J-A03017-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RONALD AND JILL OSTER, H/W

Appellants

v.

SERFASS CONSTRUCTION COMPANY, 

INC., AND CITY CENTER INVESTMENT 

CORPORATION

RONALD AND JILL OSTER H/W

Appellants

v.

TOWER SIX OP, LP

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IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1052 EDA 2021

Appeal from the Order Entered May 4, 2021

In the Court of Common Pleas of Lehigh County Civil Division at No(s): 

2018-C-2235, 

2018-C-3087

BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.

MEMORANDUM BY DUBOW, J.: FILED AUGUST 17, 2022

Appellants, Ronald and Jill Oster, appeal from two orders which 

respectively granted summary judgment in favor of Appellees Serfass 

Construction Co., Inc. (“Serfass”) and Tower Six OP, LP (“Tower”) in 

Appellants’ personal injury action.

1 After careful review, we affirm. 

____________________________________________

1

In addition to Ronald Oster’s negligence claims, Jill Oster, his wife, pleaded

counts of loss of consortium against all defendants. For ease of reference, we 

refer to the Osters collectively as Appellants. 
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Factual and procedural history

In 2016, Serfass and Tower entered a contract whereby Serfass 

provided general contracting for demolition of a building (the “Tower 

Building”) and construction of a new building in Allentown (generally, the 

“Tower Project”). Serfass employed several subcontractors during the project, 

including Duggan & Marcon, Inc. (“Duggan”) for whom Mr. Oster worked. 

Sometime in 2016, Serfass completed demolition of the main portion of the 

Tower Building. The demolition left brick from the Tower Building adhered onto 

an adjoining building (the “Trifecta Building”). In fall 2016, two pairs of Serfass 

employees began chipping the adhered brick off the Trifecta Building. 

In mid-November 2016, an excavator struck the Trifecta Building. As a 

result, on November 17, 2016, Serfass commissioned an engineer to

“inspect[] demolition activity along the west wall of [the Tower Building] and 

the interior and exterior faces of the east wall of the abutting [Trifecta 

Building].” Memorandum in Opposition to Center City Investment Corp. Motion 

for Summary Judgment, filed 10/9/20, at Exh. D (hereinafter “Engineering 

Report”). The engineer concluded that “[b]ased on my observation, the 

demolition work associated with the [Tower Building] has no discernable effect 

on the adjoining Trifecta Building [s]tructure.” Id.

On November 26, 2016, Mr. Oster and another Duggan employee took 

the place of one of the pairs of Serfass employees, picking up where they had 

left off chipping leftover Tower brick from the Trifecta Building. At some point 

that day, the chimney of the Trifecta Building unexpectedly collapsed while 
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the Duggan and Serfass employees worked. As a result, multiple bricks fell 

and struck Mr. Oster in the head, neck, and shoulders, causing injury. 

On August 22, 2018, and November 20, 2018, Appellants filed 

negligence actions against Serfass and Tower, respectively.2 The defendants 

filed motions for summary judgment. Specifically, on September 9, 2020, 

Tower filed a motion for summary judgment alleging that, as owner of the 

property, it did not owe Mr. Oster a duty of care. On October 6, 2020, Serfass 

filed a separate motion for summary judgment alleging that it was entitled to 

immunity as Mr. Oster’s statutory employer under the Pennsylvania Workers’ 

Compensation Act.

3

In opposition to Tower’s summary judgment motion, Appellants argued 

that a question of fact existed regarding Tower’s awareness of the allegedly 

dangerous condition posed by the Trifecta Building chimney. Appellants 

asserted that “there is evidence that [Tower] knew of potential structural 

damage to the Trifecta Building due to the excavator striking it.” Memorandum 

in Opposition to Tower Motion for Summary Judgment, filed 10/9/20, at 5 

(unpaginated). Appellants argued that “[t]here is no evidence that [Mr.] Oster 

knew of any collision between an excavator and the [Trifecta Building]” and

reasoned, therefore, that Tower “had superior knowledge of the danger posed 

____________________________________________

2 On March 6, 2019, by stipulation of the parties, the trial court ordered the 

consolidation of these actions. Appellants also filed suit against Center City 

Investment Corporation (“CCIC”). The court granted summary judgment in 

CCIC’s favor, and it is not a party to this appeal.

3 77 P.S. §§ 1-1041.1, 2501-2626. 
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by the chimney attached to the Trifecta Building[.]” Id. Appellants asserted 

that because of Tower’s superior knowledge, it owed Mr. Oster a duty of care. 

