noting that this question remains open
How later courts described this case
- noting that this question remains open
Written by the judges who cited it.
The opinion
J-A24010-22
2023 PA Super 13
JASON YODER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MCCARTHY CONSTRUCTION, INC.; :
CASTELLI MECHANICAL DESIGN AND :
CATANIA ENGINEERING : No. 1605 EDA 2021
ASSOCIATES, INC. :
:
:
v. :
:
:
AIR CONTROL TECHNOLOGY, INC.; :
AND RRR CONTRACTORS, INC. :
Appeal from the Judgment Entered July 22, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 180500769
BEFORE: PANELLA, P.J., BENDER, P.J.E., and SULLIVAN, J.
OPINION BY BENDER, P.J.E.: FILED JANUARY 31, 2023
Appellant, McCarthy Construction, Inc. (“McCarthy”), appeals from the
$5,590,650.69 judgment entered in favor of Appellee, Jason Yoder, and
J-A24010-22
against McCarthy following a jury trial.1, 2 In its appeal, McCarthy asks us,
inter alia, to determine whether it qualifies as Mr. Yoder’s statutory employer
under the Workers’ Compensation Act (“WCA”)3, such that it is immune from
suit.
Pertinent to our review, under Section 302(b) of the WCA, 77 P.S. §
462, general contractors take on secondary liability for the payment of
workers’ compensation benefits to the injured employees of their
subcontractors. See Patton v. Worthington Associates, Inc., 89 A.3d 643,
645 (Pa. 2014).4 Thus, if the subcontractor-employers default, these general
____________________________________________
1 McCarthy purports to appeal from “the [j]udgment entered on July 22, 2021;
the [o]rder dated July 22, 2021, which denied and struck [McCarthy’s] Motion
to Vacate or Alternatively, Motion for Reconsideration; the ‘Correction to
Judgment Index’ dated July 26, 2021; and all prior adverse orders and
rulings.” McCarthy’s Notice of Appeal, 8/9/21, at 1. An appeal, however,
properly lies from judgment. See Johnston the Florist, Inc. v. TEDCO
Const. Corp., 657 A.2d 511, 514 (Pa. Super. 1995) (en banc) (stating that
“an appeal to this Court can only lie from judgments entered subsequent to
the trial court’s disposition of any post-verdict motions”) (citation omitted);
see also Bollard & Associates, Inc. v. H&R Industries, Inc., 161 A.3d
254, 256 (Pa. Super. 2017) (“An order denying reconsideration is
unreviewable on appeal.”) (citations omitted); Rohm and Haas Co. v. Lin,
992 A.2d 132, 149 (Pa. Super. 2010) (“Once an appeal is filed from a final
order, all prior interlocutory orders become reviewable.”) (citation omitted).
We have amended the caption accordingly.
2The other parties listed in the caption are no longer involved in the case.
See McCarthy’s Brief at 12.
3 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041; 2501-2710.
4 See 77 P.S. § 462 (“Any employer who permits the entry upon premises
occupied by him or under his control of a laborer or an assistant hired by an
(Footnote Continued Next Page)
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contractors must pay workers’ compensation benefits to the subcontractor-
employees. See id. As such, although they are not the actual employers of
the subcontractor-employees, general contractors are considered “statutory
employers” of the subcontractor-employees due to their treatment under the
WCA. See id.5 Our legislature’s “purpose in imposing this status upon general
contractors was remedial, as it wished to ensure payment of workers’
compensation benefits in the event of defaults by primarily liable
subcontractors.” Id. (citation and footnote omitted).
In exchange for assuming secondary liability for the payment of workers’
compensation benefits, statutory employers under Section 302(b) have
immunity in tort for work-related injuries sustained by subcontractor-
employees. See id.6 To establish this statutory-employer relationship so that
____________________________________________
employe or contractor, for the performance upon such premises of a part of
such employer’s regular business entrusted to that employe or contractor,
shall be liable for the payment of compensation to such laborer or assistant
unless such hiring employe or contractor, if primarily liable for the payment
of such compensation, has secured the payment thereof as provided for in this
act. Any employer or his insurer who shall become liable hereunder for such
compensation may recover the amount thereof paid and any necessary
expenses from another person if the latter is primarily liable therefor.”)
(“Section 302(b)”).
5Statutory-employer status is also imposed under Section 302(a), codified at
77 P.S. § 461, of the WCA. See Patton, 89 A.3d at 645 n.3. However,
Section 302(a) is not at issue in this matter.
6 See 77 P.S. § 52 (“An employer who permits the entry upon premises
occupied by him or under his control of a laborer or an assistant hired by an
employe or contractor, for the performance upon such premises of a part of
the employer’s regular business entrusted to such employe or contractor, shall
(Footnote Continued Next Page)
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J-A24010-22
the statutory employer is immune from a suit for negligence, our Supreme
Court has held that the following five elements must be present:
(1) An employer who is under contract with an owner or one in
the position of an owner[;] (2) Premises occupied by or under the
control of such employer[;] (3) A subcontract made by such
employer[;] (4) Part of the employer’s regular business
[e]ntrusted to such subcontractor[;] (5) An employee of such
subcontractor.
McDonald v. Levinson Steel Co., 153 A. 424, 426 (Pa. 1930). If these
elements are met, statutory employers enjoy 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).
For the following reasons, we determine that McCarthy qualifies as Mr.
Yoder’s statutory employer under the five-part McDonald test and is
therefore entitled to tort immunity. Accordingly, we are compelled to reverse
the judgment entered in favor of Mr. Yoder and remand for the entry of
judgment in favor of McCarthy.
Facts
The Norwood Public Library entered into a contract with McCarthy — a
carpentry company — to remove and replace the library’s roof, in addition to
____________________________________________
be liable to such laborer or assistant in the same manner and to the same
extent as to his own employe.”) (“Section 203”); see also 77 P.S. § 481(a)
(stating that the liability of an employer under the WCA shall be exclusive and
in place of any and all other liability) (“Section 303”).
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J-A24010-22
completing other projects at the library. See Trial Court Opinion (“TCO”),
2/11/22, at 1. McCarthy, in turn, subcontracted with roofing company, RRR
Contractors, Inc. (“RRR”), for part of the roofing work. Id. Mr. Yoder worked
for RRR. Id. On October 25, 2016, Mr. Yoder sustained critical injuries after
he fell through an uncovered hole in the roof of the library while working there
as a roofer. Id.
With respect to the events leading up to the unfortunate accident and
Mr. Yoder’s resulting injuries, the trial court recounted:
In accordance with [Occupational Safety and Health
Administration (“OSHA”)] safety procedures required of the
general or prime contractor on the jobsite, McCarthy … had the
nondelegable duty to provide a safe work site under [OSHA]
requirements. McCarthy … admitted that it was [its] responsibility
to patch the hole in the roof in “tongue and groove” style[,] as
this is an established specialty for carpenters, not roofers, and
RRR did not have the skill to have filled in the hole. Pursuant to
OSHA standards, any adequate hole cover needed to be capable
of sustaining twice the weight of any individual worker, equipment
and tools which would be imposed on it at any time or that any
cover be secured against accidental movement by a worker or the
elements moving it out of the way.
On the date of the accident, Mr. Yoder climbed a ladder to access
the roof and saw an OSHA[-]mandated red-flag perimeter set up
around the roof[,] signifying that the workplace was safe and
secure according to OSHA guidelines. Mr. Yoder began working
independently by ripping off the roof as other workers collected
the material. The foreman of the job, Dave Adams[ of RRR],
asked him to deliver foam board insulation to anyone working on
the roof that needed it. Mr. Yoder tucked the 4x8 foot rectangular
boards underneath his arm and began walking toward the people
who needed the board. As he was walking, Mr. Yoder fell through
an unmarked and uncovered hole in the roof.
Mr. Yoder was rushed to a Trauma II [C]enter (for the most severe
injuries that are not life threatening) by ambulance where he was
intravenously administered fentanyl and dilaudid for his agonizing
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J-A24010-22
and severe pain. On November 4, 2016, he was transferred to
inpatient rehabilitation at a [L]evel I Trauma Center where he
continued to receive potent analgesics intravenously during
treatment for his injuries.
