J.A13041/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

HARRIETT HUEITT, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

v. :

:

PHILADELPHIA MEDIA HOLDINGS, LLC :

D/B/A THE PHILADELPHIA DAILY NEWS :

AND JEFFREY ALEXANDER VARGAS :

: 

v. :

:

TIMOTHY KEELEY A/K/A/ :

TIMOTHY B. KEELEY, SR. : No. 2632 EDA 2013

Appeal from the Order Entered June 13, 2011

In the Court of Common Pleas of Philadelphia County 

Civil No(s).: 3553

BEFORE: ALLEN, MUNDY, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED JULY 14, 2015

Appellant, Harriett Hueitt, appeals from the order entered in the 

Philadelphia County Court of Common Pleas granting the summary judgment 

motion of Appellee, Philadelphia Media Holdings, LLC, doing business as the 

Philadelphia Daily News (“Daily News”).1 Hueitt claims the trial court erred 

by not holding that Daily News violated a legal duty and that the peculiar 

risk doctrine applied. We reverse and remand.

 

*

Former Justice specially assigned to the Superior Cnewourt.

1 Daily News is the only appellee. The procedural posture is explained, 

infra.
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We state the facts2as set forth by a prior panel of this Court:

We briefly state the facts, which are generally 

undisputed, in the light most favorable to Ms. Hueitt. In 

the early morning of October 6, 2006, Ms. Hueitt was 

driving on Island Avenue in northeast Philadelphia. [While 

the traffic light was green,3s]he stopped at the 

intersection with Bartram Avenue to purchase a 

Philadelphia Daily News newspaper from a street vendor. 

Mr. [Jeffrey] Vargas, who was driving behind Ms. Hueitt, 

rear-ended her vehicle. As a result, Ms. Hueitt was 

injured. 

The street vendor is known as a “hawker.”[FN] The Daily 

News sells newspapers to contractors. Ex. B to Daily 

News’s Mem. of Law in Support of Mot. for Summ. J. The 

contractors, in turn, hire and train homeless or 

disadvantaged people—“hawkers”—to sell newspapers. 

Id. The agreement between the Daily News and the 

contractors specifies the general areas within which they 

may sell. Ex. C. to Daily News’ Mem. of Law in Support of 

Mot. for Summ. J. The agreement also contains a risk of 

loss provision:

RISK OF LOSS. Upon Contractor’s pick-up of 

Newspapers from [Daily News], the risk of loss 

with respect to the Newspapers, and the title to 

the Newspapers, passes to Contractor who then 

becomes responsible for any damaged or extra 

Newspapers that were picked up. In addition, 

 

2

Like the prior panel of this Court, we disregard any factual allegations by 

the parties unsubstantiated by the certified record or outside our scope of 

review. See Hueitt v. Phila. Media Holdings, LLC, 1922 EDA 2011, slip 

op. at 2 (Pa. Super. Jan. 28, 2013) (“Hueitt I”) (citing Commonwealth v. 

Preston, 904 A.2d 1, 6-7 (Pa. Super. 2006) (en banc)).

3 As Hueitt approached the intersection, “she saw that the light for her 

direction of travel was green. . . . She slowed her car, tapped her horn, 

then stopped . . . . While she was stopped, she observed the traffic light for 

her direction of travel was still green.” Hueitt’s Supplement to Opp. to Daily 

News’ Mot. for Summ. J., 5/31/11, at 2.
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Contractor bears all other risks incurred in 

running Contractor’s business, including the risk 

of loss of non-payment by purchasers. 

Id. The contractors also indemnify Daily News for any 

injuries resulting from any actions or omissions by the 

contractors and hawkers. Id.

FN The parties dispute whether the contractors are 

independent.

Ms. Hueitt filed a complaint against the Daily News and 

Mr. Vargas. Ms. Hueitt raised two separate claims: a claim 

of negligence against the Daily News and a claim of 

negligence against Mr. Vargas. Ms. Hueitt’s Am. Compl. 

