton helped slow or stop traffic by hitting his breaks and weaving back and forth in a zig zag 

pattern at a speed of about ten to fifteen miles per hour. (Tr. 296-97). Traffic would react and 

follow Barton into the right lane, upon which Barton would increase his speed to that of the 

posted speed limit. (Tr. 292, 297). Traffic would continue following Barton through the 

pattern at a slow pace, thus creating a time gap for the pattern to be set out. (Tr. 292, 297). 

Following the “slow roll,” Detective Barton pulled into the dead lane of the pattern on 

the west-end of the workers and remained there awaiting receipt of his next set of directions 

from the decedent for providing control over the traffic that was still flowing in the right lane. 

(Tr. 294). After his receipt of instructions, Detective Barton would “loop around” the 

worksite to begin another “slow roll” at the east end of the worksite. The “loop around” was 

the term used at the trial to describe how workers would return to the worksite once finishing a 

task travelling westbound on Route 422: “Well, the traffic is running westbound. Every time 

we did something, whatever it may be, you set – if you set signs, you have to continue, get off 

the highway, turn around, come back, then do you next thing.” (Tr. 69). The record indicates 

the “loop around” constituted the following: 

 

24 Detective Barton testified that he arrived at Respondent’s worksite at 7:00 p.m. (Tr. 290).
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(1) Driving west on Route 422, over the Schuylkill, and exiting Route 422 at the Stowe 

exit,

(2) Traveling east to one of the onramps east of the Routes 100 and 422 intersection, 

and then,

(3) Re-entering Route 422 westbound east of the worksite.

(Tr. 70, 124-25, 344; Ex. 1).

According to Schaeffer, PennDOT dictated the terms of a “slow roll.” (Tr. 195). For 

example, Schaeffer testified, “when we do the slow roll, we’re allowed to actually stop traffic 

for 15 minutes, but they say you can only do the slow rolls at certain times on that side of the 

road,” taking into account factors such as time of day, weekends, holidays, etc. (Tr. 195). 

During the time gaps created by each “slow roll,” Respondent’s crew worked to quickly 

complete their tasks. (Tr. 292). For example, during the first “slow roll,” cones were put out 

to mark the road closure and the lane change from the left lane to the right lane. (Tr. 292). 

Ruof testified that a second truck with a TMA that he alleges was at the worksite was 

“strictly a TMA”; i.e. a truck providing protection to workers. (Tr. 77). Ruof differentiated 

this alleged second truck with a TMA from the Ford “pattern truck,” that carried cones on it

and also had a TMA on it. He said that the Ford pattern truck was used “to facilitate cones and 

signs.” (Tr. 77). 

At approximately 10:00 p.m., Barton departed his parked position in the left-hand lane 

on Route 422 to “loop around” and perform another “slow roll.” (Tr. 358). After looping 

around, Barton parked eight-tenths of a mile east of the worksite on the South Keim Street 

onramp facing westbound with his lights activated. (Tr. 298, 307). Parked next to Barton was 

Officer Roeder in his marked West Pottsgrove police car. (Tr. 307-08). They waited for word 
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to depart this waiting spot on the South Keim ramp to perform a “slow roll” with the paint 

truck.25 (Tr. 353). 

The following was Detective Barton’s understanding of what the pattern truck with a 

TMA was instructed to do right before the incident occurred:

Q Did you feel that you had a clear understanding of movement of cones, while the 

painting activity was going on?

A Yes, generally I did.

Q Okay. And what did you understand that to be?

A That the operation between the paint truck and where the taper was to start the 

painting on the roadway had to be done somewhat by hand, and that required cones that 

were already on the skip line to be moved to allow for the size of the vehicle doing the 

painting to accomplish their task. I also understand from my interviews that the 

presence of the [Ford] attenuator truck had traveled into the pattern, far beyond where it 

was intended to be through the direction of what [the decedent] had indicated for the 

other employees at that time. So they suspended with the painting operation, to allow 

the [Ford] attenuator truck to again loop the pattern and come back and sit at the right 

point to officially stop traffic, so that the rest of the painting operation could be 

completed.

Q And did you understand that the [Ford] attenuator [truck] would be behind the paint 

truck, as it traveled through the live lane of traffic, which is when you would be also 

doing your slow roll?

A Correct.

(Tr. 352).

10:30 P.M.-11:00 P.M.

Cones were in place and a traffic control pattern established by about 10:30 p.m. 

Superintendent Schaeffer testified that he finished painting the reference lines for the “end of 

the traffic pattern” around 10:30 p.m. (Tr. 171-75; Ex. E at 1 at “A”, 2 at “A” and “B”).

Schaffer then testified that he saw the cones “in place in perfect order before [he] left.” (Tr. 

 

25 The paint truck did not have a TMA attached to it. (Tr. 143).
- 17 -

176). Schaffer said he left the worksite about 45 minutes to an hour before the incident. (Tr. 

201). 

Between 10:00 p.m. and 11:00 p.m., the paint truck was sitting in the left lane at the 

end of the taper, inside the traffic pattern. (Tr. 76, 88; Ex. 9). The decedent had been speaking 

with the painters in that truck and gave them the go-ahead to “loop around” and prepare to 

paint the final striping.26 (Tr. 88, 123). During this time, traffic had been moving in the righthand lane. (Tr. 124).

Around this time, Ruof saw the decedent starting to re-position traffic cones; one at a 

time. (Tr. 66, 129; Ex. 9 at “B”). The decedent, who was on the west-end of Respondent’s 

operations, called Ruof, who was near the transition taper, using a cell phone and told Ruof to 

“go ahead and let the traffic through.”27 (Tr. 81-82). Ruof later testified that the paint truck 

did not move prior to the incident, that “they didn’t get to go anywhere.” (Tr. 123-24). Ruof 

also then agreed to the following:

Q: The policeman and the attenuator truck had already gone around at that point in 

time?

A: Yes.

Q: They were just waiting for the paint truck at that point in time?

A: Yes.

(Tr. 124).

 

26 Ruof testified that Guidemark, Inc. provided painters, including Bridget Moser and Jonathan Tracey, for the 

project. (Tr. 50; Ex. 4 at 201-02).

27 Ruof testified that he then communicated the decedent’s instructions to the “TMA driver”, who he believed was 

together with the police officer [presumably Barton]. According to Ruof, the unidentified driver of the alleged 

second truck with a TMA conveyed the decedent’s instructions to the police officer. (Tr. 82; Ex. 9 at “D”). 

Barton testified that he was eight-tenths of a mile east of the traffic control pattern at the South Keim Street 

onramp parked along-side Officer Roeder prior to, and at, the time of the incident. The Ford truck with its TMA 

was performing its “looping around” and was not with Barton. There is no evidence to corroborate Ruof’s 

testimony that a second truck with a TMA, along with its driver, was parked together with Barton and Roeder at 

that time and location. 
- 18 -

During this time, Superintendent Gardner approached Ruof. (Tr. 66). While Ruof and 

Gardner were conversing behind Gardner’s pickup truck, Ruof heard a noise and thereafter 

noticed that the decedent had been struck by a moving vehicle at the west-end of the taper. 

(Tr. 66, 76-77; Exs. 1 at “D”, 9 at “A”). Ruof estimates that the decedent had moved three or 

four cones before being struck. (Tr. 126). One of the two laborers who had been helping the 

decedent move the cones was struck by a cone that may have been initially in the decedent’s 

hand. (Tr. 127).

According to CO Santiago, at the time of the incident the Ford pattern truck with a 

TMA was “looping around,” “in motion” and “fluid.” (Tr. 276, 368; Ex. 9 at “D”). CO 

Santiago also said it was his understanding that an alleged second pattern truck with a TMA 

(perhaps a Peterbilt truck) was parked “inside the work activity area,” to the west of the 

workers. (Tr. 276-77, 368; Ex. 9 at “C”). Detective Barton recalled seeing the Ford TMA, but 

not a Peterbilt truck with a TMA, at the worksite during the night of the incident. (Tr. 300). 

Detective Barton also testified that he “was familiar with [] a Ford stake body truck with a 

crash attachment that the cones were on”; “the F-650 cone truck, pattern truck with attenuator.” 

(Tr. 299-300; 349-50). Detective Barton did not know and could not recall if a Peterbilt truck 

with a TMA was “there,” referring to the worksite on the night of the incident. (Tr. 348-50; 

Ex. 9). Detective Barton stated that he was waiting with Officer Roeder for the Ford “pattern 

truck” to pass him to begin another “slow roll.” (Tr. 307-08). The Ford pattern truck with a 

TMA had not passed him yet when the incident occurred. (Tr. 307-08). At approximately 

11:00 p.m., Detective Barton received a radio dispatch from Montgomery County Police Radio 

that there were reports coming in of a worker struck on the highway west of Route 100. (Tr. 

308).
- 19 -

RELEVANT TESTIMONY

CO Edwardo Santiago

CO Santiago testified regarding his inspection of Respondent’s worksite.28 He was 

assigned to investigate the worksite on December 4, 201429, the day after the incident.30 He

was instructed to go to the jobsite and document the working conditions. (Tr. 237). CO 

Santiago was not “the traffic control coordinator for the Philadelphia area office,” and does not 

have “any specialized knowledge regarding traffic control programs or requirements.” (Tr. 

397). He cannot say with certainty that he is “familiar with the fact that [OSHA Instruction, 

Directive Number: CPL 02-01-054, Subject: Inspection and Citation Guidance for Roadway 

and Highway Construction Work Zones] identifies that only mandatory provisions of the 

MUTCD are to be issued as citations.” (Tr. 396-97).

When CO Santiago arrived at the worksite, the worksite had been cleared from the 

highway. (Tr. 243-44). He came upon Mr. Shaeffer, who was “in the vicinity.” He showed 

him his OSHA credentials. He spoke with him “in an area inside the shoulder,” where 

Respondent “had located their construction equipment and vehicles.” (Tr. 190-91, 238-39). 

CO Santiago took a video from the eastbound side of Route 422, looking east. (Tr. 240; Ex. 8). 

The video shows free-flowing traffic on the other side of the guardrail, where the worksite had 

been the night before. (Ex. 8). According to CO Santiago, Mr. Schaeffer seemed “pretty 

 

28 At the time of the trial, CO Santiago had worked for OSHA for seven years. Previously, he had 10 years in the 

safety industry, working as a safety manager for a furniture distribution company, and as a safety coordinator for a 

company called Church & Dwight, and also the precast concrete company Oldcastle Precast. He has a bachelor’s 

degree in Occupational Safety and Health. (Tr. 235-36).

29 The record indicates that Respondent’s Safety Director, Richard Wittlinger, called OSHA at 2:21 am on 

December 4, 2014 and left a voice message regarding the worksite fatality on the after-hours hotline. (Ex. 7). 

30 CO Santiago worked out of the Philadelphia area OSHA office. (Tr. 396-97). Fellow CO Chris Ann Nine 

accompanied him on this inspection. CO Nine did not testify at the trial. (Tr. 238). 
- 20 -

shaken up,” so CO Santiago “kept [his] conversations with him brief.” (Tr. 403). Mr. 

Schaeffer pointed out the location where the decedent was struck and killed. There were no 

traffic cones or TMAs for CO Santiago to inspect.31 (Tr. 242-43; Ex. 8). CO Santiago did not 

ask Mr. Schaeffer that day why the worksite had been removed. Mr. Schaeffer did not show 

CO Santiago “anything that could have been measured to determine the way that the traffic 

control pattern was set out the night before.” (Tr. 244, 402). CO Santiago, however, testified 

that he had “no reason to believe that someone removed [the worksite] just so [he] couldn’t 

conduct an inspection.” (Tr. 402). After his interview, Schaeffer referred CO Santiago to 

Respondent’s Safety Director Robert Wittlinger. (Tr. 191).

CO Santiago interviewed Mr. Wittlinger by telephone on the day of the inspection, 

December 4, 2014. (Tr. 260). CO Santiago asked Wittlinger about Respondent’s Traffic 

Control Plan (TCP). He did not recall asking Wittlinger about PA Pub. 213.32 (Tr. 261; Ex. 

10). Wittlinger provided CO Santiago with Respondent’s TCPs and indicated to CO Santiago 

that Respondent was in “stage one, phase B” of the project on the night of the incident. (Tr. 

261-62; Ex. 2). 

 

31 The video shows channelizing devices on the east-bound lanes, cordoning off the right-hand lane where CO 

Santiago and several of Respondent’s pattern trucks were parked. (Tr. 240-43; Ex. 8). This video shows the 

channelizing devices on December 4, not the worksite the night prior on December 3, the actual night of the 

incident. 

32 PA Pub. 213 states that it applies to contractors performing construction or any other type of work on highways. 

It states it “has precedence over information found in the MUTCD.” It further states that the traffic control 

schemes and guidelines: 

are minimum desirable applications for normal situations, and additional protection may be needed when 

special complexities or potential hazards prevail. The protection prescribed for each situation shall be 

consistent with the general provisions found in the most recent editions of Title 67 PA Code, Chapter 

212, Official Traffic Control Devices and the Manual on Uniform Traffic Control Devices as issued by 

the Federal Highway Administration and should be based on common sense; engineering judgment; the 

speed and volume of traffic; the duration of the operation; the exposure to potential hazards; the physical 

features of the highway including horizontal alignment, vertical alignment, and the presence of 

intersections; and other important features. 

(Ex. 10 at 000294).
- 21 -

To gather additional evidence, CO Santiago explained: “Being that I had nothing to 

work with, in that there was no worksite where the accident had occurred, I knew from my 

experience that the local police department would have – that was dispatched to the scene 

would have details on the incident.” (Tr. 243). CO Santiago contacted the NCTPD and spoke 

with lead investigator Sergeant Robert W. Malason. (Tr. 244; Ex. 18 at 14). 

CO Santiago acquired the NCTPD investigative report. (Tr. 244; Ex. 5). He used this 

investigative report in the following ways: “To learn of the observations made by Sergeant 

Malason and the other police officers, the statements provided to them from the witnesses at 

the scene of the accident, including information from the driver involved in the incident.” (Tr. 

245-46). CO Santiago also acquired the NCTPD Incident Report.33 (Tr. 246; Ex. 18).

CO Santiago also acquired “dash-cam” videos from at least two police vehicles 

responding to the incident. (Tr. 254, 386-90; Exs. 13, A). He used these videos to ascertain 

what the worksite looked like on December 3 after the incident. He used the videos to show 

the location of Respondent’s traffic cones, which, in turn, CO Santiago attempted to use to 

discern the length of the transition taper, and the spacing of the cones along the straightaway at

the worksite on the night of the incident.

34

 (Tr. 255-60, 381, 386-96). The Secretary, however, 

 

33 Initially only pages 21 and the top of page 22 of the Police Incident Report were admitted into evidence at the 

trial. (Tr. 326, 328, 410; Ex. 6). Later, the entire Police Incident Report was admitted into evidence. (Tr. 340). 

When asked how the Police Incident Report was helpful to his investigation, CO Santiago testified that the 

“incident report has information in it about how the traffic control zone was haphazardly set up.” The Court 

sustained Respondent’s objection to CO Santiago’s testimony in this regard and accordingly disregards his 

response to the question. (Tr. 250-51). The Court has reviewed the interview statements, and the only 

interviewee who uses the word “haphazard” was the driver of the Jeep Liberty. (Ex. 18 at 15 of 27). The 

Secretary relies on this statement, rather heavily, in his brief to support the definition of the hazard for the alleged 

general duty clause violation. (Sec’y Br. at 7). Later, without objection, CO Santiago said he used the Police 

Incident Report to ascertain more insight into the accounts of the incident and fill in information that he did not 

obtain during his interviews. (Tr. 251).

34 There was confusion at the hearing as to which video CO Santiago used to determine facts about the worksite 

that he reported back to the Philadelphia Area OSHA Office to support the citation. On direct examination, the 

Secretary questioned CO Santiago regarding the location of Respondent’s equipment (i.e., trucks, TMA, and 

traffic cones) at the worksite using Officer Igor Parfeniouk’s dash-cam video at Exhibit 13. (Tr. 254-60, 309, 
- 22 -

states the following: “Some cones dividing the right lane from the left lane had been moved 

after the accident to make room for first responders, [Tr. at 90, 98], and so the dash cam video 

does not provide reliable evidence about the spacing of those cones.” (Sec’y Br. at 7). 

Regarding the length of the taper, however, the Secretary still relies on CO Santiago’s 

testimony regarding the Parfeniouk video at Exhibit 13.35 (Sec’y Br. at 17 citing Tr. 375 (CO 

Santiago referring to pictures in Exhibit 3, which are stills from Exhibit 13)). 

