J-A05012-20


                                   2020 PA Super 189

    ERIC DOBRANSKY                             :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    EQT PRODUCTION COMPANY AND                 :   No. 900 WDA 2019
    HALLIBURTON ENERGY SERVICES,               :
    INC.                                       :

                Appeal from the Judgment Entered May 22, 2019
     In the Court of Common Pleas of Greene County Civil Division at No(s):
                                 AD 142-2014


BEFORE:      BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*

OPINION BY BENDER, P.J.E.:                             FILED AUGUST 11, 2020

        Appellant, Eric Dobransky, appeals from the trial court’s May 22, 2019

order granting summary judgment in favor of Appellees, EQT Production

Company and Halliburton Energy Services, Inc. We vacate the trial court’s

order and remand.

        The trial court provided the following background:
        [Mr.] Dobransky seeks liability against [Appellees] for injuries he
        alleges he sustained from his exposure to barite on June 19, 2012,
        at the Scotts Run well site. Barite is a weighing agent to increase
        densities of industrial drilling fluids.[1]

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 Barite is one of several components used to make “drilling mud.” See
Appellees’ Brief at 7 (“When a company drills a natural-gas well, it uses a
substance called ‘drilling mud’ to keep the bore[]hole ‘open and stable’ and to
J-A05012-20


       [Mr. Dobransky] was employed as a truck driver by Northwest
       Concrete Products, Inc., d.b.a. Northwest Logistics. In that
       capacity, [Mr. Dobransky] was delivering a truckload of barite to
       the EQT Production Company[-]owned well site in Greene County
       and was depositing the truckload of barite into barite storage
       tanks placed, owned, and/or maintained by Halliburton Energy
       Services, Inc.

       [Mr. Dobransky] alleges that, because of [Appellees’] failure to
       operate the well site in a safe manner, he was exposed to barite
       when the cap of a storage tank blew off releasing barite into his
       face and onto his person.        Among other deficiencies, [Mr.
       Dobransky] alleges the tank was missing a ball valve and pressure
       gauge.

       [Appellees] filed [a] [m]otion for [s]ummary [j]udgment[,]
       arguing that they were [Mr.] Dobransky’s statutory employers
       [under Section 302(a) of the Workers’ Compensation Act (“the
       Act”), codified at 77 P.S. § 461,] and, as such, are immune from
       tort liability.

Trial Court Opinion (TCO), 5/22/19, at 2-3.

       The trial court granted Appellees’ motion for summary judgment based

on the statutory employer defense.2            Mr. Dobransky subsequently filed a

timely notice of appeal. The trial court then directed Mr. Dobransky to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b), and he timely complied.

____________________________________________


carry material out of the bore[]hole while drilling is occurring. Barite is a
necessary ingredient of drilling mud in that it is a weighting material that helps
the mud ‘push back against’ the rock formation through which the bore[]hole
is being drilled.”) (footnotes omitted); Mr. Dobransky’s Brief at 7 (noting that
barite “is one of several components of the ‘mud,’’’ and that the other
components are “water, grounded clay, polymer, filtration control agent, and
alkalinity control agents”) (citation omitted).

2 In the trial court’s opinion and order granting Appellees’ motion for summary
judgment, the trial court did not address any of the alternative grounds for
summary judgment raised by Appellees in their motion.

                                           -2-
J-A05012-20



      Presently, Mr. Dobransky raises a single issue for our review:
      Is a person who merely drives a truck to deliver a single raw
      material to a well site nevertheless within the specialized definition
      of statutory employee in [Section] 302(a) of the Workers[’]
      Compensation Act as one whose work consists of “the removal,
      excavation, or drilling of soil, rock, or minerals” where (1) the raw
      material at issue is only one of several components of a fluid that
      is poured into an empty bore hole to maintain the integrity of the
      bore and (2) the purported statutory employer neither develops
      the formula for the fluid, mixes the components of the fluid, nor
      even pours the fluid into the empty hole?

Mr. Dobransky’s Brief at 3 (unnecessary emphasis omitted).

