J-A04008-15



     NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CARRI COLLINGWOOD, INDIVIDUALLY;                       IN THE SUPERIOR COURT OF
AS ADMINISTRATRIX OF THE ESTATE OF                           PENNSYLVANIA
SHAWN M. COLLINGWOOD, DECEASED;
AND AS PARENT AND NATURAL
GUARDIAN OF CAITLIN COLLINGWOOD,
A MINOR AND CARLENE COLLINGWOOD,
A MINOR,

                                    Appellants

                             v.

O’BRIEN’S RENT ALL AND SALES INC.,
JOHN MILNER, EICKHOFF
CORPORATION, AND CONSOL
PENNSYLVANIA COAL COMPANY,


APPEAL OF: CONSOL PENNSYLVANIA
COAL COMPANY,

                                   Appellees                No. 547 WDA 2014

                          Appeal from the Judgment Entered April 2, 2014
                       In the Court of Common Pleas of Washington County
                                Civil Division at No(s): 2010-2186


BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                             FILED OCTOBER 19, 2015

        In this appeal, Consol Pennsylvania Coal Company (“Consol”) challenges the

trial court’s conclusion that it is not entitled to contractual indemnification from

Eickhoff Corporation (“Eickhoff”) for the amount it was required to pay in this

____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
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personal injury action due to the negligence of O’Brien’s Rent All and Sales, Inc.,

(“O’Brien’s”) and John Milner, an employee of O’Brien’s. After careful review, we

affirm.

      On December 8, 2005, Shawn Collingwood was driving past a flatbed

tractor-trailer truck when a metal object dislodged from the truck and flew into Mr.

Collingwood’s vehicle, killing him instantly. The truck in question was owned by

O’Brien’s and was being driven by Mr. Milner.     The 126-pound metal item that

struck Mr. Collingwood was a pin from a piece of mining equipment known as a

long wall coal shearer.     The shearer was owned by Consol and was being

transported by O’Brien’s to Eickhoff for refurbishment.

      A shearer is used to perform underground coal mining. It consists of a body,

two ranging arms, four pins that secure the ranging arms to the body, and drums

attached to the end of the arms.     On the day of the accident, the body of the

shearer involved in this accident was loaded onto O’Brien’s flatbed tractor-trailer

truck at Consol’s Enlow Fork Mine in West Finley, Washington County. Mr. Milner

placed three pins inside a storage compartment of the vehicle.      Mr. Milner was

traveling south on Route 221, and, as he rounded a curve in the road, the fourth

pin flew from the truck and struck Mr. Collingwood as he drove past the truck in

the opposite direction.

      In May 2006, Mrs. Collingwood, individually, in her capacity as administratrix

of her husband’s estate, and as guardian of their two minor children, instituted a

personal injury action against Consol, O’Brien’s, Mr. Milner, and Eickhoff. Consol

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filed a cross-claim against Eickhoff, maintaining, inter alia, that Eickhoff had

contractually agreed to indemnify Consol for Eickhoff’s negligence and for O’Brien’s

negligence. Mrs. Collingwood settled with Eickhoff, which then moved for and was

granted summary judgment. Consol also filed a motion for summary judgment as

to its claimed right to contractual indemnification against Eickhoff.       After a

response and cross-motion for summary judgment on the issue from Eickhoff, the

trial court ruled that Consol was not contractually entitled to indemnification from

Eickhoff for O’Brien’s negligence and entered judgment in favor of Eickoff.    Mrs.

Collingwood thereafter settled with O’Brien’s and Mr. Milner for $1,000,000.

     On September 10, 2012, the case proceeded to a jury trial, where the only

named defendants were Consol and O’Brien’s/Milner. The jury found O’Brien’s to

be ninety percent negligent in causing Mr. Collingwood’s death and Consol to be

ten percent negligent.    It awarded Mrs. Collingwood $3,272,000.         Post-trial

motions were filed by Mrs. Collingwood and Consol.      The verdict was molded to

reflect the settlements with O’Brien’s and Eickhoff, and delay damages were

awarded to Mrs. Collingwood.      On April 2, 2014, judgment in the amount of

$2,645,144.25 was entered against Consol.

