Defendant Found to Be Statutory Employer and Entitled to Immunity

In the case of Edie v. George Junior Republic In Pennsylvania, No. 546 C.D. 2025 (Pa. Cmwlth. March 27, 2026 Cohn Jubelirer, P.J., Covey, J. Wallis, J.) (Op. by Covey, J.), the Pennsylvania Commonwealth Court addressed the application of the statutory employer doctrine in a third party negligence case.

According to the Opinion, the Defendant operated a youth residential institution and contracted with a food service company to provide food services at the facility.

The Plaintiff, who was employed by the food services facility, was cleaning a grill while working in the kitchen at the facility when the Plaintiff was caused to fall and suffer injuries.

The Plaintiff filed a Complaint against the youth residential institution alleging negligence due to unsafe conditions in the kitchen.

The Defendant youth residential institution responding by asserting immunity under the Worker’s Compensation Act as a statutory employer.

The trial court agreed with the Defendant and dismissed the case under a summary judgment motion. The Plaintiff appealed.

The Commonwealth Court applied the McDonald test, which requires that five (5) elements be established to establish a statutory employer status. Those elements include the existence of a contract with the owner, proof that the premises were occupied or controlled by the employer, a subcontract between the parties at issue, and proof that part of the employer’s regular business was entrusted to the subcontractor, and, finally, that the Plaintiff was an employee of the subcontractor.

Here, the Plaintiff only contested the second element, arguing that the Defendant did not have the necessary level of control or occupancy to meet this element of the doctrine.

The appellate court found that the youth residential institution occupied the premises given that its food services director was present daily and oversaw the food services provider’s operations by ensuring compliance with contractual and regulatory requirements. 

The court additionally noted that the residential facility’s employees were also regularly present in the kitchen. It was additionally noted that the residential facility maintained control over the kitchen's equipment and operation.

As such, the Commonwealth Court agreed that the Defendant residential facility had met the occupancy requirement, thereby satisfying that contested element of the McDonald test.

Accordingly, the appellate court affirmed the trial court’s entry of summary judgment in favor of the Defendant as a statutory employer of the Plaintiff.  As a statutory employer, the Defendant facility was found to be entitled to immunity under the Worker’s Compensation Act from the claims presented in the third party personal injury liability lawsuit.

Anyone wishing to review a copy of this decision may click this LINK.

Source: The Legal Intelligencer State Appellate Case Alert, www.Law.com (April 14, 2026).

Source of image:  Photo by Pylyp Sukhenko on www.unsplash.com.

THE 2025 TORT TALK TOP TEN

THE 2025 TORT TALK TOP 10

10. “Farcical” Fad of Allegations of Recklessness Continues

Despite the well-settled law since the Pennsylvania Rules of Civil Procedure first went into effect 78 years ago on January 1, 1947 establishing that Pennsylvania is a fact-pleading state when it comes to pleadings, the trial courts of Pennsylvania have continued to allow plaintiffs to plead recklessness in every case regardless of the facts. Click this LINK to see the many recent Tort Talk blog posts on this topic.

These trial court rulings allowing such pleading are based on a reading of Pa.R.C.P. 1019(b) as found in the errant Pennsylvania Superior Court decision in the case of Monroe v. CB H20 LP, 286 A.3d 785 (Pa. Super. 2022) (en banc). Judge Victor P. Stabile noted in his Dissenting Opinion in that case that the Majority’s decision was based on “farcical” reasoning. Monroe, 286 A.3d at 830 (Dissenting Opinion).This ‘farcical’ fad of allowing plaintiffs to plead recklessness with reckless abandon regardless of the facts of the case continued in 2025 in the Pennsylvania state courts.

While the state trial court judges from all around the Commonwealth continued to routinely allow claims of recklessness in every case, at least one federal district court judge over the past year ruled to the contrary. In McKinney v. GM, LLC, No. 1:24-CV-00140-SPB (W.D. Pa. Aug. 28, 2025), Judge Susan Paradise Baxter of the Western District Federal Court granted a partial Motion to Dismiss claims of punitive damages after finding that the Plaintiff failed to plead sufficient facts to support a punitive damages claim. The court noted well established rule of law in Pennsylvania that allegations of recklessness that could support a punitive damages claim must involve more than claims of ordinary negligence.

