IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ronnie Rogers, :

Appellant :

: No. 2678 C.D. 2015

v. :

: Argued: October 18, 2016

City of Philadelphia; and Allied :

Construction Services II, Inc.; :

and Catch Inc. a/k/a Anna’s House :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JULIA K. HEARTHWAY, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge (P.)

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: November 30, 2016

Ronnie Rogers (Appellant) appeals from the June 2, 2015 and August 4, 

2015 orders of the Court of Common Pleas of Philadelphia County (trial court) 

granting the motions for summary judgment filed by Allied Construction Services II, 

Inc. (Allied), and CATCH Inc. a/k/a Anna’s House (CATCH), respectively. We 

affirm.

Facts and Procedural History

On March 13, 2014, Appellant filed a complaint seeking damages for 

injuries he allegedly sustained as a result of a trip and fall that occurred on December 

8, 2011, on South 15th Street in Philadelphia, Pennsylvania. Appellant averred that he 
2

was crossing South 15th Street when he tripped and fell over a bent rod or bar (rod) 

embedded in the street, striking his head and left shoulder on the curb. 

The fall occurred in front of 1208 South 15th Street, which is owned and 

occupied by CATCH. According to Appellant, CATCH contracted with Allied in 

2005 or 2006 to construct its building and such construction involved the roadway in 

front of CATCH’s property. Appellant asserted identical allegations of negligence 

against the City of Philadelphia (City), CATCH, and Allied, which included, inter 

alia, creating a dangerous condition of the roadway and/or permitting a dangerous 

condition to remain after they knew or should have known of the same; failing to 

inspect the roadway to discover a dangerous condition; failing to warn of the defect 

of the roadway; and for “[v]iolating City codes, regulations and ordinances 

concerning the unsafe condition of the defect in question.” (Complaint, ¶¶13, 26, 35.) 

After the pleadings were closed, the parties conducted discovery. Only 

one deposition was taken, that of Appellant, whose testimony is summarized below. 

On December 8, 2011, Appellant walked his son to his designated school 

bus stop. At approximately 6:00 a.m., his son boarded the school bus and Appellant 

began to walk home via his normal route, i.e., south on Federal Street and crossing 

South 15th Street at an angle (outside the crosswalk). While Appellant was crossing 

the street and before he reached the sidewalk, Appellant tripped on the rod and fell in 

front of the CATCH building, causing his head and left shoulder to strike the curb. 

Appellant felt a bit dazed but continued home, which was less than half of a block 

away. Appellant stated that he laid down but awoke with a severe headache. A day 

or two after the incident, Appellant received medical treatment at the Philadelphia 

Spine and Wellness Center and underwent chiropractic treatment. Appellant testified 

that he injured his neck and left shoulder in the fall. Appellant stated that he receives 
3

a series of shots in his neck at six-month intervals, but stated that he received shots of 

that nature prior to the fall due to pre-existing neck and back injuries. (Reproduced 

Record (R.R.) at 8a-10a, 12a; Certified Record (C.R.) No. 41, Exhibit C, at pp. 21-30,

42, 47-49, 52-53.)

Appellant testified that within a week of the fall, he told an individual at 

CATCH about tripping over the rod. According to Appellant, the individual 

informed him that “they should have been taking it up,” which was in reference to the 

piece of rod that caught his shoe. Appellant does not know the individual’s identity 

but described his physical appearance and stated that he still works at CATCH. (R.R. 

at 11a; C.R. No. 41, Ex. C, at p. 53.)

Appellant then testified as to his theory on how the rod was placed in the 

street. Appellant lived at the same location since 1999 and recalled construction 

taking place in the area of his fall in 2005 or 2006 when the CATCH building was 

constructed. Appellant remembered a construction trailer set up in the street for the 

duration of the project, which lasted approximately six months. The trailer was 

located in and around the area where Appellant fell. Appellant knew that Allied was 

performing the construction because he had inquired about working on its crew.1 

(R.R. at 9a-11a; C.R. No. 41, Ex. C, at p. 6.)

According to Appellant, the rod he tripped on resembled an “electrical 

corral ground,” which indicated that electricity was being grounded at that location. 