The Daily News joined Timothy B. Keeley, also known as 

Timothy B. Keeley, Sr., as an additional defendant. 

Joinder Compl. of Daily News. The Daily News alleged Mr. 

Keeley was the contractor who supervised the hawker in 

this case and also invoked indemnification. Mr. Vargas 

raised a cross-claim of negligence against the Daily News. 

Mr. Vargas’s Answer with New Matter to Ms. Huiett’s Am. 

Compl. No party sued the hawker.

Hueitt v. Phila. Media Holdings, LLC, 1922 EDA 2011, slip op. at 2-4 (Pa. 

Super. Jan. 28, 2013) (“Hueitt I”). 

With respect to her claim of negligence against Daily News, she 

averred:

23. At all times relevant to this action, an unidentified 

individual was working in the capacity of an employee, 

agent, servant and business representative of [Daily 

News].

24. [Daily News] and its predecessors contracted, hired 

and used individuals to sell its newspaper[,] the 

Philadelphia Daily News[,] at various [i]ntersections 

throughout Philadelphia. The intersection at Island and 
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Bartram was an intersection that has vendors of [Daily 

News] engaged in furtherance of the business of [Daily 

News] on a regular basis.

25. The individuals hired by [Daily News] would walk out in 

traffic and seek to sale [sic] newspapers at intersections.

25. [sic] The act of attempting to make a sale of a product 

in a designated roadway such as Island Bartram avenues is 

negligent, unsafe and dangerous, in that their actions 

impede the safe flow of traffic and result in traffic stopping 

on roadways. 

26. [Daily News’] act of soliciting and selling a newspaper 

to [Hueitt] on the roadway of Island Avenue was negligent 

and unsafe act. 

25. [sic] As a direct and proximate result of the negligence 

of [Daily News’] agent, employee, and/or contractor, 

[Hueitt], has sustained severe and painful injuries, both 

physical and emotional, temporary and permanent, 

[Hueitt] has incurred and will in the future incur 

substantial expenses for medical care and treatment, past 

and future lost wages and a loss of earning capacity, and 

[Hueitt] has been otherwise injured and damaged, all 

without any negligence on the part of [Hueitt] contributing 

thereto.

Hueitt’s Compl., 9/17/08, at 6-7. Daily News denied the allegations. 

“Discovery ensued. The Daily News filed a motion for summary 

judgment.” Hueitt I, at 4. Daily News’ summary judgment motion alleged 

as follows:

15. Here, [Daily News] owed no duty to [Hueitt] for the 

alleged actions of this hawker hired by its independent 

contractors.

16. Under Pennsylvania Law, when an injury is done by an 

“independent contractor,” the person employing him is 

generally not responsible to the person injured. 

Restatement (Second) of Torts § 409 (“[T]he employer of 
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an independent contractor is not liable for physical harm 

caused to another by an act or omission of the contractor 

or his servants.”).

17. The two exceptions to this general rule of non-liability 

are (1) if the hiring party exercised “control over the 

means and methods of the contractor’s work” and (2) if 

the work being performed poses a special danger or is 

particularly risky. Farabaugh v. Pa. Tpk. Comm’n, 911 

A.2d 1264, 1273, 1276 (Pa. 2006).

18. Clearly, neither exception applies to the case at bar.

19. First, the business of selling newspapers is evidently 

not the type of “peculiar risk” which the courts intended to 

carve out by this exception.

20. Secondly, the evidence of record establishes that 

[Daily News] had no control over the training, hiring, or 

distribution of newspapers through the “hawkers” hired by 

its independent contractor.

21. As a result, there is no duty on the part of [Daily 

News] for actions allegedly taken by one of the 

independent news “hawkers.”

22. Consequently, as the record makes clear, [Hueitt] 

cannot establish a prima facie case against [Daily News] 

and [it] is not liable as a matter of law.

