Brown, J. v. Gaydos, G. ( 2022 )

J-A12031-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN BROWN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
GEORGE GAYDOS, AN INDIVIDUAL, : No. 1132 WDA 2021
T/D/B/A GAYDOS CONSTRUCTION :
Appeal from the Judgment Entered April 16, 2021
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): No. GD18-006991
BEFORE: MURRAY, J., McCAFFERY, J., and COLINS, J.*
CONCURRING/DISSENTING MEMORANDUM BY McCAFFERY, J.:
FILED: JULY 5, 2022
I agree with the Majority’s determination that the trial court erred in
granting summary judgment in favor of Defendant based on employer
immunity as set forth in Section 303(a) of the Workers’ Compensation Act
(WCA).1 See Majority Memorandum at 11. As the Majority cogently
determines, the record contains a genuine issue of material fact concerning
whether Defendant was Plaintiff’s “employer” since he “did not directly employ
Plaintiff and he did not exert exclusive control over ACS[.]” Id. However, I
disagree with the Majority’s disposition of Plaintiff’s second claim, concerning
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* Retired Senior Judge assigned to the Superior Court.
1 77 P.S. § 481(a).
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the co-employee immunity provision set forth in Section 205 of the WCA.2 I
conclude that under the facts presented here, the question of whether
Defendant is immune from liability as Plaintiff’s co-employee is a jury
question. Therefore, because I would reverse the court’s ruling in toto and
remand for trial, I respectfully concur and dissent.
When an injury is compensable under the WCA, Section 205 provides
immunity from liability to co-employees whose negligent actions caused the
claimant’s injuries, so long as the injury occurred while the co-employees were
“in the same employ” as the injured claimant.3 77 P.S. § 72. See Apple v.
Reichert, 278 A.2d 482, 485 (Pa. 1971) (explaining the WCA is “clearly
phrased to protect all co-employes in all situations where negligent conduct
of one employe may cause injury to a fellow employe, provided only that the
injury in question is one that is compensable under the Act.”). As the Majority
aptly observes, the term “co-employee” under the Act may include managers,
executives, and even those who have an ownership interest in the employer.
See Majority Memo. at 13.
Nonetheless,
[t]he mere fact that both parties held positions of employment
with the same employer at the time of the accident is not sufficient
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2 77 P.S. § 72.
3 Section 205 provides an exception for “intentional wrong[s]” — thus, co-
employees cannot claim immunity from a civil action if they intentionally
caused the claimant’s injuries. See 77 P.S. § 72. Plaintiff does not contend
that Defendant committed an “intentional wrong” in the present case.
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to show that they were in the same employ at the time of the
accident. Rather, the act or omission must occur while both
employees are in the performance of their duties as employees.
In order to establish immunity under the [WCA], the defendant is
required to establish that [their] act or omission occurred while
[they were] in the same employ as the plaintiff, that is, in the
course of [their] performance of duties for the employer.
Bell v. Kater, 943 A.2d 293, 297–98 (Pa. Super. 2008) (citations and
quotation marks omitted).
Here, the Majority concludes that “the evidence of record shows
Defendant was acting ‘in the course of [his] performance of duties for’ ACS on
. . . the date Plaintiff sustained his injuries” based upon the Defendant’s
deposition testimony that: (1) he brought the skid loader to that ACS job site
on the morning of the accident “with the intention that he would personally
operate [it] to assist in completing the ACS paving project[;]” (2) he left the
skid loader at the site and went to “pay a vendor” for materials; and (3) he
returned to the job site immediately after the accident. Majority Memo. at 15.
The Majority also rejects Plaintiff’s argument that he “did not sue Defendant
in his capacity as an ACS worker[,]” characterizing it as “creative pleading”
intended to “circumvent” the requirements of the ACT. Id. at 17. It further
downplays the significant fact that Defendant instructed ACS workers not to
use the skid loader, as well as the fact that the skid loader was owned,
maintained, and insured by Gaydos Construction. Id. at 18-19. Rather, the
Majority found the record was “devoid of evidence showing that Gaydos
Construction was involved with the course of events that gave rise to Plaintiff’s
injuries.” Id. at 19.
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Upon my review, I conclude the record does not “clearly demonstrate[
] there is no genuine issue of material fact and that [Defendant] is entitled to
judgment as a matter of law.” In re Risperdal Litigation, 223 A.3d 633,
639 (Pa. 2019) (citation omitted). Rather, because there is evidence of record
that “would allow a fact-finder to render a verdict in favor of the non-moving
party, then summary judgment should [have been] denied.” Zimmerman v.
