Brown, J. v. Gaydos, G.

J-E01001-23

2023 PA Super 258

JOHN 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(s): No. GD18-006991

BEFORE: PANELLA, P.J., LAZARUS, J., OLSON, J., STABILE, J., DUBOW, J.,
NICHOLS, J., McLAUGHLIN, J., McCAFFERY, J., and SULLIVAN, J.

OPINION BY McCAFFERY, J.: FILED: DECEMBER 7, 2023

John Brown (Brown) appeals from the order entered in the Allegheny

County Court of Common Pleas granting summary judgment in favor of

George Gaydos (Gaydos), as an individual and doing business as Gaydos

Construction, in this negligence action seeking damages for a work-related

injury Brown suffered while operating a skid loader owned by Gaydos.

Because we conclude the record contains genuine issues of material fact

concerning whether Gaydos is statutorily immune from liability under

Pennsylvania’s Workers’ Compensation Act (WCA)1 as Brown’s employer or

co-employee, we reverse the trial court’s order granting summary judgment

and remand for further proceedings.

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1 See 77 P.S. § 1, et seq.
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The relevant facts underlying this matter are summarized by the trial

court as follows:

In 2007 or 2008, . . . Gaydos began doing construction work
as a sole proprietor using the name Gaydos Construction.
[Gaydos], as a sole proprietor, did general construction work with
a focus on heating, air conditioning, concrete and masonry. For
[the] business, [Gaydos] purchased two dump trucks, a utility
truck, a skid loader and an assortment of tools. On April 9, 2016[,
Gaydos] and his cousin, Mark Raymond, signed a partnership
agreement to operate a business under the name American
Concrete Solutions[ (ACS)]. A few months later[, they] filed a
Certificate of Organization Domestic Limited Liability Company
with the Pennsylvania Department of State[.]

[Gaydos], on occasion, continued to bid on heating and air
conditioning jobs as a sole proprietor. But, all concrete and
masonry jobs were bid and performed by [ACS]. The construction
equipment and tools owned by [Gaydos], including the skid
loader, continued to be owned by him. [Gaydos] and [Raymond],
who also owned construction equipment and tools, agreed that
each of them would furnish any equipment or tools they owned
individually that were needed to perform the work on [ACS’s] jobs.
They agreed that [ACS] would not own those tools and equipment
and would not compensate either of them for use of those tools
and equipment.

[Brown] began working as an [ACS] employee on
September 1, 2016. On that day, [ACS] was preparing to pour a
flat slab of concrete inside a pole building located in the City of
Pittsburgh. [Gaydos] was at the job site “first thing in the
morning, and then . . . left to go pay a vendor for some stone.”
The skid loader owned by [Gaydos] was at the site. At
approximately 11:00 a.m., as [Brown] “attempted to enter the
subject skid loader, the arm of the skid loader caught [Brown’s]
body, crushing him between the top of the cab and the arm of the
bucket and subsequently, dropped [him] to the ground.” [Brown]
was seriously injured and thereafter made a claim for workers
compensation benefits from [ACS]. The workers compensation
claim was not disputed, and as of June of 2019, approximately
$561,000 had been paid to [Brown] for lost wages and to medical
providers for medical treatment.

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Trial Ct. Op., 7/13/21, at 1-2 (footnote, some quotation marks, & record

citations omitted).

On May 31, 2018, Brown initiated this civil action against Gaydos,

alleging his negligence in improperly maintaining the skid loader and failing to

supervise or train Brown on its use.2 On January 5, 2021, Gaydos filed a

motion for summary judgment asserting, inter alia, that Brown’s claims were

barred by the WCA.3 Brown filed both a response to Gaydos’ motion, and a

cross-motion for summary judgment, asserting Gaydos was not his employer

as defined in the WCA and, therefore, not immune from suit. See Brown’s

Response & Brief in Opposition to [Gaydos’] Motion for Summary [Judgment],

3/3/21, at 3-4; Brown’s Motion for Summary [Judgment], 3/3/21, at 5, 7-8.

