J-E01006-15

                              2015 PA Super 227



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 Dated June 14, 2013
           In the Court of Common Pleas of Philadelphia County
                   Civil Division at No: 2011 No. 001844


BEFORE: BOWES, J., DONOHUE, J., SHOGAN, J., LAZARUS, J., MUNDY, J.,
        OLSON, J., WECHT, J., STABILE, J., and JENKINS, J.

OPINION BY STABILE, J.:                             FILED OCTOBER 29, 2015

      Appellants, Burlington Coat Factory of Pennsylvania, LLC (“BCF of PA”)

and   Burlington   Coat    Factory     Warehouse   Corporation   (“BCFW”   and,

collectively with BCF of PA, Appellants), appeal from the June 14, 2013 order

granting the summary judgment motion of Grace Construction Management

Company (“Grace”). We vacate and remand.

      In this case, we must decide whether and to what extent Grace

undertook and breached a contractual obligation to defend and indemnify

Appellants in a negligence action filed by an employee of Grace’s sub-

subcontractor for injuries the employee sustained during renovations of
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Appellants’ retail store. On August 28, 2009, Grace entered into a contract

(the “Contract”) to perform substantial renovations to one of Appellants’

retail stores (the “Store”) in Philadelphia. The Contract identified the parties

as “Grace Construction Management Company, LLC” and “Burlington Coat

Factory (BCF).”      Contract, at cover page.1         “Burlington Coat Factory” is a

trade name Appellants use for their retail stores, but it is not the name of a

legal entity.      Appellants’ Opposition to Grace’s Motion for Summary

Judgment, at Exhibit L.         Appellants do not dispute that they drafted the

Contract.

       Pursuant to the Contract, Grace had a duty to supervise all portions of

the performance of the Contract:

             The Contractor shall supervise and direct the Work, using
       the Contractor’s best skill and attention. The Contractor shall be
       solely responsible for and have control over construction means,
       methods, techniques, sequences and procedures, and for
       coordinating all portions of the Work.

Contract, General Conditions, at Heading III, ¶ 3.a.

       The Contract also contains two indemnifications provisions, both of

which are relevant to this appeal.             The first--contained within the General

Conditions to the Contract--provides:

             To the fullest extent permitted by law, the Contractor shall
       indemnify and hold harmless BCF […] from and against all
       claims, damages, losses and expenses, including but not limited
____________________________________________


1
  The Contract is organized in outline form and not paginated. Throughout
the Contract, Burlington Coat Factory is referred to as BCF.



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      to attorneys’ fees, arising out of or resulting from performance
      of the Work, provided that such claim, damage, loss or expense
      is attributable to bodily injury, sickness, disease or death, or to
      injury to or destruction of tangible property (other than the Work
      itself) including loss of use resulting there from, but only to the
      extent caused in whole or in part by negligent acts or
      omissions of the Contractor, a Subcontractor, anyone
      directly or indirectly employed by them or anyone for
      whose acts they may be liable, regardless of whether or not
      such claim, damage, loss or expense is caused in part by a party
      indemnified hereunder.

Id. at Heading III, ¶ 12 (emphasis added).

      The second, Exhibit A to the Contract, is both similar and different

from that quoted above and provides:

             Grace Construction Management Company releases BCF
      and assumes entire responsibility and liability for any and all
      claims and/or damages of any nature or character whatsoever
      arising under the Contract Documents, by operation of law, or in
      any other manner with respect to work covered by this
      CONTRACT and agrees to indemnify and save BCF harmless
      from and against all claims, demands, liabilities, interest,
      loss, damage, attorneys’ fees, costs and expenses of whatsoever
      kind or nature, whether for property damage, personal
      injury, or bodily injury (including death) to any and all
      persons, whether employees of, Grace Construction
      Management Company, BCF or others, or otherwise, caused
      or occasioned thereby, resulting therefrom, or occurring in
      connection therewith.

Id. at Exhibit A, ¶ 1 (emphasis added).          Significantly, the indemnity

provision contained within the General Conditions limits Grace’s obligations

to claims arising out of its negligence or that of its subcontractors.      The

indemnity obligation under Exhibit A to the Contract does not have a similar

limitation.




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      Paragraph 2 of Exhibit A imposes upon Grace the obligation to procure

and maintain insurance (including workers’ compensation, general liability

and automobile liability) and to “Name BCF and Landlord as additional

Insured[.]”   Id. at Exhibit A, ¶ 2.   Paragraph 2(D) to Exhibit A addresses

general liability coverage and provides:

             The General Liability coverage shall include BCF as an
      Additional Insured and include the “Aggregate Limits per Project”
      endorsement. This $2,000,000 general Aggregate limit shall by
      endorsement apply to each project of the Grace Construction
      Management Company and the $2,000,000 aggregate
      endorsement shall be fully available under this CONTRACT with
      Contractors and shall not be depleted by claims arising from any
      other project, work, job, sale or delivery.         The General
      Liability coverage shall include contractual liability
      coverage for the liability that Grace Construction
      Management Company assumes and/or undertakes (for
      example,      indemnification      obligations),    under     this
      CONTRACT.        […].    Before commencing work, and before
      delivering any materials, articles and/or equipment hereunder,
      Grace Construction Management Company shall furnish a
      properly completed Accord Evidence of Insurance addressed to
      BCF establishing that all the insurance coverage required
      hereunder is in force and will not be canceled with less than
      thirty (30) days prior written notice to BCF, such notice to be by
      Certified Mail. The certificates will list BCF as an additional
      named insured. […] Failure of BCF to require the production of
      such certificates of insurance shall not absolve CONTRACTOR of
      its obligations in respect thereto. […] No payment shall be
      made on this CONTRACT agreement prior to receipt of certificate
      of insurance acceptable to BCF.

