J-S10020-15

2016 PA Super 31

WESTFIELD INSURANCE COMPANY IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

ASTRA FOODS INC., JOSE NOE 

CASTILLO RAMOS, AND AMERICAN 

GUARANTEE AND LIABILITY INSURANCE 

COMPANY

APPEAL OF: ASTRA FOODS INC.

No. 1392 EDA 2014

Appeal from the Order dated March 19, 2014

In the Court of Common Pleas of Philadelphia County

Civil Division at No: February Term, 2012 No. 00902

BEFORE: GANTMAN, P.J., STABILE, and PLATT,*JJ. 

OPINION BY STABILE, J.: FILED FEBRUARY 12, 2016

Appellant/defendant Astra Foods Inc. (“Astra”) appeals from the March 

19, 2014 order of the Court of Common Pleas of Philadelphia County (trial 

court), which granted summary judgment in favor of Appellee/plaintiff 

Westfield Insurance Company (“Westfield Insurance”) and denied Astra’s 

cross-motion for summary judgment. Upon review, we affirm.

The facts and procedural history underlying this appeal are 

undisputed. As summarized by the trial court in its Pa.R.A.P. 1925(a) 

opinion: 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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This is an appeal taken from [the trial court’s] grant of a 

[m]otion for [s]ummary [j]udgment in an insurance coverage 

dispute regarding a workplace injury suffered by Jose Noe 

Castillo Ramos (Ramos) while employed by BK Packaging 

Services, Inc. (BK) (formerly known as JRI Contracting Services, 

Inc.) at a facility operated by [Astra]. In 2009, Ramos suffered 

a severe injury to his hand and arm while cleaning an exhaust 

fan, for which he filed a workers’ compensation claim.

In January 2012, Workers’ Compensation Judge [(WCJ)] 

Denise Krass rendered a decision on Ramos’ claim. Her decision 

included a finding that Ramos was employed by BK, and that 

Ramos was not a “borrowed employee” of Astra at the time of 

the injury. [Westfield Insurance], which had issued both a 

[commercial general] liability policy [(CGL Policy)] and a 

workers’ compensation policy to Astra, was a party to that 

proceeding. As a result of [WCJ] Krass’ ruling, there was no 

coverage for Ramos’ injuries under the Westfield [Insurance] 

workers’ compensation policy.

In June 2013, a jury verdict was rendered for Ramos 

against Astra in a personal injury action, and [Ramos] was 

awarded $763,413. Westfield [Insurance] filed a declaratory 

judgment action, arguing that the [CGL Policy] did not cover the 

incident. Westfield [Insurance] and Astra filed cross-motions for 

summary judgment,[1]and the [trial court] granted summary 

judgment for Westfield [Insurance] and denied it for Astra. 

Trial Court Rule 1925(a) Opinion, 7/31/14 at 1-2. Astra subsequently 

moved for reconsideration of the trial court’s summary judgment order. In 

response, the trial court issued an order vacating its summary judgment 

order and directing Westfield Insurance to file a response to the 

reconsideration motion. On March 19, 2014, the trial court issued an order 

reinstating its summary judgment order “with the exception that the 

____________________________________________

1 Westfield Insurance specifically argued that the “employer’s liability” 

exclusion provision of the CGL Policy applied to this case, barring Astra from 

obtaining a defense and indemnity in the underlying action because Ramos 

was an employee of Astra’s by satisfying the definition of “leased worker” 

under the CGL Policy. See Westfield Insurance’s Summary Judgment 

Motion, 7/19/13, at ¶¶ 43-44. 
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statement that [American Guarantee and Liability Insurance Company 

(AGLIC)] was in privity with Astra is stricken.”2 Trial Court Order, 3/19/14. 

Astra timely appealed to this Court.3

On appeal, Astra raises the following issues for our review:

1. Whether the grant of motion for summary judgment in favor 

of [Westfield Insurance] constituted an error of law and/or an 

abuse of discretion when such opinion and order was based upon 

the following:

(i) in disregarding an adjudication in a prior action 

that Ramos was not an Astra employee and failing to 

apply the doctrine of collateral estoppel to preclude 

Westfield [Insurance] from asserting otherwise in the 

action[;]

(ii) in failing to apply the doctrine of judicial estoppel 

to preclude Westfield [Insurance] from taking 

inconsistent positions with regard to Ramos’ 

employment status in the action[; and]

(iii) in failing to declare that the [CGL Policy] 

exclusion categorizing Ramos as an employee by 

defining him as a leased worker properly excluded 

from coverage under [the CGL Policy] is 

unconscionable and void as against public policy[.]