Appellant further testified that he had experience in heavy highway construction as a 

laborer. Although Appellant never laid electrical ground, he stated that he observed 

the same being performed a few times on different job sites. Appellant testified that, 

on other, past job sites, he had observed individuals performing this task by either 

 

1 Appellant testified, however, that he did not work for Allied on that site. (R.R. at 11a.)
4

beating the rod into the ground, or by drilling a hole, placing the rod inside, and 

knocking the rod into the ground, but noted that different people performed the same 

in different ways. Appellant stated that these types of rods are generally a little over 

a half of an inch in diameter and are approximately five feet long. Appellant believed 

that the rod he tripped over was the type of rod used to lay electrical ground. (R.R. at 

9a-11a.) 

Appellant acknowledged that he never saw an Allied employee place 

this type of rod in the street and that the only time he observed Allied performing 

work on the street in the area of the fall was when plumbing lines were installed near 

the end of the building project. The sole reason that Appellant believed that Allied 

was the entity performing the plumbing work was because he knew that Allied was 

the general contractor on the job and was, therefore, “in charge.” (R.R. at 11a-12a.) 

During the years following construction of the CATCH building and up 

to the time of the accident, Appellant did not observe the rod in the street and 

indicated that the location where he crossed the street would vary depending upon 

where cars were parked. At the time of the incident, it was still dark and Appellant 

testified that he did not notice the rod immediately prior to his fall. (R.R. at 8a-9a, 

12a.) 

In April of 2015, two of the defendants, CATCH and Allied, filed 

motions for summary judgment. By orders entered June 2, 2015, and August 4, 2015, 

respectively, the trial court granted CATCH and Allied’s motions for summary 

judgment. The trial court stated that Appellant’s fall occurred on the City’s street, not 

the sidewalk, and concluded that CATCH had no legal responsibility for the street. 

(Trial court’s Pa.R.A.P. 1925(a) op., 5/2/16, at 2.) 
5

Further, as to Allied, the trial court noted that, at his deposition, 

Appellant testified that he walks past the location of the accident on a daily basis and 

had not observed the bent rod on the day of the accident or any other day prior to the 

accident. The trial court stated:

When questioned as to his theory of what the bent rod was 

and how it ended up in the street, [Appellant] stated that he 

had seen construction at the location of his fall six years 

previously. [Appellant] knew [Allied] was conducting the 

work because he had spoken to an employee on the site. He 

testified that the bent rod looked like an “electrical corral 

ground” for running electricity to work trailers. He testified 

that he never observed Allied employees placing or using 

the rod.

(Trial court’s op., 8/4/15, at 2.) Thus, the trial court reasoned: 

Even in the light most favorable to the non-moving party, 

[Appellant’s] explanation is devoid of evidence to support a 

finding that [Allied] inserted the rod in the street. 

[Appellant] did not see the bent rod for six years before the 

day of the accident. He did not see Allied workers actually 

place or even ever used [sic] the bent rod in the street. 

[Appellant] has not established any genuine issue of 

material fact, he relies only on speculation and the 

allegations made in his complaint. The bent rod could have 

been placed prior to or after the construction conducted by 

[Allied] occurred. [Appellant’s] mere speculation that

[Allied] placed the rod does not establish a genuine issue of 

material fact. He has presented no additional evidence to 

establish any activity by [Allied] concerning the rod.

Id. at 2-3. 

After Appellant settled out of court with the City, the last defendant in 

the case, the summary judgment orders became final and Appellant timely appealed 

to the Superior Court, which transferred the appeal to this Court.
6

On appeal,2 Appellant contends that the trial court erred in granting 

Allied’s motion for summary judgment because it ignored Appellant’s submission of 

circumstantial evidence, which must be weighed by a jury. Further, Appellant claims 

that the trial court erred because he may be entitled to a res ipsa loquitor charge 

giving rise to an inference of negligence. Appellant also contends that during 

discovery, Allied failed to produce permits issued by the City’s Licenses and 

Inspections (L&I) Department for the construction activity and the lack of a permit is 

a clear violation of law and constitutes negligence per se. 

Contrarily, Allied maintains that summary judgment was properly 

entered because Appellant did not present sufficient evidence to support a reasonable 

inference that the rod belonged to Allied, that Allied placed the rod in the street, or 

that Allied did so negligently. Moreover, Allied argues that there can be no inference 

of negligence based upon the doctrine of res ipsa loquitor because Appellant failed to 

sufficiently rule out other causes and/or entities in connection with the rod. Allied 

states that Appellant failed to brief the issue of negligence per se in any meaningful 

manner but responds that Appellant cannot assert the theory of negligence per se in 

the absence of identifying a statute or law allegedly violated by Allied and that the 

statute or law was enacted for the benefit of Appellant. 

