United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant, 

v. OSHRC Docket No. 16-1628 

SCHAAD DETECTIVE AGENCY, INC., 

Respondent. 

ON BRIEFS:

Ronald J. Gottlieb, Attorney; Heather Phillips, Counsel for Appellate Litigation; Edmund Baird, 

Associate Solicitor of Labor for Occupational Safety and Health; Kate S. O’Scannlain, Solicitor of 

Labor; U.S. Department of Labor, Washington, DC 

For the Complainant

Larry C. Heim, Esq.; Barley Snyder, York, PA 

 For the Respondent 

DECISION

Before: SULLIVAN, Chairman; ATTWOOD and LAIHOW, Commissioners. 

BY THE COMMISSION:

After an armed guard employed by Schaad Detective Agency, Inc., was shot and killed 

during an attempted robbery on the Pennsylvania Turnpike, the Occupational Safety and Health 

Administration issued the company a serious citation alleging a violation of the personal protective 

equipment (PPE) standard, 29 C.F.R. § 1910.132(a). The Secretary alleges that Schaad violated 

the standard by failing to ensure that its armed guards assigned to provide security for the 

turnpike’s fare collection operation wore bulletproof vests. Following a hearing, Administrative 

Law Judge Dennis L. Phillips vacated the citation, concluding that the cited provision does not 

apply. We agree that § 1910.132(a) does not apply—albeit for different reasons than those of the 

judge—and so we also vacate the citation.
2 

BACKGROUND

Schaad provides security and private investigation services in Pennsylvania, employing 

approximately 380 security guards, 65 of whom are armed with handguns.1 From 1997 through 

2016, Schaad had a contract with the Pennsylvania Turnpike Commission (PTC) to provide armed 

guards to accompany PTC employees, known as “tellers,” as they drove unmarked vans to 

tollbooth stations, collected toll revenues, and provided tollbooth personnel with money to make 

change. When the van stopped at each tollbooth station, the armed guard would exit the van and 

either observe the teller from a position beside the van or walk with the teller as he or she entered 

and exited the tollbooth or a nearby building to exchange money. 

Schaad’s armed guards supplied their own weapons and each wore a uniform consisting of 

black boots, navy-blue pants, a black belt, a navy-blue shirt, and a gold badge denoting the guard’s 

rank within the company. According to Schaad’s standard operating procedures, the armed guards 

were not to handle any of PTC’s money or documents. Rather, the “primary duty” of the armed 

guards was “to act as a deterrent” to robbery—they were not to respond to any incidents on the 

turnpike except those that affected the safety of the tellers.

Schaad’s armed guards on the PTC detail were trained and evaluated in several ways prior 

to beginning work. They received their initial training and certification from Harrisburg Area 

Community College pursuant to a curriculum approved by the Pennsylvania State Police, which 

consisted of a 40-hour course referred to as “Act 235” lethal weapons training. Schaad also

provided its armed guards with a memorandum that included guidance on the use of lethal force 

when faced with threat of the same. Finally, Schaad’s armed guards underwent a psychological 

evaluation, a physical examination, and a fingerprint background investigation. 

In 2008 and 2009, Schaad spent approximately $30,000 on bulletproof vests for its armed 

guards. Schaad encouraged its armed guards to wear the vests but did not require their use while 

on duty. Six armed guards assigned to the PTC detail who were identified in the record always or 

almost always wore a vest on the job. Some other guards, according to a statement made by the 

1 Although the judge found that approximately 65 percent of Schaad’s employees are armed 

guards, it is clear from the record that the “65” figure is “[b]y number,” not “[b]y . . . percentage.”
3 

company’s general manager to the OSHA compliance officer, preferred to not wear a vest because 

they found it uncomfortable.2

On the morning of March 20, 2016, a 71-year-old Schaad armed guard, who was not 

wearing a bulletproof vest, was riding in the passenger seat of an unmarked toll collection van 

containing $58,000 and driven by a PTC teller. The van was headed toward the Fort Littleton

Pennsylvania Turnpike Interchange, about 65 miles west of Harrisburg. At about 6:45 a.m., a 54-

year-old, retired Pennsylvania state trooper of 25 years, armed with multiple guns and wearing 

body armor and a camouflage mask, approached that same turnpike interchange with the intent to 

commit robbery. In the course of the attempted robbery, he shot Schaad’s armed guard and another 

PTC employee, killing them both.

DISCUSSION

At issue on review is whether the cited provision applies.3

 Section 1910.132(a) states as 

follows: 

Application. Protective equipment, including personal protective equipment for 

eyes, face, head, and extremities, protective clothing, respiratory devices, and 

protective shields and barriers, shall be provided, used, and maintained in a sanitary 

and reliable condition wherever it is necessary by reason of hazards of processes or 

environment, chemical hazards, radiological hazards, or mechanical irritants 

encountered in a manner capable of causing injury or impairment in the function of 

any part of the body through absorption, inhalation or physical contact. 

2 After the attempted robbery, Schaad instituted a policy requiring all of its armed guards to wear

ballistic-resistant vests on the job. 

3 The Secretary establishes a “violation . . . whenever the following four elements exist: (1) the 

standard applies to the cited conditions, (2) the employer’s conduct does not conform to the 

requirements of the standard, (3) employees are exposed to the cited conditions, and (4) the 

employer knew or could have known of those conditions.” Safeway Store No. 914, 16 BNA OSHC 

1504, 1508 (No. 91-0373, 1993) (citation omitted). The parties have stipulated that the decedent 

“was not wearing a ballistic-resistant vest” on the day in question, and that Schaad “had no policy 

requiring its employees who served as armed security guards to wear ballistic-resistant vests while 

on duty.” Given these stipulations, if § 1910.132(a) applies such that vests were required, the 

noncompliance and knowledge elements of the Secretary’s case would be established. 

Additionally, the parties stipulated that Schaad’s guard was in fact “shot and killed . . . while 

serving as an armed escort . . . during an attempted robbery at a tollbooth interchange,” which 

would establish the exposure element as well. See S&G Packaging Co., 19 BNA OSHC 1503, 

1506 (No. 98-1107, 2001) (exposure established by evidence that “Respondent’s employees were 

actually exposed to the violative condition”). 
4 

To establish the applicability of a PPE standard such as this, which “by its terms, applies only 

where a hazard is present,” the Secretary must show that there was “a significant risk of harm” and

that either (1) “the employer had actual notice of a need for protective equipment” or (2) “a 

reasonable person familiar with the circumstances surrounding the hazardous condition would 

recognize that such a hazard exists.” Wal-Mart Distrib. Ctr. No. 6016, 25 BNA OSHC 1396, 

1400-01 (No. 08-1292, 2015), aff’d in relevant part, 819 F.3d 200 (5th Cir. 2016); Weirton Steel 

Corp., 20 BNA OSHC 1255, 1264 (No. 98-0701, 2003). For the following reasons, we conclude 

that the Secretary has established that a significant risk of harm existed but failed to show that 

Schaad had actual notice of a need for bulletproof vests on the PTC detail, or that a reasonably 

prudent employer would recognize that such vests were necessary.

Significant Risk of Harm

“Whether there exists a significant risk [of harm] depends on both the severity of the 

potential harm and the likelihood of its occurrence, but there is an inverse relationship between 

these two elements.” Weirton Steel, 20 BNA OSHC at 1259. “As the severity of the potential 

harm increases in a particular situation, its apparent likelihood of occurrence need not be as great.” 

Id. Here, the judge found that the severity of harm is “undisputed and undeniable,” given that 

being shot can, and did, lead to death. As to likelihood, the judge acknowledged that Schaad’s 

guards were tasked with deterring the robbery of tellers transferring money; the guards wore 

uniforms and carried handguns, which made them a target; and Schaad had purchased bulletproof 

vests, which the judge found that no company would do for an unforeseen hazard. At the same 

time, the judge was not persuaded by testimony of the Secretary’s expert, Dr. Daniel Benny, that

the fatality rate among security guards is more than double that of all workers because that rate

dealt with the security industry generally and not Schaad’s worksite specifically. Ultimately, the 

judge found that the Secretary’s evidence of significant risk of harm was rebutted by Schaad for 

two reasons—the company’s use of an unmarked van masked PTC’s money transfer process and, 

as the parties stipulated, the company previously had a 45-year incident-free history.

 Given the unquestionably high severity of the potential harm here, evidence of likelihood 

need not be particularly great. See Weirton Steel, 20 BNA OSHC at 1259. As such, we find that 

the expert testimony of Dr. Benny—a licensed private investigator, security consultant, teacher at 

Harrisburg Area Community College (as well as several online universities), and state-certified 

instructor of the Act 235 lethal weapons training Schaad’s armed guards took, whom the judge 
5 

found qualified in “security-related matters”—provides a sufficient basis for the Secretary to 

establish the requisite likelihood of harm here. According to Dr. Benny, “armed guards hired to 

protect persons who transport money and valuables face a hazard of being shot,” and “it’s a highrisk position because robberies do occur.” He also stated that security guards who are armed and 

wearing uniforms are in a “particularly dangerous” situation, because when “you’re . . . identified 

as a . . . security officer[,] . . . that immediately could be a threat to a perpetrator who wants to

commit a crime[,] . . . [s]o it rises the threat level in those situations.” 

Dr. Benny also testified regarding three statistics—(1) “most . . . robberies related to 

money are armed robberies with the perpetrator using a firearm 40.8% of the time”; (2) the on-thejob fatality rate for security guards in 2009 was more than double the rate for all workers; and (3) 

nearly two-thirds of security guard fatalities were the result of “assaults or other violent acts.” 

Contrary to the judge, we are not persuaded that these statistics are irrelevant simply because they 

are not specific to the worksite at issue. These data relate to the security industry, of which Schaad 

is a member, and in fact buttress Dr. Benny’s expert testimony regarding the likelihood of Schaad’s 

armed guards being shot on the PTC detail. 

While the judge’s focus on Schaad’s 45-year-long, incident-free history is to some degree 

understandable, it is well-established that “the goal of the [Occupational Safety and Health] Act is 

to prevent the first accident.” Waldon Health Care Ctr., 16 BNA OSHC 1052, 1059 (No. 89-2804, 

1993); compare Fabricraft, Inc., 7 BNA OSHC 1540, 1543 (No. 76-1410, 1979) (“[T]he 

likelihood of an accident” in a machine guarding case “appear[ed] remote,” given that “[o]nly two 

needle puncture injuries were recorded in respondent’s log from 1971 to July 1976.”). Indeed, as 

the Commission has observed, “[w]hile the fact that there have been no injuries . . . may be some 

evidence of no probability of the hazard causing an accident, it is not conclusive on the question 

of whether a hazard existed.” B.C. Crocker Cedar Prods., 4 BNA OSHC 1775, 1777 (No. 4387, 

1976); see Peacock Eng’g, Inc., 26 BNA OSHC 1588, 1590 (No. 11-2780, 2017) (finding 

amputation, struck-by, and crushed-by hazards in general duty clause case involving work near 

suspended loads despite employer’s assertion of “thousands of accident-free crypt installations”).

As to the unmarked van, the Secretary correctly points out that Schaad itself recognized 

that its use did not necessarily diminish the likelihood of harm to its armed guards, given that the 

company’s lethal force policy and standard operating procedures acknowledged a remaining armed 

robbery threat. Moreover, any impact on the likelihood of harm resulting from using an unmarked 
6 

van was surely obviated once the guard, wearing a Schaad uniform with a gold badge and carrying 

a firearm, exited the van at the time of transfer. Under these circumstances, Schaad’s incidentfree history—whether alone or coupled with the company’s use of an unmarked van—is 

insufficient to rebut evidence of the likelihood Schaad’s armed guards would be shot on the PTC 

detail.4 For these reasons, we conclude that the Secretary has established a significant risk of 

harm.

Actual Notice 

In assessing this aspect of the applicability inquiry, the Commission and courts have 

focused on employer awareness of injuries from the alleged hazard and the ineffectiveness of prior 

precautions. See, e.g, Envision Waste Servs., LLC, 27 BNA OSHC 1001, 1004 (No. 12-1600, 

2018) (“The record shows that Envision was aware its work practice controls did not eliminate 

exposure to the hazard posed by used needles,” because the “safety manager . . . was informed 

[that] needle-sticks had, in fact, occurred,” and “that the gloves [employees used] did not provide 

adequate protection.”); Owens-Corning Fiberglass Corp. v. Donovan, 659 F.2d 1285, 1288 (5th 

Cir. 1981) (“OCF’s own evidence established that it had been aware for at least the last thirty years 

that many, if not most, employees exposed to fiberglass develop fiberglass itch when they begin 

employment and upon returning from any extended absence and that wearing gloves is the only 

way to prevent fiberglass itch.”). Here, Schaad had not experienced any incidents prior to the one 

at issue, either on the PTC detail or at other sites where it supplied armed guards. On review, the 

Secretary claims that he need not show Schaad’s awareness of a specific injury rate for this type 

of hazard, just that the company recognized that a shooting was a realistic possibility. 

The Secretary focuses primarily on the bulletproof vests Schaad purchased for its armed 

guards and encouraged them to wear, relying on the Fifth Circuit’s decision in Owens-Corning for 

4 We are similarly not persuaded that testimony from one of Schaad’s expert witnesses—Edward 

B. Sorrells, chief operating officer and general counsel for DSI Security Services, a provider of 

security officers, along with technology, consulting, and training services—serves to rebut the 

Secretary’s evidence regarding likelihood. Sorrells testified that he did not consider the PTC detail 

to be a “high-risk” assignment and, like the judge, pointed to the lack of any prior history involving 

an incident of this kind. Given that the high severity of potential harm results in a lower burden 

of proof for likelihood, we believe this testimony is insufficient to overcome the evidence showing 

that a Schaad armed guard being shot in the torso was “more than just a speculative possibility,” 

Weirton Steel, 20 BNA OSHC at 1260, and that harm could come to the guards “upon other than 

a[n] . . . utterly implausible concurrence of circumstances.” Beverly Enters., Inc., 19 BNA OSHC 

1161, 1172 (No. 91-3144, 2000) (consolidated). 
7 

the proposition that “an employer’s safety program may be considered in support of a finding of 

knowledge along with other factors indicating to the employer the need for particular safety 

equipment.” 659 F.2d at 1288. The Secretary also points to language in the Commission’s 

underlying decision in that case that “[w]here . . . protective equipment is made available to 

employees at their request, even on a limited basis, recognition of a hazard warranting such 

protection is thereby established.” Owens-Corning Fiberglas Corp., 7 BNA OSHC 1291, 1295 

(No. 76-4990, 1979), aff’d, 659 F.2d 1285 (5th Cir. 1981). 

Owens-Corning, however, is not controlling precedent in this case and, in any event, it is 

factually distinct.5

 In Owens-Corning, the employer had provided PPE to its employees because 

of frequent and consistent injuries over a period of thirty years, and “employees’ persistent 

demands for [it].” 659 F.2d at 1289. Neither of these factors is present here, and in two recent 

PPE cases where such evidence or prior injury was lacking, the Commission has held that actual 

notice was not established. See Wal-Mart Distrib. Ctr., 25 BNA OSHC at 1403 (“With only three 

eye/face incidents in an order filler population of approximately 60 workers over a period of more 

than two years . . . we cannot find that . . . Wal-Mart had actual knowledge of a hazard requiring 

eye/face protection.”); Envision Waste Servs., 27 BNA OSHC at 1005 (in light of “only one 

recorded eye injury . . . between 2009 and 2012,” and “the record . . . not even show[ing] how 

many employees worked in the sorting room during this period,” the Secretary “failed to establish 

Envision had actual knowledge of a hazard requiring use of eye protection”). 

Against this backdrop, the record here establishes only that Schaad provided bulletproof 

vests out of an abundance of caution, not because it recognized they were necessary. 29 C.F.R. 

§ 1910.132(a). Schaad’s general manager testified that he and the company’s president decided 

to purchase the vests to “invest in officer safety,” because “[w]ith everything that’s going on in 

the world today, . . . I want to be able to go home at night . . . knowing that we’ve done everything 

5 Schaad’s principal place of business is, and the events giving rise to the citation were, in 

Pennsylvania, so the relevant Courts of Appeals here are the Third and D.C. Circuits. See 29 

U.S.C. § 660(a) (“Any person adversely affected or aggrieved by an order of the 

Commission . . . may obtain a review of such order in any United States court of appeals for the 

circuit in which the violation is alleged to have occurred or where the employer has its principal 

office, or in the Court of Appeals for the District of Columbia Circuit . . . .”); see also Kerns Bros. 

Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000) (“Where it is highly probable that a 

Commission decision would be appealed to a particular circuit, the Commission has . . . applied 

the precedent of that circuit in deciding the case.”). 
8 

we can to provide safety for . . . our officers.” The general manager further testified that he

encouraged his armed guards to wear the vests “because it’s [an] added protection level or safety.” 

This testimony demonstrates that Schaad was seeking a degree of safety beyond the essential. See 

Gen. Motors Corp., GM Parts Div., 11 BNA OSHC 2062, 2066 (No. 78-1443, 1984) 

(consolidated) (“An employer’s safety recommendations do not establish that such precautions 

were necessary,” because “[i]f employers are not to be dissuaded from taking precautions beyond 

the minimum regulatory requirements, they must be able to do so free from concern that their 

efforts will be relied on to establish their knowledge of an alleged hazard.”), aff’d, 764 F.2d 32 

(1st Cir. 1985). 

