J-A29026-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RICHARD MCCURDY AND SANDY 

MCCURDY, HUSBAND AND WIFE 

Appellants

v.

C&K INDUSTRIAL SERVICES INC., A 

CORPORATION OR OTHER SIMILAR 

BUSINESS ENTITY; GREYCOR 

INDUSTRIAL CONSTRUCTORS, INC., 

A CORPORATION OR OTHER SIMILAR 

BUSINESS ENTITY; UNITED STATES 

STEEL CORPORATION, A 

CORPORATION OR OTHER SIMILAR 

BUSINESS ENTITY

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 319 WDA 2021

Appeal from the Order Dated February 18, 2021

In the Court of Common Pleas of Allegheny County Civil Division at 

No(s): GD-14-001586, 

GD-14-001586

BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED: JUNE 28, 2022

Richard McCurdy (McCurdy) and Sandy McCurdy (collectively, 

Appellants) appeal from an order of the Court of Common Pleas of Allegheny 

County (trial court) granting summary judgment to C&K Industrial Services, 

Inc. (C&K) because the record was devoid of any disputed question of 

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* Retired Senior Judge assigned to the Superior Court.
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material fact with respect to Appellants’ civil claims sounding in negligence.1 

We affirm.

I.

Graycor Industrial Constructors, Inc. (Graycor)

2 was the general

contractor for the construction of a new coke battery at U.S. Steel’s Clairton 

Works. The construction of those flues for the new coke battery created a 

significant amount of dust and Graycor hired C&K to provide industrial 

vacuum trucks and hoses to assist in the removal of the dust. It supplied 

two trucks containing vacuum machines and flexible hoses that ran from the 

truck to the area several feet away to be vacuumed. (Deposition of James 

Ott, R. 139a.)

3

 There, the hose was attached by C&K to a “Safety T.”4 

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1 Sandy McCurdy raised claims concerning loss of consortium. See Complaint, 

5/13/14, at ¶¶ 68-70. However, these claims are derivative of Richard 

McCurdy’s injuries. Id. at ¶ 70 (“By reasons of the injuries sustained by 

Richard McCurdy, Mrs. McCurdy has been and will be in the future deprived of 

his support, society, companionship, love, solace, consortium, services and 

more . . . .”). Accordingly, our analysis focuses upon negligence.

2 While the caption states “Greycor,” the correct spelling is “Graycor.”

3 For the convenience of the parties, we cite to the reproduced record.

4 A “Safety T” is a piece of metal piping that has three openings and is shaped 

like an upside-down “T.” The “Safety T” sits on the floor. A separate hose is 

connected to the opposite side of the inverted top of the “T.” That piece of 

hose is then run over to the top of the flue to be vacuumed. The “leg” of the 

“T,” sticking up from the ground, has a removable cover on it. When in place, 

the cover completes the vacuum. When removed, the cover breaks the 

vacuum and eliminates the suction. The cover could be removed to break the 

(Footnote Continued Next Page)
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Graycor employees vacuumed the flue and had complete control of and 

responsibility for the vacuuming process. (Graycor Letter of March 16, 2012,

Randy Hynek, Safety Director of Graycor Services, R. 502a-504a.)

Graycor employed, among others, McCurdy as a bricklayer to construct 

and vacuum the flues. During safety training, all workers, including 

McCurdy, were informed that on occasion, there would be small staticelectricity “shocks” from industrial vacuuming. To alleviate the shocks, U.S. 

Steel/Graycor electricians attached special green tags to the vacuum 

equipment to certify that the equipment had been properly grounded. If the 

“grounds” were not green-tagged, the equipment could not be used. To 

assist in the vacuuming of the materials, Graycor purchased and installed a 

two-inch-wide, 17-foot-long ridged polyvinyl chloride (PVC) pipe and 

attached it with duct tape to the end of the C&K hoses. The hoses were 

connected to and powered by a C&K vacuum that grounded the flexible hoses

and allowed the workers to reach down into the deep flues to vacuum the 

dust out from above.

