J-A12031-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN BROWN 

Appellant

v.

GEORGE GAYDOS, AN INDIVIDUAL, 

T/D/B/A GAYDOS CONSTRUCTION

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1132 WDA 2021

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: MURRAY, J., McCAFFERY, J., and COLINS, J.*

CONCURRING/DISSENTING MEMORANDUM BY McCAFFERY, J.:

FILED: JULY 5, 2022

I agree with the Majority’s determination that the trial court erred in 

granting summary judgment in favor of Defendant based on employer 

immunity as set forth in Section 303(a) of the Workers’ Compensation Act 

(WCA).

1 See Majority Memorandum at 11. As the Majority cogently 

determines, the record contains a genuine issue of material fact concerning 

whether Defendant was Plaintiff’s “employer” since he “did not directly employ 

Plaintiff and he did not exert exclusive control over ACS[.]” Id. However, I 

disagree with the Majority’s disposition of Plaintiff’s second claim, concerning 

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* Retired Senior Judge assigned to the Superior Court.

1 77 P.S. § 481(a).
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the co-employee immunity provision set forth in Section 205 of the WCA.

2

 I

conclude that under the facts presented here, the question of whether 

Defendant is immune from liability as Plaintiff’s co-employee is a jury 

question. Therefore, because I would reverse the court’s ruling in toto and 

remand for trial, I respectfully concur and dissent.

When an injury is compensable under the WCA, Section 205 provides 

immunity from liability to co-employees whose negligent actions caused the 

claimant’s injuries, so long as the injury occurred while the co-employees were 

“in the same employ” as the injured claimant.3 77 P.S. § 72. See 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.”). As the Majority 

aptly observes, the term “co-employee” under the Act may include managers, 

executives, and even those who have an ownership interest in the employer. 

See Majority Memo. at 13. 

Nonetheless, 

[t]he mere fact that both parties held positions of employment 

with the same employer at the time of the accident is not sufficient 

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2 77 P.S. § 72.

3 Section 205 provides an exception for “intentional wrong[s]” — thus, coemployees cannot claim immunity from a civil action if they intentionally 

caused the claimant’s injuries. See 77 P.S. § 72. Plaintiff does not contend 

that Defendant committed an “intentional wrong” in the present case.
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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. 

Bell v. Kater, 943 A.2d 293, 297–98 (Pa. Super. 2008) (citations and 

quotation marks omitted).

Here, the Majority concludes that “the evidence of record shows 

Defendant was acting ‘in the course of [his] performance of duties for’ ACS on 

. . . the date Plaintiff sustained his injuries” based upon the Defendant’s 

deposition testimony that: (1) he brought the skid loader to that ACS job site

on the morning of the accident “with the intention that he would personally 

operate [it] to assist in completing the ACS paving project[;]” (2) he left the 

skid loader at the site and went to “pay a vendor” for materials; and (3) he 

returned to the job site immediately after the accident. Majority Memo. at 15. 

The Majority also rejects Plaintiff’s argument that he “did not sue Defendant 

in his capacity as an ACS worker[,]” characterizing it as “creative pleading” 

intended to “circumvent” the requirements of the ACT. Id. at 17. It further 

downplays the significant fact that Defendant instructed ACS workers not to 

use the skid loader, as well as the fact that the skid loader was owned, 

maintained, and insured by Gaydos Construction. Id. at 18-19. Rather, the 

Majority found the record was “devoid of evidence showing that Gaydos 

Construction was involved with the course of events that gave rise to Plaintiff’s 

injuries.” Id. at 19. 
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Upon my review, I conclude the record does not “clearly demonstrate[

] there is no genuine issue of material fact and that [Defendant] is entitled to 

judgment as a matter of law.” In re Risperdal Litigation, 223 A.3d 633,

639 (Pa. 2019) (citation omitted). Rather, because there is evidence of record 

that “would allow a fact-finder to render a verdict in favor of the non-moving 

party, then summary judgment should [have been] denied.” Zimmerman v. 

Alexander Andrew, Inc., 189 A.3d 447, 452 (Pa. Super. 2018) (citation 

omitted).