The Secretary maintains that other parts of the record show Schaad’s actual knowledge of 

the need for bulletproof vests, but we find none of this evidence persuasive. Schaad’s contract 

with PTC called for “armed guard service,” and the company’s standard operating procedures for 

this detail described the guards as a “deterrent” to robbery and directed them to ensure “the safety 

of the tellers.” In the Secretary’s view, these documents reflect Schaad’s knowledge that its armed 

guards were exposed to a realistic possibility of a lethal encounter with a robber on the PTC detail. 

Knowledge of exposure to a hazard, however, is not the actual notice threshold; rather, it is whether 

“the employer had actual knowledge of a need for [the proposed] protective equipment.” WalMart Distrib. Ctr., 25 BNA OSHC at 1400-01. Here, PTC’s reasons for hiring armed guards are 

not apparent from the record, so it is not clear how the contract sheds any light on Schaad’s 

awareness of the need for PPE. One possibility is that PTC, as well as Schaad in describing the 

detail’s armed guards as a robbery deterrent, simply thought that possession of a firearm itself 

would be sufficient to deter a robbery and/or protect all involved. Indeed, PTC did not require its 

own tellers to wear bulletproof vests while transporting money; the contract required only that the 

tellers be protected by guards who were armed. 

Finally, the Secretary cites two pieces of testimony from Schaad’s general manager as 

showing actual notice: (1) that he authored the company’s “use of force continuum” for the armed 

guards “[b]ecause they are carrying a weapon, and if something ever happened[,] . . . they have 

something to reflect back to [in deciding whether to use force]”; and (2) that the armed guard 

uniforms made them a target because they “look like cops in some respects[,] . . . [a]nd that person 

that’s out to do harm, he doesn’t know the difference.” Again though, this testimony does not 

establish the company had notice that bulletproof vests were necessary on the PTC detail. The 
9 

first statement addresses the use of weapons in the event “something” should happen, not the need 

for vests (or even the risk of “something” actually happening on the PTC detail). And while the 

second statement addresses whether the guards faced a significant risk of harm on the PTC detail 

(which we have already found was established), it has no bearing on whether Schaad appreciated 

that its armed guards on this detail needed to wear bulletproof vests. In all, we find that the 

Secretary has failed to establish actual notice of the need for the proposed PPE. 

Reasonable Person

In the alternative, the Secretary asserts that § 1910.132(a) applies here because “a 

reasonable person familiar with the circumstances surrounding the hazardous condition would 

recognize that . . . a hazard [necessitating the use of PPE] exists.” Weirton Steel, 20 BNA OSHC 

at 1264. As “a general standard, broadly worded to encompass many hazardous conditions or 

circumstances,” the Secretary can establish applicability of this provision by showing “that a 

reasonably prudent employer, concerned about the safety of employees in the circumstances 

involved in a particular case, would recognize the existence of a hazardous condition and provide 

protection as required by the Secretary’s citation.” Trinity Indus., Inc., 15 BNA OSHC 1481, 1484 

(No. 88-2691, 1992). In applying this “reasonably prudent employer” test, the “custom and 

practice of the industry [is] one aspect,” but it is not determinative. Voegele Co. v. OSHRC, 625 

F.2d 1075, 1078 (3d Cir. 1980). 

The judge found Schaad’s decision to provide bulletproof vests to its armed guards, and

the fact that some chose to wear them, insufficient to show that a reasonably prudent employer 

would recognize a hazard requiring the use of such vests. Again, the judge relied on Schaad’s lack 

of prior incidents and use of an unmarked van as the basis for concluding that a reasonable 

employer in similar circumstances would not have required the use of PPE. The Secretary 

contends this was error in light of Dr. Benny’s testimony and “the readily apparent nature of the

hazard.” Additionally, the Secretary asserts that the “widespread practice” of Schaad’s armed 

guards wearing bulletproof vests shows that those familiar with the PTC detail believed vests were 

necessary.

We disagree. First, the record shows that Schaad went above and beyond the industry norm 

by providing bulletproof vests. Schaad’s general manager testified that he “know[s] of no security 

company that provides [bulletproof vests] for their employees in the area,” and both of Schaad’s 

experts testified that they were aware of no private security provider that requires the use of 
10 

bulletproof vests by armed guards. In fact, the Secretary’s own expert testified at his deposition 

that he knew of no security agencies that mandated the use of bulletproof vests for armed guards, 

and that there were no consensus standards in the security industry requiring the use of such vests. 

Nor did he know at the time of the hearing of any such standards being considered in the industry. 

Finally, one of Schaad’s experts—M. Rebecca Downing, a security consultant and former police 

officer—testified that there was no policy requiring the use of vests by police officers when she 

worked as one in York, Pennsylvania, nor did she know of any mandatory use policies instituted 

by any other police departments in the area. Taken together, this testimony establishes that this

“aspect” of the reasonable employer test, Voegele Co., 625 F.2d at 1078, does not support the 

Secretary’s position. 

Second, the Secretary’s reliance on the “widespread practice” of Schaad’s armed guards 

also lacks support in the record. In terms of whether “a reasonably prudent employer . . . would 

recognize . . . a hazardous condition and provide protection as required by the Secretary’s 

citation,” Trinity Indus., 15 BNA OSHC at 1484, the Commission has stated that “the most 

revealing evidence on th[is] point is the practice of those persons most clearly familiar with the 

industry—the employees.” Gen. Motors Corp., 11 BNA OSHC at 2066. Here, six of Schaad’s 

armed guards on the PTC detail always or almost always wore the vests the company provided. 

What is not clear is how many of Schaad’s armed guards on that detail did not regularly wear the 

vests. While the Secretary asserts that wearing vests was the “widespread practice” of guards on 

the PTC detail, the record lacks evidence of how many of Schaad’s 65 armed guards were actually 

assigned to work that detail. Without such evidence, the Secretary’s assertion lacks merit. See 

Trinity Indus., 15 BNA OSHC at 1484; cf. Owens-Corning, 659 F.2d at 1289 (noting “employees’ 

persistent demands[,] . . . through their union, that [Owens-Corning] provide gloves to all who 

desired them,” and distinguishing Cotter & Co. v. OSHRC, 598 F.2d 911 (5th Cir. 1979), where 

“[o]nly about one-half of [the] employees chose to wear safety shoes”).

Third, we find no support for the Secretary’s position in the testimony of the expert 

witnesses in this case. In determining whether a reasonable employer would recognize a hazard 

and provide the protection sought by the Secretary’s citation, consideration may be given to

“opinion testimony from persons experienced in performing the work or familiar with the working 

conditions.” Trinity Indus., 15 BNA OSHC at 1485. As previously noted, Dr. Benny, the 

Secretary’s expert, provided testimony regarding the specific risks associated with armed guards 
11 

protecting those transporting money. And, as noted, Dr. Benny testified that in 2009, the rate of 

fatal work injuries among security guards and related workers was more than double the rate for 

all workers. At the same time, Dr. Benny acknowledged that the syllabus for the lethal weapons 

course he teaches, which is provided by the Pennsylvania State Police, does not include a vest 

requirement, and he conceded that he himself did not wear a vest when he was employed in an 

armed position with the U.S. Department of Defense at the Navy Ships Parts Control Center.6

 In 

all, though, Dr. Benny testified that he would “recommend [that] a safety program for armed 

escorts providing security to Turnpike tellers . . . include a requirement that the escorts wear 

ballistic-resistant vests.” 

As for Schaad’s expert witnesses, each of whom the judge found to be “an expert in 

security,” their opinions covered both ends of this issue. Edward B. Sorrells, chief operating 

officer and general counsel of DSI Security Services, a provider of security services, testified that 

“as an industry, [bulletproof vests] are not a standard requirement,” because “[t]he type of armed 

work that we participate in . . . is not what I would deem high risk.” In addition, Sorrells stated 

that based on his experience, mandating vests “would not be one thing that would automatically 

spring to my mind” as a response to the fatal incident at issue here. Downing testified during direct 

examination that she was not required to wear a vest when she was a police officer. But on crossexamination, Downing acknowledged that she had previously worked as a security guard in a van 

transporting money, and while she did not wear a bulletproof vest because she could not afford 

one, she believed that a vest provided “significant protection.” Downing further explained that 

after she bought a vest, there were “very few days in police work in the next 31 years I didn’t wear 

6 Commissioner Attwood notes that, because the syllabus for the lethal weapons course “was 

provided by” the Pennsylvania State Police, presumably Dr. Benny did not have the authority to 

rewrite it to include a vest requirement. In addition, it is noteworthy that Dr. Benny held the Navy 

position, which was supervisory and did not involve active patrol, from 1984 to 1990—more than 

25 years before the hearing in this case. Thus, the fact that he did not use a ballistic vest while in 

that position does not diminish the weight of his expert opinion. Indeed, Dr. Benny testified that 

“in the early 1990s” when he was chief of police for Elizabethtown College, he “was able to 

mandate a policy for ballistic vests,” and purchased them for his officers, even though those 

officers were unarmed. In light of these facts, Commissioner Attwood would give significantly 

greater weight to Dr. Benny’s testimony and find that the expert testimony in the record tilts in 

favor of the Secretary’s position. However, given the record evidence on industry and employee 

practice, she agrees, as stated below, that on balance the Secretary failed to establish that the 

reasonable person test was met.
12 

one” because the vest “provided that extra security, that extra possibility of allowing me to escape 

with less injury in the event that something like that would occur.” 

In balancing the expert opinion evidence on each side, along with the Secretary’s failure to 

establish that either industry or employee practice supports his position, we find that the Secretary 

has failed to show that a “reasonable person familiar with the circumstances surrounding the 

hazardous condition would recognize . . . a hazard” necessitating the use of bulletproof vests. 

Weirton Steel, 20 BNA OSHC at 1264; see Stanley Roofing Co., 21 BNA OSHC 1462, 1464 (No. 

03-0997, 2006) (“Based on this record, we find that the evidence is essentially in equipoise and 

thus the Secretary has not met her burden of proof . . . .”).

 Accordingly, we conclude that the Secretary has failed to establish that the cited standard, 

29 C.F.R. § 1910.132(a), applies, and we therefore vacate Serious Citation 1, Item 1.

SO ORDERED.

/s/ 

 James J. Sullivan, Jr. 

 Chairman 

/s/ 

Cynthia L. Attwood 

Commissioner

 

/s/ 

 Amanda Wood Laihow 

Dated: January 15, 2021 Commissioner

 
Some personal identifiers have been redacted for privacy purposes.

 

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. 16-1628 

SCHAAD DETECTIVE AGENCY, INC.,

Respondent. 

Appearances: Nicholas C. Geale, Acting Solicitor of Labor 

 Oscar L. Hampton III, Regional Solicitor 

 Michael P. Doyle, Regional Counsel 

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

 For the Secretary

 

 L.C. Heim, Esq.

 Katherman, Heim & Perry

 York, Pennsylvania 

 For the Respondent 

Before: Dennis L. Phillips 

 Administrative Law Judge

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). At about 7:00 a.m., March 20, 2016, an employee, first name 
2 

[redacted],

7 for Schaad Detective Agency (Schaad or Respondent) was shot and killed by an 

armed robber, Clarence Leslie Briggs, during a robbery of one of Respondent’s clients that 

occurred at the Fort Littleton Pennsylvania Turnpike Interchange, near Mile Marker 180 of the 

Pennsylvania Turnpike (PA Turnpike). [redacted] was a contracted armed security guard tasked 

with protecting a Pennsylvania Turnpike Commission (PTC) employee and van driver (also 

referred to as a “teller”), [redacted], while he delivered and collected money at PA Turnpike 

tollbooths.8 Mr. Briggs was a retired 25-year state trooper familiar with the money exchange 

detail on the PA Turnpike. (Tr. 153, 157; Ex. 9 at 1-4). [redacted] was not wearing a ballisticresistant vest, even though Respondent had provided and encouraged, but did not require, him to 

wear one.9 Mr. Briggs shot [redacted] at least twice in the chest with a high-power rifle, and he

died due to the bullet wounds to his torso. (Tr. 153-55; Ex. 9 at 1-4, 9, 12). 

The Occupational Safety and Health Administration (OSHA) investigated Respondent as 

a result of this incident. As a result of the investigation, OSHA issued Respondent on September 

20, 2016, a citation alleging a serious violation of 29 C.F.R. § 1910.132(a)10 and proposing a 

7

 For privacy reasons and in view of his death as a result of the incident, only [redacted]’s first name is used in this 

decision.

8 Mr. Briggs also shot and killed a PTC tollbooth collector employee during the robbery. (Tr. 45; Ex. 9 at 1-4, 12).

9 In this case, the vests at issue have been referred to throughout the record as “ballistic vests,” “ballistic-resistant 

vests,” “bullet-proof vests,” “bulletproof vests,” “bullet-resistant vests,” and “body armor,” interchangeably. For the 

purposes of this decision, the Court also uses the terms interchangeably, even though the terms may have different 

definitions in another context outside of this case. The Court recognizes that the vests at issue here are commonly 

referred to as “bulletproof vests,” but in this case, the exact capability of the vest (whether it be completely 

bulletproof or just resistant, and whether it protects against all ballistics, or just bullets) was not squarely placed in 

front of the Court. The issue, rather, was whether any vest, qualifying as personal protective equipment, required by 

OSHA. Here, the Court finds that the Secretary has not established that Personal Protective Equipment (PPE) vests

were required at all.

10 Section 1910.132(a) states: 

Application. Protective equipment, including personal protective equipment for eyes, face, 

head, and extremities, protective clothing, respiratory devices, and protective shields and 

barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever 

it is necessary by reason of hazards of processes or environment, chemical hazards, 

radiological hazards, or mechanical irritants encountered in a manner capable of causing 
3 

$12,471 penalty.11 Respondent filed a timely notice of contest, bringing this matter before the 

Commission. 

In its Answer to the Secretary’s Complaint, Respondent admitted that it was an employer 

within the meaning of section 3(5) of the OSH Act, 29 U.S.C. § 652(5) and admitted to “the 

time, location, place, and circumstances of each alleged violation under contest [as] set forth in 

the Citation and Notification of Penalty.” (Answer at ¶¶ 3-5). Respondent, however, denied that 

the proposed penalty gave “due consideration to the gravity of the violations, the size of 

Respondent’s business, Respondent’s good faith, and its history of previous violations, as 

required by Section 17(j) of the Act, 29 U.S.C. 666(j).” (Answer at ¶ 6). Respondent further 

stated: “The penalties are unreasonable under the circumstances in this case.” (Answer at ¶ 6). 

Respondent then requested “that the Commission either dismiss the Citations or reduce the 

penalties to a minimal amount.” (Answer at 1). 

 The trial was held on October 24 and 25, 2017 in York, Pennsylvania.12 Both parties 

filed post-trial briefs, and Respondent filed a post-trial reply brief. For the reasons set forth 

below, the Court vacates Citation 1, Item 1. 

injury or impairment in the function of any part of the body through absorption, inhalation or

physical contact.

29 C.F.R. § 1910.132(a).

11 Along with Citation 1, Item 1, OSHA also issued another citation item, Citation 2 Item 1, alleging one other-thanserious violation of 29 C.F.R. § 1904.39(a) and proposed an $8,908 penalty. The parties settled this Citation 2, Item 

1 (an alleged reporting violation) on October 19, 2017. (Tr. 12-13). Only Citation 1, Item 1 (the alleged PPE

violation) remains to be adjudicated. (Tr. 15). 

12 The Secretary had filed a Motion for Summary Judgment on September 25, 2017, and Respondent filed its 

Opposition on October 10, 2017. The Secretary’s Motion for Summary Judgment remained pending at the time of 

the trial. (Tr. 34). On November 1, 2017, the Secretary’s Motion for Summary Judgment was denied without 

prejudice to raising the arguments contained in his Motion and presenting evidence in support thereof at the trial on 

the merits, and/or in his post-trial briefs. See Order Denying Secretary’s Motion for Summary Judgment Without 

Prejudice (Nov. 1, 2017).
4 

STIPULATIONS

The following statements were stipulated to by the parties before trial and entered into the 

record at the request of the parties at trial:

1. Respondent is a corporation organized under Pennsylvania law. 

2. Respondent has a website at www.schaad.com. 

3. Respondent provides comprehensive security and private investigation services 

throughout Pennsylvania, including armed security guard services.

4. Russell Wantz, Jr. is, and at all relevant times was, owner and sole shareholder of 

Respondent. 

5. Timothy Lenahan is, and at all relevant times was, general manager of Respondent. 

6. Mr. Lenahan is responsible for day-to-day operations for Respondent. 

7. Mr. Lenahan reports directly to Mr. Wantz. 

8. From 1997 through 2016, Respondent had a contract with the Pennsylvania Turnpike 

Commission under which Respondent provided armed escorts to ride with Turnpike 

tellers in Turnpike vans as the tellers collected money from toll stations.

9. In 2008 and 2009, Respondent purchased Level IIIA ballistic-resistant vests for 

employees who served as armed security guards, including those who performed armed 

escort duty under the Turnpike contract. 

10. Respondent encouraged employees who had been provided ballistic-resistant vests to 

wear the vests, but did not require their use.

11. Respondent provided ballistic-resistant vests to armed guards, but not to unarmed guards. 

12. [redacted] was an employee of Respondent on March 20, 2016. 

13. [redacted] was shot and killed on March 20, 2016, while serving as an armed escort 

pursuant to the contract between Respondent and the Pennsylvania Turnpike 

Commission.

14. [redacted] was shot during an attempted robbery at a tollbooth interchange. 

15. [redacted] was not wearing a ballistic-resistant vest at the time he was shot on March 20, 

2016. 
5 

16. Respondent knew before 5 p.m. on March 20, 2016, that [redacted] had been killed 

earlier that day.

