Malanchuk, I. v. Sivchuk, I.

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2016 PA Super 213IHOR MALANCHUK IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ILYA SIVCHUK T/A FOUR BROTHERS
CONSTRUCTION CO.,
IHOR MALANCHUK
Appellant
v.
ALEX TSIMURA, INDIVIDUALLY AND T/A
IMPRESSIVE WINDOWS AND ALEXIS
IMPRESSIVE WINDOWS AND TATYANA
TSIMURA, INDIVIDUALLY AND T/A
IMPRESSIVE WINDOWS AND ALEXIS
IMPRESSIVE WINDOWS AND ALEXIS
IMPRESSIVE WINDOWS, INC., No. 1379 EDA 2012
Appeal from the Order Entered March 26, 2012
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 3249 May Term 2009
4727 April Term, 2010
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, SHOGAN, ALLEN,
OTT, WECHT, STABILE AND JENKINS, JJ.
OPINION BY BOWES, J.: FILED SEPTEMBER 15, 2016
Ihor Malanchuk appeals from the March 26, 2012 order granting
summary judgment to Appellees, Alex Tsimura, both individually and trading
as Impressive Windows and Alexis Impressive Windows, and Tatyana
Tsimura, both individually and trading as Impressive Windows and Alexis
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Impressive Windows, and Alexis Impressive Windows, Inc. After careful
review, we reverse.
Appellant was an independent contractor who, beginning in 2007,
performed carpentry work for Ilya Sivchuk’s wholly-owned enterprise, Four
Brothers Construction Co. (“Four Brothers”), on various construction jobs on
a project-by-project basis. Also in 2007, Four Brothers hired Mr. Tsimura to
act as a supervisor and field manager of its construction projects. There was
no written contract between Four Brothers and Mr. Tsimura, who was
treated as an independent contractor and allegedly performed his work
through his wife’s businesses, Impressive Windows and Alexis Impressive
Windows. Four Brothers engaged in residential and commercial interior
construction and employed between ten and fifteen contractors to do
carpentry and trim work.
On May 2, 2008, Mr. Sivchuk had two of Four Brothers’ contractors,
Appellant and Mr. Tsimura, perform work at his own residence. Appellant
was severely injured after he fell from scaffolding located at Mr. Sivchuk’s
home. On May 27, 2008, Appellant filed a claim under a workers’
compensation policy that was issued by State Workers’ Insurance Fund and
that Appellant purchased for himself as a condition of working for Four
Brothers. That insurance company joined Four Brothers as a defendant in
the worker’s compensation action, which was settled for $30,000 on June 2,
2010. Four Brothers contributed to the settlement, and that accord
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contained a clause stating that it was agreed there was no employer-
employee relationship between Appellant, on the one hand, and Four
Brothers/Mr. Sivchuk, on the other hand.
On May 21, 2009, Appellant filed a personal injury action against Mr.
Sivchuk and Four Brothers (collectively “Sivchuk”) at docket number 3249
May Term 2009 in the Court of Common Pleas of Philadelphia County. On
April 30, 2010, Appellant filed a separate action against Alex Tsimura, both
individually and trading as Impressive Windows and Alexis Impressive
Windows, and Tatyana Tsimura, both individually and trading as Impressive
Windows and Alexis Impressive Windows, and Alexis Impressive Windows,
Inc. (collectively “Tsimura”) at docket number 4727 April Term 2010 in the
Court of Common Pleas of Philadelphia County. In each action, Appellant
raised causes of action sounding in both negligence and products liability,
which were premised upon the respective defendants’ action of supplying the
scaffolding from which Appellant fell. Upon Sivchuk’s motion filed pursuant
to Pa.R.C.P. 213(a),1 the court ordered consolidation of the two lawsuits “for
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1
Pa.R.C.P. 213(a) provides:
In actions pending in a county which involve a common question
of law or fact or which arise from the same transaction or
occurrence, the court on its own motion or on the motion of any
party may order a joint hearing or trial of any matter in issue in
the actions, may order the actions consolidated, and may make
orders that avoid unnecessary cost or delay.
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the purpose of discovery, arbitration and if [the arbitration is] appealed,
trial” under docket number 3249 May Term 2009. Order of Court, 6/6/11, at
1.
