Malanchuk, I. v. Sivchuk, I.

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2014 PA Super 277IHOR MALANCHUK, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
ILYA SIVCHUK, ETC. :
:
-------------------------------------------- :
:
IHOR MALANCHUK, :
:
Appellant :
:
v. :
: No. 1379 EDA 2012
ALEX TSIMURA, ETC. AND :
TATYANA TSIMURA, ETC. :
Appeal from the Order Entered March 26, 2012,
in the Court of Common Pleas of Philadelphia County
Civil Division at Nos. 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 FORD ELLIOTT, P.J.E.:FILED DECEMBER 17, 2014
Ihor Malanchuk (“Malanchuk”) appeals from the March 26, 2012 order
granting summary judgment to Alex Tsimura, both individually and trading
as Impressive Windows and Alexis Impressive Windows, and to
Tatyana Tsimura, both individually and trading as Impressive Windows and
Alexis Impressive Windows and Alexis Impressive Windows, Inc.
(collectively, “Tsimura”). The appeal in this consolidated case is from an
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order granting summary judgment in favor of Tsimura as to all counts pled
in one action, but only granting partial summary judgment for the defendant
in the other action, denying the motion as to Malanchuk’s negligence claim.
The trial court asserts that the instant appeal is taken improperly from an
interlocutory order, since summary judgment was not granted as to all
claims and parties. Malanchuk contends that the order is final and
appealable because despite the entry of a consolidation order, the two
actions did not involve identical parties and so retained their separate
identities. We granted en banc review to determine whether this court has
jurisdiction over an interlocutory appeal, taken without permission of the
trial court, in a consolidated case where a single plaintiff brings identical
allegations against separate defendants. For the following reasons, we find
that consolidation of the two separate actions does not affect the
interlocutory nature of the order in question, and the order is unappealable.
Therefore, we are compelled to quash the appeal.
The factual and procedural history of this case was aptly summarized
by the trial court as follows:
In 2007, Malanchuk began work as a carpenter
for [Ilya] Sivchuk’s [(“Sivchuk”)] construction
company, Four Brothers. Four Brothers paid
Malanchuk from invoices that he submitted after
each work assignment. Malanchuk worked on a
project-by-project basis. Four Brothers required
Malanchuk to provide his own tools. Sivchuk hired
Tsimura as a field manager for Four Brothers in
2007. Tsimura relayed work assignments to
Four Brothers’ contractors such as Malanchuk and
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supervised their work. Four Brothers paid Tsimura a
fixed annual salary.
Sivchuk enlisted Four Brothers’ contractors to
build an addition on his private dwelling at 920 Old
Dolington Road. Several days before May 2, 2008,
Sivchuk brought an unassembled scaffolding to that
dwelling. Four Brothers’ contractors used the
scaffolding at the work site before the accident and
left it partially assembled inside the home. On
May 2, 2008, Sivchuk faxed Malanchuk’s work
assignment to Tsimura, who instructed Malanchuk to
go with him to Sivchuk’s home. Tsimura was hired
to do the physical work on this project, and was not
acting as a supervisor at that time. Sivchuk was in
control of the work done on this project.
On May 2, 2008 Tsimura instructed Malanchuk
to prepare for the work and left for several hours.
Tsimura did not instruct Malanchuk to assemble the
scaffolding. Malanchuk found the partially
assembled scaffolding and completed the scaffolding
with parts found on the premises. There were no
guardrails with the scaffolding. Tsimura returned
and instructed Malanchuk to climb the scaffolding to
install trim which would be cut by Tsimura on the
ground. When Malanchuk reached the second tier, a
board moved and Malanchuk fell to the floor. He
sustained a triad fracture in his elbow.
Trial court opinion, 5/9/12 at 3-4 (footnotes omitted).
On May 27, 2008, Malanchuk filed a claim
under his own workers’ compensation coverage
against his insurer, the State Workers’ Insurance
Fund (the “SWIF”).[Footnote 1] On May 13, 2009,
the SWIF added defendant [] Sivchuk [] as a
defendant in the workers’ compensation action. On
June 2, 2010, the parties reached a $30,000
settlement in the workers’ compensation
proceedings. Although Sivchuk contributed to the
settlement, the settlement agreement contained a
specific denial of any employer-employee
relationship between Sivchuk and Malanchuk.
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[Footnote 1] Malanchuk was required to
maintain workers’ compensation in his
own name as a condition of his
employment with Four Brothers
Construction Company.