17. Respondent reported [redacted]’s death to OSHA on March 22, 2016. 

18. [redacted]’s failure to wear a ballistic-resistant vest on March 20, 2016, was not a 

violation of any of Respondent’s rules or policies. 

19. Prior to [redacted]’s death, in Respondent’s 45-year history of providing armed and 

unarmed security services, and involving thousands of employees, there was never a 

single incident of an employee being confronted by deadly force.

20. At the time of [redacted]’s death, Respondent had no policy requiring its employees who 

served as armed security guards to wear ballistic-resistant vests while on duty. 

21. After [redacted]’s death, Respondent drafted and implemented a policy requiring all 

armed guards to wear ballistic-resistant vests during their shifts while engaged in field 

activities.

22. OSHA’s August 6, 2013 opinion letter on ballistic-resistant vests (from Thomas Galassi 

to Mrs. Diane Stein) was posted to OSHA’s public website on April 16, 2014. 

(Stipulations (Stip.), Joint Pre-Hearing Statement (Jt. Pre-Hr’g St.)), at 6-8; Tr. 31-32).

During the trial, the parties also stipulated that the bullet proof vests purchased by Schaad 

from 2009 through March 2016 were Level III-A. (Tr. 84; Ex. 6).

JURISDICTION

The record establishes that Respondent has approximately 380 employees, most of 

which are security guards in either armed or unarmed capacity. (Tr. 124). 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 ¶¶ 3-5). 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 
6 

Respondent is covered under the OSH Act. 

OSHA CITATION

Citation 1, Item 1 alleges a serious violation of 29 C.F.R. § 1910.132(a) and proposes a 

$12,471 penalty. The Secretary claims that Respondent violated the cited standard because: 

Protective equipment was not used when necessary whenever hazards capable 

of causing injury and impairment were encountered: 

(a) Turnpike Interchanges and Regional Offices throughout the Entire 

Pennsylvania System – Employees worked as armed security officers 

providing security for the Pennsylvania Turnpike Commission fare 

collection operation, which involved the delivery and pick up of money. 

The employer did not require and ensure that these armed security officers 

wore ballistic-resistant body armor vests, exposing employees to ballistic 

injuries to the vital organs in the torso, on or about March 20, 2016. 

(Citation at 6). Section 1910.132(a) requires that PPE “shall be provided, used, and maintained 

... wherever it is necessary by reason of hazards of processes or environment....” 29 C.F.R. 

§ 1910.132(a). 

BACKGROUND

Respondent’s Armed Security Guards 

Respondent provides armed and unarmed security for its clients throughout Pennsylvania. 

About 65% of Respondent’s employees are armed security guards. (Tr. 124; Stip. 3). In 1997, 

Respondent contracted with the PTC to provide armed security guards to protect PTC teller 

employees who delivered and collected money at PA Turnpike tollbooths. 

As part of their duties, Respondent’s armed security guards accompany the PTC teller 

employee in an unmarked, “standard civilian-issue cargo van (van), no windows on the sides or 

the back,” and no signage to identify what it was. (Tr. 79). The PTC teller employee drove the 

unmarked van and Respondent’s armed security guard would sit “shotgun seat with them.” (Tr.

95). The PA Turnpike detail generally started around 7:00 a.m. when Respondent’s armed 
7 

security guard met the PTC teller employee at a PA Turnpike tollbooth, accompanied the PTC 

teller employee in the unmarked van to about 6-8 Turnpike tollbooths, and then returned around 

noon. (Tr. 95-97). 

The duties of Respondent’s armed security guards while working the PA Turnpike detail 

focused on the security of the PTC teller employee who was responsible for driving the van and 

exchanging money at the PA Turnpike tollbooths. The armed security guards’ focus was not on 

the money being exchanged. As a guard of the PTC teller/driver of the van, Respondent’s armed 

security guard stood outside the van while the PTC teller entered tollbooths. The armed security 

officer guarded the PTC teller’s back while the PTC teller took money inside the tollbooth. The 

armed security guard would stay outside of the tollbooth, and then accompany the PTC teller

back into the van and leave. (Tr. 71-73, 87-89, 95-97). 

At no time, including in the event of a robbery, were Respondent’s armed security guards 

to handle the money. (Ex. 5 at 1-2). Rather, Respondent’s armed security guards served as a 

“deterrent” to robberies. (Ex. 5 at 1, section 2.0(C)). As a “deterrent,” the armed security guards 

were to act in accordance with Respondent’s Standard Operation Procedures while working the 

PA Turnpike detail. (Ex. 5). In the event of a robbery, Respondent’s policy for its armed 

security guards is “to be a deterrent only. The safety of the teller is the only goal. If a robbery is 

attempted/committed contact the PSP [Pennsylvania State Police] immediately.” (Ex. 5 at 2; Tr.

143). 

In this case, however, after being told of an armed robbery in progress, [redacted] left the 

van and Teller [redacted] sitting in it at a tollbooth and moved to a building looking for Mr. 

Briggs, who shot and killed him. (Tr. 152-55: Ex. 4, 12). After the incident, Respondent no 
8 

longer held the contract with the PTC for the PA Turnpike detail. The PTC now contracts with 

an armored truck company for that task. (Tr. 125).

The Incident 

At about 6:45 a.m., March 20, 2016, PA Turnpike Tollbooth Collectors [redacted] and 

[redacted]13 were in their tollbooth at the Fort Littleton Pennsylvania Turnpike Interchange, near 

mile marker 180 of the PA Turnpike. Mr. Briggs approached their tollbooth on foot wearing a 

camouflage mask and body armor. He pointed a hand gun at [redacted] and ordered both her and 

[redacted] into the breakroom of an adjacent building, where he ordered [redacted] to tie 

[redacted]’s hands behind his back. She did so. While Mr. Briggs was tying [redacted]’s hands, 

[redacted] got out of his restraints and took the hand gun away from Mr. Briggs. [redacted] ran 

back to her tollbooth and notified Pennsylvania State Trooper Highspire (presumably by 

telephone) that an armed robbery was in progress. 

As the PA Turnpike toll collection unmarked red van driven by PTC Teller [redacted], 

with Respondent’s armed security guard [redacted] (age 71) sitting in the passenger seat, arrived 

at lane 3 of the toll area at about 7:00 a.m., [redacted] saw Tollbooth Collector [redacted]

walking around a building holding a gun and missing a shoe. He also saw and overheard 

[redacted] telling Trooper Highspire that she and [redacted] had been robbed at gun point. 

[redacted] knocked on [redacted]’s passenger door and told [redacted] “they needed him because 

he was armed and the robber just went around the building.” [redacted] exited the van and 

circled around the rear of the van towards the south side of the building. [redacted] went around 

the front of the van and also moved toward the building. 

13 For privacy reasons and in view of his death as a result of the incident, only [redacted]’s first name is used in this 

decision.
9 

Mr. Briggs recovered a high-power assault rifle he had pre-positioned outside the 

building before the start of the robbery. Mr. Briggs fired three shots from his rifle striking 

[redacted] twice in the chest and killing him at the south side of the building. Mr. Briggs also 

struck [redacted] with one shot from his rifle while [redacted] was at the south side of the 

building. [redacted] then walked to the west side of the building and collapsed falling to the 

ground and died. 

Pinned in the van because the tollbooth was blocking him from opening the door of his 

van, [redacted] saw and/or heard the shootings. [redacted] then saw Mr. Briggs, wearing a mask, 

in front of his PA Turnpike red van. Mr. Briggs fired one shot into the van’s windshield. 

[redacted] put the van in reverse and while driving about 60 feet backwards, Mr. Briggs fired 

another shot into the van’s windshield. Fearing for his life, [redacted] put the van in park, exited 

the van and ran along the guardrail. As he was running, he heard Mr. Briggs fire two additional 

gun shots. He crouched lower and fell because he pulled his hamstring. He got up and jumped 

over a concrete Jersey barrier. He then saw Mr. Briggs get into and steal the PA Turnpike’s red 

van that had been earlier driven by [redacted]. Mr. Briggs drove the red van through the lane of 

the toll area heading towards SR 522. 

Pennsylvania State Troopers [redacted] and [redacted] then arrived at the scene. 

[redacted] showed them his identification badge and told them that the robber had just got into 

the PA Turnpike’s van and was driving away towards SR 522. The two troopers drove through 

the tollbooths towards SR 522. Mr. Briggs fired additional shots. Trooper Holdford positioned 

his marked patrol vehicle facing towards the PA Turnpike building. He heard two more shots 

coming from the direction of the red van that he could see through pine trees that were between 

himself and SR 522. Mr. Briggs fired two additional shots coming from the direction of the red 
10 

van. Using his personal patrol rifle, Trooper [redacted] shot Mr. Briggs one time in the upper leg 

femur, hitting an artery. Mr. Briggs died at the scene “fairly quickly” from loss of blood. (Tr. 

153-56; Ex. 9, at 1-4, 9, 12, 39). 

Respondent’s Uniform and Policies for Armed Security Guards 

While on duty, Respondent’s armed security guards wear a uniform which includes black 

boots, navy blue pants, a black belt, navy blue uniform shirt, and a gold badge denoting the 

guard’s rank within Respondent’s hierarchical structure. (Tr. 75-76). Each armed security guard 

supplies his own weapon. For example, Matthew Titus testified that he wore his Glock Model 

22.4 caliber handgun while on duty. (Tr. 76). 

In accordance with Respondent’s continuum of force policy, Respondent’s armed 

security guards were, in all instances, trained to use deadly force, and in some instances, allowed 

to use deadly force. (Ex. 4). The following is the relevant portion from Respondent’s use of 

deadly force continuum document: 
11 

(Ex. 4 at 1). All of Respondent’s armed security guards are required to complete “Act 235 

training.”14 (Tr. 128). 

Respondent also provides a Level IIIA ballistic resistant vest to its armed security guards. 

(Tr. 84, 147, 256-57; Exs. I (photograph of Level III-A), II (photograph of Level II-A; Jt. PreHr’g St. at ¶ 9). The parties stipulated that the chart below represents “the protection level of the 

various levels of ballistic-resistant vests, and what they stop and what they are meant to stop.” 

(Tr. 120).

Level IIA Density 3.5 Thickness 4mm 

Protection from: .22mms/.9mm/.45mm/.380mm/.38mm

Level II Density 4.2 Thickness 5mm 

Protection from: .22mms/.9mm/.45mm/.380mm/.38mm/.22mml

Level IIIA Density 5.9 Thickness 6mm

Protection from: .22mms/.9mm/.45mm/.380mm/.38mm/.22mml/.44mag 

Level III Density 25.9 Thickness 15mm 

Protection from: Same as Level IIIA and .30carb/5.56mm/7.62mm/.30-06 

Level IV Density 32.5 Thickness 20mm 

Protection from: Same as Level III and .30armor Piercing 

Ex. II (Level IIIA emphasis added in bold). 

Respondent actively encourages its armed security guards to wear the vest but does not 

require them to wear it. (Jt. Pre-Hr’g St. at ¶ 10). The record shows that reasons Respondent’s 

armed security guards wore the vest include: feeling like a target in the uniform, wearing a 

firearm, and working with money. (Tr. 53, 76-78, 99). The record shows that reasons

14 Act 235 training was described by many witnesses at the trial, but no legal citation to Act 235 is in the record. 

See, e.g., Tr. 97-98 (Ann Allman), 128 (Timothy Lenahan), 160-61 (Dr. Daniel Benny). Respondent’s 

memorandum regarding use of lethal force by its armed security guards suggests that it requires training in 

accordance with Act 235. See Ex. 4 at 1 (“All Schaad Armed Officers receive their certification and initial training 

from Harrisburg Area Community College. The curriculum is approved by the Pennsylvania State Police.”) Based 

on this record evidence regarding the relevance of Act 235, which is undisputed, the Court finds that Act 235 is a 

Pennsylvania firearm training requirement for Respondent’s armed employees.
12 

Respondent’s armed security guards did not wear the vest include: it can get too hot, and it can 

also be uncomfortable while driving. (Tr. 53, 150). Mr. Lenahan, one of Respondent’s 

supervisors, also told OSHA Compliance Officer (CO) Annette Ritner that the “older element 

didn’t prefer to wear them because of comfort.” (Tr. 46). 

Secretary’s Case

The Secretary’s witnesses included CO Ritner and OSHA Assistant Area Director (AAD) 

David Olah, who were responsible for the investigation of and citation issued to Respondent for 

the alleged OSHA violation. The Secretary also called four of Respondent’s armed security 

guards as witnesses, all of whom either were or are supervisors for Respondent’s armed security 

guards (Matthew M. Titus, John Spadafora, Ann Allman and Timothy Lenahan). The Secretary 

further introduced testimony from one expert witness, Dr. Daniel J. Benny. The Secretary also 

introduced an OSHA Letter of Interpretation (LOI), issued in 2013, regarding bulletproof vests 

and the standard that was cited in this case. The following is the relevant excerpt from the letter: 

Question: Does the Personal Protective Equipment (POE) standard, specifically 29 

CF[R] 191 0.132(a) apply to body armor (such as, but not limited to, bullet or stab 

resistant vests)?

Reply: If an employer chooses bullet proof vests and body armor to protect its 

employees on the job from gunshot wounds and knife stab wounds, the employer must 

select equipment that is adequate to protect against these hazards and must provide it at 

no cost to its employees. OSHA considers equipment or clothing such as body armor, a 

bullet proof vest or a stab-resistant vest, to be personal protective equipment that may be 

required by 1910.132(a) fn 1 and would not be ordinary clothing or everyday clothing for 

purposes of the exceptions for payment at 1910.132(h)(4)(ii) fn 2 or (iii) fn 3.” [sic] 

Fn 1: Protective equipment, including personal protective equipment for eyes, face, head, 

and extremities, protective clothing, respiratory devices, and protective shields and 

barriers, shall be provided, used, and maintained in a sanitary and reliable condition 

wherever it is necessary by reason of hazards of processes or environment, chemical 

hazards, radiological hazards, or mechanical irritants encountered in a manner capable of 

causing injury or impairment in the function of any part of the body through absorption, 

inhalation or physical contact[.] 
13 

Fn 2: Everyday clothing, such as long-sleeve shirts, long pants, street shoes, and normal 

work boots[.] 

Fn 3: Ordinary clothing, skin creams, or other items, used solely for protection from 

weather, such as winter coats, jackets, gloves, parkas, rubber boats, hats, raincoats, 

ordinary sunglasses, and sunscreen. 

(Ex. 10 at 1-2). 

Respondent’s Case 

In its defense, Respondent used two expert witnesses, Edward Sorrells and M. Rebecca 

Downing, to rebut the Secretary’s case. Respondent also introduced testimony from an armed 

security guard, John Derryman. Mr. Derryman is not Respondent’s employee, but a contracted

employee of the private security firm that provides armed security for a United States District 

Courthouse. 

HIGHLIGHTED FINDINGS OF FACT

The following findings of fact drawn out during the trial are the most influential to the

conclusions of law for this case: 

1) OSHA considers the hazard in this case to be exposure to a “typical holdup” involving 

a “lower-caliber handgun” based on the everyday money transfer over the course of 

Respondent’s armed security guards’ duties; not the sensational series-of-events that 

occurred on March 20, 2016. (Tr. 114).

2) It is undisputed that Respondent’s armed security guards face a hazard of being shot on 

the job. What is in dispute is the level of risk (composed of severity of harm and 

likelihood of occurrence) associated with this hazard at Respondent’s worksites. WalMart Distribution Ctr. # 6016, 25 BNA OSHC 1396, 1400-01 (No. 08-1292, 2015) 

(“[t]o establish the applicability of a PPE standard that, by its terms, applies only where 

a hazard is present,” Secretary must demonstrate that “there is a significant risk of harm

and that the employer had actual knowledge of a need for protective equipment, or that 

a reasonable person familiar with the circumstances surrounding the hazardous 

condition, including any facts unique to the particular industry, would recognize a 

hazard requiring the use of PPE”), aff’d in part and vacated in part on other grounds, 

819 F.3d 200 (5th Cir. 2016); Weirton Steel Corp., 20 BNA OSHC 1255, 1259 (No. 

98-0701, 2003) (“Whether there exists a significant risk depends on both the severity 

of the potential harm and the likelihood of its occurrence . . . .”). 
14 

3) It is undisputed that the severity of being shot while not wearing PPE is high, 

potentially leading to death. 

4) It is undisputed that a bulletproof vest would reduce the harm to an employee if the 

employee were shot in the torso. (Tr. 130). 

5) The Secretary’s expert opined that any guard is in a “high-risk position” when they are 

armed, handling money, and wearing a uniform, because they are a target for a robber. 

(Tr. 175-76). The Secretary’s expert did not specifically testify regarding the unmarked 

van in this case and Respondent’s 45-year assault-free history.

6) In contrast, Respondent’s expert testified that the specific factors surrounding the PA 

Turnpike detail “at a minimum give rise to the conclusion that this is not a high level 

of risk[.]” (Tr. 207). In making this risk assessment, Respondent’s expert specifically 

considered the act of money transfer, the unmarked van which masked the money 

transfer operation, and the zero instances of physical assault that had occurred in the 

previous 45 years. (Tr. 206-07, 214). Respondent’s expert testified that this was not 

an “armored car” situation leading up to and on March 20, 2016. (Tr. 214).

7) All expert witnesses, including the Secretary’s expert witness, agreed that 

Respondent’s industry does not require, and has never required, bulletproof vests. 

