Brown, J. v. Gaydos, G.

J-A12031-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN BROWN : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

GEORGE GAYDOS, AN INDIVIDUAL, : No. 1132 WDA 2021

T/D/B/A GAYDOS CONSTRUCTION :

Appeal from the Judgment Entered April 16, 2021

In the Court of Common Pleas of Allegheny County Civil Division at

No(s): No. GD18-006991

BEFORE: MURRAY, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED: JULY 5, 2022

Before this Court is the appeal of John Brown (“Plaintiff”) from the April

16, 2021 order granting George Gaydos’s (“Defendant”) motion for summary

judgment and dismissing Plaintiff’s action against Defendant on the grounds

that it was barred by the employer and co-employee immunity provisions of

the Workers’ Compensation Act (“WCA”). See 77 P.S. § 72, 481(a). We agree

with the trial court that Defendant is immune from suit as Plaintiff’s co-

employee, and therefore we affirm the grant of summary judgment.

The facts underlying this matter are not in dispute. For approximately

8 years prior to Plaintiff’s workplace injury that forms the basis of this suit,

Defendant had worked in the contracting field through a sole proprietorship,

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* Retired Senior Judge assigned to the Superior Court.

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Gaydos Construction. Defendant never hired employees through Gaydos

Construction and therefore never obtained workers’ compensation insurance.

During the period when Defendant was operating his sole proprietorship, he

purchased a John Deere skid loader—a piece of equipment that resembles a

small bulldozer—and used the skid loader on Gaydos Construction jobs.

In April 2016, Defendant and his cousin, Mark Raymond, entered into a

partnership agreement and formed American Concrete Solutions, LLC (“ACS”).

In addition to Defendant and Raymond, ACS hired additional employees and

maintained a workers’ compensation insurance policy. While Defendant had

performed various kinds of contracting work, including heating, air

conditioning, and masonry through his sole proprietorship, ACS focused

exclusively on concrete and paving jobs.

On September 1, 2016, Plaintiff was employed by ACS and working on

an ACS paving project at a building in Pittsburgh. Defendant had brought the

skid loader to the job site with the understanding that he was the only

individual who was permitted to use it for the job. On the date of the incident,

Defendant was at the job site first thing in the morning and then left to pay a

vendor for materials. During Defendant’s absence, Plaintiff attempted to enter

the skid loader in order to use it for the paving project, but the arm of the

skid loader activated, crushing him between the bucket and the top of the cab.

Plaintiff sustained serious injuries, and he subsequently filed a claim for

workers’ compensation benefits. On September 12, 2016, ACS issued a notice

of temporary compensation payable, accepted Plaintiff’s injuries as

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compensable under the WCA, and began paying indemnity and medical

benefits to Plaintiff.

Plaintiff initiated this action on May 31, 2018 by filing a complaint

alleging that Defendant was negligent by improperly maintaining the skid

loader and failing to supervise or train Plaintiff to use the piece of equipment.1

On October 3, 2018, Defendant filed an answer and new matter, in which he

asserted that he was immune from suit under the WCA. After discovery, the

parties filed cross-motions for summary judgment. Following oral argument,

the trial court initially entered an order denying both motions. Defendant

moved for reconsideration, and on April 16, 2021, the trial court entered an

order granting Defendant’s motion for summary judgment. Plaintiff then filed

the instant appeal.2

Appellant presents two issues for our review:

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1In the complaint, Plaintiff also named as a defendant Gaydos Construction &

Asphalt Paving Co., Inc., a defunct corporation formed by Defendant’s father.

However, the caption was later amended to reflect that Plaintiff was suing

Defendant personally and doing business as Gaydos Construction. See infra

note 2.

2Plaintiff filed an initial notice of appeal on May 14, 2021. However, this Court

quashed the appeal as interlocutory based upon the fact that claims remained

pending against Gaydos Construction & Asphalt Paving Co., Inc. Plaintiff then

moved in the trial court to amend the caption to reflect that he was suing

Defendant individually and to the extent he operated his sole proprietorship,

Gaydos Construction. On September 8, 2021, the trial court entered an order

dismissing Gaydos Construction & Asphalt Paving Co., Inc. and amending the

caption as it presently stands: “George Gaydos, an Individual, t/d/b/a Gaydos

Construction.” Plaintiff then filed the instant notice of appeal on September

22, 2021.

