The opinion
J-A05012-20
2020 PA Super 189
ERIC DOBRANSKY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
EQT PRODUCTION COMPANY AND : No. 900 WDA 2019
HALLIBURTON ENERGY SERVICES, :
INC. :
Appeal from the Judgment Entered May 22, 2019
In the Court of Common Pleas of Greene County Civil Division at No(s):
AD 142-2014
BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*
OPINION BY BENDER, P.J.E.: FILED AUGUST 11, 2020
Appellant, Eric Dobransky, appeals from the trial court’s May 22, 2019
order granting summary judgment in favor of Appellees, EQT Production
Company and Halliburton Energy Services, Inc. We vacate the trial court’s
order and remand.
The trial court provided the following background:
[Mr.] Dobransky seeks liability against [Appellees] for injuries he
alleges he sustained from his exposure to barite on June 19, 2012,
at the Scotts Run well site. Barite is a weighing agent to increase
densities of industrial drilling fluids.[1]
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* Retired Senior Judge assigned to the Superior Court.
1 Barite is one of several components used to make “drilling mud.” See
Appellees’ Brief at 7 (“When a company drills a natural-gas well, it uses a
substance called ‘drilling mud’ to keep the bore[]hole ‘open and stable’ and to
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[Mr. Dobransky] was employed as a truck driver by Northwest
Concrete Products, Inc., d.b.a. Northwest Logistics. In that
capacity, [Mr. Dobransky] was delivering a truckload of barite to
the EQT Production Company[-]owned well site in Greene County
and was depositing the truckload of barite into barite storage
tanks placed, owned, and/or maintained by Halliburton Energy
Services, Inc.
[Mr. Dobransky] alleges that, because of [Appellees’] failure to
operate the well site in a safe manner, he was exposed to barite
when the cap of a storage tank blew off releasing barite into his
face and onto his person. Among other deficiencies, [Mr.
Dobransky] alleges the tank was missing a ball valve and pressure
gauge.
[Appellees] filed [a] [m]otion for [s]ummary [j]udgment[,]
arguing that they were [Mr.] Dobransky’s statutory employers
[under Section 302(a) of the Workers’ Compensation Act (“the
Act”), codified at 77 P.S. § 461,] and, as such, are immune from
tort liability.
Trial Court Opinion (TCO), 5/22/19, at 2-3.
The trial court granted Appellees’ motion for summary judgment based
on the statutory employer defense.2 Mr. Dobransky subsequently filed a
timely notice of appeal. The trial court then directed Mr. Dobransky to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b), and he timely complied.
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carry material out of the bore[]hole while drilling is occurring. Barite is a
necessary ingredient of drilling mud in that it is a weighting material that helps
the mud ‘push back against’ the rock formation through which the bore[]hole
is being drilled.”) (footnotes omitted); Mr. Dobransky’s Brief at 7 (noting that
barite “is one of several components of the ‘mud,’’’ and that the other
components are “water, grounded clay, polymer, filtration control agent, and
alkalinity control agents”) (citation omitted).
2 In the trial court’s opinion and order granting Appellees’ motion for summary
judgment, the trial court did not address any of the alternative grounds for
summary judgment raised by Appellees in their motion.
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Presently, Mr. Dobransky raises a single issue for our review:
Is a person who merely drives a truck to deliver a single raw
material to a well site nevertheless within the specialized definition
of statutory employee in [Section] 302(a) of the Workers[’]
Compensation Act as one whose work consists of “the removal,
excavation, or drilling of soil, rock, or minerals” where (1) the raw
material at issue is only one of several components of a fluid that
is poured into an empty bore hole to maintain the integrity of the
bore and (2) the purported statutory employer neither develops
the formula for the fluid, mixes the components of the fluid, nor
even pours the fluid into the empty hole?
Mr. Dobransky’s Brief at 3 (unnecessary emphasis omitted).
