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[U] Malanchuk v. Sivchuk

Superior Court of Pennsylvania

December 4, 2013

IHOR MALANCHUK, Appellant
v.
ILYA SIVCHUK T/A FOUR BROTHERS CONSTRUCTION CO., Appellee IHOR MALANCHUK, Appellant
v.
ALEX TSIMURA, INDIVIDUALLY AND T/A IMPRESSIVE WINDOWS AND ALEXIS IMPRESSIVE WINDOWS ANDTATYANA TSIMURA, INDIVIDUALLY AND T/A IMPRESSIVE WINDOWS AND ALEXIS IMPRESSIVE WINDOWS AND ALEXIS IMPRESSIVE WINDOWS, INC., Appellees

NON-PRECEDENTIAL DECISION

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: BOWES, OTT, and STRASSBURGER, [*] JJ.

MEMORANDUM

BOWES, J.

Ihor 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"). We reverse.

Appellant was an independent contractor who, beginning in 2007, began to perform carpentry work for Ilya Sivchuk's wholly-owned enterprise, Four Brothers Construction Co., a limited liability company ("Four Brothers") (collectively "Sivchuk") 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. Mr. Tsimura performed his work through his wife's business, Impressive Windows. Four Brothers was involved in residential and commercial interior construction and employed between ten and fifteen contractors to do carpentry and trim work.

On May 2, 2008, Appellant was severely injured after he fell from scaffolding located at a residence owned by Ilya Sivchuk on 920 Old Dolington Road, Newtown, Pennsylvania. On that day, Mr. Sivchuk had two Four Brothers' contractors, Appellant and Mr. Tsimura, perform work at his own residence.

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 Sivchuk. That insurance company added Sivchuk as a defendant in the worker's compensation action, which was settled for $30, 000 on June 2, 2010. Sivchuk contributed to the settlement, and that accord contained a clause stating that it was agreed there was no employer-employee relationship between Appellant and Sivchuk.

On May 21, 2009, Appellant filed a personal injury action against 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 Tsimura at docket number 4727 April Term 2010 in the Court of Common Pleas of Philadelphia County. In both actions, 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 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. 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. Since Sivchuk had supplied the scaffolding in question, 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 to Sivchuk as to Appellant's products liability count against Sivchuk, and denied Sivchuk's motion for summary judgment with respect to the negligence counts presented against them. Appellant filed a 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(b) opinion indicating that it considered this appeal as improperly filed from an interlocutory order as well as supporting its decision to grant summary judgment to Tsimura.

On appeal, Appellant raises these contentions:

1. Where summary judgment is granted as to all claims and all defendants in one of two consolidated actions in which the parties are not identical, is the judgment a final appealable order within the meaning of Pa. R.A.P. 341?
2. 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?
3. 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 witnesses, and failing to leave credibility determinations to the trier of fact?
4. 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.

Initially, we address the question of our jurisdiction to entertain this appeal. We are permitted to exercise jurisdiction over "(1) a final order or an order certified as a final order (Pa.R.A.P. 341) [see also 42 Pa.C.S.A. § 742 ("The Superior Court shall have exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas . . ."]; (2) an interlocutory order appealable as of right (Pa.R.A.P. 311); (3) an interlocutory order appealable by permission (Pa.R.A.P. 312, 1311, 42 Pa.C.S.A. § 702(b)); or (4) a collateral order (Pa.R.A.P. 313)." Commerce Bank/Harrisburg, N.A. v. Kessler, 46 A.3d 724, 728 (Pa.Super. 2012) (quoting Stahl v. Redcay, 897 A.2d 478, 485 (Pa.Super. 2006)). "A final order is defined as any order that: "(1) disposes of all claims and of all parties; (2) is explicitly defined as a final order by statute; or (3) is entered as a final order pursuant to [Pennsylvania Rule of Appellate Procedure 341(c)." McGrogan v. First Commonwealth Bank, 2013 WL 4519785, 11 (Pa.Super. 2013) (citation omitted).

Herein, the trial court postulated that the appeal was improper since summary judgment was not granted to all parties in that Sivchuk remains a defendant in the consolidated action. However, we conclude that our Supreme Court's decision in Kincy v. Petro, 2 A.3d 490 (Pa. 2010), controls and precludes such a finding. In Kincy, the Court analyzed the effect of a trial court order that consolidated two separate actions pursuant to Pa.R.C.P. 213(a). There were different parties and different theories of liability involved in each action. The Court concluded that "such an order 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.

