J-E02004-14

                          2016 PA Super 213

IHOR MALANCHUK                                IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                       Appellant

                  v.

ILYA SIVCHUK T/A FOUR BROTHERS
CONSTRUCTION CO.,

IHOR MALANCHUK

                       Appellant

                  v.

ALEX TSIMURA, INDIVIDUALLY AND T/A
IMPRESSIVE WINDOWS AND ALEXIS
IMPRESSIVE WINDOWS AND TATYANA
TSIMURA, INDIVIDUALLY AND T/A
IMPRESSIVE WINDOWS AND ALEXIS
IMPRESSIVE WINDOWS AND ALEXIS
IMPRESSIVE WINDOWS, INC.,                        No. 1379 EDA 2012



              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: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, SHOGAN, ALLEN,
        OTT, WECHT, STABILE AND JENKINS, JJ.

OPINION BY BOWES, J.:                       FILED SEPTEMBER 15, 2016

     Ihor Malanchuk appeals from the March 26, 2012 order granting

summary judgment to Appellees, Alex Tsimura, both individually and trading

as Impressive Windows and Alexis Impressive Windows, and Tatyana

Tsimura, both individually and trading as Impressive Windows and Alexis
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Impressive Windows, and Alexis Impressive Windows, Inc.         After careful

review, we reverse.

        Appellant was an independent contractor who, beginning in 2007,

performed carpentry work for Ilya Sivchuk’s wholly-owned enterprise, Four

Brothers Construction Co. (“Four Brothers”), 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 and allegedly performed his work

through his wife’s businesses, Impressive Windows and Alexis Impressive

Windows.     Four Brothers engaged in residential and commercial interior

construction and employed between ten and fifteen contractors to do

carpentry and trim work.

        On May 2, 2008, Mr. Sivchuk had two of Four Brothers’ contractors,

Appellant and Mr. Tsimura, perform work at his own residence.      Appellant

was severely injured after he fell from scaffolding located at Mr. Sivchuk’s

home.      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 Four

Brothers. That insurance company joined Four Brothers as a defendant in

the worker’s compensation action, which was settled for $30,000 on June 2,

2010.     Four Brothers contributed to the settlement, and that accord


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contained a clause stating that it was agreed there was no employer-

employee relationship between Appellant, on the one hand, and Four

Brothers/Mr. Sivchuk, on the other hand.

       On May 21, 2009, Appellant filed a personal injury action against Mr.

Sivchuk and Four Brothers (collectively “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 Alex Tsimura, both

individually and trading as Impressive Windows and Alexis Impressive

Windows, and Tatyana Tsimura, both individually and trading as Impressive

Windows and Alexis Impressive Windows, and Alexis Impressive Windows,

Inc. (collectively “Tsimura”) at docket number 4727 April Term 2010 in the

Court of Common Pleas of Philadelphia County.       In each action, 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

____________________________________________


1
    Pa.R.C.P. 213(a) provides:

       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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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, while 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. 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 in favor of Sivchuk as to Appellant’s products

liability count, and denied Sivchuk’s motion for summary judgment with

respect to the negligence counts presented in the action against Sivchuk.

Appellant filed the present, 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(a) opinion in which it considered this appeal to be

improperly filed from an interlocutory order, and in which it supported its

decision to grant summary judgment to Tsimura.

      A panel of this Court concluded that we had jurisdiction over the

appeal under Kincy v. Petro, 2 A.3d 490 (Pa. 2010), wherein the Supreme

Court analyzed the effect of a trial court order that consolidated two

separate actions pursuant to Pa.R.C.P. 213(a).       In Kincy, there were


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different parties and different theories of liability involved in each action but

both lawsuits pertained to the same traffic accident. 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 filed an action against the mother of the driver of vehicle number two.

Vehicle number one’s driver alleged therein that the mother was negligent in

her operation of her car.    This complaint was never amended, even after

discovery clarified that the mother owned vehicle number two but was not

driving it when the accident occurred. Vehicle number one’s passenger and

his wife then filed another lawsuit against both the daughter/driver and

mother/owner of vehicle number two, and they raised averments of

negligent driving and negligent entrustment, respectively, against the

daughter/mother defendants.

