The opinion
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2022 PA Super 61
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 Order Entered May 22, 2019
In the Court of Common Pleas of Greene County Civil Division at No(s):
AD 142-2014
BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., LAZARUS, J., OLSON,
J., DUBOW, J., KUNSELMAN, J., MURRAY, J., and McCAFFERY, J.
OPINION BY BENDER, P.J.E.: FILED: APRIL 11, 2022
Appellant, Eric Dobransky, appeals from the trial court’s May 22, 2019
order granting summary judgment in favor of Appellees, EQT Production
Company (“EQT”) and Halliburton Energy Services, Inc. (“HESI”) (referred to
herein collectively as “Appellees”). After careful review, we vacate the trial
court’s order and remand. In addition, we deny Appellees’ application to strike
and preclude argument.
The matter before us concerns whether HESI — and by extension, EQT
— qualify as statutory employers under the Workers’ Compensation Act
(“WCA” or “the Act”)1 and, as such, enjoy immunity from tort liability for
injuries suffered by Mr. Dobransky. By way of background, under the WCA,
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1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041; 2501-2710.
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employers must pay workers’ compensation benefits, regardless of
negligence, to employees who sustain injuries in the course of their
employment. See 77 P.S. § 431. In exchange for receiving these benefits
without having to prove negligence, employees may not sue their employers
in tort for injuries they incurred in the course of their employment. See 77
P.S. § 481(a). In other words, with respect to work-related injuries, the
employers have immunity from tort liability.
Pertinent to the issues before us, pursuant to Section 302(a) of the
WCA, codified at 77 P.S. § 461, certain contractors who meet a specialized
definition take on secondary liability for the payment of workers’
compensation benefits to the injured employees of their subcontractors. See
77 P.S. § 461; see also Six L’s Packing Co. v. W.C.A.B. (Williamson), 44
A.3d 1148, 1157 (Pa. 2012). Thus, in the event the subcontractor-employers
cannot or will not pay workers’ compensation benefits to their subcontractor-
employees, these contractors assume workers’ compensation liability. 77 P.S.
§ 461. As such, despite not being the actual employers of the subcontractor-
employees, these contractors are considered “statutory employers” of the
subcontractor-employees due to their treatment under the WCA. See Patton
v. Worthington Associates, Inc., 89 A.3d 643, 645 (Pa. 2014). Like the
treatment of actual employers under the WCA, in return for assuming
secondary liability for the payment of workers’ compensation benefits,
statutory employers enjoy immunity in tort for injuries the subcontractor-
employees receive during the course of their employment. See 77 P.S. §
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481(a); Doman v. Atlas America, Inc., 150 A.3d 103 (Pa. Super. 2016).
The contractors enjoy this immunity “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 payment.” See Patton, 89 A.3d at
645 (citing Fonner v. Shandon, Inc., 724 A.2d 903, 907 (Pa. 1999))
(footnote omitted).
Facts
With that background in mind, we now turn to the facts before us. This
case arises out of injuries sustained by Mr. Dobransky from his exposure to
barite at Scott’s Run, a natural-gas well site leased and operated by EQT, on
June 19, 2012.2, 3 In order to drill and produce natural gas at Scott’s Run,
EQT subcontracted with numerous companies, including HESI. See Maddox’s
Dep. at 12-13. Pursuant to a master services agreement (“MSA”), EQT
contracted with HESI to perform various services for it related to both drilling
and hydraulic fracturing. See Appellees’ Motion for Summary Judgment,
7/2/18, at Exhibit B (“MSA”); Appellees’ Brief at 5-6; Mr. Dobransky’s
Substituted Brief at 7. Notably, at the Scott’s Run site, HESI provided EQT
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2As we discuss further infra, barite is “a weighing agent to increase densities
of industrial drilling fluids.” Trial Court Opinion (“TCO”), 5/22/19, at 2.
3 The type of well at Scott’s Run was a Marcellus horizontal well. See
Dobransky’s Omnibus Brief in Opposition to Summary Judgment, 8/1/18, at
Exhibit 21 (“Maddox’s Dep.”) at 15.
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with mud services. Maddox’s Dep. at 16-17. Bradley Maddox, EQT’s director
of drilling, described the mud services provided by HESI as follows:
[Mr. Dobransky’s counsel:] [W]hat does providing mud services
mean?
[Mr. Maddox:] So to drill a horizontal well, we have to have mud
in the hole to keep the hole open and stable, and carry cutting out
of the hole. And [HESI’s] function in that role is to provide [EQT]
a mud that will provide … those qualities to be able to drill the well
successfully and get casing in the ground.
***
[Mr. Dobransky’s counsel:] And when you say mud, can you define
mud for me?
[Mr. Maddox:] It is a water-based, semi[-]saturated, polymer-
based fluid, that has a variety of products in it to give it the
properties we need to drill the well.
[Mr. Dobransky’s counsel:] Are you able to tell me what’s in it?
[Mr. Maddox:] Barite is one of them. Xanthan gum is another
one. Salt is another product. We have a polymer. … There could
be other products in there … a pH pack ten, I think is another
product in there. There’s a lot of products in the mud that give it
the consistency that we need, keep the pH in check and the other
properties.
[Mr. Dobransky’s counsel:] Why is barite necessary?
[Mr. Maddox:] It’s a weighting material.
[Mr. Dobransky’s counsel:] Meaning it has weight?
[Mr. Maddox:] Yes.
[Mr. Dobransky’s counsel:] Why is that necessary?
[Mr. Maddox:] We need weight…. [W]hen drilling a horizontal
well, the overburden of the formation that we are drilling, if we
didn’t have a fluid in there that had … hydrostatic weight to push
back against that formation, the hole would not remain open to
get our drill bit through it and our casing in the ground.