Alexander Andrew, Inc., 189 A.3d 447, 452 (Pa. Super. 2018) (citation
omitted).
First, the cases upon which the Majority relies — where an executive or
manager was found to be immune from civil liability as a co-employee — are
clearly distinguishable on their facts.
In Jadosh v. Goeringer, 275 A.2d 58 (Pa. 1971), the plaintiff, who was
injured at work while operating a lug cover press filed suit against, inter alia,
the vice president/general manager of the employer, responsible for the
“supervision of operations,” claiming they had been “negligent in condoning
the use of a defective press.” Jadosh, 275 A.2d at 452-53. In determining
the manager was immune from liability under the WCA, the Pennsylvania
Supreme Court first noted that the WCA’s definition of co-employee includes,
inter alia, “[e]very executive officer of a corporation[.]” Id. at 453 (citation
omitted). Moreover, the Court rejected the plaintiff’s argument that the
statute was unconstitutional because it “insulates a co-worker from liability
without any corresponding financial responsibility placed on” them. Id. at
454. The Supreme Court opined:
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In our opinion, a provision immunizing fellow employees
from liability for negligent acts or omissions in the course of their
employment is consistent with the constitutional provision
permitting the enactment of a comprehensive scheme of
workmen’s compensation. The employee receives economic
insurance that his employment-related injuries will be
compensated. He surrenders the right to sue employers or fellow
employees for negligence, but he no longer need prove
negligence, his own contributory negligence is no longer a bar,
and he, too, can no longer be sued for negligence by a fellow
employee. Such a comprehensive program is not
unconstitutional.
Id. at 454–55 (citation omitted).
In Adams v. U.S. Air, Inc., 652 A.2d 329 (Pa. Super. 1994), the
plaintiff sued his managers for intentional infliction of emotional distress and
interference with contractual relations after they fired him following an internal
investigation, which found he violated company policies. See Adams, 652
A.2d at 330. After concluding there was no evidence the managers acted with
the intent to cause the plaintiff emotional distress or acted “outside the scope
of their authority,” a panel of this Court affirmed the grant of summary
judgment in favor of the managers. Id. at 331. The panel opined:
[The managers] acted, pursuant to the duties of their
employment, to investigate [the plaintiff’s] activities on the
employer’s premises and whether they were violative of [the
employer’s] policies. For this there can be no liability against a
fellow employee.
Id. at 330.
The Majority also relies upon Vosburg v. Connolly, 591 A.2d 1128 (Pa.
Super. 1991), for the proposition that “a co-owner of a family construction
company [is] a co-employee rather than an employer under the WCA.”
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Majority Memo. at 14. In that case, a panel of this Court determined that
while the co-owner could “be characterized as an employee” of the company,
they were, nevertheless, not entitled to immunity because they “committed
an intentional assault” upon the injured employee. Vosburg, 591 A.2d at
1133. Thus, this Court reversed the order granting summary judgment in
favor of the co-owner. Id. However, it is clear from a review of that decision,
that the primary issue was whether or not the injured employee was acting
“with the course of his or her employment” at the time the injury occurred,
which was after the employee had “punched out and retreated to the parking
lot of [the employer] to socialize with fellow workers[.]” Id. at 1129-30.
None of the cases relied upon by the Majority address the factual
dilemma presented here — where an employee is injured while using a piece
of equipment that is owned, maintained, and insured by a separate sole
proprietorship operated by one of the co-owners. These facts are unlike
those in Jadosh, where the allegedly defective piece of equipment was the
property of the employer, and the plaintiff alleged the manager was negligent
in simply performing their duties for the employer. See Jadosh, 275 A.2d at
452-53. The same is true of Adams, in which this Court rejected an
employee’s suit against their managers for merely acting “pursuant to the
duties of their employment.” See Adams, 652 A.2d at 330.
In the case sub judice, however, I conclude there is a genuine issue of
material fact as to whether Defendant was acting within “the same employ”
as Plaintiff at the time of Plaintiff’s injury. See 77 P.S. § 72.
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First, in his deposition, Defendant admitted he owned the skid loader in
question, and that Gaydos Construction “covered the [insurance] policy on
it[.]” Plaintiff’s Motion for Summary Judgment, 3/3/21, Exhibit 2 at 43.
