author: WORTHINGTON, J,

text:
    Matchulat v. Powlus Construction Inc.

      C.P. of Monroe County,
    no. 7490 Civil 2000.

      Bruce S. Zero, for plaintiffs.

      Frank A. Baker III, for defendant Powlus Construction.

      P. Jeffrey Hill, for defendant Roy W. Piper Construction.
    March 19, 2004
   WORTHINGTON, J,

On May 17, 1999, plaintiff Robert Matchulat was working on a scaffold at The Crossings Factory Stores in Tannersville, Pennsylvania when he fell 30 feet through scaffolding boards and was severely injured. Outletter Associates owns and operates The Crossings Factory Stores. Outletter hired defendant Roy W. Piper Construction to serve as the general contractor of a construction project at The Crossings Factory Store. At the time of his injuries, plaintiff was employed by a subcontractor hired by Piper, Keystone Steel Erectors Inc. Defendant Powlus Construction was also a subcontractor hired by Piper. Powlus owned the scaffold that collapsed, causing plaintiff’s injuries.

On July 12,2000, plaintiffs filed a complaint alleging negligence and loss of consortium in the Lackawanna County Court of Common Pleas. All defendants filed preliminary objections to the complaint in August 2000. In the preliminary objections, all defendants requested a change of venue to the Monroe County Court of Common Pleas. By order dated October 16, 2000, plaintiffs’ case was transferred to Monroe County.

Powlus filed an answer and new matter on January 18, 2001. Piper filed an answer, new matter and cross-claim on February 14, 2001. Argument on Outletter’s preliminary objections was held on March 13,2001. Both plaintiffs and Outletter filed supporting briefs. Outletter’s preliminary objections were dismissed by order and opinion dated April 9, 2001.

Piper filed a motion for summary judgment, supporting brief and exhibits on April 17, 2003. Outletter filed an answer to Piper’s motion for summary judgment on May 15, 2003. Powlus filed an answer and memorandum of law in support of its opposition to Piper’s motion for summary judgment on July 7, 2003. Plaintiffs never responded to Piper’s motion for summary judgment. Piper’s motion for summary judgment was denied by order and opinion dated September 10, 2003.

Outletter filed a motion for summary judgment, supporting brief and exhibits on June 5, 2003. Piper filed a response to Outletter’s motion for summary judgment on June 20, 2003. Powlus filed an answer and brief in support of its opposition to Outletter’s motion for summary judgment on July 7, 2003. Plaintiffs failed to respond to Outletter’s motion for summary judgment. Outletter’s motion for summary judgment was granted by order dated September 10, 2003.

Piper filed a second motion for summary judgment and supporting brief on December 15,2003. Powlus filed an answer and brief in opposition to Piper’s second motion for summary judgment on January 28, 2004. Plaintiffs failed to respond to Piper’s second motion for summary judgment.

On February 2, 2004, we heard argument concerning Piper’s second motion for summary judgment. The matter is now before us for disposition.

Summary judgment may be brought by any party as a matter of law whenever “there is no genuine issue of any material fact as to a necessary element of the cause of action . . . .” Pa.R.C.P. 1035.2(1). When rendering its decision, the court may consider pleadings, depositions, answers to interrogatories, admissions and supporting affidavits. Pa.R.C.P. 1035.1. The moving party bears the burden of demonstrating that no genuine issue of fact exists and that he is entitled to judgment as a matter of law. First Wisconsin Trust Co. v. Strausser, 439 Pa. Super. 192, 198, 653 A.2d 688, 691 (1995). The court must view the record in the light most favorable to the non-moving party and all doubts concerning the existence of a genuine issue of fact must be resolved in that party’s favor. Dublin by Dublin v. Shuster, 410 Pa. Super. 1, 598 A.2d 1296 (1991).

PIPER’S SECOND MOTION FOR SUMMARY JUDGMENT

Piper argues that it is entitled to summary judgment because it is a statutory employer under the Workers’ Compensation Act, and, as such, is immune from common-law actions by a subcontractor’s employee injured in the course and scope of employment.

In Pennsylvania, the workmen’s compensation law is the employee’s exclusive remedy against an employer for injuries sustained in the course and scope of employment. 77 P.S. §1 et seq.; see also, Lewis v. School District of Philadelphia, 517 Pa. 461, 538 A.2d 862 (1988). This immunity from common-law tort liability has been extended to favor a “statutory employer.” 77 P.S. §52; see also, Ventura v. Skylark Motel Inc., 431 Pa. 459, 246 A.2d 353 (1968); McDonald v. Levinson Steel Co., 302 Pa. 287, 153 A.2d 424 (1930); Zizza v. Dresher Mechanical Contractors Inc., 358 Pa. Super. 600, 518 A.2d 302 (1986), appeal denied, 516 Pa. 643, 533 A.2d 714 (1987); Colloi v. Philadelphia Electric Co., 332 Pa. Super. 284, 481 A.2d 616 (1984). A general contractor may be considered the statutory employer of a subcontractor’s employee. McDonald, 302 Pa. at 293, 153 A.2d at 426.

Pennsylvania courts reject the idea that the statutory employer defense should be conferred on a general contractor automatically. Stipanovich v. Westinghouse Electric Co., 210 Pa. Super. 98, 231 A.2d 894 (1967). To determine whether a contractor is a statutory employer and therefore entitled to immunity, it is first necessary to satisfy the five-part McDonald test. The five elements of the McDonald test are as follows:

“(1) An employer who is under contract with an owner of land or one in the position of an owner.
“(2) Premises occupied by or under the control of such employer.
“(3) A subcontract made by such employer.
“(4) Part of the employer’s regular business entrusted to such subcontractor.
“(5) An employee of such subcontractor [is injured on the premises].” McDonald, 302 Pa. at 295, 153 A.2d at 426; Emery v. Leavesly McCollum, 725 A.2d 807 (Pa. Super. 1999); McCarthy v. Dan LePore & Sons Co. Inc., 724 A.2d 938 (Pa. Super. 1998); Lascio v. Belcher Roofing Corp., 704 A.2d 642 (Pa. Super. 1997).

In our opinion dated September 10, 2003, we found that Piper had satisfied elements one, three, four and five of the McDonald test. With respect to element two, we held that as of September 10, 2003, there was insufficient evidentiary support for a ruling in Piper’s favor under the summary judgment standard. Accordingly, the only issues to be resolved at this time are: (1) whether Piper can now meet the summary judgment standard as to element two of the McDonald test; and (2) whether Piper is precluded from raising the statutory employer defense in light of the order of September 10, 2003.

Courts read the language in prong two of the McDonald test in a strictly disjunctive manner. Davis v. City of Philadelphia, 153 Pa. Super. 645, 35 A.2d 77 (1943). Therefore, an employer will satisfy this element if he either is in control of the premises or occupies the premises. Zizza, 358 Pa. Super. 600, 518 A.2d 302. Actual control by a general contractor must be demonstrated to show that the general contractor is in control of the premises, for purposes of determining the existence of a statutory employer relationship under the Workers’ Compensation Act; mere showing of right of control is insufficient. 77 P.S. §52; see also, Leibensperger v. W.C.A.B. (Thomas H. Lewis Builders Inc.), 813 A.2d 28 (Pa. Commw. 2002).

Piper’s first argument is that it meets element two of the McDonald test since it occupied the worksite. Piper begins by citing to an exhibit attached to the deposition of Duane Powlus. The exhibit that Piper cites is the transcript of a recorded statement by Duane Powlus. (See exhibit A to Piper’s second motion for summary judgment.) In his recorded statement, which was recorded on May 17, 1999, Duane Powlus states that Piper’s employee, Joe Gozikowski, was in charge of the job site, oversaw what the subcontractors were doing on a daily basis, interacted with the subcontractors on a daily basis and told the subcontractors if there was a problem. (Exhibit Ato Piper’s second motion for summary judgment, 11.80-115.) Duane Powlus also makes the following statement, “Yeah they were on the job site every day just like we are, so I mean they know what is going on and they see what is going on.” (Exhibit A to Piper’s second motion for summary judgment, 11. 96-98.) We have highlighted this last statement because it is an admission that Piper employees were present at the work site to the same extent as Powlus employees.

Piper cites additional statements pertaining to Joe Gozikowski’s presence at the work site and his role on the project. In a recorded statement by Gene Powlus, also a deposition exhibit, Gene Powlus identifies Joe Gozikowski as the foreman at the work site and the person who oversaw Powlus’ work progress. (See exhibit B to Piper’s second motion for summary judgment, 11.216-48.) John Bonacci, the president of subcontractor Keystone, testified that Joe Gozikowski was Piper’s on-site project manager whom he talked to or dealt with concerning the project. (Deposition of John Bonacci, at p. 12,11. 4-14.)

The affidavit of Stan Seiple, who was the architect for the project, is the most significant item that Piper cites to in support of its motion. (See exhibit D to Piper’s second motion for summary judgment, affidavit of Stan Seiple.) In the affidavit, Stan Seiple attests to the fact that Joe Gozikowski was present at the job site during all phases of construction and that he was Piper’s representative and superintendent for all work performed under the contract with the owner. (Exhibit D to Piper’s second motion for summary judgment, affidavit of Stan Seiple, at paragraph 5(b).) In fact, Stan Seiple made all of his communications to Piper through Joe Gozikowski. (Exhibit D to Piper’s second motion for summary judgment, affidavit of Stan Seiple, at paragraph 5(b).) Stan Seiple also states that Piper occupied the work site until the project was complete. (Exhibit D to Piper’s second motion for summary judgment, affidavit of Stan Seiple, at paragraph 5(o).) Powlus has raised several objections to the use of Stan Seiple’s affidavit.