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Maddox’s Dep. at 17, 18-19; see also id. at 7.
In providing EQT with mud services, HESI was responsible for gathering
the necessary raw materials to create the drilling mud, maintaining and
inspecting the tanks that held the barite, and keeping track of inventory. Id.
at 27; Mr. Dobransky’s Substituted Brief at 15 (“[HESI] did not purchase the
‘mud’ from a third[-]party supplier, but instead collected the necessary raw
materials to have the mud blended and stored at the EQT well site.”);
Appellees’ Brief at 22 (noting that HESI required that barite be delivered in
order to make the drilling mud).
In order to have the barite used in the drilling mud delivered to the
Scott’s Run well site, HESI executed a transportation agreement with
Northwest Concrete Products, Inc., d/b/a Northwest Logistics (“Northwest”),
under which Northwest agreed to “transport the goods or materials tendered
to it by [HESI] or any supplier of [HESI] to and from the origin and/or
destination points (and stop off points in between) as designated by [HESI]….”
Appellees’ Motion for Summary Judgment at Exhibit C (“Transportation
Agreement”) at ¶ 1; see also Mr. Dobransky’s Substituted Brief at 15;
Appellees’ Supplemental Brief at 16-17. Northwest also unloaded the goods
and materials it transported. See Appellees’ Brief at 6; Appellees’
Supplemental Brief at 9, 16-17; Mr. Dobransky’s Substituted Brief at 10.
Northwest employed Mr. Dobransky as a truck driver. TCO at 2. On the
day in question, Mr. Dobransky was delivering barite to the Scott’s Run site.
When unloading the barite into HESI’s storage tank, the cap blew off, releasing
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barite onto Mr. Dobransky’s face and onto his person. Id. at 2-3. Mr.
Dobransky claims that, among other deficiencies, the tank was missing a ball
valve and pressure gauge. Id. at 3. As a result of his exposure to the barite,
Mr. Dobransky alleges that he sustained severe and serious injuries, including
losing nearly half of his lung capacity. See, e.g., First Amended Complaint,
5/2/14, at ¶ 12.
Procedural History
Mr. Dobransky subsequently filed a negligence action against Appellees.
On July 2, 2018, Appellees filed a motion for summary judgment, arguing that
they were Mr. Dobransky’s statutory employers under Section 302(a) of the
WCA, and, therefore, immune from tort liability. Section 302(a) provides:
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 and who contracts for the removal of timber from
such land.
77 P.S. § 461 (“Section 302(a)”).
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In their motion for summary judgment, Appellees — relying on 77 P.S.
§ 461(1)(i) (“Section 302(a)(1)(i)”) and Doman, supra — argued that HESI
contracted with Mr. Dobransky’s employer, Northwest, to transport and
unload a product at the well site used in the “removal, excavation or drilling”
for natural gas, and that consequently, HESI is Mr. Dobransky’s statutory
employer and immune from tort liability. See Appellees’ Motion for Summary
Judgment at ¶¶ 39, 44. In addition, HESI asserted that, because EQT is in
vertical contractual privity with Northwest and HESI, EQT is also Mr.
Dobransky’s statutory employer such that it, too, is immune from suit. Id. at
¶¶ 45-51; see also Emery v. Leavesly McCollum, 725 A.2d 807, 811-12
(Pa. Super. 1999) (en banc) (determining that a general contractor could
qualify as the statutory employer of a sub-subcontractor’s employee, given
the vertical chain of contracts). As an alternative basis for summary
judgment, Appellees argued that they did not have a duty to Mr. Dobransky
with respect to the danger alleged in the complaint, see id. at ¶¶ 53-78, and
that Mr. Dobransky cannot demonstrate that the alleged accident was the legal
and proximate cause of the harm he alleges. Id. at ¶¶ 79-88.
Thereafter, Mr. Dobransky filed a response in opposition to Appellees’
summary judgment motion. In his response, Mr. Dobransky asserted, inter
alia, that he “was involved in the transporting and unloading of barite and
sand used at well sites for his employer, Northwest…. Under the contract,
Northwest was to provide bulk and vacuum transportation services.” Mr.
Dobransky’s Response in Opposition to Motion to Summary Judgment, 8/1/18,
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at ¶ 39. As such, he denied that he was “performing work involving the
removal, excavation, [or] drilling of solid rock [sic] or minerals” as
contemplated by Section 302(a)(1)(i). Id. (emphasis omitted). In addition,
he contested the alternative grounds on which Appellees sought summary
judgment. See id. at ¶¶ 53-88.
On September 4, 2018, the trial court issued an order stating that it
would consider the statutory employer defense raised in Appellees’ motion for
summary judgment. Trial Court Order, 9/4/18, at 1 (unnumbered pages).
The trial court permitted the parties to file briefs addressing Appellees’
statutory employer defense. Id. Moreover, the trial court stated that,
pending its decision on the statutory employer issue, all other proceedings
and motions were stayed (including consideration of the other grounds for
summary judgment raised by Appellees in their motion). Id. at 2.4
On September 17, 2018, Appellees filed a brief in support of their
statutory employer defense. Therein, they elaborated on their Section
302(a)(1)(i) argument, and additionally contended that HESI also qualified as
Mr. Dobransky’s statutory employer under 77 P.S. § 461(2) (“Section
302(a)(2)”), as the undisputed evidence — including the MSA between EQT
and HESI — shows that the “transportation and use of barite are regular and
recurrent parts of HESI’s business in providing drilling mud such as it did at
the Scott’s Run site.” Appellees’ Brief in Support of Statutory Employer
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4At this time, among other things, Mr. Dobransky’s motion for leave to file a
second amended complaint was pending before the trial court.
