Hernandez, J. v. Independence Constr. Corp.
CourtSuperior Court of Pennsylvania
Date FiledOctober 28, 2026
Docket1911 EDA 2023
JudgeLane
StatusPublished
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Full Opinion
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2026 PA Super 242
JESSE HERNANDEZ : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
INDEPENDENCE CONSTRUCTION :
CORPORATION, SOUTHEASTERN :
PENNSYLVANIA TRANSPORTATION : No. 1911 EDA 2023
AUTHORITY, NATIONAL RAILROAD :
PASSENGER CORPORATION D/B/A :
AMTRAK :
Appeal from the Judgment Entered July 14, 2023
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 181202689
BEFORE: LAZARUS, P.J., PANELLA, P.J.E., STABILE, J., DUBOW, J.,
KUNSELMAN, J., McLAUGHLIN, J., KING, J., SULLIVAN, J., and
LANE, J.
OPINION BY LANE, J.: FILED OCTOBER 28, 2026
Independence Construction Corporation (“ICC”) appeals from the
judgment imposed, following a jury trial, in favor of Jesse Hernandez
(“Hernandez”) in this catastrophic workplace injury matter. After careful
review, we affirm.
I. Facts & Procedural History
The trial court summarized the underlying facts as follows:
On March 12, 2018, Plaintiff . . . Hernandez was hit by a
South Eastern Pennsylvania Transportation Authority (“SEPTA”)
train while in the scope of his employment with Minority Services,
Inc. (“MSI”), a subcontractor of [Defendant ICC], and survived.
[Steven Hare (“Hare”) owned both ICC and MSI.]
ICC had long standing contracts with SEPTA to perform
janitorial services and maintenance work. Since 2012, ICC
contracted with SEPTA to perform construction projects that
involved trenching to lay conduit pipe for electrical lines[. ICC]
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subcontracted all contracts that involved trenching to MSI. The
controlling contract between ICC and SEPTA and subsequently
between ICC and MSI when [Hernandez] was injured involved
trenching for the purpose of installing underground conduit pipe
for electrical lines along [a SEPTA] train line[. Hernandez] worked
for MSI for about two years prior to the accident.
Trial Court Opinion, 12/19/23, at 1 (footnote omitted and paragraph break
added).
It is undisputed in this case that “trenching” was a process of digging
long and narrow ditches in the soil below the surface of the ground. The
trenching also encompassed the refilling of the ditches with soil after laying
electrical conduit piping in them. The contract between SEPTA and ICC
required the ditches to be dug by hand.
Furthermore, the contract with SEPTA required ICC to implement certain
safety measures, such as posting qualified watchpersons and protective
barriers parallel to the ditches. ICC engaged MSI to perform these
“watchperson duties.” Trial Exhibit P-1, Contract for Technical Services,
3/8/18, at 11 (unnecessary capitalization omitted). Watchpersons were to be
stationed around the jobsite and were to timely alert workers of any oncoming
SEPTA trains. At the time, SEPTA trains were not required to come to a
complete stop as they approached the digging and conduit laying operations.
The trenching and watchperson services provided by ICC were exclusively
carried out by MSI and its employees, although some employees were
previously employed by ICC.
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As stated above, Hernandez was working as an MSI employee,
performing trenching work within approximately four feet of SEPTA’s train
tracks, when he was struck by a train. Hernandez survived, but “suffered
significant injuries [and] was put into a medically induced coma[. He] suffered
a traumatic brain injury, hearing loss, injuries to the ligaments in his cervical
spine, and additional fractures to his sternum, nose, cheeks, and skull.” Trial
Court Opinion, 12/19/23, at 2.
Hernandez filed the instant suit against, inter alia, SEPTA and ICC,
asserting claims of negligence.1 He alleged: SEPTA’s trains were not safely
operated near the work site; the contractually required safety measures
meant to protect him were inadequate; and he was unreasonably placed in
danger by those conditions.
ICC filed a motion for summary judgment, asserting that it was the
statutory employer of Hernandez under the Pennsylvania Workers’
Compensation Act2 (“WCA”), and thus immune from tort liability. 3 The trial
1 Hernandez also named National Railroad Passenger Corporation d/b/a
AMTRAK as a defendant, but that party was dismissed prior to trial.