Therein, two lawsuits pertaining to the same traffic accident were filed by the occupants of the one of the cars involved in the wreck. Those actions were consolidated under Pa.R.A.P. 213(a) "for all purposes, " including appeal. Id. 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 (the "plaintiff") filed an action against the mother of the driver of vehicle number two and that vehicle's owner. The plaintiff alleged therein that the mother was negligent in the operation of her car. This complaint was never amended, even after discovery clarified that the mother was the owner and not the driver of vehicle number two. Vehicle number one's passenger and his wife then filed a lawsuit against both the driver and owner of vehicle number two, and they raised averments of negligent driving and negligent entrustment, respectively, against the daughter/mother defendants. The two actions were consolidated.

The consolidated matter proceeded to arbitration, where the passenger in vehicle number two and his wife prevailed, and then settled their case. The plaintiff 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 transpired and the only allegations raised in the plaintiff's complaint involved negligent operation of vehicle number two.

On appeal to the Supreme Court, the plaintiff 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 his allegations of negligent driving against vehicle number two's driver should be considered as raised by the plaintiff. Our Supreme Court rejected that position. 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 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 in complete consolidation. It held that 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.

Thus, Kincy holds that each action retains its separate identity despite the entry of a consolidation order under Pa.R.C.P. 213. Applying the reasoning of Kincy herein, we must conclude that, despite the consolidation order, these two actions have retained their separate identities because different defendants are named in each lawsuit. Hence, the summary judgment order in question had the effect of terminating the lawsuit filed at 4727 April Term 2010 as to all defendants therein. It is thus a final, appealable order as to that litigation, and we have jurisdiction over this appeal.

We now examine whether the trial court properly granted summary judgment to Tsimura.

Our standard of review of an order granting summary judgment requires us to determine whether the trial court abused its discretion or committed an error of law, and our scope of review is plenary. We view the record in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered.

Clausi v. Stuck, 2013 WL 3963715, 4 (Pa.Super. 2013) (citations and quotation marks omitted); see Pa.R.C.P. 1035.2.[2] Additionally, it is well established in this Commonwealth that, 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 relied upon oral testimony in the form of affidavits or depositions to establish the absence of a genuine issue of material fact. Rosenberry v. Evans, 48 A.3d 1255, 1259 (Pa.Super. 2012). The Nanty-Glo rule rests on the premise that "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." Id. (quoting Nanty–Glo, supra at 524).

In this case, Appellant argues that Tsimura is subject to liability for his injuries on three grounds. First, Mr. Tsimura was the supervisor and on-site manager of the construction project in question and was liable for Appellant's injuries "pursuant to established law holding a controlling contractor liable for injuries to other contractors for failure to comply with OSHA regulations." Appellant's brief at 15. Second, Appellant argues that Tsimura was subject to liability under the Restatement (Second) of Torts § 392, which we examine in detail infra, in that he supplied the scaffolding for business purposes. Finally, Appellant maintains that Tsimura was subject to "the common law duty of care independent contractors engaged in a common enterprise owe to each other." Appellant's brief at 16.

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 the installation of interior carpentry for residences and businesses; and 2) the payment of Four Brothers' bills. Four Brothers solely used independent contractors to perform the services in question. Mr. Sivchuk also adamantly 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.

Once Mr. Sivchuk received a job, 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 contractors who worked for Four Brothers. Id. at 38. Mr. Sivchuk stated that, if there were no complications with a job, he would 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 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 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. Mr. Shostak specifically stated 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 on 920 Old Dolington Road. Partially assembled scaffolding for that job was already located in the home. It was owned by Four Brothers and transported to Mr. Sivchuk's home from another Four Brothers' job.

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 920 Old Dolington Road together. When they arrived, Mr. Tsimura told Appellant that they were "going to finish the ceiling." Deposition, Ihor Malnchuk, 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, who was left alone at the jobsite, retrieved his tools and finished assembling the scaffolding located at Mr. Sivchuk's residence. When Mr. Tsimura returned to 920 Old Dolington Road, he looked at the scaffolding and saw that it was complete. 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 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, needed 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 material fact as to Tsimura's breach of the duty outlined in Restatement (Second) of Torts § 384 and Leonard v. Commonwealth, 771 A.2d 1238 (Pa. 2001). 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,

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 indicates 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." Pursuant to § 384 and the decision in Leonard, a person is subject to liability for OSHA violations at a worksite if the person had control over the aspect of a job involving the OSHA violation.