CO Santiago returned to the location of the worksite on December 8, 2014. (Tr. 264). 

At that time, CO Santiago took pictures of Respondent’s traffic control equipment that was at 

the worksite on December 8, 2014, including pattern trucks. (Tr. 264-66; Ex. 9 at 2-5). The 

trucks at the work site on December 8th included a Ford and a Peterbilt – both of these trucks 

had a TMA on them. The Ford truck is shown in photographs at Exhibit 9 at 3, 5. The 

Peterbilt truck is shown in the photograph at Exhibit 9 at 4. CO Santiago testified: “Without 

looking at the pictures I can tell you that the Peterbilt was the TMA and the Ford was the 

Pattern truck, based on my interviews.” (Tr. 267; Ex. 9 at 3-5). CO Santiago did not testify 

 

311). On cross-examination, CO Santiago stated that the video he testified to on direct (Exhibit 13) was not in 

fact the video he used as a basis for his observations that were the basis for the citation. (Tr. 387-89). Respondent 

then introduced another dash-cam video as Exhibit A and continued the cross-examination of CO Santiago. (Tr. 

390-96). This dash-cam video was taken from “the first officer responding, Officer [George] Hollis, of the North 

Coventry Police Department, who was the lead vehicle.” (Tr. 389). Officer Hollis was the shift supervisor from 

North Coventry Township that evening. (Tr. 308-09). At the beginning of the trial, Respondent had objected to 

the use of pictures in Exhibit 3, stating that they were not the best evidence to be used as the pictures were stills 

from the video in Exhibit 13. (Tr. 10-13). The objection was overruled on the basis that the video would be 

played and testified to at the trial. Respondent also objected to the introduction of Exhibit 13, but on the basis that 

it was unknown whether it had been edited. (Tr. 13). Exhibit 13 was admitted based on the Secretary’s assertion 

that it was unedited. (Tr. 14). At this point, the Court now treats the pictures in Exhibit 3 with the same level of 

scrutiny as that of Exhibit 13. Neither party objects to the use of Exhibits 3 or 13 on the basis that CO Santiago 

did not actually use them as a basis for his initial observations that served as the underlying basis for the citation. 

Instead, he testified that he used the Hollis dash-cam video at Exhibit A. (Tr. 385-88; Ex. A). 

35 CO Santiago testified that he used the visual evidence shown in the NCTPD dash-cam video and the 

measurements provided by Sergeant Malason to determine that the length of the taper was allegedly about 120 

feet. (Tr. 375; Ex. A).
- 23 -

that these two trucks were used at the worksite on December 3, 2014 at the time of the 

incident.

That day, December 8

th, CO Santiago also interviewed Superintendent Gardner. (Tr. 

267). He told the CO that he saw the decedent adjusting cones just prior to the incident. He 

said the cones were 4 feet inside the left-hand lane from the centerline of the highway.

According to CO Santiago, Gardner was a direct eye witness to the incident.

36

 According to 

CO Santiago, Gardner saw a Jeep leave the right-hand travel lane and enter the left-hand 

working lane and strike the decedent as he was adjusting cones in the worksite straightaway. 

(Tr. 268-70). Regarding the location of Respondent’s trucks on the worksite at that time, CO 

Santiago testified that Gardner told him that a “pattern truck was inside that transition area 

[i.e., the taper] and the TMA was looping around [i.e., leaving and returning to the jobsite].” 

(Tr. 270). CO Santiago testified that Gardner said that Juan Villasenor was driving the Ford 

truck that night and was looping around back onto 422 east at the time of the incident. (Tr. 

271-72, 276-77). CO Santiago then testified: 

A The two trucks that were used, one was driven by Juan Velasenor (sic), which 

was being looped around, which was the Ford truck. The Ford truck, as I

understand, was the pattern truck, not used as a TMA. And the other truck was 

used as the TMA. And I can’t say with certainty where that TMA was located, 

without referring to my notes.

Q Okay. So we’re not sure on the location of --

A No, it --

Q -- the TMA at this point?

A Correct. Different personnel -- being that these trucks were identified 

interchangeably with pattern truck, TMA and crash truck, it made it difficult to 

discern that definitively.

(Tr. 277).

 

36 Schaeffer testified that Gardner returned to the worksite around 10:30 p.m. and replaced Schaeffer at the jobsite 

when Schaeffer went home for the day. (Tr. 172, 174, 202). The Court finds Gardner actually arrived at the 

worksite at about 10:55 p.m., December 3, 2014 based upon what he told Detective Barton only three hours later. 

Ruof testified that he observed Gardner attempting to resuscitate the decedent directly after the incident. (Tr. 89). 
- 24 -

In March 2015, three months after the incident, CO Santiago interviewed Foreman 

Ruof regarding the worksite. (Tr. 272). CO Santiago testified that Ruof told him that “the 

cones had been placed on every third skip once the line was straight,” and that the cones in the 

taper “were somewhere between 6 and 12 feet apart.”37 (Tr. 259). Ruof told the CO that the 

length of the taper was “600 plus feet.” (Tr. 273-74). CO Santiago testified the Ruof said that 

Respondent had placed the cones about 1 hour and 45 minutes prior to the incident.

38

 (Tr. 

273). 

CO Santiago conducted a closing conference with Mr. Wittlinger. (Tr. 365, 412). He 

informed Wittlinger that he had decided to cite Respondent for “[t]he failure to protect the 

construction workers while conducting their construction activities. The taper not set up 

according to the MUTCD and the spacing – the spacings of the pattern being set too wide.” 

(Tr. 365). 

CO Santiago testified that Citation 1, Item 1, the alleged straightaway cone spacing 

violation, was based on “witness testimony and the North Coventry Police Department dashcam video.” (Tr. 365-66). CO Santiago relied on Ruof telling him that the cones were placed 

“every third skip.” (Tr. 366). CO Santiago used Sergeant Malason’s measurements to 

determine the spacing between the cones in the following manner: each skip was 10 feet long, 

and each skip was 30 feet apart. (Tr. 256-57, 366). Using these measurements, and Ruof’s 

statement that each cone was placed “every third skip,” CO Santiago said he determined that 

each cone was placed “approximately” 120 feet apart. (Tr. 366). CO Santiago agreed that 

Respondent recognized “the hazard of employees being struck by oncoming traffic” and 

 

37 CO Santiago testified that he could see eight or nine cones in the diagonal part of the taper shown in the 

NCTPD dash-cam video at Exhibit 13, counter 43 seconds. (Tr. 259).

38 Schaeffer testified that the cones were “in perfect order” before he left the worksite around 10:30 p. m. (Tr. 

176). 
- 25 -

testified that it was evident “in the manner they used their – the equipment, specifically the 

pattern truck, the TMA.”39 (Tr. 367).

With regard to Citation 1, Item 2, CO Santiago testified that Respondent did not 

comply with MUTCD Section 6F-8(a)(2) Other Devices – Truck-Mounted Attenuators. (Tr. 

369-70; Ex. 11 at 21). CO Santiago testified that, in order to comply with the MUTCD section, 

“the TMA truck would – in order to function as designed, would need to be positioned east of 

the workers.” (Tr. 370-72; Ex. 9 (alleged required location marked with letter “E”)). On cross 

examination, CO Santiago admitted that MUTCD Section 6F-8 states that “[t]rucks and trailers 

are often used” and does not say that they must be used. He also admitted that the section 

states TMAs can be attached to the rear of protective vehicles; it does not say TMAs must be 

used. He further admitted that the section states that if a vehicle is used as a protective truck it 

must be positioned sufficiently ahead so that it does not roll into employees; it does not state 

that protective trucks must be used. (Tr. 397-99; Ex. 11 at 20-21).

CO Santiago testified that both the Ford pattern truck and the second truck with a TMA 

that he alleged was at Respondent’s worksite were not functioning as TMA’s because one (the 

Ford) was “doing the loop around. So it was not used to protect the workers who are actively 

moving cones.” (Tr. 371). As to the other alleged truck with a TMA, supposedly a Peterbilt, 

he said “it is not certain of its location, but from information that I gathered during my 

interviews it was inside the pattern. And there are other indications that it was parked a 

distance away from the actual work zone.”40 (Tr. 270, 371). CO Santiago testified that he did 

not ask why a pattern truck was not placed to the east of the employees because:

 

39 The Court notes that CO Santiago agreed that Respondent allegedly recognized “traffic” as a hazard, not the 

spacing of the cones. (Tr. 367). 

40 CO Santiago testified that Gardner told him that “the pattern truck was inside that transition area and the [Ford] 

TMA was looping around.” He said that the transition area was “[i]nside the channelizing devices, the cones set 
- 26 -

When I interviewed the employees, I was not at a position where I learned of the issue 

of the pattern truck. So that wasn’t in my head to ask questions. When I was 

interviewing them I wanted to know what they knew of the accident and where the 

pattern trucks were. Their locations. Because at that point I had no idea. I was just 

learning information for the first time. 

(Tr. 406-07). 

When shown the diagram Ruof drew in March 2015, at Exhibit 9 at 1, CO Santiago 

admitted “[t]here is no indication here of workers conducting construction activities, but the 

TMA truck would – in order to function as designed, would need to be positioned east of the 

workers.” (Tr. 371-72; Ex. 9 at 1). CO Santiago stated that a truck with the TMA should have 

been positioned within the traffic control zone east of the paint truck and west of two pickup 

trucks “somewhere between the paint truck and the end of the taper, where the taper meets the 

first skip line.” (Tr. 372; Ex. 9 at 1 at “E”). It is undisputed that no TMA was positioned at 

that location at the time of the incident.

CO Santiago testified that the basis for the alleged TMA violation, was because 

Respondent did not use a truck with a TMA, which CO Santiago understood to be a Peterbilt 

truck, “in a way that protected the workers conducting the construction activity.” (Tr. 367-

68). CO Santiago testified to the following: “We have construction activity occurring in 

between two vehicles with attenuating devices, both of which are not in any position to 

function in any protective means.” (Tr. 368). CO Santiago testified that he had “received 

information, during my interviews, that there was a pattern truck inside the pattern or the taper 

and there was another one in the process of conducting a loop from the westbound side, to the 

 

up at an angle.” (Tr. 270). He did not further identify the pattern truck with a TMA allegedly in the transition 

area at the time of the incident; nor its driver or passenger(s), if any. 
- 27 -

eastbound side, back to the westbound side.”41 (Tr. 369). CO Santiago testified that Gardner 

told him that the “TMA” was looping around and that the “pattern” truck was in the taper.42 

(Tr. 270). Ruof testified that the pattern truck could have a “dual-purpose” of both “setting 

pattern [placing cones] and as a TMA.”43 (Tr. 104). CO Santiago said that the [Ford] “pattern 

truck was a dual purpose vehicle ... It was equipped with the means to aid in the setting up of a 

pattern and to absorb the impact of errant vehicles.” (Tr. 407). 

CO Santiago testified that the basis for Citation 1, Item 3, the alleged transition taper 

length violation, was that the length of the taper of Respondent’s worksite fell short of what 

should have been approximately 300 to 320 feet.44 Based on “visual evidence provided, seen 

in the North Coventry Police Department dash-cam video and the measurements provided by 

Sergeant Malason,” CO Santiago approximated the taper length on the night of the incident as 

being only 120 feet. (Tr. 374-75, 389; Exs. 3 at 1, 12 at 4, 13, A). Using the dash-cam video 

at Exhibit A and the still photograph at Exhibit 3 at 2 [bottom photograph] taken from the 

video at Exhibit 13, he calculated at trial that the distance from the last cone shown at Exhibit

A, counter two minutes, 27 seconds, and the first cone of two cones circled at “B” on Exhibit 3 

at 2 [bottom photograph] taken from the video at Exhibit 13 to be 160 feet. He testified that 

he was “not positive” that the two cones shown at Ex. 3 at 2 at lower photograph at “B” were 

 

41 Although CO Santiago testified that he received information during interviews that there was a pattern truck 

inside the pattern or taper, he stated earlier that he was not sure of the location of the TMA. (Tr. 277, 369-71, 

406-07).

42 The Court has found that CO Santiago was mistaken as to receipt of any such statement from Gardner. 

43 Ruof testified that the photograph at Exhibit 9, at 2, showed a truck with a TMA. He said that trucks with a 

TMA do not usually function as a pattern truck placing cones onto a roadway as well as a protective vehicle at the 

same time. (Tr. 104; Ex. 9, at 2). 

44 CO Santiago used the following mathematical formula to determine this length as provided in the cited 

MUTCD section: L = (w * speed limit)2/60, where “L” is the taper length, and w is the lane width (both in feet). 

CO Santiago used 12 feet for the width of the lane, and 40 miles per hour for the speed limit. (Tr. 374; 405-06).
- 28 -

the first cones located at the roadway center line. The Court is also unable to discern whether 

or not the two cones at Exhibit 3 at 2, bottom photograph, at “B” are the first cones located at 

the center line; or at the end of the taper. There are gaps shown on that photograph and in the 

videos at Exhibits 13 and A, both before and after these two cones.45 Both the videos at 

Exhibits 13 and A and the photograph at Exhibit 3 at 2 [bottom photograph] taken from the 

video at Exhibit 13 were taken after the incident, after cones had been thrown and removed 

from the taper. The Court gives little or no weight to CO Santiago’s courtroom calculation that 

the taper was 160 feet long. (Tr. 388-96; Exs. 3 at 2 [bottom photograph], 13, A). CO 

Santiago took no measurements at the worksite, including of any painted markings by 

Schaeffer on the roadway. (Tr. 166-75, 377). 

During cross examination, CO Santiago admitted that MUTCD Section 6C-3 TAPERS

states that tapers may be used in both transition and termination areas; and agreed the section 

does not say tapers must be used.46 (Tr. 399; Ex. 12 at 4). He further agreed that the project’s 

TCP did not have any provisions that related to the temporary traffic control used to set up long 

term traffic control. (Tr. 401; Ex. 2). 

Regarding penalty, CO Santiago testified that OSHA considered Respondent’s size 

(over 400 employees – medium to large), history (none), and gravity. (Tr. 377-79). He 

testified that the more people exposed the more likely that an injury, incident, or fatality could 

 

45 After passing the arrow board following the incident, Barton noticed a large gap of missing cones between the 

arrow board and the crash site that he later determined after interviews to have come about because one of 

Respondent’s workers, Ruof, was throwing them to make room for approaching first responders. (Tr. 89, 310-14, 

351-53, 358). At least two gaps of an undetermined lengths within the taper are shown in the dash-cam videos at 

Exhibits 13 (Parfeniouk video) at counter 47 seconds, and A (Hollis video) at counter 2 minutes, 34 seconds).

46 The Court notes that MUTCD’s Section 6F-5, Channelizing Devices, states that channelizing devices include 

cones and that such devices “should provide for smooth and gradual traffic movement from one lane to another, 

onto a bypass or detour, or to reduce the width of the traveled way. They may also be used to separate traffic 

from the work space, ....” (Ex. 10 at 15). 
- 29 -

occur. (Tr. 379). CO Santiago testified that Respondent “fully” cooperated with him during 

the course of his inspection. (Tr. 402). He testified that there was “no reason” he did not 

mention good faith during his testimony on direction examination regarding penalty, that the 

Area Director determines the penalty, and he did not know if good faith was considered in the 

penalty phase. (Tr. 403). He testified that OSHA did not issue any citations to Guidemark, 

Inc. (Tr. 404-05). 

Foreman Randy Ruof

Randy Ruof, a foreman for J. D. Eckman, has been employed with the company for a 

total of 12 years. (Tr. 34-35). On the day of the incident, Ruof arrived at the worksite 

sometime between 3:00 p.m. and 3:30 p.m. It was his understanding that December 3, 2014 

was the first day Respondent worked on the westbound site of the project to repair the bridge 

that crossed the Schuylkill River near Pottstown, Pennsylvania. (Tr. 39-41). Respondent was 

in the process of starting to work on the permanent closure (through use of Jersey barriers) of 

the left, westbound lane of Route 422 about a mile east of the bridge that crossed the Schuylkill 

River. (Tr. 72; Ex. 1). Ruof testified that he had “responsibility for employee safety at the 

worksite,” but later clarified that everyone is “equally responsible” for employee safety, 

including the employees themselves. (Tr. 35, 53-54). The decedent, as a superintendent and 

traffic expert, was above Ruof in the chain of command. (Tr. 37-38, 121).

