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NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37
BURLINGTON COAT FACTORY OF IN THE SUPERIOR COURT OF
PENNSYLVANIA, LLC AND BURLINGTON PENNSYLVANIA
COAT FACTORY WAREHOUSE
CORPORATION,
Appellants
v.
GRACE CONSTRUCTION MANAGEMENT
COMPANY, LLC,
Appellee No. 2036 EDA 2013
Appeal from the Order Entered June 14, 2013
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): October Term, 2011 No. 001844
BEFORE: BOWES, OTT, and JENKINS, JJ.
CONCURRING AND DISSENTING MEMORANDUM BY BOWES, J.:
FILED SEPTEMBER 15, 2014
I agree with my distinguished colleagues that BCF is not entitled to
summary judgment as a matter of law based on the indemnification clauses
Ruzzi v. Butler Petroleum Co., 588 A.2d 1,
4 (Pa. 1991).
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Grace does not dispute, however, that it agreed to indemnify BCF (but
not BCFPA or BCFWC) against losses or claims to the extent Grace or its
subcontractors or their employees were negligent or otherwise responsible.1
Thus, whether BCF can ultimately prevail on the merits of its indemnification
claim depends on whether it can prove that Grace and/or Eddis were sole or
contributing causes of the harm to Mr. Eddis. The trial court concluded, and
the majority agrees that, BCF failed to submit sufficient evidence that Grace
caused
e of the accident to BCF
2
Majority Memorandum,
contribution. Id. I respectfully disagree.
After a thorough review of the record and pleadings below, I do not
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1
There is evidence in the record that Grace doubted the legitimacy of Mr.
See nt, Exhibit H (email
dated October 1, 2012, from counsel for Grace to counsel for BCF).
2
plaintiffs in the underlying action, Mr. and Mrs. Eddis, entered into a release
See
¶ 31.
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causation as a ground for entry of summary judgment with sufficient
specificity
the lack of an expert report is contained in ¶ 42 of its summary judgment
supra, the record is devoid of any expert report opining
or establishing that Grace violated the standard of care of a general
contractor or construction manager, or that Grace was negligent in any
an expert report was required to establish a prima facie negligence case
and avoid summary judgment.3
Since the issue was not clearly asserted as the basis for summary judgment
in the trial court, BCF was not placed on notice that it would be required to
meet this allegation to avoid summary judgment.
MIIX Insurance Co. v.
Epstein, 937 A.2d 469 (Pa.Super. 2009), for its holding that an expert
report was indispensable in this case, is misplaced. That contribution action
arose out of a professional negligence action. The defendant physicians
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3
unenforceable because BCF contracted using its trade name; that operation,
maintenance, and repair of the freight elevators was outside the scope of
indemnity claims; that the contract language did not provide indemnification
See Defendant, Grace Construction Management
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were not sued in the original action. The trial court reasoned, and this Court
agreed, that since the indemnity claims were actually claims of medical
malpractice, and since a medical malpractice plaintiff generally must produce
expert medical testimony to maintain such an action, expert medical
testimony was required to maintain the indemnity action. We acknowledged
therein that the ruling was consistent with well-established authority
the complexities of the human body place
questions as to the cause of pain or injury beyond the knowledge of the
produce
the opinion of a medical expert to demonstrate the elements of his cause of
Hamil v. Bashline, 392 A.2d 1280, 1285 (Pa. 1978). Expert
medical opinion addressing the elements of a cause of action within a
reasonable degree of medical certainty was necessary to establish a prima
facie case and avoid summary judgment.
allegations that those defendants were negligent in the maintenance and
upkeep of the freight elevator and, as a result, it malfunctioned and caused
prove the applicable standard of care; causation could be inferred from the
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facts surrounding the incident.4 BCF was not required to produce an expert
report disputing causation in the underlying action. In order to prove a right
to indemnification, BCF must prove negligence on the part of Mr. Eddis or
Grace or both and that such negligence caused or contributed to the injury.
The causal connection between the elevator gate and the alleged injury was
obvious. The real issue was whether the injuries were negligently inflicted
and, if so, which party or parties were responsible. A jury of laypersons
could look at the evidence and determine whether the injury resulted from
e to
elevator.