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Defense, 9/17/18, at 14. Therefore, they insisted that, “in the language of
Section 302(a)[(2)], HESI is a statutory employer with respect to Mr.
Dobransky because it contracted with Northwest…, Mr. Dobransky’s employer,
[] ‘to have work performed of a kind which is a regular or recurrent part of
the business, occupation, profession or trade of’ HESI.” Id. Appellees also
reiterated that, because EQT is in vertical contractual privity with HESI and
Northwest, EQT likewise qualifies as Mr. Dobransky’s statutory employer. Id.
at 15; see also Emery, supra.
On October 5, 2018, Mr. Dobransky filed his brief in opposition.
Specifically, regarding Appellees’ Section 302(a)(2) argument for immunity,
Mr. Dobransky countered that the MSA does not require HESI to engage in
the transportation of barite to well sites, and that HESI was “engaged in the
‘service’ of the well site, not in the business of transporting goods and
materials to the well site.” Mr. Dobransky’s Supplemental Brief in Opposition,
10/5/18, at 7. He claimed that Appellees were attempting to overextend the
statutory employer doctrine, positing that Appellees’ Section 302(a)(2)
argument “is akin to saying that a delivery driver who is supplying engine
parts to an automotive repair shop and was injured during the process, when
a negligently anchored shelving system fell on him, cannot recover against
the shop under the statutory employer doctrine. That is an absurdity.” Id.
On May 22, 2019, the trial court issued an opinion and order, granting
summary judgment in favor of Appellees based on their statutory employer
defense under Section 302(a)(1)(i) and Doman. See TCO at 1-7. In doing
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so, the trial court did not address whether Section 302(a)(2) applied, nor did
it consider any of the other, alternative grounds for summary judgment raised
by Appellees in their motion.
Mr. Dobransky subsequently filed a timely notice of appeal. The trial
court directed Mr. Dobransky to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b), and he complied.5 The trial court
then issued a statement in lieu of a Pa.R.A.P. 1925(a) opinion, in which it
referenced and relied upon the reasoning set forth in its May 22, 2019 opinion
and order.
On August 11, 2020, a divided three-judge panel of this Court vacated
the trial court’s order and remanded the case for further proceedings in a
published opinion. The majority ascertained that Appellees did not qualify as
Mr. Dobransky’s statutory employers under Section 302(a)(1)(i), as HESI did
not contract with Northwest to have work performed consisting of the removal,
excavation or drilling of soil, rock or minerals, but instead contracted with
Northwest for transportation and product-unloading services generally. In
addition, the majority observed that Appellees had devoted a substantial
portion of their appellate brief to arguing various alternative grounds for the
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5 We note that, on July 10, 2019, the trial court mistakenly directed Appellees
— not Mr. Dobransky —to file a Rule 1925(b) concise statement within 21
days. See Trial Court Order, 7/10/19, at 1 (single page). On July 17, 2019,
the trial court issued another order, this time correctly directing Mr. Dobransky
to file a Rule 1925(b) concise statement within 21 days. See Trial Court
Order, 7/17/19, at 1 (single page). He did so on August 2, 2019. Therefore,
we determine that Mr. Dobransky timely filed his Rule 1925(b) concise
statement.
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entry of summary judgment in their favor, urging this Court to affirm the trial
court’s order on one of these other grounds. However, because the trial court
did not address any of these arguments below in its opinion, the majority
declined to do so in the first instance.
The dissenting opinion agreed with the majority that Appellees did not
qualify as Mr. Dobransky’s statutory employers under Section 302(a)(1)(i).
However, the dissent advanced that it would nevertheless affirm the trial
court’s order awarding summary judgment to Appellees pursuant to their
statutory employer defense under Section 302(a)(2). Specifically, the dissent
agreed with Appellees that the uncontested evidence established that HESI
regularly and recurrently required that barite be delivered to the well site, and
that HESI subcontracted that responsibility to Northwest. In reaching this
conclusion, the dissent determined that the text of Section 302(a)(2) contains
no requirement of similarity between the overall business activities of the
contractor and the subcontractor to trigger its application.
Thereafter, Appellees filed an application for reargument en banc,
specifically asking this Court to address the Section 302(a)(2) issue and affirm
the trial court’s grant of summary judgment on that basis. We granted their
request and withdrew the panel decisions originally issued in this matter. We
now examine whether Appellees are entitled to summary judgment based on
their statutory employer defense under either Section 302(a)(1)(i) or Section
302(a)(2).
Standard and Scope of Review
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At the outset of our review, we acknowledge that:
[S]ummary judgment is appropriate only in those cases where the
record clearly demonstrates that there is no genuine issue of
material fact and that the moving party is entitled to judgment as
a matter of law. When considering a motion for summary
judgment, the trial court must take all facts of record and
reasonable inferences therefrom in a light most favorable to the
non-moving party. In so doing, the trial court must resolve all
doubts as to the existence of a genuine issue of material fact
against the moving party, and, thus, may only grant summary
judgment where the right to such judgment is clear and free from
all doubt. On appellate review, then,
an appellate court may reverse a grant of summary
judgment if there has been an error of law or an abuse of
discretion. But the issue as to whether there are no genuine
issues as to any material fact presents a question of law,
and therefore, on that question our standard of review is de
novo. This means we need not defer to the determinations
made by the lower tribunals.
To the extent that this Court must resolve a question of law, we
shall review the grant of summary judgment in the context of the
entire record.
Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) (cleaned
up).