      The separately-filed actions by the passenger/wife and driver of

vehicle number one were consolidated under Pa.R.A.P. 213(a) “for all

purposes,” including appeal. Id.      The consolidated matter proceeded to

arbitration, where the passenger in vehicle number two and his wife

prevailed, and then settled their case. The driver of vehicle number one 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


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transpired and the only allegations raised in the complaint in the action

involved negligent operation of vehicle number two. The Superior affirmed.

      On appeal to the Supreme Court, vehicle number one’s driver 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 their

allegations of negligent driving against vehicle number two’s driver should

be considered as raised in the action by vehicle number one’s driver. Our

Supreme Court rejected that position.     The Kincy Court concluded that a

consolidation order entered under rule 213(a) “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. 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 in Kincy 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



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in complete consolidation. 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.

       The panel in the present case applied the reasoning of Kincy, and

concluded that, despite the consolidation order, the two actions involved

herein retained their separate identities because different defendants were

named in each lawsuit and complete consolidation was not accomplished by

the consolidation order issued in these matters. The panel reasoned that,

absent a complete consolidation, the two separate lawsuits did not merge,

and retained their separate identifies for purposes of appealability.    Since

the summary judgment order at issue in this appeal had the effect of

terminating the lawsuit filed at 4727 April Term 2010 as to all defendants

therein, the panel held that it was a final, appealable order as to that

litigation.   The panel assumed jurisdiction and reversed the grant of

summary judgment to Tsimura.

       The present en banc panel granted reargument as to the panel

decision, and concluded that, since the Sivchuk and Tsimura actions were

consolidated, the present appeal was interlocutory. Malanchuk v. Sivchuk,

106 A.3d 789 (Pa.Super. 2014) (en banc). The en banc Court distinguished

Kincy since that matter concerned a plaintiff's effort to attain a merger of

pleadings to avoid an inability to litigate a cause of action due to the


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expiration of the applicable statute of limitations, and we likened this case to

one where a plaintiff commences a single action arising out of the same set

of factual circumstances against multiple defendants. In the prior en banc

decision, this Court found it untenable that an “otherwise interlocutory order

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

originally presented.” Id.

      The en banc decision was then reversed by our Supreme Court sub

nom in Malanchuk v. Tsimura, 137 A.3d 1283 (Pa. 2016).             Therein, the

Court rejected the notion that Kincy was distinguishable due to the fact that

it pertained to a statute-of-limitations issue.     It noted that Kincy was

premised upon application of the following language in Azinger v.

Pennsylvania R. Co., 105 A. 87, 88 (Pa. 1918) (emphasis added):

      [W]here separate actions in favor of or against two or more
      persons have arisen out of a single transaction, and the evidence
      by which they are supported is largely the same, although the
      rights and liabilities of parties may differ, it is within the
      discretion of the trial judge to order all to be tried together,
      though in every other respect the actions remain distinct
      and require separate verdicts and judgments.

      The Malanchuk v. Tsimura court articulated that, under this precept,

“consolidation effectuating a merger or fusion of actions impressing a single

identity upon them can occur only where there is a complete overlap among

parties and causes of action.”    Malanchuk v. Tsimura, supra at 1286.

Absent those requirements, consolidation can be “only for purposes of

convenient pretrial and trial administration,” and Rule 213(a) does not trump


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Azinger’s holding. Id.; Kincy, supra (Rule 213(a) does not envision

complete consolidation between actions involving non-identical parties,

theories of liability, and defenses).          Hence, “separate actions lacking” an

overlap of parties and causes of action “retain their separate identities and

require distinct judgments,” and “these principles pertain equally to

appealability determinations.”         Malanchuk v. Tsimura, supra at 1288.

Our Supreme Court concluded that “since complete consolidation did not

occur,” in this matter, “the common pleas court's order awarding summary

judgment in favor of Appellee was a final one as to the Tsimura case” and

thus appealable. Id. at 1289. The court remanded to the Superior Court for

disposition of these remaining issues:2

              [1]. 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?

              [2]. 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
____________________________________________


2
 We have omitted the first question presented in this appeal, as it related to
our jurisdiction over the order in question.



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      witnesses, and failing to leave credibility determinations to the
      trier of fact?