      We apply the following standard of review to an order granting a motion

for summary judgment:
      We view the record in the light most favorable to the non-moving
      party, and all doubts as to the existence of a genuine issue of
      material fact must be resolved against the moving party. Only
      where there is no genuine issue as to any material fact and it is
      clear that the moving party is entitled to a judgment as a matter
      of law will summary judgment be entered. Our scope of review of
      a trial court’s order granting or denying summary judgment is
      plenary, and our standard of review is clear: the trial court’s order
      will be reversed only where it is established that the court
      committed an error of law or abused its discretion.

Doman v. Atlas America, Inc., 150 A.3d 103, 105 (Pa. Super. 2016)

(citation omitted).

      In granting summary judgment to Appellees, the trial court wholly relied

on Doman, which it found to be “on-point both legally and factually.” TCO at

3. The Doman Court summarized the facts before it as follows:
      In September 2006, Atlas entered into an oil and gas lease with
      Frieda Springer (“Springer”), for the purpose of drilling, operating,
      producing, and removing oil and gas from her property in Greene
      County. Atlas subsequently entered into a Drilling Bid Proposal
      and Footage Drilling Contract (“Footage Drilling Contract”) with


                                      -3-
J-A05012-20


      Gene D. Yost & Son, Inc. (“Yost”), a drilling contractor, to drill
      multiple wells in Fayette County and Greene County, including
      Well No. 13 on Springer’s property (“the Springer Well”).2 Under
      the terms of the Footage Drilling Contract, Yost was required to
      provide the necessary equipment and labor, and to drill the wells
      to the contract footage depth, as specified by Atlas.
         2 The Springer Well is a shallow, low-pressure vertical well
         drilled into the Upper Devonian Shale formation. Such wells
         commonly involve footage contracts with well-drilling
         companies, whereby the oil and gas lessee pays the drilling
         company a per-foot rate to drill to a specified depth, referred
         to as the contract footage depth. When drilling is complete,
         the contracted drilling company is required to remove the
         drilling pipe, “shut in” the well, and remove the drilling
         equipment so the lessee can move into the production
         stage.

      Yost began drilling at the Springer Well site in November 2007,
      and the well reached the contract footage depth on December 2,
      2007. Yost personnel worked overnight to remove the drilling pipe
      from the Springer Well and “shut in” the well, leaving the gas in
      the well bore. The Tulsa Valve, which is situated on top of the
      well head and is used to contain the gas within the well, was closed
      at this time. Rock A. Doman (“Doman”) and another Yost
      employee began removing the blow-out preventer flange, which
      was attached to the Tulsa Valve, from beneath the rig platform.
      While the men unscrewed the flange from the Tulsa Valve
      assembly, they inadvertently loosened the pressurized piping
      below the Tulsa Valve.       The Tulsa Valve and the blow-out
      preventer flange detached from the well head and struck Doman.
      Doman was thrown approximately 60 feet above ground level
      before landing about 30 to 40 feet from the well rig, and was
      fatally injured.

      Yost paid workers’ compensation benefits to Doman’s fiancé, for
      the benefit of her minor child.

Id. at 104 (footnote omitted).

      Doman’s estate subsequently initiated a wrongful death and survival

action against Atlas, asserting, inter alia, various theories of negligence. Id.

at 105. Atlas filed a motion for summary judgment, alleging that it qualified


                                      -4-
J-A05012-20



as a statutory employer under Section 302(a) of the Act and, therefore, was

immune from tort liability. Id. The trial court granted summary judgment in

favor of Atlas, and the estate appealed. Id.

     On appeal, this Court noted that “[a] contractor may be deemed a

statutory employer if the requirements of … Section 302(a) … have been

satisfied.” Id. at 106 (citations omitted). It recognized that Section 302(a)

provides:

     § 461. Coverage of employees                  of   subcontractor;
     subcontractor defined; exception.