2 See 77 P.S. §§ 1-2710.
3 As we discuss infra:
Under the [WCA,] a general contractor that hires a subcontractor
to perform work on a jobsite is deemed an “employer” that is
secondarily liable to the injured employee of the subcontractor for
the payment of compensation under the [WCA], provided that the
subcontractor — the one primarily liable — fails to make payment.
Section 302(b) of the Act, 77 P.S. § 462. In exchange for this
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court denied the motion without a hearing; the order stated only that “issues
of material fact remain[ed] in dispute.” Order, 12/13/22. 4
This matter proceeded to a ten-day jury trial. We surmise from the
record that SEPTA settled with Hernandez, but remained a party and was
included on the jury’s verdict slip for allocation of fault.
At trial, Hernandez argued that SEPTA and ICC were liable for his injuries
because they: were responsible for directing the movement of trains along the
lines where he worked; and controlled the work site. According to Hernandez,
it was the duty of both SEPTA and ICC to ensure that his workplace was safe.
Pertinently, the trial court made several evidentiary rulings, concerning
the extent to which witnesses could comment, or be subject to questioning,
about ICC’s compliance with provisions in its contract with SEPTA.
Additionally, ICC sought to preclude evidence of remedial measures
implemented by SEPTA after Hernandez’s accident, namely, “Rule 135,” which
required trains to come to a full stop before work areas near railings and
imposition of secondary liability, the [WCA’s] statutory employer
provision in Section 203 of the Act, 77 P.S. § 52,2 extends to a
general contractor the same tort immunity afforded to the
subcontractor of the injured worker.
Yoder v. McCarthy Construction, Inc., 345 A.3d 668, 672-73 (Pa. 2025)
(footnote omitted).
4 The certified record contains two near-identical orders denying ICC’s motion
for summary judgment. Both copies bear a “filed” stamp with an August 22,
2026 filing date. However, the text of the order refers to December 6, 2022,
and the corresponding trial docket entry is dated December 13, 2022. We
employ the docket entry date for citation purposes.
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trenches. See N.T. Trial, 2/7/23 A.M., at 44-48. We discuss these issues as
they arise infra.
At the close of Hernandez’s case, on the sixth day of trial, ICC moved
for compulsory nonsuit and/or a directed verdict, asserting that it was the
statutory employer of Hernandez under both sections 302(a)(1) and 302(b)
of the WCA, and thus immune from this negligence action. Relevantly, the
parties argued whether MSI performed “excavation” under section 302(a), and
addressed the five section 302(b) McDonald5 factors (discussed infra) for
determining whether a general contractor is a statutory employer. The trial
court denied ICC’s motion, and trial proceeded to ICC’s presentation of its
case.
Ultimately, the jury found ICC, SEPTA, and Hernandez were all
negligent, and all of their negligence was a factual cause of harm to
Hernandez. The jury apportioned liability as follows: (1) ICC — seventy
percent liable; (2) SEPTA — twenty-nine percent liable; and (3) Hernandez —
one percent liable. The jury awarded Hernandez judgment in the amount of
$7,297,700.86.
ICC filed a post-trial motion, seeking judgment notwithstanding the
verdict (“JNOV”). ICC: again asserted statutory employer immunity under the
WCA; and requested, alternatively, a new trial on the grounds the trial court
erred in admitting certain evidence. The trial court conducted a hearing and
5 See McDonald v. Levinson, 153 A. 424 (Pa. 1930).
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denied ICC’s post-trial motion. ICC filed a timely notice of appeal, and both
it and the trial court have complied with Pa.R.A.P. 1925.
In a substituted brief submitted for en banc review,6 ICC presents
fourteen issues:
1. Whether the trial court erred in not rendering findings of fact
and conclusions of law on ICC’s statutory employer immunity
defense prior to the jury’s verdict?
2. Whether the trial court erred in holding that ICC was not a
statutory employer under Section 302(a)(1)(i) of the [WCA]
when it concluded that ICC was not engaged in excavation
activity within the meaning of the WCA?