Discovery was completed and, on May 2, 2011, Sivchuk filed a motion
for summary judgment, while Tsimura followed suit on December 5, 2011.
Appellant filed responses to the respective motions and submitted exhibits in
support of his request that the motions be denied. Appellant withdrew his
products liability claim against Tsimura.
On March 26, 2012, the court granted summary judgment in favor of
Tsimura as to all counts pled in the action instituted against them, granted
partial summary judgment in favor of Sivchuk as to Appellant’s products
liability count, and denied Sivchuk’s motion for summary judgment with
respect to the negligence counts presented in the action against Sivchuk.
Appellant filed the present, timely appeal from the portion of the March 26,
2012 order that granted summary judgment in favor of Tsimura. The court
issued a Pa.R.A.P. 1925(a) opinion in which it considered this appeal to be
improperly filed from an interlocutory order, and in which it supported its
decision to grant summary judgment to Tsimura.
A panel of this Court concluded that we had jurisdiction over the
appeal under Kincy v. Petro, 2 A.3d 490 (Pa. 2010), wherein the Supreme
Court analyzed the effect of a trial court order that consolidated two
separate actions pursuant to Pa.R.C.P. 213(a). In Kincy, there were
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different parties and different theories of liability involved in each action but
both lawsuits pertained to the same traffic accident. One vehicle involved in
the collision contained a driver and passenger (“vehicle number one”), and
that car was struck by a vehicle (“vehicle number two”) occupied solely by
the driver and owned by that driver’s mother. The driver of vehicle number
one filed an action against the mother of the driver of vehicle number two.
Vehicle number one’s driver alleged therein that the mother was negligent in
her operation of her car. This complaint was never amended, even after
discovery clarified that the mother owned vehicle number two but was not
driving it when the accident occurred. Vehicle number one’s passenger and
his wife then filed another lawsuit against both the daughter/driver and
mother/owner of vehicle number two, and they raised averments of
negligent driving and negligent entrustment, respectively, against the
daughter/mother defendants.
The separately-filed actions by the passenger/wife and driver of
vehicle number one were consolidated under Pa.R.A.P. 213(a) “for all
purposes,” including appeal. Id. The consolidated matter proceeded to
arbitration, where the passenger in vehicle number two and his wife
prevailed, and then settled their case. The driver of vehicle number one lost
at arbitration and appealed to the court of common pleas. The case
proceeded to trial, where nonsuit was entered in favor of the owner of
vehicle number two since she was not driving her car when the collision
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transpired and the only allegations raised in the complaint in the action
involved negligent operation of vehicle number two. The Superior affirmed.
On appeal to the Supreme Court, vehicle number one’s driver argued
that, due to entry of the consolidation order as to all purposes, her
complaint merged with that of the passenger and his wife and that their
allegations of negligent driving against vehicle number two’s driver should
be considered as raised in the action by vehicle number one’s driver. Our
Supreme Court rejected that position. The Kincy Court concluded that a
consolidation order entered under rule 213(a) “does not result in the
complete consolidation of such actions, such that the pleadings are merged
and/or the actions shed their separate identities.” Id. at 491. It noted that
consolidation
is used in three different senses: First, where all except one of
the several actions are stayed until one is tried, in which case
the judgment in the one is conclusive as to the others; second,
where several actions are combined into one and lose their
separate identity and become a single action in which a single
judgment is rendered; and, third, where several actions are
ordered to be tried together but each retains its separate
character and requires the entry of a separate judgment.
Id. at 494. (citation omitted).
Our Supreme Court in Kincy concluded that the second option, which
is termed “complete consolidation,” cannot occur “unless the actions involve
the same parties, subject matter, issues, and defenses.” Id. It ruled that
the type of consolidation encompassed by Pa.R.C.P. 213(a) does not result
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in complete consolidation. Since the two actions in question “did not involve
identical parties, . . . the actions could not have been consolidated such that
the actions lost their separate identities and the pleadings merged.” Id. at
495.
