COMER v. AMERICAN TRANSMISSION SYSTEMS, INCORPORATED

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MARC J. COMER ESQ., as Administrator )

Ad Prosequendum and Administrator of the )

)

Estate of CARLOS ABRAHAM MELENDEZ )

HERNANDEZ, a/k/a CARLOS MELENDEZ; )

) Civil Action No. 23-1464

Plaintiff, )

)

v. )

AMERICAN TRANSMISSION SYSTEMS,

INCORPORATED; AMERICAN

TRANSMISSION SYSTEMS,

INCORPORATED, d/b/a FIRSTENERGY;

FIRSTENERGY CORP.; FIRST ENERGY

OF PA, LLC; FIRSTENERGY SERVICE

COMPANY; PENN POWER COMPANY;

PENN POWER; OHIO EDISON; OHIO

EDISON COMPANY; WALLY KRAUSS,

MITCHELL BIASUCCI; MATT

STEINMETZ; MORRIS PAINTING, INC.;

JOHN DOES 1-20; ABC CORPORATIONS

1-20,

Defendants.

MEMORANDUM OPINION

In his First Amended Complaint, Plaintiff Marc J. Comer (“Plaintiff”), as administrator ad

prosequendum and administrator of the estate of Carlos Abraham Melendez Hernandez

(“Melendez”) seeks to address deficiencies in his original complaint that were identified by this

Court at Oral Argument on Defendants’ prior motions to dismiss. The most significant problem

with the original complaint was that it constituted a shotgun pleading. Upon review of the First

Amended Complaint (“FAC”) it is apparent that, though Plaintiff’s amended pleadings are

significantly longer, the FAC bears too close a resemblance to the original complaint without the

necessary curative amendments. For that reason, the Court will grant Defendants’ motions to

dismiss the claims against them, in part with prejudice and in part without prejudice, insofar as it

is not yet totally apparent to this Court that giving Plaintiff one final opportunity to amend would

be futile as to all Defendants.

I. Background

Melendez was working on a “transmission tower painting crew” for Defendant Morris

Painting (“Morris”)1 at a site near 1701 Mohawk School Road in Edinburg, Pennsylvania on

August 30, 2021. (Docket No. 68, ¶ 59). Morris had been hired to paint transmission towers by

Defendant FirstEnergy Service Company (“FESC”). (Docket No. 45-2).2 As the Morris

painters—including Melendez—were working on the morning of August 30th, they felt an

electrical charge, “including hair stand[ing] up.” (Docket No. 68, ¶ 63). Plaintiff alleges that

representatives of Defendant utility companies “were on site at all relevant times controlling the

work, including giving job directions to” the Morris painters, and that they “knew about this

electrical charge … but did nothing other than to tell the painters to keep on painting.” (Id.).

Melendez was electrocuted and killed minutes later. (Id.). After his death, Melendez’s parents

settled a Pennsylvania Workers Compensation Act (“WCA”) claim against Morris. (Docket No.

73-1).

In the case before this Court, Plaintiff is the administrator of Melendez’s estate, of which

the sole beneficiaries are Melendez’s parents. (Docket No. 68, ¶ 3). Plaintiff is pursuing damages

against Morris, and against several electrical utility entities that are alleged to be linked to the

1 Plaintiff alleges that Morris was Melendez’s W2 employer for workers’ compensation purposes.

(Docket No. 68, ¶ 26).

2 The Court may consider documents referenced throughout this Memorandum Opinion that are

outside the pleadings but “integral to or explicitly relied upon in the complaint,” or indisputably authentic

documents attached by Defendants as an exhibit to the extent that Plaintiff’s “claims are based on the

document.” In re Rockefeller Ctr. Props., Inc. Sec. Litig., 184 F.3d 280, 287 (3d Cir. 1999) (cleaned up).

transmission tower painting project that resulted in Melendez’s death, as well as three of those

entities’ employees who are alleged to have participated in the events leading to Melendez’s death.

Defendants moved to dismiss the claims in Plaintiff’s initial complaint, and the Court held

Oral Argument on those motions. (Docket No. 60). The Court then granted those motions and

dismissed all claims without prejudice because the original complaint was a classic “shotgun”

pleading in that, in it, Plaintiff “assert[ed] multiple claims against multiple Defendants without

specifying which of the Defendants [were] responsible for which acts or omissions, or which of

the Defendants the claim [was] brought against.” (Docket No. 72 at 54).

Plaintiff subsequently amended and filed the FAC. (Docket No. 68). In the FAC, Plaintiff

alleges that Defendants American Transmission Systems Inc. (“ATSI”), ATSI doing business as

FirstEnergy, FirstEnergy Corp., First Energy of PA LLC, and FESC are “electrical utility

corporations which do business within Lawrence County, Pennsylvania.” (Id. ¶ 6). Plaintiff

likewise alleges that “Penn Power Company and Penn Power” and “Ohio Edison and Ohio Edison

Company” (id. ¶ 7-8 (emphases omitted)) are “electrical utility corporations which do business in

Lawrence County, Pennsylvania.” (Id.). Plaintiff groups all the utility corporations together as

the “Utility Defendants” in making allegations against them. (Id. ¶ 10).

Many allegations of wrongdoing levied against the Utility Defendants are phrased both in

the collective and in the alternative. Plaintiff alleges that: they “or any one of them … owned the

electricity that killed … Melendez”; they “or any one of them … had a possessory interest in the

electricity that killed … Melendez”; they “or any one of them … had substantial control over the

electricity that killed … Melendez”; they “or any one of them … owned the transmission tower

and/or the associated equipment that … Melendez came in contact with when he was killed”; they

“or any one of them … had a possessory interest in the transmission tower and/or the associated

equipment that … Melendez came in contact with when he was killed”; they “or any one of them

… had substantial control” of such transmission tower and/or equipment; they “or any one of them

… operated the transmission tower, lines[,] and/or associated equipment that … Melendez came

in contact with when he was killed”; they “or any one of them” owned, occupied, and controlled

the land under the transmission tower and associated equipment; and they “or any one of them …

owned and/or occupied the tower painting project” and “had a possessory interest in the tower

painting project” that Melendez was working on when he was killed. (Id. ¶¶ 12-23). Plaintiff

further alleges that the Utility Defendants “or any one of them” exercised “substantial control over

Morris Painting, Carlos Melendez[,] and the tower painting project … Melendez was working on

when he was killed” and that they or “one or more of them, qualified as and are considered an

‘employer’ or ‘supervising agent of an employer’ of … Melendez and Morris Painting.” (Id.

¶¶ 24-25 (emphases in original)). He also alleges that the Utility Defendants (or any one of them)

oversaw the safety compliance of the tower painting project. (Id. ¶ 29).

