Community Association Underwriters of America, Inc. et al v. Queensboro Flooring Corp.
Filing
291
MEMORANDUM (Order to follow as separate docket entry) re 243 First MOTION for Summary Judgment filed by Bella Chernov, 246 MOTION for Summary Judgment filed by Dmitry Epelboym, 247 First MOTION for Summary Judgment filed by Kathleen Simoncic, The Village at Camelback Property Owners Association, Inc. Signed by Magistrate Judge Karoline Mehalchick on 3/4/2016. (cw)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
COMMUNITY ASSOCIATION
UNDERWRITERS OF AMERICA, INC.,
a/s/o VILLAGE AT CAMELBACK
PROPERTY OWNER ASSOCIATION,
et al.,
CIVIL ACTION NO. 3:10-CV-01559
(MEHALCHICK, M.J.)
Plaintiffs,
v.
QUEENSBORO FLOORING CORP.,
et al.,
Defendants.
MEMORANDUM OPINION
This is a consolidated action involving property damage and personal injury claims
arising out of a July 2009 explosion and fire that occurred during construction work at a
townhouse located in Tannersville, Pennsylvania. Another case, Pozarlik v. Camelback Associates,
Inc., No. 3:11-CV-1349, was consolidated into this action on March 15, 2012. (Doc. 31).
Plaintiffs Arkadiusz Piotr Pozarlik and Agnieszka Zofia Pozarlik assert tort claims against
several defendants, including: the Village at Camelback Property Owners Association, Inc.
(“the Association”), and its property manager, Kathleen Simoncic; Queensboro Professional
Wood Flooring, LLC (“Queensboro Professional”), and its owner, Tomasz Korytkowski;
Queensboro Flooring PA Corp. (“Queensboro PA”); and property owner Bella Chernov. 1 On
1
The Pozarliks also asserted claims against seven John Doe Defendants, all of whom
were Ukrainian nationals working at the construction site (the “Ukrainian workers”). However,
these John Doe Defendants have not been served and are not involved in the motions presently
before the Court. The Ukrainian workers are often identified as Russians in the parties’ filings.
March 26, 2012, the Association filed crossclaims against Queensboro Professional and
Korytkowski, Queensboro PA, and Chernov. (Doc. 35). Queensboro Professional and
Korytkowski also filed a crossclaim, on May 16, 2012, seeking contribution and/or
indemnification against co-Defendants the Association and Simoncic, Queensboro PA, and
Chernov. (Doc. 38). On July 25, 2012, Queensboro Professional and Korytkowski next filed a
third-party complaint seeking contribution and/or indemnification against Dmitry Epelboym,
the son of Bella Chernov. (Doc. 45). Queensboro PA then filed its own crossclaims on May 17,
2013, alleging that any harm suffered by the Plaintiffs was due to the negligence of coDefendants the Association and Simoncic, Queensboro Professional and Korytkowski, Bella
Chernov, and third-party Defendant Dmitry Epelboym. (Doc. 91; Doc. 92; Doc. 93). Finally,
on June 12, 2015, Chernov filed an amended crossclaim seeking contribution and/or
indemnification against Queensboro Professional and Queensboro PA. 2 (Doc. 242).
Presently before the Court are three motions for summary judgment, each filed on June
15, 2015. In the first motion, Chernov seeks summary judgment as to all outstanding claims
against her. (Doc. 243). This motion is opposed by Queensboro Professional and Korytkowski
(Doc. 258; Doc. 269), Queensboro PA (Doc. 264), the Association and Simoncic (Doc. 271),
and the Pozarliks (Doc. 276). In the second motion, third-party Defendant Epelboym seeks
summary judgment with regard to the claims for indemnity and contribution against him. (Doc.
246). Epelboym’s motion is opposed by Queensboro Professional and Korytkowski (Doc. 259;
2
The Court granted Chernov leave to file an amended pleading pursuant to Federal Rule
of Civil Procedure 15(c) despite the advanced stage of the litigation process because Chernov
mistakenly believed at the time of her initial pleading that Queensboro Professional and
Queensboro PA were one and the same entity. (Doc. 235).
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Doc. 270), and also by Queensboro PA (Doc. 265). The third motion was filed by the
Association and Simoncic (Doc. 247), and is opposed by the Pozarliks (Doc. 277), the only
party to assert claims against them. All three motions have been fully briefed, and oral
argument was held on September 21, 2015. (Doc. 289). Accordingly, the three motions are now
ripe for disposition.
I.
FACTUAL BACKGROUND
The undisputed facts are as follows. Bella Chernov purchased Unit 298 on Overlook
Way within the Village at Camelback in Tannersville, Pennsylvania on August 18, 2005. (Doc.
1, at 2; Doc. 243-1, at 6). Chernov purchased the property after viewing it with her son, Dmitry
Epelboym, and Epelboym’s wife. (Doc. 243-1, at 6). The Village at Camelback is a
condominium consisting of individual units that are individually owned and common areas
held as undivided interests vested in the unit owners. 68 Pa. Cons. Stat. § 3103. The Association
is a non-profit corporation responsible for the care and maintenance of the Village at
Camelback’s “Common Lands, Common Roads, and the exterior of all Dwelling Units . . . .”
(Doc. 248-14, at 7). The Association conducts its affairs pursuant to a Declaration of Protective
Covenants and Easements (the “Declaration). (Doc. 248-14, at 35). The Declaration is binding
upon and intended for the benefit of all individual unit owners, as well as their heirs, assigns,
immediate family, guests, and lessees. (Doc. 248-14, at 6-7, 40).
Although Chernov received the deed for the property at closing, she does not recall
personally receiving information about the Association, including its governing Declaration,
bylaws, and rules and regulations. (Doc. 243-1, at 8). She understood that the Association took
care of routine maintenance around the property, but never enquired as to the extent of the
Association’s duties. (Doc. 243-1, at 10). Chernov does not recall any occasion where the
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Association conducted maintenance work either inside or along the exterior of her home. (Doc.
243-1, at 10). Furthermore, Chernov stated that she had never met Simoncic and was not aware
of Simoncic’s role as the Association’s property manager. (Doc. 243-1, at 13).
Shortly after Chernov purchased the property in 2005, Epelboym began a series of
repairs and renovations on Unit 298 that would continue until 2009. (Doc. 243-1, at 13).
Chernov gave her son authority to conduct all the renovations, but claims that she did not
choose the contractors or pay for any of the repairs directly. 3 (Doc. 243-1, at 11, 13). Chernov
initially claimed that she did not apply for any building permits in connection with the repair
work, but then later recalled that she signed for the building permits “[b]ecause the house is in
[her] name.” (Doc. 243-1, at 14). The Declaration also provides that property owners must
obtain prior approval from the Association before constructing any buildings, structures or
roadways. (Doc. 243-1, at 37). However, the Association generally did not concern itself with
any work inside the individual units unless the work threatened to damage the common areas
or otherwise looked likely to result in a breach of the covenants. (Doc. 248-8, at 7; Doc. 248-14,
at 35). In the event that some condition inside an individual unit threatened to result in a breach
of the covenants or otherwise presented a problem, the Association may inspect inside the unit
after providing notice. (Doc. 248-14, at 35).
Some of Epelboym’s renovation projects included adding a sauna and Jacuzzi to the
bathroom and replacing the exterior siding of Unit 298. (Doc. 243-4, at 30-32, 46). Epelboym
served as the de facto general contractor for the repair work. (Doc. 243-3, at 4). Epelboym
3
Chernov reimbursed her son for the money he spent on construction expenses. (Doc.
243-2, at 46).
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usually hired a handful of Ukrainian workers to perform the labor for these projects. (Doc. 2434, at 30-31). Epelboym was friends with one of the Ukrainians, Lubamir, who Epelboym would
communicate with and tell how many other workers he needed for a given project. (Doc. 243-4,
at 46). The Ukrainians were uninsured (Doc. 243-4, at 47-48) and lacked formal training, but
had done construction work before and possessed various skills such as plumbing, electrical,
and woodworking experience. (Doc. 243-4, at 47-50). Epelboym himself also lacked insurance
and formal training. (Doc. 243-4, at 47).
One of the improvement projects that Epelboym decided to take on involved rebuilding
the front deck. Chernov had fallen on the old deck twice and noticed that the wood was rotting.
(Doc. 243-2, at 42). In a letter dated March 16, 2006, Chernov asked the Association for
permission to tear down the old deck attached to the unit and to replace it with a new one, as is
required under the Declaration before building any structure on common lands. (Doc. 243-2, at
42). In addition to the deck itself, Chernov requested to add a retaining wall underneath as
structural support for the deck and to use as a storage area. (Doc. 243-2, at 31-32, 40-42). It is
unclear whether the Association ever formally approved this project. (Doc. 243-1, at 37-38;
Doc. 243-2, at 42; Doc. 282-1, at 11). In any event, construction on the deck began in March of
2006 using the same Ukrainian workers that provided the labor for Epelboym’s other projects.
(Doc. 243-2, at 43; Doc. 243-4, at 30-31).
In July of 2007, John Lewitzky, a member of the Association’s board, sent an e-mail to
other board members discussing the construction at Unit 298. (Doc. 276-20, at 2). Lewitzky
noted that Epelboym had constructed “a concrete block room, on common ground, without
Board approval, approximately 15 by 15 feet [and] complete with Anderson windows.” (Doc.
276-20, at 2). Lewitzky concluded that the structure appeared to be a 200 square foot extension
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off the front bedroom rather than mere storage space. (Doc. 276-20, at 2). The e-mail concluded
with an admonishment of Simoncic and the Association’s maintenance staff for failing to notice
the construction work and put a stop to the extension. (Doc. 276-20, at 2-3).
In response to Lewitzky’s e-mail, Simoncic met with Chernov, informed her that the
structure violated the Declaration, and mailed her a cease and desist order in regard to the
construction. (Doc. 276-7, at 10). Despite the cease and desist order, the Association observed
that the construction at Unit 298 continued. (Doc. 276-7, at 14). Early the following month, the
local township also sent Chernov a cease and desist order as well as a notice of violation (Doc.
276-7, at 15), but this too failed to put an end to the construction. (Doc. 276-7, at 16).
Ultimately, the Association filed suit against Chernov on August 27, 2007 in the Court of
Common Pleas for Monroe County. (Doc. 248-2, at 2). Prior to trial, the Court of Common
Pleas judge issued a preliminary injunction on May 16, 2008 enjoining Chernov from violating
the restrictive covenants found in the Declaration. (Doc. 248-2, at 2). Trial was held on
September 25, 2008, and on November 4, 2008 the Court of Common Pleas judge entered an
order requiring Chernov to remove all structural alterations made to Unit 298 and pay the
Association $8,446.33 in attorney’s fees. (Doc. 248-2, at 2, 13). Chernov was also permitted to
submit plans for a new deck and training wall to the Association for approval. (Doc. 248-2, at
14). Chernov filed a motion for post-trial relief on November 13, 2008. (Doc. 277-25, at 3). In
its brief in opposition to Chernov’s motion for post-trial relief, the Association argued that the
structure needed to be torn down “under any circumstance” because of its “egregious defective
construction,” and went on to raise numerous safety concerns with the structure as it was then-
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built. (Doc. 277-26, at 5). The Court of Common Pleas judge denied Chernov’s motion for posttrial relief in an order filed on January 23, 2009 (Doc. 277-25, at 2). 4
On May 29, 2009, Chernov submitted a permit application to finally demolish the illegal
addition and replace it with a new deck. (277-27, at 2). The demolition work and construction
of the replacement deck was done by the same Ukrainian workers once more. (Doc. 243-4, at
37-39). Despite previously calling their work “egregious defective construction” in its brief in
opposition to Chernov’s motion for post-trial relief (Doc. 277-26, at 5), and having a right under
the Declaration to hire its own contractors to do the demolition and construction of the new
deck at Chernov’s expense (Doc. 248-14, at 24), the Association allowed the same Ukrainian
workers to perform the new construction under Epelboym’s oversight (Doc. 277, at 31). In fact,
Pozarlik alleges that the Association and Simoncic never inspected or provided oversight of the
new construction work. (Doc. 277, at 32).
