         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jason and Min Lee, h/w;               :
JC Investment, Inc., and Restaurant   :
Development, LLC d/b/a Cedar Park     :
Café,                                 :
                   Appellants         :
                                      :
            v.                        :
                                      :
JPC Group, Inc.                       :

JC Investment, Inc. and Restaurant    :
Development, LLC                      :
                                      :
            v.                        :   No. 1000 C.D. 2016
                                      :   Argued: February 6, 2017
JPC Group, Inc.                       :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                FILED: March 9, 2017

            Jason and Min Lee, JC Investment, Inc., and Restaurant Development,
LLC d/b/a Cedar Park Café (Owners) appeal a decision of the Court of Common
Pleas of Philadelphia County (trial court) that denied their motion in limine to
preclude JPC Group, Inc. from presenting evidence on its asserted qualified
immunity defense.   The trial court denied Owners’ motion because it concluded
that JPC Group was acting as an employee of the City of Philadelphia (City) when
it demolished a fire-damaged building and, thus, immune from tort liability. JPC
Group counters that all of the issues Owners raise in this appeal were waived due
to their failure to file a post-trial motion. We reverse and remand.
                On December 24, 2012, a fire severely damaged a three-story building
at 4912 Baltimore Avenue in the City. To investigate the origin of the fire, the Fire
Marshal decided that either the front or back of the building had to be removed.
The inspectors from the City’s Department of Licensing and Inspection expressed
concern that the demolition work created the risk of damage to the one-story
buildings on either side of the damaged three-story building. JPC Group was
selected to do the demolition work because it had previously performed such work
for the City.
                The City has an annual Master Demolition Contract (Contract) with
JPC Group. The Contract authorizes JPC Group to submit demolition service bids
to the City “in open competition with other contractors so qualified.” Reproduced
Record at 66 (R.R. ___). The Contract provides “no guarantee that the contractor
will be awarded bids against this Contract.” R.R. 67. To be eligible to participate,
JPC Group is required to provide security in the form of a “performance bond” and
“payment bond” as prescribed by the City. R.R. 68. JPC Group is further required
to carry its own liability insurance that names the City, its officers, and employees
as additional insureds. In addition, the Contract requires JPC Group to indemnify
the City for any costs, expenses, damages, and liabilities the City might incur as a
consequence of JPC Group’s performance of demolition services.
                Richard Quigley, an inspector for the Department of Licensing and
Inspection, testified in his deposition that the City chose JPC Group to demolish
the fire-damaged building “because of the way the building was situated … a three
story building above two one story buildings. So we wanted to bring on somebody


                                           2
who had the equipment and the manpower and the experience … to deal with the
situation.” R.R. 483; Notes of Testimony, 10/24/2014, at 11-12 (N.T. __).
              In preparation for the demolition process, JPC Group laid down tires
and sheets of plywood on the roofs of the adjacent one-story buildings to protect
them from falling bricks. The company then moved its excavator onto the scene to
perform the demolition work. The Fire Marshal, who was present at the scene, set
up a “command post” at an adjacent property to watch the demolition. 1 During the
process, the sidewalls of the fire-damaged building collapsed outward, causing
damages to the adjacent one-story buildings, one of which was owned by Owners.
              Owners sued JPC Group for negligence. State Farm Fire and Casualty
Company (State Farm), acting as Owners’ subrogee, also sued. The trial court
consolidated the two matters.          The parties deposed the City’s Fire Marshal,
inspectors, Chief of Contractual Services at the Department of Licensing and
Inspection, as well as several employees of JPC Group. State Farm also prepared
an expert report to show that JPC Group acted negligently in demolishing the fire-
damaged building.
              Owners filed a motion in limine with the trial court to preclude JPC
Group from presenting evidence on its asserted defense of qualified immunity.2
On December 7, 2015, both parties appeared before the trial court to provide an


1
  The Fire Marshal testified in his deposition as to the reason he set up the command post:
“[w]e’d go in there and we’d talk about it … we say what we observed on the outer side, what
we do next, what we want to have the crane operators do. And that was just someplace to get out
of the cold….it was the warmest of the two properties.” R.R. 164; N.T., 10/24/2014, at 66. The
Fire Marshal further testified: “[the] property gave us access to the area where we could see
down into the property as the equipment operator was extracting the building beams, and stuff,
out of there. From his property we could see down into it.” R.R. 164; N.T., 10/24/2014, at 67.
2
  JPC Group did not assert the defense of immunity in its answer with new matter.


