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

OPINION 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. The 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. JPC 
2

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 that 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 damaged 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 Demolition 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 66 (R.R. ___). The Contract provides “no guarantee that the contractor 

will be awarded bids against this Contract.” R.R. 67. To be eligible to participate, 

JPC Group is required to provide security in the form of a “performance bond” and 

“payment bond” as prescribed by the City. R.R. 68. JPC Group is further required 

to carry its own liability insurance that names the City, its officers, and employees 

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 services. 

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 building above two one story buildings. So we wanted to bring on somebody 
3

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 buildings to protect 

them from falling bricks. The company then moved its excavator onto the scene to 

perform the demolition work. The Fire Marshal, who was present 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 sued JPC Group for negligence. State Farm Fire and Casualty 

Company (State Farm), acting as Owners’ subrogee, also sued. The trial court 

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

inspectors, Chief of Contractual 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 firedamaged 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

The 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 properties.” R.R. 164; 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 answer with new matter. 
4

update on the status of the case. State Farm’s counsel 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 decided. R.R. 600a. JPC Group’s counsel 

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 witnesses 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. The 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: “Except 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 

the 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 acted 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.2d 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