Appellant also relies upon Farabaugh v. Pennsylvania Turnpike Com'n, 911 A.2d 1264 (Pa. 2006), where our Supreme Court applied the duty outlined in 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 across a road used to haul materials and his truck was involved in an accident. The plaintiff instituted an action against the construction manager of the construction site and claimed that the road had not been safely 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.

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 negligence performance of that responsibility). 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 engage in actions involving plant safety, a member of the public allegedly injured by high levels of that particulate could not recover against engineering firm).

Herein, the trial court concluded that there was no evidence that Mr. Tsimura had control 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 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. Mr. Tsimura gave him the assignment on the day in question and traveled with him to the residence. Mr. Tsimura also 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 an issue of material fact as to whether Mr. Tsimura was in control of the installation of molding on the ceiling so as to subject him to liability under Restatement § 384.

He also presented sufficient evidence to create an issue of material fact as to whether Mr. Tsimura was directly responsible for a condition on the land, i.e. the hazardous scaffolding. 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 received OSHA scaffolding training every three months.

Mr. Tsimura knew or should have known that the lack of a guardrail on the two-story scaffolding created a risk that Appellant would fall from that structure. Hence, he owed Appellant a duty under Restatement § 324A.

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 presented by the moving party. A jury may choose not to credit the testimony of any witness presented by Tsimura.

Second, Appellant premises liability against Tsimura based 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 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 of 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 use it to perform his job. This direction of the use of the chattel constituted borrowing of the item for Tsimura's business purposes of supervising the job. Thus, there was sufficient evidence to create a 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 cause of action under Restatement § 392.

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, reiterating 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 land." Id. at 364. See also Staub v. Toy Factory, Inc., 749 A.2d 522 (Pa.Super. 2000) (applying McKenzie).

The McKenzie Court relied upon Restatement (Second) of Torts, § 384, liability of persons creating artificial conditions on land on behalf of possessor for physical harm caused while work remains in their charge, which provides:

One who on behalf of the possessor 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.
Pursuant to Restatement (Second) of Torts, § 343,
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.

Appellant 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, as Tsimura's agent, 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. He created a hazardous condition on Mr. Sivchuk's land by telling Appellant, who had no OSHA scaffolding training, to build and use the structure when there were no guardrails on it.

Application to Quash Appeal is denied. Order reversed. Case remanded. Jurisdiction relinquished.

DISSENTING MEMORANDUM

OTT, J.

Because I agree with the trial court that this is an interlocutory appeal taken without permission of the court and which, therefore, should be quashed, I am constrained to dissent from the learned majority.

The majority correctly notes that our Court may exercise jurisdiction over a final order or order certified as a final order. Additionally, we have jurisdiction over interlocutory orders appealable as of right, interlocutory orders appealable by permission, or collateral orders. I do not believe that any of these apply to the instant order.

The order at issue in this appeal granted partial summary judgment, dismissing all claims against defendant Tsimura, but allowing the claim of negligence against Ilya Sivchuk to proceed. "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." Bombar v. West American Ins. Co., 932 A.2d 78, 85 (Pa.Super. 2007) (citation omitted). See also Pa.R.C.P. 341 (defining final orders).

However, the majority relies on Kincy v. Petro, 2 A.3d 490 (Pa. 2010) to support its position that because the current action was the product of consolidated claims, the claims against each defendant retained their separate identities, thereby rendering summary judgment against Tsimura a final order. I believe this unnecessarily broadens the application of Kincy, and unintentionally abrogates the definition of a final order. See Pa.R.A.P 341.

Kincy is distinguishable from this matter because the factual basis of Kincy is dissimilar. In Kincy, one motor vehicle accident resulted in two plaintiffs, [1] each filing a separate action, each with separate allegations. One of the plaintiffs, Kincy, misidentified the owner of the tortfeasor's car, Nancy Petro (Petro), as the driver.[2] Therefore, Kincy's claim regarding the negligent operation of the vehicle was fatally flawed.