Powlus’ first contention is that the affidavit fails to raise any new evidence. We disagree. In our order dated September 10, 2003, the main reason we denied Piper’s motion for summary judgment was the lack of evidence concerning Piper’s presence and/or role at the work site. At that time, it was unclear how often Piper employees were present at the work site. It was also unclear how Piper employees interacted with subcontractors. In its first motion for summary judgment, Piper merely relied on the fact that it was the general contractor, thus, Piper failed to supply any significant evidence concerning whether it occupied and/or controlled the work site. Because the information contained in the affidavit pertains to the degree of Piper’s presence at the work site and the manner in which Piper employees interacted with the subcontractors, we find the affidavit raises new evidence. As such, this court finds the affidavit, as well as the other supporting documents of record, sufficient for us to determine whether Piper occupied and/or controlled the work site.

Powlus’ second objection to the use of the affidavit is that Stan Seiple uses a legal term of art by stating that Piper “occupied” the work site. According to Powlus, this assertion cannot be used in support of Piper’s second motion for summary judgment. Assuming, arguendo, that the affidavit contains an impermissible legal conclusion, we nevertheless consider the statement harmless in light of the other statements in the affidavit. For instance, Stan Seiple states that Joe Gozikowski was present at the job site during all phases of construction. This statement, which contains no legal terms of art, clearly aids us in determining whether Piper occupied and/or controlled the work site.

Finally, Powlus contends that Stan Seiple’s credibility is an issue of fact that should be left for the jury. Powlus cites Nanty-Glo Boro. v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932), for the proposition that the entry of a direct verdict is foreclosed when issues of credibility leave a genuine issue of material fact. According to Powlus, when the movant can prevail only by the use of testimonial evidence, credibility creates a genuine issue of material fact for the jury. Id. at 238, 163 A. at 524. Powlus argues that credibility issues cloud the affidavit and, thus, the affidavit should not be relied upon as a basis for summary judgment. We disagree.

At the outset we note that Nanty-Glo is distinguishable from the present matter since it involved sworn testimony. After hearing the live testimony, which was unopposed, the trial court in Nanty-Glo directed a verdict for the plaintiff. The decision to direct a verdict in the plaintiff’s favor was overturned because the unopposed testimony was the only means of establishing facts necessary for the plaintiff to recover. Because of this, the court felt that the credibility of the witnesses should have been left for the jury. This matter is different since the affidavit is not the only means of establishing elements necessary for Piper to prevail on its motion. It is common, in fact necessary, for parties to support and oppose motions for summary judgment with affidavits and other discovery materials. We also note that an affidavit attached to an employer’s motion for summary judgment may be sufficient to establish that the employer occupied the work site for purposes of meeting the statutory employer test. See Zizza at 664, 518 A.2d at 304. In this case, the affidavit clearly adds to and supports Piper’s second motion for summary judgment. We also find that there is sufficient additional evidence to support Piper’s motion. As discussed above, in his recorded statement, Duane Powlus admits that Piper employees were present at the work site “just like we are.” Combining the statements of Duane Powlus and others with the affidavit and other supporting documents of record provides us with a sufficient basis to make a determination in this matter.

We also note that Powlus has failed to produce any evidence to refute the contentions made in the affidavit despite its ability to do so. Powlus employees were present at the work site at all times material to the present matter. If any of the relevant assertions made by Stan Seiple in his affidavit were untrue, we would expect Powlus to produce an affidavit or some other form of evidence to contradict the affidavit. We find it dubious that Powlus has failed to do so. As an aside, we also note that Powlus has failed to offer any basis to question the credibility of Stan Seiple. From the documents produced, it appears that Stan Seiple has no interest in the outcome of this matter. Thus, we disagree with Powlus’ claim that this motion for summary judgment should be denied so that a jury can assess the credibility of Stan Seiple.

In arguing that the evidence of record is sufficient to establish that it occupied the work site, Piper distinguishes Leibensperger v. W.C.A.B. (Thomas H. Lewis Builders Inc.), 813 A.2d 28 (Pa. Commw. 2002), from the present matter. In Leibensperger, the court held that, even though the general contractor visited the site daily, took responsibility for the successful completion of the project, urged workers to complete their work in a timely manner and directed workers to remove debris, the contractor was not entitled to the statutory employer defense. See Leibensperger, 813 A.2d 28. Piper distinguishes the present matter since the facts of Leibensperger confined the court’s analysis to whether the contractor controlled the work site. That is, in Leibensperger it was clear that the contractor did not occupy the work site since the contractor had no supervisory personnel at the work site. Since the McDonald test is disjunctive and can be satisfied by either occupation or control, Piper correctly argues that Leibensperger is irrelevant to a determination of whether Piper occupied the work site. Piper cites Emery v. McCollum, 725 A.2d 807 (1999), as a more appropriate case for us to consider in determining whether Piper occupied the work site. In Emery, the court made the following statement in determining that the general contractor had satisfied the second element of the McDonald test:

“The record shows that Bechtel, as general contractor, occupied the property for the purpose of constructing the cogeneration plant and had actual control over the premises. Bechtel had an on-site project superintendent who coordinated the work of the various subcontractors. The deposition testimony of the project superintendent clearly set forth that, while each subcontractor was responsible in its limited area, Bechtel was responsible for overseeing the entire project____Thus, Bechtel met the second McDonald element.” Emery, 725 A.2d at 811. (footnote omitted)

Piper claims that this case is similar to Emery in that Piper had a project superintendent present at the work site and was responsible for the overall job. In support of this claim, Piper again cites to the portions of Duane Powlus’ recorded statement discussed above. (See exhibit Ato Piper’s second motion for summary judgment, 11. 80-115.) Piper also notes Stan Seiple’s statement that “Piper was responsible for and did complete the project in accordance with the construction schedule set forth in the contract documents.” (Exhibit D to Piper’s second motion for summary judgment, affidavit of Stan Seiple, at paragraph 5(f).) Stan Seiple also affirms that Piper hired, selected and paid all subcontractors, scheduled the work of all subcontractors, and supervised and inspected the work of all subcontractors. (Exhibit D to Piper’s second motion for summary judgment, affidavit of Stan Seiple, at paragraph 5(c), (d) and (e).) Based upon the evidence now before this court, we agree that Piper has satisfactorily proven that it occupied the work site for purposes of its motion for summary judgment.

Initially, we note that in Powlus’ brief in opposition to Piper’s second motion for summary judgment, Powlus seems to confuse and/or collapses its analysis concerning whether Piper met the second element of the McDonald test. The thrust of Powlus’ attack is that Piper failed to show the necessary actual control of the work site. As noted above, element two of the McDonald test is disjunctive and can be satisfied by either showing that the general contractor occupied or controlled the work site. Although Powlus acknowledges this point in its brief, Powlus fails to separately address both tests for element two of the McDonald test. Powlus simply examines the facts and concludes that Piper did not control the work site. From this conclusion, Powlus further concludes that Piper failed to establish that it occupied and/ or controlled the work site.

The only point that Powlus raises that could possibly be construed as refuting Piper’s claim that it occupied the work site, is that although Piper had a superintendent at the work site, Piper was involved in other projects at the time. In Michael Porter’s deposition, he stated that, “we had lots of different jobs going on at the time.” (Deposition of Michael Porter, at p. 35,11. 2-24.) Inferentially, Powlus argues that Piper did not occupy the work site since it was working on other projects at the time. We disagree.

The evidence of record establishes that Piper had an on-site superintendent present at all phases of construction. Moreover, as noted above, although Powlus employees were at the work site at all times relevant to this matter, Powlus has failed to produce any evidence to refute Piper’s claim that Joe Gozikowski was present at the work site at all phases of construction. As discussed above, Duane Powlus has admitted that Piper employees were present at the work site to the same extent as Powlus employees. Based upon the evidence of record, we find that Piper occupied the work site and is entitled to summary judgment on this point. Although rendered moot, we nonetheless examine whether Piper controlled the work site.

Piper next cites relevant case law to support its claim that it also controlled the work site for purposes of meeting element two of the McDonald test. A general contractor was found to control a work site where the contractor had the “responsibility and authority to direct, manage and/or operate the construction project where the injury occurred” and where the general contractor’s foreman often sent help to rectify problems arising out of the subcontractor’s work even where the subcontractor used its own foreman to oversee the subcontractor’s employee’s work. Pastore v. Anjo Construction Co., 396 Pa. Super. 58, 578 A.2d 21 (1990). Where a contractor’s agent marked the area where excavation work was to be performed and exercised actual supervisory control over the entire job, there was sufficient evidence that the general contractor controlled the premises for purposes of meeting element two of the McDonald test. Colloi v. Philadelphia Electric Co., 332 Pa. Super. 284, 481 A.2d 616 (1984). A general contractor has control of a work site when the contract with the owner mandates that the general contractor be responsible for all construction means and methods and the general contractor had an on-site supervisor who coordinated the work being performed at the work site. Dougherty v. Conduit & Foundation Corp., 449 Pa. Super. 405, 674 A.2d 262 (1996).

