J-A03020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KAREN RICE, INDIVIDUALLY AND AS                IN THE SUPERIOR COURT OF
ADMINISTRATOR TO THE ESTATE OF                       PENNSYLVANIA
TIMOTHY RICE

                        Appellants

                   v.

JUDY BOLLINGER, RICHARD GEORGE,
S&S     HOME    BUILDERS,  INC.,
HAROLD RICE AND/OR HAROLD RICE
D/B/A HR RICE CUSTOM PAINTING
AND/OR HAL RICE

                        Appellees                   No. 397 MDA 2016


              Appeal from the Order Entered February 9, 2016
              In the Court of Common Pleas of Luzerne County
                      Civil Division at No: 2013-08539


BEFORE: LAZARUS, STABILE, and DUBOW, JJ.

MEMORANDUM BY STABILE, J.:                          FILED APRIL 26, 2017

     Appellant Karen Rice, Individually and as Administrator of the Estate of

Timothy Rice, appeals from the February 9, 2016, order entered in the Court

of Common Pleas of Luzerne County (“trial court”), granting summary

judgment in favor of Judy Bollinger, Richard George, S&S Home Builders,

Inc., Harold Rice and/or Harold Rice d/b/a HR Rice Custom Painting and/or

Hal Rice (individually “Bollinger,” “George,” “S&S,” and “HR,” or “Harold,”

and collectively “Appellees”). Upon review, we affirm.

     Briefly, on July 17, 2011, Timothy Rice (“Tim”) was at a property

owned by Bollinger to complete a painting project when he allegedly suffered
J-A03020-17



a fatal fall.    As a result, his wife, Appellant, filed a complaint against

Appellees, raising causes of action for negligence, wrongful death, survival

action, and negligent infliction of emotional distress.    Appellees eventually

moved for summary judgment.               In her motion for summary judgment,

Bollinger argued that she could not be liable for Tim’s death because Tim

was on the property as a sub-contracted painter. HR and Harold, in their

summary judgment motion, argued that, as a matter of law, Appellant could

not prevail against them because they hired Tim as a sub-contractor to

perform a paint project on Bollinger’s property. Lastly, George and S&S in

their summary judgment motion argued, inter alia, that they were not liable

for Tim’s death because they owed no legal duty of care to Tim, who was on

Bollinger’s property in his capacity as an independent painting contractor.

On February 9, 2016, the trial court issued an order and opinion, granting

Appellees’ respective motions for summary judgment.

       Appellant timely appealed. Following Appellant’s filing of a Pa.R.A.P.

1925(b) statement of errors complained of on appeal,1 the trial court issued

a Pa.R.A.P. 1925(a) opinion, captioned “Amended Opinion,” wherein it

____________________________________________


1
  We observe with disapproval that Appellant’s Rule 1925(b) statement
spanned over 12 pages and contained 72 assertions of error. We repeatedly
have emphasized that a 1925(b) statement must be “sufficiently concise and
coherent such that the trial court judge may be able to identify the issues to
be raised on appeal, and the circumstances must not suggest the existence
of bad faith.” Jiricko v. Geico Ins. Co., 947 A.2d 206, 210 (Pa. Super.
2008), appeal denied, 958 A.2d 1048 (Pa. 2008).



                                           -2-
J-A03020-17



slightly amended its February 9, 2016, opinion in support of Appellees’

summary judgment motions.

        On appeal,2 Appellant raises three issues for our review, reproduced

here verbatim:

        [I.] Whether the trial court erred in determining as a matter of
        law [Tim’s] status as an “independent contractor” where
        sufficient factual issues remain such that [Tim’s] status is a
        factual question for the jury?

        [II.] Whether the trial court erred in granting summary
        judgment as to each [Appellee]?

        [III.] Whether the trial court erred in determining there was no
        duty owed to [Tim] by any [Appellee] as a matter of law where
        sufficient factual issues remain?
____________________________________________


2
    It is well-settled that
        [o]ur scope of review of a trial court’s order granting or denying
        summary judgment is plenary, and our standard of review is
        clear: the trial court’s order will be reversed only where it is
        established that the court committed an error of law or abused
        its discretion.
        Summary judgment is appropriate only when the record clearly
        shows that there is no genuine issue of material fact and that
        the moving party is entitled to judgment as a matter of law. The
        reviewing court must view the record in the light most favorable
        to the nonmoving party and resolve all doubts as to the
        existence of a genuine issue of material fact against the moving
        party. Only when the facts are so clear that reasonable minds
        could not differ can a trial court properly enter summary
        judgment.
Hovis v. Sunoco, Inc., 64 A.3d 1078, 1081 (Pa. Super. 2013) (quoting
Cassel-Hess v. Hoffer, 44 A.3d 80, 84-85 (Pa. Super. 2012)). Moreover,
“[w]here the non-moving party bears the burden of proof on an issue, he
may not merely rely on his pleadings or answers to survive summary
judgment.” Krauss v. Trane U.S. Inc., 104 A.3d 556, 563 (Pa. Super.
2014) (citation omitted). “Failure of a non-moving party to adduce sufficient
evidence on an issue essential to his case and on which he bears the burden
of proof establishes the entitlement of the moving party to judgment as a
matter of law.” Id.



