J-A33030-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RAFAEL FERNANDEZ, SR. AND OLGA                  IN THE SUPERIOR COURT OF
FERNANDEZ, H/W                                        PENNSYLVANIA

                            Appellants

                       v.

FAIRMART MARKET, INC. AND SAMI
MUHANNA AND BLANCA DEL VALLE AND
SANTOS DEL VALLE

                            Appellees               No. 2047 EDA 2014


                 Appeal from the Order Entered on June 8, 2014
              In the Court of Common Pleas of Philadelphia County
                Civil Division at No.: June Term, 2013 No. 01493


BEFORE: LAZARUS, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                             FILED APRIL 28, 2015

       Rafael Fernandez, Sr., and his wife, Olga Fernandez (collectively

“Appellants”), appeal the June 8, 2014 order1 that granted summary

judgment in favor of Blanca and Santos Del Valle (collectively “Appellees”). 2

Because the trial court made impermissible credibility determinations in


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*
       Retired Senior Judge assigned to the Superior Court.
1
     Appellants also purport to appeal the June 26, 2014 denial of their
motion for reconsideration, which was docketed on June 30, 2014.
However, orders denying reconsideration are not reviewable.         See
Cheathem v. Temple Univ. Hosp., 743 A.2d 518, 521 (Pa. Super. 1999).
2
     By stipulation dated January 30, 2014, Fairmart Market, Inc., and
Sami Muhanna were dismissed as parties without prejudice.
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granting   summary      judgment,   we     reverse   and   remand   for   further

proceedings.

      Viewing the record in the light most favorable to Appellants as the

non-moving parties, see Summers v. Certainteed Corp., 997 A.2d 1152,

1161 (Pa. 2010), produces the following summary of the events leading up

to this litigation. Appellees jointly owned property at 623 Fairmount Avenue,

Philadelphia, Pennsylvania.    Appellants and Appellees were neighbors, and

Mr. Del Valle approached Mr. Fernandez about some repair worked that

needed to be done to the concrete sidewalk at 623 Fairmount Avenue. Mr.

Fernandez agreed to contact some workers who previously had repaired Mr.

Fernandez’s sidewalk.    After making inquiries, Mr. Fernandez told Mr. Del

Valle how much the workers wanted to be paid. Mr. Fernandez and Mr. Del

Valle agreed that Mr. Fernandez would arrange for the workers and that Mr.

Del Valle would pay Mr. Fernandez an amount to be decided later to

supervise the work.

      On June 11, 2012, one of the workers was working on the sidewalk

when a shard of concrete flew up and struck Mr. Fernandez in the eye. Mr.

Fernandez suffered a second degree orbital rupture of the left eye, which

resulted in total blindness in that eye.

      Appellants filed a complaint on June 11, 2013, and an amended

complaint on October 8, 2013, in which they alleged that Appellees were

negligent in, among other things, failing to provide protective equipment and

failing to warn of a hazardous condition. On April 29, 2014, Appellees filed a

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motion for summary judgment. On June 8, 2014, the trial court granted the

motion and dismissed the complaint with prejudice.        On June 18, 2014,

Appellants filed a motion for reconsideration, which the trial court denied on

June 30, 2014.

      On July 2, 2014, Appellants filed a timely notice of appeal. The trial

court did not order, and Appellants did not file, a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court filed

its opinion pursuant to Pa.R.A.P. 1925(a) on July 9, 2014.

      Appellants present two issues on appeal:

      A. Did the trial court err in granting summary judgment in
         accepting [Appellees’] legal argument that [Mr. Fernandez,
         Appellees’] friend and neighbor of thirty years, was an
         independent contractor when [Mr. Fernandez] was injured
         helping [Appellees] at [Appellees’] commercial property [to]
         remove a tripping hazard, when that finding contradicts [Mr.
         Del Valle’s] sworn deposition testimony in which he denied
         any agreement with [Mr. Fernandez] altogether?