Piper begins by citing a provision of the Outletter/Piper contract similar to those contained in the above cases. The Outletter/Piper contract makes Piper responsible for the safety of persons and equipment on the job site, as well as making Piper responsible for all work on the project and project site, including work performed by subcontractors. (See General Conditions of the Contract for Construction, articles 10.2, 3.3.) The Outletter/Piper contract also obligates Piper to “supervise,” “direct,” “coordinate” and to be “solely responsible for and have control over construction.” See id. at article 3.3.1. Thus, we agree that the contract provisions in this matter are similar to those discussed in cases where courts found that the general contractor controlled the work site.

Piper further argues that its presence at the work site and role on the project establish that it controlled the work site. As discussed above, Piper employee Joe Gozikowski oversaw and coordinated the work of the subcontractors. He was also present at the work site during all phases of construction. Piper also notes that it scheduled the work of the subcontractors. In support of this claim, Piper cites the deposition testimony of John Bonacci. John Bonacci testified that he received a call from Joe Gozikowski informing him that the elevator work was complete and to, “come back to the job and get the steel on there.” (Deposition of John Bonacci, at p. 57,11. 11-25, p. 58,11. 1-4.) Additionally, Stan Seiple also confirms that Piper scheduled the subcontractors’ work on the project. (Exhibit D to Piper’s second motion for summary judgment, affidavit of Stan Seiple, at paragraph 5(d).) Also, when a problem on the work site arose, a Piper employee was called to rectify the sitúation. (Exhibit D to Piper’s second motion for summary judgment, affidavit of Stan Seiple, at paragraph 5(p).) Thus, Piper argues that the contractual provisions, as well as its performance of supervisory duties at the work site, establish that it controlled the work site for purposes of its motion for summary judgment.

Powlus contends that the subcontractors were virtually autonomous, and, thus, Piper did not control the work site for purposes of meeting element two of the McDonald test. Powlus begins by noting that both Gene and Duane Powlus had supervisory duties at the work site. (Deposition of Duane Powlus, at p. 64, 11. 5-11; deposition of Gene Powlus, at p. 6,11. 18-23.) Powlus also notes that Keystone had a foreman on the work site who was responsible for running the crews and for job safety. (Deposition of John Bonacci, at p. 38, 11. 2-22.) John Bonacci and/or his foreman were also responsible for checking the scaffolding for safety. (Deposition of John Bonacci, atp. 49,11. 24-25, p. 50,11. 1-5.)

According to Powlus, Piper has failed to demonstrate that it controlled access to, or indeed anything about, the Powlus scaffolding. Powlus believes this is significant since the scaffolding was the actual site where plaintiff was injured. Powlus notes that it owned, erected and controlled access to the scaffolding and that Piper never inspected the scaffolding, never gave directions on how to erect the scaffolding, never attempted to or directed others to disassemble or block access to the scaffolding and never directed plaintiff to ascend the scaffold. It is Powlus’ position that Piper lacked the authority to direct plaintiff to ascend the scaffolding, and that Piper never directed plaintiff to perform any activity at the work site. Powlus further notes that no one from Piper or Keystone asked permission to access the scaffolding and that Powlus would fix safety problems relating to the scaffolding. (Deposition of Gene Powlus, at p. 22, 11. 19-25, p. 23, 11. 1-13; deposition of Duane Powlus, at p. 97, 11. 9-25, p. 98, 11. 1-9, p. 104, 11. 1-25.) Powlus also contends that it is significant that Piper did not employ anyone qualified to dismantle the towers and/or scaffolding and that Piper did not own the equipment needed to dismantle the towers and/or scaffolding. (Deposition of Duane Powlus, at p. 99, 11. 3-19.)

Powlus contends that the conduct of Piper employees following the accident also indicates that Piper did not control the work site. Michael Porter testified that although he had authority to direct Powlus to take the scaffolding down, he did not take steps to rope off the scaffolding or make any indications that a dangerous condition existed. Michael Porter testified that, “I just went to Duane and told him.” (Deposition of Michael Porter, at p. 36, 11. 5-19.) Thus, according to Piper, Michael Porter’s deposition testimony demonstrates that, although Piper may have had authority to control the work site, it never actually exercised such control.

The points raised by Powlus in its brief are insufficient to create an issue of material fact and we find that Piper controlled the work site. The fact that the subcontractors may have employed foremen responsible for safety and supervising work does not defeat Piper’s claim that it controlled the work site. See Pastore v. Anjo Construction Co., 396 Pa. Super. 58, 578 A.2d 21 (1990). Powlus’ primary claim is that Piper failed to exercise sufficient control over the scaffolding where plaintiff was injured. In support of this claim, Powlus points out that Keystone, not Piper, received three OSHA violations as a result of plaintiff’s accident. (Deposition of John Bonacci, at pp. 86, 87 and 91.)

It is often possible for a subcontractor to be primarily responsible for a particular area of a work site, even though the general contractor controls the work site as a whole. See Emery, 125 A.2d at 811. This phenomenon is the natural result of delegating work to subcontractors. In this case we agree with Piper’s claim that it controlled the work site. As noted above, Piper had an on-site supervisor, Joe Gozikowski, who was present during all phases of the construction project. (Exhibit D to Piper’s second motion for summary judgment, affidavit of Stan Seiple.) Joe Gozikowski, in fact, oversaw and coordinated the work of the subcontractors. (Exhibit Ato Piper’s second motion for summary judgment, 11. 80-115; exhibit B to Piper’s second motion for summary judgment.) Joe Gozikowski also communicated with the architect regarding the work being performed at the work site. (Exhibit D to Piper’s second motion for summary judgment, affidavit of Stan Seiple.) We find the evidence of record concerning Piper’s presence at the work site and role on the project, as well as the relevant provisions of the Outletter/Piper contract, are sufficient to establish that Piper controlled the work site. Accordingly, we find that Piper has satisfied element two of the McDonald test and that there are no issues of material fact.

Finally, Powlus contends that the doctrine of collateral estoppel, or issue preclusion, precludes Piper from re-litigating the statutory employer defense in light of this court’s order dated September 10,2003. Powlus notes that the four elements necessary to invoke the doctrine of collateral estoppel and/or issue preclusion are: “(1) an identity of issues between the present and former actions; (2) a final judgment on the merits; (3) the party against whom the doctrine is asserted must have been a party, or be in privity with a party, to the prior action; and (4) the party against whom the doctrine is asserted must have been afforded a full and fair opportunity to litigate the issue in question.” Menna v. St. Agnes Medi cal Center, 456 Pa. Super. 301, 307, 690 A.2d 299, 302 (1997) (citing Capobianchi v. BIC Corp., 446 Pa. Super. 130, 137-39, 666 A.2d 344, 348 (1995)). It is Powlus’ position this matter was fully and fairly litigated following Piper’s first motion for summary judgment, and that it cannot be raised in a subsequent motion for summary judgment. We disagree.

In the opinion that Powlus is relying upon, we made the following statement regarding whether Piper satisfied element two of the statutory employer test:

“At this time, we are unable to determine whether Piper occupied or controlled the work site where plaintiff was injured.” Order dated September 10, 2003, at p. 7.

From this statement it should be obvious that this court was unable to reach a determination concerning whether Piper met element two of the McDonald test. At that time, the evidence before the court was insufficient to make such a finding. Although we were unable to make a determination concerning element two of the McDonald test, we purposefully left the matter open for future litigation. Because we left the matter open for future litigation, our earlier opinion does not constitute a “final judgment on the merits.” Accordingly, the doctrine of collateral estoppel, or issue preclusion, is inapplicable to this matter.

Powlus next argues that the law of the case doctrine applies and precludes Piper from raising the statutory employer defense. The law of the case doctrine refers to: “a family of rules which embody the concept that a court involved in the later phases of a litigated matter should not reopen a question decided by another judge of that same court or by a higher court in the earlier phases of the matter.” Commonwealth v. Starr, 541 Pa. 564, 574, 664 A.2d 1326, 1331 (1995). As with the issue preclusion doctrine, the rationale underlying the law of the case doctrine is the protection of the parties’ expectations, the finality of litigation and the promotion of a settled, efficient and streamlined system of justice. Id.

Initially, we note that we were unable to uncover any cases dealing with a motion for summary judgment which had previously been denied on the same grounds. However, we note that a trial court may grant a motion for summary judgment on grounds similar to those presented in a preliminary objection that another judge had overruled. D’Errico v. DeFazio, 763 A.2d 424 (Pa. Super. 2000). We also note that in MacKintosh-Hemphill International Inc. v. Gulf & Western Inc., 451 Pa. Super. 385, 679 A.2d 1275 (1996), the court found that the trial court did not violate the “law of the case doctrine” by finding that plaintiffs had not expended substantial expenses in preparation of case for trial and that it would thus not be inequitable to enter non pros in favor of defendants, where trial court’s earlier opinion expressly left open questions concerning extent of plaintiffs’ trial preparation.

Thus, for the same reason discussed above concerning the doctrine of collateral estoppel, or issue preclusion, we find the law of the case doctrine is inapplicable to this matter. Accordingly, we find that Piper is entitled to summary judgment since it has established all elements of the five-part McDonald test and there are no issues of material fact.