On February 7, 2012, McCurdy was vacuuming dust and other debris 

with the 17-foot PVC pipe purchased and installed by Graycor. While 

McCurdy was operating the vacuum, “a 17-foot bolt of lightning” traveling 

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suction in case of emergency, such as a piece of the worker’s clothing being 

caught in the suction. (Deposition of James Ott, R. 148a-149a.)
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“parallel” to the PVC pipe extension leapt from the chimney and struck him 

in the hands, blackening the ring and pinky fingers on each of his hands. He 

experienced immediate and intense pain. (Deposition of Richard McCurdy, 

R. 87a.) He was transported to a hospital and, following treatment, was 

released and assigned to light-duty.

To recover damages for his injuries, McCurdy brought suit against U.S. 

Steel, Graycor and C&K.5 See Complaint, 5/13/14, at ¶¶ 24-38. As to C&K, 

McCurdy alleged that it had negligently designed, assembled, monitored and 

operated the vacuuming operation and failed to adequately warn users of 

the vacuuming system of the dangerous nature of the same. He further 

alleged C&K violated the industry safety practices, trade practices and 

standards of care which are generally required and accepted within the 

construction industry. McCurdy asserted that C&K had “acted negligently in 

permitting workmen to perform tasks at the work site in a manner which 

violated the industry safety practices, trade practices and standards of care 

which are generally required and accepted within the construction industry.” 

Id. at ¶ 34. He alleged that as a result of his injuries, he could no longer 

work as a bricklayer because he was experiencing pain, numbness and 

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5 McCurdy’s claims against both U.S. Steel and Graycor were ultimately settled 

and discontinued by leave of the trial court.
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tingling in both hands and had pain radiating from his right hand into his 

arm.

II.

After lengthy discovery, C&K filed a motion for summary judgment 

arguing that McCurdy had failed to establish a prima facie case of negligence 

because he had not offered any evidence or testimony that C&K breached 

any duty of care it owed to him or that C&K’s performance and equipment 

on this job were in any way substandard. McCurdy responded that C&K 

breached its duty because it should have known that attaching PVC pipe to 

the vacuuming system was dangerous and posed a danger to the workers 

involved in the project.

The trial court granted summary judgment6 and dismissed McCurdy’s

claims against C&K, finding that:

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6 As a general matter, summary judgment is only appropriate in “those cases 

where the record clearly demonstrates that there is no genuine issue of 

material fact and that the moving party is entitled to judgment as a matter of 

law.” Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010); 

see also Pa.R.C.P. 1035.2. Our standard of review in the context of summary 

judgment is well-established under Pennsylvania law:

When considering a motion for summary judgment, the trial court 

must take all facts of record and reasonable inferences therefrom 

in a light most favorable to the non-moving party. In so doing, 

the trial court must resolve all doubts as to the existence of a 

genuine issue of material fact against the moving party, and, thus, 

may only grant summary judgment where the right to such 

judgment is clear and free from all doubt. On appellate review, 

then, an appellate court may reverse a grant of summary 

(Footnote Continued Next Page)
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[McCurdy] present[ed] no reasonable theory as to how C&K was 

negligent in the use or the assembly of their equipment. The 

Plaintiffs allege no particular risk with said equipment and present 

no OSHA findings that would substantiate allegations of the same. 

To allow the [McCurdy] to proceed against this defendant would 

provide a jury empaneled with only enough information to guess 

or speculate as to what standard of care was possibly breached.

Trial Court Opinion, 8/10/20, at 11.

On March 4, 2021, Appellants filed a timely notice of appeal. 7 The trial 

court did not order Appellants to file a concise statement of errors complained 

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judgment if there has been an error of law or an abuse of 

discretion. But the issue as to whether there are genuine issues 

as to any material fact presents a question of law, and therefore, 

on that question our standard of review is de novo. This means 

we need not defer to the determinations made by the lower 

tribunals.

Summers, supra (cleaned up). We also note that “[t]o the extent that this 

Court must resolve a question of law, we shall review the grant of summary 

judgment in the context of the entire record.” Id.