Id. at Exhibit A, ¶ 2(D) (emphasis added).

      On October 1, 2009, Bryan Eddis (“Eddis”), an employee of Belfi

Brothers, one of Grace’s sub-subcontractors, sustained injures when the

gate of a freight elevator (the “Elevator”) closed on him. Eddis filed suit (the



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“Eddis Action”) against Appellants and Schindler Elevator Corporation

(“Schindler”), but not against Grace.            The accident happened while Eddis

was using a wheelbarrow to move building materials from a loading dock to

the Elevator. Appellants’ Motion for Summary Judgment, 1/15/13, at Exhibit

B, ¶ 6.2 “As [Eddis] was preparing to set the wheel barrel [sic] down on the

floor of the [Elevator], suddenly and without warning, the elevator doors

closed on [Eddis] striking him on his back and pinning him between the

closing doors and the wheel barrel [sic].”            Id.   Eddis alleged his injuries

resulted from negligent construction, maintenance and repair of the

Elevator. Id. at ¶¶ 14-16. In 2012, Eddis received a $70,000.00 settlement

from Schindler and Appellants, with Appellants contributing $35,000.00 to

the settlement. Appellants settled without admitting liability.

       On November 3, 2011, Appellants’ third-party administrator tendered

Eddis’ damage claim to Grace. Id. at ¶ 20 and Exhibit C. On June 15, 2011,

Appellants tendered their defense in the Eddis Action to Grace. Id. at ¶ 22

and Exhibit D. On September 12, 2011, Grace’s insurer declined the tender,

reasoning that Eddis alleged negligence against Appellants but not against

Grace.    Id. at ¶ 23 and Exhibit E.           Grace’s insurer also reasoned that the

accident with the Elevator was not related to Grace’s work under the


____________________________________________


2
  Exhibit B of Appellants’ summary judgment motion is a copy of Eddis’
complaint.



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Contract, as Grace’s renovations of the Store did not include renovations of

the Elevator. Id.

      In October of 2011, Appellants commenced this breach of contract

action against Grace.   The complaint alleged a single claim of breach of

contract based on multiple acts.    According to the complaint, BCFW and

Grace were the parties to the Contract. Complaint, 10/14/11, at ¶ 11. BCF

of PA was a third-party beneficiary of the Contract. Id. at ¶ 12. Appellants

alleged the Contract obligated Grace “to provide and supervise appropriately

trained labor for the renovations,” and that Eddis was under Grace’s

supervision and control pursuant to the Contract.          Id. at ¶¶ 13-14.

Appellants therefore alleged that Grace breached its contractual obligation to

“train and/or properly train its subcontractors, their subcontractors, and

their employees regarding use of the freight elevators within the Store,

thereby causing the incident that gave rise to the Eddis Action.”      Id. at

¶ 25(e).   Likewise, Appellants averred Grace breached its contractual

obligation to “supervise and/or properly supervise its subcontractors, their

subcontractors, and their employees regarding use of the freight elevators

within the Store, thereby causing the incident that gave rise to the Eddis

Action[.]” Id. at ¶ 25(f). Finally, Appellants alleged that Grace breached its

obligation to defend and indemnify them in the Eddis Action, and that Grace

also breached its obligation to “ensure that BCFW and BCF of PA were added

as Additional Named Insureds on its policy of insurance.”     Id. at ¶ 25(a),


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(b), and (d).     According to the complaint, the Contract obligated Grace to

“ensure that its insurance coverage was primary as to BCFW.” Id. at ¶ 17.

       Appellants filed a summary judgment motion on January 15, 2013

seeking judgment in their favor on their breach of contract claim.          Grace

filed a cross motion for summary judgment on January 18, 2013, asserting

(1) that Appellants were not parties to the Contract; (2) maintenance of the

Elevator was outside the scope of Grace’s obligations under the Contract; (3)

Appellants’ voluntary settlement of the Eddis Action precluded a claim for

indemnity from Grace; and (4) the Contract did not obligate Grace to

indemnify Appellants for their own negligence.3

       On June 14, 2013, the trial court denied Appellants’ motion for

summary judgment and granted summary judgment in favor of Grace. The

trial court found that the record evinced Appellants’ negligence in failing to

maintain the Elevator.        The trial court found no evidentiary support, and

thus no triable issue of fact, for Appellants’ allegations of Grace’s negligence.