Analysis
Section 302(a)(1)(i)
We begin by reviewing the trial court’s grant of summary judgment in
favor of Appellees under Section 302(a)(1)(i), which provides that “a person
who contracts with another … to have work performed consisting of … 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(1)(i). In
granting summary judgment to Appellees on this basis, the trial court wholly
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relied on this Court’s decision in Doman, which it found to be “directly on-
point both legally and factually.” TCO at 3.
We therefore direct our attention to Doman. In that case, the Doman
Court recounted 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
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.
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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.
Doman, 150 A.3d 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
as a statutory employer under Section 302(a)(1)(i) 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, the Doman 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). The 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).6 It then discerned:
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6 The Doman Court also 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., 44 A.3d at 1159) (footnote omitted); 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[;]
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[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)[(1)(i)]. 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 … regardless of the fact that Yost already
had paid Doman’s worker[s’] compensation benefits. See
Patton[,] 89 A.3d [at] 645 (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[,] 724 A.2d [at]
906-08 (stating that the 1974 amendments to the Act did not
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).
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,
noting:
[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
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(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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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
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.[7] Thus, “the mandatory nature of workers’
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7Then-Justice (now-Chief Justice) Baer has elaborated on the rarity with which
statutory employers are held secondarily liable under the WCA, explaining:
“[I]n reality, application of [the 1974] amendments rarely, if ever,
will result in the general contractor assuming responsibility for
providing workers’ compensation insurance because in the
modern construction workplace, general contractors will rarely, if
ever, award a contract absent the subcontractor showing proof of
workers’ compensation coverage.” Fonner…, … 724 A.2d [at] 908
… (Nigro, J., dissenting). Indeed, since 1974, the only way the
statutory employer doctrine will operate to guarantee a workers’
compensation payment to an injured worker is if (1) the
subcontractor violates the law (unlikely as noted by Justice Nigro);
or (2) the religious exemption to the Act applies…. See 77 P.S. §
484. Thus, the statutory employer doctrine serves one purpose:
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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[, codified at 77 P.S. § 52], 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).
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.
[HESI] worked on the EQT well[]site pursuant to a[n MSA] which
contracted [HESI] to perform tasks including drilling. Northwest
… was contracted through [HESI] to provide transportation
services. Under the above[-]recited Doman analysis, Section
302(a)[(1)(i)] applies. [HESI] is accordingly [Mr. Dobransky’s]
statutory employer.
Vertical privity extends the statutory employer immunity to EQT
since EQT had a contract with [HESI] and [HESI] had
subcontracted services to Northwest…, the direct employer of
[Mr.] Dobransky.
TCO at 6.
____________________________________________
to provide immunity to a general contractor in tort,
notwithstanding that it may have been a third party tortfeasor.
Patton, 89 A.3d at 651 (Baer, J., concurring) (footnote omitted).
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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)[(1)(i)] of the … Act.” Mr. Dobransky’s Substituted Reply
Brief at 15 (emphasis and unnecessary capitalization omitted). He contends
that Doman is distinguishable, as “[t]here was never any question that the
Yost employee … who died … 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 17.
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 16.
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.[8] HESI
____________________________________________
8 On the day in question, Appellees state that Mr. Dobransky, after filling one
barite tank without incident, “alleged that, on request from a HESI 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
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worked on the EQT well[]site pursuant to a[n MSA] between the
two companies by which HESI performed a variety of tasks related
to, among other things, drilling and removal of natural gas. HESI
contracted with Mr. Dobransky’s employer, Northwest, for
transportation and product-unloading services generally, and that
contract included the work Mr. Dobransky was performing when
he alleges he was injured. Accordingly, HESI was “[a] contractor
who subcontract[ed] all or part of a contract” to Mr. Dobransky’s
employer. Thus, under Doman, Section 302(a)[(1)(i)] applies.
Appellees’ Brief at 18-19 (footnotes omitted).
Looking at the relevant language of Section 302(a)(1)(i), we determine
that the trial court erred in granting summary judgment in favor of Appellees
on this basis. Again, Section 302(a)(1)(i) sets forth that “a person who
contracts with another … to have work performed consisting of … 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(1)(i). HESI did not
contract with Northwest to have work performed consisting of the removal,
excavation or drilling of soil, rock or minerals; instead, Appellees themselves
state that “HESI contracted with Mr. Dobransky’s employer, Northwest, for
transportation and product-unloading services generally….” Appellees’
Brief at 19 (emphasis added; footnote omitted); see also TCO at 6
(“Northwest … was contracted through [HESI] to provide transportation
services.”). Thus, Northwest did not remove, excavate, or drill for minerals,
but simply transported and unloaded materials to the well site. Its work did
not include removing, excavating, or drilling. Accordingly, HESI — and by
____________________________________________
sustained his injuries while filling the second tank. Id. at 11-12; Mr.
Dobransky’s Substituted Brief at 10.
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extension, EQT — are not entitled to summary judgment pursuant to their
statutory employer defense under Section 302(a)(1)(i). See Emery, supra.
Section 302(a)(2)
We next consider whether Appellees are entitled to summary judgment
based on their statutory employer defense under Section 302(a)(2). Although
the trial court did not reach this question, we will exercise our discretion to
address it in the first instance, as the parties have both briefed this issue, and
it would serve judicial economy for us to consider this controversy now. See
Branton v. Nicholas Meat, LLC, 159 A.3d 540, 562 n.21 (Pa. Super. 2017)
(noting that we can reach an issue not considered by the trial court, as we
may affirm the trial court’s decision on any basis); see also In re A.J.R.-H.,
188 A.3d 1157, 1176 (Pa. 2018) (“It would be wasteful to send a case back
to a lower court to reinstate a decision which it had already made but which
the appellate court concluded should properly be based on another ground
within the power of the appellate court to formulate.”) (quoting Sec. & Exch.
