J-A01037-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
JUSTIN D'AMICO : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : COVANTA HOLDING CORPORATION : AND COVANTA ENERGY AND : COVANTA 4RECOVERY : No. 692 EDA 2023 PHILADELPHIA, LLC : : Appellants :
Appeal from the Judgment Entered June 5, 2023 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 191101334
BEFORE: LAZARUS, P.J., PANELLA, P.J.E, and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED FEBRUARY 28, 2024
Appellants, Covanta Holding Corp., Covanta Energy, LLC, and Covanta
4Recovery Philadelphia, LLC (collectively, Covanta), appeal from a
$6,359,697.81 judgment entered against them by the Philadelphia County
Court of Common Pleas on a jury verdict in favor of an employee of a
contractor who was injured while performing work at a Covanta facility. For
the reasons set forth below, we affirm the trial court’s denial of Covanta’s
motion for judgment notwithstanding the verdict (JNOV) but reverse the trial
court’s denial of its motion for a new trial and remand the case for a new trial.
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-A01037-24
This case arose out of an accident that occurred on December 19, 2017
during work performed by Sirk Mechanical Services, Inc. (Sirk) for Covanta.
In 2012, Covanta entered into a multi-year Facilities Goods and Services
Agreement with Sirk (the Covanta-Sirk Agreement) under which Sirk was to
perform work at Covanta facilities. N.T. Trial, 9/27/22 p.m., at 25-26;
Covanta-Sirk Agreement. Under this contract, Covanta, which is in the
business of conversion of waste to energy, hired Sirk on December 15, 2017
to dismantle tarping stations at a closed Covanta transfer facility at 3600 S.
26th Street, Philadelphia (the Facility). Trial Court Opinion at 1-2; N.T. Trial,
9/27/22 p.m., at 26-27, 35, 61-64; Sirk 12/14/17 Proposal; Covanta
12/15/17 Purchase Order. The tarping stations consisted of stairs and
catwalks that were used to install tarps over trucks that hauled material in
and out of the Facility. Trial Court Opinion at 2; N.T. Trial, 9/27/22 p.m., at
62-63.
On December 19, 2017, Justin D’Amico (Plaintiff), a welder employed
by Sirk who had experience operating a forklift, was injured on this job when
a tarping station catwalk fell off a forklift and landed on him, crushing his
pelvis and hips, while he was on the ground cutting off a lower leg of the
catwalk. Trial Court Opinion at 1-3; N.T. Trial, 9/27/22 a.m., at 70-71, 73,
75-77, 80-82; N.T. Trial, 9/30/22, at 179. The accident occurred because
another Sirk employee, who was not a trained forklift operator, lifted the
catwalk with a forklift at Plaintiff’s request without properly securing it on the
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forklift. N.T. Trial, 9/27/22 a.m., at 70, 84-85; N.T. Trial, 9/27/22 p.m., at
81-83; N.T. Trial, 9/28/22 a.m., at 87; N.T. Trial, 9/28/22 p.m., at 40-41;
N.T. Trial, 9/30/22, at 105. Plaintiff suffered severe pain from the injury, was
bedridden for months, and has some continuing pain, but following
rehabilitation is able to walk. N.T. Trial, 9/27/22 a.m., at 81, 89-99, 108-09.
Plaintiff, who was 25 years old at the time of the accident, can no longer work
as a welder as result of his injury, but is able to work part-time in some light
duty jobs or work a sedentary job. N.T. Trial, 9/27/22 a.m., at 99-105, 107-
08, 116-17; N.T. Trial, 9/29/22, at 79-80; Young Video Dep. at 41-42, 45-46.
On November 12, 2019, Plaintiff filed this action against Covanta.
Plaintiff alleged in his complaint that Covanta was liable for his injuries
because it was negligent in failing to provide a safe job site, failing to
adequately supervise Sirk, and failing to require Sirk to follow adequate safety
procedures. Plaintiff’s Amended Complaint ¶¶25-30. The case was tried to a
jury from September 27, 2022 to October 3, 2022. At trial, the parties
introduced testimony from Plaintiff, Sirk’s owner, another Sirk employee, and
a Covanta operations manager concerning the accident and Covanta’s control
over the work that Sirk was performing at the Facility. In addition, both
parties called expert witnesses on liability and multiple expert witnesses
testified on Plaintiff’s damages, including Plaintiff’s physician and an expert
for Plaintiff on economic damages. Plaintiff’s economic damages expert
opined that Plaintiff’s damages for lost earning capacity were $814,000 to
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$1,660,000 and that Plaintiff’s future medical costs were $1,445,000. N.T.
Trial, 9/29/22, at 104-07. This expert included in his calculation of Plaintiff’s
future medical costs a lifetime supply of medical marijuana and estimated its
cost to be $10,200 per year. Id. at 115-16; Plaintiff’s Ex. 12.
On October 3, 2022, the jury returned a verdict in favor of Plaintiff
finding that Plaintiff was 27% negligent and Covanta was 73% negligent. N.T.
