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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
HART TRUCKING REPAIR, HAKAN : IN THE SUPERIOR COURT OF
RODOP, INDIVIDUALLY AND TRADING : PENNSYLVANIA
AS HART TRUCKING REPAIR AND RODOP :
TRUCKING, INC. :
:
v. : No. 1051 EDA 2014
:
ROBB H, INC., WILLIAM HAWTHORNE, :
PAWEL WOJDALSKI AND PW CUSTOM :
CONSTRUCTION :
:
APPEAL OF: ROBB H, INC. AND :
WILLIAM HAWTHORNE :
:
:
EAGLE TRUCK SERVICES, LLC AND :
FILBERTO CALZADILLO AND AIDA :
ROSALES, H/W :
:
v. :
:
PAWEL WOJDALSKI AND ROBB H, INC. :
:
APPEAL OF: ROBB H. INC. :
Appeal from the Judgment March 7, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division No(s).: February Term, 2010 No. 00546
November Term 2010 No. 00213
BEFORE: PANELLA, OLSON, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MAY 11, 2015
*
Former Justice specially assigned to the Superior Court.
J. A32041/14
Appellants,1 Robb H., Inc., and William Hawthorne,2 appeal from the
judgment entered in favor of Appellees, Hart Trucking Repair, Hakan Rodop,
individually and trading as Hart Trucking Repair and Rodop Trucking, Inc.
(collectively “Hart”), Eagle Truck Services, LLC, and Filberto Calzadillo, and
Aida Rosales, husband and wife (collectively “Eagle”). Appellants contend
the court erred by finding Appellants could be held liable for the actions
taken by an independent contractor absent evidence they had knowledge of
the contractor’s prior negligence. We vacate the judgment, reverse the
order denying Appellants’ motion for a new trial, and remand for a new trial.
We state the facts as set forth by a prior panel of this Court:
On 30 October 2008, Wojdalski entered into a contract
to perform roofing work on “Building # 7,” located at 2900
Orthodox Street, Philadelphia, Pennsylvania. Pursuant to
the “Roof Replacement” contract, Wo[jd]alski agreed to
“remove all existing roofing materials where necessary,”
and “install a new rubber roof.” Wojdalski immediately
began work on the roof.
[Around 2:00 or 2:30 a.m. on] 2 November 2008, a fire
broke out at 2900 Orthodox Street. Building # 7 was
entirely destroyed by the fire. The local Fire Marshall filed
a “Report of Fire Alarm” which concluded that the fire had
been ignited by an “Open Flame (Roofer’s Torch).” In a
recorded statement made to a claims underwriter,
Wojdalski admitted that he had just finished installation of
“a whole new . . . torch down rubber roof,” which required
1
For ease of disposition, we may refer to an individual appellant by using
the collective “Appellants.”
2
Pawel Wojdalski and PW Custom Construction are not parties to this
appeal.
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the “use of [a] torch to install the roof caulking, the roof
cement, and the roof tape.”
Certain Interested Underwriters at Lloyd’s London Subscribing to
Certificate Numbers 0637X/ATR049 v. Wojdalski, 1296 EDA 2011 (Pa.
Super. Sept. 17, 2012) (“Wojdalski I”) (unpublished memorandum at 7)
(quoting trial court’s opinion);3 see also N.T. Trial, 10/31/13, at 29, 184.
The fire started on the roof of Building 7, then extended
and spread to an adjacent garage/warehouse at Building
17. Both buildings and all contents were destroyed.
The eight acre industrial park owned by Robb H., Inc.
contains twelve commercial buildings and offices. The
tenants of Building 7 and Building 17 initiated this civil
litigation to recover damages for their property losses.
Trial Ct. Op., 12/19/13, at 1.
We adopt the findings of fact set forth in the instant trial court’s
decision. Id. at 1-6. We add that Wojdalski knew that “one of the most
important rules” of installing a torch down rubber roof was to remain on the
roof for an hour after installation to ensure everything was “safe.” N.T.
