Johnson, K. v. Agate Construction Co.

J-A21019-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KIMBERLY BOLDEN-JOHNSON, : IN THE SUPERIOR COURT

INDIVIDUALLY AND AS THE : OF PENNSYLVANIA

ADMINISTRATRIX OF THE ESTATE OF :

JOHN CALVIN JOHNSON, DECEASED :

:

:

v. :

:

: No. 2249 EDA 2021

AGATE CONSTRUCTION COMPANY, :

INC., JOHNSTON ENTERPRISES, :

PHILAPORT; PHILADELPHIA REGIONAL :

PORT AUTHORITY :

:

:

v. :

:

:

ATLANTIC CONCRETE CUTTING, INC. :

___________________________ :

KIMBERLY BOLDEN-JOHNSON, :

INDIVIDUALLY AND AS THE :

ADMINISTRATRIX OF THE ESTATE OF :

JOHN CALVIN JOHNSON, DECEASED :

:

:

v. :

:

:

AGATE CONSTRUCTION COMPANY, :

INC., JOHNSTON ENTERPRISES, :

PHILAPORT, PHILADELPHIA REGIONAL :

PORT AUTHORITY, PENN :

WAREHOUSING AND DISTRIBUTION, :

INC., JH STEVEDORING, :

PHILADELPHIA FOREST PRODUCTS :

CENTER :

___________________________ :

KIMBERLY BOLDEN-JOHNSON, :

INDIVIDUALLY AND AS THE :

ADMINISTRATRIX OF THE ESTATE OF :

JOHN CALVIN JOHNSON, DECEASED :

J-A21019-22

:

:

v. :

:

:

COLUMBUS AVENUE GPD INVESTMENT :

LP, COLUMBUS AVENUE :

INVESTMENTS, LLC, G.P. :

DEVELOPMENT CORPORATION, IVAN :

POPKIN, ROBERT A. GOLDENBERG, :

NEW AGE FASTENING SYSTEMS, INC. :

NEW AGE RESTORATION, NEW AGE :

CORPORATION :

:

:

APPEAL OF: AGATE CONSTRUCTION :

COMPANY, INC. :

Appeal from the Judgment Entered November 8, 2021

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): 180101066, 180102308, 180502228

BEFORE: LAZARUS, J., MURRAY, J., and McCAFFERY, J.

MEMORANDUM BY MURRAY, J.: FILED SEPTEMBER 30, 2022

Agate Construction Company, Inc. (Appellant), appeals from the

judgment1 entered against Appellant and in favor of Atlantic Concrete Cutting,

____________________________________________

1 Appellant purports to appeal from the September 17, 2021, order denying

post-trial relief. “An appeal from an order denying post-trial motions is

interlocutory. Pa.R.A.P. 301(a), (c), and (d)[.] Once that judgment is entered

however, our jurisdiction is perfected.” Keystone Dedicated Logistics, Inc.

v. JGB Enters., 77 A.3d 1, 2 n.1 (Pa. Super. 2013) (some citations, ellipses,

and brackets omitted); see also Billig v. Skvarla, 853 A.2d 1042, 1048 (Pa.

Super. 2004) (where “nonsuit was entered, the appeal properly lies from the

judgment entered after denial of a motion to remove nonsuit.”). The docket

in this case reflects that judgment was entered on November 8, 2021. See

Docket Entry No. 245 (stating, “judgment entered on verdict” (capitalization

omitted)). We amended the caption accordingly. Further, we treat Appellant’s

(Footnote Continued Next Page)

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Inc. (Atlantic or Atlantic Concrete), in this contractual indemnification case.

We affirm.

The trial court recounted the relevant factual and procedural history as

follows:

This indemnification action arises out of plaintiff Kimberly

Bolden-Johnson’s [(Ms. Bolden-Johnson or plaintiff)] action

against [Appellant] and a number of other defendants to recover

damages for the death of her husband, John Johnson. Mr.

Johnson, an employee of Atlantic, drowned on January 14, 2016[,]

while working on Pier 78 on the Delaware River in Philadelphia.

Philadelphia Regional Port Authority (“PRPA”) owns Pier 78. PRPA

entered into a contract with [Appellant], as the general contractor,

to renovate the pier, including the selected demolition of the

deteriorated portions of the pier’s concrete walking surface.

To complete this work, [Appellant] entered into a

subcontract with Atlantic (the “Subcontract”), pursuant to which

Atlantic was tasked with cutting concrete at the pier. The

Subcontract contained an indemnification clause [(indemnity

provision)], under which the subcontractor[,] Atlantic[,] agreed to

indemnify the general contractor[, Appellant]. It provides[, in

pertinent part]:

To the full extent permitted by law, the Subcontractor

agrees to defend, indemnify and hold harmless the

Contractor and the Owner, and their respective officers,

agents and employees and any other person or entity

required by the Contract Documents (“Indemnified

Parties”) from and against any and all Losses arising from

or relating to Work performed by the Subcontractor on

the Project, whether or not the Contractor was negligent,

unless the Contractor was solely negligent.

____________________________________________

timely notice of appeal as being filed after the entry of judgment. See

Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the announcement of a

determination but before the entry of an appealable order shall be treated as

filed after such entry and on the day thereof.”).