In particular, the trial court found no evidence that any negligence on

Grace’s part was a proximate cause of Eddis’ injury.         Trial Court Opinion,

6/14/13, at 6.       The trial court also found that Grace did not agree to

indemnify Appellants for their own negligence.       Id.   Finally, the trial court

found that Grace discharged its contractual obligation to insure Appellants
____________________________________________


3
   On February 13 and 21, 2013, the parties filed responses, pursuant to
Rule 1035.3, to the competing summary judgment motions.



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because “there is nothing in the Contract that requires that [Grace’s]

insurance be primary.” Id. at 4. In light of these rulings, the trial court did

not address Grace’s arguments regarding Appellants’ voluntary settlement or

Appellants’ status as parties to the Contract. This timely appeal followed.

      Appellants present questions for review as follows:

      1. Did the lower court err in granting summary judgment in
         favor of [Grace], a construction manager, on a finding that
         only Burlington Coat Factory (“Burlington”), a building owner,
         could be liable for an injury to a construction worker that
         occurred in Burlington’s freight elevator when there was
         evidence from which a jury could find that:

                  a. The elevator did not malfunction; or

                  b. The injury was caused, in whole or in part, by the
                     negligence of [Grace] or persons for whose
                     negligent acts [Grace] undertook to indemnify
                     Burlington, including the injured workman?

      2. Did the lower court err in granting summary judgment to the
         construction manager on a conclusion of law that the
         construction contract did not require the construction
         manager to indemnify the store owner for its negligence when
         a general indemnification provision in the General Conditions
         of the contract benefitting numerous parties limited the
         indemnification duty to ‘the extent caused by’ negligence of
         the construction manager or anyone working under it, but a
         more specific provision in the contract, relating only to the
         store owner, provided for an unlimited duty of indemnity?

      3. Did the lower court err in granting summary judgment to the
         construction manager upon a conclusion of law the manager
         satisfied its obligation to procure insurance naming the store
         owner as an additional insured, when the insurance procured
         was not primary, and, accordingly, the parties’ intentions to
         allocate the burden of buying insurance for a construction
         project was defeated?




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Appellant’s Original Brief, at 2-3. Appellants’ Substituted Brief for

Reargument En Banc, at 4.4 We consider these arguments in turn.

       We begin with our 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. Pa.R.C.P. No. 1035.2(1).[5] When
____________________________________________


4
   Appellants’ substituted brief refers this Court to its prior brief for questions
it does not address in its substituted brief. Appellants’ Substituted Brief for
Reargument En Banc, at 3, n.1. Specifically, questions two and three,
quoted above, appear only in Appellants’ original brief. Question one
appears in both briefs with slight alterations in the phrasing. We have
quoted question one as it appears in the substituted brief.
5
    Rule 1035.2 provides as follows:

       After the relevant pleadings are closed, but within such time as
       not to unreasonably delay trial, any party may move for
       summary judgment in whole or in part as a matter of law

       (1) whenever there is no genuine issue of any material fact as to
       a necessary element of the cause of action or defense which
       could be established by additional discovery or expert report, or

       (2) if, after the completion of discovery relevant to the motion,
       including the production of expert reports, an adverse party who
       will bear the burden of proof at trial has failed to produce
       evidence of facts essential to the cause of action or defense
       which in a jury trial would require the issues to be submitted to a
       jury.

       Note: Rule 1035.2 sets forth the general principle that a motion
       for summary judgment is based on an evidentiary record which
       entitles the moving party to judgment as a matter of law.

       The evidentiary record may be one of two types. Under
       subparagraph (1), the record shows that the material facts are
       undisputed and, therefore, there is no issue to be submitted to a
       jury.
(Footnote Continued Next Page)


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      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. 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. On appellate review,
      then, an appellate court may reverse a grant of summary
      judgment if there has been an error of law or an abuse of
      discretion. But the issue as 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. To the extent that this Court must resolve a

                       _______________________
(Footnote Continued)

      An example of a motion under subparagraph (1) is a motion
      supported by a record containing an admission. By virtue of the
      admission, no issue of fact could be established by further
      discovery or expert report.

      Under subparagraph (2), the record contains insufficient
      evidence of facts to make out a prima facie cause of action or
      defense and, therefore, there is no issue to be submitted to a
      jury. The motion in this instance is made by a party who does
      not have the burden of proof at trial and who does not have
      access to the evidence to make a record which affirmatively
      supports the motion. To defeat this motion, the adverse party
      must come forth with evidence showing the existence of the
      facts essential to the cause of action or defense.

      Oral testimony alone, either through testimonial affidavits or
      depositions, of the moving party or the moving party's
      witnesses, even if uncontradicted, is generally insufficient to
      establish the absence of a genuine issue of material fact. See
      Nanty-Glo v. American Surety Co., 163 A. 523 (1932); Penn
      Center House, Inc. v. Hoffman, 553 A.2d 900 (1989).

      Only the pleadings between the parties to the motion for
      summary judgment must be closed prior to filing the motion.

Pa.R.C.P. No. 1035.2.



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     question of law, we shall review the grant of summary judgment
     in the context of the entire record.

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010)

(quotation marks and case citations omitted). “[A] non-moving party must

adduce sufficient evidence on an issue essential to his case and on which he

bears the burden of proof such that a jury could return a verdict in his

favor.” Ertel v. Patriot-News Co., 674 A.2d 1038, 1042 (Pa. 1996), cert.

denied, 519 U.S. 1008 (1996). “Failure to adduce this evidence establishes

that there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law.” Id.