The Tort Talk blog post on the McKinney case can be viewed HERE.

9. Nearly 200 Year Old Gist of the Action Doctrine Ruled Invalid

The gist of the action doctrine generally holds that an injured party can not plead both a negligence cause of action and a breach of contract cause of action in the same lawsuit. The purpose of the doctrine was to maintain the difference between the two theories of liability in civil litigation matters.

In the case of Swatt v. Nottingham Village, 324 A.3d 23 (Pa. Super. July 2, 2025) (en banc) (Op. by Kunselman, J.), an en banc panel of the Pennsylvania Superior Court boldly ruled that the gist of the action doctrine, which has been essentially recognized in English and American jurisprudence for over 200 years, was no longer valid.

The Tort Talk blog post on the Swatt case can be viewed at this LINK.

The court essentially ruled in Swatt that the law has always recognized an injured parties right to choose and pursue either theory of liability, that is, a negligence theory of liability or a breach of contract theory, and that, under the Pennsylvania Rules of Civil Procedure, injured parties are permitted to plead their theories of liability in the alternative under a single personal injury Complaint.

The Superior Court’s decision in Swatt, which was handed down in July of this year, was followed by another Superior Court panel in a December 11, 2025 decision in the case of Poteat v. Asteak, ___ A.3d ___, 729 EDA 2023 (Pa. Super. 2025). The Tort Talk post on this case can be reviewed HERE.

Keep an eye out in 2026 for an upcoming article on this topic written by myself and my son, Daniel E. Cummins, Jr., a second year student at Virginia Law School, to be published this upcoming spring in the Pennsylvania Bar Association Quarterly.


8. Test to Show Good Cause for IME

In Verba v. Erie Insurance Exchange, 326 A.3d 973 (Pa. Super. 2024 ), the Pennsylvania Superior Court held that the requirement of good cause set forth in Rule 4010 regarding requests for medical examinations (IMEs) in civil litigation matters is designed to protect parties against an unwarranted invasion of their privacy and to preclude the use of such a medical examination for improper purposes.

The court in Verba ruled that good cause can exist to support a request for an IME in a pending litigation if there is a controversy, or a dispute between the parties, regarding the validity of the plaintiff’s injury claims.

The Tort Talk post on the Verba can be viewed HERE.


7. New Jury Selection Rule Goes Into Effect

On April 1, 2025, the new Pa.R.C.P 220.3 went into effect requiring trial court judges to be present in the courtroom for jury selections in civil cases unless the litigants opt out of the requirement.


6. Archaic Local Rules Overruled

In the case of Scheibe v. Woodloch Resort, No. 1478 EDA 2024 (Pa. Super. May 20, 2025), Superior Court issued a decision that invalidated the archaic local rule of the Pike County Court of Common Pleas that required original signatures on all filings with the Court. As such, going forward electronic signatures may be utilized on documents being filed in Pike County.

The Tort Talk blog post on the Scheibe case can be viewed at this LINK.

Over this past year, the Superior Court struck down another archaic local rule in its decision in the case of Biros v. U Lock, Inc., No. 113 WDA 2024 (Pa. Super. Aug. 1, 2025). In Biros, the appellate court found that Westmoreland County’s archaic requirement that notices of appeal could only be filed in person or by mail was such a local rule. Accordingly, the appellate court ruled that the appellant’s initial filing was properly and timely filed and was sufficient to initiate the appeal.

The Tort Talk blog post on the Biros case can be viewed HERE.


5. Arbitration Clauses and Children

In the case of Shultz v. Skyzone, No. 25 EAP 2023 (Pa. Sept. 25, 2025) (Op. by Donohue, J.), a case that involved the claims brought on behalf of several minors who were injured at trampoline parks operated by Skyzone, the Pennsylvania Supreme Court held that a parent who signs an Arbitration Agreement cannot bind a non-signing spouse or a minor child to the terms of that agreement.

The Supreme Court held that parents lacked the authority to bind a minor to an agreement to arbitrate, as this would deprive the minor of judicial protections and oversight designed to safeguard their interests. As noted, the Pennsylvania Supreme Court also held that a parent who signs an Arbitration Agreement cannot bind a non-signing parent, or minor child, to its terms.

