J-A12020-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BRIAN S. BAIRD AND LAURA BAIRD, : IN THE SUPERIOR COURT OF
HUSBAND AND WIFE : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 1251 WDA 2016
PATRICK SMILEY, JR. T/D/B/A TRI- :
COUNTY BUILDERS, A/D/B/A TRI- :
COUNTY GARAGE DOORS, AND :
FAIRMAN'S ROOF & FLOOR :
TRUSSES, INC. A/D/B/A FAIRMAN'S :
ROOF TRUSSES, INC. :
Appeal from the Order Entered July 26, 2016
In the Court of Common Pleas of Cambria County
Civil Division at No(s): 2012-2746
BEFORE: OLSON, J., SOLANO, J., and RANSOM, J.
MEMORANDUM BY RANSOM, J.: FILED JULY 19, 2017
Appellants, Brian and Laura Baird, appeal from the order entered July
26, 2016, denying their motion to remove the entry of nonsuit as to Appellee
Patrick Smiley, Jr. t/d/b/a Tri-County Builders, a/d/b/a Tri-County Garage
Doors, following a jury trial that resulted in a $501,107.41 verdict in
Appellants’ favor against Fairman’s Roof & Floor Trusses, Inc. a/d/b/a
Fairman’s Roof Trusses, Inc.1 We affirm.
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1
“Where a court has entered a judgment of compulsory nonsuit, the appeal
lies not from the entry of the judgment itself, but rather from the court's
refusal to remove it.” Vicari v. Spiegel, 936 A.2d 503, 508 n.5 (Pa. Super.
2007) (citation omitted).
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The relevant facts and procedural history are as follows. Roger Grow
entered into a contract with Appellee Patrick Smiley, Jr. of Tri-County
Builders (“Smiley”) to act as general contractor for the construction of a
large pole building on Grow’s property (“the Grow job”). Smiley hired Chris
Fisher of Chris Fisher Construction as the primary subcontractor to supply
labor and supervise the building of the structure. Fisher hired Appellant
Brian Baird to work as a laborer/carpenter. Smiley introduced Fisher to
Grow as the primary builder. Notes of Testimony (N.T.), Smiley, 6/29/2016,
at 3-9 (“N.T. Smiley”).
Fisher began work in October 2011. See N.T., Fisher, 6/27/2016, at 9
(“N.T. Fisher”). Smiley did not frequent the jobsite or retain any right of
supervision. See N.T. Smiley at 9-14. Fisher told Smiley when he was
ready for certain materials, and Smiley would order them. See N.T. Fisher
at 8; see also N.T. Smiley at 14-15.
Smiley ordered the trusses for the roof from Appellee Fairman’s Roof
Trusses (“Fairman’s”). Smiley provided specifications for the design to
Fairman’s, including the length, pitch (slope), and spacing between each
truss. See N.T., Fairman, 6/28/2016, at 10-11 (“N.T. Fairman”). A
Fairman’s employee sketched a design, which Smiley subsequently
approved. See id. at 12. Thereafter, Fairman’s manufactured the forty-
one, eighty-foot long trusses according to Smiley’s specifications; each truss
weighing approximately eight-hundred pounds. See id. at 5, 9-10. In
addition, Fairman’s informed Smiley in writing that an engineering
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professional should design a bracing plan as well as be on site for the
installation. Id. at 12-13.
The laborers and carpenters used Fisher’s equipment and structure
bracing components to build the pole structure. See N.T. Fisher at 12.
Fisher and another laborer set the posts on the side of the building, and,
using a machine, they built the sidewalls, placed 2-by-4’s around the
outside, and fastened sheet metal for the outside of the building to form the
exterior structure. Id. at 17-18. Fisher called Smiley to extend the date of
delivery of the trusses due to rain, which Smiley did. Id. at 11. Smiley
arranged for the trusses to be delivered by Fairman’s around November 17,
2011. Id. at 19, 21.
On delivery day, Mr. Fairman arrived carrying the delivery in a flatbed
truck; however, one side of the trusses hung off the truck causing all of the
trusses to bow (bend). Id. at 35. After installing the first two or three sets
of trusses, Fisher called Smiley. Fisher informed Smiley that his team was
having a hard time installing the trusses because they were bowed. Id. at
36-37. Smiley told Fisher to do his best to get the trusses up. Id.