Voegele Co. v. Occupational Safety & Health Review Comm’n, 625 F.2d 1075, 1080 

(3d Cir. 1980) (“‘The question is whether a precaution is recognized by safety experts 

as feasible, not whether the precaution's use has become customary.’ However, it 

would be error totally to ignore or fail to consider prevailing industry standards.”). 

(citation omitted). 

8) It is undisputed that Respondent went beyond the industry norm to purchase and 

provide bulletproof vests to its armed security guards. Respondent spent $30,000 in 

2008 to purchase tailored-fit ballistic vests, which took 8-9 weeks to manufacture. 

Respondent subsequently spent $18,000 in 2016 for more ballistic vests. (Tr. 130-35).
15 

RELEVANT TESTIMONY 

CO Annette Ritner

CO Ritner testified regarding her inspection of Respondent’s workplace.

15 AAD Olah

called her on Tuesday, March 22, 2016 to give her the assignment.16 She went first to the main 

office of Schaad in York. She presented her credentials and met with Messrs. Wantz and 

Lenahan. Mr. Wantz told her he had called OSHA that morning, but CO Ritner did not know 

that at the time of the inspection. She conducted an opening conference. Messrs. Wantz and 

Lenahan described the event to CO Ritner together. CO Ritner asked Mr. Wantz about

Respondent’s training and PPE requirements. She learned that Respondent provided bullet proof 

vests to its employees, but that [redacted] was not wearing one on the day of the incident. Mr. 

Lenahan told CO Ritner that “the older element didn’t prefer to wear them because of comfort.” 

(Tr. 43-46).

According to CO Ritner, Respondent had the PA Turnpike contract with the PTC since 

1997. All of Respondent’s security officers have “been law enforcement – had to provide 

documentation to prove that they were previous law enforcement officers.” CO Ritner thought 

to ask about ballistic-resistant vests because [redacted] was shot in the torso and “that would 

protect against bullet wounds to the torso.” CO Ritner had seen bulletproof vests that go under 

15 At the time of the trial, CO Ritner had been an OSHA CO for 20 years. She has a Bachelor of Science degree in 

business administration, and also Bachelor of Science and Master of Science degrees in safety sciences from 

Indiana University of Pennsylvania. CO Ritner has performed 20-30 fatality investigations over 20 years involving 

various industries including construction, demolition, and manufacturing, like metal fabrication shops, machine 

shops, boundaries, warehouses, and food processing. She has inspected cases resulting in OSHA citations for 

improper or lack of PPE such as head protection, hand protection, foot protection, clothing, and fire-resistant 

clothing. (Tr. 41-43). 

16 CO Ritner also testified that the incident had been reported in the media, so she was already aware of the matter 

when it was assigned to her. (Tr. 43-44).
16 

and over clothing. Messrs. Wantz and Lenahan said the vests that “their people wore” were 

“level 3A.” CO Ritner viewed a security officer wearing a bulletproof vest during their meeting, 

and, even though the vest was worn underneath the security officer’s shirt, CO Ritner “could see 

that she had it on, because it was bulky.” (Tr. 46-48; Stip. 8).

CO Ritner researched the following during her investigation: the OSHA directive

regarding workplace violence, National Institute of Occupational Safety and Health (NIOSH) 

publications on the security and protective industry, Bureau of Labor Statistics information on 

that industry, and the OSHA citation database for previous similar instances (where employees

are “shot on the job”). During the investigation, CO Ritner subpoenaed the following 

documents: the state police investigative report, the contract between Pennsylvania and 

Respondent to see the description of the work detail or the scope of work, Respondent’s safety 

and health programs and PPE requirements, a list of Respondent’s current employees, and 

information on the vans that were used on the PA Turnpike detail.17 (Tr. 48-50).

CO Ritner interviewed two employees over the phone: Robert Burford told her that he 

had worked for Respondent about 10-14 days per month, including during the previous six

months of the OSHA investigation. He had taken lethal weapons training and was a retired 

Pennsylvania State police officer. He had to provide his own weapon, and he had his own 

bulletproof vest. Mr. Burford told CO Ritner that he always wore his vest and wore a uniform

that Respondent required him to wear. He told her that “he did not feel afraid, but the fact that 

they handled money, there was always a threat.” (Tr. 54-55).

17 CO Ritner did not receive a copy of the police report prior to issuing the citation because the police were not 

finished with the investigation yet. (Tr. 50). 
17 

CO Ritner also interviewed Jeffrey Aster, who was a “very part-time” but current 

employee of Respondent. For example, he had worked for Respondent only one time since the 

incident six months prior to their interview. Mr. Aster carried his own weapon on the job, he had 

lethal weapons training, and was previously a police officer. Mr. Aster told CO Ritner that he 

was issued a bullet-proof vest, and wore it “mostly,” but not when it was hot, “like if it was 95 

degrees or more.” Mr. Aster worked the northeast extension of the PA Turnpike, his hours being 

5:00 a.m.-12:00 noon.18 Mr. Aster told CO Ritner that he had to wear a uniform – but did not 

like it because he thought it drew attention to the operation that involved money. (Tr. 50-54).

CO Ritner wrote the citation. (Tr. 56-57; Ex. 1 at 8). She proposed an alleged section 

1910.132(a) violation based on her research. CO Ritner considered the combination of money 

and firearms contributed to a “struck-by hazard from bullets,” and testified that “a bulletproof 

vest is designed to protect against that.” She also considered the OSHA National Office’s LOI, 

where OSHA stated that it considers bulletproof vests as personal protective equipment. (Tr. 58; 

Ex. 10). She relied on this letter to make a recommendation to issue the citation here. She 

testified that OSHA letters of interpretation “provides us guidance on – one how to – how 

standards apply and how to address hazards.” (Tr. 56-58).

On cross-examination, CO Ritner testified that the alleged violation was based upon the 

wording of section 1910.132(a)19 and the LOI. (Tr. 59; Ex. 10). She agreed that the LOI did not 

include mandatory language that said if an employer supplies bullet proof vests to its employees, 

they must wear the them. (Tr. 59-60). She further agreed the LOI said OSHA considers bullet 

18 The northeast extension of the PA Turnpike runs north to south in the Lehigh valley; the PA Turnpike runs east to 

west. (Tr. 54).

19 CO Ritner testified “that it [section 1910.132(a)] requires an employer to provide personal protective equipment 

where there are hazards that necessitate the use and the environment that employees work in.” (Tr. 60). She also 

said, “the standard says that if there is a hazard that necessitates the use of personal protective equipment then it’s 

required.” (Tr. 61). 
18 

proof vests to be PPE that “may be required by 1910.132(a).” She also agreed that the LOI did 

not say bullet proof vests are required. The CO agreed that, even though there are four or five 

levels of bulletproof vests, the regulation does not specify which level would satisfy the 

regulation requirements. In her opinion, the requirement for an employer to provide a 

bulletproof vest and require its wear was triggered by the fact that Schaad’s employees “carried 

firearms” and “were involved in an operation with the protection of money and valuables, so 

they had an exposure to a struck-by hazard of bullets.” CO Ritner said that [redacted] “died of 

multiple bullet wounds to the torso, and a bullet-resistant vest would protect against that.” She 

said that [redacted]’s exposure “to a struck-by hazard from bullets” required Schaad to provide 

bullet proof vests to its employees and mandate their wear. The CO said that the “armed robber” 

caused the hazard by firing bullets at [redacted]. (Tr. 60-64).

She also agreed that Mr. Wantz told her that Respondent had never had an employee 

killed before. In addition, CO Ritner testified that Respondent had no other previous incidents of 

being confronted with deadly force. She testified that “studies” indicate that security officers

have “a higher instance of fatalities” and that a “risk factor” in the occupation “was protecting 

valuables and money.” She said that a study stated that “in 75 percent of the time security 

officers die because of being shot.” CO Ritner agreed that these studies are not in the regulation 

itself. She agreed that each citation “comes down to the evaluation of the individual investigator 

... because I propose the citation.” (Tr. 60-67). 

Matthew McGarvey Titus

Mr. Titus is a Legal Assistant II for the Pennsylvania State Police in the PICS Unit, 

where he runs background checks for firearm purchases. He also works as a part-time security 

officer for Respondent. Mr. Titus was first hired by Respondent in January 2007 as a lieutenant 
19 

and testified that he was issued a Level II vest around 2010 or 2011.20 Mr. Titus became a 

supervisor for Respondent in 2014. Her served for six months as a supervisor for Respondent 

until February 2015, when he left for his current position for the Pennsylvania State Police. 

Before being hired by Respondent in 2007, Mr. Titus had also previously served as a police 

officer for the Southwest Regional Police Department in York County for about a year. (Tr. 70-

72, 80-81).

Mr. Titus has worked the “east/west” PA Turnpike detail for Respondent, where he 

“provided escort to the money vans that went up and down the turnpike.” He worked the detail 

“once or twice” before the incident, and he worked as a fill-in officer for a few weeks “shortly

after the incident.” His primary job duty on the PA Turnpike detail was to escort the individuals 

transporting money; their safety was his primary concern, he was “not the keeper of the money.” 

He said that the security officers “did not touch money at all.” They were there as a deterrent. 

Mr. Titus explained that he “stayed with the driver and the change maker.” (Tr. 71-73, 75, 78). 

The duties of the driver, also known as a “teller,” included driving “from turnpike station 

to turnpike station,” and picking “up bags to be placed into the back of the van, which were then 

transported back to headquarters.” Sometimes another “teller” would sit in the back of the van 

preparing a bag of ones, fives and tens for the PA Turnpike tollbooth to make change. Mr. Titus 

testified that he did know the exact amount of money that the tellers handled, but it “struck him” 

as a large amount of money because of the “five-foot by two-foot trays, arranged in 

denominations” of money, and anywhere between 10 and 50 bags of money that the van kept 

“locked” in the back. The tellers exited the van at every PA Turnpike tollbooth (also known as a 

20 Mr. Titus testified that he believed the vest was Level II, but he did not know for certain. (Tr. 77). He also did 

not know who manufactured his vest. (Tr. 83). Based upon the parties’ stipulation and Invoice # 33862, dated 

January 9, 2009, the Court finds that Mr. Titus was actually issued a Level III-A bullet proof vest that was 

manufactured by First Choice Armor and Equipment. (Tr. 84; Ex. 6 at 3).
20 

turnpike station) they stopped at to go in and make change, pick up bags and bring the bags back 

to the van. Mr. Titus estimated that they stopped at about 8-9 stations per route. (Tr. 71-75).

While performing this job, Mr. Titus wore the “Schaad uniform,” which included black 

boots, navy blue pants, black belt, navy blue uniform shirt, gold badge and a bulletproof vest. 

Mr. Titus estimated that the vest weighed about 5 to 6 pounds. His gold badge said Lieutenant 

“because that was the rank” he held when he was last issued a badge. According to Mr. Titus, 

other Schaad rankings were officer and captain. (Tr. 75-76, 82).

Mr. Titus was also armed with his own “Glock Model 22.4 caliber handgun” during the 

detail. He wore a Level III ballistic-resistant vest issued to him by Schaad.21 He testified that 

Respondent did “not necessarily” require him to wear the vest, “[t]hey just said this is the vest 

that we’re issuing.” As a manager, Mr. Titus himself never enforced any such a requirement for 

the guards he supervised. He, however, wore the vest when he worked the detail because: 

Any time I am around a large amount of money when I work as a security 

officer, I feel much more comfortable having the vest on. It may not be visible 

to anyone else, what we were carrying, but I knew, and that made me more 

comfortable, to wear the vest [in case] someone tried to rob the van [because] 

he’s a pessimist by nature. 

(Tr. 76-78). 

On cross-examination, Mr. Titus testified that he never handled the money and that he 

was there as a “deterrent.” The van was a “standard, civilian-issue cargo van, no windows on 

the sides or the back,” with no signage. He was not a supervisor on the PA Turnpike detail, just 

a “fill-in officer.” He would sit in the passenger front of the van, referred to by others as the 

“shotgun” seat, which had a window. (Tr. 78-79).

21 See n14.
21 

John Daniel Spadafora, Sr. 

As a supervisor for Schaad, Mr. Spadafora answers alarms and checks on the guards, to 

see if they are following rules and regulations. He has worked at Schaad for 8 years. He was a 

regular guard until he got his “235,” which allowed him “to carry a gun as a guard, around 

2010.” Previously, Mr. Spadafora had served 27 years in law enforcement (full and part-time) in 

West Manchester township, York township, and Jackson township as a detective for ten years, 

Anaheim City in California, and Biglerville police departments. (Tr. 86-87).

Mr. Spadafora has worked the PA Turnpike detail three times: “once or twice before the 

incident” he worked the northeast extension for five days when someone was on vacation, and 

once he worked the Harrisburg extension for two or three days, and then he worked [redacted]’s 

schedule for a couple days after the incident. Mr. Spadafora described the PA Turnpike detail as 

follows: as a guard of the driver of the van, the guard stood outside the van while the driver 

entered the tollbooth and guarded the driver’s back while the driver took the money inside. The 

guard would stay outside of the tollbooth building, and then accompany the driver back in the 

van and leave. Mr. Spadafora estimated that they stopped at about 6 or 7 tollbooths along the 

line from 5:00 a.m. to 10:30 or 10:45 a.m. He testified that he was never told how much money 

was in the van. (Tr. 87-89).

Mr. Spadafora testified that he wore a uniform. Schaad gave him a vest, but never said 

he had to wear it. He sometimes wore “my vest” and sometimes “I didn’t.” Before the incident, 

he wore the vest when it was not “real hot” because in the summertime he would have to 

“change my t-shirt twice on an eight-hour shift.” He testified that, “I didn’t feel secure or that 

nothing would happen to me because I had a vest.” Mr. Spadafora testified that he wore vests 

that were supplied to him when he served on police forces, starting in 1972 with York Township, 
22 

and the Anaheim, Jackson and York Township police forces mandated that he wear them. (Tr.

89-91). After the incident, he said he was required to wear his vest. (Tr. 89). 

Ann Marie Allman

Ms. Allman is a supervisory agent with Schaad. She supervises 15 armed and unarmed 

guards, three armed at the most. Ms. Allman rose up the ranks at Schaad, starting as a courier in 

2011, becoming a supervisor in 2014, and then she was promoted to lieutenant. Ms. Allman has 

a law enforcement background. She started at the dispatch center with the county, and then she 

worked for the York County Sheriff’s Department, and then for the Baltimore City Police 

Department as a sworn officer.

22 (Tr. 93-94).

Ms. Allman was a fill-in guard for the PA Turnpike detail from 2014 to the “current 

date.” Ms. Allman testified that Schaad no longer has that account. (Tr. 94-95). Her tasks on 

the PA Turnpike detail included: meeting with the driver, loading up everything, riding “shotgun 

seat” with them, stopping at each turnpike interchange tollbooth where they handled their 

“money situation,” and then continuing on to the next interchange station. While the driver was 

out of the van and taking the money, Ms. Allman “stood by the van, that was where we were 

supposed to be.” She got out of the van because “that’s where I could see the driver.” Ms. 

Allman did not know how much money the driver handled. She testified that there were several 

bags. The purpose of bringing the money to tollbooths was to do the “money exchange,” for 

example, sometimes “they needed quarters, or whatever would make their change.” Ms. Allman 

estimated the they did 8 stops during the run. They would start the actual run around 7:00 a.m. 

and would finish by noon. (Tr. 95-97).

22 Ms. Allman testified that a “sworn officer” was like a standard police officer on the street but did not have the

power of arrest. (Tr. 93-94).
23 

Ms. Allman testified that while she was on the detail she was armed with a Glock 9-

millimeter gun. She received Act 235 training, schooling that is run by the state police in the 

classroom as well as field training. According to Ms. Allman, to qualify as Act 235 trained, the 

student must achieve a certain “score” with the weapon. Ms. Allman testified that only armed 

Schaad guards go through the Act 235 training. (Tr. 97-98).

Ms. Allman testified that she always wore a ballistic-resistant vest while serving on the 

PA Turnpike detail. Schaad provided her the vest with the uniform but did not provide 

instructions with it. Schaad never mandated that she wear the vest. But, Ms. Allman testified,

“if I had a firearm on, I had a vest on,” explaining: “growing up in a law enforcement family, I 

was used to seeing that as part of the uniform and it just was instilled in me.” Now, according to 

Ms. Allman, after the incident, armed Schaad officers must wear a vest. Ms. Allman testified 

that, as a supervisor, “the ones on my shift get checked [to verify they are wearing a vest].” (Tr.

98-99).

Ms. Allman testified that the decision to wear the vest was a “personal choice.” She 

received a Level III vest in January of 2011, when she started at Schaad. Ms. Allman came to 

Schaad qualified under Act 235 training as an armed person, so when Schaad issued her the 

uniform, Schaad also issued her the vest. (Tr. 100-01). Ms. Allman was issued a newer vest, a 

Level II, after the incident. (Tr. 101-02). According to Ms. Allman, she testified that the vest 

protects against a .38 caliber bullet and .40 caliber bullet, but Ms. Allman does not know 

“exactly all of them.” (Tr. 100-02).
24 

David Olah 

David Olah is the OSHA Area Director (AD) for the Harrisburg Area OSHA office. (Tr.

103). He was the AAD at the time the citation was issued and was promoted to AD in October 

2016. As AAD, Mr. Olah supervised five to six COs, including CO Ritner. AAD Olah reviewed 

inspection case files and approved or made further recommendations to the AD based on facts. 

He was responsible for verifying legal sufficiency of OSHA citations. (Tr. 103-05).