These collective-and-in-the-alternative allegations are broad. Plaintiff’s more (though not

necessarily sufficiently) specific allegations include that: the Utility Defendants gave OSHA

investigators false and misleading information about Melendez’s death and the tower painting

project (id. ¶ 66); Defendant Wally Krauss (“Krauss”) was onsite as a job inspector for First

Energy/Penn Power (as an employee or contractor) and did not order work stopped when he saw

the painters breaching a minimally acceptable distance from transmission lines (id. ¶¶ 44, 71-73,

209); Krauss instructed workers to continue working when they reported feeling electrical charges

and he gave false information to OSHA investigators (id. ¶¶ 73, 75); Krauss “made sure” painters

painted portions of the towers that “brought [them] well within the minimum distances of the live

parts” (id. ¶ 74); Defendant Mitchell Biasucci (“Biasucci”) saw Melendez and others on the

painting crew get too close to live power lines in the weeks just before Melendez’s death but failed

to use his authority to stop the work or ensure its safety (id. ¶¶ 78-80); and Defendant Matt

Steinmetz (“Steinmetz”) managed health and safety at FirstEnergy and was, among other things,

expected to “actively develop and implement safety programs and policies” but failed to do so (id.

¶ 96).3

In the FAC, these allegations are distilled into five claims: (1) Negligence as to the Utility

Defendants; (2) Negligence as to Biasucci; (3) Negligence as to Steinmetz; (4) Negligence as to

Krauss; and (5) Negligence as to Morris. In support of his negligence claim against the Utility

Defendants, Plaintiff asserts that they “had substantial duties under the law with respect to the

killing quality of its high voltage electricity and associated facilities and equipment.” (Id. ¶ 98).

Plaintiff further alleges that the Utility Defendants breached their duties and that this resulted in

the death of Melendez. (Id. ¶ 99). Among their alleged failings, Plaintiff alleges that the Utility

Defendants: “failed to comply with various federal and state safety statutes and regulations,

industry standards, failed to comply with local building ordinances and permits, failed to properly

supervise the construction, failed to demand and insure that construction proceed in compliance

with the Uniform Construction Code and other applicable codes and standards, failed to comply

with ordinary and customary safety procedures common in the industry … [and] failed to maintain

the property and work site in a reasonably safe condition.” (Id. ¶ 113). Plaintiff further alleges

that one or more of the Utility Defendants allowed “an unreasonably dangerous condition” to exist

on the property by “failing to de energize the system.” (Id. ¶ 116). Plaintiff also alleges that the

Utility Defendants as the “host employer” were “supposed to make sure that Morris Painting had

a properly qualified and trained Designated Safety Supervisor on site, but did not.” (Id. ¶ 139).

3 Plaintiff refers to “First Energy” or “FirstEnergy” in the FAC without identifying specifically which

First Energy Defendant he intends to identify (there are four).

Plaintiff adds that the Utility Defendants are liable for the negligent hiring of Morris, and negligent

supervision thereof, which ultimately led to the death of Melendez. (Id. ¶¶ 147-48).

As for Biasucci, Plaintiff alleges that he had substantial control over Morris and Melendez

for this project and that he did not ensure that the ultrahazardous activity taking place complied

with applicable standards. (Id. ¶¶ 176-79). Beyond that, the gist of the allegations against Biasucci

are that he knew the Morris crew was painting towers with the power on, but took no steps to stop

the work or otherwise prevent ultrahazardous activity. (Id. ¶ 180-83). For Steinmetz, Plaintiff

alleges that he had substantial control over the transmission tower and lines that killed Melendez.

(Id. ¶ 188). The allegations about Steinmetz in this regard are largely parallel to the allegations

against Biasucci. With respect to Steinmetz’s role, Plaintiff alleges that Steinmetz had a duty to

engage employees and Morris to proactively promote safety but failed to ensure applicable

standards were enforced, which eventually led to Melendez’s death. (Id. ¶¶ 206-07). The

negligence claim against Krauss is predicated on the allegation that Krauss oversaw safety

compliance at the project site, that he saw the workers getting too close to the towers they were

painting (id. ¶¶ 217-18), and that he was told by the painters that they were feeling sensations of

electrical charge. (Id. ¶ 220). Plaintiff alleges that when the Morris painters reported they were

feeling an electrical charge, Krauss told them to continue working. (Id.). Plaintiff also alleges that

Krauss gave false information to the OSHA investigator who evaluated Melendez’s death. (Id.

¶ 222).

Finally, with respect to Morris, Plaintiff alleges that Morris agreed to waive immunities,

including its Worker’s Compensation immunity, in the Painting Contract. (Id. ¶ 225). Plaintiff

alleges that in signing that contract, Morris “waived any and all immunities they would receive

under Workers Compensation, including immunity from Plaintiff filing this suit.” (Id. ¶ 226).

Plaintiff argues that it was Morris’s “negligence, carelessness, flagrance, gross negligence, and/or

recklessness” that caused Melendez’s family to lose the economic value of his life expectancy.

(Id. ¶ 227). Specifically Plaintiff alleges that Morris knowingly violated applicable safety

standards, including its own safety standards in having Melendez paint a transmission tower while

a live current travelled through the structure. (Id. ¶ 229).

Defendants now move to dismiss the FAC Claims (Docket Nos. 73, 78)4 and Morris also

moves for sanctions (Docket No. 76), arguing that Plaintiff’s FAC continues to exhibit

characteristics of shotgun pleadings, an issue this Court addressed at Oral Argument and in its

ruling on the first round of motions to dismiss in this case. The motions are fully briefed (Docket

Nos. 74, 75, 77, 79, 81-84, 87).

II. Legal Standard

In considering a Rule 12(b)(6) motion to dismiss, the factual allegations contained in the

complaint must be accepted as true and must be construed in the light most favorable to the

plaintiff; the Court must also “determine whether, under any reasonable reading of the complaint,

the plaintiff may be entitled to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir.

2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)); see Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 563 n. 8 (2007). While Federal Rule of Civil Procedure 8(a)(2)

requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,”

the complaint must “give the defendant fair notice of what the . . . claim is and the grounds upon

which it rests.” Phillips, 515 F.3d at 231 (quoting Twombly, 550 U.S. at 555). Moreover, while

4 Defendant Steinmetz does not appear to have moved to dismiss the claim against him, nor does it

appear that his interests are being represented by any other Defendant in the matter. The same goes for

Penn Power Company. For that reason, when this Court enters appropriate orders on the motions to dismiss

and motion for sanctions, the Court will also order the parties to submit a joint status report concerning

Steinmetz and Penn Power Company.

this standard does not require “detailed factual allegations,” Rule 8 “demands more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (citing Twombly, 550 U.S. at 555). To survive a motion to dismiss, “a complaint must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Id. (quoting Twombly, 550 U.S. at 570). The Supreme Court has noted that a “claim has

facial plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly,

550 U.S. at 556). The requirement that a court accept as true all factual allegations does not extend

to legal conclusions; thus, a court is “not bound to accept as true a legal conclusion couched as a

factual allegation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).5

III. Discussion

In assessing the present iteration of Plaintiff’s allegations in the FAC, the Court has

determined that they are—as the Court alluded to above—still excessively broad and non-specific

unto the point of approaching another shotgun pleading. Herein, the Court will first address that

most general shortcoming of the FAC. The Court will then address Defendants’ other arguments

for dismissing claims against them, which include failure to allege facts in support of the elements

of a negligence claim, failure to allege adequate participation for individual liability, preemption,

res judicata, and other arguments.