3. Whether the trial court erred in denying ICC’s motion for
[JNOV] in holding that the evidence of record did not establish
that ICC contracted for the performance of excavation work
and, therefore, concluded that ICC was not a statutory
employer immune from suit under Section 302(a)(1)(i) of the
WCA?
4. Whether the trial court erred in holding that ICC was not a
statutory employer under Section 302(a)(2) of the WCA
where it conflated the requirements of Section 302(a)(2) with
those of Section 302(a)(1)(i) by finding that Section
302(a)(2) applies only to contracts for the excavation of
natural minerals or similar activities?
5. Whether the trial court erred in holding that ICC was not a
statutory employer under Section 302(a)(2) of the WCA
where[] ICC had subcontracted to [Hernandez’s] employer to
perform trenching operations which was a regular and
recurrent part of ICC’s business?
6. Whether the trial court erred in holding that ICC was not a
statutory employer under Section 302(b) of the WCA where
the evidence at trial established control of the worksite and
all the McDonald factors?
6 Our citations to both parties’ briefs are to the substituted briefs filed for en
banc review.
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7. Whether the trial court abused its discretion in allowing cross-
examination on non-compliance with SEPTA contractual
requirements governing Disadvantaged Business Enterprises
[(“DBEs”)] and Contractor Integrity policies which was not
probative to the negligence claim, was highly inflammatory
and prejudicial to ICC[,] and by denying ICC’s motion for a
new trial?
8. Whether the trial court abused its discretion and committed
legal error by allowing cross-examination on purported
noncompliance with contractual requirements as character
evidence where such evidence was not admissible under
Pa.R.E. 608(a) or (b)[,] and by denying ICC’s motion for a
new trial?
9. Whether the trial court abused its discretion and committed
legal error by mischaracterizing evidence of non-compliance
with contractual requirements as impeachment evidence as
to credibility and by failing to engage in a balancing test of
the prejudicial impact to ICC as required by Pa.R.E. 403[,]
and by denying ICC’s motion for a new trial?
10. Whether [ICC] preserved for appeal objections to the
admission of testimony on cross-examination regarding
noncompliance with contractual requirements as non-
probative and prejudicial?
11. Whether the trial court abused its discretion in admitting non-
probative evidence of ICC’s alleged breach of contract
through testimony of [Hernandez’s] engineering expert[,]
and by denying ICC’s motion for a new trial?
12. Whether the trial court abused its discretion in admitting
nonprobative evidence of subsequent remedial measures,
where the prejudice to ICC exceeded its probative value; and
by denying ICC’s motion for new trial?
13. Whether the trial court erred in declining to charge the jury
that subsequent remedial action was not relevant to the
claims against ICC and by denying ICC’s motion for new trial?
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14. Whether the trial court erred in denying ICC’s motion for new
trial or [JNOV] where there was an insufficiency of evidence
to sustain the verdict?
ICC’s Brief at 2-4 (issues reordered for ease of disposition). 7
II. Jurisdiction Under the Yoder Decision
In its first issue, ICC raises a jurisdictional question, citing the recent
Pennsylvania Supreme Court decision, Yoder, issued while this en banc
review was pending.8 For ease of discussion, we first review in detail the
pertinent procedural history of Yoder. The injured employee (“Yoder”) of a
subcontractor filed a complaint in negligence against the general contractor
(the “defendant”). See Yoder, 345 A.3d at 674. The defendant filed a pre-
trial motion in limine: (1) arguing it “was Yoder’s statutory employer and,
therefore, entitled to immunity from civil liability under the” WCA; and thus
(2) seeking preclusion of any evidence on liability. Id. The Yoder trial court
7 Although ICC presents fourteen issues in its statement of questions involved,
its argument section sets forth ten main headings in a different order. We
remind counsel that “the argument shall be divided into as many parts as
there are questions to be argued.” Pa.R.A.P. 2119(a) (unnecessary
capitalization omitted). We note, especially relevant in an appeal with
numerous claims, that “the Rules of Appellate Procedure were adopted to
insure the orderly and efficient administration of justice at the appellate level.”
Stout v. Universal Underwriters Ins. Co., 421 A.2d 1047, 1049 (Pa. 1980)
(unnecessary capitalization omitted).