The bows in the trusses made them difficult to brace as the building
progressed and this threw off Fisher’s measurements. Id. at 39. However,
Fisher did not believe it was his responsibility to hire any engineering
services for the job. Id. at 31. The original bid sent out for labor by Smiley
did not advise Fisher to include the cost of an engineer for supervision of the
bracing of the trusses. Id. at 41.
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On Friday, November 18, 2011, Fisher’s laborers set twenty trusses.
Id. at 47. Appellant Baird worked twenty-feet above ground and used
Fisher’s tools to assist with placement of the majority of the trusses. On
Monday, November 21, 2011, there were four trusses remaining. Id. at 48.
On that date, Baird was sitting in the middle of the last truss twenty-feet
above ground, nailing in the bottom and side braces, when the structure
collapsed. Id. at 45, 49. The four trusses set that day fell to the ground,
burying Baird beneath them. Id. at 51.
Fisher was operating a scissor lift facing the opposite direction when
he heard a “loud snap.” Id. Fisher scrambled to find a saw to cut Baird out
of the fallen materials and debris. As a result of the accident, Baird
sustained serious bodily injuries.
In January 2012, Smiley retained an engineering firm to inspect the
accident scene, design a bracing plan, and supervise the installation of the
replacement trusses. The engineering firm’s report found that the bowed
trusses had been a contributing factor to the collapse of the roof.
In July 2012, Smiley commenced a civil action in Cambria County
against Fairman’s Roof Trusses for breach of contract and breach of
warranty. In response, Fairman’s filed a complaint to join Baird’s employer,
Chris Fisher t/d/b/a Chris Fisher Construction, as an additional defendant.
In January 2013, Baird and his wife commenced a separate civil action in
Westmoreland County against Smiley and Fairman’s for products liability,
negligent design, premises liability, negligence, and loss of consortium. See
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Baird v. Smiley et al., No. 193-2013 (Westmoreland Cty. Filed 1/14/2013).
Thereafter, Smiley filed a motion to coordinate these complaints based on
the common questions of law and facts. The motion was granted, and the
case was transferred to Cambria County for coordination with Smiley’s case
against Fairman’s and Fairman’s claims against Fisher. Thereafter, Smiley
filed a cross-claim against Fisher alleging that Fisher was either solely liable
for the claims asserted by Appellants or required to indemnify Smiley
pursuant to an alleged indemnification agreement between the parties. See
Pa.R.C.P. 1031.1.
The trial court bifurcated the Appellants’ claims against Fisher from all
claims of liability against Smiley and Fairman’s. The case against Smiley
and Fairman’s proceeded to a jury trial in June 2016. At the close of
plaintiffs’ case against all defendants, the trial court granted Smiley’s oral
motion for nonsuit. See Order, 7/1/2016. On July 1, 2016, the jury
returned a verdict in Appellants’ favor and against Fairman’s in the amount
of $501,107.41.
Appellants timely filed a post-trial motion for removal of compulsory
nonsuit as to Smiley and for a new trial. The court denied relief. Appellants
filed a notice of appeal and praecipe for entry of final judgement. On August
22, 2016, a final judgment was entered on the docket to reflect the jury
verdict. Appellants timely filed a court-ordered Pa.R.A.P. 1925(b)
statement. The trial court filed a 1925(a) opinion invoking its reasons stated
on the record on June 30, 2016, in granting Smiley’s motion for nonsuit.
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See TCO, 10/5/2016, at 3.
On appeal, Appellant presents the following issues:
I. Whether the trial court erred in granting [Appellee]
Smiley’s motion for compulsory nonsuit where it failed to
allow Defendant Fairman’s to present its testimony
evidence, which may have tortiously implicated [Appellee]
Smiley?
II. Whether the trial court erred relying on the Common Pleas
case of Zangradi v. Kay Builders in determining that no
issue of material fact had been presented as to Smiley’s
control over the installation of the roof trusses?
Appellant's Br. at 4.