The panel in the present case applied the reasoning of Kincy, and
concluded that, despite the consolidation order, the two actions involved
herein retained their separate identities because different defendants were
named in each lawsuit and complete consolidation was not accomplished by
the consolidation order issued in these matters. The panel reasoned that,
absent a complete consolidation, the two separate lawsuits did not merge,
and retained their separate identifies for purposes of appealability. Since
the summary judgment order at issue in this appeal had the effect of
terminating the lawsuit filed at 4727 April Term 2010 as to all defendants
therein, the panel held that it was a final, appealable order as to that
litigation. The panel assumed jurisdiction and reversed the grant of
summary judgment to Tsimura.
The present en banc panel granted reargument as to the panel
decision, and concluded that, since the Sivchuk and Tsimura actions were
consolidated, the present appeal was interlocutory. Malanchuk v. Sivchuk,
106 A.3d 789 (Pa.Super. 2014) (en banc). The en banc Court distinguished
Kincy since that matter concerned a plaintiff's effort to attain a merger of
pleadings to avoid an inability to litigate a cause of action due to the
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expiration of the applicable statute of limitations, and we likened this case to
one where a plaintiff commences a single action arising out of the same set
of factual circumstances against multiple defendants. In the prior en banc
decision, this Court found it untenable that an “otherwise interlocutory order
is final and appealable based solely on the manner in which the claims were
originally presented.” Id.The en banc decision was then reversed by our Supreme Court sub
nom in Malanchuk v. Tsimura, 137 A.3d 1283 (Pa. 2016). Therein, the
Court rejected the notion that Kincy was distinguishable due to the fact that
it pertained to a statute-of-limitations issue. It noted that Kincy was
premised upon application of the following language in Azinger v.
Pennsylvania R. Co., 105 A. 87, 88 (Pa. 1918) (emphasis added):
[W]here separate actions in favor of or against two or more
persons have arisen out of a single transaction, and the evidence
by which they are supported is largely the same, although the
rights and liabilities of parties may differ, it is within the
discretion of the trial judge to order all to be tried together,
though in every other respect the actions remain distinct
and require separate verdicts and judgments.
The Malanchuk v. Tsimura court articulated that, under this precept,
“consolidation effectuating a merger or fusion of actions impressing a single
identity upon them can occur only where there is a complete overlap among
parties and causes of action.” Malanchuk v. Tsimura, supra at 1286.
Absent those requirements, consolidation can be “only for purposes of
convenient pretrial and trial administration,” and Rule 213(a) does not trump
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Azinger’s holding. Id.; Kincy, supra (Rule 213(a) does not envision
complete consolidation between actions involving non-identical parties,
theories of liability, and defenses). Hence, “separate actions lacking” an
overlap of parties and causes of action “retain their separate identities and
require distinct judgments,” and “these principles pertain equally to
appealability determinations.” Malanchuk v. Tsimura, supra at 1288.
Our Supreme Court concluded that “since complete consolidation did not
occur,” in this matter, “the common pleas court's order awarding summary
judgment in favor of Appellee was a final one as to the Tsimura case” and
thus appealable. Id. at 1289. The court remanded to the Superior Court for
disposition of these remaining issues:2
[1]. Does evidence of record that defendant Tsimura was a
controlling contractor preclude summary judgment, and did the
trial court err in granting summary judgment to the Tsimura
defendants and failing to consider the evidence of record in a
light most favorable to Plaintiff as the non-moving party, basing
summary judgment on the testimony of the moving party and its
witnesses, and failing to leave credibility determinations to the
trier of fact?
[2]. Does evidence of record that defendant Tsimura
supplied the scaffolding within the meaning of the Restatement
(Second) of Torts § 392 preclude summary judgment, and did
the trial court err in granting summary judgment to the Tsimura
defendants and failing to consider the evidence of record in a
light most favorable to Plaintiff as the non-moving party, basing
summary judgment on the testimony of the moving party and its
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2
We have omitted the first question presented in this appeal, as it related to
our jurisdiction over the order in question.
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witnesses, and failing to leave credibility determinations to the
trier of fact?
[3]. Did defendant Tsimura as a co-independent contractor
engaged in a common enterprise owe Plaintiff a duty of care
precluding summary judgment?
Appellant’s brief at 3-4.
We first discuss the applicable standard of review.
