J-A09035-14


NON-PRECEDENTIAL DECISION           SEE SUPERIOR COURT I.O.P 65.37

BURLINGTON COAT FACTORY OF                   IN THE SUPERIOR COURT OF
PENNSYLVANIA, LLC AND BURLINGTON                   PENNSYLVANIA
COAT FACTORY WAREHOUSE
CORPORATION,

                       Appellants

                  v.

GRACE CONSTRUCTION MANAGEMENT
COMPANY, LLC,

                       Appellee                   No. 2036 EDA 2013


                Appeal from the Order Entered June 14, 2013
           In the Court of Common Pleas of Philadelphia County
          Civil Division at No(s): October Term, 2011 No. 001844


BEFORE: BOWES, OTT, and JENKINS, JJ.

CONCURRING AND DISSENTING MEMORANDUM BY BOWES, J.:

FILED SEPTEMBER 15, 2014

     I agree with my distinguished colleagues that BCF is not entitled to

summary judgment as a matter of law based on the indemnification clauses




                              Ruzzi v. Butler Petroleum Co., 588 A.2d 1,

4 (Pa. 1991).
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        Grace does not dispute, however, that it agreed to indemnify BCF (but

not BCFPA or BCFWC) against losses or claims to the extent Grace or its

subcontractors or their employees were negligent or otherwise responsible.1

Thus, whether BCF can ultimately prevail on the merits of its indemnification

claim depends on whether it can prove that Grace and/or Eddis were sole or

contributing causes of the harm to Mr. Eddis. The trial court concluded, and

the majority agrees that, BCF failed to submit sufficient evidence that Grace

                         caused



                                                        e of the accident to BCF
                                                    2
                                                        Majority Memorandum,




contribution.    Id. I respectfully disagree.

        After a thorough review of the record and pleadings below, I do not



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1
  There is evidence in the record that Grace doubted the legitimacy of Mr.
              See                                      nt, Exhibit H (email
dated October 1, 2012, from counsel for Grace to counsel for BCF).
2

plaintiffs in the underlying action, Mr. and Mrs. Eddis, entered into a release
                                                                            See

¶ 31.



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causation as a ground for entry of summary judgment with sufficient

specificity

the lack of an expert report is contained in ¶ 42 of its summary judgment

                       supra, the record is devoid of any expert report opining

or establishing that Grace violated the standard of care of a general

contractor or construction manager, or that Grace was negligent in any



an expert report was required to establish a prima facie negligence case

and avoid summary judgment.3



Since the issue was not clearly asserted as the basis for summary judgment

in the trial court, BCF was not placed on notice that it would be required to

meet this allegation to avoid summary judgment.

                                                     MIIX Insurance Co. v.

Epstein, 937 A.2d 469 (Pa.Super. 2009), for its holding that an expert

report was indispensable in this case, is misplaced. That contribution action

arose out of a professional negligence action.       The defendant physicians
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3

unenforceable because BCF contracted using its trade name; that operation,
maintenance, and repair of the freight elevators was outside the scope of

indemnity claims; that the contract language did not provide indemnification
                           See Defendant, Grace Construction Management




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were not sued in the original action. The trial court reasoned, and this Court

agreed, that since the indemnity claims were actually claims of medical

malpractice, and since a medical malpractice plaintiff generally must produce

expert medical testimony to maintain such an action, expert medical

testimony was required to maintain the indemnity action. We acknowledged

therein that the ruling was consistent with well-established authority

                             the complexities of the human body place

questions as to the cause of pain or injury beyond the knowledge of the

                                                                     produce

the opinion of a medical expert to demonstrate the elements of his cause of

          Hamil v. Bashline, 392 A.2d 1280, 1285 (Pa. 1978).           Expert

medical opinion addressing the elements of a cause of action within a

reasonable degree of medical certainty was necessary to establish a prima

facie case and avoid summary judgment.



allegations that those defendants were negligent in the maintenance and

upkeep of the freight elevator and, as a result, it malfunctioned and caused



prove the applicable standard of care; causation could be inferred from the




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facts surrounding the incident.4 BCF was not required to produce an expert

report disputing causation in the underlying action. In order to prove a right

to indemnification, BCF must prove negligence on the part of Mr. Eddis or

Grace or both and that such negligence caused or contributed to the injury.

The causal connection between the elevator gate and the alleged injury was

obvious. The real issue was whether the injuries were negligently inflicted

and, if so, which party or parties were responsible.    A jury of laypersons

could look at the evidence and determine whether the injury resulted from



                                                                         e to



elevator.