In opposition to Serfass’ summary judgment motion, Appellants argued

that questions of fact existed regarding Serfass’ occupation and control of the 

Tower Project site, whether a subcontract existed between Serfass and 

Duggan, and whether Duggan assumed a part of Serfass’ regular business. 

Appellants reasoned that these questions of fact precluded a finding that 

Serfass was Mr. Oster’s statutory employer.

On November 23, 2020, the trial court held a hearing on these motions.

On May 4, 2021, the trial court granted summary judgment to all defendants.

In its order granting summary judgment to Tower, the court found that Tower

did not possess superior knowledge of the potential danger posed by the 

Trifecta Building chimney and, as a result, did not owe Mr. Oster a duty of 

care. In a separate order granting Serfass’ motion, the court found that 

Serfass was entitled to immunity as Mr. Oster’s statutory employer.

Appellants timely filed a Notice of Appeal and both they and the trial 

court complied with Pa.R.A.P. 1925.4

Issues

Appellants raise the following issues for our review:

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4 Although Appellants violated Commonwealth v. Walker, 185 A.3d 969 (Pa. 

2018) by filing one Notice of Appeal from two court orders involving different 

defendants at different underlying dockets, our Supreme Court’s holding in 

Commonwealth v. Young, 265 A.3d 462 (Pa. 2021) permits us to overlook 

the deficiency.
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1. Whether the [t]rial [c]ourt erred as a matter of law in granting 

[Tower’s] Motion for Summary Judgment where there exist 

genuine issues of material fact as to whether [Tower] had 

knowledge of the dangerous condition which caused the injury 

superior to that of [Mr.] Oster where the condition was not obvious 

to the [Mr. Oster].

2. Whether the [t]rial [c]ourt erred as a matter of law in granting 

[Serfass’] Motion for Summary Judgment based upon the 

statutory employer doctrine where genuine issues of material fact 

exist as to whether [Serfass] could establish the defense of a 

statutory employer at trial.

Appellants’ Br. at 6 (reordered for ease of analysis). 

Legal analysis

We review a trial court’s order granting summary judgment for an error 

of law or abuse of discretion. Hovis v. Sunoco, Inc., 64 A.3d 1078, 1081 

(Pa. Super. 2013). We view the record in the light most favorable to the 

nonmoving party and resolve all doubts as to the existence of a genuine issue 

of material fact against the moving party. Id. Summary judgment is only 

appropriate where the record clearly shows that no genuine issue of material 

fact exists and, as a result, the moving party is entitled to judgment as a 

matter of law. Id.

Where the nonmoving party bears the burden of proof on an issue, that 

party may not merely rely on the pleadings or answers to survive summary 

judgment. Moranko v. Downs Racing LP, 118 A.3d 1111, 1113 (Pa. Super. 

2015) (en banc). “Failure of a non-moving party to adduce sufficient evidence 

on an issue essential to his case and on which he bears the burden of proof 

establishes the entitlement of the moving party to judgment as a matter of 

law.” Id. (citation omitted). In the instant case, Mr. Oster pleaded a
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negligence claim against Tower, which requires, among other things, proof 

that Tower owed Mr. Oster a duty of care. Toro v. Fitness International 

LLC, 150 A.3d 968, 976 (Pa. Super. 2016).

Finally, concessions made in pleadings and by stipulation are binding 

judicial admissions. See Steinhouse v. Herman Miller, Inc., 661 A.2d 1379, 

1382 (Pa. Super. 1995) (“Averments in pleadings constitute binding judicial 

admissions, conclusive in their nature insofar as their effect is confined to the 

case in which they are filed.”); Tyler v. King, 496 A.2d 16, 21 (Pa. Super. 

1985) (“The court will hold a party bound to his stipulation; concessions made 

in stipulations are judicial admissions, and accordingly may not later in the 

proceeding be contradicted by the party who made them.”). See also Sheard

v. J.J. DeLuca Co., 92 A.3d 68, 78 (Pa. Super. 2014) (holding the appellant 

to admission in complaint that the appellee was general contractor). As a 

result, the parties are bound by these admissions.

Issue 1 – Summary judgment in favor of Tower

In their first issue, Appellants argue that the trial court erred by finding 

that Tower did not possess “superior knowledge” and, therefore, did not owe 

Mr. Oster a duty of care. Appellants’ Br. at 31-34. Appellants renew their 

argument that Tower knew that an excavator hit the Trifecta Building shortly 

before Mr. Oster’s incident and, as a result, Tower had superior knowledge 

about the potential danger posed by the chimney of the Trifecta Building. Id.

