J-A28011-13

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TONI BRACKEN, ADMINISTRATRIX OF 

THE ESTATE OF WILLIAM BRACKEN, 

DECEASED

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

BURCHICK CONSTRUCTION COMPANY, 

INC., PATENT CONSTRUCTION COMPANY 

AND HARSCO CORPORATION

APPEAL OF: BURCHICK CONSTRUCTION 

COMPANY, INC. No. 1432 WDA 2012

Appeal from the Judgment Entered September 14, 2012

In the Court of Common Pleas of Allegheny County

Civil Division at No(s): GD-09-015529

BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, JJ.

DISSENTING MEMORANDUM BY OLSON, J.: FILED OCTOBER 10, 2014

I agree with the Learned Majority that the contract between Burchick 

Construction Company, Inc. (Burchick) and Kusler Masonry, Inc. (Kusler) 

does not require Kusler to indemnify Burchick for liability arising from 

Burchick’s negligence. I am compelled to dissent, however, as I cannot 

agree with the Majority’s conclusion that Kusler is obligated to indemnify 

Burchick for liability stemming from Kusler’s own negligence.

The Majority has accurately summarized the factual and procedural 

history of this case. Hence, I need not repeat that material here. Both the 

Majority and the parties examine the issues in this case by looking first at 

whether the indemnification provisions of the parties’ agreement require 

indemnity for Burchick’s negligence and then at whether the contract 
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compels indemnity for Kusler’s own negligence. I shall do the same. As I 

agree with the Majority’s first conclusion, I only briefly comment on how my 

analysis differs from that of the Majority. I devote the lion’s share of my 

discussion to the second issue in this case where my conclusion parts ways 

from that reached by the Majority.

There is no dispute regarding the principles that govern this appeal. 

For convenience and ease of reference, I recite them briefly.

The Workers' Compensation Act (the Act) is the sole and 

exclusive means of recovery against employers for all injuries 

arising out of accidents occurring within the course of 

employment. 77 P.S. § 481(a). The exclusivity provision of the 

[Act] essentially “bars tort actions flowing from any work-related 

injury.” Kline v. Arden H. Verner Co., 469 A.2d 158, 160 (Pa. 

1983). An employer may, however, consistent with the 

indemnification provision in the Act, 77 P.S. § 481(b), enter into 

an indemnity contract with a third party; the employer, then, 

may expressly assume liability for the negligence of a third party 

which results in injury to the employer's employee.

The relevant portion of the Act provides:

In the event injury or death to an employee is caused by a 

third party, then such employee, his legal representative, 

husband or wife, parents, dependents, next of kin, and 

anyone otherwise entitled to receive damages by reason 

thereof, may bring their action at law against such third 

party, but the employer, his insurance carrier, their 

servants and agents, employees, representatives 

acting on their behalf or at their request shall not be 

liable to a third party for damages, contribution, or 

indemnity in any action at law, or otherwise, unless 

liability for such damages, contributions or indemnity 

shall be expressly provided for in a written contract 

entered into by the party alleged to be liable prior to 

the date of the occurrence which gave rise to the 

action.
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77 P.S. § 481(b) (emphasis added).

Though specifically provided for in the statute, indemnification 

contracts in this context are not favored in the law and every 

intendment must be construed against the party seeking 

protection from liability or indemnification from the employer. 

See Pittsburgh Steel Co. v. Patterson–Emerson–Comstock, 

Inc., 171 A.2d 185 (Pa. 1961); Gerard v. Penn Valley 

Constructors, Inc., 495 A.2d 210 (Pa. Super. 1985); see 

generally Standard Pennsylvania Practice § 167:297. The 

language in such contracts must be clear and unequivocal; the 

parties to the contract must specifically provide that a named 

employer agrees to indemnify a named third party from liability 

for the acts of that party's negligence which cause harm to the 

named employer's employees. Bester v. Essex Crane Rental 

Corp., 619 A.2d 304 (Pa. Super. 1993). Furthermore, the 

burden of proving the applicability of an indemnification 

provision is on the party seeking relief from liability, and the 

burden increases if the party seeking such relief has drafted the 

agreement. Donaldson v. Commonwealth, Department of 

Transportation, 596 A.2d 269 (Pa. Commw. 1991).

Snare v. Ebensburg Power Co., et al., 637 A.2d 296, 298 (Pa. Super. 

1993), appeal denied, 646 A.2d 1181 (Pa. 1994).

In determining whether the parties’ contract requires Kusler to 

indemnify Burchick for Burchick’s negligence, the Majority looks to both 

Article IV and Article VI of the agreement. See Majority Memorandum at 

7-12. I disagree with this approach. In my view, Article IV addresses 

indemnity based upon Kusler’s negligence while Article VI governs 

indemnification predicated upon Burchick’s negligence. Article IV bears the 

heading “Subcontractor’s Liability” and states that, “[i]f any person 

(including employees of [Kusler]) suffers injury or death . . . as a result, in 

whole or in part, of negligence (or other act for which there is legal liability) 
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of [Kusler] . . . then [Kusler] shall assume the entire liability therefore[.]” 