AD Olah described how OSHA developed the proposed penalty for this OSHA citation. He 

testified regarding the maximum statutory penalty limit for a serious violation. “At the time that 

this citation was issued, [$12,471] was the maximum penalty for a serious violation.”23 He also 

testified to the criteria OSHA uses to propose a penalty: severity, probability, company history, 

good faith, and size of the company. He testified that he participated in the development of the 

proposed penalty, which he testified to as follows: 

1) No discount for good faith because the citation “carried a gravity-based penalty of a high 

gravity greater probability,” 

2) No size discount because the company had greater than 251 employees at the time of the 

inspection, 

3) High severity because “the result of a struck-by hazard from a bullet to the torso could 

result in death,” 

4) Higher probability because the employee was at a greater probability of being robbed due 

to “the assets that were being handled.” 

(Tr. 105-11; Ex. 1 at 8). AD Olah testified that due to these factors, “there was no increase nor 

decrease to the actual history.” He then testified that his “recommendation to the area director 

23 AD Olah referred to the summer 2016 adjustment to OSHA penalties (from $7,000 to $12,471) legislated by 

Congress the prior fall. (Tr. 106). The Court notes that OSHA’s statutory maximum penalties were increased 

pursuant to the Inflation Adjustment Act of 2015, Pub. Law 114-74 § 701, 129 Stat. 559-602 (2015). OSHA 

established new penalties for violations that occurred after November 2, 2015. 81 Fed. Reg. 43430 (July 1, 2016). 

The violation in the instant case occurred after November 2, 2015, and was assessed between August 1, 2016 and 

January 13, 2017, thus the statutory maximum of $12,471applies. 
25 

was not changed by the [acting] area director at the time. So he [Acting AD at the time] did not 

exercise any discretion in this case.” (Tr. 111).

On cross-examination, AD Olah testified that the valuable assets and the multiple daily 

interactions affected the probability determination. He agreed that of the multiple daily 

interactions over the years that factored into the probability determination, none of them 

involved any interaction. (Tr. 115-16). AD Olah also understood that PA Turnpike tollbooth 

collector [redacted] “engaged in an altercation with the perpetrator and actually wrestled [a] 

handgun away from him,” and the second weapon, a rifle, was used by the robber to kill

[redacted]. (Tr. 115-16, 118). Regarding the specifics of the gun, the bullet, and where 

[redacted] was shot, AD Olah deferred to the police incident report. (Tr. 115-17). 

He testified that the actual death in this case was not a factor into the probability

calculation. He further testified that the fact that a protective vest may not have made any 

difference against the high caliber of bullet used in this case also did not affect “the ultimate 

outcome.” (Tr. 112-13). He stated, “Ms. Ritner’s investigation showed that typical holdups, 

typical robberies would involve a lower-caliber handgun,” and that while “PPE doesn’t prevent 

injuries, [] it reduces the likelihood of an injury; in this case, struck by a bullet.” (Tr. 114). AD 

Olah said he did not know of any incidents involving the shooting of an armed guard that 

occurred throughout the years Schaad completed its daily trips to the PA Turnpike tollbooths 

prior to March 20, 2016. (Tr. 114-15). 
26 

Timothy Patrick Lenahan 

Mr. Lenahan has been the General Manager of Schaad since March 2007. Mr. Lenahan 

began at Schaad in May 1999 as a “fill-in” (or area supervisor), trained for 90 days, became 

certified that July in Act 235, and was responsible for 2700 man-hours of security service for 

armed and unarmed security guards until August 2005, when he went back as a military 

contractor. Mr. Lenahan came back to Schaad in March 2007 as general manager. He served in 

the military, where he worked as an electronic technician, he was responsible for security at a 

nuclear facility overseas, and worked in various staff positions, as a recruiter, and in intelligence. 

He retired honorably from the military after completing 21 years of service. (Tr. 122-24). 

Mr. Lenahan’s day-to-day obligations at Schaad included overall operation, training 

supervisors, management, marketing, and recruiting. Mr. Lenahan answers to Mr. Wantz, the 

president of Schaad. Schaad presently has 380 employees, mostly security guards, 

approximately 65% of which are armed. Based on the incident in this case, Schaad no longer 

holds the PA Turnpike detail contract with the PTC. Mr. Lenahan understands that the PTC no 

longer allows its own employees to do “money runs,” PTC now contracts with an armored car 

service that does it all. Schaad had held the contract with PTC since before Mr. Lenahan started 

at Schaad. (Tr. 123-25). 

Mr. Lenahan authored Respondent’s “Use of Lethal Force/Use of Force Continuum” 

document, undated, which memorializes Respondent’s policy regarding armed security guards 

and the use of their weapon. (Tr. 126-27; Ex. 4). Mr. Lenahan explained: 

It’s conveying to our officers that there is a use of force continuum. Basically,

our presence as a security officer, and honestly whether it’s armed or 

unarmed, could be level or the first step in the use of force. The use of force 

goes up and down. We defined this document to further guide our armed 

employees in what they – they understand that equal to or less force is what 

we apply. In other words, if someone comes at me with a whiffle ball bat, 
27 

I’m not going to draw my weapon and shouldn’t have. I’m going to retreat 

because my life is not threatened. I’m not in fear of my life at that point. And 

we want to explain through training that they understand that. 

(Tr. 126-27; Ex. 4). Mr. Lenahan testified that this document is only given to the armed security 

guards “because they are carrying a weapon.” (Tr. 127). It is not given to the unarmed guards 

“because our unarmed guards don’t have deadly force, or the capability of using deadly force. 

They are unarmed guards.” (Tr. 127; Stip. 11). He stated that the use of deadly force is not 

taken lightly, and this policy was true in March 2016. (Tr. 127).

Mr. Lenahan testified that all armed security guards were required to attend Act 235 

training and be Act 235 certified. He explained the following aspects of Act 235 training and 

certification: 

Act 235 training for – it’s called lethal weapons training. It is provided by – 

I went to Harrisburg Area Community College. The curriculum is, I guess, 

controlled by the State police. And it’s a 40-hour course, 20-hour 

administrative, 20-hours of range work or range shooting, and qualification 

thereof. Upon completion of that training, and prior to that training you have 

to go through a psychological evaluation. You have to go through a medical 

physical with a doctor, and a fingerprint background investigation. 

(Tr. 128).

 Mr. Lenahan also testified to Respondent’s “Body Armor Policy and Procedure,” dated 

“Revised September 29, 2016.” (Tr. 128-29; Ex. 7). This policy document was drafted by a 

third party.24 Mr. Lenahan did not know if the policy was in place before the March 20, 2016 

incident. Mr. Lenahan agreed that, “body armor provides a significant level of protection.” (Tr.

129-30).

24 The Body Armor Policy and Procedure stated, in part:

PROCEDURES: All employees assigned to identified duty assignments that places them in a position of where 

there is a possibility of criminal activity which exposes an employee to the threat of lethal force being used against 

them in the performance of their assigned duties and responsibilities shall be issued agency-approved body armor.

(Ex. 7 at 1).
28 

Mr. Lenahan testified to his experience regarding Respondent’s purchase of ballistic vests 

for its employees. Mr. Lenahan first discussed the matter with Mr. Wantz in 2008. Mr. Lenahan 

testified: “But we just thought it was – let’s not do what the industry standard is and do nothing, 

because it’s not mandated. We couldn’t find anywhere where a statute, a law, local, state, 

federal, defined body armor as a mandatory requirement for safety gear. So we were proactive, 

we purchased it and we tried to supply the best level of safety for our offices.” 

(Tr. 130-31). Mr. Lenahan thought Respondent paid $28,900.00 in about November 2008 for 

ballistic vests for its employees.25 (Tr. 132-34; Ex. 6). Respondent did not charge its employees 

for the body armor. The vests were personalized for fit. Employees names were placed inside 

the vests when shipped from the manufacturer. Mr. Lenahan identified the names of thirteen 

employees listed on First Choice Armor and Equipment invoices that worked on the PA 

Turnpike detail. (Tr. 131-33; Ex. 6 at 2-8). Respondent bought Level III-A vests based on the 

vendor’s recommendation of “best bang for our buck.” Respondent also ordered “extra pieces” 

in “ordinary sizes.” (Tr. 138; Stip. 9). 

Respondent also made a subsequent purchase of $18,000 “in the last year.”26 (Tr. 134). 

For this purchase, Mr. Lenahan testified that Respondent used U.S. Armor. U.S. Armor’s 

representative recommended Level II body armor and told him that nearly every law 

enforcement agency in York County were “coming to use a Level II vest.” He also said U.S. 

Armor’s representative told him that all of its clients were law enforcement and that he [the 

25 The body armor was purchased from First Choice Armor and Equipment. See: a) Invoice # 33862, dated 

December 23, 2008, for $23,030.00, b) Invoice # 34090, dated January 19, 2009 for $770, c) Invoice # 35189, dated 

March 13, 2009 for $5,326.56, and d) Invoice # 39846, dated November 10, 2009 for $1,163.48. (Tr. 132-34; Ex. 

6). Together these four invoices total $30,290.04. 

26 Mr. Lenahan testified that Respondent also purchased a handful of vests in the interim period between 2010 and 

2016. (Tr. 138). 
29 

representative] did not know of any security company that U.S. Armor provided body armor to 

in Respondent’s area. (Tr. 134-36). 

Regarding the difference between levels of vests, according to Mr. Lenahan, “[t]he 

difference is simply Level III-A will stop a .44 caliber and a Level II won’t.” “Why are they 

doing Level II versus III-A? Comfort. Same level of protection minus a .44 caliber.” (Tr. 136). 

Mr. Lenahan explained: “It’s more comfortable. My officers agree today. Because if you don’t 

get somebody to want to wear it, they’re not going to wear it. We want them to wear it because 

we care about every life and every officer that puts a gun on or body armor.” (Tr. 136).

In 2009, Respondent “encouraged everyone to wear” the bulletproof vest but did not 

require everyone to wear it. (Tr. 136-37; Stip. 10). Mr. Lenahan testified: 

Our law enforcement community walks down the street today. I mean, it’s 

like they are looking over their shoulder. Well my armed officers look like 

cops in some respects. They’re wearing blue on blue with a badge and a gun. 

And that person that’s out to do harm, he doesn’t know the difference. 

Because he didn’t see that patch that said Schaad, because he doesn’t know 

what that is.

(Tr. 137).

Regarding other types of PPE, Mr. Lenahan testified that he did not know how much 

Schaad paid, if at all, for fall protection equipment, lanyards, or lifelines. He testified that 

officers brought their own mesh gloves. Respondent provided 50% for steel toed boots. Mr. 

Lenahan also testified that Respondent provided specific PPE for the individual facilities that 

they provided service for such as hairnets, safety glasses, and rubber gloves. (Tr. 138-40).

Regarding Schaad’s armed security guard duties, Mr. Lenahan testified that when he 

arrived at Schaad in 1999, the duties were memorialized on a five by seven laminated placard, 

entitled “Security Officers PA. Turnpike Standard Operations Procedures”. (Tr. 140-41; Ex. 5). 

Mr. Lenahan testified that, when he became a supervisor, he took the placard and made an 
30 

electronic copy of it. (Tr. 141; Ex. 5). Mr. Lenahan testified and agreed that the document as 

written applied to Schaad’s armed security guards on the PA Turnpike detail, including the 

“general scope” and “duties” sections. (Tr. 142-44; Ex. 5). The following is the relevant portion 

of the document: 

(Ex. 5 at 1-2). Regarding the use of the word “deterrent” in section 2.0C, under “Duties,” Mr. 

Lenahan testified the following: 
31 

People that want to perpetrate a crime, they -- they want to take the path of 

least resistance. So if we have uniformed, armed officers and they're visible, 

that's a deterrent. People generally don't want to confront. It's like going to a 

grocery store and robbing it. If there's a armed guard standing in the door, 

there's four more down the street that don't have one. 

(Tr. 143; Ex. 5).

Regarding the bulletproof vests that Schaad issued to its armed security 

guards, Mr. Lenahan testified that Schaad “[e]ncouraged everybody”, including 

[redacted], to wear them. 

So alls I can hope and pray is these officers in the field, through the State of 

Pennsylvania, that were issued a vest, that were stationed in Pittsburgh or 

Philadelphia, in the Northeast Extension, would put that vest on and wear it. 

(Tr. 145-46). He testified that he believed that Messrs. Titus, Spadafora and Robert Stover and 

Ms. Allman always wore their bullet proof vests.27 Mr. Lenahan testified that Respondent issued 

vests “to everybody that was armed and/or wanted one.” He testified that [redacted] had a vest

that was issued by Respondent; but chose not to wear a vest on the day of the incident. (Tr. 145-

46, 152). 

Mr. Lenahan described the differences between the Level II bulletproof vest and the 

Level III-A bulletproof vest. (Tr. 147-51; Exs. I (Level III-A), II (Level II)). The Level II vest

can be worn outside the uniform (or as an “outer carrier”) and is more comfortable in terms of 

heat and when driving. According to Mr. Lenahan, it also comes “in concealed fashion” where 

“it could be worn under the duty uniform.” It has a plate for added protection to cover the vital 

areas. According to Mr. Lenahan, it will stop a .357 magnum, but will not stop a .44 magnum. 

(Tr. 150-51). In contrast, the Level III-A vest will stop a .44 magnum. (Tr. 150-51). The Level 

III-A is worn under the uniform, is fitted for the individual guard, has Kevlar squares to provide 

27 But, as noted earlier, Mr. Spadafora testified that sometimes he did not wear his vest. (Tr. 89-91).
32 

protection in the front, back and sides, and also has “soft trauma plates,” which provide 

additional protection covering the vital areas. According to Mr. Lenahan, however, Schaad 

bought and provided the more comfortable Level II vests for its armed security guards because 

“you want it more comfortable so that they want to wear it.” (Tr. 150). 

On cross-examination, Mr. Lenahan testified that he knows of no other security company 

in the area that provides bulletproof vests for their employees. (Tr. 151). He said [redacted] had 

a law enforcement background. (Tr. 151). Mr. Lenahan testified that he negotiated Schaad’s 

contract with the PTC. He said in the event of an armed robbery, it was PTC’s policy for its own

employees to “always listen to and do whatever the armed robber wants you to do.” (Tr. 152-

53). Based on his understanding of the “556-page [police] report,” Mr. Lenahan testified that 

[redacted], the deceased PTC tollbooth collector, “absolutely” did not follow that policy. (Tr.

153, 156). He also testified based on his understanding of the police report and who the armed 

robber was (a retired 25-year veteran state trooper, “resident expert,” “trained professional,” who 

“knows everything”), a bulletproof vest would not have made a difference in this case because 

Mr. Briggs would have seen the vest and shot [redacted] in the head. (Tr. 154-55). He noted 

that the police who responded to the scene shot Mr. Briggs, who was wearing a camouflage mask

and what looked like tactical “SWAT-type” body armor, “in the upper leg femur, in an artery, 

and he bled out.” (Tr. 155-56; Ex. 9 at 4). 

On re-direct examination, Mr. Lenahan conceded his testimony is not based on 

witnessing any of the events that took place on March 20, 2016, rather his testimony was based 

on his knowledge of who the individual was, and his own 21 years of military service. He also 

testified that PTC gave training for robberies to all of its employees, including tellers and 
33 

tollbooth collectors. The PTC tollbooth collector, [redacted], who was also killed at the scene by 

Mr. Briggs, participated in that 30 to 45 minutes of training on March 17, 2016. (Tr. 153-58). 

Dr. Daniel J. Benny 

Without objection, the Court found Dr. Benny qualified to serve as an expert in securityrelated matters. Dr. Benny testified as an expert in security-related matters for the Secretary. 

(Tr. 174). Dr. Benny is a sole proprietor licensed private investigator, and a security consultant. 

(Tr. 160) He testified that he teaches “for several universities online” courses that include 

criminal justice, security, national security, intelligence, and aviation security. He is also a Statecertified part-time lethal weapons Act 235 instructor at the Harrisburg Area Community College. 

(Tr. 160-61). Dr. Benny testified that he has a Ph.D. in criminal justice from Capella University

in 2010, a Master of Arts in Security Administration from Norwich University, a Bachelor-inArts degree in Security Administration from Alvernia College in 1982, and Associate degrees in 

Police Administration and Commercial Security from Harrisburg Area Community College.28 

(Tr. 161-62, 167-68). 

Dr. Benny has worked in law enforcement since 1975 for various organizations. For 

example, Dr. Benny was the deputy director of security, police chief for the Navy Ships Parts 

Control Center in Mechanicsburg, Pennsylvania from 1984-1990. (Tr. 162, 171). He testified 

that he “was responsible for an approximate 80-person DOD Navy Police Department and also 

all of the physical security related to that position; intrusion detection, access control, badges and 

things of that nature.” (Tr. 171). He testified that it was an armed position, but he did not wear a 

ballistic-resistant vest. (Tr. 171). He testified that the position was supervisory in nature. (Tr.

172). 

28 He testified that he obtained both his Ph. D. and Masters’ degrees as a non-resident student from online or 

correspondence programs for accredited schools. (Tr. 167). 
34 

Dr. Benny also was the director of public safety chief of police for Elizabethtown College 

in Elizabethtown, Pennsylvania in the early 1990s. (Tr. 162-63). He testified that, in that 

position, he “was able to mandate a policy for ballistic vests. And we bought vests for our 

officers, and they were required to wear them.” (Tr. 162-63). But he testified “we were 

unarmed” in that position, yet still wore vests. (Tr. 173). He has never been personally 

employed to provide armed security services. (Tr. 172-73). 

Dr. Benny has authored “hundreds of articles over the past 40 years for professional 

magazines, to include security management.” He has also authored and published four books 

related to the security industry. (Tr. 163). Dr. Benny is a member of many professional 

organizations related to the security industry, including ASIS International29, which he described 

as “the oldest and the most prestigious security organization internationally.” (Tr. 164). Dr. 

