J-A22013-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARY MINCH & JOSEPH MINCH,

Appellants

v.

KDG RENTAL INC. AND DANIEL ZOLA 

& DONNA ZOLA AND TIMOTHY 

WENNER & DEANNA WENNER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 392 EDA 2019

Appeal from the Judgment Entered September 16, 2019

In the Court of Common Pleas of Monroe County Civil Division at No(s): 

4576 CV 2016

BEFORE: MURRAY, J., STRASSBURGER, J.*, and PELLEGRINI, J.*

MEMORANDUM BY MURRAY, J.: FILED OCTOBER 16, 2019

In this slip-and-fall action, Mary Minch and Joseph Minch (Appellants) 

appeal from the judgment entered following a jury trial in which Timothy 

Wenner and Deanna Wenner (collectively, Cleaners) were found liable to 

Appellants, and nonsuit was granted in favor of KDG Rental Inc. (KDG), Daniel 

Zola, and Donna Zola (collectively, Landlords).1 Upon review, we affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Appellants filed a notice of appeal on January 16, 2016, following the denial 

of their post-trial motion, but before judgment was entered on September 16, 

2019. See Billig v. Skvarla, 853 A.2d 1042, 1048 (Pa. Super. 2004) (“[I]n 

a case where nonsuit was entered, the appeal properly lies from the judgment 

entered after denial of a motion to remove nonsuit.”). Nevertheless, we deem 

Appellants’ appeal as filed from the subsequently-entered judgment. See 

Johnston the Florist, Inc. v. Tedco Constr. Corp., 657 A.2d 511, 514-515 

(Pa. Super. 1995) (en banc) (“[T]here are some instances wherein a party 
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On July 18, 2014, Mary Minch fell inside a vacation property rented from 

the Landlords. The evidence adduced at trial is generally undisputed. Daniel 

and Donna Zola operate KDG, a corporation that owned and rented out real 

property known as 170 Lake Drive, Lake Harmony, Pennsylvania. Appellants’

son-in-law, Christopher Kennedy, executed an agreement to lease 170 Lake 

Drive for one week, beginning at 3:00 p.m. on July 18, 2014.

At trial, Donna Zola testified that 170 Lake Drive was KDG’s only short 

term vacation rental. N.T. Trial, Vol. I, 6/5/18, at 29, 32, 38. Usually, Donna 

and Daniel Zola cleaned the property themselves. Id. at 31, 38. However, in 

July of 2013 — one year before Mary Minch’s fall — Donna Zola was unable to

clean, and asked her neighbors for the name of their cleaning person. Id. at 

10 (Appellants’ opening argument), 39, 41. The neighbors recommended the 

Cleaners, stating “that they do very good work [and] haven’t had any 

complaints.” Id. at 10 (Appellants’ opening argument), 41. Based on the

referral, the Cleaners performed one job for KDG in July of 2013. Id. at 39-

40. Donna Zola did not have “any issues” with this cleaning, but also did not 

inspect their work. Id. at 43, 58.

Donna Zola subsequently arranged for the Cleaners to clean 170 Lake 

Drive in advance of Appellants’ stay. Donna Zola did not have a written 

agreement with the Cleaners. N.T. Trial Vol. I, 6/5/18, at 47. The Cleaners 

____________________________________________

has failed to enter judgment [due to oversight] and our appellate courts may 

‘regard as done that which ought to have been done.’”).
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did not have a business card, uniforms, other employees, or “a truck or a logo 

. . . that indicated who they were,” and did not operate under any corporate 

umbrella. Id. at 40-41. The Cleaners used their own cleaning supplies. Id.

at 59.

The Cleaners sent an invoice to Donna Zola, who paid them by mailing 

a check. N.T. Trial Vol. I, 6/5/18, at 42-43, 46. After Mary Minch’s fall, Donna 

Zola had one telephone conversation with the Cleaners, but thereafter the 

Cleaners did not answer Donna Zola’s phone calls and she could not locate

them. Id. at 43-44.