By July of 2009, the new construction work was nearly complete. (Doc. 243-4, at 39-40).
On or about July 10, 2009, Epelboym and Chernov flew to Europe for a cruise. (Doc. 243-3, at
5). Before leaving, Epelboym instructed the Ukrainian workers to complete the final touch-ups
affiliated with wrapping up the construction work, including painting the deck and stairs and
checking the walls for any scratches. (Doc. 243-3, at 7). Epelboym knew that the deck’s stairs
4
This dispute is just one of several that Chernov and Epelboym had with the
Association. They were cited for a satellite dish on the exterior of Unit 298 and a light fixture
on the front deck that did not comply with the Association’s rules (Doc. 276-7, at 7-8); received
numerous parking citations, which at one point prompted Epelboym to threaten to cut off the
legs of the Association’s security officer (Doc. 276-7, at 9); damaged the security gate control
stanchion with a piece of wood sticking out the passenger window of their car (276-18, at 5);
and were issued hundreds of dollars in fines for various violations of the Association’s rules
(276-18, at 18-19).
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were technically on common property and thus the Association’s responsibility, but he was
unwilling to wait for the Association’s maintenance staff to get around to painting them. (Doc.
243-4, at 40, 59-60). Epelboym did not give the Association notice that the Ukrainian workers
would be painting the deck and steps on common property while he was abroad. (Doc. 243-4,
at 60).
In addition to the touch-ups to be performed by the Ukrainian workers, before leaving
the country Epelboym also made arrangements with Tomasz Korytkowski for Queensboro
Professional to refinish the floors inside Unit 298. (Doc. 243-4, at 60-61). Korytkowski then
visited the property and estimated that the job would cost $2,000. (Doc. 243-4, at 61).
Epelboym did not check to see whether Queensboro Professional was insured prior to hiring
them. (Doc. 243-4, at 64). Furthermore, Epelboym was mistakenly under the impression that
Korytkowski’s Queensboro Professional was the same company as Queensboro PA, which was
owned by Marian Nowakowski, a longtime friend of Chernov’s. (Doc. 243-4, at 64). In fact, it
was Chernov who first approached Nowakowski about doing the flooring work at Unit 298,
over a year before the explosion occurred. (Doc. 244-4, at 16). Because Queensboro PA only
sold flooring material in Pennsylvania and did not perform installation or finishing,
Nowakowski gave Chernov Korytkowski’s phone number. (Doc. 244-4, at 16). Korytkowski
had previously worked for Nowakowski under a separate company Nowakowski once owned
in New York. (Doc. 244-4, at 5). However, because Queensboro PA was a storefront without
any service component for installation or refinishing, Nowakowski referred his customers to
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Korytkowski and Queensboro Professional for those tasks. 5 (Doc. 244-4, at 8-10). Accordingly,
Korytkowski was put in touch with Epelboym through Nowakowski and Chernov about a year
before the explosion, and Queensboro Flooring performed its first job at Unit 298 at that time. 6
(Doc. 245-1, at 23).
The following year, Epelboym asked Korytkowski to refinish all three floors of Unit 298.
(Doc. 245-1, at 23). After visiting to provide his estimate, Korytkowski returned to Unit 298 to
and completed the top two floors of the condo with Epelboym and the Ukrainian workers
present, and just before Epelboym left for Europe. (Doc. 245-1, at 23). Before leaving,
Korytkowski told Epelboym that the basement level needed to be cleared for when he returned
to finish the last floor. (Doc. 245-1, at 23-24). Epelboym then told the Ukrainian workers to
“empty the basement” in anticipation of Korytkowski’s return. (Doc. 244-3, at 27). Epelboym
did not inform the Association about the flooring work on either occasion. (Doc. 243-4, at 60).
One of the items on the basement level of Unit 298 was a gas heater that Epelbyom
claims had been there since Chernov purchased the property. (Doc. 243-4, at 45). The heater
was always left on. (Doc. 243-4, at 53). The heater was attached to the gas source through a
copper pipe that had a flexible attachment. (Doc. 243-4, at 55). This attachment allowed the
heater to move approximately three feet in any direction. (Doc. 243-4, at 55-56). Epelboym
claims that he inspected the heater before the previous winter and that all parts, including the
5
Nowakowski was not concerned with distinguishing Queensboro PA from Queensboro
Professional, or otherwise ensuring that customers knew he and Korytkowski owned two
separate entities. (Doc. 244-4, at 10).
6
Queensboro Professional and Queensboro PA are collectively referred to throughout
this opinion as “the Queensboro entities.”
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shutoff valve, were in good working order. (Doc. 243-3, at 10-12). The heater was connected by
a gas line to a propane take located three or four feet outside of Unit 298 on common property.
(Doc. 243-4, at 42-43). The propane tanks were serviced by a private company. (Doc. 243-4, at
42). Despite the location of the tanks and gas line on common property, the Association took
no steps to service or inspect the tanks, gas lines, or appliances connected to the tanks. (Doc.
243-4, at 42-43; Doc. 277-14, at 12). Epelboym stated that the proper way to disconnect the
heater was by turning the shutoff valve and disconnecting both the union and the tank located
outside. (Doc. 243-3, at 13). However, Epelboym never instructed his Ukrainian workers on
how to safely disconnect the heater. (Doc. 243-3, at 31; Doc. 243-3, at 10). In spite of
Korytkowski’s instruction to remove everything from the basement, Epelboym never
anticipated that the heater would need to be removed because of the flexible tubing that allowed
it to be moved around up to three feet. (Doc. 243-3, at 31). Because he did not instruct them to
remove the heater, Epelboym asserts that the Ukrainian workers lacked authorization to
remove the heater. (Doc. 243-3, at 16). After the explosion occurred, the Ukrainian workers
allegedly told Epelboym that they never moved the heater. (Doc. 243-3, at 15; Doc. 243-4, at
61).
Korytkowski arrived back at Unit 298 on July 22, 2009, the day of the explosion. (Doc.
245-1, at 20). Korytkowski brought along Pozarlik, a part-time worker experienced with the
installation and refinishing of hardwood floors, to complete the job. (Doc. 245-1, at 20, 49).
When Korytkowski and Pozarlik arrived at Unit 298 that morning, the Ukrainians were
working inside and outside the unit completing their touch-ups. (Doc. 245-1, at 21). As
Korytkowski showed Pozarlik the upstairs floors that had already been completed, the
Ukrainian workers removed the furniture and other items from the basement. (Doc. 245-1, at
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21-24). At Pozarlik’s request, and after Korytkowski had already instructed Epelboym that the
basement needed to be cleared, Korytkowski specifically told the Ukrainian workers to unscrew
the heater and take it outside. (Doc. 244-1, at 30-31). The Ukrainian workers then removed the
heater while both Korytkowski and Pozarlik were present in the room. (Doc. 244-1, at 31).
Korytkowski and Pozarlik did not concern himself with whether or not the heater was
disconnected properly because they did not consider it to be their responsibility. (Doc. 244-1, at
30-31, 37; Doc. 245-1, at 51). In his complaint, Pozarlik now alleges that the Ukrainian
workers’ unsafe removal of the heater without securing the gas line caused the explosion. (Doc.
194-5, at ¶ 18).
The parties dispute whether Pozarlik and/or Korytkowski smelled gas after the
Ukrainian workers disconnected the heater. (Doc. 255, at 29-30; Doc. 276, at 87-88). Although
the initial state police incident report stated that Pozarlik smelled gas (Doc. 258-2, at 6),
Pozarlik was adamant in his deposition testimony that he did not smell anything.7 (Doc. 244-2,
at 24-26). Korytkowski left Unit 298 about an hour after he arrived to go check on another
project at a different property, leaving Pozarlik to complete the flooring job in the basement.
(Doc. 245-1, at 27). After a few hours of work, Pozarlik finished with the sanding and began to
use his edger. Doc. 245-1, at 21).
7
Pozarlik also presented deposition testimony from Katarzyna Kacprzak, who
translated for Pozarlik during the state police interview. (Doc. 276-24). Kacprzak stated that
Pozarlik never told her that he smelled gas while he was working at Unit 298, and that the state
police report statement was likely due to a mistranslation because Pozarlik actually told the
police that Korytkowski smelled gas at Unit 298 but did not inform Pozarlik of this until
Pozarlik was in the hospital after the explosion. (Doc. 276-24, at 4-5).
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Shortly after Pozarlik began edging on the afternoon of July 22, 2009, a spark from the
edger likely combined with the gas in the room to create the explosion. (Doc. 244-2, at 32-33).
As a result of the explosion, Pozarlik suffered severe burns to over seventy percent of his body,
continues to suffer from pain, and has a limited range of motion in his elbows and lower
extremities. (Doc. 194-5, at ¶¶ 21, 27). The Ukrainian workers were outside Unit 298 when the
explosion occurred, either waiting for Pozarlik to finish the flooring before they painted the
steps (according to Epelboym) (Doc. 243-4, at 62), or doing roofing and other repair work to the
exterior of Unit 298 (according to the police report) (Doc. 258-2, at 7). None of the Ukrainian
workers were seriously injured by the explosion. (Doc. 243-4, at 52). However, much of the
interior and exterior structure of Unit 298 was largely destroyed. (Doc. 258-2, at 4-5).
II.
SUMMARY JUDGMENT STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be
granted only if “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” only if it might affect
the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of
material fact is “genuine” only if the evidence “is such that a reasonable jury could return a
verdict for the non-moving party.” Anderson, 477 U.S. at 248. In deciding a summary judgment
motion, all inferences “should be drawn in the light most favorable to the non-moving party,
and where the non-moving party’s evidence contradicts the movant’s, then the non-movant’s
must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).
A federal court should grant summary judgment “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 a judgment as a
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matter of law.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). In making this
determination, “a court must view the facts in the light most favorable to the nonmoving party
and draw all inferences in that party’s favor.” Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d
Cir. 1994). The Court need not accept mere conclusory allegations, whether they are made in
the complaint or a sworn statement. Lujan v. National Wildlife Federation, 497 U.S. 871, 888
(1990). In deciding a motion for summary judgment, the court’s function is not to make
credibility determinations, weigh evidence, or draw inferences from the facts. Anderson, 477
U.S. at 249. Rather, the court must simply “determine whether there is a genuine issue for
trial.” Anderson, 477 U.S. at 249.
III.
DISCUSSION
All three parties move for summary judgment on the claims of negligence asserted
against them. Because the case is before this Court as a diversity action pursuant to 28 U.S.C. §
1332, Pennsylvania substantive law applies. Burgh v. Borough Council of Montrose, 251 F.3d 465,
474 (3d Cir. 2001). Under Pennsylvania law, there are four elements to establish liability in tort
for negligence: “(1) a duty of care; (2) the breach of the duty; (3) a causal connection between
the conduct and the resulting injury; and (4) actual loss or damage resulting to the plaintiff."