                                           -3-
J-A03020-17



Appellant’s Brief at 4 (unnecessary capitalization omitted).

      After careful review of the record and the relevant case law, we

conclude that the trial court accurately and thoroughly addressed the merits

of Appellant’s issues on appeal. See Trial Court Opinion, 4/27/16, at 9-24.

Accordingly, we affirm the trial court’s February 9, 2016 order granting

Appellees’ respective motions for summary judgment. We further direct that

a copy of the trial court’s April 27, 2016 opinion be attached to any future

filings in this case.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/2017




                                     -4-
                                                                  Circulated 03/31/2017 01:52 PM




Karen Rice, Individually and as             In the Court of Common Pleas
Administrator to the Estate                       of Luzerne County
of Timothy Rice

                     Plaintiff,
                                                CIVIL ACTION - LAW
       v.

Judy Bollinger, Richard George,
S&S Home Builders, Inc., Harold Rice
and/or Harold Rice d/b/a HR Rice
Custom Painting and/or Hal Rice                       ~
                    Defendants                    ~j
                                  AMENDED OPINION

Background

        The instant matter arises out of the death of Timothy Rice ("Tim

Rice"), husband of Plaintiff Karen Rice, on July 17, 201 l. related to a fall

from the staircase at a property owned by Defendant Judy Bollinger

("Bollinger")   and located at Lake Wallenpaupack, Pennsylvania       (the

"Property"). Prior to Tim Rice's death, Bollinger hired S&S Home Builders,

Inc. ("S&S Home Builders") to construct a home on the Property. (Richard

George Deposition, p. l 06.) Bollinger was not involved in the construction

of the house and did not complete any work on the house while

construction was in progress. (~ at 113-114.) Richard George ("George")

is the sole owner and President of S&S Home Builders and has responsibility

for supervising home builds which are completed by subcontractors for

the Company. (~ at 12, 16, 19.) This supervision involves observing the

construction site after the completion of each subcontractor's work to




                                                                                                   ,~,
              determine whether the site is ready for the next subcontractor.        (Id. at 96-

              97.) According to George, during these visits, he observes the safety

              measures put in place by each subcontractor.         {.!s;t at 98.} According to

              George, he takes his safety responsibility on all jobs seriously and believes

              that he should do everything to keep all subcontractors on a job safe. (Id.

              at 83-84.} If a subcontractor is not completing a job in a safe manner, S&S

              Home Builders will dismiss him/her from his/her duties. (.!s;t at l 03.}

                    S&S Home Builders hired a subcontractor,        Defendant Harold Rice

              d/b/a HR Rice Custom Painting ("Hal Rice"), to complete the painting at

              the home construction. S&S Home Builders did not provide Hal Rice with

              any supplies, and did not direct any safety protocols. (.!s;t at 19; Hal Rice

              Deposition, p. 101-104.) S&S Home Builders only provided Hal Rice with the

              location, needs, and deadline for the job. (Hal Rice Deposition, p. 101.}

              Neither George, nor S&S Home Builders, provided any instruction to Hal

              Rice on how the home should be painted. (.!s;t at 104.}

                    Hal Rice hired his brother, Tim Rice, to complete finishing and touch-

              up paint work to the home. (Js;h at l 04.) Hal Rice often hired

              subcontractors to assist with painting jobs. (Js;h at 39-40.) He ordered the

              paint for the subcontractors and set deadlines for their work, but did not

              provide them with supplies or scaffolding. (Id. at 20, 39-40.} Prior to sending

              a subcontractor   to a job, Hal Rice would often complete a walk-through

             inspection of the premises to determine how much paint would be



                                                      2


------··--·-····,····---··-·-
                                                              -
needed and whether the premises were ready for paint. {1st at 49.) It was

important for Hal Rice that subcontr~ctors follow deadlines so that the

next step of the construction could proceed. {1st at 20.) Hal Rice had the

ability to dismiss any of his subcontractors. (Id. at 37-38.) He required each

subcontractor, including Tim Rice, to sign an independent contractor

agreement, outlining the nature of the relationship between the parties.

(1st 44-45.) The agreement required that the independent contractor was

solely responsible for safety and supplying his own insurance. (1st} Tim Rice

was paid by the hour and received a 1099 for each year in which work

was subcontracted to him. (Id. at 52, 88-89 .) Other subcontractors hired

by Hal Rice were paid in different forms depending on the way Hal Rice

was paid for the particular job. (kl at 54.}

      The building plans for the home contained a provision for the

installation of a wooden hand rail along the staircase. Prior to the

installation of the hand rail, Bollinger instructed George that she did not

desire to use the wooden rail he had ordered, rather, she preferred a

modern-looking rail. {Richard George Deposition, p. l 19-122, 126-137, 17 4.)

