J-A10018-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

BRIAN FELDMAN

v.

CP ACQUISITIONS 25, L.P., TEREX 

CORPORATION, MODERN GROUP 

LTD, SOUTHEASTERN 

PENNSYLVANIA TRANSPORTATION 

AUTHORITY, NATIONAL RAILROAD 

PASSENGER CORPORATION, 

BOZZUTO CONSTRUCTION 

COMPANY, VITO BRACCIA 

CONSTRUCTION, LLC, ALTINO 

CONCRETE CONSTRUCTION, LLC 

AND ALTINO CONCRETE 

CONSTRUCTION, LLC, CP 

ACQUISITIONS 25, LLC, CP 

ACQUISITIONS 25 GP, LLC, AND 10 

UNION AVE ASSOCIATES, LP

APPEAL OF: VITO BRACCIA 

CONSTRUCTION, LLC

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 501 EDA 2023

Appeal from the Judgment Entered January 26, 2023

In the Court of Common Pleas of Philadelphia County Civil Division at 

No(s): 200500942

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and BECK, J.

MEMORANDUM BY BECK, J.: FILED AUGUST 14, 2024

Vito Braccia Construction, LLC (“VBC”) appeals from the judgment 

entered by the Philadelphia County Court of Common Pleas (“trial court”) in 

favor of Brian Feldman (“Feldman”). On appeal, VBC challenges the trial 

court’s denial of its request for judgment notwithstanding the verdict (“JNOV”) 
J-A10018-24

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based upon VBC’s claimed immunity under the Workers’ Compensation Act

and an alleged material variance between Feldman’s pleading and his proof at 

trial. VBC further seeks a new trial, challenging the weight of the evidence 

presented to support the jury’s verdict and the admissibility of photographs of 

Feldman’s injuries. For the reasons that follow, we affirm.

The trial court aptly summarized the facts and procedural history of this 

matter:

This case involves a workplace electrocution accident which 

inflicted grievous injuries on [Feldman], while he was engaged in 

a tree removal project. Cross Properties1 had acquired property 

in Bala Cynwyd and had engaged different contractors, including 

Bozzuto Construction and Altino Concrete Construction, to 

construct an apartment building on it. (N.T. 12:19-23, March 30, 

2021; 54:2-7, October 26, 2022.) This project was known as the 

Kelly Project (hereinafter “the Kelly”). Near the end of 

construction on the Kelly, David Blumenfeld, a real estate 

developer and managing member of the Cross Properties entity 

that owned [10] Union Avenue, the property where the Kelly was 

constructed,2 decided he wanted to have several trees, which 

blocked what would otherwise be a good view of center city 

____________________________________________

1 Cross Properties is not a legal entity, but rather a group of 

several entities including CP Acquisitions 25, LLC; CP Acquisitions 

25 GP, LLC; CP Acquisitions 25, L.P.; and 10 Union Avenue 

Associates L.P. (N.T. 13:24-14:5, 15:20-16:20, 18:11-17, 18:23-

19:12, March 30, 2021.) [For convenience, we refer to these

entities together as Cross Properties.]

2 10 Union Avenue Associates owned the property on which the 

Kelly was located. 10 Union Avenue Associates was controlled by 

another company in Cross Properties’ corporate structure. David 

Blumenfeld was a managing member of the company that had 

authority to make decisions regarding the property. However, the 

name of that company was unclear from the testimony. (N.T. 

15:20-16:20, March 30, 2021.)
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Philadelphia, removed. (N.T. 24:18-23, March 30, 2021; 22:2-7,

October 27, 2022.) These trees were not located on the same

property as the Kelly, but rather on two adjacent properties. 

Some of the trees were located on property at 29 Bala Avenue, 

while others were located on property owned by [South Eastern 

Pennsylvania Transit Authority (“SEPTA”)] upon which there were 

train tracks and overhead high voltage power lines. (N.T. 153:3-

19, 155:24-156:12, October 24, 2022.)

Mr. Blumenfeld asked Jerry Gallagher, senior vice president 

of development and construction for Cross Properties,3to make 

arrangements for the removal of the trees. (N.T. 24:18-23, March 

30, 2021.) Jerry Gallagher reached out to Bozzuto Construction, 

the general contractor on the Kelly project, to ask them if they 

would find a contractor for the tree removal job. Bozzuto declined 

because tree removal companies they contacted did not want to 

go near the power lines. (N.T. 102:5-103:1, April 21, 2021; 

81:13-82:1, October 26, 2022.)

Mr. Gallagher then reached out to Vito Braccia[,] Sr., owner 

of Altino Concrete Construction (hereinafter “Altino”) and [VBC]4

to see if he would take on the tree removal project. (N.T. 55:2-5, 

October 26, 2022.) Mr. Braccia contacted Bruce Ross of Colonial 

Tree Service, Inc. (hereinafter “Colonial”). (N.T. 22:21-23:18, 

October 27, 2022.) Colonial had been doing work for Vito Braccia 

for years and had previously been subcontracted by Altino for 

work at the Kelly. (N.T. 55:18-21, April 21, 2021; 133:7-134:20, 

136:16-21, October 25, 2022.) Mr. Braccia and Mr. Ross arranged 

to meet and walk the site, and Mr. Braccia pointed out which trees 

needed to be removed. (N.T. 136:1-139:20, October 25, 2022.) 

The power lines were not discussed during this visit to the site. 

Following the site walk, Mr. Ross gave Mr. Braccia the price for the 

job and Mr. Braccia, in turn, contacted Cross Properties to provide 

____________________________________________

3 Mr. Gallagher was employed by a company called Cross Prop. 

P&B, which is not a defendant in this case. (N.T. 16:18-8, March 

30, 2021.)

4 At the time of the accident, Mr. Braccia was employed by Vito 

Braccia Construction and he testified that everything he did 

regarding the tree removal project was done on behalf of VBC. 

(N.T. 16:5-11, October 27, 2022.)
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a marked-up price for the work, to which Cross Properties agreed. 

(N.T. 42:13-18, October 27, 2022.)5

Despite the known hazard posed by the power lines, Vito 

Braccia did no preplanning for the tree removal project, and even 

admitted that he, on behalf of VBC, failed to live up to his safety

responsibilities. (N.T. 68:8-69:12, October 26, 2022; 13:7-15, 

October 27, 2022.) He failed to reach out to SEPTA or 

[Philadelphia Electric Company (“PECO”)] to see if the location of 

the work would expose the workers to hazards, failed to complete 

SEPTA’s right of entry form to get approval to enter SEPTA 

property and receive safety training and support from SEPTA, 

failed to arrange to have the power lines deenergized while the 

work was ongoing, failed to take any steps to guard the power

lines to ensure an accident could not happen, and failed to 

complete a job hazard analysis. (N.T. 63:15-64:18, October 26, 

2022; 34:15-24, October 27, 2022.) This complete failure to 

preplan the work and take precautions in response to a known 

safety hazard contravened OSHA’s requirements as well as

construction industry standards such as the those released by the

American Society of Safety Engineers, which require general, 

prime, and controlling contractors to preplan the work, identify

safety hazards, and take steps to eliminate or substantially reduce 

the risks.6 (N.T. 65:12-71:16, October 26, 2022.)

VBC’s failure to preplan the work and take safety 

precautions had catastrophic consequences. Using a crane, 

Colonial removed the first four trees without incident. (N.T. 

160:24-161:14, October 25, 2022.) However, the fifth tree 

Colonial tried to remove was on SEPTA property and only five feet 

horizontally from a 138,000-volt overhead power line, well within 

the 15-foot radius that is considered dangerous. (N.T. 164:20-

____________________________________________

5 Notably, while Vito Braccia asserted he was acting on behalf of 

VBC, both David Blumenfeld and Jerry Gallagher from Cross 

Properties, as well as Bruce Ross from Colonial, believed they were 

contracting with Altino for the tree removal project. (N.T. 130:18-

133:6, March 30, 2021; 137:19-138:3, April 21, 2021; 177:10-

178:1, October 25, 2022.)