First, the cases upon which the Majority relies — where an executive or 

manager was found to be immune from civil liability as a co-employee — are 

clearly distinguishable on their facts. 

In Jadosh v. Goeringer, 275 A.2d 58 (Pa. 1971), the plaintiff, who was 

injured at work while operating a lug cover press filed suit against, inter alia, 

the vice president/general manager of the employer, responsible for the 

“supervision of operations,” claiming they had been “negligent in condoning 

the use of a defective press.” Jadosh, 275 A.2d at 452-53. In determining 

the manager was immune from liability under the WCA, the Pennsylvania 

Supreme Court first noted that the WCA’s definition of co-employee includes, 

inter alia, “[e]very executive officer of a corporation[.]” Id. at 453 (citation 

omitted). Moreover, the Court rejected the plaintiff’s argument that the 

statute was unconstitutional because it “insulates a co-worker from liability 

without any corresponding financial responsibility placed on” them. Id. at 

454. The Supreme Court opined: 
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In our opinion, a provision immunizing fellow employees 

from liability for negligent acts or omissions in the course of their 

employment is consistent with the constitutional provision 

permitting the enactment of a comprehensive scheme of 

workmen’s compensation. The employee receives economic 

insurance that his employment-related injuries will be 

compensated. He surrenders the right to sue employers or fellow 

employees for negligence, but he no longer need prove 

negligence, his own contributory negligence is no longer a bar, 

and he, too, can no longer be sued for negligence by a fellow 

employee. Such a comprehensive program is not 

unconstitutional. 

Id. at 454–55 (citation omitted).

In Adams v. U.S. Air, Inc., 652 A.2d 329 (Pa. Super. 1994), the 

plaintiff sued his managers for intentional infliction of emotional distress and 

interference with contractual relations after they fired him following an internal 

investigation, which found he violated company policies. See Adams, 652 

A.2d at 330. After concluding there was no evidence the managers acted with 

the intent to cause the plaintiff emotional distress or acted “outside the scope 

of their authority,” a panel of this Court affirmed the grant of summary 

judgment in favor of the managers. Id. at 331. The panel opined: 

[The managers] acted, pursuant to the duties of their 

employment, to investigate [the plaintiff’s] activities on the 

employer’s premises and whether they were violative of [the 

employer’s] policies. For this there can be no liability against a 

fellow employee.

Id. at 330.

The Majority also relies upon Vosburg v. Connolly, 591 A.2d 1128 (Pa. 

Super. 1991), for the proposition that “a co-owner of a family construction 

company [is] a co-employee rather than an employer under the WCA.” 
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Majority Memo. at 14. In that case, a panel of this Court determined that 

while the co-owner could “be characterized as an employee” of the company, 

they were, nevertheless, not entitled to immunity because they “committed 

an intentional assault” upon the injured employee. Vosburg, 591 A.2d at 

1133. Thus, this Court reversed the order granting summary judgment in 

favor of the co-owner. Id. However, it is clear from a review of that decision, 

that the primary issue was whether or not the injured employee was acting 

“with the course of his or her employment” at the time the injury occurred, 

which was after the employee had “punched out and retreated to the parking 

lot of [the employer] to socialize with fellow workers[.]” Id. at 1129-30.

None of the cases relied upon by the Majority address the factual 

dilemma presented here — where an employee is injured while using a piece 

of equipment that is owned, maintained, and insured by a separate sole 

proprietorship operated by one of the co-owners. These facts are unlike 

those in Jadosh, where the allegedly defective piece of equipment was the 

property of the employer, and the plaintiff alleged the manager was negligent 

in simply performing their duties for the employer. See Jadosh, 275 A.2d at 

452-53. The same is true of Adams, in which this Court rejected an 

employee’s suit against their managers for merely acting “pursuant to the 

duties of their employment.” See Adams, 652 A.2d at 330.