From falling through an uncovered hole on the roof and hitting the
ground on his back twenty feet below him, Mr. Yoder suffered
severe and permanent disabling injuries including: a burst
fracture of his T12 vertebrae, a right transverse L4 vertebrae
process fracture, pubic fractures, a fractured sacrum, aggravation
of left hip degenerative changes, T7-T8 disc protrusion and
degenerative disc disease with aggravation, radial tears of the
annulus at T9-T10 and T10-T11, lumbar radiculopathy, left lower
extremity, chronic pain syndrome, spondylosis with myopathy,
sacroiliitis[,] and post-traumatic arthritis. Mr. Yoder will require
pain management for the rest of his life because of his
progressively debilitating injuries.
Id. at 1-3 (internal citations omitted).
Procedural History
On May 10, 2018, Mr. Yoder filed a complaint against McCarthy, along
with other parties no longer in the case, contending McCarthy was negligent.7
McCarthy filed an answer, affirmative defenses, and a cross-claim, in which it
raised that Mr. Yoder’s “claims are barred or limited by the exclusivity
provisions of the Pennsylvania Workers[’] Compensation Law.” Answer,
8/20/18, at 7 ¶ 4 (unpaginated).
Subsequently, on September 20, 2018, Mr. Yoder filed an amended
complaint. On January 28, 2020, McCarthy filed a motion for summary
judgment, claiming that it was Mr. Yoder’s statutory employer and immune
from suit. The next week, on February 6, 2020, McCarthy filed an answer
____________________________________________
7 The record in this case is voluminous. Therefore, in our recitation of this
case’s procedural history, we focus on the events most relevant to this appeal
and omit many other matters from our discussion.
-6-
J-A24010-22
with new matter and new matter cross-claims to Mr. Yoder’s amended
complaint, wherein it represented that it “asserts all of the defenses available
to it under the Pennsylvania Worker[s’] Compensation Act and avers that [Mr.
Yoder’s] remedies are limited exclusively thereto and the present action is
barred.” Answer, 2/6/20, at ¶ 73.
On February 25, 2020, Mr. Yoder filed a motion to strike McCarthy’s
answer and new matter as untimely, given that it was filed over 16 months
after the filing of Mr. Yoder’s amended complaint. Shortly thereafter, on
February 27, 2020, Mr. Yoder filed a response to McCarthy’s motion for
summary judgment, arguing, among other things, that genuine issues of
material fact exist.
On April 22, 2020, the trial court denied McCarthy’s motion for summary
judgment without providing any explanation for doing so.8 Later, on June 22,
2020, the trial court granted Mr. Yoder’s motion to strike McCarthy’s answer
to the amended complaint and new matter.9
Leading up to trial, the parties filed forty motions in limine. See N.T.,
6/7/21, at 21. Of note, in one such motion, McCarthy sought to preclude
evidence on liability based on the statutory-employer defense. In another
motion, Mr. Yoder sought to preclude McCarthy from raising the statutory-
employer defense at trial, or submitting any questions regarding the defense
____________________________________________
8 This motion was denied by the Honorable Daniel J. Anders.
9 This motion was granted by the Honorable Denis P. Cohen.
-7-
J-A24010-22
to the jury, because McCarthy had purportedly waived the defense by failing
to plead it.
The case proceeded to a jury trial.10 After the jury was selected, on
June 7, 2021, the trial court heard oral argument on some of the parties’
motions in limine. There, the trial court determined that, although the
statutory-employer defense is not waivable, McCarthy failed to “meet any of
the prongs of the test to establish that [it] was the statutory employer of Mr.
Yoder….” N.T., 6/7/21, at 155. Accordingly, the trial court subsequently
issued an order denying McCarthy’s motion in limine to preclude evidence on
liability based on the statutory-employer defense, stating that McCarthy fails
to meet the requirements to qualify as a statutory employer and therefore
cannot take advantage of the defense. In addition, the trial court granted Mr.
Yoder’s motion in limine to preclude the statutory-employer defense, directing
that McCarthy “shall be precluded from raising the statutory[-employer]
defense at trial in any manner whatsoever, including preclusion from
submitting any questions to the jury concerning the statutory[-]employer
defense, as … McCarthy … does not meet the requirements….” Order, 6/8/21,
at 1 (unpaginated; single page).
Following Mr. Yoder’s case-in-chief, McCarthy moved for a nonsuit based
on, inter alia, statutory-employer immunity, which the trial court denied. N.T.,
6/17/21, at 5-8. Later, after McCarthy had presented its case, McCarthy
____________________________________________
10 The Honorable Angelo Foglietta presided over the trial.
-8-
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similarly moved for a directed verdict based on statutory-employee immunity,
which the trial court again denied. N.T., 6/22/21 (A.M.), at 76-79. Thereafter,
the trial court likewise denied McCarthy’s request to charge the jury on the
statutory-employer defense. N.T., 6/22/21 (P.M.), at 14.
On June 22, 2021, the jury returned a unanimous verdict in favor of Mr.
Yoder in the amount of $5,000,000. N.T., 6/22/21 (P.M.), at 158-60. In
reaching this result, the jury determined that McCarthy was negligent,
McCarthy’s negligence was a factual cause of Mr. Yoder’s injuries, and that Mr.
Yoder was not comparatively negligent. Id. at 158.
Following trial, Mr. Yoder filed a motion for delay damages, which
McCarthy opposed. Additionally, McCarthy filed a post-trial motion
requesting, inter alia, judgment notwithstanding the verdict (“JNOV”) or a new
trial based on statutory-employer immunity. Mr. Yoder filed a response in
opposition.
The trial court denied McCarthy’s post-trial motion in its entirety on July
14, 2021. On July 16, 2021, McCarthy filed a motion to vacate the trial court’s
July 14, 2021 order denying its post-trial motion without briefing, or in the
alternative, for reconsideration of the trial court’s denial of statutory-employer
immunity. Mr. Yoder responded in opposition, urging the trial court to strike
McCarthy’s July 16, 2021 motion as McCarthy was purportedly using it as a
vehicle to improperly supplement the evidentiary record and engage in post-
trial briefing. On July 22, 2021, the trial court denied and struck McCarthy’s
July 16, 2021 motion. That same day, the trial court also issued an order
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J-A24010-22
granting Mr. Yoder delay damages in the amount of $590,650.69. Judgment
was entered in favor of Mr. Yoder in the amount of $5,590,650.69, on July 22,
2021.
McCarthy subsequently filed a timely notice of appeal. Both the trial
court and McCarthy complied with Pa.R.A.P. 1925(b). In its Rule 1925(a)
opinion, the trial court proffered the following explanation as to why it
ascertained as a matter of law that McCarthy was not entitled to statutory-
employer immunity:
McCarthy … did not and cannot succeed with the non-waivable
statutory employer defense because [it] fail[s] to meet the fifth
prong of the test established in McDonald…, which is utilized to
determine whether an organization is a statutory employer.
Before an employer will be considered a statutory employer for
purposes of the statutory[-]employer immunity defense under the
[WCA], the following five elements must be present: (1) an
employer who is under contract with an owner or one in the
position of an owner; (2) premises occupied by or under the
control of such employer; (3) a subcontract made by such
employer; (4) part of the employer’s regular business entrusted
to such subcontractor; and (5) [the plaintiff is] an employee of
such subcontractor.
Because an independent contractor can never be a statutory
employee, the elements of the McDonald test governing the
determination of whether an employer is a statutory employer
within the meaning of the [WCA] cannot be met where a
contractor is an independent contractor. Pennsylvania does not
have an established rule to determine whether a particular …
working relationship can be classified as employer-employee or
owner-independent contractor but instead promulgates certain
guidelines or factors. The factors which are considered, none
being dispositive, include the following:
(1) control of manner in which the work is done; (2)
responsibility for result only; (3) terms of agreement
between the parties; (4) nature of the work/occupation; (5)
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skill required for performance; (6) whether one is engaged
in a distinct occupation or business; (7) which party supplies
the tools/equipment; (8) whether payment is by time or by
the job; (9) whether work is part of the regular business of
employer; and, (10) the right to terminate employment.
Here, [Mr.] Yoder was properly found to be an independent
contractor of RRR…. Mr. Yoder testified that he understood his
agreement with RRR … to be that of an independent contractor.
He testified that he was doing “service work” for RRR…[,] which
entailed going to job sites himself, using his own tools, and
controlling his own time on the job. Remarkably, [McCarthy]
proffers no evidence to support [Mr.] Yoder’s status as an
employee of RRR…. In fact, throughout this litigation, McCarthy
… relied on Mr. Yoder’s IRS 1099 form to show the amount of
money that he was entitled to recover based upon his yearly
earnings. While tax forms are not dispositive of independent
contractor status, McCarthy[’s] use of Mr. Yoder’s independent
contractor tax forms to show how much money he earned is
inapposite and unconvincing of their own point that Mr. Yoder was
an employee of RRR … in light of the other circumstances in this
case and lack of evidence that Mr. Yoder was in fact an employee
of RRR…. Thus, this [c]ourt concluded that [Mr.] Yoder was an
independent contractor of RRR … and not an employee.
