PENNSYLVANIA: CONSTRUCTION — Summary Judgment
by Caroline S. Vahey and John T. Donovan

On January 30, 2014, the Honorable John M. Younge of the Philadelphia Court of Common Pleas granted a Motion for Summary Judgment in favor of Rawle & Henderson’s client, a major national upscale hotel chain, in the matter of Alphonso Jones v. Intech Construction, et al.  In the case, plaintiff was working as an ironworker performing renovations to the Lafayette Building at 5th and Chestnut Streets in Philadelphia.  While working on the basement level under the sidewalk, a granite base stone broke free, falling on the plaintiff.  Plaintiff suffered significant injuries, including amputation of his right leg and crush fractures of the left leg. 

Co-defendant, Intech Construction Inc., was the general contractor on the site and several subcontractors were also named as defendants.  Our client owned the property and maintained an on-site presence during the course of the construction.  Plaintiff was represented by Saltz Mongeluzzi Barrett & Bendeski. 

In the course of nearly two years of discovery, John T. Donovan and Caroline S. Vahey, attorneys for Rawle & Henderson LLP, worked to support the defense under the Owner Out of Possession Doctrine.  It is well settled in Pennsylvania that “liability cannot be imposed on a property owner who hires an independent contractor to perform work unless the owner controlled the ‘manner, methods, means, or operative detail in which the work is performed.’”  Beil v. Telesis Construction, Inc., 11 A.3d 456, 471 (Pa. 2011). 

The foundation of this principle is longstanding in Pennsylvania.  A property owner is not vicariously liable for the negligence of an independent contractor because engaging an independent contractor “implies that the contractor is independent in the manner of doing the work contracted for. How can the other party control the contractor who is engaged to do the work, and who presumably knows more about doing it than the man who by contract authorized him to do it? Responsibility goes with authority.” Silveus v. Grossman, 307 Pa. 272, 278, 161 A. 362, 364 (1932).

Significantly in our case, the contract itself provided support for this position, stating: “The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract.”  With this defense in mind throughout the discovery period, compelling evidence was amassed demonstrating that Kimpton had indeed transferred day-to-day control of the project entirely to Intech despite having representatives present.

At the close of discovery, we requested voluntary dismissal. When counsel refused, we were forced to pursue a Motion for Summary Judgment.   On the same date that all other Motions for Summary Judgment filed by co-defendants were denied, our motion was granted.  All claims and crossclaims asserted against our client in the multi-million dollar suit were dismissed. 

The case was recently featured in The Legal Intelligencer after an almost record-reached settlement with the remaining defendants for a total of $16.3 million. 

The lessons learned in this case are twofold.  First, we took significant time at the very onset of the litigation to research the law to support our defense.  We knew every element and nuance of the Owner Out of Possession Doctrine before walking into the first deposition or serving our first interrogatory.  Our interrogatories and depositions were calculated to support this sole legal defense.  We utilized oral and written discovery period not only to learn the general facts of the case, but to build the basis for a meritorious Motion for Summary Judgment.

Second, this case represents a meaningful and significant victory for the client, who was not forced to contribute to a multimillion dollar settlement.  In Philadelphia litigation where claims against our clients are sometimes meritless, we often find ourselves frustratingly forced to contribute to a settlement when a summary judgment motion is inevitably denied.  However, dispositive motions should still be filed that have support in law and on the record.  We have recently obtained favorable summary judgment results in  construction, premises, and labor actions in Philadelphia County. 

When you are able to establish your defense but you are on the fence as to whether to take the time and expend the effort to seek summary judgment, these recent orders should give you guidance.  Summary judgment is possible in Philadelphia. 

Alphonso Jones, et al. v. Intech Construction Inc., et al., Philadelphia County, C.C.P., December Term, 2011, No. 3773

BIKE RIDE FOR MULTIPLE SCLEROSIS

Brett A. Wolfson, a partner in our Philadelphia office, participated with thousands of other cyclists in the Bike MS: City To Shore Ride on September 27, 2014 to benefit the National Multiple Sclerosis Society, Greater Delaware Valley Chapter. Brett rode the 80-mile route from Cherry Hill to Ocean City, New Jersey, and raised $2,295 for Team Donna, named for his cousin, Donna, who has MS.  Donna was diagnosed with MS eight years ago. Since her diagnosis, Brett has helped raise approximately $65,000 for MS in Donna’s name. He also participates in an MS Walk every May and enters the City to Shore Ride every year. [PICTURED TO RIGHT: Brett Wolfson (r.) with his cousin, Donna, after last year’s City to Shore Ride.]

