J-A12020-17

2017 PA Super 267

BRIAN S. BAIRD AND LAURA BAIRD, 

HUSBAND AND WIFE 

Appellants

v.

PATRICK SMILEY, JR. T/D/B/A TRICOUNTY BUILDERS, A/D/B/A TRICOUNTY GARAGE DOORS, AND 

FAIRMAN'S ROOF & FLOOR 

TRUSSES, INC. A/D/B/A FAIRMAN'S 

ROOF TRUSSES, INC.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1251 WDA 2016

Appeal from the Order Entered July 26, 2016

In the Court of Common Pleas of Cambria County

Civil Division at No(s): 2012-2746

BEFORE: OLSON, J., SOLANO, J., and RANSOM, J.

OPINION BY RANSOM, J.: FILED AUGUST 18, 2017

Appellants, Brian and Laura Baird, appeal from the order entered July 

26, 2016, denying their motion to remove the entry of nonsuit as to Appellee 

Patrick Smiley, Jr. t/d/b/a Tri-County Builders, a/d/b/a Tri-County Garage 

Doors, following a jury trial that resulted in a $501,107.41 verdict in 

Appellants’ favor against Fairman’s Roof & Floor Trusses, Inc. a/d/b/a 

Fairman’s Roof Trusses, Inc.1 We affirm.

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1

“Where a court has entered a judgment of compulsory nonsuit, the appeal 

lies not from the entry of the judgment itself, but rather from the court's 

refusal to remove it.” Vicari v. Spiegel, 936 A.2d 503, 508 n.5 (Pa. Super. 

2007) (citation omitted).
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The relevant facts and procedural history are as follows. Roger Grow 

entered into a contract with Appellee Patrick Smiley, Jr. of Tri-County 

Builders (“Smiley”) to act as general contractor for the construction of a

large pole building on Grow’s property (“the Grow job”). Smiley hired Chris 

Fisher of Chris Fisher Construction as the primary subcontractor to supply 

labor and supervise the building of the structure. Fisher hired Appellant 

Brian Baird to work as a laborer/carpenter. Smiley introduced Fisher to 

Grow as the primary builder. Notes of Testimony (N.T.), Smiley, 6/29/2016, 

at 3-9 (“N.T. Smiley”). 

Fisher began work in October 2011. See N.T., Fisher, 6/27/2016, at 9 

(“N.T. Fisher”). Smiley did not frequent the jobsite or retain any right of 

supervision. See N.T. Smiley at 9-14. Fisher told Smiley when he was 

ready for certain materials, and Smiley would order them. See N.T. Fisher 

at 8; see also N.T. Smiley at 14-15. 

Smiley ordered the trusses for the roof from Appellee Fairman’s Roof 

Trusses (“Fairman’s”). Smiley provided specifications for the design to 

Fairman’s, including the length, pitch (slope), and spacing between each 

truss. See N.T., Fairman, 6/28/2016, at 10-11 (“N.T. Fairman”). A 

Fairman’s employee sketched a design, which Smiley subsequently 

approved. See id. at 12. Thereafter, Fairman’s manufactured the fortyone, eighty-foot long trusses according to Smiley’s specifications; each truss 

weighing approximately eight-hundred pounds. See id. at 5, 9-10. In 

addition, Fairman’s informed Smiley in writing that an engineering 
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professional should design a bracing plan as well as be on site for the 

installation. Id. at 12-13. 

The laborers and carpenters used Fisher’s equipment and structure 

bracing components to build the pole structure. See N.T. Fisher at 12. 

Fisher and another laborer set the posts on the side of the building, and, 

using a machine, they built the sidewalls, placed 2-by-4’s around the 

outside, and fastened sheet metal for the outside of the building to form the 

exterior structure. Id. at 17-18. Fisher called Smiley to extend the date of 

delivery of the trusses due to rain, which Smiley did. Id. at 11. Smiley 

arranged for the trusses to be delivered by Fairman’s around November 17, 

2011. Id. at 19, 21. 

On delivery day, Mr. Fairman arrived carrying the delivery in a flatbed 

truck; however, one side of the trusses hung off the truck causing all of the 

trusses to bow (bend). Id. at 35. After installing the first two or three sets 

of trusses, Fisher called Smiley. Fisher informed Smiley that his team was 

having a hard time installing the trusses because they were bowed. Id. at 

36-37. Smiley told Fisher to do his best to get the trusses up. Id.