George informed Bollinger that he could not install such a rail and that he

· would reduce the original contract price by the price for the wooden rail

and installation. {Id. at 159, 17 4.) Bollinger hired another construction

company to install the modern railing. (kl at 92, 158-159, 181.)




                                        3
       On July 17, 2011, the day of his death, Tim Rice and Karen Rice were

at the Property completing a painting project. In the afternoon, Karen

Rice went outside for a period of time. (Karen Rice Deposition, p. 110-121.)

When she returned, her husband was laying at the bottom of the stairs in

the home. (kt.) Karen Rice did not witness her husband fall from the stairs

and does not know the cause of the fall. {kt.) The hand rail for the

staircase had not yet been installed. (kt. at 200-20 l .} No temporary railing

or scaffolding was constructed at the time of Tim Rice's fall. (Id.) In her

deposition, Karen Rice stated that, on the date of the incident, she could

see that there was no railing on the stairs. (ld. at 93.) Karen Rice also

stated that when she visited the property with her husband a few days

before the incident, it was noticeable that there was no railing on the

stairwell. (kt. at 66-67.)

       As a result of the death of her husband, Tim Rice, Karen Rice, both

individually and as administrator of his Estate {collectively, "Plaintiffs"), filed

an action based in negligence against various parties involved in the

construction project at the Property. Through the course of the litigation,

certain Defendants were removed and the only Defendants remaining

are Bollinger, Hal Rice and/or Harold Rice d/b/a HR Rice Custom Painting,

George, and S&S Home Builders (collectively, the 1'Defendants").         Each of

the Defendants have filed motions for summary judgment which are

currently before this Court.



                                         4
Standard of Review

      The Pennsylvania Rules of Civil Procedure that govern summary

judgment instruct, in relevant part, that the court shall enter judgment

whenever there is no genuine issue of any material fact as to a necessary

element of the cause of action or defense that could be established by

additional discovery. Pa.R.C.P. 1035.2(1) (2005). Pursuant to the Rules of

Civil Procedure, a motion for summary judgment is based on an

evidentiary record that entitles the moving party to a judgment as a

matter of law. Note to Pa.R.C.P. 1035.2 (2005}. "In considering the merits of

a motion for summary judgment, a court views the record in the light most

favorable to the non-moving party, and all doubts as to the existence of a

genuine issue of material fact must be resolved against the moving

party." Fine v. Checcio, 582 Pa. 253, 265, 870 A.2d 850, 858 (citing Jones v.

SEPTA 565 Pa. 21 L 772 A.2d 435, 438 (2001)). Still, the non-moving party

may not rest upon the allegations or denials in the pleadings, rather,

he/she must identify in the record evidence of a dispute of material fact.

Pa.R.C.P., Rule 1035.3 {2003). Finally, the court may grant summary

judgment only where the right to such a judgment is clear and free from

doubt. Marks v. Tasman, 527 Pa. 132, 134-135, 589 A.2d 205, 206 (1991 }.

Law and Discussion

      The matters before this Court are Defendant Judith Bollinger's

Second Motion for Summary Judgment, Defendants Harold Rice and/or



                                      5
                                                             .~-....




Harold Rice d/b/a HR Rice Custom Painting's Motion for Summary

Judgment, and Defendants Richard George and S&S Home Builders, lnc.'s

Motion for Summary Judgment. For the reasons that follow, the various

Motions for Summary Judgment are GRANTED.

Independent   Contractor Status of Tim Rice

      Initially, to ascertain the law governing any duty owed to Tim Rice

by any of the Defendants, it is necessary to consider whether, as a matter

of law, Tim Rice was an employee or an independent contractor. "In any

case sounding in negligence, a plaintiff must demonstrate:             ( 1} a duty of

care; (2) the breach of the duty; (3) a causal connection between the

conduct and the resulting injury; and (4) actual loss or damage resulting

to the plaintiff. Farabaugh v. Pennsylvania Turnpike Commission, 590 Pa.

46, 61, 911 A.2d 1264, 1272-1273 (Pa. 2006). Tim Rice's status as either an

employee or an independent contractor implicates his relationship with

each Defendant, and, thus, any duty which each may respectively owe.

Importantly, if the facts related to one's status as either an independent

contractor or an employee are not in dispute, then the determination is to

be made by the court as a matter of law. Cox v. Caeti, 444 Pa. 143, 147,

279 A.2d 756, 758 (Pa. 1971) {internal citations omitted}.

      According to the Pennsylvania Supreme Court, "[i] n ascertaining

whether a person is an employee or an independent contractor, the

basic inquiry is whether such person is subject to the alleged employer's



                                      6
                        -·
right of control or right to control with respect to his physical conduct in

performance   of the services for which he was engaged."     & The following
factors will be considered by a court to determine whether an individual is

an independent contractor: " ... ( l) control of manner the work is done; (2)

responsibility for result only; (3) terms of agreement between the parties;

(4) nature of the work/occupation; (5) skill required for performance;    (6)

whether one is engaged in a distinct occupation or business; {7) which

party supplies the tools/equipment;   (8) whether payment is by time or by

the job; (9) whether work is part of the regular business of employer; and,

{l 0) the right to terminate employment." American Road Lines v. Workers'

Compensation Appeal Board, 39 A.3d 603, 61 l (Pa. Cmwlth. Ct. 2012).