Appellant claims that the trial court erred in granting summary judgment 

in favor of CATCH because it is vicariously liable for its agent’s negligence and may 

be found independently negligent for failing to inspect its worksite upon completion 

 

2 Our standard of review of a trial court’s grant of summary judgment is de novo and our 

scope of review is plenary. Sukenik v. Township of Elizabeth, 131 A.3d 550, 555 (Pa. Cmwlth. 

2016). A trial court’s order will be reversed only if it committed an error of law or abused its

discretion. Jones v. Southeastern Pennsylvania Transportation Authority, 748 A.2d 1271, 1272 n.2 

(Pa. Cmwlth. 2000), aff’d, 772 A.2d 435 (Pa. 2001).
7

and/or failing to require proof of permits. In response, CATCH maintains that it 

cannot be held vicariously liable where there is no underlying negligence on the part 

of its agent, Allied. As to any claim for independent negligence, CATCH argues that 

Appellant failed to demonstrate any duty owed by CATCH.

Discussion

Our rules of civil procedure provide that a party may move for summary 

judgment:

if, after the completion of discovery relevant to the motion, 

including the production of expert reports, an adverse party 

who will bear the burden of proof at trial has failed to 

produce evidence of facts essential to the cause of action or 

defense which in a jury trial would require the issues to be 

submitted to a jury.

Pa.R.C.P. No. 1035.2(2). Notably, in order to survive a motion for summary

judgment, a non-moving party must produce sufficient evidence on an issue essential

to his case and on which he bears the burden of proof such that a jury could return a 

verdict in his favor. Wenger v. West Pennsboro Township, 868 A.2d 638, 641 (Pa. 

Cmwlth. 2005). Where, as here, a party seeks to avoid the imposition of summary 

judgment, that party must show by specific facts in its depositions, answers to 

interrogatories, admissions, or affidavits that there is a genuine issue for trial. Jones 

v. Southeastern Pennsylvania Transportation Authority, 748 A.2d 1271, 1272 (Pa. 

Cmwlth. 2000), aff’d, 772 A.2d 435 (Pa. 2001). The failure to adduce such evidence 

establishes the absence of a genuine issue of material fact and the moving party is 

entitled to judgment as a matter of law. Wenger, 868 A.2d at 641. 

When resolving the merits of the motion, we examine the record in the 

light most favorable to the non-moving party, and any doubts as to the existence of a 
8

genuine issue of material fact are resolved against the moving party. Edinger v. 

Borough of Portland, 119 A.3d 1111, 1113-14 (Pa. Cmwlth. 2015). We note that 

summary judgment may be granted only where the right to judgment is clear and free 

from doubt. Ario v. Ingram Micro, Inc., 965 A.2d 1194, 1200 (Pa. 2009).

Whether there are genuine issues as to any material fact presents a 

question of law for an appellate court. Shedden v. Anadarko E. & P. Company, 136 

A.3d 485, 489 (Pa. 2016). Importantly, however, the function of an appellate court is

not to decide issues of fact, but only to determine whether a genuine issue of material 

fact exists. Barra v. Rose Tree Media School District, 858 A.2d 206, 214 (Pa. 

Cmwlth. 2004). 

Allied’s Motion for Summary Judgment

Appellant contends that the trial court erred in granting summary 

judgment in favor of Allied because the trial court ignored circumstantial evidence 

from which a jury could find that Allied installed, and failed to remove, the rod in 

question. 

First, Appellant contends that the trial court improperly increased his 

evidentiary burden by requiring him to produce direct evidence to support his claim. 

Appellant argues that Pennsylvania also permits the introduction of circumstantial 

evidence, and allows reasonable inferences to be drawn from that evidence. By doing 

so, Appellant misconstrues the trial court’s decision, which clearly found his 

evidence, whether circumstantial or direct, insufficient to establish a genuine issue of 

material fact, i.e., that Allied had any sort of connection to the rod that caused him to 

fall. 
9

Next, Appellant argues that his circumstantial evidence supported a 

reasonable inference that Allied installed the rod at issue. Here, we note that 

Appellant misapprehends the evidence required to withstand Allied’s motion for 

summary judgment. 