Thereafter, Gaydos filed a brief in support of his motion, again asserting he

was immune from liability as Brown’s employer, or, alternatively, that he was

immune as Brown’s co-employee pursuant to Section 72 of the WCA.4 On

____________________________________________

2 Brown also named Gaydos Construction & Asphalt Paving Co. Inc. as a
separate defendant. See Brown’s Complaint, 5/31/18, at ¶ 2. However, it
was later determined that company was not a proper party to this action, and,
by consent of counsel, it was dismissed as a defendant. See Order, 9/8/21.
In addition, the trial court granted Brown’s motion to amend the caption to
include Gaydos’ sole proprietorship, Gaydos Construction. Id.

3 See 77 P.S. § 481(a) (an employer’s liability under WCA is “exclusive and in

place of any and all other liability” to injured employee).

4 See 77 P.S. § 72 (providing immunity from liability to co-employees when

injured employee receives workers’ compensation benefits and act occurred
while workers were “in the same employ”).

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March 18, 2021, the trial court entered an order denying both motions for

summary judgment. See Order, 3/18/21.

Eight days later, on March 26, 2021, Gaydos requested the trial court

amend its order to permit an interlocutory appeal by permission pursuant to

Pa.R.A.P. 1311(a); Brown opposed the request. Thereafter, on April 16, 2021,

the trial court entered the following order: (1) denying Gaydos’ request to

certify the March 18th interlocutory order as appealable; (2) granting Gaydos’

request to reconsider the cross-motions for summary judgment;5 (3) denying

Brown’s motion for summary judgment; (4) granting Gaydos’ motion for

summary judgment; and (5) entering judgment in favor of Gaydos and

against Brown. See Order, 4/16/21.

Brown filed two notices of appeal, one challenging the order denying his

motion for summary judgment (docketed at 591 WDA 2021), and the other

challenging the order granting Gaydos’ motion for summary judgment

(docketed at 592 WDA 2021).6 On August 6, 2021, this Court, by per curiam

order, quashed both appeals, concluding they were “duplicative of each other”

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5 The record does not include any written request by either party seeking
reconsideration of the court’s March 18, 2021, order. However, in an
unrelated filing, Brown averred that the trial court conducted oral argument
on Gaydos’ motion to amend on April 14, 2021, at which time it “sua sponte,
entertained re-argument and reconsidered its prior ruling on the cross-
motions for summary judgment.” Brown’s Motion to Correct Case Caption,
9/8/21, at 5. There is no transcript from the April 14th proceeding.

6 Brown later complied with the trial court’s order directing him to file a
Pa.R.A.P. 1925(b) statement of errors complained of on appeal.

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and interlocutory since “claims remained against Gaydos Construction &

Asphalt Paving Co., Inc. . . .” 591 & 592 WDA 2021, Order, 8/6/21.

On September 8, 2021, Brown requested the trial court correct the case

caption to reflect that he was suing Gaydos personally and to the extent he

was operating a sole proprietorship, Gaydos Construction. See Motion to

Correct Case Caption, 9/8/21, at 4, 6-8. Although Gaydos opposed the

motion, on September 8, 2021, the trial court entered an order which: (1)

dismissed Gaydos Construction & Asphalt Paving Co. Inc. as a defendant “[b]y

consent of counsel[;]” and (2) granted Brown’s motion to correct the caption

to reflect the defendant as “George Gaydos, Individually and t/d/b/a Gaydos

Construction.” Order, 9/8/21. This timely appeal followed.

When the matter was first before this Court, a divided three-judge panel

determined that although there was a genuine issue of material fact whether

Gaydos was Brown’s employer under Section 481(a) of the WCA, the record

supported the trial court’s grant of summary judgment in favor of Gaydos as

Brown’s co-employee under Section 72. Thus, the panel affirmed the

judgment in favor of Gaydos. Brown requested en banc review, which we

granted, and now presents the following claim:

Whether the Majority erroneously concluded Gaydos/[Gaydos
Construction] was immune from third-party liability as Brown’s co-
employee?

Brown’s Substitute Brief at 3 (some capitalization omitted).

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When considering an order granting summary judgment, we may

reverse only “if there has been an error of law or abuse of discretion.” In re

Risperdal Litigation, 223 A.3d 633, 639 (Pa. 2019).