First, Appellants contend that the entry of nonsuit in favor of Appellee
Smiley at the close of Appellants’ case in chief was improper prior to the
presentation of evidence by all defendants, including Fairman’s potential
evidence against Smiley. Second, Appellants contend that the court erred in
relying upon a court of common pleas case in deciding the motion. Both
issues challenge the propriety of the trial court’s decision to grant nonsuit in
favor of Smiley in this case. We will address Appellants’ arguments seriatim.
Our standard of review regarding the entry of nonsuit is well settled:
A trial court may enter a compulsory nonsuit on any and all
causes of action if, at the close of the plaintiff's case against all
defendants on liability, the court finds that the plaintiff has failed
to establish a right to relief. Pa.R.C.P. No. 230.1(a), (c); see
Commonwealth v. Janssen Pharma., 8 A.3d 267, 269 n. 2
(Pa. 2010). Absent such finding, the trial court shall deny the
application for a nonsuit. On appeal, entry of a compulsory
nonsuit is affirmed only if no liability exists based on the relevant
facts and circumstances, with appellant receiving “the benefit of
every reasonable inference and resolving all evidentiary conflicts
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in [appellant's] favor.” Agnew v. Dupler, 717 A.2d 519, 523
(Pa. 1998). The compulsory nonsuit is otherwise properly
removed and the matter remanded for a new trial.
Scampone v. Highland Park Care Ctr., 57 A.3d 582, 595–96 (Pa. 2012).
The appellate court must review the evidence to determine whether the trial
court abused its discretion or made an error of law. Barnes v. Alcoa, Inc.,
145 A.3d 730, 735 (Pa. Super. 2016).
In 2001, the Rule of Civil Procedure governing compulsory nonsuit was
amended to provide:
(c) In an action involving more than one defendant, the court
may not enter a nonsuit of any plaintiff prior to the close of the
case of all plaintiffs against all defendants. The nonsuit may be
entered in favor of
(1) all of the defendants, or
(2) any of the defendants who have moved for nonsuit if
all of the defendants stipulate on the record that no
evidence will be presented that would establish
liability of the defendant who has moved for the
nonsuit.
Note: The term “defendants” includes additional defendants.
Pa.R.C.P. No. 230.1.2 The modern trend is that nonsuit may be granted in
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2
The amendment superseded the rule formerly known as Rule 2231(h),
which allowed entry of nonsuit “in favor of any or all defendants.” Cmt. 3,
Pa.R.C.P. 230.1. The explanatory comment to the new rule states:
This language was inappropriate since under the former rule, as
Goodrich-Amram 2d § 2231(h):1 points out that a nonsuit may
be entered only in favor of all defendants and not in favor of
fewer than all defendants: But if the plaintiff makes out a prima
(Footnote Continued Next Page)
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favor of one defendant at the close of plaintiff’s case prior to the
presentation of evidence by the defense only if the other defendant(s)
stipulate on the record that they do not intend to present evidence as to the
moving defendant’s liability. Pa.R.C.P. 230.1(c). Otherwise, the proper
procedure for the moving defendant is to seek a directed verdict at the end
of the trial. See Pa.R.C.P. 2232(d).3
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(Footnote Continued)
facie case against one or more of the defendants, then, as a
practical matter, there will be no nonsuit proceedings at all. No
motion can be made by the defendants until all their evidence is
in. This is, of course not a nonsuit, but a motion for a directed
verdict.
New Rule 230.1(c) reflects this situation by continuing to provide
that the court can enter a nonsuit in favor of all defendants.
However, the rule adds the innovation that the court can enter
judgment in favor of fewer than all defendants only “if all of the
defendants stipulate on the record that no evidence will be
presented that would establish liability of the defendant who has
moved for the nonsuit.”
Cmt. 3, Pa.R.C.P. No. 230.1.
3
Rule 2232(d) further clarifies the different procedures to obtain a nonsuit
as opposed to a directed verdict in multi-defendant litigation.
(d) When a plaintiff joins two or more defendants and the
evidence does not justify a recovery against all of them, the
court shall enter a nonsuit or direct a verdict in favor of any
defendant not shown to be liable either jointly, severally or
separately, and the action shall continue and determine which of
the remaining defendants are jointly, severally or separately
liable with the same effect as though the defendants found to be
liable were the only ones joined. As in other cases the court
may enter judgment notwithstanding the verdict in favor of or
against any of such defendants.