            [3]. 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.

      We first discuss the applicable standard of review.

      “[S]ummary 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.,
      571 Pa. 580, 812 A.2d 1218, 1221 (2002); Pa.R.C.P. No.
      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., 593 Pa. 20, 928
      A.2d 186, 195 (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.

Truax v. Roulhac, 126 A.3d 991, 996 (Pa.Super. 2015) (en banc) (citation

omitted).

      An order granting summary judgment will be reversed if the trial court

committed an error of law or abused its discretion.         Id.   The decision

relating 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.” Id. at 997 (citation omitted).      It is settled

that, “If there is evidence that would allow a fact-finder to render a verdict

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in favor of the non-moving party, then summary judgment should be

denied.” Id. (citation omitted).

      Under the rule announced in Borough of Nanty–Glo v. American

Surety Co. of New York, 163 A. 523, 524 (Pa. 1932), which is invoked by

Appellant herein, a grant of summary judgment cannot be sustained when

the moving party relies solely upon oral testimony in the form of affidavits or

depositions to establish the absence of a genuine issue of material fact. See

also Bailets v. Pennsylvania Tpk. Comm'n, 123 A.3d 300, 304 (Pa.

2015) (“oral testimony alone, of the moving party or his witnesses, i.e.,

affidavits or depositions, even if uncontradicted, is generally insufficient to

establish the absence of a genuine issue of material fact”); PHH Mortgage

Corp. v. Powell, 100 A.3d 611, 620 (2014) (citation omitted) (“Testimonial

affidavits of the moving party or his 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

jury.”).   The Nanty-Glo rule rests on the premise: “However clear and

indisputable may be the proof when it depends on oral testimony, it is

nevertheless the province of the jury to decide, under instructions from the

court, as to the law applicable to the facts[.]” Nanty–Glo, supra at 524.

      Appellant presented the following evidence, which we must credit

under the recited standard of review, to support his positions. Mr. Sivchuk’s

responsibilities for Four Brothers included 1) the negotiation of contracts for

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the installation of interior carpentry for residences and businesses; and

2) the payment of Four Brothers’ bills.            Four Brothers solely utilized

independent contractors to perform all services that it contracted to perform.

Mr. Sivchuk maintained that he was the only employee of Four Brothers and

that any other person working for Four Brothers was an independent

contractor.3

       In his deposition taken during the workers’ compensation proceeding,

Mr. Sivchuk reported that he did not supervise the work of his contractors.

Deposition of Ilya Sivchuk, 1/26/10, at 26.4         Mr. Sivchuk explained that

Mr. Tsimura, who was also an independent contractor of Four Brothers,

“owned a company, but I hired him like a supervisor.” Id. at 27-28.

Mr. Tsimura was paid biweekly by Four Brothers.

       Once Mr. Sivchuk received a job on behalf of Four Brothers, he would

tell Mr. Tsimura the nature and location of the work. Mr. Tsimura “handled

the matter” and was in charge of assigning the business to the different

carpentry independent contractors who worked for Four Brothers. Id. at 38.

Mr. Sivchuk stated that, if there were no complications with a job, he would
____________________________________________


3
   Given this testimony, we must accept Appellant’s position that all the
parties at issue herein were independent contractors and that Mr. Tsimura
was not an employee of Sivchuk on May 2, 2008. See Appellant’s brief at
31, n.14.
4
  This deposition is included in the certified record as Exhibit F to Appellant’s
response to the summary judgment motion filed by Sivchuk.



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not visit the worksite and that he did so only when he received a complaint.

Id. at 42-43.     During a deposition taken in the present proceeding, Mr.

Sivchuk confirmed that he told all of the carpenters performing work as

independent contractors for Four Brothers that Mr. Tsimura was their

supervisor and the field manager of any project. Deposition, Ilya Sivchuk,

9/9/11, at 125.    Additionally, “they saw a sign on the door where it says

Mr. Tsimura, the manager[.]” Id.

      Hrihoriy Shostak, another carpentry independent contractor who

worked for Four Brothers, confirmed that both Mr. Sivchuk and Mr. Tsimura

told him that Mr. Tsimura was his supervisor on Four Brothers’ projects.

