J. A32041/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


HART TRUCKING REPAIR, HAKAN       :               IN THE SUPERIOR COURT OF
RODOP, INDIVIDUALLY AND TRADING   :                    PENNSYLVANIA
AS HART TRUCKING REPAIR AND RODOP :
TRUCKING, INC.                    :
                                  :
                v.                :                     No. 1051 EDA 2014
                                  :
ROBB H, INC., WILLIAM HAWTHORNE,  :
PAWEL WOJDALSKI AND PW CUSTOM     :
CONSTRUCTION                      :
                                  :
APPEAL OF: ROBB H, INC. AND       :
WILLIAM HAWTHORNE                 :
                                  :
                                  :
EAGLE TRUCK SERVICES, LLC AND     :
FILBERTO CALZADILLO AND AIDA      :
ROSALES, H/W                      :
                                  :
                v.                :
                                  :
PAWEL WOJDALSKI AND ROBB H, INC. :
                                  :
APPEAL OF: ROBB H. INC.           :


                     Appeal from the Judgment March 7, 2014
              In the Court of Common Pleas of Philadelphia County
              Civil Division No(s).: February Term, 2010 No. 00546
                                     November Term 2010 No. 00213

BEFORE: PANELLA, OLSON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                            FILED MAY 11, 2015




*
    Former Justice specially assigned to the Superior Court.
J. A32041/14


      Appellants,1 Robb H., Inc., and William Hawthorne,2 appeal from the

judgment entered in favor of Appellees, Hart Trucking Repair, Hakan Rodop,

individually and trading as Hart Trucking Repair and Rodop Trucking, Inc.

(collectively “Hart”), Eagle Truck Services, LLC, and Filberto Calzadillo, and

Aida Rosales, husband and wife (collectively “Eagle”).     Appellants contend

the court erred by finding Appellants could be held liable for the actions

taken by an independent contractor absent evidence they had knowledge of

the contractor’s prior negligence.    We vacate the judgment, reverse the

order denying Appellants’ motion for a new trial, and remand for a new trial.

      We state the facts as set forth by a prior panel of this Court:

            On 30 October 2008, Wojdalski entered into a contract
         to perform roofing work on “Building # 7,” located at 2900
         Orthodox Street, Philadelphia, Pennsylvania. Pursuant to
         the “Roof Replacement” contract, Wo[jd]alski agreed to
         “remove all existing roofing materials where necessary,”
         and “install a new rubber roof.” Wojdalski immediately
         began work on the roof.

            [Around 2:00 or 2:30 a.m. on] 2 November 2008, a fire
         broke out at 2900 Orthodox Street. Building # 7 was
         entirely destroyed by the fire. The local Fire Marshall filed
         a “Report of Fire Alarm” which concluded that the fire had
         been ignited by an “Open Flame (Roofer’s Torch).” In a
         recorded statement made to a claims underwriter,
         Wojdalski admitted that he had just finished installation of
         “a whole new . . . torch down rubber roof,” which required

1
  For ease of disposition, we may refer to an individual appellant by using
the collective “Appellants.”
2
  Pawel Wojdalski and PW Custom Construction are not parties to this
appeal.




                                     -2-
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            the “use of [a] torch to install the roof caulking, the roof
            cement, and the roof tape.”

Certain Interested Underwriters at Lloyd’s London Subscribing to

Certificate Numbers 0637X/ATR049 v. Wojdalski, 1296 EDA 2011 (Pa.

Super. Sept. 17, 2012) (“Wojdalski I”) (unpublished memorandum at 7)

(quoting trial court’s opinion);3 see also N.T. Trial, 10/31/13, at 29, 184.

            The fire started on the roof of Building 7, then extended
            and spread to an adjacent garage/warehouse at Building
            17. Both buildings and all contents were destroyed.

                The eight acre industrial park owned by Robb H., Inc.
            contains twelve commercial buildings and offices. The
            tenants of Building 7 and Building 17 initiated this civil
            litigation to recover damages for their property losses.

Trial Ct. Op., 12/19/13, at 1.