The Tort Talk blog post on this Pennsylvania Supreme Court case can be viewed HERE.

The Pennsylvania Supreme Court handed down the same decision on the same date in the consolidated case of Santiago v. Philly Trampoline Park, No. 24 EAP 2023 (Pa. Sept. 25, 2025) (Op. by Donohue, J.).


4. Statutory Employer Doctrine Upheld

In the case of Yoder v. McCarty Construction, 43 MAP (Pa. Oct. 23, 2025), the Pennsylvania Supreme Court reaffirmed the validity of the statutory employer doctrine under the Worker’s Compensation Act and rejected arguments from the plaintiff seeking to abolish this doctrine.

The Supreme Court reaffirmed the law behind the statutory employer doctrine that has been in effect in Pennsylvania since 1930 as enunciated in the case of McDonald v. Levinson Steel Co., 153 A. 424, 426 (Pa. 1930).

That long-standing law provides that, under Section 203 of the Workers’ Compensation Act (Act), 77 P.S. § 462, a general contractor that hires a subcontractor to perform work on a jobsite is deemed to be an “employer” of employees of the subcontractor in certain circumstances. In those instances where the subcontractor does not make payment, the general contractor will be considered liable for the worker’s compensation payments.

In exchange for this imposition of secondary liability on the general contractor, the Act’s statutory employer provision in Section 203 of the Act, 77 P.S. § 52, extends to a general contractor the same tort immunity afforded to the subcontractor of the injured worker in any third party lawsuit arising out of the same accident.

In this Yoder case, the Pennsylvania Supreme Court rejected arguments by the Plaintiff that the statutory employer doctrine should be rejected and/or that the immunity afforded to employers under the doctrine should be deemed to be waivable in certain circumstances.

The Tort Talk blog post on the Yoder case can be viewed HERE.


3. New Cell Phone Law

While texting while driving has been banned in Pennsylvania since 2012, in June of this year, a new law went into effect on June 5, 2025 that banned any and all cell phone use while driving on the roads of Pennsylvania. Under certain exceptions noted in the law, a driver may use a cell phone for emergency purposes. A driver may also use a mobile device if they pull off to the side of the road and stop where a vehicle may safely remain in a stopped position.

The law, known as “Paul Miller’s Law,” went into effect on June 5, 2025 and made it illegal to use a cell phone in your hands in any way while driving. The law even prohibits these activities even when one is stopped at a red light or in a traffic jam.

Under the language of the law, it appears that an overhead bluetooth system can be used to make calls as long as one uses the buttons on the steering wheel and the dash and not by way of the cell phone in your hand while driving.

For the next year through June of 2026, the penalty for a violation will be a written warning. Starting June 5, 2026, the penalty will be a summary offense with a $50 fine, plus court costs and other fees. Moreover, if a driver is convicted of both vehicular homicide and driving while distracted, they may be sentenced up to an additional five years in prison.


2. Doctrine of Forum Non Conveniens Clarified

Over the past year, the Pennsylvania Supreme Court provided clarity on the test to be applied in reviewing a Petition to Transfer Venue under the doctrine of forum non conveniens in the case of Tranter v. Z & D Tour, Inc., No. 32 EAP 2024 (Pa. Sept. 25, 2025) (Op. by Wecht, J.).

The Supreme Court of Pennsylvania that the Superior Court’s imposition of a “key witness” requirement in the analysis was inconsistent with Pennsylvania precedent on the issue of the type of evidence required to secure a transfer of a matter under the doctrine of forum non conveniens.

The Supreme Court otherwise clarified that a party seeking a transfer of a matter under the doctrine of forum non conveniens must identify the burdened witnesses and provide a general statement of their respective testimony. The Supreme Court confirmed that the petitioner need not show that the testimony of the witnesses is “critical” or “necessary” to the defense.

The Tort Talk blog post on this notable Pennsylvania Supreme Court decision can be viewed HERE.


1. Artificial Intelligence

In the year 2025, courts and litigators found a steady rise in the use of artificial intelligence (AI) in many aspects of the law. AI platforms have begun to be used to assist in the evaluation of cases and also with respect to legal research and brief writing.