TCO at 4-6 (citations and footnotes omitted; emphasis in original). In
addition, for the same reasons, the trial court determined that it did not err
or abuse its discretion in denying McCarthy’s motion for a new trial based on
the preclusion of evidence, jury interrogatories, and jury instructions
regarding the statutory-employer defense. Id. at 6.
Issues
Presently, on appeal, McCarthy raises the following issues for our
review:
1. Whether [JNOV] is required because [McCarthy] is clearly
entitled to statutory[-]employer immunity?
2. Whether, in the alternative, this Court should order a new trial
at which statutory[-]employer immunity will be litigated?
- 11 -
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3. Whether a new trial is required because the trial court
erroneously precluded highly relevant video surveillance?
4. Whether a remand is required to recalculate delay damages
because the trial court erred in awarding such damages for the
period of Pennsylvania’s Covid-related judicial emergency?
McCarthy’s Brief at 9.11
First Issue
In McCarthy’s first issue, it asserts that JNOV is required because it is
clearly entitled to statutory-employer immunity. Id. at 20. We recognize:
There are two bases upon which a JNOV can be entered:
one, the movant is entitled to judgment as a matter of law,
and/or two, the evidence was such that no two reasonable
minds could disagree that the outcome should have been
rendered in favor of the movant. With the first, a court
reviews the record and concludes that even with all factual
inferences decided adverse to the movant the law
nonetheless requires a verdict in his favor, whereas with the
second, the court reviews the evidentiary record and
concludes that the evidence was such that a verdict for the
movant was beyond peradventure.
When reviewing a trial court’s denial of a motion for JNOV, we
must consider all of the evidence admitted to decide if there was
sufficient competent evidence to sustain the verdict…. Concerning
any questions of law, our scope of review is plenary. Concerning
questions of credibility and weight accorded the evidence at trial,
we will not substitute our judgment for that of the finder of fact….
A JNOV should be entered only in a clear case.
____________________________________________
11 In addition to the briefs of McCarthy and Mr. Yoder, the Pennsylvania
Association for Justice filed an amicus curiae brief on behalf of Mr. Yoder, and
the Pennsylvania Defense Institute and the Philadelphia Association of
Defense Counsel filed an amici curiae brief in support of McCarthy.
- 12 -
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Sheard v. J.J. DeLuca Co., Inc., 92 A.3d 68, 74 (Pa. Super. 2014) (cleaned
up).12 Further, “[a]s a general rule, absent any concession, the status of an
individual (e.g.[,] ‘general contractor,’ ‘independent contractor,’
‘subcontractor’) presents a question of law.” Id. at 75 (citation omitted).
Waiver
Before delving into our review of whether McCarthy qualifies as a
statutory employer under the McDonald test and is entitled to judgment as
a matter of law, we initially observe that McCarthy’s failure to timely plead the
statutory-employer defense in response to Mr. Yoder’s amended complaint
does not result in waiver. This Court has previously explained:
[T]he [WCA] deprives the common pleas courts of
jurisdiction of common law actions in tort for negligence
against employers and is not an affirmative defense which
may be waived if not timely pled. The lack of jurisdiction of
the subject matter may be raised at any time and may be
raised by the court sua sponte if necessary. To the extent
that prior appellate decisions have held to the contrary, they
are expressly overruled.
LeFlar v. Gulf Creek Indus. Park No. 2, … 515 A.2d 875, 879
([Pa.] 1986) (internal citation omitted). See also Shamis v.
Moon, 81 A.3d 962, 970 (Pa. Super. 2013).
“Subject matter jurisdiction relates to the competency of a court
to hear and decide the type of controversy presented. Jurisdiction
is a matter of substantive law.” Midwest Financial Acceptance
Corp. v. Lopez, 78 A.3d 614, 627 (Pa. Super. 2013) (citation
____________________________________________
12Notably, where it has been determined after trial that statutory-employer
immunity applies, this Court has entered JNOV in favor of the statutory
employer. See Sheard, 92 A.3d at 79 (concluding that the defendant was
entitled to JNOV by way of statutory-employer immunity); see also Patton,
89 A.3d at 650 (remanding the matter “for any further actions as may be
necessary to conclude it”).
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omitted). “By jurisdiction over the subject-matter is meant the
nature of the cause of action and of the relief sought; and this is
conferred by the sovereign authority which organizes the court,
and is to be sought for in the general nature of its powers, or in
authority specially conferred.” Mid–City Bank & Trust Co. v.
Myers, … 23 A.2d 420, 423 ([Pa.] 1942) (citing Cooper v.
Reynolds, 77 U.S. 308 … (1870)).
Our Supreme Court extended LeFlar to allow the initial assertion
of sovereign immunity, even in a petition for reargument following
the Supreme Court’s adjudication of an appeal to that Court. See
Tulewicz v. Southeastern Pennsylvania Transp. Authority,
… 592–94, 606 A.2d 427, 428–29 ([Pa.] 1992) (citing LeFlar,
supra; In re Upset Sale, … 560 A.2d 1388 ([Pa.] 1989)).
Nevertheless, “non-waivable” issues must still be raised within the
scope of the proceedings. See Bell v. Kater, 943 A.2d 293 (Pa.
Super. 2008), appeal denied, … 960 A.2d 454 ([Pa.] 2008)
(finding waiver of co-employee workers’ compensation immunity,
when it was first asserted eleven months following denial of
petition for Supreme Court review, because it was no longer
timely); City of Philadelphia Police Dept. v. Civil Service
Com’n of City of Philadelphia, 702 A.2d 878, 880 n.3 (Pa.
Cmwlth. 1997) (finding waiver of governmental immunity when
first raised after conclusion of proceedings, to frustrate collection
of final judgment).
Once the litigation and all appellate avenues are exhausted, the
court is no longer competent to address what was otherwise non-
waivable immunity. Bell, supra. As long as the proceedings
continue, however, even throughout the appellate process, the
relevant court may consider a claim of statutory employer
immunity in the first instance. Tulewicz, supra.
Sheard, 92 A.3d at 75-76.13
____________________________________________
13 See also Shamis, 81 A.3d at 970 (“[T]he [WCA] deprives the common
pleas courts of jurisdiction of common law actions in tort for negligence
against employers. Thus, it could be argued that — even on appeal — this
Court has the obligation to sua sponte raise the statutory[-]employer defense,
craft an argument in favor of or against its applicability, and resolve the issue
— all without briefing or argument by the parties and all without a focused,
structured presentation before the trial court.”) (cleaned up); see also
(Footnote Continued Next Page)
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To illustrate, in Sheard, the defendant pled statutory-employer
immunity under the WCA in its new matter. Id. at 71, 78. In the plaintiff’s
reply, the plaintiff generally denied that assertion, without any further
elaboration. Id. The case proceeded to a jury trial, where the jury rendered
a verdict in favor of the plaintiff. Id. Neither the plaintiff nor the defendant
raised the issue of statutory-employer immunity at trial. Id. at 78. Following
trial, the defendant filed a timely post-trial motion, in which it raised various
issues unrelated to statutory-employer immunity, and reserved the right to
supplement the post-trial motion upon receipt of the notes of testimony from
trial. Id. at 71. Thereafter, the defendant moved to amend its post-trial
motion to request JNOV based on statutory-employer immunity, which the
plaintiff opposed. Id. at 71-72. Upon review, the trial court denied the
defendant’s request for JNOV based on statutory-employer immunity,
determining that the defendant waived the issue by failing to have presented
evidence on it at trial. Id. at 72, 78.
On appeal, this Court ascertained that the defendant had not waived the
issue. Relying on LeFlar, supra, we reasoned that the defendant’s assertion
of statutory-employer immunity “implicated the trial court’s competency to
hear and decide this action. Owing to its foundational nature, plus the fact
that the proceedings were still open, we conclude [the defendant] did not
____________________________________________
Grimm v. Grimm, 149 A.3d 77, 86 (Pa. Super. 2016) (noting that “a party
cannot waive an issue relating to the trial court’s lack of subject matter
jurisdiction”).