“[S]ummary judgment is appropriate only in those cases where
the record clearly demonstrates that there is no genuine issue of
material fact and that the moving party is entitled to judgment
as a matter of law.” Atcovitz v. Gulph Mills Tennis Club, Inc.,
571 Pa. 580, 812 A.2d 1218, 1221 (2002); Pa.R.C.P. No.
1035.2(1). When considering a motion for summary judgment,
the trial court must take all facts of record and reasonable
inferences therefrom in a light most favorable to the non-moving
party. Toy v. Metropolitan Life Ins. Co., 593 Pa. 20, 928
A.2d 186, 195 (2007). In so doing, the trial court must resolve
all doubts as to the existence of a genuine issue of material fact
against the moving party, and, thus, may only grant summary
judgment “where the right to such judgment is clear and free
from all doubt.” Id.Truax v. Roulhac, 126 A.3d 991, 996 (Pa.Super. 2015) (en banc) (citation
omitted).
An order granting summary judgment will be reversed if the trial court
committed an error of law or abused its discretion. Id. The decision
relating to “whether there are no genuine issues as to any material fact
presents a question of law, and therefore, on that question our standard of
review is de novo. This means we need not defer to the determinations
made by the lower tribunals.” Id. at 997 (citation omitted). It is settled
that, “If there is evidence that would allow a fact-finder to render a verdict
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in favor of the non-moving party, then summary judgment should be
denied.” Id. (citation omitted).
Under the rule announced in Borough of Nanty–Glo v. American
Surety Co. of New York, 163 A. 523, 524 (Pa. 1932), which is invoked by
Appellant herein, a grant of summary judgment cannot be sustained when
the moving party relies solely upon oral testimony in the form of affidavits or
depositions to establish the absence of a genuine issue of material fact. See
also Bailets v. Pennsylvania Tpk. Comm'n, 123 A.3d 300, 304 (Pa.
2015) (“oral testimony alone, of the moving party or his witnesses, i.e.,
affidavits or depositions, even if uncontradicted, is generally insufficient to
establish the absence of a genuine issue of material fact”); PHH Mortgage
Corp. v. Powell, 100 A.3d 611, 620 (2014) (citation omitted) (“Testimonial
affidavits of the moving party or his witnesses, not documentary, even if
uncontradicted, will not afford sufficient basis for the entry of summary
judgment, since the credibility of the testimony is still a matter for the
jury.”). The Nanty-Glo rule rests on the premise: “However clear and
indisputable may be the proof when it depends on oral testimony, it is
nevertheless the province of the jury to decide, under instructions from the
court, as to the law applicable to the facts[.]” Nanty–Glo, supra at 524.
Appellant presented the following evidence, which we must credit
under the recited standard of review, to support his positions. Mr. Sivchuk’s
responsibilities for Four Brothers included 1) the negotiation of contracts for
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the installation of interior carpentry for residences and businesses; and
2) the payment of Four Brothers’ bills. Four Brothers solely utilized
independent contractors to perform all services that it contracted to perform.
Mr. Sivchuk maintained that he was the only employee of Four Brothers and
that any other person working for Four Brothers was an independent
contractor.3
In his deposition taken during the workers’ compensation proceeding,
Mr. Sivchuk reported that he did not supervise the work of his contractors.
Deposition of Ilya Sivchuk, 1/26/10, at 26.4 Mr. Sivchuk explained that
Mr. Tsimura, who was also an independent contractor of Four Brothers,
“owned a company, but I hired him like a supervisor.” Id. at 27-28.
Mr. Tsimura was paid biweekly by Four Brothers.
Once Mr. Sivchuk received a job on behalf of Four Brothers, he would
tell Mr. Tsimura the nature and location of the work. Mr. Tsimura “handled
the matter” and was in charge of assigning the business to the different
carpentry independent contractors who worked for Four Brothers. Id. at 38.
Mr. Sivchuk stated that, if there were no complications with a job, he would
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3
Given this testimony, we must accept Appellant’s position that all the
parties at issue herein were independent contractors and that Mr. Tsimura
was not an employee of Sivchuk on May 2, 2008. See Appellant’s brief at
31, n.14.
4
This deposition is included in the certified record as Exhibit F to Appellant’s
response to the summary judgment motion filed by Sivchuk.