7 On June 19, 2020, Appellants filed their first notice of appeal purporting to 

be from the trial court’s April 17 and May 14, 2019 orders awarding summary 

judgment to C&K and denying Appellants’ request for a determination of 

finality. However, an issue impacting appealability arose when C&K refused 

to consent to the discontinuance of the claims against U.S. Steel and Graycor. 

See Pa.R.C.P. 229(b)(1) (“[A] discontinuance may not be entered as to less 

than all defendants except upon the written consent of all parties or leave of 

court upon motion of any plaintiff or any defendant for whom plaintiff has 

stipulated in writing to the discontinuance.”). Consequently, Appellants filed 

a motion seeking leave to discontinue its claims against U.S. Steel and 

Graycor. The trial court concluded it could not rule on the motion for

discontinuance due to Appellants’ pending appeal. See Order, 8/5/20, at 1; 

Pa.R.A.P. 1701(a) (“[A]fter an appeal is taken . . ., the trial court . . . may no 

longer proceed further in the matter.”). On September 10, 2020, this Court 

quashed that appeal. Appellants responded by filing a second motion to 

discontinue its civil claims against U.S. Steel and Graycor. C&K filed a 

(Footnote Continued Next Page)
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of on appeal pursuant to Pa.R.A.P. 1925(b) in response to this second notice 

of appeal and refiled the Pa.R.A.P. 1925(a) opinion it had filed in the initial 

appeal.

Appellants raise two issues on appeal:

I. Whether summary judgment was improperly granted by the 

trial court when the evidence of record shows that [C&K] 

negligently performed industrial vacuuming services by failing to 

safely design or assemble vacuuming system and/or failed to 

advise in the design and assembly of a vacuuming system that 

was dangerous as a static electric build-up was created within the 

pneumatic conveying transport or piping system which caused 

injury to McCurdy.

II. Whether summary judgment was improperly granted by the 

trial court when the evidence of record shows that [C&K] 

negligently failed to suspend operation of the pneumatic 

conveying transport or piping system when workers were shocked 

in order to properly check that the entire transport system was 

adequately and properly grounded and therefore exposed 

McCurdy to a dangerous condition which caused his injury.

Appellants’ Brief at 4 (cleaned up). Although stated as separate claims, both 

issues essentially challenge the trial court’s determination that the absence of 

evidence of negligence by C&K entitled it to summary judgment. Accordingly, 

we will address these claims collectively.

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competing motion arguing that it would be prejudiced if a partial 

discontinuance was granted. On February 24, 2021, the trial court filed orders 

granting Appellants’ request for a partial discontinuance. This appeal 

followed.
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III.

Appellants contend that summary judgment was improperly granted

because there is evidence in the record that,

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if believed at trial, established 

that C&K violated its duty of care by negligently providing industrial 

vacuuming services that allowed static electricity to build up, causing 

McCurdy’s injuries. They further argue that C&K negligently allowed the 

vacuuming to continue after several workers sustained a static shock before 

McCurdy was injured.

To make out a negligence claim, Appellants must establish: (1) a duty 

to conform to a certain standard for the protection of others against 

unreasonable risks; (2) the defendant’s failure to conform to that standard; 

(3) a causal connection between the conduct and the resulting injury; and (4) 

actual loss or damage to the plaintiff. Jones v. Plumer, 226 A.3d 1037, 

1039-40 (Pa. Super. 2020) (citing Brewington for Brewington v. City of 

Philadelphia, 199 A.3d 348, 355 (Pa. 2018)). The standard used for the 

protection of others is always one of “reasonable care,” but the care which is 

reasonable to require varies with and is proportionate to the danger involved 

in the act. Put simply, “[t]he greater the danger, the greater the care which 

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8 However, “[t]he burden of the non-moving party where summary judgment 

is requested is not the same as the burden during a trial of the issues, it need 

only be shown that there is a genuine issue as to any material fact.” Prince 

v. Pavoni, 302 A.2d 452, 454 (Pa. Super. 1973).
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must be exercised.” Stewart v. Motts, 654 A.2d 535, 537 (Pa. 1995) (citing 

RESTATEMENT (SECOND) OF TORTS, § 298 comment b (1965)).

