GARY J. SHAMIS AND PATRICIA SHAMIS, H/W, Appellants
JAMES MOON C/O GEPPERT BROTHERS, INC., AND GEPPERT BROTHERS, INC. AND TISHMAN CONSTRUCTION AND MACK K. TRUCKS, INC., Appellees
Appeal from the Order Entered September 19, 2012 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 3413 Feb Term, 2010
BEFORE: PANELLA, OLSON AND STRASSBURGER, [*] JJ.
Appellants, Gary J. Shamis and Patricia Shamis, appeal from the order entered on September 19, 2012, granting summary judgment to Geppert Brothers, ("Geppert Brothers") and dismissing Appellants' claims against both Geppert Brothers and James Moon c/o Geppert Brothers. The September 19, 2012 order finalized the trial court's prior, September 6, 2012 orders, wherein the trial court granted summary judgment to Tishman Construction and Mack K. Trucks, Inc. We vacate and remand.
On February 25, 2010, Appellants filed a complaint against the named Appellees, sounding in negligence. As Appellants averred, on March 4, 2008, Mr. Shamis was employed by M.L. Jones Construction, Inc. (hereinafter "M.L. Jones") and was working, as a laborer, at the site of the Pennsylvania Convention Center expansion in Philadelphia (hereinafter "the Project"). Appellants' Complaint, 2/25/10, at ¶¶ 8 and 10. At the time, the Project was in its demolition phase – M.L. Jones was the demolition subcontractor on the Project and Geppert Brothers was the demolition contractor on the Project. Id. at ¶¶ 8-10. According to Appellants, while Mr. Shamis was working on March 4, 2008, Mr. Shamis was run over by a dump truck that was being operated by Geppert Brothers' employee James Moon. Id. at ¶ 13-14. The accident caused Mr. Shamis severe and permanent injuries. Id. at ¶¶ 18-23.
As is relevant to the case at bar, Appellants claimed that Mr. Moon and Geppert Brothers were negligent in causing Mr. Shamis' injuries.,  Mr. Moon and Geppert Brothers answered the complaint, denied liability, and discovery commenced.
At the close of discovery, Geppert Brothers filed a motion for summary judgment and claimed that – in accordance with the exclusivity provisions of the Workers' Compensation Act – it was immune from civil liability, as it was Mr. Shamis' "borrowing employer" and Mr. Shamis was its "borrowed employee." Geppert Brothers' Motion for Summary Judgment, 7/2/12, at 1-2. Stated another way, Geppert Brothers claimed that it was immune from civil liability because M.L. Jones had loaned Mr. Shamis to Geppert Brothers and Mr. Shamis "passed under [Geppert Brothers'] right of control with regard not only to the work to be done but also to the manner of performing it." Mature v. Angelo, 97 A.2d 59, 61 (Pa. 1953) (emphasis omitted).
In support of its summary judgment motion, Geppert Brothers essentially relied exclusively upon the oral deposition testimony of its own fact witnesses. First, Geppert Brothers cited to the oral deposition testimony of Gary Patrick to "establish" that: Mr. Patrick was employed by Geppert Brothers; Mr. Patrick was the foreman on the Project; M.L. Jones did not have a foreman on the Project; the owner of M.L. Jones "was not on the project often and that no one else from her company was on the [Project] site with any regularity;" "Geppert [Brothers'] laborers were swapped over to M.L. Jones for [the] job and the decisions were made by Geppert [Brothers];" "when the [Project] was finished, all of the laborers and operators furnished to M.L. Jones returned to work for Geppert [Brothers];" if Mr. Shamis had a question about his job, Mr. Patrick would direct Mr. Shamis; and, Geppert Brothers "directed what safety clothing [Mr. Shamis was required to] wear" and controlled the hours that Mr. Shamis was required to work. Geppert Brothers' Motion for Summary Judgment, 7/2/12, at 4-7, citing Deposition of Gary Patrick, 4/19/12, at 21 and 23-28.