5 Plaintiff’s FAC contains lengthy sections dedicated to legal analysis of, among other things, the

“duty recognized by long standing Pennsylvania Supreme Court case law and statutes” concerning electrical

safety standards. (Docket No. 68 at 9-13, 26-29). The Court has taken such sections of the FAC under

advisement in its consideration of Plaintiff’s opposition to the motions to dismiss; however, the Court does

not afford Plaintiff’s legal statements and arguments in the FAC the same presumption for truth that attaches

to Plaintiff’s factual allegations.

The Utility Defendants

Regarding the FAC as a whole, the Utility Defendants argue that the allegations in it are

even more deficient than those in the original complaint. (Docket No. 79 at 7 (“Even more so than

the initial Complaint, the Amended Complaint is an abusive shotgun pleading rife with conclusory

allegations and legal jargon without factual support specific to the claims against each

Defendant.”)). The Utility Defendants argue that, like the allegations in the original complaint,

the allegations in the FAC are collective allegations without distinction as to the roles played by

each of the Utility Defendants. The Court largely agrees.

A complaint constitutes an improper shotgun pleading where it “includes pleadings that

contain multiple counts where each count adopts the allegations of all preceding counts and

assert[s] multiple claims against multiple defendants without specifying which of the defendants

are responsible for which acts or omissions, or which of the defendants the claim is brought

against.” Milo, LLC v. Procaccino, No. CV 16-5759, 2020 WL 1853499, at *10 (E.D. Pa. Apr.

13, 2020) (quoting Bartol v. Barrowclough, 251 F. Supp. 3d 855, 859 (E.D. Pa. 2017)) (emphasis

added). While it is not the case that every complaint that asserts multiple claims against multiple

defendants is a shotgun pleading, complaints will be assessed as improper shotgun pleadings where

they fail to provide “defendants adequate notice of the claims against them and the grounds upon

which each claim rests.” Id. (quoting M.B. v. Schuylkill Cty., 375 F. Supp. 3d 574, 587 (E.D. Pa.

2019)).

The allegations in the FAC about the Utility Defendants continue to leave at least some of

these Defendants guessing as to how Plaintiff alleges they were individually involved in bringing

about Melendez’s death through their negligence. For certain Utility Defendants, their alleged role

is clear enough from context. For instance, in the Painting Contract by which Morris took on the

transmission tower project in question, the contracting party on the defense side is identified as

Defendant FESC. (Docket No. 45-2). The Utility Defendants indicate in their motion to dismiss

that FESC was acting as ATSI’s agent for purposes of that contract with Morris. (Docket No. 79

at 3). Unlike FESC and ATSI, it is unclear how other Utility Defendants fit into the picture other

than the general allegations that they—with, or as opposed to, all the Utility Defendants—

controlled the land, the electricity, the transmission towers, or the work with respect to the painting

project that led to Melendez’s death. Plaintiff alleges that all the Utility Defendants are “part of a

common organization and in fact and in practice do not maintain consistent nor clear lines of

separation of their corporate form or corporate activities,” (Docket No. 68, ¶ 11), but Plaintiff does

not allege facts to show what he means by that vague statement, and there are indicia in

indisputably authentic records that make it difficult to imagine how certain Defendants were

involved. For instance, in the Utility Defendants’ motion to dismiss they reveal that FE Corp. is

merely a holding company, and they attach a Form 10-K indicating the same. Aside from the all-

Utility-Defendants allegations, there are no allegations that show a relationship between FE Corp.

and Morris or Melendez from which a duty to Melendez could arise. The Utility Defendants also

argue that Ohio Edison Co. is an Ohio electric utility company that does business in Ohio, and

there is no relationship among it and the deceased or his employer from which a duty of care could

arise. The Utility Defendants further argue that ATSI d/b/a FirstEnergy does not exist, First

Energy of PA LLC does not exist, Penn Power does not exist, and Ohio Edison does not exist.

(Docket No. 79 at 3-4; 9-10).

Plaintiff barely responds to these arguments about some of the Utility Defendants being

nonexistent. (Docket No. 84 at 7 (arguing that the Utility Defendants are a “conglomerate which

appear to do business under the ‘FirstEnergy’ trademark”)). A plaintiff’s “failure to respond to an

argument advanced in support of a motion to dismiss results in a waiver of the claim sought to be

dismissed.” Rapid Models & Prototypes, Inc. v. Innovated Sols., 71 F. Supp. 3d 492, 506 (D.N.J.

2014). And even where there is not outright failure to respond and waiver, a “passing reference”

to an issue is not an adequate response. Von Evans v. Brittian, No. 22-CV-312, 2024 WL 219231,

at *1 n. 1 (E.D. Pa. Jan. 19, 2024). Plaintiff generally argues that “group pleading” is permissible

insofar as pleadings give adequate notice to defendants of the allegations against them. Corbin v.

Bucks Cnty., 703 F. Supp. 3d 527, 533 (E.D. Pa. 2023) (“Irrespective of whether these allegations

are sufficient to state a claim for which relief may be granted, they permit each defendant named

in the Amended Complaint to understand the nature of the allegations levied against them. Thus,

they may not be categorically dismissed as ‘group pleading.’”). However, the Court does not agree

that Plaintiff’s pleadings fall into the category of sufficiently specific, and therefore permissible,

group pleadings.6

Even if the existence and roles of all the Utility Defendants were clear enough in the FAC,

the Court would dismiss the negligence claim against the Utility Defendants because Plaintiff’s

allegations supporting the elements of negligence are inadequate. To “prevail in a negligence

action,” a party must establish that: (1) “the defendant owed a duty of care to the plaintiff”; (2)

“that duty was breached”; (3) “the breach resulted in the plaintiff’s injury”; and (4) “the plaintiff

suffered an actual loss or damages.” Merlini ex rel. Merlini v. Gallitzin Water Auth., 980 A.2d

502, 506 (Pa. 2009).7 The first element—whether a defendant owes the plaintiff a duty of care

6 At Oral Argument for the last round of motions to dismiss, the Court warned Plaintiff that he would

need to do more than repeat each allegation in relation to each Defendant. Despite that exchange, many of

the allegations in the FAC are formalistically repetitive as to each Defendant.

7 The Court notes that while the Painting Contract contains a “Governing Law, Jurisdiction, and

Venue” provision that identifies Ohio law as applicable to any “dispute between the parties” (Docket No.

45-2 at 13)—the parties to that contract being Morris Painting and FESC as ATSI’s agent—the parties

assume in their briefing that Pennsylvania law applies to this matter between Plaintiff and Defendants. The

“requiring the [defendant] to conform to a certain standard of conduct for the protection of others

against unreasonable risks” is a “question of law.” In re TMI, 67 F.3d 1103, 1117 (3d Cir. 1995)

(quoting Griggs v. BIC Corp., 981 F.2d 1429, 1434 (3d Cir. 1992), abrogated by Surace v.

Caterpillar, Inc., 111 F.3d 1039 (3d Cir. 1997)).

