NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

______________ No s . 1 4

- 4186, 14

- 4698

______________ MARIA GARLICK, As Administor of the Estate of George B. Garlick, III and in Her Own Right, Appellant

v. TRANS TECH LOGISTICS, INC.; QC ENERGY RESOURCES, INC.; QC ENERGY RESOURCES, LLC; QC ENERGY RESOURCES NORTHWEST, LLC; ANADARKO PETROLEUM, CORP; ANADARKO ENERGY SERVICES, CO.;

ANADARKO E & P COMPANY LP; ANADARKO MARCELLUS MIDSTREAM, LLC

______________ ON APPEAL FROM THE UNITED STATES DISTRI CT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

(D.C. No. 4 :1 2

- c v - 0 1166 ) District Judge: Hon. Matthew W. Brann

______________ Argued: December 8 , 2015

______________ Before: FUENTES , SHWARTZ, and VAN ANTWERPEN , Circuit Judges

.

( Opinion Filed: December 18, 2015 )

______________ OPINION *

______________

* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent.2

David L. Kwass , Esq. [ ARGUED ] Saltz, Mongeluzzi, Barrett & Bendesky 1650 Market Street One Liberty Place, 52nd Floor Philadelphia, PA 19103

Counsel for Appellant Stephanie L. Hersperger, Esq. [ ARGUED ] Jame s DeCinti, Esq. John T. Pion, Esq. Pion, Nerone, Girman, Winslow & Smith 240 North 3rd Street Payne Shoemaker Building, 10th Floor Harrisburg, PA 17101

Counsel for Appellees

PER CURIAM

.

Maria Garlick appeals the District Court’s order granting QC’s 1 motion for summary judgm ent on the ground that QC was Geor ge Garlick’s statutory employer and thus entitled to immunity under the Pennsylvania Worker’s Compensation Act (“PWCA”) , 77 P.S. § 1 et seq. , and its order granting Anadarko’s 2 motion for summary judgment on the ground tha t Anadarko was not negligent

. For the r easons set forth below, we will affirm in part and vacate in part

. I

1 Appellees QC Energy Resources, Inc., QC Energy Resources, LLC, and QC Energy Resources Northwest, LLC are collectively referred to herein as QC.

2 Appellees Anadarko Petroleum Corporation, Anadarko Energy Services Company, Anadarko E&P Company LP, and Anadarko Marcellus Midstream, LLC are collectively referred to herein as Anada rko.3

George Garlick drove a water truck f or Trans Tech Logistics (“TTL”). 3 TTL leased its vehicles and provided drivers to QC, which operated “a bulk tank truck network serving the chemical, bulk liquid, and energy markets

. ” App. 155 . QC
contracted TTL to haul water via baby bottle trucks, to and from natural gas fracking
site s , operated by Anadarko, an oil and gas producer and one of QC’s clients

. 4 Anadarko
selected “ safe and efficient” routes to its sites in collaboration with state and local
authorities , App. 1489 , and p rovided the drivers with written directions they were required to use to reach the various sites. These written directions requir ed drivers to
count the miles on a truck’s odometer to confirm the location of the turns the drivers
need ed to make along the route

. N othing in the record show s any driver following these directions had difficulty arriving at Anadarko’s sites until May 15 , 2012.
On May 15, 2012, Garlick began a twelve

- hour over night shift , during which he

was to deliver water to an Anadarko site in Clinton County, Pennsylvania identified as
Tract 653 Pad C. At 10:27 p

. m
. , Garlick delivered water to Pad C

. He left Pad C at 11:13 p

. m. and returned to the water facility at approximately 1:00 a.m. on May 16. He
remained there for about fifteen minutes

. Garlick was scheduled to return to Pad C, but

never arrived

. At approximately 2:30 a

. m
. , Garlick was killed when his wate r tanker ran off a steep mountain road, crashed into a guardrail approximately 2.5 miles past the turn
off to Pad C , and rolled off the road down a “steep decline.” App. 1668

.