Ruof was asked to come to the worksite to “help out” with the eradication and painting 

of lines and setting up the traffic control pattern. He was there primarily to set up the pattern to 

get the Jersey barriers up. (Tr. 41, 72). The Jersey barriers were due to be placed on the 

roadway at the worksite on December 4, 2014. (Tr. 122, 151-52). The TCP has four areas: 
- 30 -

advance warning, transition, activity, and termination.47 (Tr. 114, 139-40; Ex. 14). The traffic 

control pattern setup includes, but is not limited to, cones, temporary signage,48 pickup trucks 

for arrow boards, and a TMA. (Tr. 41-43). The cones, which were rubberized and bright 

orange in color with two reflective stripes, were about thirty inches in height and about twelve

to twenty pounds in weight. (Tr. 128-29). To create the traffic control pattern, workers use a 

pattern truck, which displays additional signage and carries the cones to be placed. (Tr. 46).

The pattern truck used on December 3, 2014 to deploy cones was also equipped with a TMA.

49

(Tr. 46). Ruof testified that there was also a second truck “known as the TMA” and “[t]hat’s 

all that does” at the worksite.50 (Tr. 46). 

After a delay due to light rain, workers began setting up the traffic control pattern by 

posting temporary signage. (Tr. 43-44, 59-60). Examples of temporary signage are a lane 

closure sign, a merge sign, and a flashing arrow board. (Tr. 44). Because signage is often too 

large in size to be placed in the median along the left lane, signage is almost always placed on 

the shoulder along the right lane. (Tr. 45). Ruof testified that the first sign “would have been 

several thousand feet back.” (Tr. 43-44). 

Once signage is posted, the next step in establishing the traffic control pattern is placing 

the cones. (Tr. 46-47). Ruof testified that the placement of the cones is predetermined, with 

two skips between each cone. (Tr. 47, 90). With about twenty feet between each skip, each 

 

47 Ruof testified that these four areas were in place at the worksite. He further testified that, depending on the job, 

a “little buffer zone” may be included as an additional area at the end of the taper which typically included a truck 

with a TMA, shadow vehicle, a vehicle with flashing lights, or marked police car. (Tr. 140-41; Ex. 12 at 2-3). 

Ruof did not look at the TCP in effect at the worksite site before the incident. (Tr. 115).

48 Ruof testified that the signage was for a short duration of time as part of the work that he described as 

“temporary maintenance and protection.” (Tr. 42). 

49 The Court finds that this was the Ford truck with a TMA. (Ex. 9 at 1, at “D”; 3, 5). Ruof testified that if 

something hits the crash attenuator “it crumples to protect all parties involved.” (Tr. 103; Ex. 9 at 2 at “A”).

50 The Court finds that there is insufficient evidence to support Ruof’s testimony that a second truck with a TMA 

was at the worksite on December 3, 2014. 
- 31 -

cone was estimated to have been about forty feet apart. (Tr. 137-38). Ruof estimated there 

was a distance of ten to twelve feet between the cones that were closer to the taper, as expected 

due to a tighter proximity. (Tr. 130, 137).

On the day of the incident, workers on the pattern truck with a TMA placed the cones 

on the road, starting with the taper, moving outward, and then down the center of the road. Mr.

Villasenor drove the pattern truck while a laborer got cones ready for placement onto the 

roadway and another laborer actually set the cones onto the roadway. (Tr. 47, 50, 126). Cones 

were placed after every two skips. (Tr. 90). Ruof, based on his own visual observations, 

estimated that the installed taper totaled to 660 feet in length.51 (Tr. 131-32). The cones were 

in place and a traffic control pattern established by about 10:30 p.m. The next step called for 

painters in a paint truck to paint a yellow line along the left side of the cones. (Tr. 65, 88). 

Because the paint truck was built to paint white from the right side of the vehicle and yellow 

from the left, it was required to drive west in the right lane in order to paint a yellow line on the 

left lane. (Tr. 65). However, the cones were “too close in proximity” to the area that needed to 

be painted and, as such, the cones needed to be moved one and a half to two feet to prevent the 

paint truck from hitting or striking the cones. (Tr. 65-66, 107, 128).

The paint truck was sitting in the left lane at the end of the taper, inside the traffic 

pattern. (Tr. 76, 88, 122; Ex.9). The decedent had been speaking with the painters for about 

15 – 20 minutes and gave them the go-ahead to “loop around” and prepare to paint the final 

striping. (Tr. 66, 88, 123). During this time, traffic had been moving in the right-hand lane. 

(Tr. 124).

 

51 Ruof testified that he did not agree with OSHA’s allegation that the taper was about 120 feet in length. (Tr. 

131-32). 
- 32 -

Ruof saw the decedent starting to move the cones, one at a time. (Tr. 66, 129; Ex. 9 at 1 

at “B”). Ruof stated that he was not surprised when he saw the decedent moving the cones 

because the decedent told Ruof that the cones needed to be moved one and a half to two feet 

south further into the left “dead lane” because “the lines had to be painted from the fast lane 

and [the painters] were heading around.”52 (Tr. 82, 87, 123, 128). The decedent then used his 

cell phone to call Ruof and told him to “go ahead and let the traffic through.” (Tr. 81-82).

Ruof testified he then communicated the decedent’s instructions by cell phone to an 

unidentified TMA driver who he believed was together with the police officer.53 (Tr. 81-82).

Ruof said he was unaware that the cones still needed to be moved at the time that the decedent 

gave Ruof the direction to let the traffic through. (Tr. 82).

During this time and shortly before the incident, Superintendent Gardner approached 

Ruof.54 Gardner was there to “get everything set up for that final barrier.” (Tr. 66, 78-79). 

While Ruof and Gardner were conversing behind Gardner’s pickup truck, Ruof heard a noise 

and thereafter noticed that the decedent had been struck by a moving vehicle at the west-end of 

the taper. (Tr. 66, 76-77; Exs. 1 at “D”, 9 at “A”). Ruof estimates that the decedent had 

moved three or four cones before being struck.55 (Tr. 126). Mark S. Garber, an 

operator/laborer employed by Respondent, was one of the two laborers who had been helping

 

52 Ruof’s testimony that the decedent was moving cones in a southerly direction when struck by the Jeep 

contradicts Detective Barton’s testimony that he determined from interviews that, at the time of the incident, the 

decedent was taking cones from the southern left-hand lane center median “and placing them back in a northerly 

direction back to the skip line.” It is not necessary for the Court to resolve whether or not the decedent was 

moving cones in a northern or southern direction at the time of the incident. The Court finds that the decedent 

was moving a cone when he was struck by a Jeep Liberty.

53 As previously noted, the Court has found Ruof’s understanding that a TMA driver was together with Detective 

Barton and Officer Roeder at this time was in error. 

54 Ruof was approaching the end of his eight-hour shift which was due to end at 11:00 p.m. The lines were going 

to be painted and he was going to “get on out of there.” Once the painting was completed no other workers would 

be working at the worksite. (Tr. 79, 122). 

55 Ruof testified that cones along a distance of about 150 feet needed to be moved. (Tr. 128). He estimated that 

these cones were spaced about eight to ten feet apart. (Tr. 130). 
- 33 -

the decedent move the cones. Garber was struck by a cone that may have been initially in the 

decedent’s hand.56 (Tr. 127, 317; Ex. 18 at 21-22). 

According to Ruof, at the time of the incident, the police vehicle was located several 

hundred feet east of the traffic control zone, back near the interchange. (Tr. 67-70, 274-75; Ex. 

1 at “B”). Upon being shown the diagram that he drew at the request of CO Santiago, Ruof 

also identified a “pattern truck” and a “police car” as both being located on the right-hand 

shoulder of the road and stated that they had already looped around and were preparing to 

perform the final “slow roll” to permanently paint the yellow line.

57 (Tr. 73-74, 77; Exs. 1 at 

“B”, 9). The paint truck had not yet moved from the end of the taper where the decedent had 

been speaking with the painters. (Tr. 123-24; Ex. 9). Ruof’s diagram shows the decedent’s 

truck parked to the left of the paint truck, the job truck to the left of the decedent’s truck, and 

an alleged pattern truck with an attached TMA parked to the left of the job truck. Ruof 

testified that neither the police car nor the “pattern truck” allegedly positioned northeast of the 

“Arrow Board” shown on his drawing at exhibit 9 at 1 were placed directly east of the decedent

when he was moving cones.

58

 (Tr. 76-77, 143-44; Ex. 9 at 1).

Ruof testified that the decedent was close by when he was struck by a vehicle. (Tr. 78). 

After the incident, Ruof saw Gardner attempting to resuscitate the decedent. (Tr. 89). Traffic 

 

56 Villasenor and Garber helped the decedent move the cones. Villasenor then departed the pattern area and drove 

west in the Ford pattern truck with the TMA deployed to the Stowe exit. On his way back eastbound on Route 

422 after looping around, he saw someone down in the roadway and police at the scene. (Tr. 127, 344; Ex. 18 at 

21-22, 24). 

57 The Court finds Ruof’s testimony to be in error. The Ford pattern truck with a TMA was being driven by 

Villasenor west of the traffic control zone and the site of the incident in a loop around Route 422 at the time of the 

incident. The Court further finds that Ruof’s drawing at Exhibit 9, at 1, does not accurately depict the position of 

two pattern trucks at the time of the incident. The CO also testified that he did not know the location of his 

alleged non-Ford pattern truck with a TMA at the time of the incident. (Tr. 277). 

58 The Court has found Ruof’s diagram to be unreliable to the extent that it depicts a pattern truck with a TMA 

parked alongside Detective Barton and Officer Roeder close to the worksite. Barton and Roeder were parked 

eight tenths of a mile east of the worksite at the South Keim Street onramp. 
- 34 -

was still flowing, so Ruof pulled his truck into the right lane to block all traffic. (Tr. 89).

Once traffic had been blocked, Ruof went over to assist Gardner. (Tr. 89). Shortly after, Ruof 

again moved his truck, as well as some cones, to free a path in the traffic pattern for first 

responders arriving on the scene. Ruof said he was “throwing cones everywhere to try to get 

the right people to him [the decedent].” (Tr. 89-90, 97-98, 101-02, 118-19; Ex. 13 at counter 

56 seconds). About twenty minutes later, Ruof began moving cones back to the center skip.

(Tr. 119).

Ruof testified that Respondent’s regular procedure was to move cones so that lines 

could be painted or protected after a pattern had been set up. (Tr. 107). He said that it was 

Respondent’s normal procedure to stop traffic when its employees adjusted cones. (Tr. 83). 

He testified that when cones were being adjusted a truck with a TMA device would normally 

be used to protect the workers. (Tr. 107-08). Ruof testified that he believed that the decedent

should not have been moving the cones without a vehicle with a TMA or some other kind of 

protection positioned behind him for protection. (Tr. 144-45). 

Ruof testified that Respondent’s contract required it to follow PA Pub. 213 when 

placing signage on the roadway as part of its safety plan. (Tr. 115; Ex. 4 at 139-43). He 

further said that there is nothing within the permanent or overall TCPs or PA Pub. 213 that 

addresses the placement of cones while painting lines and setting up for the long-term TCP. 

He said PA Pub. 213 deals with workers going to set up a work zone where actual highway 

construction is performed. (Tr. 117-18; Ex 14). Ruof testified that PA Pub. 213 called for 

cones along the travel lanes, and not along a taper, to be spaced no more than 40 feet apart 
- 35 -

where the speed limit is 40 miles per hour.59 (Tr. 136-37; Ex. 10, at 00302, 000488). He said 

that the cones on the skips at the worksite were “[p]robably 20 feet apart or something like 

that.” (Tr. 138). Ruof stated the provisions of PA Pub. 213 did not apply to the set-up work 

Respondent performed at the worksite on December 3, 2014 that was setting up for long-term 

traffic control. (Tr. 142-43). 

Superintendent Robert Schaeffer

Robert Schaeffer is another superintendent for Respondent. (Tr. 149-50). He has 

worked road and high construction for more than 30 years and has worked for Respondent for 

eight years. (Tr. 149). As a superintendent, his job duties included, “to manage the crews and 

people that I have, work subcontractors, oversee the logistics, and the safety and progress of 

everybody and everything on the job.” (Tr. 150). His crews perform the following type of 

work: “concrete piers and columns underneath the bridge...placing the stone or excavations in 

the river...concrete pacing up on the roadside...maintain the traffic and whatever needs to be 

done.” His crews also set up traffic patterns. (Tr. 150).

Regarding the Pottstown worksite, Superintendent Schaeffer had been assigned the job 

“probably a week or two prior to this event,” and, on the day of the incident, he was “getting 

familiar with the job, studying drawings that morning.” (Tr. 150-51). He said the project for 

December 3 was to paint the line between station numbers 215 and 220. (Tr. 189). He 

testified that the decedent was “coming off of vacation to come help paint the lines” that were 

used to indicate where the barriers were to be placed the following day. (Tr. 151-52). 

 

59 The PA Pub. 213 states: “C-1. Cones shall only be used during short-term operations.” Ruof understood that a 

“short-term operation” meant a work shift. (Tr. 141-42; Ex. 10, at 000302). PA Pub. 213 defines “Short-Term 

Stationary Operation” as “[a]n operation that will occupy a location for up to 24 hours. ...” (Ex. 10 at 000310).
- 36 -

Schaeffer was going to “supervise the subcontractors coming to deliver all the barriers” the 

next day. (Tr. 151). 

Regarding the length of the transition taper, Schaeffer testified that he spoke with 

PennDOT’s representative and resident engineer Rick Allison earlier in the project regarding 

visibility at the beginning of the taper.60 (Tr. 155, 158, 210-11). Due to an overpass of Route 

422 over Route 100, the “over vertical” caused concerns regarding visibility: “the traffic on 

the far side of the [overpass] does not see what’s happening on the opposite side of the 

[overpass], until they’ve come over the top of the [overpass].”61 (Tr. 158). 

Schaeffer testified that this overpass had an effect on the taper. (Tr. 160-61). Schaeffer 

testified that a surveyor, prior to Schaeffer’s work that day, had painted stations numbers 

“every 100 feet or 150 feet and 50 foot marks on the side of the road” for the entire mile length 

of the project. (Tr. 161-62; Ex. 14 e.g. at “H” for station numbers 215 and 220). There was a 

curve on the road which, over the course of “a big distance” is:

a very important thing to the traffic – PennDOT Traffic Division ... because they 

don’t want people going 40-50 miles around the curve and you’re going to put 

barrier up there, which is a tall barrier, and they can’t see. And it’s visibility and 

the merge at the same time. They have – they very same time they have the merge 

coming in there, right? So they want people to have – they’ve got some formula 

they use so that people have time enough to merge in and the visibility to see around 

the corner.

(Tr. 163-64; Ex. 2). Schaeffer testified that his discussion with Allison occurred because: 

“No matter what I do, PennDOT will not allow me to make that transition – that paint line 

transition any less than that, because it opens them up to liability. Okay?” (Tr. 162). 

 

60 Schaeffer identified Allison as “basically the boss on the job.” (Tr. 155).

61 Superintendent Schaeffer used the term “bridge” instead of “overpass” while testifying, and later clarified that 

he meant an “overpass” over Route 100. (Tr. 159). Schaeffer marked it as “G” on Exhibit 1. (Tr. 160; Ex. 1). 
- 37 -

Schaeffer testified that the taper had to be, and was, 660 feet in length.

62

 He said he started the 

cone taper at station number 220.63 (Tr. 157-58, 161-64, 168, 208; Ex. 14 at “G” and “H”). 

During December 3, 2014, Superintendent Schaeffer marked reference locations for the 

arrow board, and the cone placement for the beginning and end of the taper, and the pattern. 

(Tr. 165, 167, 172). Schaffer explained: 

Throughout the day I laid out some of the marks. So what I would do doing -- what 

I did during the day was I’d go out on the shoulder of the road -- I’d drive down the 

shoulder of the road, see the station number and I’d paint a mark on the barrier or 

the guardrail off the road. This is where they’re going to start their pattern. I 

couldn’t actually go lay out the actual marks on the roadway until they put the cones 

up. But that gave them a reference of where to start their cones, and their arrow 

board and so on and so forth.

(Tr. 166; Ex. 14 – taper line).

64

 Schaeffer explained that, to paint the reference lines, he 

drove a truck on the shoulder65 of the median side of the road, pulled up to the location 

on the guardrail, opened the door, leaned out the door and painted the marks on the 

guardrail. (Tr. 169-75, 188).