                                              3
update on the status of the case. State Farm’s counsel informed the trial court that
there had been a number of motions in limine filed, but not yet decided, and some
related to the immunity issue. The trial court acknowledged that immunity would
be the “first and foremost” issue to be decided. R.R. 600a. JPC Group’s counsel
stated that his client had responded to the motion in limine, and that “the only
question is whether [the judge] want[s] to decide [the immunity issue] on papers or
whether [she] want[s] to hear testimony from the witnesses with regard to that
issue.” R.R. 601a. Assured by JPC Group’s counsel that live testimony from the
witnesses would not be different from the depositions, the trial court decided to
rule on the immunity issue based on the depositions. The matter was continued
until December 9, 2015.
              On December 9, 2015, the parties reconvened and the trial court
denied Owners’ motion in limine. The court found that JPC Group acted as an
employee of the City on the date of the incident and, thus, was immune from
liability under what is commonly referred to as the Political Subdivision Tort
Claims Act, 42 Pa. C.S. §§8541-8542 (Tort Claims Act).3 Owners appealed to the
Superior Court, without first filing post-trial motions. The Superior Court ordered
Owners to show cause as to the basis for appellate jurisdiction. Owners filed a
response. Owners Brief at 9. The Superior Court later transferred the case to this
Court.

3
  Section 8541 of the Tort Claims Act provides: “Except as otherwise provided in this
subchapter, no local agency shall be liable for any damages on account of any injury to a person
or property caused by any act of the local agency or an employee thereof or any other person.”
42 Pa. C.S. §8541. Section 8542 provides exceptions, i.e., the circumstances where a local
agency may be found liable for damages caused by its employee. 42 Pa. C.S. §8542. The trial
court, in holding that JPC Group is immune from liability under Section 8541, did not consider
the applicability of any of the exceptions in Section 8542.


                                               4
              On appeal,4 Owners argue that the trial court erred in deciding that
JPC Group acted as an employee of the City and is immune under Section 8541 of
the Tort Claims Act, 42 Pa. C.S. §8541. Owners contend that JPC Group was an
independent contractor of the City. JPC Group responds that all of the issues that
Owners raise in this appeal were waived due to their failure to file post-trial
motions. JPC Group also argues that, in any event, the trial court did not err in
holding that it acted as an employee of the City and is thus immune from liability.
              The issues presented in this appeal are identical to those raised by
State Farm in its separately docketed appeal from the trial court’s order. State
Farm Fire and Casualty Co. v. JPC Group, Inc., ___A.3d ___ (Pa. Cmwlth., No.
916 C.D. 2016, filed March 9, 2017.) For the reasons set forth in this Court’s
opinion in State Farm, we reverse the trial court’s order and remand for further
proceedings on Owners’ negligence claim.

                                       ______________________________________
                                       MARY HANNAH LEAVITT, President Judge




4
  Whether a person acts as an independent contractor or an employee is a question of law fully
reviewable by this Court. Johnson v. Workers’ Compensation Appeal Board (Dubois Courier
Exp.), 631 A.2d 693, 696 (Pa. Cmwlth. 1993). Accordingly, our standard of review is de novo,
and the scope of review is plenary. The Medical Shoppe, Ltd. v. Wayne Memorial Hospital, 866
A.2d 455, 459 n.10 (Pa. Cmwlth. 2005).


                                              5
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jason and Min Lee, h/w;                  :
JC Investment, Inc., and Restaurant      :
Development, LLC d/b/a Cedar Park        :
Café,                                    :
                   Appellants            :
                                         :
            v.                           :
                                         :
JPC Group, Inc.                          :

JC Investment, Inc. and Restaurant       :
Development, LLC                         :
                                         :
            v.                           :   No. 1000 C.D. 2016
                                         :
JPC Group, Inc.                          :

                                     ORDER

            AND NOW, this 9th day of March, 2017, the order of the Court of
Common Pleas of Philadelphia County dated December 9, 2015, is REVERSED
and the above-captioned matter is REMANDED for further proceedings in
accordance with the attached opinion.
            Jurisdiction relinquished.

                                     ______________________________________
                                     MARY HANNAH LEAVITT, President Judge