The bows in the trusses made them difficult to brace as the building 

progressed and this threw off Fisher’s measurements. Id. at 39. However, 

Fisher did not believe it was his responsibility to hire any engineering 

services for the job. Id. at 31. The original bid sent out for labor by Smiley 

did not advise Fisher to include the cost of an engineer for supervision of the 

bracing of the trusses. Id. at 41. 
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On Friday, November 18, 2011, Fisher’s laborers set twenty trusses. 

Id. at 47. Appellant Baird worked twenty-feet above ground and used 

Fisher’s tools to assist with placement of the majority of the trusses. On 

Monday, November 21, 2011, there were four trusses remaining. Id. at 48. 

On that date, Baird was sitting in the middle of the last truss twenty-feet 

above ground, nailing in the bottom and side braces, when the structure 

collapsed. Id. at 45, 49. The four trusses set that day fell to the ground, 

burying Baird beneath them. Id. at 51. 

Fisher was operating a scissor lift facing the opposite direction when 

he heard a “loud snap.” Id. Fisher scrambled to find a saw to cut Baird out 

of the fallen materials and debris. As a result of the accident, Baird 

sustained serious bodily injuries.

In January 2012, Smiley retained an engineering firm to inspect the 

accident scene, design a bracing plan, and supervise the installation of the 

replacement trusses. The engineering firm’s report found that the bowed 

trusses had been a contributing factor to the collapse of the roof. 

In July 2012, Smiley commenced a civil action in Cambria County 

against Fairman’s Roof Trusses for breach of contract and breach of 

warranty. In response, Fairman’s filed a complaint to join Baird’s employer, 

Chris Fisher t/d/b/a Chris Fisher Construction, as an additional defendant. 

In January 2013, Baird and his wife commenced a separate civil action in 

Westmoreland County against Smiley and Fairman’s for products liability, 

negligent design, premises liability, negligence, and loss of consortium. See
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Baird v. Smiley et al., No. 193-2013 (Westmoreland Cty. filed 1/14/2013). 

Thereafter, Smiley filed a motion to coordinate these complaints based on 

the common questions of law and facts. The motion was granted, and the 

case was transferred to Cambria County for coordination with Smiley’s case 

against Fairman’s and Fairman’s claims against Fisher. Thereafter, Smiley 

filed a cross-claim against Fisher alleging that Fisher was either solely liable 

for the claims asserted by Appellants or required to indemnify Smiley

pursuant to an alleged indemnification agreement between the parties. See

Pa.R.C.P. 1031.1.

The trial court bifurcated the Appellants’ claims against Fisher from all 

claims of liability against Smiley and Fairman’s. The case against Smiley 

and Fairman’s proceeded to a jury trial in June 2016. At the close of 

plaintiffs’ case against all defendants, the trial court granted Smiley’s oral 

motion for nonsuit. See Order, 7/1/2016. On July 1, 2016, the jury 

returned a verdict in Appellants’ favor and against Fairman’s in the amount 

of $501,107.41.

Appellants timely filed a post-trial motion for removal of compulsory 

nonsuit as to Smiley and for a new trial. The court denied relief. Appellants 

filed a notice of appeal and praecipe for entry of final judgement. On August 

22, 2016, a final judgment was entered on the docket to reflect the jury 

verdict. Appellants timely filed a court-ordered Pa.R.A.P. 1925(b) 

statement. The trial court filed a 1925(a) opinion invoking its reasons stated 

on the record on June 30, 2016, in granting Smiley’s motion for nonsuit. 
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See TCO, 10/5/2016, at 3.

On appeal, Appellant presents the following issues:

I. Whether the trial court erred in granting [Appellee] 

Smiley’s motion for compulsory nonsuit where it failed to 

allow Defendant Fairman’s to present its testimony 

evidence, which may have tortiously implicated [Appellee] 

Smiley?

II. Whether the trial court erred relying on the Common Pleas 

case of Zangradi v. Kay Builders in determining that no 

issue of material fact had been presented as to Smiley’s 

control over the installation of the roof trusses?

Appellant's Br. at 4.

First, Appellants contend that the entry of nonsuit in favor of Appellee 

Smiley at the close of Appellants’ case in chief was improper prior to the 

presentation of evidence by all defendants, including Fairman’s potential 

evidence against Smiley. Second, Appellants contend that the court erred in 

relying upon a court of common pleas case in deciding the motion. Both 

issues challenge the propriety of the trial court’s decision to grant nonsuit in 

favor of Smiley in this case. We will address Appellants’ arguments seriatim.