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not visit the worksite and that he did so only when he received a complaint.
Id. at 42-43. During a deposition taken in the present proceeding, Mr.
Sivchuk confirmed that he told all of the carpenters performing work as
independent contractors for Four Brothers that Mr. Tsimura was their
supervisor and the field manager of any project. Deposition, Ilya Sivchuk,
9/9/11, at 125. Additionally, “they saw a sign on the door where it says
Mr. Tsimura, the manager[.]” Id.
Hrihoriy Shostak, another carpentry independent contractor who
worked for Four Brothers, confirmed that both Mr. Sivchuk and Mr. Tsimura
told him that Mr. Tsimura was his supervisor on Four Brothers’ projects.
Deposition, Hrihoriy Shostak, 9/28/11, at 13. Specifically, Mr. Shostak
reported that Mr. Tsimura was “a supervisor. We were supposed to listen to
what he says.” Id. Mr. Tsimura received Occupational Safety and Health
Administration (“OSHA”) scaffolding training every three months.
On the day of the accident, May 2, 2008, Mr. Sivchuk “called
[Mr. Tsimura]” and “told him, Alex, I want to install the moldings in my
ceiling.” Deposition, Ilya Sivchuk, 1/26/10, at 45. The job in question
involved the installation of molding on the two-story cathedral ceiling in the
entrance of Mr. Sivchuk’s house. Partially assembled scaffolding for that job
was already located in the home. It was owned by Four Brothers and had
been transported to Mr. Sivchuk’s home from another Four Brothers’ job.
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Four Brothers’ carpenters reported to work each morning at about
6:00 a.m. to a building located on Franklin Street. That location was where
they received their assignments for the day from Mr. Tsimura. On May 2,
2008, Appellant reported as usual to the Franklin Street building, met
Mr. Tsimura, and the two men traveled to Mr. Sivchuk’s home together.
When they arrived, Mr. Tsimura told Appellant that they were “going to
finish the ceiling.” Deposition, Ihor Malanchuk, 8/31/11, at 72. Mr. Tsimura
next instructed Appellant, who had no OSHA scaffolding training and who
never assembled a scaffold before that day, to erect the scaffolding. Id. at
75. At that time, the first tier of the scaffolding was partially built, but there
was no second tier, which was needed to reach the ceiling. Mr. Tsimura
then left the jobsite for about one hour.
Appellant retrieved his tools and finished assembling the scaffolding
located at Mr. Sivchuk’s residence. When Mr. Tsimura returned to that
location, he looked at the scaffolding and saw that it was completed. Mr.
Tsimura confirmed during his deposition that he visually inspected the
erected scaffolding after he returned and determined, “It was fine.”
Deposition Alex Tsimura, 4/1/10, at 92. There were no guardrails on the
scaffolding.
Mr. Tsimura then retrieved his own tools and began to cut boards on
the floor while Appellant climbed onto the second tier of the scaffolding.
Appellant was looking at the ceiling when one of three boards that comprised
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the floor of the second tier of scaffolding turned over on one side. Appellant
fell as a result of the shifting board. Appellant broke his elbow, underwent
multiple surgeries, and is permanently disabled as a result of the break. It
was conceded by all the parties that, under OSHA regulations, the
scaffolding was required to have a guardrail. Appellant presented the report
of an expert witness who opined that, at the time of the accident, the
scaffolding was in violation of OSHA regulations since it lacked a guardrail
and that the lack of the guardrail was the proximate cause of Appellant’s fall.
Appellant first argues that he presented sufficient evidence to create a
genuine issue of material fact that Tsimura breached the duty outlined in
Restatement (Second) of Torts § 384, which was applied in Leonard v.
Commonwealth, 771 A.2d 1238 (Pa. 2001).5 The Restatement (Second) of
Torts § 384 states:
One who on behalf of the possessor of land erects a
structure or creates any other condition on the land is subject to
the same liability, and enjoys the same freedom from liability,
as though he were the possessor of the land, for physical harm
caused to others upon and outside of the land by the dangerous
character of the structure or other condition while the work is in
his charge.
Comment d to that provision indicates,
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5
In Duffy v. Fischbach & Moore, Inc., 126 A.2d 413, 416 (Pa. 1956), our
Supreme Court ruled that a defendant was subject to liability under the
same section of the first Restatement of Torts.