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1. Whether the trial court erroneously concluded George Gaydos

was immune from third-party liability claims as an employer, as

set forth under the Pennsylvania Workers’ Compensation Act, 77

P.S. § 481(a)?

2. Whether the trial court erroneously applied the “dual capacity”

and/or “co-employee” doctrines when granting George Gaydos

tort immunity under the Pennsylvania Workers’ Compensation

Act?

Plaintiff’s Brief at 4 (unnecessary capitalization omitted).

The issue of whether the record supports the grant of summary

judgment is a question of law as to which our standard of review is de novo,

and our scope of review is plenary. In re Risperdal Litigation, 223 A.3d

633, 639 (Pa. 2019); Salsberg v. Mann, 262 A.3d 1267, 1269 (Pa. Super.

2021) (en banc). Accordingly, we need not defer to the determinations made

by the trial court. Summers v. Certainteed Corp., 997 A.2d 1152, 1159

(Pa. 2010) (citation omitted).

“[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.” Risperdal

Litigation, 223 A.3d at 639 (citation omitted). In addressing a motion for

summary judgment, the trial court must take all facts of record and reasonable

inferences therefrom in the light most favorable to the non-moving party and

must resolve all doubts as to the existence of a genuine issue of material fact

against the moving party. Salsberg, 262 A.3d at 1269. “If there is evidence

that would allow a fact-finder to render a verdict in favor of the non-moving

party, then summary judgment should be denied.” Id. (citation omitted).

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In this matter, the trial court ruled that Defendant was immune from

Plaintiff’s common-law claims on two grounds. First, the court concluded that

Plaintiff’s action was barred by the employer immunity provision of the WCA,

77 P.S. § 481(a), which provides that the WCA shall be the exclusive remedy

to seek compensation from an employer for workplace injuries. Trial Court

Opinion, 7/13/21, at 3-5. While recognizing that ACS was required to pay

Plaintiff workers’ compensation benefits, the court found that Defendant, as

an owner of ACS, was also an employer under the WCA because Defendant

was authorized to make decisions regarding the management and operation

of ACS and Defendant determined the equipment needed for ACS jobs, as well

as the manner of the equipment’s use. Id. at 3-4. The trial court further

determined that the “dual capacity” exception to employer immunity is not

applicable because it is nearly impossible to separate Defendant’s role as

Plaintiff’s boss from Defendant’s role as the owner of the skid loader, the piece

of equipment on which Plaintiff was injured. Id. at 4-5.

In the alternative, the trial court concluded that Plaintiff’s suit was

barred pursuant to the co-employee immunity provision of the WCA, 77 P.S.

§ 72. Trial Court Opinion, 7/13/21, at 5-6. The trial court observed that co-

employee immunity applies to managerial employees and that Defendant

brought the skid loader to the job site in his role as a manager of ACS. Id. at

6. Moreover, there was no allegation that Defendant committed an intentional

wrong, which would render co-employee immunity inapplicable. Id.

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Plaintiff argues on appeal that the trial court erred in finding that

Defendant was entitled to immunity under the WCA as Plaintiff’s employer or

as his co-employee. With respect to employer immunity, Plaintiff notes that

he was employed by and received his paychecks from ACS, “which is a legal

entity distinct and separate from” Defendant. Plaintiff’s Brief at 17.