Deposition, Hrihoriy Shostak, 9/28/11, at 13.      Specifically, Mr. Shostak

reported that Mr. Tsimura was “a supervisor. We were supposed to listen to

what he says.”    Id. Mr. Tsimura received Occupational Safety and Health

Administration (“OSHA”) scaffolding training every three months.

      On the day of the accident, May 2, 2008, Mr. Sivchuk “called

[Mr. Tsimura]” and “told him, Alex, I want to install the moldings in my

ceiling.”   Deposition, Ilya Sivchuk, 1/26/10, at 45.    The job in question

involved the installation of molding on the two-story cathedral ceiling in the

entrance of Mr. Sivchuk’s house. Partially assembled scaffolding for that job

was already located in the home. It was owned by Four Brothers and had

been transported to Mr. Sivchuk’s home from another Four Brothers’ job.




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      Four Brothers’ carpenters reported to work each morning at about

6:00 a.m. to a building located on Franklin Street. That location was where

they received their assignments for the day from Mr. Tsimura. On May 2,

2008, Appellant reported as usual to the Franklin Street building, met

Mr. Tsimura, and the two men traveled to Mr. Sivchuk’s home together.

When they arrived, Mr. Tsimura told Appellant that they were “going to

finish the ceiling.” Deposition, Ihor Malanchuk, 8/31/11, at 72. Mr. Tsimura

next instructed Appellant, who had no OSHA scaffolding training and who

never assembled a scaffold before that day, to erect the scaffolding. Id. at

75. At that time, the first tier of the scaffolding was partially built, but there

was no second tier, which was needed to reach the ceiling.          Mr. Tsimura

then left the jobsite for about one hour.

      Appellant retrieved his tools and finished assembling the scaffolding

located at Mr. Sivchuk’s residence.      When Mr. Tsimura returned to that

location, he looked at the scaffolding and saw that it was completed.         Mr.

Tsimura confirmed during his deposition that he visually inspected the

erected scaffolding after he returned and determined, “It was fine.”

Deposition Alex Tsimura, 4/1/10, at 92.       There were no guardrails on the

scaffolding.

      Mr. Tsimura then retrieved his own tools and began to cut boards on

the floor while Appellant climbed onto the second tier of the scaffolding.

Appellant was looking at the ceiling when one of three boards that comprised

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the floor of the second tier of scaffolding turned over on one side. Appellant

fell as a result of the shifting board. Appellant broke his elbow, underwent

multiple surgeries, and is permanently disabled as a result of the break. It

was conceded by all the parties that, under OSHA regulations, the

scaffolding was required to have a guardrail. Appellant presented the report

of an expert witness who opined that, at the time of the accident, the

scaffolding was in violation of OSHA regulations since it lacked a guardrail

and that the lack of the guardrail was the proximate cause of Appellant’s fall.

       Appellant first argues that he presented sufficient evidence to create a

genuine issue of material fact that Tsimura breached the duty outlined in

Restatement (Second) of Torts § 384, which was applied in Leonard v.

Commonwealth, 771 A.2d 1238 (Pa. 2001).5 The Restatement (Second) of

Torts § 384 states:

           One who on behalf of the possessor of land erects a
       structure or creates any other condition on the land is subject to
       the same liability, and enjoys the same freedom from liability,
       as though he were the possessor of the land, for physical harm
       caused to others upon and outside of the land by the dangerous
       character of the structure or other condition while the work is in
       his charge.

Comment d to that provision indicates,

____________________________________________


5
 In Duffy v. Fischbach & Moore, Inc., 126 A.2d 413, 416 (Pa. 1956), our
Supreme Court ruled that a defendant was subject to liability under the
same section of the first Restatement of Torts.




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          A possessor of land may put a number of persons severally
      in charge of the particular portions of the work of erecting a
      structure or creating any other condition upon the land. Again, a
      general contractor employed to do the whole of the work may,
      by the authority of his employer, sublet particular parts of the
      work to subcontractors. In such a case, the rule stated in this
      Section applies to subject the particular contractor or
      subcontractor to liability for only such harm as is done by the
      particular work entrusted to him.