Near the end of this year, the Pennsylvania Supreme Court issued its “Interim Policy On The Use Of Generative Artificial Intelligence By Judicial Officers And Court Personnel." This policy is designed to serve as an interim policy to guide judges and court personnel who desire to use artificial intelligence (AI) in their day-to-day work. This policy allows for judges and court personnel to utilize AI for summarizing documents, conducting preliminary legal research, and drafting initial versions of documents.

As noted in the August 14, 2025 Pennsylvania Law Weekly article entitled “AI and Its Proper Use in the Practice of Law” by Daniel E. Cummins and Ursinus College Computer Science major, Michael Cummins, a number of lawyers in Pennsylvania and across the country have been sanctioned for submitting fake legal citations, known as hallucinations, as a result of utilizing AI platforms for legal research and the writing of briefs and not checking the accuracy of such citations.


The “AI Hallucinations Cases Database” maintained by Damien Charlotin, an attorney in France, confirms that attorneys all over the world have been getting in trouble for filing motions and briefs with courts that contain fake, AI generated citations and information. According to that database, which can be viewed at this LINK, as of December of 2025, there were at least four (4) reported decisions handed down in Pennsylvania in which attorneys were in trouble in this regard.

It is anticipated that, in the near future, the Pennsylvania Supreme Court may also come out with rules to guide attorneys on the proper use of AI in the practice of law relative to any filings with the state courts.

In the Pennsylvania federal courts, Judge Karoline Mehalchick of the Federal Middle District Court has been leading the way by crafting a civil practice order that is issued in all of her matters that requires attorneys to identify any AI-created portions of their court filings and to certify to the court that any citations contained therein have been checked for accuracy.



New Book To Consider Purchasing To Improve Your Practice of Law

Last but not least, it is noted that, over the past year, the Pennsylvania Bar Institute (PBI) published an e-book entitled Raising the Bar: A Practical Guide to the Practice of Law written by Daniel E. Cummins. 

The book compiles articles written by the author over the past 25 years providing practice and professionalism tips for lawyers and judges.. The book is designed to provide lawyers, whether they be new or experienced, with tips and reminders on how to improve their day-to-day practice of law and efforts at a work-life balance.

Pennsylvania Supreme Court Reaffirms the Statutory Employer Doctrine

In the case of Yoder v. McCarty Construction, 43 MAP (Pa. Oct. 23, 2025) (Op. by Brobson, J.)(McCaffery, J., concurring), the Pennsylvania Supreme Court reaffirmed the validity of the statutory employer doctrine under the Worker’s Compensation Act and rejected arguments from the Plaintiff seeking to abolish this doctrine.

According to the Opinion, the Plaintiff suffered a workplace injury when he fell through a hole during roofing work. The Plaintiff was an employee of a subcontractor.

The general contractor asserted the defense of statutory employer immunity in the personal injury action arising out of the accident.

The Supreme Court began its decision by reaffirming the law behind the statutory employer doctrine that has been in effect in Pennsylvania since 1930.

That long-standing law provides that, under the Workers’ Compensation Act (Act), a general contractor that hires a subcontractor to perform work on a jobsite is deemed an “employer” that is secondarily liable to the injured employee of the subcontractor for the payment of compensation under the Act, provided that the subcontractor—the one primarily liable—fails to make payment. Section 302(b) of the Act, 77 P.S. § 462.

In exchange for this imposition of secondary liability, the Act’s statutory employer provision in Section 203 of the Act, 77 P.S. § 52, extends to a general contractor the same tort immunity afforded to the subcontractor of the injured worker.

At the Supreme Court level in this Yoder case, the court rejected arguments by the Plaintiff that the statutory employer doctrine should be rejected and/or that such immunity should be deemed to be waivable in certain circumstances. As noted, the Court rejected these arguments and instead reaffirmed that the statutory employer doctrine remains a valid part of Pennsylvania worker’s compensation law.

The case was remanded back to the trial court for further proceedings to determine whether the general contractor satisfied the elements of the five (5) part statutory employer test as formulated back in 1930 in the case of McDonald v. Levinson Steel Co., 153 A. 424, 426 (Pa. 1930).

Anyone wishing to review a copy of this decision may click this LINK.  The Concurring Opinion by Justice McCaffery can be viewed HERE.


