Brown, J. v. Gaydos, G.

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2023 PA Super 258JOHN 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: No. GD18-006991
BEFORE: PANELLA, P.J., LAZARUS, J., OLSON, J., STABILE, J., DUBOW, J.,
NICHOLS, J., McLAUGHLIN, J., McCAFFERY, J., and SULLIVAN, J.
DISSENTING OPINION BY STABILE, J.: FILED: DECEMBER 7, 2023
This is a simple case. Appellee George Gaydos is part owner of American
Concrete Solutions, LLC (“ACS”) along with Mark Raymond, his cousin.
Gaydos and Raymond bring their personally owned equipment to ACS jobs
when necessary. In this case, Gaydos’ skid loader was at an ACS jobsite when
Brown, an ACS employee, was injured while attempting to operate it. Brown
sought and received benefits under the Pennsylvania Worker’s Compensation
Act (“WCA”), 77 P.S. 1, et. seq (ACS did not dispute his claim). Brown also
sued Gaydos for negligent maintenance of the skid loader.
Gaydos claims immunity from Brown’s negligence suit under the
Pennsylvania Worker’s Compensation Act (“WCA”), 77 P.S. § 72. The
dispositive legal question under § 72 is whether Gaydos and Brown were “in
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the same employ” at the time of the accident: “If disability or death is
compensable under this act, a person shall not be liable to anyone at common
law or otherwise on account of such disability or death for any act or omission
occurring while such person was in the same employ as the person disabled
or killed, except for intentional wrong.” 77 P.S. § 72 (emphasis added). For
the reasons set forth below, I would conclude that Gaydos and Brown were in
the same employ at the time of Brown’s injury and therefore, Gaydos is
immune from Brown’s negligence suit under § 72. I believe the Majority’s
contrary conclusion rests on a fundamental misunderstanding of the legal
question before us and the facts necessary to decide it.
In Apple v. Reichert, 278 A.2d 482 (Pa. 1971), a unanimous Supreme
Court addressed the meaning of “in the same employ.” There, the plaintiff
and defendant were teachers at the same school. The plaintiff was a
passenger in a car driven by defendant, and the two were on the school’s
campus traveling from one school building to another when another car
collided with them. Traveling from one school building to another, either by
school bus or by other means, was part of the teachers’ ordinary daily routine.
Id. at 483. The trial court concluded the defendant teacher was immune from
suit under § 72.
The Supreme Court affirmed, reasoning that § 72 “clearly provides that
a co-employe is immune from liability for his negligent act resulting in injury
to his fellow employe.” Id. The plaintiff attempted to persuade the Court that
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§ 72 “applies only where the act or omission occurs within the Scope of the
sued employe's employment and that, although the appellee was acting within
the Course of her employment, she was not acting within the Scope of her
employment.” Id. at 484. The Apple Court rejected that argument:
[W]e entertain no doubt whatsoever that the injuries in this
case were caused while the appellant and appellee were ‘in the
same employ’. Both parties were proceeding from one place of
employment to another during their working day, acting in
furtherance of their duties at the time, and in a manner approved
by their employer. Since the language of the statutory provision
sets up a clear and simple test—‘the same employ’—and such
words as scope of employment and course of employment are not
used, we are not free to speculate that a more restrictive intention
was envisioned by the legislature.
Id. The Court concluded that § 72 protects “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.” Id. at 485. Because the instant case involves Brown’s allegation that
Gaydos’ negligence caused Brown’s WCA-compensable injury, I turn my
attention to the meaning of “co-employee.”
Consistent with the Apple Court’s directive to avoid a restrictive
construction of the phrase “in the same employ”, applicable precedents
construe “co-employee” broadly. In Jadosh v. Goeringer, 275 A.2d 58 (Pa.