“For over 100 years, the accepted and general rule regarding liability in 

our Commonwealth has been that a landowner who engages an independent 
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contractor is not responsible for the acts or omissions of such independent 

contractor or his employees.” Beil v. Telesis Const., Inc., 11 A.3d 456, 466 

(Pa. 2011). Unless an exception applies, “a property owner has no duty to 

warn the contractor or its employees of conditions that are at least as obvious 

to the contractor and its employees as they are to the landowner. 

Responsibility for protection, and liability for negligence, therefore, are placed 

on the contractor and its employees.” Id. at 460. 

One recognized exception to this general rule is where the landowner 

has “‘superior knowledge’ or information which places [the landowner] in a 

better position to appreciate the risk posed to the contractor or his employees 

by the dangerous condition.” Gutteridge v. A.P. Green Servs., Inc., 804 

A.2d 643, 657-58 (Pa. Super. 2002). When the landowner has superior 

knowledge, it can no longer be said that the dangerous condition is at least as 

obvious to the contractor as it is to the landowner and the landowner, thus, 

has a duty of care to warn the contractor of the dangerous condition. See 

Colloi v. Phila. Elec. Co., 481 A.2d 616, 620 (Pa. Super. 1984). 

Here, the trial court found that Tower did not possess superior 

knowledge such that it owed Mr. Oster a duty of care. Trial Ct. Op., 5/4/21, 

at 7. It explained that Appellant adduced no evidence that Tower knew that

the excavator caused the Trifecta Building chimney to pose a danger. Id. at 

9. Moreover, the court observed that Engineering Report “did not place 

[Tower] on notice of any dangerous condition posed by the area struck by the 

excavator bucket” because the report concluded that “the vertical impact from 
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an excavator bucket . . . did not in any way adversely affect the [Trifecta 

Building].” Id. at 8 (citing Engineering Report).

The record supports the trial court’s determination. Appellants have 

identified no evidence of record that Tower had any knowledge that the 

Trifecta Building posed a danger to Mr. Oster, and our review of the record 

reveals no such evidence. Specifically, the record indicates that Appellants 

adduced no evidence creating a question of fact as to whether Tower had any 

knowledge that the excavator’s impact with the Trifecta Building caused the 

chimney to pose a danger to workers at the Tower Project site. The 

Engineering Report, moreover, informed Tower’s knowledge at the time of Mr. 

Oster’s incident, and the report concluded that the Trifecta Building was 

unaffected by the excavator impact.

As a result of Appellants’ failure to adduce any evidence to prove that 

Tower had superior knowledge and, therefore, owed Mr. Oster a duty of care, 

an essential element of Appellants’ case and an issue on which they bear the 

burden of proof, we affirm the trial court’s order granting Tower’s Motion for 

Summary Judgment. 

Issue 2 – Summary judgment in favor of Serfass

In their second issue, Appellants argue that the court erred by finding 

that Serfass was Mr. Oster’s statutory employer and, therefore, entitled to 

immunity under the Workers’ Compensation Act. Appellants’ Br. at 25-30. 

Pursuant to Section 302(b) of the Workers’ Compensation Act, “general 

contractors bear secondary liability for the payment of workers’ compensation 
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benefits to injured workers employed by their subcontractors. In this sense, 

general contractors have been denominated ‘statutory-employers’ relative to 

workers’ compensation liability[. S]tatutory employers under Section 302(b) 

enjoy a measure of immunity from liability in tort pertaining to work-related 

injuries for which they bear secondary liability under the [A]ct.” Sheard, 92

A.3d at 74-75 (citations omitted). See also Patton v. Worthington 

Associates, Inc., 89 A.3d 643, 645 (Pa. 2014) (reinforcing the established 

doctrine of statutory employer immunity).

Pennsylvania courts have long applied the following five-factor test to 

determine if a general contractor was the statutory employer of an injured 

employee of a subcontractor:

(1) The general contractor was under contract with an owner or 

one in the position of the owner;

(2) The general contractor controlled or occupied the premises

where the injury occurred;

(3) The general contractor entered a subcontract; 

(4) The general contractor designated part of its regular business

to the subcontractor; and

(5) The injured party was an employee of such subcontractor.

See McDonald v. Levinson Steel Ct., 153 A. 424, 426 (Pa. 1930).

