Ratti v. Wheeling Pittsburgh Steel Corp.

758 A.2d 695

2000 Pa. Super. 239

John RATTI, Jr. and Glenda Ratti, his wife, v. WHEELING PITTSBURGH STEEL CORPORATION v. P.J. Dick Contracting Inc. and Mendel Steel and Ornamental Iron Company and Kaiser Engineers, Inc., ICF Kaiser Engineers, Inc. and ICF Engineers Inc.

Appeal of Mendel Steel and Ornamental Iron Company (At 834).

John Ratti, Jr. and Glenda Ratti, his wife, v. Wheeling Pittsburgh Steel Corporation v. P.J. Dick Contracting, Inc. and Mendel Steel and Ornamental Iron Company and Kaiser Engineers, Inc., ICF Kaiser Engineers, Inc. and ICF Engineers, Inc.

Appeal of P.J. Dick Contracting, Inc. (At 887).

John Ratti, Jr. and Glenda Ratti, his wife, Appellees v. Wheeling Pittsburgh Steel Corporation v. P.J. Dick Contracting Inc., and Mendel Steel and Ornamental Iron Company and Kaiser Engineers, Inc., ICF Kaiser Engineers, Inc. and ICF Engineers Inc.,

Appeal of Wheeling Pittsburgh Steel Corporation (At 956).

Superior Court of Pennsylvania.

Argued March 29, 2000.

Filed August 18, 2000.

Daniel P. McDyer, Pittsburgh, for Mendel Steel and Ornamental Iron

Dennis S. Mulvihill, Pittsburgh, for P.J. Dick Contracting.

M. Richard Dunlap, Pittsburgh, for Wheeling Pittsburgh Steel.

Before DEL SOLE, ORIE MELVIN and BECK, JJ.

ORIE MELVIN, J.:

¶ 1 The present appeals stem from a bifurcated trial wherein a jury allocated negligence among the defendants in the underlying personal injury action and the trial court subsequently determined the parties' respective rights to indemnity. Given the identical factual background and in order to obtain a complete picture of the case, resolution of these three appeals can best be accomplished in a single opinion. ¶ 2 The underlying action arose out of the injuries sustained by John Ratti, Jr. when a saturator vessel exploded at the Wheeling-Pittsburgh Steel Corporation (Wheeling-Pitt) plant located in Follansbee, West Virginia. At the time of the explosion, Mendel Steel and Ornamental Iron Company (Mendel Steel) employed Mr. Ratti as a welder. Mendel Steel was a subcontractor hired by the general contractor, P.J. Dick Contracting, Inc. (P.J. Dick), to work on an extensive repair project at the Wheeling-Pitt plant. Mr. Ratti and his wife instituted this civil action against Wheeling-Pitt, which in turn filed a complaint to join P.J. Dick, Mendel Steel and ICF Kaiser Engineers, Inc. (Kaiser). The complaint to join alleged each Additional Defendant negligently, recklessly, and carelessly caused the injuries sustained by Mr. Ratti and further sought contractual indemnification for any amount recovered by Mr. Ratti from Wheeling-Pitt. Additionally, P.J. Dick cross-claimed for indemnification against Mendel Steel. Wheeling-Pitt next motioned to amend its complaint to join in order to assert a claim for recovery of over one-half million dollars in retroactively increased insurance premiums for the property damage caused by the explosion. This motion and subsequent reconsideration motion were each denied prior to trial.

¶ 3 On December 17, 1993, Wheeling-Pitt settled the Rattis' claim for $1,150,000.00. The Additional Defendants refused to participate in the settlement; therefore, Wheeling-Pitt continued to pursue its claim seeking indemnification against Kaiser, P.J. Dick, and Mendel Steel for the amount of the settlement. The trial was bifurcated pursuant to a Stipulation and Order of Court dated January 27, 1997. The first phase was held before a jury to determine the percentage of negligence, if any, allocable among the remaining Additional Defendants. The jury returned a verdict finding that Wheeling-Pitt was 99% grossly negligent, and P.J. Dick was assigned 1% ordinary negligence. Mendel Steel and Kaiser were found to be without fault.