Farabaugh v. Pa. Tpk. Comm'n, 911 A.2d 1264, 1272-73 (Pa. 2006).
A. BELLA CHERNOV
In her motion for summary judgment, Bella Chernov seeks dismissal of all negligence
claims asserted against her. (Doc. 243). These claims include assertions set forth in: Pozarlik’s
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complaint (Doc. 194-5); 8 a third-party complaint filed by Queensboro Professional (Doc. 20);
and the crossclaims filed by co-Defendants the Association and Simoncic (Doc. 35),
Queensboro Professional (Doc. 38), and Queensboro PA (Doc. 93). These parties broadly allege
three bases for imposing liability on Chernov: her status as the owner of Unit 298, the nature of
her relationship with Epelboym, and negligent hiring. Each basis is addressed in turn.
1. Landowner Liability
The parties opposing summary judgment first argue that Chernov should be held liable
in her capacity as the owner of Unit 298. (Doc. 269, at 6). “The standard of care a possessor of
land owes to one who enters upon the land depends upon whether the person entering is a
trespassor, licensee, or invitee.” Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983). Here,
Queensboro Professional and its employee, Pozarlik, each were Chernov’s invitees because they
were invited onto the property for a purpose connected with Chernov’s business dealings, i.e., to
perform flooring work inside her Unit. Restatement (Second) of Torts § 332. “Possessors of land
owe a duty to protect invitees from foreseeable harm.” Carrender, 469 A.2d at 123. Accordingly,
Chernov owed a general duty to protect Queensboro Professional and its employees from
foreseeable harm.
Pennsylvania law also provides, however, that “the owner of real estate is not liable,
except in limited circumstances, to persons injured through the negligence of an independent
contractor to whom possession and control of the land was temporarily delivered.” Zinn v.
Gichner Sys. Grp., 880 F. Supp. 311, 313 (M.D. Pa. 1995). The Supreme Court of Pennsylvania
8
The Pozarliks asserted this claim as part of their second amended complaint in Pozarlik
v. Camelback Associates, Inc., No. 3:11-cv-1349, which was consolidated into this action.
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recognizes several exceptions to this general rule, as found in the Restatement (Second) of Torts
(the “Restatement”), including: “(1) Section 343, Dangerous Conditions Known To or
Discoverable By Possessor; (2) Section 414, Negligence in Exercising Control Retained By
Employer; and (3) Sections 416 and 427, collectively referred to as the Peculiar Risk Doctrine.”
Farabaugh, 911 A.2d at 1270. Chernov argues that she is not liable for injuries stemming from
the explosion because she delivered temporary possession and control of the Unit to the
contractors overseeing the repair work, presumably including her son. (Doc. 255, at 17-18). The
parties opposing summary judgment, on the other hand, assert that both the “known dangerous
condition” and “retained control” exceptions found in sections 343 and 414 of the Restatement
apply to the case at bar. (Doc. 269, at 4-9).
a. Duty to Warn of Dangerous Conditions
Queensboro Professional argues that Chernov is liable under section 343 of the
Restatement for failing to warn of a dangerous condition at Unit 298 in the form of “the
presence of incompetent workers who Defendant Chernov knew or should have known would
cause harm to persons and/or property.” (Doc. 269, at 8-9). In support of its position that
Chernov knew or should have known that the Ukrainian workers were incompetent and
dangerous, Queensboro Professional notes that Chernov knew that those same Ukrainian
workers had constructed the earlier deck addition that was condemned by a Monroe County
Court of Common Pleas judge for failing to comply with applicable building codes, among
other violations. (Doc. 248-2; Doc. 269, at 6).
A possessor of land has a duty to “use reasonable care to make the premises safe or give
adequate and timely warning of dangers known to him but unknown to the contractor or his
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employees.” Crane v. I. T. E. Circuit Breaker Co., 278 A.2d 362, 364 (Pa. 1971). Section 343
provides:
A possessor of land is subject to liability for physical harm caused to his invitees
by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and
should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to
protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
Restatement (Second) of Torts § 343.
Pennsylvania courts that have examined similar claims under section 343 have held that
the duty to warn of “condition[s] on the land” does not encompass a duty to warn about
potential negligent or intentional acts of third persons. T.A. v. Allen, 669 A.2d 360, 364 (Pa.
Super. Ct. 1995); see Rabutino v. Freedom State Realty Co., 809 A.2d 933, 938 n.4 (Pa. Super. Ct.
2002) (finding that claim against business owner for the failure to protect business invitees from
third persons on the business premises did not fall under section 343). Accordingly, the
Ukrainian workers cannot serve as a basis for the imposition of liability against Chernov under
section 343 because their presence does not constitute a condition on the land. Section 343 thus
is not a viable basis for the imposition of liability against Chernov in this case.
b. Retained Control
The parties opposing summary judgment next assert that Chernov retained control over
the renovation process in a manner sufficient to preclude the general rule of possessor
nonliability for the negligence of an independent contractor. (Doc. 264, at 2-3; Doc. 269, at 67). Chernov insists that she had nothing to do with the construction work and left the entire
project to her son, so thus is not subject to liability under section 414. (Doc. 255, at 17-18). On
the other hand, Queensboro PA asserts that section 414 applies because: (1) Chernov was the
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lone defendant to the Monroe County Court of Common Pleas order that granted the
Association injunctive relief and required Chernov to rebuild the deck in compliance with the
applicable building codes and regulations (Doc. 248-2); (2) Chernov signed the building permits
but failed to comply with their requirements regarding the verification of insurance of any
contractors (Doc. 276-7, at 21-25); and (3) Chernov allegedly first spoke with Marian
Nowakowski and requested the Queensboro entities to do the flooring work for Unit 298 (Doc.
244-4, at 16). (Doc. 264, at 2-4).
The Restatement imposes a duty of reasonable care on “one who entrusts work to an
independent contractor, but who retains the control of any part of the work, [for injuries] to
others for whose safety the employer owes a duty to exercise reasonable care, which is caused
by his failure to exercise his control with reasonable care.” Restatement (Second) of Torts § 414.
Under section 414, “[t]here is . . . no appreciable difference in the ‘retained control’ analysis
between a subcontractor's employee's negligence action against a landowner and one against a
general contractor.” Warnick v. Home Depot U.S.A., Inc., 516 F. Supp. 2d 459, 471 (E.D. Pa.
2007). Although “[a]s a general proposition, the question of the quantum of retained control
necessary to make the owner of the premises liable is a question for the jury,” Pennsylvania
“case law has construed this exception narrowly.” Beil v. Telesis Const., Inc., 11 A.3d 456, 467
(Pa. 2011).
Comment c to section 414 provides that general rule of possessor nonliability for the
negligence of an independent contractor is precluded only if “[t]here [is] such a retention of a
right of supervision that the contractor is not entirely free to do the work in his own way.”
Restatement (Second) of Torts § 414, cmt. c. Here, Queensboro PA does not allege—and there
is no evidence to suggest—that Chernov impeded Epelboym’s ability “to do the work in his
- 17 -
own way.” Restatement (Second) of Torts § 414, cmt. c. Furthermore, Queensboro PA provides
no case law in support of its assertion that the Court of Common Pleas order, permit
applications in Chernov’s name, or conversation with Nowakowski could possibly serve as a
basis for the imposition of liability under section 414. Because these alleged examples of
Chernov’s retained control are immaterial to determining whether Chernov influenced
Epelboym’s method of performing the work, Queensboro PA’s attempt to impose liability on
Chernov pursuant to section 414 must fail.
2. Agency
The parties opposing summary judgment next argue that Chernov is liable under the law
of agency. 9 (Doc. 264, at 2-3; Doc. 269, at 5-6; Doc. 276, at 67-68). Section 1 of the
Restatement (Second) of Agency defines “agency” as “the fiduciary relation which results from
the manifestation of consent by one person to another that the other shall act on his behalf and
subject to his control, and consent by the other so to act.” Restatement (Second) of Agency §
1(1) (1958). Under Pennsylvania law, “the three basic elements of agency are: ‘the
manifestation by the principal that the agent shall act for him, the agent's acceptance of the
undertaking and the understanding of the parties that the principal is to be in control of the
undertaking.’” Basile v. H & R Block, Inc., 761 A.2d 1115, 1120 (Pa. 2000) (quoting Restatement
(Second) of Agency § 1, cmt. b). Pennsylvania recognizes four methods of establishing an
agency relationship: “(1) express authority, which is that which is directly granted; (2) implied
9
In fact, comment a to section 414 explicitly contemplates that the law of agency
provides a distinct ground for liability in an employer-contractor relationship. Restatement
(Second) of Torts § 414, cmt. a.
- 18 -
authority, which is the right and obligation to do all that is proper, usual, and necessary to the
exercise of authority actually granted; (3) apparent authority, which arises where the principal
holds one out to be an agent by the principal's conduct; or (4) agency by estoppel.” Donegal Mut.
Ins. Co. v. Grossman, 195 F. Supp. 2d 657, 666 (M.D. Pa. 2001) (citing Reifsnyder v. Dougherty,
152 A. 98, 100 (Pa. 1930)). The existence of an agency relationship is generally a question of
fact for a jury to determine. Commonwealth v. One 1991 Cadillac Seville, 853 A.2d 1093, 1096 (Pa.
Commw. Ct. 2004).
Chernov does not dispute that she maintained an agency relationship with Epelboym,
however, she argues that she is not liable for his negligent conduct because her relationship with
Epelboym did not rise to that of master and servant. (Doc. 280, at 7-9); see Restatement
(Second) of Agency § 2 (1958). An agency relationship becomes that of master and servant
where the principal “controls or has the right to control the physical conduct of the other in the
performance of the service.” Restatement (Second) of Agency § 2(1). “Because a master has the
right to exercise control over the physical activities of the servant within the time of service, he
is vicariously liable for the servant's negligent acts committed within the scope of his
employment . . . .” Smalich v. Westfall, 269 A.2d 476, 481 (Pa. 1970). However, “[s]ince an
agent who is not a servant is not subject to any right of control by his principal over the details
of his physical conduct, the responsibility rests upon the agent alone, and the principal is not
liable, for harm caused by his unauthorized negligent physical conduct . . . .” Smalich, 269 A.2d
at 481. Chernov argues that vicarious liability cannot be imposed on her because Epelboym
controlled the methods of performing the construction work. (Doc. 280, at 7-9).
Despite Chernov’s claims to the contrary, “[e]ven in circumstances where a masterservant relationship does not exist, an agency relationship may give rise to vicarious liability on
- 19 -
the part of the principal for the torts of the agent.” Stephenson v. Coll. Misericordia, 376 F. Supp.
1324, 1329 (M.D. Pa. 1974). Specifically, section 250 of the Restatement (Second) of Agency
provides:
A principal is not liable for physical harm caused by the negligent physical
conduct of a non-servant agent during the performance of the principal's
business, if he neither intended nor authorized the result nor the manner of
performance, unless he was under a duty to have the act performed with due
care.
Restatement (Second) of Agency § 250 (1958).