While none of the factors mentioned are dispositive, the key factors are

control over the work and the manner in which such work is performed. Id.

      In the instant matter, it is clear Hal Rice did not exercise the type of

control over Tim Rice necessary to classify him as an employee, rather

than as an independent contractor. The undisputed facts of record

demonstrate that Tim Rice was not subjected to any control by Hal Rice

related to the painting services for which he was hired. See Cox, 444 Pa.

at 147, 279 A.2d at 7 58. Hal Rice merely provided paint and set deadlines

for Tim Rice. (See Hal Rice Deposition, p. 20, 39-40.) He did not provide any

tools to Tim Rice for the completion of the job. (Id. at 101-104.)




                                       7
                          -.                                  _........__




      Applying the factors which Pennsylvania courts have delineated for

determining whether an individual is an employee or an independent

contractor, Tim Rice's status as an independent contractor remains clear.

See American Road Lines, 303 A.3d at 611. Tim Rice exercised control over

his own work. See id. The parties were only responsible for the end result

of the work completed. See id. As demonstrated       through the

independent   contractor agreement and the performance                  of the parties.

Tim Rice controlled the manner of the work and was responsible for his

own safety. See id. Also, the nature of the work, painting, often involves

similar subcontractor   relationships between parties. See id. Painting is a

skilled trade for which Tim Rice relied on his own expertise. See id. Tim Rice

used his own equipment to complete the work at the Property. See id. Hal

Rice provided 1099s to Tim Rice for taxation purposes in relation to his pay

for work completed. See id. Hal Rice would dismiss any of his

subcontractors from the job if the work was inadequate. See id. Although

Tim Rice was paid an hourly rate, and both Tim and Hal Rice were in the

business of painting, no one factor is dispositive. See id. The record as a

whole reflects that Hal Rice did not control the manner in which Tim Rice

completed his work. See id.

      Finally, Plaintiff's argument that Tim Rice's status as either an

employee or an independent contractor raises a genuine issue of

material fact making entry of summary judgment improper is misplaced.



                                        8
First, assuming, arguendo, Tim Rice was an employee of Hal Rice, then the

instant matter would be preempted       by the Pennsylvania Workers'

Compensation Act and the suit could not stand in the Court of Common

Pleas. Second, Plaintiff fails to recognize that Tim Rice's status as either an

employee or an independent        contractor is not a .. fact" which remains in

dispute, rather, it is a determination for this Court to make, as a matter of

law, based on the undisputed facts of record relevant to his status. Cox,

444 Pa. at 147, 279 A.2d at 758. Plaintiff simply has failed to point to any

remaining fact which is unresolved and would affect a determination         by

this Court of Tim Rice's status as either an employee or an independent

contractor. See Pa.R.C.P., Rule 1035.3.

Non-Liabilityand Retained Control

      As a matter of law, none of the Defendants, a landowner and

independent contractors, owed any duty of care to Tim Rice, a

subcontractor, thus, summary judgment is appropriate in this negligence

action.

      Liability of Landowner (Bollinger}

          First, summary judgment in favor of Bollinger is proper because a

landowner who entrusts work to an independent contractor owes no duty

of care to others for the act or omission of the contractor or its servants.

According to the Pennsylvania Supreme Court, "[f]or over 100 years, the

accepted and general rule regarding liability in our Commonwealth          has



                                         9
                             , .....




been that a landowner who engages an independent contractor is not

responsible for the acts or omissions of such independent contractor or his

employees." Beil v. Telesis Construction, Inc., 608 Pa. 273, 289, 11 A.3d 456,

466 (Po. 2011} (internal citations omitted}. Further, "[t]his foundational law

is based upon the long-standing notion that one is not vicariously liable for

the negligence of an independent contractor, because engaging an

independent contractor implies that the contractor is independent in the

manner of doing the work contracted for."             kl   Pursuant to Section 409 of

the Restatement (Second} of Torts, "[e]xcept as stated in Sections 410-429,

the employer of an independent contractor is not liable for physical harm

caused to another by an act or omission of the contractor or his servants."