Wojdalski Dep., 9/27/10, at 103-05.4 Further, he was trained to remove
empty propane tanks from the roof at the end of the day. Id. at 105.
Wojdalski testified he left the roof around 6:30 p.m. on November 1, 2008,
3
The prior panel resolved an insurance coverage dispute between the
insurer of Mr. Wojdalski and the insurer of the building owned by Appellant
Robb H.
4
Wojdalski did not testify at trial; his deposition was made part of the
record.
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drove his workers home, and then returned home. Id. at 53, 64. Wojdalski
knew he was not supposed to leave propane tanks on the roof but did
anyway because he believed they were empty. Id. at 177-79.
We also note that Wojdalski prepared the contract, N.T., 10/31/13, at
180, which stated a rubber roof was to be installed. Ex. RH-4. The contract
did not specify “torch down” or otherwise indicate the use of an open flame.
See id. Hawthorne testified he did not instruct Wojdalski, and was unaware
“of any special precautions that needed to be taken” with respect to the
roof, the “torch down” process, and roofing operations generally. N.T. at
180-81. Wojdalski similarly testified Appellants did not instruct him on how
to replace the roof. N.T. Wojdalski Dep., 9/27/10, at 135; see also id. at
170-71.
The trial court did not adopt facts establishing that the roof repair work
was “highly dangerous unless properly done and is of a sort which requires
peculiar competence and skill for its successful accomplishment.”
Restatement (Second) of Torts § 411 cmt. c (1965). At trial, there was no
testimony or evidence on whether roof repair work is highly dangerous.
Similarly, the record is silent as to whether Appellants had prior knowledge
of Wojdalski’s past inattentiveness, negligence, inexperience, or lack of skill.
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Eagle sued only Wojdalski and Robb H., Inc., raising, inter alia, claims
of negligence5 per se, negligent supervision,6 negligence, and “respondeat
superior,” which it framed as follows:
98. The negligence and carelessness of [Wojdalski and
Robb H., Inc.] consist of the following:
a. Failing to properly and adequately hire, instruct,
inform, employ, train and/or supervise its agents,
servants, workers, employees and/or representatives, in
particular, the agents and employees of Defendant
Wojdalski . . . .
Eagle’s Compl. at 13 (emphasis added).7
5
“[A] claim of corporate negligence requires that in cases where a
corporation’s negligence is not obvious, a plaintiff must establish through
expert testimony that a corporation’s acts deviated from an accepted
standard of care and that the deviation was a substantial factor in causing
plaintiff’s harm.” Phillips v. Lock, 86 A.3d 906, 923 (Pa. Super. 2014)
(punctuation and citation omitted).
6
We note Eagle raised this claim against Wojdalski only, but we presume
that was a typographical error, as the tenor of the claim was directed to
Robb H.’s alleged inaction. Eagle’s Compl., 3/23/10, at 10-11.
7
“Under the doctrine of respondeat superior recovery is sought on the basis
of vicarious liability. An employer is vicariously liable for the wrongful acts
of an employee if that act was committed during the course of and within
the scope of employment.” Brezenski v. World Truck Transfer, Inc., 755
A.2d 36, 39 (Pa. Super. 2000) (emphasis added). In this case,
notwithstanding Eagle’s label of this claim as one for respondeat superior,
Appellees have construed this claim as one for negligent hiring of an
independent contractor under Restatement (Second) of Torts § 411. See
Appellees’ Brief at 24; see also Lutz v. Cybularz, 607 A.2d 1089, 1092
(Pa. Super. 1992) (construing similar allegation of negligence “as a claim
arising under § 411 of the Restatement of Torts” “[a]lthough neither the
parties nor the trial court phrase it as such”); cf. Stackhouse v.
Commonwealth, 832 A.2d 1004, 1008-09 (Pa. 2003) (holding substance of
complaint supersedes form for determining jurisdictional issues).
