The opinion
J-A04009-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MANUEL UZHO AND LUIS UZHO IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
TOP GUN CONSTRUCTION, INC., TOP
GUN ENTERPRISES. LLC FRIEL
PLASTERING & STUCCO, INC.
Appellant No. 638 EDA 2020
Appeal from the Order entered December 30, 2019
In the Court of Common Pleas of Philadelphia County
Civil Division at No: 170800537
BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY STABILE, J.: FILED APRIL 07, 2021
Manuel Uzho (“Uzho”) and Luis Uzho (“Luis”) (collectively “Appellants”),
appeal from the December 30, 2019 order1 entered in the Court of Common
Pleas of Philadelphia County granting summary judgment in favor of
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* Retired Senior Judge assigned to the Superior Court.
1 Although the order was signed on December 20, 2019 and was entered on
the docket on December 24, 2019, notice of the order was not given until
December 30, 2019. In accordance with Pa.R.C.P. 236, the prothonotary is
to give written notice of the entry of an order and note in the docket the giving
of the notice. As this Court recently reiterated in Carr v. Michuck, 234 A.3d
797 (Pa. Super. 2020), in the context of an appeal, “an order is not appealable
until it is entered on the docket with the required notation that appropriate
notice has been given.” Id. at 805 (quoting Frazier v. City of Philadelphia,
735 A.2d 113, 115 (Pa. 1999)).
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Appellees, Top Gun Construction, Inc., and Top Gun Enterprises, LLC
(collectively “Top Gun”). Appellants contend the trial court erred in granting
summary judgment because Top Gun failed to meet all criteria to be
considered a statutory employer as a matter of law. Upon review, we affirm.
As our Supreme Court recently reiterated:
In reviewing a grant of summary judgment, [an appellate court’s]
standard of review is de novo and [the] scope of review is plenary.
Pyeritz v. Commonwealth of Pa., State Police Dep't, 613 Pa.
80, 32 A.3d 687, 692 (2011). A trial court should grant summary
judgment only in cases where the record contains no genuine
issue of material fact and the moving party is entitled to judgment
as a matter of law. Summers v. Certainteed Corp., 606 Pa.
294, 997 A.2d 1152, 1159 (2010). The moving party has the
burden to demonstrate the absence of any issue of material fact,
and the trial court must evaluate all the facts and make reasonable
inferences in a light most favorable to the non-moving party. Id.
The trial court is further required to resolve any doubts as to the
existence of a genuine issue of material fact against the moving
party and “may grant summary judgment only where the right to
such a judgment is clear and free from doubt.” Toy v. Metro.
Life Ins. Co., 593 Pa. 20, 928 A.2d 186, 195 (2007). [] An
appellate court may reverse a grant of summary judgment only if
the trial court erred in its application of the law or abused its
discretion. Id. at 1159.
Bourgeois v. Snow Time, Inc., 242 A.3d 637, 649-50 (Pa. 2020).
Cognizant of its obligation to “examine the record in a light most
favorable to the nonmoving party,” Trial Court Opinion, 6/12/20, at 4 (citation
omitted), the court summarized the facts and procedural history and as
follows:
On February 25, 2016, Appellants, a father and adult son, were
employed by Morning Plastering and Stucco, Inc. (hereinafter
“Morning”), as manual laborers on a work site located at 4525
Walnut Street, Philadelphia, Pennsylvania 19139 (hereinafter the
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“Project”). Morning was the subcontractor of Friel Plastering &
Stucco, Inc. (hereinafter “Friel Plastering”), another company
hired as a subcontractor by the general contractor for the Project,
Top Gun. Top Gun contracted with Friel Plastering to do stucco
work for the Project, including the erection of scaffolding. Friel
subsequently entered into a sub-subcontract with Morning to
perform the stucco work.
Friel Plastering’s employees erected the scaffolding using Friel
Plastering’s own materials and equipment. Friel was also
responsible to make sure the scaffolding was safe once erected.
On the day of the accident, [Uzho] arrived at the job site finding
the scaffolding already set up.[2] Nobody instructed [Uzho] what
to do on the job site that day or where to go before he went on
the scaffolding; he went straight to the fifth floor of the scaffolding
because that was the floor he always picked to work on. [Luis]
was working on the second floor of the scaffolding, transporting
cement to his father on the fifth floor through the use of a pulley
system. [Uzho] testified that just before he was caused to fall, he
observed the scaffolding “moving” and was suddenly caused to
crash against the wall of the building before falling to the ground
five (5) floors below. As a result of the fall [Uzho] suffered
catastrophic injuries and has been left paralyzed from the chest
down.