Both Appellants testified that they arrived at the property around 2:45 

p.m. on July 18, 2014. At the time, Mary Minch was approximately 68 years 

old. See N.T. Trial, Vol. II, 6/6/18, at 3. A cleaning woman exited the 

property and told them, “[W]e’re done in here, you can go in”; a man was 

with her. N.T. Trial, Vol. I, 6/5/18, at 65; N.T. Trial, Vol. II, 6/6/18, at 5. 

Appellants entered the property, and Joseph Minch immediately used one

bathroom, while Mary Minch used another bathroom.

After exiting the bathroom, Mary Minch stepped into the hallway onto 

the laminated floor and fell. She experienced “unbearable” pain. N.T. Trial, 

Vol. II, 6/6/18, at 7. She described the floor as “slippery,” and stated that 

she felt “slime” on her pants, shoes, and hand. Id. There was a “puddle” of 

Orange Glo cleaner on the hallway floor where she fell. N.T. Trial, Vol. II, 

6/6/18, at 32-33, 54, 91 (testimony of Marianne Kennedy); see also

Appellants’ Complaint, 6/27/16, at 3 (unpaginated). Mary Minch was 
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transported by ambulance to the hospital, where it was determined that she

had a broken right femur and broken right ankle.

Appellants filed a complaint on June 27, 2016, raising counts of (1) 

negligence against KDG; (2) negligence against the Zolas on the theory of 

vicarious liability; (3) negligence against the Cleaners; and (4) loss of 

consortium for Joseph Minch. Pertinently, Appellants averred that (1) the 

Landlords were vicariously liable for the actions of the Cleaners; (2) the 

Landlords were additionally liable because the Cleaners were their agents; (3) 

the Landlords negligently hired the Cleaners; and (4) the Landlords knew or 

should have known of the dangerous condition on the floor.

The case proceeded to trial on June 5, 2018. The Cleaners did not 

appear and did not participate otherwise. Appellants presented the testimony 

summarized above, as well as testimony from their daughter Marianne 

Kennedy, and son-in law Christopher Kennedy. Christopher Kennedy testified

that the day after Mary Minch’s fall, he emailed Donna Zola, and Donna Zola 

replied, inter alia, “This is a professional cleaning company that we have 

cleaning the house.” N.T. Trial Vol. II, 6/6/18, at 58.

Appellants also presented a report and testimony from Andres Calderon, 

Ph.D., who was qualified as an expert in the field of biomechanical and 

biomedical engineering. N.T. Trial, Vol. II, 6/6/18, at 49. Dr. Calderon 

testified that he tested the slipperiness, under various conditions, of the 

hallway floor at the property. He concluded that Orange Glo on the floor was 

“extremely slippery” and “hazardous,” and that “everybody” who walked on it 
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would slip. Id. at 52.

Following the presentation of Appellants’ case, the Landlords moved for 

compulsory nonsuit. N.T. Trial Vol. II, 6/6/18, at 111. The trial court granted 

their motion, finding first that the court — rather than the jury — would decide 

the issue of vicarious liability, and second, that the Landlords could not be 

vicariously liable for the Cleaners’ conduct because the Cleaners were 

independent contractors, rather than in a master/servant relationship with the 

Landlords. N.T. Trial Vol. III, 6/12/18, at 2-4, 18; Order, 6/13/18. The court 

further found that the Landlords were not liable because they were out of 

possession of the property; the Landlords were not liable under the theory of 

ostensible agency;2 and the Landlords did not negligently hire the Cleaners. 

Id. at 10, 13-14.

Appellants moved for a directed verdict against the Cleaners, which the 

trial court granted. N.T. Trial Vol. III, 6/12/18, at 19. Thus, the case 

proceeded to jury deliberation on the sole issue of damages, if any, owed by

the Cleaners to Appellants. Id. at 20. The jury awarded Appellants $300,000, 

comprised of (1) $47,693.02 for Mary Minch’s past medical expenses; (2) 

$200,000 for Mary Minch’s past, present, and future pain and suffering, 

embarrassment, and loss of enjoyment of life; and (3) $52,316.98 for Joseph 

Minch’s loss of consortium.

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2 The theory of ostensible agency is also referred to as “agency by estoppel”

and “apparent authority.” Loyle v. Hertz Corp., 940 A.2d 401, 404 n.2 (Pa. 

