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Home My WebLink About90-3357 Civil JAMES MATTHEW HOCKER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW : P.C.M. CONSTRUCTION, INC., : DAYS INN AIRPORT, HARRISBURG : AIRPORT PARTNERSHIP, HEINZ : MATHIS and WINFORD-LINDSAY : ASSOCIATES, INC., : Defendants : NO. 3357 CIVIL 1990 IN RE: MOTION FOR SUMMARY JUDGMENT OF DEFENDANT HARRISBURG AIRPORT PARTNERSHIP BEFORE HESS and OLER, JJ. ORDER OF COURT NOW, this ZT~ day of April, 1995, after careful consideration of the Motion for Summary Judgment of Defendant Harrisburg Airport Partnership, as well as the briefs and oral arguments presented in the matter, and for the reasons stated in the accompanying Opinion, the motion is DENIED in part and GRANTED in part. As to the dismissal of Defendant Harrisburg Airport Partnership, the motion is DENIED. As to the dismissal of Defendants Heinz Mathis and Days Inn Airport, the motion is GRANTED. BY THE COURT, J ?~Jw~q~'l~y. Ole~_~J~., J. Marcus A. McKnight, III, Esq. 60 West Pomfret Street Carlisle, PA 17013 Attorney for Plaintiff Timothy I. Mark, Esq. 3631 North Front Street Harrisburg, PA 17110 Attorney for Defendant P.C.M. Construction, Inc. Days Inn Airport 1815 Eisenhower Boulevard Middletown, PA 17057 Defendant David A. Fitzsimons, Esq. 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Defendant Harrisburg Airport Partnership Heinz Mathis 422 Allegheny Street Hollidaysburg, PA 16648 Defendant Randy K. Hareza, Esq. 2400 Fifth Avenue Place 120 Fifth Avenue Pittsburgh, PA 15222 Attorney for Defendant Winford- Lindsay Associates, Inc. :re JAMES MATTHEW HOCKER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW : P.C.M. CONSTRUCTION, INC., : DAYS INN AIRPORT, HARRISBURG : AIRPORT PARTNERSHIP, HEINZ : MATHIS and WINFORD-LINDSAY : ASSOCIATES, INC., : Defendants : NO. 3357 CIVIL 1990 IN RE: MOTION FOR SUMMARY JUDGMENT OF DEFENDANT HARRISBURG AIRPORT PARTNERSHIP BEFORE HESS and OLER, JJ. OPINION and ORDER OF COURT Oler, J. The present case arises out of a construction site accident. An employee of a subcontractor has commenced a negligence action against various parties alleged to be responsible for providing basic safety procedures for work performed on the job site. Defendant Harrisburg Airport Partnership (the alleged owner of the accident site) has filed a motion for summary judgment, averring that it "had no control of the property or authority regarding methods of construction including safety, measures and accordingly cannot be held liable in this case as a matter of law.''~ The motion also requests relief, in the form of dismissal, on behalf of Defendants Heinz Mathis and Days Inn Airport. Statement of Facts Defendant Harrisburg Airport Partnership (HAP) is a Pennsylvania partnership with its principal offices situate at 422 ~ Defendant Harrisburg Airport Partnership's Motion for Summary Judgment Pursuant to Pa. R.C.P. 1035, paragraph 10. NO. 3357 CIVIL 1990 Allegheny Street, Hollidaysburg, Pennsylvania. Defendant P.C.M. Construction, Inc. (PCM), is a construction contracting firm with its principal place of business situate at 422 Allegheny Street, Hollidaysburg, Pennsylvania. Defendant Heinz Mathis is "an individual who may have served as a general partner or franchise owner of the Days Inn at Harrisburg, Pennsylvania, with his business address at 422 Allegheny Street, Hollidaysburg, Pennsylvania .... ..2 Defendant Days Inn Airport is "a motel situate at 1815 Eisenhower Boulevard, Middletown, Pennsylvania .... ,.3 According to Defendant PCM, HAP was the owner of a parcel of land located in Lower Swatara Township, Dauphin County, Pennsylvania, and on March 11, 1988, HAP entered into an agreement with PCM to construct a 135-room hotel on the property. Subsequently, PCM subcontracted with R&R Plaster and Drywall Company, Inc. (R&R), by virtue of a written document, to perform gypsum wallboard and suspended ceiling work for the construction of the hotel. The accident giving rise to the present action occurred on September 27, 1988, at the site of the Days Inn Airport at 1815 Eisenhower Boulevard, Middletown, Pennsylvania, while Plaintiff was working in the course of his employment as a drywall and metal stud 2 Plaintiff's Complaint, paragraph 4. 3 Plaintiff's Complaint, paragraph 5. 2 NO. 3357 CIVIL 1990 mechanic with R&R. Plaintiff alleges that while "working on the fourth (4th) floor of the Days Inn Airport, setting outside metal studs ..., he fell from the fourth (4th) floor, approximately twenty (20) feet onto the roof of the first (lst) floor."4 Plaintiff further alleges that as a result of the fall he sustained serious injuries and underwent numerous operations,s As to Defendants HAP and PCM, a disagreement exists between Plaintiff and Defendants as to whether Defendants HAP and PCM are so closely connected as to be properly regarded as the same business entity. In this regard, a legal issue exists as to whether Plaintiff's tardiness in responding to a request for admissions served by Defendant HAP has resulted in a deemed admission adverse to Plaintiff's position. The requests for admissions were served upon Plaintiff's counsel on September 28, 1994. Plaintiff served answers to those requests for admissions on December 7, 1994. The requests for admissions directed to Plaintiff on behalf of Defendant Harrisburg Airport Partnership sought admissions of the following alleged facts: "Control and jurisdiction over the premises and construction site including scope and methods of construction were, at all times, relevant to Plaintiff's Complaint, 4 Plaintiff's Complaint, paragraph 12. 