2. Whether the denial of [Astra’s] cross-motion for summary 

judgment constituted an error of law and/or an abuse of 

discretion when such opinion and order was based upon 

disregarding a finding in a prior adjudication that Ramos was not 

an employee or borrowed employee of Astra.

Astra’s Brief at 9 (capitalization omitted).

We are mindful that: 

[o]ur scope of review of a trial court’s order granting or denying 

summary judgment is plenary, and our standard of review is 

____________________________________________

2 Astra’s umbrella insurer and additional defendant AGLIC is not a party to 

this appeal.

3 Our review of the docket indicates that the trial court did not order Astra to 

file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
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clear: the trial court’s order will be reversed only where it is 

established that the court committed an error of law or abused 

its discretion.

Summary judgment is appropriate only when the record clearly 

shows that there is no genuine issue of material fact and that 

the moving party is entitled to judgment as a matter of law. The 

reviewing court must 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. Only when the facts are so clear that reasonable minds 

could not differ can a trial court properly enter summary 

judgment.

Hovis v. Sunoco, Inc., 64 A.3d 1078, 1081 (Pa. Super. 2013) (quoting 

Cassel-Hess v. Hoffer, 44 A.3d 80, 84-85 (Pa. Super. 2012)).

Astra first argues the trial court erred in granting Westfield Insurance’s 

summary judgment motion because Westfield Insurance was barred by the 

doctrine of collateral estoppel from challenging Ramos’ employment status 

with Astra. In this regard, Astra argues that the CGL Policy’s definition of a 

leased worker—who is considered an employee—is identical to the doctrine 

of borrowed employee, which was at issue in the prior workers’ 

compensation proceeding in which Westfield Insurance participated. Astra’s 

Brief at 16-17. Astra, therefore, argues that, because WCJ Krass 

determined Ramos was not employed by Astra on the basis of the borrowed 

employee doctrine, Westfield Insurance must be barred from re-litigating the 

issue of Ramos’ employment status with Astra under the terms of the CGL 

Policy. Id. We disagree.

It is settled that:

Collateral estoppel applies if (1) the issue decided in the prior 

case is identical to one presented in the later case; (2) there was 

a final judgment on the merits; (3) the party against whom the 

plea is asserted was a party or in privity with a party in the prior 

case; (4) the party or person privy to the party against whom 
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the doctrine is asserted had a full and fair opportunity to litigate 

the issue in the prior proceeding and (5) the determination in 

the prior proceeding was essential to the judgment. Collateral 

estoppel, sometimes referred to as issue preclusion, operates to 

prevent a question of law or an issue of fact which has once 

been litigated and adjudicated finally in a court of competent 

jurisdiction from being relitigated in a subsequent suit. 

Kituskie v. Corbman, 682 A.2d 378, 382 (Pa. Super. 1996) (citations and 

quotation marks omitted). 

The decision to allow or to deny a prior judicial determination to 

collaterally bar relitigation of an issue in a subsequent action 

historically has been treated as a legal issue. As such, this Court 

is not bound by the trial court’s conclusions of law and we may 

draw our own conclusions from the facts as established.

Meridian Oil & Gas Enters., Inc. v. Penn Cent. Corp., 614 A.2d 246, 250 

(Pa. Super. 1992), appeal denied, 627 A.2d 180 (Pa. 1993). 

As with all questions of law, an appellate court’s review of an 

insurance contract is plenary. Burton v. Republic Ins. Co., 845 A.2d 889, 

893 (Pa. Super. 2004). In interpreting the terms of an insurance contract, 

the appellate court examines the contract in its entirety, giving all of the 

provisions their proper effect. Id. The court’s goal is to determine the 

intent of the parties as exhibited by the contract provisions. Id. In 

furtherance of its goal, the court must accord the contract provisions their 

accepted meanings, and it cannot distort the plain meaning of the language 

to find an ambiguity. Id.

Instantly, Astra does not dispute that the terms of the CGL Policy are 

reasonable and unambiguous or that Ramos failed to satisfy the definition of 

a leased worker under the CGL Policy. See Astra’s Brief at 22. Rather, 

Astra argues only that the contractual definition of a leased worker is
J-S10020-15

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identical to the legal doctrine of borrowed employee, which was litigated 

before WCJ Krass. As a result, Astra argues that the doctrine of collateral 

estoppel precludes Westfield Insurance from re-litigating Ramos’ 

employment status with Astra. We, however, reject Astra’s collateral 

estoppel argument because the doctrine of borrowed employee at issue in 

the workers’ compensation proceedings is not identical to the definition of a 

leased worker under the CGL Policy. In other words, in this case, the legal

doctrine of borrowed employee is not identical to the contractual definition 

of a leased worker. 