Our standard of review regarding the entry of nonsuit is well settled:

A trial court may enter a compulsory nonsuit on any and all 

causes of action if, at the close of the plaintiff's case against all 

defendants on liability, the court finds that the plaintiff has failed 

to establish a right to relief. Pa.R.C.P. No. 230.1(a), (c); see 

Commonwealth v. Janssen Pharma., 8 A.3d 267, 269 n. 2 

(Pa. 2010). Absent such finding, the trial court shall deny the 

application for a nonsuit. On appeal, entry of a compulsory 

nonsuit is affirmed only if no liability exists based on the relevant 

facts and circumstances, with appellant receiving “the benefit of 

every reasonable inference and resolving all evidentiary conflicts 
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in [appellant's] favor.” Agnew v. Dupler, 717 A.2d 519, 523 

(Pa. 1998). The compulsory nonsuit is otherwise properly 

removed and the matter remanded for a new trial.

Scampone v. Highland Park Care Ctr., 57 A.3d 582, 595–96 (Pa. 2012). 

The appellate court must review the evidence to determine whether the trial 

court abused its discretion or made an error of law. Barnes v. Alcoa, Inc., 

145 A.3d 730, 735 (Pa. Super. 2016). 

In 2001, the Pennsylvania Rule of Civil Procedure governing 

compulsory nonsuit was amended to provide:

(c) In an action involving more than one defendant, the court 

may not enter a nonsuit of any plaintiff prior to the close of the 

case of all plaintiffs against all defendants. The nonsuit may be 

entered in favor of

(1) all of the defendants, or

(2) any of the defendants who have moved for nonsuit if 

all of the defendants stipulate on the record that no 

evidence will be presented that would establish 

liability of the defendant who has moved for the 

nonsuit.

Note: The term “defendants” includes additional defendants.

Pa.R.C.P. No. 230.1.2 The modern trend is that a court may enter nonsuit in 

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2 The amendment superseded the rule formerly known as Rule 2231(h), 

which allowed entry of nonsuit “in favor of any or all defendants.” Cmt. 3, 

Pa.R.C.P. 230.1. The explanatory comment to the new rule states:

This language was inappropriate since under the former rule, as 

Goodrich-Amram 2d § 2231(h):1 points out that a nonsuit may 

be entered only in favor of all defendants and not in favor of 

fewer than all defendants: But if the plaintiff makes out a prima 

(Footnote Continued Next Page)
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favor of one defendant at the close of plaintiff’s case against all defendants 

prior to the presentation of evidence by the defense only if the other 

defendant(s) stipulate on the record that they do not intend to present 

evidence as to the moving defendant’s liability. Pa.R.C.P. 230.1(c). 

Otherwise, the proper procedure for the moving defendant is to seek a 

directed verdict at the end of the trial. See Pa.R.C.P. 2232(d).3

(Footnote Continued) _______________________

facie case against one or more of the defendants, then, as a 

practical matter, there will be no nonsuit proceedings at all. No 

motion can be made by the defendants until all their evidence is 

in. This is, of course not a nonsuit, but a motion for a directed 

verdict.

New Rule 230.1(c) reflects this situation by continuing to provide 

that the court can enter a nonsuit in favor of all defendants. 

However, the rule adds the innovation that the court can enter 

judgment in favor of fewer than all defendants only “if all of the 

defendants stipulate on the record that no evidence will be 

presented that would establish liability of the defendant who has 

moved for the nonsuit.”

Cmt. 3, Pa.R.C.P. No. 230.1. 

3 Rule 2232(d) further clarifies the different procedures to obtain a nonsuit 

as opposed to a directed verdict in multi-defendant litigation.

(d) When a plaintiff joins two or more defendants and the 

evidence does not justify a recovery against all of them, the 

court shall enter a nonsuit or direct a verdict in favor of any 

defendant not shown to be liable either jointly, severally or 

separately, and the action shall continue and determine which of 

the remaining defendants are jointly, severally or separately 

liable with the same effect as though the defendants found to be 

liable were the only ones joined. As in other cases the court 

may enter judgment notwithstanding the verdict in favor of or 

against any of such defendants.