Daily News’ Mot. for Summ. J., 4/29/11, at 3-4. In sum, Daily News 

challenged that it owed a duty to Hueitt because it purportedly employed an 

independent contractor who, in turn, hired vendors to sell Daily News’ 

newspapers. See id.

Hueitt opposed Daily News’ motion for summary judgment, and 

responded to paragraphs 15 and 18-22, as follows:

15. Denied. [Daily News] implemented a program of direct 

sales with knowledge of the dangerous practices at issue 
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and took no action to review, inspect or monitor the 

practices of the individuals selling [Daily News’] product.

* * *

18. Denied.

19. Denied. Selling newspapers in the median of traffic 

and in traffic lanes is illegal, against Pennsylvania State 

and Philadelphia Code, is unsafe and dangerous both to 

the vendor and individuals operating vehicles and as such 

[Daily News] does not have the protection of the 

independent contractor law.

20. Denied.

21. Denied. 

22. Denied.

Hueitt’s Opp’n to Daily News’ Mot. for Summ. J., 5/26/11, at 2-3. 

In support of her opposition, Hueitt also included a counterstatement 

of “facts,”4as follows:

7. The placement of vendors in roadways catering to 

operators of vehicles while they are driving their vehicles is 

a dangerous and unsafe practice that can lead to 

foreseeable harm and against the law in the City of 

Philadelphia and the Commonwealth of Pennsylvania.

8. [Daily News] and/or individuals hired by [Daily News] 

would walk out into traffic and seek to sale [sic] 

newspapers at intersections and [Daily News] authorized 

the sales, dropped off the papers and selected the 

locations from which the sales would take place.

9. The act of attempting to make a sale of a product in a 

designated roadway such as Island Bartram avenues is 

 

4 Some “facts” were arguably legal conclusions. 
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negligent, unsafe and dangerous, in that their actions 

impede the safe flow of traffic and results in traffic 

stopping on roadways. 

Id. at 4-5 (citations to exhibits omitted).

Her opposition also included the following deposition testimony from 

Frederick Lehmen, Jr., Daily News’ corporate designee:

[Hueitt’s counsel]. Okay. Are you aware of any other 

incidents occurring, car accidents in particular, as a result 

of the sale of the newspapers in any of the areas of the 

city?

A. Related to the Hawker Program?

Q. Yeah.

A. We had an incident a while ago where we had a Hawker 

struck by a vehicle. It was a vehicle—I think a police 

pursuit. 

[Daily News’ counsel]. Just note my objection. If it’s not 

substantially similar, I don’t think it’s relevant. But you’ve 

answered the question.

[A.] It was, approximately, five years ago.

[Hueitt’s counsel]. How about anything similar to this 

incident, where there’s a rear-ender or something happens 

while the newspaper is, actually, being sold?

A. Absolutely not. I don’t recall anything like that.

* * *

Q. Okay. Is there an understanding that the newspapers 

will be sold on city streets? I mean, literally on the 

streets, not necessarily on the corners. But these 

gentlemen and women will interact with the traffic, the 

stopped traffic at the lights and make the sales?
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A. Is the understanding—I’m not sure what you mean by 

that.

Q. Well, is that something that you know happens or—

A. I mean, I have been on street corners myself in the City 

of Philadelphia and I see Hawkers out there and when the 

light turns red you will see them handling the paper and 

seeing if somebody wants to buy the paper, sure.

Q. If you drive in the city—

A. You see it.

Q. —it’s a common experience?

A. Yeah.

Q. That’s what I mean. Is there anything that the 

newspapers does to restrict how they sell or to educate 

them how to sell or do anything to give them instructions 

on what needs to be done during the sales?

A. I believe that’s all up to the independent—up to these 

folks, the counselors.

Q. Has there ever been a situation where the newspaper 

has instructed the Hawkers or the counselors not to sell in 

a certain location? 

