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Jose Luis Urena Bordejo v. Exclusive Builders

August 22, 2011


The opinion of the court was delivered by: Judge Munley


Before the court are the defendants' respective motions for summary judgment. The motions are ripe for disposition.


Plaintiff Jose Luis Urena Berdejo("Berdejo") is an unauthorized illegal alien who worked for a company named, alternatively, Ideal Systems, Inc., Ideal Systems Constructions, Inc., or Ideal Systems USA, Inc. ("Ideal"). (Def.'s Statement of Material Facts ("SMF") ¶¶ 2, 9 (Doc. 62)). Berdejo was working on a home construction project at 208 Quail Ridge in Stroudsburg, Pennsylvania ("the Quail Ridge project"). (Id. ¶ 1). Defendant Exclusive Builders, Inc. ("Exclusive") was the general contractor for the home construction but did not do any actual construction on the project. (Id. ¶ 4). Berdejo's employer, Ideal, was Exclusive's subcontractor for roofing and siding at the project.(Id. ¶ 8). Defendants Charles and Melita Lakhan were the mother and son owners of the home under construction. (Macaluso Dep. (Doc. 60-4 at 51-52); Aff. of Charles Lakhan (Doc. 88); Aff. of Melita Lakhan (Doc. 89)).

On November 9, 2008, Berdejo fell from the roof while working on the Quail Ridge project. (SMF ¶ 1). Berdejo was about eleven feet from the ground when he fell. (Berdejo Dep. (Doc. 60-2 at 38)). Another employee grabbed Berdejo but had to let go as Berdejo was hanging off the roof. (Id. at 44). Berdejo landed on his back and head, leaving him unconscious. (Id. at 52, 74). Berdejo's boss, Julio Puma the owner of Ideal was called and came to the job site about one half hour later, but refused to take Berdejo to the hospital. (Id. at 56-57). Berdejo believed that Julio Puma refused to take him to the hospital because Puma was afraid to answer questions. (Id.) Nine hours later, he was taken to the hospital. (Id. at 59-60).

Berdejo wore a hard plastic brace for two months, twenty-four hours per day to help discs in his back reposition themselves. (60-2 at 67-68). After the hard plastic brace, Berdejo wore an elastic girdle for another four months. (Id. at 68-69).

As opposed to previous employers for whom Berdejo worked, Ideal did not provide safety ropes or harnesses to its roofers. (Doc. 60-2 at 24-27). Berdejo at first refused to work on the roof without safety equipment but eventually agreed. (60-2 at 31). Berdejo had no contact with anyone from Exclusive at the job site. (60-2 at 36).

Exclusive is a general contractor who subcontracted all of its house building jobs. (Macaluso Dep. (Doc. 60-4 at 21)). The corporation was formed and run by Angela Lillian Macaluso ("Macaluso") and Adrian LoDico ("LoDico"), sister and brother. (Id. at 30). There were no other employees. (Id. at 74). Exclusive did oversee the projects, however. (Id. at 21). Macaluso and LoDico visited the Quail Ridge job site on numerous occasions-- more than twenty times. (Id. at 18, 28, 67-68). Macaluso stated that she was not concerned about safety at the project during her visits and she knew of no safety issues. (Id. at 67-68). Generally, Macaluso would visit the site when workers were not present. (Id.) Exclusive did not require hard hats or safety equipment-- this was up to the subcontractor according to Macaluso. (Id. at 68-69). According to Macaluso, the subcontractor was responsible for the safety of its employees. (Id. at 71). Exclusive and Ideal had nothing in writing as to safety protocol or any specific delegation of safety oversight. (Id. at 70, 72). Exclusive did not provide any training to anyone regarding falls. (Id. at 78). Exclusive did not make efforts to determine whether their contractors were safe. (Id. at 79). Exclusive had no policy regarding safety. (Id. at 81). Macaluso was not familiar with particular Occupational Safety and Health Administration ("OSHA") requirements or aware of the existence of OSHA. (Id. at 82).

Macaluso would generally work in the office while LoDico would oversee job sites. (Macaluso Dep. (Doc. 60-4 at 30)). In relation to safety, Macaluso or LoDico would visit the project and remove debris so that the job site was clear. (Id. at 75-76, 80). LoDico would visit job sites most days to oversee and assist subcontractors. (Id. at 29-30). Generally, Macaluso and LoDico would inspect the work that Ideal performed to make sure it was done properly and so that Ideal could be paid. (Id. at 61-62).

Berdejo's expert, Vincent Gallagher states that: "[Exclusive] permitted Ideal Systems' workers to work in very dangerous conditions in violation of OSHA standards. It is my opinion that they simply did nothing to comply with the standard of care as expressed in Section VIII of my report. It is my opinion that the above failures were a cause of Jose Luis Urena Berdejo's injuries." (Gallagher Report at 23 (Doc. 63 at 40)).

Plaintiff Jose Luis Urena Berdejo filed this action on March 18, 2009 against Exclusive, Ideal Systems, Inc., Ideal Systems Constructions, Inc., Charles Lakhan, and Melita Lakhan raising claims of negligence. (Compl. (Doc. 1)). On August 3, 2009, Exclusive answered the complaint and asserted cross-claims against the existing defendants and Defendant Ideal Systems USA, Inc. (Doc. 15). On September 11, 2009, the plaintiff was granted leave to file an amended complaint joining Defendant Ideal Systems USA, Inc. (Doc. 19).

On February 2, 2010 the court granted the plaintiff's motions for default judgment against Defendants Charles Lakhan and Melita Lakhan (Doc. 36) and against Defendants Ideal Systems, Inc., Ideal Systems Constructions, Inc., and Ideal Systems USA, Inc. (Doc. 37). (Doc. 42). Subsequently the plaintiff and the remaining defendant, Exclusive, conducted discovery and mediation. On August 19, 2010, Exclusive filed a motion for summary judgment. (Doc. 60).

On September 20, 2010 Defendants Charles and Melita Lakhan filed a motion to strike default judgment for improper service. (Doc. 68).*fn1 On March 8, 2011 the court granted the motion to strike default judgment and reinstated Defendants Charles and Melita Lakhan. (Doc. 76). These reinstated defendants moved for summary judgment on April 15, 2011. (Doc. 85). The plaintiff objected to the Lakhans' motion for summary judgment because he had not had an opportunity to depose these defendants since their reinstatement. On June 17, 2011 these defendants were deposed. (Doc. 97). On August 9, 2011 the plaintiff filed a supplemental reply to the Lakhans' motion for summary judgment, bringing the case to its present posture. (Id.)


Because there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75,000.00, the court has jurisdiction over the case. See 28 U.S.C. § 1332 ("district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of different States[.]")


The granting of summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Knabe v. Boury, 114 F.3d 407, 410 n.4 (3d Cir. 1997) (citing FED. R. CIV. P. 56(c)). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

When considering a motion for summary judgment, the court must examine the facts in the light most favorable to the party opposing the motion. Int'l Raw Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence is such that a reasonable jury could not return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it might affect the outcome of the suit under the governing law. Id. Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies its burden, the burden shifts to the non-moving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324.


The remaining defendants seek summary judgment on all of Berdejo's claims. We will address the Lakhans' motion and ...

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