     Consol filed this appeal, raising six issues, and Mrs. Collingwood filed a

cross-appeal. After the appeal was filed, Consol and Mrs. Collingwood reached a

settlement of their claims.    They filed with this Court a joint application to

discontinue the Collingwood appeal entirely and to dismiss all but one of the issues




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raised by Consol in its appeal. Specifically, Consol articulates the one remaining

issue as follows:

      A. Was it proper to deny [Consol’s] motion for summary judgment and
      grant Eickhoff's motion for summary judgment as to [Consol’s] claim
      for contractual indemnity despite a clear course of dealing showing
      that Eickhoff agreed to indemnify [Consol] for the negligence of
      Eickhoff's subcontractors?

Appellant’s brief at 4.

      This contention concerns the cross-motions for summary judgment filed by

Eickhoff and Consol as to Consol’s claim for contractual indemnification.    In the

summary judgment setting, the following standards apply:

             “Our standard of review of an order granting summary judgment
      requires us to determine whether the trial court abused its discretion or
      committed an error of law, and our scope of review is plenary.” Petrina
      v. Allied Glove Corp., 46 A.3d 795, 797–798 (Pa.Super. 2012)
      (citations omitted). “We view the record in the light most favorable to
      the nonmoving party, and all doubts as to the existence of a genuine
      issue of material fact must be resolved against the moving party.”
      Barnes v. Keller, 62 A.3d 382, 385 (Pa.Super. 2012), citing Erie Ins.
      Exch. v. Larrimore, 987 A.2d 732, 736 (Pa.Super. 2009) (citation
      omitted). “Only where there is no genuine issue as to any material fact
      and it is clear that the moving party is entitled to a judgment as a
      matter of law will summary judgment be entered.” Id.

Rourke v. Pennsylvania Nat. Mut. Cas. Ins. Co.               116 A.3d 87, 96 -

97 (Pa.Super. 2015) (citation omitted).      The issue in question requires us to

examine the contract between Eickhoff and Consol for the rebuild in order to

determine whether the factual underpinning of Consol’s claim, which is that

O’Brien’s was Eickhoff’s subcontractor under the contract in question, is correct.

“The interpretation of any contract is a question of law and this Court's scope of



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review is plenary. Moreover, we need not defer to the conclusions of the trial court

and are free to draw our own inferences.” Stephan v. Waldron Elec. Heating

and Cooling LLC, 100 A.3d 660, 665 (Pa.Super. 2014).

     We garner the pertinent facts from the cross-motions for summary judgment

filed on this question.   In the past, Consol both purchased new shearers from

Eickhoff and had Eickhoff rebuild previously-purchased shearers.      When Consol

either purchased a new shearer or contracted for a rebuild, Consol would

disseminate to Eickhoff a purchase order with an assigned number.        The initial

pages of the purchase orders contained either the terms and conditions for the

purchase of a new shearer or a detailed description of the refurbishing work to be

performed by Eickhoff. These first pages were followed by a single page indicating

that the purchase order also was subject to terms and conditions incorporated by

reference. On that page, Consol’s purchasing agent executed the purchase orders,

but there was no corresponding signature line for Eickhoff, and Eickhoff never

signed any purchase order, including the one pertaining to the rebuild in question.

After Eickhoff completed the work outlined in the purchase order, it would invoice

Consol for either the shearer or the rebuild by utilizing the purchase order number

previously assigned by Consol.

     The indemnification provision that Consol seeks to enforce herein was one of

the terms and conditions that were incorporated by reference in every purchase

order disseminated by Consol, which is referred to as Buyer, to Eickhoff, which is

referenced as Seller. It provided:

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           Seller agrees to indemnify and defend Buyer its shareholders,
     directors, officers and employees, and hold each of them harmless
     from and against any and all claims, liabilities, losses, damages and
     expenses resulting, in whole or in part, from (1) any act or omission,
     negligent or otherwise, by Seller, or Seller’s agents, subcontractors or
     assigns in carrying out this contract, or (2) breach of any warranty or
     agreement hereunder. . . . Matters covered by this indemnity include,
     but are not limited to, settlements, judgments, court costs, attorney’s
     fees and other litigation expenses incurred by [Consol] arising out of
     actual or alleged (1) injury to or death of any person[.]

