J-S46033-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOSEPH TUFARO AND LISA TUFARO,             :          IN THE SUPERIOR COURT OF
                                           :                PENNSYLVANIA
                  Appellants               :
                                           :
            v.                             :
                                           :
MILESTONE DEVELOPERS, INC.,                :
                                           :
                  Appellee                 :              No. 280 EDA 2015

            Appeal from the Order entered on December 17, 2014
              in the Court of Common Pleas of Carbon County,
                        Civil Division, No. 2009-3914

BEFORE: MUNDY, OLSON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                            FILED AUGUST 07, 2015

      Joseph Tufaro (“Joseph”) and Lisa Tufaro (collectively “the Tufaros”)

appeal from the Order granting summary judgment in favor of Milestone

Developers, Inc. (“Milestone”). We affirm.

      On January 29, 2008, Joseph sustained a back injury and nerve

damage to his right leg when he slipped and fell on snow and ice, which had

accumulated at a residential construction site.        Joseph was working as a

laborer and foam technician for Kal’s Insulation, Inc. (“Kal’s). At the time of

the incident, Milestone was the general contractor for Donald and Barbara

Knabb (“the Knabbs”) regarding the construction of a new home. Milestone

subcontracted with Kal’s to install the insulation.

      The Tufaros filed a Complaint against Milestone on December 28,

2009, asserting claims of negligence and loss of consortium.       On June 6,
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2014, Milestone filed a Motion for summary judgment, arguing that it was

immune from tort liability as a statutory employer of Joseph. The trial court

granted the Motion. The Tufaros thereafter filed a timely Notice of Appeal.

        On appeal, the Tufaros raise the following question for our review:

        Whether the Order of the trial court granting summary judgment
        in favor of [Milestone] must be reversed where genuine issues of
        material fact existed as to whether [Milestone] was the statutory
        employer of [Joseph,] and therefore entitled to immunity from
        suit pursuant to the terms of the Pennsylvania[] Workers’
        Compensation Act [(“Act”)1]?

Brief for Appellants at 5 (footnote added).

               Our scope of review of a trial court’s order granting or
        denying summary judgment is plenary. We may not disturb the
        order of the trial court unless it is established that the court
        committed an error of law or abused its discretion. In evaluating
        the trial court’s decision to enter summary judgment, we focus
        on the legal standard articulated in the summary judgment rule.
        Pa.R.C.P. 1035.2. The rule states that where there is no genuine
        issue of material fact and the moving party is entitled to relief as
        a matter of law, summary judgment may be entered. Where the
        non-moving party bears the burden of proof on an issue, he may
        not merely rely on his pleadings or answers in order to survive
        summary judgment. Failure of a non-moving party to adduce
        sufficient evidence on an issue essential to his case and on which
        he bears the burden of proof establishes the entitlement of the
        moving party to judgment as a matter of law. Lastly, we will
        review 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.

Vazquez v. CHS Prof’l Practice, P.C., 39 A.3d 395, 397 (Pa. Super. 2012)

(quotation marks, brackets, and some citations omitted).




1
    See 77 P.S. §§ 1-1041.1, 2501-2626.


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       The Tufaros argue that a genuine issue of material fact existed as to

whether Milestone was the statutory employer of Joseph.               Brief for

Appellants at 14, 15-16.     The Tufaros assert that Milestone was not the

statutory employer of Tufaro and, therefore would not be immune from tort

liability.   Id. at 9.   The Tufaros argue that Kal’s was an independent

contractor for Milestone, and that Kal’s business was responsible for

providing workers’ compensation insurance to its employees for all the jobs

that Kal’s worked for Milestone. Id. at 15. The Tufaros contend that there

is a genuine issue of fact as to the status of the relationship between Kal’s

and Milestone, which required the denial of summary judgment. Id.

             Pursuant to section 302(b) of the [Act], general
       contractors bear secondary liability for the payment of workers’
       compensation benefits to injured workers employed by their
       subcontractors. In this sense, general contractors have been
       denominated     “statutory-employers”     relative  to   workers’
       compensation liability, although they are not the common-law
       employers of subcontractor employees.            The Legislature’s
       purpose in imposing this status upon general contractors was
       remedial, as it wished to ensure payment of workers’
       compensation benefits in the event of defaults by primarily liable
       subcontractors.

             Concomitant with the treatment of traditional employers,
       statutory employers under [s]ection 302(b) enjoy a measure of
       immunity from liability in tort pertaining to work-related injuries
       for which they bear secondary liability under the Act. This 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
       payments.

Sheard v. J.J. Deluca Co., 92 A.3d 68, 74-75 (Pa. Super. 2014) (citations

and footnote omitted).