I send thanks to Attorney Glen Ricketti of the Philadelphia office of the Margolis Edelstein law firm for bringing this case to my attention.

Claims of Immunity Must Be Pled as New Matter, Not Via Preliminary Objections

In the case of Cullen v. Boomer Flooring, LLC, No. 6009-Civil-2025 (C.P. Monroe Co. July 15, 2025 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas addressed various Preliminary Objections filed in a premises liability case.

According to the Opinion, the Plaintiff was employed by a plumbing subcontractor and was working on a construction site when he fell through holes in the floor that were covered by cardboard and suffered injuries as result.

In this case, one of the Defendants filed Preliminary Objections asserting that, since that Defendant was a statutory employer, it was entitled to immunity for any tort related injuries suffered by a subcontractor’s employees.

The Plaintiff in this matter filed Preliminary Objections to this Defendant’s Preliminary Objections and asserted that any defenses regarding immunity should not be considered during the Preliminary Objections stage and should instead be pled as new matter.

After reviewing Pa. R.C.P. 1030(a) which list all affirmative defenses, including “immunity from suit,” the court agreed with the Plaintiff’s argument and sustained the Plaintiff’s Preliminary Objections to the Defendant’s Preliminary Objections.

The court otherwise reviewed other Preliminary Objections asserted by the Defendants relative to the Plaintiff’s claims of “carelessness and recklessness conduct.” Relying upon the Superior Court decision in the case of Monroe v. CBH2O, LP, 286 A.3d 785 (Pa. Super. 2022), the court allowed the allegations of recklessness to proceed into discovery. As such, the Preliminary Objections asserted by the Defendants in this regard were overruled.

Anyone wishing to review a copy of this decision may click this LINK.


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (Sept. 11, 2025).

Source of image:  Photo by Sylvia Brazzoduro on www.pexels.com.

Statutory Employer Test Applied in the Context of the Provision of Professional Services

In the case of Smith v. Supportive Concepts for Families, Inc., No. 21-2038 (C.P. Berks Co. Jan. 25, 2025 Nevius, J.), the court addressed a Motion for Summary Judgment filed by a provider of outpatient psychiatric services in a case in which the Plaintiff alleged that she was assaulted by a patient during a psychiatric medical examination.

The Plaintiff was attacked when she visited a group home owned and operated by the Defendant. The Plaintiffs allege that the Defendant knew of the assailant’s violent pre-disposition but failed to adequate safeguard against harm.

In significant part, the Defendant relied upon the statutory employer defense in its Motion for Summary Judgment. The court noted that there was no dispute that, at the time of the incident, the Plaintiff was an employee of the separate entity that sent her to this facility to complete the medical examination. 

Nevertheless, the Defendant in this case was asserting immunity as a statutory employer of the Plaintiff pursuant to the five (5) part test set forth in the case of McDonald v. Levinson Steel Co., 302 Pa. 287, 153 A. 424 (Pa. 1930).

The court in this Smith case noted that the McDonald factors are under current review in the Pennsylvania Supreme Court. The court refused to speculate on whether or not the statutory employee test would survive that Supreme Court review. The court instead applied the McDonald factors to arrive at its decision to deny the Defendant’s Motion for Summary Judgment.

Notably, this court noted that the Defendant did not provide any authority for the application of the McDonald factors in the context of the provision of professional services. The court noted that the McDonald test is typically used in connection with construction cases.

The court in this Smith case also noted that, in any event, the Defendant had not offered sufficient evidence to establish that it met all of the factors of the statutory employer test.

As such, the Motion for Summary Judgment was denied.

The court additionally denied the defense arguments set forth under the assumption of the risk doctrine and relative to the alleged exculpatory release involved in the case.

Anyone wishing to review a copy of this decision may click this LINK.


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (April 23, 2025).

Scope of Statutory Employer Doctrine Reviewed

In the case of Hernandez v. Independence Constructors Corp., No. 1911 EDA 2023 (C.P. Phila. Co. Dec. 19, 2023 Foglietta, J.), the trial court issued a Rule 1925 Opinion in case involving a work-related injury sustained by the Plaintiff in a case where he sued certain entities.

The trial court stated in its Rule 1925 Opinion that its judgment should be affirmed where the Defendant, which subcontracted the Plaintiff’s employer for construction work was not a statutory employer entitled to employer immunity under the Pennsylvania Workers’ Compensation Act.

