# COMER v. AMERICAN TRANSMISSION SYSTEMS, INCORPORATED

> District Court, W.D. Pennsylvania · May 29, 2025

URL: https://www.frixlaw.com/law-library/cases/11061786

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** May 29, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11061786. Public record. Not legal advice.