¶ 4 The second phase of the trial was stipulated to proceed non-jury wherein the trial court was asked to resolve the indemnity claims of Wheeling-Pitt against P.J. Dick as well as P.J. Dick's indemnity claim against Mendel Steel. On April 22, 1997, the trial court issued a Memorandum Opinion and Order of Court finding P.J. Dick was required to indemnify Wheeling-Pitt in the amount of $1,150,000.00 pursuant to the indemnification clause contained in the Wheeling-Pitt/P.J. Dick contract. The court further held Mendel Steel was not liable for indemnification to either Wheeling-Pitt or P.J. Dick.

¶ 5 P.J. Dick filed a motion for post-trial relief requesting either judgment notwithstanding the verdict (JNOV) or alternatively, a new trial with respect to the jury verdict in Phase I of the trial. Further, P.J. Dick filed various exceptions to the court's rulings on the indemnity claims in Phase II of the trial. Wheeling-Pitt filed a motion for post trial relief seeking JNOV, or in the alternative, a new trial on the issue of gross negligence. Wheeling-Pitt also sought reconsideration of the court's denial of its motion to amend its complaint to join seeking to increase the damage award based on a retroactive increase in its insurance premium occasioned by the property loss sustained in the explosion. Additionally, Wheeling-Pitt asked the court to mold the verdict to include prejudgment interest from the date of settlement. Despite having received a favorable verdict in both phases of the trial, Mendel Steel also filed a motion for post-trial relief. By Order of Court dated April 21, 1999, all post-trial motions were denied. Thereafter, on May 19, 1999, Judgment was entered. The instant appeal filed by P.J. Dick and the cross-appeals of Wheeling-Pitt and Mendel Steel followed.

CROSS-APPEAL OF MENDEL STEEL (834 WDA 1999)

¶ 6 Mendel Steel has presented the following three issues:

1. WHETHER THE TERMS OF AN ALLEGED SUBCONTRACT THAT FAILED TO EXPRESSLY WAIVE TORT IMMUNITY IS UNENFORCEABLE ON ITS FACE AGAINST THE EMPLOYER OF AN EMPLOYEE INJURED BY A THIRD PERSON'S NEGLIGENCE?

2. WHETHER THE LAW OF PENNSYLVANIA SHOULD APPLY TO AN ALLEGED SUBCONTRACT WHICH PURPORTS TO HAVE BEEN NEGOTIATED AND ENTERED INTO IN PENNSYLVANIA AND WHERE THE PARTIES TO THE PURPORTED SUBCONTRACT HAVE PRINCIPAL OFFICES LOCATED IN PENNSYLVANIA, BUT THE ACCIDENT AND WORK OCCURRED IN WEST VIRGINIA?

3. WHETHER WHEN ENGAGED IN ABNORMALLY DANGEROUS ACTIVITY, ATTEMPTS TO EXCULPATE BY INDEMNIFICATION PROVISIONS SHOULD BE FOUND AGAINST PUBLIC POLICY?

Mendel Steel's brief at 3.

¶ 7 Preliminarily, we must examine whether Mendel Steel's cross-appeal is properly before us. 42 Pa.R.A.P., Rule 501, provides:

Except where the right of appeal is enlarged by statute, any party who is aggrieved by an appealable order, or a fiduciary whose estate of trust is so aggrieved, may appeal therefrom.

Pa.R.A.P. 501. A party is "aggrieved" when the party has been adversely affected by the decision from which the appeal is taken. Green v. SEPTA, 380 Pa.Super. 268, 551 A.2d 578, 579 (1988); Clairton Corp. v. Chicago Title Ins., 438 Pa.Super. 488, 652 A.2d 916, 921 (1995). A prevailing party is not "aggrieved" and therefore, does not have standing to appeal an order that has been entered in his or her favor. Id. See also, Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 191, 346 A.2d 269, 280 (1975); Clairton Corp., 652 A.2d at 921; Green v. SEPTA, 551 A.2d at 579.