Here, even though Chernov did not control the manner of the day-to-day performance of the
construction work so as to make the relationship between her and Epelboym one of master and
servant, she both authorized the manner of performance and was under a duty to have the act
performed with due care. Restatement (Second) of Agency § 250. In light of the Court of
Common Pleas judgment ordering Chernov to have the deck torn down and rebuilt in
compliance with the applicable building codes and regulations, Chernov had a duty to ensure
that the work would be performed with due care. 10 (Doc. 248-2). Chernov may also be found to
have authorized the manner of performance, given that she allowed Epelboym to use the same
Ukrainian workers to rebuild the deck that had initially constructed it in violation of building
codes and regulations.
10
The analysis of section 250 of the Restatement (Second) of Agency differs from
Queensboro PA’s argument under section 414 of the Restatement (Second) of Torts in that
Queensboro PA needed to show that Chernov actually retained control in a manner that made
Epelboym “not entirely free to do the work in his own way.” Restatement (Second) of Torts §
414, cmt. c. Section 250 does not require the principal to exercise the same level of actual
control.
- 20 -
Comment b to section 250 notes that “the principal may be liable if he should know that
there is an undue risk that the agent will be negligent and harm others, in which case his
liability will be in accord with the rule stated in Section 213.” Restatement (Second) of Agency
§ 250, cmt. b. Section 213 provides:
A person conducting an activity through servants or other agents is subject to
liability for harm resulting from his conduct if he is negligent or reckless:
(a) in giving improper or ambiguous orders of in failing to make proper
regulations; or
(b) in the employment of improper persons or instrumentalities in work involving
risk of harm to others:
(c) in the supervision of the activity; or
(d) in permitting, or failing to prevent, negligent or other tortious conduct by
persons, whether or not his servants or agents, upon premises or with
instrumentalities under his control.
Restatement (Second) of Agency § 213 (1958) (emphasis added).
Chernov has argued throughout this case that she cannot be liable for Epelboym’s actions
because she exercised virtually no control or supervision over his performance of the
construction work. (Doc. 280, at 7-9). However, as noted by the Pozarliks, this lack of
oversight—especially in light of the Court of Common Pleas order—is precisely why the
imposition of liability on Chernov is appropriate under section 213. (Doc. 276, at 68). At the
very latest, Chernov knew by the time the Court of Common Pleas order was entered that the
Ukrainian workers were “improper persons” for carrying out the construction work because
they lacked formal training and insurance, and because their work had resulted in the violation
of several building codes and regulations. (Doc. 248-2). By this same rationale, Chernov also
knew that Epelboym was unfit to be the de facto general contractor for the construction. See
Restatement (Second) of Agency § 213, cmt. d (“The principal may be negligent because he has
reason to know that the servant or other agent, because of his qualities, is likely to harm others
- 21 -
in view of the work or instrumentalities entrusted to him.”). The parties opposing summary
judgment have therefore produced enough evidence to establish that Chernov is vicariously
liable for Epelboym’s actions pursuant to Restatement (Second) of Agency sections 213 and
250, despite the fact that they did not have a master-servant relationship. 11
3. Negligent Hiring
The final theory of liability asserted against Chernov is a claim of negligent hiring for
selecting her son to act as the de facto general contractor. 12 (Doc. 269, at 7-8). As a general rule,
“the employer of an independent contractor is not liable for physical harm caused to another by
an act or omission of the contractor or his servants.” Restatement (Second) of Torts § 409.
However, section 411 of the Restatement provides:
An employer is subject to liability for physical harm to third persons caused by
his failure to exercise reasonable care to employ a competent and careful
contractor
11
The nonmoving parties also assert that Chernov should be held vicariously liable for
Epelboym’s alleged negligence based on the theories of apparent authority and agency by
estoppel. (Doc. 264, at 8-9; Doc. 269, at 5-6). “Apparent authority exists when a principal, by
words or conduct, leads people with whom the alleged agent deals to believe the principal has
granted the agent authority he or she purports to exercise.” One 1991 Cadillac Seville, 853 A.2d at
1096. Under the theory of agency by estoppel, “the principal is bound by the acts of its agent
because the principal has a duty under the circumstances to correct a third party's
misapprehension that an agent is acting on its behalf and the principal has failed to satisfy that
duty.” Browne v. Maxfield, 663 F. Supp. 1193, 1199 (E.D. Pa. 1987). Here, however, because the
Court finds and Chernov does not dispute that an actual agency relationship existed between
Chernov and Epelboym, the Court need not consider these alternative theories of liability. See
Restatement (Second) of Agency § 141 (1958) (“A principal, although not subject to liability
because of principles of agency, may be liable to a third person on account of a transaction with
an agent, because of the principles of estoppel, restitution or negotiability.”).
12
Although Epelboym argues that he did not explicitly assume the role of general
contractor, he readily admits that he retained control over the work and performed the
functions of a general contractor. (Doc. 243-3, at 4; Doc. 243-4, at 48).
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(a) to do work which will involve a risk of physical harm unless it is skillfully and
carefully done, or
(b) to perform any duty which the employer owes to third persons.
Restatement (Second) of Torts § 411.
In her reply brief, Chernov counters that a negligent hiring claim must fail because none
of the parties bringing claims against her are “third persons” within the meaning of section 411.
(Doc. 280, at 13-15). State and federal courts within Pennsylvania interpret the “third persons”
terminology as excluding employees who are involved in the work itself. Fedor v. Van NoteHarvey Assocs., No. CIV.A. 10-5110, 2011 WL 1085993, at *4 (E.D. Pa. Mar. 18, 2011);
Holbrook v. Woodham, No. 3:05–304, 2008 WL 4425606, at * 12 (W.D. Pa. Sep.30, 2008);
Mentzer v. Ognibene, 597 A.2d 604, 607-09 (Pa. Super. Ct. 1991); Dudash v. Palmyra Borough
Auth., 483 A.2d 924, 928 (Pa. Super. Ct. 1984). This issue is discussed most extensively in
Mentzer v. Ognibene, where a Superior Court of Pennsylvania panel held that section 411 liability
applies only “to persons who are not involved in the construction project itself and yet who are
injured as a result of the negligent act of the contractor.” 597 A.2d at 608. The Mentzer court
based its reasoning on three observations. First, the illustrations accompanying section 411 all
reference injured customers and passersby but exclude instances where an employer/possessor
of land would be liable for injuries to the employee of a contractor. Mentzer, 597 A.2d at 608.
Second, comment f to section 411 states that an employer or possessor of land is potentially
liable to “a person to whom the possessor owes a duty to exercise reasonable care to prepare
and maintain a safe building.” Mentzer, 597 A.2d at 608 (quoting Restatement (Second) of
Torts § 411, cmt. f). However, because “Pennsylvania law imposes no general duty on property
owners to prepare and maintain a safe building for the benefit of a contractor's employees who
are working on that building,” the Mentzer court surmised that comment f does not provide for a
- 23 -
contractor’s injured employee to recover under section 411. Mentzer, 597 A.2d at 608. Finally,
the Mentzer court determined that its construction of section 411 is based on sound policy
grounds, because “section 411 should operate to protect those innocent third persons who are
themselves unaware of and unable to protect themselves against the negligence of the
improperly hired contractor,” whereas other employees on the worksite are aware of the risks
and more capable of protecting themselves. Mentzer, 597 A.2d at 609.
This Court finds the reasoning set forth in Mentzer to be persuasive. 13 Accordingly, any
claim against Chernov asserting a theory of negligent hiring must be denied because none of the
parties asserting this claim are “third persons” under section 411.
4. Conclusion
Chernov is not liable in tort in her capacity as a landowner under section 343, for the
exercise of retained control over an independent contractor under section 414, or for negligent
hiring under section 411. However, Chernov is vicariously liable for the torts committed by her
son and agent, Dmitry Epelboym, pursuant to Restatement (Second) of Agency sections 213
and 250.
Accordingly, the Court denies Chernov’s motion for summary judgment.
13
In Mentzer, the plaintiff was employed directly by the negligently-hired contractor that
caused his injuries, whereas in the case at bar Pozarlik was employed by Queensboro
Professional but was allegedly injured by the Ukrainian workers. Mentzer, 597 A.2d at 606-07;
(Doc. 270, at 7-8). However, the reasoning in Mentzer still applies because both Queensboro
Professional and the Ukrainian workers were hired by Epelboym, the allegedly negligent
contractor. Pozarlik thus does not qualify as a “third person” under section 411 regardless of
the specific contractor on the worksite that caused his injury. See, e.g., Dudash, 483 A.2d at 928
(rejecting section 411 claim against municipal authority brought by subcontractor’s employee
for injuries caused by a different subcontractor because employee was not a “third person”).
- 24 -
B. DMITRY EPELBOYM
Epelboym is named as a Third-Party Defendant to the third-party complaint filed by
Queensboro Professional and Tomasz Korytkowski on July 25, 2012 (Doc. 45), and also as a
Cross-Claim Defendant to the crossclaims filed by Queensboro PA on May 17, 2013 (Doc. 91;
Doc. 92; Doc. 93). Both Queensboro entities seek contribution from Epelboym for any liability
they may have to the Pozarliks. In his motion for summary judgment, Epelboym contests these
claims, arguing that the statute of limitations for any claims against him has lapsed and also
that he is not liable as a joint tortfeasor. (Doc. 246).
1. Statute of Limitations Defense
Epelboym first argues that he should be dismissed from the third-party action brought
against him because neither Queensboro Professional nor Queensboro PA asserted claims
against Epelboym until after Pennsylvania’s two-year statute of limitations for negligence
actions, 42 Pa. Cons. Stat. § 5524, had already lapsed. (Doc. 246, at 14-16). The explosion at
298 Overlook Way occurred on July 22, 2009, so to the extent that the explosion gave rise to a
direct negligence action against Epelboym, the time to bring that action lapsed on July 22,
2011, over a year before the Queensboro entities initiated the third-party action and crossclaim.
(Doc. 246, at 15).
However, Epelboym himself acknowledges in the brief in support of his motion for
summary judgement that the two-year statute of limitations for negligence does not foreclose
the right of contribution between joint tortfeasors. (Doc. 256, at 18). In its brief in opposition,
Queensboro Professional reiterates this point and notes that under Pennsylvania law, the
applicable limitations period to bring a contribution action is six years from the entry of
judgment against the joint tortfeasors, as governed by 42 Pa. Cons. Stat. § 5527(b). (Doc. 270,
- 25 -
at 5-6); Pennsylvania Nat. Mut. Cas. Ins. Co. v. Nicholson Const. Co., 542 A.2d 123, 126 (Pa. Super.
Ct. 1988) (“[I]n an action for contribution, the applicable limitation period is six years
commencing from the entry of judgment against the joint tortfeasors.”). Because judgment has
not yet been entered in this case, the actions for contribution brought by the Queensboro
entities are timely. See (Doc. 270, at 5-6). Epelboym appears to concede as much in his brief in
support, as he does not challenge the timeliness of the actions for contribution against him. 14
(Doc. 256, at 18). Because Queensboro Professional and Queensboro PA raise claims for
contribution rather than direct negligence claims, Epelboym’s statute of limitations defense fails
as it pertains to the third-party action and crossclaims.
2. Negligence Liability
In addition to his statute of limitations defense, Epelboym challenges the Queensboro
entities’ claims for contribution on the merits. The right of contribution “applies when a
plaintiff and defendant are joint tortfeasors,” and “comes into force when one joint tortfeasor
has discharged a common liability or paid more than its share of such liability, in which case
the joint tortfeasor is entitled to reimbursement from the other tortfeasors to the extent that its
payment exceeded its own liability.” Kirschbaum v. WRGSB Assocs., 243 F.3d 145, 156 (3d Cir.