[S]ummary judgment is appropriate only in those cases where the
record clearly demonstrates that there is no genuine issue
of material fact and that the moving party is entitled to
judgment as a matter of law. The trial court must take all facts of
record and reasonable inferences therefrom in a light most
favorable to the non-moving party. In so doing, the trial court
must resolve all doubts as to the existence of a genuine issue of
material fact against the moving party, and, thus, may only
grant summary judgment where the right to such judgment
is clear and free from all doubt.

Id. (citations & quotation marks omitted; emphasis added). See also

Pa.R.C.P. 1035.2(1). Thus, “if there is relevant evidence that a jury could

reasonably credit that would allow the non-moving party to prevail, then

judgment as a matter of law would be inappropriate.” Weaver v. Lancaster

Newspapers, Inc., 926 A.2d 899, 902 (Pa. 2007). When, as here, the issue

concerns whether there are genuine issues of material fact, we review a

question of law so that “our standard of review is de novo and our scope of

review is plenary.” Risperdal Litigation, 223 A.3d at 639 (citation omitted).

By way of background, the WCA requires employers to pay employees

who are injured on the job workers’ compensation benefits regardless of

negligence. Dobransky v. EQT Prod. Co, 273 A.3d 1133, 1134 (Pa. Super.

2022) (en banc), appeal denied, 284 A.3d 1188 (Pa. 2022).

In exchange for receiving these benefits without having to prove
negligence, employees may not sue their employers in tort for
injuries they incurred in the course of their employment. See 77

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P.S. § 481(a). In other words, with respect to work-related
injuries, the employers have immunity from tort liability.

Id.

Employer immunity is codified at Section 481, which provides, in

relevant part:

The liability of an employer under this act shall be exclusive and
in place of any and all other liability to such employes, his legal
representative, husband or wife, parents, dependents, next of kin
or anyone otherwise entitled to damages in any action at law or
otherwise on account of any injury or death . . . or occupational
disease[.]

77 P.S. § 481(a) (footnotes omitted). See also 77 P.S. § 411(1)-(2) (defining

“injury,” “personal injury,” and “injury arising in the course of his

employment”).

Nevertheless, the courts of this Commonwealth have recognized the

“dual capacity” doctrine, which provides:

[A]n employer normally shielded from tort liability by the
exclusive remedy principle may become liable in tort to his own
employee if he occupies, in addition to his capacity as employer,
a second capacity that confers on him obligations independent
of those imposed on him as an employer.

Neidert v. Charlie, 143 A.3d 384, 388 (Pa. Super. 2016) (citations omitted

& emphasis added). This narrowly-applied doctrine, however, is inapplicable

when “the employee’s compensable injury occurred while he was actually

engaged in the performance of his job.” Id. at 390 (emphasis omitted), citing

Heath v. Church’s Fried Chicken, Inc., 546 A.2d 1120, 1121 (Pa. 1988).

In addition to employer immunity, the WCA provides immunity to a

co-employee whose negligent actions caused the claimant’s injuries, so long

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as the injury occurred while the co-employee was “in the same employ” as

the injured claimant. See 77 P.S. § 72. 7 See also Apple v. Reichert, 278

A.2d 482, 485 (Pa. 1971) (explaining the WCA is “clearly phrased to protect

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.”). Under the Act, the term “co-

employee” includes managers, executives, and even those who have an

ownership interest in the employer. See 77 P.S. § 22 (defining “employe” to

include “every executive officer of a corporation elected or appointed”);

Jadosh v. Goeringer, 275 A.2d 58, 59-60 (Pa. 1971) (employer’s vice

president and general manager, who had “responsibility [for] supervision of

operations[,]” was immune from liability as co-employee when claimant was

injured at work using “defective press”); Vosburg v. Connolly, 591 A.2d

1128, 1129, 1133 (Pa. Super. 1991) (although employer’s co-owner was co-

____________________________________________

7 Section 72 provides:

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. Notably, this section provides an exception for “intentional
wrong[s]” — thus, co-employees cannot claim immunity from a civil action if
they intentionally caused the claimant’s injuries. See id. Brown does not
contend that Gaydos committed an “intentional wrong” in the present case.

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employee of claimant under WCA, they were not immune from liability

because they committed an “intentional assault”).

Preliminarily, we note that that the trial court granted summary

judgment on two bases: (1) Gaydos was immune from liability as Brown’s

employer; and (2) Gaydos was immune from liability as Brown’s co-employee.

