J-A29026-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RICHARD MCCURDY AND SANDY : IN THE SUPERIOR COURT OF
MCCURDY, HUSBAND AND WIFE : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 319 WDA 2021
C&K INDUSTRIAL SERVICES INC., A :
CORPORATION OR OTHER SIMILAR :
BUSINESS ENTITY; GREYCOR :
INDUSTRIAL CONSTRUCTORS, INC., :
A CORPORATION OR OTHER SIMILAR :
BUSINESS ENTITY; UNITED STATES :
STEEL CORPORATION, A :
CORPORATION OR OTHER SIMILAR :
BUSINESS ENTITY :
Appeal from the Order Dated February 18, 2021
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD-14-001586,
GD-14-001586
BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*
DISSENTING MEMORANDUM BY BOWES, J.: FILED: JUNE 28, 2022
I respectfully dissent. Viewing the evidence in the light most favorable
to Richard McCurdy (“McCurdy”) and Sandy McCurdy (collectively,
“Appellants”), I find Appellants have raised a material issue of fact as to
whether C&K Industrial Services, Inc. (“C&K”) was negligent in permitting the
use of ungrounded polyvinyl chloride (“PVC”) pipe in the industrial vacuum
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* Retired Senior Judge assigned to the Superior Court.
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system that it designed, constructed, and helped to operate and supervise in
conjunction with Graycor Industrial Constructors, Inc. (“Graycor”).1
Accordingly, I would reverse the trial court’s order awarding summary
judgment to C&K and remand for trial.
This case concerns a static shock injury McCurdy sustained on February
7, 2012, while working as a bricklayer assisting in the construction of C Battery
at the Clairton Mill Works, which is owned and operated by the United States
Steel Corporation (“USS”). Specifically, McCurdy and his fellow bricklayers
were engaged in “dry bricklaying” to construct flues, which created a
significant amount of dust. See C&K’s Motion for Summary Judgment,
2/25/19, Exhibit 3 at 19-20 (“McCurdy Deposition”).2 On the day in question,
McCurdy was vacuuming dust and debris from the recently constructed battery
flues. The industrial vacuum system used by McCurdy and the other workers
consisted of large lengths of polyethylene hoses with spiral wire grounding
that were powered by vacuum trucks parked on the exterior of C Battery.
While Graycor employees like McCurdy were manning the vacuum hoses, C&K
employees were actively monitoring the work and operating safety valves that
could be used to shut down the system in case of accidents.
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1 For ease of discussion, I will utilize the spelling “Graycor” in conformity with
the Majority’s writing. See Majority Memorandum at 2 n.2.
2 The exhibits attached to C&K’s motion for summary judgment are not
individually numbered or designated. For ease of discussion and reference, I
have assigned numbers to these documents based upon order of attachment.
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Seventeen-foot-long PVC pipe extensions were attached to the end of
these polyethylene hoses, which enabled workers to vacuum the bottom of
the flues. C&K’s project manager at C Battery, George Baughman, testified
that this PVC piping had been provided by C&K. See C&K’s Motion for
Summary Judgment, 2/25/19, Exhibit 6 at 11-12 (testifying that C&K had
provided all of the “equipment” utilized at C Battery, which included “PVC
pipe”).3 The PVC pipe attached to McCurdy’s hose was installed by a Graycor
employee, while C&K employees were also present and observing. See
Appellants’ Brief in Opposition to Summary Judgment, 3/29/19, Exhibit A at
7, 11, 16-17 (“Waltermire Deposition”).
The certified record establishes that the use of such PVC piping in C&K’s
vacuum systems was a “rare” occurrence and not typical. See C&K’s Motion
for Summary Judgment, 2/25/19, Exhibit 5 at 15. The reason this material
was not regularly utilized by C&K seems self-evident, as an internal report
generated by USS concluded that the static shock that injured McCurdy was
“created by the velocity of the silica dust passing across the inside walls of
the PVC pipe.” See Incident Without Injury Report Form (USS 406), 2/7/12,
at 1 (emphasis added). Finally, while the polyethylene hoses contained
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3 Later in the same deposition, Baughman stated that he could not remember
whether C&K had provided the at-issue PVC pipe, which conflicts with his
earlier testimony. See C&K’s Motion for Summary Judgment, 2/25/19, Exhibit
6 at 31. As discussed further infra, we must resolve any such uncertainties
or conflict in the record in favor of Appellants.
