J-A26034-16

                              2016 Pa. Super. 233

THOMAS R. DOMAN, JR., AS                 :        IN THE SUPERIOR COURT OF
ADMINISTRATOR OF THE ESTATE OF           :              PENNSYLVANIA
ROCK A. DOMAN, Deceased,                 :
                                         :
                  Appellant              :
                                         :
           v.                            :
                                         :
ATLAS AMERICA, INC. (De.), ATLAS         :
ENERGY RESOURCES, LLC, ATLAS             :
RESOURCES, LLC, SUCCESSOR IN             :
INTEREST TO ATLAS RESOURCES,             :
INC., ATLAS AMERICA, LLC,                :
SUCCESSOR IN INTEREST TO ATLAS           :
AMERICA, INC. (Pa.) ATLAS ENERGY,        :
INC., SUCCESSOR IN INTEREST TO           :
ATLAS AMERICA, INC. (De.) AND            :
ATLAS ENERGY RESOURCES, LLC,             :
ATLAS ENERGY OPERATING COMPANY           :
LLC AND ATLAS ENERGY FINANCE             :
CORPORATION                              :            No. 153 WDA 2016

                   Appeal from the Order December 30, 2015
              in the Court of Common Pleas of Allegheny County,
                      Civil Division, No(s): GD-09-013573

BEFORE: BENDER, P.J.E., RANSOM and MUSMANNO, JJ.

OPINION BY MUSMANNO, J.:                          FILED OCTOBER 27, 2016

     Thomas R. Doman, Jr. (“Thomas”), as administrator of the Estate of

Rock A. Doman (“the Doman Estate”), deceased, appeals from the Order

granting summary judgment in favor of Atlas America, Inc. (De.); Atlas

Resources, LLC, successor in interest to Atlas Resources, Inc.; Atlas

America, LLC, successor in interest to Atlas America, Inc. (Pa.); Atlas

Energy, Inc., successor in interest to Atlas America, Inc. (De.), and Atlas
J-A26034-16


Energy Resources, LLC; Atlas Energy Operating Company, LLC; and Atlas

Energy Finance Corporation (collectively, “Atlas”).1 We affirm.

      In September 2006, Atlas entered into an oil and gas lease with Frieda

Springer (“Springer”), for the purpose of drilling, operating, producing, and

removing oil and gas from her property in Greene County.                 Atlas

subsequently entered into a Drilling Bid Proposal and Footage Drilling

Contract (“Footage Drilling Contract”) with Gene D. Yost & Son, Inc.

(“Yost”), a drilling contractor, to drill multiple wells in Fayette County and

Greene County, including Well No. 13 on Springer’s property (“the Springer

Well”).2 Under the terms of the Footage Drilling Contract, Yost was required

to provide the necessary equipment and labor, and to drill the wells to the

contract footage depth, as specified by Atlas.

      Yost began drilling at the Springer Well site in November 2007, and

the well reached the contract footage depth on December 2, 2007.          Yost

personnel worked overnight to remove the drilling pipe from the Springer

Well and “shut in” the well, leaving the gas in the well bore.      The Tulsa

1
  Although the Doman Estate named each of the above-mentioned Atlas
entities as defendants in the Amended Complaint, the parties agreed that
the only proper defendant is Atlas Resources, LLC.
2
  The Springer Well is a shallow, low-pressure vertical well drilled into the
Upper Devonian Shale formation. Such wells commonly involve footage
contracts with well-drilling companies, whereby the oil and gas lessee pays
the drilling company a per-foot rate to drill to a specified depth, referred to
as the contract footage depth. When drilling is complete, the contracted
drilling company is required to remove the drilling pipe, “shut in” the well,
and remove the drilling equipment so the lessee can move into the
production stage.


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Valve, which is situated on top of the well head and is used to contain the

gas within the well, was closed at this time. Rock A. Doman (“Doman”) and

another Yost employee began removing the blow-out preventer flange,

which was attached to the Tulsa Valve, from beneath the rig platform. While

the men unscrewed the flange from the Tulsa Valve assembly, they

inadvertently loosened the pressurized piping below the Tulsa Valve.           The

Tulsa Valve and the blow-out preventer flange detached from the well head

and struck Doman. Doman was thrown approximately 60 feet above ground

level before landing about 30 to 40 feet from the well rig, and was fatally

injured.