See Trial Ct. Op. at 3-6. Although the original three-judge panel unanimously

agreed the record contained a genuine issue of material fact regarding

whether Gaydos was Brown’s employer, neither of the parties briefed that

issue on en banc review. However, because we consider it to be a threshold

matter, we first address whether the record clearly establishes Gaydos was

Brown’s employer as defined under the WCA.8

As noted supra, Section 481(a) provides that an employer’s payment

of benefits under the Act is the exclusive remedy available to an employee

injured on the job. See 77 P.S. § 481(a). The “determination regarding the

existence of an employer/employee relationship is a question of law that is

determined on the unique facts of each case.” Universal Am-Can, Ltd. v.

Workers’ Compensation Appeal Board (Minteer), 762 A.2d 328, 330-31

(Pa. 2000) (citation omitted). The WCA defines an “employer” as

____________________________________________

8 Although the order granting reargument was not limited to the co-employee

immunity claim, both parties proceeded as if that was the only issue on en
banc review. However, we decline to find that the lack of supplemental
briefing regarding the employer immunity claim waived the issue for our
review. Notably, Gaydos did not request reargument or reconsideration of
that issue when the original panel unanimously ruled in Brown’s favor.

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“synonymous with master” ─ the right to control the work of another and the

manner in which the work is performed are deemed the most relevant factors

in determining whether an employer-employee relationship exists under the

WCA. See 77 P.S. § 21; Universal Am-Can, 762 A.2d at 333; Gillingham

v. Consol Energy, Inc., 51 A.3d 841, 855 (Pa. Super. 2012) (“A master is

one who stands to another in such a relation that he not only controls the

results of the work of that other, but also may direct the manner in which such

work shall be done.”) (citation omitted).

“[I]t is the existence of the right to control that is significant,

irrespective of whether the control is actually exercised.” Universal Am-Can,

762 A.2d at 333 (emphasis omitted). Thus, an employer-employee

relationship exists under the WCA “where the alleged employer possesses the

right to select the employee; the right and power to discharge the employee;

the power to direct manner of performance; and the power to control the

employee.” Schriver v. Workers' Compensation Appeal Board

(Department of Transportation), 176 A.3d 459, 463 n.11 (Pa. Cmwlth.

2017) (citation omitted).9

Here, there is no dispute that Gaydos held an ownership interest in ACS

and had the ability to direct ACS employees, including Brown, with respect to

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9 While we are not bound by decisions of the Commonwealth Court, “such
decisions provide persuasive authority, and we may turn to our colleagues on
the Commonwealth Court for guidance when appropriate.” Petow v.
Warehime, 996 A.2d 1083, 1089 n.1 (Pa. Super. 2010) (citation omitted).

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the work to be performed and the equipment that could be used for each task.

However, as an LLC, ACS was a distinct legal entity and, therefore, Gaydos

was not personally responsible for ACS’s legal obligations, such as maintaining

workers’ compensation insurance for its employees. See Kiehl v. Action

Manufacturing Co., 535 A.2d 571, 574-75 (Pa. 1987) (parent corporation of

subsidiary that employed injured worker was not entitled to invoke WCA

employer immunity bar to worker’s suit at common law where parent had

intentionally formed a separate entity in order to shield itself from the

subsidiary’s liabilities and had distinct operational functions from the

subsidiary). Thus, Brown filed his workers’ compensation claim against ACS

rather than Gaydos or Gaydos Construction, and ACS, through its insurer, paid

workers’ compensation benefits to Brown. See Brown’s Response & Brief in

Opposition to [Gaydos’] Motion for Summary [Judgment] at Exhibits 1-2.

Moreover, Gaydos was not the exclusive owner of ACS, but rather, he

ran the company with his business partner, Raymond. As Gaydos recognized,

Raymond also had authority to act on behalf of ACS and was responsible for

ACS staffing decisions. See Deposition of George Gaydos, 9/10/20 (Gaydos

Deposition), at 51.10 Indeed, Raymond hired Brown directly without Gaydos’
____________________________________________

