J-A20018-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

EDWARD ECKER, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

NATIONAL RAILROAD PASSENGER 

CORPORATION A/K/A AMTRAK,

Appellee

v.

CONTROLLED F.O.R.C.E., INC.,

Appellee No. 2360 EDA 2014

Appeal from the Judgment Entered September 9, 2014

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): January Term, 2013 No. 1226

EDWARD ECKER, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

NATIONAL RAILROAD PASSENGER 

CORPORATION A/K/A AMTRAK,

Appellee

v.

CONTROLLED F.O.R.C.E., INC.,

Appellant No. 2608 EDA 2014
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Appeal from the Order Dated August 5, 2014

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): January Term, 2013 No. 1226

BEFORE: DONOHUE, SHOGAN, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 05, 2015

These are consolidated appeals. Following our thorough review of the 

record, the parties’ arguments, and the applicable law, we affirm.

Edward Ecker (“Ecker”), age fifty-three, was an Amtrak police officer 

who filed suit in this negligence action pursuant to the Federal Employers’ 

Liability Action (“FELA”), 45 U.S.C. § 51, on January 15, 2013, against 

Amtrak, Appellee herein. Ecker injured his shoulder on October 19, 2012, 

while participating in a defensive tactics training class taught by Controlled 

F.O.R.C.E., Inc. (“CF”) in a training room of Amtrak’s station at 30th Street 

in Philadelphia.1 After a four-day trial, a jury found in favor of Amtrak and 

CF on May 5, 2014. Following the denial of his motion for a new trial, Ecker 

filed a notice of appeal at docket number 2360 EDA 2014. When the trial 

court subsequently granted Amtrak’s requested indemnification for the costs 

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1

 Amtrak joined CF as an additional defendant on May 22, 2013.
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of defense, CF filed a notice of appeal at docket number 2608 EDA 2014.2 

On October 1, 2014, we consolidated the appeals sua sponte.

Appeal by Ecker at 2360 EDA 2014

The trial court summarized the factual underpinnings of this case as 

follows:

On May 31, 2012, Amtrak and [CF] entered into a contract 

for [CF] to teach several defensive training tactics courses to 

Amtrak police officers on Amtrak property. On October 19, 

2012, [Ecker] attended the training class and injured his 

shoulder while performing a training exercise. [Ecker] claimed 

that he injured himself because the parties did not supply 

sufficiently thick mats on which he performed the training 

exercises. (See Complaint).

Trial Court Opinion, 3/13/15, at 2. At trial, Ecker described the occurrence 

of injury as follows:

[Amtrak Police Officer] Harper happened to be standing in 

my location just around me. We looked at each other and we 

agree that let’s give [the exercise] a try. So we turned around, 

got down on the floor with our backs up against each other. We 

attempted to do the exercise. I believe I got off the floor a little 

bit. Exactly how high, I have no idea; but at that point it was 

the very first time I tried it. I fell. Like, I was losing my 

balance. I threw my arm out instinctively to keep from falling off 

over to the side. So I just threw my arm out there.

N.T., 4/29/14, at 173. Ecker also testified that the training room “was 

poorly lit, dingy looking, dirty. Looked like nobody had been back there in 

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2

 Thus, CF is an appellee in the appeal filed by Appellant Ecker at docket 

number 2360 EDA 2014. CF is the appellant in the appeal it filed regarding 

the trial court’s ruling that CF must indemnify Amtrak, Appellee therein, at 

docket number 2608 EDA 2014.
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years.” Id. at 167. Ecker stated that he talked to the CF instructor about 

the conditions in the training room, as follows:

So I just said, mentioned to the instructor I thought that the 

flooring that was down seemed a little thin since I’ve been to 

many defensive tactics courses over the years and usually you 

do takedowns in defensive tactics. Now I didn’t know what to 

expect out of this class, but if it was like every other defensive 

tactics training I’d been to, I just believed that we were going to 

do some kind of takedowns. And I thought that the flooring with 

the concrete floor, when you’re—I mean, I mean, if I’m on patrol 

you take what you get. You have no choice on that. But if I’m 

in a controlled environment, I just think if I’m going to be taken 

down to the floor, I didn’t think the carpeting or padding it had 

there was appropriate.

