J. E02004/14
                                2014 PA Super 277
IHOR MALANCHUK,                              :       IN THE SUPERIOR COURT OF
                                             :             PENNSYLVANIA
                          Appellant          :
                                             :
                     v.                      :
                                             :
ILYA SIVCHUK, ETC.                           :
                                             :
-------------------------------------------- :
                                             :
IHOR MALANCHUK,                              :
                                             :
                          Appellant          :
                                             :
                     v.                      :
                                             :          No. 1379 EDA 2012
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 BY FORD ELLIOTT, P.J.E.:FILED DECEMBER 17, 2014

         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
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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


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            supervised their work. Four Brothers paid Tsimura a
            fixed annual salary.

                   Sivchuk enlisted Four Brothers’ contractors to
            build an addition on his private 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”).[Footnote 1] On 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.


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                [Footnote 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 []. [Footnote 2] The actions were
          consolidated by order dated June 6, 2011.

                [Footnote 2] In 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 claims. [Malanchuk] moved for reconsideration of
          grant of summary judgment for Tsimura on April 5,
          2012. [Malanchuk] claimed that summary judgment


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            was not proper because Tsimura was the controlling
            contractor. On May 1, 2012, the court denied this
            motion.

Trial court opinion, 5/9/12 at 1-2.

      Before we may reach the merits, we must first address Tsimura’s

argument that this appeal is not properly before us because “the question of

appealability implicates the jurisdiction of our court.”            Jacksonian v.

Temple University Health System Foundation, 862 A.2d 1275, 1279

(Pa.Super. 2004), quoting In re Estate of Israel, 645 A.2d 1333, 1336

(Pa.Super. 1994). “Generally, only appeals from final orders are eligible for

appellate review.” Id. (citation omitted).

      “Few legal principles are as well settled as that an appeal properly lies

only from a final order unless otherwise permitted by rule or statute.”

G.B. v. M.M.B., 670 A.2d 714, 717 (Pa.Super. 1996) (en banc) (citations

omitted). Whether an appellant has filed a timely appeal from a final order

implicates the jurisdiction of this court.        Flowers v. Flowers, 612 A.2d

1064, 1065 (Pa.Super. 1992) (citations omitted).            Pennsylvania Rule of

Appellate Procedure 341 defines a final order as, inter alia, any order that

disposes   of   all   claims   and   all   parties.   Pa.R.A.P.,   Rule   341(b)(1),

42 Pa.C.S.A.

      Rule 341 provides, in pertinent part:

            (a)       General rule.       Except as prescribed in
                      subdivisions (d), and (e) of this rule, an appeal
                      may be taken as of right from any final order
                      of an administrative agency or lower court.


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            (b)   Definition of final order. A final order is any
                  order that:

                  (1)   disposes of all claims and of all
                        parties; or

                  (2)   is expressly defined as a final order
                        by statute; or

                  (3)   is entered as a final order pursuant
                        to subdivision (c) of this rule.

            (c)   Determination of finality. When more than
                  one claim for relief is presented in an action,
                  whether as a claim, counterclaim, cross-claim,
                  or third-party claim or when multiple parties
                  are involved, the trial court or other
                  governmental unit may enter a final order as
                  to one or more but fewer than all of the claims
                  and      parties    only    upon     an   express
                  determination that an immediate appeal would
                  facilitate resolution of the entire case. Such an
                  order becomes appealable when entered. In
                  the absence of such a determination and entry
                  of a final order, any order or other form of
                  decision that adjudicates fewer than all the
                  claims and parties shall not constitute a final
                  order.

Pa.R.A.P. 341(a), (b) & (c).

            The following is a partial list of orders previously
            interpreted by the courts as appealable as final
            orders under Rule 341 that are no longer appealable
            as of right unless the trial court or administrative
            agency makes an express determination that an
            immediate appeal would facilitate resolution of the
            entire case and expressly enters a final order
            pursuant to Rule 341(c):

            (1)   an order dismissing one of several
                  causes of action pleaded in a complaint



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                  but leaving pending other causes of
                  action;

            (2)   an order dismissing a complaint but
                  leaving pending a counterclaim;

            (3)   an order dismissing a counterclaim but
                  leaving pending the complaint which
                  initiated the action;

            (4)   an order dismissing an action as to less
                  than all plaintiffs or as to less than all
                  defendants but leaving pending the
                  action as to other plaintiffs and other
                  defendants; and

            (5)   an order granting judgment against one
                  defendant but leaving pending the
                  complaint against other defendants; and

            (6)   an order dismissing a complaint to join
                  an additional defendant or denying a
                  petition to join an additional defendant or
                  denying a petition for late joinder of an
                  additional defendant.