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grounding wires, the PVC extensions were not independently grounded at the
time of McCurdy’s injury. See Waltermire Deposition at 10 (“[A]fter
[McCurdy] got his electrocution, they brought in the electrician down there
and put a ground wire on this PVC pipe.”); id. at 25 (“They had the electricians
come in and actually wire a ground wire to the PVC pipe so that it would
ground out instead of shocking the employees down there.”).4
With these facts in mind, I emphasize that summary judgment is only
appropriate in “cases where the record clearly demonstrates that there is no
genuine issue of material fact and that the moving party is entitled to
judgment as a matter of law.” Summers v. Certainteed Corp., 997 A.2d
1152, 1159 (Pa. 2010); see also Pa.R.C.P. 1035.2. Thus, our standard of
review in the context of summary judgment is well-established:
When considering a motion for summary judgment, the trial court
must take all facts of record and reasonable inferences therefrom
in a light most favorable to the non-moving party. In so doing,
the trial court must resolve all doubts as to the existence of a
genuine issue of material fact against the moving party, and, thus,
may only grant summary judgment where the right to such
judgment is clear and free from all doubt.
Id. (cleaned up). Accordingly, “[t]he burden of the non-moving party where
summary judgment is requested is not the same as the burden during a trial
of the issues, it need only be shown that there is a genuine issue as to any
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4 Ultimately, all of these PVC extensions were replaced with aluminum pipe,
which is a conductive material. See Waltermire Deposition at 12-13, 31;
C&K’s Motion for Summary Judgment, 2/25/19, at Exhibit 10 at 1-2.
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material fact.” Prince v. Pavoni, 302 A.2d 452, 454 (Pa.Super. 1973)
(emphasis added). To the extent there is conflict in the certified record, we
must resolve such dissonance in full favor of Appellants’ position. See Carollo
v. Forty-Eight Insulation, Inc., 381 A.2d 990, 994-95 (Pa.Super. 1977).
Appellants allege that C&K was negligent with respect to the work
performed at the vacuuming operation at C Battery. Id. at ¶¶ 25-34.
Specifically, Appellants asserted C&K “acted negligently in permitting
workmen to perform tasks at the work site in a manner which violated the
industry safety practices, trade practices and standards of care” that are
generally accepted within the construction industry. Id. at ¶ 34.
However, the trial court concluded that the evidence adduced by
Appellants was insufficient to establish a prima facie case of negligence:
Appellants present no reasonable theory as to how C&K was
negligent in the use or the assembly of their equipment.
Appellants allege no particular risk with said equipment and
present no [Occupational Safety and Health Administration
(“OSHA”)] findings that would substantiate allegations of the
same. To allow Appellants to proceed against this defendant
would provide a jury empaneled with only enough information to
guess or speculate as to what standard of care was possibly
breached.
Trial Court Opinion, 8/10/20, at 11. Indeed, the trial court suggests that the
only way for Appellants to prevail in this matter is to establish a breach of an
OSHA regulation or other law that would establish negligence per se. Tellingly,
the trial court has cited no precedent in support of this position.
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The elements of negligence are practically axiomatic and require a
Pennsylvania plaintiff to establish: (1) a duty to conform to a certain standard
for the protection of others against unreasonable risks; (2) the defendant’s
failure to conform to that standard; (3) a causal connection between the
conduct and the resulting injury; and (4) actual loss or damage to the plaintiff.
Jones v. Plumer, 226 A.3d 1037, 1039-40 (Pa.Super. 2020) (citing
Brewington for Brewington v. City of Philadelphia, 199 A.3d 348, 355
(Pa. 2018)). The dismissal of Appellants’ uncomplicated civil claims for
damages rests upon the first two of these elements: duty and breach.