Restatement (Second) of Torts§ 409.1

       Section 414 of the Restatement (Second) of Torts, as adopted in

Pennsylvania, provides that "[o]ne who entrusts work to an independent

contractor, but who retains the control of any part of the work, is subject

to liability for physical harm to others for whose safety the employer owes

a duty to exercise reasonable care, which is caused by his failure to

exercise his control with reasonable care." Restatement (Second} of Torts

I
  One exception to the general rule of non-liability for those who hire an independent
contractor is the peculiar risk exception. However, this Opinion does not address the
peculiar risk exception because it clearly does not apply to the facts of this case.
Notably, the Pennsylvania Superior Court has stated: "There is nothing about the
existence of a stairwell opening at a two-story building construction site that presents a
peculiar risk to those working on the building. The risk of falling through such an opening is
on incident of such work and the customary procedure for protecting such an opening
to guard against a falling is well within the normal expertise of a qualified contractor.
Mentzerv. Oanibene, 408 Pa.Super. 578, 592-593, 597 A.2d 604, 61 l (Pa. Super. 1991).


                                             10
                        .-....



§ 414; Beil, 608 Pa. at 289, 11 A.3d at 466. Pursuant to Comment c to

Restatement Section 414:

             In order for the rule stated in this Section to
            apply, the employer must have retained at least
            some degree of control over the manner in
            which the work is done. It is not enough that he
            has merely a general right to order the work
            stopped or resumed, to inspect its progress or to
            receive reports, to make suggestions or
            recommendations which need not necessarily
            be followed, or to prescribe alterations and
            deviations. Such a general right is usually
            reserved to employers, but it does not mean that
            the contractor is controlled as to his methods of
            work, or as to operative detail. There must be
            such a retention of a right of supervision that the
            contractor is not entirely free to do the work in his
            own way. Restatement (Second) of Torts§ 414,
            Comment c.

      A party may demonstrate the control necessary to invoke the

exception in two ways. Beil, 608 Pa. at 291, 11 A.3d at 467. First, the fact

that a landowner has retained control over the work to be completed

may be demonstrated        through contractual provisions giving the

landowner control over the manner, method, and operative details of the

work.Id, Second, a party may show that the landowner exercised actual

control over the work.Id, According to the Pennsylvania Supreme Court,

" ... our Commonwealth's         case law has construed this exception narrowly."

~(See~       Farabaugh v. Pennsylvania Turnpike Commission, 590 Pa. 46,

911 A.2d 1264 (Pa. 2006); Haderv. Cement Mfg. Co., 410 Pa. 139, 189 A.2d

271 (Pa. 1963); See also Warnick v. The Home Depot U.S.A., Inc., 516 F.



                                            11
Supp.2d 459, 468 (E.D. Pa. 2007)). In general, the question of retained

control is one of fact for the jury. Id. However, the Pennsylvania Supreme

Court has clearly stated that, when " ... the evidence fails to establish the

requisite retained control, the determination   of liability may be made as a

matter of law."   kh
      In Beil v. Telesis Construction, Inc., the Pennsylvania Supreme Court

affirmed the decision of the Superior Court directing that judgment

notwithstanding the verdict be entered in favor of a landowner that did

not retain sufficient control over the manner of the work of independent

contractors to invoke the retained control exception to the general rule of

non-liability. Beil, 608 Pa. 273, 11 A.3d 456. Lafayette College, the

landowner, hired Telesis Construction, Inc. ("Telesis") as the general

contractor for the renovation of its engineering building. Id. at 277, 458.

Telesis subcontracted     the roofing work for the project to Kunsman Roofing

and Siding ("Kunsman") and Plaintiff David Beil (''Beil") was an employee

of Kunsman.   kh at    277, 459. Lafayette College also separately contracted

with Masonry Preservation Services, Inc. ("MPS"} to complete stone work

on the outer walls of the building.

      While completing work on the roof flashing, Beil, who was using the

MPS scaffolding, fell 30 feet and sustained head and neck injuries, a

concussion, a fractured right shoulder, and a fractured heel.    kh at   278,

459. Based on the accident, Beil filed a personal injury lawsuit against



                                        12
                                                             --
Lafayette College, Telesis, and MPS. Id. A jury verdict was later entered in

favor of all Defendants; however, the Superior Court reversed the trial

court and instructed that it enter judgment notwithstanding       the verdict in

favor of Lafayette College because it was not liable as a matter of law

under any exception to the general rule of non-liability for a landowner

who hires an independent     contractor. Id. at 279, 460. Upon Plaintiffs'

appeal, the Supreme Court affirmed the entry of judgment in favor of

Lafayette College as a matter of law. See generally Beil, 608 Pa. 273, 11

A.3d 456.

      Plaintiffs' arguments to the Supreme Court that Lafayette College

retained sufficient control of the worksite to invoke the exception to the

general rule of non-liability focused on the College's control over access

and safety. Id. at 291, 467. Plaintiffs first argued that Lafayette College

retained control over safety matters for Telesis, Kunsman, and MPS. k;L As

proof of this control, Plaintiffs cited contractual provisions pursuant to

which Telesis agreed to comply with Lafayette College's safety directions

and rules. k;L To demonstrate control, Plaintiffs also pointed to facts

involving the College's input on the placement of the scaffolding for

safety purposes. k;L at 292, 467. Despite these facts, the Beil Court

specifically held that the notion that safety-related conduct at a worksite

could establish the requisite control to invoke the exception " ... is contrary

to consistent pronouncements     by our Commonwealth's       courts rejecting



                                       13
                            -..




such arguments as against sound public policy." Id. at 292, 468.