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Hart sued Wojdalski, PW Custom Construction, Robb H., Inc., and
William Hawthorne. Hart’s Compl., 2/28/11, at 1. Hart alleged Appellants
were negligent for, inter alia, “failing to properly hire, train, monitor and
supervise their agents, employees, servants, workmen and/or contractors”
or by vicarious liability. Id. at 11. The trial court subsequently consolidated
both suits. Order, 1/13/11.
After a bench trial, the court rendered its decision on December 19,
2013, which found in favor of Appellees for all claims. Appellants timely
filed, and the court denied, a post-trial motion requesting a new trial.
Following entry of judgment, Appellants timely appealed. The court did not
order Appellants to comply with Pa.R.A.P. 1925(b), but filed a Pa.R.A.P.
1925(a) decision.
Appellants raise the following issues:
Did the lower court improperly impose vicarious liability
upon [Appellant Robb H.] for the actions of its independent
contractor under a theory of “negligent hiring” in the
absence of proof of [Robb H.’s] own direct negligence in
the form of notice to [Robb H.] that its independent
contractor had committed prior acts of negligence as
required under Pennsylvania law?
Did the lower court improperly assume that the
independent roofing contractor [i.e., Pawel Wojdalski,]
hired by Lessee [sic] was both unqualified and committed
negligence which resulted in a fire in the absence of
competent, admissible evidence of specific acts of
negligence in violation of that contractor’s duty to comply
with an applicable standard [of] reasonable care which
caused that fire?
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Did the lower court improperly find that [Appellants] could
be held vicariously liable for the actions of an independent
contractor in the absence of proof that the contractor’s
roof repair work itself created a “peculiar risk of harm,”
rather than the method by which it was performed, as
required by Pennsylvania law?
Did the lower court improperly decline to enforce the
exculpatory terms of the commercial lease agreements
between the parties which released [Appellant Robb H.] for
damage to [Appellees’] property for any reason, and
transferred the risk of such loss to [Appellees] and their
own insurance, in accordance with controlling legal
precedent determined by the Supreme Court of
Pennsylvania, based upon a misinterpretation of
“ambiguity” within those Lease Agreements?
Appellants’ Brief at 4-5 (reordered to facilitate disposition).
We summarize Appellants’ arguments for their first two issues.
Appellants argue no evidence exists supporting the trial court’s legal holding
that they are liable for the actions of Wojdalski, an independent contractor.
They assert Appellees failed to identify any evidence that Hawthorne knew
or should have known that Wojdalski was not qualified to install a torch
down rubber roof. Id. at 51-52. Appellants insist that Appellees failed to
present any evidence that they knew or should have known Wojdalski had a
history of incompetent or careless conduct. Id. at 52.
Appellees do not dispute the court’s determination that Wojdalski was
an independent contractor of Appellants. See Appellees’ Brief at 31.
Appellees, however, counter that the facts established Appellants awarded
the roof repair job to Wojdalski because his bid was the lowest and he
received a four out of five star rating on a contractor review website. Id. at
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25. Appellees acknowledge that Appellants confirmed Wojdalski was insured
and did not ask about Wojdalski’s prior roofing experience, as Appellants
were satisfied with his two prior roof patching jobs. Id. at 26. Appellees
note Appellants’ testimony that they knew roofing is a specialty trade, had
no experience hiring roofers or repairing roofs, and did not check Wojdalski’s
employment references or prior work. Id. at 27-28. On those bases,
Appellees conclude the trial court correctly held Appellants negligently hired
Wojdalski. We hold Appellants are due relief.
With respect to an order resolving a motion for a new trial, the
standard of review is abuse of discretion. Harman v. Borah, 756 A.2d
1116, 1122 (Pa. 2000). The analysis has two stages.