      We adopt the findings of fact set forth in the instant trial court’s

decision.    Id. at 1-6.   We add that Wojdalski knew that “one of the most

important rules” of installing a torch down rubber roof was to remain on the

roof for an hour after installation to ensure everything was “safe.”       N.T.

Wojdalski Dep., 9/27/10, at 103-05.4         Further, he was trained to remove

empty propane tanks from the roof at the end of the day.            Id. at 105.

Wojdalski testified he left the roof around 6:30 p.m. on November 1, 2008,

3
  The prior panel resolved an insurance coverage dispute between the
insurer of Mr. Wojdalski and the insurer of the building owned by Appellant
Robb H.
4
  Wojdalski did not testify at trial; his deposition was made part of the
record.




                                       -3-
J. A32041/14


drove his workers home, and then returned home. Id. at 53, 64. Wojdalski

knew he was not supposed to leave propane tanks on the roof but did

anyway because he believed they were empty. Id. at 177-79.

      We also note that Wojdalski prepared the contract, N.T., 10/31/13, at

180, which stated a rubber roof was to be installed. Ex. RH-4. The contract

did not specify “torch down” or otherwise indicate the use of an open flame.

See id. Hawthorne testified he did not instruct Wojdalski, and was unaware

“of any special precautions that needed to be taken” with respect to the

roof, the “torch down” process, and roofing operations generally.         N.T. at

180-81. Wojdalski similarly testified Appellants did not instruct him on how

to replace the roof. N.T. Wojdalski Dep., 9/27/10, at 135; see also id. at

170-71.

      The trial court did not adopt facts establishing that the roof repair work

was “highly dangerous unless properly done and is of a sort which requires

peculiar   competence    and    skill   for   its   successful   accomplishment.”

Restatement (Second) of Torts § 411 cmt. c (1965). At trial, there was no

testimony or evidence on whether roof repair work is highly dangerous.

Similarly, the record is silent as to whether Appellants had prior knowledge

of Wojdalski’s past inattentiveness, negligence, inexperience, or lack of skill.




                                        -4-
J. A32041/14


      Eagle sued only Wojdalski and Robb H., Inc., raising, inter alia, claims

of negligence5 per se, negligent supervision,6 negligence, and “respondeat

superior,” which it framed as follows:

         98. The negligence and carelessness of [Wojdalski and
         Robb H., Inc.] consist of the following:

            a. Failing to properly and adequately hire, instruct,
         inform, employ, train and/or supervise its agents,
         servants, workers, employees and/or representatives, in
         particular, the agents and employees of Defendant
         Wojdalski . . . .

Eagle’s Compl. at 13 (emphasis added).7


5
   “[A] claim of corporate negligence requires that in cases where a
corporation’s negligence is not obvious, a plaintiff must establish through
expert testimony that a corporation’s acts deviated from an accepted
standard of care and that the deviation was a substantial factor in causing
plaintiff’s harm.” Phillips v. Lock, 86 A.3d 906, 923 (Pa. Super. 2014)
(punctuation and citation omitted).
6
  We note Eagle raised this claim against Wojdalski only, but we presume
that was a typographical error, as the tenor of the claim was directed to
Robb H.’s alleged inaction. Eagle’s Compl., 3/23/10, at 10-11.
7
  “Under the doctrine of respondeat superior recovery is sought on the basis
of vicarious liability. An employer is vicariously liable for the wrongful acts
of an employee if that act was committed during the course of and within
the scope of employment.” Brezenski v. World Truck Transfer, Inc., 755
A.2d 36, 39 (Pa. Super. 2000) (emphasis added).                  In this case,
notwithstanding Eagle’s label of this claim as one for respondeat superior,
Appellees have construed this claim as one for negligent hiring of an
independent contractor under Restatement (Second) of Torts § 411. See
Appellees’ Brief at 24; see also Lutz v. Cybularz, 607 A.2d 1089, 1092
(Pa. Super. 1992) (construing similar allegation of negligence “as a claim
arising under § 411 of the Restatement of Torts” “[a]lthough neither the
parties nor the trial court phrase it as such”); cf. Stackhouse v.
Commonwealth, 832 A.2d 1004, 1008-09 (Pa. 2003) (holding substance of
complaint supersedes form for determining jurisdictional issues).