In this regard, the court stated that it had concluded that the Defendant employer did not meet the second prong of the test set out in the case of McDonald v. Levinson Steel Co., 153 A. 424 (Pa. 1930). More specifically, the Defendant employer did not control the job site where the Plaintiff was injured.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “The Legal Intelligencer Common Pleas Case Alert,” Law.com (March 27, 2024).

Pennsylvania Superior Court Reviews Scope of Statutory Employer Status for General Contractors

In the case of Yoder v. McCarthy Construction, Inc., No. 1605 EDA 2021 (Pa. Super. Jan. 31, 2023 Bender, P.J.E., Panella, P.J., Sullivan, J.) (Op. by Bender, P.J.E.), the court addressed issues of whether or not a Defendant was a worker’s compensation statutory employer and, therefore, immune from any tort liability asserted by the Plaintiff, who was an employee of a subcontractor.

According to the Opinion, the jury in the underlying matter had entered a verdict for over $5.5 million dollars against the Defendant on the personal injury claims presented.

In reviewing the Worker's Compensation Law, 77 Pa.C.S.A. Section 462, the Superior Court noted that general contractors take on secondary liability for the payment of worker's compensation for the employees of any subcontractors.  In the event a subcontractor defaults on securing worker's compensation coverage, then the coverage purchased by the general contractor would apply.  In this regard, the general contractor is considered under the law to be a statutory employer of the subcontractor's employee.

In exchange for this secondary liability taken on by a general contractor under the law, the general contractor is granted immunity from any tort liability arising out of the same incident.   

The court found that, given that the Plaintiff had received worker’s compensation benefits, the Plaintiff was judicially estopped from denying his employee status. The court noted that the record confirmed that the Plaintiff was an employee of the subcontractor at issue, and not an independent contractor.

As such, the Pennsylvania Superior Court ruled that a statutory employer status is not limited to general contractors at a job site.

The court additionally noted that worker’s compensation immunity, including with respect to the issue of whether or not a Defendant is a statutory employer, is a jurisdictional issue that cannot be waived. 

The court additionally noted that whether a Defendant is a statutory employer is a question of law for the court, not a question of fact for the jury.

In the end, the Superior Court found that the Defendant was a statutory employer and was therefore immune from any liability.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm in Philadelphia for bringing this case to my attention.

Federal Middle District Court Rejects Argument That Plaintiff's Claims Against Trucking Defendant Are Pre-Empted By Federal Law

In the case of Ciotolo v. Star Transp. and Trucking, No. 3:19-CV-00753-MEM (M.D. Pa. Aug. 24, 2020 Mannion, J.), the court ruled that Pennsylvania's general tort law is not pre-empted by the Federal Aviation Administration Authorization Act ("FAAA").

This matter arose out of a tractor trailer accident during which the Plaintiff's vehicle was hit from the rear.

The trucking Defendant asserted that the Plaintiff's claims were pre-empted by the FAAA, since the claims related to the Defendant's core services of brokering the shipment of goods in interstate commerce. 

This argument was rejected by the Court.  Although the Court relied upon Third Circuit precedent, this decision by Judge Malachy E. Mannion may be the first decision of its kind out of the Federal District Court for the Middle District of Pennsylvania.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Harry McGrath of the Kingston, PA law firm of Fellerman & Ciarimboli for bringing this case to my attention.

No Respondeat Superior Liability For Criminal Acts of Employees

In its recent decision in the case of Spitsin v. WGM Transportation, 2014 Pa.Super. 162 (Pa. Super. July 29, 2014 Ford Elliott, P.J.E., Lazarus, J., Wecht, J.) (Op. by Wecht, J.), the Pennsylvania Superior Court agreed that an employer was not liable for a cab driver’s assault of a non-paying passenger where the record revealed that the employee used excess and dangerous force in an effort to collect the fare.  

According to the Opinion, after a taxi ride, the Plaintiff attempted to flee and avoid paying a fare after a taxi ride when he was restrained by a bystander and then kicked and punched by the taxi driver.   The Plaintiff was transported to a nearby hospital where a diagnostic study revealed a hairline fracture of his jaw.  