(Footnote Continued Next Page)
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In their first issue, Appellants contend that the court erred in granting 

compulsory nonsuit in favor of Smiley after Appellants had presented their 

evidence as to liability because there was a strong likelihood that Fairman’s 

would present inculpatory evidence against Smiley, who purchased the 

trusses from Fairman’s. Appellants’ Br. at 14 (citing in support Mazza v. 

Mattiace, 425 A.2d 809, 811 (Pa. Super. 1981)). Appellants’ theory 

presented in opposition to the motion for nonsuit was that Fairman’s would 

present evidence that Smiley had a duty to hire an engineer to supervise the 

site from Fairman’s warning to Smiley to hire an engineer to design a plan 

for installing the trusses. See N.T., 6/30/2016, at 15; Appellants’ Post-Trial 

Motion, at ¶¶ 32-34. Appellants also contend that the court erroneously 

relied on Smiley’s assertion that Fairman’s consented to the motion, when 

Fairman’s did not in fact join in Smiley’s motion. Appellant's Br. at 15. 

In response, Smiley contends that the evidence established that Fisher 

was responsible for the truss installation process and that the duty of hiring 

a design professional to ensure proper installation of the trusses was 

delegated to Fisher. See Smiley’s Br. at 30. According to Smiley, 

compulsory nonsuit was proper given that “Fairman’s offered no objection to 

Smiley’s motion for nonsuit.” Smiley’s Br. at 29-30 (citing in support Ptak 

v. Mason Town Men’s Softball League, 607 A.2d 297, 300 (Pa. Super. 

(Footnote Continued) _______________________

Pa.R.C.P. 2232. 
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1992)). Smiley maintains that “if [Appellee] Fairman’s entire case-in-chief 

was based on implicating Appellee Smiley with liability, [Fairman’s] surely 

would have not only taken a position on Appellee Smiley’s motion but would 

have taken a strong opposing position.” Id. 

Appellants are legally correct that it is “improper to grant a nonsuit in 

favor of one defendant before the other defendants have an opportunity to 

present their cases.” Ptak, 607 A.2d at 300. However, “in an action in tort 

there is authority for granting a nonsuit at the close of plaintiff's case in 

favor of one defendant, but only when it is clear that the other defendants 

cannot or will not tortiously implicate the dismissed defendant.” Mazza, 425 

A.2d at 812. The lower court is authorized to grant compulsory nonsuit as 

to one defendant pursuant to Pa.R.C.P. 2232(d) “in favor of any defendant 

shown not to be liable either jointly, severally or separately” following the 

close of the plaintiff’s case where it is clear that the nonmoving defendant 

does not intend to present testimony with respect to liability of the moving 

defendant pursuant to Pa.R.C.P. 230.1. See Ptak, 607 A.2d at 300. 

Fairman’s indicated on the record that it was “not taking a position” on 

Smiley’s oral motion for nonsuit. N.T., 6/30/2016, at 15. The issue is 

whether Fairman’s lack of opposition to the motion was sufficient to satisfy 

the Rule 230.1(c)’s requirement that the court can enter nonsuit in favor of 

one defendant only where all “stipulate on the record that no evidence will 

be presented that would establish liability of the defendant who has moved 
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for the nonsuit.” Pa.R.C.P. 230.1(c)(2). In Ptak, the defendants joined in 

moving defendant’s motion for nonsuit, and the majority of witnesses who 

could present evidence as to liability were already called during plaintiff’s 

case- in- chief. See Ptak, 607 A.2d at 300.

Here, the court found that Appellants had not satisfied their burden of 

proof to sustain a cause of action against Smiley individually based on the 

evidence presented. Fairman’s did not explicitly stipulate on the record that 

it did not intend to present evidence as to Smiley’s liability pursuant to 

Pa.R.C.P. 230.1(c). Notwithstanding, Fairman’s lack of opposition to 

Smiley’s motion suggested that it did not intend to present evidence as to 

Smiley’s liability as part of its defense. Further, Appellants had the 

opportunity to develop a case for liability by examining all of the key 

witnesses during their case-in-chief. 

