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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

CONCURRING/DISSENTING MEMORANDUM BY McCAFFERY, J.:

 FILED AUGUST 17, 2022

Because I conclude the record contains a genuine issue of material fact 

as to whether Tower had superior knowledge of the dangerous condition which 

led to Mr. Oster’s injury, I would vacate the order granting Tower summary 

judgment and remand the case for trial. However, I am constrained to concur 

with the Majority’s decision to affirm the trial court’s grant of summary 
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judgment in favor of Serfass. Although I strongly disagree with the manner 

in which the statutory employer doctrine has been wielded by negligent 

general contractors to shield themselves from civil liability when they have 

not taken any steps to ensure the employees of their subcontractors will be 

adequately compensated (or even insured) for on-the-job injuries they sustain 

as a result of that negligence, I acknowledge we are bound by existing, 

controlling statutory and case law to the contrary. Thus, I respectfully dissent 

in part and concur in part from the Majority’s memorandum decision.

I. Summary Judgment in favor of Tower

With regard to Tower’s liability, or lack thereof, the Majority concludes 

the record “supports the trial court’s determination” that Appellants failed to 

identify any “evidence of record” that Tower possessed “superior knowledge” 

that the condition of the Trifecta Building posed a danger to Mr. Oster, and 

thus, the court’s entry of summary judgment in favor of Tower was proper. 

See Majority’s Memorandum at 8. However, I find the Majority’s application 

of the law to be too limited.

Generally, “a landowner who engages an independent contractor is not 

responsible for the acts or omission of such independent contractor or his 

employees.” Beil v. Telesis Const., Inc., 11 A.3d 456, 466 (Pa. 2011)

(citations omitted). Nevertheless, there are several exceptions to this general 

rule. See id. One such exception applies when the landowner possesses 

“superior knowledge” of a potentially dangerous condition. See Gutteridge 

v. A.P. Green Servs., Inc., 804 A.2d 643, 657-58 (Pa. Super. 2002). 
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A landowner owes a duty to warn an unknowing 

independent contractor of existing dangerous conditions 

on the landowner’s premises where such conditions are 

known or discoverable to the owner. Such a duty to warn is 

owed irrespective of whether the independent contractor 

exercises full control over the work and premises entrusted to 

him. However, [a]n owner of land who delivers temporary 

possession of a portion of the land to an independent contractor 

owes no duty to the employees of the independent contractor with

respect to an obviously dangerous condition on that portion of the

land in the possession of the contractor. It has also been said that 

the employer of an independent contractor has no duty to warn 

the contractor or his employees of a condition that is at least as 

obvious to them as it is to him. In addition, the owner of property 

is under no duty to protect the employees of an independent 

contractor from risks arising from or intimately connected with 

defects or hazards which the contractor has undertaken to repair 

or which are created by the job contracted.

Colloi v. Philadelphia Elec. Co., 481 A.2d 616, 619–20 (Pa. Super. 1984)

(citations & quotation marks omitted; emphasis added & some emphasis 

removed). Thus, a landowner owes a duty of care to protect the employee of 

an independent contractor from potential dangers that are known or 

“discoverable” to the landowner, and not as obvious to the employee. 

In the present case, it is undisputed that the employee, Mr. Oster, had 

no knowledge the Trifecta Building was struck by an excavator bucket a few 

weeks before his first day at the jobsite, or that the incident may have affected 

the structural integrity of the chimney located directly above the area where 

he was assigned to work. The relevant question is whether the potentially 

dangerous condition was “known or discoverable to” the landowner, Tower. 

See Colloi, 481 A.2d at 619 (emphasis added). As this Court explained in 

Gutteridge:
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The question of whether a landowner owes a duty to warn an 

independent contractor of dangerous conditions on the premises 

turns on whether the owner possesses “superior knowledge” or 

information which places him in a better position to 

appreciate the risk posed to the contractor or his 

employees by the dangerous conditions.

Gutteridge, 804 A.2d at 657–58 (emphasis added).