1971), as in the instant case, the employee sued an executive of his company
after he was injured operating a machine on behalf of the company. The
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Jadosh Court held, pursuant to § 221 of the WCA, that every executive officer
of a company is an employee of that company. Thus, the executive was
immune from suit under § 72. Id. at 60. In Budzichowski v. Bell
Telephone Co. of Pa., 445 A.2d 811 (Pa. Super. 1982), the plaintiff’s
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1 Section 22 provides:
The term “employe,” as used in this act is declared to be
synonymous with servant, and includes--
All natural persons who perform services for another for a
valuable consideration, exclusive of persons subject to coverage
under the Longshore and Harbor Workers' Compensation Act (44
Stat. 1424, 33 U.S.C. § 901 et seq.) or the Merchant Marine Act
of 1920 (41 Stat. 988, 46 U.S.C. § 861 et seq.) or persons whose
employment is casual in character and not in the regular course
of the business of the employer, and exclusive of persons to whom
articles or materials are given out to be made up, cleaned,
washed, altered, ornamented, finished or repaired, or adapted for
sale in the worker’s own home, or on other premises, not under
the control or management of the employer. Except as
hereinafter provided in clause (c) of section 302 and sections 305
and 321 every executive officer of a corporation elected or
appointed in accordance with the charter and by-laws of the
corporation, except elected officers of the Commonwealth or any
of its political subdivisions, shall be an employe of the corporation.
An executive officer of a for-profit corporation or an executive
officer of a nonprofit corporation who serves voluntarily and
without remuneration may, however, elect not to be an employe
of the corporation for the purposes of this act. For purposes of
this section, an executive officer of a for-profit corporation is an
individual who has an ownership interest in the corporation, in the
case of a Subchapter S corporation as defined by the act of March
4, 1971 (P.L. 6, No. 2) known as the “Tax Reform Code of 1971,”
or an ownership interest in the corporation of at least five per
centum, in the case of a Subchapter C corporation as defined by
the Tax Reform Code of 1971.
77 P.S. § 22 (footnotes omitted).
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employer, a telephone company, also employed doctors to provide medical
care to its employees. Plaintiff sued the doctors for allegedly misdiagnosing
a work-related injury. The Budzichowski Court held that the telephone
installer and the doctors, as full-time salaried employees of the telephone
company, were in the same employ. Id. at 813. In DeLong v. Miller, 426
A.2d 1171 (Pa. Super. 1981), this Court held that the plaintiff volunteer
fireman, while directing traffic near the scene of an emergency, was in the
same employ as the defendant volunteer fireman who hit plaintiff with his
personal car while driving to the emergency scene. This Court held that,
because the defendant was on duty when he left his home in response to the
emergency call, the parties were in the same employ at the time of the
accident. Id. at 1172.
These cases make clear that persons occupying different positions within
a company’s hierarchy or performing different roles are nonetheless co-
employees who are in the same employ for purposes of § 72. Gaydos and
Brown occupied different positions within the company and were performing
different tasks at the time of Brown’s injury. Gaydos had been on site earlier
in the morning but left to pay a vendor. Brown was on site and attempting to
use the skid loader. But both were acting in furtherance of their duties for
ACS, as were the parties in Apple. To repeat, the Apple Court held that § 72
protects all co-employes in all situations where the negligence of one
causes a WCA-compensable injury to another. Apple, 278 A.2d at 484. The
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instant case falls squarely within § 72 under Apple. That is, or should be, the
end of the matter.
The Majority concludes otherwise, reasoning that “the determination of
whether Gaydos was working ‘in the course of [his] performance of duties for
the employer[,]’ ACS is a genuine issue of material fact[.]” Majority Opinion
at 22 (Majority’s emphasis). The Majority quotes from Bell v. Kater, 943
A.2d 293 (Pa. Super. 2008), where this Court wrote in dicta (the issue of § 72
immunity had been waived at an earlier stage) that parties are within the
same employ when acting “in the course of [their] performance of duties for
the employer.” Id. at 298. For this proposition, the Bell Court relied on Fern
v. Ussler, 630 A.2d 896 (Pa. Super. 1993), in which the three-judge panel
divided three ways, with one judge writing the decision, one judge concurring
in the result, and one judge dissenting. Bell and Fern are of no precedential
value for the issue presently before us, a fact the Majority seems reluctant to
acknowledge. Majority Opinion at 16-17. And whatever the Majority means
by the phrase, “in the course of [their] performance of duties for the
employer,” or whatever the Bell and Fern Courts intended by that phrase,
Apple remains the controlling authority. And the Apple Court held that “in
the same employ” is not to be construed restrictively by reliance on concepts
such as scope of employment or course of employment. Apple, 278 A.2d at
484. I believe that the dicta in Fern and Bell can be read consistently with
the Apple Court’s broad construction of the phrase, “in the same employ.”
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But to the extent those case contradict or are in tension with our Supreme
Court’s unanimous opinion in Apple, we must not follow them.