6 Although this Court found that there was not a contract between 

Cross Properties and VBC, VBC acted as the general contractor on 

the tree removal project.
J-A10018-24

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165:12, October 24, 2022.) A segment of the tree was strapped 

to the crane’s hoist line and cut. (N.T. 166:17-168:6, October 25, 

2022.) As the tree segment was being lifted, the electricity from 

the power line arced to the hoist line, traveled through the crane 

body and then shot out from the crane’s front bumper to the front

bumper of Colonial’s log truck, which was nearby. (N.T. 168:7-

171:25, October 25, 2022.) At that very moment, [] Feldman, 

who had been working with a chainsaw to cut up the pieces of 

tree, was walking in between the crane and the log truck. (N.T. 

157:10-13, 170:22-171:10, October 25, 2022.) The current 

electrocuted him and inflicted extensive and severe burns. []

Feldman was found on the ground, “semiconscious” and moaning 

in pain, with his Kevlar pants completely melted off. (N.T. 170:3-

14, October 25, 2022.)

[] Feldman spent the next six weeks in the burn unit at 

Jefferson Hospital. (N.T. 120:15-18, October 26, 2022.) Within a 

day, he coded and had to be resuscitated. (N.T. 100:23-101:15,

October 27, 2022.) He had suffered burns to 62.5 percent of his 

body, with 20 percent of his body sustaining third degree burns. 

(N.T. 93:15-17, 101:4-10, October 24, 2022.) The burns covered 

his neck, torso, upper right arm, entire left arm, both hands and

both thighs. (N.T. 93:1-95:18, October 24,2022; P-59.) The 

electricity blew out his left quadricep and right pectoral muscles, 

leaving him with no muscle tissue in those locations. (N.T. 

122:19-124:13, October 26, 2022.)

Because of the risk of infection, [] Feldman had to undergo 

debridement procedures to remove his dead and decaying flesh. 

(N.T. 118:2-25, 129:17-130:5, October 24, 2022.) Extensive skin 

grafts were required. (N.T. 130:6-16, October 24, 2022.) []

Feldman’s burns leaked causing him to lose fluids, so he needed 

to be pumped with more. (N.T. 105:19-107:22, October 24, 

2022.) As a result, his organs swelled up creating pressure in his 

abdomen, a condition known as abdominal compartment 

syndrome. (N.T. 108:16-110:5, October 24, 2022.) An emergency

decompressive laparotomy, where [] Feldman’s abdomen was cut 

open and a plastic bag was placed over the top to allow his organs 

to expand, was necessary to relieve the pressure the swelling

caused. (N.T. 109:1-113:9, October 24, 2022.) He also suffered 

from kidney failure. (N.T. 113:12-20, October 24, 2022.) []

Feldman, a body builder and former Mr. Philadelphia, lost almost 

100 pounds while he was in the hospital. (N.T. 100:7-19, October 

26, 2022; 112:11-12, October 27, 2022.)
J-A10018-24

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The pain suffered by [] Feldman through this ordeal was 

indescribable. At trial [] Feldman and his wife, Melissa, described 

the agony of dressing changes, recounting how [] Feldman would 

scream out in pain and ask Melissa to just let him die as bandages 

were ripped off his body like Velcro. (N.T. 114:23-115:1, October 

26, 2022; 104:8-105:3, October 27, 2022.) [] Feldman described 

the procedures as torture and at times had to be held down by 

nurses as he was being treated. (N.T. 113:14-114:11, October 

26, 2022.) He repeatedly reiterated that words could not describe 

the pain he felt. (N.T. 112:24-113:2, 116:4-9, 117:2-3, October 

26, 2022.)

[] Feldman’s troubles did not end with his hospital stay. As 

a result of the electrical injuries he sustained, [] Feldman’s trachea 

began closing. He underwent a tracheal resection procedure to 

help open his airway, but after about a month his trachea began 

to close again. (N.T. 138:11-141:6, October 26, 2022.) He now 

needs regular surgeries every couple of months to remove the 

scar tissue that is constantly building in his trachea and allow him 

to breathe. Through the time of trial, he had undergone 22 throat

surgeries and he is expected to require 60 to 100 more. (N.T. 

136:5-137:24, October 24, 2022; 48:20-49:17, October 25, 

2022.)

[] Feldman also now suffers from memory loss, has floaters 

in his eyes which affect his vision, and struggles to use his right 

hand. (N.T. 133:2-12, October 24, 2022; 26:25-27:6, October

25, 2022; 132:2-134:5; October 26, 2022.) He has extensive 

scarring which is a cause of great embarrassment. (N.T. 148:11-

149:11, October 26, 2022.) He thinks regularly about the pain of 

his injuries and has nightmares about his breathing problems. 

(N.T. 137:2-13, October 26, 2022.) He can no longer be the 

extremely active man he was before, and this has devastated him

emotionally. (N.T. 137:14-23, October 26, 2022.) He sees a 

therapist to try to help with these emotional injuries. (N.T. 

137:24-138:7, October 26, 2022.) [] Feldman’s severe injuries 

have rendered him unable to work again. (N.T. 211:16-19, 

October 25, 2022.)

[] Feldman filed suit against VBC and, following a five-day 

trial, the jury found that VBC was negligent and awarded []

Feldman $15,500,000 in damages. VBC filed motions for JNOV 
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and for a new trial, which this Court denied, and judgment was 

entered on the verdict.

Trial Court Opinion, 8/22/2023, at 1-6 (footnotes in original).

VBC filed a timely notice of appeal. Both VBC and the trial court 

have complied with Rule 1925 of the Pennsylvania Rules of Appellate 

Procedure. VBC raises the following issues for our review:

1. Whether [JNOV] is required because a material variance 

existed between [Feldman’s] pleading and his proof at trial?

2. Whether [JNOV] is required because [VBC] is clearly entitled 

to immunity under the Workers’ Compensation Act?

3. Whether, in the alternative, this Court should order a new 

trial at which statutory employer immunity will be litigated 

and subject to fact-finding?

4. Whether a new trial is required because the verdict was 

against the weight of the evidence?

5. Whether a new trial is required because the trial court erred 

as a matter of law and abused its discretion in allowing, over 

defense objection, extremely gruesome and graphic 

photographs of [Feldman’s] injuries to be shown to the jury?

VBC’s Brief at 9 (issues reordered for ease of disposition).

JNOV

VBC’s first two issues challenge the trial court’s denial of its motion for 

JNOV. We review the denial of a motion for JNOV pursuant to the following 

standard:

We review the denial of a request for JNOV for an error of law that 

controlled the outcome of the case or an abuse of discretion. In 

this context, an abuse of discretion occurs if the trial court renders 

a judgment that is manifestly unreasonable, arbitrary or 
J-A10018-24

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capricious; that fails to apply the law; or that is motivated by 

partiality, prejudice, bias or ill-will. 

Turnpaugh Chiropractic Health & Wellness Ctr., P.C. v. Erie Ins. Exch., 

297 A.3d 404, 413 (Pa. Super. 2023) (internal citations, bracketing, and 

quotation marks omitted). We must view the facts of record in the light most 

favorable to the verdict winner and grant that party every favorable inference 

that can be drawn therefrom to discern whether there was sufficient 

competent evidence to sustain the verdict. Doe v. Wyoming Valley Health 

Care Sys., Inc., 987 A.2d 758, 764 (Pa. Super. 2009) (citation omitted). 