ORDER

And now, March 19, 2004, upon consideration of defendants Roy W. Piper Construction’s second motion for summary judgment, Piper’s motion is hereby granted. We enter judgment in favor of Piper and all claims against Piper are dismissed.

      . Pursuant to our opinion dated September 10,2003, Outletter was granted summary judgment and is no longer a party to this matter.

      . As an aside, Powlus argues that because Piper failed to establish that it controlled the scaffold, its credibility concerning its claim that it controlled the entire work site is undercut. We disagree. For Piper to establish that it controlled the work site, Piper need not make a showing that it micromanaged every aspect of the subcontractors’ work. We believe that the evidence of record is sufficient to establish that Piper controlled the work site even without making a specific showing that it exercised actual control over the area where plaintiff was injured.

      . Powlus ignores Duane Powlus’ admission that Powlus would have taken the scaffolding down had Michael Porter requested that it do so. (Deposition of Duane Powlus, at p. 98, 11. 3-6, p. 102, 11. 1-25.) Gene Powlus also indicated that other subcontractors often used Powlus’ scaffolding and that there was no reason why they should have been unable to do so. (Deposition of Gene Powlus, at p. 22,11. 5-25.) Michael Porter also requested that Powlus move some of the planking following the accident. (Deposition of Michael Porter, at p. 36,11. 15-19.)

      . This contention obviously ignores the fact that Piper employed Powlus, who was qualified to dismantle the scaffolding and owned the necessary tools.

      . This point again ignores the fact that Michael Porter requested that Powlus move planking following the accident. (Deposition of Michael Porter, at p. 36,11. 13-19.)


source: Caselaw Access Project

author: O’BRIEN, J.,

license: Public Domain

text:
    Moore v. John A. Luchsinger P.C.

      C.P. of Monroe County,
    no. 918 Civil 2003.

      Geoffrey S. Worthington, for plaintiff.

      Jeffrey McCarron, for defendants.
    February 13, 2004
   O’BRIEN, J.,

On February 7, 2003, the plaintiff filed a “complaint for malpractice” against an attorney and his law firm. The complaint alleges that the defendants represented the plaintiff in a wrongful death and survival action resulting from the death of his father on July 18,1992. The lawsuit resulted in a settlement in the amount of $850,000 paid by a medical health care provider. The complaint further alleges that the settlement was consummated and the defendant attorneys’ services concluded in 1996. On October 29, 2003, counsel for defendants executed a praecipe for entry of judgment which provided in pertinent part as follows:

“I, Jeffrey B. McCarron, certify that the plaintiff named above has asserted a professional liability claim against defendant named above who is a licensed professional, that no certificate of merit has been filed within the time required by Pa.R.C.P. 1042.3 and that there is no motion to extend the time for filing the certificate pending before the court.”

This document was filed in the office of the prothonotary of Monroe County on November 17, 2003. On November 18, 2003, the prothonotary of Monroe County entered a non pros. Plaintiff has filed a petition to strike or open the judgment of non pros to which the defendants have filed an answer. Following submission of briefs and oral argument, the petition to strike or open the judgment of non pros is now before the court for disposition.

On January 27, 2003, new Rules of Civil Procedure for professional liability actions were adopted by our Supreme Court. Pa.R.C.P. 1042.3(a) provides that in an action based on allegations that a licensed professional deviated from the acceptable professional standard, the attorney for the plaintiff shall file with the complaint, or within 60 days after the filing of the complaint, a certificate of merit signed by the attorney. Pa.R.C.P. 1042.6(a) provides that the prothonotary, upon praecipe of the defendant, shall enter a judgment of non pros against the plaintiff for failure to file a certificate of merit within the required time, provided there is no pending timely filed motion seeking to extend the time to file the certificate.

Plaintiff’s complaint was filed on February 7, 2003, approximately 10 days following the adoption of the new rule. Although Pa.R.C.P. 1042.3(d) authorizes an extension of time for filing a certificate of merit, no such motion was filed in this case by counsel for plaintiff. While conceding this fact, counsel for plaintiff does point out that certificates of merit were filed in the office of the prothonotary on November 13, 2003, five days before the praecipe for entry of judgment was entered by the prothonotary.

Relief from a judgment of non pros is governed by Rule 3051 which provides that if the relief sought from a judgment of non pros includes the opening of the judgment, the petition shall allege facts showing (1) the petition is timely filed, (2) there is a reasonable explanation or a legitimate excuse for the inactivity or delay, and (3) there is a meritorious cause of action. The explanatory comment — 1991 to this rule states that this rule “will apply in all cases in which relief from a judgment of non pros is sought, whether the judgment has been entered by praecipe as of right or by the court following a hearing.” The comment further states that this rule “provides for uniformity in the requirements of the petition to open such a judgment.”

Plaintiff’s petition does not set forth a reasonable or legitimate excuse for the inactivity (the inactivity being the failure of plaintiff’s counsel to file within the 60-day period a certificate of merit or a motion to extend the time for filing the certificate). This will be so in almost every case in which a judgment of non pros is entered for failure to file a certificate of merit. The plaintiff who has a reasonable explanation or legitimate excuse for not being able to timely file a certificate of merit may, instead, file a motion to extend the time for filing the certificate on or before the filing date that the plaintiff seeks to extend. The filing of the motion to extend tolls the time period within which a certificate of merit must be filed until the court rules on the motion. Consequently, an explanation for the inactivity requires an explanation as to why the plaintiff did not within the 60-day period file a motion to extend the time for filing the certificate of merit. Since ignorance of the law is never an excuse, plaintiff’s explanation that his counsel was unfamiliar with the new rule is not sufficient.

Disposition of the issue before the court is controlled by the recent decision of our Commonwealth Court in Koken v. Lederman, 840 A.2d 446 (Pa. Commw. 2003). In that case, the Commonwealth Court strictly applied the provisions of the above cited rule and refused to strike or open a judgment of non pros entered for the failure of the plaintiff to file a certificate of merit within 60 days or request an extension of time to do so within that period. In view of the clear holding of our Commonwealth Court, we conclude we are without authority to grant relief to the plaintiff.

ORDER

And now, February 13, 2004, the petition of plaintiff Thomas P. Moore to strike or open the judgment of non pros entered by the prothonotary of Monroe County on November 18, 2003, is denied.


author: NEWMAN, Member,

text:
    Office of Disciplinary Council v. Goykhman

      Disciplinary Board Docket no. 66 D.B. 2001.
    February 3, 2004-
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

NEWMAN, Member,

Pursuant to Rule 208(d) (2) (iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

On October 9,2001, petitioner, Office of Disciplinary Counsel, filed a petition for discipline against respondent, Vladimir Goykhman. The petition contained six charges alleging that respondent engaged in a pattern of mishandling fiduciary funds and, in some instances, misappropriated fiduciary funds. One of the charges was withdrawn by petitioner, and a seventh charge was added by agreement of the parties. Respondent filed an answer to petition for discipline on November 14, 2001.

A disciplinary hearing was held on June 18,2002, and continued on January 29, 2003, before Hearing Committee 1.11 consisting of Chair Samuel J. Pace Jr., Esquire, Member George M. Vinci Jr., Esquire, and Alternate Member Lindley M. Cowperthwait Jr., Esquire. Respondent was represented by James P. Leonard, Esquire. Petitioner introduced into evidence joint stipulations of fact, supplemental joint stipulations of fact and law, exhibits, and the testimony of nine witnesses. Respondent introduced exhibits and the testimony of one witness. Respondent did not testify.

Following briefing by the parties, the committee filed a report on August 28, 2003 and recommended that respondent be disbarred from the practice of law.

Respondent filed a brief on exceptions on September 30,2003. Petitioner filed a brief opposing exceptions on October 20, 2003.

This matter was adjudicated by the Disciplinary Board at the meeting of November 19, 2003.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 1400, 200 North Third Street, Harrisburg, Pennsylvania 17101, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of any attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of said rules.

(2) Respondent was born in 1960 and was admitted to practice law in the Commonwealth of Pennsylvania in 1987. His current mailing address is 1458 Brook Lane, Jamison, PA 18929. Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.

The Pukhiy Matter

(3) In or around May 1997, respondent was retained to represent Shika Pukhiy in a claim for personal injuries sustained in an automobile accident.

(4) In April 1998, respondent filed a claim on behalf of Mr. Pukhiy.

(5) On January 13, 1999, an arbitration was held in Mr. Pukhiy’s matter. The arbitrators found in favor of Mr. Pukhiy in the amount of $17,500.

(6) Thereafter respondent settled the case for $ 10,000.

(7) In February 1999, respondent received a check in the amount of $10,000 from Erie Insurance Company made payable to “Shika Pukhiy and Goykhman and Associates.”

(8) On or about February 12,1999, respondent cashed the check at a check-cashing agency, Pratt Service, on Frankford Avenue in Philadelphia. The agency later deposited the check in their Mellon Bank account.

(9) Respondent did not deposit the funds into a fiduciary account.

(10) On or about March 29,1999, respondent executed a handwritten document promising that the settlement funds would be distributed to Mr. Pukhiy by 12 a.m. on March 31, 1999.

(11) Respondent did not make distribution of the proceeds to Mr. Pukhiy by March 31, 1999.

(12) Respondent distributed $7,500 to Mr. Pukhiy on April 16, 1999.