     Appellants first argue the trial court erred in finding no triable issue of

fact as to the negligence of Grace and/or any entity or person for whom

Grace assumed responsibility under the Contract.          In their complaint,

Appellants alleged that Grace breached its contractual duty to indemnify

Appellants for Grace’s negligence and/or the negligence of Belfi and Eddis.

           Three elements are necessary to plead properly a cause of
     action for breach of contract: [(1)] the existence of a contract,
     including its essential terms, (2) a breach of a duty imposed by
     the contract and (3) resultant damages.         Additionally, it is
     axiomatic that a contract may be manifest orally, in writing, or
     as an inference from the acts and conduct of the parties.

J.F. Walker Co., Inc. v. Excalibur Oil Grp., Inc., 792 A.2d 1269, 1272

(Pa. Super. 2002). At issue here are elements two and three.

     As noted above, Grace agreed to supervise its own employees and

those of its subcontractors in the performance of the work.        Contract, at



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Heading III, ¶ 3.a.         In addition, Grace agreed to indemnify Appellants

against claims “caused in whole or in part by negligent acts or omissions of

the   Contractor,     a     Subcontractor,      anyone      directly     or    indirectly

employed by them or anyone for whose acts they may be liable [….]”

Id. at Heading III, ¶ 12.6

       Eddis   was     an    employee     of   Belfi   Brothers,   one    of   the   sub-

subcontractors working on Store renovations pursuant to the Contract.

Eddis sustained his injury while in the process of moving a wheelbarrow

filled with tile from a loading dock onto the Elevator. Appellants produced

evidence that construction workers were required to have supervision while

using the Elevator. Arthur C. Snellbaker, Jr. (“Snellbaker”) was the on-site

supervisor for Grace. Appellants’ Motion for Summary Judgment, 1/15/13,

at Exhibit F, pp. 19, 24.7             One of Appellants’ employees instructed

Snellbaker how to use Appellants’ freight elevators, including the Elevator.

Id. at 48. According to Snellbaker, “Burlington Coat had requested that we

grab either an assistant manager or the security guard to operate the freight

elevators for us.”        Id. at 49.      Snellbaker informed the subcontractors’
____________________________________________


6
   This contractual indemnity obligation, to the extent quoted, is not
inconsistent with the scope of the contractual indemnity obligation found
under Exhibit A to the Contract as quoted supra.
7
   Exhibit F is the transcript of Snellbaker’s September 19, 2012 deposition
in connection with the Eddis Action. The cited page numbers correspond to
the transcript pages.




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foremen of that request.         Id.    Appellants wanted a manager or security

guard present to prevent theft, as the freight elevator led to and from the

loading dock, from where anybody could enter or exit Appellants’ premises.

Id.   Nonetheless, Snellbaker observed subcontractors’ workers using the

freight elevator without assistance.           Id. at 57.   When that occurred,

Snellbaker yelled at them. Id. at 58.

       Kevin Cromwell (“Cromwell”) worked in loss prevention for Appellants.

Grace’s Motion for Summary Judgment, 1/18/13, at Exhibit Q, p. 7.8 His job

was to be present as a loss prevention agent during remodeling of the Store.

Id. at 9. He rode the Elevator with Eddis on several occasions. Id. at 18.

Cromwell also showed Eddis how to use the Elevator properly, including how

to use the “run/stop” switch. Id. at 19-20. Cromwell explained the need to

stand clear of the doors when the switch is set to “run.” Id. at 26. Eddis

told Cromwell he understood.             Id. at 27.   Cromwell did not recall a

supervisor directing him to give instructions on proper use of the Elevator.

Id. at 29. He did so on his own. Id. Cromwell was not aware of whether

and to what extent his employer was responsible for conducting periodic

safety inspections of the Elevator. Id. at 54.

       Cromwell observed surveillance footage of Eddis’ accident:

____________________________________________


8
   Exhibit Q to Grace’s motion is Cromwell’s May 24, 2012 deposition in
connection with the Eddis Action. The cited page numbers correspond to the
transcript pages.



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             I observed Mr. Eddis in the process of getting onto the
       [Elevator] from the loading dock area in a wheelbarrow. He was
       getting on and pulled out and he got back on a second time and
       the inner door came down. The inner door struck him on his mid
       back and the door went back up.

Id. at 59.    Cromwell stated the run/stop switch “would have to be in run

mode” at the time.         Id.    Due to a brown out, Cromwell was unable to

preserve that footage. Id. at 58-59, 73. When Cromwell spoke with Eddis

after the accident, Cromwell observed a six-inch by two-inch red mark on

Eddis’ back. Id. at 61. Eddis told Cromwell he was “fine” and completed

the remainder of his work shift.         Id. at 88.   Cromwell tested the Elevator

immediately after the accident and found it to be functioning properly. Id.

at 78-79.

       Eddis testified in his deposition that when he asked for a freight

elevator operator, none was available.             Appellants’ Motion for Summary

Judgment, 1/15/13, at Exhibit H, p. 118. Specifically, Eddis asked a fellow

Belfi Brothers employee for a freight elevator operator, but was laughed at.