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waive the issue of immunity.” Id. at 78 (citations omitted). In addition, we
noted that “both parties fully briefed the issue in post-trial motions and were
given the opportunity to conduct oral argument on the issue. Whether the
immunity issue was presented to a jury is irrelevant, because statutory[-
]employer immunity, interpretation of contracts, or vertical privity of the
individuals and entities, are all questions of law.” Id. (citation omitted). From
there, upon applying the relevant law and looking at the entire record
(including averments made in the plaintiff’s complaint, as well as a
subcontract attached as an exhibit to the defendant’s amended post-trial
motion), we discerned that the defendant was entitled to JNOV by way of
statutory-employer immunity, due to its status as a general contractor and
the plaintiff’s status as a subcontractor’s employee. Id. at 78-79.
In sum, Sheard demonstrates that statutory-employer immunity may
be raised at any time so long as the proceedings are still open. Thus, in the
case sub judice, McCarthy’s failure to timely plead the statutory-employer
defense in response to Mr. Yoder’s amended complaint is inapposite.
McCarthy has not waived the defense.14
Scope of Review
____________________________________________
14 Mr. Yoder argues that our Supreme Court should overturn LeFlar “to the
extent that LeFlar has been applied to make the statutory[-]employer
defense non-waivable even where the supposed statutory employer was not
called on to pay any worker[s’] compensation benefits.” Mr. Yoder’s Brief at
56. If and until that happens though, we are, of course, “duty-bound to
effectuate [our Supreme Court’s] decisional law.” Walnut Street
Associates, Inc. v. Brokerage Concepts, Inc., 20 A.3d 468, 480 (Pa.
2011) (citations omitted).
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Next, we note that our review of McCarthy’s first issue is not confined
to only the jury trial record, but instead includes the pre- and post-trial record,
too. See Sheard, 92 A.3d at 78, 78 n.3 (considering averments made in the
plaintiff’s complaint, as well as a subcontract attached as an exhibit to the
defendant’s amended post-trial motion, in determining that JNOV should be
entered in favor of the defendant on the basis of statutory-employer
immunity). We further agree with McCarthy that, if our review was confined
to only the jury trial record, it “would essentially preclude appellate review of
[McCarthy’s] entire claim because the pre[-]trial record would be irrelevant
and the [jury] trial record could not, by court order, contain more detailed
evidence regarding the defense” due to the trial court’s order granting Mr.
Yoder’s motion in limine. McCarthy’s Reply Brief at 13; see also id. at 16
(noting that McCarthy “had no obligation or ability to formally move [relevant]
documents into the trial record after the [c]ourt strictly prohibited the
statutory[-]employer defense and any related jury fact-finding”).15 Thus, we
look at the entire record in assessing McCarthy’s first issue.
____________________________________________
15 We also agree with McCarthy’s distinguishment of Xtreme Caged Combat
v. Zarro, 247 A.3d 42 (Pa. Super. 2021), and Whitaker v. Frankford Hosp.
of City of Philadelphia, 984 A.2d 512 (Pa. Super. 2009), which Mr. Yoder
relies upon to support his position that only the jury trial record should be
considered. McCarthy explains:
[Mr. Yoder] maintains that, “[o]nce this case proceeded to trial
and [McCarthy] presented a defense, the trial court’s refusal to
grant [it] summary judgment and a compulsory nonsuit became
moot.” [Mr. Yoder’s Brief at 25-26 (citing Xtreme Caged
Combat, supra, and Whitaker, supra)]. Based on this
(Footnote Continued Next Page)
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McDonald Test
With those preliminary matters out of the way, we now proceed to
assessing whether McCarthy satisfies the McDonald test. Because the trial
____________________________________________
principle, [Mr. Yoder] argues that “the record that McCarthy
created at trial lacks the evidence on which McCarthy bases its
entitlement to [JNOV] in reliance on the statutory[-]employer
defense.” Id.[ at] 26-27.
As Whitaker and Xtreme Caged Combat make clear, where
summary judgment is denied and the same claim then proceeds
to trial, post-trial and appellate review must focus on whether
[JNOV] is required, not on whether summary judgment or nonsuit
were improperly denied. Whitaker, 984 A.2d at 517 (explaining
that [the] defendant sought but was denied summary judgment
on whether [the] plaintiff “failed to establish that their conduct
caused Ms. Monaghan’s injuries” and that claim proceeded to trial,
with the result that [the] defendant was found liable); Xtreme
Caged Combat, 247 A.3d at 50-51 & n.7 (explaining that
summary judgment is moot because “the factual record at trial
supersedes the denial of summary judgment”). In such cases,
where the same claim on which summary judgment was denied
then proceeds to trial, it makes sense that the subsequent trial
record supplants the pre[-]trial record.
This principle has no application to this case, however, because
the trial court denied summary judgment on the statutory[-
]employer defense — which should have meant only that the
defense must proceed to trial — but then inexplicably prohibited
[McCarthy] “from raising the statutory[-employer] defense at trial
in any manner whatsoever, including preclusion from
submitting any questions to the jury concerning the statutory[-
]employer defense.” The court also specifically denied defense
counsel’s alternative request for the presentation of evidence and
jury fact-finding on the McDonald test….
McCarthy’s Reply Brief at 9-11 (some citations omitted; emphasis in original).
Because the trial court did not permit McCarthy to raise the statutory-
employer defense at trial, we are persuaded by McCarthy’s argument that this
Court’s rulings in Whitaker and Xtreme Caged Combat do not apply to this
matter and do not require us to consider only the jury trial record.
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court focused upon McCarthy’s failure to satisfy the fifth McDonald element
— i.e., that Mr. Yoder was an employee of RRR — in its Rule 1925(a) opinion,
we begin our assessment by evaluating that element.
Fifth McDonald Element
With respect to the fifth McDonald element, McCarthy argues that Mr.
Yoder was not an independent contractor of subcontractor, RRR, but instead
an employee of RRR. See McDonald, 153 A. at 426 (setting forth that the
injured worker must be the employee of a subcontractor). Significantly, to
support that Mr. Yoder was an employee of RRR, McCarthy points out that Mr.
Yoder sought and obtained workers’ compensation benefits from RRR, with his
claim resolved in a “Compromise and Release Agreement by Stipulation
Pursuant to Section 449 of the [WCA,]” dated October 10, 2017. McCarthy’s
Brief at 24-25 (citation omitted); see also RRR’s Answer, New Matter, and
New Matter Cross-Claim to McCarthy’s Joinder Complaint, 1/13/20, at Exhibit
B (“Compromise and Release Agreement”).16 McCarthy notes that the
____________________________________________
16 Section 449 of the WCA, codified at 77 P.S. § 1000.5, contemplates, inter
alia, that the employer or insurer submit the proposed compromise and
release by stipulation to the workers’ compensation judge for approval. Here,
in the Compromise and Release Agreement, the workers’ compensation judge
is asked to approve the settlement. See Compromise and Release Agreement
at 3 (misnumbered pages). Further, in RRR’s answer, new matter and new
matter cross-claim to McCarthy’s joinder complaint, RRR alleged that Mr.
Yoder “executed, filed with [the Pennsylvania Department of Labor and
Industry, Bureau of Workers’ Compensation (‘Bureau’)], and received the
Bureau’s approval of[] a Compromise and Release Agreement … wherein … he
agreed to accept the sum of $262,500.00….” RRR’s Answer, New Matter, and
New Matter Cross-Claim to McCarthy’s Joinder Complaint at 6 ¶ 6 (citing,
(Footnote Continued Next Page)
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Compromise and Release Agreement “identified [Mr. Yoder] as the ‘employee’
and RRR … as the ‘employer,’ and fully resolved [Mr. Yoder’s] claim for
$262,500.” McCarthy’s Brief at 25 (citation omitted). McCarthy also advances
that, as part of the Compromise and Release Agreement, Mr. Yoder formally
resigned his employment with RRR. Id.17 In addition, we observe that Mr.
Yoder was represented by counsel when entering into the Compromise and
Release Agreement and submitting his resignation.
____________________________________________
among other things, the Compromise and Release Agreement). In Mr. Yoder’s
reply to this allegation, he responded, verbatim: “Denied as the exhibits as
writings speak for themselves. By way of further response, the cited
documents have no bearing on whether or not RRR waived the [i]mmunity
[d]efense.” Mr. Yoder’s Reply to RRR’s New Matter to McCarthy’s Joinder
Complaint, 1/22/20, at 3 ¶¶ 5-8. Thus, Mr. Yoder did not specifically dispute
that the Compromise and Release Agreement received approval.