8 Initially, a three-judge panel of this Court issued a memorandum decision
based on the briefs then filed by the parties. On October 23, 2025, the
Supreme Court issued Yoder, and eight days later, this Court granted en banc
review of this appeal. ICC then sought leave to address the applicability of
Yoder, which this Court granted. The parties’ arguments concerning Yoder
are therefore properly before this en banc panel for review.
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heard oral argument but denied the defendant’s motion in limine “without any
explanation,” although its post-trial Rule 1925(a) opinion addressed the fifth
McDonald factor. Id. at 674, 675, 689. Subsequently at trial, the jury
returned a verdict for Yoder in the amount of $5 million. See id. at 674.
The defendant appealed. Pertinently, this Court reviewed all five of the
McDonald factors and determined that the defendant satisfied each one and
thus was a statutory employer, immune from tort liability. See id. at 676.
This Court vacated the judgment entered in favor of Yoder and remanded for
the court to enter judgment in favor of the defendant. See id. at 674.
The Pennsylvania Supreme Court granted Yoder’s petition for allowance
of appeal.9 Relevantly, it considered whether the Superior Court erred in
9 The Yoder Court considered two claims in addition to the above-discussed
issue. First, the Court upheld, against a stare decisis challenge, decisional
authority that the WCA “‘deprives the common pleas courts of jurisdiction of
common law actions in tort for negligence against employers’ and ‘[t]he lack
of jurisdiction of the subject matter may be raised at any time and may be
raised by the court sua sponte if necessary.’” Yoder, 345 A.3d at 686 (citing,
inter alia, LeFlar v. Gulf Creek Industrial Park #2, 515 A.2d 875 (Pa.
1986)).
The Supreme Court then considered a second stare decisis challenge.
Yoder requested the Court to overrule our caselaw concerning statutory
employer immunity, and instead
allow an injured employee of a subcontractor to recover for his
workplace injury both under the [WCA] against his direct
employer and civilly in a court of law against the general
contractor for its negligence if the general contractor’s secondary
liability does not transform into primary liability — i.e., because
the subcontractor made payment under the Act. . . .
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determining the defendant established all the factors under McDonald. See
id. at 686-87. The Supreme Court recalled the trial court had issued a pre-
trial order, precluding the defendant “from raising the statutory employer
defense at trial in any manner whatsoever.” Id. at 688. The Court thus
reasoned “there was no record on which the Superior Court could have
assessed whether [the defendant] satisfied the first, second, and fourth
elements of the McDonald test.” Id. at 688. The Court further explained:
[W]here a general contractor establishes that it is the statutory
employer of an injured employee of a subcontractor, then the
court of common pleas lacks jurisdiction to consider the
employee’s claim that the general contractor was negligent.
In that vein, whether the general contractor is the statutory
employer of the injured employee of the subcontractor is a
question of law that a court must first decide before addressing
the merits of the employee’s negligence claim.
Here, [the defendant] first raised the statutory
employer defense in a motion for summary judgment,
which the trial court denied without any explanation. At
that point, however, once the trial court’s jurisdiction was placed
into question, [the defendant] should have been afforded the
opportunity to develop a record and obtain a ruling thereon
before the start of the jury trial. . . .
Yoder, 345 A.3d at 689 (some emphasis in original and some added,
paragraph breaks added, and citations omitted).
On appeal, ICC relies on the above passage and argues that the trial
court failed to rule on its WCA statutory employer defense before trial. ICC’s
Yoder, 345 A.3d at 673 (emphases in original). The Court rejected Yoder’s
argument. See id. at 680-84.
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Brief at 49. ICC asserts that Yoder decreed that the question, of whether a
contractor is a statutory employer, implicates the trial court’s jurisdiction to
consider an employee’s claim of negligence. See ICC’s Reply Brief at 11.
Hernandez replies that a pre-trial ruling was not required in this case
because, “unlike in Yoder, there was a significant factual record
developed . . . on these statutory employer issues” and the trial court denied
ICC’s statutory defense based on “this well-developed record.” Hernandez’s
Brief at 51. Herandez asserts that in any event, the trial court did rule on
ICC’s statutory employer claim, when it denied its “fully briefed” motion for
summary judgment. Id.