Comm’n v. Chenery Corp., 318 U.S. 80, 88 (1943)). Further, we
acknowledge that Appellees specifically sought en banc review for us to
resolve this issue. See Appellees’ Application for Panel
Reconsideration/Reargument, 8/14/20, at 8 (“EQT and HESI respectfully
request that the Panel reconsider its decision and modify it to (1) consider the
Section 302(a)(2) alternative basis for affirmance, (2) adopt [the dissent’s]
analysis and (3) affirm on that alternative basis.”).
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As set forth supra, Section 302(a)(2) provides that “a person who
contracts with another … 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.”
77 P.S. § 461(2). Appellees argue that HESI’s contractual relationship with
Northwest satisfies these requirements. They say that (1) “HESI is in the
‘business’ or ‘trade’ of providing well[]site services, and a ‘regular or recurrent’
part of that business or trade is delivering and unloading barite for use at well
sites”; (2) “HESI contracted with Northwest … for Northwest … to (repeatedly)
deliver barite and unload it into onsite tanks to meet HESI’s contractual
obligation to EQT”; and (3) “Mr. Dobransky is employed by Northwest … and,
indeed, was performing the work HESI contracted for Northwest … to
perform.” Appellees’ Supplemental Brief at 13-14 (footnotes omitted).
Mr. Dobransky, on the other hand, asserts that HESI does not qualify as
his statutory employer under Section 302(a)(2) simply because he delivered
a single raw material to HESI. See Mr. Dobransky’s Substituted Brief at 17-
19. Mr. Dobransky emphasizes that his employer, Northwest, is in the
transportation business, and that HESI is not a transporter of barite or any
other type of freight. Id. at 18. He argues that HESI’s function at the Scott’s
Run well site was to supply drilling mud, and that “[a]lthough [HESI] — like
thousands of other businesses — requires the delivery of materials that are
consumed in one manner or another in the recipient’s business, that fact alone
cannot render the truck driver who delivers those materials a statutory
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employee of the recipient.” Id.; see also id. at 21 (“The use of an object
that has been transported or delivered does not render the ‘transportation’ or
‘delivery’ of such object a regular or recurrent part of the recipient’s business
for purposes of [Section] 302(a)(2).”). He posits:
Consider the retail industry … where there is a regular and
recurring need to replenish inventory for sale. An opinion en banc
from this Court that Mr. Dobransky was [HESI’s] statutory
employee because he delivered a material that [HESI] “needed”
(in this instance, to be blended with other materials and then sold
as drilling mud to EQT) could apply by simple extension to every
retail business, because the “need” for more salable inventory is
the sine qua non of the retail industry.
Id. at 19-20.
Our review of the relevant case law reveals that Section 302(a)(2) has
been applied where the contractor contractually delegates aspects of its
business, occupation, profession, or trade to a subcontractor. Cf.
Saladworks, LLC v. W.C.A.B. (Gaudioso), 124 A.3d 790, 799 (Pa. Cmwlth.
2015) (determining that Saladworks was not the statutory employer of a
franchisee’s injured employee where Saladworks’s “main business is the sale
of franchises to franchisees that desire to use its name and ‘System’ and
marketing expertise. … While Saladworks provides certain services to
independent franchisees…, it is not in the restaurant business or the business
of selling salads”) with Zwick v. W.C.A.B. (Popchocoj), 106 A.3d 251, 256
(Pa. Cmwlth. 2014) (“[T]he evidence established that Zwick was in the
business of rehabilitating properties for resale and that the construction work
[the c]laimant performed was a regular part of Zwick’s business. Accordingly,
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… Zwick was a statutory employer under [S]ection 302(a)….”) 9; Six L’s
Packing Co. v. W.C.A.B. (Williamson), 2 A.3d 1268, 1280-81 (Pa. Cmwlth.
____________________________________________
9 We respectfully disagree with the Dissent’s reading of Zwick. In Zwick,
Zwick “testified that he is a licensed realtor and investor and does
construction rehabilitation work on residential properties.” Zwick,
106 A.3d at 253 (emphasis added; citation omitted). As a part of his
construction rehabilitation work on residential properties, Zwick hired Adarlan
Rodrigues to perform construction work on a property, and Rodrigues in turn
hired Marco Popchocoj (the claimant) to complete certain projects there. See
id. at 252-53. Zwick did not own the property, but was fixing it up for resale.
Id. at 253. He told Rodrigues what work needed to be done, inspected the
property periodically, and approved the completed work before paying
Rodrigues. Id. When performing work at the property, Popchocoj was injured
while installing a hardwood floor. Id. at 252-53. Though Zwick insisted that
Section 302(a) did not apply because he is a licensed realtor — so the work
performed by Popchocoj at the time of Popchocoj’s injury was not a regular
part of Zwick’s business — the Commonwealth Court determined that “[t]he
record belies this claim.” Id. at 255. It noted that Zwick “testified that
construction rehabilitation work was a part of his business” and that he was
“essentially the general contractor on the job.” Id. (quotation marks and
citations omitted). Thus, the Commonwealth Court concluded that Section
302(a)(2) applied because the evidence shows that “Zwick was in the business
of rehabilitating properties for resale and that he hired Rodrigues to perform
work that was a regular part of his business.” Id.