Super. 2007).
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Appellants filed a timely motion for post-trial relief, requesting removal 

of the nonsuit granted in favor of the Landlords. The trial court denied the

motion on December 17, 2018, and Appellants filed this appeal. Both 

Appellants and the trial court have complied with Pennsylvania Rule of 

Appellant Procedure 1925. As noted above, judgment was entered on 

September 16, 2019, and this appeal is now properly before us.

Appellants present four issues on appeal:

1. Did the trial court err in its Order of December 18, 2018 when 

it denied [Appellants’] Motion for Post-Trial Relief and Removal of 

Non-Suit because a genuine issue of material fact existed as to 

whether [the Landlords] were in possession of the rental property 

where Appellant slipped and fell?

2. Did the trial court err in its Order of December 18, 2018 when 

it denied [Appellants’] Motion for Post-Trial Relief and Removal of 

Non-Suit, concluding as a matter of law [the] Cleaners were 

independent contractors?

3. Did the trial court err in its Order of December 18, 2018 when 

it denied [Appellants’] Motion for Post-Trial Relief and Removal of 

Non-Suit, and dismissing the ostensible agency claims against 

[the Landlords]?

4. Did the trial court err its Order of December 18, 2018 when it 

denied [Appellants’] Motion for Post-Trial Relief and Removal of 

Non-Suit, and dismissing the negligent hiring/retention/

supervision claims against [the Landlords]?

Appellants’ Brief at 4-6.3

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3 Although Appellants present four issues, the argument section of their brief 

is organized under six headings. We remind counsel that “[t]he argument 

shall be divided into as many parts as there are questions to be argued[.]” 

See Pa.R.A.P. 2119(a).
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First, Appellants aver that the trial court improperly invaded the 

province of the jury by deciding the factual issue of whether the Landlords 

were out of possession of the property. Appellants’ Brief at 17, citing

Eisbacher v. Maytag Corp., 168 A.3d 298 (unpub. memo.) (Pa. Super. 

2017). Appellants further suggest, in a footnote, that the court improperly 

granted nonsuit by not applying “[a] long established exception to the general 

rule of non-liability for landlords out of possession [where] the defect existed 

at the time [the] lease was executed.” Id. at 21 n.2 (emphasis removed). 

We disagree.

At trial, in response to the Landlords’ motion for nonsuit, Appellants first 

argued that the Landlords were in possession of the property. N.T. Trial Vol. 

III, 6/12/18, at 13 (“[T]his is not a landlord out of possession case.”). 

Appellants also argued, however, that “a long standing exception to the 

landlord out of possession rule” applied — that if a “defect existed at the time 

that the lease commenced[,] the landlord remains responsible and has a duty 

to inspect.”

4

 Id. at 13-14 (emphasis added). Appellants maintained that 

there was no dispute that when Mary Minch walked into the premises, it was 

unsafe, “and she can’t be deemed to have possession, they had possession

____________________________________________

4 The trial court began the trial proceedings on June 12, 2018 by announcing 

its decision to grant the Landlords’ motion for nonsuit. N.T. Trial Vol. III, 

6/12/18, at 2. Thereafter, however, the court heard and responded to 

Appellants’ arguments against the nonsuit. Id. 3-18. Because the trial court 

permitted these arguments, we consider them timely raised.
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[sic].” Id. at 14. The trial court disagreed, finding that the Landlords were 

out of possession and accordingly were not liable. Id.at 14-15.

On appeal, Appellants present an argument that was not raised when 

the trial court considered the Landlords’ motion for nonsuit — that the jury, 

not the court, should have decided whether the Landlords were in or out of

possession. While Appellants did raise this issue in the brief supporting their 

post-trial motion, their failure to timely raise the issue, before nonsuit was 

granted, results in waiver.

5

 See E.S. Mgmt. v. Gao, 176 A.3d 859, 864 (Pa. 

Super. 2017) (“A party ‘may not, at the post-trial motion stage, raise a new 

theory which was not raised during trial.’”).

Furthermore, Appellants’ footnote regarding a landlord-out-ofpossession exception does not merit relief. See Appellants’ Brief at 21 n.2. 