(13) On April 16, 1999, Mr. Pukhiy signed a “Settlement statement” and a power of attorney.

(14) Prior to April 16,1999, Mr. Pukhiy had not given respondent permission to sign the settlement check on Mr. Pukhiy’s behalf.

(15) The signature on the back of the settlement check was not Mr. Pukhiy’s signature.

(16) By letter dated April 16, 1999, to the Disciplinary Board, Mr. Pukhiy stated that respondent had given Mr. Pukhiy the funds, and he did not want to proceed with his complaint against respondent.

(17) On April 16, 1999, Mr. Pukhiy signed a release, releasing respondent from any liability regarding his accident.

The Shpigel Matter

(18) On August 27, 1998, Gregory Shpigel retained respondent to represent him in a personal injury claim arising from an automobile accident. At that time, respondent and Mr. Shpigel entered into a 30 percent contingent fee agreement.

(19) By letter dated April 5,1999, Hartford Insurance Company notified Mr. Shpigel that payment in the amount of $6,000 was mailed to Goykhman & Associates.

(20) On April 5,1999, respondent witnessed a “Receipt, release and trust agreement under uninsured motorist coverage” between Mr. Shpigel and Hartford Insurance in which Mr. Shpigel acknowledged receipt of $6,000.

(21) Shortly thereafter respondent received a check from Hartford Insurance Company in the amount of $6,000 made payable to “Goykhman & Associates P.C. as attorneys for Gregory Shpigel.”

(22) Respondent cashed the settlement check at a check-cashing agency on April 9, 1999. Thereafter the agency deposited the check into its Fidelity Bank account.

(23) Mr. Shpigel did not give respondent authority to sign the settlement check on his behalf.

(24) Respondent did not deposit the funds into a fiduciary account.

(25) Mr. Shpigel telephoned respondent on numerous occasions and inquired about the status of his settlement.

(26) Respondent failed to return Mr. Shpigel’s telephone calls.

(27) As of the date of the disciplinary hearing, respondent had not distributed any settlement funds to Mr. Shpigel.

The Yukhananov Matter

(28) On or about December 22, 1994, Ella and Rafail Yukhananov retained respondent to represent themselves as parents and their minor son, Dmitry, in a slip and fall action against Joseph and Jane Koch, who were insured by Philadelphia Contributorship Insurance Company.

(29) Respondent negotiated a settlement agreement with Contributorship on behalf of the Yukhananovs in the amount of $15,000.

(30) On July 9, 1997, the Yukhananovs signed a joint tort-feasor release and settlement of claim agreement.

(31) On July 10, 1997, the Yukhananovs terminated respondent’s representation.

(32) Respondent forwarded the release agreement to Contributorship.

(33) Respondent failed to get the required court approval for the settlement in the form of a minor’s compromise.

(34) On July 11, 1997, Contributorship issued a $15,000 check payable to the Yukhananovs and respondent.

(35) On or about July 16, 1997, respondent endorsed the settlement check, signed and/or caused the Yukhananovs’ names to be signed on the check, and deposited the check into his CoreStates First Pennsylvania Bank account.

(36) Respondent did not inform the Yukhananovs that he had received the funds.

(37) Thereafter, respondent withdrew the funds from his escrow account.

(38) Respondent did not maintain the funds in the escrow account as required.

(39) In December 1997, respondent spoke to the Yukhananovs’ new attorney, Dante Mattioni, Esquire.

(40) Respondent did not advise Mr. Mattioni that respondent had received the settlement funds.

(41) On or about December 5,1999, Mr. Mattioni filed an action on behalf of the Yukhananovs against Mr. and Mrs. Koch.

(42) It was only after Mr. Mattioni filed this action that he discovered respondent had received the settlement funds.

(43) Respondent has not transferred the settlement funds to Mr. Mattioni.

The Klebanov Matter

(44) On December 17, 1997, Tatyana Klebanov retained respondent to represent her in a personal injury claim arising out of an automobile accident.

(45) In early 1999, respondent negotiated a $5,000 settlement with Prudential Insurance Company. Ms. Klebanov accepted the offer and executed the required release forms.

(46) On March 4,1999, respondent received a $5,000 check made payable to Ms. Klebanov and Goykhman & Associates.

(47) On March 5, 1999, respondent endorsed and cashed the $5,000 settlement check at a check-cashing agency. The agency deposited the check into its Mellon Bank account.

(48) Respondent did not have authority to sign the settlement check on behalf of Ms. Klebanov.

(49) Respondent did not deposit the settlement proceeds into a fiduciary account.

(50) Respondent failed to promptly forward to Ms. Klebanov her portion of the settlement funds.

(51) Beginning in July 1999, Ms. Klebanov’s new attorney, Ely Goldin, contacted respondent via telephone and letters, requesting that respondent forward the settlement funds to Ms. Klebanov.

(52) Respondent failed to forward the funds.

(53) In a meeting on October 13, 1999, between respondent and Attorney Goldin, respondent entered an agreement in which he:

(a) acknowledged that the settlement funds had not been paid to Ms. Klebanov;

(b) agreed to pay Ms. Klebanov $500 as partial payment against the amount owed to her; and

(c) agreed to pay the balance of the funds on or before November 5, 1999.

(54) On October 13, 1999, respondent made a partial payment of $500 to Ms. Klebanov.

(55) As of the date of the hearing, respondent failed to forward to Ms. Klebanov the balance of her settlement funds.

The Weinbrand Matter

(56) In August 1997, respondent was retained by Izmail and Mira Weinbrand to represent them in a personal injury matter for injuries they sustained in an automobile accident.

(57) In March 1998, respondent negotiated a settlement agreement with Liberty Mutual Insurance Company whereby each client would receive $10,500.

(58) On March 24,1998, the Weinbrands executed the release agreements.

(59) On March 25, 1998, respondent received the settlement checks from Liberty Mutual, each check in the amount of $10,500.

(60) Respondent endorsed the checks and signed or caused to be signed the Weinbrands’ names on the checks.

(61) On April 11,1998, respondent cashed the checks at a check-cashing agency.

(62) Respondent failed to deposit the funds into his escrow account.

(63) Respondent failed to promptly forward the settlement proceeds to the Weinbrands.

(64) In February 1999, Mr. Weinbrand filed a complaint against respondent with the Office of Disciplinary Counsel.

(65) Mr. Weinbrand informed respondent that he had filed a complaint.

(66) Mr. Weinbrand did not follow through on the complaint because on March 2,1999, respondent executed a promissory note wherein respondent:

(a) stated that the Weinbrands were entitled to receive $15,750

(b) stated that respondent had paid the Weinbrands one thousand dollars

(c) promised that the balance would be paid in weekly installments of $2,000 until paid, but no later than May 8, 1999

(d) stated that upon payment in full the Weinbrands would sign a letter of distribution.

(67) Respondent failed to distribute any additional funds to the Weinbrands on or before May 8, 1999.

(68) By letter of June 27, 2001, Mr. Weinbrand:

(a) reminded respondent that he had not pursued a disciplinary complaint against respondent

(b) reminded respondent that he had received only $1,000

(c) stated that unless respondent paid the full amount owed, he would file another complaint.

(69) Thereafter, respondent paid the Weinbrands an additional $2,700.

(70) On January 7, 2002, respondent sent a letter to the Weinbrands and promised that once settlement was reached in another client’s case, he would pay the Weinbrands their funds from his portion of that client’s settlement funds.

(71) As of the date of the hearing, respondent had paid the Weinbrands a total of $3,700 and had failed to forward the remaining balance of $12,050.

Other Findings

(72) In July 2000, respondent’s counsel, James R Leonard, reported to petitioner that respondent forwarded to Mr. Leonard $7,000 in cash which purportedly belonged to respondent’s clients. Mr. Leonard deposited the money in his escrow account.

(73) By letter dated February 21, 2001, to petitioner, Mr. Leonard explained that:

(a) he was currently holding in his escrow account for safekeeping funds which respondent had given to him, said funds belonging to the individuals who had filed disciplinary complaints against respondent;

(b) In July 2000, respondent had forwarded to Mr. Leonard a check written by an unnamed third party in the amount of $15,000 which Mr. Leonard deposited into his IOLTA account;

(c) Subsequently, the unnamed third party stopped payment on the check and “apparently the funds had been misappropriated” by the third party; and

(d) In February 2001, respondent replaced the check with $15,000 in cash, which was deposited into Mr. Leonard’s escrow account.

(74) Respondent has no prior history of discipline.

m. CONCLUSIONS OF LAW

By his conduct as set forth above, respondent violated the following Rules of Professional Conduct:

(1) R.P.C. 1.4(a) — A lawyer shall keep a client informed about the status of a matter and promptly comply with reasonable requests for information.

(2) R.P.C. 1.15(a) — A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property.

(3) R.P.C. 1.15(b) — Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. A lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.

(4) R.P.C. 8.4(b) — It is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness in other respects.