“Questions of credibility and conflicts in the evidence are for the trial court to 

resolve and the reviewing court should not reweigh the evidence.” Id. As to 

questions of law, our scope of review is plenary. Holt v. Navarro, 932 A.2d 

915, 919 (Pa. Super. 2007).

There are two bases upon which [JNOV] can be entered: one, the 

movant is entitled to judgment as a matter of law, and/or two, the 

evidence was such that no two reasonable minds could disagree 

that the outcome should have been rendered in favor of the 

movant. With the first, a court reviews the record and concludes 

that even with all factual inferences decided adverse to the 

movant the law nonetheless requires a verdict in his favor, 

whereas with the second, the court reviews the evidentiary record 

and concludes that the evidence was such that a verdict for the 

movant was beyond peradventure.

Id. (bracketing in original; citation omitted).

Material Variance

VBC contends that the trial court erred in failing to grant its request for 

JNOV because there was a material variance between the facts pled in 
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Feldman’s complaint and the evidence he adduced at trial. VBC’s Brief at 50-

54. Feldman averred in his complaint that the tree removal project was within 

the scope of work for the Kelly. Id. at 50-51. At trial, however, counsel for 

Feldman opened by stating that the case involved “two projects, two very 

different projects”—one being the Kelly and the other being the tree removal. 

Id. at 51 (emphasis omitted). According to VBC, “[t]his was the first time 

that [Feldman] ever presented this theory of the case to VBC, any other party, 

or the court—and it varied materially from the case as pled and litigated up 

until trial,” likening Feldman’s conduct to a “[t]rial by ambush.” Id. at 51. 

Relying on Reynolds v. Thomas Jefferson Univ. Hosp, 676 A.2d 1205 (Pa. 

Super. 1996), VBC asserts that this constituted a change in the operative facts 

made after the running of the statute of limitations for claim of negligence 

alleged against VBC, requiring the grant of JNOV. VBC’s Brief at 53-54.

The trial court disagreed, finding that there was no material variance 

between the pleadings and the evidence adduced at trial. Trial Court Opinion, 

8/22/2023, at 16-17. The complaint fully set forth the claim of negligence 

against VBC and the evidence presented at trial was consistent with the theory 

pled. Id. at 18. Further, the trial court also assails VBC’s failure to identify 

precisely what “evidence” presented was at odds with the pleadings, as VBC 

solely directs its argument to the opening statement made by Feldman’s 

counsel, which the trial court observes is not “evidence.” Id. (citing Avent v. 

A. Bob’s Towing, 266 A.3d 645 (Pa. Super. 2021) (non-precedential 
J-A10018-24

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decision); Commonwealth v. Quinone, 200 A.3d 1004, 1014 (Pa. Super. 

2018); Pa. SSJI (Civil) § 1.107)).

Prior to addressing this claim, we note at the outset our confusion by 

VBC’s argument that it was blindsided by the contention that the Kelly and the 

tree removal constituted two separate projects and that it first learned of this 

theory during Feldman’s opening statement. The record reflects that in 

Altino’s motion for summary judgment, it specifically pled that the discovery 

process—including deposition testimony provided by Mr. Braccia, as corporate 

designee for both Altino and VBC—revealed that the tree removal project was 

separate from the scope of work contemplated for the Kelly. See Altino’s 

Motion for Summary Judgment, 2/7/2022, ¶22. Feldman, in response, 

admitted that this was true. Feldman’s Response in Opposition to Altino’s 

Motion for Summary Judgment, 3/10/2022, ¶ 22 (acknowledging that 

“discovery has revealed the tree removal job fell outside the scope of work for 

the ‘Kelly Project’”).

Turning to the argument raised, as the trial court observed, VBC cites 

only to counsel’s opening statement to establish this claimed “material 

variance” between the pleadings and the evidence adduced at trial. See VBC’s 

Brief at 50, 52. This is not a proper basis for JNOV. See Brown v. George, 

25 A.2d 691, 692 (Pa. 1942) (“A motion for judgment n. o. v. must be based 

upon pleadings and evidence and not upon arguments made by counsel to the 

jury.”). Further, as the trial court again correctly observed, the law is clear 
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that the opening statement made by counsel is not evidence. See Steltz v. 

Meyers, 265 A.3d 335, 340, 348 (Pa. 2021) (acknowledging the propriety of 

the trial court’s curative instruction that “statements and arguments made by 

counsel do not constitute evidence. They are not the facts. Evidence includes 

any testimony of witnesses, documents, and other exhibits submitted during 

the trial constitute facts[.]”). Nowhere in VBC’s argument does it cite to any 

evidence of record to support is claim. Cf. Reynolds, 676 A.2d at 1209 (“[a] 

material variance consists of a departure in the evidence from the issues on 

which the cause of action must depend.”) (emphasis added). This Court 

cannot and will not serve as counsel for any party; it is not our role to scour 

the record to find support for the claims raised. Tr. Under Deed of Wallace 

F. Ott, 271 A.3d 409, 421 (Pa. Super. 2021) (citations omitted). To the 

contrary, our Rules of Appellate Procedure expressly require that all factbased claims be supported by a discussion of the evidence that support the 

claim, with citation to the record where the pertinent evidence can be found. 

Pa.R.A.P. 2119(d).

Regardless, Reynolds does not entitle VBC to relief. Reynolds involved 

a medical malpractice action brought against a hospital system and a 

particular doctor, Dr. Daniel Anthony Beneski. Reynolds, 676 A.2d at 1207-

08. The complaint sounded in negligence based upon Dr. Beneski’s intubation 

of the complainant, Charmaine Reynolds, resulting in injury. Id. The proof 

adduced at trial, however, in the form of expert testimony and an 
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accompanying report, was that a different physician, Dr. Christopher 

Chambers, was negligent in failing to refer Ms. Reynolds to a specialist after 

her hoarseness persisted for more than ten days. Id. at 1208-09.

Reviewing precedent, this Court concluded that a material variance 

between a pleading and the evidence adduced at trial occurs when a plaintiff 

raises a different legal theory, a different type of negligence, or changes the 

operative facts to support the claim. Id. at 1210 (citation omitted). It further 

recognized that “a variance is not material if the alleged discrepancy causes 

no prejudice to the adverse party.” Id. (citation omitted).

The Reynolds Court found that although Ms. Reynolds continued to 

raise a claim sounding in negligence, the allegations pertained solely to Dr. 

Beneski’s actions; the facts pertaining to Dr. Chambers, which were never 

pled, constituted a new cause of action because they changed the operative 

facts to support the negligence claim, and this change prejudiced the 

appellants:

The operative facts supporting Dr. Chambers’ alleged negligence 

relate to his failure to recognize the potential seriousness of 

appellee’s hoarseness and his delay in referring her to a specialist. 

In order to defend against this allegation, appellant would have 

been required to retain an expert in the field of family practice. 

Appellee’s complaint, however, alleged the negligence of Dr. 

Beneski and other hospital agents in their performance of the 

intubation. To defend against these allegations, appellant would 

have been required to, and did, retain an expert in the field of 

anesthesiology. 

Id. at 1213.
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In the case at bar, there was no new claim raised at trial and no change 

to the operative facts to support the claim of negligence raised in the 

complaint. In his complaint, Feldman raised one count of negligence against, 

inter alia, VBC based upon its numerous failings relative to the tree removal. 

See Amended Complaint, Count II. The evidence presented at trial supported 

this claim. Whether the tree removal was part of the Kelly (as Feldman 

originally believed) or a separate project (as discovery later revealed) did not 

change the legal landscape for VBC, as the pleadings and evidence all were 

based upon Feldman’s injuries sustained during the tree removal and VBC’s 

failure to take appropriate precautions. VBC therefore was clearly not 

prejudiced by this change in fact—indeed, VBC makes no claim of prejudice in 

its argument before this Court. See Reynolds, 676 A.2d at 1210; see 

generally VBC’s Brief at 50-54. As such, we decline to find that there was a 

material variance between the pleadings and the evidence at trial and 

conclude that the trial court did not err or abuse its discretion by denying

VBC’s request for JNOV on this basis.