Id. at 118-19.9

____________________________________________


9
   Exhibit H is the transcript of Eddis’ March 8, 2012 deposition in connection
with the Eddis Action. The cited page numbers correspond to the transcript
pages.     We note that Exhibit H contains only selected pages of the
transcript. Appellants’ Brief refers to pages other than those included in
Exhibit H. Appellants reference pages 42, 52 through 55, and 243 of the
transcript in their brief. Appellants’ Substituted Brief for Reargument En
Banc, at 24-25. Exhibit H skips from page 40 to 118 and concludes with
page 119. We cannot consider any evidence that has not been incorporated
into the certified record. See Brandon v. Ryder Truck Rental, Inc., 34
(Footnote Continued Next Page)


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      Grace attached to its summary judgment motion an expert witness

report from an engineer, J. Pablo Ross (“Ross”).                 Grace’s Motion for

Summary Judgment, 1/18/13, at Exhibit R. The Ross report notes that in

July of 2009, Schindler sent an upgrade order to Appellants proposing

$157,384.00 in upgrades to the Elevator. Id. at 8.10 The July proposal was

Schindler’s third upgrade proposal since 2003. Id. at 7-8. Schindler noted

“make-shift” repairs had been made to the Elevator and that “long-term safe

and reliable repairs” were no longer possible.              Id. at 8.     Schindler

recommended installation of a new gate. Id. at 8.

      The Ross report notes several occasions throughout 2009 on which the

Elevator malfunctioned in some way. The Elevator gate was stuck on May

14, 2009. Id. On May 22, 2009, the Elevator was “opening and closing on

its own.” Id. On May 23, 2009 the Elevator “became stuck on the loading

dock level with the doors cycling.” Id. at 9. On May 25 and July 23, 2009,

the Elevator was “not working.”            Id.   The Elevator was reported “out of

service” on September 17, 2009. Id. A post-accident investigation of the

Elevator on November 4 and 5, 2009 revealed that the Elevator’s alarm bell

failed to sound before the gate closed.             Id. at 10.     The Ross Report

                       _______________________
(Footnote Continued)

A.3d 104, 106 n.1 (Pa. Super. 2011) (“Any document which is not part of
the official certified record is considered to be nonexistent[.]”).
10
   The page numbers refer to the internal pagination of Ross’ August 21,
2012 written expert report prepared in connection with the Eddis Action.



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concludes that the alarm bell was not operational at the time of Eddis’

accident. Id. at 11-12. The Ross report also concludes that either a “safety

shoe” failed or the Elevator gate derailed from its track, causing the gate not

to retract after it closed on Eddis. Id. at 13. The gate had derailed from its

track on several occasions prior to the accident. Id.

      To summarize the foregoing, Snellbaker’s testimony confirms that

Appellants instructed Grace not to permit workers to use the freight

elevators unsupervised.    Both Snellbaker and Cromwell—a loss prevention

officer—testified that the supervised use of the freight elevators was meant

to prevent theft. In this regard, Appellants’ argument in their brief that “[i]t

is undisputed that Burlington requested that Grace adopt a safety

precaution relating to the use of the freight elevator by Grace’s

supervisees, including Eddis, and Grace agreed to adopt that precaution”

and that “[a] workman getting hit by a closing door is precisely the kind of

accident that the disregarded safety rule was intended to avoid” is not

accurate. Appellants’ Substituted Brief for Reargument En Banc, at 21, 37

(emphasis added).       The record does not support a conclusion that

supervised elevator use was a safety precaution rather than a loss

prevention measure. Cromwell instructed workers, including Eddis, on how

to use the Elevator, but apparently did so without any directive from

Appellants.




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      Nonetheless, Cromwell’s testimony could support a finding that Eddis

was negligent in his use of the Elevator by moving in and out of the car—and

underneath the gate—while the Elevator was in run mode rather than stop

mode. As noted above, Grace agreed to indemnify Appellants in the event

of negligence on the part of Grace, its subcontractors and their employees.

Contract, at Heading III, ¶ 12. Furthermore, supervised use of the Elevator

could have prevented the accident even if the supervision was for a purpose

other than employee safety.     The record contains evidence from which a

factfinder could determine that Grace undertook and breached a duty to

supervise construction workers’ use of the Elevator.

      On the other hand, Grace has produced the Ross report, in which Ross

documents Appellants’ repeated failure to maintain and repair the Elevator,

and repeated breakdowns and failures of the Elevator in the months leading

up to the Eddis accident.    Based on the Ross report and what it deemed

“scant” evidence of Grace’s negligence, the trial court found that Appellants

produced insufficient evidence to establish that any breach of duty on

Grace’s part was the cause of Eddis’ accident. Trial Court Opinion, 6/14/13,

at 5 (“In this case, there is no evidence, expert or otherwise, that Mr. Eddis’

or Grace’s failure to request assistance, rather than an alleged malfunction

of the elevator, was the cause of his injuries.”). Thus, Grace asserts that its

negligence, if any, cannot be the legal cause of the Eddis accident.




