BLAKENEY et al v. FAROS PITTSBURGH, LLC

Filing 110

ORDER. Defendant-Faros's Motion for Summary Judgment (Doc. 93 ) is DENIED AS MOOT, and the AGPM-Defendants' Motion for Summary Judgment (Doc. 95 ) is DENIED. An order setting expert-discovery and trial deadlines now will issue. Signed by Judge Cathy Bissoon on 12/2/16. (dcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CHIE BLAKENEY and THEODORE
BLAKENEY,
Plaintiffs,
v.
FAROS PITTSBURGH, L.L.C., et al.,
Defendants.

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Civil Action No. 14-437
Judge Cathy Bissoon

ORDER
In light of the “Joint Notice of Settlement of Claims” signed by counsel for Plaintiffs and
Faros (Doc. 105), Faros’s Motion for Summary Judgment (Doc. 93) will be denied as moot.
In addition, the AGPM-Defendants’ (“AGPM’s”) Motion for Summary Judgment (Doc. 95)
will be denied on the merits. AGPM’s assertion that summary judgment is warranted regarding
breach-of-duty is incorrect. Plaintiffs have identified evidence indicating that: problems arose
with the “cams” used by AGPM in installing HVAC panels in the apartment building; several
HVAC panels fell between March 2011 and November 2012; AGPM was aware of this recurring
problem; and that, in addition to any potential preexisting-structural integrity issues, Plaintiffs’
HVAC unit would have been accessed twice-annually for filter changes. See Pls.’ Stmts. of Fact
(Doc. 101) at ¶¶ 12-46 (citing record evidence). The Court disagrees with AGPM’s
“remoteness” arguments, which are for a jury to decide, and issues of material fact remain
regarding the timing of maintenance-visit(s) specifically recalled by Mr. Blakeney (even
assuming, which the Court does not, that such testimony is necessary to a finding of negligence).
Finally, the Court concludes, and therefore holds, that the doctrine of res ipsa loquitur
is unnecessary to Plaintiffs’ surviving summary judgment. Plaintiffs’ showings, if accepted by

the jury, may be viewed as “direct” evidence of negligence. D’Ardenne v. Strawbridge &
Clothier, Inc., 712 A.2d 318, 321 (Pa. Super. 1998) (res ipsa loquitur is implicated when
“there is no direct evidence” of a negligent cause of injury) (citation to quoted source omitted);
see also, e.g., Schoenenberger v. Hayman, 465 A.2d 1335, 1339 (Pa. Commw. 1983) (affirming
verdict against tortfeasor and holding that, “had the [factfinder] not relied upon res ipsa loquitur,
there [also] was direct evidence . . . upon which negligence could be found”). To be clear,
moreover, Plaintiffs may well be permitted to pursue both theories simultaneously. D’Ardenne,
712 A.2d at 324 (explaining, under analogous circumstances, that denying a right to proceed inthe-alternative might “penalize[]” the plaintiff for “making as specific a case of negligence as
possible,” a result inconsistent with “[s]trong” policy considerations) (citation to quoted sources
omitted).1
For all of these reasons, Defendant-Faros’s Motion for Summary Judgment (Doc. 93)
is DENIED AS MOOT,2 and the AGPM-Defendants’ Motion for Summary Judgment (Doc. 95)
is DENIED. An order setting expert-discovery and trial deadlines now will issue.
IT IS SO ORDERED.

December 2, 2016

s\Cathy Bissoon
Cathy Bissoon
United States District Judge

To the extent that AGPM’s decision to file a dispositive motion was not strategically-based,
the Court offers, from a neutral and objective perspective, the following. Denial of summary
judgment was not a close question, and the AGPM Defendants should disabuse themselves of the
notion that Plaintiffs’ liability-related positions are ill-founded.
1

Absent a contrary agreement by all parties, Faros’s settlement with Plaintiffs will not excuse its
participation at trial. See generally 7 Standard Pa. Practice 2d § 39:32 (updated Sept. 2016)
(“[a] discontinuance does not affect the right of [a] defendant to proceed with a . . . cross-claim
. . . against another defendant already filed in the action”).
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