The Dissent claims that “[s]ince Zwick regularly solicited construction
rehabilitation work from the claimant and other parties, the Commonwealth
Court found that Zwick met the definition for a statutory employer under
Section 302(a)(2) even though he was not directly engaged in carrying
out construction work himself.” Dissenting Op. at 12 (citation omitted;
emphasis added). We disagree with this interpretation. Initially, the evidence
demonstrated that Zwick was not only in the business of selling houses but
also in the business of conducting construction rehabilitation work on
residential properties. Moreover, while there may not have been evidence
of Zwick himself physically performing construction work at the property (i.e.,
Zwick’s installing flooring, drywalling, etc.), we nevertheless consider him to
be directly engaged in the business of construction, given that he “testified
that construction rehabilitation work was a part of his business” and that he
was “essentially the general contractor on the job.” Zwick, 106 A.3d at 255
(quotation marks and citations omitted).
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2010), affirmed by, 44 A.3d 1148 (Pa. 2012) (determining that a
subcontractor’s employee who was injured while transporting tomatoes was a
statutory employee of the contractor, a company which “farms, packs, and
distributes tomatoes. It grows tomatoes in Pennsylvania. It processes
tomatoes in [Maryland]. The transport of tomatoes from one location to
another is a regular and recurrent part of its business”); see also Garlick v.
Trans Tech Logistics, Inc., 636 F. App’x. 108, 112 (3d Cir. 2015) (non-
precedential) (“Transporting bulk liquids was a regular and recurrent part of
QC’s business as a bulk tank truck network operator, and QC ‘contractual[ly]
delegate[d] … aspects of’ its transportation business to TTL[, a company that
leased its vehicles and provided drivers to QC]. Accordingly, QC, as the
contractor, was a statutory employer pursuant to Section 302(a) who
assumed secondary liability to pay workers’ compensation benefits to
employees of its subcontractor, TTL, should TTL default on its obligations.”)
(citation omitted; some brackets added); Cargill Meats v. W.C.A.B.
(Heffner), 2016 WL 7473850, at *5 (Pa. Cmwlth. filed Dec. 29, 2016) (non-
precedential) (determining that a contractor that produced meat products was
the statutory employer under Section 302(a)(2) of its subcontractor’s
employee — a truck driver — where the contractor “stipulated that it has its
own trucking distribution network; that it uses this trucking distribution
network to transport its products from, among other places, its Wyalusing
facility where [the truck driver] was injured; that it routinely uses the services
of outside trucking companies such as [the subcontractor] to handle its excess
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transportation needs for its products including its Wyalusing facility; and that
it entered into a contract with [the subcontractor] to transport products from
its Wyalusing facility. Based on these facts, the Board correctly concluded
that the transportation of the finished meat product to [the contractor’s]
customers from [its] facilities is a ‘regular or recurrent part’ of [the
contractor’s] business”).10, 11
Here, Appellees do not definitively demonstrate that the transportation
and unloading of barite was an aspect of HESI’s business or trade, and that
HESI contractually delegated that aspect of its business or trade to Northwest.
While Appellees point to Section 2.1.1 of the MSA and a sales order form to
____________________________________________
10 We recognize that decisions of the Commonwealth Court and federal circuit
courts are not binding upon this Court, but may serve as persuasive authority.
Commonwealth v. Bowers, 185 A.3d 358, 362 n.4 (Pa. Super. 2018)
(citation omitted); Commonwealth v. Orie, 88 A.3d 983, 1013 n.49 (Pa.
Super. 2014) (citation omitted). We also acknowledge that the Garlick Court
noted that its decision does not constitute binding precedent within its
jurisdiction. Garlick, 636 F. App’x. at 110 (citing Rule 5.7 of the Third Circuit’s
internal operating procedures). However, that decision may nevertheless be
cited for its persuasive authority. See Fed.R.App.P. 32.1 (stating that federal
courts may not prohibit or restrict the citation of federal judicial opinions
designated as non-precedential that were issued on or after January 1, 2007).
Similarly, the Cargill case may be cited for its persuasive value but is not
treated as binding precedent by the Commonwealth Court. See Pa. Cmwlth.
Ct. I.O.P. § 414 (“Parties may also cite an unreported panel decision of this
[c]ourt issued after January 15, 2008, for its persuasive value, but not as
binding precedent.”).
11 Referencing Six L’s, Cargill, and Garlick, the Dissent observes that
Pennsylvania courts have tended to conclude that Section 302(a)(2) applies
to truck drivers. See Dissenting Op. at 7-8. We emphasize, though, that the
act of transporting goods between locations was a major function of the
statutory employers’ businesses in those cases.
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argue that HESI was both a regular supplier and transporter of barite, such
evidence is flawed and unconvincing. See HESI’s Supplemental Brief 18-19
(“The [MSA] between EQT and HESI and the sales order … demonstrate that
EQT called upon HESI to both provide and transport barite to the well site.
Thus, HESI was in fact both a regular supplier and transporter of barite….”)
(emphasis in original; footnote omitted); see also id. at 8 n.11 (discussing
Section 2.1.1 of the MSA and sales order).
Section 2.1.1 of the MSA states, in relevant part, the following:
The Parties acknowledge that from time to time, [EQT] may
request that [HESI] perform work and services on one or more of
its projects. [EQT] and [HESI] agree that, in the event [EQT]
desires to engage [HESI] to perform work and services in
connection with one or more such projects and desires to accept
[HESI’s] bid or price quotation for the scope of work, [EQT] shall
issue a Purchase Order containing a scope of work to be performed
at any identified Project….