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      The Act defines a “statutory employer” as

      [a]n employer who permits the entry upon premises occupied by
      him or under his control of a laborer or an assistant hired by an
      employee or contractor, for the performance upon such premises
      of a part of the employer’s regular business entrusted to such
      employee or contractor, shall be liable to such laborer or
      assistant in the same manner and to the same extent as to his
      own employee.

77 P.S. § 52. The following five-factor test is used to determine whether a

general contractor is a statutory employer:

      (1)    A general contractor who is under contract with an owner
             or one in the position of the owner;

      (2)    A premises occupied by or under the control of such
             general contractor;

      (3)    A subcontractor made by such general contractor;

      (4)    Part of the general contractor’s regular business entrusted
             to such subcontractor; and

      (5)    The injured party is an employee of such subcontractor.

McDonald v. Levinson Steel Co., 153 A. 424, 426 (Pa. 1930).                “As a

general rule, absent any concession, the status of an individual (e.g. ‘general

contractor,’ ‘independent contractor,’ ‘subcontractor’) presents a question of

law. Sheard, 92 A.3d at 75.

      The evidence viewed in the light most favorable to the non-moving

party established that Milestone was serving as the general contractor for

the Knabbs for the construction of a house.        N.T., 8/20/14, at 11-12.

Milestone occupied and controlled the residence at the time of Joseph’s

injuries.   Id.   Milestone, which had entrusted Kal’s with insulation on a


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number of Milestone’s other jobs, entered into a subcontract with Kal’s to

install insulation in the Knabbs’ house.    N.T., 10/9/14 at 8-9, 12-13.2

Kalimootoo testified that Joseph was an employee of Kal’s.        Id. at 26.

Kalimootoo also testified that Kal’s was a subcontractor of Milestone. Id. at

8-9; see also N.T., 8/20/14, at 15 (wherein the Knabbs stated that they

had no contact with Kal’s).

      Here, Milestone met all the factors of the McDonald test, and

Milestone is the statutory employer of Joseph as a matter of law.        See




2
  Leslie Kalimootoo (“Kalimootoo”), the owner of Kal’s, stated that Kal’s
subcontracted with Milestone on a number of different jobs where Milestone
was the general contractor. N.T., 10/9/14, at 13. Kal’s and Milestone would
not enter into a contract for each job. Id. at 13-14. Instead, Milestone
would contact Kal’s about a job, at which point Kal’s would give Milestone an
estimate. Id. at 14-15. Then, Milestone would decide whether or not to
retain Kal’s for the job. Id.



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McDonald, 153 A. at 462; see also Sheard, 92 A.3d at 75.3 Indeed, the

evidence   established   that   Milestone    and    Kal’s   had   a   typical

contractor/subcontractor relationship. See Sheard, 92 A.3d at 75 (stating

that “a conventional relationship between a general contractor maintaining

control of a jobsite and a subcontractor implicates the statutory employer

concept relative to employees of the subcontractor working there.”)

(citations omitted); see also Patton v. Worthington Assocs., 89 A.3d

643, 649 (Pa. 2014) (stating that a business “entrusted by a general

contractor with a portion of the work ... is a subcontractor because his

contract is subordinate to and under the principal contract ... as regards to

this transaction his contract is a dependent one, wherein he agrees to do all

or a part of that which another has agreed to do.”) (emphasis and

quotations omitted). Moreover, Milestone is a statutory employer even


3
  We note that, the Tufaros rely upon Lascio v. Belcher Roofing Corp.,
704 A.2d 642 (Pa. Super. 1997) to support their claim that there is a
genuine issue of fact regarding Milestone’s statutory employer status. Brief
for Appellants at 10, 15. In Lascio, the plaintiff was injured while working
on a construction site for a sub-subcontractor and filed a negligence suit
against the general contractor. 704 A.2d at 643. The trial court granted
judgment notwithstanding the verdict to the general contractor on the basis
of the statutory employer defense. Id. This Court reversed the decision of
the trial court based on language in the contract between the general
contractor and subcontractor, which stated that any employees of any sub-
subcontractor were to be considered independent contractors “for any
purposes whatsoever.” Id. at 645. Here, Kalimootoo testified that the
contract between Kal’s and Milestone “did say that Kal’s is a sub[contractor]
or an independent [contractor]. I think [it] did have some wording in that.”
N.T., 10/9/14, at 24. Since the Tufaros have not demonstrated that the
contract included an independent contractor provision, Lascio is
inapplicable.


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though they did not make workers’ compensation payments. See Fonner

v. Shandon, Inc., 724 A.2d 903, 907 (Pa. 1999) (stating that “[a] statutory

employer who is not directly paying benefits to the injured employee of the

subcontractor [is] entitled to immunity from a common law suit.”).     Thus,

Milestone was a statutory employer of Joseph as a matter of law, and the

trial court correctly determined that Milestone is immune from tort liability

as a statutory employer.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/7/2015




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