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        On the record before us, we believe reasonable minds can differ as to

the cause of the Eddis accident.        The record contains evidence that

Appellants were less than diligent in maintaining the Elevator, and that the

Elevator malfunctioned on occasion, but it is not clear whether the Elevator

malfunctioned on the day in question.        The record also contains evidence

that Grace was derelict in its obligation to require supervised use of the

Elevator.    While that obligation was imposed to prevent theft rather than

ensure worker safety, a factfinder could determine that Grace’s conduct was

wholly or partially the cause of the Eddis accident.       Finally, the record

contains evidence that Eddis’ own negligence was partially or entirely the

cause of the accident.     It is equally plausible Eddis failed to switch the

Elevator from run mode to stop mode, and failed to stand clear of the gate

while the Elevator was in run mode, as Cromwell instructed him to do. For

all of these reasons, we believe this case presents a triable issue of fact as

to causation.

        Contrary to Grace’s argument, Appellants’ failure to present expert

testimony does not require a different conclusion.        Expert testimony is

necessary when a case presents questions beyond the ken of the average

layperson.    Vazquez v. CHS Professional Practice, P.C., 39 A.3d 395,

398-99 (Pa. Super. 2012). Grace argues that expert testimony is necessary

here because a jury will otherwise be unable to determine causation in this

case.    Grace fails to consider that the nature of the negligence alleged by


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Appellants is distinguishable from the nature of the elevator malfunction for

which Grace provided an expert report. Two potential sources of causation

at issue here—Grace’s alleged failure to procure supervision for Eddis and

Eddis’ own negligence—are well within the ken of the average layperson and

do not require expert testimony.          Jurors do not need expert testimony to

assess whether the absence of a supervisor caused the accident.          Nor do

they need expert testimony to assess whether Eddis was negligent by, for

example, failing to use the run/stop switch to stop the Elevator.

       Grace cites MIIX Insurance Co. v. Epstein, 937 A.2d 469 (Pa.

Super. 2009), a medical malpractice case in which this Court held summary

judgment was appropriate because the plaintiffs failed to produce expert

reports in support of their claims. We do not find the instant case analogous

to professional negligence cases. The alleged acts of negligence asserted by

Appellants do not concern professional malpractice, which by necessity

requires expert testimony. MIIX, therefore, is inapplicable to consideration

of Appellants’ proffered evidence of Grace’s and/or Eddis’ alleged negligence.

Accordingly, the absence of an expert report from Appellants does not

warrant summary judgment in Grace’s favor on the issue of causation.11

____________________________________________


11
     Regarding the third potential cause of the accident—the Elevator’s
malfunction—the record contains an expert opinion secured by Grace. The
parties do not challenge the necessity of an expert report on this issue and
we do not here express any opinion on whether an expert report is
necessary in all cases of alleged elevator malfunction.



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       In summary, we conclude the trial court erred in granting summary

judgment in Grace’s favor on the issue of Grace’s negligence. The Contract

plainly requires Grace to indemnify Appellants12 in the event of Grace’s

negligence or that of its subcontractors. We conclude that the record, read

in a light most favorable to Appellants as the non-moving parties, presents a

triable issue of fact on the issue of Grace’s and/or Eddis’ negligence.

       The parties next dispute whether the trial court erred in finding that

the Contract does not require Grace to indemnify Appellants for Appellants’

own negligence.       The Contract contains two conflicting indemnity clauses,

both of which are quoted above. For the following reasons, we conclude that

the more restrictive provision applies and that Grace does not have the

obligation to indemnify Appellants for Appellants’ own negligence.

       An agreement to indemnify is “an obligation resting upon one person

to make good a loss which another has incurred or may incur by acting at

the request of the former, or for the former’s benefit.”             Potts v. Dow

Chemical Co., 415 A.2d 1220, 1221 (Pa. Super. 1980).                    “Indemnity

agreements are to be narrowly interpreted in light of the parties’ intentions

as evidenced by the entire contract.”                 Consolidated Rail Corp. v.

Delaware River Port. Auth., 880 A.2d 628, 632 (Pa. Super. 2005), appeal

denied, 898 A.2d 1071 (Pa. 2006).                  “In interpreting the scope of an
____________________________________________


12
   We address Grace’s argument that Appellants are not parties to the
Contract, infra.



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indemnity clause, the court must consider the four corners of the document

and its surrounding circumstances.” Widmer Engineering v. Dufalla, 837

A.2d 459, 472 (Pa. Super. 2003), appeal denied, 837 A.2d 459 (Pa. 2004).

To establish the right to indemnification, the indemnitee must establish:

      the scope of the indemnification agreement; the nature of the
      underlying claim; its coverage by the indemnification
      agreement; the reasonableness of the alleged expenses; and,
      where the underlying action is settled rather than resolved by
      payment of a judgment, the validity of the underlying claim and
      the reasonableness of the settlement.

McClure v. Deerland Corp., 585 A.2d 19, 22 (Pa. Super. 1991).

      A party cannot obtain indemnification for its own negligence unless the

contract clearly and unequivocally provides for such indemnification. Ruzzi

v. Butler Petroleum Co., 588 A.2d 1, 7 (Pa. 1991); Perry v. Payne, 66 A.