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(Subcontract[, 11/25/15,] at 7).[2] With leave of court,

[Appellant] filed a joinder complaint against Atlantic on October

22, 2018, demanding indemnification pursuant to the

Subcontract.

On September 3, 2019, [Appellant] filed a summary

judgment motion arguing that it was a statutory employer of Mr.

Johnson and therefore immune from suit under the Pennsylvania

Worker’s Compensation Act. [See McDonald v. Levinson Steel

Co., 153 A. 424, 425-26 (Pa. 1930) (discussing statutory

employer); 77 P.S. § 462.] In support of the summary

judgment motion, [Appellant] admitted:

1. PRPA owned Pier 78. ([Motion, 9/3/19,] at ¶ 1.)

2. PRPA entered into a contract with [Appellant] as the

general contractor [(Prime Contract)] to perform

renovations to Pier 78. (Id. at ¶¶ 2 and 28.)

3. The Prime Contract included “the replacement of

deteriorated concrete along the loading dock surface,

leading dock wall rail deck, and seawall in addition to

spall repairs on the barrier and apron surface.” (Id. at

¶ 58 (quoting Prime Contract.))

4. The Prime Contract called for the cutting of concrete

surfaces. (Id. at ¶ 60.)

5. [Appellant] entered into a [S]ubcontract with Atlantic

to perform the concrete cutting work at the pier. (Id.

at ¶ 30.)

6. As the general contractor, [Appellant] was on the site

daily and occupied the area of the pier where work was

performed and oversaw the work performed by all

contractors. (Id. at ¶¶ 6 and 45.)

7. Mr. Johnson was a direct employee of Atlantic,

[Appellant’s] subcontractor. (Id. at ¶ 20.)

____________________________________________

2 The Subcontract also included a provision (choice of law provision) that

states: “This Subcontract shall be governed by and construed in accordance

with the laws of the State of New Jersey….” Subcontract, 11/25/15, ¶ 26.9.

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8. [Appellant] maintained an office on site on Pier 78. (Id.

at ¶ 44.)

9. [Appellant] coordinated the work of all subcontractors.

(Id. at ¶ 46.)

10. [Appellant] conducted meetings and inspections onsite

at the pier. (Id. at ¶ 47.)

11. [Appellant] wrote up violations of subcontractors. (Id.

at ¶ 48.)

12. [Appellant] was on site daily and oversaw the work

performed by all contractors. ([Id.] at ¶ 6[.)]

Ms. Bolden-Johnson contested the summary judgment

motion, while Atlantic did not oppose summary judgment to

[Appellant] on the statutory employer theory. The Court denied

the summary judgment motion on October 31, 2019. Ms.

Bolden-Johnson subsequently settled the case with

[Appellant] for $10.5 million, and [Appellant] pursued its

indemnification claim against Atlantic.

The Court heard a bench trial on [Appellant’s]

indemnification claim against Atlantic on May 10 and 11, 2021. …

At trial, [Appellant] presented the testimony of Kevin

Durkan, plaintiff Kimberly Bolden[-]Johnson’s attorney in this

matter. Mr. Durkan testified that he produced [Ms. Bolden-

Johnson] for deposition, took 12 to 13 depositions, including all

the individuals who were at Pier 78 on the night of Mr. Johnson’s

death, and hired an expert on construction safety. Mr. Durk[a]n

testified that “in September of 2015, [] PRPA had hired [Appellant]

to rehabilitate Pier 78 including the selected demolition of the

deteriorated portions of the pier’s concrete walking surface.”

According to Mr. Durk[a]n, the contract between [] PRPA and

[Appellant] required [Appellant] to cover the openings that were

cut into the concrete and appoint a competent superintendent to

continuously monitor for safety. Furthermore, “[Appellant] had

submitted a site-specific health and safety plan for the project,

which was approved by the PRPA.” [Appellant’s] [S]ubcontract

with Atlantic provided that “[Appellant] had the responsibility to

cover the holes that were cut into the concrete.” [Durkan]

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testified that, when performing the work at Pier 78, [Appellant]

would mark the area of concrete for Atlantic to cut; Atlantic would

cut the concrete; and then [Appellant] would lift the concrete,

using a crane and creating a hole. Before the close of [Appellant’s]

case, the parties agreed to submit designations and counter-

designations of the depositions of Atlantic and [Appellant]

employees for the Court’s consideration. Atlantic’s counter-

designations included the deposition of Atlantic employee Eric

Burr, who testified that [Appellant] “ran the job” at Pier 78.

At the close of [Appellant’s] case, Atlantic [orally] moved

for a compulsory nonsuit. The Court granted Atlantic’s

motion on the grounds that [Appellant] had failed to prove

that Ms. Bolden-Johnson had a valid claim against it. On

May 21, 2021, [Appellant] filed a motion for post-trial relief,

seeking: (1) removal of the compulsory non-suit in Atlantic’s

favor; (2) entry of a directed verdict in its favor; and/or (3) a new

trial. The Court denied all post-trial relief, with the exception of

amending its [written] finding[s] and conclusions to reflect [entry

of a] nonsuit instead of a directed verdict.