66 During this time, someone in a “regular” pickup truck,

without a TMA, would follow behind him because “the travelling public has a fear of 

 

62 Schaeffer explained that he determined the length of the taper by using the station markers 220 and 215. (Tr. 

168-69; Ex. 14). He explained that 220 “is actually 22,000,” and 215 “would be 21,500,” so that the distance 

between the two markers 22,000 and 21,500 is 500 feet. (Tr. 168-69). Schaeffer testified that he used the 

surveyor’s station markers as “reference” points, and that “there’s no way that that paint mark would have went 

out there and been very much shy of 600 and some off feet, because PennDOT inspectors are not going to allow 

me to do that, because of the liability and everything else.” (Tr. 200). He agreed that the marks he painted for the 

taper were the “full 600 and 60 some feet” because he started “between those two (the 220 and 215 markers), but 

you went for a full 660[.]” (Tr. 168-69, 200).

63 Exhibit 14 includes notes that state “BEGIN SHOULDER TAPER 220’ IN ADVANCE OF MERGING 

TAPER WITH CHANNELIZING DEVICES (6 MIN.)” and “BEGIN 663’ MERGE TAPER” just east of station 

number 220 and “END 663’ MERGE TAPER” at “E” just west of station number 215. (Tr. 197; Ex. 14). 

64 Superintendent Schaeffer testified that the advance notice signs for the construction site were already in place 

“easily” two to three weeks before the day of the incident. (Tr. 167). These signs included “the two mile 

advance, the one mile advance, the half mile...the work areas signs.” (Tr. 167).

65 Schaeffer testified that the shoulder was 12 feet wide “in some places.” (Tr. 174).

66 Schaeffer later identified the taper line on the drawing at Exhibit 14 where there is an arrow pointing downward 

from “R 3800”. He said that his markings complied with the drawing “almost exactly to what they have here” 

[Ex. 14] “a foot or two one way or the other.” (Tr. 209-10; Ex. 14). 
- 38 -

hitting peep—trucks, but they don’t have no fear of hitting people.” (Tr. 173). Schaeffer 

testified that he finished painting the reference lines for the “end of the traffic pattern” by 

around 10:30 p.m., December 3, 2014.

67 (Tr. 165, 171-72). After the cones had been set, 

Schaeffer saw that the cones at the worksite were tight about 45 minutes before the 

incident. He testified: “Those cones, can I say that they’re exactly 40 feet? Some of 

them were probably tighter than 40 feet. Some of them may be a foot or two off. But 

they were very tight. Those cones were very tight at that time.”68 (Tr 201). When 

viewing the NCTPD Dash-Cam video from Officer Parfeniouk’s patrol car at trial, 

Schaeffer testified that he saw five shoulder cones that were about six feet apart where 

the TCP called for six cones. He said the police video taken after the incident did not 

depict how the cone taper was when he left the worksite at about 10:30 p.m. before the 

incident. (Tr. 216-17, 222-23; Ex. 13). Schaeffer did not know whether the cones were 

placed every third skip. (Tr. 223).

Although Schaeffer testified that he was not there when the cones were placed, he 

stated that “they put the cones out prior to me going around.” (Tr. 172-74). Schaffer 

then testified that he saw all of the cones for the TCP “in place in perfect order before 

[he] left.” (Tr. 176). He also testified that the decedent’s crew placed the cones, so he 

did not instruct anybody to make sure the cones were a certain distance apart. (Tr. 207). 

He then testified “but if they were doing something crazy I would not hesitate to say 

 

67 Schaeffer also testified that during this time workers also “eradicated” the lines on the worksite, but he believes 

that that work did not require cones because the workers would have performed that task from a work truck, with 

a couple vehicles trailing behind it with flashing lights. (Tr. 184).

68 Schaeffer testified that about an hour before the decedent was struck, he saw that the cones were so tight he 

“had to slow down substantially to get in the cones and pull up to the decedent, who was sitting at the end of the 

taper.” (Tr. 201). 
- 39 -

something to them at all,” and did not see anything that required him to call the 

decedent’s attention to cones that were placed too far apart. (Tr. 207). 

He testified that he called the decedent on the phone to ask him if he needed 

anything, and to tell him that he (Schaeffer) was leaving the worksite for the evening.69 

(Tr. 202). Schaeffer also testified that he told the decedent that he was going to call Dave 

Gardner to come back in.70 (Tr. 202). Schaeffer testified that he was not aware when he 

left that decedent would need to adjust the cones so that the concrete Jersey barrier line 

could be painted on the road. (Tr. 176). He testified that he saw Detective Barton’s 

vehicle parked in the dead lane when he left.71 

Schaffer left the worksite about 45 minutes to an hour before the incident. (Tr. 201). 

Upon reviewing the Parfeniouk video in Exhibit 13, Schaeffer testified that the taper cones 

were not representative of what he saw when he left the worksite that night. (Tr. 217-18, 222). 

Regarding the spacing of the cones on the straightaway, Schaeffer suggested that Foreman 

Ruof was mistaken. “I think what Randy was saying – and I’m not going to put words in [his]

mouth, but what he said was skip, space, a skip and then a cone. So if the skips are 10 feet 

long and then you have the space in between, so it’d be – I don’t – can’t say it’s every third 

skip.” (Tr. 223). Schaeffer testified that he had no reason to believe that the workers didn’t 

 

69 Schaeffer testified that the decedent was 400-500 feet away from him at the time; within sight distance but not 

easy listening distance. (Tr. 202).

70 Schaeffer testified that he had earlier in the day asked Gardner to go home during the day while Schaeffer did 

the layout – the “start and stops of the tapers, of the end of the barriers, where the arrow board has to be placed. 

And so on and so forth.” (Tr. 152-53). 

71 This testimony is consistent with Detective Barton’s testimony that he was parked in the dead lane after he did 

the first “slow roll,” about an hour before the incident, and before he departed the dead lane to get in position at 

the South Keim Street ramp to perform the “loop around” for the second “slow roll.”
- 40 -

use his paint marks as a guide to place the cones on the taper. (Tr. 212). He also said that a 40 

mile per hour speed limit was posted at the worksite as part of the TCP. (Tr. 190; Ex. 14). 

Schaeffer testified that the traffic pattern had to comply with the TCP laid out by 

PennDOT. (Tr. 225). He agreed that PA Pub. 213 guidelines were incorporated into the TCP

as a guideline. (Tr. 193-94; Ex. 2, ¶ B. 3. at 000124). Schaeffer testified that the painting 

work performed on December 3, 2014 at the worksite was not within the meaning of the work 

zone within PA Pub. 213’s TCP.

72

 (Tr. 204). He also said that the “General Notes” of the TCP

required Respondent to follow the contract and the MUTCD. He further said that page 34 of 

60 of the TCP did not have any provision that addressed the traffic control that Respondent 

used on December 3, 2014 at the worksite as a set up for the permanent traffic control to be 

used afterwards that page 34 actually reflects. Schaeffer also said that nothing on the drawing 

at page 34 of 60 at Exhibit 14 identifies where cones need to be placed. (Tr. 195; Ex. 14). He 

said that drawing shows where “panelizers”73 were to be placed for the permanent 

configuration at forty feet typical from the end of merger taper 66374 through station number 

220 within a day or two after December 3, 2014. (Tr. 196-97, 205; Ex. 14). 

Regarding the contract, Schaeffer testified that the provisions in it relate mainly to the 

“travelling public”: 

A ... I’ve got a written contract that covers its butt in so many ways it’s pathetic. 

At the same time I got to follow what they have on number 14 and make it all work, 

whether the engineers got it going on, because there’s sometimes discrepancies. 

And then sometimes when you go to lay these signs out the spacing is not quite 

right. So this is where I end up having the conversation with Rick Allison and he’s 

aware of the stuff in this drawing more than I am. I have to take and blend all these 

 

72 Schaeffer testified that PA Pub. 213 applied to the permanent TCP and the crosshatched work zone area that 

Ruof had identified with an “A” on the TCP drawing. (Tr. 204-05; Ex. 14). 

73 Schaeffer identified “panelizers” as delineators with slash marks. (Tr. 196).

74 Schaeffer marked the “End 663’ Merger Taper” shown on exhibit 14 with a “D” instead of an “E” as instructed 

by counsel. The letter “D” having already been used to identify the “40’ Typical” on the same drawing, the Court 

will refer to the “End 663’ Merger Taper” as having been marked with the letter “E” to avoid confusion. (Tr. 

196-97; Ex. 14). The Court notes that the letters “B” and “F” were not used to mark any location on Exhibit 14. 
- 41 -

things together to make it work, and function and try and make it so it makes it 

work safe for me, and the guys I’m working with and make it safe for the 

pedestrians and the travelling public. So that note is there as a guideline, but at the 

same time I’ve got to please the man from PennDOT and make a blend of all these 

things.

Q And in fact that notes references the specific contract and a MUTCD and other 

items that are required to be followed.

A Yeah. 

Q And it’s your understanding that there’s a recognition then that all of that has to 

be blended together to work?

A In a traffic unit from PennDOT takes that all into account, when they start setting 

this up. Yeah. 

Q Does exhibit 14, the single page for this particular stage, have any provision on 

it that addresses the traffic control that’s being utilized to set up the permanent 

traffic control that’s reflected on that page?

A Not the set up of it, no. There are guidelines in the special provisions that 

PennDOT provides us. And I would say that they’re the only guidelines besides the 

Pub 213 guidelines and all these other. But the important one is what PennDOT is 

more -- worried about more than anything else, is the travelling public and not 

interfering with the traveling public. So they set time parameters. They set the 

amount of time, like when we do the slow roll, we’re allowed to actually stop traffic 

for 15 minutes, but they say you can only do the slow rolls at certain times on that 

side of the road.

(Tr. 194-95).

Schaeffer testified that the drawing in Exhibit 14 was complied with because he:

laid it out...to comply almost exactly to that what they have here. Was I a foot or 

two one way or the other? Yes. I was within a foot or two. And like I said, I’m not 

going to get away without doing it to the T to this drawing, because PennDOT 

would have called me on it or held me accountable.

(Tr. 210; Ex. 14). 

Detective Thomas Barton

Detective Thomas Barton is a police officer with the NCTPD located in Pottstown, 

Pennsylvania since May 2011. (Tr. 284). Barton previously worked for the Pennsylvania State 
- 42 -

Police from May 1989 until his retirement in 2010. (Tr. 285). In addition to his role as a parttime police officer, Barton currently holds the rank of Detective involved in criminal 

investigations. On the day of the incident, he was assigned to the construction zone detail on 

Route 422. (Tr. 285). 

Barton estimates that he has performed traffic control services on Route 422 for J. D.

Eckman on at least twenty different occasions since December 2013. (Tr. 286-88). Prior to the 

incident on December 3, 2014, Barton’s primary point of contact for J. D. Eckman was the 

decedent. (Tr. 289). Barton described his relationship with the decedent as an amicable work 

relationship. (Tr. 289). At the start of every shift, Barton would check in with the decedent to 

account for the work-related hours that NCTPD would later bill to J. D. Eckman, and the two 

men would frequently engage in small talk. (Tr. 289). On December 3, 2014, construction 

workers were performing line painting to prepare for the installation of a Jersey barrier, which 

would block off the left lane so that the flow of traffic would be restricted to the right lane 

while the bridge repair project was on going. (Tr. 287). Barton met with the decedent early in 

the morning, but because the roadways were still wet from the previous days’ rain, it was 

decided that operations would be postponed until later that day. (Tr. 289). 

Upon returning to the worksite at 7:00 p.m., Barton parked his marked patrol vehicle on 

the berm (the right side of the roadway on the outside of the travel lane) at the interchange of 

Routes 100 and 422 west. (Tr. 290, 293; Ex. 1 at “B”). Barton was wearing his full NCTPD 

uniform, consisting of a tan shirt and black pants, and a black patrol jacket with a yellow 

highway vest on top. (Tr. 290-91). At that time, traffic was flowing freely in both lanes of 

Route 422 west. (Tr. 291). Barton met with the decedent and the two discussed plans for 
- 43 -

setting up the pattern in the left lane as they waited for the pattern truck and arrow board to 

arrive at Barton’s location. (Tr. 291).

Barton described the pattern truck as a “stake body” Ford truck with a crash attenuator 

mounted to the rear. (Tr. 291). The pattern truck was already carrying cones by the time that 

Barton had arrived at the worksite. (Tr. 291). Barton testified that the Ford pattern truck’s

TMA was parallel to the ground. He said the Ford-650 pattern truck was the only TMA that he 

recalls seeing at the worksite on December 3, 2014.

75 Barton said the photograph at Exhibit 9, 

at page 5, shows the Ford-650 that he saw at the worksite on the evening of December 3, 2014. 

(Tr. 349-50). He did not see any Peterbilt truck with a TMA at the worksite. (Tr. 291, 298, 

300, 350). Barton stated that he saw an arrow board being pulled by a standard style red J. D.

Eckman pickup truck. (Tr. 291). 

In establishing a work zone on December 3, 2014 earlier in the evening, Barton stated 

that his particular job was to do a “slow roll,” or a rolling roadblock, to the east of where the 

deployment zone would be at Routes 100 and 422 westbound. (Tr. 292-95). Barton stated that 

once the pattern truck and arrow board had passed his parked location, he knew, based on his 

discussions with the decedent, that such an occurrence was his cue to begin the “slow roll,” just 

as he had done when performing slow rolls for projects in the past. (Tr. 293-94). Barton and 

the decedent had exchanged cell phone numbers on the day of the incident so that the decedent 

could call Barton when it was time to begin the “slow roll.” (Tr. 304). However, Barton did 

not receive a phone call from the decedent, stating that they only engaged in face-to-face 

verbal communication that day. (Tr. 304).

 

75 This testimony contradicts Ruof’s diagram to the extent it shows a pattern truck parked alongside a police car 

east of the traffic control zone. The evidence shows that at the time of the incident there were only two police cars 

parked at the South Keim Street onramp; one operated by Detective Barton and the other by Officer Roeder. (Ex. 

18 at 21). 
- 44 -

Once the pattern truck and arrow board had passed, Barton commenced his “initial

slow” roll starting from the intersection of Route 100 at the overpass, approximately one tenth 

of a mile away from where the traffic control pattern was to be set.

76

 (Tr. 292, 295). To do so, 

Barton activated his emergency signals on his marked police vehicle and drove into the left 

lane of Route 422 to slow or stop traffic while the pattern truck and arrow board advanced 

toward their point of deployment in the pattern. (Tr. 292). Barton’s emergency signals were 

equipped with an arrow stick pattern that was pointed towards the right lane. (Tr. 294). 

In performing the “slow roll” for the initial cone setup, Barton parked his vehicle at a 

forty-five-degree angle in the left lane, exited the vehicle, and manually directed traffic into the 

right lane using hand signals and a flashlight. (Tr. 294). Barton estimates that he was outside 

of his vehicle and waving cars with his flashlight for approximately 30 seconds. He recalls 

seeing road signs alerting drivers that there was going to be a lane shift. (Tr. 296).

Respondent’s crew worked to quickly establish the cone pattern and set the arrow board. (Tr. 

292). Cones were put out to mark the road closure and the lane change from the left lane to the 

right lane. (Tr. 292). He testified that he saw taper cones in place, including before and after 

the arrow board. (Tr. 343-44).

Following the initial “slow roll,” Barton pulled into the dead lane of the pattern and 

remained for the next set of directions for providing control over the traffic that was still 

flowing in the right lane. (Tr. 294). At approximately 10:00 p.m., Barton moved his patrol car 

from inside the traffic control zone to the South Keim Street onramp (east of the traffic control 

 

76 Barton started the “slow roll” to set out the pattern for the first instance at 9:00 p.m. By then all of the signs 

regarding the work area, speed limit, and lane merger were installed and in place. (Tr. 341-42). 
- 45 -

zone) facing westbound with his lights activated waiting to perform another “slow roll.”

77 (Tr. 

298, 307, 358). Parked next to Barton was Officer Roeder in his marked white Ford Explorer 

West Pottsgrove police car. (Tr. 307-08, 315). They waited for word to depart this waiting 

spot on the South Keim onramp and for the Ford pattern truck with its TMA to come and meet 

them there and perform the second “evolution” with Respondent’s paint truck. (Tr. 307-08, 

351-53). During this time, between 10:00 p.m. and 11:00 p.m., Barton agreed that he “had no 

knowledge of the movement or direction observation of the movement of any of those cones” 

on the worksite. (Tr. 358). The Ford pattern truck never came to meet them, and the second 

evolution never occurred. (Tr. 308, 351). 