10 Excerpts from Gaydos’ deposition are attached as exhibits to the following

documents: (1) Brown’s Motion for Summary [Judgment], Exhibit 2, pp. 8-9,
11, 16, 18-19, 25-26, 36-38, 40-51, 82, 84-85, 91-93, 95-96, 106; (2)
Brown’s Addendum to Motion for Summary [Judgment], 3/10/21, Exhibit 1,
pp. 49, 68; (3) Gaydos’ Motion for Summary Judgment, 1/5/21, Exhibit E, pp.
8-13, 44-48; (4) Gaydos’ Reply Brief in Support of Motion for Summary
(Footnote Continued Next Page)

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participation on the date Brown sustained his injury, September 1, 2016. Id.

at 51, 59. Furthermore, the partnership agreement between Gaydos and

Raymond, upon formation of the LLC, provided that Gaydos did not have the

exclusive authority to run ACS; instead, financial and management decisions

required the unanimous approval of both ACS principals. See Brown’s Motion

for Summary [Judgment], Exhibit 4, Partnership Agreement, 4/19/16, at ¶¶

14, 21. Similarly, the profits and losses for the business were required by the

partnership agreement to be split equally between Gaydos and Raymond. Id.

at ¶ 15.

In light of the fact that Gaydos did not directly employ Brown and did

not exert exclusive control over ACS, we conclude that there remains a

genuine issue of material fact as to whether Gaydos was Brown’s “master”

under the WCA. See 77 P.S. § 21. Accordingly, the trial court erred by

granting summary judgment in favor of Gaydos on the basis of the employer

immunity set forth in Section 481(a). Cf. Lutjens v. Bayer, 3165 EDA 2018

(Pa. Super. Aug. 27, 2019) (unpub. memo at 13-15) (holding that defendant,

who was the sole member of LLC that employed the plaintiff, was also the

employer for purposes of WCA employer immunity where defendant had

exclusive authority to hire, fire, and direct the activities of the LLC’s

____________________________________________

Judgment, 3/8/21, Exhibit E-2, pp. 58-61, 110-13; and (4) Brown’s Response
& Brief in Opposition to [Gaydos’] Motion for Summary [Judgment], Exhibit 3,
pp. 17-19, 31. For ease of reference, we will simply cite to “Gaydos
Deposition” with the pertinent page number.

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employees).11 Furthermore, because there remains a triable issue of fact as

to whether Gaydos was Brown’s employer, we need not address whether the

dual capacity exception to WCA employer immunity has any application here.

See Neidert, 143 A.3d at 388 (dual capacity doctrine is exception to

employer immunity).

Turning to the primary issue before us, we reiterate that the trial court

granted summary judgment on the alternative basis that Gaydos was Brown’s

co-employee at the time of the accident, and, therefore, entitled to immunity

under Section 72 of the WCA. Relying on Bell v. Kater, 943 A.2d 293 (Pa.

Super. 2008), Brown argues the record does not support a clear finding that

he and Gaydos were “in the same employ at the time of the accident,” as

opposed to merely employed by the same employer. See Brown’s Substitute

Brief at 12-14, citing Bell, 943 A.2d at 297-98. Rather, he contends Gaydos

is liable as “the owner/operator of a negligently maintained skid loader that

he loaned to a separate business entity.” Id. at 14.

In support of his position, Brown emphasizes the following: (1) “there

is no competent evidence that Gaydos/[Gaydos Construction] operated or

supervised [the] use of the skid loader on the day in question[;]” (2) Gaydos

“expressly advised ACS workers to refrain from using the skid loader because

it was his personal equipment and he was the only person permitted to use
____________________________________________

11 Although Lutjens is an unpublished decision, we cite to it for its persuasive

value. See Pa.R.A.P. 126(b) (unpublished, non-precedential Superior Court
decisions filed after May 1, 2019 may be cited for their persuasive value).

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it[;]” (3) “Gaydos[ or Gaydos Construction] insured the skid loader under a

separate policy of insurance from ACS[;]” and (4) neither Gaydos nor Gaydos

Construction “formed a contractual relationship with or between it and ACS to

define the terms of use for the loaned equipment, or to identify the limits of

liability and/or indemnification[.]” Brown’s Substitute Brief at 16-18, 20.

Accordingly, Brown insists the record contains a genuine issue of material fact

as to whether Gaydos was Brown’s co-employee “acting in the same employ”

on the date of the accident. See id. at 19, 23.