553, 557 (Pa. 1907).     “Unless the language of the contract is clear and

unambiguous, however, such that the ‘contract puts it beyond doubt’ […] we

must opt for the interpretation that does not shoulder [the indemnitor] with

the fiscal responsibility for [the indemnitee’s] negligence.” Greer v. City of

Philadelphia, et al., 795 A.2d 376, 380 (Pa. 2002) (citing Perry, 66 A. at

557; Ruzzi, 588 A.2d at 4).        Where an agreement includes multiple

contradictory indemnity provisions drafted by the same person, we construe

the agreement against the drafter and enforce the narrower provision.

Chester Upland School Dist. v. Edward Melony, Inc., 901 A.2d 1055,

1061-62 (Pa. Super. 2006).




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      As set forth above, the narrower indemnity provision included in the

General Conditions at Heading III, ¶ 12 does not obligate Grace to indemnify

Appellants for their own negligence.       Assuming without deciding that the

indemnity provision included in Exhibit A creates that obligation, Appellants

still cannot prevail. Since Appellants drafted a contract with two conflicting

indemnity provisions, we will enforce only the narrower of the two and

exclude indemnity for the indemnitee’s own negligence. This Court’s opinion

in Chester Upland illustrates the point.        There, the indemnitee drafted a

contract   with   two   conflicting   indemnification   clauses,   one    expressly

restricting indemnity to the indemnitor’s negligence and another with no

such restriction.   Chester Upland, 901 A.2d at 1059-60.                 This Court

deemed the two indemnification clauses “contradictory and ambiguous” and

construed the agreement against the indemnitee as drafter. Id. at 1060-61.

Chester Upland is directly on point and controlling here. The conflict in the

Contract’s indemnity provisions at issue here must be resolved to exclude

indemnity for Appellants’ own negligence. As such, Appellants can prevail in

this action for contractual indemnification only to the extent the Eddis

accident was the result of Grace’s negligence and/or that of their

subcontractors or their employees, as set forth in the Contract.

      We reject Grace’s argument that Appellants’ voluntary settlement of

the Eddis Action bars their claim against Grace for contractual indemnity.

Grace cites Willard v. Interpool, Ltd., 758 A.2d 684 (Pa. Super. 2000),


                                       - 22 -
J-E01006-15


appeal denied, 796 A.2d 985 (Pa. 2001), for the proposition that a voluntary

settlement bars a claim for contractual indemnity. Willard is inapposite, as

it involves the law of agency. The Willard Court declined to adopt §§ 438

and 439 of the Restatement (Second) of Agency, which permit an agent to

settle a lawsuit without admitting liability and recover indemnity from the

principal.   Id. at 687-88.     As Appellants and Grace plainly have no

principal/agent relationship, the analysis in Willard has no application here.

Grace does not acknowledge the precise holding in Willard, nor does Grace

explain how Willard would bar recovery in this case. We therefore reject

this argument as having no merit. We note that if a contractual indemnitee

settles an underlying action, the law does not prohibit recovery.     Rather,

courts must consider the validity of the underlying claim and the

reasonableness of the settlement. McClure, 585 A.2d at 22.

      Finally, we address Appellants’ contention the trial court erred in

granting summary judgment on Appellants’ claim that Grace breached its

obligation to procure insurance.      The facts stated previously indicate

Appellants required Grace to procure insurance to support the indemnity

obligations imposed upon Grace under the Contract.     The trial court granted

summary judgment in Grace’s favor on this claim stating only that “there is

nothing in the Contract that requires that Grace’s insurance be primary.”

Trial Court Opinion 6/14/13, at 4. It is not clear how the trial court came to

this conclusion given the insurance provision contained within Exhibit A, ¶2


                                    - 23 -
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of the Contract and the absence of any provision layering insurance

coverage for claims arising out of the work. To the contrary, Exhibit A, ¶2

plainly requires, among other things, general liability insurance for any

bodily injury/property damage arising out of or relating to the work and that

BCF and the Landlord be named as additional insureds on this coverage.

Failure to provide insurance coverage for losses covered under the

Contract’s applicable indemnity provisions would constitute a breach by

Grace under the Contract.13 Indeed, Grace procured insurance and provided

certificates of insurance to Appellants in accordance with the Contract.

Grace’s insurer, however, denied Appellants’ tender because it believed the

accident was attributable to the Elevator’s malfunction and therefore was not

covered. The insurer also denied coverage because Eddis did not allege any

negligence on the part of Grace. Based on our analysis above, the cause of

the accident—and which party or parties are legally responsible—is an issue

for trial.   To the extent the trial court held that Grace had no contractual

obligation to procure insurance covering Appellant in the event of a claim

triggering Grace’s indemnity obligation, we find the trial court erred.            Of

course, it remains to be seen whether the losses claimed by Appellants will

fall within the indemnity obligation.          Suffice it to say, at this point in the
____________________________________________


13
  Any issue as to whether Grace’s insurer properly denied coverage is not
presently before this Court. We decide only that the trial court erred in
determining conclusively at this time that Grace had no contractual
obligation to provide insurance coverage for the Eddis Action.