      B. Did the trial court err in granting summary judgment in favor
         of a landowner by determining that the landlord was out of
         possession of the land because he was not present when his
         neighbor was injured and lost sight in one eye after he was
         struck by a concrete shard when he was helping his friend
         and neighbor remove a tripping hazard at [Appellees’]
         commercial property at the behest of [Appellees’] insurance
         carrier?

Appellants’ Brief at 4.

      Before we reach the merits of Appellants’ issues, we first address

Appellees’ contention that Appellants have waived their issues.      Appellees

argue that Appellants failed to raise these issues before the trial court in


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response to Appellees’ motion for summary judgment and, therefore, they

are waived. Appellees’ Brief at 6-12.

       We disagree.       Appellants sufficiently advanced the argument that

Fernandez was not an independent contractor so as to avoid waiver before

this Court. In their response to Appellees’ motion for summary judgment,

Appellants denied the claim that Mr. Fernandez was an independent

contractor.    Response in Opposition to Defendants Santos Del Valle and

Blanca Del Valle’s Motion for Summary Judgment (“Fernandez Response”),

5/29/2014, at 2 ¶ 6. Appellants also appended to their response an expert

report, in which Robert S. Sleece, P.E., opined that Mr. Fernandez was not a

contractor. Id., Exh. E at 4. Further, in the brief Appellants filed in support

of their response, they raised and cited applicable law relating to the

“retained control” exception to the general rule that owners of land owe no

duty of care to an independent contractor.3          Memorandum of Law in

Opposition to Defendants Santos Del Valle and Blanca Del Valle’s Motion for

Summary Judgment, 5/29/2014, at 12-13.           Thus, we find that Appellants



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3
      Appellants addressed whether Fernandez was an independent
contractor more directly in their motion for reconsideration. However, we
have held that an issue raised for the first time in a motion for
reconsideration of a disposition of a summary judgment motion is not
preserved for appellate review.   See Erie Ins. Exch. v. Larrimore, 987
A.2d 732, 743 (Pa. Super. 2009).




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presented enough in response to the summary judgment motion to bring

this issue to the court’s attention and avoid waiver.

      Moving to the merits of Appellants’ issues, our Supreme Court has

explained our standard of review as follows:

      As has been oft declared by this Court, “summary judgment is
      appropriate only in those cases where the record clearly
      demonstrates that there is no genuine issue of material fact and
      that the moving party is entitled to judgment as a matter of
      law.” Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d
      1218, 1221 (Pa. 2002); Pa.R.C.P. 1035.2(1). When considering
      a motion for summary judgment, the trial court must take all
      facts of record and reasonable inferences therefrom in a light
      most favorable to the non-moving party. Toy v. Metropolitan
      Life Ins. Co., 928 A.2d 186, 195 (Pa. 2007). In so doing, the
      trial court must resolve all doubts as to the existence of a
      genuine issue of material fact against the moving party, and,
      thus, may only grant summary judgment “where the right to
      such judgment is clear and free from all doubt.” Id. On
      appellate review, then,

         an appellate court may reverse a grant of summary
         judgment if there has been an error of law or an abuse of
         discretion. But the issue as to whether there are no
         genuine issues as to any material fact presents a question
         of law, and therefore, on that question our standard of
         review is de novo. This means we need not defer to the
         determinations made by the lower tribunals.

      Weaver v. Lancaster Newspapers, Inc., 926 A.2d 899, 902–
      03 (Pa. 2007) (internal citations omitted). To the extent that
      this Court must resolve a question of law, we shall review the
      grant of summary judgment in the context of the entire record.
      Id. at 903.

Summers, 997 A.2d at 1159 (citations modified).

      Appellants argue that the trial court impermissibly made findings of

fact in resolving the summary judgment motion.          Specifically, Appellants


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contend that the trial court concluded that Mr. Fernandez was an

independent   contractor   when         disputed   facts   remained      regarding      Mr.

Fernandez’s status. Appellants assert that Mr. Fernandez’ legal status was

an issue to be resolved by the jury. Appellants’ Brief at 19-21.