Pa.R.A.P. 341, Note.

            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.

Bolmgren v. State Farm, 758 A.2d 689, 690-691 (Pa.Super. 2000)

(citations omitted).   See also Estate of Considine v. Wachovia Bank,

966 A.2d 1148, 1153 (Pa.Super. 2009) (order granting summary judgment

to one of multiple defendants not subject to interlocutory appeal as of right).




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      Here, the order appealed from is interlocutory as it did not dispose of

all claims and all parties.     The negligence claim against Sivchuk remains

outstanding. Nor did Malanchuk file a petition seeking permission to appeal

pursuant to Pa.R.A.P. 312. Accordingly, we do not have jurisdiction to hear

this appeal.

      As stated above, these actions were consolidated for trial.           On

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, 6/6/11 at 1.) Malanchuk argues that because the two

actions involved different defendants, each action retained its separate

character and required the entry of a separate judgment. See Roznowski

v. Pennsylvania National Mutual Casualty Insurance Co., 493 A.2d

775, 777-778 (Pa.Super. 1985) (“When separate actions are consolidated

for trial, each action retains its separate character.    Each has its separate

docket entries, and each produces its own verdict and judgment.”), citing

Azinger v. Pennsylvania Railroad Co., 105 A. 87 (Pa. 1918). Malanchuk



1
               In actions pending in a county which involve a
               common question of law or fact or which arise from
               the same transaction or occurrence, the court on its
               own motion or on the motion of any party may order
               a joint hearing or trial of any matter in issue in the
               actions, may order the actions consolidated, and
               may make orders that avoid unnecessary cost or
               delay.


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maintains that this was not a “complete consolidation” whereby several

actions are combined into one and lose their separate identities, becoming a

single action in which a single judgment is rendered. Therefore, according

to Malanchuk, the summary judgment order had the effect of terminating

the lawsuit against Tsimura and rendering the March 26, 2012 order a final,

appealable order.

      Malanchuk relies on Kincy v. Petro, 2 A.3d 490 (Pa. 2010), which we

find to be inapposite.   In that case, Alice Kincy (“Kincy”) was driving her

vehicle in which her brother, Jerome Nixon (“Nixon”), was a passenger,

when it was struck by a vehicle driven by Anastasia Petro (“Anastasia”). Id.

at 491.   The vehicle Anastasia was driving was owned by her mother,

Nancy Petro (“Petro”). Id. Kincy filed suit against Petro, alleging that Petro

was negligent in operating her vehicle, resulting in injuries to Kincy.   Id.

Thereafter, Nixon and his wife filed a separate action naming both Anastasia

and Petro as defendants, alleging that Anastasia was negligent in her

operation of the vehicle, and that Petro negligently entrusted the vehicle to

her daughter.    Id.     Petro filed an answer and new matter to Kincy’s

complaint, admitting that she owned the vehicle that struck Kincy’s car, but

asserting that her daughter, Anastasia, was the driver at the time of the

accident. Id. Despite the fact it was undisputed that Anastasia, not Petro,

was driving the vehicle at the time of the accident, Kincy never sought leave




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to amend her complaint to include a claim against Anastasia, or to amend

the basis of her cause of action against Petro. Id.

      Subsequently, the cases were consolidated “for all purposes” including

discovery, trial and appeal.   Id.   The Nixons settled their claims against

Anastasia and Petro, and their action was discontinued. Id. at 492. Prior to

trial, the trial court granted Anastasia and Petro’s motion in limine seeking

to preclude Kincy from presenting any evidence other than evidence in

support of her claim against Petro for negligent operation of the vehicle. Id.

The trial court rejected Kincy’s argument that as a result of the consolidation

order, her complaint merged with the Nixons’ complaint, and therefore she

had asserted a negligence claim against Anastasia.        Id.   The trial court

reasoned that pursuant to Azinger, separate actions can be merged into a

single action only if they involve, inter alia, the same parties.           Id.

Subsequently, as it was undisputed that Petro was not the driver of the

vehicle that struck Kincy, the trial court granted nonsuit in favor of Anastasia

and Petro. Id.

      Kincy appealed, and this court affirmed on the trial court opinion. Id.