At approximately 11:00 p.m., while waiting for Respondent’s Ford pattern truck to 

arrive at his location, Barton received a radio dispatch from Montgomery County Police Radio 

that there were reports coming in of a worker struck on the highway west of Route 100. (Tr. 

308). Barton estimates that it took him less than two minutes to report to the scene of the 

incident. (Tr. 308). As he approached the scene, Barton observed that the arrow board was 

illuminated, there were cones of the taper directing vehicles into the right lane, and common 

citizens’ vehicles were at a standstill in the right lane at the approach of the pattern. (Tr. 308).

Barton did not observe the pattern truck on his way to the scene. (Tr. 309). Barton recalls 

passing two red J. D. Eckman pickup trucks in the dead lane of Route 422 westbound and a 

blue Jeep Liberty with damage to the front of the vehicle sitting in the right lane. (Tr. 309-10).

He said NCTPD Police Officer Igor Parfeniouk was seconds behind him.78 Just beyond the 

Jeep Liberty, Barton saw the body of a construction worker in the roadway. (Tr. 310, 316).

 

77 There, Barton was about eight-tenths of a mile east and away from the traffic control pattern. (Tr. 305). He 

does not know where the Ford pattern truck with a TMA was located when he relocated from the traffic control 

zone to the South Keim Street ramp. (Tr. 307). 

78 Officer Parfeniouk’s police car was equipped with an onboard camera system. (Tr. 309; Ex. 13).
- 46 -

Upon reaching the other officers who were in the process of beginning cardiopulmonary 

resuscitation (CPR), Barton identified the decedent. (Tr. 310). 

Barton said that the taper up to the arrow board appeared to be as he recalled it after the 

pattern was initially set. After passing the arrow board, he noticed a large gap of missing 

cones between the arrow board and the crash site that he later determined after interviews to 

have come about because one of Respondent’s workers was throwing them to make room for 

approaching first responders. He said that when he had left the traffic control pattern at 22:00 

p.m., “it appeared to be uniform and in place. Cones were evenly spaced as I left ....” “[T]he 

cones that I passed were uniform and along the skip.”79 (Tr. 310-14, 351-53, 358). 

Barton said that the video from Parfeniouk’s dash-camera at Exhibit 13, from 40 to 43 

seconds, shows the cones beginning the taper leading up to the arrow board and then out to the 

skip that had been set up by Respondent’s crew at 9:00 p.m. When viewing the Parfeniouk 

video at trial, he estimated that the length of the taper from an unidentified point before the 

arrow board out to the skip to be “100 feet, 150 [feet].” (Tr. 312-13; Ex. 13). 

Barton interviewed Garber, age 39, between 1:02 a.m. and 1:30 a.m., December 4, 

2014. Garber began working at J. D. Eckman in August 2014. He started working at the 

worksite on December 2, 2014. Garber told Barton he was east of the paint truck “beyond the 

location of [the decedent] moving cones back out to the skip line” to “allow for the painting of 

the skip chain line.”80 He told Barton when he saw a vehicle approaching the decedent, he 

 

79 Barton testified that when he first saw the cones, the cones were set up correctly “in a pattern forming a closure 

of the left lane and travel lane being the right lane.” He did not have any safety concerns about the cones. He said 

at 9:15 p.m., December 3, 2014, the cones were spaced “and appeared to be along the skip line from the taper out 

west to the Stowe exit.” (Tr. 358). He said that, after the incident, the cones from the taper to the incident were 

not in the same condition as he saw them at 9:15 p.m. Cones had been moved, possibly several times. (Tr. 359-

60).

80 Garber’s personally hand written signed statement from the interview states: “[w]ent to help reset cones to start 

painting, was setting cone from 3’ off skip mark to 1 1⁄2’ to 2’ off skip mark on median side lane, looked to next 

cone + saw [decedent] setting it, saw headlights on both sides of [decedent], yelled to watch out + saw him go up 
- 47 -

yelled to him to “watch out” but was not sure the decedent heard him. He then said he saw the 

decedent struck on his right side by the blue Jeep. The decedent was setting the cone with his 

right hand when he got hit by the vehicle. He told Barton that he thought that the cone the 

decedent was actually setting on the skip line at the time of the incident struck him [Garber] in 

the leg after the cone was hit by the vehicle and released by the decedent.

81 (Tr. 322, 354; Exs. 

18 at 21-22, E at 3 at “C”, E at 5 at “A”, F at 1, 5). Barton’s understanding was that the 

decedent was returning the cones to the general area to reset the pattern, and not putting them 

on skip marks. (Tr. 363; Ex. F at 1, 5). 

Barton interviewed Gardner, age 44, between 1:40 a.m. and 2:00 a.m., December 4, 

2014. Gardner told Barton that he arrived at the incident site at about 11:55 p.m. and saw the 

decedent moving cones back towards the skip line. (Tr. 324; Exs. 18 at 21-22, F at 2, 6). He 

told Barton that he saw a blue vehicle, driving within the left lane of the traffic control pattern, 

move back into the right lane and hit the decedent.

82

 (Tr. 324; Ex. 18 at 21-22). 

The record further shows that Barton also interviewed Jonathan Tracey, age 18, 

between 2:00 a.m. and 2:30 a.m., December 4, 2014. Tracey told Barton that he left the South 

Keim Street onramp and moved to the traffic pattern zone. He then moved to the beginning of 

the traffic pattern near the arrowboard to set the chain to be pulled “and moved interfering 

cones. I moved 2, 1 cone out toward right 1 cone in toward left. A J. D. Eckman worker in a 

pickup truck ahead of me move[d] 2 cones, in left toward his truck and ran up the road.” He 

 

on hood + fold, car carried him on hood until he stopped, [decedent] slid off hood + down roadway....” (Tr. 363; 

Ex. F at 1, 5). A photograph showing two short white lines in the middle of the road, spray painted by hand over 

the chain, to be used as a reference by the painters when later painting the paint line is at Exhibits E at 3 at “C”, E 

at 5 at “A”. 

81 Garber sustained a significant scrape and bleed across his shin. (Tr. 322).

82 Gardner’s written statement from the interview states: “I looked up and saw [decedent] moving cones over with 

his back to traffic a dark blue SUV was coming out of our pattern while trying to exit he struck [decedent] from 

behind knocking him to the ground.” (Ex. F at 2). 
- 48 -

then saw Moser continuing to place “the cones back on center skips. Then got on the truck and 

pulled into deadlane/workarea.” Tracy’s written statement states that when he was in the rear 

of the paint truck located in the dead lane/work area, he “noticed [the decedent] from Eckman 

placing cones to the left of the chain pull for us to paint during next traffic slowdown. I turned 

around to sit down and heard the accident and seen [the decedent] laying on ground.” (Ex. F at 

4). 

The record also shows that Barton interviewed Bridget Moser, age 29, between 2:45 

a.m. and 3:15 a.m., December 4, 2014. Moser told Barton that the decedent instructed her to 

back the paint truck to the beginning of the pattern to do another “slowdown.” Her written 

statement states: “As I was backing up I look in my left meror (sic) and saw the [decedent]

moving a cone closer to the skip as he did that a car hit him.” (Ex. F at 3). 

Based upon the interviews he conducted after the incident, Barton’s understanding was 

that the pattern truck with the TMA was to complete its “loop around” the Stowe exit and 

follow behind the paint truck as it traveled through the right, live traffic lane to complete its 

painting operation, while he [Barton] performed his second evolution, “slow roll.” (Tr. 353). 

Barton testified that he determined from the interviews that, at the time of the incident, the 

decedent was taking cones from the southern left-hand lane center median “and placing them 

back in a northerly direction back to the skip line.” No one told him that the decedent was 

moving cones in a southerly direction when he was struck by the vehicle. (Tr. 361-62).

Barton testified that Newstell Marable drove the vehicle that struck the decedent. He 

said that Mr. Marable was cited under Pennsylvania Title 75 - Vehicle Code, Section 3326, for 

duties within a construction zone and also Title 75, Section 17-46F, for not having insurance. 

(Tr. 360-61; Ex. 5 at 0211). 
- 49 -

Safety Director Robert Wittlinger

Wittlinger is Respondent’s Safety Director. (Tr. 412). Wittlinger received a phone call 

from the worksite while CPR was being performed on the decedent. (Tr. 412). He arrived at 

the worksite sometime between 11:00 p.m. and midnight on the night of the incident and took 

photographs of the scene as part of Respondent’s investigation. (Tr. 412-17, 420; Ex. E). He 

said that the photograph at Exhibit E at 4 shows the approximate area where the decedent was 

struck, including a tent covering the decedent and the final resting point of the Jeep. He also 

testified that the photograph shows that cones were placed on a curving line every other skip; 

80 feet apart. (Tr. 413-16; Ex. E at 4 at “C” and “E”, respectively).

He testified that Respondent does not “have a policy requiring a truck-mounted 

attenuator while traffic protection is used to set up long term traffic protection.” (Tr. 416).

With regard to the length of the taper, he testified that he believed “it was short 

compared to the traffic control plan” and he did not know why. He stated that “if you use the 

Publication 213 document for a long term pattern,” the taper for a long-term pattern should 

have been 320 feet.

83

 (Tr. 420-21; Ex. 10 at 000488). Wittlinger did not know which cone 

allegedly struck one of the other employees, and he did not see which cone the decedent was 

allegedly moving when he was struck. (Tr. 422). 

With regard to the spacing of the cones on the straightaway, Wittlinger had no opinion 

as to what the exact spacing should have been on the taper, although he said the cones are 

“typically closer together” in a taper than they are in a straightaway.84 (Tr. 424-26). He 

 

83 Respondent argues that the MUTCD does not apply to its line-painting activities performed in preparation for 

the setup of a temporary traffic control zone. (Resp’t. Br. at 22-23).

84 Later, when being cross examined by the Secretary’s counsel, Wittlinger testified that Pennsylvania Typical 

Application (PATA) 503 required the use of a minimum of 15 cones in the taper at the worksite. He counted at 

least 11 cones in the taper shown in the top photograph at Exhibit 3 at 1. He could not say whether or not there 

were up to four more present in the taper from this photograph. (Tr. 434; Ex. 10 at 000488-89). In any event, the 

Secretary has not made the spacing between the diagonal cones of the taper an issue in this case. Only the length 
- 50 -

testified that the spacing of the cones on the straightaway on this worksite should be 80 feet 

based on PATA 503 [Work Space in the Left or Right Lane] in PA Pub. 213.

85

 (Tr. 424-29; 

Ex. 10 at 000488-89). He then testified that the decedent, as the lead superintendent on this 

worksite, would have determined the spacing of the cones of the taper; however, Wittlinger did 

not know whether the decedent actually calculated that specific distance on the date of the 

incident. (Tr. 426-27). Wittlinger testified that the decedent would have had a copy of the 

PATA 503 with him. (Tr. 427). 

When looking at Section C, PATA 503, PA Pub. 213 (Ex. 10 at 000302),

86 regarding 

the spacing of the cones on the straightaway, Wittlinger testified that, rather than a 40-foot 

spacing, 80 feet is okay because on the night of the incident, short term cones were being used 

and the “long term pattern had not been built yet.” (Tr. 429-30; Ex. 10). He stated that page 

000489 of PA Pub. 213 (Ex. 10) should be “blended” with the TCP drawings that are based on 

the PennDOT drawings for the project. (Tr. 430-31; Ex. 2). He also agreed that 120 feet 

would be inappropriate for cone spacing in this situation, and that 80 feet would be maximum 

spacing for cone placement that would have been acceptable in this situation.87 (Tr. 431). 

 

of the taper is at issue. (Tr. 441). The Court notes that the “Note” below the Distance and Spacing Quick 

Reference Chart states that “Channelizing devices used in taper shall be equally spaced at 1⁄2 D Max.”, where D 

for the 40 MPH speed is shown as 80 feet and one-half of D is 40 feet.

85 Wittlinger testified that the distance between the two cones shown on the straightaway at “G” and “H”, Ex. E at 

4, in the vicinity where the decedent was struck was 60 feet. (Tr. 423-24; Ex. E at 4).

86 General Notes – Section C, Traffic Control Devices – Channelizing Devices (Page 1 of 1) states (in part):

C-1. Cones shall only be used during short-term operations. ...

C-3. Channelizing devices [including cones] may be substituted for temporary longitudinal edge line 

pavement markings shown on any PATA 200 or 500 series [Long-Term Stationary Operations] drawing. 

If channelizing devices are used in place of longitudinal edge lines, they shall be spaced at a distance (in 

feet) equal to the regulatory speed limit; for example a 45 MPH speed limit requires 45’ spacing. ...

C-5. Tapers within a lane shall utilize a minimum of 6 channelizing devices, however, more may be 

required based upon the regulatory speed limit and lane width. ... 

(Ex. 10 at 000302). 

87 Wittlinger was also questioned regarding the spacing of the cones within the transition taper. (Tr. 419; 432-

436). The Court notes that this questioning began by attempting to use the spacing of the cones as a measuring 

device to determine the length of the transition taper; however, the testimony attempted to decipher the exact 
- 51 -

Respondent’s Contract with the Commonwealth of Pennsylvania

Relevant portions of Respondent’s 209-page contract include: In consideration of 

$36,237,872.39 between the Commonwealth of Pennsylvania and Respondent: 

The description and location of the project is as follows: Reconstruction of existing 

asphalt overlaid reinforced concrete pavement (two lanes in each direction) for 

approximately 1,000 ft. along SR 0422, Section M2A - Pottstown Bypass 

Expressway and asphalt pavement for roadway tie-ins on both approaches; 

reconstruction of existing 6-span steel girders/floor beams/stringers (fracture 

critical) Schuylkill River Bridge (S-31311) using 6-span pre-stressed concrete PA 

Bulb-Tee beams; construction of approximately 292 ft. long pre-fabricated 

retaining wall (S-33660); restoration of approximately 0.11 acres of wetlands; 

relocation of stream; installation of multi-duct conduit and junction boxes for future 

fiber optic lines/ITS equipment; stormwater management facilities/ pipes; concrete 

median barrier; concrete glare screen; guiderail removal and installation; signing; 

pavement markings; and other miscellaneous construction, all as indicated on the 

drawings approved by the SECRETARY OF TRANSPORTATION for STATE 

ROUTE 0422, SECTION M2A in MONTGOMERY AND CHESTER 

COUNTIES, WEST POTTSGROVE AND NORTH COVENTRY TOWNSHIPS

from approximately 3,800 ft. west of the Schuylkill River Bridge between Stowe 

and PA 100 Interchanges at segment 0020/0021 offset 0408/0408 to approximately 

3,000 ft. east of the Schuylkill River Bridge at segment 0010/0011 offset 

3072/3072.

(Ex. 4 at 5). 

The Secretary also introduced over 60 pages of PennDOT TCPs into evidence. (Tr. 

112, 430; Exs. 2, 14). The main plan at issue at trial was of the worksite that OSHA inspected. 

(Exs. 2 at 34, 14 (zoom-up of Ex. 2 at 34)). Superintendent Schaeffer agreed that the TCP, 

under the heading “Traffic Control Plan: General Notes and Legend,” incorporates PA Pub.

213. (Tr. 193; Ex. 2 at 000124). This section of the TCP also states in pertinent part:

General Notes

A. This work consists of the maintenance of traffic and the protection of the traveling 

public approaching the construction area and within the limits of construction.

 

spacing of the cones in the transition taper. The Court notes that the exact spacing of the cones in the transition 

taper is not at issue for the citation items in this case. 
- 52 -

B. Furnish, erect, place, and maintain traffic control signs and devices and maintain 

traffic during hours of construction and at all other times in accordance with the 

methods indicated on these drawings and, 

1. The special provisions of the contract,

2. PA Code, Title 67, Chapter 212, official Traffic Control Devices

3. PDT Publication 213, Temporary Traffic Control Guidelines,

4. PDT Publication 35, Approved Construction Materials & Bulletin 151

5. PDT Publication 408, Specifications

6. PDT Publication 111M, Traffic Control – Pavement Markings and Signing 

Standards

7. Manual on Uniform Traffic Control Devices (MUTCD)

(Ex. 2 at 000124) (emphasis added).