Trial, 10/3/22, at 108-09, 111-14; Verdict Sheet at 1-2. The jury found that
Plaintiffs’ future medical damages were $1,450,000, that Plaintiff’s lost
earning capacity was $2,012,000, and that Plaintiffs’ total damages, including
those damages, past economic damages, and noneconomic damages of
$4,277,840.41, were $8,219,175.08. N.T. Trial, 10/3/22, at 110-14; Verdict
Sheet at 3. Covanta timely filed post-trial motions seeking JNOV on the
ground, inter alia, that Covanta as a matter of law was not liable for injuries
caused by its independent contractor, and, in the alternative, a new trial based
on the jury instructions on liability for injuries caused by an independent
contractor and various evidentiary rulings, or a remittitur. On January 31,
2023, the trial court denied Covanta’s post-trial motions. On February 7,
2023, the trial court entered an order molding the jury’s damage award to
$5,999,997.81 based on Plaintiff’s 27% negligence and awarding Plaintiff
$359,700 in delay damages. Judgment against Covanta was entered
thereafter in the amount of $6,359,697.81, and Covanta timely appealed that
judgment.
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In this appeal, Covanta raises two primary issues: 1) whether it was
entitled to JNOV on the ground that the evidence was insufficient to show the
type of control over Sirk’s work that could support liability for injuries caused
by an independent contractor and 2) whether it was entitled to a new trial
based on the trial court’s instructions to the jury on the type of control over
Sirk’s work that Plaintiff was required to prove. We conclude that the trial
court properly denied Covanta’s motion for JNOV, but that the trial court erred
in denying a requested jury instruction on liability for injuries caused by an
independent contractor that was necessary to prevent the charge as a whole
from being inaccurate and misleading and that Covanta is entitled to a new
trial on this ground.
Both of Covanta’s primary issues turn on the same legal question of
what evidence is sufficient to permit it to be held liable for the injuries in this
case. The injuries to Plaintiff were caused by acts and omissions of employees
of Sirk, an independent contractor hired by Covanta. Generally, a property
owner who hires an independent contractor to work on its property is not liable
for acts or omissions of the contractor or its employees. Beil v. Telesis
Construction, Inc., 11 A.3d 456, 466 (Pa. 2011); Nertavich v. PPL Electric
Utilities, 100 A.3d 221, 227 (Pa. Super. 2014), aff'd without opinion, 124
A.3d 734 (Pa. 2015). An exception to this rule of nonliability exists under
Section 414 of the Restatement (Second) of Torts, which provides:
One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability
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for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.
Beil, 11 A.3d at 466 (quoting Restatement (Second) of Torts § 414);
Nertavich, 100 A.3d at 227 (quoting Restatement (Second) of Torts § 414).
The property owner’s retention of a general right to order work stopped or
resumed, to inspect the contractor’s work, to make suggestions or
recommendations, or to prescribe alterations does not constitute retention of
control sufficient to permit it to be held liable for injuries caused by its
independent contractor. Beil, 11 A.3d at 466-67; Nertavich, 100 A.3d at
227. Rather, the property owner is liable only if it retains control over the
method, manner, or operative detail of doing the work to the degree that the
contractor is not free to do the work in its own way. Beil, 11 A.3d at 466-67,
470-71; Nertavich, 100 A.3d at 227, 236, 243.
In addition, the fact that the property owner retains some authority over
safety, such as supervising and enforcing safety requirements, holding the
right to stop work for safety violations, and imposing additional safety
requirements at the work site, is not sufficient retention of control to support
liability. Beil, 11 A.3d at 468-69; Nertavich, 100 A.3d at 230, 233-35. This
restriction on basing liability on the property owner’s authority over safety is
required by public policy because imposing liability on a party for addressing
safety would discourage the party hiring an independent contractor from
taking steps to make the work safer. Beil, 11 A.3d at 468-69; Farabaugh
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v. Pennsylvania Turnpike Commission, 911 A.2d 1264, 1275 (Pa. 2006);
Nertavich, 100 A.3d at 230, 234-35. Specifications or instructions by the
property owner that have nothing to do with the accident that injured the
plaintiff also do not constitute control sufficient to support liability.
Nertavich, 100 A.3d at 230-32; see also Main v. Columbia Gas Co., No.
1470 WDA 2018, slip op. at 11-13 (Pa. Super. Sept. 9, 2019).
Whether the trial court erred in denying Covanta’s motion for JNOV is a
question of law subject to our plenary review. Shamnoski v. PG Energy,
858 A.2d 589, 593 (Pa. 2004). There are two bases on which JNOV may be
granted: (1) where the movant is entitled to judgment as a matter of law and
(2) where the evidence is such that no two reasonable minds could disagree
that the judgment should have been in favor of the movant. Linde v. Linde,
220 A.3d 1119, 1140 (Pa. Super. 2019); Nertavich, 100 A.3d at 226. In
determining whether either of these bases for JNOV has been established, this
Court must view the evidence in the light most favorable to the party that
prevailed at trial. Linde, 220 A.3d at 1140.