When determining whether Grace is entitled to summary judgment, we
view the record in the light most favorable to BCF, the non-moving party. If
there are genuine is
injuries, summary judgment is not proper. I believe that BCF, who
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4
Had the action been brought in strict liability against the elevator
manufacturer, evidence that the product malfunctioned would have supplied
circumstantial proof of a defect. See Wiggins v. Synthes (U.S.A.), 29
A.3d 9 (Pa.Super. 2011) (patient was not required to present testimony that
orthopedic screws were defective under the malfunction theory as the jury
could infer the existence of a defect from circumstantial evidence that they
broke).
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material fact that warrant submission of that issue to a jury. See Pa.R.C.P.
sound or that the safety shoe mechanism did not retract upon contact, which
arguably implicated BCF, that evidence was controverted. Furthermore,
there was ev
elevator caused or at least contributed to his injury. Additionally, there was
evidence that Grace failed to enforce workplace safety rules and supervise
its subcontractors and their employees when it permitted workers like Mr.
Eddis to operate the freight elevator.
deposition that he taught Mr. Eddis and others how to operate the elevator.
Mr. Cromwell showed the group the run/stop switch, and demonstrated its
importance.
In fact, at that moment once we stepped on the elevator, I put
on the stop. I explained to everyone in the room that the reason
for the stop switch is to hold that elevator open on that floor
where you are. And the only way the elevator can move is if you
take it off that stop and put it in the run mode and then you
would have to push whatever the designated floor you wanted to
go to, you would push that button to whatever floor you will go
to. And the elevator in turn will respond to you. Once you take
it out of stop and put it into run [,] the inner door and outer door
will close, and the elevator will take you to your designated floor
you want to go to.
Deposition of Kevin Cromwell, 5/24/12, at 20. He also cautioned them not
to stand in the pathway of the door and reinforced that the elevator had to
be in stop mode during the loading or unloading process. Id. at 21, 26. Mr.
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Cromwell stayed on the elevator with Mr. Eddis and the others while they
demonstrated for him that they understood how to use the elevator
properly. Id. at 30.
Mr. Cromwell explained that the gate inside the elevator was equipped
with a mechanism that reversed itself upon contact with an obstruction. The
expert in the underlying case against BCF and Schindler called this a safety
shoe mechanism that automatically reversed the direction of the closing gate
upon impact.5 Mr. Cromwell also explained how the warning bell worked.
Id. at 37. Once
the elevator was placed into run mode and a floor selected, the bell would
ring before the doors closed. Id. at 38. The expert confirmed that, based
upon his subsequent inspection of the freight elevator, the alarm bell would
ring for several seconds before the metal gate came down inside the
elevator car and the two external vertical doors closed. Expert Report, J.
Pablo Ross, P.E., 8/31/12, at 5.
After Mr. Eddis apprised him of the accident, Mr. Cromwell prepared a
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The expert noted in his report that, at the time of his investigation, the
elevator also was equipped with a proximity edge mechanism that consisted
of a set of infrared beams that detected an obstruction in its path and which
would prevent the gate from closing until the obstruction was removed.
That device had not been installed on the freight elevator in question when
the alleged injuries occurred herein. Expert Report, J. Pablo Ross, P.E.,
8/31/12, at 6.
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telephoned and then expedit
he was able to access and view video surveillance of the incident. Since
there was no audio with the video, he was unable to discern whether the bell
sounded to indicate that the elevator gate was closing. However, he
described how Mr. Eddis entered the elevator with a wheelbarrow, and then
exited and reentered the elevator a second time with his back to the
elevator entrance. As he did so, Mr. Eddis pressed a button designating his
destination floor, and th
mid-back region and went back up. Mr. Cromwell testified that as Mr. Eddis
entered the elevator, it was in the run mode rather than the stop mode, and
that by pressing the floor button, Mr. Eddis activated the closing of the door
upon himself. The video depicting the accident was subsequently lost due to
a power brownout.
Mr. Eddis admitted that Mr. Cromwell instructed him in the operation
of the elevator. More importantly, Mr. Eddis conceded that, on the day of
the accident, he did not press the stop button to keep the elevator doors
did not do so, together with evidence that Mr. Eddis pressed the button
designating a floor and triggered the closing of the gate, support the
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competing inference that Mr. Eddis was causally negligent.6 Thus, there
e in producing his
injury that should have been submitted to a jury.