Burchick Construction Company, Inc. Subcontract Agreement, 6/12/07, at 3. 

In contrast, Article VI carries the heading “Indemnification” and provides, in 

relevant part, “[Kusler] agrees to defend, indemnify and hold harmless 

[Burchick] and Owner . . . from and against any and all claims . . . damages 

and liabilities of every nature (including contractual liability “Losses”), arising 

from or relating to Work performed by [Kusler] on the Project . . . whether 

or not [Burchick] was alleged to be negligent, unless [Burchick] was alleged 

to be solely negligent.” Id. at 4. In Article IV, Kusler agrees to assume 

liability if injury or death results, in whole or in part, from its negligence. 

Under Article VI, however, Kusler agrees to indemnify Burchick against 

claims, damages, and liabilities arising from Kusler’s work on the project, 

whether or not Burchick is alleged to be negligent, so long as Burchick is not 

alleged to be solely negligent. Accordingly, the plain language of the parties’ 

contract leads me to conclude that we should look only to Article VI in 

determining whether Kusler is obligated to indemnify Burchick for Burchick’s 

negligence.

Focusing exclusively upon Article VI, I would conclude that Kusler is 

not obligated to indemnify Burchick for Burchick’s own negligence. Although 

Article VI employs the term ‘indemnify,’ Article VI does not expressly provide 

that Kusler agrees to indemnify Burchick for Burchick’s negligence that 

causes harm to Kusler’s employees. For this reason alone, I would 
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conclude that the language of Article VI is not sufficiently clear and 

unequivocal to meet the requirements of Pennsylvania law.1 See Bester, 

supra (contract must specifically provide that a named employer agrees to 

indemnify a named third party from liability for the acts of that party's 

negligence which cause harm to the named employer's employees).

I turn now to Burchick’s second claim in which I consider its right to 

indemnity under Article IV based upon Kusler’s negligence. Again, I find 

that Article IV is the contractual provision applicable to indemnification 

claims based upon Kusler’s negligence. It provides that, “[i]f any person 

(including employees of [Kusler]) suffers injury or death . . . as a result, in 

whole or in part, of negligence (or other act for which there is legal liability) 

of [Kusler] . . . then [Kusler] shall assume the entire liability therefore[.]” 

Burchick Construction Company, Inc. Subcontract Agreement, 6/12/07, at 3. 

Here, too, I find the parties’ contract to be deficient because Article IV does 

not expressly state that Kusler will indemnify Burchick for damages 

sustained by Kusler’s employees that result, in whole or in part, from 

Kusler’s negligence.

____________________________________________

1

I also agree that, pursuant to Greer v. City of Philadelphia, 795 A.2d 

376 (Pa. 2002), the “whether or not” clause in Article VI serves merely to 

clarify that any contributory negligence on the part of Burchick would not bar 

its indemnification for damages arising from Kusler’s work on the project. I 

find this discussion to be superfluous, however, given the contract’s 

deficiencies under Bester.
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I reach this conclusion because, in my view, the Act and our 

interpretive case law require the same clear and unequivocal statement of 

intent to indemnify regardless of whether the right to indemnity is 

predicated upon the negligence of the indemnitee (in this case, Burchick) or 

that of the indemnitor (here, Kusler). In Bester, we said that the language 

in an indemnification contract clearly and unequivocally establishes a right to 

indemnity where the parties to the contract “specifically provide that a 

named employer agrees to indemnify a named third party from liability for 

the acts of that party's negligence which cause harm to the named 

employer's employees.” See Bester, 619 A.2d at 309. Admittedly, this 

formulation does not refer to indemnification of a named third party against 

liability arising from the indemnitor’s negligence that harms the indemnitor’s 

employees. In Bester, however, we said that “th[e foregoing] level of 

specificity in the language employed in [a] contract of indemnification” was 

necessary to avoid the ambiguities that could arise out of the use of general 

language and that, in the absence of such language, the Act precludes the 

imposition of liability upon an employer. Id. at 308-309. We also said that 

“[t]he intent to indemnify against claims by employees of the alleged 

indemnitor [] must clearly appear.” Id. at 307. Thus, in keeping with the 

spirit of our holding in Bester, I would conclude that where an 

indemnification clause purports to indemnify a third party against liability 

arising from the indemnitor’s negligence that harms the indemnitor’s 
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employees, the language of the contract should parallel the unequivocal 

provisions prescribed in Bester.