Id. at 168.

As noted, after a four-day jury trial, the jury found in favor of Amtrak 

and CF. Ecker filed a motion for a new trial on May 12, 2014, which the trial 

court denied on June 19, 2014. Subsequently, Ecker filed a notice of appeal 

on July 15, 2014.3 Both Ecker and the trial court complied with Pa.R.A.P. 

1925.

Ecker presents the following two issues in his appeal:

I. Did the trial court err when it precluded evidence of a prior 

similar accident in the same location that occurred shortly 

before Appellant’s accident?

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3

 Because judgment had not been entered on the docket as required by 

Pa.R.A.P. 301, Ecker was directed to praecipe the trial court to enter 

judgment. Judgment was entered on September 9, 2014, and the 

previously filed notice of appeal, therefore, is treated as filed after the entry 

of judgment. See Pa.R.A.P. 905(a).
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II. Did the trial court err when it precluded evidence of 

subsequent remedial measures including preclusion of 

questions to [CF’s] liability expert of subsequent remedial 

measures?

Ecker’s Brief at 3 (full capitalization omitted).

Ecker’s challenges are to evidentiary rulings by the trial court. 

Questions concerning the admissibility of evidence lie within the sound 

discretion of the trial court, and we will not reverse the court’s decision 

absent a clear abuse of discretion or misapplication of the law. Koller 

Concrete, Inc. v. Tube City IMS, LLC, 115 A.3d 312, 316 (Pa. Super. 

2015). “For a ruling on the admissibility of evidence to constitute reversible 

error, it must have been harmful or prejudicial to the complaining party.” 

Id. “An abuse of discretion occurs where the trial court ‘reaches a 

conclusion that overrides or misapplies the law, or where the judgment 

exercised is manifestly unreasonable, or is the result of partiality, prejudice, 

bias, or ill will.’” Brady v. Urbas, 111 A.3d 1155, 1161 (Pa. 2015) (citing 

Commonwealth v. Wright, 78 A.3d 1070, 1080 (2013)). “An abuse of 

discretion may not be found merely because an appellate court might have 

reached a different conclusion . . . .” Keystone Dedicated Logistics, LLC 

v. JGB Enterprises, Inc., 77 A.3d 1, 11 (Pa. Super. 2013).

The above issues relate to the trial court’s grant of CF’s motions in 

limine. CF filed two motions in limine on April 11, 2014. The first sought to 
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preclude evidence of a prior injury sustained by Amtrak Police Officer Robert 

McCleary.4 McCleary had injured his arm the day prior to Ecker’s injury, 

while participating in the same training program. The second motion sought 

to preclude evidence of post-accident changes to the training room. 

Following oral argument, the trial court granted the motions on the first day 

of trial, April 28, 2014.

A motion in limine is used before trial to obtain a ruling on the 

admissibility of evidence. Northeast Fence & Iron Works, Inc. v. 

Murphy Quigley Co., Inc., 933 A.2d 664 (Pa. Super. 2007). “It gives the 

trial judge the opportunity to weigh potentially prejudicial and harmful 

evidence before the trial occurs, thus preventing the evidence from ever 

reaching the jury.” Parr v. Ford Motor Co., 109 A.3d 682, 690 (Pa. Super. 

2014), appeal denied, ___ A.3d ___, 2015 WL 3500130 (Pa. filed May 27, 

2015). A trial court’s decision to grant a motion in limine “is subject to an 

evidentiary abuse of discretion standard of review.” Id.

Ecker maintains that evidence of McCleary’s prior injury was 

admissible, citing DiFrancesco v. Excam, Inc., 642 A.2d 529, 535 (Pa. 

Super. 1994), in support. DiFrancesco was a products liability case where 

an injured pistol buyer brought an action against the seller, distributor, and 

manufacturer of the pistol. This Court determined that evidence of other 

____________________________________________

4

 At oral argument on the motion in limine, the potential witness McCleary 

was referred to as McThiery. N.T., 4/29/14, at 6.
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accidental gun discharges, which were different models than the one that 

accidentally discharged and injured the buyer, were not so dissimilar as to 

render the evidence inadmissible. Id. at 535. Ecker also cites Lockley v. 