5 Plaintiff's Complaint, paragraphs 13-15. 3 NO. 3357 CIVIL 1990 in the hands of P.C.M. Construction,''6 and "[a]t all times relevant to the Plaintiff's Complaint, Defendant Harrisburg Airport Partnership ... had no control of the construction site or the methods of construction which were at all times under the control of P.C.M. Construction.''? Plaintiff, in its answers to requests for admissions, responded by denying both of the foregoing requests for admissions and by further stating that after reasonable investigation the plaintiff "does believe that defendant Harrisburg Airport Partnership did control the construction site.-" Defendant's motion for summary judgment was filed on January 12, 1995, subsequent to the filing of Plaintiff's tardy response. As to Defendants Heinz Mathis and Days Inn Airport, Plaintiff has agreed that they "are not proper parties to this action and accordingly, they should be dismissed from this action."9 6 Requests for Admissions Directed to Plaintiff on Behalf of Defendant Harrisburg Airport Partnership, paragraph 8. 7 Requests for Admissions Directed to Plaintiff on Behalf of Defendant Harrisburg Airport Partnership, paragraph 9. ~ Answers to Requests for Admissions by Harrisburg Airport Partnership, paragraphs 8-9. 9 Defendant Harrisburg Airport Partnership's Motion for Summary Judgment Pursuant to Pa. R.C.P. 1035, paragraph 12; Plaintiff's Answer to Defendant Harrisburg Airport Partnership's Motion for Summary Judgment, paragraph 12. 4 NO. 3357 CIVIL 1990 STATEMENT OF LAW Summary judgment. Pennsylvania Rule of Civil Procedure 1035(b) provides that summary judgment "shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In this regard, "[t]he moving party has the burden of proving the non-existence of any genuine issue of fact." Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 204, 412 A.2d 466, 468-469 (1979). "A fact is 'material' if its determination could affect the outcome of the case, and a dispute concerning a material fact is 'genuine' where the evidence is such that a reasonable jury could return a verdict for the non-moving party." Barlow v. Greenridge Oil Co., 744 F. Supp. 108, 110 (W.D. Pa. 1990), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Additionally, "[t]he record must be examined in the light most favorable to the non-moving party." Schacter v. Albert, 212 Pa. Super. 58, 62, 239 A.2d 841, 843 (1986). "All doubts as to the existence of a genuine issue of a material fact must be resolved against the moving party." Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 204, 412 A.2d 466, 469 (1979). A court should grant 5 NO. 3357 CIVIL 1990 summary judgment "only in the clearest of cases, where the right is clear and free from doubt." Id. Tardiness in Filinq Answers to Requests for Admissions. Pennsylvania Rule of Civil Procedure 4014(b) provides that "[e]ach matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within thirty days after service of the request, or within such shorter or~ longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission an answer verified by the party or an objection, signed by the party or by his attorney .... " (Emphasis added.) With regard to the construction of Pennsylvania Rule of Civil Procedure 4014, "[t]he former Rule 4014 was completely revised to conform to Rule 36 of the Federal Rules of Civil Procedure. Thus [the] court's construction of Rule 4014 must be consistent with the federal construction regarding Fed. R. Civ. P. 36.''~° The relevant portion of Federal Rule of Civil Procedure 36 is as follows: "Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow or as the parties may agree to in writing ... the party ~o Dwight v. Girard Medical Ctr., 154 Pa. Commw. 326, 332, 623 A.2d 913, 916 (1993); see Pa. R.C.P. 4014, Explanatory Note - 1978. 6 NO. 3357 CIVIL 1990 to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed.by the party or by the party's attorney.-~ (Emphasis added.) With regard to federal construction of Federal Rule of Civil Procedure 36, a federal district court in Pleasant Hill Bank v. United States, 60 F.R.D. 1, 3 (W.D. Mo. 1973), stated that [t]o allow a late filing of answers [to a request for admissions] is the equivalent of allowing a party to withdraw admissions made by operation of Rule 36(a). Therefore, the Court adopts the test for permitting withdrawal of an admission announced in Rule 36(b) as the standard to determine whether late filing of answers should be permitted here: [T]he court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtains the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits. Warren v. Int'l Bhd. of Teamsters, 544 F.2d 334, 339-40 (8th Cir. 1976). "[T]he failure to respond in a timely fashion does not ~ Prior Pennsylvania Rule of Civil Procedure 4014 has been completely revised to conform to Federal Rule of Civil Procedure 36 as amended in 1970. The relevant portion of the 1970 amendment to Federal Rule of Civil Procedure 36 is as follows [deleted material is in brackets]: "or within such shorter or longer time as the court may allow [on motion and notice,]." 