3 TTL was originally named as a defendant in Garlick’s suit, but was dismissed because , as Garlick’s employer, it provided workers’ compensation benefits and i s immune from suit

.

4 These trucks can hold 110 barrels of water and, when filled with w ater, weigh approximately 40,000 pounds.4

Maria Garlick , Garlick’s widow, sued QC and Anadarko for negligence. Each
def endant moved for summary judgment, and the District Court granted both motions.
Garlick appeals

. II 5
This appeal requires us to address ( A ) whether QC was George Garlick’s st atutory employer under Section 302(a) of the PWCA , 77 P.S. § 461 , and, if so, wh ether QC was entitled to immunity under Section 303 of the PWCA , 77 P.S. § 481(a) ; and ( B ) whether
Anadarko was negligent in connection with the route it provided Garlick to follow to Pad
C

. 6

A
The PWCA requires employers to provide benefits to employees who suffer work

related injuries. In exchange for “bear [ing] the cost of these benefits [,] . . . the PWCA
protects [employers] from other tort liability for work

- related accidents.” Rolick v.
Collins Pine Co. , 925 F.2d 661, 663 (3d Cir. 1991) (citing 77 P.S. § 481(a)). As a result,

5 The District Court had jurisdiction pursuant to 2 8 U.S.C. § 1 332 . We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court’s decision on summary judgment , which involved the interpretati on and application of Pennsylvania law, de novo. Dee v. Borough of Dunmore , 549 F.3d 225, 229 (3d Cir. 2008) ; Rolick v. Collins Pine Co. , 925 F.2d 661, 663 (3d Cir. 1991)

. Summary judgment is appropriate where, drawing all reasonable inferences in favor of the non

- moving party, “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett , 477 U.S. 317, 322

– 23 (1986). An issue is “genuine” only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non

- movant. Kaucher v. Cnty. of Bucks , 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986)).

6 Because the Pennsylvania courts refer to Sections 302(a) and (b) by their PWCA citations, and Section 303 by its Pennsylvania code citation, Section 481(a), we will use that nomenclature in this opinion. See, e.g. , Patton v. Worthington Assoc s ., Inc. , 89 A.3d 64 3 , 6 49

- 50 (Pa. 20 14)

.5

the only remedy an employee may pursue against his employer for a work

- related injury is workers’ compensation. Th i s, in effect , immunizes an employer from lawsuits based

upon an employee’s work

- related injury. This exclusiv e remedy and “concomitant immunity from suit by [the] injured employee,” Thompson v. Workers’ Comp. Appeal
Bd. (USF&G Co.) , 781 A.2d 1146, 1153 (Pa. 2001) , is set forth in PWCA Section 481(a), which provides : The liability of an employer under this act sh all be exclusive and in place of any and all other liab ility to such employe s [sic] , 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 inj ury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108. 7 77 P.S. § 481(a). Only person s or entit ies classified as employer s under the PWCA are cloaked with these protections

. PWCA e mployers include contrac tual and common

- law employers, as well as two categories of “statutory employers” set forth in PWCA Section
302 . 77 P.S. §§ 461, 462; s ee McDonald v. Levinson Steel Co. , 153 A. 424, 425 (Pa. 1930) (“A statutory employer is a master who is not a contractua l or common

- law one, but is made one by the Act.”). One of those categories, described in Section 302(a), 8 deems a general contractor the employer of its subcontractor’s employees and makes the general contractor

7 These sections describe injuries that arise in the course of employment. See 77 P.S. §§ 411, 27.1.

8 Section 302(a) provides, in relevant part: A contractor who subcontracts all or any part of a contract and his insurer shall be liable for the p ayment o f compensation to the employe s [sic] of the subcontractor unless the subcontractor primarily liable for the payment of6

responsible for paying workers’ compensati on benefits if the subcontractor fails to provide them