(5) R.P.C. 8.4(c) — It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

IV. DISCUSSION

This matter is before the Disciplinary Board on a petition for discipline filed against respondent charging him with engaging in a deliberate pattern of mishandling and misappropriating fiduciary funds. Petitioner presented clear and convincing evidence that respondent both intentionally and knowingly failed to properly handle fiduciary funds by cashing client settlement checks at a check-cashing agency and intentionally and knowingly converting his clients’ funds when he failed to promptly distribute their share of the funds and failed to hold their funds inviolate. Thereafter, respondent made agreements with some of his clients to make payments to them by a certain date when he knew he did not have the funds available to fulfill his obligations. Respondent admitted that he needed to settle one client’s case to make payments in other client cases. Respondent has not made restitution to his clients. Respondent’s conversion of fiduciary funds is a criminal act that negates his fitness to be a lawyer.

As a justification for his actions, respondent claimed that he was the victim of a criminal conspiracy whereby the instant complainants were “put up to creating problems for respondent by a criminal element in the community.” (N.T. 238.) Respondent presented the testimony of Boris Kholodenko, a relative of his wife. Mr. Kholodenko was a volunteer at respondent’s law office from 1997 through 1999. He testified that a criminal conspiracy was initiated by a Mr. Vaisberg, respondent’s former employee, who allegedly has ties to the Russian Mafia. Mr. Kholodenko provided absolutely no convincing proof of any such conspiracy, particularly in light of the fact that such alleged criminal activity was not reported to any law enforcement authorities. Mr. Kholodenko’s testimony was picked apart by petitioner and was found to be not credible by the Hearing Committee. Review of the record indicates that the committee’s findings should not be disturbed. Respondent’s claim does not mitigate his misconduct. Respondent was responsible for the fiduciary funds entrusted to him and failed to carry out his professional obligations.

The primary purpose of Pennsylvania’s system of lawyer discipline is to protect the public. Office of Disci plinary Counsel v. Duffield, 537 Pa. 485, 644 A.2d 1186 (1994). When the misconduct involves the mishandling of entrusted funds, disbarment may result. In re Anonymous No. 121 D.B. 1999, no. 645 Disciplinary Docket no. 3 (Pa. March 23,2001); Office of Disciplinary Counsel v. Monsour, 549 Pa. 482, 701 A.2d 556 (1997). Respondent’s cavalier mishandling and misappropriation of client funds is egregious behavior, sustained over a period of years, and deserves the strongest available sanction in order to protect the public from further harm.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that the respondent, Vladimir Goykhman, be disbarred from the practice of law in this Commonwealth.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

ORDER

And now, May 6, 2004, upon consideration of the report and recommendations of the Disciplinary Board dated February 3,2004, it is hereby ordered that Vladimir Goykhman be and he is disbarred from the bar of this Commonwealth, and he shall comply with all the provisions of Rule 217, Pa.R.D.E.

It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.


author: HERMAN, J.,

text:
    Nitterhouse Concrete Products v. Pennsylvania Manufacturers’ Association Insurance Company

      C.P. of Franklin County,
    no. 2002-2970.

      David E. Lehman, for plaintiff.

      Charles E. Wasilefski, for defendant.
    June 30, 2004-
   HERMAN, J.,

INTRODUCTION

Before the court is a motion for judgment on the pleadings filed by defendant Pennsylvania Manufacturers’ Association Insurance Company (PMA) in response to a complaint filed by plaintiff Nitterhouse Concrete Products seeking declaratory relief. This action arises from Nitterhouse’s request that PMA defend and indemnify it under a commercial general liability insurance policy issued by PMA to Nitterhouse. Nitterhouse seeks defense and indemnification as a result of a suit filed in Lancaster Coiinty against Nitterhouse by the School District of Lancaster. Nitterhouse answered PMA’s motion for judgment on the pleadings. These two parties filed briefs and the court heard oral argument on the motion. The matter is ready for decision.

BACKGROUND

The Lancaster Action

Nitterhouse agreed to manufacture and supply pre-cast concrete for a construction project at McCaskey East High School in Lancaster County. Nitterhouse agreed to prepare shop drawings showing the connection between a plank designed by Nitterhouse and the load-bearing walls at the school. Nitterhouse subcontracted the installation work to J.L. Erectors Inc.

On October 5, 2001, Lancaster filed a complaint alleging that the construction project resulted in serious structural problems at the school. The complaint contained a claim entitled “Breach of contract by Nitterhouse” (Count III). Nitterhouse asked PMA to defend and indemnify pursuant to the PMA policy. PMA refused, prompting Nitterhouse to file this declaratory judgment action. Lancaster then filed an amended complaint which again alleged breach of contract and also contained a claim entitled “Negligent misrepresentation by Nitterhouse” (Count XVII). Nitterhouse filed an amended declaratory judgment action, again seeking coverage under the PMA policy in response to Lancaster’s allegation of negligent misrepresentation.

Lancaster makes the following allegations against Nitterhouse in Count III entitled “Breach of contract.” According to Lancaster, Nitterhouse breached its contract when it failed to detect inadequate bearings, failed to verify load-bearing masonry wall locations, and failed to install proper bearing pads. ¶¶32-33. “Nitterhouse knew (or had reason to know) that [the architect] and [the structural engineering subcontractor] had designed only one building expansion joint for [the school].” ¶33. “Nitterhouse knew (or had reason to know) that one expansion joint was inadequate to accommodate building movement at [the school] and would lead to structural deficiencies at the plank-to-wall connection as designed by Nitterhouse.” Id. These deficiencies, arising out of Nitterhouse’s allegedly “negligent performance of its work,” purportedly caused material defects in the structural integrity of the school. ¶38.

The allegations in Count XVII entitled “Negligent misrepresentation by Nitterhouse” are that Nitterhouse submitted shop drawings showing construction details which it never intended to follow. ¶130. Nitterhouse submitted drawings depicting the method of connecting the pre-cast concrete plank to the structural masonry walls. Those drawings showed a 4-inch by 4-inch bearing pad installed on top of the wall under each of the four plank legs. ¶132. Approximately 50 percent of the bearing pads depicted in Nitterhouse’s drawings are missing from the school as built, and approximately 50 percent of the pads which were installed are in the wrong place. ¶134. Nitterhouse’s senior vice president, John M. Jones, admitted during his deposition that Nitterhouse only expected to install two bearing pads at the end of each plank, not four pads as shown in its shop drawings. ¶135. According to Lancaster, Nitterhouse issued its drawings knowing the school district and its consultants expected Nitterhouse to comply with its depiction of the bearing pads as illustrated in those drawings. ¶137. “Nitterhouse should have known its shop drawings falsely depicted what Nitterhouse expected to be installed in the field with respect to bearing pads.” ¶138. Nitterhouse’s alleged misrepresentation in submitting the drawings caused the school district substantial damages due to the structural problems at the school. ¶140.

Based on the foregoing, PMA contends that the Lancaster action is one only for breach of contract and/or intentional conduct, despite the tort-like couching of Count XVB and use of the word “negligence” in certain paragraphs under Count III. Under PMA’s view of the Lancaster suit’s allegations and certain provisions of the policy, PMA need not defend and indemnify Nitterhouse for Nitterhouse’s own intentional conduct in failing to fulfill its contract with Lancaster. By contrast, Nitterhouse maintains that the policy obligates PMA to provide broad defense and indemnification for a wide range of “occurrences,” and that such obligation is not defeated by certain policy exclusions.

Standard of Review

Nitterhouse’'s complaint is an action for declaratory relief under the Declaratory Judgments Act, which authorizes the court to declare, settle and make certain the rights, status and other legal relations between the parties. 42 Pa.C.S. §7532. The interpretation of written contracts, including insurance policies, is a proper subject for a declaratory judgment action. Section 7533.

The court should grant a motion for judgment on the pleadings only where the pleadings and attached documents demonstrate that no genuine issue of fact exists and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1034; Vetter v. Fun Footwear Co., 447 Pa. Super. 84, 668 A.2d 529 (1995). The motion is similar to a demurrer. Citicorp North America Inc. v. Thornton, 707 A.2d 536 (Pa. Super. 1998). In the insurance context, the complaint’s factual allegations must be taken as true and the complaint should be liberally construed. All doubts as to whether the insurance policy covers the claims must be resolved in favor of the insured. Unionamerica Insurance Co. Ltd. v. J.B. Johnson, 806 A.2d 431 (Pa. Super. 2002). An insurer’s duty to defend an insured arises whenever the complaint filed by the allegedly injured party may potentially fall under the policy’s coverage. Stevens Painton Corporation v. First State Insurance Co., 746 A.2d 649 (Pa. Super. 2000). “[T]he duty to defend remains with the insurer until it is clear the claim has been narrowed to one beyond the terms of the policy.” Belser v. Rockwood Casualty Insurance Co., 791 A.2d 1216, 1219-20 (Pa. Super. 2002).

DISCUSSION

The Meaning of “Occurrence” Under the PMA Policy

The policy obligates PMA to pay for damages Nitterhouse incurs because of property damage caused by an “occurrence,” defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” Section V. 12. Excluded is property damage which is expected or intended, from the standpoint of the insured. Section I.A.2(a). Whether the damage is caused by an “accident” must be determined from the perspective of the insured. Cardwell v. Chrysler Financial Corp., 804 A.2d 18 (Pa. Super. 2002).

It is well-established that courts must construe the words of an insurance contract according to their plain meaning and ordinary usage. Riccio v. American Republic Insurance Co., 550 Pa. 254, 705 A.2d 422 (1997). According to ordinary usage, an accident is “an event occurring by chance or arising from unknown causes; a lack of intention or necessity; an unfortunate event resulting from carelessness, unawareness, or ignorance, or a combination of causes; an unexpected happening causing loss or injury which is not due to any fault or misconduct on the part of the person injured, but from the consequences of which he may be entitled to some legal relief.” Webster’s.