Furthermore, as a partial owner of that limited liability company (“LLC”),

Defendant was not personally responsible for ACS’s debts and liabilities or for

procuring workers’ compensation insurance for ACS’s employees. Therefore,

as Defendant was not Plaintiff’s employer, Plaintiff contends that the dual

capacity doctrine is irrelevant to this action as it only stands as an exception

to the general rule of employer immunity under the WCA.3

Rather than suing Defendant as an owner or manager of ACS, Plaintiff

asserts that his claims were instead brought against Defendant in his role as

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3 Plaintiff also devotes a considerable portion of his brief arguing that

Defendant was not Plaintiff’s employer under WCA—and thus not entitled to

employer immunity—under the “statutory employer” or “borrowed worker”

doctrines. Plaintiff’s Brief at 22-27. The trial court did not base its grant of

summary judgment on either of these doctrines. Nevertheless, we agree with

Plaintiff that these doctrines are inapplicable as they would require either a

general contractor-subcontractor relationship between ACS and Defendant’s

sole proprietorship, Gaydos Construction, in the case of the statutory

employer doctrine, see Dobransky v. EQT Production Co., ___ A.3d ___,

2022 PA Super 61, at *1 (Pa. Super. 2022) (en banc), or an employee lending

relationship between ACS and Gaydos Construction in the case of the

borrowed worker doctrine. See Gardner v. MIA Products Co., 189 A.3d

441, 444 (Pa. Super. 2018). As discussed in more detail below, there is no

evidence in the record that Gaydos Construction had any kind of formal or

informal relationship with ACS on the date that Plaintiff sustained his work

injuries. Rather, Defendant was at the job site on that date exclusively in his

role as a manager of ACS.

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the owner of the skid loader that proximately caused Plaintiff’s injuries.

Plaintiff maintains that the skid loader was an asset of Defendant’s sole

proprietorship, Gaydos Construction, and Defendant loaned the piece of

equipment from Gaydos Construction to ACS for Defendant’s exclusive use on

the job site. According to Plaintiff, “the loaned instrumentality was essentially

provided by an independent contractor that owed a duty of care to properly

maintain it and to supervise its use and operation.” Id. at 18. “Indeed, as

the owner and insurer of the skid loader, Defendant was, individually, the

guarantor of its safety and fitness for use—not ACS or its member/owners.”

Id.

Plaintiff further argues that the co-employee immunity provision of the

WCA is inapplicable here. Plaintiff asserts that he is not suing Defendant as

his ACS co-employee but rather as the owner of the skid loader and the

operator of his separate sole proprietorship. Plaintiff contends that, by virtue

of the fact that Defendant brought the skid loader to the ACS work site and

instructed the other ACS workers that only he was permitted to use the

equipment, Defendant was individually liable for harms caused by the skid

loader separate and apart from his responsibilities through ACS.

As a threshold matter, we must first address the issue of whether

Defendant falls within the definition of an employer under the WCA. Section

303(a) of the WCA provides that the statutory scheme provided therein is the

exclusive remedy by an injured worker:

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The liability of an employer under this act shall be exclusive and

in place of any and all other liability to such employes, his legal

representative, husband or wife, parents, dependents, next of kin

or anyone otherwise entitled to damages in any action at law or

otherwise on account of any injury or death . . .

77 P.S. § 481(a). Thus, in exchange for workers’ compensation benefits, the

WCA bars the injured employee from bringing a common-law suit against her

employer. Grabowski v. Carelink Community Support Services, Inc.,

230 A.3d 465, 470-71 (Pa. Super. 2020).4

Our Supreme Court has explained that Section 303(a)

reflects the historical quid pro quo between an employer and

employee whereby the employer assumes liability without fault for

a work-related injury, but is relieved of the possibility of a larger

damage verdict in a common law action. The employee benefits

from the expeditious payment of compensation, but forgoes

recovery of some elements of damages.

Alston v. St. Paul Insurance Cos., 612 A.2d 421, 424 (Pa. 1992).

“[A] determination regarding the existence of an employer/employee

relationship is a question of law that is determined on the unique facts of each

case.” Universal Am-Can, Ltd. v. Workers’ Compensation Appeal Board

(Minteer), 762 A.2d 328, 330-31 (Pa. 2000); see also JFC Temps, Inc. v.

Workmen’s Compensation Appeal Board (Lindsay), 680 A.2d 862, 864

(Pa. 1996). An employer is defined as “synonymous with master,” and the

right to control the work of another and the manner in which the work is

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4However, an employer is not immune from suit at common law if it fails to

obtain workers’ compensation insurance. 77 P.S. § 501(d); Grabowski, 230

A.3d at 471 n.2.