     A contractor who subcontracts all or any part of a contract and his
     insurer shall be liable for the payment of compensation to the
     employes of the subcontractor unless the subcontractor primarily
     liable for the payment of such compensation has secured its
     payment as provided for in this act. Any contractor or his insurer
     who shall become liable hereunder for such compensation may
     recover the amount thereof paid and any necessary expenses
     from the subcontractor primarily liable therefor.

     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 who contracts for the removal of timber from such
     land.




                                     -5-
J-A05012-20



Id. (quoting 77 P.S. § 461; emphasis in opinion).3 This Court then observed

that statutory employers enjoy immunity from tort liability, and acknowledged

that “Section 302(a) does not require the primary contractor to occupy or

control a worksite in order to be deemed the statutory employer of the

subcontractor’s employees.” Id. at 107 (citation omitted). It then discerned:
       [B]ased upon the plain language of the statute, we conclude that
       the trial court correctly applied Section 302(a) to determine that
       Atlas is Doman’s statutory employer.         Because Doman was
       employed by Yost to perform work involving the “removal,
       excavation or drilling of … minerals” (natural gas), the facts of this
       case implicate the specialized definition found in Section 302(a).
       Atlas, as the primary contractor that subcontracted the drilling
       process at the Springer Well, is Doman’s statutory employer as a
       matter of law. Consequently, Atlas is entitled to tort immunity,
       pursuant to Section 203 [of the Act, codified at 77 P.S. § 52],
       regardless of the fact that Yost already had paid Doman’s worker’s
       compensation benefits.          See Patton v. Worthington
       Associates, Inc., … 89 A.3d 643, 645 ([Pa.] 2014) (holding that
       “[the Supreme] Court has previously determined that this
       immunity pertains by virtue of statutory[ ] employer status alone,
       such that it is accorded even where the statutory employer has
       not been required to make any actual benefit payments[]”); see
       also Fonner v. Shandon, Inc., … 724 A.2d 903, 906-08 ([Pa.]
       1999) (stating that the 1974 amendments to the Act did not
____________________________________________


3 The Doman Court noted that our Supreme Court has held that “neither the
McDonald[ v. Levinson Steel Co., 153 A. 424 (Pa. 1930)] test, nor a per se
owner exclusion applies under Section 302(a)….” Doman, 150 A.3d at 108
(quoting Six L’s Packing Co. v. Workmen’s Comp. Appeal Bd., 44 A.3d
1148, 1159 (Pa. 2012)); see also id. at 105 n.5 (“In McDonald, the Supreme
Court set forth the following five elements necessary to create the statutory
employer relationship: ‘(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 [e]ntrusted to such subcontractor[;]
[and] (5) an employee of such subcontractor.’”) (quoting McDonald, 153 A.
at 426).



                                           -6-
J-A05012-20


       change a statutory employer’s entitlement to tort immunity even
       if the direct employer paid benefits for a worker’s injuries under
       the Act). Based upon the foregoing, we are constrained by the
       terms of the Act and the relevant case law to affirm the trial court’s
       [o]rder granting summary judgment in favor of Atlas.

Id. at 109 (footnote and some internal citations omitted).4

____________________________________________


4 Despite granting summary judgment in favor of Atlas, the Doman Court
went on to voice its dissatisfaction with the result it was constrained to reach,
conveying:
       [T]here have been prior calls to the legislature to reconsider
       Pennsylvania’s statutory scheme. See Patton, 89 A.3d at 650
       (Baer, J., concurring) (urging the legislature “to eliminate the
       doctrine, so that it no longer serves as blanket immunity for
       general contractors, thwarting a victim’s right to recover from a
       tortfeasor”); see also Fonner, 724 A.2d at 908 (Nigro, J.,
       dissenting) (stating that “[c]ommon sense and logic dictate that
       the general contractor should not reap the benefits of civil liability
       [immunity] unless it undertakes responsibility of compensation
       coverage[]”). We echo those calls and agree that, following the
       1974 amendments to the Act, the statutory employer doctrine no
       longer serves the remedial purpose of the Act. Traditionally, the
       secondary liability imposed on statutory employers was meant to
       ensure that an injured worker will be afforded payment of
       benefits, even in the event of default by his primary employer.
       See Patton, 89 A.3d at 645; see also Six L’s Packing, 44 A.3d
       at 1158-59 (stating that “the Legislature meant to require persons
       (including entities) contracting with others … to assure that the
       employees of those others are covered by workers’ compensation
       insurance, on pain of assuming secondary liability for benefits
       payment upon a default[]”). The tort immunity associated with
       the imposition of secondary liability “reflects the historical quid
       pro quo between an employer and employee whereby the
       employer assumes liability without fault for a work-related
       injury….” Tooey v. AK Steel Corp., … 81 A.3d 851, 860 ([Pa.]
       2013) (citation omitted). However, the Act was amended in 1974
       to require that all employers provide workers’ compensation
       coverage. See Fonner, 724 A.2d at 905 (noting that, prior to
       1974, the Act contained “elective compensation” language).
       Notwithstanding, the 1974 amendments allowed general