Taking this “heightened” duty of care together with certain provisions of 

the contract between Graycor and C&K, Appellants contend that C&K breached 

it duty of care because the contract places the onus on C&K to ensure that 

anyone working on Graycor’s project is not injured using C&K’s equipment.

Under Pennsylvania law, “[a] party to a contract has two duties: a contractual 

duty and a legal duty to act without negligence towards both the other party 

to the contract and third parties.” Weiser v. Bethlehem Steel Corp., 508 

A.2d 1241, 1245 (Pa. Super. 1986) (collecting cases).

In the contract for services between Graycor and C&K, Graycor was 

identified as the “Contractor” and C&K was identified as the “Subcontractor.” 

C&K agreed to “[p]rovide vacuum and other industrial services as directed.”

(Shortform Subcontract, R. 117a.) C&K was also required to “provide the 

necessary competent supervision, labor, material, equipment, tools, facilities,

and all other requirements for performing the below Work in accordance with 

the Subcontract documents.” Id.

Appellants identify several contract provisions that they contend impose 

duties on C&K to require it to ensure that no one was injured when its vacuum 

truck and equipment was involved. First, the “Safety & Health” provision

contained in the Standard Terms and Conditions provides that:

Contractor [Graycor] does not assume responsibility for 

Subcontractor’s [C&K] construction means, methods, and 
J-A29026-21

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techniques in performing the Work. As an expert in its Work, 

[C&K] agrees, as to its Work, it is (a) solely responsible for 

the prevention of accidents to its employees and its subsubcontractors’ employees arising out of the performance of 

its Work, and (b) primarily responsible for the prevention of 

accidents to others who happen to be potentially exposed to 

hazards arising out of the Work as it is being performed.

Id. (emphasis added.)

Appellants contend that this provision, coupled with other provisions in 

the Safety and Work Rule Attachment,

9

imposed a duty of care on C&K 

because it was “primarily responsible for the prevention of accidents to others 

who happen to be potentially exposed to hazards arising out of the Work as it 

is being performed.” Id. They argue that once it was known and obvious that 

several workers sustained a static shock during the vacuuming operation, C&K 

had a duty not to allow the vacuuming to continue. It should have been aware 

that the situation was dangerous and demanded the system be reviewed and 

redesigned for the safety of the workers involved, and it should ceased 

operations until that occurred.

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9 Paragraph 1.2 of the attachment requires that the Subcontractor “have its 

own safety programs, safety procedures, safety equipment, safety personnel, 

and [] fully adhere to contractual, state, and or federal OSHA and other health 

and safety requirements as applicable.” (See Safety & Work Rules 

Attachment, ¶ 1.2, R. 120a.) Paragraph 1.5 requires the Subcontractor to 

designate a “competent person” as required by OSHA for worksite inspection 

and “[a]ssured equipment grounding conductor programs.” (Id. ¶ 1.5, R. 

120a.)
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Under this provision, in subsection (a), C&K agreed to be solely 

responsible for the prevention of accidents to its employees and to its subsubcontractors’ employees. However, McCurdy was employed by Graycor, the 

Contractor, and is not covered by this subsection. Under subsection (b), C&K 

is primarily responsible for the prevention of accidents but only for hazards 

arising out its “Work.” The question, then, is whether there is any evidence 

in the record that C&K was negligent in the performance of its “Work.”

IV.