CSX Transp., Inc., 5 A.3d 383, 395 (Pa. Super. 2010), suggesting that the 

impact of the challenged evidence was tempered by the trial court’s 

instruction that evidence is admissible only if the prior accident is sufficiently 

similar to the incident involving the plaintiff and that it occurred under 

sufficiently similar circumstances. Ecker asserts that CF and Amtrak were 

put on notice that the environment was unsafe when the injury occurred to 

McCleary the day before Ecker was hurt. Ecker contends that whether to 

admit such evidence is a “fact-specific inquiry,” and he acknowledges that 

the burden is on him, the party introducing the evidence, to establish the 

accident’s similarity to the present incident. Blumer v. Ford Motor Co, 20 

A.3d 1222, 1228–1229 (Pa. Super. 2011).

Ecker proffers that the trial court failed to consider the following 

factually relevant factors:

1) Both accidents occurred at the 30th Street Station training 

room;

2) the same Amtrak instructors were present and providing 

instruction to the groups at the time of the accidents;

3) the same [CF] instructor was present and providing 

instruction to the group[s] at the time of the accidents;

4) the accident occurred during the training class;
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5) both injuries involved trauma to an upper extremity that 

struck a concrete floor;

6) both individuals received first aid from the instructors; and

7) both cases were investigated by the same Amtrak [C]laims 

Agent[,] Barbara Maine[, whom Ecker] intended to call as a 

witness.

Ecker’s Brief at 16. However, Ecker fails to support these factors by any 

reference to the record. Thus, they merely are bald allegations in his brief. 

“It is not this Court’s responsibility to comb through the record seeking the 

factual underpinnings of [an appellant’s] claim.” Irwin Union Nat. Bank & 

Trust Co. v. Famous, 4 A.3d 1099, 1103 (Pa. Super. 2010).

CF responds that Ecker failed to meet his burden of showing that the 

two incidents had substantial similarity. CF’s Brief at 9. CF mimics the 

holding of the trial court, explained below. Amtrak asserts that Ecker failed 

to prove a “fact-based inquiry,” maintaining that Ecker showed only that 

both injuries occurred in the same training class at the same location. 

Amtrak’s Brief at 6. Amtrack claims that Ecker failed to identify evidence of 

the circumstances surrounding the McCleary incident and avers that the fact 

that the two men suffered upper extremity injuries “is not indicative of 

similarity.” Id. at 7.

The trial court precluded evidence of McCleary’s injury, holding that 

Ecker failed to establish that the prior accident was substantially similar to 

the instant incident. The trial court stated that the only evidence Ecker 

submitted was the deposition of Amtrak Police Captain Lee O’Brien 
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(“O’Brien”). The trial court determined that while O’Brien stated that he 

received a report concerning injury to McCleary, he “had no other details and 

was not even certain when the other incident occurred.” Trial Court Opinion, 

3/13/15, at 5.

The record supports this assessment by the trial court. O’Brien, who 

controlled the Mid-Atlantic Amtrak Police Department, Patrol Division, was 

deposed on December 2, 2013. Lee O’Brien Deposition, 12/2/13; Ecker’s 

Answer to Motion in Limine, 4/21/14, at Plaintiff’s Exhibit 2. Ecker’s counsel 

asked O’Brien, who arranged the defense tactics course for Amtrak, if he 

“receive[d] notice of any individuals reporting that they had an injury during 

class,” and he replied, “Yes.” Id. at 44. “I had a report of an injury where 

an officer fell off the surface and injured his elbow, and then I received a 

report of an injury with Officer Ecker.” Id. Counsel asked if the elbow 

injury occurred before or after Ecker’s injury, and the witness answered, “I 

don’t recall, but I believe it was before.” Id. at 46. O’Brien testified that 

“[a]ccording to policy, there’s an investigation done when there’s an officer 

injury.” Id. at 45–46. He continued, “The only time that I would be notified 

is if the accident investigation or the incident investigation determined that it 

was part of the class that got him injured or it was an unsafe condition.” Id. 