A. Not to my knowledge. Absolutely not.

Dep. of Lehmen, 9/25/08, at 13-18. 

On June 13, 2011, the trial court granted the Daily News’s 

motion and dismissed Ms. Hueitt’s claims against the Daily 

News only. Order, 6/13/11. The order did not express 

“that an immediate appeal would facilitate resolution of the 

entire case.” See Pa.R.A.P. 341. 

Ms. Hueitt filed a timely notice of appeal on July 7, 

2011. On July 22, 2011, the trial court sua sponte ordered 

that “Plaintiff’s[ ] case against . . . Timothy Keeley is nonprossed.” Order, 7/22/11. 
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Hueitt I, at 3-4 (footnote omitted). 

The trial court’s Pa.R.A.P. 1925(a) decision stated that Daily News did 

not owe a duty of care to Hueitt. Trial Ct. Op., 8/2/11, at 3-4; accord Trial 

Ct. Op., 10/7/13, at 3-4. The trial court reasoned as follows:

Generally, where the defendant and plaintiff are 

strangers, a [c]ourt applies a general duty of care required 

of all persons to not place another at an unreasonable risk 

of harm by way of their actions.

Duty, in any given situation, is predicated upon the 

relationship existing between the parties at the relevant 

time. 

The facts herein reveal that the newspaper hawker was 

standing in the intersection of the street. It was Ms. Hueitt 

who drive towards him and then stopped her vehicle. 

Where the parties are strangers to each other[,] the scope 

of general duty of care is limited to those risks which are 

reasonably foreseeable. . . . In this case, Ms. Hueitt did 

not present anything in these facts to put a newspaper 

hawker on notice that Mr. Vargas would drive in a 

negligent manner. 

Trial Ct. Op., 8/2/11, at 3 (citations omitted).

The Hueitt I panel quashed the appeal because outstanding claims 

existed as between Hueitt and Vargas and between Vargas and Daily News. 

Subsequently, the court entered an order—prepared by the parties—that 

essentially resolved the outstanding claims.5 Order, 8/14/13. Hueitt timely 

 

5 The order effectively preserved the parties’ abilities to proceed on any 

claims if Hueitt successfully appealed. Vargas did not explicitly discontinue 

and end his negligence cross-claim against Daily News. All parties 

essentially agreed, however, that no outstanding claims remain. See 
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appealed. The court did not order her to comply with Pa.R.A.P. 1925(b), but 

filed a Rule 1925(a) decision.

Hueitt raises the following issues:

Did the trial court err when it found . . . Daily News had no 

duty to Ms. Hueitt when it created the unsafe condition 

that led to her motor vehicle accident by creating and 

implementing its “hawker program”?

Did the trial court err when it failed to find that the 

[peculiar] risk doctrine applied to the sales practice 

created by . . . Daily News’ “hawker program” contract 

with vendor Keeley?

Hueitt’s Brief at 4.

We summarize Hueitt’s arguments for both of her issues. She broadly 

contends the trial court erred by not creating a duty. Hueitt also argues that 

the peculiar risk doctrine applies. She contends that selling newspapers at 

an intersection is inherently risky. Id. at 19. Hueitt maintains that this risk 

arises from the nature or the manner of performance of selling newspapers 

at an intersection. Id. She states that Keeley, as an independent 

contractor, recognized this risk at the time he hired the hawker. Id. at 19-

20. Hueitt cites several sections of the Vehicle Code and other regulations 

that purportedly recognize that a pedestrian on a roadway is a hazard. She 

 

Pa.R.A.P. 341; Levitt v. Patrick, 976 A.2d 581, 588 (Pa. Super. 2009) 

(“The Pennsylvania Rules of Civil Procedure permit a party to ‘commence a 

second action upon the same cause of action’ after a discontinuance. 

Pa.R.C.P. 231.”).
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opines that Daily News was aware that hawkers sold newspapers at an 

intersection and thus should be held liable. We hold Hueitt is due relief.