Insofar as the Utility Defendants are alleged to be landowners, a “landowner’s duty to

entrants upon the land … depends upon the entrant’s status as an invitee, a licensee, or a

trespasser.” Gay v. A.O. Smith Corp., 586 F. Supp. 3d 354, 359 (W.D. Pa. 2022). Employees of

independent contractors are business invitees. Id.; McDonald v. Lowe’s Companies, Inc., No.

CIV.A. 08-CV-219, 2009 WL 3060413, at *5 (E.D. Pa. Sept. 24, 2009) (explaining that in

Pennsylvania, “employees of independent contractors working on, or in control of, premises

owned by another are considered business invitees”). A landowner’s duty to such an invitee is to

warn them of any dangerous condition involving an unreasonable risk of harm of which the

landowner: (1) knows or by exercise of reasonable care could have discovered; (2) should have

expected the invitee would not discover; and (3) fails to exercise reasonable care to protect the

invitee from it. Rabovsky v. Foster Wheeler, LLC, No. CIV.A. 2:10-03202-ER, 2012 WL

2913805, at *1 n.1 (E.D. Pa. June 8, 2012) (quoting Summers v. Giant Food Stores, Inc., 743 A.2d

498, 506 (Pa. Super. Ct. 1999)). That said, under Pennsylvania law, a defendant “who hires an

independent contractor is generally exempt from liability for injuries sustained by the contractor’s

employees” with respect to “conditions that are at least as obvious to the contractor and its

employees as they are to the landowner.” Beil v. Telesis Const., Inc., 11 A.3d 456, 460 (Pa. 2011).

When that is the case, the landowner-defendant is not duty-bound to warn the contractor or its

employees. Additionally, the “owner of the property is … under no duty to protect the employees

Court, having no reason to believe that Pennsylvania law would not apply to the parties to this dispute,

therefore applies Pennsylvania law herein.

of an independent contractor from risks arising from or intimately connected with defects or

hazards which the contractor has undertaken to repair or which are created by the job contracted.”

Rabovsky, 2012 WL 2913805, at *1 n. 1.

Insofar as the Utility Defendants are alleged to be the employers of an independent

contractor, there are exceptions to the “general rule of nonliability,” i.e., the general rule that the

independent contractor and its employees—rather than the person or entity who hires the

independent contractor—are liable for the employees’ safety. Gay, 586 F. Supp. 3d at 361.

Exceptions to this general rule include the “retained control” exception and the “peculiar risk”

exception. Chenot v. A.P. Green Servs., Inc., 895 A.2d 55, 64 (Pa. Super. Ct. 2006). The retained

control exception applies when “a property owner who hires an independent contractor retains

control of the means and methods of the contractor’s work.” Id. Control in this context does not

mean any control, that is, it is not enough to show that the defendant landowner “has merely a

general right to order the work stopped or resumed, to inspect its progress or to receive reports, to

make suggestions or recommendations which need not necessarily be followed, or to prescribe

alterations and deviations.” Id. (quoting Restatement (Second) of Torts § 414, cmt. c)); Nertavich

v. PPL Elec. Utilities, 100 A.3d 221, 227 (Pa. Super. Ct. 2014), aff’d, 124 A.3d 734 (Pa. 2015).

The peculiar risk exception applies when there are “unusually dangerous circumstances” of the

work being done that “involv[e] a special danger or peculiar risk.” Beil, 11 A.3d at 467; Gay, 586

F. Supp. 3d at 363 (“a peculiar risk of physical harm” (citing Restatement (Second) of Torts

§§ 416, 427)). The peculiar risk exception is narrow and context-dependent insofar as it does not

apply when the risk associated with the work is “no different from the usual or ordinary risk

associated with [such] work.” Id. To illustrate, the risk of a crocodile bite may be peculiar, but

not for an independently contracted crocodile hunter.

Plaintiff’s allegations do not show that the Utility Defendants had “superior knowledge,”

Chenot, 895 A.2d at 64, of a dangerous condition, nor that the retained control or peculiar risk

exceptions to general non-liability of employers of independent contractors applies.8 According

to the Painting Contract, Morris was to “furnish all supervision, experienced and qualified labor,

equipment, tools, [and] materials.” (Docket No. 45-2 at 4). In Article 2, Section D of the contract,

the parties agreed that Morris was an independent contractor with full responsibility for acts or

omissions of its employees and that it alone would be “responsible for the manner and methods by

which the Work is performed.” (Id. at 8). Regarding Morris’s employees and the safety of the

work, in Article 6 of the contract, the parties agreed that Morris would be “responsible for the

manner and methods by which the Work is performed and for materials, workforce and equipment,

irrespective of whether any changes are made as a result of comments received from [FESC].”

(Id. at 9). And, regarding the safety of the work, the parties agreed that Morris “shall conduct the

Work in a manner to avoid risk of bodily harm to persons or damage to property” and “take all

precautions necessary and shall be solely responsible for the safety of the Work and the safety and

adequacy of the manner and methods it employs in performing the Work.” (Id.). Based on that

negotiated delegation of responsibilities, a retained control exception on the face of the contract

cannot be alleged.

That begs the question of whether Plaintiff’s allegations show “that the land owner

exercised actual control over the work” despite contractually handing over control. Nertavich, 100

8 Plaintiff cites Colloi v. Philadelphia Elec. Co., 481 A.2d 616, 620 (Pa. Super. Ct. 1984) in which

the court decided that the question of whether an employer breached the duty to warn an independent

contractor of the existence of an underground power line should have gone to the jury where the

independent contractor would have had no reason to believe a utility line ran so close to a water pipe under

repair while the employer had blueprints, charts, and diagrams of electrical lines running from the substation

at its disposal. In Colloi, there were facts supporting non-obviousness of danger. Here, there are no factual

allegations of non-obviousness of danger.

A.3d at 228. To that end, Plaintiff has alleged: that the Utility Defendants controlled the electricity

and transmission tower related to Melendez’s death (Docket No. 68, ¶¶ 14-15); had “substantial

control over Morris Painting, Carlos Melendez and the tower painting project [he] was working

on when he was killed” (id. ¶ 24); Utility Defendant employee Biasucci had control over Morris,

Melendez, and the project (id. ¶ 34); Utility Defendant employee Steinmetz had control over

Morris, Melendez, and the project (id. ¶ 41); Utility Defendant employee/independent contractor

Krauss had control over Morris, Melendez, and the project, and shouted at the workers to keep

painting despite feeling an electrical charge shortly before Melendez’s death (id. ¶ 73); and the

Defendants (all of them) were responsible to provide Melendez with a safe work environment (id.

¶ 106). These allegations concerning the Utility Defendants’ duty to Melendez are fact-deficient,

mostly consisting of legal conclusions stated without factual support. While Plaintiff states that

the Utility Defendants had control over the electricity, the land, the transmission towers, or even

the work itself, these pleadings consist of conclusory assertions rather than factual allegations.

Fedor v. Van Note-Harvey Assocs., No. CIV.A. 10-5110, 2011 WL 1085993, at *3 (E.D. Pa. Mar.