PMA’s main contention is that a breach of contract can never constitute an “occurrence” because such a breach cannot be considered an accident, but is instead always the result of intentional conduct, the type of conduct which is not covered by the policy. This argument must be rejected for two reasons. First, the clear policy definition of “occurrence” says nothing about breach of contract. Similarly, PMA points to language in the policy which excludes coverage for contractual liability, which we will discuss more closely below. For the moment we note that, although it is true that the policy does not generally cover contractual liability, such specific exclusionary language would be wholly superfluous if a breach of contract could never constitute an “occurrence.”

Second, this same argument has already been rejected by the Superior Court in Kvaerner Metals Division of Kvaerner U.S. Inc. v. Commercial Union Insurance Co., 825 A.2d 641 (Pa. Super. 2003), a case which addressed the exact same definition of “occurrence” as is contained in the PMA policy:

“The [insurance] industry has now taken to arguing that whenever a claim of defective construction is alleged against an insured, the claim is automatically barred from coverage as not constituting an ‘occurrence.’ The position is nothing more than a rehash of the ‘business risk’ doctrine, [the success of which] depends entirely on courts ignoring the actual language of the [commercial general liability] policy.” Id. at 653.

The contention that a breach of contract can never be an accident is unsupported, particularly when, from the perspective of the insured, the damage was neither intended nor expected. In this case, Nitterhouse hired subcontractor J.L. Erectors Inc. to install the pre-cast concrete supplied by Nitterhouse. If J.L. Erectors made errors in the installation process, those errors were arguably neither intended nor expected by Nitterhouse. Unintended damage during a construction project can be considered an accident under the type of policy issued by PMA. Id. at 654.

To support its contention that a breach of contract can never be an accident and therefore never an “occurrence” triggering coverage, PMA relies heavily on Pennsylvania Manufacturers’ Association Insurance Co. v. L.B. Smith Inc., 831 A.2d 1178 (Pa. Super. 2003), and Snyder Heating Company Inc. v. Pa. Manufacturers’ Association Ins. Co., 715 A.2d 483 (Pa. Super. 1998). However, PMA’s reliance on L.B. Smith and Snyder is misplaced insofar as those insureds wanted coverage for their own conduct. Those cases did not involve a company’s claim for coverage based on liability arising from the actions of a third-party subcontractor, in contrast to the instant case where Nitterhouse maintains that it could not have anticipated J.L. Erectors’ allegedly negligent conduct. From Nitterhouse’s perspective, its subcontractor’s errors were an accident, leading to negative results which Nitterhouse never intended.

Furthermore, even if Nitterhouse’s actions were “intentional” on some level, it is still possible that coverage is called for insofar as the specific language of the policy excludes only property damage which was expected or intended from the standpoint of the insured. Section I.A.2.a. “An insured intends an injury if he desired to cause the consequences of his act or if he acted knowing that such consequences were substantially certain to result.” Erie Insurance Exchange v. Fidler, 808 A.2d 587, 590 (Pa. Super. 2002). It would indeed be a stretch for this court at this stage of the proceedings to conclude as a matter of law that Nitterhouse expected or intended its actions to result in major structural problems at the school.

Gist-of-the-Action

As a corollary to the above discussion, PMA argues Nitterhouse is not entitled to coverage under the gist-of-the-action doctrine. This doctrine prevents a party from re-casting an ordinary breach of contract claim into a tort claim in order to bypass the contractual exclusion for coverage in a commercial general liability policy. The court must look beyond the couching of what are essentially contract claims using tort-like language so as to prevent the blurring of the distinction between contract and tort theories of liability and recovery. This is important because tort actions are based on a breach of duty imposed by law as a matter of social policy, whereas contract actions are based on duties resulting from agreements between the parties. Etoll Inc. v. Elias/Savion Advertising Inc., 811 A.2d 10 (Pa. Super. 2002).

PMA invokes the doctrine largely in response to the deposition testimony of Nitterhouse Senior Vice President John M. Jones in which Mr. Jones allegedly “admitted that Nitterhouse only expected to install two bearing pads at the end of each plank, not four pads as depicted in its shop drawings.” (¶135 of the Lancaster amended complaint.) Based on this single piece of “proof,” PMA concludes that Nitterhouse’s conduct was an intentional act, not a product of happenstance, and therefore the Lancaster action alleges breach of contract and breach of contract alone. We disagree with the position urged on us by PMA.

First, PMA has not made Mr. Jones’ deposition part of the record in the instant case and therefore we cannot consider it under the rules regarding motions for judgment on the pleadings, nor does PMA’s distillation allow us to independently review Mr. Jones’ testimony in the context of his entire testimony. As a result, we cannot discern the level of Mr. Jones’ familiarity with the process by which Nitterhouse allegedly conceived and drew up the shop plans at issue, that is, his personal knowledge of the necessary loads, materials and construction methods appropriate to this particular project. We cannot classify Nitterhouse’s conduct as a strictly intentional contractual breach and leave Nitterhouse without a means of defense based solely on this one fragment of this one deposition in a case (the Lancaster action) in which discovery is still ongoing.

Second, the gist-of-the-action doctrine precludes tort claims only when those claims arise solely or principally from a contract between the parties. Etoll Inc. v. Elias/ Savion Advertising Inc., 811 A.2d 10 (Pa. Super. 2002). The doctrine bars tort claims (1) arising solely from a contract between the parties; (2) the duties allegedly breached were created and grounded in the contract itself; (3) the liability stems from a contract; or (4) the tort claim essentially duplicates a breach of contract claim or the success of which is wholly dependent on the terms of a contract. Id. at 19.

The problem with applying the doctrine is we are not yet in a position to discern whether Nitterhouse’s alleged liability arises mainly under the contract(s) in question (that is, the contract between Nitterhouse and Lancaster, and the contract between Nitterhouse and subcontractor J.L. Erectors) until the precise scope of the participants’ duties under those contracts is known. On the other hand, Nitterhouse makes an ostensibly reasonable contention that the structural problems at the school are to be traced to the negligence of J.L. Erectors in not installing the proper number of bearing pads for the load. Add to this the fact that the Lancaster amended complaint is not clear with regard to whether it believes Nitterhouse’s failures stem from its role as manufacturer, supplier, plan designer or installer of the plank and pads. It is therefore premature for PMA to state with complete certainty that the Lancaster action is alleging only breach of contract by Nitterhouse.

Furthermore, the contractual liability exclusion bars coverage for property damage for which the insured is itself obligated to pay damages because the insured has assumed that liability in a contract or agreement. Section I.A.2.b. However, Lancaster’s contract claim against Nitterhouse appears not to be based on Nitterhouse’s assuming the liability of another (J.L. Erectors, for example) in an indemnification or hold-harmless agreement, but is based on an allegation that Nitterhouse itself breached the contract with the school district. Therefore this exclusion does not bar coverage. Finally, even if there is some ambiguity as to the scope of this exclusion, the provision must be construed in favor of the insured. Riccio v. American Republic Insurance Co., 550 Pa. 254, 705 A.2d 422 (1997).

Other Exclusions

Although PMA cites to two exclusions in the policy to support its refusal to defend and indemnify Nitterhouse, those coverage exclusions are themselves limited by the clear and specific language of the policy. The policy contains exclusions for certain “Damage to property” and “Damage to your work.”

“(2) Exclusions. This insurance does not apply to ...

“(j) Damage to property. ‘Property damage’ to . . . (5) that particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the ‘property damage’ arises out of those operations; or (6) that particular part of any property that must be restored, repaired or replaced because ‘your work’ was incorrectly performed on it... . Paragraph (6) of this exclusion does not apply to ‘property damage ’ included in the ‘products-completed operations hazard.. . . ’

“(1) Damage to your work. ‘Property damage’ to ‘your work’ arising out if it or any part of it and included in the ‘products-completed operations hazard____’ This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor.” Section I.A.2. (emphasis added)

The term “products-completed operations hazard” is defined as:

“(14) [All]... ‘property damage’ occurring away from premises you own or rent and arising out of ‘your product’ or ‘your work’ except: (1) Products that are still in your physical possession; or (2) Work that has not yet been completed or abandoned. However, ‘your work’ will be deemed completed ....” Section V.14.a.

Under these specific and unambiguous provisions, as well as the Superior Court’s interpretation of that very same language in Kvaemer Metals, supra, the exclusion for “damage to property” does not apply to property damage which occurs away from Nitterhouse’s premises and which arises out of Nitterhouse’s completed work. The exclusion for “damage to your work” does not apply to property damage which arises from the completed work of a subcontractor, in this case, the installation work allegedly done by J.L. Erectors.

PMA relies on Ryan Homes Inc. v. Home Indemnity Co., 436 Pa. Super. 342, 647 A.2d 939 (1994), in which the court found that policy language very similar to the above language in the PMA policy did not require the insurer to cover damage to work done by the insured or arising out of that work. The insured in Ryan was the general contractor who was required to repair defective construction work done by a subcontractor. The key distinction between Ryan and the instant case, and it is a pivotal one, is that the policy in Ryan did not feature a subcontractor exception to the coverage exclusion. That exception may alter the definition of “your work” under the “products-completed operations hazard” provision so as to exclude work done by a subcontractor. Kvaerner Metals, supra. It is critical in this context that we not eliminate Nitterhouse’s ability to be defended in the Lancaster action insofar as that plaintiff fails to make clear in the amended complaint the basis for what it believes is Nitterhouse’s liability.