First, the trial court must decide whether one or more
mistakes occurred at trial. These mistakes might involve
factual, legal, or discretionary matters. Second, if the trial
court concludes that a mistake (or mistakes) occurred, it
must determine whether the mistake was a sufficient basis
for granting a new trial. The harmless error doctrine
underlies every decision to grant or deny a new trial. A
new trial is not warranted merely because some
irregularity occurred during the trial or another trial judge
would have ruled differently; the moving party must
demonstrate to the trial court that he or she has suffered
prejudice from the mistake.
Id. (citations omitted). If the alleged mistake involved a discretionary
matter, then our standard of review is abuse of discretion; if the alleged
mistake involved an error of law, then our standard of review is de novo.
Id. at 1123 (citations omitted).
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As a prefatory matter, a Section 411 claim requires proof of the
employer’s personal negligence and does not rest upon any theory of
vicarious liability:
The rules stated in . . . §§ 416-429, unlike those stated
in . . . §§ 410-415, do not rest upon any personal
negligence of the employer. They are rules of vicarious
liability, making the employer liable for the negligence of
the independent contractor, irrespective of whether the
employer has himself been at fault. They arise in
situations in which, for reasons of policy, the employer is
not permitted to shift the responsibility for the proper
conduct of the work to the contractor. The liability
imposed is closely analogous to that of a master for the
negligence of his servant.
Restatement (Second) of Torts ch. 15, topic 2, intro. note. (1965) (emphasis
added). In contrast, claims under Sections 416 to 429 rely on vicarious
liability to hold the employer liable regardless of the employer’s negligence.
Id.
Section 411 of the Restatement (Second) of Torts states as follows:
An employer is subject to liability for physical harm to third
persons caused by his failure to exercise reasonable care
to employ a competent and careful contractor
(a) to do work which will involve a risk of physical harm
unless it is skillfully and carefully done, or
(b) to perform any duty which the employer owes to third
persons.
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Restatement (Second) of Torts § 411 (1965).8
We discuss the main clause first:
a. Meaning of “competent and careful contractor.” The
words “competent and careful contractor” denote a
contractor who possesses the knowledge, skill, experience,
and available equipment which a reasonable man would
realize that a contractor must have in order to do the work
which he is employed to do without creating unreasonable
risk of injury to others, and who also possesses the
personal characteristics which are equally necessary.
* * *
b. Extent of rule. The employer of a negligently selected
contractor is subject to liability under the rule stated in this
Section for physical harm caused by his failure to exercise
reasonable care to select a competent and careful
contractor, but only for such physical harm as is so
caused. In order that the employer may be subject to
liability it is, therefore, necessary that harm shall result
from some quality in the contractor which made it
negligent for the employer to entrust the work to him.
Thus, if the incompetence of the contractor consists in his
lack of skill and experience or of adequate equipment but
not in any previous lack of attention or diligence in
applying such experience and skill or using such equipment
as he possesses, the employer is subject to liability for any
harm caused by the contractor’s lack of skill, experience,
or equipment, but not for any harm caused solely by the
contractor’s inattention or negligence.
Illustrations:
3. The omnibus with which A, the owner of a hotel,
conveys his guests from the railway station to the hotel is
damaged in a collision. A contracts with B, the owner of a
8
“There is little case law on point in this jurisdiction, so we must look to the
Restatement as well as the law of other jurisdictions.” Lutz v. Cybularz,
607 A.2d 1089, 1092 (Pa. Super. 1992) (referencing Section 411).
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garage, to carry A’s guests in B’s bus. A knows that C, the
only driver who is available for this service, has only driven
a car for a few days. While driving some of A’s guests
from the station, C mistakes the accelerator for the brake,
which causes a collision between the bus and an
automobile in which D is driving. A is subject to liability to
D and to his guests in the bus for any harm caused by the
unskillfulness of C.
4. The same facts, as in Illustration 3 except that the
collision results solely from the fact that C, instead of
looking where he is going, is talking to one of the
passengers while approaching a street intersection. A is
not liable to D unless he knew or should have known that
C was careless and inattentive.