For instance, in response to the summary judgment motion, Appellant 

points to facts asserted in his “affidavit.” Appellant’s counsel asks this Court to 

disregard an error in the caption of that document, which identifies an entirely 

different and unrelated case. (Appellant’s brief at 13 n.6.) However, this document 

does not contain a statement that either: 

(1) is sworn to or affirmed before an officer authorized by 

law to administer oaths, or before a particular officer or 

individual designated by law as one before whom it may be 

taken, and officially certified to in the case of an officer 

under seal of office; or (2) is unsworn and contains a 

statement that it is made subject to the penalties of 18 

Pa.C.S. §4904 relating to unsworn falsification to 

authorities.

Pa.R.C.P. No. 76 (Definitions, “affidavit”). Therefore, this document fails to qualify 

as an “affidavit” that can be part of the record for summary judgment purposes. See

Pa.R.C.P. Nos. 1035.4 (pertaining to affidavits in support and in opposition of 

summary judgment); 1035.1 (designating the “record” for summary judgment 

purposes); and 76 (defining the term “affidavit”). 

Additionally, Appellant’s counsel relied upon his own personal 

determination that no construction permits were issued. Appellant’s counsel states in 

his brief that “[t]he City’s L&I Department in the Municipal Services Building 

advised the undersigned in person that there were no permits pulled for 1208 S. 15th
10

Street, Philadelphia, PA, ‘ever.’” (Appellant’s brief at 13, 20 n.8.) However, the 

“record” on summary judgment is limited to 

(1) pleadings,

(2) depositions, answers to interrogatories, admissions and 

affidavits, and

(3) reports signed by an expert witness that would, if filed, 

comply with Rule 4003.59(a)(1), whether or not the 

reports have been produced in response to 

interrogatories.

Pa.R.C.P. No. 1035.1. In the absence of a qualifying affidavit, deposition testimony, 

answers to interrogatories, or admissions evidencing the same, Appellant’s counsel’s 

assertion is not part of the record for review.3

Lastly, Appellant relied upon his own deposition testimony that he was 

experienced in construction, knew that the type of rod in question was required for a 

construction trailer’s needs, and observed how others inserted such rods into the 

streets. Further, Appellant points to his testimony that Allied’s trailer was located 

where the rod was found. (Appellant’s brief at 13.)

To prove a claim of negligence, Appellant must prove: (1) a duty or 

obligation recognized by law; (2) a breach of that duty; (3) a causal connection 

 

3

To the extent Appellant argues that he was unable to obtain permit information from Allied 

in discovery, Appellant was required to seek permission from the trial court to supplement the 

record pursuant to Pa.R.C.P. No. 1035.3(b), which provides:

An adverse party may supplement the record or set forth the reasons 

why the party cannot present evidence essential to justify opposition 

to the motion and any action proposed to be taken by the party to 

present such evidence.

Pa.R.C.P. No. 1035.3(b). Appellant had various avenues by which he could have obtained such 

evidence, e.g., by filing a motion to compel Allied to respond to discovery requests or by serving a 

subpoena upon the City’s L&I Department to produce such documents.
11

between the actor’s breach of the duty and his resulting injury; and (4) actual loss or 

damage suffered. Taylor v. Jackson, 643 A.2d 771, 775 (Pa. Cmwlth. 1994). As we 

explained in Taylor:

It is beyond question that the mere existence of negligence 

and the occurrence of injury are insufficient to impose 

liability upon anyone as there remains to be proved the link 

of causation. Cuthbert v. City of Philadelphia, 417 Pa. 610, 

209 A.2d 261 (1965). Furthermore, our [S]upreme [C]ourt 

has stated that “. . . even when it is established that the 

defendant breached some duty of care owed the plaintiff, it 

is incumbent on a plaintiff to establish a causal connection 

between defendant’s conduct, and it must be shown to have 

been the proximate cause of plaintiff’s injury.” Hamil v. 

Bashline, 481 Pa. 256, 264, 392 A.2d 1280, 1284 (1978).