                                     -5-
J. A32041/14


      Hart sued Wojdalski, PW Custom Construction, Robb H., Inc., and

William Hawthorne. Hart’s Compl., 2/28/11, at 1. Hart alleged Appellants

were negligent for, inter alia, “failing to properly hire, train, monitor and

supervise their agents, employees, servants, workmen and/or contractors”

or by vicarious liability. Id. at 11. The trial court subsequently consolidated

both suits. Order, 1/13/11.

      After a bench trial, the court rendered its decision on December 19,

2013, which found in favor of Appellees for all claims.     Appellants timely

filed, and the court denied, a post-trial motion requesting a new trial.

Following entry of judgment, Appellants timely appealed. The court did not

order Appellants to comply with Pa.R.A.P. 1925(b), but filed a Pa.R.A.P.

1925(a) decision.

      Appellants raise the following issues:

         Did the lower court improperly impose vicarious liability
         upon [Appellant Robb H.] for the actions of its independent
         contractor under a theory of “negligent hiring” in the
         absence of proof of [Robb H.’s] own direct negligence in
         the form of notice to [Robb H.] that its independent
         contractor had committed prior acts of negligence as
         required under Pennsylvania law?

         Did the lower court improperly assume that the
         independent roofing contractor [i.e., Pawel Wojdalski,]
         hired by Lessee [sic] was both unqualified and committed
         negligence which resulted in a fire in the absence of
         competent, admissible evidence of specific acts of
         negligence in violation of that contractor’s duty to comply
         with an applicable standard [of] reasonable care which
         caused that fire?




                                     -6-
J. A32041/14


         Did the lower court improperly find that [Appellants] could
         be held vicariously liable for the actions of an independent
         contractor in the absence of proof that the contractor’s
         roof repair work itself created a “peculiar risk of harm,”
         rather than the method by which it was performed, as
         required by Pennsylvania law?

         Did the lower court improperly decline to enforce the
         exculpatory terms of the commercial lease agreements
         between the parties which released [Appellant Robb H.] for
         damage to [Appellees’] property for any reason, and
         transferred the risk of such loss to [Appellees] and their
         own insurance, in accordance with controlling legal
         precedent determined by the Supreme Court of
         Pennsylvania, based upon a misinterpretation of
         “ambiguity” within those Lease Agreements?

Appellants’ Brief at 4-5 (reordered to facilitate disposition).

      We summarize Appellants’ arguments for their first two issues.

Appellants argue no evidence exists supporting the trial court’s legal holding

that they are liable for the actions of Wojdalski, an independent contractor.

They assert Appellees failed to identify any evidence that Hawthorne knew

or should have known that Wojdalski was not qualified to install a torch

down rubber roof. Id. at 51-52. Appellants insist that Appellees failed to

present any evidence that they knew or should have known Wojdalski had a

history of incompetent or careless conduct. Id. at 52.

      Appellees do not dispute the court’s determination that Wojdalski was

an independent contractor of Appellants.          See Appellees’ Brief at 31.

Appellees, however, counter that the facts established Appellants awarded

the roof repair job to Wojdalski because his bid was the lowest and he

received a four out of five star rating on a contractor review website. Id. at


                                      -7-
J. A32041/14


25. Appellees acknowledge that Appellants confirmed Wojdalski was insured

and did not ask about Wojdalski’s prior roofing experience, as Appellants

were satisfied with his two prior roof patching jobs.    Id. at 26. Appellees

note Appellants’ testimony that they knew roofing is a specialty trade, had

no experience hiring roofers or repairing roofs, and did not check Wojdalski’s

employment references or prior work.        Id. at 27-28.     On those bases,

Appellees conclude the trial court correctly held Appellants negligently hired

Wojdalski. We hold Appellants are due relief.

      With respect to an order resolving a motion for a new trial, the

standard of review is abuse of discretion.      Harman v. Borah, 756 A.2d

1116, 1122 (Pa. 2000). The analysis has two stages.