At the outset, C&K’s defined “Work” under the contract was to provide 

vacuum trucks and flex hoses. Graycor had complete control of and 

responsibility for the vacuuming process itself and its employees carried out 

that process. It is undisputed that McCurdy was injured in carrying out 

Graycor’s work, not C&K’s Work under the contract. It is also undisputed that 

Harold Toh, a Graycor supervisor, directed and oversaw the attaching of the

piece of rigid ungrounded PVC pipe to the end of the flexible hose. (McCurdy 

Deposition, R. 86a.) Larry Ray Waltermire, a fellow bricklayer employed by 

Graycor, also testified that Graycor purchased the PVC pipe and that one of

its foremen duct-taped the pipe to the C&K grounded pipe. (Waltermire 

Deposition, R. 412a.) Nothing in the record establishes that C&K or its 

employees failed to do something they were supposed to or that its equipment 

was in any way deficient in the performance of its “Work.”
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Nonetheless, Appellants contend that there was evidence of negligence 

of record in an affidavit provided by Appellants’ expert, professional engineer 

John G. Green, II. (See Affidavit, R. 457a-464a.) Green opined that the use 

of PVC pipe in the vacuum system provided, constructed, maintained and 

supervised by C&K constituted a significant deviation from professional 

standards promulgated by the National Fire Protection Association (NFPA).

Though he did not claim to have examined any of the actual equipment at 

issue in this case nor any exemplar equipment, Green stated in relevant part:

• “The incident industrial vacuum truck pneumatically conveyed 

the mortar dust from the flue of C battery into the holding tank 

on the truck using non-conductive hoses as the transport system.”

(Affidavit, ¶ 19, R. 459a.)

• “The PVC Flex hose was non-conductive material. Nonconductive material should not be used in pneumatic systems to 

transport powdered materials, such as mortar dust, due to the 

potential static charge build-up within the transport system. If 

non-conductive flexible hose is required it should contain a spiral 

wire specifically designed to dissipate the static electric charge to 

the ground.” (Affidavit, ¶ 21, R. 460a (citations omitted).)

• “It should have and would have been apparent to a sophisticated 

supplier of industrial vacuum services, such as C&K that 

preventing a spark hazard due to static electricity build-up in the 

transport system, whether to prevent the ignition of combustible 

dust or vapors or to prevent static shock to a worker is necessary, 

and that grounding and bonding of the entire transport system, 

including any attachments and hoses used to facilitate the 

vacuuming operation is required.” (Affidavit, ¶ 24, R. 461a-62a

(citations omitted).)

• “While C&K may have provided grounding for the incident 

vacuum truck, the entire transport system was not adequately 

bonded and grounded as required by NFPA 77-2005.” (Affidavit, 

¶ 25, R. 462a.)
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• “Once the transport system piping or hoses had been installed, 

a continuity check of the bonding and grounding should have been 

performed by C&K to verify the system resistance to ground is not 

greater than 10 ohms. Periodic checks, usually at the start of 

every shift, should also be performed by C&K to verify the integrity 

of the system has not been compromised.” (Affidavit, ¶ 26, R.

462a-63a (citations omitted).)

• “The failure of C&K to follow the industry accepted 

recommendations established by NFPA 77-2005 Standard to 

provide bonding and grounding of the transport system and truck 

deprived McCurdy [of] the protections afforded by those 

recommendations and was a cause of the injury to McCurdy. 

(Affidavit, ¶ 27, R. 463a.)

However, just because an expert opines something does not create a 

material question of fact; there must be evidence in the record upon which 

the opinion is based. See Pa.R.E. 705 (“If an expert states an opinion the 

expert must state the facts or data on which the opinion is based.”). In this 

case, as elucidated in C&K’s brief, Green’s opinion is at variance with the 

uncontroverted evidence of record or appears to be based on his assumption 

that because an accident occurred involving C&K equipment, C&K must be 

negligent.10

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10 “The mere happening of an accident or injury does not raise an inference 

or presumption of negligence, nor even make out a prima facie case of 

negligence. Rather, the plaintiff must produce evidence to support his version 

of the incident; theories as to what may have transpired in an automobile 

accident may not be employed as a substitute for such evidence.” Churilla 

v. Barner, 409 A.2d 83, 85 (Pa. Super. 1979) (internal citations omitted). 

