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2014 PA Super 184 

VINCENT P. NERTAVICH, JR. IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 

v.

PPL ELECTRIC UTILITIES, KTA, KTATATOR, INC., 

KTA/SET ENVIRONMENTAL, S-E 

TECHNOLOGIES, INC., 

ALEXANDER ANDREW, INC., D/B/A 

FALLTECH, ALEXANDER 

ANDREW, INC., FALLTECH, THOMAS & 

BETTS CORP., 

THOMAS & BETTS CORP., D/B/A OR T/A 

MEYER STEEL STRUCTURES, F/K/A I.T.T. 

- MEYER 

INDUSTRIES, F/K/A MEYER INDUSTRIES, 

MEYER 

STEEL STRUCTURES F/K/A I.T.T.- MEYER 

INDUSTRIES, 

F/K/A MEYER STEEL STRUCTURES, ITTMEYER INDUSTRIES, 

MEYER INDUSTRIES, MEYER MACHINE, 

INC. AND WINOLA 

INDUSTRIAL, INC. 

APPEAL OF: PPL ELECTRIC UTILITIES 

CORPORATION 

 No. 3415 EDA 2012 

Appeal from the Judgment Entered December 5, 2012 

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): No. 2316 Sept. Term 2009 

BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and STRASSBURGER, J.* 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court.
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OPINION BY OTT, J.: FILED AUGUST 27, 2014 

PPL Electric Utilities, Corporation (“PPL”) appeals from the judgment of 

$2,494,542.35, entered December 5, 2012, in the Philadelphia County Court 

of Common Pleas, in favor of Vincent P. Nertavich, Jr., for the injuries he 

sustained when he fell 40 feet while working as the employee of an 

independent contractor1 hired to paint PPL’s electric transmission poles.2

 On 

appeal, PPL argues the trial court erred in failing to grant judgment 

notwithstanding the verdict (j.n.o.v.) or a new trial. For the reasons set 

forth below, we conclude that PPL was entitled to the grant of j.n.o.v., and, 

accordingly, reverse the judgment entered in favor of Nertavich. 

 The facts underlying this appeal are summarized by the trial court as 

follows: 

Defendant PPL owns 90-foot-high, 10-foot-in 

circumference tubular steel electric transmission poles. Some of 

these poles need to be repainted from time to time to prevent 

structural decay. PPL contracted with QSC [Painting, 

Nertavich’s] employer, to paint the poles. The contract called for 

work to begin in August 2007 and be completed by November 

2007. It directed that “[a]ll work shall be performed according 

____________________________________________ 

1 QSC Painting (“QSC”) was Nertavich’s employer.

2 Nertavich’s claims against the named defendants, with the exception of PPL 

and Thomas & Betts Corp., were either dismissed by the trial court or settled 

prior to trial. Thomas & Betts was the manufacturer of both the electric 

transmission pole and ladder upon which Nertavich was working when he 

fell. Nertavich’s products liability claim with respect to the manufacture and 

sale of the pole was dismissed pretrial by summary judgment. His claim 

with respect to the ladder proceeded to trial, but the jury found Thomas & 

Betts was not negligent. 
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to the attached PPL EU ‘Specification for the Maintenance 

Painting of Transmission Structures’ revision dated 8/3/07.”

 That PPL Specification document contained a variety of

detailed requirements about the job. It prescribed each step 

how to paint the poles. 

. . . . 

 While the workmen painted, power might continue to 

surge through the lines attached to the poles. As a result, the 

workers had to take “extra precautions when painting near 

insulators, making sure that paint does not splatter or drip onto 

insulators,” and the workers would not be allowed to wipe paint 

off the insulators. Also, PPL maintained control over the 

worksite: PPL supplied an “Authorized Representative,” also 

known as a contract field representative, for the project who was 

“the daily source of contact ... in areas of any question, 

materials, quality assurance, general safety, work procedures 

and schedule.” PPL had to go to the power substations and set 

the circuit breakers so that the workers would not be 

electrocuted. PPL employed a “green tag” procedure where the 

PPL representative would not allow workers on the poles until 

the lines were set. 

Pursuant to PPL’s internal guidelines for safety and health 

procedures, the PPL field representative had the duty to “monitor 

the contractor to ensure that safety requirements of the contract 

are adhered to ... [and] observe the contractor’s performance.” 

The PPL field representative had the authority to “stop the 

contractor’s work for severe or repeated safety violations,” and 

“if the PPL Field Representative observes an unsafe work practice 

involving a direct threat or imminent danger, the field 

Representative immediately will direct that all work stop[.]”

PPL’s poles dated from the 1980s. The poles were custom 

ordered from Defendant Thomas & Betts, with PPL establishing 

their specifications. The pole specifications included the 

dimensions of the pole, its paint, and the number and type of 

attachment points. PPL was aware that the poles would need 

repainting every 15 to 20 years. PPL did not specify that the 

poles should have any vangs[, i.e., pieces of metal,] welded onto 

them so that a worker’s lanyard or other suspension device could 

attach to the pole. The only attachment points on the poles, 

besides those at the top of the poles and on the arms for 

electrical wires, were a series of brackets running up one side of 
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the pole. These brackets served as attachment points for

removable single-rail ladders, known as “chicken” ladders. They 

are known as “chicken” ladders because they are unstable and

wobble, frightening workers. There was no place for a worker 

climbing the pole to attach a lanyard or lifeline, except for 

somewhere on these ladders. There were two types of ladders. 

Both consisted of a central metal beam with metal pegs 

protruding out to the left and right. The first, termed a working 

ladder, had parallel pegs on each side to give the appearance of 

a straight bar across the rail so that a worker could stand level. 

The second type, the climbing ladder, had alternating pegs 

staggered at regular intervals up each side of the rail. The 

ladders came from the manufacturer with two bolts that attach 

through their bottom to secure them to the pole. QSC, not 

having another means of lifting its workers into place to paint 

the pole, asked PPL for the removable ladders. PPL provided 

QSC with the ladders, but not with the bolts. 

 On September 23, 2007, ... Nertavich was 40 feet off the 

ground working on a PPL pole. More experienced workers were 

painting the pole above him. He was standing on one of the 

climbing ladders. QSC provided [Nertavich] with a pole belt, a 

body harness, and two lanyards. One lanyard was to attach to 

the pole belt, and the other was to attach to the body harness to 

serve as a lifeline. [Nertavich] used only the pole belt and one 

lanyard. He testified at trial that on previous jobs he had used 

only the pole belt and one lanyard, and that no one told him he 

had to use the harness as well.[3]

 The one lanyard he used was 

coated in dried paint. [Nertavich] tied the paint-coated lanyard 

to the ladder above him, a working ladder, by looping it around a 

left peg. [Nertavich], holding on to the lanyard, leaned out to 

his left to slap paint on a hard-to-reach spot on the back of the 

pole. The ladder above him to which he was tied off wobbled 

several inches to the left. The lanyard unlooped. [Nertavich] fell 

40 feet, landing on his feet. The fall fractured his feet, 

dislocated his ankles, fractured his knee, his right femur, his 

right hip, and burst several of his lumbar spine disks. 

____________________________________________ 

3

 Indeed, Nertavich admitted that his body harness was in his truck on the 

day of his accident. N.T., 3/1/2012, at 129-130. 
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[Nertavich] lost 3 inches in height as his body literally

compacted from the fall. 

Trial Court Opinion, 6/14/2013, at 2-6 (footnotes and record citations 

omitted). 

 Nertavich initiated this personal injury/products liability action by writ 

of summons on September 23, 2009. After filing a complaint and first 

amended complaint, Nertavich filed a second amended complaint on April 

21, 2011. The named defendants included the “product defendants” –

Falltech, Thomas & Betts, and Winola Industrial, Inc. – which designed, 

manufactured, and/or sold fall protection equipment, the electric 

transmission poles, and the single-rail ladders4 – and the “utility defendants” 

– PPL and KTA/Set Environmental, the owner of the utility poles and an 

engineering consulting company hired to oversee the painting work, 

respectively. Nertavich raised claims of general negligence, professional 

negligence, strict liability, and breach of warranty, as well as sought punitive 

damages. 

 PPL filed a motion for summary judgment on July 5, 2011, which the 

trial court denied on September 1, 2011.5 The case proceeded to a jury 

____________________________________________ 

4

These ladders were also referred to as “chicken ladders,” “climbing 

assists,” and “McGregor ladders” throughout the trial.