First, we determine the pre-trial denial of ICC’s motion for summary
judgment is akin to the Yoder trial court’s denial of the defendant’s motion in
limine, where the Supreme Court found the trial court had not in fact ruled on
the defendant’s McDonald arguments. See Yoder, 345 A.3d at 674, 689
(noting the trial court heard oral argument but denied the motion in limine
“without any explanation” and concluding that the defendant “should have
been afforded the opportunity to develop a record and obtain a ruling thereon
before the start of the jury trial”). Here, although the trial court denied ICC’s
motion for summary judgment, notwithstanding any accompanying briefs
filed, it provided no reasoning beyond the statement that “issues of material
fact remain in dispute.” Order, 12/13/22. Significantly, mid-trial, when ICC
made the oral motion for a directed verdict, the trial court made no reference
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to the earlier pre-trial ruling, and instead heard and participated in extensive
argument over ICC’s statutory employer argument. 10 See N.T., 2/14/23, at
158-86. The court then denied relief. See id. at 186. Accordingly, similarly
to Yoder, the trial court did not “first decide” ICC’s statutory employer claim
“before the start of trial.” Yoder, 345 A.3d at 689.
Next, we consider whether the Yoder Court’s disposition — of vacating
the judgment and remanding to the trial court to determine, in the first
instance, of whether the defendant satisfied the McDonald test — is required
here. We determine that the procedural history and record developed in the
instant matter are distinguishable from those in Yoder. As stated above, the
Yoder trial court denied the pre-trial motion in limine without “any
explanation,” and its Rule 1925(a) opinion, issued after the post-trial
proceedings, addressed only the fifth McDonald factor. See id. at 675, 689.
Here, in contrast, both parties extensively debated the statutory employer
defense during the trial proceedings — first under section 302(b) with
discussion of all five McDonald factors, and then separately under section
302(a)(1). The parties also referred to the trial evidence and arguments
already presented at trial. See N.T., 2/14/23, at 158-86. The trial court
engaged in the discussion, stating its observations and questioning counsel.
10 We note the Honorable Anne Butchart ruled on the motion for summary
judgment, while the Honorable Angelo Foglietta presided over trial and post-
trial proceedings.
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Thus, unlike the procedural posture in Yoder, where the defendant had
no “opportunity to develop a record,” here, both parties had the opportunity
to present argument, based on evidence presented at trial, as to ICC’s
statutory employer defense. A remand by this Court would merely direct the
trial court to revisit an issue already raised, developed, argued, and decided
on the merits, albeit during trial rather than prior to trial. Such a ruling
would not only waste judicial resources, but would provide ICC a second bite
of the apple on this issue.
Meanwhile, we also consider that, in considering ICC’s mid-trial oral
motion for directed verdict in February 2023, the trial court properly followed
the law as it was in effect at the time. The Pennsylvania Supreme Court did
not issue Yoder announcing the above principles until October 2025, more
than two and one-half years later, and just before this Court granted en banc
review.
Finally, we emphasize that ICC has not claimed any prejudice regarding
the manner and time frame in which the trial court ruled on its statutory
employer defense. Instead, ICC simply quotes in isolation the Yoder passage,
set forth above, without any discussion of the procedural history that informed
the Court’s decision, nor acknowledgement that here, it had the opportunity
to fully present its statutory employer defense and the trial court ruled on its
merits.
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For the foregoing reasons, we determine that vacating the underlying
judgment and remanding for a second review of ICC’s defense is not
appropriate here. Accordingly, no relief is due on ICC’s first issue.
III. WCA Statutory Employer Claims
In its next five issues, ICC avers the trial court erred in finding it was
not a statutory employer under sections 302(a) and (b) of the WCA. We
reiterate that ICC asserted it was a statutory employer in motions for a
directed verdict and JNOV, and the trial court denied them. 11 We consider the
applicable standards of review:
[W]e must consider the evidence, together with all
favorable inferences drawn therefrom, in a light most
favorable to the verdict winner. Our standard of review
when considering motions for a directed verdict and
judgment notwithstanding the verdict are identical. We
will reverse a trial court’s grant or denial of a [JNOV] only
when we find an abuse of discretion or an error of law
that controlled the outcome of the case. Further, the
standard of review for an appellate court is the same as
that for a trial court.