Because of the similarity of the issues and actions, the matters were consolidated. Claims involving the second plaintiff settled, leaving Kincy's negligence claims against the misidentified owner, Petro. Petro sought an order precluding Kincy from introducing any evidence other than that supporting the allegation in the complaint, that Petro had negligently operated the vehicle. The order was granted, and because Nancy Petro was not driving, no such evidence could be presented. Thereafter, the trial court granted Petro's motion for non-suit. Kincy claimed because the cases had been consolidated, Nixon's claims, which had correctly identified the driver, were merged into her complaint. A panel of our Court disagreed, determining that under the circumstances presented, each original case retained its identity and the cases were effectively consolidated simply for the convenience of trial. Therefore, the allegations found in one complaint did not merge into the allegations of the other.

Of particular note in Kincy is that at the time the trial court granted the nonsuit, the statute of limitations had expired. In fact, the statute of limitations had expired by the time consolidation was ordered. Therefore, if Kincy's argument had been accepted, it would have defeated the statute of limitations by effectively allowing Kincy to untimely amend her complaint adding a new cause of action. That result would have created a loophole in the statute of limitations.[3]

Moreover, Kincy never addressed the issue of what constitutes an appealable order, which is the threshold issue herein. Kincy involves the merger of complaints filed by separate plaintiffs, after the statute of limitations had expired. On the other hand, the case sub judice involves a single plaintiff bringing allegations against joint defendants.

Here, Malanchuk was injured while working on Sivchuk's residence. In May 2009, he filed suit against Sivchuk alleging negligence and products liability. Tsimura was also at the job site and was possibly in control of the jobsite. Malanchuk filed suit against Tsimura in April 2010, also alleging negligence and products liability. The language of the claims against each defendant was identical. In June 2011, the two cases were consolidated under the May 2009 court term and number. The result of consolidation essentially created a four-count complaint, one count of negligence against each defendant, and one count of products liability against each defendant.[4]

There are multiple methods of bringing an action against multiple defendants. A plaintiff can file a single complaint naming all defendants and raising all claims against each defendant. However, through either discovery or inadvertence, all defendants are not always known or named in the first complaint. When this occurs, a plaintiff can seek to amend the complaint, naming a new party and detailing the allegations against that party or file a motion to join a party defendant. See Meadows v. Enoch, 993 A.2d 912 (Pa.Super. 2010); Pa.R.C.P. 2232 (c). In each of these cases, all allegations against all defendants would be contained in a single complaint, under a single court term and number, just as if the claims had been originally filed.

If Malanchuk had brought his claims against Tsimura and Sivchuk using any of these methods, there would be no question that the order granting partial summary judgment was interlocutory and non-appealable.

However, Malanchuk utilized a fourth method of adding a party defendant; he filed a separate action and consolidated the two cases. See Pa.R.C.P. 213. All four methods are acceptable under the rules of civil procedure. I see no reason to treat the instant order any differently simply because the claims against each defendant were initially filed separately and then consolidated into one action.

Pennsylvania Rule of Appellate Procedure 341 is designed to provide order and certainty to the determination of what orders constitute final orders, thereby limiting piecemeal determinations and the consequent protraction of litigation. See Hionis v. Concord Twp., 973 A.2d 1030 (Pa. Cmwlth. 2009).[5] Further,

[t]he final order rule serves to maintain the appropriate relationship between the district and appellate courts ... by ensuring that [trial judges'] every determination is not subject to the immediate review of an appellate tribunal.... The consolidation of all contested rulings into a single appeal provides the circuit courts with an opportunity, furthermore, to consider a trial judge's actions in light of the entire proceedings below, thereby enhancing the likelihood of sound appellate review.

Rae v. Pennsylvania Funeral Directors Ass'n., 977 A.2d 1121, 1125 (Pa. 2009) (citation omitted).

Rule 341 clearly exempts orders granting partial summary judgment from finality. See Pa.R.A.P. 341(b)(1), (c).[6] The rule permits a trial court to specifically designate an order of partial summary judgment as final, thereby allowing for immediate appeal. The trial court in this matter did not determine its order granting partial summary judgment required immediate appellate review. Because the rules provide for the possibility of immediate appellate review, and there has been no demonstration of the need to avoid Rule 341, I see no reason to overrule the trial court's decision solely on the basis of the manner the claims were originally presented. Therefore, I do not believe Kincy is applicable to the instant matter.

Having determined that the consolidation of claims against Sivchuk and Tsimura in this matter does not affect the interlocutory nature of the order in question, I would quash the appeal.

In light of the foregoing, I am constrained to dissent.[7]

Judgment Entered.


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