In my view, the fact that those in charge of the jobsite retained an 

engineer, less than 10 days before the accident, to conduct a structural 

assessment of the building on which Mr. Oster was working when he was 

injured, raises a jury question as to whether Tower had “superior knowledge” 

of the potential danger or whether such knowledge was discoverable to Tower. 

In granting summary judgment to Tower, the trial court first emphasized 

that the engineering report was addressed to Serfass, and there was “no 

indication that Tower . . . solicited the . . . Report or received a copy of the . 

. . . Report.” Trial Ct. Op. (No. 2018-C-3087), 5/4/21, at 8. I find it 

implausible that the landowner, who contracted with Serfass to perform the 

demolition work, would not have been informed of the potentially dangerous 

condition resulting from an excavator bucket striking the connecting building, 

and, indeed, would not have received a copy of the engineering report. 

Nevertheless, even if Tower can establish it did not request or receive the 

Report, it is still liable to Appellants if a jury determines the dangerous 

condition was “discoverable to” Tower, and that Tower was in a better position 

to appreciate the risk than Mr. Oster. I conclude that these two critical 

questions are for the jury to decide. 
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Second, both the Majority and the trial court maintained that Appellants 

presented no evidence 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” — primarily because the engineering report “concluded 

that the Trifecta Building was unaffected by the excavator impact.” Majority 

Memo at 8; see also Trial Ct. Op. at 8-9. Again, I would conclude the Majority

and the trial court made a factual determination which should have been left 

for the jury.

First, I emphasize that the excavator incident was alarming enough to 

those in charge of the jobsite that they requested a structural assessment

by an engineer. Moreover, as Appellants pointed out in their brief, the report 

provided an assessment of only the exterior wall of the Trifecta Building and 

made no mention of the chimney that later collapsed. See Appellants’ Brief 

at 33. Although the trial court found this argument misleading — noting that 

the report spoke “directly to the area of the Trifecta Building previously struck 

by the excavator bucket”1 — I cannot agree. It is unclear from the record 

whether the engineer did, in fact, assess the condition of the chimney, and 

the determination of whether Tower should have conducted a more thorough 

assessment or taken steps to protect the subcontractors are, again, questions 

for the fact finder.

____________________________________________

1 Trial Ct. Op. at 9. 
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Viewing the record in the light most favorable to Appellants — the 

nonmoving parties — I conclude that the record does not clearly demonstrate 

Tower is entitled to judgment as a matter of law, and, in fact, there exists a 

genuine issue of material fact as to whether Tower either had superior 

knowledge of the potential danger to Mr. Oster, or that such knowledge was 

discoverable to it, and not apparent to Mr. Oster. See Hovis v. Sunoco, 

Inc., 64 A.3d 1078, 1081 (Pa. Super. 2013). Thus, I dissent from the 

Majority’s decision to affirm the order granting summary judgment to Tower.

II. Summary judgment in favor of Serfass

The Majority also affirms the order of the trial court granting summary 

judgment to Serfass concluding that, pursuant to the five-part test outlined in 

McDonald v. Levinson Steel Co., 153 A. 424 (Pa. 1930), Serfass was Mr. 

Oster’s “statutory employer” and, thus, is entitled to immunity from civil 

liability under Section 302(b) of the Workers’ Compensation Act. See Majority 

Memorandum at 8-12. Reluctantly, I acknowledge the five-part McDonald

test remains the standard by which the courts of this Commonwealth 

determine whether a general contractor is the statutory employer of the 

employee of a subcontractor, and consequently, immune from civil liability. 

Moreover, I concur that upon application of the McDonald test, the trial court 

properly determined Serfass was Mr. Oster’s statutory employer in the present 

case, and, thus, immune from liability.

