Feldman v. CP Acquisitions, 2024 Pa. Super LEXIS 395, (Pa. Super., September 12, 2024) (Beck, J.)
BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and BECK, J.
OPINION BY BECK, J.
Vito Braccia Construction, LLC (“VBC”) appeals from the judgment entered by the Philadelphia County Court of Common Pleas (“trial court”) in favor of Brian Feldman (“Feldman”). On appeal, VBC challenges the trial court’s denial of its request for judgment notwithstanding the verdict (“JNOV”) based upon VBC’s claimed immunity under the Workers’ Compensation Act.
For the reasons that follow, we affirm.
This case involves a workplace electrocution accident which inflicted grievous injuries on [Feldman], while he was engaged in a tree removal project.
At the time of the accident, Mr. Braccia was employed by Vito Braccia Construction and he testified that everything he did regarding the tree removal project was done on behalf of VBC. (N.T. 16:5-11, October 27, 2022.)
Despite the known hazard posed by the power lines, Vito Braccia did no preplanning for the tree removal project, and even admitted that he, on behalf of VBC, failed to live up to his safety responsibilities.
Notably, while Vito Braccia asserted he was acting on behalf of VBC, both David Blumenfeld and Jerry Gallagher from Cross Properties, as well as Bruce Ross from Colonial, believed they were contracting with Altino for the tree removal project.
Feldman filed suit against VBC and, following a five-day trial, the jury found that VBC was negligent and awarded [] Feldman $15,500,000 in damages. VBC filed motions for JNOV and for a new trial, which this Court denied, and judgment was entered on the verdict.
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. 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.
Contrary to VBC’s contention that the work performed by Colonial was undisputedly “the cutting or removal of timber from lands,” we find the question of what constitutes “timber” under subsection 302(a)(1)(ii) to be ambiguous, making it unclear as to whether the provision applies to the circumstances before us.
Even assuming that there was a valid contract between VBC and any of the Cross Properties entities for the tree removal, we agree with the trial court that there is no evidence that VBC contracted with “an owner or one in the position of an owner.” A contractor occupies the position of the owner by conducting work under contract with the owner of the property whereby they occupy and control the premises and are authorized to permit subcontractors to enter the property.
As the trees in question were not “timber,” we conclude that section 302(a) of the Workers Compensation Act does not apply to the tree removal work performed. VBC therefore cannot be deemed a statutory employer under section 302(a)(1)(ii).
The record reflects, however, that no entity associated with the tree removal project obtained SEPTA’s permission to enter upon its property and remove the tree that resulted in Feldman’s injuries.
There was no contract with SEPTA, the owner of the property, nor was VBC authorized to permit subcontractors to enter upon SEPTA’s property. On this basis, VBC fails to satisfy the first element of the McDonald test, as he did not have a contract with the owner of the property or someone in the position of the owner of the property in question. We therefore find no error or abuse of discretion by the trial court in finding that VBC was not Feldman’s statutory employer pursuant to section 302(b). VBC’s argument that it was entitled to JNOV also fails on this basis.
In the alternative, VBC contends that it is entitled to a new trial at which its status as a statutory employer can be litigated—in particular, the question of whether VBC had a contract with Cross Properties for the tree removal work. VBC’s Brief at 49-50. Assuming solely for the sake of this argument that the applicability of the Statutory Employer Doctrine could be a jury question, we find that VBC is not entitled to a new trial on this basis. Because VBC failed to establish that the work involved the “cutting or removal of timber from lands” or that VBC was permitted to be on SEPTA’s property, there is no reason to remand the matter for a new trial to litigate the question of whether VBC had a contract with the Cross Properties entities.