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A possessor of land may put a number of persons severally
in charge of the particular portions of the work of erecting a
structure or creating any other condition upon the land. Again, a
general contractor employed to do the whole of the work may,
by the authority of his employer, sublet particular parts of the
work to subcontractors. In such a case, the rule stated in this
Section applies to subject the particular contractor or
subcontractor to liability for only such harm as is done by the
particular work entrusted to him.
Additionally, comment a to this provision outlines that § 384 “applies
to a person who on behalf of the possessor of land erects thereon a
structure or creates any other artificial condition, whether in so doing he is
acting as the possessor's servant or as an independent contractor, and
whether he does the work for reward or gratuitously.” Under the evidence
presented by Appellant, Tsimura is subject to liability pursuant to § 384
since Mr. Tsimura was the contractor placed in charge of overseeing the
construction of the scaffolding by the landowner and the scaffolding was a
structure with a dangerous character, which caused Appellant’s harm.
Herein, the trial court concluded that there was no evidence that
Mr. Tsimura was in charge of the job at Mr. Sivchuk’s residence. We
disagree. Mr. Sivchuk, in his deposition, repeatedly stated that Mr. Tsimura
was the sole field manager and supervisor over all jobs assigned to Four
Brothers’ carpentry contractors. Mr. Sivchuk reported that he did not visit
worksites absent customer complaints. Mr. Shostak confirmed that all the
carpentry contractors were told by both Mr. Sivchuk and Mr. Tsimura that
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Mr. Tsimura was the supervisor of the jobs that they were assigned through
Four Brothers.
Appellant also presented evidence that the job in question, even
though it was at Mr. Sivchuk’s residence, was assigned to him through Four
Brothers and that Mr. Tsimura was in control of the job as a supervisor.
Appellant was not contacted by Mr. Sivchuk. Rather, he went to the building
that he reported to each morning for his work assignments from Four
Brothers, and he received his work order from Mr. Tsimura, who traveled
with him to the residence and directed Appellant to assemble the scaffolding
and inspected it afterwards. Mr. Tsimura had OSHA scaffolding training
while Appellant did not. Hence, Appellant presented sufficient evidence that
there was a genuine issue of material fact as to whether Mr. Tsimura was in
control of the installation of molding on the ceiling and the construction of
the scaffolding so as to subject Tsimura to liability under Restatement § 384.
Appellant also contends that Tsimura had a duty to him under
Farabaugh v. Pennsylvania Turnpike Com'n, 911 A.2d 1264 (Pa. 2006),
wherein our Supreme Court applied Restatement (Second) of Torts § 324A,
liability to third person for negligent performance of undertaking. In
Farabaugh, the plaintiff’s decedent was killed during the course of his work
for the general contractor of a worksite while he was driving his truck across
a road used to haul materials. The plaintiff instituted an action against the
construction manager of the construction site and claimed that the road had
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not been properly maintained and that the safety violations were the
proximate cause of the incident that killed the decedent.
Our Supreme Court reversed the grant of summary judgment in favor
of the construction manager since the construction manager had assumed a
contractual obligation to inspect and otherwise monitor the jobsite. It
concluded that the construction manager owed the plaintiff’s decedent a
duty pursuant to § 324A. That portion of the Restatement provides:
One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for
the protection of a third person or his things, is subject to
liability to the third person for physical harm resulting from his
failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases
the risk of such harm, or
(b) he has undertaken to perform a duty owed by
the other to the third person, or
(c) the harm is suffered because of reliance of the
other or the third person upon the undertaking.
Restatement (Second) of Torts, § 324A. The Farabaugh Court stated that,
Generally, a party to a contract does not become liable for a
breach thereof to one who is not a party thereto. However, a
party to a contract by the very nature of his contractual
undertaking may place himself in such a position that the law
will impose upon him a duty to perform his contractual
undertaking in such manner that third persons—strangers to the
contract—will not be injured thereby. It is not the contract per se
which creates the duty; it is the law which imposes the duty
because of the nature of the undertaking in the contract.