We apply the following standard of review to an order granting a motion
for summary judgment:
We view the record in the light most favorable to the non-moving
party, and all doubts as to the existence of a genuine issue of
material fact must be resolved against the moving party. Only
where there is no genuine issue as to any material fact and it is
clear that the moving party is entitled to a judgment as a matter
of law will summary judgment be entered. Our scope of review of
a trial court’s order granting or denying summary judgment is
plenary, and our standard of review is clear: the trial court’s order
will be reversed only where it is established that the court
committed an error of law or abused its discretion.
Doman v. Atlas America, Inc., 150 A.3d 103, 105 (Pa. Super. 2016)
(citation omitted).
In granting summary judgment to Appellees, the trial court wholly relied
on Doman, which it found to be “on-point both legally and factually.” TCO at
3. The Doman Court summarized the facts before it as follows:
In September 2006, Atlas entered into an oil and gas lease with
Frieda Springer (“Springer”), for the purpose of drilling, operating,
producing, and removing oil and gas from her property in Greene
County. Atlas subsequently entered into a Drilling Bid Proposal
and Footage Drilling Contract (“Footage Drilling Contract”) with
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Gene D. Yost & Son, Inc. (“Yost”), a drilling contractor, to drill
multiple wells in Fayette County and Greene County, including
Well No. 13 on Springer’s property (“the Springer Well”).2 Under
the terms of the Footage Drilling Contract, Yost was required to
provide the necessary equipment and labor, and to drill the wells
to the contract footage depth, as specified by Atlas.
2 The Springer Well is a shallow, low-pressure vertical well
drilled into the Upper Devonian Shale formation. Such wells
commonly involve footage contracts with well-drilling
companies, whereby the oil and gas lessee pays the drilling
company a per-foot rate to drill to a specified depth, referred
to as the contract footage depth. When drilling is complete,
the contracted drilling company is required to remove the
drilling pipe, “shut in” the well, and remove the drilling
equipment so the lessee can move into the production
stage.
Yost began drilling at the Springer Well site in November 2007,
and the well reached the contract footage depth on December 2,
2007. Yost personnel worked overnight to remove the drilling pipe
from the Springer Well and “shut in” the well, leaving the gas in
the well bore. The Tulsa Valve, which is situated on top of the
well head and is used to contain the gas within the well, was closed
at this time. Rock A. Doman (“Doman”) and another Yost
employee began removing the blow-out preventer flange, which
was attached to the Tulsa Valve, from beneath the rig platform.
While the men unscrewed the flange from the Tulsa Valve
assembly, they inadvertently loosened the pressurized piping
below the Tulsa Valve. The Tulsa Valve and the blow-out
preventer flange detached from the well head and struck Doman.
Doman was thrown approximately 60 feet above ground level
before landing about 30 to 40 feet from the well rig, and was
fatally injured.
Yost paid workers’ compensation benefits to Doman’s fiancé, for
the benefit of her minor child.
Id. at 104 (footnote omitted).
Doman’s estate subsequently initiated a wrongful death and survival
action against Atlas, asserting, inter alia, various theories of negligence. Id.
at 105. Atlas filed a motion for summary judgment, alleging that it qualified
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as a statutory employer under Section 302(a) of the Act and, therefore, was
immune from tort liability. Id. The trial court granted summary judgment in
favor of Atlas, and the estate appealed. Id.
On appeal, this Court noted that “[a] contractor may be deemed a
statutory employer if the requirements of … Section 302(a) … have been
satisfied.” Id. at 106 (citations omitted). It recognized that Section 302(a)
provides:
§ 461. Coverage of employees of subcontractor;
subcontractor defined; exception.
A contractor who subcontracts all or any part of a contract and his
insurer shall be liable for the payment of compensation to the
employes of the subcontractor unless the subcontractor primarily
liable for the payment of such compensation has secured its
payment as provided for in this act. Any contractor or his insurer
who shall become liable hereunder for such compensation may
recover the amount thereof paid and any necessary expenses
from the subcontractor primarily liable therefor.