We note the standard of review of entries of non-suit: “[W]e must resolve all 

conflicts in the evidence in favor of the party against whom the non-suit was 

entered.” Gregury v. Greguras, 196 A.3d 619, 625 (Pa. Super. 2018) (en 

banc) (citation omitted).

A motion for compulsory non-suit allows a defendant to test the 

sufficiency of a plaintiff’s evidence and may be entered only in 

cases where it is clear that the plaintiff has not established a cause 

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5 The certified record does not include Appellants’ post-trial motion, but does 

include the brief in support. Nevertheless, we need not verify whether

Appellant’s motion raised the issue now presented on appeal, as the 

dispositive inquiry is whether Appellants presented the issue before the trial 

court granted nonsuit, and the trial transcript indicates that they did not. See

N.T. Trial Vol. II, 6/6/18, at 115-127; N.T. Trial Vol. III, 6/12/18, at 13-14.
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of action; in making this determination, the plaintiff must be given 

the benefit of all reasonable inferences arising from the evidence. 

When so viewed, a non-suit is properly entered if the plaintiff has 

not introduced sufficient evidence to establish the necessary 

elements to maintain a cause of action; it is the duty of the trial 

court to make this determination prior to the submission of the 

case to the jury.

Id. (citation omitted).

Generally, a party is a “possessor” of land if he (1) is in occupation of 

the land with the intent to control it; (2) has been in occupation of the land 

with intent to control it if no other party has done so subsequently; or (3) is 

entitled to immediate occupation if neither of the other alternatives apply. 

Blackman v. Federal Realty Inv. Trust, 664 A.2d 139, 142 (Pa. Super. 

1995), citing Restatement (Second) of Torts § 328E (1965).

“As a general rule, a landlord out of possession is not liable for injuries 

incurred by third parties on the leased premises because the landlord has no 

duty to such persons.” Jones v. Levin, 940 A.2d 451, 454 (Pa. Super. 2007) 

(citations omitted). However:

[a] landlord out of possession may incur liability (1) if he has 

reserved control over a defective portion of the demised premises; 

(2) if the demised premises are so dangerously constructed that 

the premises are a nuisance per se; (3) if the lessor has

knowledge of a dangerous condition existing on the demised 

premises at the time of transferring possession and fails to 

disclose the condition to the lessee; (4) if the landlord leases the 

property for a purpose involving the admission of the public and 

he neglects to inspect for or repair dangerous conditions existing 

on the property before possession is transferred to the lessee; (5) 

if the lessor undertakes to repair the demised premises and 

negligently makes the repairs; or (6) if the lessor fails to make 

repairs after having been given notice of and a reasonable 

opportunity to remedy a dangerous condition existing on the 
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leased premises.

Dorsey v. Continental Assoc., 591 A.2d 716, 718-719 (Pa. Super. 1991) 

(citations omitted).

In arguing that there is an additional exception — that an out of 

possession-landlord will be liable merely if a property defect existed when the 

lease commenced — Appellants provide a string cite of Pennsylvania Supreme 

Court and Superior Court cases from 1890 through 1953.6 Appellants’ Brief 

at 21 n.2. However, Appellants do not discuss these cases, which we 

determine are distinguishable. For example, in McLaughlin, testimony 

showed that the defect at issue — rotten wooden framework that covered a 

hole in the ground — had existed for 10 or 15 years, and in Kelly, there was 

evidence that the defect — rusted door hinges — had existed for 15 or 16 

years. See McLaughlin, 79 A. at 555; Kelly, 97 A.2d. at 835. Here, 

Appellants made no comparable argument that the Orange Glo was on the 

floor for a prolonged period. Further, both Knickerbocker and Gerber

involved defects in the sidewalk and were governed by principles specific to 

sidewalks. See Knickerbocker, 25 A.2d at 318-322 (“T]here is a difference 

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6 Appellants cite Harte v. Jones, 134 A. 467 (Pa. 1926), Knickerbocker v. 