Trial Court Opinion, 12/16/21, at 2-6 (emphasis and footnote 2 added;

citations to record and one footnote omitted); see also id. at 6 n.2 (explaining

the trial court “orally granted Atlantic’s [post-trial] motion at a hearing

following the close of [Appellant’s] case. On May 25, 2021, the Court filed []

findings and conclusions and a trial worksheet, in which it erroneously stated

that it granted a “directed verdict” instead of a “nonsuit.” Subsequently, [on

September 17, 2021,] the Court filed amended findings and conclusions and

an amended trial worksheet to reflect [entry of a] “nonsuit” instead of a

“directed verdict.”).

Appellant timely filed a notice of appeal on October 15, 2021. The single

notice of appeal contained multiple trial court docket numbers, i.e.,

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180101066 (Docket 1066), 180102308, and 180502228 (Docket 2228).3 The

trial court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. Appellant timely complied on November 8,

2021.

The trial court issued a Pa.R.A.P. 1925(a) opinion on December 16,

2021, rejecting Appellant’s challenge to, inter alia, the entry of nonsuit, and

reasoning:

To establish its indemnification claim, [Appellant] had the burden

of proving:

the scope of the indemnification agreement; the nature

of the underlying claim; its coverage by the

indemnification agreement; the reasonableness of the

alleged expenses; and, where the underlying action is

settled rather than resolved by payment of a judgment,

the validity of the underlying claim and the

reasonableness of the settlement.

Burlington Coat Factory of Pennsylvania, LLC v. Grace

Const. Mg[m]t. Co., LLC, 126 A.3d 1010, 1022 (Pa. Super.

2015) [(en banc) (citation omitted) (emphasis added); see also

Cty. of Del. v. J.P. Mascaro & Sons, Inc., 830 A.2d 587, 593

(Pa. Super. 2003) (“To establish a right to indemnification where

a case is resolved by settlement, the party must establish,” inter

alia, “that the underlying claim was valid against it”).]

[Appellant] failed to establish that Ms. [Bolden-]Johnson

had a valid claim against it. Under Pennsylvania’s Worker[s’]

Compensation Act, [77 P.S. § 1, et seq.,] an employer is immune

from tort liability for an employee’s personal injury if it meets the

five elements for a “statutory employer” set out in McDonald v.

Levinson Steel Co., 153 A. 424, 426 (Pa. 1930):

____________________________________________

3The caption of the notice of appeal stated, “consolidated under lead action,”

which, Appellant claimed, was Docket 1066.

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(1) An employer who is under contract with an owner or

one in the position of an owner; (2) premises occupied

by or under the control of such employer; (3) a

subcontract made by such employer; (4) part of the

employer’s regular business entrusted to such

subcontractor; (5) an employee of such subcontractor.

After the end of [Appellant’s] case-in-chief, the record contained

uncontested evidence that [Appellant] met all five elements of the

McDonald test.

First, the evidence submitted at trial showed that PRPA, the

owner of Pier 78, entered into a contract with [Appellant], the

general contractor. The Subcontract between [Appellant] and

Atlantic identifies PRPA as the owner of Pier 78, and [Appellant]

as the contractor. Moreover, the Subcontract references the

[P]rime [C]ontract for the project between PRPA and [Appellant].

Mr. Durkan also testified that PRPA entered into a contract with

[Appellant], as the general contractor, to renovate Pier 78.

Finally, [Appellant] admitted that it entered into a contract with

PRPA in its motion for summary judgment.

Second, the evidence submitted by [Appellant] established

that it occupied and controlled the premises in question. Mr.

Durkan testified that [Appellant] directed Atlantic’s performance

of the work at Pier 78 by marking the area of concrete for Atlantic

to cut, which Atlantic would then cut. Moreover, in its motion for

summary judgment[, Appellant] admitted that it maintained an

office on the site; its supervisors were on the site every day; it

coordinated the work of the subcontractors; it conducted meetings

and inspections on the site; and it wrote up subcontractor

violations. According to Mr. Durkan, [Appellant] agreed with PRPA

to hire a competent superintendent to continuously monitor for

safety. Furthermore, “[Appellant] had submitted a site-specific

health and safety plan for the project, which was approved by the

PRPA.”

[Appellant] entered into a subcontract with Atlantic, which

satisfies the third [McDonald] element. The fourth element is

that a portion of the employer’s business be entrusted to the

subcontractor. In this matter, the Subcontract called for Atlantic

to cut concrete on the pier, a necessary activity to allow for the

renovation work of the [P]rime [C]ontract to proceed. The final

element of the statutory employer test is that the subcontractor

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employ the employee. In this case, there is no dispute that Mr.

Johnson was an Atlantic employee.

Since the five elements of a “statutory employer” were

established at the end of [Appellant’s] case, the Court did not err

in holding that [Appellant] was a “statutory employer” and thus

Atlantic had no obligation to indemnify [Appellant] for the

settlement payment.

Trial Court Opinion, 12/16/21, at 11-13 (record citations omitted). The court

also stated, with respect to the “import” of its October 31, 2019, denial of

Appellant’s motion for summary judgment:

All the [c]ourt decided in October 2019 is that, in the face of Ms.