MSA at § 2.1.1. Appellees purport that an EQT-HESI sales order form
“indicates acceptance by HESI of EQT Purchase Order No. 110231OC for
Baroid 41® and ‘Ba. Transportation.’” Appellees’ Supplemental Brief at 8 n.11
(citation omitted). Yet, the sales order form Appellees rely on was issued by
HESI — not EQT — and does not clearly demonstrate that EQT issued a
purchase order for Baroid 41® and ‘Ba. Transportation.’ See Appellees’ Brief
in Support of Statutory Employer Defense at Exhibit G. Further, Appellees
point us to no purchase order issued by EQT in the record or any other
evidence connecting this sales order form to Section 2.1.1 of the MSA. Thus,
we cannot agree with Appellees that the MSA and the sales order form
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indisputably establish that HESI was in the business of supplying and
transporting barite.12, 13
Instead, viewing all facts and reasonable inferences in a light most
favorable to Mr. Dobransky, the evidence shows that HESI was in the business
of providing well site services, which included mud services. See Summers,
____________________________________________
12 As the Dissent points out, Section 8.5 of the MSA provides that:
8.5 Materials to Be Furnished. All materials furnished and
used in connection with the Work shall be new, of good quality
and approved by [EQT]. [HESI] shall cause all materials and other
parts of the Work to be readily available as and when required or
needed for or in connection with the construction, furnishing and
equipping of the Project or the Work.
MSA at § 8.5; see also id. at § 1.2 (defining “Work” as the “services
required of [HESI] by the Purchase Order, whether completed or partially
completed, and includes all other labor, materials, equipment and services
provided or to be provided by [HESI] to fulfill [its] obligations”) (emphasis
added). Relying on Section 8.5, the Dissent advances that “HESI was under
a contractual obligation to ensure that barite was ‘readily available as and
when required or needed for or in connection with the construction, furnishing
and equipping of the Project or the Work.’” Dissenting Op. at 10 (citing MSA
at § 8.5). However, without a corresponding purchase order pursuant to
Section 2.1.1 of the MSA, Section 8.5 fails to establish anything about HESI’s
contractual responsibilities at Scotts Run with respect to barite.
13 On February 18, 2021, Appellees filed an application for relief with this
Court, requesting that we strike certain contentions made in Mr. Dobransky’s
substituted reply brief related to the sales order form because he did not raise
them in the trial court or in his earlier appellate filings. We deferred review
of Appellees’ request until after oral argument. Upon review, we conclude
that Mr. Dobransky’s substituted reply brief appropriately responds to the
arguments raised by Appellees in their brief. See Pa.R.A.P. 2113(a)
(conveying that “the appellant may file a brief in reply to matters raised by
[the] appellee’s brief … and not previously addressed in [the] appellant’s
brief”). Accordingly, we deny Appellees’ application for relief.
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supra; see also MSA; Maddox’s Dep. at 16-17; Appellees’ Brief at 5-6; Mr.
Dobransky’s Substituted Brief at 7. In order to make drilling mud for EQT,
HESI needed barite, among other items, and therefore contracted with
Northwest to transport and deliver barite to it. See Maddox’s Dep. at 16-19,
27; Transportation Agreement; Mr. Dobransky’s Substituted Brief at 15;
Appellees’ Brief at 22. Therefore, the evidence establishes, at most, that HESI
needed barite for making the drilling mud and that it had Northwest transport
and deliver barite to it at the well site.
However, the fact that an entity contracts with a subcontractor to have
materials delivered to it in order to conduct its business or trade does not
mean that a part of that entity’s business or trade is the transporting and/or
shipping of those materials from one place to another.14, 15 Otherwise, as Mr.
____________________________________________
14 Similarly, if HESI regularly contracted with a mining company to supply the
barite in the first place, it does not mean that HESI’s business included the
mining of barite. In other words, HESI would not be the statutory employer
of the barite miner.
15 The Dissent stresses that HESI accounted for at least 99% of Northwest’s
business in 2012, provided similar mud services at all of EQT’s well sites, and
retained multiple transportation subcontractors like Northwest. See
Dissenting Op. at 6, 10. Initially, we disagree with some of these assertions,
given our standard of review. See Summers, supra (“When considering a
motion for summary judgment, the trial court must take all facts of record and
reasonable inferences therefrom in a light most favorable to the non-moving
party.”). First, Jeremy Johnson — the former operations manager for
Northwest’s dry bulk division in Greensburg, Pennsylvania — testified that, in
2012, HESI accounted for 99% of Northwest’s business in Pennsylvania, and
suggested that Northwest had drivers and employees working in other states,
particularly Texas, at that time. Mr. Dobransky’s Omnibus Brief Opposing
Appellees’ Motion for Summary Judgment, 8/1/18, at Exhibit 20 at 9-10.
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Dobransky cautions, any entity that contracts for the regular delivery of
materials to use in its business or trade would be the statutory employer of
the truck driver(s) delivering such materials to it. See Mr. Dobransky’s
Substituted Brief at 19-20.16 Under the circumstances of the case sub judice,
____________________________________________
Second, with respect to HESI’s purportedly requiring multiple transportation
subcontractors like Northwest, we observe that HESI itself did not identify any
transportation subcontractors having dealings on the well site in its responses
to Mr. Dobransky’s third set of interrogatories. See Mr. Dobransky’s Omnibus
Brief Opposing Appellees’ Motion for Summary Judgment, 8/1/18, at Exhibit
16 at Question 22 (HESI’s naming Patterson Drilling, HESI, and EQT when
asked to identify “any other entity or company having control or dealings on
this particular well site on June 19, 2012 and for one year prior thereto”). We
also note that the Northwest employee who testified that HESI had other
transportation subcontractors could not identify these subcontractors and did
not state how many there were. See Mr. Dobransky’s Omnibus Brief Opposing
Appellees’ Motion for Summary Judgment, 8/1/18, at Exhibit 14 at 15.
In any event, notwithstanding these objections to the Dissent’s
assertions, the fact that HESI was Northwest’s primary customer in 2012,
provided similar mud services at all of EQT’s well sites, and had other
transportation subcontractors does not establish that HESI was in the business
of transporting barite. Instead, this evidence simply confirms that HESI
needed barite to make the drilling mud.