at 46. Counsel inquired, “Were you notified of those things?” and O’Brien 

responded, “No.” Id.
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The trial court held that Ecker “failed to provide . . . the trial court 

with any definitive evidence that the other incident was similar to this 

one and even when the other incident occurred.” Trial Court Opinion, 

3/13/15, at 5 (emphasis added). We agree. We recently reiterated that it is 

the burden of the proponent of evidence, “to establish, to the court’s 

satisfaction, the similarity between other accidents and the subject accident 

before this evidence could have been admitted for any purpose.” Parr, 109 

A.3d at 698–699 (citing Hutchinson v. Penske Truck Leasing Co., 876 

A.2d 978 (Pa. Super. 2005)). During argument before the trial court, Ecker 

failed to show the required similarity between Ecker’s injury and McCleary’s 

injury. N.T., 4/29/14, at 6–8. The trial court did not abuse its discretion in 

concluding that Ecker failed to sustain his burden of establishing the 

requisite similarity.5

Ecker next assails the trial court’s decision to preclude Ecker’s 

questioning of CF’s expert witness in the field of police training, Anthony 

Grano (“Grano”), former CF instructor and owner, regarding Amtrak’s use of 

protective floor mats subsequent to Ecker’s injury. As noted supra, on April 

11, 2014, CF filed a motion in limine to preclude evidence of post-accident 

____________________________________________

5

 In addition, we note that Ecker admitted that he failed to include McCleary 

as a potential witness in his Pretrial Memorandum and Supplemental Pretrial 

Memorandum, in violation of the trial court’s April 23, 2013 Case 

Management Order advising that “[c]ounsel should expect witnesses not 

listed [in the pretrial memorandum] to be precluded from testifying at trial.” 

Order, 4/23/13.
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changes to the training room. Amtrak joined in this motion, and the trial 

court granted it on April 28, 2014. Ecker contends that he should have been 

permitted to discuss the fact that “several months” after his injury, “Amtrak 

placed padded mats in the [training] room for future training groups.” 

Ecker’s Brief at 18.

Ecker submits that the location of both accidents was the 8th floor of 

Amtrak’s 30th Street Station. He describes the location as an open storage 

space that was in disrepair and had wires hanging and broken chairs. The 

floor was made of concrete and “was not proper for individuals for doing 

tactics that required contact with the floor. The only protection on the floor 

was a rug which was identified to be like a blanket.” Ecker’s Brief at 18. 

Ecker posits that several months after his injury, Amtrak placed padded 

mats in the room for future training groups. Id. Ecker argues that Pa.R.E. 

407 permits evidence of subsequent remedial measures with a proper 

limiting instruction when the measures are offered for impeachment. He 

maintains that he desired to impeach Grano, who, Ecker submits, was 

accepted as a “13th hour expert without any pretrial disclosure.” Ecker’s 

Brief at 19.

In support of its decision granting CF’s and Amtrak’s motion in limine, 

the trial court cited Pa.R.E. 407, which provides as follows:

Rule 407. Subsequent Remedial Measures

When measures are taken by a party that would have made an 

earlier injury or harm less likely to occur, evidence of the 
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subsequent measures is not admissible against that party to 

prove:

 negligence;

 culpable conduct;

 a defect in a product or its design; or

 a need for a warning or instruction.

The trial court underscored, however, the Rule’s final provision that:

the court may admit this evidence for another purpose such as 

impeachment or—if disputed—proving ownership, control, or 

the feasibility of precautionary measures.

Pa.R.E. 407 (emphasis added). The trial court considered Pa.R.E. 403, in 

tandem, which states as follows:

Rule 403. Excluding Relevant Evidence for Prejudice, 

Confusion, Waste of Time, or Other Reasons

The court may exclude relevant evidence if its probative value is 

outweighed by a danger of one or more of the following: unfair 

prejudice, confusing the issues, misleading the jury, undue 

delay, wasting time, or needlessly presenting cumulative 

evidence.

Pa.R.E. 403.

Our Supreme Court has stated:

The admission of [evidence of subsequent remedial measures] 

cannot be defended on principle. It is not more likely to show 

that there was negligence before the accident than that the 

occurrence of the accident first suggested the use of methods or 

appliances not before thought of; it applies to conduct before an 

accident a standard of duty determined by after-acquired 

knowledge; it punishes a prudent and well-meaning defendant 

who guards against the recurrence of an accident he had no 

reason to anticipate, or who out of a considerate regard for the 
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safety of others exercises a higher degree of care than the law 

requires.

