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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NON-PRECEDENTIAL DECISION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 ...

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