Explaining the doctrine of borrowed employee, our Supreme Court has 

remarked:

The test for determining whether a servant furnished by one 

person to another becomes the employee of the person to whom 

he is loaned is whether he passes under the latter’s right of 

control with regard not only to the work to be done but also to 

the manner of performing it. The entity possessing the right to 

control the manner of the performance of the servant’s work is 

the employer, irrespective of whether the control is actually 

exercised. Other factors which may be relevant include the right 

to select and discharge the employee and the skill or expertise 

required for the performance of the work. The payment of 

wages may be considered, but is not a determinative factor. 

Although the examination of these factors guides the 

determination, each case must be decided on its own facts.

JFC Temps, Inc. v. Workers’ Comp. Appeal Bd. (Lindsay), 680 A.2d 

862, 864 (Pa. 1996) (citation omitted); accord Mullins v. Sun Co., 763 

A.2d 398, 400 (Pa. Super. 2000). Under the CGL Policy, a leased worker is 

defined as “a person leased to [Astra] by a labor leasing firm under an 

agreement between [Astra] and the labor leasing firm, to perform duties 
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related to the conduct of [Astra’s] business.” CGL Policy, 4/1/09, at 

§§ I(2)(e), V(5), (10).

Here, a cursory look at the elements of the doctrine of a borrowed 

employee and the contractual definition of a leased worker reveals glaring 

differences between the two. “The definition of ‘borrowed employee,’ . . . 

comes from case law and is clearly much narrower than the definition of 

‘leased worker,’ as it focuses on which party controls the worker’s 

performance, and the manner in which it is performed.” Trial Court Rule 

1925(a) Opinion, 7/31/14, at 3. Thus, upon careful review of the entire 

record, viewed in the light most favorable to Astra as the non-moving party, 

we must agree with the trial court’s conclusion that the issue of a leased 

worker under the CGL Policy was never properly before WCJ Krass because 

the CGL Policy was not at issue in the workers’ compensation proceeding. 

As the trial court noted: 

[T]he legal question of [Ramos’] employment status considered 

by [WCJ Krass] is not identical to the question of Ramos’ 

employment status under the [CGL] Policy. [WCJ] Krass 

considered whether Ramos was a “borrowed employee” 

according to the common law, while [the trial court] must 

determine whether Ramos meet the definition of “leased worker” 

under the [CGL] Policy.

Trial Court Opinion, 12/30/13, at 5-6. Accordingly, the trial court did not err 

in granting summary judgment in favor of Westfield Insurance and against 
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Astra by concluding that the doctrine of collateral estoppel did not apply to 

whether Ramos was a leased worker under the CGL Policy.4

Astra next argues the trial court erred in granting summary judgment 

in favor of Westfield Insurance, because Westfield Insurance was judicially 

estopped from challenging Ramos’ employment status with Astra. In 

particular, Astra argues that Westfield Insurance’s position on Ramos’ 

employment status in the case sub judice is inconsistent with Westfield 

Insurance’s position before WCJ Krass, where Westfield Insurance asserted 

that Ramos was not a borrowed employee of Astra.

Our Supreme Court has held that as a general rule, a party to an 

action is estopped from assuming a position inconsistent with his 

or her assertion in a previous action, if his or her contention was 

successfully maintained. Accordingly, judicial estoppel is properly 

applied only if the court concludes the following: (1) that the 

appellant assumed an inconsistent position in an earlier action; 

and (2) that the appellant’s contention was successfully 

maintained in that action.

Black v. Labor Ready, Inc., 995 A.2d 875, 878 (Pa. Super. 2010) 

(citations and quotation marks omitted) (emphasis in original). “The 

purpose of this doctrine is to uphold the integrity of the courts by preventing 

parties from abusing the judicial process by changing positions as the 

moment requires.” Bugosh v. Allen Refractories Co., 932 A.2d 901, 912 

(Pa. Super. 2007) (citation and quotation marks omitted). However, “[o]ur 

Supreme Court has not definitively established whether the second element 

____________________________________________

4 Because we conclude Astra failed to satisfy the first prong of the collateral 

estoppel doctrine, we need not analyze the other four prongs. 
J-S10020-15

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(successful maintenance) is strictly necessary to implicate judicial estoppel 

or is merely a factor favoring the application.” Vargo v. Schwartz, 940 

A.2d 459, 470 n.8 (Pa. Super. 2007) (citing In re Adoption of S.A.J., 838 

A.2d 616, 620 n.3 (Pa. 2003)); see also Ballestrino v. Ballestrino, 583 

A.2d 474, 478 (Pa. Super. 1990) (holding that “it is not improper for the 

court to refuse to entertain a later claim” which is inconsistent with a 

previous position that appellant did not successfully maintain but from which 

she obtained other relief).