     Consol’s position on appeal is that O’Brien’s was Eickhoff’s subcontractor

when it was transporting the shearer to Eickhoff. The specific purchase order for

the rebuild at issue in this case was number 4700095338. The first seven pages

of the purchase order outlined the work to be performed by Eickhoff. That work

included 1) mechanical requirements, 2) actions that had to be performed by

Eickhoff with respect to hydraulics, lubrication and the water system; 3) and work

to be undertaken by Eickhoff on the electrical system.     Additionally, those first

seven pages contained the price that Consol would pay for the rebuild and

indicated that the equipment had to comply with thirteen outlined requirements

contained in a specification adopted by Consol.    Under the contract, the drums

were left at the mine, Consol performed the rebuild work on the drums, and the

drums were shipped to Eickhoff for testing once the rebuild process on the body

was completed by Eickhoff.

     The purchase order at no point stated that the work to be performed by

Eickhoff included retrieval of the shearer from Consol and transport of the shearer

to Eickhoff. Rather, the purchase order indicated that transportation costs were to



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be prepaid by Eickhoff and then billed directly to Consol as a separate line item

when Consol was billed for the cost of the rebuild. Consol Pennsylvania Coal

Company’s Appendix of Exhibits in Support of Motion for Summary Judgment

Against Eickhoff Corporation, 7/21/10, at Appendix 5, page 9 (Eickhoff required to,

“Prepay all transportation charges, state transportation charges separately from

materials charged on invoices.     Attach to the invoice documentation to support

transportation charges.”). Consistent with this language, the purchase order, in a

header on the first seven pages, stated: “Incoterms SPB SP/PPD&Add.” Id. at 1-

7. Consol never established the meaning of “SPB,” but did prove that the initials

“SP/PPD&ADD” meant, “shipping point, prepaid and add.” Appendix of Documents

Referenced in Support of Eickhoff Corporation’s Several Motions for Summary

Judgment-Vol. 1, Appendix 2, Deposition of Don Dyky, 3/19/09, at 139.

      Don Dyky was Consol’s purchasing agent, and he drafted and executed the

purchase order in question. When deposed, Mr. Dyky was asked whether it was “a

term of this purchase order that Eickhoff is responsible for shipping the shearer

before it is refurbished and after?   Is that a term of this purchase order . . . ?”

Id. at 138.   Mr. Dyky responded, “It’s a prepaid add situation, so they can go

ahead and do that and add the invoice amount to the purchase order.” Id.      When

asked if the contract, which Mr. Dyky drafted, placed the obligation upon Eickhoff

to arrange for shipping, Consol objected to him answering that question, and

stated that that question “calls for contract interpretation.” Id. at 139.




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        Consol established that Vanessa Taddeo, who worked for Eickhoff and was

responsible for its trucking arrangements, contacted O’Brien’s to arrange for it to

transport the shearer from Enlow Fork Mine to Eickhoff for refurbishing.      Keith

Michael Kinsella was vice president and manager of Eickhoff. He agreed that the

contract required Eickhoff to pay transportation costs in advance and then wait to

bill Consol for those costs until the rebuild was completed and understood the

contract to require that Eickhoff make the transportation arrangements to have

the shearer taken from the Enlow Fork Mine and delivered to Eickhoff’s facility. It

is uncontested that Eickhoff used various trucking companies for the delivery of its

shearers and was not in the business of transporting mining equipment that it sold

or refurbished. Eickhoff used O’Brien’s to send and retrieve shearers with respect

to Consol because O’Brien’s was a preferred vendor of Consol.         O’Brien’s had