17 Specifically, the resignation signed by Mr. Yoder stated:
I, JASON YODER, … do hereby tender my resignation as an
employee of RRR…, and any and all affiliates and subsidiaries
thereof, effective immediately. I hereby acknowledge that I am
represented by counsel, and that this resignation is voluntary,
tendered of my own free will, and not for reasons of a necessitous
and compelling nature. By this resignation, I hereby forever waive
and relinquish any and all rights to assert any claim or demand
for re-employment, seniority, unemployment compensation,
benefits, tenure, and all rights to assert any claim to any benefits
of employment with RRR…, and any and all affiliates and
subsidiaries thereof, with the sole exception of any benefits which
have already vested as of the date of this resignation, such as
pension or retirement benefits.
See RRR Contractor’s Answer, New Matter, and New Matter Cross-Claim to
McCarthy’s Joinder Complaint at Exhibit C (capitalization in original; emphasis
added).
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McCarthy contends that Mr. Yoder’s “demand for and receipt of workers’
compensation benefits conclusively established that he was an employee —
not an independent contractor — of RRR … because ‘an independent contractor
is not entitled to [such] benefits because of the absence of a master/servant
relationship.’” Id. at 25-26 (quoting Universal Am-Can, Ltd. v. W.C.A.B.
(Minteer), 762 A.2d 328, 330 (Pa. 2000); original brackets omitted; brackets
added). McCarthy says that, because Mr. Yoder demanded and received
benefits as an employee, he is judicially estopped from now claiming that he
was not an employee of RRR. Id. at 26.
In response, Mr. Yoder does not deny that he received workers’
compensation benefits from RRR, nor does he argue that judicial estoppel
would not apply if we were to consider the documents.18 Instead, he argues
that McCarthy “failed to make the [Compromise and Release A]greement and
resignation part of the jury trial record of this case[,]” and did not preserve
an argument that taking judicial notice of those documents would be proper.
Mr. Yoder’s Brief at 44 (emphasis omitted); see also id. at 45.
We reject this argument by Mr. Yoder. For the reasons set forth supra,
we have already determined that our scope of review is not limited to the jury
____________________________________________
18 We note that, at Mr. Yoder’s deposition, he acknowledged that he made a
claim for workers’ compensation for this accident, that the claim was resolved
and settled, that he received a final, lump-sum payment, and that he was
living off of the proceeds from that settlement. See McCarthy’s Motion for
Summary Judgment, 1/28/20, at Exhibit B (Dep. of Mr. Yoder) at 188-93,
199. Further, when arguing the motions in limine at trial, McCarthy’s counsel
pointed out that Mr. Yoder had received workers’ compensation benefits from
RRR, and Mr. Yoder did not dispute that claim. N.T., 6/7/21, at 141-42.
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trial record and, consequently, we have no need to take judicial notice of the
Compromise and Release Agreement and resignation, as they are part of the
record.
Further, upon considering these documents, we agree with McCarthy
that judicial estoppel applies. Our Supreme Court has explained that:
“As a general rule, a party to an action is estopped from assuming
a position inconsistent with his or her assertion in a previous
action, if his or her contention was successfully maintained.”
Trowbridge v. Scranton Artificial Limb Company, … 747 A.2d
862, 864 ([Pa.] 2000) [((opinion announcing the judgment of the
Court)] (citing Associated Hospital Service of Philadelphia v.
Pustilnik, … 439 A.2d 1149, 1151 ([Pa.] 1981)).[19]
In Trowbridge, we reviewed the question of whether judicial
estoppel barred a claim made by an individual pursuant to the
Pennsylvania Human Relations Act (PHRA) that her job
termination resulted from illegal discrimination under the PHRA,
when she was receiving Social Security disability benefits based
on her sworn statement that she was unable to work because of
her disabling condition. We reiterated that the purpose of judicial
estoppel is “to uphold the integrity of the courts by ‘preventing
parties from abusing the judicial process by changing positions as
the moment requires.’” Trowbridge[, 747 A.2d] at 865…. In
Tops Apparel Mfg. Co. v. Rothman, 244 A.2d 436 ([Pa.] 1968),
our Court stated that “[a]dmissions … contained in pleadings,
stipulations, and the like are usually termed ‘judicial admissions’
and as such cannot be later contradicted by the party who made
____________________________________________
19 Our High Court acknowledged, however, that “[w]hether successful
maintenance of the prior inconsistent position of litigant is strictly necessary
to implicate judicial estoppel in every case, or whether success should instead
be treated as a factor favoring the doctrine’s application, is the subject of
some uncertainty.” In re Adoption of S.A.J., 838 A.2d 616, 620 n.3 (Pa.
2003) (citations omitted). The Court explained that, “[w]hile some prior
decisions of this Court appear to indicate that it is always a requirement,
others seem to suggest that a broader application of the doctrine may be
appropriate.” Id. (citations omitted). Because we determine that Mr. Yoder
successfully maintained his position, see infra, we need not confront whether
successful maintenance is merely a factor or a strict requirement.
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them.” Id. at 438 (internal footnote omitted). In Tops, we noted
our longstanding reliance on this principle and stated that “[w]hen
a man alleges a fact in a court of justice, for his advantage, he
shall not be allowed to contradict it afterwards. It is against good
morals to permit such double dealing in the administration of
justice.” Id. at 438, n.8…. “Federal courts have long applied this
principle of estoppel where litigants play ‘fast and loose’ with the
courts by switching legal positions to suit their own ends.”
Trowbridge[, 747 A.2d] at 865….
In re Adoption of S.A.J., 838 A.2d at 620-21 (some internal citations
omitted). See also Black v. Labor Ready, Inc., 995 A.2d 875 (Pa. Super.
2010) (determining that a company was judicially estopped from claiming that
it was the plaintiff’s employer, making it immune from civil suit, where the
company had previously successfully maintained that it was not the plaintiff’s
employer in earlier workers’ compensation proceedings).
Here, Mr. Yoder represented in the Compromise and Release Agreement
that he was an employee of RRR, not an independent contractor. He
successfully maintained that position, as holding himself out as an employee
of RRR enabled him to receive workers’ compensation benefits. See
Universal Am-Can, Ltd., 762 A.2d at 330 (“An independent contractor is not
entitled to benefits because of the absence of a master/servant relationship.
[E]mployee or independent contractor status is a crucial threshold
determination that must be made before granting workers’ compensation
benefits. It is a claimant’s burden to establish an employer/employee
relationship in order to receive benefits.”) (citations omitted). Now, in this
action, he claims that he was not an employee of RRR but, instead, an
- 23 -
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independent contractor who RRR hired to work on the project. See Mr. Yoder’s
Brief at 32.
We do not see how, at the time of the accident, Mr. Yoder could be both
an employee of RRR and an independent contractor of RRR. In addition, Mr.
Yoder does not make any attempt in his brief to explain, reconcile, or
otherwise justify these seemingly inconsistent positions, despite having the
opportunity to do so. As such, we conclude that Mr. Yoder is judicially
estopped from now claiming that he was an independent contractor of RRR.
Instead, given his receipt of workers’ compensation benefits, we determine
that he was an employee of RRR at the time of the accident.20 McCarthy,
therefore, has satisfied the fifth McDonald element.21
____________________________________________
20 Based on our review of the record, it appears that McCarthy did not
specifically raise the theory of judicial estoppel until its July 16, 2021 motion,
which the trial court later struck. However, because statutory-employer
immunity is non-waivable and may be raised sua sponte, see supra,
McCarthy’s failure to raise this theory earlier in the litigation does not preclude
us from considering it now.
21Mr. Yoder and the trial court both emphasize that McCarthy did not proffer
evidence at trial to support its position that Mr. Yoder was an employee of
RRR, and instead relied heavily upon Mr. Yoder’s IRS 1099 tax forms, which
tend to support that he was an independent contractor of RRR (and not RRR’s
employee). See Mr. Yoder’s Brief at 36, 37 (observing that McCarthy “placed
before the jury again and again [Mr.] Yoder’s tax returns, which confirmed
that RRR was paying [Mr.] Yoder as an independent contractor rather than as
an employee[,]” and that McCarthy “did not attempt to prove that [Mr.] Yoder
was an employee of RRR at the time of the accident only to have the trial court
somehow prohibit McCarthy from doing so”); TCO at 5-6 (similarly observing
that McCarthy “relied on Mr. Yoder’s IRS 1099 form to show the amount of
money that he was entitled to recover based upon his yearly earnings[,]” and
(Footnote Continued Next Page)
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First McDonald Element
Although the trial court did not discuss the other McDonald elements
in its Rule 1925(a) opinion, we examine them to see if McCarthy likewise
satisfies them.22 The first McDonald element requires “[a]n employer who is
under contract with an owner or one in the position of an owner.” McDonald,
153 A. at 426. “This part of the McDonald test consists of three distinct sub-
elements: (1) an employer; (2) a contract, and; (3) an owner or one in the
position of an owner.” Peck v. Delaware County Board of Prison
____________________________________________
that McCarthy “proffer[ed] no evidence to support [Mr.] Yoder’s status as an
employee”). We deem these points uncompelling.