Referencing Farabaugh v. Pennsylvania Turnpike Commission, the Court

explained that it recently rejected as a matter of law a safety-related

control argument based on the employment        of on-site safety

representatives who could stop work. Id. at 293, 468 (citing Farabaugh v.

Pennsylvania Turnpike Commission, 590 Pa. 46, 911 A.2d 1264 (Pa. 2006}).

The Beil Court ultimately concluded " ... that a property owner retaining a

certain degree of authority over safety issues, such as supervising and

enforcing safety requirements, and even imposing its own safety

requirements at a work site, does not constitute control for purposes of

imposing liability."   kl
       Turning to the question of whether control over access is sufficient to

invoke the exception, the Beil Court rejected Plaintiffs' arguments that

control was established by contract provisions requiring compliance with

Lafayette College's rules and that Telesis obtain permission to enter the

building; the College's control over the placement of the scaffold; and,

significant to the instant matter, the College's separate hiring of MPS,

outside of the general contractor. Id. at 295, 469-470. Rejecting Plaintiffs'

two theories of control, the Beil Court noted that one must differentiate

control over the operational detail or manner of work and control over

the building in which the work is conducted. Id. at 295-296, 470. The clear

focus on control must be over the substantive performance       of the work.



                                      14
                         -.

KL at   296, 470. The Court highlighted that a landowner must maintain

some control over an independent contractor in relation to access to the

property and safety; however, such matters are tangential to the

substantive work of the contractor and subcontractors         over which control

must be exercised to invoke the exception.       kl   at 297, 470-471.

        Recently, in a case similar to Beil, the Pennsylvania Superior Court

reversed the trial court's denial of a landowner's motion for judgment

notwithstanding the verdict because the landowner did not retain control

over the manner of the work of its independent contractor. Nertavich v.

PPL Electric Utilities, 100 A.3d 221 (Pa. Super.2014). In Nertavich v. PPL

Electric Utilities, an employee of an independent contractor, QSC, hired to

paint PPL's electric transmission poles sued PPL after he sustained injuries

from falling 40 feet off one of the poles.   Kt at 223. The various   facts the

Nertavich Court considered in relation to the question of retained control

are as follows: pursuant to the contract, QSC was required to follow PPL's

detailed requirements for painting, including the type of paint and how to

apply the paint; PPL had a field representative who served as a daily

source of contact for procedures, quality assurance and safety; the PPL

field representative could stop the contractor's work for safety violations;

PPL limited access at times to the property; and, PPL provided ladders for

QSC's use in performing at the worksite. Id. at 223- 232, 235. The

Nertavich Court concluded that PPL's quality specifications did not



                                       15
                        --
demonstrate that it retained control over the worksite because such

specifications were not related to Plaintiff's fall and that PPL had hired

QSC as painting experts.     kl   at 232. Also, the contract specified that QSC

was responsible for its own climbing and personal protective equipment.

kl   Although QSC requested ladders from PPL, PPL providing the ladders is

not evidence that it retained control over the workslte because PPL did

not mandate use of its ladders and only provided them when QSC was

not able to obtain them otherwise.       kl    at 238-239. Further, the Nertavich

Court relied on the holding of the Beil Court in finding that any control PPL

may have had over safety or access to the property was not sufficient, as

a matter of law, to establish the control necessary to implicate the

retained control exception. Id. at 232-233, 236.

        In the instant matter, it is clear, as a matter of law, that Bollinger did

not retain control over the work being conducted on the Property

sufficient to overcome the general rule against liability of a landowner

who employs an independent contractor. As a general rule, Bollinger is

not liable in this action for Tim Rice's death because she hired S&S Home

Builders as the general contractor for the construction project on the

Property. See Beil, 608 Pa. 273, 11 A.3d 456. To impose liability on Bollinger,

Plaintiffs must demonstrate that an exception to the general rule, such as

retained control, applies. See id. As will be discussed below, the facts




                                          16


                                                                                     ""''······--·--·--·---
                                                             .--
demonstrate that, as a matter of law, Bollinger may not be held liable in

the instant matter.

      Taking the relevant facts in the light most favorable to Plaintiffs, the

record reflects as follows: Bollinger entrusted the construction project to

S&S Home Builders and George as the general, independent contractor;

Bollinger did not complete any construction work on the Property;

Bollinger approved building plans which included a wooden rail for the

stairwell in the home; Bollinger instructed George and S&S Home Builders

not to install the wooden rail; George informed Bollinger that he would not

install the modern rail which she preferred over the wooden rail; S&S

Home Builders reduced the contract price for the home by the cost for

the purchase and installation of the wooden rail; and, Bollinger hired her

own construction company to install the modern rail. A review of the

relevant Pennsylvania law demonstrates that such facts fail, as a matter of

law, to demonstrate that Bollinger retained control over the construction

project on the Property.