         First, the trial court must decide whether one or more
         mistakes occurred at trial. These mistakes might involve
         factual, legal, or discretionary matters. Second, if the trial
         court concludes that a mistake (or mistakes) occurred, it
         must determine whether the mistake was a sufficient basis
         for granting a new trial. The harmless error doctrine
         underlies every decision to grant or deny a new trial. A
         new trial is not warranted merely because some
         irregularity occurred during the trial or another trial judge
         would have ruled differently; the moving party must
         demonstrate to the trial court that he or she has suffered
         prejudice from the mistake.

Id. (citations omitted).   If the alleged mistake involved a discretionary

matter, then our standard of review is abuse of discretion; if the alleged

mistake involved an error of law, then our standard of review is de novo.

Id. at 1123 (citations omitted).




                                     -8-
J. A32041/14


      As a prefatory matter, a Section 411 claim requires proof of the

employer’s personal negligence and does not rest upon any theory of

vicarious liability:

              The rules stated in . . . §§ 416-429, unlike those stated
          in . . . §§ 410-415, do not rest upon any personal
          negligence of the employer. They are rules of vicarious
          liability, making the employer liable for the negligence of
          the independent contractor, irrespective of whether the
          employer has himself been at fault.           They arise in
          situations in which, for reasons of policy, the employer is
          not permitted to shift the responsibility for the proper
          conduct of the work to the contractor.           The liability
          imposed is closely analogous to that of a master for the
          negligence of his servant.

Restatement (Second) of Torts ch. 15, topic 2, intro. note. (1965) (emphasis

added).    In contrast, claims under Sections 416 to 429 rely on vicarious

liability to hold the employer liable regardless of the employer’s negligence.

Id.

      Section 411 of the Restatement (Second) of Torts states as follows:

          An employer is subject to liability for physical harm to third
          persons caused by his failure to exercise reasonable care
          to employ a competent and careful contractor

          (a) to do work which will involve a risk of physical harm
          unless it is skillfully and carefully done, or

          (b) to perform any duty which the employer owes to third
          persons.




                                      -9-
J. A32041/14


Restatement (Second) of Torts § 411 (1965).8

      We discuss the main clause first:

         a. Meaning of “competent and careful contractor.” The
         words “competent and careful contractor” denote a
         contractor who possesses the knowledge, skill, experience,
         and available equipment which a reasonable man would
         realize that a contractor must have in order to do the work
         which he is employed to do without creating unreasonable
         risk of injury to others, and who also possesses the
         personal characteristics which are equally necessary.

                                   *     *      *

         b. Extent of rule. The employer of a negligently selected
         contractor is subject to liability under the rule stated in this
         Section for physical harm caused by his failure to exercise
         reasonable care to select a competent and careful
         contractor, but only for such physical harm as is so
         caused. In order that the employer may be subject to
         liability it is, therefore, necessary that harm shall result
         from some quality in the contractor which made it
         negligent for the employer to entrust the work to him.
         Thus, if the incompetence of the contractor consists in his
         lack of skill and experience or of adequate equipment but
         not in any previous lack of attention or diligence in
         applying such experience and skill or using such equipment
         as he possesses, the employer is subject to liability for any
         harm caused by the contractor’s lack of skill, experience,
         or equipment, but not for any harm caused solely by the
         contractor’s inattention or negligence.

         Illustrations:

         3. The omnibus with which A, the owner of a hotel,
         conveys his guests from the railway station to the hotel is
         damaged in a collision. A contracts with B, the owner of a

8
 “There is little case law on point in this jurisdiction, so we must look to the
Restatement as well as the law of other jurisdictions.” Lutz v. Cybularz,
607 A.2d 1089, 1092 (Pa. Super. 1992) (referencing Section 411).




                                       - 10 -
J. A32041/14


         garage, to carry A’s guests in B’s bus. A knows that C, the
         only driver who is available for this service, has only driven
         a car for a few days. While driving some of A’s guests
         from the station, C mistakes the accelerator for the brake,
         which causes a collision between the bus and an
         automobile in which D is driving. A is subject to liability to
         D and to his guests in the bus for any harm caused by the
         unskillfulness of C.

         4. The same facts, as in Illustration 3 except that the
         collision results solely from the fact that C, instead of
         looking where he is going, is talking to one of the
         passengers while approaching a street intersection. A is
         not liable to D unless he knew or should have known that
         C was careless and inattentive.