The Plaintiff sued WGM Transportation, the employer of the taxi driver, on a theory of respondeat superior. 

The employer filed Preliminary Objections arguing that an employer was not liable for an assault and battery by an employee upon another as such conduct was beyond the scope of the employment.  The employer also noted that the employee committed an act involving the use of force which was excessive and so dangerous as to leave the employer totally without responsibility.

The trial court sustained the Preliminary Objections of the employer and dismissed the Plaintiff’s respondeat superior claim.   The Superior Court affirmed it.

Judge David N. Wecht
Pennsylvania Superior Court

In his Superior Court Opinion, Judge David N. Wecht reiterated the law of the doctrine of respondeat superior that an employer may indeed be liable for the acts of its employees committed during the course of and within the scope of employment.   The court noted, however, that where an employee commits an act involving the use of force which was excessive and so dangerous as to be totally without responsibility or reason, the employer was not responsible under such circumstances.  

According to the record, a bystander had restrained the Plaintiff as he attempted to flee and there was nothing in the record indicating that the bystander’s restraint was insufficient to keep the Plaintiff at bay until the fare could be collected by the taxi driver or until the police could be summoned to take control.  

The court agreed that, when the taxi driver punched and kicked the Plaintiff while he was being held on the ground and unable to defend himself, the taxi driver departed from the scope of his employment in that there is no evidence that the employer instructed its taxi drivers to attack restrained and vulnerable passengers who refuse to pay their fares.  

The Superior Court ultimately ruled that the trial court was correct in finding, as a matter of law, that the Plaintiff had failed to state a claim upon which relief could be granted for vicarious liability against the employer under the circumstances presented.

Anyone wishing to read this Opinion in the Spitsin case may click this LINK  

It is noted that Pennsylvania Superior Court Judge David N. Wecht will be a featured presenter at the upcoming Tort Talk Expo 2014 set to take place on September 26, 2014 at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania. 


Click HERE to view the Agenda for the CLE seminar and, if interested in attending, please click HERE to Register online, or contact me at dancummins@cmcast.net.

 

Pennsylvania Supreme Court Addresses Scope of Statutory Employer Immunity

In its recent decision in the case of Patton v. Worthington Associates, Inc., 2014 WL 1236499 (Pa. March 26, 2014) (Opinion by Saylor, J.) (concurring Opinion followed by Baer, J.), the Pennsylvania Supreme Court held that neither a subcontractor nor a subcontractor’s sole shareholder was an “independent contractor” relative to the statutory employer provisions of the Workers’ Compensation Act. 

 

By way of background, a subcontractor in this matter brought a negligence action against the general contractor to recover for injuries alleged sustained at a work site from a 14 foot fall.  

 

After a trial in the Bucks County Court of Common Pleas, the trial court entered judgment on the verdict in favor of the Plaintiffs and denied the general contractor’s Motion for Judgment Notwithstanding the Verdict (JNOV).   The general contractor appealed the Supreme Court ruled as noted above.  

 

The Pennsylvania Supreme Court noted that, pursuant to the Workers’ Compensation Act, general contractors are deemed to bear secondary liability for the payment of workers’ compensation benefits to injured workers employed by their subcontractors and, in this sense, general contractors are considered to be “Statutory Employers” relative to workers’ compensation liability, even though they are not common-law employers of the subcontractor’s employees.

 

Accordingly, the court went on to note that such Statutory Employers, including general contractors, could enjoy a measure of immunity from liability under the Workers’ Compensation Act for tort claims pertaining to work-related injuries.  

 

The Supreme Court went on to note that the governing law should have been applied by the trial court at the summary judgment stage before this case ever reached a trial in which the jury ruled in favor of the Plaintiff.  

 

In light of this decision in the case of Patton v. Worthington Associates, many general contractor and subcontractor Defendants in construction cases where a construction worker has been injured on the job have been amending their Answer and New Matter, or in federal court, their Answer and Affirmative Defenses, to include the statutory employer defense in order to preserve that defense to be raised at the Motion for Summary Judgment stage of the case.  

 

Anyone wishing to review a copy of Justice Saylor's majority opinion in the case of Patton v. Worthington Associates, Inc., may click this LINK.  Justice Baer's concurring opinion may be viewed HERE.