      Yost paid workers’ compensation benefits to Doman’s fiancé, for the

benefit of her minor child.3

      The Doman Estate filed a Complaint on July 28, 2009 to initiate a

wrongful death and survival action, seeking damages in tort for the

beneficiaries of the Doman Estate, Thomas and Patti Doman (Doman’s

parents). The Doman Estate filed an Amended Complaint on November 25,

2009, asserting the following six counts: (I) negligence/premises liability;

(II) negligence/negligent orders; (III) negligence/retention of control; (IV)

negligence/direct liability/peculiar risk doctrine; (V) negligence/vicarious

liability/peculiar risk doctrine; and (VI) strict liability/ultrahazardous activity.


3
  Although the child is not Doman’s natural son, he received workers’
compensation benefits as a dependent child under a theory of in loco
parentis.


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Atlas filed preliminary objections, seeking dismissal of each of the six

counts. On May 27, 2010, the trial court dismissed Counts V and VI.

      On May 8, 2015, after almost five years of discovery, Atlas filed a

Motion for summary judgment on the remaining counts, alleging that Atlas is

a statutory employer under Section 302(a) of the Workers’ Compensation

Act (“the Act”), codified at 77 P.S. § 461, and, therefore, is immune from

tort liability. Following a hearing, the trial court granted summary judgment

in favor of Atlas on December 30, 2015. The Doman Estate filed a timely

Notice of Appeal.

      On appeal, the Doman Estate raises the following question for our

review: “Whether the [l]ower [c]ourt erred in finding that Atlas, the owner

of the gas well where [] Doman, an employee of an independent contractor,

was killed, was shielded from tort liability as a statutory employer and, thus,

immune from civil liability under the [] Act[?]” Brief for Appellant at 4. 4

      Our standard of review of an order granting a motion for summary

judgment is well-settled:

      We view the record in the light most favorable to the non-
      moving party, and all doubts as to the existence of a genuine
      issue of material fact must be resolved against the moving party.
      Only where there is no genuine issue as to any material fact and
      it is clear that the moving party is entitled to a judgment as a
      matter of law will summary judgment be entered. Our scope of

4
   The Doman Estate claims that the trial court erred by granting summary
judgment in favor of Atlas, and finding that Atlas is immune from tort
liability as a statutory employer under Section 302(a). The Doman Estate
offers three separate sub-issues for our consideration, which we will consider
together.


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     review of a trial court’s order granting or denying summary
     judgment is plenary, and our standard of review is clear: the
     trial court’s order will be reversed only where it is established
     that the court committed an error of law or abused its discretion.

Daley v. A.W. Chesterton, Inc., 37 A.3d 1175, 1179 (Pa. 2012) (citation

omitted).

     First, the Doman Estate argues that the trial court failed to

appropriately consider the Pennsylvania Supreme Court’s decision in

McDonald v. Levinson Steel Co., 153 A. 424 (Pa. 1930).5             Brief for

Appellant at 9. The Doman Estate points to the McDonald decision for the

proposition that property owners are not entitled to immunity as statutory

employers. Id. at 10.

     The Doman Estate next argues that the trial court applied the wrong

test in determining that Atlas is immune from civil liability. Id. at 11. The

Doman Estate claims that the trial court should have applied Section 203 of

the Act rather than Sections 302(a) and 303 in determining whether Atlas is

a statutory employer, and asserts that Section 302(a) cannot be applied in

negligence actions. Id.

     Additionally, the Doman Estate asserts that Section 302(a) cannot be

used to confer immunity to Atlas because Atlas did not have a contract with

5
  In McDonald, the Supreme Court set forth the following five elements
necessary to create the statutory employer relationship: “(1) an employer
who is under contract with an owner or one in the position of an owner[;]
(2) premises occupied by or under the control of such employer[;] (3) a
subcontract made by such employer[;] (4) part of the employer’s regular
business [e]ntrusted to such subcontractor[;] [and] (5) an employee of such
subcontractor.” 153 A. at 426 (capitalization omitted).


                                 -5-
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an owner, and Atlas did not pay workers’ compensation benefits. Brief for

Appellant at 15. The Doman Estate claims that Yost should be considered an

independent contractor rather than a subcontractor, and that Atlas should be

considered a property owner rather than a general contractor or statutory

employer. Id. at 16-17.

     A contractor may be deemed a statutory employer if the requirements

of either Section 302(a) or Section 302(b) have been satisfied. See Emery

v. Leavesly McCollum, 725 A.2d 807, 813 (Pa. Super. 1999); see also

Gann v. Workmen’s Comp. Appeal Bd., 792 A.2d 701, 704 (Pa. Cmwlth.

