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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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