Benny holds his highest security certification, Certified Protection Professional (CPP), as well as 

his Professional Certified Investigator (PCI) certification, through ASIS. He has been an ASIS 

member since 1975. (Tr. 164-65). 

Dr. Benny testified that he has participated as an expert in 20 cases involving securityrelated issues: all of them where he provided a written expert opinion and three of them where 

he testified, including one where two security officers chased an individual that led to their 

death. (Tr. 165). 

Dr. Benny opined that armed guards hired to protect persons who transport money and 

valuables face a hazard of being shot because individuals that commit robberies focus on 

individuals transporting money.30 (Tr. 175-76). Dr. Benny testified:

29 Dr. Benny testified that ASIS International used to stand for “the American Society for Industrial Security, but 

since they went international they just stayed with ASIS.” (Tr. 164-65).

30 He testified that it was his understanding that about $58,000 was in the van driven by [redacted] that was stopped 

at the tollbooth at the time of the incident. (Tr. 175; Ex. 8 at 5).
35 

Well any time security involved with protecting money, especially large sums 

of money, it’s a high-risk position because robberies do occur. And 

individuals that commit robberies focus on individuals transporting money. 

And most armed robberies, based on the research and my years of experience, 

there are weapons involved, and oftentimes security officers are shot. And – 

and they – so that makes it a very high risk. 

(Tr. 175-76; Ex. 8 at 5). Dr. Benny referred to an article quantifying the rate of fatal work 

injuries as more than double the rate for all workers: “In 2009, the rate of fatal work injuries 

among security guards and related workers was 7.4 per 100,000 full-time equivalent workers, 

more than double the 3.5 rate for all workers.”31 (Tr. 179 quoting “On Guard Against 

Workplace Hazards” by William J. Wiatrowski); see also Ex. 8 at 5). Dr. Benny further testified 

that wearing a uniform and being armed makes it “particularly dangerous” because the armed 

guard is identified as a “[deadly force] threat to a perpetrator who wants to commit a crime” and 

“shows a perpetrator that the security officer can respond with deadly force.” (Tr. 176). 

Dr. Benny testified that the security industry recognizes the hazard of security guards 

being fatally shot and opined that this hazard warrants using a ballistic-resistant vest because “if 

you were wearing a bullet-resistant vest you can potentially stop the projectile and prevent 

serious injury or death.” (Tr. 179-80; Ex. 8 at 6-7). Regardless of the incident, a ballisticresistant vest materially reduces an armed escort’s risk of being injured or killed in the event of 

an armed attack because “it would provide protection from the projectile that would be fired” – 

bullet-resistant, not bulletproof. (Tr. 181-82; Ex. 9 at 8). Dr. Benny relied on the following 

statement from the article “The Effect of Body Armor on Saving Officers’ Lives”: 

In this study we examined a controlled association between wearing body 

armor and the likelihood of dying from a shooting to the torso. While 

controlling for range, potential founders, our results showed that body armor 

31 Dr. Benny testified that the quantified rate in this article was consistent with Dr. Benny’s 45 years of experience 

in security management and supports his professional opinion. (Tr. 179-80). 
36 

quadruples the likelihood that a police officer will survive a shooting in the 

torso. 

(Tr. 182). He testified that, while this article was written about police officers, it helped formed 

his opinion for this case because he believes that it also applies to armed security guards. (Tr. 

182-83). He testified that “bullets don’t discriminate between a police officer and a security 

officer.” (Tr. 183). Dr. Benny therefore opined that he would recommend requiring armed 

escorts to wear bullet-resistant vests as part of a safety program for armed escorts providing 

security to PA Turnpike tellers.32 (Tr. 183; Ex. 9 at 8).

During cross-examination, Dr. Benny testified that, for the lethal weapons course he 

teaches, the syllabus provided by the Pennsylvania State Police does not mandate the wearing of

ballistic-resistant vests. Dr. Benny has no personal experience with armed robbery. He also 

testified that armed security “can” be a deterrent to robberies. (Tr. 185). Dr. Benny testified that 

the “2.33 rifle” used by the assailant in this case was a high-power rifle with a .223 caliber bullet, 

and that the Level III-A vest is not rated for that caliber. (Tr. 181, 185). Dr. Benny testified that 

the vest does not protect anything but the body cavity. However, Dr. Benny testified that: 

[E]ven wearing a vest that is not rated for the caliber of the weapon that is 

fired against an individual, that it may have – it may have reduced the velocity 

of the bullet and not have caused death [] even if it would have penetrated. 

(Tr. 186). He then conceded that it “absolutely” may not have either. (Tr. 186). 

With regard to the article that he consulted that quantified the rate of injury for armed 

security, Dr. Benny testified that the article does not mention the cause of the fatalities.

33 (Tr.

187). Regarding the second article about how body armor saves lives, Dr. Benny conceded that 

32 During cross examination, Dr. Benny stated his opinion was not the result of any legal requirement to do so. (Tr. 

188).

33 Later, on re-direct examination, Dr. Benny quoted the following excerpt from the same article: “among security 

guards, nearly 2/3 of fatal work injuries were the result of assaults or other violent acts, while transportation 

incidents were a distant second.” (Tr. 190). 
37 

the article was written specifically about police officers, who face different hazards because 

police officers are supposed to engage in altercations. (Tr. 187-88). Dr. Benny nevertheless

opined that both police officers and armed security officers are at “high risk,” “especially in the 

case at hand.” (Tr. 188). 

Dr. Benny testified that he is aware of hundreds of private security agencies in 

Pennsylvania. (Tr. 188). However, as of the time of his deposition in this matter, Dr. Benny did 

not know of any security agencies that mandated use of bullet-proof vests, even after his 45 years 

of experience. (Tr. 188-89). He also said he was not aware of any efforts by ASIS or any other 

organization to develop standards about wearing ballistic-resistant vests. (Tr. 190). Dr. Benny 

further testified that some practitioners “on their own initiative do realize the threat [] and they 

go and buy vests for their officers,” but this issue has been debated among practitioners “over the 

years” and he does not know of any consensus standard or anything being developed “at this 

point.” (Tr. 190-91).

Edward Bennet Sorrells 

Without objection, the Court found Mr. Sorrells qualified to serve as an expert in security

for Respondent. (Tr. 198). Mr. Sorrells is the Chief Operating Officer and General Counsel for 

DSI Security Services (Tr. 193; Ex. C at 1). DSI Security Services has been in private security 

business since 1969, providing armed and unarmed uniformed security. Mr. Sorrells has been 

with organization since 1991. His company operates in 25 states currently. (Tr. 210). DSI 

Security Services does not provide ballistic-resistant vests to any of its armed guards and does 

not have a policy that mandates vest wear. (Tr. 223). 

Mr. Sorrells has a bachelor’s degree with a major in English and a minor in criminal 

justice. In 2003, he was awarded a juris doctor from Jones School of Law, Faulkner University 
38 

in Montgomery, Alabama. Mr. Sorrells has been admitted to the Alabama bar “since 2004 or 

2005 through the present.” (Tr. 194-95). Mr. Sorrells testified that he has a CPP offered through 

ASIS International, which means he has demonstrated proficiency and competency in security 

management. He also is a Physical Security Professional through ASIS International, which he 

says denotes competency and expertise in physical security systems, technology, security force 

management and offering solutions to abate any kind of security concerns. (Tr. 195-96). Mr. 

Sorrells is also a PCI through ASIS International, which denotes competency in the area of 

investigations. (Tr. 196). 

Mr. Sorrells has been employed in the securities industry for over 26 years. He has 

performed both unarmed and armed duties as a security officer in a variety of environments. He 

has also served in positions pertaining to site supervision, local branch management, area 

supervision, and regional management. (Tr. 196). His current employer has 3,000 employees – 

95% unformed security officers, 10-15% of those are armed (about 300 armed guards). He is a 

frequent speaker and has published one book in 2015 that “dealt primarily with preventing and 

defending premises liability lawsuits.” He is a member of at least four organizations involved 

with the contract security industry, including ASIS international (20 years, serving as counsel 

vice-president), the Security Services Council (member), National Association of Security 

Companies (NASCO) (city board member), and the International Association of Security and 

Investigative Regulators (IASIR). (Tr. 201-02). 

Mr. Sorrells has served as an expert witness frequently. He testified, “usually my 

services are educating attorneys on the ins and outs of contract security and some of the 

standards in our industry.” (Tr. 198). He testified that he has specific expertise in the area of 

contract security, such as what Respondent provided in this case. (Tr. 198).
39 

In developing his opinions for this case, Mr. Sorrells relied upon: the police report, the 

discovery responses including post instructions for the PTC, the service agreement between 

Schaad and the PTC, Schaad’s internal procedures concerning body armor, and depositions. (Tr.

199). Mr. Sorrells testified that his own company has no policy for their 300-armed guards to be 

required to wear a bulletproof vest because, according to Mr. Sorrells, his company does not 

deem “the type of armed work we participate in” as “high risk,” and neither does the security

industry. He also said that there is no prevailing industry standard on whether employers need to 

supply armed security guards with ballistic-resistant vests and mandate their use when armed. 

(Tr. 202-03). 

With regard to risk assessment, Mr. Sorrells takes issue with the argument that an armed 

security guard “is working in a high-risk environment, just by virtue of the fact that he or she is 

armed [] because that’s not taking into a variety of other factors.” (Tr. 204). He believes that 

factors that should be taken into account when assessing risk include environment, foreseeability, 

whether incidents have occurred in the past, type of duties, location of duties (geographically, 

crime rate), and the internal policies of the customer. (Tr. 205-206). Mr. Sorrells differentiates 

between high risk, medium risk and low risk.34 (Tr. 206). Mr. Sorrells opined that, in this case, 

he considers the absence of any kind of prior history involving incidents as a significant factor. 

(Tr. 206). Based upon the absence of any kind of prior history involving incidents over a long 

period of time, he opined that there would be a future probability of a lower risk of something 

happening. (Tr. 206). He also opined that the incident in this case was not necessarily 

foreseeable under the circumstances because of the lack of previous incidents in many, many 

34 Mr. Sorrells opined that “you need to go through a pretty thorough analysis, to look at every situation individually 

before you can say something is high risk, medium risk or low risk. (Tr. 206). 
40 

years and the use of the unmarked van, which helped mask the transfer of money.35 (Tr. 206-07, 

210-11, 214). He testified that these factors “at a minimum give rise to the conclusion that this is 

not a high level of risk[.]” (Tr. 207). He further opined that the PA Turnpike’s policy to not 

engage with any robber is a “very sound policy,” consistent with his years of conducting training 

sessions for armed security officers in cash handling environments. (Tr. 207). He opined that 

the policy “certainly at minimum lessens the likelihood of violence, and in most situations causes 

no violence to occur.” (Tr. 207). He testified that “in most cases if they [robbers] secure that 

property and can leave, they are going to do so.” (Tr. 208). 

Mr. Sorrells testified that no company other than Schaad provides body armor as a 

proactive measure. (Tr. 209). He testified that he knows of no other company similar to his that 

has a mandatory policy of all armed officers wearing bulletproof vests. (Tr. 204). Mr. Sorrells 

opined that Respondent was proactive to unilaterally provide body armor based on his 26 years 

of experience, and that Respondent went “above and beyond” what other security companies are 

doing. (Tr. 209). He said that bulletproof vests are “not a standard piece of PPE” in the 

industry, in that employers typically do not require them. (Tr. 203-04). He also testified that his 

company does not mandate armor, so his company has no experience with officers that complain 

about wearing it. (Tr. 209-10).

On cross-examination, Mr. Sorrells testified that he did not factor in the exact amount of 

money into his risk analysis, although the actual transfer of money was part of his risk analysis. 

(Tr. 216-18). He testified that the organizations he participates in do not have consensus-type 

standards on safety-related issues. 

In our industry what we typically do, we will assume the safety posture, so to 

speak, of our customers. Ninety-nine percent of the service we perform is not 

35 Mr. Sorrells stated that when speaking about foreseeability it was “related to whether or not this occurrence was 

going to take place.” (Tr. 211). 
41 

on our property, so we will make sure that we’re complying with what the 

instructions and mandates are in the customer. So from an industry 

standpoint, you won’t see a lot of activity promulgating or issuing any type 

of standards when it comes to the typical safety measures.

(Tr. 218). He testified that the industry’s focus is related to training or gaining a license in the 

activity. (Tr. 218-19). He explained that “... the current state in the industry is this is not really 

contemplated when it comes to the offering of unarmed or armed security services, and certainly 

not an industry norm to provide bullet-resistant vests to all officers.” (Tr. 219). Even postaccident, he testified that he believes that, while tragic, the incident does not: 

always mean that policies or standards change in the future. So it’s not an 

automatic blanket policy that things have to be mandated afterwards. I 

believe that you still have to take a common-sense approach and do what you 

need [to do], as much as you can, to prevent future occurrences. 

(Tr. 220). He then testified that he believes that Respondent had already been extraordinary in 

offering vests prior to the incident. Mr. Sorrells would not even recommend offering or 

mandating the use of vests even after the incident because “it’s not something that is normally 

contemplated in the industry currently.” (Tr. 212, 217-21). 

Mr. Sorrells testified that he was not prepared to offer a statement of financial impact on 

his own company should bullet-resistant vests become mandatory. (Tr. 222-23). His company 

has never provided vests to its employees. “If the government was to place that kind of a 

restriction on the company, we would probably get out of the armed guard business.” (Tr. 224). 

He testified, however, that the potential impact on his company would be “very, very minimal, if 

at all,” because armed guard services is a small portion of what they do (300 armed guards out of 

3,000 unarmed guards). (Tr. 225). Mr. Sorrells does not agree that this potential conflict of 

interest affects his credibility. He testified, “I firmly believe that Schaad was not on notice of 

any kind [of] the requirement to provide these vests. And as I just testified, the impact on me 

personally and our company would be very, very minimal, if at all.” (Tr. 224-25).
42 

John Derryman 

John Derryman testified for Respondent.36 Mr. Derryman works for Akal Security, a 

company that contracts with the U.S. Marshals Service to provide security for the Federal Courts 

and the Federal Judges. (Tr. 228). Mr. Derryman has been employed by Akal Security as an 

armed security guard for eight years. He provides security at a Federal District Courthouse. (Tr.

229-32). Prior to joining Akal Security, Mr. Derry was a county detective in York County and 

ran the Drug Task Force. (Tr. 228-29). Prior to that, Mr. Derryman was a York City police 

officer for 29 years as a detective in charge of the drug unit. (Tr. 229). Regarding his experience 

with bulletproof vests, Mr. Derryman testified that some officers bought their own vests in the 

1970’s; years later, the City provided vests and it was a “personal choice” whether to wear the 

vests, throughout his tenure there. (Tr. 229, 232). He further testified that “I had never seen 

anybody [that he was on duty with] wear a vest prior to October 1, [2017].” After October 1, 

2017, he testified that he is required to wear body armor. (Tr. 232). 

M. Rebecca Downing 

Without objection, the Court found Ms. Downing qualified to serve as an expert in 

security for Respondent. (Tr. 247-48; Ex. B). Ms. Downing is a security consultant. (Tr. 234). 

Ms. Downing started her career as a York City police officer in 1974 and served for 27 years. 

She was the Chief of County Detectives and retired in 2004. Presently, Ms. Downing teaches at 

Pennsylvania State University, Justice and Safety Institute, and has since 1990. Ms. Downing 

teaches 12 different courses. Ms. Downing also teaches at Harrisburg Area Community College, 

since 1982, as an adjunct instructor. She has opened “every police academy” that has taken 

36 The Secretary objected to the use of some of Mr. Derryman’s testimony due to relevance. Respondent 

persuasively argued that Mr. Derryman’s testimony with regard to the use of bulletproof vests in the private armed 

guard security industry is relevant to the issue of notice in this case. (Tr. 229-31).
43 

place there since that time. “I am brought back from Florida, especially to instill the basic ethics, 

use of force, community policing and certain other skills that any university may jump in there, 

but always those.” (Tr. 235-36). Ms. Downing taught the lethal weapons course, same as Dr. 

Benny, until 2007. She testified that body armor was not even mentioned at all during the 

course. (Tr. 244). 

With regard to her educational background, Ms. Downing began at Westchester 

University, but finished with an Associate’s degree in Criminal Justice at York College. She 

received her Bachelor’s-degree in Law Enforcement at York College, and a Master’s degree in 

Criminal Justice from Villanova University. (Tr. 236). 

Regarding her private sector work, Ms. Downing testified, “I started out as a young 

officer that needed a second job to put food on the table.” (Tr. 236). She worked in security at a 

company in York that is no longer present. She “rode around in a van and helped transport 

money to banks.” She also worked private investigations for Ruppert Detective Agency. Ms. 

Downing worked for Schaad for a limited time in 1974-1975 as security protection for a union 

head that was physically threatened during a labor dispute. She provided training for Schaad in 

1995 and 1996. (Tr. 237). 

Regarding her experience with bullet-resistant vests, as a police officer in 1990 she was 

in charge of ordering equipment. She looked into providing vests, became educated in levels of 

vests, ballistics “that is supposedly guarded against,” and was participated in the decisionmaking process. She testified that vests were not mandatory throughout her tenure as a York 

City police officer. Ms. Downing is extremely familiar with other police departments in this area 

because she teaches in a five-county area in central Pennsylvania. She testified that vests are not 

mandatory in those areas either, stating, “make it this way, I have heard there are some 
44 

mandatory polices, but absolutely nothing happens when the officers are caught not wearing 

them.” (Tr. 238). 