DISCUSSION 

As explained below, the Court vacates the citation items based on Respondent’s 

arguments and the Secretary’s failure to meet his burden of proof to show that: 1) the cones 

along the straightaway were placed at 120-foot intervals, 2) a TMA was being used to protect 

employees placing cones near moving vehicles, and 3) the transition taper was only 120-feet in 

length at the time of the incident as alleged in the citation items.88 The Court concludes that 

Respondent’s arguments regarding the lack of evidence supporting the nature of a hazard in 

this case, and arguments regarding the discretionary nature of the incorporated MUTCD 

provisions, are dispositive to the definition of the hazard in the alleged general duty clause

violation in Citation 1, Item 1, and to the applicability of the cited standards in Citation 1, 

Items 2 and 3.89

 

88 Conversely, the Secretary has failed to show that at the time of the incident Respondent had not: a) placed 

cones at 40-foot intervals along the straightaway and b) established a transition taper that was less than about 300 

feet in length. 

89 Respondent devotes much of its Post-Hearing Brief to the underlying premise that the OSHA citation at issue in 

this case depends on how Respondent’s worksite is characterized. For instance, Respondent claims that the 

citation items cannot be affirmed here because Respondent’s worksite was “temporary” in nature, and not 

“permanent;” that its work on the day of the incident was “preparatory,” and not “actual work.” (Resp’t Br. at 14-

15, 23-24). The Secretary argues that the Court should reject this premise, stating simply that Respondent “was 

not setting up a temporary traffic control zone” because “all four elements of a temporary traffic control zone as 
- 53 -

I. Alleged Violations

a. Serious Citation 1, Item 1 – Alleged Cone Interval Violation Along the 

Straightaway

To prove a violation of the general duty clause, the Secretary must establish that: (1) a 

condition or activity in the workplace presented a hazard; (2) the employer or its industry 

recognized the hazard; (3) the hazard was causing or likely to cause death or serious physical 

harm; and (4) a feasible and effective means existed to eliminate or materially reduce the 

hazard. Arcadian Corp., 20 BNA OSHC 2001, 2007 (No. 93-0628, 2004). The Secretary must 

also establish that the employer knew, or with the exercise of reasonable diligence, could have 

known, of the hazardous condition. Burford’s Tree, Inc., 22 BNA OSHC 1948, 1949 (No. 

071899, 2010), aff’d, 413 F. App’x 222 (11th Cir. 2011) (unpublished)).

“A safety hazard at the worksite is a condition that creates or contributes to an 

increased risk that an event causing death or serious bodily harm to employees will occur.” 

Baroid Div. of NL Indus., Inc. v. OSHRC, 10 BNA OSHC 1001, 1003 (No. 79-1775, 1981). 

“A hazard must be defined in a way that apprises the employer of its obligations, and identifies 

conditions or practices over which the employer can reasonably be expected to exercise 

control.” Arcadian Corp., 20 BNA OSHC at 2007. (Resp’t. Br. at 12). The hazard “is not 

defined in terms of the absence of appropriate abatement measures.” Wheeling-Pittsburgh 

 

described in the MUTCD” were already in place on the night of the incident, and such traffic control zone 

“violated several safety requirements.” (Sec’y Br. at 16). 

The Court is not persuaded by Respondent’s argument regarding the “temporary” nature of its worksite. 

The worksite on December 3, 2014, may not have been as “permanent” as a worksite with concrete Jersey barriers 

and a long-term traffic flow pattern, but this does not negate Respondent’s obligations under the OSH Act to 

provide a safe working environment. Respondent still owed its workers protection from hazards on its worksite 

consistent with the general duty clause and applicable OSHA standards, regardless of the worksite’s “temporary” 

nature. The Court, however, as discussed herein, vacates these citation items because the Secretary has not shown 

that the alleged hazard is covered by the OSH Act, as defined by Commission precedent, and because the 

Secretary has not shown that the cited standards are applicable to, or not met by, Respondent.
- 54 -

Steel Corp., 10 BNA OSHC 1242, 1245 (No. 76-4807, 1981) (consolidated), aff’d, 688 F.2d 

828 (3d Cir. 1982) (unpublished). 

The Secretary alleges that Respondent violated the general duty clause of the OSH Act 

because “the employer did not furnish employment and a place of employment which were 

free from recognized hazards that were causing or likely to cause death or serious physical 

harm to employees in that the employer failed to protect employees from vehicle strikes by not 

establishing a safe temporary work zone.” (Citation at 6). The Secretary claims that “on or 

about 12/3/2014, the employer created a dangerous work zone by placing traffic control 

devices at 120-foot intervals instead of the required 40-foot intervals. The employees were not 

protected from vehicle strikes.” (Citation at 6) (emphasis added). The Secretary proposes that 

“a feasible and acceptable means of abatement would be to comply with Pennsylvania PDT 

Publication 213 for proper placement of traffic control devices.” (Citation at 6). 

Traffic Cone Spacing 

In the hazard definition section of his Brief, the Secretary devotes most of his argument 

to establishing the precise spacing of the cones in the straightaway based on the evidence in the 

record. (Sec’y Br. at 7-8). The Secretary, however, does not address specifically, in his PostHearing Brief, how the spacing of the cones, once established, is a hazard or contributes to an 

increased risk of a hazardous event. Baroid Div. of NL Indus., Inc, 10 BNA OSHC at 1003. In 

his Post-Hearing Brief, the Secretary states that the traffic cone spacing was “far enough apart 

for a vehicle to weave in and out of the work zone without hitting a cone.” (Sec’y Br. at 7). 

However, Counsel’s closing argument at the trial included the following: 

And so we have a violation here that the Secretary would argue is directly 

related to [the decedent’s] death, in that the cones were spaced far apart 

enough that drivers passing through the traffic pattern could actually be 
- 55 -

confused about whether the left lane was open or whether the left lane was 

closed.

(Tr. 441).

It is the Secretary’s burden to “apprise” Respondent of a specific forty-foot cone 

spacing requirement if the Secretary chooses to pursue a general duty clause violation citation 

for this issue.90 Arcadian Corp., 20 BNA OSHC at 2007. Here the Court finds first that the 

Secretary has not established the precise cone spacing on the straightaway at the time of the 

incident. The Court further finds that the Secretary has not established that the spacing 

constitutes a hazard under the general duty clause, as defined by Commission precedent.

The Court notes that there are challenges regarding the evidence in the record with 

respect to whether the Secretary can establish precisely what the spacing of the traffic cones 

was along the straightaway at the worksite before the incident. For instance, despite devoting 

significant time at trial to this fact inquiry by reviewing police vehicle dash-cam videos, the 

Secretary concedes in his Post-Hearing Brief that the dash-cam videos (Exs. 13, A) in the 

record are not reliable because the videos captured what the traffic cone spacing was postincident, and it is undisputed that many of the cones were moved post-incident to allow 

emergency responders through to the decedent.91 (Sec’y Br. at 7). 

Instead, to attempt to establish the exact spacing of the cones, the Secretary relies solely 

upon one part of foreman Ruof’s testimony that each cone in the straightaway was placed 

“every third skip” and ignores other contradictory Ruof testimony where he said the cones 

 

90 The Secretary has put forth no evidence attempting to show that the traffic cones in this case, weighing twelve 

to twenty pounds and standing thirty inches in height, could physically prevent a vehicle like a Jeep Liberty from 

veering into the work zone. (Tr. 128-29). 

91 Messrs. Ruof, Schaeffer, and Barton testified that the cones were in a configuration after the incident that 

differed from their configuration before the incident. (Tr. 89-102, 118-19, 216-23, 310-14, 351-58). 
- 56 -

were forty feet apart.92 Superintendent Schaeffer was present during Ruof’s testimony, and 

later in the trial seemed to suggest that Ruof was mistaken in the “every third skip” description 

of the cones.93 (Tr. 223). Schaeffer also testified that he saw nothing wrong with the 

placement of the cones when he left the worksite an hour before the incident occurred. (Tr. 

176). Schaeffer testified that 45 to 60 minutes before the incident some of the cones were 

“probably tighter than 40 feet apart. Some of them may be a foot or two off. But they were 

very tight. Those cones were very tight at that time.” (Tr. 201). Detective Barton testified that 

when he departed the traffic control pattern at 10:00 p.m. the cones were uniform and evenly 

spaced along the skip. Barton had no safety concerns about the cones. The Court therefore 

finds that the Secretary has not established the precise spacing of the cones on the straightaway 

and has not established that they were spaced 120 feet apart as specifically alleged in the 

citation.94

 

92 Much testimony in the record attempted to calculate the spacing of the cones if they were placed “every third 

skip,” meaning every third dash line. Synthesized, the testimony would indicate that cones placed “every third 

skip” would be 120 feet apart (i.e., if each dashed line were 10 feet long, and each space between each dash line 

were 30 feet long, then a cone placed on the third dash line would be 120 feet away from the neighboring cone), 

according to the Secretary. (Tr. 256-57). Wittlinger testified that PA Pub. 213 indicated that the cones in the 

straightaway should be 80 feet apart and not 40 feet as alleged by the Secretary. He further testified that the 

photographs show that the cones in the straightaway were 80 feet apart. (Tr. 413-30; Exs. 10 at 000302, 000488-

89, E).

93 The Court notes that Ruof was recently pulled off his other project to work on this project and expressed 

unfamiliarity with the specifics of this project in his testimony at times. See, e.g, Tr. 109. Even the Secretary 

concedes that Ruof’s testimony regarding the distance of these cones was at times unreasonable. (Sec’y Br. at 16-

17 citing Tr. 138). Ruof testified that the cones were 40 feet apart “thereabout” in the straightaway and that he did 

not agree with OSHA’s allegation that the transition taper was only about 120 feet in length. He also said “I’m 

not sure what they are. [The cones in the straightaway were] “[p]robably 20 feet apart or something like that.” 

(Tr. 131-38).

94 Presumably, the Secretary seeks to establish that the cones were at least 120 feet apart because Safety Director 

Wittlinger testified that he agreed that if the cones were spaced at 120 feet apart, it would be inappropriate. (Tr. 

431). The Court notes that the Secretary points out that Wittlinger testified that he thought the cones were 80 feet 

apart. (Sec’y Br. at 10 n.2 citing Tr. 423). For that testimony, however, Wittlinger was referring to post-accident 

evidence including the video in Ex. 13 and pictures that he took after the incident occurred. (Tr. 416-24 citing Ex. 

E).
- 57 -

The Secretary has also failed to show that the cones along the straightaway were not set 

at 40-foot intervals at the time of the incident. The videos at Exhibits 13 and A, and the 

photographs at Exhibit 3 taken from the video at Exhibit 13, were taken after the incident; after 

cones had been moved about at the worksite. Detective Barton and Superintendent Schaeffer 

testified that the cones on the straightaway were safe and in good order before the incident. 

Both Messrs. Ruof and Schaeffer testified that the cones along the straightaway were placed at 

40-foot intervals before the incident. The Secretary has not presented sufficient evidence to 

overcome their testimony and show that the cones were placed at a distance beyond 40-foot 

intervals.

Notwithstanding the above, the Court now analyzes Respondent’s argument regarding 

the existence of a hazard for this citation item with an assumption that the cones were placed 

more than 40 feet apart.

Alleged Traffic Cone Spacing Hazard

Even with this assumption, however, Respondent persuasively argues that the Secretary 

has failed to establish that placing cones at “anything other than 40-foot intervals” presented a 

hazard in the first place. The Secretary has provided no evidence except: (1) the PA Pub. 213, 

and (2) the incident itself, to establish that any spacing other than 40-foot intervals presented a 

hazard on this worksite.95 The Court finds that both pieces of evidence, the PA Pub. 213 and 

the incident itself, present hurdles that the Secretary did not overcome to establish a general 

duty clause hazard, as defined by Commission precedent, in this case.

The Commission has “hesitated” and “had reservations” about holding that a breach of 

levels published by a third-party organization would constitute a hazard in part because such

 

95 The Secretary did not offer any testimony that there has been an instance of an injury to a worker caused by an 

employer’s failure to place cones at 40-foot intervals. 
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levels do “not have the force and effect of law; failure to comply with it is not, in and of itself, 

illegal.” Indus. Glass, 15 BNA OSHC 1594, 1603 n.10 (No. 88-0348, 1992) (regarding heat 

stress levels in publications by the American Conference of Governmental Industrial 

Hygienists, National Institute for Occupational Safety and Health (NIOSH) and American 

Industrial Hygiene Association). The issue of the existence of a hazard is separate from the 

issue of recognition, for which, conversely, the Commission does look to third party 

publications. Id. at 1603 n.11 (stating that precedent allows relying on NIOSH document for 

industry recognition of heat stress). 

It is undisputed that Respondent had multiple traffic control devices in place on the 

worksite up until the incident. As the Secretary concedes, all four elements of a traffic control 

worksite were in place: signs were placed two miles ahead of the worksite to indicate the 

advance warning area; the taper was the transition area; the work zone (separated by spaced 

cones) was the activity area96; and the taper back to the left lane was the termination area. 

(Sec’y Br. at 15-16). Respondent had a blinking arrow at the transition area, alerting drivers to 

stay in the right-hand lane for construction. Additionally, the decedent was wearing reflective 

clothing and PPE at the time he was hit.97 For this citation item, the Secretary does not address 

any of these traffic control devices that Respondent had put in place on its worksite.

Instead, the Secretary claims that the spacing of the cones in the work area “created” a 

traffic hazard, pointing to the fact that they were not 40 feet apart (as “required” in PA Pub. 

213), and that the driver of the Jeep Liberty veered into the work area.

 

96 PA Pub. 213 defines “Activity Area” as the “Area of a temporary traffic control zone comprised of the buffer 

space and the work space usually separated from traffic flow by channelizing devices or barrier located parallel to 

the travel lanes.” (Ex. 10 at 000309).

97 The decedent was wearing a fluorescent green jacket, in good condition, with silver reflective striping on 

chest, back and sleeves; a hardhat with a light was found nearby. (Ex. 18 at 17). 
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Regarding PA Pub. 213, the Court finds that it is a publication by a third-party 

organization. Indus. Glass, 15 BNA OSHC at 1603 n.10. This publication is not affiliated 

with OSHA. While the Secretary claims that a “40-foot interval” was “required,” the Secretary 

has proffered no support in terms of OSHA regulations or Commission precedent for this

claim.98 Indeed, Commission precedent serves to undermine the Secretary’s attempt at 

defining the hazard in this manner. The hazard cannot be defined in terms of the absence of 

appropriate abatement measures, in this case, a 40-foot cone spacing interval. WheelingPittsburgh Steel Corp., 10 BNA OSHC at 1245. 

Additionally, the Court notes that PA Pub. 213 is over 300 pages long. (Ex. 10). Upon 

identification, the following exchange occurred between Counsel for the Secretary and 

Foreman Ruof:

Q I’m handing you a document marked Government exhibit 10. You can 

move binder if you need to look at it, but is this what you were just referring 

to as PA-213

A Yeah. Yes, ma'am.

[irrelevant material omitted]

Q Can you take a look at that and direct me to the portion that would be 

relevant to the way the worksite was set up on December 3rd 2014?

A Let’s see.

Q There are page number --

A Yes.

Q -- on the bottom. They’re sort of small.

A Yeah. I can’t even -- typical -- I mean I use like 18 and 21. I use those a 

lot. So -- but --

Q What do you mean 18, 21?

A Well, the -- there’s -- you know, a lot of these refer to just, you know, 

certain projects you’re on. And I -- you know, the ones I do you use the 

same stuff. That’s --

Q Same stuff.

 

98 At trial, counsel for the Secretary seemed to suggest that the “required” provision of PA Pub. 213 was based on 

the clauses within Respondent’s contract with the Commonwealth of Pennsylvania requiring Respondent to 

follow PA Pub. 213 and the MUTCD. (Tr. 115). For this case, the Court treats Respondent’s contract as another 

publication by a third-party organization, with regard to defining a hazard in a general duty clauses analysis. A 

contract may possibly serve to support recognition of a hazard by an employer, but for the same reasons in Indus. 

Glass, 15 BNA OSHC at 1603, it cannot be used to establish a hazard here. 
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A -- basically your signage and distance and that’s all it’ll give you.

Q Okay.

A But the scenarios change. But bear with me. Good lord.

JUDGE PHILLIPS: Are you asking him to look --

THE WITNESS: Yeah. I mean --

JUDGE PHILLIPS: -- at each page of this exhibit or do you want to focus 

his attention on something you think is relevant?

MS. LUBY: Yeah. One second.

BY MS. LUBY:

Q May have to get back to that, but --

A Thank you.

Q -- I’ll move on.

MS. LUBY: I have no further questions at this time.

JUDGE PHILLIPS: Thank you, ma’am.

(Tr. 116-17). 