The Majority, after quoting from Bell, undertakes an analysis of the
facts that places an unduly restrictive interpretation of “in the same employ”
and thus runs afoul of Apple. The Majority lists some admissions from Gaydos
that it believes create a genuine issue of material fact. Among these are that
Gaydos owned and maintained the skid loader, that his sole proprietorship,
Gaydos Construction, paid for the insurance policy on it, and that he
occasionally loaned the skid loader to ACS for use in its work. Majority Opinion
at 22. The Majority also notes that the agreement between Gaydos and
Raymond to loan their personal tools to ACS was not in writing, and that there
was no lease agreement or transfer of money between ACS and Raymond or
Gaydos whenever one of them lent a tool or piece of equipment to ACS.
Majority Opinion at 19. Common amongst all these facts is that they have no
bearing on whether Gaydos and Brown were in the same employ under § 72
as construed by Apple. Gaydos’ ownership, maintenance, and insurance of
the skid loader, and the terms under which he lent his personal equipment to
ACS for use in ACS jobs, is beside the point. The point is that Brown’s WCA-
compensable injury happened at an ACS jobsite when Brown and Gaydos were
co-employees of ACS. Section 72 protects all co-employees in all such
situations. Apple, 278 A.2d at 484.
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The Majority also relies on Gaydos’ instruction that no one but him was
to operate the skid loader. Majority Opinion at 19, 22. But the Majority fails
to explain how the apparent lack of adherence to that instruction strips Gaydos
of § 72 immunity. The Apple Court’s description of the parties’ conduct in
that case—that both parties were acting in a manner approved by their
employer (Apple, 278 A.2d at 484)—might be relied upon to strip a defendant
of § 72 immunity if the defendant co-employee causes an injury while acting
contrary to the employer’s express instructions. But that is not the case
before us. Here, the evidence is that Gaydos and Raymond agreed that they
would supply their personal equipment for ACS jobs, and that Gaydos’ skid
loader had been used at ACS jobs on multiple occasions in the past. Thus,
Gaydos was acting in accord with ACS practice in providing his skid loader.
His instruction regarding its use has no bearing on whether he and Brown
were in the same employ.
The Majority also reaches the extraordinary conclusion that there is a
“genuine issue of material fact as to whether Gaydos actually intended to use
the skid loader at the jobsite on the morning in question.” Majority Opinion
at 20, 22. This is because Gaydos, in his deposition, “did not mention whether
he brought the skid loader to the job site that morning for a particular purpose
which related to that particular job.” Id. at 20. The Majority’s conclusion is
unsupportable under both law and fact. The law provides that we must draw
all reasonable inferences in favor of Brown, as the non-moving party against
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whom summary judgment was granted. Summers v. Certainteed Corp.,
997 A.2d 1152, 1159 (Pa. 2010). The facts, as the Majority acknowledges,
are that that Gaydos commonly (on 15 occasions between April and
September of 2016) lent his skid loader to ACS for use in its jobs, and that
Gaydos’ skid loader was at an ACS jobsite on the morning of Brown’s injury.
Yet the Majority concludes that it is reasonable to infer from these facts that
Gaydos’ skid loader was present at the ACS jobsite on the morning of Brown’s
injury for some purpose other than the job at hand. To state that conclusion
is to refute it. Furthermore, the purpose of the skid loader’s presence at the
jobsite, like the other facts discussed just above, is beside the point. It has
no bearing on whether Brown and Gaydos were within the same employ when
Brown was injured.
Finally, the Majority notes that Brown sued Gaydos in his own right as
owner of the skid loader; he did not sue Gaydos as his employer or co-
employee. Majority Opinion at 21-22. Again, this issue is beside the point.
The language in Brown’s pleading does not and cannot answer the substantive
question before us. For the reasons explained above, I believe the inescapable
conclusion is that Brown and Gaydos were within the same employ when
Brown sustained his WCA-compensable injury. If that conclusion is correct,
Gaydos is immune from Brown’s suit under § 72. Brown cannot vitiate that
immunity by ignoring it in his pleading.
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In summary, I believe the Majority’s analysis is unsupportable under
Apple, both in its apparent reliance on the dicta in Bell and Fern to support
an unduly restrictive interpretation of § 72, and in its reliance on a litany of
facts not relevant to whether Brown and Gaydos were “in the same employ”
under § 72. I would conclude that Gaydos is immune from Brown’s negligence
action under § 72 and affirm the judgment on that basis.
I respectfully dissent.
Judge Olson joins the Dissenting Opinion.
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