      Additionally, comment a to this provision outlines that § 384 “applies

to a person who on behalf of the possessor of land erects thereon a

structure or creates any other artificial condition, whether in so doing he is

acting as the possessor's servant or as an independent contractor, and

whether he does the work for reward or gratuitously.” Under the evidence

presented by Appellant, Tsimura is subject to liability pursuant to § 384

since Mr. Tsimura was the contractor placed in charge of overseeing the

construction of the scaffolding by the landowner and the scaffolding was a

structure with a dangerous character, which caused Appellant’s harm.

      Herein, the trial court concluded that there was no evidence that

Mr. Tsimura was in charge of the job at Mr. Sivchuk’s residence.          We

disagree. Mr. Sivchuk, in his deposition, repeatedly stated that Mr. Tsimura

was the sole field manager and supervisor over all jobs assigned to Four

Brothers’ carpentry contractors. Mr. Sivchuk reported that he did not visit

worksites absent customer complaints. Mr. Shostak confirmed that all the

carpentry contractors were told by both Mr. Sivchuk and Mr. Tsimura that




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Mr. Tsimura was the supervisor of the jobs that they were assigned through

Four Brothers.

      Appellant also presented evidence that the job in question, even

though it was at Mr. Sivchuk’s residence, was assigned to him through Four

Brothers and that Mr. Tsimura was in control of the job as a supervisor.

Appellant was not contacted by Mr. Sivchuk. Rather, he went to the building

that he reported to each morning for his work assignments from Four

Brothers, and he received his work order from Mr. Tsimura, who traveled

with him to the residence and directed Appellant to assemble the scaffolding

and inspected it afterwards.    Mr. Tsimura had OSHA scaffolding training

while Appellant did not. Hence, Appellant presented sufficient evidence that

there was a genuine issue of material fact as to whether Mr. Tsimura was in

control of the installation of molding on the ceiling and the construction of

the scaffolding so as to subject Tsimura to liability under Restatement § 384.

      Appellant also contends that Tsimura had a duty to him under

Farabaugh v. Pennsylvania Turnpike Com'n, 911 A.2d 1264 (Pa. 2006),

wherein our Supreme Court applied Restatement (Second) of Torts § 324A,

liability to third person for negligent performance of undertaking.         In

Farabaugh, the plaintiff’s decedent was killed during the course of his work

for the general contractor of a worksite while he was driving his truck across

a road used to haul materials. The plaintiff instituted an action against the

construction manager of the construction site and claimed that the road had

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not been properly maintained and that the safety violations were the

proximate cause of the incident that killed the decedent.

     Our Supreme Court reversed the grant of summary judgment in favor

of the construction manager since the construction manager had assumed a

contractual obligation to inspect and otherwise monitor the jobsite.       It

concluded that the construction manager owed the plaintiff’s decedent a

duty pursuant to § 324A. That portion of the Restatement provides:

     One who undertakes, gratuitously or for consideration, to render
     services to another which he should recognize as necessary for
     the protection of a third person or his things, is subject to
     liability to the third person for physical harm resulting from his
     failure to exercise reasonable care to protect his undertaking, if

           (a) his failure to exercise reasonable care increases
           the risk of such harm, or

           (b) he has undertaken to perform a duty owed by
           the other to the third person, or

           (c) the harm is suffered because of reliance of the
           other or the third person upon the undertaking.

Restatement (Second) of Torts, § 324A. The Farabaugh Court stated that,

         Generally, a party to a contract does not become liable for a
     breach thereof to one who is not a party thereto. However, a
     party to a contract by the very nature of his contractual
     undertaking may place himself in such a position that the law
     will impose upon him a duty to perform his contractual
     undertaking in such manner that third persons—strangers to the
     contract—will not be injured thereby. It is not the contract per se
     which creates the duty; it is the law which imposes the duty
     because of the nature of the undertaking in the contract.