Workers’ Compensation Act

VBC further asserts that JNOV was warranted as a matter of law based 

upon either section 302(a) or section 302(b) of the Workers’ Compensation 

Act (“WCA”), both of which fall under what is commonly referred to as the 
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Statutory Employer Doctrine.

7

 See McDonald v. Levinson Steel Co., 153 

A. 424, 425 (Pa. 1930) (“A statutory employer is a master who is not a 

contractual or common-law one, but is made one by the [WCA].”). The WCA 

requires employers to pay workers’ compensation benefits to employees 

injured during the course of employment regardless of the employer’s 

negligence. See 77 P.S. § 431;

8 Dobransky v. EQT Production Co., 273 

A.3d 1133, 1134 (Pa. Super. 2022) (en banc). The idea behind the Statutory 

Employer Doctrine is to eliminate the possibility of giving a contractor a “free 

walk” if the contractor fails to ensure that a subcontractor s/he hired has the 

statutorily mandated WCA insurance9 by holding the contractor responsible 

for the payment to the injured employee of a subcontractor should the 

subcontractor fail to pay. Six L’s Packing Co. v. W.C.A.B. (Williamson), 

44 A.3d 1148, 1154 (Pa. 2012) (citation omitted). 

If either section 302(a) or (b) is applicable, a statutory employer “is 

immune from suit by an injured worker for common law negligence,” 

regardless of whether the subcontractor carried workers’ compensation 

____________________________________________

7 Act of June 2, 1915 P.L. 736, No. 338, art. III, § 302, as amended, 77 P.S. 

§§ 461, 462.

8 Act of June 2, 1915 P.L. 736, No. 338, art. III, § 301(a), as amended, 77 

P.S. § 431.

9

 Pursuant to section 302(d) of the WCA, “A contractor shall not subcontract 

all or any part of a contract unless the subcontractor has presented proof of 

insurance under this act.” 77 P.S. § 462.1.
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insurance that paid the injured worker. Fonner v. Shandon, Inc., 724 A.2d 

903, 904 (Pa. 1999). This is because the WCA treats a statutory employer as

if it is the actual employer, who is likewise immune from suit brought by the 

employee for a work-related injury. See Dobransky, 273 A.3d at 1135

(explaining that this immunity comes “in return for assuming secondary 

liability for the payment of workers’ compensation benefits”).

10

 As the 

provisions implicate subject matter jurisdiction, the question of their 

applicability is not waivable; “it may be raised at any stage in the proceedings 

by the parties or by a court on its own motion.” In re Petition for Enf’t of

Subpoenas issued by Hearing Exam’r in a Proceeding before Bd. of

Med., 214 A.3d 660, 663 n.3 (Pa. 2019) (citation and brackets omitted);

LeFlar v. Gulf Creek Indus. Park No. 2, 515 A.2d 875, 879 (Pa. 1986) (“the 

[WCA] deprives the common pleas courts of jurisdiction of common law 

actions in tort for negligence against employers and is not an affirmative 

defense which may be waived if not timely plead”).

Section 302(a)

Section 302(a) of the WCA provides:

A contractor who subcontracts all or any part of a contract and his 

insurer shall be liable for the payment of compensation to the 

employes of the subcontractor unless the subcontractor primarily 

____________________________________________

10

 We note there have been numerous calls in various court decisions for the 

General Assembly to eliminate statutory employer immunity in the absence of 

payment of workers’ compensation benefits to the injured worker. See, e.g.,

Dobransky, 273 A.3d at 1141-42 (quoting Doman v. Atlas America, Inc., 

150 A.3d 103, 109-10 (Pa. Super. 2016) (collecting cases)).
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liable for the payment of such compensation has secured its 

payment as provided for in this act. Any contractor or his insurer 

who shall become liable hereunder 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 (1) to have work performed consisting of (i) the removal, 

excavation or drilling of soil, rock or minerals, or (ii) the cutting 

or removal of timber from lands, or (2) 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. This 

subsection shall not apply, however, to an owner or lessee of land

principally used for agriculture who is not a covered employer 

under this act and who contracts for the removal of timber from 

such land.

77 P.S. § 461. As our Supreme Court has explained, section 302(a) applies

to the specialty contracts identified (including, in relevant part, contracts for 

“the cutting or removal of timber from lands”), but also to those that 

constitute “work of a kind which is a ‘regular or recurrent part of the business’

of the putative statutory employer.” Williamson, 44 A.3d at 1157 (citing 77 

P.S. § 461).

The trial court discussed this provision, sua sponte, in its opinion filed 

pursuant to Pa.R.A.P. 1925(a). See Trial Court Opinion, 8/22/2023, at 14. 

Though the court believed that the work performed by Colonial was “the 

cutting or removal of timber from lands,” it found that section 302(a) was 

nonetheless inapplicable because there was no proof of a contract between 

VBC and Colonial. Id. As there can be no statutory employer status unless 
J-A10018-24

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“a person ... contracts with another” for the identified work, it found VBC was 

not entitled to immunity under section 302(a). Id.

VBC contends that this was error, as it clearly had a contract with 

Colonial, albeit an oral contract, based upon the acknowledgement of Bruce 

Ross, owner of Colonial, during his testimony that he “had an agreement with 

Vito Braccia’s company” to perform the tree removal work for an identified 

price.

11

 VBC’s Brief at 48-49. In VBC’s view, this testimony, along with what 

VBC contends is an “undisputed fact” that the work performed was “the cutting 

or removal of timber from lands,”12 requires a finding that VBC was Feldman’s 

statutory employer under section 302(a). Id. at 49.

Contrary to VBC’s contention that the work performed by Colonial was 

undisputedly “the cutting or removal of timber from lands,” we find the 

question of what constitutes “timber” under subsection 302(a)(1)(ii) to be 

ambiguous, making it unclear as to whether the provision applies to the 

circumstances before us. Our review of the WCA reveals that it does not 

____________________________________________

11 VBC does not contend, and the record does not support a finding, that the 

tree removal service engaged in by Colonial was a regular or recurrent part of 

its business, and we therefore do not evaluate the applicability of that aspect 

of the statute.

12

 We note that this “fact” is disputed by Feldman. See Feldman’s Brief at 

47-48. Because the trial court sua sponte raised the question of the 

applicability of section 302(a) in its Rule 1925(a) opinion, and VBC asserts its 

applicability for the first time in its brief before this Court, Feldman’s first 

opportunity to voice his opposition to the application of section 302(a) was in 

his responsive brief.
J-A10018-24

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contain a definition of “timber.” To determine the meaning of this language

we therefore turn to our principles of statutory construction, which instruct 

that we must endeavor to “ascertain and effectuate the intention of the 

General Assembly” when enacting section 302(a)(1)(ii). 1 Pa.C.S. § 1921(a). 

Although the plain language of the statute is the best indicator of legislative 

intent, if the statutory language is ambiguous (as it is here), we may explore 

other avenues to discern its meaning, including, inter alia, the object to be 

attained, the mischief to be remedied, and the consequences of a particular 

interpretation. Id. § 1921(b), (c). In reaching this determination, we may 

look to “other statutes upon the same or similar subjects.” Id. § 1921(c)(5). 

Our research reveals that section 8311 of the Judicial Code,

13 which 

addresses damages in actions for the conversion of timber, does contain a 

definition of “timber.” See 42 Pa.C.S. § 8311(c); see also Miller v. Cnty. 

