IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jason and Min Lee, h/w ; : JC Investment, Inc., and Restaurant : Development, LLC d/b/a Cedar Park : Café, :

Appellants :

:

v. :

: JPC Group, Inc. :

JC Investment, Inc. and Restaurant : Development, LLC :

:

v. : No. 1000 C.D. 2016 : Argued: February 6, 2017 JPC Group, Inc. :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPIN ION NOT REPORTED

MEMORANDUM OPINION BY PRESIDENT JUDGE LEAVITT FILED: March 9, 2017

Jason and Min Lee, JC Investment, Inc., and Restaurant Development,

LLC d/b/a Cedar Park Café (Owners) appeal a decision of the Court of Common

Pleas of Philadelphia County (trial court) that denied their motion in limine to
preclude JPC Group, Inc. from presenting evidence on its asserted qualified

immunity defense

. T he trial court denied Owners’ motion because it concluded

that JPC Group was acting as an employee of the City of Philadelphia (City) when

it demolished a fire

- damaged building and

, thus

, immune from tort liability. JPC2

Group counters that all of the issues Owners raise in this appeal were waived due

to their failure to file a post

- trial motion. We reverse and remand.

On December 24, 2012, a fire severely damaged a three

- story building

at 4912 Baltimore Avenue in the City . To investigate the origin of the fire, the Fire

Marshal decided t hat either the front or back of the building had to be removed

. The inspectors from the City’s Department of Licensing and Inspection expressed

concern that the demolition work created the risk of damage to the one

- story
buildings on either side of the da maged three

- story building. JPC Group was

selected to do the demolition work because it had previously performed such work

for the City.

The City has an annual Master D emolition Contract (Contract) with

JPC Group

. The Contract authorizes JPC Group to submit demolition service bids
to the City “in open competition with other contractors so qualified.” Reproduced

Record at 6 6 (R.R. ___) . The Contract provides “no guarantee that the contractor
will be awarded bids against this Contract.” R.R. 6 7 . To be eligible to parti cipate,

JPC Group is required to provide security in the form of a “performance bond” and
“payment bond” as prescribed by the City. R.R. 6 8 . JPC Group i s further required

to carry its own liability insurance that name s th e City, its officers, and emp loyees

as additional insureds. In addition, the Contract requires JPC Group to indemnify

the City for any costs, expenses, damages, and liabilities the City might incur as a

consequence of JPC Group’s performance of demolition service s

.

Richard Quigley, an inspector for the Department of Licensing and

Inspection, testified in his deposition that the City chose JPC Group to demolish

the fire

- damaged building “because of the way the building was situated ... a three

story buildin g above two one story buildings. So we wanted to bring on somebody3

who had the equipment and the manpower and the experience ... to deal with the

situation.” R.R. 483 ; Notes of Testimony, 10/24/2014, at 11

- 12 (N.T. __).

In preparation for the demolition process, JPC Group laid down tires

and sheets of plywood on the roofs of the adjacent one

- story bui ldings to protect
them from falling bricks. The company then moved its excavator onto the scene to

perform the demolit ion work. The Fire Marshal, who was p resent at the scene, set
up a “command post” at an adjacent property to watch the demolition. 1 During the

process, the sidewalls of the fire

- damaged building collapsed outward, causing

damages to the adjacent one

- story buildings, one of which was owned by Owners.

Owners sue d JPC Group for negligence. State Farm Fire and Casualty
Company (State Farm), acting as Owners’ subrogee, also sued

. T he trial court

consolidated the two matters . The parties deposed the City’s Fire Marshal,

inspectors, Chief of Cont ractual Services at the Department of Licensing and

Inspection , as well as several employees of JPC Group. State Farm also prepared

an expert report to show that JPC Group acted negligently in demolishing the fire

damaged building.

Owners filed a motion in limine with the trial court to preclude JPC

Group from presenting evidence on its asserted defense of qualified immunity

. 2

On December 7, 2015, both parties appeared before the trial court to provide an

1 T he Fire Marshal testified in his deposition as to the reason he set up the command post: “[w] e’d go in there and we’d talk about it

... we say what we observed on the outer side, what we do next, what we want to have the crane operators do. And that was just someplace to get out of the cold....it was the warmest of the two p roperties.” R.R. 1 64 ; N

. T

. , 10/24/2014, at 66

. The Fire Marshal further testified: “[the] property gave us access to the area where we could see down into the property as the equipment operator was extracting the building beams, and stuff,
out of there. From his property we could see down into it.” R.R. 164 ; N.T.