      We have held that, when the facts are undisputed, the trial court has

the responsibility to determine whether a party is an employee or an

independent contractor. However, if the facts are in dispute, this question

falls within the province of a jury. Melmed v. Motts, 491 A.2d 892, 893

(Pa. Super. 1985); see also Shay v. Flight C Helicopter Servs., Inc., 822

A.2d 1, 15-16 (Pa. Super. 2003) (holding that, when evidence supported a

finding that mechanic was either an employee or an independent contractor,

trial court properly submitted issue to a jury).

      In support of Appellants’ contention that there is a factual dispute,

they highlight the inconsistencies in Mr. Del Valle’s deposition and answers

to interrogatories. In his responses to interrogatories, Mr. Del Valle stated

that Mr. Fernandez was hired to perform the sidewalk repair.                   Answers of

Defendants,    Blanca   Del     Valle     and   Santos     Del   Valle    to     Plaintiffs’

Interrogatories at ¶ 5. He also affirmed that there was an oral contract.

Id. at ¶¶ 6, 17. However, in his deposition, Mr. Del Valle testified that he

did not hire Mr. Fernandez. Deposition of Santos Del Valle, 4/11/2014, at

19. Mr. Del Valle further testified that he never asked Mr. Fernandez to fix

the sidewalk and did not know why Mr. Fernandez was at 623 Fairmount

Avenue.   Id. at 19-21.       Mr. Del Valle agreed that he provided no safety

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equipment nor made any preparations for work at 623 Fairmount Avenue.

Id. at 34.    Appellants also cite their expert report, in which Mr. Sleece

opines that Mr. Fernandez was an employee rather than a contractor.

Fernandez Response, Exh. E at 4.

      Appellees maintain that Mr. Fernandez was an independent contractor,

citing Mr. Fernandez’s responses to interrogatories, in which he admitted

that there was a contract between Appellees and Mr. Fernandez to remove

and repair portions of the sidewalk.    Plaintiffs’ Rafael Fernandez, Sr., and

Olga Fernandez’s Answers to Defendants Blanca Del Valle and Santos Del

Valle’s Interrogatories at ¶ 6.    In his deposition, Mr. Fernandez admitted

that he was to supervise the work of two other workers who were repairing

the sidewalk. Deposition of Rafael Fernandez, 3/7/2014, at 10.

      Despite Mr. Fernandez’s admissions, Mr. Del Valle’s deposition raises

factual questions about what role Mr. Fernandez had.         Assuming an oral

contract, Mr. Fernandez could be an employee, as Mr. Sleece opines.

Moreover, the discrepancies between Mr. Del Valle’s interrogatory answers

and his deposition testimony raise issues regarding his credibility. In light of

this contradictory record, the trial court could grant summary judgment only

by discounting the professional engineer’s expert report, by unilaterally

resolving the inconsistencies between Mr. Del Valle’s interrogatory answers

and his deposition, and by concluding without more that Mr. Fernandez was




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an independent contractor.          Plainly, this involved credibility-weighing and

fact-finding that our Constitution and laws assign to the jury.4

        Because it engaged in such fact-finding and resolved issues of material

fact against the non-moving party, the trial court erred in granting summary

judgment. Therefore, we reverse the June 8, 2014 order and remand to the

trial court for further proceedings.

        In Appellants’ second issue, they assert that the trial court erred in

granting    summary       judgment      because,   assuming   arguendo   that   Mr.

Fernandez was an independent contractor, Appellees still owed him a duty of

care.    Because of the disposition of Appellants’ first issue, we need not

address this issue.

        Order reversed. Case remanded. Jurisdiction relinquished.

        Judge Lazarus joins the memorandum.

        Judge Strassburger concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/28/2015
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4
      It is evident that the lower court felt strongly about the case, labeling
Appellants’ claims “baseless” and “ridiculous.”          Trial Court Opinion,
7/8/2014, at 2, 3.



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