The Majority asserts that there is a dearth of Pennsylvania law 

relevant to Burchick’s second claim. See Majority Memorandum at 15. My 

study of prior cases reveals, however, that although we have not extensively 

discussed the issue of indemnification based upon the negligence of an 

employer/indemnitor, we have never materially distinguished such claims 

from the treatment accorded indemnification predicated upon the negligence 

of an indemnitee. Our decision in Snare, supra illustrates this point. In 

that case, the plaintiff was a pipefitter employed by Sauer, Inc. (Sauer) at 

the Ebensburg Power Company (Ebensburg) in Ebensburg, Pennsylvania. At 

that time, Sauer was engaged as a subcontractor on a power plant 

construction project for which Ebensburg was the owner and UE & C 

Catalytic (Catalytic) was the general contractor. The plaintiff sustained 

injuries when a crane he was operating on a turbine floor fell into a hole. To 

recover for his injuries, the plaintiff filed a complaint against Ebensburg and 

Catalytic alleging that they negligently failed to provide a safe worksite. 

Thereafter, Ebensburg filed a third party complaint against United Engineers 

& Constructors, Inc. (United), a sister corporation of Catalytic. Catalytic and 

United subsequently filed a third party complaint against Sauer requesting 

indemnification and contribution in the event they were found liable to the 

plaintiff. Catalytic and United based their claims on the indemnity provisions 
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in a written contract between United and Sauer. United and Catalytic denied 

any negligence and alleged that if the plaintiff were injured in the manner 

that he claimed, then his injuries were caused by Sauer’s negligence and the 

contract between Sauer and United required Sauer, as the subcontractor, to 

indemnify United and Catalytic for personal injuries caused by its negligence. 

Applying Bester and related cases, this Court rejected the indemnity claims 

advanced by United and Catalytic, concluding that the disputed contractual 

language was not sufficiently specific to compel Sauer, as an employer, to 

indemnify a third party.2 The panel in Snare followed Bester without 

distinguishing or discussing whether the indemnity claims forwarded by 

United and Catalytic were based upon the negligence of an indemnitor or 

that of an indemnitee. See Snare, 637 A.2d at 299. 

I derive further support for my position from the plain terms of the 

Act. The Act unmistakably declares that it is the sole means of recovery 

____________________________________________

2 The indemnity provision we rejected in Snare was remarkably similar to 

the one found in Article VI of the parties’ agreement, which the Majority 

upholds. It read:

5. [Subcontractor/Sauer] Agrees to indemnify and hold harmless 

the Owner [Ebensburg Power Company] and Contractor [United] 

their successors and assigns, from and against any and all 

claims, demands, suits, actions, losses, liens, damages, or 

expenses and attorneys' fees, however caused, resulting from, 

arising out of or in any way connected with the Contract....

See Snare at 637 A.2d at 299. Like Article VI in the case before us, the 

indemnity provision in Snare did not expressly provide that Sauer agreed to 

indemnify United for United’s negligence that harmed Sauer’s employee. 
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against an employer for all injuries arising out of accidents occurring within 

the course of employment. 77 P.S. § 481(a). Given that an employer will 

assume responsibility for injuries to its workers under this provision, we 

should not lightly presume that an employer would be willing to double its 

liability exposure by agreeing, through general terms, to indemnify a third 

party for injuries sustained by its employees as a result of its negligence. 

See Bester, 619 A.2d at 308 (indemnification clauses must contain express 

provisions in order to overcome employer’s protection from double 

responsibility afforded under the Act). I also note that the Act specifically 

states that, “[an] employer . . . shall not be liable to a third party for 

damages, contribution, or indemnity in any action at law, or otherwise, 

unless liability for such damages, contributions or indemnity shall be 

expressly provided for in a written contract entered into by the party alleged 

to be liable prior to the date of the occurrence which gave rise to the action.” 

77 P.S. § 481(b) (emphasis added). Contribution is nothing more, and 

nothing less, than judicially imposed indemnification for liability arising from 

the indemnitor’s negligence in the absence of a contract. See Nancy J. 

White, Death, Taxes, and . . . Insurance: Current Legal Issues Relating to 

Insurance in the Construction Industry, 36 Real Est. L.J. 154, 157 (under 

limited form indemnity agreement, subcontractor is legally liable to general 

contractor for any sums the general must pay as a result of defects in the 

subcontractor’s work and limited form agreement does nothing more than 
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what the law requires under the doctrine of contribution). Since the Act 

provides that a third party cannot assert a claim for contribution (or a 

contractual claim for indemnity based upon the indemnitor’s negligence) in 

the absence of an express provision in a written contract, I would argue that 

a provision which allows such a claim should meet the requirements set forth 

in Bester. In this case, neither Article IV nor Article VI meets Bester’s 

specificity requirements; hence, neither provision permits indemnity on any 

ground.

For the foregoing reasons, I am unable to agree that the contract 

between Burchick and Kusler required Kusler to indemnify Burchick for 

liability arising either from Burchick’s negligence or Kusler’s own negligence. 

Accordingly, I dissent.