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performed are deemed the most relevant factors in determining whether an

employer-employee relationship exists under the WCA. 77 P.S. § 21;

Universal Am-Can, 762 A.2d at 333; Gillingham v. Consol Energy, Inc.,

51 A.3d 841, 855 (Pa. Super. 2012) (“A master is one who stands to another

in such a relation that he not only controls the results of the work of that

other, but also may direct the manner in which such work shall be done.”)

(citation omitted).

“[I]t is the existence of the right to control that is significant,

irrespective of whether the control is actually exercised.” Universal Am-Can,

762 A.2d at 333 (emphasis omitted). An employer-employee relationship

exists under the WCA “where the alleged employer possesses the right to

select the employee; the right and power to discharge the employee; the

power to direct manner of performance; and the power to control the

employee.” Schriver v. Workers' Compensation Appeal Board

(Department of Transportation), 176 A.3d 459, 463 n.11 (Pa. Cmwlth.

2017).

Here, there is no dispute that Defendant held an ownership interest in

ACS and had the ability to direct ACS employees, including Plaintiff, with

respect to the work to be performed and the equipment that could be used for

each task. However, as an LLC, ACS was a distinct legal entity and therefore

Defendant was not personally responsible for ACS’s legal obligations, such as

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maintaining workers’ compensation insurance for its employees.5 See Kiehl

v. Action Manufacturing Co., 535 A.2d 571, 574-75 (Pa. 1987) (parent

corporation of subsidiary that employed injured worker was not entitled to

invoke WCA employer immunity bar to worker’s suit at common law where

parent had intentionally formed a separate entity in order to shield itself from

the subsidiary’s liabilities and had distinct operational functions from the

subsidiary). Thus, Plaintiff filed his workers’ compensation claim against ACS

rather than Defendant, and ACS, through its insurer, began payment of

workers’ compensation benefits to Plaintiff. Plaintiff’s Response to

Defendant’s Motion for Summary Judgment, 3/3/21, Exhibits 1-2.

Moreover, Defendant was not the exclusive owner of ACS and instead

he ran the company with his business partner, Raymond. As Defendant

recognized, Raymond also had authority to act on behalf of ACS and he was

responsible for ACS staffing decisions. Plaintiff’s Motion for Summary

Judgment, 3/3/21, Exhibit 2 at 51. Indeed, Raymond hired Plaintiff directly

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5 Defendant argues that he was in fact legally responsible for ensuring that

ACS maintained workers’ compensation insurance, observing that corporate

officers have been criminally charged based upon the corporation’s failure to

obtain insurance. See Defendant’s Brief at 13; see also 77 P.S. § 501(b)

(providing that “[a]ny employer who fails to” obtain workers’ compensation

insurance shall be guilty of third-degree misdemeanor or third-degree felony);

Commonwealth v. Corban Corp., 957 A.2d 274, 275 (Pa. 2008) (corporate

officer and corporation both criminally charged for corporation’s failure to

maintain workers’ compensation insurance). However, even to the extent he

could be charged for not procuring workers’ compensation insurance, this does

not alter the fact that the primary responsibility for holding the policy rests

with ACS, not Defendant.

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without Defendant’s participation on the date Plaintiff sustained his injury,

September 1, 2016. Id. Furthermore, the partnership agreement entered

into upon formation of the LLC provided that Defendant did not have the

exclusive authority to run the ACS business, but rather financial and

management decisions required the unanimous approval of both ACS

principals. Id., Exhibit 4 ¶¶14, 21. Similarly, the profits and losses for the

business were required by the partnership agreement to be split equally

between Defendant and Raymond. Id. ¶15.