Id. Hence, even if Appellant were able to prove both a breach of duty and the 

occurrence of an injury, he must still show the two were linked by causation. Krauss 

v. Trane U.S. Inc., 104 A.3d 556, 568 (Pa. Super. 2014). 

 Even though inferences can be drawn from the evidence, such 

inferences must be reasonable. InfoSAGE, Inc. v. Mellon Ventures, L.P., 896 A.2d 

616, 626 (Pa. Super. 2006). When reviewing the propriety of the grant of a summary 

judgment motion, we are mindful that a jury may not be permitted to reach its verdict 

on the basis of speculation or conjecture. Id. Rather, “there must be evidence upon 

which logically its conclusion must be based.” Krauss, 104 A.3d at 568 (quoting 

Farnese v. Southeastern Pennsylvania Transportation Authority, 487 A.2d 887, 890 

(Pa. Super. 1985)). It is well-established that:

[a] plaintiff cannot survive summary judgment when mere 

speculation would be required for the jury to find in 

plaintiff’s favor. A jury is not permitted to find that it was a 

defendant’s [negligence] that caused the plaintiff’s injury 

based solely upon speculation and conjecture; there must be 
12

evidence upon which logically its conclusion must be 

based. In fact, the trial court has a duty to prevent questions 

from going to the jury which would require it to reach a 

verdict based on conjecture, surmise, guess or speculation. 

Additionally, a party is not entitled to an inference of fact 

that amounts merely to a guess or conjecture.

Krauss v. Trane U.S. Inc., 104 A.3d 556, 568 (Pa. Super. 2014). As the Superior 

Court noted in InfoSAGE, Inc., the standard of giving “the non-moving party all 

reasonable inferences deducible from the evidence in reviewing a grant of summary

judgment does not require that we check our common sense at the courtroom door -

in fact, just the opposite.” 896 A.2d at 639 (alteration in original).

Viewing Appellant’s deposition testimony in the light most favorable to 

Appellant, the only reasonable inference to be drawn is that Allied’s construction 

trailer, even if it was fitted for electrical service, was in the area the rod was found

during construction of the CATCH building. As noted above, Appellant testified that 

such construction took place over a six-month period in 2005 or 2006. Appellant 

further testified that he never saw anyone place the rod in question, and he never 

noticed the rod prior to construction or in the five-year period between the 

completion of construction and his fall. Appellant submitted no evidence to rule out 

other construction that may have occurred in the area and/or other entities that may 

have placed the rod. Further, Appellant submitted no other evidence to connect 

Allied to the rod. Without more, Appellant’s evidence is insufficient for a jury to 

reasonably infer that Allied placed the rod in the street, let alone that Allied did so 

negligently. 

In order to avoid the entry of summary judgment against him, Appellant 

was required to show by specific facts in depositions, answers to interrogatories, 
13

admissions, or affidavits that there is a genuine issue for trial.4 Jones, 748 A.2d at 

1272. Appellant wholly failed in this regard. Rather, the inferences that Appellant 

argues can be drawn from the evidence are based solely on speculation and 

conjecture, which is insufficient for Appellant to survive summary judgment. 

Krauss, 104 A.3d at 568.

Furthermore, while Appellant attempts to shift the burden of proof to 

Allied to show that it did not place the rod, it is Appellant’s responsibility to produce 

sufficient evidence on the issues essential to his cause of action and on which he 

bears the burden of proof such that a jury could return a verdict in his favor. Wenger, 

868 A.2d at 641. Based upon the evidence of record, the trial court appropriately 

entered summary judgment in favor of Allied. 

Res Ipsa Loquitor

Appellant also claims that the trial court erred because he may be 

entitled to an inference of negligence based upon the doctrine of res ipsa loquitor. 

 The doctrine of res ipsa loquitor permits an inference that the harm 

suffered by a plaintiff is caused by the negligence of a defendant only when the 

following three elements are met:

(a) the event is of a kind which ordinarily does not occur in 

the absence of negligence; 

 

4 Again, to the extent Appellant was unable to produce such evidence at the time of filing of 

the summary judgment motion, Appellant was required to follow the procedures set forth in 

Pa.R.C.P. No. 1035.3(b).
14

(b) other responsible causes, including the conduct of the 

plaintiff and third persons, are sufficiently eliminated by the 

evidence; and

(c) the indicated negligence is within the scope of the 

defendant’s duty to the plaintiff.