                                          - 24 -
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proceedings, it was error for the trial court to grant summary judgment on

this claim.

        Grace finally argues that Appellants cannot recover on their contract

claims because they are not parties to the Contract.      Grace contends the

plain and unambiguous language of the Contract reveals that the Contract is

between Grace and “Burlington Coat Factory,” not BCFW.            Appellants’

Substituted Brief for Reargument En Banc, at 23. Grace contends that suit

now by BCFW is a post-loss request to reform the Contract. Id. at 24. In

opposition to Grace’s summary judgment motion, Appellants produced

evidence that “Burlington Coat Factory” is not a distinct legal entity, but a

licensed trade name used by the Appellants.14 Appellants’ Memorandum of

Law in Opposition to Grace’s Motion for Summary Judgment, 2/21/13, at

Exhibits K and L.      Appellants further produced copies of checks issued by

BCFW and accepted by Grace totaling approximately $700,000 for work

performed under the Contract. Id.

        Appellants’ use of “Burlington Coat Factory” as a trade name is

considered use of a fictitious name under Pennsylvania’s “Fictitious Names

Act.”15    See 54 Pa.C.S.A. § 302 (definitions – a “Fictitious Name” is any

____________________________________________


14
    Pennsylvania law and our Rules of Civil Procedure contemplate that
corporations may enter contracts and/or prosecute litigation under fictitious
names. See 54 Pa.C.S.A. § 331; Pa.R.C.P. 2176 and 2177.
15
     See 54 Pa.C.S.A. § 301, et seq.



                                          - 25 -
J-E01006-15


assumed or fictitious name, style or designation other than the proper name

of the entity using the name). The use of a fictitious name does not create a

separate legal entity, but is merely descriptive of a person or corporation

who does business under another name.              See Pinkerton's, Inc. v.

Superior Court, 57 Cal.Rptr.2d 356 (1996), citing cases; see also

American Express Travel Related Services Co. v. Berlye, 414 S.E.2d

499, 501 (1991) (“The use of d/b/a or ‘doing business as’ to associate a

tradename with the corporation using it does not create a legal entity

separate from the corporation but is merely descriptive of the corporation”).

The business name is a fiction, and so too is any suggestion the business is

a legal entity separate from its owner. Pinkerton. Appellants’ response to

Grace’s motion for summary judgment reveals that Appellants are in fact

“Burlington Coat Factory” and the contracting parties in this case. 16 Grace’s

contention that Appellants are not the parties to the Contract fails to
____________________________________________


16
   Appellants’ Exhibits K and L set forth that “BCF” is a registered trade
name with the United States Patent and Trademark Office and that
“Burlington Coat Factory” is a licensed trade name by BCFW to a family of
related entities, including Appellants herein. Appellants’ exhibits do not
address whether the trade or fictitious name of “Burlington Coat Factory” is
registered with the Pennsylvania Department of State. Fictitious names may
be registered with the department, see 54 Pa.C.S.A. § 311, but the failure
to do so does not affect the validity of any contract or act of the entity doing
business under a fictitious name. 54 Pa.C.S.A. § 331(a). The failure to
register a fictitious name, however, precludes an entity from maintaining
any action in any tribunal in this Commonwealth until a registration has been
completed. Id. We do not address and therefore offer no opinion on the
issues raised by these statutory provisions, as the parties have not raised
compliance issues in this appeal.



                                          - 26 -
J-E01006-15


recognize the import of conducting business under an assumed or fictitious

name.

       The point is amply demonstrated in the early case of Ulick v.

Vibration Specialty Co., 35 A.2d 332 (Pa. 1944). In Ulick, the question

presented was whether a warrant of attorney to confess judgment contained

in a contract signed by the “Federal Home Improvement Co.,” a fictitious

name for an individual--Edna Ulick--who owned the company, could be

exercised by Ulick against the other contracting party. Id. at 333. Ulick had

registered the trade name of “Federal Home Improvement Co.” under the

Pennsylvania’s Assumed or Fictitious Names Act prior to execution of the

contract.17    Id.     The Court held that registration being of record was

constructive notice of the nature of the person or business that was

negotiating or contracting.       Id.   As such, the appellant in Ulick could not

“plead ignorance of facts of which it was deemed to have had notice,” or

claim it was “deceived in any manner or that any fraud was perpetrated

upon it.” Id. Ulick was in fact the real contracting party to the contract and

the trial court therefore properly refused to strike off the confessed

judgment. Id. at 334.



____________________________________________


17
    Fictitious names registered under former provisions of Pennsylvania’s
fictitious names acts are deemed to be registered under the current act.
See 54 Pa.C.S.A. § 304.



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      Here, as in Ulick, Appellants executed their contract with Grace under

their trade or fictitious name.    Grace accepted payment from BCFW for

worked performed under the Contract.         The record on summary judgment

does not support Grace’s contention that “Burlington Coat Factory” is a

separate entity from Appellants so as to deprive Appellants from pursuing

breach of contract claims against Grace under the Contract.

      For all of the foregoing reasons, we vacate the order entering

summary judgment in favor of Grace and remand this matter to the trial

court for further proceedings consistent with this opinion.

      Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/29/2015




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