For purposes of this subsection, a person who contracts with
another (1) to have work performed consisting of (i) the removal,
excavation or drilling of soil, rock or minerals, or (ii) the cutting
or removal of timber from lands, or (2) to have work performed
of a kind which is a regular or recurrent part of the business,
occupation, profession or trade of such person shall be deemed a
contractor, and such other person a subcontractor. This
subsection shall not apply, however, to an owner or lessee of land
principally used for agriculture who is not a covered employer
under this act who contracts for the removal of timber from such
land.
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Id. (quoting 77 P.S. § 461; emphasis in opinion).3 This Court then observed
that statutory employers enjoy immunity from tort liability, and acknowledged
that “Section 302(a) does not require the primary contractor to occupy or
control a worksite in order to be deemed the statutory employer of the
subcontractor’s employees.” Id. at 107 (citation omitted). It then discerned:
[B]ased upon the plain language of the statute, we conclude that
the trial court correctly applied Section 302(a) to determine that
Atlas is Doman’s statutory employer. Because Doman was
employed by Yost to perform work involving the “removal,
excavation or drilling of … minerals” (natural gas), the facts of this
case implicate the specialized definition found in Section 302(a).
Atlas, as the primary contractor that subcontracted the drilling
process at the Springer Well, is Doman’s statutory employer as a
matter of law. Consequently, Atlas is entitled to tort immunity,
pursuant to Section 203 [of the Act, codified at 77 P.S. § 52],
regardless of the fact that Yost already had paid Doman’s worker’s
compensation benefits. See Patton v. Worthington
Associates, Inc., … 89 A.3d 643, 645 ([Pa.] 2014) (holding that
“[the Supreme] Court has previously determined that this
immunity pertains by virtue of statutory[ ] employer status alone,
such that it is accorded even where the statutory employer has
not been required to make any actual benefit payments[]”); see
also Fonner v. Shandon, Inc., … 724 A.2d 903, 906-08 ([Pa.]
1999) (stating that the 1974 amendments to the Act did not
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3 The Doman Court noted that our Supreme Court has held that “neither the
McDonald[ v. Levinson Steel Co., 153 A. 424 (Pa. 1930)] test, nor a per se
owner exclusion applies under Section 302(a)….” Doman, 150 A.3d at 108
(quoting Six L’s Packing Co. v. Workmen’s Comp. Appeal Bd., 44 A.3d
1148, 1159 (Pa. 2012)); see also id. at 105 n.5 (“In McDonald, the Supreme
Court set forth the following five elements necessary to create the statutory
employer relationship: ‘(1) an employer who is under contract with an owner
or one in the position of an owner[;] (2) premises occupied by or under the
control of such employer[;] (3) a subcontract made by such employer[;] (4)
part of the employer’s regular business [e]ntrusted to such subcontractor[;]
[and] (5) an employee of such subcontractor.’”) (quoting McDonald, 153 A.
at 426).
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change a statutory employer’s entitlement to tort immunity even
if the direct employer paid benefits for a worker’s injuries under
the Act). Based upon the foregoing, we are constrained by the
terms of the Act and the relevant case law to affirm the trial court’s
[o]rder granting summary judgment in favor of Atlas.
Id. at 109 (footnote and some internal citations omitted).4
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4 Despite granting summary judgment in favor of Atlas, the Doman Court
went on to voice its dissatisfaction with the result it was constrained to reach,
conveying:
[T]here have been prior calls to the legislature to reconsider
Pennsylvania’s statutory scheme. See Patton, 89 A.3d at 650
(Baer, J., concurring) (urging the legislature “to eliminate the
doctrine, so that it no longer serves as blanket immunity for
general contractors, thwarting a victim’s right to recover from a
tortfeasor”); see also Fonner, 724 A.2d at 908 (Nigro, J.,
dissenting) (stating that “[c]ommon sense and logic dictate that
the general contractor should not reap the benefits of civil liability
[immunity] unless it undertakes responsibility of compensation
coverage[]”). We echo those calls and agree that, following the
1974 amendments to the Act, the statutory employer doctrine no
longer serves the remedial purpose of the Act. Traditionally, the
secondary liability imposed on statutory employers was meant to
ensure that an injured worker will be afforded payment of
benefits, even in the event of default by his primary employer.