Fessenden v. Robert Packer Hospital, 97 A.3d 1225, 1230 (Pa. Super. 2014) (quoting 

Restatement (Second) of Torts §328D(1) (1965)). Allied argues that Appellant has 

failed to satisfy clause (b) of section 328D(1) of the Restatement (Second) of Torts 

because he failed to sufficiently rule out other causes and/or entities in connection 

with the rod. 

Appellant attempts to place the burden on Allied to show that there were 

other responsible causes for the placement of the rod. In his brief, Appellant states: 

 It appears that only Allied and CATCH could have had 

any possible reason to embed an electrical ground rod, and 

that the likelihood is fairly high that they did insert a 

grounding rod near the trailer, where it was found. It is 

incumbent upon defendants [CATCH] and [Allied] to 

produce as an affirmative duty evidence that it was 

somehow not theirs, which it has not done. 

(Appellant’s brief at 18.) Further, Appellant asserts that “Allied has not offered any 

reasonable inferences for the pre- or post-existence of the grounding rod.” Id. at 14. 

However, it was incumbent upon Appellant to show that all three elements noted 

above were satisfied for the doctrine of res ipsa loquitor to apply.

Appellant relies upon his own purported “affidavit” for his assertion that 

the rod could not have been placed in the street prior to Allied’s construction because 
15

the street was paved shortly prior to the same.

5

 Moreover, Appellant asserts that no 

other construction activity has occurred on that block since Allied concluded its 

construction, but offered no evidence to support the same. Here, even if Appellant’s 

purported affidavit was properly part of the record for this Court’s review, which it is 

not, it is clear that Appellant has not sufficiently eliminated other responsible causes

for the placement of the rod both prior and subsequent to Allied’s construction 

activity. Therefore, Appellant’s argument that he may be entitled to an inference of 

negligence under the doctrine of res ipsa loquitor must fail. 

Negligence per se

Additionally, Appellant argues that it is clear that Allied’s trailer had 

electricity hooked up to it, and Allied and/or CATCH failed to obtain permits that 

would have allowed a temporary electrical service to the site and the trailer. 

Appellant contends that the failure to obtain permits for the construction activity is “a 

clear violation of law that a jury can determine negligence per se.” (Appellant’s brief 

at 20.) Appellant argues that the failure to obtain permits is, at a minimum, “a 

violation of City of Philadelphia ordinances.” Id. 

First, there is no evidence of record to show that Allied and/or CATCH 

failed to obtain permits for the construction activity. Appellant merely submits his 

request for production of documents wherein two broad requests were made for any 

and/or all documents related to the incident, incident site, instrumentality involved in 

the incident, and/or the facts and circumstances leading up to and following the 

 

5

In the document, Appellant states that he has lived less than a block from where the rod 

was placed in the street since 1998 and recalls that South 15th Street was resurfaced in the year prior 

to the construction. Appellant then opines that “[t]he milling process would have taken up anything 

in the street like a rod or bar.” (R.R. at 13a.)
16

incident. (R.R. at 35a.) Allied responded to these requests by indicating that no 

documents existed apart from the documents it had already produced. (R.R. at 45a46a.) Appellant contends that Allied’s failure to include copies of construction 

permits in its response to discovery indicates that such permits do not exist. 

In its brief, Allied responds that it did not produce permits because it had 

no permits in its possession and it produced what remained of its job file seven years 

post-completion of the construction project. Allied notes that such permits would 

have been equally accessible to Appellant had he served a proper and timely 

subpoena upon the City’s L&I Department. Importantly, Allied points out that even 

if Appellant’s broad requests could be deemed to have included a request for 

construction permits, the failure to produce the same does not evidence a violation of 

the law.

From the evidence of record, we cannot infer that Allied failed to obtain 

construction permits.6 We note that if Appellant was unable to obtain full responses 

to its discovery requests, he was required to seek permission from the trial court to 

supplement the record pursuant to Pa.R.C.P. No. 1035.3(b), which provides:

An adverse party may supplement the record or set forth the 

reasons why the party cannot present evidence essential to 

justify opposition to the motion and any action proposed 

to be taken by the party to present such evidence.