Initially, given the trial court’s ruling that McCarthy was precluded from
raising the statutory-employer defense at trial in any manner whatsoever, it
would make sense that McCarthy would not proceed to proffer evidence at
trial that Mr. Yoder was RRR’s employee. Notwithstanding, and counter to the
arguments made by the trial court and Mr. Yoder, the record shows that
McCarthy did press Mr. Yoder at trial as to whether he was an employee of
RRR. See N.T., 6/14/21 (A.M.), at 84-85 (McCarthy’s counsel asking Mr.
Yoder if it was true that, at the time of the accident, he was an employee of
RRR); N.T., 6/10/21 (P.M.), at 145-46 (asking Mr. Yoder if he would have
continued his employment with RRR if not for the accident, to which Mr. Yoder
indicated in the affirmative); id. at 155 (asking Mr. Yoder if he received an
employee manual from RRR). Further, with respect to the tax forms,
McCarthy persuasively argues that it “used the forms to cast doubt on [Mr.
Yoder’s] claimed earnings and the projections of his economic expert, not to
establish that he was an independent contractor.” McCarthy’s Reply Brief at
21 (citations omitted). Finally, and arguably most importantly, we reiterate
that our scope of review on this issue encompasses the whole record, so we
are not confined to the evidence McCarthy introduced at trial anyway.
22Recall that, in prior rulings, the trial court had previously stated that
McCarthy did not satisfy any of the McDonald elements.
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Inspectors, 814 A.2d 185, 190 (Pa. 2002) (opinion announcing the judgment
of the Court).
Here, the record shows that McCarthy was under contract with the
Norwood Borough, the owner of the library where the accident occurred. See
McCarthy’s Exhibit 30 (Contract between McCarthy and Norwood Borough)
(hereinafter, “Contract”). The contract identifies McCarthy as the ‘Contractor,’
and the Norwood Borough as the ‘Owner.’ Id. at 1 (unpaginated). In the
contract, McCarthy agrees to remove and replace the library’s existing roof,
and perform various other tasks, for a grand total of $117,590.00. Id. at 3
(unpaginated).23 Thus, it appears that McCarthy has met the first McDonald
element, as it has a contract with the owner.
Mr. Yoder, however, argues that McCarthy has not fulfilled this element.
He claims:
To qualify as a statutory employer under the first prong of the
McDonald test, McCarthy must establish that it was in the role of
a general contractor on the Norwood Public Library construction
project. McCarthy is unable to do so on this record. Norwood
Borough, the owner of the property, entered into a contract with
McCarthy only for the carpentry and roofing work on the library
building. Separately, Norwood Borough entered into electrical and
HVAC contracts for this project with other contractors. Thus, it
was Norwood Borough, rather than McCarthy, that functioned in
the role of general contractor for the library renovation project.
Mr. Yoder’s Brief at 46-47 (citation to reproduced record omitted).
____________________________________________
23In addition, the subcontract between McCarthy and RRR similarly states that
“Contractor [(McCarthy)] and Norwood Borough (hereinafter ‘Owner’) have
entered into a contract … for the construction of Norwood Library Renovation
& Roof Replacement….” McCarthy’s Motion for Summary Judgment, 1/28/20,
at Exhibit D (“Subcontract”) at 1.
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Assuming arguendo that McCarthy was only responsible for the
carpentry and roofing work on the library as Mr. Yoder contends, Mr. Yoder
offers no authority to support his claim that McCarthy must be the general
contractor of the library renovation project to qualify as a statutory employer
under the first element of the McDonald test. Moreover, our own research
reveals that Mr. Yoder’s assertion is inaccurate under the relevant law. This
Court has previously explained:
The classic statutory[-]employer situation is in the construction
industry, where a property owner hires the general contractor,
who hires a subcontractor to do specialized work on the jobsite,
and an employee of the subcontractor is injured in the course of
his employment. In those situations, the general contractor who
meets the five-part McDonald test qualifies as the statutory
employer of the subcontractor’s employee, and is immune from
suit by that employee. Moreover, under the [WCA], a
contractor need not be the general contractor on a
construction project to qualify as a statutory employer. A
contractor who is not the general contractor may still
qualify for statutory employer status so long as the
contractor can establish the elements of the McDonald test.
Braun v. Target Corp., 983 A.2d 752, 764-65 (Pa. Super. 2009) (cleaned
up; emphasis added). See also McCarthy v. Dan Lepore & Sons Co., Inc.,
724 A.2d 938, 941 (Pa. Super. 1998) (“Under the [WCA], a contractor need
not be the general contractor on a construction project to qualify as a statutory
employer. This Court has stated that a general contractor’s subcontractor on
a construction project may also qualify as a ‘statutory employer’ with respect
to its own subcontractor’s employees.”) (citations and footnote omitted);
Grant v. Riverside Corp., 528 A.2d 962, 966 (Pa. Super. 1987) (“[I]t is not
mandatory that a contractor be the general contractor on a construction
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project to qualify as a statutory employer. A subcontractor under contract
with the owner or with a contractor in the position of the owner, in sole or
common control of the job premises, that subcontracts a part of its regular
business to a second subcontractor, could qualify as a statutory employer of
the second subcontractor’s employees.”) (citation omitted).
Thus, McCarthy does not need to have been the general contractor on
the project, so long as the other elements of the McDonald test are
established. Because McCarthy has a contract with the owner, we deem the
first McDonald element satisfied.
Second McDonald Element
The second McDonald element requires that McCarthy occupy or
control the premises. See McDonald, 153 A. at 426 (calling for “[p]remises
occupied by or under the control of such employer”). We have explained that,
“[u]nder the second prong of McDonald, an employer’s occupancy or control
must be actual, but need not be exclusive. An employer satisfies the second
prong by proving either occupancy or control and it is not required to prove
both.” Braun, 983 A.2d at 764 (internal citations and brackets omitted;
emphasis in original).
Though only occupancy or control is required, we conclude that
McCarthy has established both. Initially, with respect to occupancy, this Court
has agreed that “an employer effectively occupied the premises when its
supervisor was present at the site on a daily basis and when its employees
were regularly present on the premises at the same time as the
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subcontractor’s employees.” Kelly v. Thackray Crane Rental, Inc., 874
A.2d 649, 657 (Pa. Super. 2005) (citing Al–Ameen v. Atlantic Roofing
Corp., 151 F.Supp.2d 604, 607 (E.D. Pa. 2001)). Accord Braun, 983 A.2d
at 765 (finding occupancy requirement satisfied where the company’s project
manager was on site every day and easy to locate, and where the company
kept a trailer on site).
Further, regarding control, this Court has stated that the contractor
need not have control over the entire job premises, but only the part of the
job premises where the injury occurred. See McCarthy, 724 A.2d at 942.
We have also conveyed that “the fact that the subcontractor used its own
supervisors to directly oversee the subcontractor’s employees does not mean
the general contractor did not retain actual control over the project and
premises in general.” Emery v. Leavesly McCollum, 725 A.2d 807, 811 (Pa.
Super. 1999) (en banc) (citation omitted). To exemplify, this Court has found
the control requirement satisfied where the contractor had an on-site project
superintendent who coordinated the work of various subcontractors and was
responsible for overseeing the entire project, including the overall safety of
the job site and that OSHA regulations were followed. Emery, 725 A.2d at
811, 811 n.3. See also Pastore v. Anjo Construction Co., 578 A.2d 21,
26 (Pa. Super. 1990) (determining that the second McDonald element was
satisfied where the contractor had the “responsibility and authority to direct,
manage and/or operate the construction project where the injury occurred”
and where the contractor’s foreman helped to address problems arising out of
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the subcontractor’s work); Uhzo v. Top Gun Construction, Inc., 2021 WL
1292781, at *5 (Pa. Super. filed Apr. 7, 2021) (deeming the second
McDonald element satisfied where the contractor had a trailer on the
premises and a project manager/superintendent who did scheduling and
oversaw the entire worksite and subcontractors).24
Here, Mr. Yoder specifically alleged in his amended complaint that:
[McCarthy], individually and by its agents, servants, workmen
and/or employees designed, maintained, possessed, developed,
managed, supervised, and/or controlled the construction including
of the roof at Norwood Library….