5

 The other defendants also filed motions for summary judgment. Relevant 

to this appeal, Thomas & Betts filed a motion for partial summary judgment, 

arguing that Nertavich’s products liability claim with respect to the 

manufacture and design of the transmission pole was barred by the statute 

(Footnote Continued Next Page) 
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trial, commencing in February of 2012. PPL moved for a nonsuit at the 

conclusion of Nertavich’s case-in-chief, and a directed verdict at the close of 

all testimony, both of which were denied by the trial court.6

 On March 9, 

2012, the jury returned a verdict in favor of Nertavich in the amount of 

$4,613,150.00. However, the jury found PPL 51% causally negligent for 

Nertavich’s injuries, and Nertavich, himself, 49% causally negligent for his 

injuries. The jury also found that the ladder designed by Thomas & Betts 

was not defective.7 

 Both parties sought post-trial relief. On March 13, 2012, Nertavich 

filed a motion for delay damages, and, on March 19, 2012, PPL filed posttrial motions seeking j.n.o.v. or a new trial. The trial court granted 

Nertavich’s motion, and, on April 9, 2012, entered a molded verdict in the 

amount of $2,494,542.35 in favor of Nertavich and against PPL.8 Thereafter, 

on November 26, 2012, the trial court denied PPL’s post-trial motion, and on 

(Footnote Continued) _______________________ 

of repose. See 42 Pa.C.S. § 5536. The trial court agreed, and dismissed 

that claim. See Order, 9/1/2011. 

6

 The trial court did, however, grant PPL’s motion for a nonsuit with regard 

to Nertavich’s claim for punitive damages. N.T., 3/7/2012, at 137.

7

 Accordingly, Thomas & Betts has not filed a brief in this appeal. 

8

 The molded verdict reflects both a reduction in the total award based upon 

the jury’s finding Nertavich 49% liable, and the addition of delay damages.
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December 5, 2012, judgment was entered on the verdict. This timely appeal 

followed.9

 PPL raises the following four issues on appeal: 

(1) Is PPL entitled to judgment notwithstanding the verdict for 

injuries sustained by an employee of an independent 

contractor when controlling Pennylvania law, as reflected 

in Beil v. Telesis Construction, Inc., 608 Pa. 273, 11 A.3d 

456 (Pa. 2011), requires that PPL exercise significant 

control over the manner, methods, means, and operative

detail of the portion of the independent contractor’s work 

that is specifically related to the accident, and the evidence 

at trial established that the independent contractor itself 

directed and exercised control over its work? 

(2) Is PPL entitled to a new trial on liability when the Court 

improperly permitted Nertavich to introduce evidence of 

PPL’s other purported duties – including such things as 

PPL’s internal guidelines, OSHA, NESC, the duties of PPL’s 

onsite safety representative, and a common law duty to

hire competent contractors – when those purported duties 

are inconsistent with Beil or otherwise inapplicable under 

the law? 

(3) Is PPL entitled to a new trial on liability when the Court 

instructed the jury contrary to Beil? 

(4) Is PPL entitled to judgment notwithstanding the verdict 

when the evidence established that Nertavich assumed the 

risk of his fall? 

PPL’s Brief at 3-4. Because we conclude that PPL is entitled to j.n.o.v. on its 

first issue, we need not address its remaining claims. 

____________________________________________ 

9

 The trial court did not direct PPL to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b). 
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 First, PPL contends it is entitled to j.n.o.v. because Nertavich failed to 

establish that it retained control over the manner, methods, means, and 

operative detail of the work of Nertavich’s employer that was sufficient to 

overcome the general rule that an owner owes no duty to the employees of 

an independent contractor. 

“A [j.n.o.v.] can be entered upon two bases: (1) where the movant is 

entitled to judgment as a matter of law; and/or, (2) the evidence was such 

that no two reasonable minds could disagree that the verdict should have 

been rendered for the movant.” Egan v. USI Mid-Atl., Inc., 92 A.3d 1, 19-

20 (Pa. Super. 2014) (citation omitted). Our review of a trial court’s 

decision granting or denying a post-trial motion for j.n.o.v. is wellestablished: 

When a court reviews a motion for judgment n.o.v., the 

reviewing court considers the evidence in the light most 

favorable to the verdict winner, who must receive the benefit of 

every reasonable inference of fact arising therefrom, and any 

conflict in the evidence must be resolved in his or her favor. A 

judgment n.o.v. should only be entered in a clear case. 

Beil v. Telesis Const. Inc., 11 A.3d 456, 462 (Pa. 2011) (citations 

omitted). Further, we will not substitute our judgment for that of the fact 

finder when it comes to questions of credibility and weight of the evidence. 

Egan, supra, 92 A.3d at 20 (citation omitted). 

 In Beil, the case upon which PPL relies for support of its appeal, the 

Pennsylvania Supreme Court reiterated the century old “accepted and 

general rule ... that a landowner who engages an independent contractor is 
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not responsible for the acts or omissions of such independent contractor or 

his employees.” Beil, supra, 11 A.3d at 466 (emphasis supplied). 

This foundational law is based upon the long-standing notion 

that one is not vicariously liable for the negligence of an 

independent contractor, because engaging an independent

contractor “implies that the contractor is independent in the 

manner of doing the work contracted for. How can the other 

party control the contractor who is engaged to do the work, and 

who presumably knows more about doing it than the man who 

by contract authorized him to do it? Responsibility goes with 

authority.” Silveus v. Grossman, 307 Pa. 272, 278, 161 A. 

362, 364 (1932). 

Id.

 However, this general rule is subject to certain exceptions. Relevant 

to the present case is the “retained control” exception set forth in Section 

414 of the Restatement (Second) of Torts: 

One who entrusts work to an independent contractor, but who 

retains the control of any part of the work, is subject to liability 

for physical harm to others for whose safety the employer owes 

a duty to exercise reasonable care, which is caused by his failure 

to exercise his control with reasonable care. 

Restatement (Second) of Torts § 414 (1965). 

 The Beil Court discussed the degree of control necessary to hold an

owner liable for injuries suffered by an employee of an independent 

contractor under Section 414: 

The primary question in many premises cases, as is the 

issue before us, is whether the property owner hirer of the 

independent contractor retained sufficient control of the work to 

be legally responsible for the harm to the plaintiff. Comment c 

to Section 414 provides the most commonly used test for 

determining whether an employer/landowner retained sufficient 

control. More precisely, comment c speaks to the degree of 
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control necessary for the exception to overcome the general rule 

against liability. Comment c makes manifest that the right of 

control must go beyond a general right to order, inspect, make 

suggestions, or prescribe alterations or deviations, but that there 

must be such a retention of the right of supervision that it 

renders the contractor not entirely free to do the work in his own 

way: 

In order for the rule stated in this Section to apply, the 

employer must have retained at least some degree of 

control over the manner in which the work is done. It is 

not enough that he has merely a general right to order the 

work stopped or resumed, to inspect its progress or to 

receive reports, to make suggestions or recommendations 

which need not necessarily be followed, or to prescribe 

alterations and deviations. Such a general right is 

usually reserved to employers, but it does not mean 

that the contractor is controlled as to his methods of 

work, or as to operative detail. There must be such a 

retention of a right of supervision that the contractor 

is not entirely free to do the work in his own way.

Restatement (Second) of Torts § 414, cmt. c (emphasis added); 

see also Hader[ v. Coplay Cement Mfg. Co., 410 Pa. [139,] 

150–52, 189 A.2d [271,] 277–78 [(1963] (rejecting assertion 

that site visitation and provision of technical advice regarding 

installation of machinery did not demonstrate control of 

workplace). The control required to implicate the 

exception to the general rule against liability can be 

demonstrated in two ways. First, a plaintiff may point to 

contractual provisions giving the premises owner control 

over the manner, method, and operative details of the

work. Alternatively, the plaintiff may demonstrate that

the land owner exercised actual control over the work. As 

a general proposition, the question of the quantum of retained 

control necessary to make the owner of the premises liable is a 

question for the jury. When, however, the evidence fails to 

establish the requisite retained control, the determination of 

liability may be made as a matter of law. 

Id. at 466-467 (emphasis supplied in part). The Court also noted that, in 

prior decisions, it construed the “retained control” exception narrowly. Id.
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at 467, citing Hader, supra; Farabaugh v. Pennsylvania Turnpike 

Com’n, 911 A.2d 1264 (Pa. 2006). 

 In the present case, the trial court found the quality of control PPL 

exercised over the jobsite was sufficient to submit to the jury the question of 

whether the “quantity of control necessary to make PPL liable existed.” Trial 

Court Opinion, 6/14/2013, at 17. Specifically, the court determined that 

Nertavich presented sufficient evidence to find that PPL controlled the 

“operative details” of QSC’s work:

 Here, PPL through its contract and specifications told QSC 

workers what paint to use, and every step of how to use it. It 

told the workers to lay out tarps beneath the poles, to mix and 

stir the paint, to clean and dry the poles, to paint the poles with 

rollers, brushes, and mitts, to let the paint dry hard and firm, 

then to apply successive coats, to clean up the work area by 

disposing of paint containers and debris, and finally to make spot 

repairs – in a specific feather-edged manner – when directed to 

do so by PPL. PPL’s own contract manager testified at trial that 

these provisions told QSC workers how to perform the operative 

details of their job. 

 The contract also called for safety provisions to be 

followed, and established the posisiton of the PPL contract field 

representative. PPL’s contract field representative, Mr. Grim, 

was at the worksite every day, and knew that it was his duty to 

stop work if he saw an unsafe condition, even if he was not 

knowledgeable enough to know when such a condition existed. 