Bolden-Johnson’s opposition, material issues of fact existed

regarding the statutory employer defense, namely, whether PRPA

owned the pier; [Appellant] exercised sufficient occupancy or

control of the premises; Atlantic was a subcontractor

notwithstanding an independent contractor clause in the

[S]ubcontract; a portion of [Appellant’s] regular business was

entrusted to Atlantic; and Mr. Johnson was the employee of a

subcontractor, notwithstanding the independent contractor clause

in the [S]ubcontract. At the time of trial, [Appellant] had

admitted to all these facts, and the [c]ourt properly held it

to these admissions. Cogley v. Duncan, 32 A.3d 1288, 1292

(Pa. Super. 2011) (“Statements of fact by one party in pleadings,

stipulations, testimony, and the like, made for that party’s benefit,

are termed judicial admissions and are binding on the party.”)[

(citation omitted).] This includes [Appellant’s] admissions at

trial establishing that [Appellant] was Mr. Johnson’s

statutory employer.

Id. at 13 (emphasis added) (rejecting Appellant’s claim that “denial of

summary judgment on the statutory employer issue constitutes the law of the

case and precludes the [trial c]ourt from granting Atlantic’s motion for a

compulsory nonsuit.” (citation omitted)).

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On December 29, 2021, this Court issued a Rule for Appellant to show

cause (RTSC) why we should not quash the appeal based on Commonwealth

v. Walker, 185 A.3d 969, 971 (Pa. 2018) (“where a single order resolves

issues arising on more than one docket, separate notices of appeal must

be filed for each of those cases” or the appeal will be quashed) (emphasis

added).4 See also Pa.R.A.P. 341, note; In re: M.P., 204 A.3d 976, 980-81

(Pa. Super. 2019) (stating Walker also applies in civil and family cases). In

the RTSC, we also cited Always Busy Consulting, LLC v. Babford & Co.,

Inc., 247 A.3d 1033, 1043-44 (Pa. 2021) (holding that filing one notice of

appeal from single order entered at lead docket for “consolidated civil matters

where all record information necessary to adjudication of the appeal exists,

and which involves identical parties, claims and issues, does not run afoul of

Walker [or] Rule 341”). Appellant filed a timely response, claiming its notice

of appeal was not defective and complied with Always Busy:

The underlying matter involved three separate lawsuits arising

from the same incident that were consolidated at the trial court

level during the course of the litigation. Those three cases

involved over fifteen named parties and a number of claims. All

but two parties were dismissed prior to appeal (Appellant []

and Appellee Atlantic Concrete), and all issues on appeal are

exclusive to [Appellant’s] claims against Atlantic Concrete

for contractual indemnification[.]

____________________________________________

4 The Pennsylvania Supreme Court overruled Walker, in part, in

Commonwealth v. Young, 265 A.3d 462, 477-78 (Pa. 2021) (reaffirming

that Pa.R.A.P. 341 requires separate notices of appeal when a single order

resolves issues under more than one docket, but holding Pa.R.A.P. 902

permits appellate courts to consider an appellant’s request to remedy a

Walker violation, where appellant timely filed the notice of appeal).

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Response, 1/10/22, at 2 (unnumbered) (emphasis added). Appellant asserted

the trial court’s rulings “were entered exclusively on the lead docket and

involved only claims by [Appellant] against Atlantic Concrete.” Id.

(referencing Docket 1066). On January 20, 2021, this Court discharged the

RTSC and referred the matter to the merits panel. Thus, we first address

whether we have jurisdiction to consider Appellant’s issues.

Our review of the record confirms Appellant’s claim that its single notice

of appeal complied with Always Busy and did not violate Walker. As stated

above, although this matter began as three separate cases, the trial court

consolidated the cases under Docket 1066 (see Order, 4/27/18); all

defendants aside from Atlantic and Appellant are no longer involved in the

litigation;5 and Appellant correctly states, “[t]his appeal does not involve any

other claims, parties, or interests,” aside from those implicating Atlantic and

Appellant. Response, 1/10/22, at 11 (unnumbered); see also Appellant’s

Reply Brief at 6 (“There was no improper consolidation of multiple appellate

issues or parties. Indeed, the issues on appeal arose only from [Appellant’s]

____________________________________________

5 We are unpersuaded by Atlantic’s argument that quashal is necessary

because “[Dockets] 1066 and 2228 do not involve identical parties or claims[,

where] four additional defendants were named in the latter case. Therefore,

the Always Busy exception does not apply.” Atlantic’s Brief at 7. The other

defendants are no longer involved in the case. Further, there is no merit to

Atlantic’s claim that Appellant’s appeal “attempted an impermissible

consolidation in this Court….” Id.

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claim against Atlantic Concrete, which arises exclusively from Docket 1066.”).

Accordingly, we decline to quash under Walker.