Restatement (Second) of Torts § 411 cmt. a & b, illus. 3 & 4. (1965).
Comment b and the supporting illustrations underscore two
interrelated factors. First, knowledge of the particular condition or trait that
caused the injury, i.e., was the injury caused by (1) a lack of skill,
experience, or equipment, or (2) inattention or negligence.9 Id. Second,
whether the employer had prior knowledge of the independent contractor’s
condition or trait that caused the injury, i.e., the independent contractor’s
(1) lack of skill, experience, or equipment, or (2) inattention or negligence.
Id. The employer’s liability rests on proving both factors, otherwise the
employer is immune from liability for a claim of negligent selection of an
9
Cf. Kituskie v. Corbman, 714 A.2d 1027, 1030 (Pa. 1998) (noting claim
of legal malpractice “requires the plaintiff to prove that he had a viable
cause of action against the party he wished to sue in the underlying case
and that the attorney he hired was negligent in prosecuting or defending
that underlying case (often referred to as proving a ‘case within a case’).”).
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independent contractor. Id. Stated differently, if the harm was caused by
the contractor’s lack of skill, experience, or equipment, then the employer is
liable only if it knew or should have known the contractor was unskilled,
inexperienced, or lacked equipment. Id. If the harm, however, was caused
by the contractor’s inattention or negligence, then the employer is liable only
if it knew or should have known of the contractor’s inattentiveness or
carelessness. Id.
Instantly, Wojdalski acknowledged that remaining on the roof for an
hour after installing a torch down rubber roof was necessary to ensure
safety. N.T. Wojdalski Dep. at 103-05. Removing empty propane tanks
from the roof at the end of each day was also important. Id. at 105.
Wojdalski, however, disregarded his training, left empty propane tanks on
the roof, and departed at 6:30 p.m., without waiting an hour. Id. at 53, 64,
103-05, 177-79. Fire broke out around 2:00 or 2:30 a.m. N.T. Trial,
10/31/13, at 29, 184. The court held Wojdalski was negligent, and
Wojdalski has not appealed that determination.10 Conversely, Wojdalski’s
lack of skill, experience, or equipment did not cause Appellees’ injuries. See
Restatement (Second) of Torts § 411 cmt. b. (1965). As noted above, the
10
We opine that even if Wojdalski was not negligent by not staying on the
roof until 7:30 p.m.—the fire started around 2:00 a.m.—he arguably acted
inappropriately by leaving propane tanks on the roof.
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record is silent as to whether Appellants knew or should have known of
Wojdalski’s inattentiveness or carelessness.
We need not address whether Appellants exercised reasonable care in
selecting Wojdalski, as Appellants’ harm was not caused “from some quality
in the contractor which made it negligent for the employer to entrust the
work to him,” see Restatement (Second) of Torts § 411 cmt. b. (1965), but
from Wojdalski’s failure to adhere to his training. See, e.g., N.T. Wojdalski
Dep. at 103-05. To paraphrase comment b, “[Appellants are] subject to
liability for any harm caused by [Wojdalski’s] lack of skill, experience, or
equipment, but not for any harm caused solely by [Wojdalski’s]
negligence.” See id. (emphases added). The trial court held Wojdalski
was negligent. Thus, because Appellees did not meet their burden of
establishing their Section 411 negligent hiring claim, the trial court
erroneously held as a matter of law that Appellants were negligent and thus
abused its discretion by denying Appellants’ motion for a new trial. 11 See
Harman, 756 A.2d at 1122. Accordingly, we vacate the judgment, reverse
the order denying Appellants’ motion for a new trial, and remand for further
proceedings.
Order denying post-trial motion reversed. Judgment vacated. Case
remanded. Jurisdiction relinquished.
11
Because we have granted relief on Appellants’ first two issues, we need
not rule on their remaining issues. See Siegal v. Stefanyszyn, 718 A.2d
1274, 1277 n.6 (Pa. Super. 1998).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/2015
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