Nevertheless, I am compelled to express my opinion that statutory 

employer doctrine, as applied via the McDonald test, is “an irrational relic of 
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a bygone era.” Patton v. Worthington, 89 A.3d 643, 651 (Pa. 2014) (Baer, 

J., concurring). “The Legislature’s purpose in imposing this status upon 

general contractors was remedial, as it wished to ensure payment of 

workers’ compensation benefits in the event of defaults by primarily liable 

subcontractors.” Id. at 645 (emphasis added; citations omitted). See Peck

v. Delaware Cnty. Bd. of Prison Inspectors, 814 A.2d 185, 188 (Pa. 2002)

(Per Newman, J., with two Justices concurring, and one Justice concurring 

with separate opinion) (“The purpose of this provision is clear: to ensure the 

payment of compensation benefits by a financially responsible party in the 

injured worker’s chain of employment from subcontractor to general 

contractor.”) (emphasis added); Dougherty v. Conduit & Found. Corp.,

674 A.2d 262, 265 (Pa. Super. 1996) (“The intent behind the doctrine of 

statutory employer is ‘to hold a general contractor secondarily liable for 

injuries to the employees of a subcontractor, where the subcontractor 

primarily liable has failed to secure benefits with insurance or selfinsurance.’”) (citation omitted; emphasis added).

When Section 302(b) was enacted in 1915, employers were not

required to obtain Workers’ Compensation insurance for their employees. 

Thus, if an employee of a subcontractor was injured on a jobsite, that 

employee was not guaranteed workers’ compensation benefits if their 

employer failed to obtain the coverage. The statutory employer doctrine was 

enacted to address this potential lapse, and impose “secondary liability on 

statutory employers . . . to ensure that an injured worker will be afforded 
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payment of benefits, even in the event of default by his primary employer.” 

Doman v. Atlas America, Inc., 150 A.3d 103, 109-10 (Pa. Super. 2016). 

As this Court observed in Doman, 

The tort immunity associated with the imposition of secondary 

liability reflects the historical quid pro quo between an employer 

and employee whereby the employer assumes liability without 

fault for a work-related injury . . . . However, the Act was 

amended in 1974 to require that all employers provide 

workers’ compensation coverage. Notwithstanding, the 1974 

amendments allowed general contractors to remain 

insulated from tort liability, despite never being required to 

provide workers’ compensation benefits to injured employees of 

subcontractors, and created a windfall immunity shield. Thus, 

“the mandatory nature of workers’ compensation has 

rendered the statutory employer doctrine obsolete[,] ... 

[and] adversely impact[s] worker safety by eliminating the 

traditional consequences (money damages) when a general 

contractor’s negligence harms a subcontractor's employee.”

Id. at 110 (citations & quotation marks omitted; emphases added). 

Accordingly, the Doman Court called upon the Pennsylvania Legislature to

“reconsider [this] statutory scheme.” Id. at 109.

Heretofore, judicial criticism of the statutory employer doctrine has

fallen on deaf ears. Justice Nigro authored a dissenting opinion in Fonner v. 

Shandon, Inc., 724 A.2d 903 (Pa. 1999), advocating for the addition of a

sixth element to the McDonald test — proof that the general contractor 

“assumed responsibility for providing workers’ compensation to the injured 

employee[.]” Fonner, 724 A.2d at 908 (Nigro, J. dissenting). He explained: 

[The 1974 amendments for the Workers’ Compensation Act made] 

its application . . . mandatory. The impetus of this change was to 

afford protection to employees. The Legislature never intended 

that the amendments would allow a general contractor to escape 
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civil liability if it did not pay for the injured employee’s workers’

compensation insurance. I find the clear meaning of the 1974 

amendments was to place responsibility for workers’ 

compensation benefits upon the general contractor only

where the subcontractor or direct employer failed to do so. In 

reality, application of these amendments rarely, if ever, will result 

in the general contractor assuming responsibility for providing 

workers’ compensation insurance because in the modern 

construction workplace, general contractors will rarely, if ever, 

award a contract absent the subcontractor showing proof of 

workers’ compensation coverage. Common sense and logic 

dictate that the general contractor should not reap the 

benefits of civil liability immunity unless it undertakes 

responsibility of compensation coverage. If however, a 

general contractor does assume responsibility for the payment of 

workers’ compensation, then it should be afforded statutory 

employer immunity.