2001). Under Pennsylvania law, “joint tortfeasors” are defined as “two or more persons jointly
or severally liable in tort for the same injury to persons or property, whether or not judgment
has been recovered against all or some of them.” 42 Pa. Cons. Stat. § 8322.
14
Epelboym chose not to file a reply brief.
- 26 -
Epelboym argues that he is not liable in tort for the explosion that caused Pozarlik’s
injury. Specifically, Epelboym contends that he breached no duty owed to Pozarlik. (Doc. 256,
at 24). The Queensboro entities, on the other hand, allege several theories under which
Epelboym could be liable in tort. These theories are based on the duties Epelboym assumed as
the possessor of the property at 298 Overlook Way and for the retained control he exercised in
directing the renovation work. 15 (Doc. 270, at 6-7). As a member of Chernov’s household,
Epelboym owed the same standard of care as Chernov. Restatement (Second) of Torts § 382
(1965). “The standard of care a possessor of land owes to one who enters upon the land
depends upon whether the person entering is a trespassor, licensee, or invitee.” Carrender, 469
A.2d at 123. Here, Queensboro Professional and its employees were invitees because they were
invited onto the property by Epelboym for the business purpose of performing the flooring
work. Restatement (Second) of Torts § 332. “Possessors of land owe a duty to protect invitees
from foreseeable harm.” Carrender, 469 A.2d at 123. Accordingly, Epelboym owed the same
general duty as Chernov to protect Queensboro Professional and its employees from foreseeable
harm.
As noted in regard to Chernov, Pennsylvania law provides that a possessor of land is
generally not liable for the negligent acts of an independent contractor to whom possession and
control of the land is temporarily delivered. Zinn, 880 F. Supp. at 313. However, Pennsylvania
also recognizes the following exceptions to this general rule of possessor nonliability that are
15
As discussed below, Epelboym’s retained control over the work and performance of
the functions of a general contractor is sufficient to impose a duty of reasonable care on him.
(Doc. 243-3, at 4; Doc. 243-4, at 48).
- 27 -
found in the Restatement: “(1) Section 343, Dangerous Conditions Known To or Discoverable
By Possessor; (2) Section 414, Negligence in Exercising Control Retained By Employer; and (3)
Sections 416 and 427, collectively referred to as the Peculiar Risk Doctrine.” Farabaugh, 911
A.2d at 1270. Epelboym argues that no exception to the general rule applies, and thus he did
not breach any duty that could subject him to liability for an explosion that occurred on
Queensboro Professional’s watch. (Doc. 256, at 21-31). Conversely, the Queensboro entities
assert that Epelboym is liable under sections 343 and 414 because he failed to warn of the
presence of incompetent Ukrainian workers and/or the unsafely removed propane heater, and
because he acted as the general contractor throughout the renovation process and therefore
exercised control over the property. (Doc. 270, at 6). Additionally, the Queensboro entities raise
a negligent hiring claim against Epelboym pursuant to section 411 of the Restatement. The
Court therefore addresses each theory of liability in turn.
a. Duty to Warn of Dangerous Conditions
The Queensboro entities claim that Epelboym is liable under section 343 of the
Restatement for failing to warn of dangerous conditions on the property in the form of the
allegedly incompetent Ukrainian workers and the propane heater that had not been safely
removed. (Doc. 270, at 8-9). As noted in regard to the section 343 claim against Chernov,
however, the presence of incompetent individuals is not a “condition on the land” under section
343. Allen, 669 A.2d at 364; Rabutino, 809 A.2d at 938 n.4. The presence of the heater is
therefore the only potential ground for imposing liability on Epelboym under section 343. The
section provides:
A possessor of land is subject to liability for physical harm caused to his invitees
by a condition on the land if, but only if, he
- 28 -
(a) knows or by the exercise of reasonable care would discover the condition, and
should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to
protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
Restatement (Second) of Torts § 343.
In support of their argument that Epelboym knew or should have known that the heater
presented a dangerous condition, the Queensboro entities point to deposition testimony from
one of the Ukrainian workers, Michailo Nyshechey, who states that Epelboym told the
Ukrainian workers “to empty the basement” in advance of Queensboro Professional’s arrival.
(Doc. 244-3, at 27). Because the propane heater was located in the basement, a jury could
reasonably conclude that Epelboym’s instruction implied that the Ukrainian workers were to
remove the heater. Moreover, Epelboym states in his own deposition testimony that he did not
instruct the Ukrainian workers how to safely disconnect the propane heater and shut off the gas
line because he did not think they would need to move it. (Doc. 244-3, at 31). Drawing all
inferences in favor of the non-moving parties, these factors combine to establish that Epelboym
should have known that his instructions to the Ukrainian workers “to empty the basement,”
without telling them how to safely disconnect the propane heater, created an unreasonable risk
of harm to Queensboro Professional and its employees that the heater would be improperly
disconnected with the gas line left unsecured. See Restatement (Second) of Torts § 343(a). A
jury could also conclude based on Epelbyom’s actions that he failed to exercise reasonable care
to protect Queensboro Professional and its employees from the likely danger that the propane
heater would be unsafely disconnected. See Restatement (Second) of Torts § 343(c).
The final remaining requirement for the imposition of liability under section 343 is that
Epelboym should have “expect[ed] that [the Queensboro entities and Pozarlik] w[ould] not
- 29 -
discover or realize the danger . . . .” Restatement (Second) of Torts § 343(b). Thus, “the
employer of an independent contractor has no duty to warn the contractor or his employees of a
condition that is at least as obvious to them as it is to him.” Colloi v. Phila. Elec. Co., 481 A.2d
616, 620 (Pa. Super. Ct. 1984). Epelboym makes this exact argument in the brief in support of
his motion for summary judgment, claiming that the propane heater was an obvious danger and
that he lacked superior knowledge of the potential danger that the heater would be improperly
disconnected. 16 (Doc. 246, at 12; Doc. 256, at 32). In support of this assertion, Epelboym notes
that Pozarlik was trained as a volunteer firefighter in Poland, and therefore presumably had
some knowledge of propane gas and the danger presented by an unsecured gas line. (Doc. 256,
at 32). However, Epelboym’s arguments fail to address the crucial fact that he alone knew that
the Ukrainian workers had not been instructed on how to safely disconnect the propane heater,
and therefore the risk that the heater would be unsafely disconnected was far more obvious to
Epelboym than it was to the Queensboro entities and Pozarlik. Accordingly, a jury could
reasonably conclude that Epelboym should have exercised reasonable care to warn Queensboro
Professional and Pozarlik of the danger, because he alone knew that the Ukrainian workers had
not been trained on how to safely disconnect the heater. 17
16
See Restatement (Second) of Torts § 343A(1) (“A possessor of land is not liable to his
invitees for physical harm caused to them by any activity or condition on the land whose
danger is known or obvious to them, unless the possessor should anticipate the harm despite
such knowledge or obviousness.”).
17
Epelboym’s statement regarding Pozarlik’s training as a volunteer firefighter also
pertains to Epelboym and Chernov’s related argument that Pozarlik assumed the risk of injury.
(Doc. 255, at 28-31; Doc. 256, at 32). Under Pennsylvania law, “[w]hen an invitee . . . discovers
dangerous conditions which are both obvious and avoidable, and nevertheless proceeds
voluntarily to encounter them, the doctrine of assumption of risk operates merely as a
- 30 -
Therefore, although the mere presence of unqualified Ukrainian workers does not
constitute a dangerous condition under section 343 of the Restatement, summary judgment is
precluded because of the Queensboro entities’ claim that Epelboym failed to warn of the
unreasonable risk of harm that the heater would not be removed safely by the Ukrainian
workers.
b. Retained Control
The Queensboro entities also assert that Epelboym retained control over the renovation
process and acted as the de facto general contractor. (Doc. 270, at 6). In support of this
contention, the Queensboro entities reference deposition testimony from numerous sources,
including Chernov’s indication in her deposition that Epelboym “was the boss. He’s in charge.”
(Doc. 243-2, at 15). Epelboym himself corroborated his mother’s statement, noting that he
performed the functions of a general contractor. (Doc. 243-3, at 4; Doc. 243-4, at 48). In
assuming this role, Epelboym instructed Queensboro Professional to do the flooring work, but
counterpart to the possessor's lack of duty to protect the invitee from those risks.” Carrender, 469
A.2d at 125. However, “the question of assumption of the risk typically remains for the jury,”
as summary judgment is appropriate “[o]nly where the evidence reveals a scenario so clear as to
void all questions of material fact concerning the plaintiff's own conduct . . . .” Montagazzi v.
Crisci, 994 A.2d 626, 636 (Pa. Super. Ct. 2010). In this case, the evidence concerning Pozarlik’s
conduct is not nearly clear enough to void all questions of material fact. In addition to
Pozarlik’s training as a volunteer firefighter, Epelboym points to alleged inconsistencies in
Pozarlik’s testimony regarding whether or not he smelled gas prior to the explosion (Doc. 24611, at 5; Doc. 246-12, at 5-6), and the fact that Pozarlik requested the propane heater be
removed from the basement without ensuring that the heater was removed safely (Doc. 246-11,
at 6-7; Doc. 246-12, at 4). This evidence may be sufficient to raise questions for a jury as to
whether Pozarlik’s actions constituted contributory negligence, but it is certainly not so clear as
to warrant a finding as a matter of law that Pozarlik voluntarily encountered the risk that he
would be injured by the heater explosion. Accordingly, Epelboym and Chernov’s assumption of
risk defense must fail at this summary judgment stage.
- 31 -
also hired the Ukrainian workers to do touch ups and various projects at Epelboym’s direction.
(Doc. 243-3, at 7; Doc. 243-4, at 30-34). However, Epelboym claims that he lacked sufficient
control over the work that was ongoing when the explosion occurred to impose a duty because
Epelboym had hired Queensboro Professional and Korytkowski as independent contractors to
sand and refinish the floors. (Doc. 256, at 21-26).
The Restatement imposes a duty of reasonable care on an employer “who entrusts work
to an independent contractor, but who retains the control of any part of the work, [for injuries]
to others for whose safety the employer owes a duty to exercise reasonable care, which is
caused by his failure to exercise his control with reasonable care.” Restatement (Second) of
Torts § 414. Under section 414, “[t]here is . . . no appreciable difference in the ‘retained control’
analysis between a subcontractor's employee's negligence action against a landowner and one
against a general contractor.” Warnick v. Home Depot U.S.A., Inc., 516 F. Supp. 2d 459, 471
(E.D. Pa. 2007). Comment c to the Restatement further clarifies:
In order for the rule stated in this Section to apply, the employer must have
retained at least some degree of control over the manner in which the work is
done. . . . There must be such a retention of a right of supervision that the
contractor is not entirely free to do the work in his own way.
Restatement (Second) of Torts § 414, cmt. c.
Although “[a]s a general proposition, the question of the quantum of retained control necessary
to make the owner of the premises liable is a question for the jury,” Pennsylvania “case law has
construed this exception narrowly.” Beil v. Telesis Const., Inc., 11 A.3d 456, 467 (Pa. 2011).
The facts in the case at bar are analogous to the facts presented in Byrd v. Merwin, 317
A.2d 280 (Pa. 1974). In Byrd, an electrical subcontractor’s employee sued the landowner
alleging liability under section 414 after the employee was injured when a prefabricated
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staircase section was dropped on the employee’s leg. Byrd, 317 A.2d at 281. The landowner
hired and paid all subcontractors, and also instructed the electrical subcontractor when and
where to begin work on the project. Byrd, 317 A.2d at 282. The Supreme Court of Pennsylvania
found these facts sufficient to establish that the landowner retained a degree of control
consistent with the imposition of liability under section 414. Byrd, 317 A.2d at 282.
