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Pennsylvania Supreme Court Decides to Hear Appeal in Patton v. Worthington Construction

May 23, 2013

In an appeal handled by John J. Hare and Kimberly Boyer-Cohen of Marshall Dennehey's appellate practice group, the Pennsylvania Supreme Court has agreed to hear a general contractor's appeal in the case of Patton v. Worthington Construction.

The Supreme Court's decision is significant because the divided lower court in Patton essentially nullified Pennsylvania's long-standing statutory employer doctrine, which creates an employment relationship between a contractor and the employees of subcontractors, such that the employees are entitled to workers' compensation benefits from the contractor but, in exchange, the contractor receives the same workers' compensation immunity from tort liability that an actual employer receives. The doctrine operates primarily to immunize contractors on construction projects from tort lawsuits by the injured employees of subcontractors.

While the doctrine has been applied for more than 80 years based upon a straightforward application of a five-part test set forth by the Supreme Court in McDonald v. Levinson Steel Co., 153 A. 424 (Pa. 1930), the lower court grafted an additional element onto the McDonald test that requires a fact-finder to determine whether the subcontractor's employee (the plaintiff) is also a common law employee or an independent contractor of the contractor.

However, this question can never be answered in a way that allows the statutory employer doctrine to apply, so it actually nullifies the doctrine. Specifically, if the fact-finder determines that the plaintiff is an actual employee of the contractor, the contractor is immunized as an actual employer and does not need statutory employer immunity. Likewise, if the plaintiff is an independent contractor, he by definition cannot be a statutory employee because the doctrine applies only to employees of subcontractors, not independent contractors. Consequently, although the lower court purported to apply the statutory employer doctrine, it actually nullified it.

Given that the Supreme Court grants only five percent of requests for appeal, its decision to review Patton is a major first-step toward reviving the statutory employer doctrine.

Affiliated Attorney

John J. Hare
Chair, Appellate Advocacy and Post-Trial Practice
(215) 575-2609
jjhare@mdwcg.com

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