equipment and employees present at the Enlow Fork Mine daily.1



____________________________________________
1
  When it obtained summary judgment in its favor in this litigation and was
removed as a named defendant, Eickhoff relied upon the depositions of
eyewitnesses to establish that none of its employees played any role in either the
preparation of the shearer for loading or the actual loading of the shearer.
Instead, O’Brien’s and Consol personnel were present during those operations.
One of Eickhoff’s employees, Patrick Monahan, was present when Mr. Milner
unloaded a refurbished shearer at Consol’s Bailey Mine, which shared an entrance
with the Enlow Fork Mine. Mr. Monahan then briefly stopped by the Enlow Fork
Mine to verify that Consol and O’Brien’s employees were going to load and
transport the shearer at issue herein. Pennsylvania State Trooper Douglas Bartoe,
the lead investigating officer after the accident, indicated that he did not uncover
any information to contradict Mr. Monahan’s report that he did not participate in
the loading of the shearer at the Enlow Fork Mine.



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        In responding to the motion for summary judgment on the claim for

contractual indemnity, Eickhoff maintained, inter alia, that O’Brien’s was not its

subcontractor for purposes of the rebuild.               In resolving the cross-motions for

summary judgment, the trial court first concluded that the indemnification term

was unenforceable based upon the fact that Eickhoff never expressly agreed to

that term by executing any purchase order. The trial court alternatively ruled that

the indemnification provision was inapplicable since there was no evidence that

Eickhoff or any of its agents or subcontractors or assigns committed any act or

omission that may have caused the accident.2

        On appeal, Consol maintains the indemnification provision is triggered

because O’Brien’s was Eickhoff’s subcontractor for purposes of the refurbishing

contract.        It makes scant effort to establish the critical factual premise of its

position on appeal.                  Specifically, Consol offers no definition of the term

“subcontractor” and makes only conclusory statements about why O’Brien’s, which

is a trucking company unaffiliated with Eickhoff, should be considered a

subcontractor of Eickhoff under the contract at issue herein.




____________________________________________
2
   We affirm the trial court’s conclusion that O’Brien’s was not encompassed by the
indemnification provision by rejecting Consol’s argument that O’Brien’s was a
Eickhoff’s subcontractor. We therefore do not reach either the question of whether
the terms and conditions attached to the purchase order were part of the contract
between Consol and Eickhoff or the issue of whether the indemnification provision
is, in and of itself, unenforceable since Eickhoff never expressly agreed to that
clause.


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      Consol’s argument in this respect is limited to two sentences.      It states,

“Relative to the rebuild at issue, as required by the Purchase Order, Eickhoff

contacted and contracted with O’Brien’s for the transportation of the longwall coal

shearer from [Consol’s] Enlow Fork Mine to Eickhoff’s facilities in Moon Township,

Pennsylvania.”    Consol’s brief at 23-24.      Consol cites to one page of the

reproduced record containing a portion of its motion for summary judgment. In its

reply brief, Consol maintains that “Eickhoff representatives understood that the

plain language of the Purchase Orders required Eickhoff to arrange for shipping

and Eickhoff acted accordingly for every coal shearer rebuild.” Consol’s Reply Brief

at 2. Consol then cites portions of the reproduced record without elaborating on

the contents.    We have reviewed the cited portions of the reproduced record,

which are deposition excerpts from Mr. Kinsella and Ms. Taddeo wherein those

witnesses indicate that they understood that the contract required Eickhoff to

prepay the transportation costs and then bill them to Consol and that Eickhoff

would arrange for transportation.

      We first articulate the definition of a subcontractor. In Clifford F. MacEvoy

Co. v. U.S. for Use and Benefit of Calvin Tomkins Co., 322 U.S. 102 (1944),

the United States Supreme Court had to determine the meaning of the word

subcontractor for purposes of a federal statute, which made no “attempt to define

the word” itself. Id. at 108. The Court looked at the common law meaning of the

term and stated, “In a broad, generic sense a subcontractor includes anyone who

has a contract to furnish labor or material to the prime contractor. . . . Under the

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more technical meaning, as established by usage in the building trades, a

subcontractor is one who performs for and takes from the prime contractor a

specific part of the labor or material requirements of the original contract.” Id. at

108-09 (footnote omitted).