(Footnote Continued Next Page)
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In their first issue, Appellants contend that the court erred in granting
compulsory nonsuit in favor of Smiley after Appellants had presented their
evidence as to liability because there was a strong likelihood that Fairman’s
would present inculpatory evidence against Smiley, who purchased the
trusses from Fairman’s. Appellants’ Br. at 14 (citing in support Mazza v.
Mattiace, 425 A.2d 809, 811 (Pa. Super. 1981). Appellants’ theory
presented in opposition to the entry of nonsuit was that Fairman’s would
present evidence that Smiley had a duty to hire an engineer to supervise the
site from Fairman’s warning to Smiley to hire an engineer to design a plan
for installing the trusses. See N.T., 6/30/2016, at 15; Appellants’ Post-Trial
Motion, at ¶¶ 32-34. Appellants also contend that the court erroneously
relied on Smiley’s assertion that Fairman’s consented to the motion, when
Fairman’s did not in fact join in Smiley’s motion. Appellant's Br. at 15.
In response, Smiley contends that the evidence established that Fisher
was responsible for the truss installation process and that the duty of hiring
a design professional to ensure proper installation of the trusses was
delegated to Fisher. See Smiley’s Br. at 30. According to Smiley,
compulsory nonsuit was proper given that “Fairman’s offered no objection to
Smiley’s motion for nonsuit.” Smiley’s Br. at 29-30 (citing in support Ptak
v. Mason Town Men’s Softball League, 607 A.2d 297, 300 (Pa. Super.
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(Footnote Continued)
Pa.R.C.P. 2232.
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1992)). Smiley maintains that “if [Appellee] Fairman’s entire case-in-chief
was based on implicating Appellee Smiley with liability, [Fairman’s] surely
would have not only taken a position on Appellee Smiley’s motion but would
have taken a strong opposing position.” Id.
Appellants are legally correct that it is “improper to grant a nonsuit in
favor of one defendant before the other defendants have an opportunity to
present their cases.” Ptak, 607 A.2d at 300. However, “in an action in tort
there is authority for granting a nonsuit at the close of plaintiff's case in
favor of one defendant, but only when it is clear that the other defendants
cannot or will not tortiously implicate the dismissed defendant.” Mazza, 425
A.2d at 812. The lower court is authorized to grant compulsory nonsuit as
to one defendant pursuant to Pa.R.C.P. 2232(d) “in favor of any defendant
shown not to be liable either jointly, severally or separately” following the
close of the plaintiff’s case where it is clear that the nonmoving defendant
does not intend to present testimony with respect to liability of the moving
defendant pursuant to Pa.R.C.P. 230.1. See Ptak, 607 A.2d at 300.
Fairman’s indicated on the record that it was “not taking a position” on
Smiley’s oral motion for nonsuit. N.T., 6/30/2016, at 15. The issue is
whether Fairman’s lack of opposition to the motion was sufficient to satisfy
the Rule 230.1(c)’s requirement that the court can enter nonsuit in favor of
one defendant only where all “stipulate on the record that no evidence will
be presented that would establish liability of the defendant who has moved
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for the nonsuit.” Pa.R.C.P. 230.1(c)(2); see Smiley’s Br. at 29. In Ptak,
the defendants joined in moving defendant’s motion, and the majority of
witnesses who could present evidence as to liability were already called
during plaintiff’s case in chief.
Here, the court found that Appellants had not satisfied their burden of
proof to sustain a cause of action against Smiley individually based on the
evidence presented. Fairman’s did not explicitly stipulate on the record that
it did not intend to present evidence as to Smiley’s liability pursuant to
Pa.R.C.P. 230.1(c). Notwithstanding, Fairman’s lack of opposition to
Smiley’s motion suggested that it did not intend to present evidence as to
Smiley’s liability as part of its defense. Further, Appellants had the
opportunity to develop a case for liability by examining all of the key
witnesses during their case-in-chief.