18, 2011) (“His complaint does not allege any facts to suggest how Wentworth or Yardley retained

control over the roofing project. Without more, plaintiff fails to state ‘enough facts to raise a

reasonable expectation that discovery will reveal evidence’ that Wentworth and Yardley should

be held liable pursuant to the retained control exception.”).

Regarding the peculiar risk exception, Plaintiff’s allegations establish that Melendez was

exposed to a risk of electrocution. Plaintiff argues that the peculiar risk of electrocution imposed

a heightened standard of care on the Utility Defendants because courts in Pennsylvania have held

that “the standard of care imposed upon a supplier of electric power, particularly when that power

is supplied at high voltage, is among the highest recognized in the law of negligence.” Densler v.

Metro. Edison Co., 345 A.2d 758, 761 (Pa. Super. Ct. 1975). Such standard requires an electric

power supplier to “use the very highest degree of care practicable to avoid injury to everyone who

may be lawfully in proximity to its wires, and liable to come accidentally or otherwise, in contact

with them.” Id. However, while electric power suppliers are held to a high standard of care, courts

in Pennsylvania have also explained that when there are risks inherent in certain professions, such

risks cannot be said to be outside the expected risks for those employed in such professions. See

Fedor, 2011 WL 1085993, at *3 (discussing Best Prods. Co. v. A.F. Callan & Co., No. CIV. A.

90-5329, 1997 WL 83737, at *11 (E.D. Pa. Feb. 26, 1997), and explaining that the risk of falling

through a deteriorating roof was not outside the ordinary level of risk for a roofing contractor).

That is, as explained above, peculiar risks only arise when there is a risk that is “foreseeable to the

owner at the time the contract is executed …, [and] the risk is different from the usual and ordinary

risk associated with the general type of work done.” Zuno v. Wal-Mart Stores, Inc., No. CIV A

06-2392, 2009 WL 1545258, at *10 (E.D. Pa. May 29, 2009) (quoting Warnick v. Home Depot

U.S.A., Inc., 516 F. Supp. 2d 459, 469 (E.D. Pa. 2007)) (emphasis added). In this case, the peculiar

risk exception does not apply to Melendez with respect to the risk of electrocution when he was

employed on a team of painters engaged in the painting of transmission towers.9

9 In Motter v. Meadows Ltd. P’ship, 680 A.2d 887 (Pa. Super. Ct. 1996), the Superior Court of

Pennsylvania considered a similar issue when it reviewed a summary judgment decision in favor of the

employer of an independent contractor whose employee was injured when a trench he was working in

collapsed on him. Explaining the application of the peculiar risk exception to the general non-liability of

an employer of an independent contractor, the Superior Court explained that “[e]xcavation of a sewage

trench brings … attendant risks, one of which is collapse of the trench walls.” Id. at 891. Because such

risk was “obvious and unavoidable,” the Superior Court determined that the trial court had not erred in

“finding that cave-in of a sewer trench is not an unusual or unexpected risk, but rather, is a risk faced by

excavating companies every day.” Id. at 892. The plaintiff in that case had argued that because the

Occupational Safety and Health Administration (OSHA) had set safety standards for work with the soil

involved in that collapse, it meant that the risk posed by digging that trench was especially dangerous, i.e.,

peculiar. But the Superior Court explained that was not the case; rather, the work was made unsafe by the

independent contractor’s “failure to abide by the OSHA rules and regulations,” and the employer of the

independent contractor could not be held responsible for the contractor’s failure to follow OSHA

requirements. Id. Similar to the facts in Motter, Plaintiff alleges that Morris and Melendez’s work was

Plaintiff has raised a few additional arguments in opposition to the Utility Defendants’

motion to dismiss that bear addressing before the Court moves on to address the allegations against

the other Defendants. In one instance, regarding the peculiar risk exception, Plaintiff argues that

Morris was unaware of the dangers of its work because it was an incompetent contractor. (Docket

No. 68, ¶¶ 113, 147 (alleging that the Utility Defendants hired a “safety incompetent contractor”)).

But there are no well-pleaded facts in the FAC that support that characterization of Morris. Not

only that, but under Pennsylvania law, liability for failure to “employ a competent and careful

contractor” is “limited to claims by third persons other than employees of the negligent

independent contractor itself.” Fedor, 2011 WL 1085993, at *4 (quoting Mentzer v. Ognibene,

597 A.2d 604, 609 (Pa. Super. Ct. 1991)).

Plaintiff also argues that the Utility Defendants owed Melendez a duty of care under 43

P.S. § 26-2, pursuant to which “[n]o employer or supervising agent of an employer shall require

or permit an employee to … participate in the … maintenance … of high-voltage lines having a

voltage differential in excess of nominally 13,200 volts between any pair of conductors or in excess

of nominally 7,600 volts between any conductor and ground” without de-energizing conductors or

using other approved methods. Id. Plaintiff argues that § 26-2 applies to Melendez’s

circumstances, saying Plaintiff “specifically alleged that the Utility Defendants qualify as either

an ‘employer’ or ‘supervising agent of an employer’ in the Amended Complaint, which must be

taken as true.” (Docket No. 84 at 9). Plaintiff goes on to explain that the Utility Defendants

employed Morris and were “the supervising agent of … Morris Painting,” particularly where

subject to OSHA standards. (Docket No. 68, ¶ 113). An OSHA investigation into Melendez’s death

confirmed that Morris violated applicable OSHA standards. (Docket No. 79-4). According to the

allegations and integral documents that this Court is permitted to consider in assessing the allegations in

the FAC, Plaintiff has not factually alleged that Melendez’s accident “would have occurred” even if the

“proper safety precautions” were taken. Motter, 680 A.2d at 892. Thus, the peculiar risk exception is not

implicated by these pleadings.

Krauss and others are alleged to have supervised the work. (Id.). However, according to

Pennsylvania law, “the relationship between a party who contracts for services and an independent

contractor is not that of employer-employee as understood by the law.” Dunkle v. Middleburg

Mun. Auth., 842 A.2d 477, 481 n. 8 (Pa. Commw. Ct. 2004).10 For that and the other foregoing

reasons, the Court will dismiss the negligence claim against the Utility Defendants. The dismissal

will be without prejudice for the reasons further stated herein.

Wally Krauss

With Krauss, Plaintiff’s allegations are more specific than they are with respect to the other

Defendants. In the FAC, Plaintiff alleges that Krauss worked for First Energy/Penn Power, either

as an employee or as a contractor. (Docket No. 68, ¶ 209).11 It is alleged that his job was to be an

onsite job inspector. (Id.). Plaintiff alleges that Krauss had substantial control over: the electricity

that killed Melendez; the transmission tower, lines, and associated equipment Melendez touched

when killed; the land under the relevant transmission tower and associated equipment; and Morris.