Appellant presents three issues for our review:

1. Did the Trial Court err in granting Atlantic Concrete’s oral

motion for compulsory nonsuit?

a. Did the Trial Court err in neglecting to apply New

Jersey law pursuant to the [S]ubcontract between

[Appellant] and Atlantic Concrete?

b. Did the Trial Court err in finding that the claim against

[Appellant] was not valid?

c. For the purposes of [Appellant’s] contractual

indemnification claim against Atlantic Concrete, did

the Trial Court err in evaluating the validity of plaintiff

Kimberly Bolden-Johnson’s claim against [Appellant]

at the time of Atlantic Concrete’s motion for

compulsory nonsuit, rather than at the time of

[Appellant’s] settlement with plaintiff?

2. Did the Trial Court err in determining that statements made in

[Appellant’s] motion for summary judgment were judicial

admissions warranting entry of compulsory nonsuit?

3. Did the Trial Court act in contravention to Pennsylvania public

policy of encouraging the settlement of lawsuits when it

granted Atlantic Concrete’s motion for compulsory nonsuit?

Appellant’s Brief at 4-5.

Preliminarily, we note Appellant’s noncompliance with Pa.R.A.P.

2119(a), which requires the argument section of an appellate brief to

be divided into as many parts as there are questions to be

argued; and shall have at the head of each part - in distinctive

type … - the particular point treated therein, followed by such

discussion and citation of authorities as are deemed pertinent.

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Id. (emphasis added). Appellant’s argument section headings do not

correspond to its issues. Although this defect has complicated our review, we

address the merits of Appellant’s issues as presented. See Pa.R.A.P. 105(a)

(requiring liberal construction of appellate rules); but see Commonwealth

v. Briggs, 12 A.3d 291, 343 (Pa. 2011) (“The briefing requirements

scrupulously delineated in our appellate rules are not mere trifling matters of

stylistic preference; rather, they represent a studied determination by our

Court and its rules committee of the most efficacious manner by which

appellate review may be conducted[.]”).

Appellant’s first issue (and related sub-issues) challenges the trial

court’s entry of nonsuit in favor of Atlantic. See Appellant’s Brief at 33-60;

see also Appellant’s Reply Brief at 33 (Appellant clarifying its “central

contention” is whether “the trial court erred in granting nonsuit for Atlantic

Concrete, as the trial court incorrectly ruled that plaintiff did not have a valid

claim against [Appellant].” (some capitalization omitted)). Pursuant to

Pa.R.C.P. 230.1(a)(1), a court may enter a nonsuit “if, at the close of the

[non-moving party’s] case on liability, the [non-moving party] has failed to

establish a right to relief.” Id.

We recognize our standard of review:

Nonsuit should not be granted unless it is clear that the [non-

moving party] has not established a cause of action or any right

to relief against the party in question. When we determine if the

[non-moving party] has established the right to recover, the [non-

moving party] must be allowed the benefit of all favorable

evidence and reasonable inferences arising therefrom, and any

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conflicts in the evidence must be resolved in favor of the [non-

moving party]. This Court will reverse an order refusing to

remove a nonsuit if the trial court either abused its discretion or

committed an error of law.

Scampone v. Grane Healthcare Co., 169 A.3d 600, 611 (Pa. Super. 2017)

(citations and quotations omitted); see also MB Fin. Bank v. Rao, 201 A.3d

784, 788 (Pa. Super. 2018) (“When a nonsuit is entered, the lack of evidence

to sustain the action must be so clear that it admits no room for fair and

reasonable disagreement.” (citation omitted)). “An abuse of discretion may

not be found merely because an appellate court might have reached a different

conclusion, but requires a manifest unreasonableness, or partiality, prejudice,

bias, or ill-will, or such lack of support so as to be clearly erroneous.” Parr v.

Ford Motor Co., 109 A.3d 682, 690 (Pa. Super. 2014) (en banc) (citations

omitted); see also Fancsali v. Univ. Health Ctr., 761 A.2d 1159, 1162 (Pa.

2000) (“When the trial court reaches a conclusion calling for the exercise of

its discretion, the party complaining on appeal has a heavy burden.”).

We first address Appellant’s claim, in connection with its first issue, that,

“the trial court should have applied New Jersey law to the claim for

indemnification as required by the parties’ contract.” Appellant’s Brief at 39;

see also id. at 40 (citing above choice of law provision – Subcontract,

11/25/15, ¶ 26.9). Appellant asserts,

the Trial Court erred by trying to evaluate [Appellant’s] actual

liability following [Appellant’s] case-in-chief at the bench trial.

New Jersey law does not require that the Trial Court reach a

decision on the merits in order to evaluate [Appellant’s] potential

liability in the context of a claim for contractual indemnification.

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[Appellant] need only show that it “faced potential liability” for

the claims underlying the settlement.

Id. at 49 (emphasis added; footnote omitted) (quoting Serpa v. New Jersey

Transit, 951 A.2d 208, 213 (N.J. App. Div. 2008) (A party may be indemnified

for settlement payments it makes where three requirements are met: “(a)

the indemnitee’s claims are based on a valid, pre-existing

indemnitor/indemnitee relationship; (b) the indemnitee faced potential

liability for the claims underlying the settlement; and (c) the settlement

amount was reasonable.”) (emphasis added; citation omitted)); but cf.

Burlington Coat Factory, 126 A.3d at 1022 (to establish an indemnification

claim in Pennsylvania, a settling party has the burden of proving, inter alia,

the “validity of the underlying claim”).