, 10/24/2014

, at 67

. 2 JPC Group did not assert the defense of immunity in its a nswer with n ew m atter.4

update on the status of the case. State Farm’s c ounsel informed the trial court that

there had been a number of motions in limine filed

, but not yet decided , and some

related to the immunity issue

. The trial court acknowledged that immunity would

be the “first and foremost” issue to be d ecided . R.R. 600a . JPC Group’s c ounsel

stated that his client had responded to the motion in limine , and that “the only

question is whether [the judge] want[s] to decide [the immunity issue] on papers or

whether [she] want[s] to hear testimony from the w itnesses with regard to that

issue.” R.R. 601a

. Assured by JPC Group’s counsel that live testimony from the

witnesses would not be different from the depositions, the trial court decided to

rule on the immunity issue based on the depositions. T he matter was continued

until December 9, 2015

.

On December 9, 2015, the parties reconvened and the trial court

denied Owners’ motion in limine

. The court found that JPC Group acted as an

employee of the City on the date of the incident and

, thus

, was immune from

liability under what is commonly referred to as the Political Subdivision Tort

Claims Act, 42 Pa. C.S. §§ 8541

- 8542 (Tort Claims Act)

. 3 Owners appealed to the

Superior Court, without first filing post

- trial motions. The Superior Court ordered

Owners to show cause as to the basis for appellate jurisdiction. Owners filed a

response. Owners Brief at 9. The Superior Court later transferred the case to this

Court.

3 Section 8541 of the Tort Claims Act provides : “E xcept as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.” 42 Pa. C.S. §8541. Section 8542 provides exceptions, i.e ., the circumstances where a local agency may be found liable for damages caused by its employee. 42 Pa. C.S. §8542. The trial

court , in holding that JPC Group is immune from liability under Section 8541, did not consider
th e applicability of any of the exceptions in Section 8542.5 On appeal, 4 Owners argue that the trial court erred in deciding that

JPC Group ac ted as an employee of the City and is immune under Section 8541 of

the Tort Claims Act

, 42 Pa. C.S. §8541. Owners contend that JPC Group was an
independent contractor of the City. JPC Group responds that all of the issues that

Owners raise in this appeal were waived due to their failure to file post

- trial

motions. JPC Group also argues that , in any event, the trial court did not err in

holding that it acted as an employee of the City and is thus immune from liability

.

The issues presented in this appeal are identical to those raised by
State Farm in its separately docketed appeal from the trial court’s order. State

Farm Fire and Casualty Co. v. JPC Group, Inc. , ___A.3d ___ (Pa. Cmwlth., No.

916 C.D. 2016, filed March 9 , 2017.) For the reasons set forth in this Court’s

opinion in State Farm , we reverse the trial court’s order and remand for further

proceedings on Owners’ negligence claim

.

______________________________________ MARY HANNAH LEAVITT, President Judge

4 Whether a person acts as an independent contractor or an employee is a question of law fully reviewable by this Court. Johnson v. Workers’ Compensation Appeal Board (Dubois Courier Exp.) , 631 A.2 d 693, 696 (Pa. Cmwlth. 1993). Accordingly, our standard of review is de novo

, and the scope of review is plenary. The Medical Shoppe, Ltd. v. Wayne Memorial Hospital , 866 A.2d 455, 459 n.10 (Pa. Cmwlth. 2005).IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jason and Min Lee, h/w ; : JC Investment, Inc., and Restaurant : Development, LLC d/b/a Cedar Park : Café, :

Appellants :

:

v. :

: JPC Group, Inc. :

JC Investment, Inc. and Restaurant : Development, LLC :

:

v. : No. 1000 C.D. 2016

: JPC Group, Inc. :

O R D E R

AND NOW, this 9 th day of March , 2017, the order of the Court of

Common Pleas of Philadelphia County dated December 9, 2015 , is REVERSED

and the above

- captioned matter is REMANDED for further proceedings in

accordance with the attached opinion.

Jurisdiction relinquished.

______________________________________ MARY HANNAH LEAVITT, President Judge