Following the incident, [Uzho] filed a worker’s compensation claim
against Morning. The Pennsylvania Bureau of Workers’
Compensation awarded [Uzho] benefits in the amount of $270 per
week. On August 10, 2017, [Appellants] filed a civil complaint
against Top Gun, Morning, and Friel Plastering, that was ultimately
amended to include allegations of negligence and vicarious
liability. [Luis] brought his own claim for negligent infliction of
emotional distress. In the Amended Complaint, [Appellants]
averred that Top Gun was the general contractor for the Project.
In Top Gun’s Answer, Top Gun denied the enumerated averments
listed exhaustively against it. Despite the general denial to
[Appellants’] averments, [Top Gun] admitted that [it was] the
general contractor for the Project.
On November 4, 2019, [Top Gun] filed a Motion for Summary
Judgment seeking dismissal of any and all claims or cross-claims
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2 The day of the accident was the second day Uzho worked on the project.
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against them. [Top Gun] presented several theories as to why
they should be dismissed from the action. One such argument
was that Top Gun is immune from tort liability under the Workers’
Compensation Act by virtue of Top Gun’s status as general
contractor for the Project. [Appellants] responded to [Top Gun’s]
Motion arguing, inter alia, that due to [Top Gun’s] general denial
to Paragraph 7 of the Amended Complaint, there were genuine
issues of material fact as to the actual status of Top Gun. This
court agreed with [Top Gun’s] arguments and on December 20,
2019, granted their motion finding that Top Gun was immune from
tort liability as the general contractor of the Project. Thereafter,
on January 29, 2020, [Appellants] simultaneously reached a
settlement with the remaining defendants in the matter and filed
the present appeal.
Id. at 2-4 (citations to pleadings and references to deposition transcripts
attached as exhibits to Motion for Summary Judgment omitted).
Following entry of summary judgment in favor of Top Gun, and entry on
the docket of the settlement with the remaining parties, Appellants filed their
appeal to this Court. The trial court directed Appellants to file a Rule 1925(b)
statement and Appellants complied.3 The trial court subsequently issued its
Rule 1925(a) opinion.
Appellants ask this Court to consider one question:
Whether the trial court erred in entering summary judgment
against Appellants where Appellee failed to meet all of the criteria
to be considered a statutory employer as a matter of law?
Appellants’ Brief at 3. Before considering this issue, we address the assertion
by the trial court and by Top Gun that this appeal should be dismissed as
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3 We remind Appellants’ counsel of the directive in Pa.R.A.P. 2111(a)(11) and
(d) to append a copy of the Rule 1925(b) concise statement to an appellant’s
brief filed in this Court.
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untimely filed. As mentioned above, notice of the trial court’s order granting
summary judgment in favor of Top Gun was provided to all parties on
December 30, 2019. See n. 1. However, because the order did not dispose
of all claims against all parties, it was not a final order. “It is well settled that
the interlocutory orders dismissing various parties piecemeal from a lawsuit
may not be appealed until the case is concluded as to the final remaining party
and the case is therefore resolved as to all parties and all claims.” Burkey v.
CCX, Inc. 106 A.3d 736, 738 (Pa. Super. 2014). See also Pa.R.A.P.
341(b)(1).
Moreover, a case may be resolved against the final defendant by
other than an order of court, as happens where the case against
the sole remaining defendant is discontinued or settled, and a
docket entry to the effect that the claim was discontinued or
settled may serve to render the prior judgments final and
appealable[.]
Burkey, 106 A.3d at 739. Here, the case was finally resolved once a
settlement with remaining parties was noted on the docket on January 27,
2020. Appellants filed their appeal two days later, on January 29, 2020.
Therefore, Appellants’ appeal was timely filed.
We now turn to the merits of Appellants’ challenge to the grant of
summary judgment. As reflected above, Appellants contend the trial court
erred in granting summary judgment because Top Gun did not satisfy the
criteria for designation as a statutory employer. As a statutory employer, Top
Gun would be immune from tort liability under the Workers’ Compensation
Act.
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In Patton v. Worthington Associates, Inc., 89 A.3d 643 (Pa. 2014),
our Supreme Court reinforced the established doctrine of statutory employer
immunity, explaining:
Pursuant to Section 302(b) of the Workers’ Compensation Act,1 77
P.S. § 462, general contractors bear secondary liability for the
payment of workers’ compensation benefits to injured workers
employed by their subcontractors. See McDonald v. Levinson
Steel Co., 302 Pa. 287, 294–95, 153 A. 424, 426 (1930). In this
sense, general contractors have been denominated “statutory
employers” relative to workers’ compensation liability, although
they are not common-law employers of subcontractor employees.
