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Malanchuk v. Sivchuk

Superior Court of Pennsylvania

December 17, 2014

IHOR MALANCHUK, Appellant
v.
ILYA SIVCHUK, ETC. IHOR MALANCHUK, Appellant
v.
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

Page 790

 FORD ELLIOTT, P.J.E.

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 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 supervised their work. Four Brothers paid Tsimura a fixed annual salary.
Sivchuk enlisted Four Brothers' contractors to build an addition on his private

Page 791

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" ).1On 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.
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 []. 2 The actions were consolidated by order dated June 6, 2011.
2In 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 ...

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