Pa.R.C.P. No. 1035.3(b) (emphasis added). Had Appellant followed this procedure, 

he could have obtained appropriate evidence of record in support of his claim that 

 

6 Appellant’s counsel contends that he confirmed the non-existence of construction permits 

by performing his own investigation by speaking with an employee or representative of the City’s 

L&I Department and searching that Department’s website. Counsel’s statements in his brief, 

however, are not part of the record for purposes of summary judgment review.
17

Allied failed to obtain construction permits, e.g., he could have made a more specific 

request for Allied to produce the construction permits, moved to compel Allied to 

fully respond to the discovery requests, served Allied with interrogatories to inquire 

about the existence of construction permits, served Allied with a request for 

admissions to confirm their non-existence, or served a subpoena directly upon the 

City’s L&I Department for the production of construction permits. 

 Importantly, even if Appellant had submitted evidence of record that 

Allied did not obtain construction permits, Appellant does not explain how the same 

constitutes negligence per se. “Negligence per se establishes both a duty and the 

required breach of duty where an individual violates an applicable statute, ordinance 

or regulation designed to prevent a public harm.” Ford ex rel. Pringle v. 

Philadelphia Housing Authority, 848 A.2d 1038, 1062 n.11 (Pa. Cmwlth. 2004). As 

noted by Allied, Appellant does not develop this argument. Appellant does not 

identify which statute, ordinance, or law that Allied allegedly violated, let alone how 

that statute, ordinance, or law was designed to prevent a public harm. Appellant 

merely states, generally, that Allied violated unspecified ordinances of the City of 

Philadelphia. The same is insufficient to support a claim of negligence per se.

7

 

Therefore, Appellant’s argument that a jury could find that Allied committed 

negligence per se must fail. 

 

7 Moreover, even if Appellant could prove negligence per se, he would still be required to 

show that such negligence was the proximate or legal cause of his injury. Eckroth v. Pennsylvania 

Electric, Inc., 12 A.3d 422, 427 (Pa. Super. 2010), appeal denied, 21 A.3d 678 (Pa. 2011).
18

CATCH’s Motion for Summary Judgment

Appellant claims that the trial court erred in granting summary judgment 

in favor of CATCH because CATCH is vicariously liable for its agent’s negligence. 

The rule of vicarious liability states that 

a principal is liable to innocent third parties for the frauds, 

deceits, concealments, misrepresentations, torts,

negligences and other malfeasances or misfeasances of his 

agent committed in the course of his employment, although 

the principal did not authorize, justify or participate in, or 

indeed know of, such misconduct, or even if he forbade the 

acts or disapproved of them. 

Aiello v. Ed Saxe Real Estate, Inc., 499 A.2d 282, 287 (Pa. 1985) (footnote omitted). 

Here, however, there can be no liability of CATCH’s agent because we have 

concluded that summary judgment was properly entered in favor of Allied. Without 

any underlying negligence of its agent, no vicarious liability can be attributed to 

CATCH. Therefore, Appellant’s claim against CATCH for vicarious liability must 

fail. 

Additionally, Appellant contends that the trial court erred in stating that 

CATCH had no legal responsibility over the area of the City’s street where 

Appellant’s fall occurred. According to Appellant, CATCH may be found 

independently negligent for failing to inspect its worksite upon completion and/or 

failing to require proof of permits. Appellant does not direct the Court to any 

evidence of record to support these assertions, and the record is devoid of such 

evidence. Therefore, Appellant’s claim against CATCH for direct negligence must 

fail, and the trial court property granted summary judgment in favor of CATCH.
19

Conclusion

Upon review of the record, it is clear that Appellant failed to produce 

sufficient evidence to create any genuine issue of material fact as to his claims against 

Allied and CATCH and upon which Appellant bore the burden of proof. Therefore, 

we discern no error in the trial court’s grant of summary judgment in favor of Allied 

and CATCH. 

Accordingly, the trial court’s orders dated June 2, 2015, and August 4, 

2015, are affirmed. 

________________________________

PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ronnie Rogers, :

Appellant :

: No. 2678 C.D. 2015

v. :

:

City of Philadelphia; and Allied :

Construction Services II, Inc.; :

and Catch Inc. a/k/a Anna’s House :

ORDER

AND NOW, this 30th day of November, 2016, the June 2, 2015 and 

August 4, 2015 orders of the Court of Common Pleas of Philadelphia County are 

hereby affirmed.

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PATRICIA A. McCULLOUGH, Judge