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Id. at 1283; see also Casselbury v. American Food Service, 30 A.3d
510, 511 (Pa.Super. 2011) (where defendant agreed to provide food
services for owner of a business, defendant had contractual obligation to
perform that undertaking in safe manner and was subject to liability to
person who was purportedly injured due to negligent performance of that
responsibility); cf. Moranko v. Downs Racing LP, 118 A.3d 1111(Pa.Super. 2015) (en banc) (§ 324A was inapplicable when defendant
contracted directly with the plaintiff’s decedent to perform the services that
purportedly subjected defendant to liability and thus decedent was not a
third party in the scenario at issue). Notably, this duty can be imposed only
when the defendant has specifically undertaken a contractual responsibility
for the safety of the subject of the contract. Reeser v. NGK North
American, Inc., 14 A.3d 896 (Pa.Super. 2011) (where engineering firm’s
only contractual undertaking was to report to plant owner the levels of a
particulate emanating from plant, as opposed to engaging in actions
involving plant safety, a member of the public allegedly injured by high
levels of that particulate could not recover against engineering firm).
We concur with Appellant that he presented sufficient evidence to
create a genuine issue of material fact as to whether Mr. Tsimura had a duty
under § 324A, as follows. Mr. Tsimura was under a verbal contract with
Sivchuk to supervise the worksites on Four Brothers’ projects and was the
sole manager of the construction site on the day of the accident. He was
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paid to perform his managerial services by Four Brothers and received OSHA
scaffolding training every three months. Thus, Mr. Tsimura undertook, for
consideration, to render services for Sivchuk and should have recognized
that, as the job-site supervisor, he needed to protect Appellant, a third-party
stranger to the contract between Sivchuk and Mr. Tsimura who was working
under Mr. Tsimura’s direction. Appellant’s proof also was sufficient to create
a genuine issue of material issue of fact that Mr. Tsimura failed to exercise
reasonable care and created a risk of harm to Appellant during his
undertaking when Mr. Tsimura failed to ensure that the two-story scaffolding
had a guardrail to prevent Appellant from falling as he was working on the
two-story cathedral ceiling. Indeed, this case bears remarkable resemblance
to the facts examined in Farabaugh.
On appeal, Tsimura relies upon testimonial statements that
Mr. Sivchuk and Mr. Shostak made during their depositions that Mr. Sivchuk
was in control of the job at his home. However, Appellant presented
countervailing evidence. First, he established that this job was treated the
same as other undertakings assigned to him by Four Brothers, and
Mr. Tsimura, not Mr. Sivchuk, assigned him the task and was present at the
job site when the accident occurred. When we credit Appellant’s evidence,
as we must in this context, it refutes that Mr. Sivchuk was in control of this
particular job. Furthermore, it is established that under the Nanty-Glo rule,
summary judgment may not be granted based upon testimonial evidence
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presented by the moving party. A jury may choose not to credit the
testimony of any witness presented by Tsimura.
Appellant additionally premises liability against Tsimura upon
Restatement (Second) of Torts § 392, chattel dangerous for intended use.
Initially, we observe that, “This Court has relied upon Section 392 as setting
forth Pennsylvania law regarding negligent supply of a chattel.” Drum v.
Shaull Equipment and Supply Co., 787 A.2d 1050, 1063 (Pa.Super.
2001) (citing Fullard v. Urban Redevelopment Authority of Pittsburgh,
293 A.2d 118 (Pa.Super. 1972)); see also Lambert v. Pittsburgh Bridge
and Iron Works, 344 A.2d 810 (Pa. 1975) (citing § 392 with approval).
That section provides:
One who supplies to another, directly or through a third person,
a chattel to be used for the supplier's business purposes is
subject to liability to those for whose use the chattel is supplied,
or to those whom he should expect to be endangered by its
probable use, for physical harm caused by the use of the chattel
in the manner for which and by person for whose use the chattel
is supplied
(a) if the supplier fails to exercise reasonable care to
make the chattel safe for the use for which it is
supplied, or
(b) if he fails to exercise reasonable care to discover
its dangerous condition or character, and to inform
those whom he should expect to use it.
Restatement (Second) of Torts § 392.