2002) (stating that “Sections 302(a) and 302(b) of the Act [] confer

‘statutory employer’ status on certain entities for workers’ compensation

purposes”). Section 302(a) of the Act provides as follows:

     § 461. Coverage of employees                of   subcontractor;
     subcontractor defined; exception.

     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 who contracts for the removal of timber
        from such land.

77 P.S. § 461 (emphasis added).

        Section 302(b) of the Act provides as follows:

        § 462. Coverage of laborer or assistant hired by employe
        or contractor; contractor defined.

        Any employer who permits the entry upon premises occupied by
        him or under his control of a laborer or an assistant hired by an
        employe or contractor, for the performance upon such premises
        of a part of such employer’s regular business entrusted to that
        employe or contractor, shall be liable for the payment of
        compensation to such laborer or assistant unless such hiring
        employe or contractor, if primarily liable for the payment of such
        compensation, has secured the payment thereof as provided for
        in this act. Any employer or his insurer who shall become liable
        hereunder for such compensation may recover the amount
        thereof paid and any necessary expenses from another person if
        the latter is primarily liable therefor.

77 P.S. § 462.6

        Section 203 of the Act sets forth the rights enjoyed by a statutory

employer.


6
    Section 105 of the Act states the following:

        The term “contractor,” as used in [Section 203] and [Section
        302(b)], shall not include a contractor engaged in an
        independent business, other than that of supplying laborers or
        assistants, in which he serves persons other than the employer
        in whose service the injury occurs, but shall include a
        subcontractor to whom a principal contractor has sublet any part
        of the work which such principal contractor has undertaken.

77 P.S. § 25.



                                    -7-
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     § 52. Employers’ liability to employe of employe or
     contractor permitted to enter upon premises.

     An employer who permits the entry upon premises occupied by
     him or under his control of a laborer or an assistant hired by an
     employe or contractor, for the performance upon such premises
     of a part of the employer’s regular business entrusted to such
     employe or contractor, shall be liable to such laborer or assistant
     in the same manner and to the same extent as his own employe.

77 P.S. § 52.   The language of Section 203, which places the statutory

employer in the same position as the direct employer, coupled with Section

303’s mandate that “[t]he liability of an employer under this act shall be

exclusive and in place of any and all other liability to such employes,”

provides immunity from tort liability for statutory employers.       77 P.S.

§ 481(a); see also Peck v. Delaware County Bd. of Prison Inspectors,

814 A.2d 185, 188 (Pa. 2002) (stating that “[a]lthough not apparent from its

express terms, the language from Section 203 … confers upon the statutory

employer immunity from suit. This is because Section 303(a) … makes the

workers’   compensation system the       exclusive   remedy for   an injured

employee seeking redress from an employer for an on-the-job injury.”).

     Initially, a review of the relevant case law reveals

     a degree of ambiguity inherent in the overall scheme for
     statutory employer liability, arising out of differences in the
     definitions for “contractor” as used in various provisions of the
     [Act;] the idiosyncratic conception of subcontracting fashioned in
     Section 302(a); the substantial overlap between Sections 302(a)
     and (b); and the apparent differences in the depiction of the
     concept of statutory employment as between the Act’s liability
     and immunity provisions.




                                 -8-
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Six L’s Packing Co. v. Workmen’s Comp. Appeal Bd., 44 A.3d 1148,

1158 (Pa. 2012).    Indeed, there are two significant differences between

Section 302(a) and Section 302(b). Unlike Section 302(b) and Section 203,

on its face, Section 302(a) does not require the primary contractor to occupy

or control a worksite in order to be deemed the statutory employer of the

subcontractor’s employees. See 77 P.S. § 461. Additionally, Section 302(a)

sets forth a specialized definition of contractor, which, relevantly to this

case, includes “a person who contracts with another to have work performed

consisting of the removal, excavation or drilling of … minerals[.]”   77 P.S.

§ 461.

     In Delich v. Workmen’s Comp. Appeal Board, 661 A.2d 936 (Pa.