      First and foremost, the record reflects that Bollinger had no control

over the manner in which S&S Home Builders, or any of the contractors,

completed the work for which they were hired. See Restatement

{Second) of Torts § 414; Beil, 608 Pa. 273, 296, 11 A.3d 456, 470. Bollinger

was not a contractor and retained no control over the manner in which

any of the contractors completed their work. Although Bollinger approved



                                      17
                                                              · -·


the building plans, this is not control over the manner in which the

contractors executed those plans. Additionally, Plaintiffs' arguments that

Bollinger retained control of the construction site by ordering that the

wooden rail not be installed and by hiring her own contractor to install the

modern rail fail under the applicable case law. Simply changing the type

of rail is not the type of necessary control contemplated by the law.

Comment c to Restatement Section 414 specifically states that it is not

sufficient to establish retained control that the individual has the right to

order work stopped or prescribe alterations and deviations. Restatement

(Second) of Torts§ 414, Comment c. Bollinger's actions in relation to the

installation of the rail reflect merely that she had the right to stop the

installation and alter the chosen rail. Further, Bollinger's direct hiring of

another contractor does not reflect retained control pursuant to Beil. In

Beil, the Court clearly rejected a similar argument by Plaintiffs that

retained control was established through the College's hiring of MPS

outside of the general contractor. Indeed, it is evident in the instant

matter that Bollinger did not even come dose to exerting the type of

control required by Beil and Nertavich to overcome the general rule of

non-liability of a landowner.




                                        18
      Liability of General Contractor and Subcontractor to another
      Subcontractor {Harold Rice/HR Rice and Richard George!S&S
      Home Builders)


      Finally, summary judgment in favor of George, S&S Home Builders,

and Hal Rice is proper because, generally, " ... a contractor is not liable for

injuries resulting from work entrusted to a subcontractor."     See Leonard v.

Commonwealth,          565 Pa. lOL 105, 771 A.2d 1238, 1240 (Pa. 2001) (internal

citation omitted). The law governing the issue of retained control for

landowners, as discussed above, is the same as that which governs

liability of contractors who entrust work to another independent

contractor. See Beil, 608 Pa. 273, 11 A.3d 456; id.; Restatement (Second}

of Torts § 409.

      A recent decision from the United States District Court for the

Eastern District of Pennsylvania demonstrates the application of the

retained control exception to general contractors and subcontractors. In

Yazujian v. Jacobs Proiect Management,          the United States District Court

for the Eastern District of Pennsylvania granted summary judgment in favor

of a general contractor in relation to an injury sustained by an employee

of one of its subcontractors. Yazujian v. Jacobs Project Management,

2013 WL 5948025 (E.D. Pa. 2013). Defendant Jacobs was the general

contractor for a construction project at Amtrak's 30th Street Station in

Philadelphia.     kt   at *l. Jacobs subcontracted the demolition work on the

project to Defendant M&G who employed Plaintiff as a construction


                                          19
laborer. ld. Plaintiff was injured when he was standing on a ladder cutting

away sections of a ceiling and a piece of the ceiling fell, knocking him off

the ladder.   kl    at *3. Plaintiff filed a complaint based in negligence

against Jacobs and various other defendants. Relevant to the instant

matter is Defendant Jacobs's motion for summary judgment.

      The Yazujian Court began its analysis of the motion for summary

judgment by stating:

                  It is a well settled general rule in Pennsylvania
                  that 'the employer of an independent
                  contractor is not liable for physical harm caused
                  to another by an act or omission of the
                  contractor or his servants. Id. at *4 (citing Beil, 608
                  Pa. 273, 11 A.3d 456, 466 (quoting Restatement
                  (Second} of Torts§ 409}}.

The Court then explained the retained control exception to the general

rule against liability by citing Beil and Restatement {Second} of Torts

Section 414. Id. at *4 - *5.

      Turning to the facts of the case before it, the Yazujian Court first

found the contractual language between Jacobs and M&G insufficient

to establish that Jacobs retained control over M&G.           kl   at *7 - *8. Pursuant

to the contract, Jacobs could take whatever action it deemed necessary

to prevent injury in the event that it obtained knowledge of a safety

violation.   kl   at *7. Relying on Beil and Leonard, the Court highlighted that

control over safety is not control over the manner of the work and to

impose liability over safety provisions would be contrary to public policy.



                                            20
kl   The Court also found unconvincing          general contract language that

allowed Jacobs to stop work upon any failure by M&G to perform under

the contract.    kl   at *8.

