291 A.3d 1
Pa. Super. Ct.2023Background
- Norwood Borough contracted with McCarthy Construction, Inc. to perform carpentry and roof replacement at the Norwood Public Library; McCarthy subcontracted roofing work to RRR Contractors, Inc.
- On October 25, 2016, RRR employee (roofer) Jason Yoder fell through an uncovered roof hole and suffered catastrophic injuries; he later received a workers’ compensation lump-sum settlement from RRR and tendered a resignation as an RRR employee.
- Yoder sued McCarthy in negligence; at trial the court excluded McCarthy’s statutory-employer defense and related jury questions, and a jury returned a $5,000,000 verdict for Yoder (plus delay damages = $5,590,650.69 judgment).
- McCarthy moved for JNOV/new trial, arguing it was Yoder’s statutory employer under Section 302(b) of the WCA and therefore immune from tort suit; the trial court denied post-trial relief and struck a late-filed motion; McCarthy appealed.
- The Superior Court reviewed the whole record (pre-, trial, and post-trial), concluded McCarthy met the five-part McDonald test for statutory-employer status, applied judicial estoppel based on Yoder’s workers’ compensation settlement/resignation, reversed the jury verdict, and remanded to enter judgment for McCarthy.
Issues
| Issue | Plaintiff's Argument (Yoder) | Defendant's Argument (McCarthy) | Held |
|---|---|---|---|
| Whether McCarthy is Yoder’s statutory employer under McDonald (five elements) | McCarthy failed to satisfy the McDonald elements—especially the 5th (Yoder was an independent contractor of RRR), and McCarthy was not the project general contractor | McCarthy satisfied all five McDonald elements: contract with owner, occupancy/control of premises, subcontract with RRR, roofing was part of McCarthy’s contracted work, and Yoder was RRR’s employee | Court held McCarthy met all five elements and is Yoder’s statutory employer; tort immunity applies; judgment for Yoder reversed and judgment to be entered for McCarthy |
| Whether statutory-employer defense was waived by late pleading | McCarthy waived the defense by failing to timely plead and by not presenting it at trial | The statutory-employer defense affects subject-matter jurisdiction under the WCA and is non-waivable while proceedings remain open | Court held defense is non-waivable (LeFlar); McCarthy did not waive the defense |
| Whether JNOV or new trial required because trial court barred the defense | Trial court correctly excluded defense because McCarthy hadn’t proven the elements at the time | Exclusion precluded proper adjudication; JNOV is appropriate where statutory immunity clearly applies | Court granted relief by concluding JNOV was required (entered judgment for McCarthy) and reversed the verdict; new trial unnecessary |
| Whether judicial estoppel barred Yoder from claiming independent-contractor status after obtaining workers’ comp benefits | Documents settling workers’ comp were not in the trial record and cannot be used to estop Yoder | Yoder successfully maintained employee status in workers’ comp proceedings (Compromise & Release and resignation), so he is estopped from asserting independent-contractor status now | Court applied judicial estoppel, treating Yoder as RRR employee and thus satisfying the 5th McDonald element |
Key Cases Cited
- McDonald v. Levinson Steel Co., 153 A. 424 (Pa. 1930) (sets five‑part test for statutory‑employer status)
- Patton v. Worthington Associates, Inc., 89 A.3d 643 (Pa. 2014) (statutory employer status under Section 302 confers tort immunity)
- Sheard v. J.J. DeLuca Co., Inc., 92 A.3d 68 (Pa. Super. 2014) (statutory‑employer immunity is non‑waivable and may be raised while proceedings are open)
- LeFlar v. Gulf Creek Indus. Park No. 2, 515 A.2d 875 (Pa. 1986) (WCA removes common pleas court jurisdiction over common‑law employer negligence claims; immunity is non‑waivable)
- Universal Am‑Can, Ltd. v. W.C.A.B. (Minteer), 762 A.2d 328 (Pa. 2000) (workers’ compensation benefits require an employer/employee relationship; independent contractors are not eligible)
- Braun v. Target Corp., 983 A.2d 752 (Pa. Super. 2009) (contractor need not be the project’s general contractor to qualify as statutory employer)