Atlantic counters that Appellant waived this claim, stating:

The only aspect of New Jersey law [Appellant] specifically

discusses is an alleged “potential liability” standard, which

(according to [Appellant]) the trial court should have applied

instead of Pennsylvania’s “valid claim” standard. … [Appellant]

waived any argument that New Jersey law applies to the statutory

employer analysis[.]

Atlantic’s Brief at 34 (footnote and citation omitted). Atlantic contends that

because Appellant

never referenced New Jersey law in responding to Atlantic’s

nonsuit motion based on statutory employer immunity, and

certainly never raised the alleged “potential liability” standard at

any time during trial, its current argument is clearly waived. See

Pa.R.C.P. 227.1(b)(1) [(providing in relevant part, “post-trial

relief may not be granted unless the grounds therefor … were

raised in pre-trial proceedings or by motion, objection, point for

charge, request for findings of fact or conclusions of law, offer of

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proof or other appropriate method at trial”)]; Young [v. S. B.

Conrad, Inc.], 216 A.3d [267], 274-275 [(Pa. Super. 2019)]

(finding waiver because plaintiff “did not bring his claims of

procedural error to the [trial] court’s attention until after he had

lost the [nonsuit] motion.”) [(emphasis in Young).]

Atlantic’s Brief at 36.

Consistent with this argument, the trial court found waiver. See Trial

Court Opinion, 12/16/21, at 10 (citing Pa.R.C.P. 227.1(b)(1), supra and

noting Appellant “did not raise the choice of law issue when Atlantic moved

for a nonsuit. In fact, [Appellant] cited Pennsylvania law to support its

position[.]” (citations omitted)); see also id. (“the [c]ourt did not err in

applying Pennsylvania law because it decided Atlantic’s nonsuit on [] statutory

employer grounds,” and observing, “[p]er [Appellant’s] own admission,

Pennsylvania law governed the statutory employer issue.” (citing Motion for

Summary Judgment, 9/3/19, at ¶¶ 20-78)). Upon review, we agree. See,

e.g., Trigg v. Children’s Hosp. of Pittsburgh, 229 A.3d 260, 269 (Pa.

2020) (“[I]t is axiomatic that issues not raised in lower courts are waived for

purposes of appellate review, and they cannot be raised for the first time on

appeal. Pa.R.A.P. 302(a). … Requiring issues to be properly raised first in

the trial court ensures that trial judges have the opportunity to consider a

potential appellate issue and correct any error at the first available

opportunity.” (some citations omitted)).

Appellant further argues, in connection with its first issue, that the trial

court improperly failed to hold that an express provision of the Subcontract

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“preclude[s] the statutory employer defense as a bar to [Appellant’s] recovery

for contractual indemnification[.]” Appellant’s Brief at 35 (bold and some

capitalization omitted). Appellant references Article 8.1, which provides,

“[Atlantic’s] indemnity obligations under this paragraph shall not be limited by

applicable worker’s compensation acts….” Subcontract, 11/25/15, at ¶ 8.1;

see also Appellant’s Brief at 35. However, Appellant also waived this claim

for failing to raise it before the trial court. Pa.R.A.P. 302(a); Pa.R.C.P.

227.1(b)(1); Young, supra; see also U.S. Bank, N.A. v. Hua, 193 A.3d

994, 997 (Pa. Super. 2018) (where appellant failed to raise claim in court-

ordered Pa.R.A.P. 1925(b) statement, omission “will result in automatic

waiver of the issues raised.” (emphasis in original; citation omitted));

Pa.R.A.P. 1925(b)(4)(vii).

Next, we simultaneously address Appellant’s remaining, preserved

claims in its first issue, with the related claims in Appellant’s second issue.

Appellant argues the trial court improperly entered nonsuit against Appellant,

where the court,

should have evaluated plaintiff’s claims against [Appellant] in the

context of the underlying matter where, in rejecting

[Appellant’s] statutory employer defense at the summary

judgment stage, the Trial Court confirmed [Appellant]

could be held liable for plaintiff’s claims. … When a party is

seeking contractual indemnification to recover a settlement in the

underlying matter, the Trial Court should not determine whether

actual liability exists at the time of trial on the indemnification

claim. Instead, the evaluation of the potential liability of

[Appellant] or the validity of plaintiff’s claim against [Appellant]

should have been applied to the time [Appellant’s] claim for

contractual indemnification arose – when plaintiff settled its claim

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against [Appellant], after summary judgment on the statutory

employer defense was denied by the same judge.

Appellant’s Brief at 31 (emphasis added). Appellant maintains, “in the context

of a claim for contractual indemnification, … [no] Pennsylvania case instructs

the lower courts when they should evaluate the validity of plaintiff’s claim

against the party seeking indemnity.” Id. at 53 (emphasis in original).