16 So, for instance, if a delivery person was injured by a grocery store’s
negligence while making a regular delivery to the store pursuant to a
contractual agreement, that delivery person would be the statutory employee
of the grocery store. Thus, the grocery store would assume secondary liability
for workers’ compensation, and the delivery person would be unable to
recover in tort from the grocery store for his/her injuries under Section
302(a)(2). Likewise, if a bakery recurrently contracted with a supply company
to deliver flour to it, the bakery would be the statutory employer of the supply
company’s employees. Under Section 302(a)(2), if the supply company’s
employee was hurt while making a delivery to the bakery, the bakery would
be held secondarily liable for paying the employee workers’ compensation
benefits, and the employee would be unable to sue the bakery in tort for
his/her injuries.
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we decline to expand the scope of the oft-criticized Section 302(a)(2) to
delivery persons like Mr. Dobransky by interpreting it in such a broad manner.
Accord Mr. Dobransky’s Substituted Brief at 12 (“A holding to the contrary
would expand a compensation scheme — which has been repeatedly ridiculed
as obsolete in light of subsequent changes to other sections of the [WCA] —
beyond its obvious remedial contours and legislative underpinnings.”); see
also pages 15-17, supra.17 Thus, based on the foregoing, summary
judgment in favor of Appellees is likewise unwarranted on this basis.
Conclusion
In sum, we conclude that HESI (and therefore EQT) have not
indisputably demonstrated that they qualify as Mr. Dobransky’s statutory
employers under either Section 302(a)(1)(i) or Section 302(a)(2). We
____________________________________________
17While it is irrelevant to our analysis because a statutory employer is entitled
to tort immunity even if the actual employer paid workers’ compensation
benefits, see, e.g., Fonner, supra, we note that HESI was never exposed to
any actual liability under the WCA. See Mr. Dobransky’s Substituted Brief at
20 (noting that Northwest maintained workers’ compensation insurance and
that Mr. Dobransky received benefits through Northwest). Indeed, both HESI
and EQT contractually required Northwest to carry workers’ compensation
insurance. See Transportation Agreement at 3 (requiring that Northwest
maintain workers’ compensation insurance, as prescribed by applicable law);
MSA at § 10.1 (requiring that HESI comply with certain insurance
requirements as set forth in Schedule A); id. at Schedule A (stating that HESI
and its subcontractors shall carry “[w]orkers[’] compensation insurance with
statutory limits in full compliance with the workers’ compensation and
occupational disease act of every state in which the [w]ork is to be
performed”); see also footnote 7, supra (discussing the rarity with which
statutory employers are held secondarily liable under the WCA as “general
contractors will rarely, if ever, award a contract absent the subcontractor
showing proof of workers’ compensation coverage”) (citation omitted).
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therefore vacate the trial court’s order granting summary judgment in
Appellees’ favor and remand for further proceedings.18
Order vacated. Case remanded. Appellees’ application to strike and
preclude argument denied. Jurisdiction relinquished.
____________________________________________
18 We decline to address any other, alternative grounds that Appellees
advance for why summary judgment should be entered in their favor. The
trial court specifically stayed consideration of the other grounds for summary
judgment raised by Appellees in their motion pending its decision on the
statutory employer issue. Trial Court Order, 9/4/18, at 2 (unnumbered
pages). In addition, the trial court indicated that — if it denied Appellees’
motion for summary judgment based on the statutory employer defense — it
would consider Mr. Dobransky’s motion for leave to file a second amended
complaint. Id.; see also Appellees’ Brief in Opposition to Mr. Dobransky’s
Motion for Leave to File Second Amended Complaint, 7/17/18, at 1 (“Mr.
Dobransky now seeks to amend his complaint to add more than five times the
number of allegations as are included in the currently governing complaint, to
add or significantly revise his claims[,] and to add a demand for punitive
damages.”) (emphasis omitted); Mr. Dobransky’s Reply to Appellees’ Brief in
Opposition to Mr. Dobransky’s Motion for Leave to File Second Amended
Complaint, 8/15/18, at 2 (“If this [c]ourt grants [Mr. Dobransky’s] instant
Motion for Leave to File Second Amended Complaint, [Mr. Dobransky’s]
Second Amended Complaint itself would then form part of the record, which
this [c]ourt should therefore include in its record review in deciding [Appellees’
motion for summary judgment]. … In the attached, revised Second Amended
Complaint, [Mr. Dobransky] simply has amplified previous allegations of
negligence and recklessness on the part of [Appellees].”). Furthermore, the
trial court stated that “[i]f the [c]ourt denies [Appellees’] motion for summary
judgment addressing the statutory employer defense” and “[i]f the [c]ourt
grants leave to file a second amended complaint, [Appellees] shall have an
opportunity to revise their other grounds for summary judgment to address
new or amended allegations of the second amended complaint.” Trial Court
Order, 9/4/18, at 2 (unnumbered pages). We also acknowledge that
Appellees sought en banc review of the statutory employer issue only. See
Appellees’ Application for Panel Reconsideration/Reargument, 8/14/20, at 3
(asking this Court to “reconsider its decision by revising it to … address the
Section 302(a)(2) issue and then affirm[] on that alternative basis”). Thus,
due to these circumstances, we think it prudent to not reach any other,
alternative grounds raised by Appellees for why they are entitled to summary
judgment and remand the case.
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President Judge Panella and Judge Lazarus, Judge Kunselman and Judge
McCaffery join this opinion.
Judge Bowes files a dissenting opinion in which Judge Olson, Judge
Dubow and Judge Murray join.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/2022
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