Instantly, we need not address Astra’s judicial estoppel argument 

because, based upon our review of the entire record, we conclude that Astra 

has waived this argument by failing to raise it before the trial court. See

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and 

cannot be raised for the first time on appeal.”); see Agostinelli v. 

Edwards, 98 A.3d 695, 700 (Pa. Super. 2014). However, even if we were 

to address the merits of Astra’s judicial estoppel argument, we would reject 

the argument because Westfield Insurance never assumed any position 

before WCJ Krass with respect to the definition of a leased worker under the 

CGL Policy. As noted earlier, the CGL Policy or its terms were not at issue in 

the workers’ compensation proceeding.

We now turn to Astra’s third argument. Astra argues the trial court 

erred in granting summary judgment in favor of Westfield Insurance based 

on the CGL Policy because the employer’s liability exclusion provision of the 

CGL Policy at the core of this case “is unconscionable and against public 
J-S10020-15

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policy because it results in illusory coverage, and provides [Westfield 

Insurance] with a windfall from the substantial premiums collected from 

Astra while providing no coverage” under either the workers’ compensation 

policy or CGL Policy. Astra’s Brief at 23. We construe Astra’s argument as 

challenging the inclusion of a “leased worker” in the employer’s liability 

exclusion of the CGL Policy. Simply put, Astra finds it unconscionable that 

the term “employee” in the CGL Policy includes a leased worker. Thus, we 

must determine whether the employer’s liability exclusion of the CGL 

Policy—with respect to a leased worker—is unconscionable as against public 

policy. As our Supreme Court has explained:

Generally, courts must give plain meaning to a clear and 

unambiguous contract provision unless to do so would be 

contrary to a clearly expressed public policy. Public policy is to 

be ascertained by reference to the laws and legal precedents and 

not from general considerations of supposed public interest. As 

the term public policy is vague, there must be found definite 

indications in the law of the sovereignty to justify the 

invalidation of a contract as contrary to that policy. Only 

dominant public policy would justify such action. In the 

absence of a plain indication of that policy through long 

governmental practice or statutory enactments, or of violations 

of obvious ethical or moral standards, the [c]ourt should not 

assume to declare contracts contrary to public policy. The courts 

must be content to await legislative action. 

It is only when a given policy is so obviously for or against 

the public health, safety, morals or welfare that there is a virtual 

unanimity of opinion in regard to it, that a court may constitute 

itself the voice of the community in so declaring that the 

contract is against public policy.

Heller v. Pennsylvania League of Cities & Municipalities, 32 A.3d 1213, 

1220-21 (Pa. 2011) (citation and quotation marks omitted) (emphasis 

added).
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Here, as noted above, Astra does not argue the employer’s liability 

exclusion provision of the CGL Policy, which includes a leased worker, is 

unclear or ambiguous.5 Rather, it argues only that the exclusion provision is 

against public policy to the extent it includes a leased worker. In support of 

its public policy argument, Appellant points out that “[u]nder the factual 

circumstances of this case, . . . the ‘leased workers’ exclusion works to 

preclude coverage under both companion policies issued by Westfield 

Insurance, resulting in Westfield Insurance insulating itself from affording 

coverage under either policy, making the coverage illusory.”6 Astra’s Brief at 

22. 

Astra principally relies on Heller to underscore its claim that the CGL 

Policy is illusory and therefore against public policy. Appellant’s reliance on 

Heller, however, is misplaced, as Heller is distinguishable from the instant 

case. In Heller, our Supreme Court was asked to determine whether “it 

[was] a violation of public policy to exclude from underinsured motorist 

(UIM) coverage a claim by an individual eligible for workers’ compensation 

benefits.” Heller, 32 A.3d at 1215. The appellant (Heller) was severely 

injured in an automobile accident during the course of his employment as a 

____________________________________________

5 With the exception of the inclusion of a leased worker within the definition 

of employees, Astra accepts the employer’s liability exclusion provision of 

the CGL Policy. See Astra’s Brief at 22.

6 As stated earlier, Westfield Insurance issued to Astra a workers’ 

compensation policy as well as the CGL Policy. 
J-S10020-15

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police officer for Sugarcreek Borough. Id. Subsequently, Heller sought UIM 

benefits from the borough under a policy issued by the appellee, who 

ultimately denied Heller’s claim under a policy exclusion providing that UIM 

coverage did not apply to “[a]ny claim by anyone eligible for workers’ 

compensation benefits.” Id. 