Ms. Downing also has experience in testing vests. She was a firearms instructor for York 

City Police Department in 1976 – at the time, 4 out of 104 officers had a vest from 1974 to 1978. 

Vests had a five-year shelf life. They would test the discarded vests. Ms. Downing testified, 

“we would shoot every kind of different ammunition in there that we could get our hands on.” 

(Tr. 240). She tested Level II and Level III vests, but not Level IV vests. 

Ms. Downing testified that Joint Exhibit II accurately sets forth the levels of bulletresistant vests. (Tr. 239; Ex. II). She testified that there is a Level V vest that is “only available 

to sworn military personnel in the United States service.” She also testified that there is no 

uniformity in police departments with respect to which level vest to use in the tri-county area. 

(Tr. 239). 

Ms. Downing reviewed the following to prepare for Court: Schaad’s use of force policy, 

Pennsylvania State Police report on the incident, and the “verdict” between PA Turnpike and 

Schaad. She noted that [redacted] was shot by a .253 caliber full metal jacketed bullet, which 

she described as “a pretty kick-ass bullet” from a “high-power rifle.” She testified that nothing 

under a Level IV vest is meant to protect against something like that. Ms. Downing described 

what happens to bullets depending on characteristics of vests. (Tr. 241-42). She testified that 

bullet-resistant vests cut down the chance of serious problems. She has known two police 

officers that were shot in the vest and suffered severe injuries. (Tr. 242). 

Ms. Downing testified that she is unaware of any private security provider that requires 

the use of bullet-resistant vests.

37 She based this opinion on her knowledge, as well as 

37 Ms. Downing’s expert report further states:
45 

researching “15-20 hours on the internet” and not finding anything. (Tr. 242-43; Ex. B at 2-3). 

Ms. Downing also testified that she asked her students the same question in her teaching 

assignments. Ms. Downing testified that very few of her students who worked in the private 

security field know of any private providers that even offered bullet-resistant vests. (Tr. 243-44).

On cross-examination, Ms. Downing admitted to having no medical training, but then 

testified that “no one on this earth does” to say whether [redacted] would have survived that 

shooting. She testified that she doubted [redacted] would have survived being struck by a .322 

caliber bullet while wearing a Level III-A vest. She also testified that when she did the 

transporting money work, early in her career, she could not afford a “bulletproof vest,” and until 

her second year, she had no protection at all. (Tr. 245-46; Ex. B at 3). She agreed that vests are 

capable of providing material and significant protection to a shooting victim. Once she bought a 

vest, though, Ms. Downing testified that “there were very few days in police work in the next 31 

years that I didn’t wear one” because “it provided that extra security, that extra possibility of 

allowing me to escape with less injury in the event that something like that would occur.” (Tr.

246-47). She agreed that she would rather have a vest on than not have a vest on in the event of 

an armed attack. (Tr. 247). 

I have never been made aware of any agency that is compelled to provide body armor to its officers, unless it has 

been mandated in language negotiated with the political entity and the agency bargaining unit. Even then, it has 

been my experience, that agency officers may refuse to accept the provision of the vest, which allows them to opt 

out of mandatory wearing. Such is especially the case with civilian security agencies. Despite research, I have 

located absolutely no documentation that would obligate civilian agencies to provide bullet resistant vests to its 

employees.

I also could not find no legal mandate to require officers or security guards in the Commonwealth of Pennsylvania to 

be provided employees with said vests. 

(Ex. B at 2-3).
46 

DISCUSSION

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). 

While the incident that precipitated this case draws intense interest and scrutiny, the 

Commission has long held that “it is the hazard, not the specific incident that resulted in injury or 

might have resulted in injury, that is the relevant consideration in determining the existence of a 

recognized hazard.” Associated Underwater Servs., 24 BNA OSHC, 1248, 1250-1251 (No. 07-

1851, 2012) (citations omitted). As the Secretary notes, judges do not leave their common sense 

at the courthouse door. (Sec’y Br. at 19 citing Brock v. City Oil Well Serv. Co., 795 F.2d 507, 

510 (5th Cir. 1986) and Thomas Indus. Coatings, Inc., 21 BNA OSHC 2283, 2288 (No. 97-1073, 

2007)). Despite the sensational series of events that occurred on March 20, 2016, OSHA 

maintains that the hazard in this case is exposure to a “typical holdup” involving a lower-caliber 

handgun, not the kind of robbery that ultimately occurred with the high-power rifle and the high 

caliber bullets, along with a hand gun at the start, that were used in this case. (Tr. 113-14). The 

Court analyzes this case accordingly.

The Secretary argues that the cited standard required Respondent not only to provide 

bullet-proof vests to its armed security guards, but also to require its armed security guards to 

wear those bullet-proof vests. Because Respondent did not require its armed security guards to 

wear bullet-proof vests, the Secretary claims that Respondent violated section 1910.132(a). 
47 

Peavey Co., 16 BNA OSHC 2022 (No. 89-2836, 1994) (finding employer failed to comply with 

section 1910.132(a) by not requiring its employees to wear PPE for fall protection).

Respondent, in turn, argues that “[t]he Secretary failed to meet his burden of proving that: 

(1) the Regulation applies to the specific facts of this case; (2) that Respondent failed to comply 

with the Regulation; or, (3) that Respondent either knew or could have known with the exercise 

of reasonable diligence, that its conduct was in violation of the Regulation.” (Resp’t Br. at 14-

15). Respondent also argues that “Respondent did not have ‘actual notice’ of the hazard.” 

(Resp’t Reply Br. at 1). 

Applicability

There are two options to establishing applicability for this case. “To establish the 

applicability of a PPE standard that, by its terms, applies only where a hazard is present,” the 

Secretary must demonstrate that: (1) “there is a significant risk of harm and that the employer 

had actual knowledge of a need for protective equipment, or [(2)] that a reasonable person 

familiar with the circumstances surrounding the hazardous condition, including any facts unique 

to the particular industry, would recognize a hazard requiring the use of PPE.” Wal-Mart 

Distribution Ctr. # 6016, 25 BNA OSHC at 1400-01 citing Gen. Motors Corp., GM Parts Div.,

11 BNA OSHC 2062, 2065 (No. 78–1443, 1984) (consolidated), aff'd, 764 F.2d 32 (1st 

Cir.1985). The Court will address each option in turn. 

Significant Risk and Actual Knowledge 

According to Commission precedent, Option 1 for the Secretary to establish applicability 

of a general PPE standard is to prove both that “there is a significant risk of harm and that the 

employer had actual knowledge of a need for protective equipment.” Wal-Mart Distribution Ctr. 

# 6016, 25 BNA OSHC at 1400-01 (emphasis added). Regarding the first prong of Option 1, 
48 

whether there is a significant risk is “[a] question [that] is one part empirical and one part policybased.” Pratt & Whitney Aircraft, Div. of United Techs. Corp. v. Donovan, 715 F.2d 57, 64 (2d 

Cir. 1983). 

Whether there exists a significant risk depends on both the severity of the 

potential harm and the likelihood of its occurrence, but there is an inverse 

relationship between these two elements. As the severity of the potential harm 

increases in a particular situation, its apparent likelihood of occurrence need 

not be as great. 

Weirton Steel Corp., 20 BNA OSHC at 1259 (citations omitted). Here, the Secretary bears the 

burden of establishing that both the severity of being shot in the torso on the job, and that the 

likelihood of its occurrence, together warranted the use of ballistic-resistant vests on 

Respondent’s worksite. Seward Ship’s Drydock, Inc., 26 BNA OSHC 2303, 2308 (No. 09-1901, 

2018). 

The second prong of Option 1, actual knowledge of whether protective equipment was 

necessary, includes actual knowledge of the significant risk (composed of severity and 

likelihood) of harm. Envision Waste Serv., LLC, 27 BNA OSHC 1001, 1003-04 (No. 12-1600, 

2018) (discussing how to establish actual knowledge of alleged eye hazard requiring protective 

eyewear in lieu of prescriptive eyewear). This burden also rests with the Secretary. Id. at *5 

citing Wal-Mart Distribution Ctr. # 6016, 25 BNA OSHC at 1400-01.38

The Secretary claims that he has established Option 1 for this case because “Respondent 

had actual notice of a need for protective equipment based upon its awareness that armed escorts 

face the hazard of being shot during the course of an attempted robbery.” (Sec’y Br. at 14-17). 

38 The Court notes that the majority in Wal-Mart did not analyze whether the Secretary established “significant 

risk,” holding instead based on the Secretary’s failure to establish notice. Wal-Mart Distribution Ctr. # 6016, 25 

BNA OSHC at 1401 n10. The Court analyzes notice in the Notice section below.
49 

The Secretary points to the following to support his claim: that Respondent actually provided 

bullet-proof vests (“Companies do not spend such sums [of money] to protect against unforeseen 

hazards; Respondent did not, for example, spend money over the same course of time for fall 

protection equipment”), the PA Turnpike contract called for “armed guards,” Respondent’s 

Standard Operating Procedures includes duties to “ensure the safety of [PA Turnpike tellers] and 

includes a section “entitled ‘Attempted Robberies’,” and the very purpose of Respondent’s 

armed security guards was to “deter” potential robberies. (Sec’y Br. at 15-17).

Respondent claims that the hazard was not obvious and argues that the “general language 

of the [cited regulation] and the ‘one size fits all approach,’ may work in an industrial setting for 

low-cost items such as hard hats, safety glasses, gloves and steel toed shoes, however, it does not 

work in this instance for the security industry whose services and work sites are so varied.” 

(Resp’t Br. at 2-3, Resp’t Reply Br. at 1-2). Respondent has also argued the following: 

The Secretary also claims the Respondent had actual knowledge of the hazard, 

without citing specifically that actual knowledge. To the contrary in 

Respondent’s 45-year history of providing armed and unarmed security 

services, and involving thousands of employees, there was never a single 

incident of an employee being confronted by deadly force. We all face 

hazards every time we leave home in the morning. The real question is what 

it the probability of that risk. Given the Respondent's long history that was 

totally devoid of such an incident, what happened on March 20, 2016 was not 

foreseeable.

(Opposition to Motion for Summary Judgment at 4). 

Here, the Secretary must establish both severity and likelihood of the alleged hazard. As 

an initial matter, the evidence regarding severity of the harm is undisputed and undeniable: being 

shot in the torso could lead to an employee’s death. The Court finds that the severity related to 

this hazard is high. The Court is therefore mindful that the evidence regarding the apparent 

likelihood of the occurrence of this hazard need not be as great. Weirton Steel Corp., 20 BNA 

OSHC at 1259. 
50 

The Commission has previously evaluated various levels of likelihood, together with a 

sufficient showing of severity, that warranted the applicability of an OSHA performance 

standard. See, e.g., Seward Ship’s Drydock, Inc., 26 BNA OSHC at 2308-11 (cited provision 

inapplicable where Secretary failed to show that the risk of encountering either carbon monoxide 

or iron oxides at levels above the PEL made respirators necessary.); Snyder Well Serv., Inc., 10 

BNA OSHC 1371 (No. 77-1334, 1982); Gulf Oil Corp., 11 BNA OSHC 1476 (No. 76-5014, 

1983); Weirton Steel Corp., 20 BNA OSHC at 1260. The Commission described sufficient 

levels of likelihood as: “a distinctive possibility,” and “more than a speculative possibility.” 

Snyder Well Serv., Inc., 10 BNA OSHC at 1375-76; Weirton Steel Corp., 20 BNA OSHC at 

1260. Together, these sufficient levels of severity and likelihood constituted “significant risk.” 

Wal-Mart Distribution Ctr. # 6016, 25 BNA at 1400-02 & n10, citing to Gen. Motors Corp., 

GM Parts Div., 11 BNA OSHC at 2065. Conversely, the 

Commission has previously evaluated levels of likelihood that did not warrant the applicability 

of the OSHA performance standard. The Commission described these insufficient levels of 

likelihood as: “a vague risk,” “no evidence of possible emergency situation,” and “a speculative 

possibility.” Seward Ship’s Drydock, Inc., 26 BNA OSHC at 2309-10; Gulf Oil Corp., 11 BNA 

OSHC at 1480-81; Weirton Steel Corp., 20 BNA OSHC at 1260; see also Pratt & Whitney 

Aircraft, Div. of United Techs. Corp. v. Sec’y of Labor, 649 F.2d 96, 104 (2d Cir. 1981) (must be 

more than a “mere possibility” or “freakish event”). Together, these insufficient levels of 

severity and likelihood in those cases constituted no significant risk to warrant the applicability 

of an OSHA performance standard.39

39 Recently, the D.C. Circuit analyzed “significant risk” in the context of evaluating a challenge to OSHA’s silica 

standard in N. Am.’s Bldg. Trades Unions v. Occupational Safety & Health Admin., 878 F.3d 271 (D.C. Cir. 2017). 

In that case, the D.C. Circuit evaluated “significant risk” from the empirical evidence OSHA provided to support its 
51 

The Secretary bears the burden of establishing this aspect of risk: likelihood of 

occurrence. It is this aspect of risk that the parties dispute. The evidence in the record must 

weigh in favor of the Secretary if the Secretary is going to establish applicability. Here, the 

Secretary has failed to overcome Respondent’s rebuttal. 

The record contains multiple pieces of evidence regarding the likelihood of occurrence of 

being shot. As the Secretary points out, and the record supports, Respondent’s employees were 

guarding someone who was transferring money. Respondent’s employees wore a uniform that 

looked like a police officer’s uniform and carried a gun. Per its contractual obligation, 

Respondent’s employees were tasked to deter potential robbery. The Court finds that the 

uniform and gun were visually apparent with the intent to identify Respondent’s employee to a 

potential robber as an obstacle to the valuables being transferred, i.e., rendering Respondent’s 

employee a target. 

 It is undisputed among the witnesses that Respondent’s employees faced a hazard of a 

potential robbery. The Secretary’s expert “in security-related matters,” Dr. Benny, testified that 

“any time security involved with protecting money, especially large sums of money, it’s a highrisk position because robberies do occur.” (Tr. 174-75). Dr. Benny then testified, “[a]nd most 

armed robberies, based on the research and my years of experience, there are weapons involved, 

and oftentimes security officers are shot. And – and they – so that makes it a very high risk.” (Tr.

176). As the Secretary notes, Respondent even purchased bullet-proof vests for its armed security 

promulgation of its regulation of silica exposure. Id. at 282–83 (citing to the Supreme Court’s “guidepost that 

OSHA follows: a one-in-a-thousand risk that exposure to the regulated substance will be fatal can reasonably be 

considered significant but a one-in-a-billion risk is likely not significant”) (citations omitted). Under a substantial 

evidence test, which is a lower standard of proof than the preponderance of the evidence test applied by the 

Commission, the D.C. Circuit upheld OSHA’s evaluation of “significant risk” by using the “more likely than not” 

test in deciding whether exposure to silica levels would cause worker disease. Id. The Commission did not address 

the silica case in Seward’s, which was issued shortly after the D.C. Circuit case was issued. Neither have the 

parties. Accordingly, this Court relies on Seward’s for evaluating likelihood with regard to “significant risk.” 
52 

guards, and no company would invest in such a purchase for an “unforeseen” hazard. (Sec’y Br. 

at 15). To support his opinion, Dr. Benny referred to an article quantifying the rate of fatal work 

injuries as more than double the rate for all workers: “In 2009, the rate of fatal work injuries 

among security guards and related workers was 7.4 per 100,000 full-time equivalent workers, more 

than double the 3.5 rate for all workers.” (Tr. 176-79 quoting “On Guard Against Workplace 

Hazards” by William J. Wiatrowski; Ex. 8 at 5). Dr. Benny, though, did not explain how a “rate 

of fatal work injuries,” as described in this article, specifically related to the “likelihood of 

occurrence” of being shot on Respondent’s worksite. 

It is also undisputed, however, that Respondent’s purchase of the bullet-proof vests was 

not standard for its industry. Respondent introduced testimony by Mr. Sorrels, an expert in 

security, regarding the likelihood of occurrence of robbery on the PA Turnpike detail. (Tr. 198). 

He testified that, before March 20, 2016, Respondent had not experienced any armed robberies 

or violent assaults during the preceding 45 years, including nearly 20 years of transfers of large 

sums of money performing the PA Turnpike detail, and the use of an unmarked van (rather than 

an armored car) on the PA Turnpike detail, “at a minimum gives rise to the conclusion that this is 

not a high level of risk[.]”40 (Tr. 207, 214). 

40 Respondent also points to AD Olah’s testimony regarding probability, building on Olah’s understanding of the 45 

years of zero previous incidents. (Resp’t Br. at 5-7 citing to Tr. 107-14.) This testimony, however, related to one of 

the factors of assessing penalty (probability of harm) when assessing the penalty, after the citation has been 

affirmed. (Tr. 109-10.)

When assessing a penalty under section 17(j) of the OSH Act, 29 U.S.C. § 666(j), the 

Commission must give ‘due consideration to the appropriateness of the penalty 

with respect to the size of the business of the employer being charged, the gravity 

of the violation, the good faith of the employer, and the history of the previous 

violations.’ The principal factor in a penalty determination is gravity, which ‘is 

based on the number of employees exposed, duration of exposure, likelihood of 

injury, and precautions taken against injury.’ 
53 

Respondent, with testimony specific to its own worksite, has rebutted the Secretary’s 

claim, based on generalities of the security industry, that the PA Turnpike detail was “high-risk.” 