Mr. Grim was supposed to hold safety meetings every day for 

the workers, even though he did not. He had the duty to inspect 

worker fall protection. 

 Also, PPL exerted great control over access to the 

property. Through its green tag procedure, PPL retained control 

of the property, and significantly limited worker access to the 

poles because of live electric wires. Workers could not get on 

the poles until Mr. Grim let them. Also, the available ways to 

scale the poles were essentially limited to the single-rail ladders 
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because the poles were energized, and there were no other 

attachment points on the poles to rig other climbing devices. 

QSC had to request these ladders from PPL to climb the poles. 

 These facts, especially the way in which PPL dictated how

QSC workers were to perform their painting work coupled with 

evidence of control over safety and access, evince the quality of 

control that the Supreme Court found lacking in Beil. The 

qualitative element being present, it was for the jury to 

determine if the quantity of control necessary to make PPL liable 

existed. There were ample facts in evidence, including the 

contract and testimony from PPL’s own employees, for the jury 

to determine that the necessary quantum of control existed as 

they did. 

Id. at 16-17 (footnote omitted). 

 Conversely, PPL argues the type of control Nertavich claims it retained 

over the jobsite in this case is the same type of control the Supreme Court 

found insufficient in Beil. Moreover, PPL contends that Nertavich’s attempt 

to “end-run Beil through a so-called theory of ‘direct negligence’” also fails. 

PPL’s Brief at 34. Accordingly, it asserts that it is entitled to j.n.o.v. as a 

matter of law. We agree. 

Beil is the Supreme Court’s most recent, and arguably most relevant, 

decision on the issue of landowner liability for injuries sustained by the 

employee of an independent contractor. A discussion of the facts and 

disposition in Beil will be helpful to our resolution of the present case. They 

are as follows. 

 Lafayette College (“the College”) hired Telesis Construction, Inc. 

(“Telesis”) as the general contractor to renovate an engineering building. 

Telesis subcontracted the roofing work to Kunsman Roofing and Siding 

(“Kunsman”). Beil was an employee of Kunsman. The College also 
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contracted separately with Masonary Preservation Services, Inc. (“MPS”) to 

restore stonework on the exterior of the building. On the day of the 

accident, Beil was installing flashing on the roof. He used scaffolding erected 

by MPS, after consultation with the College, to access the roof. While 

ascending the ladder with 15 pounds of flashing, he fell 30 feet, and 

sustained serious injuries. Beil subsequently filed a personal injury action 

against the College, Telesis, and MPS. A jury awarded damages of $6.8 

million, and apportioned liability as follows: Telesis 50% liable, the College 

35% liable, MPS 10% liable and Beil 5% liable. The College appealed, and 

this Court reversed and remanded for the entry of j.n.o.v. in favor of the 

College. Beil then petitioned the Supreme Court for allowance of appeal. 

See Beil, supra, 11 A.3d at 458-462. On appeal, the Supreme Court

affirmed the decision of the Superior Court, holding that “the College did not 

retain sufficient control of the premises to subject it to liability pursuant to 

Section 414 of the Restatement (Second) of Torts[.]” Id. at 472. 

Specifically, the Supreme Court rejected Beil’s claim that the College 

retained control of the premises in two broad categories: safety and access. 

Id. at 467. With regard to safety, Beil argued the College “controlled safety 

matters at the site with respect to Telesis and Kunsman, as well as MPS[.]” 

Id. He presented the following evidence in support of that claim: (1) 

Telesis was contractually obligated to comply with the safety directives of 

the College; (2) the College’s on-site project manager was consulted as to 

where to place the scaffolding; (3) the College’s project manager admitted in 
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a post-accident email that the roofers were working in a potentially unsafe 

manner and stated the College’s desire for a safe work environment; and (4) 

expert testimony that the College controlled safety at the site. Id. With 

regard to access, Beil similarly claimed that “the College’s denial of access to 

certain areas stands as evidence of its control over the renovation work.” 

Id. at 469. In support of this contention, he produced evidence that: (1) 

the College denied the roofers access to certain areas of the building; (2) the 

subcontractors had to obtain written permission to enter the building; and 

(3) the College hired MPS, whose scaffolding was used, and the College was 

consulted as to where to place the scaffolding. Id. at 469-470. 

However, the Supreme Court held that a property owner may retain a 

certain degree of authority over safety issues, as well as regulate the use of 

and access to buildings, without “retaining control” of the premises for 

liability purposes. With regard to safety, the Court held “a property owner 

retaining a certain degree of authority over safety issues, such as 

supervising and enforcing safety requirements, and even imposing its own 

safety requirements at a work site, does not constitute control for purposes 

of imposing liability.” Id. at 469 (footnote omitted). Rather, a property 

owner’s interest in monitoring the safety of its contractors constitutes sound 

public policy. Id. at 468. 

Furthermore, with regard to access, the Court held the College’s 

regulation of the use of and access to the building was “tangential to the 

substantive work of the contractor, and subcontractor[,]” and “did not 
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control the way the workers did their work.” Id. at 471. Rather, the Court 

explained, 

the College's conduct regarding placement of MPS’ scaffolding 

[did] not directly relate to the decision of Kunsman’s employees 

to use MPS’ ladders and scaffolding instead of Kunsman’s own 

equipment, which Kunsman contracted to provide, and Telesis 

contracted to ensure was safe. While MPS permitted the

Kunsman roofers to use its scaffolding, Telesis did not anticipate 

or rely upon the use of MPS scaffolding for access to the roof, 

and access was for Kunsman to determine. 

Id. Accordingly, the Beil Court concluded that “although the College 

exercised certain authority regarding safety and regulated access to, and 

use of, certain areas of the premises, this is not the type of conduct that 

constitutes control as contemplated by the Restatement.” Id. at 472. 

 In the present case, however, the trial court opined that the facts 

presented by Nertavich “especially the way in which PPL dictated how QSC 

workers were to perform their painting work coupled with evidence of control 

over safety and access, evince the quality of control that the Supreme Court 

found lacking in Beil.” Trial Court Opinion, 6/14/2013, at 17 (footnote 

omitted). Nertavich agrees, arguing that “PPL was intimately involved in, or 

had the right to be, in every aspect of the operational detail of QSC’s 

performance[,]” as evident both in the contract provisions, as well as PPL’s 

actual exercise of control at the jobsite. Nertavich’s Brief at 23. Conversely, 

PPL contends that the “categories of supposed ‘control’ [the trial court found 

to be sufficient in the present case] are the very same theories of control 
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rejected by Beil and its ancestors.” PPL’s Brief at 21. For the reasons that 

follow, we agree. 

 With respect to the contract provisions,10 the trial court first found that 

PPL’s painting specifications – which included such details as the specific 

type of paint to use, how to apply the paint (i.e., by concealing brush marks, 

without runs, by applying a uniform finish and thickness, etc.), and the 

requirement of “feather-edg[ing]” for spot repairs11 – constituted control 

over the operative details of QSC’s work sufficient to find it “retained

control” of the job site for liability purposes. However, PPL contends these 

“quality specifications” do not evince sufficient control over QSC’s work to 

hold it liable for Nertavich’s injuries. More importantly, these quality 

specifications had nothing to do with Nertavich’s accident. Indeed, PPL 

argues “Nertavich presented no evidence at trial that PPL ever instructed or 

directed QSC workers how to tie off to the pole, how to climb the pole, or 

which equipment to use.” PPL’s Brief at 23. 

____________________________________________ 

10 “The fundamental rule in contract interpretation is to ascertain the intent 

of the contracting parties. In cases of a written contract, the intent of the 

parties is the writing itself.” Lesko v. Frankford Hospital-Bucks County, 

15 A.3d 337, 342 (Pa. 2011) (quotation omitted). 

11 See Contract, 8/30/2007, Attachment A, at 2, ¶ 17. 
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 The Commonwealth Court’s decision in LaChance v. Michael Baker 

Corp., 869 A.2d 1054 (Pa. Commw. 2005), is instructive.12

 In that case, 

Michael Baker Corp. (“Baker”) was awarded a contract by PennDOT to 

improve a section of Route 6015 in Tioga County, which included laying 

reinforced concrete pipes, six feet in diameter, underground. LaChance, an 

employee of Baker, suffered fatal injuries when the trench he was working in 

collapsed as he was grouting the outside of these pipes. Id. at 1055. 

LaChance’s Estate filed a wrongful death and survival action against both 

Baker and PennDOT, arguing the latter was negligent in failing to supervise 

Baker and inspect the trench that collapsed. The trial court granted 

summary judgment in favor of PennDOT, finding, inter alia, that the Estate 

failed to establish PennDOT “retained control” of the job site sufficient to 

overcome the general rule that a landowner is not liable for the negligence 

of its contractors. Id. at 1056. 