On May 21, 2009, while the workers’
compensation claim was pending, Malanchuk filed a
complaint in this Court against Sivchuk. The
complaint contained counts in negligence and
products liability. On April 30, 2010, Malanchuk filed
a separate action in which he asserted counts in
negligence and products liability against defendant []
Tsimura []. [Footnote 2] The actions were
consolidated by order dated June 6, 2011.
[Footnote 2] In his answer to Tsimura’s
Motion for Summary Judgment,
Malanchuk has withdrawn all products
liability claims.
On December 5, 2011 the Defendants moved
for summary judgment. Sivchuk claimed immunity
because he was Malanchuk’s statutory employer
pursuant to the Pennsylvania Workers’ Compensation
Act (the “Act”). Sivchuk further asserted that
summary judgment should have been granted as to
the products liability claim because he was not in the
business of supplying scaffolding. Tsimura claimed
that he did not supply the scaffolding and that there
was no proof of negligence on his part.
On March 22, 2012 the Court denied summary
judgment as to the negligence claims against
Defendant Sivchuk because he did not qualify as a
statutory employer. The Court granted summary
judgment against Sivchuk as to all product liability
claims because Sivchuk was not engaged in the
business of selling or supplying a product. The Court
granted Tsimura’s summary judgment motion as to
all claims. [Malanchuk] moved for reconsideration of
grant of summary judgment for Tsimura on April 5,
2012. [Malanchuk] claimed that summary judgment
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was not proper because Tsimura was the controlling
contractor. On May 1, 2012, the court denied this
motion.
Trial court opinion, 5/9/12 at 1-2.
Before we may reach the merits, we must first address Tsimura’s
argument that this appeal is not properly before us because “the question of
appealability implicates the jurisdiction of our court.” Jacksonian v.
Temple University Health System Foundation, 862 A.2d 1275, 1279
(Pa.Super. 2004), quoting In re Estate of Israel, 645 A.2d 1333, 1336
(Pa.Super. 1994). “Generally, only appeals from final orders are eligible for
appellate review.” Id. (citation omitted).
“Few legal principles are as well settled as that an appeal properly lies
only from a final order unless otherwise permitted by rule or statute.”
G.B. v. M.M.B., 670 A.2d 714, 717 (Pa.Super. 1996) (en banc) (citations
omitted). Whether an appellant has filed a timely appeal from a final order
implicates the jurisdiction of this court. Flowers v. Flowers, 612 A.2d
1064, 1065 (Pa.Super. 1992) (citations omitted). Pennsylvania Rule of
Appellate Procedure 341 defines a final order as, inter alia, any order that
disposes of all claims and all parties. Pa.R.A.P., Rule 341(b)(1),
42 Pa.C.S.A.
Rule 341 provides, in pertinent part:
(a) General rule. Except as prescribed in
subdivisions (d), and (e) of this rule, an appeal
may be taken as of right from any final order
of an administrative agency or lower court.
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(b) Definition of final order. A final order is any
order that:
(1) disposes of all claims and of all
parties; or
(2) is expressly defined as a final order
by statute; or
(3) is entered as a final order pursuant
to subdivision (c) of this rule.
(c) Determination of finality. When more than
one claim for relief is presented in an action,
whether as a claim, counterclaim, cross-claim,
or third-party claim or when multiple parties
are involved, the trial court or other
governmental unit may enter a final order as
to one or more but fewer than all of the claims
and parties only upon an express
determination that an immediate appeal would
facilitate resolution of the entire case. Such an
order becomes appealable when entered. In
the absence of such a determination and entry
of a final order, any order or other form of
decision that adjudicates fewer than all the
claims and parties shall not constitute a final
order.
Pa.R.A.P. 341(a), (b) & (c).
The following is a partial list of orders previously
interpreted by the courts as appealable as final
orders under Rule 341 that are no longer appealable
as of right unless the trial court or administrative
agency makes an express determination that an
immediate appeal would facilitate resolution of the
entire case and expressly enters a final order
pursuant to Rule 341(c):
(1) an order dismissing one of several
causes of action pleaded in a complaint
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but leaving pending other causes of
action;
(2) an order dismissing a complaint but
leaving pending a counterclaim;
(3) an order dismissing a counterclaim but
leaving pending the complaint which
initiated the action;
(4) an order dismissing an action as to less
than all plaintiffs or as to less than all
defendants but leaving pending the
action as to other plaintiffs and other
defendants; and
(5) an order granting judgment against one
defendant but leaving pending the
complaint against other defendants; and
(6) an order dismissing a complaint to join
an additional defendant or denying a
petition to join an additional defendant or
denying a petition for late joinder of an
additional defendant.