Appellant further argues the trial court abused its discretion in finding

that plaintiff’s claim against Appellant was not valid. See id. at 51-56; see

also Burlington Coat Factory, 126 A.3d at 1022 (discussing “valid claim”

requirement to establish an indemnification claim after a settlement

payment). Referencing the trial court’s denial of its motion for summary

judgment, Appellant contends,

determining that a claim is valid enough to submit it to a

jury is enough to create a “valid claim” by plaintiff against

[Appellant], for purposes of contractual indemnity. After

[Appellant’s] motion for summary judgment was denied in

October 2019, no new evidence was introduced on the issue of

[Appellant’s] status as ? statutory employer at the bench trial.

Id. at 54-55 (emphasis added); see also id. at 55 (“The same material issues

of fact on the factual issues presented in a statutory employer defense that

were identified by the Trial Court[, i.e., in denying Appellant’s summary

judgment motion,] remained in existence when [Appellant] and plaintiff

settled their claim.” (quotations omitted)). Appellant emphasizes the

Subcontract’s inclusion of the indemnity provision, and contends,

Atlantic Concrete promised to indemnify [Appellant] for “all”

claims arising from or relating to Atlantic Concrete’s work. Under

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the Trial Court’s decision, however, Atlantic Concrete has to

indemnify [Appellant] only when a plaintiff’s claim against

[Appellant] is “valid.” That is a sweeping, improper judicial

rewrite of the parties’ agreement.

Id. at 59.

In its second issue, Appellant argues the trial court “erred in concluding

that statements made by [Appellant] in its motion for summary judgment

were judicial admissions warranting entry of compulsory nonsuit[.]” Id. at 60

(bold and some capitalization omitted).6 Appellant contends:

It cannot be said that [Appellant’s] statements in its motion for

summary judgment were unequivocally admitted or conclusively

binding where the statements were genuinely disputed by plaintiff

and viewed with such uncertainty by the Trial Court that it denied

[Appellant’s] motion for summary judgment.

Id. at 63. Appellant complains, “it was unfair for the trial court to reject

[Appellant’s] statements when contained in a motion for summary judgment

…, only to reverse itself when considering a motion for compulsory nonsuit….”

Id. at 61 (some capitalization omitted).

Atlantic, on the other hand, argues:

[I]ndemnification language does not impose absolute liability and

is not self-effectuating; its application in a particular case must be

proven by the indemnitee as the moving party. And, when the

indemnitee settles the underlying claim, which precludes fact-

finding that is necessary to determine whether the indemnification

language applies, decades of Pennsylvania law impose an elevated

burden of proof on the indemnitee. In this Court’s leading decision

on the subject, it explained:

____________________________________________

6The trial court did not address this claim in its Pa.R.A.P. 1925(a) opinion.

But see Appellant’s Rule 1925(b) Statement, 11/8/21, ¶ 9 (preserving claim).

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[W]hen a cause is settled, the record of the action is not

sufficient to establish an indemnitee’s claim against the

indemnitor and the indemnitor is entitled to a trial by jury

and a determination by it as to whether or not liability

did, in fact, exist …. The fact of voluntary payment

does not negat[e] the right to indemnity. It merely

varies the degree of proof needed to establish the

liability of the indemnitor.

Martinique Shoes v. New York Progressive Wood Heel Co.,

217 A.2d 781, []783 (Pa. Super. 1966) (emphasis added; citations

omitted).

[Appellant] never addresses or even acknowledges that its

decision to settle fundamentally altered its burden of proof and

required it to establish that the settled claim was valid — i.e., that

its liability “did, in fact, exist.” Id. [Appellant’s] statutory

employer immunity, which it no longer disputes, is not merely a

“defense,” as [Appellant] claims. It is a nonwaivable abrogation

of tort liability, which deprives courts of subject matter jurisdiction

and renders them incompetent to even consider tort claims.

Sheard v. J.J. DeLuca, 92 A.3d 68, 75-78 (Pa. Super. 2014).

Thus, plaintiff’s underlying claim against [Appellant] was not valid,

liability did not in fact exist, and indemnification would be

improper as a matter of law. See Fox Park Corp. v. James

Leasing Corp., 641 A.2d 315, 317 (Pa. Super. 1994) (“Fox need

not indemnify Robinson’s settlement payments if Robinson was

never liable to anyone in the first place.”).

[Further], the denial of summary judgment did not, as

[Appellant] claims, “reject” statutory employer immunity or

“establish” the validity of Plaintiff’s claim. Brief for Appellant, p.

54. As the trial court found, [Appellant’s] argument

misapprehends the import of a summary judgment denial, [see

Trial Court Opinion, 12/16/21, at 13, supra,] which does not

accept, reject, or establish any legal position, but simply allows

claims and defenses to proceed to trial.

Atlantic’s Brief at 2-3. Atlantic also argues, contrary to Appellant’s assertion

that the trial court should have evaluated the “validity” of plaintiff’s claims

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after the denial of Appellant’s summary judgment motion, that Pennsylvania

Rule of Civil Procedure 230.1,

clearly states that the relevant time for considering a nonsuit

motion is “at the close of the plaintiff’s case on liability,” and the

relevant record to consider is the trial record, not the summary

judgment record. See Pa.R.Civ.P. 230.1(a)(1); and id., (a)(2)

(stating that the court “shall consider only evidence which was

introduced by the plaintiff”) (emphasis added).