Conversely, Gaydos argues “[t]here can be no serious debate that [he],

as the part owner of ACS, who managed ACS employees and worked alongside

them on the job site at issue[,] was a ‘co-employee’ of Brown.” Gaydos’

Supplemental Brief at 11. He postulates:

To hold otherwise would expose thousands of small business
owners, who choose to organize their businesses into a
corporation or limited liability company, personally liable to
employees for work-related injuries, even though those
employees were eligible for and received workers compensation
benefits. . . .

Id.

Moreover, Gaydos insists Brown misconstrues the holding in Bell, which,

he asserts, was based on the defendant’s waiver of the co-employee immunity

defense, and not a determination of whether the defendant was “in the same

employ” as the injured plaintiff at the time of the accident. See Gaydos

Supplemental Brief at 11-12. He contends “the facts are unrefuted . . . that

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Brown and Gaydos were ‘in the same employ’ at the time of the accident[,]”

summarizing:

Brown and Gaydos were both working for ACS at all relevant
times. Gaydos was working on the jobsite on the day of the
accident. The [skid loader] was needed to complete the job for
ACS. [Gaydos Deposition at 136-37]. Brown was employed by
ACS and was in the course and scope of his employment when he
attempted to use that machine and was injured. . . .

Id. at 14. Gaydos argues Brown’s assertion that “he is not suing Gaydos as

the co-employee/member of ACS, but as the individual owner of the skid

loader and the operator of a separate business[,]” is merely an attempt to

assert the dual capacity doctrine without explicitly referring to it. See id. at

14-15.

We begin by considering this Court’s decision in Bell, which Brown

insists is controlling, and Gaydos asserts is dicta. In that case, the defendant

was injured during a work shift for the employer and transported off-site to a

health clinic. See Bell, 943 A.2d at 295. Because they were discharged from

the clinic after their shift ended, the defendant proceeded directly to the

employee parking lot to retrieve their car. Id. The defendant was driving

with one arm in a sling when they struck the plaintiff, who was a security

supervisor also working for the employer. Id. at 295-96. Although the

plaintiff received workers’ compensation benefits from the employer, they

subsequently filed a personal injury action against the defendant, alleging the

defendant was negligent by driving too fast. Id. at 296. A jury returned a

verdict in favor of the plaintiff. Id.

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After several procedural missteps, the defendant filed a petition to strike

the judgment, which the trial court denied. See Bell, 943 A.2d at 296. The

defendant then appealed to this Court, arguing that they were entitled to co-

employee immunity under the WCA. See Bell, 943 A.2d at 296-97. A panel

of this Court, however, determined that the defendant had waived the

affirmative defense of Section 72 co-employee immunity because they did not

raise it in a responsive pleading ─ instead they asserted it for the first time in

a petition to strike the judgment filed several years after judgment was

entered in favor of the plaintiff. See Bell, 943 A.2d at 298.

Despite the fact the Bell Court determined the defendant had waived

the ultimate factual issue, it framed the relevant factors in a co-employee

immunity case as follows:

[T]he mere fact that both parties held positions of employment
with the same employer at the time of the accident is not sufficient
to show that they were in the same employ at the time of the
accident. Rather, the act or omission must occur while both
employees are in the performance of their duties as
employees. In order to establish immunity under the [WCA], the
defendant is required to establish that [their] act or omission
occurred while [they were] in the same employ as the plaintiff,
that is, in the course of [their] performance of duties for the
employer.

Id. at 297–98 (quotation marks omitted; some emphases added), citing Fern

v. Ussler, 630 A.2d 896 (Pa. Super. 1993), appeal granted, 652 A.2d 1326

(Pa. 1994).12 We note that the Bell Court cited the decision in Fern for the

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12 Although the Supreme Court apparently granted allocatur review in Fern,

there is no subsequent history concerning the outcome of that appeal.

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language at issue, and the precedential value of that case is debatable ─ Fern

was decided by a three-judge panel, with one judge concurring in the result

and one judge dissenting. See Fern, 630 A.2d at 899. Nonetheless, both the

Bell and the Fern Courts relied upon the factual circumstances presented in

the Supreme Court’s decision in Apple, supra, to support their conclusion

that, to establish co-employee immunity under Section 72, more evidence is

required than simply the fact that both the plaintiff and the defendant worked

for the same employer. Indeed, in Apple, the Court found significant the fact

that the parties were “acting in furtherance of their duties at the time [of the

negligent act], and in a manner approved by their employer.” Apple, 278

A.2d at 484.