4A Moore's Federal Practice 2d, 1970 Amendments to Rule 36, at 36-6 (1994). 7 NO. 3357 CIVIL 1990 require the court automatically to deem all matters admitted." Gutting v. Falstaff Brewing Corp., 710 F.2d 1309, 1312 (8th Cir. 1983). It is within a court's discretion to allow untimely answers to requests for admissions, when such will not prejudice the other party. Donovan v. Porter, 584 F. Supp. 202 (D. Md. 1984). "The prejudice contemplated by [Federal Rule of Civil Procedure 36] 'relates to the difficulty a party may face in proving its case' because of the sudden need to obtain evidence required to prove the matter that had been admitted." Gutting v. Falstaff Brewing Corp., 710 F.2d 1309, 1314 (8th Cir. 1983), quoting Brook Village North Assoc. v. General Electric Co., 686 F.2d 66, 70 (lst Cir. 1982). With regard to the granting of summary judgment based on untimely answers to requests for admissions, "[c]ourts are particularly responsive to allowing late answers to requests for admissions when summary judgment is involved. It does not further the interests of justice to automatically determine the issues of a lawsuit and enter summary judgment against a party because a deadline is missed." Donovan v. Porter, 584 F. Supp. 202, 208 (D. Md. 1984). Control as a material fact. The general principle regarding the liability of one who engages an independent contractor is as follows: "Except as stated in ~§410-429, [one who engages] an independent contractor is not liable for physical harm caused to 8 NO. 3357 CIVIL 1990 another by an act or omission of the contractor or his servants." Restatement (Second) of Torts §409 (1965). The underlying rationale for this rule is that, "since [the entity that engages the independent contractor] has no power of control over the manner in which the work is to be done by the contractor, ... [the contractor], rather than [the one who engages the contractor], is the proper party to be charged with the responsibility of preventing the risk, and bearing and distributing it." Id. at comment b. On the other hand, "[i]f [one who engages] an independent contractor retains control~over the operative detail of doing any part of the work, he is subject to liability for the negligence of the employees of the contractor engaged therein .... " Restatement (Second) of Torts ~414, comment (a) (1965). Section 414 of the Restatement (Second) of Torts (1965) states the exception to the general rule as follows: "One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety he owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care." APPLICATION OF LAW TO FACTS With regard to Plaintiff's untimely answers to the Requests for Admissions of Defendant, Harrisburg Airport Partnership, the 9 NO. 3357 CIVIL 1990 court will not deem the matters admitted. Defendant Harrisburg Airport Partnership has not been prejudiced by the late filing, since the case is not at the trial stage, nor has the Defendant been surprised, since the matter of control has been a primary focus of this case. The court believes that the interests of justice will best be served if the case is decided on its merits rather than on the basis of Plaintiff's tardiness in responding to requests for admissions. A factual dispute exists herein as to whether PCM is effectively the same entity as the owner of the property, HAP. If HAP is found to be the equivalent of PCM, then HAP is not entitled to immunity under the theory that it was an owner of the job-site which relinquished control to an independent contractor, thus relieving itself of liability for the resulting harm. For these reasons, the following Order will be entered: ORDER OF COURT AND NOW, this Z7~ day of April, 1995, after careful consideration of the Motion for Summary Judgment of Defendant Harrisburg Airport Partnership, as well as the briefs and oral arguments presented in the matter, and for the reasons stated in the accompanying Opinion, the motion is DENIED in part and GRANTED in part. As to the dismissal of Defendant Harrisburg Airport 10 NO. 3357 CIVIL 1990 Partnership, the motion is DENIED. As to the dismissal of Defendants Heinz Mathis and Days Inn Airport, the motion is GRANTED. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Marcus A. McKnight, III, Esq. 60 West Pomfret Street Carlisle, PA 17013 Attorney for Plaintiff Timothy I. Mark, Esq. 3631 North Front Street Harrisburg, PA 17110 Attorney for Defendant P.C.M. Construction, Inc. Days Inn Airport 1815 Eisenhower Boulevard Middletown, PA 17057 Defendant David A. Fitzsimons, Esq. 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Defendant Harrisburg Airport Partnership Heinz Mathis 422 Allegheny Street Hollidaysburg, PA 16648 Defendant 11 NO. 3357 CIVIL 1990 Randy K. Hareza, Esq. 2400 Fifth Avenue Place 120 Fifth Avenue Pittsburgh, PA 15222 Attorney for Defendant Winford- Lindsay Associates, Inc. : rc 12