Based on the record and in light of Fairman’s response, it was 

reasonable for the trial court to conclude under the circumstances that 

Fairman’s did not intend to present further evidence as to Smiley’s liability.4 

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4

Fairman’s has filed no brief in this appeal. There is simply no evidence 

from Fairman’s that it intended to present additional evidence to implicate 

Smiley as to liability. There is no legal authority to support Appellants’ 

position that the form of the nonmoving defendants’ stipulation matters 

under Rule 230.1(c). We decline to delineate such a rule of form with no 

substance. In light of Fairman’s response on the record, we find that it was 

reasonable for the trial court to conclude that Fairman’s did not intend to 

present evidence as to Smiley’s liability. Therefore, the court did not abuse 

its discretion in granting Smiley nonsuit at the end of Plaintiff’s case. 
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For all intents and purposes, the criteria of 230.1(c) were met. Accordingly, 

we discern no abuse of discretion nor error of law in granting Smiley’s 

motion for nonsuit at the close of plaintiffs’ case prior to the presentation of 

Fairman’s evidence.

Second, Appellants contend that the court erred in determining that no 

issue of material fact had been presented as to Smiley’s control over the 

installation of the roof trusses based on Zangrandi v. Kay Builders, 2012 

WL 7801872 (Pa. D. & C. 5th 2012), an unpublished case from the Court of 

Common Pleas of Lehigh County, Pennsylvania. Appellants’ Br. at 17. 

Preliminarily, we note that the court recognized on the record that it was not 

bound by the court of common pleas’ decision. See N.T., 6/30/2017, at 16. 

Further, the court stated on the record that it considered other authorities as 

well, including the cases cited by the parties in their written motions, and it 

specifically referenced this Court’s decision in Birt v. Firstenergy Corp., 

891 A.2d 1281, 1293 (Pa. Super. 2006). Thus, Appellants are incorrect to 

suggest that the court decided the motion solely based on the unpublished 

trial court case. 

At issue is whether Smiley owed a duty to Appellants.5 In order to 

establish that a contractor owed a duty to a subcontractor’s employee, a 

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5

“In order to establish a claim of negligence the plaintiff has the burden of 

proving four elements: 1) a duty or obligation recognized by law; 2) a 

breach of that duty; 3) a causal connection between the conduct and the 

(Footnote Continued Next Page)
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plaintiff must present evidence that a general contractor retained sufficient 

control at the site “over the manner, method, and operative details of the 

work” to be legally responsible for the harm to the plaintiff. Beil v. Telesis 

Construction, Inc., 11 A.3d 456, 466-47 (Pa. 2011); see also

Restatement (Second) Torts § 414 (Am. Law Inst. 1965). 

Appellants contend that they introduced sufficient evidence to

establish an issue of fact as to whether Smiley “retained control over the 

installation of the roof trusses.” Appellants’ Br. at 17. According to 

Appellants, Smiley’s duty was established by the following evidence: (1) 

Fairman’s instructed Smiley to hire an engineer to design an installation 

plan; (2) “Smiley specifically ordered Fisher to continue installing the trusses 

despite being made aware of their defective condition;” and (3) after the 

accident, Smiley hired an engineer to supervise proper installation of the 

roof. Id. at 19-20. They also claim that Smiley had a duty to ensure the 

materials were in good condition and installed correctly. Id. at 22.

In response, Smiley argues that the trial court’s decision to grant 

nonsuit is in accord with established law that “a contractor is not liable for 

injuries resulting from work entrusted to a subcontractor.” Leonard v. 

(Footnote Continued) _______________________

resulting injury; and 4) actual damages.” Kelly v. St. Mary Hosp., 778 

A.2d 1224, 1225 (Pa. Super. 2001) (citation omitted).
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Commonwealth, 771 A.2d 1238, 1240 (Pa. 2001); Smiley’s Br. at 14-15.6 

Under Pennsylvania law, a general contractor does not have a duty to a 

subcontractor’s employee unless the general contractor retained control or a 

right of supervision over the performance of the work. Birt, 891 A.2d at 

1293 (noting that “a right of supervision” means “that the subcontractor is 

not entirely free to do the work in his own way”). Evidence that establishes 

that the contractor fully delegated the task creates a legal situation in which 

“contractors higher in tier no longer had control over the manner in which 

that work was done.” Leonard, 771 A.2d at at 1242. 

In Leonard, our Supreme Court took notice of a contract between the 

steel supply company and contractor that had initially placed responsibility 

on the general contractor, not the subcontractor supervising the actual work. 

Id. The Court found that the existence of such a relationship between the 

supplier and general contractor “does not make that responsibility 

nondelegable; nor does it give [the general contractor] a presumed presence 

at the site or control over the manner in which the subcontractor performed 

its work.” Id.