There are two bases upon which a [JNOV] can be
entered[:] one, the movant is entitled to judgment as a
11 On appeal, Hernandez argues ICC has waived its WCA immunity claims
because it did not raise them until the close of his case. See Hernandez’s
Brief at 14. However, immunity under the WCA implicates the court’s subject
matter jurisdiction and thus is not waivable and “may be raised at time.”
Yoder, 345 A.3d at 686.
Additionally, ICC challenges the trial court’s denial of its motion for a
compulsory nonsuit. However, this Court has explained that once a defense
is presented at trial, a trial court’s refusal to grant a nonsuit becomes moot.
See Whitaker v. Frankford Hosp., 984 A.2d 512, 517 (Pa. Super. 2009).
We therefore limit our review of ICC’s first five issues to the trial court’s denial
of a directed verdict and JNOV.
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matter of law[;] and/or two, the evidence is such that no
two reasonable minds could disagree that the outcome
should have been rendered in favor of the movant. With
the first, the court reviews the record and concludes that,
even with all factual inferences decided adverse to the
movant, the law nonetheless requires a verdict in his
favor. Whereas with the second, the court reviews the
evidentiary record and concludes that the evidence was
such that a verdict for the movant was beyond
peradventure.
Determinations of credibility [and conflicts in evidence] are for the
fact finder.
Janis v. AMP, Inc., 856 A.2d 140, 143-44 (Pa. Super. 2004) (citations
omitted).
With respect to the WCA, this Court has explained:
By way of background, under the WCA, employers must pay
workers’ compensation benefits, regardless of negligence, to
employees who sustain injuries in the course of their employment.
See 77 P.S. § 431. In exchange for receiving these benefits
without having to prove negligence, employees may not sue their
employers in tort for injuries they incurred in the course of their
employment. See 77 P.S. § 481(a). In other words, with respect
to work-related injuries, the employers have immunity from tort
liability.
. . . [P]ursuant to Section 302(a) of the WCA, codified at 77
P.S. § 461, certain contractors who meet a specialized definition
take on secondary liability for the payment of workers’
compensation benefits to the injured employees of their
subcontractors. See 77 P.S. § 461; see also Six L’s Packing
Co. v. W.C.A.B. (Williamson), . . . 44 A.3d 1148, 1157 (Pa.
2012). Thus, in the event the subcontractor-employers cannot or
will not pay workers’ compensation benefits to their
subcontractor-employees, these contractors assume workers’
compensation liability. 77 P.S. § 461. As such, despite not being
the actual employers of the subcontractor-employees, these
contractors are considered “statutory employers” of the
subcontractor-employees due to their treatment under the WCA.
Like the treatment of actual employers under the WCA, in return
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for assuming secondary liability for the payment of workers’
compensation benefits, statutory employers enjoy immunity in
tort for injuries the subcontractor-employees receive during the
course of their employment. See 77 P.S. § 481(a); Doman v.
Atlas America, Inc., . . . 150 A.3d 103 (Pa. Super. 2016). The
contractors enjoy this immunity “by virtue of statutory-employer
status alone, such that it is accorded even where the statutory
employer has not been required to make any actual benefit
payment.”
Dobransky v. EQT Production Co., 273 A.3d 1133, 1134-35 (Pa. Super.
2022) (en banc) (some citations omitted).
Here, ICC claims status as a statutory employer, and hence immunity
from tort liability, under sections 302(a) and (b) of the WCA, which appear at
77 P.S. §§ 461 and 462, respectively. We address each subsection in turn.
A. Section 302(a)
Section 302(a) of the WCA deems a contractor the employer of a
subcontractor’s employee, and thus entitled to immunity from tort liability,
under the following circumstances:
A contractor who subcontracts all or any part of a contract and his
insurer shall be liable for the payment of compensation to the
employes of the subcontractor unless the subcontractor primarily
liable for the payment of such compensation has secured its
payment as provided for in this act. Any contractor or his insurer
who shall become liable hereunder for such compensation may
recover the amount thereof paid and any necessary expenses
from the subcontractor primarily liable therefor.