Furthermore, the Pennsylvania Supreme Court held that a jury could have reasonably
concluded that the landowner was negligent in exercising control over the project, because: (1)
he hired the worker that dropped the staircase section on the electrical subcontractor’s
employee; (2) that worker had been “clowning around” on the jobsite previously but was not
removed from the jobsite; and (3) the landowner chose to have the electrical work started before
completing the staircase installation. Byrd, 317 A.2d at 282.
As was the case in Byrd, Epelboym hired and paid both the Ukrainian workers and
Queensboro Professional. (Doc. 243-3, at 7; Doc. 243-4, at 30-34). Additionally, Epelboym
directed Queensboro Professional to commence the flooring job despite knowing that the
Ukrainian workers were still working on the “touch ups” to the walls and deck. (Doc. 243-3, at
24-25, 35-36). Because Epelboym is alleged to have exercised the same degree of control as the
landowner in Byrd, this Court concludes that Epelboym’s actions are sufficient to impose
liability under section 414. Furthermore, as with the landowner in Byrd, a jury could potentially
find that Epelboym failed to exercise control with reasonable care. As noted above, Michailo
Nyshechey stated in his deposition that Epelboym told the Ukrainian workers “to empty the
basement” in advance of Queensboro Professional’s arrival. (Doc. 244-3, at 27). Because the
propane heater was located in the basement, a jury could reasonably conclude that Epelboym’s
instruction implied that the Ukrainian workers were to remove the heater, or at the very least
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that the heater would need to be moved. See (Doc. 270, at 9). However, Epelboym states in his
own deposition testimony that he never instructed the Ukrainian workers how to safely
disconnect the propane heater and shut off the gas line because he did not think they would
need to move it. (Doc. 244-3, at 31). Epelboym also employed the Ukrainian workers to
perform the touch ups despite knowing that these same workers built the allegedly substandard
deck addition that a Monroe County Court of Common Pleas judge ordered to be torn down.
(Doc. 243-4, at 30-36). Based on this evidence, a reasonable jury could conclude that Epelboym
acted negligently in directing the Ukrainian workers to do their touch ups at Unit 298 while
Queensboro Professional performed the flooring job, particularly because Epelboym knew that
the Ukrainian workers were untrained as to how to safely remove the heater.
As a defense, Epelboym claims that even if he retained control of the renovations in a
manner sufficient to impose liability under section 414, he should not be held vicariously liable
for the negligent acts of the Ukrainian workers because they were independent contractors
acting outside the scope of their employment when they purportedly removed the propane
heater. (Doc. 256, at 26-28). Under Pennsylvania law, “an employer is held vicariously liable
for the negligent acts of his employee which cause injuries to a third party, provided that such
acts were committed during the course of and within the scope of the employment.” Costa v.
Roxborough Mem'l Hosp., 708 A.2d 490, 493 (Pa. Super. Ct. 1998). “The determination of
whether a person was acting within the scope of his employment is typically a question for the
jury.” Costa, 708 A.2d at 493.
Here, however, the deposition testimony of Michailo Nyshechey belies Epelboym’s
assertion that the Ukrainian workers acted outside the scope of their employment if they
removed the propane heater, as Nyshechey stated that Epelboym “told us that we have to
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empty the basement, because there would be people who would be coming to sand the floors.”
(Doc. 244-3, at 27). Given this evidence, a reasonable jury could conclude that the Ukrainian
workers acted within the scope of their employment if they removed the propane heater from
the basement, and so Epelbyom’s vicarious liability argument therefore must fail.
Accordingly, Epelboym’s motion for summary judgment is denied as it pertains to the
Queensboro entities’ “retained control” theory of liability.
c. Negligent Hiring
The final theory of liability asserted by the Queensboro entities is a claim for negligent
hiring. (Doc. 270, at 7-8). Epelboym does not challenge the substance of the Queensboro
entities’ negligent hiring claim in the brief in support of his motion for summary judgment.
Nevertheless, the Court may determine whether this particular theory of liability fails as a
matter of law. See Mun. Revenue Serv., Inc. v. Xspand, Inc., 700 F. Supp. 2d 692, 703 n.19 (M.D.
Pa. 2010) (“[I]n resolving a motion for summary judgment, the Court is not constrained to
consider only those arguments interposed by counsel.”).
As noted above in regard to the negligent hiring claim asserted against Chernov, section
411 of the Restatement limits liability to “physical harm to third persons . . . .” Restatement
(Second) of Torts § 411. Pennsylvania courts interpret “third persons” as excluding employees
who are involved in the work itself. Fedor v. Van Note-Harvey Assocs., No. CIV.A. 10-5110, 2011
WL 1085993, at *4 (E.D. Pa. Mar. 18, 2011); Holbrook v. Woodham, No. 3:05–304, 2008 WL
4425606, at * 12 (W.D. Pa. Sep.30, 2008); Mentzer v. Ognibene, 597 A.2d 604, 607-09 (Pa. Super.
Ct. 1991); Dudash v. Palmyra Borough Auth., 483 A.2d 924, 928 (Pa. Super. Ct. 1984).
Accordingly, because Pozarlik is not a “third person” within the meaning of section 411,
Epelboym cannot be liable for a claim of negligent hiring.
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3. Conclusion
Because Queensboro Professional and Queensboro PA only assert claims for
contribution against Epelboym, those claims are governed by the six-year statute of limitations
period set forth in 42 Pa. Cons. Stat. § 5527(b) and are therefore timely. Furthermore, although
Epelboym is not liable in tort for negligent hiring under section 411 or for the supposedly
dangerous condition created by the presence of the Ukrainian workers under section 343, the
Queensboro entities have asserted potentially valid theories of liability under section 343 for the
dangerous condition created by the presence of the propane heater that was not safely
disconnected and removed and under section 414 for Epelboym’s retained control over the
project. Accordingly, the Court denies Epelboym’s motion for summary judgment.
C. THE ASSOCIATION AND KATHLEEN SIMONCIC
In their motion for summary judgment (Doc. 247), the Association and Kathleen
Simoncic seek dismissal of the lone negligence claim that the Pozarliks assert against them
(Doc. 194-5). The Association and Simoncic specifically contest the duty and causation
elements of the Pozarliks’ negligence claim.
1. Duty
The Association and Simoncic first contend that they owed no duty to the Pozarliks.
(Doc. 257, at 15).
a. The Law of Condominium
The Court’s application of the duty analysis in this case is complicated by the
relationship between condominium law and the law of tort. See, e.g., Smith v. King's Grant
Condo., 614 A.2d 261, 263 (Pa. Super. Ct. 1992) (“The law of condominium is a relatively new
area and is expanding rapidly. Unfortunately, the law of tort has yet to catch up with
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developments in this area.”), aff'd, 640 A.2d 1276 (Pa. 1994). This difficulty “arises from the
innate duality of a condominium's nature; in some ways the condominium relationship is akin
to that of adjacent owners, in others, it is like that of lessor and lessee.” Smith, 614 A.2d at 264.
A “condominium” is defined in 68 Pa. Cons. Stat. § 3103 as “[r]eal estate, portions of which are
designated for separate ownership and the remainder of which is designated for common
ownership solely by the owners of those portions. Real estate is not a condominium unless the
undivided interests in the common elements are vested in the unit owners.” In Smith v. King's
Grant Condominium, a Pennsylvania Superior Court panel noted:
[I]t is necessary to view the condominium association, and its possession of the
common elements of the condominium, as an entity separate and apart from the
[unit owner] and her possession of the individual unit, with each possessing
definable, adjacent land interests. In fact, the statutory scheme in Pennsylvania
directs that the individual unit owner be treated as a separate entity in tort . . . .
614 A.2d at 264-65.
Under Pennsylvania law, “liability for maintenance of premises” generally lies with the
party that has “possession and control of the land.” Whitaker v. Hills, 430 F. Supp. 1389, 1391
(E.D. Pa. 1977) (citing Williams v. Wolf, 84 A.2d 215, 216 (Pa. Super. Ct. 1951) (“As to third
parties, liability for injuries rests upon the party who has possession and control of the area in
which the injury occurred.”)). “In order for the party to be liable, it must first be a ‘possessor’ of
land.” Blackman v. Fed. Realty Inv. Trust, 664 A.2d 139, 142 (Pa. Super. Ct. 1995). A “possessor”
of land is defined in the Restatement as:
(a) a person who is in occupation of the land with intent to control it or
(b) a person who has been in occupation of land with intent to control it, if no
other person has subsequently occupied it with intent to control it, or
(c) a person who is entitled to immediate occupation of the land, if no other
person is in possession under Clauses (a) and (b).
Restatement (Second) of Torts § 328E (1965).
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Because Epelboym and Chernov, rather than the Association, occupied Unit 298 with the intent
to control it, the Association cannot ordinarily owe a duty of care with regard to conditions on
land (i.e. Unit 298) that the Association does not actually possess.
Pozarlik nonetheless urges this Court to look beyond “the fact that Plaintiff was inside
Unit 298 when the explosion occurred so as to arguably relieve [the Association] of liability,” in
favor of “the totality of the circumstances in this case . . . .” (Doc. 277, at 50). Specifically,
Pozarlik alleges that the Association’s “duty of care is derived from the Association’s
Declaration.” (Doc. 277, at 51). Article VI.B of Declaration provides, in relevant part:
The Declarant, its successors, or assigns, the Property Owners Association, and
the Managing Agent, shall have a right of access to any part or parts of the
property for the purpose of making inspections or for the purpose of correcting
any condition likely to result in a breach of any protective covenants or for the
purpose of abating, remedying or correcting such breach . . . , provided that
requests for entry are made in advance and that any such entry shall be at a
reasonably convenient time.
(Doc. 248-14, at 35).
The Association counters that Pozarlik, as a non-party to the Association’s Declaration and
Bylaws, cannot use those obligations to establish a duty. (Doc. 257, at 27-29). In support of
this argument, the Association cites Moranko v. Downs Racing LP, a case in which a divided
Pennsylvania Superior Court panel determined that a casino’s internal policy of denying
visibly intoxicated patrons access to the gaming floor did not place a duty on the casino
valets to withhold automobiles from those same visibly intoxicated patrons. (Doc. 257, at
27-28 (citing 118 A.3d 1111, 1115 (Pa. Super. Ct. 2015)). However, the Association’s
reliance on Moranko appears to be misplaced. The Superior Court panel in Moranko
reasoned that the policy did not place a duty on the casino because the aim of the policy did
not encompass the conduct that plaintiff sought to impose a duty on the casino to prevent.
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118 A.3d at 1115. In the case at bar, conversely, Pozarlik argues that the Association’s
“right of access to any part or parts of the property” to inspect for “any condition likely to
result in a breach of any protective covenants,” as found in the Declaration, encompasses
the construction activity occurring at Unit 298 on the day of the explosion. (Doc. 277, at 5153 (citing (Doc. 248-14, at 35)).