Amended Complaint, 9/20/18, at ¶ 3. See also id. at ¶ 18 (stating that
McCarthy “undertook the supervision and control of the construction which
was being undertaken at the [p]roperty, and in connection therewith,
established plans, recommendations, designs and specifications for the
performance of said construction work at the [p]roperty”); id. at ¶ 19
(averring that McCarthy “was on site and responsible to see and oversaw that
the work performed on the [p]roperty was done according to the construction
documents and pursuant to applicable industry practices and standards”).
In addition, the trial court recognized that McCarthy was responsible for
the safety of the job site. TCO at 1. It conveyed that, “[i]n accordance with
OSHA safety procedures required of the general or prime contractor on the
job site, McCarthy … had the nondelegable duty to provide a safe work site
____________________________________________
24 See Pa.R.A.P. 126(b) (stating that an unpublished non-precedential
memorandum decision of the Superior Court filed after May 1, 2019, may be
cited for its persuasive value).
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under [OSHA] requirements. McCarthy … admitted that it was their
responsibility to patch the hole in the roof in ‘tongue and groove’ style as this
is an established specialty for carpenters, not roofers, and RRR did not have
the skill to have filled in the hole.” Id. (citations omitted).25
Further, at trial, Michael McCarthy — an employee of McCarthy —
testified that he was on the roof at the time Mr. Yoder fell. N.T., 6/8/21, at
34-35. Michael McCarthy stated that McCarthy did work on the roof and
confirmed that part of its job was to use tongue-and-groove to close any hole
on the roof. Id. at 49, 53-54. He explained that, on the day of the incident,
he and others from McCarthy “were patching holes throughout the roof, rotted
wood, anything that was damaged from … age or water issues. And we were
also patching three holes from the HVAC units.” Id. at 94. In addition,
Michael McCarthy noted that McCarthy was also doing work inside of the
library, both upstairs and downstairs, including carpentry, painting, and ceiling
work. Id. at 48-49. As a general contractor, Michael McCarthy agreed that
McCarthy oversaw its subcontractors and scheduled them, and that — with
respect to the library project — it was McCarthy’s job to communicate
effectively with the subcontractor roofers in order to complete the project. Id.
at 37-39, 41-42, 50.
Dave Adams of RRR — the foreman on the day of the incident — also
testified that McCarthy was the general contractor of the library project, and
____________________________________________
25Tongue-and-grove refers to “one by six pieces of wood, lumber, and they
snap into each other and you nail them down.” N.T., 6/8/21, at 49.
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that carpenters employed by McCarthy were also working on the roof. N.T.,
6/17/21 (A.M.), at 32-33, 56, 60-61. Mr. Adams noted that it was McCarthy’s
responsibility to fill in any holes, and that he told McCarthy’s carpenters to fill
and cover the hole through which Mr. Yoder fell. Id. at 32-33, 47.
McCarthy also points out that, in his opening statement at trial, Mr.
Yoder’s counsel stated the following:
This is a case about job site safety. It’s a lawsuit against
McCarthy…. McCarthy … entered into a contract. We all know
what a contract is, a promise, with a governmental agency, the
Borough of Norwood, it was a contract that they entered into in
which they promised, they agreed pursuant to that contract, they
would be responsible for safety, the safety of the workers in doing
the work that they were paid to do. And most importantly, they
were responsible for supervising to assure that the work was
done not only safely[,] but in compliance with the safety
standards.
N.T., 6/7/21 (Opening Statements), at 3 (emphasis added); see also id. at
8 (Mr. Yoder’s counsel stating that “[Mr. Yoder] knows that no worker,
whether the general contractor or prime contractor such as McCarthy, is to
permit any workers to be working on a site in which there are any holes.
Because OSHA says you can’t do that, it has to be filled immediately. And
they were supervising the site”) (emphasis added); see also id. at 19-20
(Mr. Yoder’s counsel conveying: “[T]he evidence is going to show[,] and you’re
going to hear the witnesses explain to you[,] that when you have multi-
employers on site, such as McCarthy … and other contractors, they had to be
responsible through the coordination of work so when one contractor finishes,
the general contractor is right there because they know the schedule of work
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to make sure the area is safe”); id. at 23 (McCarthy’s counsel explaining:
“You’re going to hear that McCarthy knew that when the curb was taken down,
there would be a hole.[26] And McCarthy knew, and this is important, prior to
Mr. Yoder’s falling, McCarthy knew that hole was on that roof. They knew it.
They failed to comply with their contract, they failed to comply with OSHA,
and they failed miserably with respect to their duties and responsibilities. And
we’re going to prove that to you”); N.T., 6/22/21 (P.M.), at 33 (Mr. Yoder’s
closing argument: “Michael McCarthy explained to you that McCarthy … acts
as the general contractor. Their superintendent was Mr. Scott Novak.
[Michael McCarthy] explained to you that part of what a general contractor
does is they coordinate the work, they know what the plans are, they know
what the work schedule is going to be and they know what their job
responsibilities are. They knew that curb was coming off and they knew that
only … McCarthy had the carpenters and only McCarthy were the ones that
were contracted and paid to fill that hole”); id. at 35-36 (“McCarthy was paid
… money to do construction work, including … replacing the roof. Remember
the contract said that you are being paid not only to put on a new roof, you’re
being paid to supervise the work that we’re paying you to do, and you’re
____________________________________________
26 For context, Michael McCarthy conveyed that, prior to the library
construction starting, there were air-conditioning units on the roof that had to
be removed. N.T., 6/8/21, at 51. He agreed that, once the air-conditioning
units were removed, they would leave curbing. Id. He also confirmed that,
when that curbing would be removed, there would be holes in the roof. Id.
See also N.T., 6/10/21 (P.M.), at 58 (Mr. Yoder’s explaining that “[a] curb
could either be wood or metal. AC [u]nits will sit on top of it”).
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being paid to protect the workers doing the work that we’re paying you to
do.”) (emphasis added).
Based on the foregoing, we conclude that McCarthy has satisfied the
second McDonald element. Not only did McCarthy occupy the site in that it
was doing work both on the roof and inside of the library, it also communicated
with the subcontractors to ensure the library project’s completion and had
responsibility for the safety of the job site. Further, Mr. Yoder’s counsel
emphasized to the jury multiple times that McCarthy acted as the general
contractor on the project, coordinating, scheduling, and supervising the work
to be done.27 As such, McCarthy meets the second McDonald element, as it
both occupied and controlled the job site.
Third McDonald Element
The third McDonald element calls for a subcontract made by McCarthy.
McDonald, 153 A. at 426 (demanding “[a] subcontract made by such
____________________________________________
27 Mr. Yoder argues that McCarthy does not meet the second McDonald
element because Michael McCarthy testified that, “if he was on the roof and
had seen the hole through which [Mr.] Yoder fell, he would have immediately
covered it over so that it would no longer present a falling hazard. This is
direct testimony that McCarthy was not in control or possession of the roofing
work site area.” Mr. Yoder’s Brief at 48-49 (citation omitted).
We disagree with Mr. Yoder’s analysis. Assuming arguendo that Michael
McCarthy did not see and immediately cover the hole, this fact does not
demonstrate that McCarthy was not in control or possession of the roofing
work site area under the applicable case law. See supra. Further, if we were
to accept Mr. Yoder’s argument, a contractor would never be in control or
possession of a job site if an undetected hazard was also present, which would
make satisfying the second McDonald element extremely difficult.
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employer”). Mr. Yoder does not dispute that McCarthy meets this
requirement. Indeed, the record shows that McCarthy entered into a contract
with RRR to, inter alia, “[r]emove and dispose of existing roofing systems
down to existing wood roof deck.” See Subcontract at ‘Exhibit B: Scope of
Work.’ Additionally, in its contract with Norwood Borough, McCarthy identified
RRR as its subcontractor. See Contract at 6 (Subcontractor Declaration Form)
(unpaginated). Thus, we deem the third McDonald element satisfied.
Fourth McDonald Element
The fourth McDonald element demands that McCarthy entrusted a part
of its regular business to RRR. See McDonald, 153 A. at 426 (mandating
“[p]art of the employer’s regular business [e]ntrusted to such subcontractor”).
