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August 21st, 2024
In Feldman v. CP Acquisitions 25, L.P., et al., No. 501 EDA 2023 (Pa. Super. Ct. Aug. 14, 2024), the Superior Court declined to apply the Pennsylvania Worker’s Compensation Act’s “statutory employer” status to Vito Braccia Construction, LLC, thereby precluding application of the Act’s immunity provision.
Cross Properties (“Cross”) owned property, and engaged Vito Braccia Construction, LLC (“VBC”) to remove trees from an adjacent property, owned by South Eastern Pennsylvania Transit Authority (“SEPTA”), upon which were power lines. VBC contracted with Colonial Tree Service, Inc. (“Colonial”) to remove the trees. VBC did no preplanning for the tree removal project, violating construction industry standards of American Society of Safety Engineers, which require general, prime, and controlling contractors to preplan the work, identify safety hazards, and take steps to eliminate or substantially reduce the risks.
Colonial tried to remove a tree that was only five feet horizontally from a 138,000-volt overhead power line, well within the 15-foot radius that is considered dangerous. A segment of the tree was strapped to the crane’s hoist line and cut. As the tree segment was being lifted, the electricity from the power line arced to the hoist line, traveled through the crane body and then shot out from the crane’s front bumper to the front bumper of Colonial’s log truck, which was nearby. At that very moment, Feldman, who had been working with a chainsaw to cut up the pieces of tree, was walking in between the crane and the log truck. The current electrocuted him and inflicted extensive and severe burns to 62% of his body, with 20% of the burns being 3rd degree.
Feldman filed suit against VBC and, following a five-day trial, the jury found that VBC was negligent and awarded Feldman $15,500,000 in damages. VBC filed motions for Judgment notwithstanding the verdict (“JNOV”) and for a new trial, which the trial court denied.
VBC appealed the decision, arguing, inter alia that JNOV was warranted as a matter of law based upon the “Statutory Employer Doctrine,” codified at sections 302(a) or 302(b) of the Workers’ Compensation Act (“WCA”). See McDonald v. Levinson Steel Co., 153 A. 424, 425 (Pa. 1930). A statutory employer “is immune from suit by an injured worker for common law negligence,” regardless of whether the subcontractor carried workers’ compensation insurance that paid the injured worker. Fonner v. Shandon, Inc., 724 A.2d 903, 904 (Pa. 1999). This is because the WCA treats a statutory employer as if it is the actual employer, who is likewise immune from suit brought by the employee for a work-related injury. See Dobransky v. EQT Production Co., 273 A.3d 1133, 1135 (Pa. Super. 2022) (en banc).
Section 302(a) of the WCA provides in pertinent part:
For purposes of this subsection, a person who contracts with another (1) to have work performed consisting of (i) the removal, excavation or drilling of soil, rock or minerals, or (ii) the cutting or removal of timber from lands, or (2) to have work performed of a kind which is a regular or recurrent part of the business, occupation, profession or trade of such person shall be deemed a contractor, and such other person a subcontractor. This subsection shall not apply, however, to an owner or lessee of land principally used for agriculture who is not a covered employer under this act and who contracts for the removal of timber from such land.
77 P.S. § 461.
The Superior Court analyzed 42 Pa.C.S. § 8311(c), which defines “timber” as “standing trees, logs or parts of trees that are commonly merchandized as wood products.” In applying section 8311, this Court has distinguished the cutting of timber from otherwise felling trees according to the purpose of the trees when they are standing. See Christian v. Yanoviak, 945 A.2d 220 (Pa. Super. 2008) (“the trees at issue do not constitute ‘timber’ as defined under the statute since they were not intended to be harvested for commercial use.”) Because the trees in question were not “timber,” the Superior Court concluded that section 302(a) of the Workers Compensation Act did not apply to the tree removal work performed; therefore VBC could not be deemed a statutory employer under section 302(a)(1)(ii).
Section 302(b) provides in pertinent part:
Any employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employee or contractor, for the performance upon such premises of a part of such employer’s regular business entrusted to that employee or contractor, shall be liable for the payment of compensation to such laborer or assistant unless such hiring employee 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.
77 P.S. § 462.
To satisfy section 302(b): (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 intrusted [sic] to such subcontractor. (5) An employee of such subcontractor. McDonald v. Levinson Steel Co., 153 A. 424, 426 (Pa. 1930).
In this case, the Court determined there was no contract with SEPTA, the owner of the property, nor was VBC authorized to permit subcontractors to enter upon SEPTA’s property. On this basis, the Court concluded that VBC failed to satisfy the first element of the McDonald test, as he did not have a contract with the owner of the property or someone in the position of the owner of the property in question. McCarthy v. Dan Lepore & Sons Co., 724 A.2d 938, 942 n.3 (Pa. Super. 1998). Therefore, the Superior Court found no error or abuse of discretion by the trial court in finding that VBC was not Feldman’s statutory employer pursuant to section 302(b).
The Superior Court’s opinion in Feldman v. CP Acquisitions 25, L.P., et al., No. 501 EDA 2023 (Pa. Super. Ct. Aug. 14, 2024) can be accessed here.