It is well-established that “[t]he primary element in any negligence
cause of action is that the defendant owes a duty of care to the plaintiff.” Bilt-
Rite Contractors, Inc. v. The Architectural Studio, 866 A.2d 270, 280
(Pa. 2005). I note that “[t]he concept of duty in the tort setting can be
intertwined with contractual notions of privity, as is the case here, where the
task is to determine whether the relationship between the parties gives rise
to a duty.” Id. at 281. While the Majority does not dispute C&K owed some
manner of legal duty to McCurdy, it seeks to diminish any such obligation by
describing C&K’s duties on the job site in limited terms. See Majority
Memorandum at 11 (“C&K’s defined ‘Work’ under the contract was to provide
vacuum trucks and flex hoses.”). To my mind, this characterization
inappropriately minimizes C&K’s role and is plainly at odds with the record.
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At a contractual level, C&K was hired by Graycor to “provide vacuum
and other industrial services as directed,” which included: (1) hardware and
trucks; (2) set-up of the vacuum system; (3) on-site laborers and vacuum
operators; (4) supervision of the vacuum-related activities; and (5) various
protective materials. See C C&K’s Motion for Summary Judgment, 2/25/19,
Exhibit 4 at 1-2. The same contract also provides as follows with respect to
the safety of workers:
[Graycor] does not assume responsibility for [C&K’s] construction
means, methods, and techniques in performing the work. As an
expert in its Work, [C&K] agrees, as to its Work, it is (a) solely
responsible for the prevention of accidents to its employees and
its sub-subcontractors’ employees arising out of the performance
of its work, and (b) primarily responsible for the prevention of
accidents to others who happen to be potentially exposed to
hazards arising out of the Work as it is being performed.
Id. at 3 (emphasis added). Moreover, the record clearly evinces C&K was
also tasked with overseeing worker safety. See C&K’s Motion for Summary
Judgment, 2/25/19, Exhibit 4 at 27-28, 40 (deposition testimony of Joseph
James Ott); see also Appellants’ Supplemental Brief in Opposition to
Summary Judgment, 4/12/19, Exhibit D at 3 (unpaginated) (documenting that
C&K collaborated with Graycor in developing a “job hazard analysis,” training
Graycor employees “in the vacuum work,” and developing a “safety plan”).
Viewed in the light most favorable to Appellants, I find that C&K’s
contractual duties would include ensuring that the vacuum system was safe
to use and free from technical defects. As our Supreme Court has observed:
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Logically, safety responsibility best rests on the subcontractor
doing the work, for that party is most familiar with the work
and its particular hazards. As we stated in Hader v. Coplay
Cement Mfg. Co., 189 A.2d 271, 277 (Pa. 1963), “How can the
other party control the contractor who is engaged to do the work
and presumably knows more about doing it than the man who by
contract authorized him to do it? Responsibility goes with
authority.” Thus, a contractor who undertakes a task is in the
best position to provide for the safe accomplishment thereof . . . .
Leonard v. Commonwealth, 771 A.2d 1238, 1242 (Pa. 2001) (emphasis
added). Since C&K is a sophisticated corporate entity specializing in industrial
vacuum systems and was retained by Graycor for that specific expertise, it
makes sense for C&K to bear responsibility for the safety of that system.5
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5 Even in the absence of a contract, I would still find that C&K owed a duty
under these circumstances. Pennsylvania law provides that “[a] party to a
contract has two duties: a contractual duty and a legal duty to act without
negligence towards both the other party to the contract and third parties.”
Weiser v. Bethlehem Steel Corp., 508 A.2d 1241, 1245 (Pa.Super. 1986)
(collecting cases; emphasis added). Therefore, “a tort duty can arise absent
privity of contract[.]” Bilt-Rite Contractors, Inc. v. The Architectural
Studio, 866 A.2d 270, 282 (Pa. 2005). To that end, Pennsylvania law
provides that “a subcontractor on a construction job owes to employees of
other subcontractors, on the same site, the care due a business visitor from a
possessor [of] land.” McKenzie v. Cost Bros., Inc., 409 A.2d 362, 364 (Pa.
1979) (citing Restatement (Second) of Torts §§ 343, 384 (1965)).
In this context, the touchstone of duty remains the nature of the work
entrusted to the subcontractor, since this rule “applies to subject the particular
contractor or subcontractor to liability for only such harm as is done by the
particular work entrusted to him.” Duffy v. Fischbach & Moore, Inc., 126
A.2d 413, 416 (Pa. 1956). This duty follows the principle that “[e]very
workman is entitled to a workshop devoid of perilous conditions that serious
reflection, reasonable anticipation, and practicable scientific preparation can
avoid.” Id. Based on the above discussion of C&K’s specific duties at C
Battery, I would find C&K also had a duty to warn the employees of other
(Footnote Continued Next Page)
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See, e.g., Heath v. Huth Engineers, Inc., 420 A.2d 758, 759 (Pa.Super.