Scranton, 25 A.2d 152 (Pa. 1942), Harte v. Jones, 134 A. 467 (Pa. 1926),

McLaughlin v. Kelly, 79 A. 552 (Pa. 1911), Kirchner v. Smith, 56 A. 947 

(Pa. 1904), Reading v. Reiner, 31 A. 357 (Pa. 1895), Wunder v. McLean, 

19 A. 749 (Pa. 1890), Kelly v. Horn, 97 A.2d 833 (Pa. Super. 1953), Gerber 

v. Jones, 30 A.2d 534 (Pa. Super. 1943), and Ford v. Philadelphia, 24 A.2d 

746 (Pa. Super. 1942).
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in status between persons inside the premises and persons outside the 

premises. The rules applicable are not the same and the theories supporting 

the rules are different.”); Gerber, 30 A.2d at 535.

Additionally, Appellants claim that Dinio v. Goshorn, 270 A.2d 203 (Pa. 

1969), “broadened” the exception “to include situations where the owner, at 

the time of leasing, could have discovered the defect through reasonable 

inspection.” Appellants’ Brief at 21 n.2. Appellants disregard that the Court

in Dinio specified: “In those instances where, at the time of the leasing, the 

landlord knows, or has reason to know, of a defect, he cannot escape 

liability.” Dinio, 270 A.2d at 206. Here, Appellants presented no evidence 

that the Landlords caused, observed, or had reason to know of the slippery 

floor. Thus, the trial court properly found that no exception applied, and as 

out-of-possession landlords, the Landlords were not liable. See Trial Court 

Opinion, 3/11/19, at 6-8; Jones, 940 A.2d at 454; Dorsey, 591 A.2d at 718-

719.

In their second issue, Appellants allege that the trial court usurped the 

role of the jury by finding that the Cleaners were independent contractors, 

rather than in a master/servant relationship with the Landlords.7 Appellants’ 

Brief at 27, citing Cox v. Caeti, 279 A.2d 756, 759 (Pa. 1971). Appellants 

contend that the evidence at trial established a master/servant relationship. 

____________________________________________

7 This issue was preserved at trial. See N.T. Trial Vol. III, 6/12/18, at 14.
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Appellants cite Donna Zola’s testimony that the Cleaners were “just filling in 

for her”; there was no written contract; she did not hire the Cleaners due to 

any specialized skills or knowledge on the Cleaners’ part; and she told the 

Cleaners “exactly what to do and when to do it.” Id. at 27, 31, 33 (emphasis 

removed). We disagree.

This Court has stated:

As a general rule, while an employer may be held responsible 

for negligent acts of its servants/employees, it will not be held 

liable for harm caused by acts of independent contractors. . . . 

The test for determining whether one is a servant or an 

independent contractor is well-established:

The characteristic of the former relationship is that the 

master not only controls the result of the work but has 

the right to direct the way in which it shall be done, 

whereas the characteristic of the latter is that the person 

engaged in the work has the exclusive control of the 

manner of performing it, being responsible only for the 

result . . . . [“]It is not . . . the fact of actual interference 

or exercise of control by the employer, but the existence 

of the right or authority to interfere or control, which 

renders one a servant rather than an independent 

contractor . . . .”

“It is the exclusive function of the jury to determine, from the 

evidence, the precise nature of the relationship, except where 

the facts are not in dispute, in which latter event the question 

becomes one for determination by the court.”

Lutz v. Cybularz, 607 A.2d 1089, 1091 (Pa. Super. 1992) (citations omitted). 

See also Kirschner v. K & L Gates LLP, 46 A.3d 737, 761 (Pa. Super. 2012) 

(“It is the exclusive function of the jury to determine, from the evidence, the 

precise nature of the relationship, except where the facts are not in dispute, 

in which latter event the question becomes one for determination by the 
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court.”).

Appellants do not cite any inconsistency or dispute in the evidence about 

the relationship between the Landlords and the Cleaners. Instead, their 

argument goes to the conclusion that should have been reached based on the 

evidence. Thus, consistent with the Cox decision — cited by Appellants — it 

was proper for the trial court to determine whether the Cleaners were 

independent contractors or in a master/servant relationship with the 

Landlords. See Cox, 279 A.2d at 758 (“If the facts as to such relationship 

are in dispute, it is the function of a jury to determine the precise nature of 

the relationship between the parties[.] However, where the facts are not in 

dispute, the question of the relationship becomes one for determination by 

the court[.]”); Kirschner, 46 A.3d at 761; Lutz, 607 A.2d at 1091.