Furthermore, the fact that Pozarlik was not a party to the Declaration and Bylaws “is
not an essential prerequisite to the existence of a duty, as the law may operate under certain
circumstances to impose a duty in favor of a third party against one operating under a
contract, without reference to the terms of that contract.” Sharpe v. St. Luke's Hosp., 821 A.2d
1215, 1220 n.3 (Pa. 2003); Harris v. Kellogg, Brown & Root Servs., Inc., 618 F. Supp. 2d 400,
429 n.27 (W.D. Pa. 2009) (“The Court notes that under Pennsylvania law a person need not
be classified as a third-party beneficiary or be in privity of contract with one of the parties to
a contract for a duty to be created by a contract between third parties.”). Indeed, “where a
party to a contract assumes a duty to the other party to the contract, and it is foreseeable
that a breach of that duty will cause injury to some third person not a party to the contract,
the contracting party owes a duty to all those falling within the foreseeable orbit of risk of
harm.” Doyle v. S. Pittsburgh Water Co., 199 A.2d 875, 878 (Pa. 1964). Although a
condominium declaration is technically not a contract, Pennsylvania courts apply the
principles of contract law when examining these declarations. 18 Country Classics at Morgan
18
Condominium declarations are generally drafted and adopted by the condominium
association as “the perpetual governing instrument for the condominium . . . .” 68 Pa. Cons.
Stat. Ann. § 3219, cmt. 1. As such, condominium declarations lack the contractual
- 39 -
Hill Homeowners' Ass'n, Inc. v. Country Classics at Morgan Hill, LLC, 780 F. Supp. 2d 367, 374
(E.D. Pa. 2011); MetroClub Condo. Ass'n v. 201-59 N. Eighth St. Assocs., L.P., 47 A.3d 137, 145
(Pa. Super. Ct. 2012). Here, because the Association assumed a duty under the Declaration
to inspect for potential breaches of the covenants, including potential breaches inside the
individual units, it was reasonably foreseeable that an invitee of a unit owner would be
injured by the Association’s failure to take reasonable steps to inspect the construction
activity occurring at Unit 298. 19 Accordingly, Pozarlik may proceed under the theory that
the Association owed him a duty of care under the terms of the Declaration as a foreseeable
invitee of Chernov and Epelboym.
b. Duty Standard
“The existence of a duty is a question of law for the court to decide. In negligence
cases, a duty consists of one party's obligation to conform to a particular standard of care for
requirements of mutual assent and the exchange of consideration. MetroClub Condo. Ass'n v. 20159 N. Eighth St. Assocs., L.P., 47 A.3d 137, 144-45 (Pa. Super. Ct. 2012).
19
In addition to a duty that arises through contract, a duty may also be assumed by a
course of conduct. Boyanoski ex rel. Estate of Kane v. Gould, Inc., 46 Pa. D. & C.4th 164, 172 (Pa.
Ct. Com. Pl. 1999) (noting that Pennsylvania courts have adopted Restatement sections 323
and 324A). Section 323 provides that “[o]ne who undertakes . . . to render services to another
which he should recognize as necessary for the protection of the other's person or things, is
subject to liability to the other for physical harm resulting from his failure to exercise reasonable
care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such
harm, or (b) the harm is suffered because of the other's reliance upon the undertaking.”
Restatement (Second) of Torts § 323 (1965). Section 324A extends a negligent actor’s potential
liability to third parties injured by the actor’s failure to exercise reasonable care. Restatement
(Second) of Torts § 324A (1965). Although Pozarlik does not explicitly cite either of these
Restatement provisions, he does provide evidence that the Association, through its employees,
undertook a duty to inspect and monitor the construction work conducted by the Ukrainian
workers and negligently performed this duty. (Doc. 277, at 53 n.5). Thus, a duty could also be
imposed on the Association due to its course of conduct.
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the protection of another.” R.W. v. Manzek, 888 A.2d 740, 746 (Pa. 2005) (internal citations
omitted). Although the parties disagree as to whether or not a duty was owed in this case,
they do not dispute the factors that a court weighs in determining whether a duty arises in
light of the circumstances described above. (Doc. 277, at 46; Doc. 281, at 7-8). Specifically,
those factors include: “(1) the relationship between the parties; (2) the social utility of the
actor's conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred;
(4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in
the proposed solution.” Althaus v. Cohen, 756 A.2d 1166, 1169 (Pa. 2000).
i.
Relationship Between the Parties
In regard to the first factor, the Association contends that “the parties were essentially
strangers to each other,” while Pozarlik argues that he was either a business invitee or licensee
of the Association. (Doc. 257, at 18-19; Doc. 277, at 50). The Court views the relationship
between the parties as lying between these two poles. It is undisputed that Pozarlik was inside
Unit 298 at the time of the explosion, which occurred from inside Unit 298. (Doc. 194-5, at ¶¶
15, 19). Furthermore, as noted above, Unit 298 itself was possessed by Chernov and
Epelboym, not the Association. See Restatement (Second) of Torts § 328E (1965); Smith, 614
A.2d at 264-65 (“[I]t is necessary to view the condominium association, and its possession of the
common elements of the condominium, as an entity separate and apart from the appellant and
her possession of the individual unit, with each possessing definable, adjacent land interests.”).
Because the Association did not possess the land on which Pozarlik was injured, it owed
Pozarlik neither an invitee’s nor a licensee’s standard of care at the time of the explosion inside
Unit 298. See Heller v. Consol. Rail Corp., 576 F. Supp. 6, 13 (E.D. Pa. 1982) (“[T]he law imposes
no duty upon a landowner to guard against allegedly dangerous conditions which exist on
- 41 -
adjoining property.”), aff'd, 720 F.2d 662 (3d Cir. 1983) (table); Jones v. Three Rivers Mgmt. Corp.,
394 A.2d 546, 553 n.10 (Pa. 1978) (“Ordinarily, a lessor not in possession is not liable in
trespass to invitees of his lessee.”).
The fact that Pozarlik was not on land in the Association’s possession when the
explosion occurred, however, does not necessitate a finding that “the parties were essentially
strangers to each other.” (Doc. 257, at 18-19). Indeed, Simoncic states in her deposition
testimony that Pozarlik and Korytkowski were admitted through the security gate and onto the
condominium’s common areas in making their way to Unit 298. (277-14, at 31-32). Because the
Association’s employee at the security gate voluntarily admitted Pozarlik and Korytkowski
onto condominium property, they were licensees of the Association with respect to the
common areas under the Association’s possession. See Restatement (Second) of Torts § 330
(1965) (“A licensee is a person who is privileged to enter or remain on land only by virtue of the
possessor's consent.”). Moreover, Article I.13 of the Declaration defines “owner” as including
not only “the owner of record of a Dwelling Unit,” but also “his immediate family, his guests,
and lessees.” (Doc. 248-14, at 6-7). Based on this provision, the Court reasons that the
Association has contemplated the inevitability that guests of the unit owners would be present
in the condominium’s common areas and individual units, and specifically chose to extend the
rights and obligations of the Declaration to those guests. Accordingly, the Court concludes that
the relationship between the parties is significant enough as to support the imposition of a duty.
ii.
Social Utility of Defendants’ Conduct
In regard to the second factor, the parties disagree as to how broadly the scope of the
Association’s conduct should be defined. (Doc. 257, at 19; Doc. 277, at 54). Because Pozarlik
seeks to impose a duty of care derived from the Association’s Declaration, the Court borrows
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directly from the Article VI.B of the Declaration and defines the Association’s conduct as
“making inspections [and] correcting any condition likely to result in a breach of any protective
covenants or for the purpose of abating, remedying or correcting such breach” on any part of
the property, “provided that requests for entry are made in advance and that any such entry
shall be at a reasonably convenient time.” (Doc. 248-14, at 35). Regardless of how broadly the
Association’s conduct is defined, however, it is clear that any effort by the Association to
inspect conditions that could result in a breach of the protective covenants carries significant
social utility, as it serves to protect the safety and welfare of all other condominium owners and
their property. Because of the inherent social utility in the Association’s conduct, the second
factor counsels against the imposition of a duty. 20
iii.
Nature of the Risk and Foreseeability of the Harm
The third factor is the nature of the risk imposed by a defendant’s negligent performance
of the conduct, as well as the foreseeability that harm would ensue. “The type of foreseeability
that determines a duty of care, as opposed to proximate cause, is not dependent on the
20
Both the Association and Pozarlik appear to interpret the second factor as gauging the
social utility of imposing a duty on the actor’s conduct, rather than the social utility of the
conduct itself. (Doc. 257, at 19 (“[T]there is no such social utility in the . . . [A]ssociation
involving itself with the sanding job inside unit 298.”); Doc. 277, at 54 (“It would be difficult to
argue that there is no social utility in requiring Defendants to supervise and inspect construction
work being performed at a dwelling unit when they had notice and knowledge of the
egregiously defective and unsafe work by the very same unqualified and uninsured owner and
her workers at Unit 298.”)). However, this Court’s review of the relevant case law reveals that
courts generally find that the second factor does not support the imposition of a duty where a
defendant’s conduct has indisputable social utility. See Sovereign Bank v. BJ's Wholesale Club, Inc.,
395 F. Supp. 2d 183, 194 (M.D. Pa. 2005) (collecting cases), aff'd, 533 F.3d 162 (3d Cir. 2008);
Lindstrom v. City of Corry, 763 A.2d 394, 397 (Pa. 2000) (“The second factor weighs against
imposing a duty, as the social utility of a police officer's attempt to apprehend a person
suspected of violating the law is beyond dispute.”).
- 43 -
foreseeability of a specific event.” Kleinknecht v. Gettysburg Coll., 989 F.2d 1360, 1369 (3d Cir.
1993); Suchomajcz v. Hummel Chem. Co., Newark, N.J., 524 F.2d 19, 29 n.8 (3d Cir. 1975) (“The
concept of foreseeability means the likelihood of the occurrence of a general type of risk rather
than the likelihood of the occurrence of the precise chain of events leading to the injury.”).
Here, substantial harm may result should the Association negligently perform its undertaking to
inspect and correct “condition[s] likely to result in a breach of any protective covenants,”
particularly to the extent that unit owners and their guests may rely on the Association’s
oversight. (Doc. 248-14, at 35). Moreover, Pozarlik’s injury falls within the scope of the general
type of risk attendant to the Association’s failure to inspect, as injuries to unit owners and their
invitees is a foreseeable result of leaving a “condition likely to result in a breach of any
protective covenants” uninspected and uncorrected. (Doc. 248-14, at 35). As noted above, the
precise chain of events that caused those injuries to Pozarlik is not dispositive of the
foreseeability analysis in the context of duty. The third factor thus favors the imposition of a
duty on the Association.
iv.
Consequences of Imposing a Duty on Defendants
In regard to the fourth factor, the Court is in agreement with the Association’s
contention that “[t]he consequences of imposing a duty would prove onerous.” (Doc. 257, at 22
(quoting Commerce Bank/Pa. v. First Union Nat. Bank, 911 A.2d 133, 139 (Pa. Super. Ct. 2006)).
Undoubtedly, it is a difficult undertaking for the Association to inspect for “condition[s] likely
to result in a breach of any protective covenants,” particularly to the extent that those
conditions may arise inside an individual unit. (Doc. 248-14, at 35). Furthermore, it is unclear
whether the Association itself or the individual unit owners are in the best position to monitor
the potentially breaching conditions that arise inside the units, as the Association is better
- 44 -
equipped with the tools and maintenance staff needed to perform the task but the unit owners
each possess and control of their own units.
Ultimately, however, the imposition of a duty on the Association is fair because the
Association already agreed to perform this conduct under the terms of the Declaration. (Doc.