 On appeal, the Commonwealth Court affirmed the grant of summary 

judgment. First, the Court concluded that the terms of the contract did not 

support the Estate’s claim that PennDOT retained control of the job site. 

While the contract referred to a “partnering agreement” between the 

____________________________________________ 

12

 “Although decisions by the Commonwealth Court are not binding on this 

Court, they may be persuasive.” Little Mountain Cmty. Ass'n, Inc. v. S. 

Columbia Corp., 92 A.3d 1191, 1198 n.14 (Pa. Super. 2014) (citation 

omitted). That is particularly so with respect to the Commonwealth Court’s 

decision in LaChance, which the Supreme Court cited favorably in both 

Beil, supra, and Farabaugh, supra. 
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contractor and PennDOT, the agreement placed all responsibility for job site 

safety upon the contractor, i.e., Baker, and specifically stated that Baker 

would “keep direct control of the contract[.]” Id. at 1060 (citation and 

emphasis omitted). Further, the Commonwealth Court concluded that 

PennDOT’s right to inspect for safety violations, including the right to 

suspend work, did not establish that it “retained control” of the jobsite, or 

“make PennDOT the guarantor of the safety of Baker’s employees.” Id. at 

1060-1061. Relevant to this appeal, the Court stated, “Baker’s contract 

performance had to meet PennDOT’s contract specifications, but 

Baker controlled the manner of performance. This is how 

contractual relationships work.” Id. at 1061 (emphasis supplied). 

 Lastly, the Commonwealth Court considered the Estate’s claim that 

PennDOT’s actual conduct on the jobsite demonstrated its control. 

Specifically, the Estate argued that PennDOT’s field inspector directed that 

the pipe be grouted on the outside, when, as the Estate claimed, the 

contract provided for grouting only on the inside of the pipe. The 

Commonwealth Court rejected this argument holding: 

More to the point, PennDOT’s directive to grout the outside 

of the pipe did not cause the accident. Rather, it was the 

method of digging, benching, bracing or shoring that trench that 

caused Decedent’s fatal injuries. Responsibility for the trench 

belonged with Baker, which had absolute discretion in when and 

how to secure a trench. ...

There is simply no evidence that PennDOT retained or exercised 

any control over the manner of the trenching or the operational 

details of the trenching, which was the proximate cause of 

Decedent’s injuries.
J-A02017-14

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Id. at 1062. 

 In the present case, the contract provided quality specifications for the 

painting of the transmission poles.13

 However, Nervatich’s fall had nothing 

to do with these quality specifications. Rather, Nervatich fell when the 

ladder he tied off on wobbled, and the single lanyard he used as fall 

protection slid off the rung.14 Moreover, Nertavich has failed to identify any 

contractual provisions that instructed QSC how to climb the poles safely 

to complete the painting work.15 Rather, the contract specifically provided 

that the contractor was “responsible for all climbing assist and rigging 

equipment necessary to complete this painting contract in an efficient 

manner[,]” and that it “shall be responsible to provide all personal protective 

equipment for all contractor personnel.” Contract, 8/30/2007, Attachment 

____________________________________________ 

13 Gallus Wukitsch, who at the time of the accident was a senior engineer in 

PPL’s transmission and substation maintenance group, testified as on crossexamination during Nertavich’s case-in-chief. He explained why the contract 

included detailed requirements, such as the type of paint to use: “[T]his 

Keeler and Long product, you don’t pick up at, you know, Lowe’s or Home 

Depot. This is a specially mixed paint just for transmission utility poles.” 

N.T., 2/29/2012, at 51. Further, he testified “[w]e wanted to make them 

understand that the paint we were specifying had certain requirements by 

the paint manufacturer and they had to follow that.” Id. at 53. 

14 During closing arguments, Nertavich’s counsel stated that Nertavich fell 

“because[, one,] his lanyard slipped off the peg. And he fell, two, because 

he didn’t have a second lanyard attached which is how he had been working 

all week.” N.T., 3/8/2012, at 225-226 

15 As we will discuss infra, Nertavich also contends that PPL actually 

controlled how QSC climbed the poles. 
J-A02017-14

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A, at 3, ¶¶ 23 and 26. As PPL’s senior engineer, Wukitsch testified, “[w]e 

were hiring them as the experts to do the painting work. We don’t do that 

work.” N.T., 2/29/2012, at 118. Therefore, we conclude the quality 

specifications set forth in the contract did not establish that PPL “retained 

control” of the operative details of the work which led to Nertavich’s 

accident.16

 

 Secondly, with regard to the terms of the contract, the trial court also 

found that PPL “retained control” of the job site over safety issues. See Trial 

Court Opinion, 6/14/2013, at 16-17. Specifically, the court noted that (1) 

the contract specified safety provisions to be followed, and (2) created the 

position of a PPL contract field supervisor, Wayne Grim, whose duty it was to 

monitor safety conditions at the work site and hold daily safety meetings.17 

____________________________________________ 

16 Nertavich argues that “PPL’s glib mischaracterization of the operational 

detail in its contract as ‘quality specifications that directed QSC what to do, 

not how to do it,’ is insufficient to mask the reality and importance PPL 

placed on its requirements.” Nertavich’s Brief at 28. We disagree. Clearly, 

the contract provided specific, detailed painting specifications. However, 

how QSC was to achieve those specifications was up to the company, itself. 

John Pateras, the owner of QSC, testified that the PPL job was “a typical job 

for QSC” and it had done “many jobs like that” in the past. N.T., 2/28/2012, 

at 146; Videotaped Deposition of John Pateras, 7/22/2010, at 31. More 

importantly, as discussed supra, the contract did not specify how QSC was 

to access the poles, which was the cause of Nertavich’s accident. 

17 As became evident during trial, Mr. Grim had no training or experience 

climbing steel transmission poles. N.T., 2/29/2012, at 154. However, he 

testified that the QSC workers “were the experts on doing this work.” Id. at 

170. Indeed, Nertavich confirmed that no one from PPL directed the 

painters as to how to do their jobs, and QSC had its own foreman, Mike 

Healy, who rotated between three or four QSC painting crews on the PPL 

(Footnote Continued Next Page) 
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Accordingly, the trial court opined that Mr. Grim “had the duty to inspect 

worker fall protection[,]” but failed to do so. Trial Court Opinion, 6/14/2013, 

at 17. 

 However, the Beil Court made clear that a property owner who retains 

“a certain degree of authority over safety issues, such as supervising and 

enforcing safety requirements, and even imposing its own safety 

requirements at a work site, does not constitute control for purposes of 

imposing liability.” Beil, supra, 11 A.3d at 469. Moreover, the terms of the 

contract in the present case clearly placed responsibility for job site safety 

upon QSC. The contract explicitly provided: 

The purpose of this article is to define Contractor’s safety 

responsibilities under this Contract while performing Work on 

Company’s work site. Although Company may monitor 

Contractor’s safety performance, may review safety performance 

with Contractor’s safety contact person, may suspend the Work 

for safety-related reasons, these actions are for the primary 

purpose of protecting Company personnel and property. 

Contractor shall remain solely responsible for the safe 

performance of the Work under this Contract. The 

provisions of this article shall be interpreted and construed in a 

manner consistent with Contractor’s status as an independent 

contractor. 

Contract, 8/30/2007, at 6-7, ¶ M (emphasis supplied). See id. at 5, ¶¶ D 

(“Contractor shall have safety program and work and safety rules for the 

(Footnote Continued) _______________________ 

job. N.T., 3/1/2012, at 161-163. Nertavich’s co-worker Ryan Wheeler 

testified that Healy would yell at the painters if they were not using fall 

protection on a pole. See N.T., 2/27/2012, at 132; Videotaped Deposition 

of Ryan Wheeler, 7/21/2010 at 90. 
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Work[.]”);18 E (“Contractor shall take all reasonable precautions for the 

safety of all Contractor personnel engaged in the Work and shall 

continuously maintain adequate protection of all its Work, Company’s work 

site, and persons to prevent damage, injury or loss.”). See also id. at 

Attachment A, at 2, ¶ 12 (“Contractor must identify which structures can not 

be safely painted in [their] entirety prior to start of work on that 

structure.”); Attachment A at 3, ¶ 26 (“The Contractor shall be responsible 

to provide all personal protective equipment for all contractor personnel.”). 

Furthermore, although the contract did give PPL “the right, from time 

to time, to undertake a safety performance audit of [QSC’s] services,” as 

well as the authority to suspend work for “safety-related reasons[,]”19 that 

type of safety oversight was the same which the Supreme Court found 

permissible in Beil. See Beil, supra, 11 A.3d at 469 (“[W]e hold that a 

property owner retaining a certain degree of authority over safety issues, 

such as supervising and enforcing safety requirements, and even imposing 

its own safety requirements at a work site, does not constitute control for 

purposes of imposing liability.”). See also LaChance, supra, 869 A.2d at 

1060-1061 (stating that landowner’s “inspection rights, exercised to assure 

itself that [independent contractor] performed its work safely, as [it] had 

____________________________________________ 

18 The contract listed the “Work Description” as “Transmission Structure 

Painting – Lehigh Region.” Contract, 8/30/2007, at 1.