        The Yazuiian Court also rejected any argument that Jacobs

exercised actual control over M&G. ld. The action by Jacobs which the

Court found unconvincing was the project manager's oversight of

performance and safety.        kl   Specifically, the Court explained that Jacobs

did nothing to dictate to M&G the manner in which it proceed with its

demolition work such that it led to Plaintiff's injuries. Id. at *9. Accordingly,

the Court granted summary judgment in favor of Jacobs, the general

contractor. ls;L_

                Richard Georqe/S&S Home Builders

        Applying the law to the facts of the instant matter, it is clear that

neither George, nor S&S Home Builders, the general contractors, retained

control over the work of either Hal Rice or Tim Rice, such that either could

be liable for the death of Tim Rice at the construction site. To begin this

analysis, it is necessary to clarify the roles of George and S&S Home

Builders. Bollinger directly hired S&S Home Builders as the general

contractor for construction of the home on the Property. George is the

sole owner of S&S Home Builders and has responsibility for supervising

each of its construction projects which are completed by subcontractors.

Accordingly, both essentially served as the general contractor of the



                                           21
Bollinger construction, with George acting as the agent to carry out the

activities of S&S Home Builders. Thus, both are protected from liability for

the actions of Tim Rice, a subcontractor. Taking the facts relevant to any

liability by George and/or S&S Home Builders in the light most favorable to

Plaintiffs, the record reflects as follows: S&S Home Builders is in the business

of building homes through the hiring of subcontractors; S&S Home Builders

subcontracted   the painting job on the project to Hal Rice who then

subcontracted   certain aspects of the painting to Tim Rice; George

supervised the building for S&S Home Builders; George inspected the site

after each subcontractor completed work; George observed the safety

measures utilized by each subcontractor;     S&S Home Builders would dismiss

any contractor not working in a safe manner; S&S Home Builders and

George did not direct Hal Rice as to how the pointing should be

completed; S&S Home Builders did not provide supplies to Hal Rice; S&S

Home Builders did not direct safety protocols to Hal Rice; and, upon hire,

S&S Home Builders provided Hal Rice with the location, needs, and

deadline for the job.

      As independent contractors, both S&S Home Builders and George

are protected from liability in the instant matter under the laws of this

Commonwealth.      See Leonard v. Commonwealth,        565 Pa. 101, 105, 771

A.2d 1238, 1240 (Pa. 2001) (internal citation omitted}. The record reflects

that neither George, nor S&S Home Builders retained control over the



                                       22
painting of the home, such that either could be liable for Tim Rice's death.

Although George oversaw the completion of each subcontractor's work,

such oversight is insufficient to establish the type of control necessary to

invoke the exception. See Restatement (Second) of Torts§ 414, Comment

c. Also, Pennsylvania Courts have continually held that control over safety

is not sufficient for establishing retained control, and, to hold otherwise

would be against public policy. See Nertavich, 100 A.3d at 232-233, 236;

Yazujian, 2013 WL 5948025 at *7; Beil, 608 Pa. 273, 11 A.3d 456. Ultimately,

the record lacks any facts demonstrating that either George or S&S Home

Builders retained any form of control over the manner in which the

painting work on the construction project was completed.

             Harold Rice /HR Rice

      Likewise, the facts of the instant matter fail to establish that Hal Rice

retained control over the manner in which Tim Rice completed his work

such that liability may be imposed. Taking the facts relevant to any liability

by Hal Rice in the light most favorable to Plaintiffs, the record reflects as

follows: Hal Rice often hired subcontractors to assist with his painting jobs;

Hal Rice ordered and supplied the paint to his subcontractors; Hal Rice

did not provide supplies or scaffolding to his subcontractors; Hal Rice

would inspect the premises to determine how much paint was needed

and whether the premises were ready for paint; Hal Rice could dismiss his

subcontractors; and, the contract which Hal Rice had his subcontractors



                                       23
sign required that the subcontractor    provide his/her tools and that the

subcontractor was solely responsible for safety and insurance.

      As discussed at length above, Hal Rice's ability to inspect the

premises to determine the needs and status of the job fails as a matter of

law to establish retained control. See Restatement {Second} of Torts§ 414,

Comment c. Further, it is evident that Hal Rice did not in any way dictate

the manner in which Tim Rice completed his work. Contractually         and in

reality, subcontractors for Hal Rice used their own tools and took

responsibility for their own safety. There are simply no facts demonstrating

that Hal Rice controlled the performance      of Tim Rice's work, an essential

component to the retained control exception. See Nertavich, 100 A.3d

221; Yazujian, 2013 WL 5948025; Beil, 608 Pa. 273, 1 l A.3d 456.

Conclusion

      Finally, Plaintiffs fail to highlight in the record any dispute of material

fact that would make the entry of summary judgment in favor of Bollinger,

George, S&S Home Builders, or Hal Rice/HR Rice improper. Based on

Pennsylvania law as set forth at length above, Defendant Judith

Bollinger's Second Motion for Summary Judgment, Defendants Harold

Rice and/or Harold Rice d/b/a HR Rice Custom Painting's Motion for

Summary Judgment, and Defendants Richard George and S&S Home

Builders, lnc.'s Motion for Summary Judgment are hereby GRANTED.

                              (END OF OPINION}



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