On further appeal, our supreme court also affirmed, holding that the

pleadings filed in the separate cases did not automatically merge:

            The court’s action was not such a consolidation of
            the two proceedings as to merge the two actions into
            one, but merely an order directing they be tried
            together in view of the fact that the cases were of
            the same nature, arose out of the same transaction,
            and depended in each case upon substantially the


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              same proofs, and was made in the interest of justice
              and for the purpose of avoiding unnecessary delay
              and expense.

Id. at 493.

     The Kincy court found that while a trial court may order the actions

“consolidated” under Rule 213(a), this is distinct from the “complete

consolidation” implicated in Azinger, which predated the enactment of

Rule 213. Id. at 493-494. Complete consolidation cannot occur unless the

actions involve the same parties, subject matter, issues, and defenses:

              Thus, where a party or trial court seeks complete
              consolidation of two separate actions, we reaffirm
              our holding in Azinger that such consolidation
              cannot be achieved unless the actions involve the
              same parties, subject matter, issues, and defenses.
              As the Kincy and Nixon actions did not involve
              identical parties, under Azinger, the actions could
              not have been consolidated such that the actions lost
              their separate identities and the pleadings merged.

Id. at 495.2

     Malanchuk’s reliance on Kincy for the proposition that because the

actions were consolidated under Rule 213, the claims against each defendant

retained their separate identities, thereby rendering summary judgment for

Tsimura a final order, expands Kincy’s application far beyond its holding and

abrogates the definition of a final order. Key to understanding Kincy is that

by the time the cases were consolidated, the statute of limitations had


2
  The Kincy court acknowledged that since the enactment of the compulsory
joinder rule, Pa.R.C.P. 1020(d), there would be few, if any, circumstances
where complete consolidation as contemplated by Azinger would apply.


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expired. The accident occurred on September 13, 2003. Id. at 491. Kincy

filed suit on August 3, 2005, and the cases were consolidated on March 7,

2006. Id. If the Kincy court had accepted her argument regarding merger,

it would have defeated the statute of limitations by effectively allowing her

to amend her complaint to include an entirely new cause of action.3 Such a

result would have created a loophole in the statute of limitations. See id. at

495 (“a conclusion that Rule 213(a) contemplates complete consolidation

between actions involving non-identical parties, subject matter, issues and

defenses, is simply untenable. In ascertaining the intention of the Supreme

Court in the promulgation of a rule, it is presumed that we did not intend a

result that is absurd, impossible of execution, or unreasonable.”). See also

id. at 498 (Saylor, J., concurring) (“A looser approach permitting automatic,

retroactive consolidation of counts to encompass unstated cross-claims is

untenable, since the potential for disorder, confusion, and surprise is simply

too great.”).

      Had Malanchuk filed a single complaint naming both Sivchuk and

Tsimura as defendants, or sought to amend his original complaint to name a

new party, all allegations against all defendants would have been contained

in a single complaint under a single court term and number and there would

be no question that the order granting partial summary judgment was



3
 Obviously, had the statute of limitations not expired, Kincy could have
amended her complaint and the issue would be moot.


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interlocutory and non-appealable. There is no reason to treat the March 26,

2012 order any differently simply because the claims against each defendant

were initially filed separately and then consolidated for trial pursuant to

Rule 213(a). It is unreasonable to find the otherwise interlocutory order is

final and appealable based solely on the manner in which the claims were

originally presented.

        Rule 341 specifically provides that any order which adjudicates fewer

than all claims and parties is not a final order. Pa.R.A.P. 341(c). Malanchuk

could    have    petitioned   the   court   for   permission   to   appeal   under

Pa.R.A.P. 312.    The rule permits a trial court to specifically designate an

order of partial summary judgment as final, thereby allowing for immediate

appeal. Therefore, the rules already provide for the possibility of immediate

appellate review. Malanchuk chose not to pursue this course, and the trial

court did not determine its order granting partial summary judgment

necessitated immediate appellate review.

        Kincy is distinguishable on its facts and never addressed the issue of

what constitutes an appealable order.             Kincy involved the merger of

complaints filed by separate plaintiffs, after the statute of limitations had

expired. The matter sub judice involves a single plaintiff bringing identical

allegations against joint defendants.       Consolidation of the claims against

Sivchuk and Tsimura does not affect the interlocutory nature of the order in

question, thus Kincy is inapplicable. For these reasons, we are compelled to



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quash the instant appeal as interlocutory, and we are without jurisdiction to

address Malanchuk’s substantive claims.

     Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/17/2014




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