We next review the trial court’s finding that the Cleaners were 

independent contractors. Appellants presented the same arguments to the 

trial court that they advance on appeal. The court reasoned, inter alia, that

(1) the mere lack of a written agreement between the Cleaners and the 

Landlords did not signify that the Cleaners were employees of the Landlords;

(2) Donna Zola had only arranged for the Cleaners to clean on two occasions; 

(3) although the Landlords directed that the cleaning to be performed at a 

particular time, they did not control the manner of work, and instead, the 

Cleaners “were responsible for the result only”; (4) the Cleaners presented 

the Landlords with an invoice; and (5) the Landlords did not have, as 
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Appellants claimed, “a right . . . to terminate the employment of [the Cleaners] 

at any time,” but rather the Landlords could simply “choose not to hire the 

[Cleaners] again.” N.T. Trial Vol. II, 6/6/18 at 117-118; N.T. Trial Vol. III, 

6/12/18, at 4-8. In sum, the trial court properly weighed the factors set forth 

in Lutz, and we do not disturb its decision. See Gregury, 196 A.3d at 625; 

Lutz, 607 A.2d at 1091.

In their third issue, Appellants assert that the trial court erred in 

dismissing their claim of ostensible agency.8 They cite Section 429 of the 

Restatement (Second) of Torts, which provides that an employer is liable for 

the acts of an independent contractor employed “to perform services . . .

which are accepted in the reasonable belief that the services are being 

rendered by the employer or by his servants.” Appellants’ Brief at 34-35, 

citing Restatement 2d of Torts, § 429. Appellants reason that they “were 

permitted to enter the property at [the Cleaners’] direction,” Appellants 

“understood the [C]leaners worked for the” Landlords, the Landlords 

“represented to Appellants in emails that the [Cleaners] were ‘their’ cleaners,” 

____________________________________________

8 The Landlords claim this issue is waived because Appellants did not raise 

ostensible agency in their complaint. Landlords’ Brief at 36. While we agree 

that the complaint did not articulate the phrase “ostensible agency,” it did 

aver that the Cleaners were “agents” of the Landlords. See Appellants’ 

Complaint, 6/27/16, at 2 (unpaginated). Thus, we decline to find waiver. See 

Loyle, 940 A.2d at 404-405 (complaint alleged sufficient facts to claim of 

ostensible agency against Hertz Corp., where complaint averred, inter alia,

that “Hertz’s ‘employees, servants and agents’ (emphasis added) were the 

personnel directly responsible for the alleged tortious conduct”).
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and the Landlords “admitted the [Cleaners] were working for [them] because 

they were out of town.” Id. at 36.

This Court has stated:

Restatement (Second) of Agency, Section 267, defines ostensible 

agency as follows: “One who represents that another is his 

servant or other agent and thereby causes a third person 

justifiably to rely upon the care or skill of such apparent agent is 

subject to liability to the third person for harm caused by the lack 

of care or skill of the one appearing to be a servant or other agent 

as if he were such.”

Parker v. Freilich, 803 A.2d 738, 746 (Pa. Super. 2002).

As a general rule, an employer is not liable for torts committed by 

an independent contractor in his employ. We have, however, 

recognized an exception to the general rule, stated in section 429 

of the Restatement (Second) of Torts, which provides that one 

who employs an independent contractor to perform services for 

another which are accepted in the reasonable belief that the 

services are being rendered by the employer or by his servants, 

is subject to liability for physical harm caused by the negligence 

of the contractor in supplying such services, to the same extent 

as though the employer were supplying them himself or by his 

servants.

Id. at 746-747 (citation omitted).

Here, the parties and trial court’s discussion of ostensible agency was 

brief. See N.T. Trial Vol. II, 6/6/18, at 124; N.T. Trial Vol. III, 6/12/18, at 3, 

10-11. Contrary to Appellants’ inference, the Landlords did not, in the email 

to Christopher Kennedy, represent that the Cleaners were their employees. 