       When determining whether Grace is entitled to summary judgment, we

view the record in the light most favorable to BCF, the non-moving party. If

there are genuine is

injuries, summary judgment is not proper.         I believe that BCF, who



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4
   Had the action been brought in strict liability against the elevator
manufacturer, evidence that the product malfunctioned would have supplied
circumstantial proof of a defect. See Wiggins v. Synthes (U.S.A.), 29
A.3d 9 (Pa.Super. 2011) (patient was not required to present testimony that
orthopedic screws were defective under the malfunction theory as the jury
could infer the existence of a defect from circumstantial evidence that they
broke).



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material fact that warrant submission of that issue to a jury. See Pa.R.C.P.



sound or that the safety shoe mechanism did not retract upon contact, which

arguably implicated BCF, that evidence was controverted.          Furthermore,

there was ev

elevator caused or at least contributed to his injury. Additionally, there was

evidence that Grace failed to enforce workplace safety rules and supervise

its subcontractors and their employees when it permitted workers like Mr.

Eddis to operate the freight elevator.



deposition that he taught Mr. Eddis and others how to operate the elevator.

Mr. Cromwell showed the group the run/stop switch, and demonstrated its

importance.

      In fact, at that moment once we stepped on the elevator, I put
      on the stop. I explained to everyone in the room that the reason
      for the stop switch is to hold that elevator open on that floor
      where you are. And the only way the elevator can move is if you
      take it off that stop and put it in the run mode and then you
      would have to push whatever the designated floor you wanted to
      go to, you would push that button to whatever floor you will go
      to. And the elevator in turn will respond to you. Once you take
      it out of stop and put it into run [,] the inner door and outer door
      will close, and the elevator will take you to your designated floor
      you want to go to.

Deposition of Kevin Cromwell, 5/24/12, at 20. He also cautioned them not

to stand in the pathway of the door and reinforced that the elevator had to

be in stop mode during the loading or unloading process. Id. at 21, 26. Mr.


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Cromwell stayed on the elevator with Mr. Eddis and the others while they

demonstrated for him that they understood how to use the elevator

properly. Id. at 30.

       Mr. Cromwell explained that the gate inside the elevator was equipped

with a mechanism that reversed itself upon contact with an obstruction. The

expert in the underlying case against BCF and Schindler called this a safety

shoe mechanism that automatically reversed the direction of the closing gate

upon impact.5      Mr. Cromwell also explained how the warning bell worked.

                                                            Id. at 37. Once

the elevator was placed into run mode and a floor selected, the bell would

ring before the doors closed. Id. at 38. The expert confirmed that, based

upon his subsequent inspection of the freight elevator, the alarm bell would

ring for several seconds before the metal gate came down inside the

elevator car and the two external vertical doors closed.   Expert Report, J.

Pablo Ross, P.E., 8/31/12, at 5.

       After Mr. Eddis apprised him of the accident, Mr. Cromwell prepared a



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5
  The expert noted in his report that, at the time of his investigation, the
elevator also was equipped with a proximity edge mechanism that consisted
of a set of infrared beams that detected an obstruction in its path and which
would prevent the gate from closing until the obstruction was removed.
That device had not been installed on the freight elevator in question when
the alleged injuries occurred herein. Expert Report, J. Pablo Ross, P.E.,
8/31/12, at 6.



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telephoned and then expedit

he was able to access and view video surveillance of the incident.      Since

there was no audio with the video, he was unable to discern whether the bell

sounded to indicate that the elevator gate was closing.         However, he

described how Mr. Eddis entered the elevator with a wheelbarrow, and then

exited and reentered the elevator a second time with his back to the

elevator entrance. As he did so, Mr. Eddis pressed a button designating his

destination floor, and th

mid-back region and went back up. Mr. Cromwell testified that as Mr. Eddis

entered the elevator, it was in the run mode rather than the stop mode, and

that by pressing the floor button, Mr. Eddis activated the closing of the door

upon himself. The video depicting the accident was subsequently lost due to

a power brownout.

      Mr. Eddis admitted that Mr. Cromwell instructed him in the operation

of the elevator. More importantly, Mr. Eddis conceded that, on the day of

the accident, he did not press the stop button to keep the elevator doors




did not do so, together with evidence that Mr. Eddis pressed the button

designating a floor and triggered the closing of the gate, support the




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competing inference that Mr. Eddis was causally negligent.6       Thus, there

                                                           e in producing his

injury that should have been submitted to a jury.