This exchange suggests that Foreman Ruof seemed a bit overwhelmed by the volume of 

this document.99 The Court therefore relies on the testimony in the record regarding this 

document for guidance. This testimony is slim, and, not dispositive. Aside from Schaeffer’s 

general testimony that PA Pub. 213 served only as a guide, the only other witnesses that 

testified to specific pages in this document were Foreman Ruof and Safety Director Wittlinger. 

(Tr. 134-41, 193-94, 425-30). Ruof testified to the “General Notes -Section C: Traffic Control 

Devices – Channelizing Devices.” (Tr. 134-41; Ex. 10 at 000302). Wittlinger testified to 

“PATA 503” on pages 000488 - 89. (Tr. 425, 427, 430). Ruof testified that the cone spacing 

on the straightaway according to the provision at ¶ C-3 should be 40 feet on the basis that the 

speed limit at the worksite was 40 MPH. (Tr. 134-41; Ex. 10 at 000302). Using the “Distance 

and Spacing Quick Reference Chart,” Wittlinger testified that the cone spacing on the 

straightaway according to PATA 503 [Work Space in The Left or Right Lane] should be 80 

 

99 This is borne out by the following testimony by Ruof:

Q Okay. So this 40 foot requirement are you saying that only applies to the diagonal cones and not the ones that 

are on the skips?

A That I don’t know, ma’am.

(Tr. 137). 
- 61 -

feet. CO Santiago, on the other hand, testified that he did not recall inquiring into PA Pub. 213 

when interviewing Wittlinger during his investigation. (Tr. 261). This evidence is not 

determinative as to what PA Pub. 213 “required” the cone spacing interval to be on the 

straightaway at Respondent’s worksite on December 3, 2014. 

The Court also notes that the “Application” section of PA Pub. 213 states the following: 

The protections prescribed for each situation shall be consistent with the general 

provisions found in the most recent editions of Title 67 PA Code, Chapter 212, 

Official Traffic Control Devices and the Manual Uniform traffic Control Devices 

as issued by the Federal Highway Administration and should be based on common 

sense; engineering judgment; the speed and volume of traffic; the duration of the 

operation; the exposure to potential hazards; the physical features of the highway 

including horizontal alignment, vertical alignment, and the presence of 

intersections and driveways; and other important factors.

(Ex. 10 at 0294) (emphasis added). The Secretary has not addressed the emphasized portion of 

this section of PA Pub. 213, but the Court finds that it is broadly worded and seems

discretionary. This broadly worded Application section is consistent with the testimony in the 

record by Respondent regarding “blending” documents to achieve its contractual work goals. 

Superintendent Schaeffer’s testimony regarding the generally accepted practice of “blending” 

of “actual stuff from that 213 into what PennDOT’s got going on.” (Tr. 181, 194-95). 

Wittlinger also testified that in order to “build” to the PennDOT drawings (in Respondent’s

contract), Respondent had to “blend the two standards,” clarifying that Respondent has to 

“blend” the PennDOT’s drawings with the specifications in PA Pub. 213. (Tr. 430-31). The 

Secretary does not address this testimony regarding “blending” these documents in his PostHearing Brief. 

Under these circumstances, the Court finds that PA. Pub. 213 is not supportive 

evidence for the Secretary’s burden of establishing a hazard in this case.
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Regarding the incident itself, the record in this case shows that the driver of the Jeep 

Liberty was charged with failing to comply with “duties within a construction zone.” (Tr. 360-

61). The Court therefore finds that the record supports a finding that the driver’s conduct at 

least contributed to the incident in this case. The Court also finds that this evidence 

undermines the Secretary’s attempt to use the incident as proof that the cone spacing along the 

straightaway “created” the hazard in this case. There is no evidence that establishes how much 

of the driver’s own conduct caused or contributed to the incident. The Secretary relies upon a 

statement reported by Sergeant Malason in the Police Incident Report made by the driver to 

Officer C. Matt Deichert to establish “haphazard” spacing of the traffic cones.100 (Ex. 18 at 15-

16; Jt. Pre-Hr’g St. at 5). Testimony concerning this statement attributed to Mr. Marable, the 

driver of the Jeep Liberty, was disregarded by the Court following Respondent’s objection

made prior to Ex. 18’s ultimate admission into evidence. (Tr. 334). Also, the Court finds this 

statement by the driver of the Jeep Liberty has questionable reliability as it is self-serving to 

the driver, who was eventually charged despite this statement in the Police Incident Report. 

The Secretary has not supplied in any way evidence to support any claim that the spacing of 

the cones on this worksite actually caused this driver to veer into the workzone. The Court 

therefore finds that the incident itself, where a driver was eventually charged with not 

complying with duties in a construction zone, is not evidence that establishes a hazard in this 

case, in the event traffic cones were set at more than 40-foot intervals. 

Finally, the Court notes that the Secretary is also not consistent in addressing the hazard 

in the remainder of his Post-Hearing Brief. Rather than referring to the allegedly improper 

 

100 Officer Deichert recorded Marable told him that “it seemed like someone didn’t put the cones down straight, 

and that caused him to really start paying attention.” Marable further told Officer Deichert “that the cones weren’t 

on the dotted line, as if they were haphazardly put down.” (Ex. 18 at 15). Marable said nothing about the cones 

being spaced too far apart. 
- 63 -

traffic cone spacing that “created” a hazard, the Secretary later in his brief suggests that the 

hazard in this case is, simply, traffic. See Sec’y Br. at 8 (“Eckman does not dispute that it 

recognized the hazard that traffic posed to its employees”), 9 (“[The decedent’s] death shows the 

seriousness of failing to protect workers from being hit by oncoming vehicles.”). In his 

recognition and likelihood of death/serious harm sections, the Secretary does not address, in 

any way, the spacing of Respondent’s traffic cones; instead the Secretary focuses on traffic 

alone being a hazard: that Respondent recognized traffic being a hazard and that traffic can 

cause death/serious harm. The Secretary has proffered no arguments, at trial or in his PostHearing Brief, supporting how Respondent recognized that traffic cone spacing at more than 

40-foot intervals was a hazard, and how this traffic cone interval increased the likelihood of 

death/serious harm in this case.

This citation item is vacated. 

b. Serious Citation 1, Item 2 – Alleged Truck Mounted Attenuator Violation

To prove a violation of an OSHA standard, the Secretary must establish that: (1) the 

cited standard applies, (2) there was a failure to comply with the cited standard, (3) employees 

had access to the violative condition, and (4) the employer knew or could have known of the 

condition with the exercise of reasonable diligence. Astra Pharma. Prods., 9 BNA OSHC 

2126, 2129 (No. 78-6247, 1981) aff’d in relevant part, 681 F.2d 691 (D.C. Cir. 1980).

The Secretary claims that Respondent violated 29 C.F.R. § 1926.202, a “Signs, Signals 

and Barricades”101 standard which incorporates by reference a portion of the Federal Highway 

Administration MUTCD.102 The citation alleges that Respondent failed to ensure a TMA was 

 

101 “Barricade” means “an obstruction to deter the passage of persons or vehicles.” 29 C.F.R. § 1926.203(a). 

102 Although the contract states that PA Pub. 213 applies to Respondent and PA Pub. 213 states it has precedence 

over information found in the MUTCD, the standard at 29 C.F.R. § 1926.202 incorporates MUTCD, and not PA 
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used to protect employees placing temporary traffic control devices near moving vehicles. 

(Citation at 7). 

The cited OSHA standard states: “Barricades for protection of employees shall 

conform to Part VI of the Manual on Uniform Traffic Control Devices (1988 Edition, Revision 

3, or the Millennium Edition), incorporated by reference in Sec. 1926.6.” 29 C.F.R. 

§ 1926.202. Section 1926.6(a) states: 

The standards of agencies of the U.S. Government, and organizations which are not 

agencies of the U.S. Government which are incorporated by reference in this part, 

have the same force and effect as other standards in this part. Only the mandatory 

provisions (i.e., provisions containing the word "shall" or other mandatory 

language) of standards incorporated by reference are adopted as standards under 

the Occupational Safety and Health Act. 

29 C.F.R. § 1926.6(a) (emphasis added); see also KS Energy Servs., Inc., 22 BNA OSH 1261, 

1264 n. 4 (No. 06-1416, 2008) (non-mandatory MUTCD provision not incorporated into 

OSHA standard 29 C.F.R. § 1926.200(g)(2)); Ruhlin Co., 21 BNA OSH 1779, 1785 (No. 04-

2049, 2006) (finding no fair notice in part by noting that “optional” language of the MUTCD is 

consistent with the Secretary’s enforcement policy in the Field Inspection Reference Manual 

that stated “Section 5(a)(1) shall not be used to enforce ‘should’ standards.”). Therefore, to 

 

Pub. 213. For the purpose of establishing a violation of the cited standard, the Court finds as a matter of law that 

the provisions of the MUTCD take precedence over PA Pub. 213. Federal regulations that call for the application 

of the MUTCD take precedence over any contract provision that states PA Pub. 213 takes precedence over the 

MUTCD. Cent. of Ga. R.R. Co. v. OSHRC, 576 F.2d 620, 625 (5th Cir. 1978) (“We stress that the Act, not the 

contract, is the source of [the employer’s] responsibilities.”) citing Frohlick Crane Serv., Inc. v. OSHRC, 521 F.2d 

628, 631 (10th Cir. 1975); see also Bianchi Trison Corp. v. Chao, 409 F.3d 196, 209 (3d Cir. 2005) (“The 

Commission previously had held that a company cannot evade its safety and health responsibilities to its workers 

simply by contracting away the responsibilities mandated under the OSH Act.”). Here, the MUTCD does not 

require an employer to use trucks as protective vehicles to protect workers or equipment from errant vehicles or 

TMAs capable of absorbing the impact of errant vehicles to reduce the severity of rear-end crashes. See 29 C.F.R. 

§ 1926.6(a) (only the mandatory provisions of the MUTCD are adopted as a standard under the OSH Act); (Tr. 

397-98; Ex. 11 at 21). This takes precedence over any PA Pub. 213 provision to the contrary. See U.S. ex rel. 

Roby v. The Boeing Co.,73 F.Supp. 2d 897, 910 (S.D. Ohio, 1999) (contract clause no defense to alleged statutory 

violation).
- 65 -

establish applicability, the Secretary must show that that the cited MUTCD provision is 

mandatory and not discretionary. 

The cited MUTCD provision is reproduced below with underline where emphasis is 

added. (Ex. 11 at 20-21).

6F-8. OTHER DEVICES

a. Impact Attenuators

Impact attenuators are systems that mitigate the effects of errant vehicles that 

strike hazards, either by smoothly decelerating the vehicle to a stop when hit 

head-on, or by redirecting the errant vehicle. Impact attenuators in temporary 

traffic control zones protect the motorists from the exposed ends of barriers, fixed 

objects, and other hazards. Two types of impact attenuators used in temporary 

traffic control zones are roadside attenuators and truck-mounted attenuators 

(TMA’s). Specific information on the use of impact attenuators can be found in 

the AASHTO Roadside Design Guide, Chapter 9. 

Attenuators must pass acceptable performance testing and be designed for each 

application to ensure performance that will safely stop or redirect errant vehicles. 

Periodic inspection of these devices is necessary to assure that attenuators 

function as intended throughout their useful life or that they undergo prompt 

repair/replacement if hit or damaged.

1. Roadside Attenuators 

...

2. Truck-Mounted Attenuators

Trucks or trailers are often used as protective vehicles to protect workers or work 

equipment from errant vehicles. These protective vehicles are normally equipped 

with flashing arrows, changeable message signs, and/or flashers, and must be 

located properly in advance of the workers and/or equipment they are protecting. 

However, these protective vehicles may themselves cause injuries to occupants of 

the errant vehicles if they are not equipped with truck-mounted attenuators 

(TMA’s).

TMA’s capable of absorbing the impact of errant vehicles can be attached to the 

rear of these protective vehicles to reduce, the severity of rear-end crashes. There 

are a variety of TMA designs available.

The protective truck must be positioned a sufficient distance in front of the 

workers or equipment being protected to allow for appropriate vehicle roll-ahead, 
- 66 -

but not so far that errant vehicles will travel around the vehicle and strike the 

workers/equipment. The attenuator should be in the full down-and-locked 

position. For stationary operations, the truck's parking brake should be set and, 

when possible, the front wheels turned away from the work site.

MUTCD, ‘Standards and Guides for Traffic Controls for Street and Highway Construction, 

Maintenance, Utility, and Incident Management Operations,’ 1988 edition, Revision 3, 

September 3, 1993, Section 6F-8(a)(2) (emphasis added); Ex. 11 at 20-21. 

The parties argue over the meaning of the following provision: 

The protective truck must be positioned a sufficient distance in front of the workers 

or equipment being protected to allow for appropriate vehicle roll-ahead, but not so 

far that errant vehicles will travel around the vehicle and strike the 

workers/equipment.

MUTCD, ‘Standards and Guides for Traffic Controls for Street and Highway Construction, 

Maintenance, Utility, and Incident Management Operations,’ 1988 edition, Revision 3, 

September 3, 1993, Section 6F-8(a)(2) (emphasis added); Ex. 11 at 21. In accordance with 

section 1926.6(a), for this MUTCD provision to apply in this case, the language must be 

mandatory; it cannot be discretionary. CO Santiago agreed that MUTCD Section 6F-8(a)(2) 

does not state that trucks or trailers must be used as protective vehicles to protect workers or 

equipment from errant vehicles. (Tr. 397-98; Ex. 11 at 21). He also agreed that the provision 

does not state that TMAs capable of absorbing the impact of errant vehicles must be used to 

reduce the severity of rear-end crashes. (Tr. 398; Ex. 11 at 21). 

When looking at this provision, the Court looks to the specific language of the 

provision, as well as how it fits into the language of the whole part of the section. KS Energy

Servs., Inc., 22 BNA OSHC at 1265 n.8 citing Phoenix Roofing, Inc., 17 BNA OSHC 1076, 

1077 (No. 90-2148, 1995) (“stating that when interpreting disputed terms, Commission looks 

to ‘the provisions of the whole law, and to its object and policy’”), aff'd,79 F.3d 1146 (5th Cir. 
- 67 -

1996) (unpublished); Morrison-Knudsen Co./Yonkers Contracting Co., 16 BNA OSHC 1105, 

1108 (No. 88-572, 1993) (“explaining Commission construes ‘each part or section... in 

connection with every other part or section so as to produce a harmonious whole’”). 

The Court does not find that this provision is mandatory in the sense that the Secretary 

has attempted to prove.103 In arguing that the provision is in fact mandatory, the Secretary 

relies on the word “must” appearing earliest in the phrase at Section 6F-8(a)(2), MUTCD. The 

Secretary argues that “the MUTCD did not require [Respondent] to use a protective truck with 

a TMA, but once [Respondent] decided to use one, the MUTCD required [Respondent] to use 

it correctly.”104 (Sec’y Br. at 12-13). It is undisputed that Respondent had at least one pattern 

truck with a TMA at the worksite on the day of the incident. What the record is unclear of, 

however, was whether Respondent “was using” any truck with a TMA as protection against 

errant vehicles on its worksite.105 The Secretary argues that a second truck with a TMA was 

 

103 PA Pub. 213 also does not mandate the use of TMAs when installing or removing traffic control setups. PA 

Pub. 213, Section F-2. Guidelines for installation and removal of traffic control setups, states: “A shadow vehicle 

may be placed between approaching traffic and the workers who are installing channelizing devices.” (Ex. 10 at 

000306). PA Pub. 213 defines a “Shadow vehicle” as:

A vehicle positioned within the activity in advance of the work space and work vehicles. The primary 

purpose of the shadow vehicle is to provide advance information to approaching drivers while protecting 

workers and work vehicles. Any vehicle can be used as a shadow vehicle as long as it is equipped with a 

flashing, oscillating, or revolving yellow light which is visible from any direction (360° visibility) and is 

not being used as a work vehicle. The yellow light must be activated within an active work zone. 

(emphasis added). 

(Ex. 10 at 000309).

Here, the Ford Truck with an attached TMA was being used as a “work vehicle” carrying cones.

104 The Secretary admits that the MUTCD does not require an employer to use trucks with TMAs as barricades to 

protect from errant vehicles. Instead, he asserts that where an employer chooses to employ such barricades, the 

MUTCD mandates trucks with TMAs be used correctly. (Sec’y Br. at 11-12). The Secretary’s assertion is 

incorrect for the reasons stated above.