In light of the fact that Defendant did not directly employ Plaintiff and

he did not exert exclusive control over ACS, we conclude that there at least

remains a genuine issue of material fact as to whether Defendant was

Plaintiff’s “master” under the WCA. 77 P.S. § 21. Therefore, the trial court

erred by granting summary judgment in favor of Defendant on the basis of

the employer immunity set forth in Section 303(a) of the WCA, 77 P.S. §

481(a). Cf. Lutjens v. Bayer, No. 3165 EDA 2018, 2019 WL 4034069, at *6

(Pa. Super. August 27, 2019) (unpublished memorandum) (holding that

defendant, who was the sole member of LLC that employed the plaintiff, was

also the employer for purposes of WCA employer immunity where defendant

had exclusive authority to hire, fire, and direct the activities of the LLC’s

employees).6 Furthermore, because there remains a triable issue of fact as

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6 Although Lutjens is an unreported decision, we cite to it for its persuasive

value. See Pa.R.A.P. 126(b) (non-precedential Superior Court decisions filed

after May 1, 2019 may be cited for their persuasive value).

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to whether Defendant was Plaintiff’s employer, we need not address whether

the dual capacity exception to WCA employer immunity has any application

here.

We next turn to the trial court’s alternative basis for granting summary

judgment in favor of Defendant: the co-employee immunity provision set

forth in Section 205 of the WCA. Our Supreme Court has explained that the

immunity granted by the WCA to workers to protect them from common-law

suit filed by their injured co-workers is based upon the same quid pro quo

underlying WCA employer immunity:

[A] provision immunizing fellow employees from liability for

negligent acts or omissions in the course of their employment is

consistent with . . . the enactment of a comprehensive scheme of

work[ers’] compensation. The employee receives economic

insurance that his employment-related injuries will be

compensated. He surrenders the right to sue employers or fellow

employees for negligence, but he no longer need prove

negligence, his own contributory negligence is no longer a bar,

and he, too, can no longer be sued for negligence by a fellow

employee.

Jadosh v. Goeringer, 275 A.2d 58, 60-61 (Pa. 1971).

Section 205 provides as follows:

If disability or death is compensable under this act, a person shall

not be liable to anyone at common law or otherwise on account of

such disability or death for any act or omission occurring while

such person was in the same employ as the person disabled or

killed, except for intentional wrong.

77 P.S. § 72. This provision “clearly provides that a co-employee is immune

from liability for his negligent act resulting in injury to his fellow employee.”

Ducjai v. Dennis, 656 A.2d 102, 104 (Pa. 1995).

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Co-employee immunity applies only where the defendant’s alleged

liability is based on his conduct as a co-employee. Employers Mutual

Casualty Co. v. Boiler Erection and Repair Co., 964 A.2d 381, 390 n.6

(Pa. Super. 2008); Bell v. Kater, 943 A.2d 293, 297-98 (Pa. Super. 2008).

“In order to establish immunity under the [WCA], the defendant is required to

establish that her act or omission occurred while she was in the ‘same employ’

as the plaintiff, that is, in the course of her performance of duties for the

employer.” Bell, 943 A.2d at 297-98 (emphasis omitted); see also

Employers Mutual, 964 A.2d at 390 n.6. In addition, the immunity is not

applicable in cases where it is alleged that the co-employee acted

intentionally, rather than negligently, in causing the injury. 77 P.S. § 72.

Co-employee immunity is not confined to rank-and-file workers but

rather extends to the managers and executives of an employer and even

individuals with an ownership interest in the employer. The term employee is

defined in the WCA as “[a]ll natural persons who perform services for another

for a valuable consideration,” and includes, subject to exceptions not relevant

here, “every executive officer of a corporation elected or appointed in

accordance with the charter and by-laws of the corporation.” 77 P.S. § 22.

For the purposes of the definition of an employee under the WCA, “an

executive officer of a for-profit corporation is an individual who has an

ownership interest in the corporation.” Id. (emphasis added).

In Jadosh, our Supreme Court held that the defendant, the vice

president and general manager responsible for operations at a metal ware

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manufacturer that employed the plaintiff, could invoke co-employee immunity

to avoid liability in a suit based upon a theory that the defendant had been

negligent in allowing plaintiff to use a defective piece of equipment that caused

the plaintiff injury. 275 A.2d at 59-60. The Supreme Court rejected the

plaintiff’s argument that the defendant could not claim co-employee immunity

“by virtue of his superior status,” noting that the text of the WCA directly

permits executive officers to invoke the immunity provision. Id. at 60; see

also Adams v. US Air, Inc., 652 A.2d 329, 330 (Pa. Super. 1994) (directors

of employer, an airline, were immune from suit brought by the plaintiff, an

employee of the airline who claimed mental injuries, where the plaintiff could

not present evidence that directors committed an intentional wrong).