 

19 See Contract, 8/30/2007, at 5-6, ¶ F. 
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agreed in its contract, did not make [landowner] the guarantor of the safety 

of [independent contractor’s] employees[;]” parties’ contract made safety 

the “contractual responsibility” of independent contractor). 

 Moreover, with respect to the contract, the trial court also found PPL 

“retained control” over safety issues through its specific designation of a 

contract field representative. The parties’ contract specified that this 

representative would be “the daily source of contact to the Contractor in the 

areas of any questions, materials, quality assurance, general safety, work 

procedures and schedule.” Contract, 8/30/2007, Attachment A at 2, ¶ 6. 

Moreover, the trial court reviewed PPL’s internal safety guidelines, referred 

to as GSP-19, which stated that the contract field representative was to 

“monitor the contractor to ensure that safety requirements of the contract 

are adhered to.” General Health & Safety Procedures, Section 19 (RevisedJanuary 2005) at ¶ 7.2. Therefore, the trial court found that the PPL’s 

establishment of the position of contract field representative demonstrated 

that it “retained control” over safety issues on the job site, including 

Nertavich’s failure to use proper fall protection. 

 However, in Farabaugh v. Pennsylvania Turnpike Com’n, 911 A.2d 

1264 (Pa. 2006), the Supreme Court rejected a similar claim that a 

landowner’s hiring of an on-site safety supervisor established that the 

landowner retained control over the worksite. 

In that case, the Pennsylvania Turnpike Commission (“PTC”) hired New 

Enterprise Stone & Lime (“NESL”) as general contractor for the construction 
J-A02017-14

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of a section of an expressway in western Pennsylvania. PTC also hired 

Trumbull Corporation (“Trumbull”) as the “construction manager,” 

responsible to administer and oversee several projects, as well as monitor 

the safety procedures of the other contractors. Id. at 1268. Farabaugh, an 

employee of NESL, was fatally injured when he drove a loaded, off-highway 

dump truck up a hill and the haul road he was traveling on collapsed due to 

instability in the hill. His Estate argued at trial that the haul road did not 

comply with safety measures. Id. at 1269. The trial court granted 

summary judgment in favor of PTC and Trumbull, and the Commonwealth 

Court reversed. Id. at 1270-1271. 

On appeal, the Supreme Court reversed the Commonwealth Court’s 

decision with respect to PTC’s liability.20

 Farabaugh’s Estate argued that PTC 

“retained control” over safety at the jobsite in three ways: (1) by showing a 

safety orientation videotape to all those employed on the jobsite, (2) by 

____________________________________________ 

20 The Supreme Court, however, affirmed the Commonwealth Court’s 

reversal of summary judgment with respect to Trumbull, concluding: 

[u]nder the relevant contract language, ... Trumbull owed a duty 

of care to Decedent based upon its contractual obligation to 

perform safety inspections and other monitoring functions. A 

determination of the scope of the duty and whether this duty 

was breached, however, requires further development of the 

record regarding Trumbull’s role on the jobsite and the 

proximate cause of the accident. 

Id. at 1267. Unlike in the present case, Trumbull was contractually 

obligated to monitor safety on the job site. 

 
J-A02017-14

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employing an on-site safety inspector, and (3) by contracting with Trumbull 

to provide construction management services. Id. at 1273-1274. However, 

the Supreme Court rejected the Estate’s claims, relying primarily on the 

Commonwealth Court’s language in LaChance, that “[s]ound public policy ... 

dictates that [a landowner] monitor the safety of its highway construction 

projects and continue to pay its contractors to conduct safe job sites.” Id.

at 1275, quoting LaChance, 869 A.2d at 1064. Furthermore, the 

Farabaugh Court held: 

It would likewise disserve public policy to impose liability 

on PTC for going one step further and hiring a contractor 

specifically to supervise safety issues on site in addition 

to requiring its general contractor to be responsible for 

safety under its own contract with PTC. Instead, we 

conclude that under NESL’s contract with PTC, PTC turned over 

control of the worksite to its general contractor, NESL, and did 

not retain control over NESL’s means and methods for purposes 

of a Section 414 analysis. 

Id. at 1275. 

The same logic applies here. PPL’s designation of a contract field 

representative, responsible for, inter alia, monitoring the contractor’s safety 

practices, did not evidence its retention of control over all matters of work 

site safety. As clearly specified in the contract, QSC was “solely responsible 

for the safe performance of the Work under [the] Contract.” Contract, 

8/30/2007, at 7 ¶ M. 

Further, we find the trial court’s reliance on PPL’s internal safety 

guidelines, or GSP’s, to establish its retention of control of safety issues is 

misplaced. The GSP’s are internal company documents that set forth safety 
J-A02017-14

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guidelines for PPL’s employees to follow. N.T., 2/28/2012, at 50-51. In 

particular, while GSP 19, which governs contractor safety, states that the 

contract field representative “[w]ill monitor the contractor to ensure that 

safety requirements of a contract are adhered to[,]” the document also 

unequivocally states that “[t]he contractor is ultimately responsible for the 

safe performance of their employees[.]” General Safety & Health Procedures 

Section 19 (Revised–January 2005) at ¶¶ 5.4, 7.2. See also id. at ¶ 7.1. 

Therefore, although GSP 19 encourages PPL employees to monitor the safety 

of its independent contractors, it does not require PPL’s control over all 

safety matters on the job site. Moreover, as stated above, the GSP’s are 

internal documents, which are not provided to the independent contractors 

or their employees. N.T., 2/29/2012, at 136. Accordingly, we conclude that 

the evidence failed to establish PPL “retained control” of the job site based 

upon the “contractual provisions” between the parties. See Beil, supra, 11 

A.3d at 467. 

Turning to the second part of the Beil control test, PPL may still be 

found liable for Nertavich’s injuries if it “retained control” over the job site 

based on its actual conduct. Id. While the trial court found PPL “exerted 

great control over access to the property,”21 sufficient to find it liable for 

Nertavich’s injuries, we again disagree.

____________________________________________ 

21 Trial Court Opinion, 6/14/2013, at 17. 
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Here, the trial court determined PPL “retained control” over access to 

the property in three ways: (1) by implementation of its “green tag” 

procedure; (2) by limiting QSC’s access to the poles to the use of single-rail 

ladders; and (3) by providing these ladders to QSC without the necessary 

bolts to secure them to the transmission poles. See Trial Court Opinion, 

6/14/2013, at 17, 21. PPL argues, conversely, that none of this evidence 

demonstrated its retention of control over the job site. 

First, with respect to the implementation of the “green tag” procedure, 

it was PPL’s method to ensure that QSC’s workers would not come in contact 

with live electrical lines while painting the transmission poles. PPL’s senior 

engineer, Wukitsch described the procedure as follows: 

Green tag procedure allows us to work on facilities. And what 

happens with the electric grid is when there’s lightning or a bird 

contacts a line or some other thing, the lines trip out and 

automatically reclose. 

So if you’re in your house, maybe occasionally over your 

lifetime you’ve seen your lights flicker real fast. Lines trip and 

reclose. They’re designed to trip and reclose multiple times 

before there’s a permanent fault on the line and they lock out. 

 With a green tag permit, we actually go to the end points 

at the substations, at the circuit breakers. We change the 

condition of those circuit breakers so that if at any time those 

electrical lines would trip for any reason, they would 

automatically go to lockout and they wouldn’t reclose.

N.T., 2/29/2012, at 14-15. Nertavich’s expert witness, Stephen Estrin, 

testified that the procedure was necessary to ensure that QSC workers were 

painting a pole that was “no longer energized.” N.T. 3/6/2012, at 104. 
J-A02017-14

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However, he opined that this procedure necessarily limited QSC’s access to 

the job site: 

QSC was not given unfettered discretion of when, where and 

how to work. They had to get this tag before they could work. 

So if they arrived on the job site at 0700 and PPL had not issued 

the green tag, they could not access the pole and perform work. 

They would have to wait till [PPL] issued them the tag. 

Id. at 105. 

 PPL contends, however, that this argument is similar to the controlled 

access claim rejected by the Supreme Court in Beil. In Beil, the College 

limited Beil’s access to the building, and consulted with MPS as to where to 

erect its scaffolding, which Beil later used to access the roof. Nonetheless, 

the Beil Court held that the College’s actions in regulating the use of, and 

access to, the building were not “qualitatively, conduct which evinces control 

over the manner, method, means, or operative detail in which the work is 

performed.” Beil, 11 A.3d at 471. The Court opined: 

They are tangential to the substantive work of the contractor, 

and subcontractor. Simply stated, the College did not control 

the way the workers did their work. 