Duchess v. Langston Corp., 769 A.2d 1131, 1137 n.7 (Pa. 2001) (citation 

omitted); see also Columbia & Puget Sound RRCo. v. Hawthorne, 144 

U.S. 202, 207-208 (1892) (describing evidence of remedial measures as 

incompetent in that the taking of such precautions against the future is “not 

to be construed as an admission of responsibility for the past, has no 

legitimate tendency to prove that the defendant had been negligent before 

the accident happened, and is calculated to distract the minds of the jury 

from the real issue, and create a prejudice against the defendant.”); 

Hoffmaster v. County of Allegheny, 550 A.2d 1023, 1028 (Pa. Cmwlth. 

1988) (stating that “evidence of other accidents that occur subsequent to 

that upon which the litigation is brought is not admissible to show knowledge 

of a condition prior to an accident.”).

CF maintains that the trial court determined that Amtrak’s placement 

of thicker mats in the training room was irrelevant because CF was not the 

party who altered the flooring, in that CF’s contract had expired, and CF no 

longer was involved in training Amtrak employees. Amtrak points out that 

the Rule’s exclusion of evidence of subsequent remedial measures was 

subject to certain exceptions, one of which was feasibility. That exception, 

however, presupposes that feasibility is contested by the party against 

whom the evidence is offered. Duchess, 769 A.2d at 1134. Amtrak posits 

that was not the case here. “Neither Amtrak nor [CF] ever contended that 
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some other, thicker floor cover could not have been used during the 

training.” Amtrak’s Brief at 9. As Amtrak’s counsel argued to the trial court: 

“We’re not taking a position that this was not feasible. We’re taking a 

position we just didn’t do it.” N.T., 4/29/14, at 23. Amtrak avers that 

Grano made the same point when, during cross-examination by Ecker’s 

counsel, he acknowledged not only the feasibility of using mats during 

[Ecker’s] training, but also CF’s use of mats in other training classes:

Q. Now, in terms of the feasibility, meaning was it possible to 

have mats placed down on the floor at 30th Street Station on 

October 19, 2012?

A. . . . Is it possible?

Q. Yes.

A. Sure, it’s possible.

N.T., 5/1/14, at 11. As Amtrak explains, it did not challenge the feasibility 

of putting thicker padding on the training floor. Therefore, because the 

feasibility of precautionary measures was not in dispute, “the trial court 

properly precluded evidence of Amtrak’s replacement of the existing flooring 

with thicker mats after [Ecker’s] alleged injury.” CF’s Brief at 12.

Since Amtrak did not contest the feasibility of precautionary measures, 

the issue was not in dispute. Thus, pursuant to Pa.R.E. 407, the trial court 

properly precluded Ecker from introducing into evidence the fact that Amtrak 

replaced the existing floor covering with thicker mats after Ecker’s injury 

because such evidence would not constitute impeachment evidence. 
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Moreover, as found by the trial court, the subsequent remedial measures 

were not relevant to CF because CF did not alter the floor’s surface, and CF 

was not involved in training Amtrak employees at the time the floor was 

altered. Trial Court Opinion, 3/13/15, at 8. We conclude the trial court did 

not abuse its discretion in the evidentiary rulings identified by Ecker.

Appeal by CF at 2608 EDA 2014

On June 2, 2014, Amtrak filed a motion for counsel fees claiming that 

CF was contractually obligated to indemnify Amtrak for the costs of defense 

in light of the jury’s verdict absolving Amtrak of liability. CF opposed the 

motion, asserting the plain language of the contract. On August 5, 2014, 

the trial court granted Amtrak’s June 2, 2014 request for indemnification for 

costs of defense. CF appealed this order on September 3, 2014, at docket 

number 2608 EDA 2014. Both CF and the trial court complied with Pa.R.A.P. 

1925.