Here, the trial court found that Serfass was Mr. Oster’s statutory 

employer and, therefore, entitled to immunity under the Workers’ 

Compensation Act. Trial Ct. Op., 5/4/21, at 9-14. In support, the court 

referenced admissions Appellants made in various pleadings and stipulations

establishing that (1) Serfass was the general contractor on the Tower Project; 
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(2) Serfass directed Mr. Oster’s conduct on the Tower Project site and was 

responsible for worker safety; (3) Mr. Oster was working on the Tower Project 

pursuant to a subcontract between Duggan and Serfass; (4) demolition work 

was part of Serfass’ regular business; and (5) Duggan employed Mr. Oster at 

the time of his injury. Id.

The record supports the trial court’s findings. See Reply to New Matter, 

filed 3/14/19, at ¶¶ 36, 39, 40; Plaintiffs’ Complaint, filed 12/2/19, at ¶ 12; 

Plaintiffs’ Amended Complaint, filed 11/14/18, at ¶¶ 8, 11, 18, 20; Stipulation 

of Parties, dated 7/17/20, at 2 (unpaginated). Of particular relevance, the 

parties entered the following stipulation on July 17, 2020, which alone 

establishes several elements of the McDonald test: 

At the time of [Mr. Oster’s injuries], [Mr.] Oster was employed 

as a construction laborer by Duggan & Marcon, Inc., 

performing demolition work in the nature of chipping brick and 

mortar from the exterior of a building at a construction project 

known as Tower 6 Project in Allentown, Pennsylvania, pursuant 

to a Subcontract Agreement dated November 2, 2016[,] 

between Duggan & Marcon, Inc. and Serfass Construction 

Company, Inc., attached hereto as Exhibit A.

Stipulation of Parties at 2 (emphasis added). As the trial court observed, 

Appellants are bound by admissions made in their pleadings and stipulations. 

Additionally, the following evidence, viewed in the light most favorable 

to Appellants as the non-moving party, provides further support for the court’s 

determination that Serfass was Mr. Oster’s statutory employer. Deposition 

testimony from Mr. Oster and two Serfass employees, Joshua Sterner and 

Derrick Keeler, established that Serfass controlled access to the Tower Project 
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site via a locked gate, Duggan’s employees did not have the access code for 

the gate, Sterner instructed Mr. Oster on what work to do and where to do it 

on the worksite, and Mr. Oster took over work that had been started by 

Serfass employees before his arrival. N.T. Deposition of Ronald Oster, 

8/27/19, at 25-26, 31-32, 37; N.T. Deposition of Joshua Sterner, 1/24/20, at 

7-8, 12-14, 16, 18-21; N.T. Deposition of Derek Keeler, 1/24/20, at 25-26. 

Serfass also produced in discovery a contract dated September 27, 

2016, between it and Tower establishing the parties’ relationship, including 

“demolition and masonry” as part of Serfass’ job duties. Serfass Motion for 

Summary Judgment, filed 10/6/20, at Exh. G.

Finally, Appellants’ engineering expert opined that Mr. Oster was a 

Duggan employee, he took direction from Serfass at the Tower Project, and 

Serfass “had actual and practical control of the project site, authority over the 

worksite, and authority and power to correct safety and health violations.” 

Plaintiffs’ Expert Report, dated 8/31/20, at 25-26.

These uncontested facts provide additional support to the trial court’s 

finding that no question of fact existed regarding Serfass’ status as Mr. Oster’s 

statutory employer. Although Appellants assail the trial court’s finding, they 

direct this court to no evidence demonstrating a question of fact to be decided 

by a jury. This Court’s review of the record, moreover, demonstrates that no 
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such question exists. As a result of the foregoing, we affirm the trial court’s 

Order grant of summary judgment in favor of Serfass.5

Conclusion

We discern no error of law or abuse of discretion in the trial court’s 

orders granting summary judgment in favor of Tower and Serfass. As a result, 

we affirm. 

Orders affirmed. 

Judge Stabile joins the memorandum.

Judge McCaffery files a concurring and dissenting memorandum.

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5 Appellants raise an additional argument that “the mandatory nature of 

workers’ compensation coverage in modern construction practice has 

rendered the statutory employer doctrine obsolete” and, therefore, we should 

“restrict the application of the statutory employer doctrine to those cases 

where the general contractor is liable for the injured worker’s [] compensation 

benefits, as adopted by the State of New Jersey.” Appellants’ Br. at 30-31. 

Appellants did not raise this issue before the trial court in their opposition to 

Appellees’ motions for summary judgment and, thus, it is waived. Krentz v. 

CONRAIL, 910 A.2d 20, 37 (Pa. 2006) (“arguments not raised initially before 

the trial court in opposition to summary judgment cannot be raised for the 

first time on appeal.” (citation omitted)). 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/17/2022