The Supreme Court noted that the borough voluntarily elected to 

purchase the optional UIM coverage and paid a premium to the appellee for 

the coverage. Id. at 1222. The Supreme Court therefore found persuasive 

Heller’s argument that the borough purchased illusory coverage. Id. at 

1223, 1228. As the Supreme Court observed:

Instantly, we are presented with the situation where a 

mandatory offering under the [Motor Vehicle Financial 

Responsibility Law (MVFRL)] was accepted by the [b]orough, 

who paid a premium for UIM coverage to provide additional 

protection to its employees who operate or occupy its vehicles. 

The vehicles in question are used by borough employees during 

the course and scope of their employment. Thus, the vast 

majority of all UIM claims likely will be made by borough 

employees who are eligible for workers’ compensation. 

The subject exclusion, however, operates to deny UIM benefits 

to anyone who is eligible for workers’ compensation. 

Therefore, we find that [the appellee] sold the borough 

additional coverage that, in effect, will not attach by 

virtue of an exclusion. Under the facts of this case and as 

applied to borough employees, the exclusion renders the 

coverage illusory. Further, the exclusion operates to convert 

[the appellee’s] statutory obligation into a sham offering. [The 

appellee] received a windfall by charging the borough a premium 

for the coverage.

Heller, 32 A.3d at 1223 (emphasis added). The court further remarked:

To uphold the exclusion would thwart the purpose of the MVFRL 

by allowing an insurer to deny benefits for which their insured 

paid a premium. Thus, permitting the exclusion to stand 

provides a disincentive for insureds to pay premiums for 

coverage that is not statutorily required and relieves the insurer 

of its obligation to provide benefits for which the insured paid. 

While the borough may have received a reduced premium in 
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exchange for what [the appellee] deems “limited” coverage, an 

insured cannot contract for illusory coverage.

Id., at 1225. The court also determined that the “workers’ compensation 

exclusion violated the statutory scheme for coordination of benefits evident 

in the MVFRL” because the legislature intended “to place the burden for 

payment of benefits on the tortfeasor or the UM/UIM carrier where a thirdparty causes a work-related injury.” Id.

The case sub judice is distinguishable from Heller. First, Astra does 

not argue that Westfield Insurance, unlike the appellee in Heller, was 

required to offer coverage to Astra for personal injury claims made by 

workers not directly employed by Astra. Second, unlike Heller, where the 

borough specifically purchased optional UIM coverage for its employees, the 

vast majority of whom were eligible for workers’ compensation, Astra does 

not argue it purchased the CGL Policy to insulate itself principally against 

personal injury claims made by workers not directly employed by Astra. The 

record indicates Astra principally purchased the CGL Policy from Westfield 

Insurance to cover itself against third-party (non-employee) liability claims. 

The leased worker exclusion simply is an exception to such coverage 

because leased workers are subsumed within the definition of employees 

under the CGL Policy. Third, unlike the appellant in Heller, Astra does not 

allege that the employer’s liability exclusion—with the exception of a leased 

worker—“operates to foreclose the majority of expected claims” under 

the CGL Policy. Id. at 1228 (emphasis added); see also Meridian Mut. 

Ins. Co. v. Richie, 544 N.E.2d 488, 489 (Ind. 1989) (holding that if an 
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insured could not have benefited from his insurance coverage under any set 

of circumstances, the policy is illusory and in violation of public policy) 

(emphasis added). On the contrary, Astra asserts only that “[u]nder the 

factual circumstances of this case,” the exclusion renders the CGL Policy 

illusory because of how it defines a leased worker, i.e., as an employee. 

Astra’s Brief at 21, 22 (“The exclusion of leased [workers] in the [CGL 

P]olicy at issue is void against public policy under the factual circumstances 

of this case[.]”) (emphasis added). 

In summary, because Westfield Insurance was not required to offer 

coverage to Astra for personal injury claims by workers not directly 

employed by Astra, Astra did not purchase the CGL Policy principally to 

cover leased workers, and the leased worker exclusion does not operate to 

foreclose the vast majority of Astra’s expected claims, we decline to hold the 

CGL Policy illusory, and therefore as against public policy.7 See Heller, 

supra.

Order affirmed. 

Platt, J. joins the majority opinion.

Gantman, P.J. files a concurring opinion in which Platt, J. joins. 

____________________________________________

7 Based on the outcome of this case, we need not address Astra’s remaining 

arguments.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/12/2016