Respondent has rebutted the Secretary’s evidence regarding the likelihood of occurrence of 

robbery on the PA Turnpike detail. The Secretary seems to concede this by stating the following 

in his brief: “Getting shot in the torso is obviously as high on the severity scale as a potential 

harm can get. Thus, whether or not the likelihood of an occurrence was low, the life-threatening 

hazard to be guarded against was enough to necessitate the use of vests[.]” (Sec’y Br. at 23). 

It is the Secretary’s burden, however, to establish that the likelihood of occurrence of an 

armed robbery on the PA Turnpike detail was “a distinctive possibility,” or “more than a 

speculative possibility.” Snyder Well Serv., Inc., 10 BNA OSHC at 1375-76; Weirton Steel 

Corp., 20 BNA OSHC at 1260. It is not here, not in this record. Given Respondent’s evidence 

regarding the unmarked van that masked the money transfer process, and the previous 45 years 

of no incidents at all (including during the near 20 years of providing armed guard security to the 

PTC), Respondent has rebutted the Secretary’s arguments regarding likelihood of occurrence. 

The Court is not prepared enough, based on the preponderance of the evidence, to find that the 

Secretary established likelihood in this case regarding this Respondent; thus, the Court cannot 

find that the Secretary showed a significant risk of the hazard. 

Regarding actual knowledge of the alleged significant risk of the hazard, [a] safety policy 

alone cannot be used to establish the employer’s knowledge of an alleged hazard. OwensCorning Fiberglass Corp. v. Donovan, 659 F.2d 1285, 1288 (5th Cir. 1981) (“Knowledge that 

personal protective equipment is required may not be implied from voluntary safety efforts 

Associated Underwater Servs., 24 BNA OSHC at 1253 (citations omitted) (emphasis added). The issue of penalty is 

separate and apart, and analyzed through a different prism, from the issue of the likelihood of occurrence, the

element of applicability of a general performance standard that is at issue here. 
54 

standing alone.”); Envision Waste Serv., LLC, 27 BNA OSHC at 1106; see also Gen. Motors 

Corp., GM Parts Div., 11 BNA OSHC at 2066 (“If employers are not to be dissuaded from 

taking precautions beyond the minimum regulatory requirements, they must be able to do so free 

from concern that their efforts will be relied on to establish their knowledge of an alleged 

hazard.”). 

Here, the Secretary claims that Respondent actually knew about the hazard. As noted 

above, while the record is replete with undisputed evidence regarding actual knowledge of the 

severity of the hazard, regarding actual knowledge of the likelihood of its occurrence, however, 

the Secretary’s evidence stands rebutted by Respondent. Envision Waste Serv., LLC, 27 BNA 

OSHC at 1005-06 (Secretary failed to establish employer had actual knowledge of a hazard 

requiring use of eye protection where Secretary established there was only one recorded eye 

injury in the sorting rooms between 2009 and 2012 and the record did not show how many 

employees worked in the sorting room during this period.). 

Under these circumstances, the Court cannot find that the Secretary has established 

significant risk and actual knowledge of the hazard. 

Reasonable Person Test

Option 2, according to Commission precedent, for the Secretary to establish applicability 

of a general PPE standard is to prove “that a reasonable person familiar with the circumstances 

surrounding the hazardous condition, including any facts unique to the particular industry, would 

recognize a hazard requiring the use of PPE.” Wal-Mart Distribution Ctr. # 6016, 25 BNA 

OSHC at 1400-01; see also Gen. Motors Corp., GM Parts Div., 11 BNA OSHC at 2065-66 

(discussing whether general PPE standard covers safety shoes at Respondent’s workplace). This 

concept was further reinforced by the First Circuit; Cape & Vineyard Div. of New Bedford Gas v.
55 

Occupational Safety & Health Review Comm’n, 512 F.2d 1148, 1152 (1st Cir. 1975) (“OSHA 

had to establish here that a prudent man familiar with linework would have understood that more 

protective equipment was ‘necessary’ in the situation at issue.”). 

Section 1910.132(a) is a general standard, broadly worded to encompass many

hazardous conditions or circumstances. If the duty to comply with the standard 

is not defined, it could run the risk of being almost indefinitely applicable. To 

avoid that result, and in order to carry her burden of proof as to applicability, 

[] the Secretary must establish that a reasonably prudent employer, concerned 

about the safety of employees in the circumstances involved in a particular 

case, would recognize the existence of a hazardous condition and provide 

protection as required by the Secretary's citation. Evidence that other 

employers in the industry actually provide the particular personal protective 

equipment satisfies this test. Also allowed for consideration is evidence of 

accidents, evidence of industrial safety standards or recommendations, or 

opinion testimony from persons experienced in performing the work or 

familiar with the working conditions.

Trinity Indus., Inc., 15 BNA OSHC 1481, 1484-85 (No. 88-2691, 1992) (citations omitted). 

The Third Circuit, to which this case could be appealed, has held that with regard to the 

“reasonable person test,” while industry custom and practice are relevant, the ultimate inquiry is 

whether a reasonable person familiar with the factual circumstances surrounding the allegedly 

hazardous condition, including any facts unique to a particular industry, would recognize a 

hazard warranting the use of personal protective equipment. Voegele Co. v. Occupational Safety 

& Health Review Comm’n., 625 F.2d 1075, 1078 (3rd Cir. 1980) (finding “quite compelling” 

other courts refusing to limit the reasonable person test to the custom and practice of the industry 

because “(s)uch a standard would allow an entire industry to avoid liability by maintaining 

inadequate safety”) (citations omitted); see also Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 

2067 (No. 96-1719, 2000) (Commission generally applies law of the circuit where it is probable 

a case will be appealed). 

There are actually three factors to evaluate under this standard: recognition of 

a hazard, feasibility of alternatives, and whether the alternatives would create 
56 

a greater hazard. The burden of proof rests with the Secretary to prove all 

elements of a violation of a general safety standard. 

 

Voegele Co. v. Occupational Safety & Health Review Comm’n., 625 F.2d at 1079. Once the 

Secretary establishes the hazard, 

It is the Secretary's burden to demonstrate and describe feasibility and the 

likely utility of particular measures that the employer could have used. The 

appropriate weight to be accorded to industry practice of whether these 

suggested methods were feasible and a reasonable person would have utilized 

them in the context of the hazard presented, is best summarized as follows: 

‘This is not to say that safety precaution must find general usage in (the) 

industry . . . . The question is whether a precaution is recognized by safety 

experts as feasible, not whether the precaution's use has become customary.’ 

However, it would be error totally to ignore or fail to consider prevailing 

industry standards. 

Id. at 1080. (citations and footnotes omitted) (emphasis added). 

As noted above, a safety policy alone cannot be used to establish the employer's 

knowledge of an alleged hazard. Envision Waste Serv., LLC, 27 BNA OSHC at 1006. 

However, 

[a]n employer's voluntary safety efforts may properly be considered in 

conjunction with other evidence demonstrating that the employer or its 

industry recognized the hazard in question...Evidence concerning equipment 

used by other employers is relevant to hazard recognition because the 

evidence demonstrates a broad perception, throughout an industry, that 

protection was necessary in the circumstances. 

Trinity Indus., Inc., 15 BNA OSHC at 1485 n.8 (emphasis added) (citations omitted). 

Here, it is undisputed that Respondent went “above and beyond the industry norm,” when 

it provided bullet-proof vests, at no charge, to its armed security guards. (Tr. 151, 188, 191, 204, 

209, 232, 243). The evidence regarding incidents on the PA Turnpike detail reveals that there 

have been zero instances over nearly 20 years involving thousands of PA Turnpike trips. (Jt. 
57 

Pre-Hr’g St. at ¶ 19). Against this, the Secretary has cited a litany of outside caselaw and a 

congressional hearing record, outside of this record, to establish that the hazard here was “readily 

apparent.” (Sec’y Br. at 19). The Secretary then states that “judges ‘do not check [their] 

common sense at the courthouse door.’” (Sec’y Br. at 19). The Secretary, however, has failed to 

connect the cited cases and congressional hearing record to the particular worksite in this case. 

The Secretary introduces testimony regarding Respondent’s armed security guards 

preferring to wear the bulletproof vests that Respondent provided. When asked whether they 

wore their issued vests whenever they wore Respondent’s uniform, Respondent’s armed security 

guards Titus and Allman testified “always.” (Tr. 78, 99). Respondent’s armed security guards 

Spadafora and Aster did not wear their vests when it was hot. (Tr. 50-54, 90). As the Secretary 

notes, other armed security guards told CO Ritner that they wore their bulletproof vest. (Sec’y 

Br. at 24-25 citing Tr. 53, 55). Lenahan testified that one of his armed security guards, Stover, 

wore his vest “religiously.” (Tr. 145). The record also shows that [redacted] did not wear his 

vest on March 20, 2016, even though he had one that Respondent provided to him. When asked 

why, Mr. Lenahan told CO Ritner that “the older element didn’t prefer to wear them because of 

comfort.” (Tr. 46).

As noted above, the severity of gun violence at the worksite is not in dispute. It is also 

not disputed that companies like Respondent in the security industry do not provide bulletproof 

vests. Indeed, counsel for the Secretary stated at trial: “I don’t think we’re denying that the 

industry itself doesn’t have any mandates.” (Tr. 231). The Secretary has not overcome this 

evidence with contrasting evidence specific to Respondent and the PA Turnpike detail. Because 

of this, the only evidence that the Secretary has, specific to Respondent’s workplace, is 

Respondent’s choice to provide its armed security guards with bulletproof vests and that some of 
58 

its armed security guards prefer to wear them. (Sec’y Br. at 14-15 citing Owens-Corning 

Fiberglas Corp., 7 BNA OSHC 1291, 1295-96 (No. 76-4990, 1976), aff’d, 659 F.2d 1285 (5th

Cir. 1981)). As this is the only evidence that the Secretary has specific to Respondent’s 

workplace, the Court cannot find that the Secretary carried his burden showing that a reasonably 

prudent employer recognized the existence of the hazardous violative condition alleged in the 

citation. 

This is not a situation where other employers in Respondent’s industry provide the 

subject PPE. Trinity Indus., Inc., 15 BNA OSHC at 1485 n.8; Voegele Co. v. Occupational 

Safety & Health Review Comm’n, 625 F.2d at 1080 (“However, it would be error totally to 

ignore or fail to consider prevailing industry standards.”). Indeed, a ruling in favor of the 

Secretary on this issue, based on these facts, would affect more companies than just Respondent 

in the security industry. Similarly, this is also not a situation where the company knew for 

decades that “many, if not most,” of its employees were actually physically affected by the 

hazard as the Fifth Circuit noted on appeal in Owens-Corning Fiberglass Corp. v. Donovan, 659 

F.2d at 1288-89 (citations omitted) (relying in part on showing of “fiberglass itch” developed by 

“many, if not most” employees when not using gloves). Here, Respondent has had zero 

instances of armed robberies and violent assaults for 45 years, despite daily details from 7:00 

a.m. to 12:00 p.m. on the PA Turnpike for the past near 20 years. As noted above, all of 

Respondent’s security officers had documented law enforcement officer experience as a 

prerequisite to being hired as an armed security guard for Respondent. (Tr. 47). The Court has 

also found that the use of an unmarked van on the PA Turnpike detail, along with Respondent’s 

45-year assault free history, affected the likelihood assessment of the risk of the hazard its armed 

guards faced. Based on these factors, the Court finds that Respondent “could reasonably believe 
59 

that, either because of other safety precautions or because of the skill of its employees, the risk of 

injury was insufficient to require the mandatory use of personal protective equipment.” Id. at 

1289. 

The Court finds that the Secretary has not established that a reasonable person familiar 

with the circumstances surrounding Respondent’s worksite, including any facts unique to the 

particular industry, would recognize a hazard requiring the use of bulletproof vests. Wal-Mart 

Distribution Ctr. # 6016, 25 BNA OSHC at 1400-01. 

The Court concludes that the Secretary has not established that the cited standard applies 

to the facts of this case. 

Notice

Even if the Secretary had established applicability of the cited standard here, the Court 

finds that the Secretary provided insufficient notice of the requirements of the standard such that 

Respondent would be deprived of due process if held accountable under the standard. As noted 

above, Respondent has had a 45-year armed robbery and violent assault free history. 

An employer cannot be held in violation of the Act if it fails to receive prior notice of 

what is required. Thomas Indus. Coatings, Inc., 21 BNA OSHC at 2287. 

While “(t)he goal of the Act is to prevent the first accident,” and “the Act does

not establish as a sine qua non any specific number of accidents or any injury 

rate,” a very low injury rate has a definite bearing on the question whether an 

employer has notice that personal protective equipment is necessary under a 

general regulation such as [section] 1910.132(a). An employer may be aware 

of a possible hazard, yet still lack notice that mandatory personal protective 

equipment is necessary, if the hazard has never given rise to an injury. 

Owens-Corning Fiberglass Corp. v. Donovan, 659 F.2d at 1290 (emphasis added). The Third 

Circuit has determined that “‘ascertainable certainty’ [i]s the applicable standard for fair notice.” 

Sec’y of Labor v. Beverly Healthcare-Hillview, 541 F.3d 193, 202 (3d Cir. 2008) (finding fair 

notice when the Secretary “has not given ‘conflicting interpretations’ of [the standard at issue] and 
60 

has provided ‘a sufficient, publicly accessible statement of [his] interpretation’ prior to the 

issuance of [the citations] in question”) (citations omitted).

The Secretary claims that Respondent’s obligations were “abundantly clear” based on the 

language of the cited standard, a 2013 OSHA LOI, and previous citations in 2014 and 2015 to 

other employers, all allegedly showing that OSHA interprets the cited standard to include bulletproof vests as a form of PPE. (Sec’y Br. at 28-30). The Secretary further states that, “in any 

event,” these documents provided “fair and reasonable warning to Respondent,” such that it 

“could have made an inquiry to OSHA.” (Sec’y Br. at 30). The failure to make such an inquiry 

in this instance, according to the Secretary, undermines Respondent’s fair notice argument. (Id.). 

Respondent argues that “[t]he Regulation does not clearly invoke a legal obligation to 

provide ballistic-resistant vests and now enforcing such an interpretation in hindsight is a 

violation of Respondent's due process right of fair notice.” (Resp’t Br. at 14). Respondent 

claims that the 2013 LOI and previous OSHA citations contained in Exhibits 11 through 15 fail 

to provide adequate notice. (Resp’t Br. at 2-3, Resp’t Reply Br.at 2-3).

The Court agrees with Respondent. The Secretary has provided insufficient notice to 

Respondent that bullet-proof vests were required to be worn by its armed security guards at the 

PA Turnpike worksite. The Secretary’s arguments regarding whether bullet-proof vests are 

considered PPE are not persuasive. Yes, just as being shot is undisputedly a severe hazard, a 

bullet-proof vest is a form of PPE. The question, however, is whether Respondent had notice 

that they were required to be worn by its armed security guards at its worksite on March 20, 

2016. 

Even the 2013 OSHA LOI states the same thing: OSHA considers bullet-proof vests a 

form of PPE and states that they must be adequate if employers provide them. It does not state 
61 

employers must, and when, provide them. This LOI itself leaves discretion to the employer, 

unlike the letter constituting sufficient notice in Sec’y of Labor v. Beverly Healthcare-Hillview,

541 F.3d 193, 202 (stating that “[transportation cost[s] must be covered by the employer” and 

that “employees must be considered ‘on-duty’” when receiving post-exposure treatment.”). 

Here, as Respondent states, the 2013 OSHA LOI “does not withstand grammatical analysis,” 

with regard to adequately conveying whether Respondent was required to provide vests in the 

first place to its armed security guards and mandate their wear at the worksite. (Resp’t Br. at 13-

14.) 

The LOI, moreover, is entirely consistent with the undisputed testimony in the record: 

that companies like Respondent do not believe that they are under a mandate to provide bulletproof vests to their armed security guards and mandate their wear. Therefore, the Court finds 

that the Secretary has not provided a clear “sufficient, publicly accessible statement of [his] 

interpretation’ prior to the issuance of [the citations] in question.” Sec’y of Labor v. Beverly

Healthcare-Hillview, 541 F.3d at 202. Under these circumstances, the Court does not find that 

Respondent was under any obligation to contact OSHA to see if it was required to provide bulletproof vests to its armed security guards and mandate their wear at the PA Turnpike worksite.41

The Court also agrees with Respondent regarding Exhibits 11-15, the previous OSHA 

citations issued to other employers, not Respondent, for allegedly violating the cited standard at 

issue here by not providing bullet-proof vests. (Resp’t Reply Br. at 2; Exs. 11-15). Those facts 

are not before this Court, and the citations themselves contain an insufficient set of facts from 

which to compare the facts that are at issue here. Owens-Corning Fiberglass Corp. v. Donovan, 

41See also Owens-Corning Fiberglass Corp. v. Donovan, 659 F.2d at 1288 (“The 29 C.F.R. § 1910.132(a) standard 

is a general federal admonition providing “little guidance to employers concerning the circumstances in which 

personal protective equipment is required[.]”). 
62 

659 F.2d at 1288 (“Due process requires that employers be given reasonably clear advance 

notice of what is required of them [under generally worded standards].”). 

Accordingly, the Court concludes that the Secretary has not established a violation of 29 

C.F.R. § 1910.132(a) and has not provided adequate advanced notice to Respondent that it was 

in violation of 29 C.F.R. § 1910.132(a) in this case. 

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) Citation 1, Item 1, alleging a serious violation of 29 C.F.R. § 1910.132(a), is VACATED. 

SO ORDERED.

/s/___________________________ 

The Honorable Dennis L. Phillips 

 U.S. OSHRC Judge 

Date: November 13, 2018 

 Washington, D.C.