See Patton, 89 A.3d at 645; see also Six L’s Packing, 44 A.3d
at 1158-59 (stating that “the Legislature meant to require persons
(including entities) contracting with others … to assure that the
employees of those others are covered by workers’ compensation
insurance, on pain of assuming secondary liability for benefits
payment upon a default[]”). The tort immunity associated with
the imposition of secondary liability “reflects the historical quid
pro quo between an employer and employee whereby the
employer assumes liability without fault for a work-related
injury….” Tooey v. AK Steel Corp., … 81 A.3d 851, 860 ([Pa.]
2013) (citation omitted). However, the Act was amended in 1974
to require that all employers provide workers’ compensation
coverage. See Fonner, 724 A.2d at 905 (noting that, prior to
1974, the Act contained “elective compensation” language).
Notwithstanding, the 1974 amendments allowed general
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Turning to the case sub judice, the trial court — relying on Doman —
reasoned:
[Mr.] Dobransky initially requests this [c]ourt to find that he was
not involved in work related to the “removal, excavation or drilling
of ... minerals.” The [c]ourt cannot find as such, instead finding
that [Mr.] Dobransky’s work was pursuant to a contract to have
work performed consisting of the removal, excavation or drilling
of minerals. 77 P.S. § 461.
Halliburton worked on the EQT well[]site pursuant to a master
services agreement which contracted Halliburton to perform tasks
including drilling. Northwest Logistics was contracted through
Halliburton to provide transportation services. Under the above[-
]recited Doman analysis, Section 302(a) applies. Halliburton is
accordingly [Mr. Dobransky’s] statutory employer.
Vertical privity extends the statutory employer immunity to EQT
since EQT had a contract with Halliburton and Halliburton had
subcontracted services to Northwest Logistics, the direct employer
of Dobransky.
TCO at 6.
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contractors to remain insulated from tort liability, despite never
being required to provide workers’ compensation benefits to
injured employees of subcontractors, and created a windfall
immunity shield. Thus, “the mandatory nature of workers’
compensation has rendered the statutory employer doctrine
obsolete[,] … [and] adversely impact[s] worker safety by
eliminating the traditional consequences (money damages) when
a general contractor’s negligence harms a subcontractor’s
employee.” See Patton, 89 A.3d at 650-51 (Baer, J.,
concurring); see also Travaglia v. C.H. Schwertner & Son,
Inc., … 570 A.2d 513, 518 ([Pa. Super.] 1989) (“Section 203 of
the [ ] Act, which was designed to extend benefits to workers,
should not be casually converted into a shield behind which
negligent employe[r]s may seek refuge.”).
Doman, 150 A.3d at 109-10 (some brackets added).
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On appeal, Mr. Dobransky argues that “[a] person who merely drives a
truck to deliver a single raw material to a well site is not a person whose work
consists of ‘the removal, excavation, or drilling of soil, rock, or minerals’ within
[Section] 302(a) of the … Act.” Mr. Dobransky’s Brief at 10 (emphasis
omitted). He contends that Doman is distinguishable, as “[t]here was never
any question that the Yost employee … who died in the explosion at the Atlas
drill site was involved in work that consisted of ‘drilling,’ and thus was a
statutory employee of Atlas. This is because Atlas engaged Yost to drill wells,
and [Doman] was a Yost employee who died during the final stages of the
actual drilling process.” Id. at 12. Therefore, he asserts that Doman “is no
basis per se for the trial court to have held that [the mere delivery of] one of
several raw materials that are combined at a natural gas well to create a fluid
that is thereafter poured down an empty bore hole to maintain the integrity
of the bore constitutes the actual ‘removal’ of natural gas, ‘excavation’ of
natural gas, or ‘drilling’ of natural gas.” Id. at 11.