. Put differently, Section 302(a) covers, as statutory employers , “persons (including entities) contracting with others to perform work which is a regular or recurrent part of their business es to assur e that the employees of those others are covered by workers’ compensation insurance, on pain of assuming secondary liability for benefits
payment upon a default.” Six L’s Packing Co. v. W orkers’ Comp. Appeal Bd. (W illiamson) , 44 A.3d 1148, 115 8

- 59 (Pa. 20 12) (tomato grower who contracted with trucking company to transport tomatoes to the processing facility was a statutory employer and therefore liable for paying workers’ compensation benefits to trucking company’s employee who was injured on the job, wher e trucking company had no workers’ compensation insurance)

. Here, QC qualif

ies as a statutory employer. 9 Transporting bulk liquids was a regular and recurrent part of QC’s business as a bulk tank truck network operator, and

such compensation has secured its payment as provided for in this act. Any contractor or his insurer who shall become liable here under for such compensation may recover the amount thereof paid and any necessary expenses from the subcontractor primarily liable therefor. For purposes of this subsection, a person who contracts with another . . . to have work performed of a kind which is a regular or recurrent part of the business, occupation, profession or trade of such person shall be deemed a contractor, and such other person a subcontractor. 77 P.S. § 461.

9 Garlick argues that because the contract between QC and TTL designates TTL as an independent contractor, QC cannot be a statutory employer. Appellant’s Br. 29. We reject this argument because, regardless of the contractual rel ationship between QC and TTL, our inquiry is limited to whether the relationship between QC and TT L satisfies the7

QC “contractual[ly] delegate [d] . . . aspects of” its transportation business to TTL. Six
L’s , 44 A.3d at 1158

. Accordingly, QC , as the contractor, was a statutory employer
pursuant to Section 302(a) who assumed secondary liability to pay workers’ compensation benefits to employees of its subcontractor, TTL, should TTL default on its obligations

. As Garlick’s statutory employer, QC is immune from suit. Section 481(a) provides immunity for anyone who is “ an employer under this act.” 77 P.S. § 481(a). Nothing in the PWCA limits Se ction 481(a) immunity to common

- law and contractual employers who fall within the statute’s ambit . Like common

- law and contractual employers, statutory employers are liable to provide workers’ compensation benefits, albeit only if the direct employer fail s to do so. Nonetheless, t he immunity provided in Section 481(a) is the quid pro quo for a statutory employer’s secondary liability under Section 302(a). 10 See Patton v. Worthington Assoc s ., Inc. , 89 A.3d 643, 645 (Pa. 2014)

elements of statutory employer status under Section 302(a). See Six L’s , 44 A.3d at 1152; see also Patton , 89 A.3d at 646

- 49 (explaining that in the statutory employer context, the relevant relationship is between general contractor and su bcontractor, not between the subcontractor’s employee and the general contractor).

10 The Pennsylvania Supreme Court has explained that “[t]he Legislature’s purpose in imposing [statutory employer] status upon general contractors was remedial, as it wished to ensure payment of workers’ compensation benefits in the event of defaults by p rimarily liable subcontractors

. ” Patton , 89 A.3d at 645 (applying Section 302(b), which creates statutory employer status for accidents involving subcontractors’ employees t hat occur on an employer’s premises, in contrast to Section 302(a), which is not limited to on

- premises accidents ). Although Patton involved a Se ction 302(b) statutory employer , and the Pennsylvania Supreme Court has not yet been presented with the questi on of the scope of immunity for a Section 302(a) statutory employer, see id. at 645 n.3, we see no reason why, “[c]oncomitant with the treatment of traditional employers, statutory employers” under Section 302(a), like those under Section 302(b), do not “e njoy a measure of immunity from liability in tort pertaining to work