CF presents one question in its appeal, as follows:

Whether the trial court erred in granting Amtrak’s motion 

for assessment of defense fees and costs and declaring that [CF] 

shall pay the reasonable defense fees and costs incurred by 

Amtrak in the underlying matter where the jury specifically 

exonerated [CF] from liability in connection with the underlying 

matter and where the contract language provides for [CF’s] 

indemnification of Amtrak only for injuries arising out of, caused 

by or resulting from materials or services provided by [CF]?

CF’s Brief at 4.

CF maintains that Amtrak relied on the language of paragraph twentyfour of its contract with CF, which provides as follows:
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24. Indemnification.

A. Contractor agrees to defend, indemnify and hold harmless 

Amtrak, its officers, directors, employees, agents, successors, 

assigns and subsidiaries (collectively, “Indemnified Parties”), 

from and against any claims, losses, liabilities (including without 

limitation environmental liabilities), penalties, fines, causes of 

action, suits, costs and expenses incidental thereto, (including 

costs of defense and attorneys’ fees)(collectively “Claims”), 

which any of the Indemnified Parties may hereafter incur, be 

responsible for or pay as a result of breach of warranty, injury or 

death of any person, or damage to or loss (including loss of use) 

of any property, including of the parties thereto, arising out of or 

in any degree directly or indirectly caused by or resulting from 

materials or deliverables supplied by, or from activities of, or 

Services performed by Contractor, Contractor’s officers, 

employees, agents, subcontractors, or any other person acting 

for or with the permission of Contractor under the Contract, or 

as a result of Contractor’s failure to perform its obligations in 

compliance with the Contract Documents.

Defendant’s [Amtrak’s] Answer to Plaintiff’s Complaint with New Matter, 

Exhibit C, 3/12/13, Amtrak Services Contract, 1/6/10, ¶ 24.

CF posits that Amtrak relied on Mace v. Atlantic Ref. & Mktg. Corp., 

785 A.2d 491 (Pa. 2001), in asserting that it was entitled to defense costs 

because it had been absolved of liability in the underlying matter. CF avers 

that Amtrak ignored the fact that CF, likewise, was absolved from liability. 

CF contends that it argued to the trial court that “there must be some 

connection to CF’s activities or services in order to trigger its obligation to 

indemnify.” CF’s Brief at 11. CF suggests the trial court dismissed this fact 

and instead reasoned that the complaint and lawsuit were “a claim” that 

Ecker’s injury resulted from CF’s training class. Id. CF argues that the trial 

court’s interpretation of the contract language cannot be reconciled with 
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Lane v. Commonwealth of Pennsylvania, 954 A.2d 615 (Pa. Super. 

2008). The Lane Court examined the relevant contract language therein 

and concluded that indemnification was not required. CF attempts to draw 

similarities to Lane.

CF avers that it did not intend to assume liability for all injuries 

associated with its training program regardless of whether it caused those 

injuries. Rather, CF posits that it agreed to defend and indemnify Amtrak 

only for injuries “arising out of or in any degree directly or indirectly caused 

by or resulting from materials or deliverables supplied by, or from activities 

of or [s]ervices performed by” CF. CF’s Brief at 15–16. CF suggests that 

like the indemnitor in Lane, and in contrast to the indemnitor in Mace, the 

jury absolved CF from any liability. It asserts that the jury verdict is 

conclusive of the effect of this contractual language. Lane, 954 A.2d at 622.

Amtrak urges that the trial court properly discerned the intent of the 

parties from the contract itself. It argues that the words of the contract are 

clear and unambiguous. Here, the jury assigned no liability to Amtrak for 

the injuries and damages allegedly suffered by Ecker during the training. 

Amtrak posits that applying basic contract principles, it is clear that Amtrak 

is entitled to indemnification because Ecker’s claims, causes of action, and 

alleged injuries arose “out of or are to some degree directly or indirectly 

caused by or resulting from the services performed by” CF. Amtrak’s Brief 

at 4.
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Amtrak refers to the Perry-Ruzzi rule. This reference is to Perry v. 