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Id. at 1283; see also Casselbury v. American Food Service, 30 A.3d

510, 511 (Pa.Super. 2011) (where defendant agreed to provide food

services for owner of a business, defendant had contractual obligation to

perform that undertaking in safe manner and was subject to liability to

person who was purportedly injured due to negligent performance of that

responsibility); cf. Moranko v. Downs Racing LP, 118 A.3d 1111

(Pa.Super. 2015) (en banc) (§ 324A was inapplicable when defendant

contracted directly with the plaintiff’s decedent to perform the services that

purportedly subjected defendant to liability and thus decedent was not a

third party in the scenario at issue). Notably, this duty can be imposed only

when the defendant has specifically undertaken a contractual responsibility

for the safety of the subject of the contract.       Reeser v. NGK North

American, Inc., 14 A.3d 896 (Pa.Super. 2011) (where engineering firm’s

only contractual undertaking was to report to plant owner the levels of a

particulate emanating from plant, as opposed to engaging in actions

involving plant safety, a member of the public allegedly injured by high

levels of that particulate could not recover against engineering firm).

      We concur with Appellant that he presented sufficient evidence to

create a genuine issue of material fact as to whether Mr. Tsimura had a duty

under § 324A, as follows.     Mr. Tsimura was under a verbal contract with

Sivchuk to supervise the worksites on Four Brothers’ projects and was the

sole manager of the construction site on the day of the accident. He was

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paid to perform his managerial services by Four Brothers and received OSHA

scaffolding training every three months. Thus, Mr. Tsimura undertook, for

consideration, to render services for Sivchuk and should have recognized

that, as the job-site supervisor, he needed to protect Appellant, a third-party

stranger to the contract between Sivchuk and Mr. Tsimura who was working

under Mr. Tsimura’s direction. Appellant’s proof also was sufficient to create

a genuine issue of material issue of fact that Mr. Tsimura failed to exercise

reasonable care and created a risk of harm to Appellant during his

undertaking when Mr. Tsimura failed to ensure that the two-story scaffolding

had a guardrail to prevent Appellant from falling as he was working on the

two-story cathedral ceiling. Indeed, this case bears remarkable resemblance

to the facts examined in Farabaugh.

      On   appeal,   Tsimura   relies   upon   testimonial   statements   that

Mr. Sivchuk and Mr. Shostak made during their depositions that Mr. Sivchuk

was in control of the job at his home.         However, Appellant presented

countervailing evidence. First, he established that this job was treated the

same as other undertakings assigned to him by Four Brothers, and

Mr. Tsimura, not Mr. Sivchuk, assigned him the task and was present at the

job site when the accident occurred. When we credit Appellant’s evidence,

as we must in this context, it refutes that Mr. Sivchuk was in control of this

particular job. Furthermore, it is established that under the Nanty-Glo rule,

summary judgment may not be granted based upon testimonial evidence

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presented by the moving party.        A jury may choose not to credit the

testimony of any witness presented by Tsimura.

      Appellant   additionally   premises     liability   against   Tsimura   upon

Restatement (Second) of Torts § 392, chattel dangerous for intended use.

Initially, we observe that, “This Court has relied upon Section 392 as setting

forth Pennsylvania law regarding negligent supply of a chattel.”         Drum v.

Shaull Equipment and Supply Co., 787 A.2d 1050, 1063 (Pa.Super.

2001) (citing Fullard v. Urban Redevelopment Authority of Pittsburgh,

293 A.2d 118 (Pa.Super. 1972)); see also Lambert v. Pittsburgh Bridge

and Iron Works, 344 A.2d 810 (Pa. 1975) (citing § 392 with approval).

      That section provides:

      One who supplies to another, directly or through a third person,
      a chattel to be used for the supplier's business purposes is
      subject to liability to those for whose use the chattel is supplied,
      or to those whom he should expect to be endangered by its
      probable use, for physical harm caused by the use of the chattel
      in the manner for which and by person for whose use the chattel
      is supplied

            (a) if the supplier fails to exercise reasonable care to
            make the chattel safe for the use for which it is
            supplied, or

            (b) if he fails to exercise reasonable care to discover
            its dangerous condition or character, and to inform
            those whom he should expect to use it.

Restatement (Second) of Torts § 392.

      Appellant avers that Tsimura supplied the scaffolding in question for

purposes of its business and failed to exercise reasonable care to make the


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chattel safe for the use for which it was supplied. He notes that Mr. Tsimura

took possession of the scaffolding by directing Appellant to construct it,

inspect it, and telling Appellant to use it.      Appellant also notes that

Mr. Tsimura undertook this task while he was performing his business as

supervisor for Four Brothers’ projects.