See Appellants’ Brief at 36. Christopher Kennedy’s testimony was that Donna 

Zola’s email stated, “This is a professional cleaning company that we have 

cleaning the house.” N.T. Trial Vol. II, 6/6/18, at 58. The trial court 
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considered both the email and the fact that the Cleaners allowed Appellants 

entry into the property, and ruled that these facts were insufficient to establish 

ostensible agency. N.T. Trial Vol. III, 6/12/18, at 3, 10-11. We agree. Donna 

Zola’s email conveyed that the Cleaners were a separate organization or 

business. Accordingly, Appellants’ ostensible agency claim does not merit

relief.

We address Appellants’ final two claims together. Appellants maintain 

that they presented sufficient evidence on their common law negligence 

claims, and thus these claims should have been submitted to the jury. 

Appellants did not timely raise this issue before the court entered nonsuit, and 

thus it is waived. See E.S. Mgmt., 176 A.3d at 864.

Next, Appellants infer that the Landlords were negligent in hiring the 

Cleaners, where the Landlords’ “due diligence” was limited to “a short 

conversation with their neighbors about these cleaners” and “a 10 min[ute] 

conversation with [the C]leaners in the driveway.” Appellants’ Brief at 38-39. 

Appellants reiterate that the Cleaners did not have an established business, 

business cards, logo on their vehicle, guarantees or bonds, and “supervisor to 

call if there [was] an issue or emergency.” Id. Appellants’ reliance on the 

theory of negligent hiring is misplaced.

This Court has stated:

It has long been the law in this Commonwealth that an employer

may be liable in negligence if it knew or should have known that 

an employee was dangerous, careless or incompetent and such 

employment might create a situation where the employee’s 
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conduct would harm a third person. This common law principle, 

as applied to an employee acting outside the scope of 

employment, was later embodied in Section 317 of the 

Restatement (Second) of Torts which has been adopted in 

Pennsylvania.

Brezenski v. World Truck Transfer, Inc., 755 A.2d 36, 39-40 (Pa. Super. 

2000) (emphases added) (citations omitted). “[A]n action for negligent hiring 

provides a remedy to injured third parties who would otherwise be foreclosed 

from recovery under the master-servant doctrine because the wrongful acts 

of employees in these cases are likely to be outside the scope of employment 

or not in furtherance of the master’s business.” Heller v. Patwil Homes, 

713 A.2d 105, 107 (Pa. Super. 1998).

As discussed above, the trial court did not err in finding that the Cleaners 

were independent contractors. Thus, the Cleaners were not “employees” of 

the Landlords, nor in a master/servant relationship within the above paradigm 

for finding negligent hiring. See Brezenski, 755 A.2d at 39-40; Heller, 713 

A.2d at 107. See also Barnes v. Alcoa, Inc., 145 A.3d 730, 735 (Pa. Super. 

2016) (trial court properly granted Alcoa’s motion for compulsory nonsuit on 

plaintiff’s claim of negligent hiring of two individuals, where plaintiff failed to 

present sufficient evidence that the two individuals were Alcoa’s employees). 

Furthermore, Appellants do not allege that the Cleaners’ conduct — leaving 

excess Orange Glo cleaner on the floor — was outside the scope of their 

alleged employment to clean the property. See id.; compare with 

Hutchison by Hutchison v. Luddy, 742 A.2d 1052, 1059 (Pa. 1999 (church 
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diocese and bishop negligently hired priest who sexually molested minor); 

Heller v. Patwil Homes, 713 A.2d 105, 106-107 (Pa. Super. 1998) (home 

construction company negligently hired sales manager who fraudulently 

convinced buyers to “invest” $49,500 in his “investment business”; sales 

manager subsequently pleaded guilty to criminal charges arising out of the 

investment scheme). Contra Brezenski, 755 A.2d at 38-39 (trucktransporting business did not negligently hire truck driver who fatally shot a 

man and shot a coworker, because driver’s criminal acts were not related to 

truck driving).

In sum, and consistent with the foregoing, we find that the trial court

did not err in finding that the Landlords were not liable as landlords out-ofpossession; the Landlords were not vicariously liable because the Cleaners 

were independent contractors; the Landlords were not liable under ostensible 

agency; and the Landlords did not negligently “hire” the Cleaners.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/16/19