(Id. ¶¶ 210-13). Plaintiff further alleges that Krauss participated in the negligent conduct that

killed Melendez not least of all because Krauss was on site at “all relevant times,” was responsible

for “monitoring the painting project, with respect to safety compliance,” and—critically—that

Krauss “shouted up to [the Morris painters] to continue working” shortly before Melendez was

10 In some respects, Plaintiff’s policy arguments about various duties owed by Defendants—

particularly the Utility Defendants—to Melendez, would be more appropriately addressed to the

Pennsylvania General Assembly than to this Court. For instance, Plaintiff argues in opposition to Morris’s

motion to dismiss that the “Utility Defendants should have either shut the power off and/or had the work

done by specialized utility crews that are trained and qualified to get that close to high voltage wires, like

the ones that were assigned to” recover Melendez’s body. (Docket No. 75 at 1). Regardless of whether

such safety measures are reasonable, Plaintiff fails to cite existing law setting a standard that would, for

instance, have required the Utility Defendants to shut down the towers being painted.

11 From this allegation about Krauss’s employment, it is hard to tell which Defendant corresponds to

“First Energy.” Clarification in the pleadings on this point is something that Plaintiff should address should

he choose to amend.

electrocuted and killed as “Kraus[s] was on site watching the ongoing painting work.” (Id. ¶¶ 216-

17, 220).

To the extent that Plaintiff alleges Krauss was an employee of one of the Utility

Defendants, a claim of negligence against one or more of the Utility Defendants who employed

him based on respondeat superior might be tenable.12 However, on these pleadings it is unclear

on what, if any, authority Krauss told Melendez and other workers to continue working after they

indicated that they felt an electrical charge. Plaintiff’s allegations of Krauss and his employer’s

control of the Morris painting project are sparse and conclusory, which the Court addressed above

in its assessment of the adequacy of allegations against the Utility Defendants. Should Plaintiff

supply allegations of fact rather than conclusory statements about Krauss and his employer’s

retention of control of the worksite, then amendment would perhaps not be futile.

Additionally, for Plaintiff’s claim against Krauss personally, the Court likewise determines

that amendment is not clearly futile. “Under Pennsylvania law, although an officer or agent of a

corporation who takes no part in the commission of a tort committed by the corporation is not

individually liable to third parties for such a tort, such an officer or agent may be held liable in tort

under the ‘participation theory.’” Sherfey v. Johnson & Johnson, No. CIV.A. 12-4162, 2014 WL

715518, at *6 (E.D. Pa. Jan. 29, 2014) (quoting Wicks v. Milzoco Builders, Inc., 470 A.2d 86, 90

(Pa. 1983)). Under the participation theory, to impose liability on an employee, a “plaintiff must

establish that the individual officer or agent engaged in misfeasance rather than mere

nonfeasance,” that is, the officer/agent improperly performed as opposed to “fail[ed] to act.” Id.

Plaintiff currently alleges that Krauss shouted up to Melendez and others to keep working though

12 Plaintiffs may plead in the alternative. Fed. R. Civ. P. 9(d)(2)-(3). Thus, the Court assesses

allegations about Krauss as an employee separately from allegations about Krauss as an independent

contractor, without construing one theory as necessarily undermining the other.

they felt an electric charge. Such allegations could support a prima facie case of liability for

negligence against Krauss personally if Plaintiff can allege facts showing Krauss had authority to

control that work. Because there are no non-conclusory allegations in the FAC presently that show

what (if any) authority Krauss had to give direction to the Morris painters, the Court will dismiss

the claim against Krauss without prejudice.

Mitchell Biasucci

With respect to Biasucci, Plaintiff alleges that he was a “supervisor for the jobsite on behalf

of the Utility Defendants, or one or more of them, at which Plaintiff was injured.” (Docket No.

68, ¶ 30). Other allegations against Biasucci in the FAC are quite vague or merely provide

conclusory descriptions of Biasucci’s alleged involvement in bringing about Melendez’s death

through negligence. For instance, Plaintiff alleges that Biasucci had “substantial control over the

electricity that killed … Melendez,” the “transmission tower, lines and/or associated equipment

that … Melendez came in contact with when he was killed,” “the land upon which the transmission

tower and associated equipment that … Melendez came in contact with when he was killed was

located,” and over “Morris Painting.” (Id. ¶¶ 31-34). Plaintiff further alleges that Biasucci was

“on site at various relevant times with full knowledge of and participation in the matters set forth

herein,” that he was “charged with the responsibility of managing the painting project, including

with respect to safety compliance,” that he knew the Morris painters were painting towers with the

power on, that he watched Melendez and others paint the “hot towers,” and that he saw them

breach the minimum allowable distance. (Id. ¶¶ 76-78). Plaintiff also alleges that Biasucci “had

the opportunity, position and authority, but did nothing to stop the work or otherwise exercise his

authority to prevent the ongoing ultrahazardous safety violations which resulted in the death of …

Melendez.” (Id. ¶ 79).13

These allegations do not amount to a plausible showing of Biasucci’s personal negligence.

As indicated above, Pennsylvania law permits liability against a corporate employee individually

pursuant to the participation theory. Sherfey, 2014 WL 715518, at *6 (quoting Wicks, 470 A.2d at

90). But participation theory requires a showing that an employee engaged in misfeasance, not

just nonfeasance, i.e., not just “omitting to do or not doing something” he or she should have done.

Greenberg v. Macy’s, No. CIV.A. 11-4132, 2011 WL 4336674, at *4 (E.D. Pa. Sept. 15, 2011)

(citing Wicks, 470 A.2d at 90 and Nelson v. Duquesne Light Co., 12 A.2d 299, 303 (Pa. 1940)).

Plaintiff’s allegations are quite plainly about what Biasucci is alleged to have failed to do. Not

only that, but there are not even clear allegations that Biasucci was present at Melendez’s worksite

at the time of his death.

In response to Defendants’ motion to dismiss the claim against Biasucci, Plaintiff argues

that it is enough that he has alleged Biasucci “planned, oversaw and managed the project, including

having the towers painted live in violation of the law.” (Docket No. 84 at 23). However, Plaintiff

has not pointed to a particular applicable law that made it illegal to paint towers live. According

to the FAC, Plaintiff clearly believes it is unconscionably dangerous to not de-energize towers

before having them painted (see, e.g., Docket No. 68, ¶ 65). But, again, Plaintiff has not pointed

to a particular law against painting live towers. Moreover, with respect to Biasucci in particular,

the allegations that he had control over that decision or the work more generally are conclusory

and nonspecific. Plaintiff’s allegations do not plausibly show Biasucci’s negligence by

13 Defendants point out that, at Oral Argument, Plaintiff indicted that Biasucci was “in the truck

watching” events unfold at the time of Melendez’s death; however, such an allegation does not appear in

the FAC. (Docket No. 72 at 14).

misfeasance; therefore, the Court will dismiss the claim against Biasucci. The claim will be

dismissed without prejudice should Plaintiff be able to allege facts showing misfeasance on his

part. Given Plaintiff’s failure to allege certain facts about Biasucci in the FAC that were alluded

to at Oral Argument, the Court is somewhat reticent to provide this final opportunity for

amendment as to Biasucci. However, out of an abundance of caution that Plaintiff may be able to

meaningfully amend such allegations, the Court’s dismissal will be without prejudice.