Id. at 292, 153 A. at 425. The Legislature’s purpose in imposing
this status upon general contractors was remedial, as it wished to
ensure payment of workers’ compensation benefits in the event of
defaults by primarily liable subcontractors.
1
Act of June 2, 1915, P.L. 736 (as amended, 77 P.S. §§ 1–1041.1,
2501–2626) (the “WCA” or the “Act”).
Concomitant with the treatment of traditional employers,
statutory employers under Section 302(b) enjoy a measure of
immunity from liability in tort pertaining to work-related injuries
for which they bear secondary liability under the Act. See 77 P.S.
§ 52 (embodying Section 203 of the Act); see also 77 P.S.
§ 481(a) (providing that liability of employers under the WCA
serves as an exclusive remedy). This 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 Fonner v. Shandon, Inc., 555 Pa. 370,
380, 724 A.2d 903, 907 (1999).
Id. at 645 (citation omitted.
The trial court determined that Top Gun was a general contractor on the
project, noting that Appellants averred that fact in their Complaint. Trial Court
Opinion, 6/12/20, at 6 (citing Appellants’ Amended Complaint [Exhibit “A” to
Motion for Summary Judgment] at ¶ 7). While Top Gun generally denied
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subsections of Paragraph 7 in its Answer to the Amended Complaint, Top Gun
did admit it was the general contractor of the project. Id. (citing Top Gun’s
Answer and New Matter at ¶ 7). “Our appellate court has repeatedly held that
averments by a party in the pleadings ‘constitute binding judicial admissions,
conclusive in their nature insofar as their effect is confined to the case [in]
which they are filed.’” Id. at 8 (quoting Steinhouse v. Herman Miller, Inc.,
661 A.2d 1379, 1382 (Pa. Super. 1995) (additional citations omitted)).
Further, in Sheard v. J.J. Deluca Co., Inc., 92 A.2d 68 (Pa. Super. 2014),
in which a subcontractor’s employee was injured, this court explained, “Under
Pennsylvania law, [defendant] is a general contractor. To the extent [plaintiff]
attempts to dispute this conclusion on appeal, [plaintiff’s] own complaint
averred [defendant] undertook construction management responsibilities for
the project and was responsible for control of the jobsite. [Plaintiff’s]
averment demonstrates [defendant’s] status as a general contractor.” Id. at
78.
There is no question as to the status of the parties in the instant case.
Friel Plastering & Stucco, Inc., entered into its subcontracting agreement with
Top Gun on February 12, 2016, an agreement that required Friel to erect
scaffolding for the project and apply wire lath and underlayment to the
exterior of the building. Morning Plastering and Stucco, Inc. was a sub-
subcontractor to Friel Plastering & Stucco, Inc., under the terms of a
Subcontractor Agreement dated February 19, 2016. After Friel completed its
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tasks, Morning was to provide the actual plastering and stucco services. Uzho
was an employee of Morning. As in Sheard, the relationship between Top
Gun as the general contractor and Friel as a sub-subcontractor implicates the
statutory employer concept relative to employees of the subcontractor—and
sub-subcontractor—working on the project, including Uzho. As the trial court
concluded, “based on [Appellants’] own admissions and the testimonial record
present to this court, Top Gun was the general contractor for the Project
located at 4525 Walnut Street and is immune from civil liability by virtue of
its status as a statutory employer to both Appellants.” Trial Court Opinion,
6/12/20, at 10 (footnote omitted).
Finding no error of law or abuse of discretion in the trial court’s grant of
summary judgment based on Top Gun’s status as a statutory employer, or the
immunity it enjoys as a result of that status, we shall not disturb the court’s
ruling.
Appellants devote the argument in their brief to a challenge of Top Gun’s
status as a statutory employer. Although we have determined Appellants are
not entitled to relief, we shall address Appellants’ analysis of the statutory
employer issue.
Our Supreme Court established the test for qualifying as a statutory
employer in McDonald. To create the relation of statutory employer under
the Workers’ Compensation Act, all of the following elements must be present:
(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
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control of such employer. (3) A subcontract made by such
employer. (4) Part of the employer’s regular business intrusted
to such subcontractor. (5) An employee of such subcontractor.
McDonald, 153 A. at 426.