Restatement (Second) of Torts § 411 cmt. a & b, illus. 3 & 4. (1965).

      Comment     b   and   the   supporting   illustrations   underscore    two

interrelated factors. First, knowledge of the particular condition or trait that

caused the injury, i.e., was the injury caused by (1) a lack of skill,

experience, or equipment, or (2) inattention or negligence.9      Id.     Second,

whether the employer had prior knowledge of the independent contractor’s

condition or trait that caused the injury, i.e., the independent contractor’s

(1) lack of skill, experience, or equipment, or (2) inattention or negligence.

Id.   The employer’s liability rests on proving both factors, otherwise the

employer is immune from liability for a claim of negligent selection of an


9
  Cf. Kituskie v. Corbman, 714 A.2d 1027, 1030 (Pa. 1998) (noting claim
of legal malpractice “requires the plaintiff to prove that he had a viable
cause of action against the party he wished to sue in the underlying case
and that the attorney he hired was negligent in prosecuting or defending
that underlying case (often referred to as proving a ‘case within a case’).”).




                                     - 11 -
J. A32041/14


independent contractor. Id. Stated differently, if the harm was caused by

the contractor’s lack of skill, experience, or equipment, then the employer is

liable only if it knew or should have known the contractor was unskilled,

inexperienced, or lacked equipment. Id. If the harm, however, was caused

by the contractor’s inattention or negligence, then the employer is liable only

if it knew or should have known of the contractor’s inattentiveness or

carelessness. Id.

      Instantly, Wojdalski acknowledged that remaining on the roof for an

hour after installing a torch down rubber roof was necessary to ensure

safety.   N.T. Wojdalski Dep. at 103-05.     Removing empty propane tanks

from the roof at the end of each day was also important.          Id. at 105.

Wojdalski, however, disregarded his training, left empty propane tanks on

the roof, and departed at 6:30 p.m., without waiting an hour. Id. at 53, 64,

103-05, 177-79.     Fire broke out around 2:00 or 2:30 a.m.         N.T. Trial,

10/31/13, at 29, 184.       The court held Wojdalski was negligent, and

Wojdalski has not appealed that determination.10      Conversely, Wojdalski’s

lack of skill, experience, or equipment did not cause Appellees’ injuries. See

Restatement (Second) of Torts § 411 cmt. b. (1965). As noted above, the




10
   We opine that even if Wojdalski was not negligent by not staying on the
roof until 7:30 p.m.—the fire started around 2:00 a.m.—he arguably acted
inappropriately by leaving propane tanks on the roof.




                                    - 12 -
J. A32041/14


record is silent as to whether Appellants knew or should have known of

Wojdalski’s inattentiveness or carelessness.

     We need not address whether Appellants exercised reasonable care in

selecting Wojdalski, as Appellants’ harm was not caused “from some quality

in the contractor which made it negligent for the employer to entrust the

work to him,” see Restatement (Second) of Torts § 411 cmt. b. (1965), but

from Wojdalski’s failure to adhere to his training. See, e.g., N.T. Wojdalski

Dep. at 103-05.      To paraphrase comment b, “[Appellants are] subject to

liability for any harm caused by [Wojdalski’s] lack of skill, experience, or

equipment,     but   not   for   any   harm     caused   solely   by   [Wojdalski’s]

negligence.”     See id. (emphases added).         The trial court held Wojdalski

was negligent.       Thus, because Appellees did not meet their burden of

establishing their Section 411 negligent hiring claim, the trial court

erroneously held as a matter of law that Appellants were negligent and thus

abused its discretion by denying Appellants’ motion for a new trial. 11 See

Harman, 756 A.2d at 1122. Accordingly, we vacate the judgment, reverse

the order denying Appellants’ motion for a new trial, and remand for further

proceedings.

     Order denying post-trial motion reversed.           Judgment vacated.     Case

remanded. Jurisdiction relinquished.

11
  Because we have granted relief on Appellants’ first two issues, we need
not rule on their remaining issues. See Siegal v. Stefanyszyn, 718 A.2d
1274, 1277 n.6 (Pa. Super. 1998).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/11/2015




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