Morris Painting

Morris seeks dismissal of Plaintiff’s negligence claim against it with prejudice, arguing

that because it was Melendez’s employer, it is immune from Plaintiff’s suit pursuant to 77 P.S.

§ 481(a).14 Morris also argues that because Melendez’s parents, through counsel and in

Melendez’s name, settled a WCA claim, and the settlement was approved by an Order and

Decision from a Worker’s Compensation Judge with a compromise and release agreement and

death claim supplement, under Pennsylvania law and res judicata, Morris was released from any

and all other liability associated with Melendez’s death. Plaintiff opposes the motion to dismiss

14 Morris also argues that Plaintiff effectively conceded that Morris was subject to the exclusive

remedy provisions of the WCA at Oral Argument on the prior motions to dismiss and that Plaintiff should

be barred from—and sanctioned for—attempting to revive this claim now. While the Court acknowledges

that Plaintiff seemed to cede exclusivity of the WCA remedy on the last go-around, the Court adds that

Plaintiff did not commit to that representation. (Docket No. 72 at 34 (“Maybe discovery will show

something else[.]”)). The law-of-the-case doctrine prevents reconsideration of legal decisions in the same

case. Home Depot USA, Inc. v. Lafarge N. Am., Inc., 59 F.4th 55, 61 (3d Cir. 2023). That said, the law-

of-the-case doctrine doesn’t keep the Court from reconsidering its own decisions, so “interlocutory orders

… remain open to trial court reconsideration, and do not constitute the law of the case.” United States ex

rel. Petratos v. Genentech Inc., 855 F.3d 481, 493 (3d Cir. 2017) (citing Williams v. Runyon, 130 F.3d 568,

573 (3d Cir. 1997), and quoting Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir. 1994)). Additionally,

the law of the case “directs [this Court’s] exercise of discretion” rather than limiting its authority. United

States v. Bhimani, No. 22-1436, 2023 WL 5125056, at *3 (3d Cir. Aug. 10, 2023) (quoting Pub. Int. Rsch.

Grp. of N.J., Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 116 (3d Cir. 1997)). In this matter, in which

the Court previously dismissed all claims, including the claim against Morris without prejudice to

amendment, the law of the case does not bar the Court’s consideration of whether Plaintiff has, in his FAC,

stated a plausible claim against Morris.

and argues that at this early stage of the case Morris’s apparent waiver of immunity subjected it to

suit, even if discovery might ultimately show that the wavier of immunity does not apply to

Plaintiff’s negligence action. Plaintiff also argues negligence is not covered by the WCA and that

it cannot be bound by the WCA settlement because it was not a party thereto.

The Court first addresses whether Plaintiff may pursue a claim against Morris for

negligence in light of 77 P.S. § 481. This statutory provision addresses the exclusivity of remedy

in the Pennsylvania WCA. Under § 481, “[t]he liability of an employer under [the] act shall be

exclusive and in place of any and all other liability to such employees, his legal representative,

husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any

action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2)

or occupational disease as defined in section 108.” Id. § 481(a). Section 481 represents a trade-

off in that employees who are injured get the benefit of a “statutory, no-fault system of

compensation” in return for giving up the rights to other remedies. Herold v. Univ. of Pittsburgh

- of the Commw. Sys. of Higher Educ., 329 A.3d 1159, 1183 (Pa. 2025) (quoting Poyser v. Newman

& Co., Inc., 522 A.2d 548, 550 (Pa. 1987)); Hartwell v. Allied Chem. Corp., 320 F. Supp. 75, 77

(W.D. Pa. 1970) (under the WCA, “an employee gains a right which he did not have at common

law but surrenders another” insofar as “[h]e acquires a right to compensation for an occupational

injury regardless of whether the injury is caused by his employer’s negligence, but, in return, he

yields his right to sue his employer in a common law action for negligence”). This exclusivity of

remedy precludes any employee from obtaining “recourse against the employer at common law

for negligence.” Id. at 1183. Thus, as a general matter, Plaintiff may not pursue a negligence

claim for Melendez’s work-related injury.15

15 One of Plaintiff’s arguments to get out from under the exclusivity of remedy is that the WCA does

not “account for a claim of negligence, nor does it provide for damages such as pain and suffering.” (Docket

Despite this, Plaintiff argues that he can bring a direct claim of negligence against Morris

because “Morris Painting … expressly waived [its] Worker’s Compensation immunity via contract

with the Utility Defendants.” (Docket No. 75 at 2). Under Pennsylvania law, employees or their

next-of-kin may bring a claim related to injuries or death caused by third parties even though

employers, their insurance carriers, their servants/agents/employees/representatives may not be

liable to third parties for damages, contribution, or indemnity. 77 P.S. § 481(b). The only

exception provided by statute is that an employer can “expressly provide[] for [liability for

damages, contributions, or indemnity] in a written contract entered into by the party alleged to be

liable prior to the date of the occurrence which gave rise to the action.” Id. That is, while the

workers’ compensation “statute immunizes employers from indemnification suits by third parties

who have been sued by injured employees, it exempts from protection any employers that

contractually agreed with third parties to waive their immunity under the statute.” Kiewit E. Co.

v. L & R Const. Co., 44 F.3d 1194, 1200 (3d Cir. 1995). Based on the language in the Painting

Contract’s indemnity provision and “Waiver of Immunities” in it, Plaintiff argues that the Court

should apply the Bester test and that, under such test, the Court should determine waiver of

immunities by contract is adequately alleged, and the direct suit against Morris should not be

dismissed on the present motion. (Docket No. 75 at 9).

In Bester, a construction company leased a crane from Essex Crane for the construction of

a terminal at the Pittsburgh airport. Bester v. Essex Crane Rental Corp., 619 A.2d 304, 306 (Pa.

No. 75 at 4). However, as indicated by the discussion of exclusivity of remedy above, employees give up

the opportunity to pursue, e.g., negligence claims as part of the trade-off represented by the WCA. “In

Pennsylvania, the [WCA] is the only avenue for an injured employee (or their estate) to collect damages

for an on-the-job injury or death.” Montgomery v. Bobst MEX SA, No. CV 24-367, 2024 WL 3939303, at

*4 (E.D. Pa. Aug. 26, 2024) (citing 77 P.S. § 481(a)) (emphasis added). For that reason, Plaintiff’s

argument that a negligence claim is pursuable because it is not addressed by the WCA is a non-starter.

Super. Ct. 1993). Bester was an employee of the construction company, Russell Construction. Id.

When an Essex Crane employee delivered the leased crane, he accidentally struck Bester with a

sledgehammer. Id. Bester sued Essex Crane, and Essex Crane sought to join Russell Construction

based on an indemnification clause in the leasing agreement. Addressing joinder, the Pennsylvania

Superior Court explained that because Russell Construction was the employer, under the WCA,

“any indemnity in favor of Essex Crane would have to be expressly provided for in a written

contract.” Id. (citing 77 P.S. § 481(b)). Such a waiver would have to be specific because case law

in Pennsylvania has “established that the indemnity provision in the Workmen’s Compensation

Act must be construed strictly, and general indemnity language such as ‘any or all’ or ‘any nature

whatsoever’ is insufficient.” Id. at 307. That is not to say that an indemnity agreement must

specifically waive immunity provided by § 481, but “the intent to indemnify against claims by

employees of the alleged indemnitor … must clearly appear from the terms of the agreement.” Id.