Appellants contend the first element is not satisfied because there is no
evidence that Top Gun was under contract with the owner of the project,
University Realty. The crux of Appellants’ argument is that a copy of the
written contract was not produced in discovery, nor was it attached to the
motion for summary judgment. However, during his deposition, Top Gun
owner, Ted Lescas, testified that he signed a contract with University Realty—
in the format used by the American Institute of Architects—to erect a four-
story 40-unit multifamily dwelling for student housing. Deposition of Theodore
Lescas, 3/27/19, at 14-16. As in Birt v. Firstenergy Corp., 891 A.2d 1281
(Pa. Super. 2006), even in absence of a copy of the written contract specifying
parties’ respective duties, “there can be no serious question” that University
Realty and Top Gun entered into an agreement whereby Top Gun would erect
the building. Id. at 1293. Further, we note that University Realty is identified
as the property owner in the subcontract for stucco work between Top Gun
and Friel Plastering and Stucco, Inc. See Exhibit “B” to Motion for Summary
Judgment. The first element of the McDonald test is established.
Top Gun must next establish that the premises were occupied or under
its control. While not dispositive, Appellants erroneously claim that this
element requires that the “premises must have been actually occupied and
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under actual control by the general contractor before the Statutory Employer
defense may been invoked.” Appellants’ Brief at 14 (emphasis in original).
McDonald clearly requires one or the other, not both, as Appellants suggest.
In fact, the case cited by Appellants in support of their contention that the
general contractor must occupy and control the premises specifically instructs,
“An employer will satisfy this element of the McDonald test either if he
occupies the premises or if he is in control of the premises.” Emery v.
Leavesly McCollum, 725 A.2d 807, 811 (Pa. Super. 1999) (citation omitted)
(emphasis in original).
Appellants offer references to the Lescas deposition in support of their
arguments that Top Gun did not “occupy AND control” the premises. However,
the cited references are not dispositive. For instance, Appellants contend Top
Gun did not have its employees inspect the scaffolding. In Emery, this Court
observed that “the fact that the subcontractor used its own supervisors to
directly oversee the subcontractor’s employees does not mean the general
contractor did not retain actual control over the project and the premises in
general.” Id. at 811 (citation omitted). Here, Friel—one of the approximately
20 subcontractors on the project4—was the subcontractor that erected the
scaffolding. Friel employee, Michael Gallagher, conducted the inspection of
the scaffolding to ensure it complied with OSHA requirements. See Deposition
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4 See Deposition of Theodore Lescas, 3/27/19, at 99-100.
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of Denis Friel, 3/25/19, at 28-35. As in Emery, not only did Friel have a
representative onsite to oversee the work, but also Top Gun had a trailer on
the premises and a project manager/superintendent, Philip Pizzo, who did
scheduling and oversaw the entire worksite and subcontractors. See
Deposition of Philip Pizzo, 3/27/19, at 12-19. Top Gun met the second
McDonald element.
Appellants contend Top Gun also failed to establish the third McDonald
element, i.e., a subcontract. The record includes copies of subcontracts
between Top Gun and Friel and the sub-subcontract between Friel and Uzho’s
employer, Morning. See Deposition of Denis Friel, 3/25/19, at 35-45, Exhibits
2-4. Top Gun has established the third McDonald element.
Appellants next argue that applying stucco was not part of Top Gun’s
regular business and, therefore, Top Gun has not satisfied the fourth
McDonald element. Appellants do not develop any argument in this regard,
see Appellants’ Brief at 17, stating simply there was no evidence to
demonstrate that “stucco application” was part of Top Gun’s “regular
business.” Id. at 17-18. Clearly, stucco application is one aspect of the
construction that made up Top Gun’s regular business as general contractor.
Top Gun met the fourth prong of the McDonald test.
Appellants also assert Top Gun failed the fifth element of the McDonald
test because there was no proof Uzho was an employee of Top Gun’s
subcontractor. Uzho testified that he worked for Morning. See Deposition of
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Manuel Uzho, 12/10/18, at 114. Mike Gallagher from Friel Plastering testified
that Friel had a subcontract with Morning for plastering and stucco work. Friel
had subcontracted with Morning on 50 or 60 jobs prior to Uzho’s accident,
Uzho had worked for Morning on every one of them, and Uzho was probably
Morning’s “best guy” at the time of the accident. See Deposition of Mike
Gallagher, 3/25/19, at 28. There can be no serious question whether Uzho
was an employee of Top Gun’s sub-subcontractor. Top Gun satisfied the fifth
McDonald element.
Whether under the statutory employer analysis conducted by the trial
court based on admissions in the pleadings or under the statutory employer
test set forth in McDonald, Top Gun was entitled to summary judgment.
Finding no error or law or abuse of discretion in the trial court’s grant of
summary judgment in favor of Top Gun, we will not disturb its ruling.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2021
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