* * *

As Judge Hoffman stated more than thirty years ago,

. . . very great care . . . must be exercised before allowing 

an employer to avoid its liability at common law by asserting 

that he is a statutory employer. Section 203 of the 

Workmen’s Compensation Act, which was designed to 

extend benefits to workers, should not be casually 

converted into a shield behind which negligent 

employers may seek refuge.

Id. at 908-09 (some emphases added), citing Stipanovich v. Westinghouse 

Elec. Corp., 231 A.2d 894, 898 (Pa. Super. 1967).

More recently, another Supreme Court Justice reiterated this same 

concern in a concurring opinion in Patton. See Patton, 89 A.3d at 650-51. 

Justice Baer advocated that the Pennsylvania Legislature

revise the statutory employer doctrine to mirror that of our sister 

state, New Jersey. There, the doctrine only operates where a

subcontractor has violated the mandatory provisions of the 

New Jersey Act and failed to obtain workers’ compensation 

insurance. Under these circumstances, the general contractor 

steps into the shoes of the subcontractor, paying the 
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subcontractor’s employee’s workers’ compensation, and then 

receiving immunity from common law tort damages, while further 

having the ability to assert a right of subrogation against the 

noncompliant subcontractor. Otherwise, [w]here the 

subcontractor takes out compensation insurance . . . the general 

contractor is treated as a third party and is not granted immunity 

from a common law negligence suit by an employee of a 

subcontractor. Notably, the subcontractor is then likewise given 

a right of subrogation, should the general contractor be found 

negligent at common law.

Id. at 652 (Baer, J. concurring) (citations & quotation marks omitted). The 

Justice opined that “adopting such a paradigm would achieve” the primary 

purposes of the Act: (1) ensure “prompt payment” of benefits to an injured 

worker regardless of fault; and (2) “perpetuate[ ] the concomitant quid pro 

quo of immunity to the paying employer[.]” Id. Justice Baer anticipated that 

this approach would also “help to ensure safety in the workplace, and 

hopefully lead to the prevention of tragic accidents due to someone’s 

carelessness . . ., by incentivizing general contractors to adopt more rigorous 

safety regimes.” Id. See also Doman, 150 A.3d at 109 (Superior Court 

panel stating that it “echo[s] those calls” that the legislature “reconsider 

Pennsylvania’s [workers’ compensation] statutory scheme”).

Therefore, like my honorable colleagues on the Supreme Court and the 

Doman panel, I advocate for a change in the workers’ compensation law. In 

my opinion, as suggested by Justice Nigro, the McDonald test should require 

a sixth element — proof that the general contractor either paid the injured 

worker’s benefits, or prior to the injury, obtained a policy which would have 

covered the injured employee. Only when a general contractor has assumed 
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responsibility for an injured worker’s benefits should it be entitled to immunity 

under the Act. To do so would be in furtherance of the initial legislative intent 

which is to provide a failsafe for injured workers in the event of a lapse in 

workers’ compensation insurance by the primary employer. Imposing such a 

requirement would also promote public policy considerations of assuring safe 

worksites and providing maximum protection and compensation to injured 

workers. However, because, as noted above, I concede we are bound by 

controlling statutory and case law to affirm the trial court’s grant of summary 

judgment in favor of Serfass, I am constrained to concur in the Majority’s 

decision.2

Thus, I concur with the decision to affirm the order granting summary 

judgment to Serfass, and dissent from the decision to affirm the order granting 

summary judgment to Tower.

____________________________________________

2

I note that unlike my colleagues in the Majority, I do not find Appellants 

waived this claim. See Majority Memorandum, at 12 n.5. Indeed, they 

discussed the “judicial calls to the Pennsylvania legislature to reconsider [this] 

statutory scheme” in their Memorandum of Law accompanying their response 

to Serfass’ motion for summary judgment, and asserted that the “present 

statutory scheme allows general contractors to remain insulated from tort 

liability despite never being required to provide . . . benefits to injured 

employees of subcontractors, thus creating a windfall immunity shield.” 

Appellants’ Memorandum of Law in Opposition to [Serfass’] Motion for 

Summary Judgment, 11/19/20, at 12.