248-14, at 35). To the extent that the Association deems it untenable to inspect inside individual
units for conditions that potentially may breach the covenants, it could have drafted the terms
of the Declaration less ambiguously or sought to amend the Declaration. 21 Accordingly, the
Court finds that the consequences of imposing a duty on the Association, although onerous, are
just and therefore the fourth factor weighs in favor of Pozarlik.
v.
Public Interest in the Proposed Solution
The fifth and final factor is the overall public interest in the proposed solution. Here, the
Court agrees with Pozarlik that there would be public interest in any solution that provides
guests to the condominium with protection from the dangers associated with repair work and
other conditions likely to result in breaches to the covenants. (Doc. 277, at 57). Beyond this,
and in contrast to the Association’s claim, the Court does not perceive a significant public
interest in how the responsibility to inspect and correct “condition[s] likely to result in a breach
of any protective covenants” should be allocated between a condo association and the
individual unit orders. (Doc. 248-14, at 35; Doc. 257, at 19). Because the public interest favors
21
As noted above, Pennsylvania courts routinely apply general principles of contract law
when examining condominium declarations. See Country Classics at Morgan Hill Homeowners'
Ass'n, Inc., 780 F. Supp. 2d at 374 & n.45 (collecting cases). One such principle is “that where
ambiguity clouds interpretation[,] the contract in controversy must be interpreted against its
authors.” Sykes v. Nationwide Mut. Ins. Co., 198 A.2d 844, 845 (Pa. 1964).
- 45 -
holding the Association responsible for inspecting and correcting conditions that could breach
the protective covenants and harm unit owners’ guests, the fifth factor also supports the
imposition of a duty.
Accordingly, based on the application of the relevant facts and legal principles of this
case to the factors set forth in Althaus, the Court finds that the Association owed Pozarlik a duty
of care.
2. Causation
The Association also contends that it is entitled to summary judgment on the grounds
that the Association’s alleged breach of duty did not cause Pozarlik’s injury. (Doc. 257, at 2935). “[C]ausation is normally a question of fact for the jury; the question is to be removed from
the jury's consideration only where it is clear that reasonable minds could not differ on the
issue.” Hamil v. Bashline, 392 A.2d 1280, 1285 (Pa. 1978); Anderson v. Bushong Pontiac Co., 171
A.2d 771, 775 (Pa. 1961) (“[T]he question of proximate cause of an accident is almost always
one of fact for the jury.”). If “a plaintiff has established facts from which a jury could reasonably
conclude that defendant's actions were a substantial factor in bringing about the harm, ‘the fact
that some other cause concurs with the negligence of the defendant in producing an injury does
not relieve the defendant from liability unless he can show that such other cause would have
produced the injury independently of his negligence.’” Hamil, 392 A.2d at 1285 (quoting Carlson
v. A. & P. Corrugated Box Corp., 72 A.2d 290, 293 (Pa. 1950)). “[I]n determining whether the
actor's conduct is a substantial factor in bringing about harm,” section 433 of the Restatement
sets forth the following three considerations:
(a) the number of other factors which contribute in producing the harm and the
extent of the effect which they have in producing it;
- 46 -
(b) whether the actor's conduct has created a force or series of forces which are in
continuous and active operation up to the time of the harm, or has created a
situation harmless unless acted upon by other forces for which the actor is not
responsible;
(c) lapse of time.
Restatement (Second) of Torts § 433 (1965); Vattimo v. Lower Bucks Hosp., Inc.,
465 A.2d 1231, 1234 (Pa. 1983) (adopting section 433).
Furthermore, the Pennsylvania Supreme Court has previously considered cases, like the
one at bar, that are based on theories that “the defendant's act or omission failed in a duty to
protect against harm from another source,” and distinguished them from the typical case where
“a defendant’s act or omission set in motion a force which resulted in harm . . . .” Hamil, 392
A.2d at 1286. The court concluded that because these cases involve the difficult task of
weighing “whether the harm would have resulted from the independent source even if
defendant had performed his service in a non-negligent manner,” the cases should be permitted
“to go to the jury upon a less than normal threshold of proof.” Hamil, 392 A.2d at 1287-88. The
court in Hamil reasoned that this lesser standard of proof follows directly from section 323(a) of
the Restatement:
Once a plaintiff has introduced evidence that a defendant's negligent act or
omission increased the risk of harm to a person in plaintiff's position, and that
the harm was in fact sustained, it becomes a question for the jury as to whether
or not that increased risk was a substantial factor in producing the harm.
Hamil, 392 A.2d at 1286 (citing Restatement (Second) of Torts § 323 (1965)).
Although section 323 cases and the Hamil standard are most commonly seen in the context of
medical malpractice and wrongful death suits, section 323 also has been applied to cases
involving the failure to inspect construction work and landlord liability. Neal v. Bergland, 646
F.2d 1178, 1184 (6th Cir. 1981) (holding that a federal agency, the Farmers Home
Administration, could be held liable for negligence under section 323 where it voluntarily
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undertook to inspect and supervise the construction of plaintiff’s house but failed to identify
numerous defects), aff'd sub nom. Block v. Neal, 460 U.S. 289 (1983); cf. Feld v. Merriam, 485 A.2d
742, 747 (Pa. 1984) (“When a landlord by agreement or voluntarily offers a program to protect
the premises, he must perform the task in a reasonable manner and where a harm follows a
reasonable expectation of that harm, he is liable.”).
Pozarlik’s theory of liability is that the Association failed to inspect and monitor for
“condition[s] likely to result in a breach of any protective covenants,” which, if done correctly,
would have minimized the likelihood that the Ukrainian workers would remove the propane
heater in an unsafe manner. (Doc. 248-14, at 35). As noted above in regard to the duty analysis,
the theory alleged by Pozarlik is grounded in Restatement section 323 and/or its counterpart,
section 324A. Specifically, Pozarlik presents evidence that the Association assumed a duty
under the Declaration to control and oversee the removal and reconstruction of the deck
attached to Unit 298 “instead of allowing the same contractors who built the unsafe structure
perform this work. (Doc. 277, 58).
Simoncic testified in her deposition that the Association was responsible for the
replacement and maintenance of decks attached to units because they were located on common
property. (Doc. 277-14, at 21). The Association’s maintenance staff repairs and replaces decks
by itself, but also allows unit owners to hire private contractors of their own choosing to do the
work. (Doc. 277-14, at 22-23, 25-26). If a unit owner opts to hire a private contractor, Simoncic
testified that the construction or repair plans must be approved by the Association’s board, and
if approved, the Association’s maintenance staff inspects the work to ensure that it is done
safely and in accordance with the approved plans. (Doc. 277-14, at 26-29). Although Chernov
and Epelboym obtained board approval to demolish and rebuild the deck attached to Unit 298,
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the maintenance staff found that the Ukrainian workers failed to adhere to the board-approved
plan, and that the construction was unsafe and in violation of building regulations. (Doc. 27714, at 30). Upon learning this, Pozarlik argues that the Association had a right and duty under
Article V.G of the Declaration to either carry out the demolition and reconstruction of the deck
itself or to hire a qualified outside contractor to do the work at Chernov’s expense. (Doc. 24814, at 24; Doc. 277, at 58). Not only did the Association permit the same Ukrainian workers to
rebuild the deck, however, but it also failed to monitor the construction work to ensure that it
did not create “condition[s] likely to result in a breach of any protective covenants . . . .” In fact,
even on the day of the explosion maintenance department worker David Kalucki noted that he
heard construction noises such as saws and hammering coming from Unit 298, but did not
inspect or investigate. (Doc. 276-17, at 10).
The Court must apply the evidence laid out by Pozarlik to the considerations used to
determine whether an actor’s conduct is a substantial factor in bringing about harm.
Restatement (Second) of Torts § 433. In regard to the first consideration, Pozarlik cites several
other factors and allegedly negligent actors as contributing to his injuries. Nonetheless, few of
these other factors had as much of an effect in producing the harm because they lacked the
Association’s knowledge of the Ukrainian workers’ alleged incompetence and also lacked the
authority to remove the Ukrainians from the worksite. Thus, on balance, the first consideration
neither weighs in favor nor against a finding that the Association’s conduct was a substantial
factor in bringing about Pozarlik’s injury. In regard to the second consideration, the
Association’s conduct arguably created a force that was in continuous operation up to the time
of the harm, as the Association permitted the Ukrainian workers to rebuild the deck at Unit
298, and the Ukrainians were still there finishing up with painting the deck on the day of the
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explosion. Accordingly, the second factor also reasonably supports a conclusion that the
Association’s conduct was a substantial factor in causing Pozarlik’s injury. The final
consideration is the lapse of time between a defendant’s conduct and the injury. Here, it could
be argued that the lapse in time was minimal because the Association neglected to perform its
continuing duty to inspect the construction work. Even on the day of the explosion, a
maintenance department worker could hear saws and hammering coming from Unit 298 but
neglected to check on the source of the noise. (Doc. 276-17, at 10). The third consideration
therefore also serves to support a finding that the Association’s conduct constituted a substantial
factor in bringing about the harm. Because a reasonable jury may differ on whether the
Association’s conduct was a “substantial factor” in producing Pozarlik’s injuries, the question
of causation is an appropriate issue for a jury to determine.
Beyond section 433, Pozarlik’s tort claim against the Association rests on the even firmer
ground of section 323. Section 323 requires one who undertakes to render services on behalf of
another to act with due care, and imposes liability for harm proximately caused by the actor’s
failure to use due care. Under the rule elucidated in Hamil, a section 323 claim should go before
a jury if a plaintiff can produce evidence that “a defendant's negligent act or omission increased
the risk of harm . . . .” Hamil, 392 A.2d at 1286. In the case at bar, although it cannot be
determined whether the explosion would have still occurred if the Association exercised due
care, Pozarlik has produced sufficient evidence that the Association’s negligence increased the
risk of the explosion. The Association was well within its right under Article V.G of the
Declaration to replace the Ukrainian workers with its own maintenance staff or a qualified
outside contractor to carry out the demolition and reconstruction of the deck. (Doc. 248-14, at
24; Doc. 277, at 58). In failing to replace the Ukrainians with more qualified workers, the
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Association undoubtedly increased the risk of harm. Even if the Association had opted for less
drastic action, there would have been less risk of harm if the Association exercised due care to
inspect the construction work. On the very day of the explosion, an Association maintenance
department worker heard saws and hammering but did not bother to check on the noise. (Doc.
276-17, at 10). Although it is hardly certain that the maintenance worker would have detected
that the heater was improperly disconnected and the gas line left unsecured if he had gone over
to check on the noise, the Association’s failure to inspect the construction activity certainly
increased the risk of harm.
Accordingly, Pozarlik has made a sufficient evidentiary showing that the Association’s
negligence was a substantial factor in causing his injuries.
3. Conclusion
Contrary to their assertions, the Association and Kathleen Simoncic owed a duty of care
to Pozarlik derived from the Association’s Declaration. Furthermore, Pozarlik has presented
enough evidence to create a question for the jury to determine whether or not the Association’s
negligence was a substantial factor in bringing about Pozarlik’s injuries.
Accordingly, the Court denies the Association and Simoncic’s motion for summary
judgment.
IV.
CONCLUSION
For the foregoing reasons, the Court will DENY each party’s motion for summary
judgment. (Doc. 243; Doc. 246; Doc. 247).
An appropriate Order follows.
s/ Karoline Mehalchick
Dated: March 4, 2016
KAROLINE MEHALCHICK
United States Magistrate Judge
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