Pa.R.A.P. 341, Note.
As a general rule, an order dismissing some but not
all counts of a multi-count complaint is interlocutory
and not appealable. In adhering to this policy, the
courts have sought to avoid piecemeal litigation.
This court has held that an appeal will not lie from an
order granting partial summary judgment.
Bolmgren v. State Farm, 758 A.2d 689, 690-691 (Pa.Super. 2000)
(citations omitted). See also Estate of Considine v. Wachovia Bank,
966 A.2d 1148, 1153 (Pa.Super. 2009) (order granting summary judgment
to one of multiple defendants not subject to interlocutory appeal as of right).
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Here, the order appealed from is interlocutory as it did not dispose of
all claims and all parties. The negligence claim against Sivchuk remains
outstanding. Nor did Malanchuk file a petition seeking permission to appeal
pursuant to Pa.R.A.P. 312. Accordingly, we do not have jurisdiction to hear
this appeal.
As stated above, these actions were consolidated for trial. On
Sivchuk’s motion filed pursuant to Pa.R.C.P. 213(a),1 the court ordered
consolidation of the two lawsuits “for the purpose of discovery, arbitration
and if [the arbitration is] appealed, trial” under docket number 3249 May
Term 2009. (Order, 6/6/11 at 1.) Malanchuk argues that because the two
actions involved different defendants, each action retained its separate
character and required the entry of a separate judgment. See Roznowski
v. Pennsylvania National Mutual Casualty Insurance Co., 493 A.2d
775, 777-778 (Pa.Super. 1985) (“When separate actions are consolidated
for trial, each action retains its separate character. Each has its separate
docket entries, and each produces its own verdict and judgment.”), citing
Azinger v. Pennsylvania Railroad Co., 105 A. 87 (Pa. 1918). Malanchuk
1
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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maintains that this was not a “complete consolidation” whereby several
actions are combined into one and lose their separate identities, becoming a
single action in which a single judgment is rendered. Therefore, according
to Malanchuk, the summary judgment order had the effect of terminating
the lawsuit against Tsimura and rendering the March 26, 2012 order a final,
appealable order.
Malanchuk relies on Kincy v. Petro, 2 A.3d 490 (Pa. 2010), which we
find to be inapposite. In that case, Alice Kincy (“Kincy”) was driving her
vehicle in which her brother, Jerome Nixon (“Nixon”), was a passenger,
when it was struck by a vehicle driven by Anastasia Petro (“Anastasia”). Id.
at 491. The vehicle Anastasia was driving was owned by her mother,
Nancy Petro (“Petro”). Id. Kincy filed suit against Petro, alleging that Petro
was negligent in operating her vehicle, resulting in injuries to Kincy. Id.
Thereafter, Nixon and his wife filed a separate action naming both Anastasia
and Petro as defendants, alleging that Anastasia was negligent in her
operation of the vehicle, and that Petro negligently entrusted the vehicle to
her daughter. Id. Petro filed an answer and new matter to Kincy’s
complaint, admitting that she owned the vehicle that struck Kincy’s car, but
asserting that her daughter, Anastasia, was the driver at the time of the
accident. Id. Despite the fact it was undisputed that Anastasia, not Petro,
was driving the vehicle at the time of the accident, Kincy never sought leave
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to amend her complaint to include a claim against Anastasia, or to amend
the basis of her cause of action against Petro. Id.
Subsequently, the cases were consolidated “for all purposes” including
discovery, trial and appeal. Id. The Nixons settled their claims against
Anastasia and Petro, and their action was discontinued. Id. at 492. Prior to
trial, the trial court granted Anastasia and Petro’s motion in limine seeking
to preclude Kincy from presenting any evidence other than evidence in
support of her claim against Petro for negligent operation of the vehicle. Id.
The trial court rejected Kincy’s argument that as a result of the consolidation
order, her complaint merged with the Nixons’ complaint, and therefore she
had asserted a negligence claim against Anastasia. Id. The trial court
reasoned that pursuant to Azinger, separate actions can be merged into a
single action only if they involve, inter alia, the same parties. Id.
Subsequently, as it was undisputed that Petro was not the driver of the
vehicle that struck Kincy, the trial court granted nonsuit in favor of Anastasia
and Petro. Id.