At Rawle & Henderson LLP, Brett litigates catastrophic injury and/or death cases involving products, construction/industrial/workplace, commercial motor vehicle, medical professional and premises liability.  He serves as a Judge Pro Tem for the Dispute Resolution Center of the Philadelphia Court of Common Pleas. Brett volunteers for the Support Center for Child Advocates.  He earned his law degree from Rutgers University School of Law in Camden and his Bachelor’s degree in Philosophy from West Chester University, Pennsylvania.  He has also served under two Philadelphia Common Pleas Court Judges, as a law clerk to the Honorable Joseph D. O’Keefe while he was Supervising Judge of the Complex Litigation Center and the Honorable Sandra Mazer Moss as a Team Leader for a major jury program. During undergraduate, Brett interned for the Chester County Public Defender’s office and during law school Brett participated in an externship for the U.S. Attorney’s office for the Eastern District of Pennsylvania, Civil Division.

Brett can be reached directly at: (215) 575-4255 • bwolfson@rawle.com

THE QUAKER CLASSIC

Suzanne Curran Murphy, an associate in our Philadelphia office, sat as a Judge at the University of Pennsylvania Law School’s Annual Mock Trial Tournament, The Quaker Classic, in November. Students from different schools competed in four rounds of competition, during which their performance was assessed by the scoring judges.

Suzanne concentrates her practice in the areas of premises liability, construction litigation and school bus/commercial motor vehicle litigation.  She received her B.A. from Loyola College in 1989 and J.D. from Widener University School of Law in 1993. She served as a judicial law clerk for the Honorable Frank X. O’Brien, Court of Common Pleas in Philadelphia, PA.  Suzanne is admitted to practice in the state courts of Pennsylvania and New Jersey as well as the U.S. District Court for the District of New Jersey and the U.S. District Court for the Eastern District of Pennsylvania.

Suzanne can be reached directly at: (215) 575-4242 • smurphy@rawle.com

NATIONAL JUDICIAL COLLEGE

Peter Neeson (r.) with U.S. Supreme Court Justice Antonin Scalia and Dean Emeritus of the Boston University School of Law Ronald A. Cass (far left) at a reception for the National Judicial College in the Upper Great Hall of the U.S. Supreme Court in Washington, D.C.

Peter J. Neeson, a partner in our Philadelphia office, spoke at the National Judicial College (NJC) reception in the Upper Great Hall of the U.S. Supreme Court in Washington, D.C. on September 29. The featured speaker at the reception was U.S. Supreme Court Justice Antonin Scalia.

Peter is Chair of the Board of Trustees of the National Judicial College. The Board visited Washington to hold its Fall 2014 meeting and to promote the NJC’s judicial education opportunities in the legal community.

“We were fortunate to obtain the use of facilities here at the U.S. Supreme Court and to have U.S. Supreme Court Justice Antonin Scalia speak at our reception,” Peter said, addressing the attendees in the Upper Great Hall. “It is fitting that the College hold an event here at the Supreme Court since the NJC would not likely exist if it were not for a former U.S. Supreme Court Justice.  It was former Supreme Court Justice Tom C. Clark who chaired the commission that recommended that judicial education be formalized which led to the formation of the National Judicial College in 1963.”

A practicing trial attorney for 35 years, Peter is Chair of Rawle & Henderson’s Environmental Law and Toxic Tort section. Peter has been involved in numerous toxic tort matters in multi-district litigation and class action cases in both state and federal courts, including benzene, underground storage tank, silica, orthopedic bone screw and asbestos litigation, among others. He has been selected as National Coordinating Counsel in the FRT, asbestos, latex glove and PPA drug litigation. In 2007, he served as Chair of TIPS (Tort Trial and Insurance Practice Section of the American Bar Association). In 2012 Peter received the prestigious ABA/TIPS James K. Carroll Leadership Award, in part for his efforts in founding the TIPS Trial and Leadership Academies. He has been rated AV Preeminent by Martindale-Hubbell and has been selected as a Pennsylvania Super Lawyer.

Peter can be reached directly at: (215) 575-4320 • pneeson@rawle.com

  RRV18N11.pdf