Additionally, in Vosburg v. Connolly, 591 A.2d 1128 (Pa. Super.

1991), this Court concluded that the defendant, a co-owner of a family

construction company, was a co-employee rather than an employer under the

WCA. Id. at 1129, 1132-33; see also B & T Trucking v. Workers’

Compensation Appeal Board (Paull), 815 A.2d 1167, 1172 (Pa. Cmwlth.

2003) (individual with ownership interest in employer not automatically

excluded from status as employee under the WCA). As the complaint asserted

that the defendant intentionally struck the plaintiff during a work dispute, we

ruled that the claim could proceed under the intentional wrong exception to

co-employee immunity. Vosburg, 591 A.2d at 1133.

Upon review, we agree with the trial court that Defendant was Plaintiff’s

co-employee under the WCA and that Defendant was entitled to invoke the

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co-employee immunity bar to Plaintiff’s negligence action. Initially, there is

no question that Plaintiff’s “disability . . . [was] compensable under” the WCA

as he was injured during the course and scope of employment with ACS on

September 1, 2016 and ACS accepted his injury as compensable under the

WCA. 77 P.S. § 72.

Furthermore, the evidence of record shows that Defendant was acting

“in the course of her performance of duties for” ACS on September 1, 2016,

the date Plaintiff sustained his injuries. Bell, 943 A.2d at 298. Defendant

testified during his deposition that he brought the skid loader to the site of the

ACS paving project in Pittsburgh with the intention that he would personally

operate the skid loader to assist in completing the ACS paving project.

Plaintiff’s Motion for Summary Judgment, 3/3/21, Exhibit 2 at 45; Defendant’s

Reply Brief in Support of Summary Judgment, 3/8/21, Exhibit E-2 at 60.

Defendant was at the job site first thing in the morning on the date of Plaintiff’s

injury but left in order to pay a vendor for stone, returning immediately after

the injury occurred. Defendant’s Reply Brief in Support of Summary

Judgment, 3/8/21, Exhibit E-2 at 59-60. As discussed in more detail below,

there is no evidence that Defendant performed any work for or was acting on

behalf of Gaydos Construction on September 1, 2016.

Additionally, Plaintiff does not allege that Defendant committed an

“intentional wrong” that caused Plaintiff’s injuries. 77 P.S. § 72. Rather,

Plaintiff brought a negligence claim against Defendant, alleging in the

complaint that Defendant breached his duty of care to Plaintiff by failing to

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maintain the skid loader in proper working order and failing to properly train

Plaintiff on its operation. Complaint ¶¶27-39.

Finally, Defendant is not disqualified from invoking co-employee

immunity in light of his status as a manager of ACS with an ownership interest

in the company. The WCA expressly provides that an “executive officer” of a

company is an employee under the statute even if the executive has an

ownership interest in the company. 77 P.S. § 22. Moreover, our Supreme

Court and this Court have found that co-employee immunity applies to

executives and directors as well as a co-owner of a construction business.

Jadosh, 275 A.2d at 60; Adams, 652 A.2d at 330; Vosburg, 591 A.2d at

1132-33. Therefore, because Plaintiff and Defendant were both working for

ACS at the time of Plaintiff’s accident, Defendant was acting within the course

and scope of his employment with ACS when he left the skid loader at the job

site on September 1, 2016, and there is no allegation of an intentional wrong,

Defendant is immune from the instant lawsuit pursuant to Section 205 of the

WCA.

In arguing that the trial court improperly applied co-employee immunity

in this matter, Plaintiff does not deny that Defendant was an ACS employee

under the WCA. Instead, Plaintiff argues that his “complaint does not seek to

impose liability upon [Defendant] as [a] co-employee or supervisor at ACS,”

but rather that Defendant “is liable individually, as owner/operator of a wholly

independent business that loaned a negligently maintained instrumentality

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and that he failed to supervise its use at the” job site. Plaintiff’s Brief at 32-

33.