Kincy appealed, and this court affirmed on the trial court opinion. Id.
On further appeal, our supreme court also affirmed, holding that the
pleadings filed in the separate cases did not automatically merge:
The court’s action was not such a consolidation of
the two proceedings as to merge the two actions into
one, but merely an order directing they be tried
together in view of the fact that the cases were of
the same nature, arose out of the same transaction,
and depended in each case upon substantially the
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same proofs, and was made in the interest of justice
and for the purpose of avoiding unnecessary delay
and expense.
Id. at 493.
The Kincy court found that while a trial court may order the actions
“consolidated” under Rule 213(a), this is distinct from the “complete
consolidation” implicated in Azinger, which predated the enactment of
Rule 213. Id. at 493-494. Complete consolidation cannot occur unless the
actions involve the same parties, subject matter, issues, and defenses:
Thus, where a party or trial court seeks complete
consolidation of two separate actions, we reaffirm
our holding in Azinger that such consolidation
cannot be achieved unless the actions involve the
same parties, subject matter, issues, and defenses.
As the Kincy and Nixon actions did not involve
identical parties, under Azinger, the actions could
not have been consolidated such that the actions lost
their separate identities and the pleadings merged.
Id. at 495.2
Malanchuk’s reliance on Kincy for the proposition that because the
actions were consolidated under Rule 213, the claims against each defendant
retained their separate identities, thereby rendering summary judgment for
Tsimura a final order, expands Kincy’s application far beyond its holding and
abrogates the definition of a final order. Key to understanding Kincy is that
by the time the cases were consolidated, the statute of limitations had
2
The Kincy court acknowledged that since the enactment of the compulsory
joinder rule, Pa.R.C.P. 1020(d), there would be few, if any, circumstances
where complete consolidation as contemplated by Azinger would apply.
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expired. The accident occurred on September 13, 2003. Id. at 491. Kincy
filed suit on August 3, 2005, and the cases were consolidated on March 7,
2006. Id. If the Kincy court had accepted her argument regarding merger,
it would have defeated the statute of limitations by effectively allowing her
to amend her complaint to include an entirely new cause of action.3 Such a
result would have created a loophole in the statute of limitations. See id. at
495 (“a conclusion that Rule 213(a) contemplates complete consolidation
between actions involving non-identical parties, subject matter, issues and
defenses, is simply untenable. In ascertaining the intention of the Supreme
Court in the promulgation of a rule, it is presumed that we did not intend a
result that is absurd, impossible of execution, or unreasonable.”). See also
id. at 498 (Saylor, J., concurring) (“A looser approach permitting automatic,
retroactive consolidation of counts to encompass unstated cross-claims is
untenable, since the potential for disorder, confusion, and surprise is simply
too great.”).
Had Malanchuk filed a single complaint naming both Sivchuk and
Tsimura as defendants, or sought to amend his original complaint to name a
new party, all allegations against all defendants would have been contained
in a single complaint under a single court term and number and there would
be no question that the order granting partial summary judgment was
3
Obviously, had the statute of limitations not expired, Kincy could have
amended her complaint and the issue would be moot.
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interlocutory and non-appealable. There is no reason to treat the March 26,
2012 order any differently simply because the claims against each defendant
were initially filed separately and then consolidated for trial pursuant to
Rule 213(a). It is unreasonable to find the otherwise interlocutory order is
final and appealable based solely on the manner in which the claims were
originally presented.
Rule 341 specifically provides that any order which adjudicates fewer
than all claims and parties is not a final order. Pa.R.A.P. 341(c). Malanchuk
could have petitioned the court for permission to appeal under
Pa.R.A.P. 312. The rule permits a trial court to specifically designate an
order of partial summary judgment as final, thereby allowing for immediate
appeal. Therefore, the rules already provide for the possibility of immediate
appellate review. Malanchuk chose not to pursue this course, and the trial
court did not determine its order granting partial summary judgment
necessitated immediate appellate review.
Kincy is distinguishable on its facts and never addressed the issue of
what constitutes an appealable order. Kincy involved the merger of
complaints filed by separate plaintiffs, after the statute of limitations had
expired. The matter sub judice involves a single plaintiff bringing identical
allegations against joint defendants. Consolidation of the claims against
Sivchuk and Tsimura does not affect the interlocutory nature of the order in
question, thus Kincy is inapplicable. For these reasons, we are compelled to
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quash the instant appeal as interlocutory, and we are without jurisdiction to
address Malanchuk’s substantive claims.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/17/2014
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