Put differently, the language that would waive WCA immunity must specifically demonstrate “that

a named employer agrees to indemnify a named third party from liability for acts of that third

party’s own negligence which result in harm to the employees of the named employer.” Id. at 308-

09; Jones v. Swepi L.P., No. 2:19-CV-00050, 2020 WL 241009, at *3 (W.D. Pa. Jan. 16, 2020)

(“Under the Bester test, an employer only waives its statutory immunity if it does so expressly and

unequivocally in the contract.”).

Plaintiff argues that Morris waived its immunity and is thus vulnerable to suit by

Melendez’s estate. In Article 9 of the Painting Contract, Morris and FESC addressed

indemnification and agreed that Morris would “indemnify, defend, and hold harmless [FESC] …

from and against any and all … claims, liabilities, fines, penalties, and expenses … which any of

the Indemnified Parties may suffer or incur, arising out of or related to the Work and/or the actions

or omissions of [Morris] … including Losses relating to: (1) actual or alleged bodily or mental

injury to or death of any person; … or (5) any violation by [Morris] … of any ordinance, regulation,

rule, or law of the United States or any political subdivision or duly constituted public authority;

… provided, however, that [Morris’s] indemnity obligations under this Article 9(A) shall not apply

to any Losses to the extent such Losses are found to have been caused by the negligence or willful

misconduct of any of the Indemnified Parties.” (Docket No. 45-2 at 9). For immunities, Morris

and FESC agreed that in the event a Morris employee “or such employee’s heirs, assigns, or anyone

otherwise entitled to receive damages by reason of injury or death to such employee, brings an

action at law against any Indemnified Party, then [Morris], … hereby expressly waives any

provision of any workers’ compensation act or other similar law whereby [Morris] could preclude

its joinder by such Indemnified Party as an additional defendant in such actions, or avoid liability

for damages, contribution, defense, or indemnity in any such action at law, or otherwise.” (Id.

(emphasis added)). The provision on immunities goes onto say that Morris’s “obligation to

[FESC] under this Article 9 shall not be limited by any limitation on the amount or type of

damages, benefits or compensation payable by or for [Morris] under any worker’s compensation

acts, disability benefit acts, or other employee benefit acts on account of claims against [FESC] by

an employee of [Morris] or anyone employed directly or indirectly by [Morris] or anyone for

whose acts [Morris] may be liable.” (Id. (emphasis added)).

The Court finds Plaintiff’s argument regarding the Painting Contract, and Morris’s waiver

of immunity, untenable most of all because Morris’s waiver of immunity therein pertains to actions

at law brought against an Indemnified Party.16 This is not such an action and the Court has no

16 “Under Pennsylvania law, the interpretation of contractual language to determine the parties’ intent

is a question of law, and the meaning of a contract is determined by the contractual language, unless it is

ambiguous.” Austin Powder Co. v. Popple Const., Inc., 167 F. App’x 931, 934 (3d Cir. 2006) (citation

omitted). The Painting Contract includes a governing law provision that identifies Ohio law as governing.

basis for taking the indemnity and immunity provisions in a contract between Morris and FESC

and construing them in this suit to permit a direct negligence action against Morris notwithstanding

the WCA. Considering this determination, it is likely unnecessary for the Court to address certain

other matters raised by the parties but, for the sake of clarity, the Court makes several additional

observations on the parties’ arguments. As for the argument that Plaintiff’s suit is barred by res

judicata in light of Melendez’s parents execution of the Compromise and Release Agreement and

Death Claim Supplement to the Compromise Release Agreement, the Court notes that Plaintiff

argues res judicata would not apply because, among other reasons, the Estate was not a party to

the settlement. But courts have held that the WCA is the “only avenue for an injured employee

(or their estate) to collect damages for an on-the-job … death.” Montgomery, 2024 WL 3939303,

at *4 (emphasis added).17 More fundamentally, if the Estate could pursue a negligence claim

despite the prior settlement among Morris and Melendez’s parents, it is unclear how Plaintiff has

or could factually allege a “duty” of Morris to the Estate, a critical element of his claim. Merlini,

980 A.2d at 506. For these and the foregoing reasons, the Court will grant Morris’s motion to

dismiss the claim against it.

Regarding Morris’s request for dismissal with prejudice and Morris’s motion for sanctions,

the Court will not go so far as to impose sanctions because notwithstanding Plaintiff’s seeming

concession at Oral Argument that there was no claim to pursue against Morris, the concession was

Pennsylvania and Ohio law are consistent with respect to contract interpretation being a question of law.

Id. at n. 1.

17 Additionally, Plaintiff is pursuing this negligence action against Morris pursuant to Pennsylvania’s

Wrongful Death and/or Survival Acts, which permit certain relatives to recover economic loss wrought by

a death (wrongful death) and the estate to recover for the decedent’s pain and suffering (survival act).

Conley ex rel. Est. of Kerr v. Ethex Corp., No. CIV.A. 10-1455, 2012 WL 32445, at *5 (W.D. Pa. Jan. 5,

2012). When Melendez’s interests and his parent-beneficiaries’ interests were represented in the WCA

action and settlement, it is unclear how the Estate could separately pursue a claim against Melendez’s

employer despite the decedent’s and beneficiaries’ release of claims.

not unequivocal, the allegations in the FAC do not appear to have been made for any improper

purpose, and the legal arguments presented by Plaintiff in opposition to Morris’s motion to dismiss

are not frivolous. Fed. R. Civ. P. 11. That said, the Court will dismiss the claim against Morris

with prejudice because in light of the Court’s analysis in this Memorandum Opinion, it is clear to

the Court that giving Plaintiff further opportunity to amend a direct claim against Morris would be

futile. See Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000) (futility of amendment means even

with amendment the complaint would fail to state a plausible claim).

IV. Conclusion

For all these reasons, the Court will order that Defendant Morris Painting’s Motion to

Dismiss will be granted and Plaintiff’s claim against Morris Painting will be dismissed with

prejudice. The Court will deny Morris Painting’s motion for sanctions (Docket No. 76). The

Court will grant the Utility Defendants’ motion and dismiss Plaintiff’s claims of negligence against

the Utility Defendants without prejudice except with respect to Defendants that do not appear to

exist—ATSI d/b/a FirstEnergy, First Energy of PA, LLC, Penn Power, and Ohio Edison—as to

which Plaintiff’s claim is dismissed with prejudice.18 As for Defendant Biasucci, the Court will

dismiss the claim against him without prejudice. And the Court will dismiss the claim against

Krauss without prejudice.

/s/ W. Scott Hardy

W. Scott Hardy

United States District Judge

cc/ecf: All counsel of record

18 The Court’s dismissal with prejudice as to Defendants Penn Power and Ohio Edison is not to be

confused with its dismissal without prejudice as to Defendants Penn Power Company and Ohio Edison

Company.