Of Ctr., 173 A.3d 1162, 1170 n.7 (Pa. 2017) (our Supreme Court, collecting 

cases, observing that “courts routinely invoke the definitions provided in the 

Judicial Code” when interpreting statutes in other provisions that contain 

undefined terms). In fact, it is the only statute to define the term. As in 

Miller, “this is a case where we are left with no other source for determining 

the meaning of the undefined statutory term. ... Under such circumstances, 

____________________________________________

13

 42 Pa.C.S. §§ 101-9914.
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nothing precludes a court from considering the definitions provided in the 

Judicial Code[.]” Id.

Section 8311 applies to a party “who cuts or removes the timber of 

another person without the consent of that person,” and sets forth the 

exclusive civil remedies upon a finding of liability. 42 Pa.C.S. § 8311(a). The 

statute defines “timber” as “standing trees, logs or parts of trees that are 

commonly merchandized as wood products.” Id. § 8311(c). 

In applying section 8311, this Court has distinguished the cutting of 

timber from otherwise felling trees according to the purpose of the trees when 

they are standing. See Christian v. Yanoviak, 945 A.2d 220 (Pa. Super. 

2008). In Christian, the appellant cut several trees on located on appellees’ 

adjacent property that were shielding the appellees’ home from view of the 

Pennsylvania Turnpike, and “[t]he trees were sold for timber.” Id. at 

223. The appellees sought damages in the amount of the replacement value 

of the trees, the cost to restore their property to its original condition, and the 

profit the appellant yielded from selling their trees. Id. The appellant, on the 

other hand, advocated for damages in the amount of the cash value of the 

trees pursuant to section 8311. Id. The trial court agreed with the appellees, 

finding section 8311 inapplicable; the appellant appealed, and we affirmed. 

Id. at 226.

Of particular relevance here, the Christian Court found that “the trees 

at issue do not constitute ‘timber’ as defined under the statute since they were 
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not intended to be harvested for commercial use.” Further, we found that

nothing in section 8311(c)’s definition implies that residential backyard trees 

are to be included as timber. Id. Instead, “the trees were situated in [the 

a]ppellees’ yard solely for purposes of decoration, providing shade as well as 

serving as a natural sound and visual barrier between the home and the 

Pennsylvania Turnpike.” Id. 

Consistent with the definition provided in section 8311, our laws are 

replete with references to “timber” as a thing of value and something separate 

and distinguishable from mere trees. See, e.g., 18 Pa.C.S. § 1107 

(addressing restitution for theft of timber); Act of April 20, 1905 April 20, P.L. 

246, § 1, 72 P.S. § 5583 (providing tax incentive for the planting of forest 

trees or timber trees); Act of May 13, 1925 P.L. 643, 32 P.S. Part I, Ch. 8 

(entitled “Trees, Timber and Lumber”). Additionally, the lone case addressing 

section 302(a)(1)(ii), Dalich v. W.C.A.B. (Lyons), 661 A.2d 936 (Pa. 

Commw. 1995), decided by the Commonwealth Court, likewise supports the 

applicability of section 8311’s definition of “timber.”

14

 See id. at 936-38 

____________________________________________

14

 Although 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 (Pa. Super. 2010) (citation omitted). This 

is particularly true where, as here, the statutory scheme in question is more 

commonly evaluated by the Commonwealth Court. See 42 Pa.C.S. §§ 

762(a)(3), 763(a) (directing appellate jurisdiction of the Commonwealth Court 

of appeals from administrative agencies).
J-A10018-24

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(though not the focus of the decision, stating that the contract in question was 

for the cutting or removal of timber from land where the injured worker’s 

employer contracted a commercial hardwood business to harvest timber the 

owner purchased).15

Here, the project in question was for the removal of trees located on 

adjacent properties which obstructed the view from the Kelly. N.T., 

3/30/2021 (Blumenfeld Deposition), at 28-29, 50; N.T., 4/21/2021 (Gallagher 

Deposition), at 34. The trees were of the type that dot an urban landscape, 

possibly as a visual or sound barrier between properties, and, based on the 

evidence presented, were dead or dying at the time Colonial was set to remove 

them. See N.T., 4/21/2021 (Gallagher Deposition), at 36 (indicating that the 

Lower Merion arborist came to view the trees and concluded they were fine to 

be taken down as “they weren’t viable”); see also, e.g., Feldman Exhibits P50C, P-50E, P-50F, P-62, P-77E, P-77F, P-78, P-113, P-128. VBC does not 

claim, and the record does not support a finding, that the trees had any value 

____________________________________________

15

 In Lyons, Dalich was injured while working, but not as a result of 

negligence, and his actual employer, Robert Stock, did not carry workers’ 

compensation insurance as required by the WCA. Lyons, 661 A.2d at 937. 

The central issue involved in Lyons was whether section 302(a) of the WCA 

required that the alleged statutory employer occupy or control the premises 

where the injury occurred, as is required for a finding under section 302(b). 

Id. at 938. The Lyons Court held that there was no such requirement under 

the law, id. at 939, a decision our Supreme Court later confirmed was correct 

in Williamson. See Williamson, 44 A.3d at 1157.
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whatsoever or were “intended to be harvested for commercial use.” See 

Christian, 945 A.2d at 226.

As the trees in question were not “timber,” we conclude that section 

302(a) of the Workers Compensation Act does not apply to the tree removal 

work performed. VBC therefore cannot be deemed a statutory employer under 

section 302(a)(1)(ii).16

Section 302(b)

Section 302(b) addresses the far more common use of the Statutory 

Employer Doctrine. That provision states, in pertinent part:

Any employer who permits the entry upon premises occupied by 

him or under his control of a laborer or an assistant hired by an 

employe or contractor, for the performance upon such premises 

of a part of such employer’s regular business entrusted to that 

employe or contractor, shall be liable for the payment of 

compensation to such laborer or assistant unless such hiring 

employe or contractor, if primarily liable for the payment of such 

compensation, has secured the payment thereof as provided for 

in this act. Any employer or his insurer who shall become liable 

hereunder for such compensation may recover the amount thereof 

paid and any necessary expenses from another person if the latter 

is primarily liable therefor.

77 P.S. § 462. The long-adhered to test for determining whether a person or 

entity constitutes a statutory employer under section 302(b) was originally set 

forth by our Supreme Court in McDonald v. Levinson Steel Co., 153 A. 424

____________________________________________

16

 While this is not the reason for the trial court’s decision below, the law is 

clear that “we may affirm a trial court’s ruling on any basis supported by the 

record on appeal.” Lynn v. Nationwide Ins. Co., 70 A.3d 814, 823 (Pa. 

Super. 2013).
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(Pa. 1930). The McDonald test requires proof of each of the following 

elements to satisfy section 302(b):

(1) An employer who is under contract with an owner or one in 

the position of an owner. (2) Premises occupied by or under the 

control of such employer. (3) A subcontract made by such 

employer. (4) Part of the employer’s regular business intrusted 

[sic] to such subcontractor. (5) An employee of such 

subcontractor.

Id. at 426. 

Section 302(b) is remedial in nature, as the General Assembly wanted 

to ensure that injured workers received workers’ compensation benefits 

despite the default of the subcontractor employer. Patton v. Worthington

Assocs., Inc., 89 A.3d 643, 645 (Pa. 2014) (citing Qualp v. James Stewart 

Co., 109 A. 780, 782 (Pa. 1920)). Therefore, we have required strict 

construction of the McDonald factors to ensure that the Statutory Employer 

Doctrine, and the resultant immunity provided to contractors, is not 

“converted into a shield behind which negligent employers may seek refuge.” 

Travaglia v. C.H. Schwertner & Son, Inc., 570 A.2d 513, 515 (Pa. Super. 