Geppert Brothers also attempted to support its summary judgment motion with the oral deposition testimony of M.L. Jones' employees Francis Bostwick and William Hawthorne. Geppert Brothers claimed that, during their respective depositions, Messrs. Bostwick and Hawthorne "confirmed" that M.L. Jones employees "reported to Gary Patrick of Geppert [Brothers] for their work assignments" and that, "[l]ike all other [M.L.] Jones employees, when the [Project] was finished, [Messrs. Bostwick and Hawthorne] returned to work for Geppert [Brothers]." Geppert Brothers' Motion for Summary Judgment, 7/2/12, at 4, citing Deposition of Francis Bostwick, 4/19/12, at 18-19 and Deposition of William R. Hawthorne, 5/31/12, at 15-16; but see Deposition of Francis Bostwick, 4/19/12, at 17-19 (Mr. Bostwick only testified that he reported to Gary Patrick and that, when the Project ended, he returned to work at Geppert Brothers); Deposition of William R. Hawthorne, 5/31/12, at 12-26 (same).
Obviously, pursuant to Nanty-Glo v. American Surety Co., 163 A.2d 523 (Pa. 1932), the "[t]estimonial affidavits [or depositions] of the moving party or [its] 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 factfinder." Penn Ctr. House, Inc. v. Hoffman, 553 A.2d 900, 903 (Pa. 1989) (internal quotations, citations, and corrections omitted). Yet, in their response to Geppert Brothers' motion for summary judgment, Appellants did not identify any potential Nanty-Glo issue and, thus, did not call the potential issue to the trial court's attention.
Instead, Appellants responded to Geppert Brothers' summary judgment motion by: 1) "denying" the truth of almost all oral statements that were given by Messrs. Patrick, Bostwick, and Hawthorne and 2) attaching evidence that, Appellants claimed, demonstrated that Mr. Shamis was not a borrowed employee of Geppert Brothers.
With respect to the attached evidence, Appellants first attached documents that were filed with the Commonwealth's Bureau of Workers' Compensation and that pertained to Mr. Shamis' Workers' Compensation Act claim. These documents stated that, on the day of the accident: M.L. Jones was Mr. Shamis' employer; M.L. Jones paid Mr. Shamis' wages; Mr. Shamis worked full-time for M.L. Jones; and, Mr. Shamis was not "employed by any employer other than" M.L. Jones. See Mr. Shamis' Workers' Compensation Act Claim, attached at Exhibit "I" to Appellants' Response. Moreover, the workers' compensation documents declared that M.L. Jones hired Mr. Shamis on September 10, 2007, that Mr. Shamis' workers' compensation claim triggered M.L. Jones' workers' compensation insurance policy, and that Mr. Shamis was being paid workers' compensation benefits pursuant to M.L. Jones' insurance policy. Id.
Further, attached to Appellants' response was the subcontract between Geppert Brothers and M.L. Jones. According to Appellants, the subcontract specifically declared that M.L. Jones had both the right and the obligation to supervise the demolition on the Project. In relevant part, the subcontract declares:
CONSTRUCTION CONTRACT BETWEEN
GEPPERT BROS., INC.
M.L. JONES CONSTRUCTION, CO.
DEMOLITION AND SITE CLEARING FOR THE PENNSYLVANIA CONVENTION CENTER EXPANSION PROJECT
DEMOLITION CONTRACT NO. 1
THIS CONSTRUCTION AGREEMENT MADE THIS 18TH DAY OF JULY IN THE YEAR TWO THOUSAND AND SEVEN
BETWEEN THE CONTRACTOR GEPPERT BROS., INC.
AND THE SUBCONTRACTOR [M.L. JONES]
ARTICLE 1 THE WORK
1.1 The Subcontractor shall furnish all supervision and labor, supply and install all materials, tools, equipment, scaffolding, hoisting, transportation, unloading, handling, and all safety requirements and safety inspections necessary to perform and complete all work required for demolition, environmental remediation and site clearing for the [Project] . . .
1.1.1 . . . The Subcontractor shall cause the responsible parties to use reasonable efforts to permit a minimum amount of noise and construction hazards that would cause discomfort or danger to occupants of adjoining properties and pedestrians and others in the area surrounding the site. Nothing contained in this agreement shall be deemed to give any third party any claim or right of action against Geppert [Brothers] . . . that does not otherwise exist without regard to this agreement, except for any rights granted to Geppert [Brothers] that are expressly set forth in this agreement. The Subcontractor shall be responsible for injury or damage caused to all persons or ...