In Charlie v. Erie Ins. Exch., 100 A.3d 244 (Pa. Super. 2014), we 

set forth the well-settled standard of review:

Pennsylvania law provides that summary judgment may 

be granted only in those cases in which the record clearly 

shows that no genuine issues of material fact exist and 

that the moving party is entitled to judgment as a matter 

of law. The moving party has the burden of proving that 

no genuine issues of material fact exist. In determining 

whether to grant summary judgment, the trial court must 

view the record in the light most favorable to the nonmoving party and must resolve all doubts as to the 

existence of a genuine issue of material fact against the 

moving party. 

Id. at 250 (citation and punctuation omitted).

The Charlie Court also discussed the non-exclusive five-factor test for 

identifying the existence of a duty:

A duty arises only when one engages in conduct which 

foreseeably creates an unreasonable risk of harm to 

others.

* * *

The determination of whether a duty exists in a 

particular case involves the weighing of several discrete 

factors which include: (1) the relationship between the 

parties; (2) the social utility of the actor’s conduct; (3) the 

nature of the risk imposed and foreseeability of the harm 

incurred; (4) the consequences of imposing a duty upon 

the actor; and (5) the overall public interest in the 

proposed solution . . . . 

Charlie, 100 A.3d at 250-51 (citations and punctuation omitted).
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In Edwards v. Franklin & Marshall Coll., 663 A.2d 187 (Pa. Super. 

1995), Edwards was a construction worker and employee of Benchmark 

Construction Company. Id. at 188. Franklin & Marshall College (“Franklin”), 

hired Benchmark for some roof renovation. Id. Edwards fell through the 

roof, was injured, and sued Franklin; Franklin moved for summary judgment

on the basis that Edwards, as an employee of independent contractor 

Benchmark, could not recover. Id. at 189. 

The Edwards Court explained the peculiar risk doctrine, as follows:

The established law in Pennsylvania provides that an 

employer of an independent contractor is not liable for 

physical harm caused to another by an act or omission of 

the contractor or his servants. One exception to this rule 

provides that an employer may be liable for the negligence 

of its employee/independent contractor where the work to 

be performed by the independent contractor involves a 

special danger or peculiar risk.

The Peculiar Risk Doctrine denotes a concept of employer 

nonliability as set forth in sections 416 and 427 of the 

Restatement (Second) of Torts:

§ 416. Work Dangerous in Absence of 

Special Precautions

One who employs an independent contractor to 

do work which the employer should recognize as 

likely to create during its progress a peculiar 

risk of physical harm to others unless special 

precautions are taken, is subject to liability for 

physical harm caused to them by the failure of 

the contractor to exercise reasonable care to 

take such precautions, even though the 

employer has provided for such precautions in 

the contract or otherwise.
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§ 427. Negligence as to Danger Inherent in 

the Work

One who employs an independent contractor to 

do work involving a special danger to others 

which the employer knows or has reason to 

know to be inherent in or normal to the work, or 

which he contemplates or has reason to 

contemplate when making the contract, is 

subject to liability for physical harm caused to 

such others by the contractor’s failure to take 

reasonable precaution against such danger.

* * *

[A] special danger or peculiar risk exists where:

1) the risk is foreseeable to the employer of the 

independent contractor at the time the contract is 

executed, i.e., a reasonable person, in the position of the 

employer, would foresee the risk and recognize the need 

to take special measures; and

2) the risk is different from the usual and ordinary risk 

associated with the general type of work done, i.e., the 

specific project or task chosen by the employer involves 

circumstances that are substantially out-of-the-ordinary.[6]

 

6

In Ortiz v. Ra-El Development Corp., 528 A.2d 1355 (Pa. Super. 1987), 

the Court explained this second prong “involves a two-step analysis”:

First, we examine the risk that would be posed by the 

general type of work to be performed under typical 

circumstances. . . . Next, we determine whether the 

circumstances under which the general work is done, i.e., 

the specific project or task, introduces a different kind or 

level of risk.