Appellant avers that Tsimura supplied the scaffolding in question for
purposes of its business and failed to exercise reasonable care to make the
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chattel safe for the use for which it was supplied. He notes that Mr. Tsimura
took possession of the scaffolding by directing Appellant to construct it,
inspect it, and telling Appellant to use it. Appellant also notes that
Mr. Tsimura undertook this task while he was performing his business as
supervisor for Four Brothers’ projects.
Tsimura counters that it did not supply the scaffolding because it did
not own it. However, under § 392, a supplier of a chattel does not have to
be its owner. Comment c, entitled ownership of chattel immaterial, states,
“In order that the rule stated in this Section shall apply, it is not necessary
that the chattel be owned by the one who supplies it. It may be leased to
him or borrowed by him.” An actor is a supplier if he had either “possession
or control of it for the purpose of using it in connection with his business,
and that he has supplied it for such purpose.” Restatement (Second) of
Torts § 392, comment c.
It must be recalled that the relationship among the parties was that of
independent contractors. Tsimura’s business was to supervise worksite
operations for Four Brothers and the work of Four Brothers’ other
independent contractors, including Appellant. Appellant did not bring the
scaffolding to the job. Rather, Mr. Tsimura, as agent for his business,
exercised control over the scaffolding when instructing Appellant to build and
use it so that Appellant could perform his job. This direction of the use of
the chattel constituted borrowing of the item for Tsimura’s business
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purposes of supervising and ensuring completion of the job. Thus, there
was sufficient evidence to create a genuine issue of material fact as to
whether Tsimura took possession and control of that item in furtherance of
Tsimura’s business as supervisor of the job in question. The trial court
therefore improperly granted summary judgment as to Appellant’s c
Restatement § 392 claim.
Finally, Appellant maintains that Tsimura is subject to liability under
the common law negligence principle, as outlined in Duffy v. Peterson, 126
A.2d 413, 416 (Pa. 1956), that “[a]ll individual sub-contractors engaged in a
common enterprise owe to each other the duty of care required to business
visitors.” Our Supreme Court analyzed this duty in McKenzie v. Cost
Brothers, Inc., 409 A.2d 362 (Pa. 1979). Therein, an employee of one
subcontractor at a construction site was injured by a dangerous condition
created by another subcontractor’s employee, and no warning about the
danger was placed at the jobsite. A nonsuit was granted to the
subcontractor who employed the worker who created the hazard, and our
Supreme Court reversed. It reiterated that “a subcontractor on a
construction job owes to employees of other subcontractors, on the same
site, the care due a business visitor from a possessor of land.” Id. at 364.
See also Staub v. Toy Factory, Inc., 749 A.2d 522 (Pa.Super. 2000)
(applying McKenzie). Under Restatement § 343,
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A possessor of land is subject to liability for physical harm
caused to his invitees by a condition on the land if, but only if,
he
(a) knows or by the exercise of reasonable care
would discover the condition, and should realize that
it involves an unreasonable risk of harm to such
invitees, and
(b) should expect that they will not discover or
realize the danger, or will fail to protect themselves
against it, and
(c) fails to exercise reasonable care to protect them
against the danger.
Restatement (Second) of Torts § 343.
Appellant, a contractor of Four Brothers, presented sufficient evidence
to create a material fact that Tsimura, as another contractor on the same
job, created a dangerous condition on Mr. Sivchuk’s land that was the
proximate cause of Appellant’s injuries. Mr. Tsimura was in control of the
jobsite when the accident occurred. He directed Appellant to erect the
scaffolding, inspected it after that task was performed, and told Appellant to
use it. Due to his OSHA scaffolding training, Mr. Tsimura knew or should
have known that OSHA required the scaffolding to include a guardrail and
that the absence of that guardrail created the risk of a fall, which was
suffered by Appellant. Appellant did not have training and Mr. Tsimura
should have expected that appellant would not realize the danger he faced.
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In light of the foregoing, we conclude that Appellant adduced sufficient
evidence to subject Tsimura to liability and that summary judgment was
improperly granted in Tsimura’s favor.
Order reversed. Case remanded. Jurisdiction relinquished.
Judge Allen did not participate in the consideration or decision of this
case.
Former Judge, now Justice Wecht, did not participate in the
consideration or decision of this case
Judge Jenkins did not participate in the consideration or decision of
this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2016
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