105 As noted above, the presence of a second truck with a TMA at the worksite on December 3, 2014 was difficult 

to discern for even CO Santiago during his investigation. The Court has found that the Secretary has not shown 

that there was a second truck with a TMA at the worksite that evening. The Court has further found that the 

Secretary has failed to prove that any such second truck with a TMA had “no other function at the Worksite other 

than as a barricade” as alleged in his brief. (Sec’y Br. at 12). CO Santiago testified that the Ford pattern truck 

with a TMA, driven by Villasenor, was not functioning as a TMA because it was engaged in deploying cones and 

was “doing the loop around. So it was not used to protect the workers who are actively moving cones.” (Tr. 371). 
- 68 -

allegedly parked west of the workers in the work zone and should instead have been parked 

east of the workers, so that the TMA provided protection, as a barricade, from an errant 

vehicle. 

OSHA’s citation alleges that Respondent employed the alleged second truck with an 

attached TMA improperly when it positioned the alleged truck on the west side of the pattern 

instead of between the workers and oncoming traffic.106 (Sec’y Br. at 10). The Secretary’s 

reading of this provision would not allow for an employer to have a TMA at the worksite 

unless it was operating as a TMA the entire time. The Court does not read the cited MUTCD 

provision so broadly so as to convey a sense that all TMAs must be used at all times as TMAs 

when on a worksite. The Court is guided by the surrounding language which indicates that the 

MUTCD is concerned with the TMA itself being a hazard, either to the “errant vehicle” or to 

the workers due to a “roll-ahead” if the TMA were hit by an “errant vehicle.” When 

considering the entire provision as a whole, the Court finds that this section of the MUTCD 

suggests a concern about the worker’s safety from an impact of the TMA itself, not whether an 

employer must use the TMA as the Secretary claims. Here, the use of the phrase, “being 

protected,” introduces a contemporaneous time element to the interpretation of this phrase. 

The phrase “being protected” conveys that, if an employer is actively using a TMA on its 

worksite as a protective device for workers against errant vehicles, then the TMA must be 

positioned accordingly. 

Here, the record does not show that Respondent was actively using any TMA as 

protection for workers from errant vehicles at the worksite on the night of the incident. The 

 

There was no second truck with a TMA located in the pattern of the worksite at the time of the incident acting 

solely as a barricade, or otherwise. 

106 As discussed before, the Court has found no such truck with a TMA was present in the work zone pattern at the 

time of the incident. 
- 69 -

record indicates that the one TMA that by all accounts was at the worksite was en route away 

from the worksite performing a “loop around” to get into position to perform another “slow 

roll” to assist the painters painting a yellow line. There was no other vehicle with a TMA at 

the worksite.107 Thus, there is not enough evidence in the record to establish that any vehicle 

with an attached TMA was being used as a TMA to protect any worker that night working 

within the pattern at the worksite.

108

 To prove applicability, the Secretary has the burden to 

show that the Respondent’s workers in the work zone were “being protected” by a TMA, but 

the record does not support such a finding. CO Santiago, during his investigation, made no

attempt to discern why the Ford truck with an attached TMA was not in a position to the east of 

the workers in the work zone on the night of the incident. Under these circumstances, the 

Court finds that the Secretary has not established that the cited OSHA standard is applicable to 

the worksite here. 

This citation item is vacated. 

c. Serious Citation 1, Item 3 – Alleged Taper Length Violation

The Secretary claims that Respondent violated 29 C.F.R. § 1926.200(g)(2), 

incorporating MUTCD 1988 Edition Section 6C-3 because Respondent “did not provide a 

roadway transition taper of the requisite length to ensure safe vehicle routing around the 

temporary work control zone.” (Citation at 8). The Secretary claims that “on or about 

12/3/2014, the employer did not establish a transition taper for the temporary traffic control 

zone to ensure safe vehicle routing and that was incompliance with Table VI-2 of the MUTCD, 

1988 Edition, Revision 3. The employer’s installed taper was approximately 120 feet in length 

 

107 Even if there was a second truck with an attached TMA at the worksite that evening, there is no evidence that 

any such truck was being used as a TMA. 

108 This excludes any protection that may have been be afforded to any occupant of the Ford pattern truck with its 

attached TMA that may have been deployed when the Ford truck was doing a “loop around” or “slow roll.” 
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which was much shorter than the approximately 300 feet required by Table VI-2.” (Citation at 

8). 

Section 1926.200(g)(2) states: “All traffic control signs or devices used for protection 

of construction workers shall conform to Part VI of the MUTCD, 1988 Edition, Revision 3, or 

Part VI of the MUTCD, Millennium Edition, incorporated by reference in Sec. 1926.6.” 29 

C.F.R. § 1926.200(g)(2). As noted above, section 1926.6(a) provides that only the mandatory 

provisions of the cited MUTCD apply. Here, the Secretary states that the MUTCD “requires” 

a taper that is “approximately” 300 feet long in this case. (Citation at 8). However, the Court 

finds that the cited MUTCD provisions do not impose a mandatory taper length as the 

Secretary claims. 

As with the previous citation item, the Court looks to the provision in question, as well 

to how that provision fits into the language of the whole part of the section. KS Energy Servs.,

Inc., 22 BNA OSHC at 1265 n.8 citing Phoenix Roofing, Inc., 17 BNA OSHC at 1077 (“stating 

that when interpreting disputed terms, Commission looks to ‘the provisions of the whole law, 

and to its object and policy’”), aff'd,79 F.3d 1146 (5th Cir. 1996); Morrison-Knudsen 

Co./Yonkers Contracting Co., 16 BNA OSHC at 1108 (“explaining Commission construes 

‘each part or section... in connection with every other part or section so as to produce a 

harmonious whole’”). 

Below is the relevant portion of the MUTCD for this citation item. (Ex. 12 at 4-5). 

Throughout this provision, the Court emphasizes (by an underline) the discretionary language 

that is used and notes that there is no mandatory language in the accompanying paragraphs to 

Table VI-2. The Court, however, also notes the use of the words “minimum” and “maximum” 

in Table VI-2. 
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6C-3. TAPERS

A common important element of a temporary traffic control zone is a roadway 

taper. Tapers may be used in both the transition and termination areas. Tapers are 

created using a series of channelizing devices or pavement markings placed to 

move traffic out of or into its normal path. Whenever tapers are to be used near 

interchange ramps, crossroads, curves, or other influencing factors, it may be 

desirable to adjust the length of tapers. Longer tapers are not necessarily better than 

shorter tapers (particularly in urban areas characterized by short block lengths, 

driveways, etc.), because extended tapers tend to encourage sluggish operation and 

to encourage drivers to delay lane changes unnecessarily. The real test of taper 

length involves observation of driver performance after traffic control plans are put 

into effect. Types of taper lengths are presented in table VI-2. The maximum space 

between devices in a taper normally approximates the distance in feet of the speed 

in miles per hour (i.e.: a 55 mph speed road should normally have devices spaced 

about 55 feet apart). Types of tapers are shown in figure VI-2 and the two-way 

traffic taper is shown in figure VI-3:

Table VI-2. Taper length criteria for temporary traffic control zones

Type of taper Taper length

Upstream tapers

Merging taper L minimum

Shifting taper 1⁄2 L minimum

Shoulder taper 1⁄3 L minimum

Two-way traffic taper 100 feet maximum

Downstream tapers 100 feet minimum

(use is optional)

Formulas for L**

Speed Formula

40 mph or less L = WS2

________

 60
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Table VI-2. Taper length criteria for temporary traffic control zones

Type of taper Taper length

45 mph or greater L = W x S

** L = Taper length in feet.

W = Width of offset in feet.

S = Posted speed, off-peak 85th percentile speed prior to work starting, or the anticipated 

operating speed in mph.

a. Merging Taper

A merging taper requires the longest distances because drivers are required to 

merge with an adjacent lane of traffic at the prevailing speed. The taper should be 

long enough to enable merging drivers to adjust their speeds and merge into a single 

lane before the end of the transition. For freeways, expressways, and other 

roadways having a speed of 45 mph or greater, the minimum length for merging 

tapers should be computed by a formula L = W x S. For residential, urban, and 

other streets with speeds less than 45 mph, the formula L = (W X S2)/60 should be 

used. Under either formula, L is the taper length in feet, W is the lateral shift of 

traffic due to the partially or fully closed lane (in feet), and S is the posted speed, 

the off-peak 85th percentile speed prior to work starting or the anticipated operating 

speed. The formula L = (W X S2)/60 is used for speeds less than 45 mph because 

slower traffic can merge safely in a shorter distance.

(MUTCD, Temporary Traffic Control Elements, Section 6C-3 at Ex. 12 at 3-4). (emphasis 

added).

Using the formula in Table VI-2, the Secretary claims that the MUTCD “required” the 

taper in this case to be at least 320 feet long. (Sec’y Br. at 16). The Secretary then relies on 

CO Santiago, who initially testified that he estimated the taper length to be 120 feet long based 

on video and stills from Officer Parfeniouk’s dash-cam video taken after the incident took 

place.109 (Sec’y Br. at 17 citing Tr. 375-76; Exs. 3 at 1, 13). Later, when viewing the video 

 

109 When attempting to ascertain distances between cones in the taper, CO Santiago testified that he “felt more 

comfortable” using the video from Officer Hollis’s patrol car at Exhibit A rather than using the video from 
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taken in Officer Hollis’ patrol car and using the still photograph taken from the Parfeniouk 

video at Ex. 3 at 2 [bottom photograph] in the courtroom, CO Santiago increased his estimated 

taper length from 120 feet to 160 feet. (Exs. 3 at 2 [bottom photograph], 13, A). Citing to this 

later testimony at “[Tr. at 396]” presented by CO Santiago in the Secretary’s Post-Hearing 

Brief in support of an assertion the Secretary attributes to Wittlinger, the Secretary asserts that 

Wittlinger estimated the taper length on this worksite to be 160 feet long.

110

 (Sec’y Br. at 17 

citing Tr. 396). In this way, the Secretary alleges that Respondent violated the cited standard. 

(Sec’y Br. at 16).

Schaeffer, on the other hand, testified that the taper was 660 feet in length. He said he 

started the cone taper at station number 220.111 (Tr. 157-58, 161-64, 168, 208; Ex. 14 at “G”

and “H”). As previously stated in fn. 62, Schaeffer determined the length of the taper by using 

the station markers 220 and 215. (Tr. 168-69; Ex. 14). He stated that there was no way 

PennDOT inspectors would have allowed him to be shy of 600 feet because of the liability and 

everything else. (Tr. 200). He testified that he went for a full 660 feet. (Tr. 168-69, 200). 

Schaeffer testified that he had no reason to believe that the workers didn’t use his paint marks 

as a guide to place the cones on the taper. (Tr. 212). 

Ruof, too, estimated that the installed taper was 660 feet in length. (Tr. 131-32). 

The Secretary did not call Villasenor, Garber, Moser or Tracy, or any worker who set 

the cones in place at the worksite to testify about the length of the taper. CO Santiago took no 

 

Officer’s Parfeniouk patrol car (Ex. 13) because a vehicle in Officer Parfeniouk’s video was “sort of obstructing 

the view.” (Tr. 388). 

110 Wittlinger actually said that he did not know why the taper was only 160 feet long. (Tr. 421). As previously 

explained, the Court gives little or no weight to CO Santiago’s courtroom calculation that the 

taper was 160 feet long. (Tr. 388-96; Exs. 3 at 2 [bottom photograph], 13, A).

111 Exhibit 14 includes notes that state “BEGIN SHOULDER TAPER 220’ IN ADVANCE OF MERGING 

TAPER WITH CHANNELIZING DEVICES (6 MIN.)” and “BEGIN 663’ MERGE TAPER” just east of station 

number 220 and “END 663’ MERGE TAPER” at “E” just west of station number 215. (Tr. 197; Ex. 14). 
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measurements at the worksite, including the skip lines or Schaeffer’s paint markings for the 

taper. Cones had been moved from the taper following the incident before the videos and 

photographs were taken. As previously stated, the Court is also unable to discern whether or 

not the two cones at Exhibit 3 at 2, bottom photograph, at “B”, are the first cones located at the 

center line; or at the end of the taper. There are at least two gaps of undetermined lengths

shown on that photograph and in the videos at Exhibits 13 and A, both before and after these 

two cones. Both the videos at Exhibits 13 and A and the photograph at Exhibit 3 at 2 [bottom 

photograph] taken from the video at Exhibit 13 were taken after the incident, after cones had 

been thrown and removed from the taper. Based upon the contradictory evidence before it, the 

Court is unable to make a finding as to the precise length of the taper; including whether the 

taper was less than the “required” approximately 300 feet as alleged by the Secretary. 

(Citation at 8). The Secretary carries the burden to prove the length of the taper; something he

has failed to do. He has failed to show that the taper was only 120-feet in length. He has also 

failed to overcome the direct testimony by Messrs. Ruof and Schaeffer that the taper was about 

660 feet in length at the time of the incident.

Notwithstanding the above, the Court also analyzes Respondent’s argument that the 

cited MUTCD provisions do not apply because they are discretionary. (Resp’t Br. at 26-27). 

Respondent argues that “through use of the word ‘should’ in the cited MUTCD provision, the 

definitions in Section IA.13 of the MUTCD identifies Section 6C-3 as only Guidance, which is 

defined as a ‘recommended, but not mandatory, practice in typical situations.’ MUTCD, 

Section IA.13.” (Resp’t Br. at 24). Section IA.13 of the MUTCD is not included in the record 

as an exhibit. KS Energy Serv., Inc., 22 BNA OSHC at 1265 n.8 (noting that it is consistent 

with Commission precedent to refer to other provisions of the MUTCD when interpreting a 
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disputed term of a provision of the MUTCD) (citations omitted). This citation item, however, 

can be disposed of by weighing the arguments and placing the burden appropriately on the 

Secretary.

The Secretary does not address, in any way, the discretionary language of these 

provisions with respect to the applicability of the cited standard, stating simply that the cited 

MUTCD provision “requires” a certain transition taper length. (Sec’y Br. at 14-16). The 

Secretary looks only to the language within Table VI-2, which the Court notes does use the 

word “minimum.” (Ex. 12 at 4). However, as Respondent points out, the accompanying 

language to this table is discretionary: “For residential, urban, and other streets with speeds 

less than 45 mph, the formula L = (W X S2)/60 should be used.” (Ex. 12 at 4). Indeed, all of 

the language in the paragraphs surrounding Table VI-2 is discretionary, using words such as: 

“may,” normally,” and “should.” There are no instances of the words, “shall” or “must,” 

which would indicate a mandatory provision that would be incorporated to the cited OSHA 

standard pursuant to 29 C.F.R. 1926.6(a). Ruhlin Co., 21 BNA OSHC at 1784 (only 

mandatory provisions of the MUTCD are incorporated as standards by § 1926.200(g)(2)).

The Secretary does not address any of this accompanying language to Table VI-2 in his 

argument, not even to explain how to reconcile the use of the word “minimum” buried, 

contextually, within the overwhelmingly discretionary language surrounding it. But 

Respondent does address this discretionary language in its counter-argument, claiming that the 

discretionary language renders this cited MUTCD provision inapplicable. The Court agrees 

with Respondent, as the Secretary has set forth nothing to support his argument. As such, the 

Secretary leaves Respondent’s counter-argument unrebutted. The Secretary therefore has not 

carried his burden in establishing the mandatory nature of the cited MUTCD provision.
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The Court finds that the MUTCD does not “require” a certain taper length in this case. 

The Court is persuaded by Respondent’s argument regarding the discretionary nature of the 

length of the transition taper in the cited MUTCD provision. There is no such mandatory 

language, and so the Court finds that this particular provision is not incorporated by reference 

into the cited OSHA standard. 29 C.F.R. § 1926.6(a). 

For the reasons stated above, the cited standard is inapplicable in this case. This 

citation item is vacated.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

All findings of fact and conclusions of law relevant and necessary to a determination of 

the contested issues have been made above. See Fed. R. Civ. P. 52(a). All proposed findings 

of fact and conclusions of law inconsistent with this decision are denied.

ORDER

Based on these findings of fact and conclusions of law, it is ORDERED that:

1) Item 1 of Citation 1, alleging a serious violation of section 5(a)(1) of the OSH Act, 29 

U.S.C. § 654(a)(1), is VACATED. 

2) Item 2 of Citation 1, alleging a serious violation of 29 C.F.R. § 1926.202, is VACATED.

3) Item 3 of Citation 1, alleging a serious violation of 29 C.F.R. § 1926.200(g)(2), is 

VACATED.
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SO ORDERED.

_/s/Dennis L. Phillips_________ 

The Honorable Dennis L. Phillips

 U.S. OSHRC Judge

Date: October 30, 2018

Washington, D.C.