1989) (citations omitted); accord Peck v. Delaware Cnty. Bd. of Prison 

Inspectors, 814 A.2d 185, 189 (Pa. 2002) (OAJC) (“In determining whether 

a party is a statutory employer, courts should construe the elements of the 

McDonald test strictly and find statutory employer status only when the facts 

clearly warrant it.”).

Applying the above standard and test, the trial court found that VBC 

failed to establish that it met elements one, three, four, and five of the 
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McDonald test. Trial Court Opinion, 8/22/2023, at 7. Specifically, it found 

there was no evidence that VBC (the undisputed contractor for the tree 

removal) and Cross Properties (purportedly the owner or one in the position 

of the owner) entered into a contract, as the testimony at trial conclusively 

established that the representatives of Cross Properties (Mr. Blumenfeld and 

Mr. Gallagher) believed they were contracting with Altino, not VBC. Id. at 8. 

“Accordingly, as an essential element of a purported contract—the parties[’] 

mutual understanding of with whom they were contracting—was missing, VBC 

and Cross Properties never had a meeting of the minds and a contract was 

not established.” Id. at 9. For similar reasons, the trial court found no 

subcontract existed between VBC and Colonial, as Mr. Ross indicated his 

understanding at trial that he was contracting with Altino, for whom he had 

previously conducted tree removal projects. Id. at 10 (citing N.T. 134:15-

135:13, 177:10-178:1, 190:16-19, October 25, 2022).

Additionally, the trial court found that there was no contract with an 

owner or one in the position of the owner, as the tree removed that resulted 

in Feldman’s injuries was on property owned by SEPTA. Id. at 9. “During 

trial, Mr. Braccia stated that he never contacted anyone at SEPTA for a right 

of entry to this property. (N.T. 34:9-22, October 27, 2022.) Therefore, there 

could not have been an agreement between VBC and the owner of the 

property upon which those trees were located,” and VBC failed to satisfy the 

first McDonald element on that basis as well. Id. at 9-10.
J-A10018-24

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VBC addresses only the trial court’s findings as it relates to the absence 

of a contract between VBC and Cross Properties and the absence of a 

subcontract between VBC and Colonial (as well as advancing a protective 

argument in support of finding that the second McDonald element was 

satisfied). See VBC’s Brief at 21-47. VBC goes to great lengths to delineate 

the testimony supporting its claim—in particular, testimony from various 

witnesses involved in the tree removal project that “Vito Braccia” or “Vito 

Braccia’s companies” were to do the job. See id. VBC also identifies

testimony provided by Feldman’s experts indicating that Cross Properties 

retained VBC to do the tree removal work. Id. at 28-29 (citing N.T., 

10/25/2022, at 102, 107-08 (testimony from Dr. Vigilante that Mr. Braccia

“was hired to hire Colonial and direct the project” and VBC “was responsible” 

for the tree removal project), and id. at 54-55, 60, 61 (Mr. Randle testifying 

that Cross Properties reached out to VBC for the tree removal project, that 

VBC was the general and controlling contractor for the tree removal, and that 

VBC was responsible to manage the work and safety of the site)).

This does not, however, establish that VBC was the entity contracted 

with for the tree removal project. To the contrary, the two individuals from 

Cross Properties responsible for the tree removal project, Mr. Blumenfeld and 

Mr. Gallagher, each clearly testified that Altino was the entity retained for the 

tree removal job. Mr. Blumenfeld testified that he had never heard of VBC 

before, had only worked with Altino, and until the time of his deposition, never 
J-A10018-24

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knew VBC had any involvement in the tree removal project. N.T., 3/30/2021 

(Mr. Blumenfeld Deposition), at 72, 131. Mr. Gallagher testified that he 

contracted with Altino for the tree removal project. N.T., 4/21/2021 (Mr. 

Gallagher Deposition), at 72. In fact, he testified that he was aware that 

Colonial was going to be doing the tree removal work, not Altino, and when 

asked why he did not simply contract with Colonial directly, he responded that 

it was “[b]ecause we had a long-standing relationship with Altino.” Id. at 73; 

see also id. at 137-38 (agreeing in his testimony that, for the tree removal 

project, Mr. Gallagher believed he was “dealing with Vito Braccia as a 

representative of Altino”); id. at 138, 141 (Mr. Gallagher testifying that 

although he considered “Vito and his various companies” to be “the same,” he 

did not believe that VBC was involved in the tree removal project). This is all 

supported by the estimate and emails sent about the tree removal project, 

which indicated they were from Mr. Braccia on behalf of Altino. See, e.g., 

Feldman’s Exhibit P-79; Altino Motion for Summary Judgment, 2/7/2022, at 

Exhibit N. Mr. Braccia, however, very clearly and consistently testified that 

Altino played no role in the direction and management of the tree removal 

project, admitting that VBC was the only company of his involved in that 

aspect of the project. See N.T., 10/27/2022, at 16; N.T., 10/25/2022, at 68. 

As our High Court has recognized, a person or entity is free to conduct 

business using a corporate form, but “[o]nce these choices are made, such 

persons and entities are not free to blur the lines of the capacity in which they 
J-A10018-24

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act as it may suit them, and the courts must take care to maintain the 

necessary distinctions.” Patton, 89 A.3d at 649. Tellingly, throughout both 

depositions, counsel for VBC repeatedly objected and/or clarified that Mr. 

Braccia, VBC, and Altino were distinct legal entities, with VBC and Altino being 

different companies. See, e.g., N.T., 3/30/2021 (Mr. Blumenfeld Deposition), 

at 129; N.T., 4/21/2021 (Mr. Gallagher Deposition), at 74, 136. Therefore, 

viewing the record in the light most favorable to Feldman as the verdict 

winner, we find no error or abuse of discretion in the trial court’s conclusion 

that there was insufficient evidence of a contract between VBC and the Cross 

Property entities for the tree removal project and denying VBC’s request for 

JNOV on this basis. See Doe, 987 at 764; Holt, 932 A.2d at 919.

Even assuming that there was a valid contract between VBC and any of 

the Cross Properties entities for the tree removal, we agree with the trial court 

that there is no evidence that VBC contracted with “an owner or one in the 

position of an owner.” A contractor occupies the position of the owner by 

conducting work under contract with the owner of the property whereby they 

occupy and control the premises and are authorized to permit subcontractors 

to enter the property. McCarthy v. Dan Lepore & Sons Co., 724 A.2d 938, 

942 n.3 (Pa. Super. 1998) (citation omitted).

In the matter before us, Cross Properties requested that Mr. Braccia 

remove trees on the neighboring property to allow for an unobstructed view 

of the city from the Kelly. See N.T., 3/30/2021 (Mr. Blumenfeld Deposition), 
J-A10018-24

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at 28-29, 50; N.T., 4/21/2021 (Mr. Gallagher Deposition), at 34. Some of the 

trees were located on 29 Bala Avenue; others, including the tree that is at the 

center of this case, were located on property owned by SEPTA. N.T., 

10/26/2022, at 18-19; Feldman’s Exhibit P-113. The record reflects, however,

that no entity associated with the tree removal project obtained SEPTA’s 

permission to enter upon its property and remove the tree that resulted in 

Feldman’s injuries.

17

 N.T., 10/26/2024, at 19-20. 

Mr. Blumenfeld testified that he never met with SEPTA about the tree 

work or to obtain permission to enter. N.T., 3/30/2021 (Mr. Blumenfeld 

Deposition), at 65. Mr. Gallagher likewise did not notify SEPTA or seek 

permission to allow VBC to conduct the tree removal on its property. N.T., 

4/21/2021 (Mr. Gallagher Deposition), at 66, 105-06. Mr. Gallagher did have 

staff contact PECO about potentially trimming the tree in question, but PECO 

responded that it did not do this work; instead, the contractor needed “to fill 

out a make-safe form. PECO would then come out and assess the situation 

to see if the lines need to be de-energized for the day.” Id. at 107-08; see 

also id. at 149-50 (Mr. Gallagher received confirmation that PECO lines ran 

through the trees to be removed). This did not occur. Id. at 129-30, 150-

51. 