       In addition, there were controverted factual issues, which depending



the elevator malfunctioned. Mr. Cromwell testified that the freight elevator

was working properly both before and after the incident, and that on that

particular day, the warning bell was functioning before the inside gate



mechan

that it pinned him against the wheelbarrow, was controverted by Mr.

Cromwell. He testified that the video surveillance depicted reversal of the

gate immediately upon contact with Mr. Eddi

BCF that there is sufficient evidence, if credited by the jury, to support a



an elevator malfunction was the cause of his injury. At the very least, Mr.



issue of material fact as to whether his negligence was a cause of his injury.
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6

use the stop button when loading and unloading the freight elevator. Based
on this testimony, expert J. Pablo Ross concluded that Mr. Cromwell failed to
instruct Mr. Eddis to use the stop button when loading or unloading the
elevator, a fact that is controverted. See Expert Report, J. Pablo Ross, P.E.,
8/31/12, at 11.



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J-A09035-14


     Additionally, Grace was contractually responsible for workplace safety

and the freight elevators provided the only access to the floors where the

work was being performed. Mr. Arthur Snellbaker, Jr. testified that he was

                                                            -site supervision.

Deposition, Arthur G. Snellbaker, Jr., 9/19/12, at 19, 24. He acknowledged

that the store manager for BCF trained him in the operation of the freight

elevators and asked that workers seek out Kevin Cromwell if they needed to

use the elevators.   However, Mr. Snellbaker knew that the subcontractors

and their employees used the elevators without his assistance or that of BCF

personnel. When he observed them violating the safety rules, his response

                        Id. at 58. One could reasonably find based on such

                                   enforce its own safety standards and/or

properly train or supervise its subcontractors and their employees caused or



     For the foregoing reasons, I believe that the evidence of record was

sufficient to create a genuine issue of material fact as to whether Grace, Mr.

Eddis, or BCF, or any combination thereof, were negligent, and whether that

negligence caused the injury.    No expert report regarding causation was

                                                                   cannot be



Court Opinion, 6/14/13, at 4-                                  and free from




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Washington v. Baxter, 719 A.2d 733, 737 (Pa. 1998).




grounds asserted by Grace that the majority did not reach. Grace alleged

that BCFPA and BCFWC, the defendants in the underlying action, were not

contracting   parties   entitled   to   indemnification.     Furthermore,    Grace

contended that the omission of these entities from the contract was a

                                                           relief is not warranted.

Moreover, Grace maintains that it cannot be subject to liability for breach of

contract for failing to name the other entities as additional insureds on the

insurance policy.

      BCF counters that BCFPA and BCFWC operate under the licensed trade

name of Burlington Coat Factory, and that these entities were the true

parties-in interest to the contract.         It provided proof of licensing in

opposition to the motion. It maintains further that parties may enter into

binding contracts using trade names. See Dodge v. Williams, 47 Pa.Super

302 (1911). BCF relies upon two district court cases applying Pennsylvania

law, ASCO Healthcare Inc. v. County of Chester, 2000 WL 3485757 at

*3 (E.D. Pa. 2000) and Fabral, Inc. v. B&B Roofing Co., Inc., 2011 WL

4528362 (E.D. Pa 2011), in support of its contention that the real parties-in-

interest are the proper parties to enforce the contract.


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J-A09035-14


       We note that BCF did not assert that Grace breached the contract by

failing to obtain insurance designating BCFPA or BCFWC as additional

insureds.7     Furthermore, CNA did not base its denial of a defense and

coverage on the discrepancy between the named additional insured, BCF,

and the parties seeking coverage. This is a red herring. Additionally, as the

alleged real parties-in-interest under the contract, I believe BCFPA and

BCFWC have a colorable right to seek enforcement of the indemnity

provisions, and Grace has not supplied persuasive authority to the contrary.

                                                        e.   Hence, Grace is not

entitled to summary judgment as a matter of law on this issue.

       Grace also contends that since its scope of work did not include

operation, maintenance, servicing or repair of the freight elevators, it cannot

be subject to indemnity for injuries caused by the malfunctioning of the

freight elevator doors. For the reasons infra, it is not clear that the freight



negligence in operating the elevator.          Furthermore, there is evidence from

which a jury could conclude that Grace assumed responsibility under the

contract for workplace safety, and that use of the freight elevators by the

contractor, subcontractors, and their employees was contemplated to


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7

behalf.



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accomplish the work.      Given the underlying factual issues, summary

judgment is not warranted on this basis.

     Thus, I would reverse the grant of summary judgment in favor of

Grace and remand for further proceedings.




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