Moreover, the College’s conduct regarding placement of 

MPS’ scaffolding does not directly relate to the decision of 

[the subcontractor’s] employees to use MPS’ ladders and 

scaffolding instead of [its] own equipment, which [it] 

contracted to provide, and [the general contractor] 

contracted to ensure was safe. While MPS permitted the 

[subcontractor] roofers to use its scaffolding, [the general 

contractor] did not anticipate or rely upon the use of MPS 

scaffolding for access to the roof, and access was for [the

subcontractor] to determine. 

Id. (emphasis supplied and record citation omitted). 
J-A02017-14

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 Similarly, here, the green tag permit simply indicated to QSC that the 

pole was not energized, and it was safe for QSC to perform its painting work, 

pursuant to the contract, by whatever means it saw fit. Indeed, the permit 

procedure did not directly relate to the decision of QSC concerning how its 

employees would climb the poles. As the Beil Court stated, “it would be a 

novel, if not absurd, interpretation of Section 414 if an independent 

contractor ... could run amok at the work site without any limitations and 

without consideration of consequences.” Id. at 470. Furthermore, the 

issuance of a green tag permit for the pole had nothing to do with the 

Nertavich’s accident.22

 Accordingly, we find that the green tag permit 

procedure did not establish that PPL “retained control” over the job site 

sufficient to assign it liability for Nertavich’s accident.

 Second, the trial court also concluded that PPL controlled QSC’s access 

to the poles by limiting the available ways to scale the poles to the use of 

single rail ladders. Trial Court Opinion, 6/14/2013, at 17. Indeed, Nertavich 

states that PPL “did not offer, provide, or even suggest any other means for 

QSC’s access to its poles, such as an aerial lift.” Nertavich’s Brief at 30. 

 This finding, however, ignores the specific terms of the contract that 

QSC “shall provide all supervision, labor, services, materials, tools and 

____________________________________________ 

22 Had Nertavich been electrocuted as a result of the improper issuance of a 

green tag permit, we would be inclined to conclude that PPL maintained 

control over that aspect of the job site, and was subject to liability. 
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equipment” to complete the project, including all necessary “climbing assist 

and rigging equipment[.]” Contract, 8/30/2007, Attachment A at 1, 3, ¶ 23. 

Moreover, the contract provided that it was “the responsibility of the 

Contractor to field locate the structures designated for painting” and gave 

the bidding contractors the opportunity to “visit each individual structure in 

order to develop the bid.” Id. at 1. The contract also stated that the 

contractor was responsible for identifying “which structures can not be safely 

painted in [their] entirety prior to the start of work on that structure.” Id.

at 2, ¶ 12. Accordingly, the terms of the contract placed all responsibility for 

determining how to access the transmission poles upon the knowledgeable 

independent contractor, QSC. 

Furthermore, the testimony at trial supports PPL’s contention that 

QSC, the experienced contractor, not PPL, determined how to climb the 

transmission poles. Indeed, QSC’s owner, John Pateras, testified that the 

PPL project was “a typical job” for QSC. N.T., 2/28/12, at 146; Videotaped 

Deposition of John Pateras, 7/22/2010, at 31. He confirmed that the 

painters’ use of “removable climbing assists,” or single-rail ladders, to access 

the poles was a “typical occurrence,” and there was nothing “unusual or 

peculiar about the job for PPL[.]” 23

 Id. at 32. See also N.T., 2/27/2012, at 

____________________________________________ 

23 We note that Nertavich argues PPL was negligent for not questioning QSC 

about a provision in QSC’s safety manual that stated, “Single rail ladders 

must not be used.” QSC Painting, Inc. Corporate Worker Safety and Health 

Program (Revision No. 3), 11/27/1995, at 61. However, the above 

(Footnote Continued Next Page) 
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132; Videotaped Deposition of Ryan Wheeler, 7/21/2010, at 97 (Nertavich’s 

co-worker testfying that the use of “removable climbing devices” was not an 

“uncommon or unusual way to access that type of pole[.]”).

Nertavich argues, however, that PPL “retained control” because it did 

not “offer, provide or even suggest any other means for QSC’s access to its 

poles, such as an aerial lift.” Nertavich’s Brief at 30. However, this 

argument ignores the reality that QSC was the expert painting contractor, 

with 16 years of experience in industrial painting, and most of its experience 

working for power companies, such as PPL. N.T., 2/28/12, at 146; 

Videotaped Deposition of John Pateras, 7/22/2010, at 14-15. In fact, 

Wukitsch testified that all of the contractors who attended the pre-bid 

meeting, including QSC, understood that they would be accessing the 

transmission poles using “climbing ladders,” and all the contractors told him 

they had used them before. N.T., 2/29/2012, at 110-111. PPL provided the 

job specifications, and deferred to the specialized expertise of the contractor 

to determine how to safely complete the work. Accordingly, we conclude 

PPL’s failure to suggest or provide alternative means to access the 

transmission poles is not evidence of its retention of control over the job 

site. 

(Footnote Continued) _______________________ 

testimony by QSC’s owner contradicts that provision, and we find that PPL 

was entitled to rely on the expertise of the independent contractor it hired to 

perform this specialized work. 

 
J-A02017-14

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Lastly, the trial court found PPL “retained control” of the project by 

supplying the single-rail ladders to QSC. The court opined that “QSC had to 

request these ladders from PPL to climb the poles.” Trial Court Opinion, 

6/14/2013, at 17. However, the trial court’s focus on the fact that PPL 

“supplied” QSC with the ladders, ignores the fact that QSC asked PPL to 

supply their ladders only after it was unable to obtain them itself. Pateras 

described the circumstances surrounding QSC’s request as follows:

But I do remember in the bidding process that originally we were 

supposed to furnish the climbing devices. I called the company 

that we were supposed to buy it off of and they said they can’t 

furnish it. Then I believe I had spoke[n] to PP&L and told them 

about the problem. And PP&L furnished some climbing devices. 

N.T., 2/28/12, at 146; Videotaped Deposition of John Pateras, 7/22/2010, at 

71. Pateras testified that he was at the warehouse when his employees 

picked up PPL’s ladders, which he agreed were “appropriate for the work,” 

and described as “perfectly normal.” Id. at 73. Moreover, Wukitsch 

testified that after PPL located the single-rail ladders, 

[w]e showed [QSC] what we had and said: We would make 

these available for your use. But it’s your responsibility to 

look at them, to check them, make sure they’re in good 

working order. They were the ones who picked them up and 

took them out to the job site, installed them. 

N.T., 2/29/2012, at 35 (emphasis supplied). Indeed, Wukitsch testified that 

PPL added the provision to the contract that “the contractor was responsible 

for all climbing assist and rigging equipment” after QSC requested to use 

PPL’s ladders. Id. at 114-115. See also Contract, 8/30/2007, Attachment 

A at 3, ¶ 23. He explained that the language was added to make clear that 
J-A02017-14

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it was QSC’s “responsibility to inspect the ladders, carry them, put them on, 

take them off.” Id. at 115. 

 Therefore, while PPL made available to QSC the actual ladders the 

contractor used to climb the transmission poles, we do not find that, by 

doing so, PPL “retained control” of the job site. PPL only made the ladders 

available when QSC was unable to obtain them on its own. Significantly, 

there was no evidence that PPL mandated that QSC use these particular 

ladders to climb the transmission poles. Indeed, the language of the 

contract was clear: “Contractor is responsible for all climbing assist and 

rigging equipment necessary to complete this painting contract in an 

efficient manner.” Contract, 8/30/2007, Attachment A at 3, ¶ 23. QSC, 

after inspection of the ladders, was free to reject them, or choose a different 

means to climb the poles. Accordingly, we conclude the trial court erred in 

finding that PPL’s action in supplying the single-rail ladders Nertavich used 

the climb the transmission poles established its retention of control over the 

job site.24

____________________________________________ 

24 We do not find that the decision of the Pennsylvania Supreme Court in 

Byrd v. Merwin, 317 A.2d 280 (Pa. 1974), mandates a different result. In 

that case, Byrd was an employee of an electrical subcontractor hired to 

perform renovation work in Olin’s building. Merwin was the general 

contractor on the job. Byrd was injured when one of Merwin’s teenaged 

sons dropped a section of a prefabricated staircase on Byrd’s leg while Byrd 

was installing electrical wiring. The usual procedure in such situations was 

to install the staircase prior to wiring the house. Id. at 518. 

(Footnote Continued Next Page) 
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 Because we conclude that the evidence, viewed in the light most 

favorable to Nertavich, did not establish that PPL retained sufficient control 

over the job site, based on the contract provisions and actual control, to 

subject it to liability for Nertavich’s injuries pursuant to Section 414 of the 

Restatement (Second) of Torts, we find the trial court erred in denying PPL’s 

motion for j.n.o.v. 