Cmwlth. 1995), the Commonwealth Court considered the differences

between Section 302(a) and Section 302(b). Although we are not bound by

the Commonwealth Court’s holdings, we are persuaded by its analysis in

Delich.7   The Court noted that while Section 302(a) does not include a


7
   In Delich, the Commonwealth Court considered the claim of a timber
worker who was injured by jumping off a piece of logging equipment after
being swarmed by hornets. Delich, 661 A.2d at 936-37. The workers’
compensation referee awarded benefits to Delich, to be paid by the timber
contractor as a statutory employer under Section 302(a). See id. at 937;
see also 77 P.S. § 461 (for the purposes of Section 302(a) of the Act, a
contractor includes one who “contracts with another to have work performed
consisting of … the cutting or removal of timber from lands”). However, the
Workmen’s Compensation Appeal Board reversed the decision, based on a
finding that the contractor did not occupy or control the premises. Delich,
661 A.2d at 937 (citing Wright Demolition & Excavating Co. v.
Workmen’s Comp. Appeal Bd., 434 A.2d 232, 234 (Pa. Cmwlth. 1981),
which held that an employer will not be held liable for workers’


                                 -9-
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requirement that the contractor occupy or control the premises, Section

302(b) specifically includes such a requirement. Delich, 661 A.2d at 938.

      More recently, in Six L’s Packing, the Pennsylvania Supreme Court

considered another specialized definition of contractor under Section 302(a),

specifically, “a person who contracts with another … to have work performed

of a kind which is a regular or recurrent part of the business, occupation,

profession or trade of such person.” 44 A.3d at 1150 (citing 77 P.S. § 461).

The Supreme Court declined to limit Delich’s holding to scenarios involving

the movement of soil, rocks, minerals and timber, and reiterated that

“Section 302(a), by its terms, is not limited to injuries occurring on premises

occupied or controlled by the putative statutory employer.”           Six L’s

Packing, 44 A.3d at 1157.

      Thus, because the legislature created two distinct sections, each with

its own requirements, we may not impute the requirements of one section

onto the other.   See Delich, 661 A.2d at 938-39 (stating that “where, as

here, the legislature includes specific language in one section of a statute []

and excludes it from another [], it should not be implied where excluded.”);



compensation benefits unless the employer occupied or controlled the
premises where the injury occurred). Ultimately, the Commonwealth Court
held that the timber contractor was liable as a statutory employer,
regardless of whether it occupied or controlled the premises where the
worker was injured. Id. at 939. The Court distinguished Wright on the
basis that the factual circumstances of Wright did not implicate the
specialized definition of contractor found in Section 302(a), and the referee
had concluded that the contractor was a statutory employer under both
Sections 302(a) and 302(b). Delich, 661 A.2d at 938.


                                 - 10 -
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see also id. at 938 (stating that “[i]n determining legislative intent, sections

of a statute must be read together and construed with reference to the

entire statute.”).   Moreover, “[t]o require the imposition of an additional

requirement incident to Section 302(b) [] would not only ignore the clear

and unambiguous language of Section 302(a) of the Act, [] but also render it

meaningless.” Id. at 939; see also 1 Pa.C.S.A. §§ 1921(b) (providing that

“[w]hen the words of a statute are clear and free from all ambiguity, the

letter of it is not to be disregarded under the pretext of pursuing its spirit”),

1922(2) (stating the presumption “that the General Assembly intends the

entire statute to be effective and certain”).

      Despite the differences between the two sections providing for

statutory employer status, the Doman Estate urges us to apply the factors

set forth in McDonald to the Section 302(a) statutory employer provision,

and asks us to find that Atlas is not Doman’s statutory employer because

Atlas, as a lessee, stood in the position of the property owner, and therefore,

is not immune from suit.       However, the Supreme Court has held that

“neither the McDonald test, nor a per se owner exclusion, applies under

Section 302(a) of the [Act].”8 Six L’s Packing, 44 A.3d at 1159; see also


8
  The McDonald test arose out of Section 203, and is more aptly applied in
considering statutory employer status under Section 302(b), because both
require that the employer occupy or control the worksite. See McDonald,
153 A. 424 (discussing the definition of “contractor” under Section 203, and
setting forth the requirements for statutory employer status); see also Six
L’s Packing, 44 A.3d at 1152 (stating that “the McDonald test also had
been extended from the Section 203 setting into the Section 302(b)


                                  - 11 -
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id. at 1159 n.12 (stating that “since the relevant statutes employ differing

conceptions of ‘contractor’ and ‘subcontractor,’ we do not believe that direct

comparisons between McDonald and Section 302(a) serve a useful purpose.

Rather, Section 302(a) is best interpreted … according to its own terms.”).