____________________________________________

17

 The parties stipulated that the tree in question was removed from SEPTA’s 

property. N.T., 10/27/2022, at 122. See also N.T., 3/30/2021 (Mr. 

Blumenfeld Deposition), at 52 (“Where this [tree removal] work happened was 

offsite, it wasn’t on our property.”). 
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Mr. Braccia testified that he was aware the tree in question was on 

SEPTA’s property, but he did not contact SEPTA to seek permission to enter 

its property (though he recognized that he should have and that it was his 

responsibility to do so). See N.T., 10/27/2022, at 34, 37-39. David 

Montvydas, SEPTA’s chief engineer of its maintenance department, testified 

that there is a mandatory application process for any person or entity seeking 

right of entry onto SEPTA’s property. N.T., 10/26/2024, at 5-9. He confirmed 

that neither Mr. Braccia, VBC as an entity, nor any representative of Cross 

Properties contacted SEPTA, let alone complied with its right of entry process,

for the tree removal project. Id. at 19-20, 24. VBC did not have permission 

to enter SEPTA’s property or to remove the tree from its property. Id.

There was no contract with SEPTA, the owner of the property, nor was 

VBC authorized to permit subcontractors to enter upon SEPTA’s property. On 

this basis, VBC fails to satisfy the first element of the McDonald test, as he 

did not have a contract with the owner of the property or someone in the 

position of the owner of the property in question. See McCarthy, 724 A.2d 

at 942 n.3. We therefore find no error or abuse of discretion by the trial court 

in finding that VBC was not Feldman’s statutory employer pursuant to section 

302(b). VBC’s argument that it was entitled to JNOV also fails on this basis.

New Trial – Statutory Employer

In the alternative, VBC contends that it is entitled to a new trial at which 

its status as a statutory employer can be litigated—in particular, the question 
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of whether VBC had a contract with Cross Properties for the tree removal work. 

VBC’s Brief at 49-50. Assuming solely for the sake of this argument that the 

applicability of the Statutory Employer Doctrine could be a jury question, we 

find that VBC is not entitled to a new trial on this basis. Because VBC failed 

to establish that the work involved the “cutting or removal of timber from 

lands” or that VBC was permitted to be on SEPTA’s property, there is no reason

to remand the matter for a new trial to litigate the question of whether VBC 

had a contract with the Cross Properties entities. 

Weight of the Evidence

In its penultimate issue, VBC contends that the jury’s verdict finding 

VBC 100% liable for Feldman’s injuries was against the weight of the 

evidence.18 VBC’s Brief at 54-56. Specifically, VBC argues that the evidence 

presented reflected that Cross Properties and Altino each violated its standard 

of care, created an unreasonably dangerous situation by failing to plan and 

properly oversee the tree removal project, and was responsible for Feldman’s 

injuries. Id. at 55-56. According to VBC, this evidence was “uncontroverted.” 

Id. at 56.

____________________________________________

18

 In addition to questions concerning VBC’s negligence, the jury form

included separate questions of whether Altino or any of the Cross Property 

entities named as defendants were liable and provided the jury a space to 

apportion the percentage of liability between VBC and those defendants. See 

Verdict Sheet at 1-3.
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The trial court found that the evidence presented supported the jury’s 

finding that VBC was 100% liable for Feldman’s injuries. There was no 

testimony that any of the individual defendants, collectively referred to as 

Cross Properties,19 participated in the tree removal project. Trial Court 

Opinion, 8/22/2023, at 21. Indeed, as the court observed, Blumenfeld 

testified that none of the Cross Properties named defendants had any 

employees. Id.

According to the trial court, the only individuals associated with Cross 

Properties that had any involvement in the tree removal project were Mr. 

Blumenfeld and Mr. Gallagher; the record, however, was unclear as to who 

Mr. Blumenfeld worked for, and neither Mr. Blumenfeld, Mr. Gallagher, nor Mr. 

Gallagher’s employer (Cross Prop. P&B, LLC) were named as defendants in 

this case or included on the jury verdict slip. Id. at 21-22. Further, the court 

found the record amply supported the jury’s finding that Altino was not 

responsible for Feldman’s injuries, including testimony from Mr. Braccia that 

Altino was not involved in the tree removal project. Id. at 22. The trial court 

therefore found that the jury’s verdict holding VBC 100% responsible for 

Feldman’s injuries was supported by the record, did not shock its sense of 

justice, and therefore was not against the weight of the evidence. Id. at 23.

____________________________________________

19

 See supra, note 1.
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“Appellate review of a weight claim is a review of the trial court’s 

exercise of discretion, not of the underlying question of whether the verdict is 

against the weight of the evidence.” McFeeley v. Shah, 226 A.3d 582, 594 

(Pa. Super. 2020) (internal brackets and citation omitted). “Because the trial 

judge has had the opportunity to hear and see the evidence presented, an 

appellate court will give the gravest consideration to the findings and reasons 

advanced by the trial judge when reviewing a trial court’s determination that 

the verdict is against the weight of the evidence.” Bartlett v. Demich, 307 

A.3d 736, 741 (Pa. Super. 2023) (citation omitted). “One of the least 

assailable reasons for granting or denying a new trial is the lower court’s 

conviction that the verdict was or was not against the weight of the evidence 

and that a new trial should be granted in the interest of justice.” McFeeley, 

226 A.2d at 594 (citation omitted). 

If there is any support in the record for the trial court’s decision 

to deny the appellant’s motion for a new trial based on weight of 

the evidence, then we must affirm. An appellant is not entitled to 

a new trial where the evidence presented was conflicting and the 

factfinder could have decided in favor of either party. 

Id. (cleaned up; citation omitted).

After carefully reviewing the evidence of record, we find that it fully 

supports the trial court’s findings and conclusions. VBC is correct that the 

record contains evidence that two of Feldman’s expert witnesses, William 

Vigilante (expert in human factors and ergonomics) and Jason Randle (expert 

in worksite safety on construction sites) included in their reports information 
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to support a general finding that “Cross Properties” was negligent. N.T., 

10/25/2022, at 110-12; 10/26/2022, at 90-91. VBC also correctly states that 

Dr. Vigilante included in his report information and conclusions that could 

support a finding of Altino’s negligence. N.T., 10/25/2022, at 110-12. Dr. 

Vigilante explained, however, that he had “lumped [together VBC and Altino]

in with the acronym ACC,” and that after writing his report, he learned that 

Altino was not involved in the tree removal project. Id. at 112-13; see also 

id. at 68 (relying upon Mr. Braccia’s deposition testimony that no Altino 

employees were involved in the tree removal project, only VBC).

The record further reflects that both Dr. Vigilante and Mr. Randle 

testified, in no uncertain terms, that VBC’s negligence alone was the cause of 

Feldman’s injuries. Id. at 81-86, 96-97, 99; N.T., 10/26/2022, at 60-63, 68-

76.20 This is supported by admissions made in the testimony of Mr. Braccia 

himself:

• Mr. Braccia knew that it was his responsibility to make the tree removal 

jobsite safe and that he failed to live up to that responsibility. N.T., 

10/27/2022, at 13.

____________________________________________

20

 Mr. Randle testified to the existence of joint responsibility for jobsite safety 

between VBC and Colonial. N.T., 10/26/2022, at 85. As Colonial is Feldman’s 

employer, however, it could not be held liable under a theory of negligence. 