1980) (holding engineering firm that undertook responsibilities for supervision
and inspection were liable for failure to do so with “reasonable care”).
Turning to the issue of breach, I note that “expert testimony is required
to establish professional negligence where the determination of whether the
actions were negligent is beyond the understanding of the ordinary person.”
Cipriani v. Sun Pipe Line Co., 574 A.2d 706, 715 (Pa.Super. 1990). Here,
Appellants submitted an affidavit from professional engineer John G. Green,
II, who opined, inter alia, that the use of ungrounded PVC pipe in the vacuum
system deviated from professional standards promulgated by the National Fire
Protection Association (“NFPA”).6 See Appellant’s Brief in Opposition to
Summary Judgment, 3/29/19, Exhibit C at ¶¶ 16-25 (“Green’s Affidavit”).
In pertinent part, Green’s affidavit provides as follows:
16. The [NFPA] has been addressing static electricity since the
mid 1930s and officially adopted NFPA 77 – Recommended
Practice on Static Electricity in 1946.
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subcontractors on the job site of dangerous or unsafe conditions that it knew,
or should have known, about its own industrial vacuum system.
6 With respect to his credentials, Green averred without objection from C&K
that he holds a bachelor’s degree in mechanical engineering and is a licensed
professional engineer in sixteen states including Pennsylvania. See
Appellant’s Brief in Opposition to Summary Judgment, 3/29/19, Exhibit C at
¶¶ 3-4. In addition to thirty-five years of “relevant experience in industrial
machinery, process systems, and construction site safety,” he has “supervised
projects involving dust removal using large truck mounted vacuum systems
similar to those involved with this case.” Id. at ¶¶ 4-5.
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NFPA 77-2007 Section 9.3 Mechanisms of Static Electric Charging
states:
9.3.1 Contact static electric charging occurs
extensively in the movement of powders, both by
surface friction between powders and surfaces and by
friction between individual powder particles. . . .
9.3.2 Charging can be expected any time a powder
comes into contact with another surface, such as in
sieving, pouring, scrolling grinding, micronizing,
sliding[,] and pneumatic conveying. . . .
17. The hazards associated with a discharge or spark created by
the static electric build-up from pneumatically conveyed materials
have been known for more than 70 years. The most notable
hazard is an ignition source for combustible dust or vapors, but
injuries to workers can also result from static electric discharge[.]
18. McCurdy was exposed to the discharge or spark hazard
created by a static electric build-up within the pneumatic
conveying transport or piping system. The combination of hazard
and exposure created an unreasonably dangerous condition which
was a cause of the injury to McCurdy.
19. The incident industrial vacuum truck pneumatically conveyed
the mortar dust from the flue of C [B]attery into the holding tank
on the truck using non-conductive hoses as the transport system.
....
21. The PVC [f]lex hose was non-conductive material. Non-
conductive material should not be used in pneumatic systems to
transport powdered materials, such as mortar dust, due to the
potential static charge build-up within the transport system. If
non-conductive flexible hose is required it should contain a spiral
wire specifically designed to dissipate the static electric charge to
ground[:]
NFPA 77-2007 Section 9.6 Pneumatic Transport Systems states:
9.6.1 Pneumatic transport of powdered material
through pipes or ducts can produce a static electric
charge on both the product being transported and the
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conduit. This static electric charge remains on the
material as it exits the system. Precautions against
accumulation of charge should be taken where the
material is collected.
9.6.2 Pipes and ducts should be metal and should be
grounded.
9.6.2.1 Equipment to which the conduits connect
should be metal and grounded to dissipate the charge
impressed on it by the transport of the material.
9.6.2.2 Where the use of pipe-joining methods or
installation of piping components results in an
interruption of continuity of the ground path, one of
the following criteria should be met:
(1) A jumper cable should be used to maintain
continuity.
(2) An independent ground should be provided
for the isolated section of the conduit . . . .
9.6.3 Nonconductive pipe or ductwork should not be
used.