Id. at 1358.
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This Court has further stated that the key to the proper 

application of the two Restatement sections lies in the 

definition of a “peculiar risk” or a “special danger.”

The risk of harm must arise from the peculiar or 

inherent nature of the task or the manner of 

performance, and not the ordinary negligence which 

might attend the performance of any task. Liability 

does not ordinarily extend to so called “collateral” or 

“casual” negligence on the part of the contractor in the 

performance of the operative details of the work. The 

negligence for which the employer of a general contractor 

is liable must be such as is intimately connected with the 

work authorized and such as is reasonably likely from its 

nature.

Stated differently, the definition of “peculiar risk” or 

“special danger” requires that the risk be recognizable in 

advance and contemplated by the employer of the 

independent contractor at the time the contract was 

formed and that it must not be a risk created solely by the 

contractor’s “collateral negligence” i.e., negligence 

consisting wholly of the improper manner in which the 

contractor performs the operative details of the work.

[B]ecause the Peculiar Risk Doctrine is an exception to a 

general rule, it should be viewed narrowly. As this Court 

has stated:

. . . In order for the liability concepts involving 

contractors to retain any meaning, . . . peculiar 

risk situations should be viewed narrowly, as 

any other exception to a general rule is usually 

viewed.

Id. at 189-91 (emphasis in original and punctuation and some citations 

omitted).

Pursuant to the two-prong test set forth above, the Edwards Court 

first ascertained whether “a reasonable person, in the position of the 

employer, [would] foresee the risk and recognize the need to take special 
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measures.” Id. at 191. The Edwards Court stated the trial court found 

that both Franklin and Benchmark were aware of the “deteriorating and 

dangerous nature of the roof.” Id. Thus, the first step was met. Id. The 

second step, however, was not met because Benchmark was in the business 

of renovating commercial structures, including roofs, and the risk of falling 

through the roof was apparent. Id. The risk of falling through a roof while 

renovating the roof was not a risk “substantially out-of-the-ordinary” such 

that it meets the definition of a “peculiar risk” or a “special danger.” Id. 

Accordingly, the Edwards Court affirmed the grant of summary judgment in 

favor of Franklin as Edwards failed to invoke the narrow exception to the 

general rule that “an employer of an independent contractor is not liable for 

injuries caused by the negligence of the contractor or its servants.” Id. at 

188.

Instantly, Daily News challenged whether it owed a duty to Hueitt 

because it employed an independent contractor who, in turn, hired hawkers 

to sell its newspapers. See Daily News’ Mot. for Summ. J., 4/29/11, at 3. 

As set forth above, Hueitt contested Daily News’ allegations and countered 

that Daily News could not escape liability under the independent contractor 

doctrine. See Hueitt’s Opp’n to Daily News’ Mot. for Summ. J., 5/26/11, at 

2-3. Hueitt further cited exhibits that when viewed in the light most 

favorable to her, sufficiently identify material issues of fact as to whether a 

newspaper vendor could reasonable anticipate a traffic accident would result 
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from selling newspapers on the streets. See id. at 4-5, 7; see also Dep. of 

Lehmen, 9/25/08, at 13-18. 

Moreover, similar to Edwards, Hueitt cited testimony establishing 

Daily News’ awareness that hawkers sold newspapers on street corners and 

accidents could occur. See, e.g., Dep. of Lehmen, 9/25/08, at 13-18. 

Thus, unlike Edwards, Hueitt identified material issues of fact regarding 

whether Daily News foresaw the risk and whether it differed from the usual 

and ordinary risk involved in selling newspapers. See Edwards, 663 A.2d 

at 191. Accordingly, after viewing the record in Hueitt’s favor, we reverse 

the grant of summary judgment in favor of Daily News and remand for 

further proceedings. See Charlie, 100 A.3d at 250.

Order reversed. Case remanded. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/14/2015