However, Plaintiff’s argument that he did not sue Defendant in his

capacity as an ACS worker misconstrues the nature of the immunity provisions

of the WCA. Like the employer immunity provisions of the WCA, a co-

employee’s immunity from an injured worker’s suit at common law is based

upon the identity of the defendant, not the plaintiff’s theory of the defendant’s

liability. See 77 P.S. §§ 72, 481(a). No amount of creative pleading by

Plaintiff can circumvent the fact that he sued Defendant for negligence based

upon actions Defendant took while engaged in work for ACS, as Plaintiff’s co-

employee.

Furthermore, Defendant’s previous work under the trade name Gaydos

Construction and his use of the skid loader in this other business does not

alter that Defendant was performing work exclusively on behalf of ACS on

September 1, 2016, the date of Plaintiff’s injury. Gaydos Construction was a

sole proprietorship, which has no legal distinction from the individual who

owns and operates the enterprise. Frontier Leasing Corp. v. Shah, 931

A.2d 676, 679 n.2 (Pa. Super. 2007). Defendant’s use of Gaydos Construction

as a fictitious name for his business “does not create a separate legal entity,

but is merely descriptive of a person or corporation who does business under

another name.” Burlington Coat Factory of Pennsylvania, LLC v. Grace

Construction Management Co., LLC, 126 A.3d 1010, 1024 (Pa. Super.

2015); see also 54 Pa.C.S. § 302(a) (defining “fictitious name”). Therefore,

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the skid loader was Defendant’s personally owned asset, not the property of

Gaydos Construction, an entity with no separate legal identity. See also

Plaintiff’s Motion for Summary Judgment, 3/3/21, Exhibit 2 at 18 (“George

Gaydos owns the skid loader, myself, me.”).

Defendant explained during his deposition testimony that he undertook

efforts to keep his work with Gaydos Construction separate from ACS,

including by ceasing to bid on any masonry or concrete jobs with Gaydos

Construction after ACS was formed. Plaintiff’s Motion for Summary Judgment,

3/3/21, Exhibit 2 at 41. Defendant also denied that Gaydos Construction ever

entered into any equipment lending agreements or joint venture agreements

with ACS. Id. at 41-42, 48; Defendant’s Reply Brief in Support of Summary

Judgment, 3/8/21, Exhibit E-2 at 58-59. Rather, Defendant explained that he

and Raymond had agreed in the first few months of ACS’s business that they

would each supply their personally owned tools and equipment as needed for

ACS jobs because the company had not yet accumulated sufficient capital to

purchase its own tools. Plaintiff’s Motion for Summary Judgment, 3/3/21,

Exhibit 2 at 43-45, 48.

While Plaintiff places great emphasis on Defendant’s instruction to other

ACS employees that he alone was authorized to operate the skid loader, this

fact does not contradict Defendant’s status as an ACS manager on September

1, 2016. In addition, although Gaydos Construction held a general commercial

liability insurance policy that included coverage for the skid loader and other

tools used on Gaydos Construction jobs, see Defendant’s Motion for Summary

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Judgment, 1/5/21, Exhibit E at 12-13; Plaintiff’s Motion for Summary

Judgment, 3/3/21, Exhibit 6, the existence of this policy does not show that

the skid loader was being utilized on behalf of Gaydos Construction on the

date of Plaintiff’s injury. Indeed, as Defendant explained in his deposition,

when the skid loader and other personally owned tools were used on an ACS

job, they would be covered by ACS’s insurance. Plaintiff’s Motion for Summary

Judgment, 3/3/21, Exhibit 2 at 42.

Ultimately, we find the record to be devoid of evidence showing that

Gaydos Construction was involved with the course of events that gave rise to

Plaintiff’s injuries. The mere fact of Defendant’s prior use of the skid loader

in a separate construction business does not deprive him of co-employee

immunity under the WCA. Accordingly, we affirm the trial court’s grant of

summary judgment on the basis of Defendant’s co-employee immunity from

Plaintiff’s suit at common law.

Order affirmed.

Judge Murray joins the memorandum.

Judge McCaffery files a concurring/dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/5/2022

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