For purposes of this subsection, a person who contracts with
another (1) to have work performed consisting of (i) the
removal, excavation or drilling of soil, rock or minerals, or
(ii) the cutting or removal of timber from lands, or (2) to have
work performed of a kind which is a regular or recurrent part of
the business, occupation, profession or trade of such person shall
be deemed a contractor, and such other person a subcontractor.
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This subsection shall not apply, however, to an owner or lessee of
land principally used for agriculture who is not a covered employer
under this act and who contracts for the removal of timber from
such land.
77 P.S. § 461 (emphasis added).
In issues involving statutory construction, “this Court’s standard of
review is plenary and non-deferential.” Martin v. DOT, Bureau of Driver
Licensing, 905 A.2d 438, 443 (Pa. 2006). “The object of all interpretation
and construction of statutes is to ascertain and effectuate the intention of the
General Assembly.” 1 Pa.C.S.A. § 1921(a). A “statute’s plain language
generally offers the best indication of legislative intent.” Martin, 905 A.2d at
443.
ICC’s second through fourth questions presented concern the definition
of “excavation,” as it appears in section 302(a). The WCA does not define this
term. See 77 P.S. §§ 21-29 (“Definitions”). We review the parties’ arguments
before the trial court, as well as the court’s ruling. At trial, in its oral motion
for a directed verdict, ICC argued that the “trenching” work performed here
met the statute’s requirement for “the removal the excavating of the soil into
a new location.” N.T., 2/14/23, at 183. The trial court responded: “I’m not
sure if [section 302(a)] stands for the proposition that simply by . . . digging
a trench, no other test being applied . . . the contractor is the statutory
employer.” Id. at 186. The court thus denied relief.
After the jury’s verdict, at the hearing on post-trial motions, ICC
reraised this claim. ICC contended that “the principal objective of the
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contract” was trenching and excavation: “Workers are digging.” N.T., 6/7/23,
at 25-26. ICC argued that: “the plain meaning of excavation is to dig
cavities;” there was “nothing in the statute that would suggest . . . excavating
materials to use for some other useful purpose;” and “it’s not important . . .
whether the soil was to be used for some other reason.” Id. at 34.
Hernandez responded that: section 302(a) addressed “the removal,
excavation or drilling of soil, rock or minerals;” this section “very clearly
speaks to . . . the extraction of materials so that those materials could be
harnessed and used for some other purpose,” and the statute did not
contemplate the mere “digging [of] a hole and replacing it.” Id. at 27-28.
Hernandez reasoned that here, “the trenching was ancillary to the . . . job [of]
lay[ing] conduit for the track and . . . the trains,” and the digging was
temporary, as the workers refilled the hole once they laid the wires. Id. at
28. Hernandez compared this work to installing a fence: “[A] fence installer
has to dig a hole . . . to install the fence [post,] but no one would say [he]
was an excavator or hired for excavation.” Id. at 24, 28. Hernandez claimed
that if the trial court adopted ICC’s broad interpretation, all general
contractors would have statutory employer immunity because “virtually every
construction” project in Pennsylvania involved work “below the ground.” Id.
at 29.
The trial court ultimately denied ICC relief. In its opinion, the court
explained that it rejected ICC’s interpretation of the term, “excavation,” to
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include trenching. Trial Court Opinion, 12/19/23, at 14. The court considered
that if it were to adopt this interpretation, then “nearly every single
construction contract would extend statutory employer immunity to a general
contractor,” as all construction contracts “require some degree of earth
moving[.] Trenching is necessary for laying pipes, sewage lines, telephone
wires, and electrical cables — all common household necessities[.]” Id. at
14-15. Instead, the trial court found section “302(a) is triggered where the
excavation is for purpose of extracting minerals as opposed to a momentary
displacement of soil, as in trenching, within a construction project.” Id. at 15.
The trial court distinguished excavation, which “requires the removal of soil,”
from trenching, which “requires that the soil be removed for a purpose and
replaced.” Id.