However, we are compelled to address Nertavich’s alternative theories 

concerning PPL’s “direct liability.” Specifically, Nertavich contends that, 

regardless of PPL’s liability, or lack thereof, pursuant to Section 414, he also 

presented evidence that PPL was directly liable for his injuries. He argues 

“Beil did not extinguish a landowner’s direct liability when the landowner, 

(Footnote Continued) _______________________ 

 Byrd sued both Olin and Merwin, and a jury returned a verdict in his 

favor. However, the trial court granted Olin’s motion for j.n.o.v., finding 

Byrd failed to establish Olin “retained control” of the work site pursuant to 

Section 414 of the Restatement. On appeal, the Supreme Court reversed, 

finding that Byrd established that Olin “exercised control as to supervision of 

the project” by instructing the electrical contractor “when to begin his work 

... and in what area to begin.” Id. at 282. Further, Merwin, the general 

contractor, testified “that he was not in complete control of the project, but 

rather he was second in command to Olin.” Id. The Court emphasized “[i]t 

must be remembered that it was Olin who ordered electrical work started 

before the staircase was installed.” Id. 

 First, we note that Byrd was a plurality decision, with three justices 

joining the majority, two justices concurring in the result, and one justice 

dissenting. In addition, the facts in Byrd were clear that the owner retained 

control of the work site and actually instructed the subcontractor when and 

where to begin his work. There is no such degree of control in the present 

case. 

 
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as here, engages in its own, independent negligent conduct that directly 

contributes to a worker’s injuries.” Nertavich’s Brief at 32 (emphasis in 

original). While we agree that Nertavich’s argument is a correct statement 

of law, we conclude that his claims of direct negligence in the present case 

fail.25

 Nertavich claims PPL was directly liable for his injuries based on the 

following theories: (1) “gratuitous undertaking” pursuant to Section 323 of 

the Restatement (Second) of Torts, because PPL provided single-rail ladders, 

____________________________________________ 

25 We note that both the trial court and Nertavich cite Chenot v. A.P. Green 

Services, Inc., 895 A.2d 55 (Pa. Super. 2006), for the proposition that a 

land owner may be directly liable to the employee of an independent 

contractor for its own negligent acts. Trial Court Opinion, 6/14/2013, at 20 

n.137; Nertavich’s Brief at 32. However, we disagree that Chenot stands 

for such a broad principal of law. Indeed, the Chenot Court simply found 

that the “peculiar risk” doctrine applied. 

 In that case, Chenot was exposed to asbestos dust while working as 

an employee of Philip Carey, an independent contractor retained by Koppers 

Company to install new insulation in one of its manufacturing facilities. 

Chenot later contracted mesothelioma as a result of this exposure. Chenot, 

supra, 895 A.2d at 58. In concluding that Koppers owned a duty of care to 

Chenot, this Court found that an owner who possesses “superior knowledge” 

of a danger on his premises has a duty to warn an independent contractor of 

that danger, whether or not the contractor exercises full control over the 

premises. Id. at 64. 

 Therefore, rather than stand for the broad proposition that a 

landowner may be directly liable to the employee of an independent 

contractor for its own negligence, Chenot applied the limited “peculiar risk” 

doctrine, a doctrine which the trial court found inapplicable in the present 

case. See N.T., 3/7/2012, at 95 (trial court sustaining objection to “peculiar 

risk” jury charge). 
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without accompanying bolts to secure the ladders to the transmission poles, 

and provided an unqualified contract field representative to monitor safety 

practices on the job site; (2) negligent design of the transmission poles, 

because PPL failed to require the pole manufacturer to include lifeline 

attachment points on the poles; and (3) PPL’s violations of OSHA26 and the 

National Electric Safety Code (NESC). For the reasons that follow, we 

conclude that none of these theories should have been presented to the 

jury. 

With respect to Nertavich’s claim regarding “gratuitous undertaking,” 

Section 323 of the Restatement (Second) of Torts, commonly known as the 

“Good Samaritan Law,”27 imposes liability when one gratuitously undertakes 

to perform a service for another: 

One who undertakes, gratuitously or for consideration, to render 

services to another which he should recognize as necessary for 

the protection of the other's person or things, is subject to 

liability to the other for physical harm resulting from his failure 

to exercise reasonable care to perform his undertaking, if 

(a) his failure to exercise such care increases the risk of such 

harm, or 

(b) the harm is suffered because of the other's reliance upon the 

undertaking. 

Restatement (Second) of Torts § 323 (1965). 

____________________________________________ 

26 Occupational Safety and Health Act, 29 U.S.C. § 651 et seq. 

27 Filter v. McCabe, 733 A.2d 1274, 1276 (Pa. Super. 1999), appeal 

denied, 758 A.2d 1200 (Pa. 2000). 
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First, Nertavich contends that when PPL “gratuitously” chose to supply 

QSC with the single-rail ladders, it did so negligently when it failed to also 

provide the bolts to secure the ladders to the transmission poles. We 

disagree. There is simply no evidence that PPL’s failure to supply the bolts 

increased the risk of harm to Nertavich or that Nertavich, or, in fact, QSC, 

relied upon PPL’s actions to their detriment. QSC was intimately familiar 

with the single-rail ladders supplied by PPL, and, indeed, had requested 

them. QSC’s employees had used these ladders many times in the past, and 

were aware that the ladder could be secured to the transmission pole with a 

bolt. For example, another QSC painter, Donald Thompson, testified that he 

was involved in the PPL job, and actually “pegged” and “depegged” the 

ladders in question. N.T., 3/7/2012, at 157. He explained that he had 

painted more than 5,000 poles, and while some had ladders permanently 

attached, “most of the time” he would peg the ladders himself. Id. at 157-

158. He also testified why he never used bolts when he installed the singlerail ladders: 

We wouldn’t be able to get them back out because the primer, it 

gets hard. The red primer was 6000 primer. It sets in there, 

and you have to sometimes beat them out to get it to come back 

out. 

Id. at 158. He reiterated that he only used the bolts “when it’s stationary, 

where they’re not coming off” and “never” in a removable application, such 

as their use on the PPL job. Id. Moreover, Nertavich, himself, testified that 

prior to the PPL job, he had painted approximately two dozen similar 
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transmission poles, and had used “chicken ladders” to climb six poles, 

including the one in question. N.T., 3/1/2012, at 23, 25-26. He testified he 

had never seen a bolt attaching the ladder to the poles on any job. Id. at 

36-37. 

Therefore, we fail to see how PPL’s failure to supply the bolts with the 

climbing ladders increased Nertavich’s risk of harm, particularly, when his 

own co-worker acknowledged that QSC never used bolts to attach the 

single-rail ladders to the poles in a temporary application, and Nertavich, 

himself admitted he never saw a bolt attaching the ladder to the pole on any 

job. Moreover, because Nertavich’s employer was an industrial painting 

expert, he cannot establish that his accident resulted from QSC’s reliance

upon PPL’s failure to supply the bolts. 

 Second, Nertavich argues PPL was directly liable for his injuries when it 

chose to provide an on-site contract field representative to ensure job site 

safety procedures were being followed, but then negligently appointed Grim 

to the position, who had no training or experience on the proper way to 

climb and tie-off on a transmission pole. We conclude, however, this 

argument runs counter to the dictates of Beil, Farabaugh, and LaChance, 

as well as the parties’ written contract.

 As our sister court stated in LaChance, “[s]ound public policy ... 

dictates that [a landowner] monitor the safety of its ... construction projects 

and continue to pay its contractors to conduct safe job sites.” LaChance, 

supra, 869 A.2d at 1064. Furthermore, in Farabaugh, the Supreme Court 
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concluded that when a landowner goes “one step further and hir[es] a 

contractor to supervise safety issues on site,” the same public policy 

concerns dictate that such actions do not constitute an owner’s control of 

safety issues at the job site. Farabaugh, supra, 911 A.2d at 1275. 

Moreover, in Beil, the Supreme Court reiterated that a property owner who 

maintains “a certain degree of authority over safety issues, such as 

supervising and enforcing safety requirements, and even imposing its own 

safety requirements at a work site, does not constitute control for purposes 

of imposing liability.” Beil, supra, 11 A.3d at 469 (footnote omitted). To 

hold that an owner who designates an, albeit inexperienced, on-site safety 

representative may be held liable under Section 323 of the Restatement, 

would undercut the case law cited above, as well as the general rule that a 

landowner is generally not responsible for the acts or omissions of his 

independent contractor.28

 Id. at 466. 

Furthermore, the imposition of liability under these circumstances 

would run contrary to the clear terms of the parties’ contract. While the 

contract provided for the designation of a contract field representative, who 

would be “the daily source of contact to the Contractor in the areas of any 

____________________________________________ 

28 Our conclusion might be different if there was any evidence that Grim 

provided instructions or directions to Nertavich or the other QSC employees. 

However, the testimony was undisputed that Grim provided no direction at 

all. 
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questions, materials, quality assurance, general safety, work procedures and 

schedule[,]”29 it also clearly stated that the “Contractor shall remain solely 

responsible for the safe performance of the Work under this Contract.” 

Contract, 8/30/2007, at 7, ¶ M (emphasis supplied). Therefore, we conclude 

PPL could not have been liable under the theory of a “gratuitous 

undertaking” pursuant to Section 323 of the Restatement (Second) of Torts.