See also Hamil v. Bashline, 392 A.2d 1280, 1284 (Pa. 1978); 

Commonwealth v. King, 444 A.2d 1294, 1295 (Pa. Super. 1982).
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As C&K points out, Green stated multiple times that the flexible vacuum

hose provided by C&K was “non-conductive material.” (Affidavit, ¶¶ 19, 21, 

R. 459a-60a.) He goes on to declare that if a non-conductive flexible hose is

used, “it should contain a spiral wire specifically designed to dissipate the

static electric charge to the ground.” (Affidavit, ¶ 21, R. 460a.) Contrary to 

that statement, though, the uncontroverted evidence of record established

that C&K’s hose did have the spiral wire. A letter to OSHA from Randy Hynek,

Safety Director of Graycor, stated:

The equipment set-up included the vacuum truck (grounded), 6”

and 3” dia. corrugated polyethylene hose with embedded

wire, safety “T” (emergency shut-off valve), and 1 1⁄2” PVC pipe

taped to the 3 x 1 1⁄2” reducer.

(Graycor Letter of March 16, 2012, Randy Hynek, Safety Director of Graycor

Services, R. 502a-504a (emphasis added).)

C&K also points out that in paragraph 24 of his affidavit, Green stated

that C&K should have known that “grounding and bonding of the entire 

transport system . . . is required.” (Affidavit, ¶ 24, R. 461a-62a.) However, 

Green’s affidavit does not cite any evidence that C&K did not know it should 

have grounded and bonded the system, nor that C&K failed to carry out any 

duty it had to ground and/or bond the system.

Green also stated that, “[w]hile C&K may have provided grounding for 

the incident vacuum truck, the entire transport system was not adequately 

bonded and grounded as required by NFPA 77-2005.” (Affidavit, ¶ 25, R.

462a.) He does not cite any evidence in the record establishing that the 
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transport system was not adequately bonded and grounded, nor does any 

evidence in the record support that conclusion. In fact, Graycor’s letter to 

OSHA outlines extensive grounding and bonding efforts made by Graycor.

Further, Green stated in his affidavit that a “continuity check of the 

bonding and grounding should have been performed by C&K to verify the 

system resistance to ground is not greater than 10 ohms,” apparently 

assuming that the continuity checks were not performed. (Affidavit, ¶ 25, R.

462a-63a.) As C&K points out, Green does not point to any evidence in the 

record regarding whether C&K actually conducted continuity checks, nor 

whether C&K was tasked therewith under the contract.

11 He also does not

cite any evidence that the system resistance exceeded the 10-ohm limit at

any time.

Finally, Green states that “[t]he failure of C&K to follow the industry 

accepted recommendations established by NFPA 77-2005 Standard to provide 

bonding and grounding of the transport system and truck deprived McCurdy 

[of] the protections afforded by those recommendations and was a cause of 

the injury to McCurdy.” (Affidavit, ¶ 27, R. 463a.) As C&K notes, Green does 

not point to any evidence showing that it did not follow that particular

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11 In fact, the letter from Graycor to OSHA establishes that Graycor’s 

vacuuming procedure included “[c]ontinuity checks made periodically 

throughout each shift.” (Graycor Letter of March 16, 2012, Randy Hynek, 

Safety Director of Graycor Services, R. 503a.)
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standard. It points out that Green also contradicts his earlier statement in 

paragraph 25 of the affidavit, wherein he said that the truck was grounded.

Because Green’s report does not point to any countervailing evidence in 

the record to support his conclusion that C&K did not act with reasonable care, 

that report alone is insufficient to create a material issue of fact regarding 

C&K’s duty of care. Accordingly, nothing in the record establishes that C&K 

or its employees failed to do something they were supposed to or that its 

equipment was in any way deficient in carrying out its Work under the 

contract. Because Appellants have not established a genuine issue of material 

fact that C&K failed to conform to its duty of care, making it negligently 

responsible for McCurdy’s injuries, the trial court did not err in granting the 

motion for summary judgment.

Order affirmed.

President Judge Emeritus Bender joins the memorandum.

Judge Bowes files a dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/28/2022