Based on the record and in light of Fairman’s response, it was
reasonable for the trial court to conclude under the circumstances that
Fairman’s did not intend to present further evidence as to Smiley’s liability. 4
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4
Fairman’s has filed no brief in this appeal. There is simply no evidence
from Fairman’s that it intended to present additional evidence to implicate
Smiley as to liability. There is no legal authority to support Appellants’
position that the form of the nonmoving defendants’ stipulation matters
under Rule 230.1(c). We decline to delineate such a rule of form with no
substance. In light of Fairman’s response on the record, we find that it was
reasonable for the trial court to conclude that Fairman’s did not intend to
present evidence as to Smiley’s liability. Therefore, the court did not abuse
its discretion in granting Smiley nonsuit at the end of Plaintiff’s case.
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For all intents and purposes, the criteria of 230.1(c) were met. Accordingly,
we discern no abuse of discretion nor error of law in granting Smiley’s
motion for nonsuit at the close of plaintiffs’ case prior to the presentation of
Fairman’s evidence.
Second, Appellants contend that the court erred in determining that no
issue of material fact had been presented as to Smiley’s control over the
installation of the roof trusses based on Zangrandi v. Kay Builders, 2012
WL 7801872 (Pa. D. & C. 5th 2012), an unpublished case from the Court of
Common Pleas of Lehigh County, Pennsylvania. Appellants’ Br. at 17.
Preliminarily, we note that the court recognized on the record that it was not
bound by the court of common pleas’ decision. See N.T., 6/30/2017, at 16.
Further, the court stated on the record that it considered other authorities as
well, including the cases cited by the parties in their written motions, and it
specifically referenced this Court’s decision in Birt v. Firstenergy Corp.,
891 A.2d 1281, 1293 (Pa. Super. 2006). Thus, Appellants are incorrect to
suggest that the court decided the motion solely based on the unpublished
trial court case.
At issue is whether Smiley owed a duty to Appellants. 5 In order to
establish that a contractor owed a duty to a subcontractor’s employee, a
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5
“In order to establish a claim of negligence the plaintiff has the burden of
proving four elements: 1) a duty or obligation recognized by law; 2) a
breach of that duty; 3) a causal connection between the conduct and the
(Footnote Continued Next Page)
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plaintiff must present evidence that a general contractor retained sufficient
control at the site “over the manner, method, and operative details of the
work” to be legally responsible for the harm to the plaintiff. Beil v. Telesis
Construction, Inc., 11 A.3d 456, 466-47 (Pa. 2011); see RESTATEMENT
(SECOND) TORTS § 414.
Appellants contend that they introduced sufficient evidence to
establish an issue of fact as to whether Smiley “retained control over the
installation of the roof trusses.” Appellants’ Br. at 17. According to
Appellants, Smiley’s duty was established by the following evidence: (1)
Fairman’s instructed Smiley to hire an engineer to design an installation
plan; (2) “Smiley specifically ordered Fisher to continue installing the trusses
despite being made aware of their defective condition;” and (3) after the
accident, Smiley hired an engineer to supervise proper installation of the
roof. Id. at 19-20. They also claim that Smiley had a duty to ensure the
materials were in good condition and installed correctly. Id. at 22.
In response, Smiley argues that the trial court’s decision to grant
nonsuit is in accord with established law that “a contractor is not liable for
injuries resulting from work entrusted to a subcontractor.” Leonard v.
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(Footnote Continued)
resulting injury; and 4) actual damages.” Kelly v. St. Mary Hosp., 778
A.2d 1224, 1225 (Pa. Super. 2001) (citation omitted).
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Commonwealth, 771 A.2d 1238, 1240 (Pa. 2001); Smiley’s Br. at 14-15.6
Under Pennsylvania law, a general contractor does not have a duty to a
subcontractor’s employee unless the general contractor retained control or
right of supervision over the performance of the work. Birt, 891 A.2d at
1293 (noting that “a right of supervision” means “that the subcontractor is
not entirely free to do the work in his own way”). Evidence that establishes
that the contractor fully delegated the task creates a legal situation in which
“contractors higher in tier no longer had control over the manner in which
that work was done.” Leonard, 771 A.2d at at 1242.
In Leonard, our Supreme Court took notice of a contract between the
steel supply company and contractor that had initially placed responsibility
on the general contractor, not the subcontractor supervising the actual work.
Id. The Court found that the existence of such a relationship between the
supplier and general contractor “does not make that responsibility
nondelegable; nor does it give [the general contractor] a presumed presence
at the site or control over the manner in which the subcontractor performed
its work.” Id.