Indeed, this Court has specifically rejected the argument

that the summary judgment evidentiary record is relevant in

evaluating a nonsuit. See Barnes v. Alcoa, Inc., 145 A.3d 730,

737-738 (Pa. Super. 2016) (“[a]ppellants rely upon evidence

presented at the summary judgment stage …. We are prohibited

from considering evidence not presented at trial when considering

whether the trial court properly granted [a] nonsuit motion. Thus,

[a]ppellants’ reliance upon this evidence is misplaced.”).

Atlantic’s Brief at 42-43.

After careful review, we agree with Atlantic’s arguments, which are

supported by the record and the law. The trial court properly concluded that

the evidence presented at trial satisfied each of the aforementioned

McDonald elements for statutory employer immunity. See Trial Court

Opinion, 12/16/21, at 11 (“After the end of [Appellant’s] case-in-chief,

the record contained uncontested evidence that [Appellant] met all five

elements of the McDonald test.” (emphasis added)). We discern no error or

abuse of the trial court’s discretion in concluding Ms. Bolden-Johnson had a

“valid claim” against Appellant. See Burlington Coat Factory, supra; Trial

Court Opinion, 12/16/21, at 11-12. Indeed, as Atlantic correctly points out,

this Court has emphasized that a party entering into a settlement “assumes

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the risk, in an action against the wrongdoer for indemnity, of being

able to prove the actionable facts on which his liability depends….”

Martinique Shoes, 217 A.2d at 783 (emphasis in original; citation omitted);

see also Atlantic’s Brief at 21, and id. at 22 (arguing, “contrary to

[Appellant’s] claim, contractual indemnification language is insufficient

standing alone to permit recovery after a settlement”). The trial court did not

improperly consider all evidence of record, including Appellant’s admissions in

its summary judgment motion. See Cogley, supra (judicial admissions are

binding).

The record also refutes Appellant’s claim that the record after the non-

jury trial, contained “no new evidence” for the court to consider in ruling on

the nonsuit motion and issue of statutory employer liability. Appellant’s Brief

at 55; see also Trial Court Opinion, 12/16/21, at 3-4, 11-13, supra (detailing

new evidence presented at trial); Atlantic’s Brief at 46-49 (same).

Accordingly, the trial court properly entered nonsuit against Appellant on its

contractual immunity claim. See Pa.R.C.P. 230.1(a)(1); Fox Park, 641 A.2d

at 317, 318 (upholding trial court’s denial of appellant/alleged indemnitee’s

motion for indemnification made after a settlement payment, where appellant

“was never liable to anyone in the first place.”). Appellant’s first and second

issues do not merit relief.

In its final issue, Appellant asks us to reverse the trial court’s entry of

nonsuit, as it “will discourage settlements,” in contravention of Pennsylvania’s

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public policy of encouraging settlements. Appellant’s Brief at 64 (bold and

some capitalization omitted) (citing Nationwide Ins. Co. v. Schneider, 960

A.2d 442, 449 (Pa. 2008) (“it remains a strong, prevailing public policy in

Pennsylvania to encourage voluntary settlements.”)). Appellant complains the

trial court’s ruling,

will significantly discourage future settlements where

indemnification agreements are at issue. Any defendant or

insurer looking at the result in this case would have to conclude

that the safest and most fiscally responsible thing to do is to not

settle with plaintiff and, instead, take its defenses to trial. … If

the defendant’s defenses are rejected at trial, the defendant would

have established there was a valid claim against it that had

matured into a judgment, and it could rest easily knowing that it

could pursue its contractual indemnification claim against its

subcontractor.

Appellant’s Brief at 66 (emphasis in original).7

Atlantic counters:

[Appellant’s] argument misapprehends numerous key facts and

suggests that the onerous situation created by [Appellant] should

result in sympathy for [Appellant]. … [The trial court’s] denial of

summary judgment did not “reject” [Appellant’s] statutory

employer immunity or “establish” the validity of Plaintiff’s claims

in any way. It simply found that a trial was necessary. Then,

more than eighteen months later, the nonsuit was granted based

on extensive new evidence that [Appellant] itself presented at

trial. There was nothing improper about this, and there is no basis

for [Appellant’s] suggestion that the nonsuit could discourage

settlements.

Atlantic’s Brief at 54 (emphasis in original).

____________________________________________

7 Again, the trial court did not address this claim in its Pa.R.A.P. 1925(a)

opinion. But see Appellant’s Rule 1925(b) Statement, 11/8/21, ¶ 15

(preserving public policy claim).

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Again, we are persuaded by Atlantic’s arguments, and our review

reveals no authority to support Appellant’s claim that the trial court’s ruling

contravenes Pennsylvania’s public policy of encouraging settlements. See,

e.g., Martinique Shoes, 217 A.2d at 783 (a settling party “assumes the risk”

of possible unfavorable implications in a subsequent “action against the

wrongdoer for indemnity”); see also Trial Court Opinion, 12/16/21, at 13

(stating Appellant “misapprehends the import” of the court’s denial of

Appellant’s motion for summary judgment). Appellant’s third issue does not

merit relief.

Based on the foregoing, the trial court did not err or abuse its discretion

in entering nonsuit against Appellant. Accordingly, we affirm.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/30/2022

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