                                           -7-
J-A05012-20



       Turning to the case sub judice, the trial court — relying on Doman —

reasoned:
       [Mr.] Dobransky initially requests this [c]ourt to find that he was
       not involved in work related to the “removal, excavation or drilling
       of ... minerals.” The [c]ourt cannot find as such, instead finding
       that [Mr.] Dobransky’s work was pursuant to a contract to have
       work performed consisting of the removal, excavation or drilling
       of minerals. 77 P.S. § 461.

       Halliburton worked on the EQT well[]site pursuant to a master
       services agreement which contracted Halliburton to perform tasks
       including drilling. Northwest Logistics was contracted through
       Halliburton to provide transportation services. Under the above[-
       ]recited Doman analysis, Section 302(a) applies. Halliburton is
       accordingly [Mr. Dobransky’s] statutory employer.

       Vertical privity extends the statutory employer immunity to EQT
       since EQT had a contract with Halliburton and Halliburton had
       subcontracted services to Northwest Logistics, the direct employer
       of Dobransky.

TCO at 6.



____________________________________________


       contractors to remain insulated from tort liability, despite never
       being required to provide workers’ compensation benefits to
       injured employees of subcontractors, and created a windfall
       immunity shield.     Thus, “the mandatory nature of workers’
       compensation has rendered the statutory employer doctrine
       obsolete[,] … [and] adversely impact[s] worker safety by
       eliminating the traditional consequences (money damages) when
       a general contractor’s negligence harms a subcontractor’s
       employee.”     See Patton, 89 A.3d at 650-51 (Baer, J.,
       concurring); see also Travaglia v. C.H. Schwertner & Son,
       Inc., … 570 A.2d 513, 518 ([Pa. Super.] 1989) (“Section 203 of
       the [ ] Act, which was designed to extend benefits to workers,
       should not be casually converted into a shield behind which
       negligent employe[r]s may seek refuge.”).

Doman, 150 A.3d at 109-10 (some brackets added).


                                           -8-
J-A05012-20



       On appeal, Mr. Dobransky argues that “[a] person who merely drives a

truck to deliver a single raw material to a well site is not a person whose work

consists of ‘the removal, excavation, or drilling of soil, rock, or minerals’ within

[Section] 302(a) of the … Act.”            Mr. Dobransky’s Brief at 10 (emphasis

omitted). He contends that Doman is distinguishable, as “[t]here was never

any question that the Yost employee … who died in the explosion at the Atlas

drill site was involved in work that consisted of ‘drilling,’ and thus was a

statutory employee of Atlas. This is because Atlas engaged Yost to drill wells,

and [Doman] was a Yost employee who died during the final stages of the

actual drilling process.” Id. at 12. Therefore, he asserts that Doman “is no

basis per se for the trial court to have held that [the mere delivery of] one of

several raw materials that are combined at a natural gas well to create a fluid

that is thereafter poured down an empty bore hole to maintain the integrity

of the bore constitutes the actual ‘removal’ of natural gas, ‘excavation’ of

natural gas, or ‘drilling’ of natural gas.” Id. at 11.