Contrary to the Majority’s characterization, Defendant did not definitively state
that the skid loader would have been covered by ACS’s insurance if it was
used on an ACS job site. See Majority’s Memo at 19. Rather, Defendant
testified as follows:
Q. Did [ACS] insure at any time the subject skid loader?
[Defendant:] Under . . . our basic policy which I do not have in
front of me, I’m sure that there was some sort of insurance on
equipment for the contractor’s liability policy for [ACS].
Q. Do you know as we sit here today if [ACS] listed the subject
skid loader on that policy?
[Defendant:] I do not believe it was listed, but it is a tool. [4]
Q. As we sit here today, do you believe the policy through [ACS]
insured the subject skid loader?
[Defendant:] I’m sure there was some sort of coverage for tools
and equipment on job sites, so I couldn’t tell you for certain. I
don’t have the policy in front of me.
Q. So you don’t know?
[Defendant:] I don’t know.
Plaintiff’s Motion for Summary Judgment, Exhibit 2 at 42-43 (emphasis
added). Defendant further acknowledged that “[t]he skid loader was loaned
to [ACS] for contracting jobs[,]” and stated that he performed the
maintenance on the skid loader himself. Id. at 44, 82 (emphasis added).
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4 I would not categorize a skid loader as a “tool,” similar to a hammer or drill.
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The Majority also emphasizes Defendant’s deposition testimony that he
and his partner agreed “they would each supply their personally owned tools
and equipment as needed for ACS jobs” during ACS’s infancy because the
company did not have sufficient capital to purchase equipment. See Majority
Memo. at 18. However, this purported agreement between the co-owners is
not in writing. Moreover, Defendant acknowledged that he “loaned” the skid
loader to ACS for certain jobs but stated there was “no lease” or “transfer of
money.” Plaintiff’s Motion for Summary Judgment, Exhibit 2 at 44, 47. He
also emphasized that the ACS employees understood he was to be “the sole
operator of that piece of equipment.” Id. at 49.
Further, we note the Majority presumes Defendant brought the skid
loader to the job site on the morning in question for use on that particular ACS
job. See Majority Memo. at 15, citing Plaintiff’s Motion for Summary
Judgment, Exhibit 2 at 45; Defendant’s Reply Brief in Support of Summary
Judgment, 3/8/21, Exhibit E-2 at 60. However, I conclude that “fact” is not
clearly borne out in the record. Rather, in his deposition, Defendant testified,
generally, that he had “loaned” the skid loader to ACS for concrete jobs on 15
occasions between April and September of 2016, and that on the morning of
the incident, he arrived early, and then left to “go pay a vendor.” See
Plaintiff’s Motion for Summary Judgment, Exhibit 2 at 44-45; Defendant’s
Reply Brief in Support of Summary Judgment, Exhibit E-2 at 60. He also
stated that ACS employees were not to use the skid loader when he was not
there, and “there was other work that could have been done” in his absence.
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Defendant’s Reply Brief in Support of Summary Judgment, Exhibit E-2 at 60.
Therefore, in my opinion, the record contains a genuine issue of material fact
as to whether Defendant actually intended to use the skid loader at the job
site on the morning in question. For this reason, too, the court’s entry of
summary judgment was inappropriate.
The facts presented in this case are significantly different from those in
which a co-owner or manager has been found to be a co-employee, and,
therefore, immune from civil liability under the WCA. Here, the co-owner —
Defendant — operated a separate sole proprietorship, that independently
owned, maintained, and insured the allegedly defective skid loader which
caused Plaintiff’s injuries. Although Defendant may have “loaned” the skid
loader to ACS free of charge, he made it clear that none of ACS’s employees
were to operate it. The Majority insists “a co-employee’s immunity from an
injured worker’s suit at common law is based upon the identity of the
defendant, not the plaintiff’s theory of the defendant’s liability.”
Majority Memo. at 17 (emphasis added; citation omitted). However, here,
Plaintiff’s theory defeats Defendant’s identity as a co-employee.
Thus, under these facts, I conclude that the determination of whether
Defendant was working “in the course of [his] performance of duties for the
employer[,]”5 ACS, is a question for the jury since Defendant admitted (1) his
sole proprietorship owned, maintained, and insured the skid loader, (2)
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5 See Bell, 943 A.2d at 298.
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Defendant loaned the skid loader to ACS for use on job sites, although it is
not clear if he intended to use the skid loader at the job site in question, and
(3) Defendant was the only ACS “employee” permitted to use the equipment,
that he owned, maintained, and insured. Consequently, I would reverse the
order granting ACS Defendant’s motion for summary judgment and remand
for further proceedings.
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