In the case sub judice, however, I conclude there is a genuine issue of 

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

as Plaintiff at the time of Plaintiff’s injury. See 77 P.S. § 72. 
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First, in his deposition, Defendant admitted he owned the skid loader in 

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

it[.]” Plaintiff’s Motion for Summary Judgment, 3/3/21, Exhibit 2 at 43. 

Contrary to the Majority’s characterization, Defendant did not definitively state 

that the skid loader would have been covered by ACS’s insurance if it was 

used on an ACS job site. See Majority’s Memo at 19. Rather, Defendant 

testified as follows: 

Q. Did [ACS] insure at any time the subject skid loader?

[Defendant:] Under . . . our basic policy which I do not have in 

front of me, I’m sure that there was some sort of insurance on 

equipment for the contractor’s liability policy for [ACS].

Q. Do you know as we sit here today if [ACS] listed the subject 

skid loader on that policy?

[Defendant:] I do not believe it was listed, but it is a tool.[4]

Q. As we sit here today, do you believe the policy through [ACS] 

insured the subject skid loader?

[Defendant:] I’m sure there was some sort of coverage for tools 

and equipment on job sites, so I couldn’t tell you for certain. I 

don’t have the policy in front of me.

Q. So you don’t know?

[Defendant:] I don’t know.

Plaintiff’s Motion for Summary Judgment, Exhibit 2 at 42-43 (emphasis 

added). Defendant 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). 

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I would not categorize a skid loader as a “tool,” similar to a hammer or drill.
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The Majority also emphasizes Defendant’s deposition testimony that he 

and his partner agreed “they would each supply their personally owned tools 

and equipment as needed for ACS jobs” during ACS’s infancy because the 

company did not have sufficient capital to purchase equipment. See Majority 

Memo. at 18. However, this purported agreement between the co-owners is 

not in writing. Moreover, Defendant acknowledged that he “loaned” the skid 

loader to ACS for certain jobs but stated there was “no lease” or “transfer of 

money.” Plaintiff’s Motion for Summary Judgment, Exhibit 2 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.

Further, we note the Majority presumes Defendant brought the skid 

loader to the job site on the morning in question for use on that particular ACS 

job. See Majority Memo. at 15, citing Plaintiff’s Motion for Summary 

Judgment, Exhibit 2 at 45; Defendant’s Reply Brief in Support of Summary 

Judgment, 3/8/21, Exhibit E-2 at 60. However, I conclude that “fact” is not 

clearly borne out in the record. Rather, in his deposition, Defendant 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

Plaintiff’s Motion for Summary Judgment, Exhibit 2 at 44-45; Defendant’s 

Reply Brief in Support of Summary Judgment, Exhibit E-2 at 60. 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. 
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Defendant’s Reply Brief in Support of Summary Judgment, Exhibit E-2 at 60. 

Therefore, in my opinion, the record contains a genuine issue of material fact 

as to whether Defendant actually intended to use the skid loader at the job 

site on the morning in question. For this reason, too, the court’s entry of 

summary judgment was inappropriate.

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

which a co-owner or manager has been found to be a co-employee, and, 

therefore, immune from civil liability under the WCA. Here, the co-owner —

Defendant — operated a separate sole proprietorship, that independently 

owned, maintained, and insured the allegedly defective skid loader which 

caused Plaintiff’s injuries. Although Defendant 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. The Majority insists “a co-employee’s immunity from an 

injured worker’s suit at common law is based upon the identity of the 

defendant, not the plaintiff’s theory of the defendant’s liability.” 

Majority Memo. at 17 (emphasis added; citation omitted). However, here, 

Plaintiff’s theory defeats Defendant’s identity as a co-employee.

Thus, under these facts, I conclude that the determination of whether 

Defendant was working “in the course of [his] performance of duties for the 

employer[,]”5 ACS, is a question for the jury since Defendant admitted (1) his 

sole proprietorship owned, maintained, and insured the skid loader, (2) 

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5 See Bell, 943 A.2d at 298. 
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Defendant 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) Defendant was the only ACS “employee” permitted to use the equipment, 

that he owned, maintained, and insured. Consequently, I would reverse the 

order granting ACS Defendant’s motion for summary judgment and remand 

for further proceedings.