By way of background, in Apple, the plaintiff and defendant taught at

the same school at the time the plaintiff was injured while a passenger in the

defendant’s car. See Apple, 278 A.2d at 483.

It was the practice in the school in which they taught to meet their
respective classes at one school building, take the roll and lunch
count, and thereupon the pupils were transported by school bus
to another school building where school classes were held. These
two teachers had no specific duties to perform on the school bus
and were officially authorized to proceed to the classroom site,
either by means supplied by themselves or on the school bus.
When the accident occurred they were in transit from the first to
the second school.

Id.

In addition to receiving workers’ compensation benefits from the school

board, the plaintiff filed a trespass action against the defendant. Apple, 278

A.2d at 483. The trial court, however, granted a nonsuit at the close of the

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plaintiff’s case, concluding that both the plaintiff and defendant “were acting

within the scope of their employment and in the course of their employer’s

business; that the Act was applicable; [and] that [Section 72] did provide

immunity from liability for [the defendant.]” Id. On appeal, the plaintiff

attempted to distinguish between a defendant who commits a negligent act

while acting withing the scope of their employment, from one who acts within

the course of their employment. See id. at 484. The Supreme Court rejected

that distinction, noting that Section 72 does not refer to either the course or

scope of employment. See id. Rather, the Court emphasized:

[V]iewing the evidence here, we entertain no doubt whatsoever
that the injuries in this case were caused while the [plaintiff] and
[defendant] 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. . . .

Id. (emphases added).

Therefore, in Apple, the Court determined the defendant was the

plaintiff’s co-employee for purposes of WCA immunity when, at the time of

the defendant’s negligent act, both parties were not only working for the same

employer/school, but also performing acts in furtherance of their duties ─ i.e.,

traveling from one school to another ─ in a manner approved by their

employer/school.

We conclude that in the case sub judice, there is a genuine issue of

material fact as to whether Gaydos was acting within “the same employ” as

Brown ─ that is, acting in furtherance of his duties as an employee/co-owner

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of ACS and in a manner approved by ACS ─ at the time of Brown’s injury. See

77 P.S. § 72.

First, in his deposition, Gaydos admitted he owned the skid loader in

question, and that Gaydos Construction “covered the [insurance] policy on

it[.]” Gaydos Deposition at 43. In fact, when questioned whether ACS would

insure the skid loader if it was used on an ACS job site, Gaydos admitted he

did not know, although he appeared to characterize the skid loader as a

covered “tool.”13 Id. at 42-43. Gaydos further acknowledged that “[t]he skid

loader was loaned to [ACS] for contracting jobs[,]” and stated that he

performed the maintenance on the skid loader himself. Id. at 44, 82

(emphasis added).

Moreover, although Gaydos and Raymond agreed to provide their own

tools and equipment for ACS jobs, this purported agreement was not in

writing, and Gaydos stated they did so because ACS had “no money in the

bank account to purchase the equipment.” See Gaydos Deposition at 44.

Gaydos further acknowledged that he “loaned” the skid loader to ACS for

certain jobs but stated there was “no lease” or “transfer of money.” Id. at

44, 47. He also emphasized that the ACS employees understood he was to

be “the sole operator of that piece of equipment.” Id. at 49 (emphasis

added).

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13 It is readily apparent that a skid loader does not equate to a “tool,” such as

a hammer or drill.

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Furthermore, while Gaydos claims he brought the skid loader to the job

site on the morning in question for use on that particular ACS job,14 that “fact”

is not supported by the record. Rather, in his deposition, Gaydos testified,

generally, that he had “loaned” the skid loader to ACS for concrete jobs on 15

occasions between April and September of 2016, and that on the morning of

the incident, he arrived early, and then left to “go pay a vendor.” See Gaydos

Deposition at 44-45, 60. He 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. He also stated that ACS employees were not to use the

skid loader when he was not there, and “there was other work that could have

been done” in his absence. Id. at 60. Therefore, the record contains a

genuine issue of material fact as to whether Gaydos actually intended to use

the skid loader at the job site on the morning in question. See Risperdal

Litigation, 223 A.3d at 639 (“The trial court must take all facts of record and

reasonable inferences therefrom in a light most favorable to the non-moving

party.”).