Payne, 66 A. 553 (Pa. 1907), and Ruzzi v. Butler Petroleum Co., 588 

A.2d 1 (Pa. 1991), and the principle that any contractual provision requiring 

indemnification for one’s own negligence must be expressed in “unequivocal 

terms.” Mace, 785 A.2d at 494. Amtrak contends that if the jury had found 

Amtrak causally negligent for Ecker’s injuries, the provision would have had 

to pass muster under that rule. However, in the absence of such a finding, 

the “general principles of contract interpretation” rather than the PerryRuzzi rule are the proper standard for assessing CF’s obligations under the 

contract provision. Amtrak’s Brief at 5.

Amtrak looks to Mace for guidance in resolving this issue. Amtrak 

argues that CF’s indemnification obligation is not dependent on it being 

found liable to Ecker. Rather, it proffers that whether CF was absolved of 

liability is irrelevant “with respect to its contractual obligation to indemnify 

Amtrak.” Amtrak’s Brief at 10. It contends that CF’s reliance on Lane is 

misplaced, and that Mace controls.

In holding that its award of attorneys’ fees was proper, the trial court 

referred to the May 31, 2012 Amtrak Services Contract between CF and 

Amtrak. The trial court examined paragraph twenty-four quoted above and 

concluded that the indemnification provision applied. The trial court stated:

The Supreme Court of Pennsylvania has held that the jury 

verdict determines the standard that the trial court must use to 

interpret an indemnification provision. Ruzzi v. Butler Petroleum 

Co., 527 Pa. 1, 7, 588 A.2d 1, 4 (1991) (reaffirming Perry v. 
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Payne, 217 Pa. 252, 66 A. 553 (1907)). If the jury had found 

that Amtrak was negligent for [Ecker’s] injuries and damages, 

then the “Perry-Ruzzi” rule would apply. This rule provides that 

“If a party seeks to indemnify itself against its own negligence, 

the language seeking to do so in the indemnification provision 

must be clear and unequivocal.” Mace v. Atl. Ref. Mktg. Corp., 

567 Pa. 71, 76, 785 A.2d 491, 494 (2001).

In contrast, if the jury finds the indemnified party not 

negligent, then the trial court is to interpret an indemnification 

provision using “general principles of contract interpretation.” 

Mace, 567 Pa. at 79. In particular, the trial court is to “ascertain 

and give effect to the intent of the contracting parties.” Id. at 

80 citing Shovel Transfer & Storage, Inc. v. Pennsylvania Liquor 

Control Bd, 559 Pa. 56, 65, 739 A.2d 133, 137 (1999) (citations 

omitted). Further, “when the words of a contract are clear and 

unambiguous, the meaning of the contract is ascertained from 

the contents alone.”

* * *

The plain language of the contract states that [CF] “agrees 

to defend, indemnify and hold harmless Amtrak ... against any 

claims ... which Amtrak may hereafter incur, be responsible for, 

or pay as a result of injury or death of any person ... arising out 

of or in any degree directly or indirectly caused by or resulting 

from materials or deliverables supplied by or from activities of, 

or Services performed bv Contractor.

Parsing out the phrases in the indemnification provision 

reveals that it applies. The Complaint and resulting lawsuit are 

undisputedly a “claim.” The evidence at trial demonstrated that 

Mr. Ecker injured himself while performing a training exercise 

and went to the hospital for treatment. Therefore, the “claim” is 

“a result of injury” that “ar[ose] out of or any degree directly or 

indirectly caused by” the training classes that Appellee [CF] 

conducted.

Appellant [CF] argues that it is not obligated to indemnify 

Amtrak because the jury did not find that [CF] was negligent. 

The indemnification provision in the Service Contract is not so 

limited. The parties agreed in the Service Contract to a much 

broader indemnification provision, one in which [CF] must 

indemnify Amtrak for any claim in which an individual suffered 
J-A20018-15

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an injury in some manner connected to the services [CF] 

performed. This provision is not limited to [CF’s] negligence[,] 

and using general principles of general contract construction, the 

trial court could not interpret it in such a limited manner.

Trial Court Opinion, 3/13/15, at 9–10 (internal citations omitted)(emphases 

in original). We agree with the trial court’s analysis and conclude the trial 

court properly ordered CF to indemnify Amtrak for its expenses pursuant to 

the service contract between Amtrak and CF.

Judgment entered September 9, 2014, is affirmed. Order entered 

August 5, 2014, is affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/5/2015