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6

In Leonard, our Supreme Court reviewed the questions of “whether a 

general contractor or subcontractor who was not ‘present’ at the work site 

may nevertheless be in ‘control’ of the work site pursuant to contract or law 

so as to have a duty to make the site safe, and whether such a contractor or 

subcontractor may delegate such a duty to a subordinate subcontractor.” 

Leonard, 771 A.2d at 1240. 
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To hold otherwise would mean that one could subcontract for the 

performance of work but not successfully delegate the safety 

responsibility that normally accompanies that work. Logically, 

safety responsibility best rests on the subcontractor doing the 

work, for that party is most familiar with the work and its 

particular hazards. [Responsibility goes with authority]. Thus, a 

subcontractor who undertakes a task is in the best position to 

provide for the safe accomplishment thereof, and delegation of 

safety responsibility to that subcontractor does not deviate from 

the contractor's duty.

Id. (internal citations omitted).

Like in Leonard, Fairman’s initially placed the burden of hiring an 

engineer on Smiley when the trusses were supplied to Smiley with the 

instruction to obtain an engineer to design a bracing plan. As in Leonard, 

this assignment of responsibility does not render the responsibility to design 

a bracing plan nondelegable. Leonard, 771 A.2d at 1242.

In this case, the trial court found “no evidence that Smiley controlled 

the manner in which Fisher performed his work.” See N.T., 6/30/2016, at 

20. We agree. Here, Smiley hired Fisher based on his experience in 

building pole barns; Smiley delegated the task of construction and supplying 

labor completely to him. See N.T. Smiley, at 30 (noting that Fisher had 

built twenty pole barns). Smiley did not go to the job site and made no 

attempt to supervise the manner or method in which Fisher did his 

construction work. Id. 

Appellee Fairman was onsite when he delivered the defective trusses 

and observed the difficulties Fisher had with installing them. N.T. Fairman, 

at 35, 37. Fairman and Fisher exchanged dialogue on delivery day over the 
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fact that the bows made them difficult to brace. Id. at 37. Because Fisher 

appeared to be “in charge,” Fairman gave the bracing instructions to Fisher, 

which caused Fisher’s crew to stop putting trusses up and start adding 

bracing. Id. at 38, 40, 42. Fairman told Fisher directly that it is very 

important to follow the “X” bracing instructions to keep the trusses from 

“dominoing.” Id. at 42-43. 

This evidence established that Fisher supervised the safety of Mr. Baird 

and others within his control throughout the installation of the bowed 

trusses. See N.T. Fisher, at 12, 17-18, 39. Fisher was more familiar with 

the safety risks posed by the bowed trusses than Smiley. Id. at 39. Despite 

his experience, Fisher did not think that the trusses would fall or that the 

bowed trusses were dangerous. Id. Fisher could have stopped the work if 

there was a safety issue. Indeed, Fisher testified that he would have 

stopped the work if he believed the trusses were dangerous. Id. at 90. 

Based on the evidence presented, Fisher failed to follow the bracing plan 

provided by Fairman’s and failed to consider the trusses a safety issue. Id.

at 88. Fisher knew he was not following the bracing specifications that 

Fairman had given to him directly. Id. at 91-93. 

Although Fairman never told Fisher that Smiley should retain a 

professional engineer to design the bracing, the evidence established that 

Smiley had delegated the responsibilities of safety onsite to Fisher. Fisher 

exercised total and complete control over the building of the structure. 
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Fisher’s failure to take heed of Fairman’s instructions was the proximate 

cause of Baird’s injuries. 

There is simply no evidence that Smiley controlled the manner in 

which Fisher supervised the Grow project or installation of defective trusses 

supplied by Fairman’s to suggest that Fisher was “not entirely free to do the 

work in his own way.” Beil, 11 A.3d at 467 (quoting Restatement (Second) 

of Torts § 414 cmt. c). Appellants failed to present significant evidence that 

Smiley retained control over the activities onsite “beyond a general right to 

order, inspect, make suggestions, or prescribe alterations or deviations.” 

Beil, 11 A.3d at 467 (emphasis modified). Further, the responsibility for 

safety in this case rested with Fisher, who supervised the installation of the 

trusses. See Leonard, 771 A.2d at 1242. Because the trial court’s findings 

are supported by the record, we discern no abuse of the trial court’s 

discretion or error of law in entering nonsuit in Smiley’s favor. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/18/2017