The facts presented in this case are significantly different from those in

which a co-owner or manager has been found to be immune from civil liability

____________________________________________

14 See Gaydos’ Supplemental Brief at 14. Although Gaydos cited pages 136-
137 of his deposition testimony to support this statement, those pages are
not included in any of the exhibits in the certified record. See supra n.10.
Nonetheless, we acknowledge that Gaydos’ entire deposition transcript is
included in Brown’s reproduced record, and the pages he cites do not support
this factual claim. See Brown’s Reproduced Record at 173a-174a.

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as a co-employee under the WCA. See Jadosh, 275 A.2d at 452-54

(defendant manager was entitled to co-employee immunity pursuant to WCA

where allegedly defective piece of equipment was property of employer, and

plaintiff alleged manager was negligent in simply performing duties for

employer); Adams v. U.S. Air, Inc., 652 A.2d 329, 330-31 (Pa. Super. 1994)

(defendant managers were entitled to co-employee immunity pursuant to

WCA when plaintiff’s negligence claims were based on firing following

managers’ internal investigation of plaintiff’s violation of company policy).

Here, the co-owner — Gaydos — operated a separate sole proprietorship,

that independently owned, maintained, and insured the allegedly defective

skid loader which caused Brown’s injuries. Although Gaydos may have

“loaned” the skid loader to ACS free of charge, he made it clear that none of

ACS’s employees were to operate it.

Lastly, it merits emphasis that Brown sued Gaydos, as owner of the

skid loader ─ not as his employer or co-employee ─ based upon Gaydos’s

personal failure to “exercise reasonable care in the safe, proper and lawful

maintenance of the subject skid loader[,]” including his failure to warn Brown

that “the safety mechanism[s] were not working properly[.]” See Brown’s

Complaint at ¶¶ 28-29. Contrary to Gaydos’ assertion, this argument is not

merely a dual capacity claim in disguise. See Gaydos’ Supplemental Brief at

14-15. First, the dual capacity doctrine undermines employer immunity

pursuant to Section 481(a), not co-employee immunity under Section 72. See

Neidert, 143 A.3d at 388. Second, the doctrine is not applicable when, as

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here, the employee’s injury occurred “while he was actually engaged in the

performance of his job.” Id. at 390 (citation & emphasis omitted).

Moreover, Brown does not argue that Gaydos was operating under two

personas when the accident occurred ─ that is, as his employer and as the

owner of the skid loader. See Gaydos’ Supplemental Brief at 17-18. Rather,

he contends Gaydos is liable for his injuries solely “as the owner/operator of

a negligently maintained skid loader that he loaned to a separate business

entity, ACS.” Brown’s Substitute Brief at 14. Upon our review, we conclude

that the determination of whether Gaydos was working “in the course of [his]

performance of duties for the employer[,]”15 ACS, is a genuine issue of

material fact since Gaydos admitted the following: (1) his sole proprietorship

owned, maintained, and insured the skid loader, (2) he loaned the skid loader

to ACS for use on job sites, although it is not clear if he intended to use the

skid loader at the job site in question, and (3) he was the only person

permitted to use the equipment, that he owned, maintained, and insured.

Accordingly, the trial court erred in granting summary judgment on this

basis.16
____________________________________________

15 See Bell, 943 A.2d at 298.

16 Gaydos’ proclamation that our ruling will “expose thousands of small
business owners” to personal liability for injuries to their employees even
though those employees received workers’ compensation benefits is simply
untrue. See Gaydos’ Supplemental Brief at 11. We conclude Gaydos may be
liable to Brown not as small business owner who paid for Brown’s workers’
compensation insurance, but as an individual, who brought an allegedly
defective skid loader to a job site without proper warnings or instructions.

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Therefore, because we conclude that the record contains a genuine issue

of material fact regarding both bases upon which the trial court granted

summary judgment, we reverse the order on appeal and remand for further

proceedings.

Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.

President Judge Panella, Judges Lazarus, Dubow, Nichols, McLaughlin

and Sullivan join the Opinion.

Judge Stabile files a Dissenting Opinion in which Judge Olson joins.

DATE: 12/7/2023

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