The second exclusion PMA relies on to deny coverage pertains to “damage to impaired property or property not physically injured.” Section I.A.2.m. The exclusion applies to property damage to impaired property or property which has not been physically injured “arising out of (1) a defect, deficiency, inadequacy or dangerous condition in ‘your product’ or ‘your work’ or (2) a delay or failure by you or anyone acting on your behalf to perform a contract or agreement in accordance with its terms .... This exclusion does not apply to the loss of use of other property arising out of sudden and accidental physical injury to ‘your product’ or ‘your work’ after it has been put to its intended use.” (emphasis added)

It is clear that Lancaster alleges physical injury to the school. For example, the amended complaint in that action avers that the masonry walls show cracks. ¶14. Also, a large section of masonry block broke away from one of the building’s walls, causing a piece of ceiling tile to crash to the ground. ¶15. These paragraphs, as well as many other references throughout the amended complaint to the building’s structural unsoundness, are clearly sufficient to trigger the exception to the exclusion, and to defeat PMA’s motion for judgment on the pleadings.

An appropriate order of court is attached.

ORDER

Now, June 30, 2004, the court hereby denies the motion for judgment on the pleadings filed by defendant Pennsylvania Manufacturers’ Association Insurance Company, pursuant to the attached opinion.

Pursuant to the requirements of Pa.R.C.P. 236, the prothonotary shall give written notice of the entry of this order, including a copy of this order, to each parties’ attorney of record and to each party, and shall note in the docket the giving of such notice and the time and manner thereof

      . There are nine other defendants in the instant action.

      . There are eight other defendants in the Lancaster action.


author: KENNEDY, J.,

text:
    Jackson v. Gary L. Sweitzer Enterprises Inc.

      C.P. of York County,
    nos. 2003-SU-03831-01, 2003-SU-04911-01, 2003-SU-03830-01.

      Michael W. Flannelly, for plaintiffs.

      William J. Peters, Sharon M. O’Donnell, Robert E. Welsh, L. C. Heim, Thomas B. Sponaugle and Robert A. Lerman, for defendants.
    July 12, 2004
   KENNEDY, J.,

This matter is before the court on plaintiffs’ petition to open judgment non pros. For the foregoing reasons, the petition is granted in part and denied in part.

PROCEDURAL HISTORY AND FACTS

Plaintiffs, Robert E. Jackson, Joseph Filipelli and Jennifer Filipelli filed a complaint against multiple defendants, including Michael Sedor, Esquire, on December 3, 2003. Plaintiffs Troy Miller and Jennifer Miller filed a complaint against Sedor on December 10, 2003. The complaints allege that Sedor, acting in his role as attorney for plaintiffs, knew or should have known that the appraisals of the plaintiffs’ properties were inflated and that plaintiffs were not qualified to obtain mortgages based on their inability to make down payments. Sedor has pled guilty to federal charges involving other transactions in the Barwood subdivision.

On March 4, 2004, Sedor filed a praecipe for entry of judgment non pros for failure of plaintiffs’ counsel to file a certificate of merit as required by Pennsylvania Rule of Civil Procedure No. 1042.3. The praecipe for entry of judgment non pros was filed 92 days after plaintiffs Robert Jackson and Joseph and Jennifer Filipelli filed their complaints, and 85 days after plaintiffs Troy and Jennifer Miller filed their complaint. Judgment of non pros was entered by the prothonotary of York County on March 4, 2004, in response to Sedor’s praecipe.

Plaintiffs filed the instant petition to open judgment non pros on March 10, 2004. Sedor filed a response to plaintiffs’ petition on April 5, 2004.

DISCUSSION

Pennsylvania Rule of Civil Procedure 1042.3 requires the filing of a certificate of merit as to all defendants against whom a professional liability claim is asserted, including attorneys. The attorney for the plaintiff, or the plaintiff if not represented, shall file the certificate of merit simultaneously with the complaint, or within 60 days after the filing of the complaint. Pa.R.C.P. 1042.3(a). The trial court, upon good cause shown, shall extend the time for filing a certificate of merit for a period not to exceed 60 days. Pa.R.C.P. 1042.3(d). The prothonotary, upon praecipe of the defendant, shall enter judgment of non pros against the plaintiff for failure to file a certificate of merit within the required time provided that there is no pending timely filed motion seeking to extend the time to file the certificate. Pa. R.C.P. 1042.6(a).

There is no dispute as to whether plaintiffs were required to file a certificate of merit in this matter. The only question is whether this court should open the judgment non pros and permit plaintiffs to proceed with their claims against defendant Sedor.

Plaintiffs rely on Pa.R.C.P. 229(c) in support of their petition. Such reliance is misplaced. Rule 229(c) gov-ems the striking off of a discontinuance. Relief from judgment of non pros is governed by Pa.R.C.P 3051, which by its plain language applies “in all cases in which relief from a judgment of non pros is sought whether the judgment has been entered by praecipe as of right or by the court following a hearing.”

Plaintiffs also rely on Pa.R.C.P. 126, which permits the trial court to “disregard any error or defect of procedure which does not affect the substantial rights of the parties.” However, we agree with the well-reasoned opinion of the Honorable R. Stanton Wettick of the Allegheny Court of Common Pleas in Helfrick v. UPMC Shady side Hospital, 151 Pitts. L.J. 275 (2003). In Helfrick, Judge Wettick opined that Pa.R.C.P. 126 cannot be used to rewrite the Rules of Civil Procedure. Judge Wettick wrote,

“If a court were to apply Rule 126 to a petition to open a judgment of non pros for failure to file a certificate of merit unless the defendant can show prejudice, the petition would almost always be granted. Defendants are not going to be able to show that they were prejudiced by the late filing of a certificate of merit regardless of whether the delay involves 10 days, 30 days or 90 days. Consequently, the use of a prejudice standard would eliminate the rule’s deadlines for filing certificates of merit. If trial judges wish to provide relief where there has been a judgment entered shortly after the 60th day and the petition is promptly filed, each judge will be creating a new deadline based on that judge’s view of what is fair. One judge may decide to open the judgment whenever the petition, along with a certificate of merit, is filed within seven days of the entry of the judgment of non pros another may use a 10-day standard. These deadlines would have nothing to do with the language within Rules 1042.6 and 3051. Trial judges would be creating a second safety net (the first being the timely filed motion to extend the time for filing the certificate provided in Rule 1042.3(d)) where the rules do not do so. This is not a proper application of Rule 126.” Helfrick, p. 3.

We adopt Judge Wettick’s reasoning and decline to excuse the failure of plaintiffs’ counsel to file a certificate of merit on the basis of Rule 126.

Pursuant to Pa.R.C.P. 3051, if the relief sought includes the opening of the judgment, the petition shall allege facts showing that (1) the petition is timely filed, (2) there is a reasonable explanation or legitimate excuse for the inactivity or delay, and (3) there is a meritorious cause of action. Pa.R.C.P. 3051(b). All three factors must be present in order to open a non pros judgment.

Plaintiffs’ petition does not set forth a reasonable explanation or legitimate excuse for the failure of plaintiffs’ counsel to file a certificate of merit or a motion to extend the time for filing the certificate within the 60-day period established by Pa.R.C.P. 1042.3. The only reason given for such failure is inadvertence of counsel. This advanced excuse of inadvertence is not sufficiently reasonable to justify opening the judgment.

We will not, however, deny plaintiffs’ petition with respect to all claims. In addition to the allegations of professional negligence, the complaints filed against Sedor aver fraud and consumer protection law violations. Our appellate courts have not yet decided whether Pa.R.C.P. 1042.6 requires the entry of judgment against the plaintiff on all claims when no certificate of merit is filed and the complaint pleads more than a claim for professional liability. However, it is the opinion of this court that when a plaintiff fails to file a certificate of merit in an action alleging professional negligence, only those claims based on professional negligence should be dismissed. Other claims in the same complaint should not be affected by the failure to file a certificate of merit. The purpose of the certificate of merit requirement is to prevent the filing of baseless professional negligence claims. Reading Rule 1042.6 to require the entry of judgment against the plaintiff on claims unrelated to professional negligence for failure to file a certificate of merit would lead to an absurd result. See State v. Nieto, 993 P.2d 493 (Colo. 2000).

Based on the foregoing, we conclude that the prothonotary properly entered judgment against plaintiffs on their professional negligence claims only. Accordingly, the judgment will be opened with respect to the remaining claims against defendant Sedor.

ORDER

And now, to wit, July 12,2004, upon consideration of plaintiffs’ petition to open judgment non pros, it is hereby ordered and decreed that the petition is granted in part and denied in part. The petition is denied with respect to plaintiffs’ professional negligence claims. The judgment is hereby ordered open with respect to the remaining claims against defendant Michael Sedor, Esquire.

      . The question was raised in Koken v. Lederman, 840 A.2d 446 (Pa. Commw. 2003), but the Commonwealth Court did not reach the issue, as it determined that the third-party complaint stated only a claim for professional negligence.