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6
In Leonard, our Supreme Court reviewed the questions of “whether a
general contractor or subcontractor who was not ‘present’ at the work site
may nevertheless be in ‘control’ of the work site pursuant to contract or law
so as to have a duty to make the site safe, and whether such a contractor or
subcontractor may delegate such a duty to a subordinate subcontractor.”
Leonard, 771 A.2d at 1240.
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To hold otherwise would mean that one could subcontract for the
performance of work but not successfully delegate the safety
responsibility that normally accompanies that work. Logically,
safety responsibility best rests on the subcontractor doing the
work, for that party is most familiar with the work and its
particular hazards. [Responsibility goes with authority]. Thus, a
subcontractor who undertakes a task is in the best position to
provide for the safe accomplishment thereof, and delegation of
safety responsibility to that subcontractor does not deviate from
the contractor's duty.
Id. (internal citations omitted).
Like in Leonard, Fairman’s initially placed the burden of hiring an
engineer on Smiley when the trusses were supplied to Smiley with the
instruction to obtain an engineer to design a bracing plan. As in Leonard,
this assignment of responsibility does not render the responsibility to design
a bracing plan nondelegable. Leonard, 771 A.2d at 1242.
In this case, the trial court found “no evidence that Smiley controlled
the manner in which Fisher performed his work.” See N.T., 6/30/2016, at
20. We agree. Here, Smiley hired Fisher based on his experience in
building pole barns; Smiley delegated the task of construction and supplying
labor completely to him. See N.T. Smiley, at 30 (noting that Fisher had
built twenty pole barns). Smiley did not go to the job site and made no
attempt to supervise the manner or method in which Fisher did his
construction work. Id.
Appellee Fairman was onsite when he delivered the defective trusses
and observed the difficulties Fisher had with installing them. N.T. Fairman,
at 35, 37. Fairman and Fisher exchanged dialogue on delivery day over the
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fact that the bows made them difficult to brace. Id. at 37. Because Fisher
appeared to be “in charge,” Fairman gave the bracing instructions to Fisher,
which caused Fisher’s crew to stop putting trusses up and start adding
bracing. Id. at 38, 40, 42. Fairman told Fisher directly that it is very
important to follow the “X” bracing instructions to keep the trusses from
“dominoing.” Id. at 42-43.
This evidence established that Fisher supervised the safety of Mr. Baird
and others within his control throughout the installation of the bowed
trusses. See N.T. Fisher, at 12, 17-18, 39. Fisher was more familiar with
the safety risks posed by the bowed trusses than Smiley. Id. at 39. Despite
his experience, Fisher did not think that the trusses would fall or that the
bowed trusses were dangerous. Id. Fisher could have stopped the work if
there was a safety issue. Indeed, Fisher testified that he would have
stopped the work if he believed the trusses were dangerous. Id. at 90.
Based on the evidence presented, Fisher failed to follow the bracing plan
provided by Fairman’s and failed to consider the trusses a safety issue. Id.
at 88. Fisher knew he was not following the bracing specifications that
Fairman had given to him directly. Id. at 91-93.
Although Fairman never told Fisher that Smiley should retain a
professional engineer to design the bracing, the evidence established that
Smiley had delegated the responsibilities of safety onsite to Fisher. Fisher
exercised total and complete control over the building of the structure.
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Fisher’s failure to take heed of Fairman’s instructions was the proximate
cause of Baird’s injuries.
There is simply no evidence that Smiley controlled the manner in
which Fisher supervised the Grow project or installation of defective trusses
supplied by Fairman’s to suggest that Fisher was “not entirely free to do the
work in his own way.” Beil, 11 A.3d at 467 (quoting RESTATEMENT (SECOND)
OF TORTS § 414, cmt. C). Appellants failed to present significant evidence
that Smiley retained control over the activities onsite “beyond a general
right to order, inspect, make suggestions, or prescribe alterations or
deviations.” Beil, 11 A.3d at 467 (emphasis modified). Further, the
responsibility for safety in this case rested with Fisher, who supervised the
installation of the trusses. See Leonard, 771 A.2d at 1242. Because the
trial court’s findings are supported by the record, we discern no abuse of the
trial court’s discretion or error of law in entering nonsuit in Smiley’s favor.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/19/2017
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