Id (internal emphases omitted). Relying upon these NFPA standards, Green
concluded that C&K was negligent to the extent that it, inter alia, permitted
the use of ungrounded PVC pipes in its system. Id. at ¶¶ 21, 24-25.
The Majority concludes Green’s affidavit does not establish breach of a
relevant standard of care. See Majority Memorandum at 16 (“Because
Green’s report does not point to any countervailing evidence in the record to
support his conclusion that C&K did not act with reasonable care, that report
alone is insufficient to create a material issue of fact regarding C&K’s duty of
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care.”). I disagree and note that summary judgment presents an inopportune
juncture to assess the credibility of expert testimony:
It has long been Pennsylvania law that, while conclusions recorded
by experts may be disputed, the credibility and weight attributed
to those conclusions are not proper considerations at summary
judgment; rather, such determinations reside in the sole province
of the trier of fact, here, a jury. Accordingly, trial judges are
required to pay deference to the conclusions of those who are in
the best position to evaluate the merits of scientific theory and
technique when ruling on the admissibility of scientific proof.
Thompson v. Ginkel, 95 A.3d 900, 905-06 (Pa.Super. 2014).
As an initial matter, I note that the trial court did not even deign to
discuss the substance of Green’s affidavit in its opinion. See Trial Court
Opinion, 8/10/20, at 1-12. Therein, the trial court would have read that
“nonconductive pipe” should not be used in setting up a vacuum system
pursuant to NFPA § 9.6.3. Green’s Affidavit at ¶ 22. Rather, the affidavit
states that only independently grounded, metal pipework should be used for
such a purpose. Id. (citing NFPA §§ 9.6.2, 9.6.2.1). Indeed, Green goes on
to explain that if the use of pipework in a vacuum system results in an
“interruption of continuity of the ground path,” then a “jumper cable” or an
“independent ground” must be installed on the pipework. Id. (citing NFPA
§ 9.6.2.2(1)-(2)). Id. Applying these standards to the case at hand, Green
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concluded that the use of PVC pipe in the vacuum system used at C Battery
violated the above-quoted NFPA industry standards.7 Id. at ¶¶ 21, 24-25.
There is no dispute in the record that the PVC extensions mounted to
the vacuum system were non-conductive, non-metal, and not independently
grounded at the time of McCurdy’s injury. Considering Green’s expert opinion
with the deference required by our standard of review, I find his affidavit
proffers both the applicable standard of care and a breach thereof,
consequently creating an issue of material fact that requires denial of
summary judgment. While Graycor may have installed the length of PVC pipe
that McCurdy used on the day of his injury, C&K provided that PVC pipe to
Graycor and was fully aware of its inclusion in the vacuum system. Moreover,
C&K employees worked side-by-side with Graycor employees while the PVC-
tipped vacuum hoses were installed and actively used.
Given the scope of C&K’s contractual duties and the breaches of industry
standards set forth in Green’s affidavit, I find Appellants have raised a material
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7 The Majority’s discussion seems to conflate the polyethylene hoses and the
PVC extensions. See Majority Memorandum at 14 (“Green stated multiple
times that the flexible vacuum hose provided by C&K was ‘non-conductive
material.’”). The relevant passages in Green’s affidavit cited by the Majority
refer to the PVC piping discussed above, and not to the polyethylene hoses.
See Green’s Affidavit at ¶ 21 (“The PVC Flex hose was non-conductive
material. Non-conductive material should not be used in pneumatic systems
to transport powdered materials, such as mortar dust, due to the potential
static charge build-up in the transport system.” (emphasis added)). While
polyethylene is also a non-conductive material, this portion of the vacuum
system was equipped with a spiral grounding wire. By contrast, the PVC
extension was not independently grounded at the time of McCurdy’s accident.
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question of fact as to whether C&K breached its duty by standing mute and
inert with respect to an unsafe condition that, ultimately, injured McCurdy.
See, e.g., Maas v. UPMC Presbyterian Shadyside, 192 A.3d 1139, 1144
(Pa.Super. 2018) (“Where . . . the plaintiff makes a prima facie showing of a
duty, the applicable standard of care, whether it was breached, and whether
the breach was a cause in fact of the injury are questions of fact for the jury.”).
Therefore, I respectfully dissent.
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