      Here, based upon the plain language of the statute, we conclude that

the trial court correctly applied Section 302(a) to determine that Atlas is

Doman’s statutory employer.      See Trial Court Opinion, 12/30/15, at 6-7.

Because Doman was employed by Yost to perform work involving the

“removal, excavation or drilling of … minerals” (natural gas), the facts of this

case implicate the specialized definition found in Section 302(a). Atlas, as

the primary contractor that subcontracted the drilling process at the

Springer Well, is Doman’s statutory employer as a matter of law.9 See 77

P.S. § 461.   Consequently, Atlas is entitled to tort immunity, pursuant to

Section 203, regardless of the fact that Yost already had paid Doman’s

worker’s compensation benefits. See Patton, 89 A.3d at 645 (holding that

“[the Supreme] Court has previously determined that this immunity pertains

context.”); Vandervort v. Workmen’s Comp. Appeal Bd., 899 A.2d 414,
419 (Pa. Cmwlth. 2006) (stating that “[t]he McDonald test has been
utilized over the years to determine whether an entity is a statutory
employer under both the tort immunity section (203) and the insurer section
(302(b)).”). However, the McDonald test is not applicable to Section
302(a).
9
  Accordingly, had Yost, as Doman’s direct employer, been unable to pay
Doman’s workers’ compensation benefits, Atlas would have been compelled
to pay. We note that even if Atlas had been required to pay Doman’s
workers’ compensation benefits, the beneficiaries of the Doman Estate would
not have received those benefits, as his benefits were directed to his
dependent child.


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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 payments.”); see also Fonner v. Shandon, Inc., 724 A.2d 903,

906-08 (Pa. 1999) (stating that the 1974 amendments to the Act did not

change a statutory employer’s entitlement to tort immunity even if the direct

employer paid benefits for a worker’s injuries under the Act). Based upon

the foregoing, we are constrained by the terms of the Act and the relevant

case law to affirm the trial court’s Order granting summary judgment in

favor of Atlas.

      However, we note that there have been prior calls to the legislature to

reconsider Pennsylvania’s statutory scheme.     See Patton, 89 A.3d at 650

(Baer, J., concurring) (urging the legislature “to eliminate the doctrine, so

that it no longer serves as blanket immunity for general contractors,

thwarting a victim’s right to recover from a tortfeasor”); see also Fonner,
724 A.2d at 908 (Nigro, J., dissenting) (stating that “[c]ommon sense and

logic dictate that the general contractor should not reap the benefits of civil

liability unless it undertakes responsibility of compensation coverage.”). We

echo those calls and agree that, following the 1974 amendments to the Act,

the statutory employer doctrine no longer serves the remedial purpose of

the Act.     Traditionally, the secondary liability imposed on statutory

employers was meant to ensure that an injured worker will be afforded

payment of benefits, even in the event of default by his primary employer.



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See Patton, 89 A.3d at 645; see also Six L’s Packing, 44 A.3d at 1158-

59 (stating that “the Legislature meant to require persons (including

entities) contracting with others … to assure that the employees of those

others are covered by workers’ compensation insurance, on pain of

assuming secondary liability for benefits payment upon a default.”).     The

tort immunity associated with the imposition of secondary liability “reflects

the historical quid pro quo between an employer and employee whereby the

employer assumes liability without fault for a work-related injury….” Tooey

v. AK Steel Corp., 81 A.3d 851, 860 (Pa. 2013) (citation omitted).

However, the Act was amended in 1974 to require that all employers provide

workers’ compensation coverage.     See Fonner, 724 A.2d at 905 (noting

that, prior to 1974, the Act contained “elective compensation” language).

Notwithstanding, the 1974 amendments allowed general contractors to

remain insulated from tort liability, despite never being required to provide

workers’ compensation benefits to injured employees of subcontractors, and

created a windfall immunity shield. Thus, “the mandatory nature of workers’

compensation has rendered the statutory employer doctrine obsolete[,] …

[and] adversely impact[s] worker safety by eliminating the traditional

consequences (money damages) when a general contractor’s negligence

harms a subcontractor’s employee.” See Patton, 89 A.3d at 650-51 (Baer,

J., concurring); see also Travaglia v. C.H. Schwertner & Son, Inc., 570
A.2d 513, 518 (Pa. Super. 1989) (“Section 203 of the [] Act, which was



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designed to extend benefits to workers, should not be casually converted

into a shield behind which negligent employees may seek refuge.”).

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/27/2016




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