       In response, Appellees maintain that,
       Mr. Dobransky was involved in transporting and loading a product
       into tanks at the well[]site that was contemporaneously used in
       the ‘removal, excavation, or drilling’ for natural gas.[5]
       [Halliburton] worked on the EQT well[]site pursuant to a master
____________________________________________


5 On the day in question, Appellees state that Mr. Dobransky, after filling the
first barite tank without incident, “alleged that, on request from a [Halliburton]
employee, he waited approximately a half hour to fill the second tank so that
the drilling team could contemporaneously use the barite he had just
provided.” Appellees’ Brief at 10 (footnote omitted). Mr. Dobransky avers
that he sustained his injuries while filling the second tank. Id. at 11; Mr.
Dobransky’s Brief at 8.

                                           -9-
J-A05012-20


      services agreement between the two companies by which
      [Halliburton] performed a variety of tasks related to, among other
      things, drilling and removal of natural gas. [Halliburton] contracts
      with Mr. Dobransky’s employer, Northwest [Logistics], for
      transportation and product-unloading services generally, and that
      contract included the work Mr. Dobransky was performing when
      he was injured. Accordingly, [Halliburton] was “[a] contractor
      who subcontract[ed] all or part of a contract” to Mr. Dobransky’s
      employer. Thus, under Doman, Section 302(a) applies.

Appellees’ Brief at 18-19 (footnotes omitted).

      Looking at the relevant language of Section 302(a), we determine that

the trial court erred in granting summary judgment in favor of Appellees on

this basis. Section 302(a) sets forth that “a person who contracts with another

(1) to have work performed consisting of (i) the removal, excavation or drilling

of soil, rock or minerals … shall be deemed a contractor, and such other person

a subcontractor.” 77 P.S. § 461. Halliburton did not contract with Northwest

Logistics to have work performed consisting of the removal, excavation or

drilling of soil, rock or minerals; instead, Appellees themselves state that

“[Halliburton] contract[ed] with Mr. Dobransky’s employer, Northwest

[Logistics],   for   transportation     and    product-unloading        services

generally….” Appellees’ Brief at 19 (emphasis added; footnote omitted); see

also id. at 6 (“One of [Halliburton’s] contractual responsibilities was to deliver

and load a substance known as barite at the well[]site. [Halliburton] in turn

subcontracted those delivery and unloading duties to Northwest [Logistics]

pursuant to an agreement between the two companies.”) (footnotes omitted);

TCO at 6 (“Northwest Logistics was contracted through Halliburton to provide

transportation services.”).     Thus, Northwest Logistics did not remove,


                                      - 10 -
J-A05012-20



excavate, or drill for minerals, but simply transported and unloaded materials

to the site.     Its work did not include removing, excavating, or drilling.

Accordingly, we agree with Mr. Dobransky that the trial court’s decision is “an

unnecessary expansion of a compensation scheme that has been repeatedly

ridiculed as obsolete in light of subsequent changes to other sections of the

Workers[’] Compensation Act.”           Mr. Dobransky’s Brief at 13 (emphasis in

original). Thus, we vacate the trial court’s order granting summary judgment

in favor of Appellees based on Section 302(a) and Doman, and remand.6

       Order vacated.      Case remanded.          The Prothonotary of this Court is

hereby ordered to return the record to the trial court.                  Jurisdiction

relinquished.

       Judge Pellegrini joins this opinion.

       Judge Bowes files a dissenting opinion.




____________________________________________


6 Appellees devote a substantial portion of their brief to arguing various
alternative grounds for the entry of summary judgment in their favor, urging
us to affirm the trial court’s order on one of these other grounds. However,
the trial court did not address any of these arguments below in its opinion,
and we decline to do so in the first instance. See Branton v. Nicholas Meat,
LLC, 159 A.3d 540, 562 n.21 (Pa. Super. 2017) (observing that the trial court
did not address an issue in its opinion granting summary judgment and
therefore remanding the matter so that the trial court could rule on the issue
in the first instance).

                                          - 11 -
J-A05012-20


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2020




                          - 12 -