Additionally, the trial court reasoned “there is no case law [providing
section] 302(a) protections to a construction accident.” Id. Instead,
Pennsylvania courts have applied section 302(a) “in a very limited universe of
cases:”
Dobransky, 273 A.3d at . . . 1139-44 ( . . . analyzing the
application of section 302(a)(1)(i) in the context of an accident .
. . at a natural gas well site); Doman 150 A.3d at 104 ( . . .
analyzing the application of section 302(a)(1)(i) in a case
involving an accident . . . at an oil and gas drilling site); [Delich
v. Workmen’s Compensation Appeal Bd., 661 A.2d 936, 936-
37 (Pa. Cmwlth. 1995)] ( . . . analyzing 302(a)(1)(i) in the context
of an accident . . . during timber harvesting operations);
Coleman v. Chief Oil & Gas, LLC, 2022 WL 821167 (M.D.Pa. . .
. 2022) (applying section 302(a)(1) to a case involving an accident
. . . during natural gas well drilling operations).
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Trial Court Opinion, 12/19/23, at 16 (unnecessary capitalization omitted). The
trial court summarized: “Routine construction tasks such as laying electrical
conduit are not contemplated by section 302(a).” Id. at 16 (unnecessary
capitalization omitted).
On appeal, ICC contends that the trial court erred in restricting the term
“excavation” to the extraction of minerals, and in distinguishing “the
temporary removal of soil for a particular purpose.” ICC’s Brief at 36. ICC
cites Webster’s Dictionary definition of “to excavate,” which is “to form a cavity
or hole in[,] to form by hollowing[, or] to dig out and remove.” Id. at 35
(quoting WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY (1985)). ICC reasons that
the plain language of section 302(a) refers to the “removal, excavation or
drilling of soil, rock or minerals,” and thus “reasonably encompasses all
activities necessary to the creation of the cavity which includes trenching.”
Id. at 36. Accordingly, ICC claims, “the reason for the trenching operation is
immaterial,” and the “court erred in concluding that MSI was not excavating
simply because of the intended purpose of laying conduit in the trench.” Id.
at 36-37. ICC further claims that section 302(a) “evinces no intent to carve
out construction site accidents.” Id. at 37. ICC challenges the court’s
“overbreadth argument — that all construction projects involve some degree
of earth movement.” Id. at 38. In support, it reasons:
Earth movement, such as grading or importing and dumping fill
material, is simply not excavation under a plain and ordinary
sense, nor is digging a hole to sink a post or fence. . . . Rather,
it applies to the injured employees of a subcontractor that has
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contracted to perform work consisting of excavation for the prime
[sic] contractor.
Id. ICC maintains “the WCA is remedial in nature” and “the legislative intent
was to broaden liability for the payment of worker’s compensation benefits to
statutory employers to protect against the risk of non-payment by the injured
worker’s direct employer.” Id. at 39 (unnecessary capitalization omitted).
Hernandez counters that Pennsylvania courts have applied section
302(a) only to an “extremely narrow type[] of cases . . . involving oil, gas,
and mineral extractions and timber harvesting[,]” and have “never” applied
it “to a construction project accident.” Hernandez’s Brief at 18 (emphasis in
original). Hernandez’s Brief at 18 (emphasis in original). Hernandez reasons
that ICC’s interpretation of “excavation” would “dramatically expand statutory
immunity . . . to any project that involves any movement of soil, even if is
merely a temporary disturbance of the soil,” or to any work involving “the use
of shovels.” Id. at 18-19. Such a result would be “absurd,” and would grant
immunity to general contractors “in all cases involving construction site work.”
Id. at 19 (emphasis in original). Additionally, Hernandez argues “excavation”
must be the “principal purpose” of a contract in order for section 302(a) to
apply. Id. at 13.
With respect to the question of whether ICC qualified as a statutory
employer, we reiterate that pursuant to Yoder, we review the record
developed before the trial court. See Yoder, 345 A.3d at 689. After careful
review of the record, we reject, as did the trial court, ICC’s interpretation of
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the term “excavation,” within section 302(a), to include the trenching work
performed here. We reiterate that section 302 ad