¶ 8 The record reflects the judgment appealed from was entered in favor of Mendel Steel. The trial court found Mendel Steel was not liable for indemnity to either Wheeling-Pitt or P.J. Dick. Since Appellant was a prevailing party in the court below, it is not "aggrieved" within the meaning of the rule. It may not, therefore, bring this appeal. Accordingly, we quash Mendel Steel's cross-appeal.

APPEAL OF P.J. DICK (No. 887 WDA 1999)

¶ 9 P.J. Dick presents the following six issues:

1. WHETHER P.J. DICK IS REQUIRED TO INDEMNIFY WHEELING-PITTSBURGH STEEL CORPORATION (`WHEELING-PITTSBURGH') FOR WHEELING-PITTSBURGH'S GROSS NEGLIGENCE?

2. WHETHER THE LOWER COURT ERRED IN DENYING P.J. DICK'S PROPOSED POINTS FOR CHARGE 3 AND 4, RELATING TO DEFINITIONS OF THE TERMS `RECKLESSNESS' AND `WANTON MISCONDUCT'?

3. WHETHER P.J. DICK'S DUTY TO INDEMNIFY, IF ANY, WAS PASSED THROUGH TO MENDEL STEEL AND ORNAMENTAL IRON COMPANY (`MENDEL STEEL') BY VIRTUE OF THE PROVISIONS OF THE SUBCONTRACT BETWEEN P.J. DICK AND MENDEL STEEL AND BY VIRTUE OF THE FEBRUARY 28, 1996 OPINION AND ORDER OF JUDGE WETTICK?

4. WHETHER P.J. DICK IS REQUIRED TO INDEMNIFY WHEELING-PITTSBURGH WHERE WHEELING-PITTSBURGH'S GROSS NEGLIGENCE AND THE EXPLOSION WHICH

CAUSED THE INJURIES DID NOT ARISE OUT OF P.J. DICK'S WORK?

5. WHETHER P.J. DICK IS ENTITLED TO JUDGMENT N.O.V. IN FAVOR BECAUSE: (a) THERE WAS NO EVIDENCE PRESENTED AT TRIAL WHICH WOULD IMPOSE ANY DUTIES ON P.J. DICK WITH RESPECT TO THE STEAM PURGE; (b) THERE WAS NO EVIDENCE AT TRIAL TO SUPPORT ANY THEORY OF NEGLIGENCE OR LIABILITY AGAINST P.J. DICK; AND, (c) THERE WAS NO EVIDENCE AT TRIAL THAT ANY ALLEGED NEGLIGENT CONDUCT BY P.J. DICK WAS A SUBSTANTIAL FACTOR IN CAUSING THE EXPLOSION?

6. WHETHER P.J. DICK IS ENTITLED TO A NEW TRIAL BECAUSE THE JURY'S FINDINGS THAT P.J. DICK WAS ONE PERCENT (1%) NEGLIGENT AND THAT P.J. DICK'S CONDUCT WAS A SUBSTANTIAL FACTOR IN CAUSING THE EXPLOSION, WERE AGAINST THE WEIGHT OF THE EVIDENCE?

P.J. Dick's Brief at 5-6.

¶ 10 The contract between P.J. Dick and Wheeling-Pitt containing the disputed indemnification provision is in the form of a standard Wheeling-Pitt purchase order dated March 19, 1991. The relevant portion at paragraph 12 provides:

Seller [P.J. Dick] hereby assumes the entire and full responsibility and liability for any penalties and for any and all claims, damages, injury, loss and expense of any kind or nature whatsoever to all persons or entities (including, but not limited to, the employees of [Wheeling-Pitt], of [P.J. Dick] and/or any subcontractor) and to all property, arising out of or in any manner resulting from the execution of the work provided for in this contract and work incidental thereto, or occurring in connection therewith, whether the same

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