        More recently, our own Supreme Court interpreted the term subcontractor.

In Bricklayers of Western Pennsylvania Combined Funds, Inc. v. Scott's

Development Co., 90 A.3d 682 (Pa. 2014), the Court had to determine whether

the Mechanics' Lien Law of 1963 (“the Act”) authorized employee benefit trust

funds operated for two unions to file mechanic’s liens on behalf of union members

after the union members performed work for a contractor at a construction site.

At issue was whether the union workers were “subcontractors” pursuant to the

Act.

          The trial court held that the union workers did not fall within the meaning of

“subcontractor” as that term is defined by the Act.3 Our Supreme Court affirmed

____________________________________________
3
    Under the mechanics’ lien law, a subcontractor is defined as:

        one who, by contract with the contractor, or pursuant to a contract with
        a subcontractor in direct privity of a contract with a contractor, express
        or implied, erects, constructs, alters or repairs an improvement or any
        part thereof; or furnishes labor, skill or superintendence thereto; or
        supplies or hauls materials, fixtures, machinery or equipment
        reasonably necessary for and actually used therein; or any or all of the
        foregoing, whether as superintendent, builder or materialman. The term
        does not include an architect or engineer who contracts with a
        contractor or subcontractor, or a person who contracts with a
        materialman or a person who contracts with a subcontractor not in
        direct privity of a contract with a contractor.
(Footnote Continued Next Page)

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the trial court’s conclusion that the union members were employees and not

subcontractors of the contractor.                In interpreting the Act, it relied upon the

building trade definition of subcontractor, as outlined by the United States

Supreme Court, and held, “a subcontractor is generally understood to be a person

or business ‘who performs for and takes from the prime contractor a specific part

of the labor or material requirements of the original contract, thus excluding

ordinary laborers and materialmen.’” Id. (partially quoting Clifford F. MacEvoy

Co., supra at 109) (emphasis omitted).

        With this definition in mind, we examine the contract in question.              The

purchase order was a request that Eickhoff refurbish the shearer at issue in this

accident, and there were seven pages outlining Eickhoff’s obligations in that

respect.      Nothing in the description of the work to be performed by Eickhoff

indicated that the work included the retrieval of the shearer from Consol’s mine

and the delivery of that shearer to Eickhoff’s facility. A subcontractor is a company

that performs for or takes from the prime contractor a specific part of the labor or

material requirements assumed by the original contractor under the contract at

issue. Eickhoff agreed to rebuild the shearer. Thus, if Eickhoff engaged another

company to perform the electric work that it was required to perform in order to

complete the rebuild of the shearer, that company would be a subcontractor.
                       _______________________
(Footnote Continued)

49 P.S. § 1201(5).




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O’Brien’s did not perform any of the refurbishing work that Eickhoff agreed to

perform and it did not supply any materials for the refurbishing process.

       Indeed, the fact that Eickhoff had to “arrange for transportation” and then

prepay it and invoice separately for it does nothing more than reinforce the

conclusion that the work that Eickhoff was to perform under the contract did not

include transporting the shearer. If Eickhoff was required, as part of the work to

be performed under the contract, to retrieve and deliver the shearer, Eickhoff

would not have had to arrange to have that work performed by an independent

trucking company.         Eickhoff sells and refurbishes shearers.   It does not provide

transportation services.        In fact, Eickhoff established that it engaged various

trucking companies to perform that function.

       Given the clear and unequivocal language of the contract outlining the work

that Eickhoff agreed to perform, we cannot conclude that O’Brien’s was a

subcontractor of Eickhoff under the contract in question. In the absence of such a

relationship, the indemnification provision does not apply, and we need not reach

the issue of its enforceability. Hence, we affirm.

       Judgment affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/19/2015

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