- related8

(describing Section 481(a) as “providing that liability of employers under the [P]WCA serves as an exclusive remedy”). T his exchange of liability for immunity fulfills the purpose of the PWCA, which is to “provi de security for injured workers, ” because it “prevent[s] certain general c ontractors from getting a free walk, if they did not require their subcontractors to carry compensation insurance

. ” Six L’s , 44 A.3d at 11 54

- 55 (internal quotation marks omitted). W e therefore conclude that, as a contractor exposed to secondary liability to pay workers’ compensation be nefits should its subcontractor
default on its insurance obligations, QC is immune from suit. 11
Garlick asks us to hold that a Section 302(a) statutory employer becomes immune only if it pays workers’ compensation benefits t o the subcontractor’s injured employee upon the subcontractor’s default. To so conclude would be contrary to the PWCA

. The
PWCA guarantees workers’ compensation benefits arising out of the employment relationship either directly from an employer, or seco ndarily from a statutory employer in
the event of the former’s default. See 77 P.S. §§ 461, 462. The language of the statute
injuries for which they bear se condary liability under the Act ,” pursuant to Section 481(a). Id. at 645 (citing § 481(a)); see also i d. at 651 (Baer, J., concurring) (explaining, albeit in a Section 302(b) case, that “the statutory employer doctrine serves one purpose: to provide immunity to a general contractor in tort, notwithstanding that it may have been a third party tortfeasor”).

11 Garlick points out that Section 302(b), th e other statutory employer liability provision, has a corresponding “immunity” provision in Section 203, while Section 302(a) does not. See Six L’s , 44 A.3d at 1152 (describing Section 203 as an immunity provision a nd Section 302(b) as a liability provisi on). The absence of an immunity provision designated for Section 302(a) has no bearing on our analysis, because Section 481(a) applies to any “employer under the act,” which by its plain terms includes employers created by the PWCA. Moreover, Sections 30 2(a) and (b) are “separate and distinct,” Six L’s , 44 A.3d at 1158 n.11 , and , according to the Pennsylvania Supreme Court, “Section 302(a) is best interpreted . . . according to its own terms

. ” Id. at 1159 n.12.9

conditions this secondary liability upon a failure of the direct emplo yer to provide coverage. Thus , the PWCA puts in place a me chanism to ensure payment is made from a single employer source.
Maria Garlick receive d workers’ compensation from George Garlick’s employer,
and therefore cannot sue QC, an entity that is also Garlick’s employer under the PWCA, and whose liability serv ed as a backstop to TTL’s. Thus, the District Court properly granted QC’s motion for summary judgment.

B

We next address Garlick’s negligence claim against Anadarko

. In her brief , Garlick a rgued that , by providing directions to drivers, Anadarko underto ok to provide
safe routes , and was negligent for failing to place adequate signa ge and lighting along the

route

. 12 At oral argument, however, both Garlick and Anadarko described the duty more broadly, namely that Anadarko had a duty to provide the safe st a vailable route. Oral Argument at 3:30, 6:00, 13:15, 21:25, 31:31, Garlick v. Trans Tech Logistics , Inc. , et al. , No. 14

- 4186, available at http://www2.ca3.uscourts.gov/oralargument/audio/14

- 4186Garlickv.TransTech.mp3

. To state a claim for negligence unde r Pennsylvania law , “a plaintiff must allege facts which establish the breach of a legally recogniz ed duty or obligation of the defendant that is causally connected to actual damages suffered by the plaintiff.” Scampone v. Highland Park Care Ctr., LLC , 57 A.3d 582, 596 ( Pa. 2012) (citation

12 The Amended Complaint describes the duty similar ly but even more narrowly. Specifically, it alleges that Anadarko determined and controlled the route Mr. Garlick drove and that it was negligent in failing to provide lights and signs along that route.10

omitted). As her legal source for a duty, Garlick relies on Restatement (Second) of Torts § 323, which provides: One who undertakes, gratuitously or for consideration, to render services to another which he should recog nize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) His failure to exercise such care incre ases the risk of such harm, or (b) The harm is suffered because of the other’s reliance upon the undertaking. Restatement (Second) of Torts § 323. W e have noted that § 323 is “ particularly relevant

.