      Tsimura counters that it did not supply the scaffolding because it did

not own it. However, under § 392, a supplier of a chattel does not have to

be its owner. Comment c, entitled ownership of chattel immaterial, states,

“In order that the rule stated in this Section shall apply, it is not necessary

that the chattel be owned by the one who supplies it. It may be leased to

him or borrowed by him.” An actor is a supplier if he had either “possession

or control of it for the purpose of using it in connection with his business,

and that he has supplied it for such purpose.”      Restatement (Second) of

Torts § 392, comment c.

      It must be recalled that the relationship among the parties was that of

independent contractors.     Tsimura’s business was to supervise worksite

operations for Four Brothers and the work of Four Brothers’ other

independent contractors, including Appellant.    Appellant did not bring the

scaffolding to the job.    Rather, Mr. Tsimura, as agent for his business,

exercised control over the scaffolding when instructing Appellant to build and

use it so that Appellant could perform his job. This direction of the use of

the chattel constituted borrowing of the item for Tsimura’s business


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J-E02004-14




purposes of supervising and ensuring completion of the job.      Thus, there

was sufficient evidence to create a genuine issue of material fact as to

whether Tsimura took possession and control of that item in furtherance of

Tsimura’s business as supervisor of the job in question.     The trial court

therefore improperly granted summary judgment as to Appellant’s c

Restatement § 392 claim.

      Finally, Appellant maintains that Tsimura is subject to liability under

the common law negligence principle, as outlined in Duffy v. Peterson, 126

A.2d 413, 416 (Pa. 1956), that “[a]ll individual sub-contractors engaged in a

common enterprise owe to each other the duty of care required to business

visitors.”   Our Supreme Court analyzed this duty in McKenzie v. Cost

Brothers, Inc., 409 A.2d 362 (Pa. 1979).       Therein, an employee of one

subcontractor at a construction site was injured by a dangerous condition

created by another subcontractor’s employee, and no warning about the

danger was placed at the jobsite.           A nonsuit was granted to the

subcontractor who employed the worker who created the hazard, and our

Supreme Court reversed.        It reiterated that “a subcontractor on a

construction job owes to employees of other subcontractors, on the same

site, the care due a business visitor from a possessor of land.” Id. at 364.

See also Staub v. Toy Factory, Inc., 749 A.2d 522 (Pa.Super. 2000)

(applying McKenzie). Under Restatement § 343,




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      A possessor of land is subject to liability for physical harm
      caused to his invitees by a condition on the land if, but only if,
      he

             (a) knows or by the exercise of reasonable care
             would discover the condition, and should realize that
             it involves an unreasonable risk of harm to such
             invitees, and

             (b) should expect that they will not discover or
             realize the danger, or will fail to protect themselves
             against it, and

             (c) fails to exercise reasonable care to protect them
             against the danger.

Restatement (Second) of Torts § 343.

      Appellant, a contractor of Four Brothers, presented sufficient evidence

to create a material fact that Tsimura, as another contractor on the same

job, created a dangerous condition on Mr. Sivchuk’s land that was the

proximate cause of Appellant’s injuries. Mr. Tsimura was in control of the

jobsite when the accident occurred.       He directed Appellant to erect the

scaffolding, inspected it after that task was performed, and told Appellant to

use it.   Due to his OSHA scaffolding training, Mr. Tsimura knew or should

have known that OSHA required the scaffolding to include a guardrail and

that the absence of that guardrail created the risk of a fall, which was

suffered by Appellant.    Appellant did not have training and Mr. Tsimura

should have expected that appellant would not realize the danger he faced.




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        In light of the foregoing, we conclude that Appellant adduced sufficient

evidence to subject Tsimura to liability and that summary judgment was

improperly granted in Tsimura’s favor.

        Order reversed. Case remanded. Jurisdiction relinquished.

        Judge Allen did not participate in the consideration or decision of this

case.

        Former Judge, now Justice Wecht, did not participate in the

consideration or decision of this case

        Judge Jenkins did not participate in the consideration or decision of

this case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/15/2016




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