See 77 P.S. § 431.
J-A10018-24

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• As he was responsible for jobsite safety, he made a promise that he 

would plan, supervise, and manage in a way that kept workers safe, but 

he failed to keep that promise. Id. at 53.

• He knew the tree in question was located on SEPTA’s property, that 

there were power lines above the trees to be removed, that it was his 

responsibility to contact SEPTA to request right of entry, and that his 

failure to do so was his mistake. Id. at 34, 37-39.

• He did not engage in any planning with Mr. Gallagher or anyone from 

Cross Properties; Mr. Braccia knew any planning needed to be done 

himself and he failed to do so. Id. at 50-51.

Based upon the evidence presented, we find no abuse of discretion in 

the trial court’s determination that the verdict was not against the weight of 

the evidence. VBC is not entitled to a new trial on this basis.

Photographic Evidence

Lastly, VBC asserts that the trial court abused its discretion by admitting 

photographic evidence of Feldman’s injuries that VBC contends were 

“extremely gruesome and graphic.” VBC’s Brief at 56 (citing Feldman’s 

Exhibits P-85–P-90, P-92–P-93, P-95–96). According to VBC, the trial court 

should have excluded these photographs pursuant to Pennsylvania Rule of 

Evidence 403, which provides for the exclusion of otherwise relevant evidence 

if the probative value of the evidence is outweighed by the danger for unfair 

prejudice or is needlessly cumulative of other evidence already admitted. Id.
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at 57 (citing Pa.R.E. 403). VBC argues that the photographs in question were 

“inflammatory,” used to “shock the conscious of the jury and engender 

sympathy” for Feldman, and “completely unnecessary” because Feldman’s 

medical expert also utilized medical illustrations to explain some of the 

procedures Feldman underwent following his injuries. Id.

The trial court provided the following explanation for its admission of 

the photographs:

[Feldman] proffered several photographs which showed the

injuries he sustained from his electrocution. The photographs 

were taken on different days and show different stages in 

[Feldman’s] recovery process including the various procedures he

underwent, such as a laparotomy, debridement procedures, 

grafting, and bandage changing. While the photographs are 

graphic, they are an accurate representation of [] Feldman’s 

injuries. They bear directly on the pain and suffering that he has 

been forced to endure. Dr. William Hughes, [Feldman’s] burn 

expert and the surgeon who conducted the procedures on [] 

Feldman, utilized the photographs during his testimony to make 

his description of the injuries and procedures and the illustrations 

provided more intelligible for the jury. These injuries and 

procedures are not something the average juror has seen, and the 

images allow them to more fully comprehend what happened to 

[] Feldman. Although the photographs may have been 

unpleasant, they were clearly relevant to the issue of damages.

Further, these images were neither duplicative nor 

cumulative such that they would prejudice [VBC]. [Feldman]

moved into evidence only ten photographs of [] Feldman’s

injuries. These photographs were from different days and 

different phases in [] Feldman’s recovery. [Feldman] did not pile 

on repetitive photographs and the jury was not overwhelmed with

duplicative and repetitive photos. It was merely shown what was 

necessary to convey the severity of [] Feldman’s injuries. 

Moreover, these photographs were not cumulative to the 

testimony. As such, this [c]ourt determined the risk of prejudice 

was not so great that it outweighed the clear probative value of 

the photographs.
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Trial Court Opinion, 8/22/2023, at 24-25 (footnote omitted).

We review claims challenging the admission of evidence for an abuse of 

discretion. Stumpf v. Nye, 950 A.2d 1032 (Pa. Super. 2008). An abuse of 

discretion requires more than finding an error of judgment or that this Court 

would have ruled differently; instead, discretion is abused “if in reaching a 

conclusion the law is overridden or misapplied, or the judgment exercised is 

manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, 

as shown by the evidence or the record[.]” Id. (citation omitted).

Merely because a photograph is gruesome is not a reason to 

exclude it. The court must consider whether the evidentiary value 

of the photograph outweighs the danger that it will upset the jury. 

Even when a witness has described an injury, a photograph may 

still have evidentiary value in that it may make the description 

more intelligible.

Cervone v. Reading, 538 A.2d 16, 20 (Pa. Super. 1988) (internal citations 

omitted).

In explaining its reasoning, the trial court relied upon our prior decision 

in Piso v. Weirton Steel Co., 345 A.2d 728 (Pa. Super. 1975) (en banc). 

Piso involved a question of the admissibility of photographs of an injured 

plaintiff who, because of the defendant’s negligence, was electrocuted and 

sustained burns to thirty-five percent of his body. Id. at 730. The defendant 

challenged the trial court’s admission of photographs depicting Piso’s injuries 

and wounds, which accompanied the testimony of Dr. Harrison, Piso’s treating 

physician in the burn unit of the hospital, and were used to explain the nature 
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and the extent of his injuries and treatment. This Court held that while the 

pictures “depict an unpleasant spectacle,” the trial court did not abuse its

discretion by admitting them, as “the pictures were clearly relevant to explain 

the nature and extent of the injuries and to illustrate the extensive treatment 

required.” Id. at 731.

We agree with the trial court that Piso supports its decision to allow the 

admission of the photographs. The record reflects that counsel for Feldman 

culled through approximately 150 photographs, choosing 10, which amounted 

to 1 picture to depict each stage of Feldman’s treatment. N.T., 10/24/2022, 

at 3-5. Counsel’s argument in favor of admission was that the jury would not 

be able to fully understand Feldman’s injuries and the kind of treatment he 

underwent without the photographs. Id. at 4. 

We have reviewed the photographs in question, and although they are 

certainly not pleasant to view, they do nothing more than aid Dr. Hughes in 

his testimony about the medical procedures and treatment Feldman had to 

undergo for his injuries. See id. at 119-29; Feldman’s Exhibits P-85–P-90, P92–P-93, P-95–96. VBC is correct that Feldman also used medical 

illustrations—cartoon-like depictions of certain medical procedures that 

Feldman underwent— during his testimony, but we disagree that these slides 

rendered cumulative the photographs of Feldman throughout his medical 

journey. See VBC’s Brief at 57 (citing Feldman’s Exhibits P52–P-57). Our 

review of the exhibits, as well as the testimony that accompanied them, reveal 
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that those illustrative exhibits provided a basis for a general explanation of 

the procedure employed, while those that had a corresponding real-life 

photograph of Feldman21 allowed Dr. Hughes to more fully explain Feldman’s

specific experience with the procedure. Compare, e.g., N.T., 10/24/2022, at 

117-10 (using Exhibit 53 to explain the mechanics of debridement, which uses 

a single-edge razor to remove dead tissue caused by the burn to allow for the 

grafting of skin to healthy tissue), with id. at 120-21 (using Exhibit 88 to 

show areas on Feldman’s body after debridement, identifying tissue that was 

partially viable and areas that had received skin grafts post-debridement and 

were in the process of healing).

The photographs in question were relevant to illustrate the various and 

extensive treatments Feldman had to undergo and helped to make Dr. 

Hughes’ testimony “more intelligible.” See Cervone, 538 A.2d at 20; Piso, 

345 A.2d at 731. They were neither cumulative nor unduly prejudicial when 

compared to their high probative value. See Pa.R.E. 403. We therefore find 

no abuse of discretion in the trial court’s decision to allow the admission of the 

photographs.

Conclusion

____________________________________________

21

 At least one of the exhibits, P-57, which depicts the insertion of a Foley 

Catheter through a man’s penis and into his bladder, had no accompanying 

real-life photograph of Feldman.
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For the foregoing reasons, we find none of the issues raised by VBC on 

appeal warrant reversal of the trial court’s denial of its motion for JNOV or 

remand for a new trial. We therefore affirm.

Judgment affirmed.

Date: 8/14/2024