. . where a party undertakes a task and po ssibl y fost ers reliance by the plaintiff on his
efforts.” Spence v. E SAB Gr p , Inc ., 623 F.3d 212, 217 (3d Cir. 2010) ( citations, quotation marks, and alterations omitted).

A t oral argument , the parties said that Anadarko’s duty arose from its undertaking

to provi de the sa fest available route to the destination. T he record shows that Anadarko
undertook “to determine the most effic ient and safest route into [its] facility” in
consultation with government stakeholders , such as the Commonwealth, local entities,
and/o r the Department of Conservation and Natural Resources . App. 1489. I t
memorialized these routes in written directions that told drivers specific roads to take and
the exact distance they w ould travel on each road. In addition, the directions informed
th e driver the mileage point at which he would need to make a turn.
This particular undertaking was done in the context of unique circumstances.
Drivers traverse d forested, winding , mountainous roads at all hours of the day and night
to reach Anadarko si tes

. The record reflects that drivers were required to follow the11

directions Anadarko provided to reach the sites , and nothing in the record shows that drivers could access the sites other than by following the se directions

. A juror presented
with this e vidence could therefore conclude that Garlick reasonably relied on Anadarko’s undertaking of providing these directions and, based upon the testimony of An a darko’s representative, also conclude that they were devised to ensure safe passage.
Under the un ique circumstances of this case, because Anadarko undertook a duty , by its own admission, to provide the safest available route to the s ite , it is for the jury to determine whether that duty was breached by providing only mileage measurements and failing t o provide lights and signs at the turn

- off that Garlick missed during his second trip to the site that night , 13 and if so, whether that breach was a substantial factor in

13 Pennsylvania case law suggests that sta te and local governments bear responsibility for maintenance and improvements of roads under their respective control , including the installation of signs and lights

. See, e.g. , Starr v. Veneziano , 747 A.2d 867, 871

- 72 (Pa. 2000) (rejecting township’s arg ument that “it had no duty to install a traffic control device . . . [and] it w as powerless to erect a no

- left

- turn sign absent PennDOT’s approval . . . and there is no guarantee that PennDOT would have granted such approval if asked,” and holding “that a municipality’s responsibility to maintain its roadways free of dangerous conditions could include a duty to install an appropriate traffic control device where to do so would alleviate a known dangerous condition . . .

. ”); McCalla v. Mura , 649 A.2d 646, 6 49 (Pa. 1994) ; Swank v. Bensalem Twp. , 472 A.2d 1065, 1066 (Pa. 1984) (“The exclusive authority and jurisdiction over all state designated highways rests with the Department of Transportation.”) (citing 71 Pa. C.S. § 512(10)); see also Cruet v. Certain

- Tee d Corp. , 639 A.2d 478, 482 (Pa. Super. Ct. 1994) (commercial property owner had no duty to warn motorists on an abutting public highway that vehicles might be entering the highway from the private property); Allen v. Mellinger , 625 A.2d 1326, 1329 (Pa. Com mw. Ct. 1993) (applying Restatement (Second) of Torts § 349 to hold that defendants, “as abutting landowners, owed no duty to [plaintiff], which could be breached, to maintain a public highway in a safe condition”). The record shows that government entiti es played a role in devising the directions, and there is no evidence they recommended that lights or signs be posted along the routes.1 2

causing Garlick’s death

. Thus, we will vacate the District Court’s order granting

Ana darko’s motion for summary judgment.

III

F or the foregoing reasons, we will affirm the District Court’s order granting QC’s
motion for summary judgment , vacate its order granting Anadarko’s motion for summary judgment , and remand to the District Court for proceedings consistent with the foregoing opinion.