This Court has determined that the fourth McDonald element “is met when
the subcontracted work is an obligation assumed by a principal contractor
under its contract with the owner, or one in the position of an owner.” Braun,
983 A.2d at 764 (citation omitted); see also Shamis, 81 A.3d at 970-71
(“[S]ince we cannot examine the underlying contract between the owner and
Geppert Brothers, we cannot determine the fourth McDonald element:
whether, at the time Mr. Shamis was hurt, he was engaging in work that was
[p]art of [Geppert Brothers’] regular business [e]ntrusted to [M.L. Jones].”)
(internal quotation marks and citations omitted); McCarthy, 724 A.2d at 943
(“[The fourth McDonald] requirement is met when the subcontracted work is
an obligation assumed by a principal contractor under its contract with the
owner, or one in the position of an owner. Here, TUP employed Henco as the
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general contractor for a new clinical research building. Henco contracted with
Lepore to perform the exterior masonry work on the building. Lepore then
subcontracted with Hamada to waterproof the exterior masonry work that
Lepore had completed pursuant to its contract with Henco. Thus, the requisite
vertical relationship between Henco, Lepore, and Hamada is established.”)
(citations omitted); O’Boyle v. J.C.A. Corp., 538 A.2d 915, 917 (Pa. Super.
1988) (“[T]he only element in dispute is whether the structural concrete work
was a part of Driscoll’s regular business which it entrusted to Hoffer, the
subcontractor who was O’Boyle’s employer. This element, as a general rule,
is satisfied wherever the subcontracted work is an obligation assumed by a
principal contractor under his contract with the owner. Thus, Driscoll was a
statutory employer if it had contracted with the owner to do work which
included the structural concrete work and thereafter subcontracted that work
to the subcontractor who was O’Boyle’s employer.”) (cleaned up).
Here, Norwood Borough contracted with McCarthy to, among other
things, “[r]emove and [r]eplace existing roof w[ith ]new E.POM [r]oof with
tapered insulation[.]” Contract at 3 (unpaginated). As mentioned supra,
McCarthy then subcontracted with RRR to perform roofing work. See
Subcontract at ‘Exhibit B: Scope of Work’ (McCarthy’s contracting with RRR to
to, inter alia, “[r]emove and dispose of existing roofing systems down to
existing wood roof deck” and “[p]rovide rigid insulation, and tapered insulation
with minimum slope of ¼” per foot as required for drainage”). As such, it
appears that McCarthy satisfies the fourth McDonald element.
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Nevertheless, Mr. Yoder contends that:
[T]he evidence at trial established that McCarthy is not a roofing
company, never does any roofing work, and fails to hire roofers
as a regular part of its business. Thus, when it entrusted the
roofing work on the Norwood Library renovation project to RRR…,
McCarthy was not entrusting “part of [McCarthy’s] regular
business” to RRR.
The evidence before the jury established that McCarthy is a mom-
and-pop carpentry subcontractor. It does drywall, it does flooring,
but it never does roofing. A company in the business of working
as a general contractor on construction projects of this nature
would hire roofers all the time as a regular part of its business.
Here, by contrast, the evidence of record establishes that
McCarthy never hires roofers. In fact, McCarthy hired roofers on
this job and this job only.
Instead of agreeing that it has to strictly satisfy this fourth
element of the McDonald test to invoke the statutory[-]employer
defense, McCarthy urges this Court to essentially nullify this prong
of the inquiry by holding that whenever one contractor
subcontracts to another any task that is required to complete a
task that the first contractor agreed to undertake, the first
contractor has entrusted a regular part of its business to the
subcontractor. This Court should reject McCarthy’s effort to
eliminate the “regular part of the delegating contractor’s business”
prong from the statutory[-]employer test, in direct contravention
of Pennsylvania precedent requiring that each of the five parts of
the McDonald test must be strictly satisfied.
Mr. Yoder’s Brief at 49-50 (citations to reproduced record omitted).
We are unpersuaded by Mr. Yoder’s argument. To begin with, he
proffers and discusses no case law to substantiate that McCarthy must
regularly perform roofing, or regularly hire roofers, to meet the fourth
McDonald element. Further, as set forth above, our review of relevant cases
supports that the key question is whether McCarthy’s contract with Norwood
Borough obligated it to perform roofing work. See Braun, supra; Shamis,
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supra; McCarthy, supra; O’Boyle, supra. The contract did so here. Finally,
the portion of the record that Mr. Yoder cites to establish that McCarthy never
hires roofers is unconvincing of that point. There, Michael McCarthy testified
to the following:
[Mr. Yoder’s counsel:] In terms of what McCarthy does, McCarthy
has employees who are carpenters; would that be correct?
[Michael McCarthy:] Yes.
[Mr. Yoder’s counsel:] They have people that do painting?
[Michael McCarthy:] Yes.
[Mr. Yoder’s counsel:] You have laborers?
[Michael McCarthy:] Yes.
[Mr. Yoder’s counsel:] Does McCarthy do any type of tar roofs?
[Michael McCarthy:] No.
[Mr. Yoder’s counsel:] Asphalt roofs?
[Michael McCarthy:] No.
[Mr. Yoder’s counsel:] Rubber roofs?
[Michael McCarthy:] No.
[Mr. Yoder’s counsel:] Is McCarthy in the business of doing
roofing?
[Michael McCarthy:] We subcontract the roofing out.
[Mr. Yoder’s counsel:] But does McCarthy do roofing in the
business of roofing?
[Michael McCarthy:] Like I said, we subcontract that out.
[Mr. Yoder’s counsel:] That wasn’t my question. Am I correct that
McCarthy does not put down roofs?
[Michael McCarthy:] Correct.
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[Mr. Yoder’s counsel:] McCarthy does not have any roofers on
staff?
[Michael McCarthy:] Correct.
[Mr. Yoder’s counsel:] From 1998 up through October 2016, when
Mr. Yoder was injured, had you worked for McCarthy … on jobs in
which McCarthy … was the general contractor?
[Michael McCarthy:] Yes.
[Mr. Yoder’s counsel:] Am I correct that you worked on over a
hundred jobs in which McCarthy was the general contractor?
[Michael McCarthy:] Yes, I wouldn’t say exactly a hundred, but
give or take.
[Mr. Yoder’s counsel:] [A]m I correct that your understanding as
to what McCarthy did as a general contractor is that they oversaw
the subcontractor?
[Michael McCarthy:] Yes. If, in fact, we are the general contractor
on that job, we oversee our subcontractors.
[Mr. Yoder’s counsel:] So the answer to my question was yes?
[Michael McCarthy:] Yes.
[Mr. Yoder’s counsel:] Are you familiar with what is referred to as
the coordination of work?
[Michael McCarthy:] Yes.
[Mr. Yoder’s counsel:] In the approximate hundred jobs that
you’ve had before in which McCarthy was the general contractor,
whoever [sic] saw the coordination of work, am I correct that
Scott Novak was the employee of McCarthy who had that job?
[Michael McCarthy:] Yes.
[Mr. Yoder’s counsel:] And, unfortunately, Mr. Scott Novak has
passed away; is that correct?
[Michael McCarthy:] Yes.
[Mr. Yoder’s counsel:] Mr. Novak had been with McCarthy … for
approximately 35 years?
[Michael McCarthy:] Yes.
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[Mr. Yoder’s counsel:] Am I correct that Scott Novak’s title was
superintendent?
[Michael McCarthy:] Yes.
[Mr. Yoder’s counsel:] Am I correct that the duties and
responsibilities of the superintendent was to be responsible for all
scheduling with subcontractors?
[Michael McCarthy:] I don’t think he was solely responsible for
that. My brother, Pat, who works at the office, handles a lot of
the scheduling also.
N.T., 6/8/21, at 36-39.
The above-stated testimony does not support Mr. Yoder’s argument that
McCarthy never hired roofers, nor does it establish that McCarthy was not in
the business of working as a general contractor on construction projects of
this nature. Therefore, for the foregoing reasons, we determine that McCarthy
fulfills the fourth McDonald element.
Conclusion
Because McCarthy meets all five elements of the McDonald test, we
are constrained to conclude that it is Mr. Yoder’s statutory employer, rendering
it immune from tort liability.28 While we express our displeasure with having
to disturb the jury’s verdict, taking away Mr. Yoder’s damages award, we are
bound by controlling law to reverse the judgment entered in favor of Mr. Yoder
and remand for the entry of judgment in favor of McCarthy.
Judgment vacated. Case remanded for judgment to be entered in favor
of McCarthy. Jurisdiction relinquished.
____________________________________________
28 In light of our disposition, we need not address McCarthy’s remaining issues.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/31/2023
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