In addition, there were controverted factual issues, which depending
the elevator malfunctioned. Mr. Cromwell testified that the freight elevator
was working properly both before and after the incident, and that on that
particular day, the warning bell was functioning before the inside gate
mechan
that it pinned him against the wheelbarrow, was controverted by Mr.
Cromwell. He testified that the video surveillance depicted reversal of the
gate immediately upon contact with Mr. Eddi
BCF that there is sufficient evidence, if credited by the jury, to support a
an elevator malfunction was the cause of his injury. At the very least, Mr.
issue of material fact as to whether his negligence was a cause of his injury.
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use the stop button when loading and unloading the freight elevator. Based
on this testimony, expert J. Pablo Ross concluded that Mr. Cromwell failed to
instruct Mr. Eddis to use the stop button when loading or unloading the
elevator, a fact that is controverted. See Expert Report, J. Pablo Ross, P.E.,
8/31/12, at 11.
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Additionally, Grace was contractually responsible for workplace safety
and the freight elevators provided the only access to the floors where the
work was being performed. Mr. Arthur Snellbaker, Jr. testified that he was
-site supervision.
Deposition, Arthur G. Snellbaker, Jr., 9/19/12, at 19, 24. He acknowledged
that the store manager for BCF trained him in the operation of the freight
elevators and asked that workers seek out Kevin Cromwell if they needed to
use the elevators. However, Mr. Snellbaker knew that the subcontractors
and their employees used the elevators without his assistance or that of BCF
personnel. When he observed them violating the safety rules, his response
Id. at 58. One could reasonably find based on such
enforce its own safety standards and/or
properly train or supervise its subcontractors and their employees caused or
For the foregoing reasons, I believe that the evidence of record was
sufficient to create a genuine issue of material fact as to whether Grace, Mr.
Eddis, or BCF, or any combination thereof, were negligent, and whether that
negligence caused the injury. No expert report regarding causation was
cannot be
Court Opinion, 6/14/13, at 4- and free from
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Washington v. Baxter, 719 A.2d 733, 737 (Pa. 1998).
grounds asserted by Grace that the majority did not reach. Grace alleged
that BCFPA and BCFWC, the defendants in the underlying action, were not
contracting parties entitled to indemnification. Furthermore, Grace
contended that the omission of these entities from the contract was a
relief is not warranted.
Moreover, Grace maintains that it cannot be subject to liability for breach of
contract for failing to name the other entities as additional insureds on the
insurance policy.
BCF counters that BCFPA and BCFWC operate under the licensed trade
name of Burlington Coat Factory, and that these entities were the true
parties-in interest to the contract. It provided proof of licensing in
opposition to the motion. It maintains further that parties may enter into
binding contracts using trade names. See Dodge v. Williams, 47 Pa.Super
302 (1911). BCF relies upon two district court cases applying Pennsylvania
law, ASCO Healthcare Inc. v. County of Chester, 2000 WL 3485757 at
*3 (E.D. Pa. 2000) and Fabral, Inc. v. B&B Roofing Co., Inc., 2011 WL
4528362 (E.D. Pa 2011), in support of its contention that the real parties-in-
interest are the proper parties to enforce the contract.
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We note that BCF did not assert that Grace breached the contract by
failing to obtain insurance designating BCFPA or BCFWC as additional
insureds.7 Furthermore, CNA did not base its denial of a defense and
coverage on the discrepancy between the named additional insured, BCF,
and the parties seeking coverage. This is a red herring. Additionally, as the
alleged real parties-in-interest under the contract, I believe BCFPA and
BCFWC have a colorable right to seek enforcement of the indemnity
provisions, and Grace has not supplied persuasive authority to the contrary.
e. Hence, Grace is not
entitled to summary judgment as a matter of law on this issue.
Grace also contends that since its scope of work did not include
operation, maintenance, servicing or repair of the freight elevators, it cannot
be subject to indemnity for injuries caused by the malfunctioning of the
freight elevator doors. For the reasons infra, it is not clear that the freight
negligence in operating the elevator. Furthermore, there is evidence from
which a jury could conclude that Grace assumed responsibility under the
contract for workplace safety, and that use of the freight elevators by the
contractor, subcontractors, and their employees was contemplated to
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behalf.
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accomplish the work. Given the underlying factual issues, summary
judgment is not warranted on this basis.
Thus, I would reverse the grant of summary judgment in favor of
Grace and remand for further proceedings.
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