In response, Appellees maintain that,
Mr. Dobransky was involved in transporting and loading a product
into tanks at the well[]site that was contemporaneously used in
the ‘removal, excavation, or drilling’ for natural gas.[5]
[Halliburton] worked on the EQT well[]site pursuant to a master
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5 On the day in question, Appellees state that Mr. Dobransky, after filling the
first barite tank without incident, “alleged that, on request from a [Halliburton]
employee, he waited approximately a half hour to fill the second tank so that
the drilling team could contemporaneously use the barite he had just
provided.” Appellees’ Brief at 10 (footnote omitted). Mr. Dobransky avers
that he sustained his injuries while filling the second tank. Id. at 11; Mr.
Dobransky’s Brief at 8.
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services agreement between the two companies by which
[Halliburton] performed a variety of tasks related to, among other
things, drilling and removal of natural gas. [Halliburton] contracts
with Mr. Dobransky’s employer, Northwest [Logistics], for
transportation and product-unloading services generally, and that
contract included the work Mr. Dobransky was performing when
he was injured. Accordingly, [Halliburton] was “[a] contractor
who subcontract[ed] all or part of a contract” to Mr. Dobransky’s
employer. Thus, under Doman, Section 302(a) applies.
Appellees’ Brief at 18-19 (footnotes omitted).
Looking at the relevant language of Section 302(a), we determine that
the trial court erred in granting summary judgment in favor of Appellees on
this basis. Section 302(a) sets forth that “a person who contracts with another
(1) to have work performed consisting of (i) the removal, excavation or drilling
of soil, rock or minerals … shall be deemed a contractor, and such other person
a subcontractor.” 77 P.S. § 461. Halliburton did not contract with Northwest
Logistics to have work performed consisting of the removal, excavation or
drilling of soil, rock or minerals; instead, Appellees themselves state that
“[Halliburton] contract[ed] with Mr. Dobransky’s employer, Northwest
[Logistics], for transportation and product-unloading services
generally….” Appellees’ Brief at 19 (emphasis added; footnote omitted); see
also id. at 6 (“One of [Halliburton’s] contractual responsibilities was to deliver
and load a substance known as barite at the well[]site. [Halliburton] in turn
subcontracted those delivery and unloading duties to Northwest [Logistics]
pursuant to an agreement between the two companies.”) (footnotes omitted);
TCO at 6 (“Northwest Logistics was contracted through Halliburton to provide
transportation services.”). Thus, Northwest Logistics did not remove,
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excavate, or drill for minerals, but simply transported and unloaded materials
to the site. Its work did not include removing, excavating, or drilling.
Accordingly, we agree with Mr. Dobransky that the trial court’s decision is “an
unnecessary expansion of a compensation scheme that has been repeatedly
ridiculed as obsolete in light of subsequent changes to other sections of the
Workers[’] Compensation Act.” Mr. Dobransky’s Brief at 13 (emphasis in
original). Thus, we vacate the trial court’s order granting summary judgment
in favor of Appellees based on Section 302(a) and Doman, and remand.6
Order vacated. Case remanded. The Prothonotary of this Court is
hereby ordered to return the record to the trial court. Jurisdiction
relinquished.
Judge Pellegrini joins this opinion.
Judge Bowes files a dissenting opinion.
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6 Appellees devote a substantial portion of their brief to arguing various
alternative grounds for the entry of summary judgment in their favor, urging
us to affirm the trial court’s order on one of these other grounds. However,
the trial court did not address any of these arguments below in its opinion,
and we decline to do so in the first instance. See Branton v. Nicholas Meat,
LLC, 159 A.3d 540, 562 n.21 (Pa. Super. 2017) (observing that the trial court
did not address an issue in its opinion granting summary judgment and
therefore remanding the matter so that the trial court could rule on the issue
in the first instance).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2020
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