Next, Nertavich claims PPL was directly liable for his injuries because it 

failed to require the transmission pole manufacturer, Thomas & Betts, to 

include lifeline attachment points, or vangs, on the poles. He argues: 

PPL was responsible to advise Thomas & Betts of any attachment 

points it wanted on its poles because PPL was in the best

position to know what it needed to do on its poles by way of 

access and maintenance. PPL knew that its poles would need to 

be repainted. PPL knew that workers would need to access its 

poles to paint them. PPL, by ordering the ladders to access and 

work on its poles, knew that workers would need to climb the 

poles to perform the work. PPL, by reviewing QSC’s safety 

manual submitted as part of QSC’s bid to do the work, knew or 

should have known, that QSC prohibited the use of single rail 

ladders. PPL knew or should have known that such ladders did 

not provide adequate safe tie-offs for the lifelines needed by the 

workers to perform their duties safely and were also proscribed 

by OSHA. 

Nertavich’s Brief at 34 (record citations omitted).

Nertavich’s argument, which avers PPL’s negligent design of the 

transmission pole, attempts to end-run the trial court’s pretrial 

determination that the statute of repose barred any claim based upon the 

____________________________________________ 

29 Contract, 8/30/2007, Attachment A, at 2, ¶ 6. 
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pole’s manufacture or design. Indeed, prior to trial, the trial court granted 

pole manufacturer, Thomas & Betts’s, motion for partial summary judgment 

based on Thomas & Betts’s contention that any claim challenging the design 

or manufacture of the transmission pole was barred by the statute of repose, 

42 Pa.C.S. § 5536. The statute mandates, in relevant part, that any action 

brought against a person “furnishing the design, planning, supervision or 

observation of construction, or construction of any improvement to real 

property must be commenced within 12 years after completion of 

construction of such improvement[.]”30

 42 Pa.C.S. § 5536(a). Therefore, 

any challenge to PPL’s design of the pole should be similarly barred.31

In fact, during argument at the close of testimony, Nertavich’s counsel 

agreed that the “[t]he pole is not [at issue] in this case.” N.T., 3/8/2012, at 

____________________________________________ 

30 Wukitsch testified that the transmission pole that Nertavich was painting 

at the time of the accident was purchased by PPL from Thomas & Betts “in 

the mid-‘80s, ’86, ‘87.” N.T., 2/29/2012, at 17. Therefore, it had been in 

place more than 20 years on September 23, 2007, the date of the accident. 

31 In a footnote in his brief, Nertavich addresses PPL’s claim that the jury 

was tainted by hearing evidence of the defective pole, which was not an 

issue in the case. He claims that the only evidence he produced regarding 

the pole design was “PPL’s negligent failure to specify lifeline attachment 

points” and that PPL’s counterclaim against Thomas & Betts, in which PPL 

asserted the pole was defective, was not dismissed. Nertavich’s Brief at 33 

n.7. However, PPL did not assert a claim against Thomas & Betts claiming 

that the pole was defective. Rather, its counterclaims asserted only 

allegations of joint and several liability and contribution/indemnification. 

See Answer of Defendant, PPL Electric Utilities Corporation to Plaintiff’s 

Second Amended Complaint, May 11, 2011, at ¶¶ 119-120. 
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190. Counsel explained: “There was summary judgment granted on the 

pole, on any design defect claims about the pole on the grounds of the 

statute of repose, Your Honor. So, the pole is not in this case. It’s just the 

ladder.” Id. Therefore, the jury should not have considered any negligent 

design claim with regard to PPL’s purported direct liability.32

 

 Lastly, Nertavich argues the jury could have found PPL directly liable 

based upon its alleged violations of OSHA and NESC. Indeed, the trial court 

opined that Nertavich’s expert witnesses, Stephen Estrin and Gregory Booth, 

“testified that under industry practice, which included OSHA and the NESC, 

Defendant PPL breached its duties[,]” and this evidence of “PPL’s direct 

negligence was admissible to prove PPL breached a duty owed to 

[Nertavich].” Trial Court Opinion, 6/14/2013, at 21-22. While we agree 

that testimony concerning industry standards and regulations may be 

admissible to determine the standard of care in a particular case, we 

conclude that, here, the experts improperly opined on the primary question 

as to whether or not PPL owed a duty to Nertavich.33 

 At trial, both Estrin and Booth testified that under OSHA and NESC, 

respectively, PPL had a duty to monitor QSC worker safety at the job site. 

____________________________________________ 

32 Furthermore, as discussed above, these type of transmission poles were 

typical of the kind QSC regularly contracted to paint. See N.T., 2/28/2012, 

at 146; Videotaped Deposition of John Pateras, 7/22/2010, at 31-32.

33 It is well-established that “[t]he existence of a duty is a question of law 

for the court to decide.” R.W. v. Manzek, 888 A.2d 740, 746 (Pa. 1987). 
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N.T., 3/6/2012, at 119; 3/1/2012, at 250. However, as we have already 

determined, PPL, as a landowner who hired an independent contractor, did 

not retain sufficient control over the “methods of work, or as to operative 

detail” to “implicate the exception to the general rule against liability[.]” 

Beil, supra, 11 A.3d at 467 (emphasis supplied in part and omitted in part), 

citing Restatement (Second) of Torts § 414 cmt. c. 

 In support of his contention that the expert testimony was admissible 

in the present case, Nertavich cites a decision of the federal appeals court in 

Rolick v. Collins Pine Co., 975 F.2d 1009 (3rd Cir. 1992), cert. denied, 507 

U.S. 973 (1993). In that case, Rolick, an independent contractor, was hired 

by Kane Hardwood Division to cut and haul timber that Kane had purchased 

from the United States Forest Service. Rolick sustained serious injuries 

when a branch from a rotten birch tree struck him from behind as he was 

measuring another tree that he had just felled. Rolick filed a negligence 

action against Kane based upon Pennsylvania law. However, the jury 

returned a verdict for the defendant. Id. at 1011. 

 On appeal, Rolick argued, inter alia, that the trial court erroneously 

excluded “material evidence of the standard of care owed by defendants to 

plaintiff[,]” specifically, expert testimony concerning Kane’s purported 

violation of an OSHA regulation. Id. at 1012. The Third Circuit Court 

agreed, concluding: 

We can think of no reason under the Federal Rules of Evidence 

why the OSHA regulation is not relevant evidence of the 

standard of care once it is determined, as we have done, 
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that under Pennsylvania law the defendants could owe 

plaintiff a duty of care. It is important to reiterate that to use 

the OSHA regulation as evidence here is not to apply the OSHA 

itself to this case. Rather, it is to “borrow” the OSHA regulation 

for use as evidence of the standard of care owed to plaintiff. 

This is precisely how the Pennsylvania state courts had 

employed OSHA regulations. See e.g. Brogley v. 

Chambersburg Eng’g Co., 306 Pa.Super. 316, 452 A.2d 743, 

746 (1982). 

Id. at 1014 (emphasis supplied). Therefore, the Third Circuit concluded 

evidence of the violation of an OSHA regulation was relevant to the issue of 

the standard of care, only after the court first determined that the 

defendant owed a duty of care to the plaintiff. 

In that case, the Court found that Kane owed a duty to Rolick pursuant 

to Section 343 of the Restatement (Second) of Torts, which provides that “a 

possessor of land must exercise reasonable care to protect invitees from 

non-obvious dangerous conditions on the land.” Id. at 1011. The Court 

recognized that, 

[a]lthough the duty owed to an independent contractor varies 

depending upon the control the possessor maintains over 

the work ... it is a general rule that a possessor of the land must 

still use reasonable care to make the premises safe or give 

adequate and timely warning of dangers known to him but 

unknown to the contractor....

Id. (citation omitted and emphasis supplied). Section 343, however, is 

inapplicable in the present case because none of the purported causes of 

Nertavich’s fall — i.e., the failure to use a second lanyard, the use of a 

“chicken ladder,” — constituted dangers known to PPL, but unknown to 

Nertavich or his employer, QSC. Moreover, as discussed supra, we conclude 
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that the evidence presented by Nertavich did not establish that PPL “retained 

control” of the work site sufficient to confer liability. Accordingly, because 

we conclude that PPL owed no duty to Nertavich, the employee of an 

independent contractor, it would have been improper for the jury to consider 

evidence concerning PPL’s purported violations of industry standards. As 

such, we find Nertavich’s alternative arguments for relief based upon PPL’s 

purported “direct liability,” unavailing. 

Therefore, because we conclude that PPL was entitled to judgment as 

a matter of law, we conclude the trial court erred in failing to grant PPL’s 

post trial motion for j.n.o.v. See Egan, supra. Accordingly, we reverse the 

judgment entered against PPL, and remand for the entry of j.n.o.v. Because 

our disposition of PPL’s first issue is dispositive, we need not address its 

remaining claims. 

 Judgment reversed. Case remanded for entry of j.n.o.v. Jurisdiction 

relinquished. 

 Strassburger, J., files a Dissenting Opinion. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/27/2014