Whether the property owner retained a degree of control over the
method of doing the work sufficient to support liability may be proved by two
types of evidence, the terms of the contract between the property owner and
contractor and evidence of the actual degree of control exercised by the
property owner during the contractor’s work. Beil, 11 A.3d at 467;
Nertavich, 100 A.3d at 228. The evidence at trial on this issue consisted of
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two contract documents, the Covanta-Sirk Agreement and the purchase order
for the December 2017 job at issue, and the testimony of four witnesses
concerning what occurred on the job, Plaintiff, another Sirk employee who
worked on the December 2017 job, Sirk’s owner, and the Covanta operations
manager.1
Nothing in the contract documents was sufficient to show that Covanta
retained control over the method of Sirk’s work to the degree that Sirk was
not free to do the work in its own way. The contract that governed all of Sirk’s
work for Covanta provided that Sirk was responsible for the means and
methods of performing its work, that Sirk was responsible for supervising its
work and workers, and that Sirk’s employees were not under Covanta’s
supervision. Covanta-Sirk Agreement §§ 3(d), 6(b), 10(a), (c). That contract
also gave Covanta authority to inspect Sirk’s work, required Sirk to comply
with and enforce Covanta’s safety requirements, and gave Covanta authority
to take corrective action or terminate the contract if Sirk failed to comply with
1 Although Plaintiff’s safety expert and Covanta’s expert also testified on whether, in their opinion, Covanta retained control of the means and methods of doing the work, N.T. Trial, 9/28/22 p.m., at 41-42; N.T. Trial, 9/30/22, at 151, those expert opinions are irrelevant to the issue whether Covanta is entitled to JNOV. The issue of whether control is sufficient to impose a duty on the property owner and permit liability is a legal question based on the evidence concerning the contract and its performance, and such expert testimony is not a basis for finding that the evidence of control is sufficient to go to a jury. Nertavich, 100 A.3d at 228, 243; see also Beil, 11 A.3d at 464, 471-72 (owner not liable as a matter of law despite expert testimony that the owner maintained control over job site and contractor’s performance).
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its safety requirements or if Covanta concluded that Sirk was performing the
work in an unsafe manner. Id. §§ 1, 6(d), 10(b)-(d), (j), 11 & Appendices C
& E. Neither the right to inspect the work nor safety requirements constitute
the type of control sufficient to make a property owner liable for the negligence
of its contractor, however. Beil, 11 A.3d at 466-69; Nertavich, 100 A.3d at
227, 230, 233-35. The documents setting forth the work to be performed on
this specific job contain no detailed sequence of how Sirk was to perform the
work and no direction by Covanta concerning the work. Rather, those
documents only set forth a brief list of what Sirk proposed to do to disassemble
the tarping stations with no specification by Covanta as to any detail of how
Sirk was to do the work. Sirk 12/14/17 Proposal; Covanta 12/15/17 Purchase
Order.
The testimony of the Covanta operations manager was likewise
insufficient to show the type of control over Sirk’s method of doing its work
necessary to support liability. This Covanta representative, who hired Sirk for
December 2017 job but was not present at the time of the accident, testified
that Covanta approves the work that Sirk says that it will be doing but does
not tell Sirk what methods to use or how to do the work and does not supervise
Sirk employees. N.T. Trial, 9/27/22 p.m., at 40, 60; N.T. Trial, 9/28/22 a.m.,
at 8, 22. He testified that he and Sirk’s owner discussed Sirk’s methods for
performing the December 2017 work at the Facility on December 14, 2017,
before Covanta hired Sirk for the job, and that he was satisfied with Sirk’s
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proposed method of doing the work. N.T. Trial, 9/27/22 p.m., at 63-67, 69-
71, 75-76. The Covanta operations manager testified that he did not direct
Sirk on what steps to take in performing the work on this job or what
equipment to use. N.T. Trial, 9/28/22 a.m., at 11-12. He testified that he
knew a forklift would be used on this job, but that Sirk represented that it
would have qualified forklift operators. N.T. Trial, 9/28/22 a.m., at 9-10.
The Covanta operations manager also testified that Covanta imposes
safety requirements on its contractors and that Covanta had the authority to
require Sirk to correct unsafe conditions and order Sirk to stop work if Covanta
concluded that Sirk was not taking sufficient safety precautions. N.T. Trial,
9/27/22 p.m., at 27, 29-33, 36-39, 55-57, 60. That, as noted above, is
insufficient to permit a jury to find liability of an independent contractor’s
negligence. Beil, 11 A.3d at 468-69; Nertavich, 100 A.3d at 230, 233-35.
In contrast, the three other witnesses testified that Covanta exercised
greater control over the manner in which Sirk did its work on this job. Sirk’s
owner testified that Covanta had some control over the way Sirk performed
its work on all of its Covanta jobs, although it varied from job to job. N.T.
Trial, 9/28/22 a.m., at 71-72. He testified that Covanta always met with him
at the job site and went over the plan for the day. Id. at 71. Sirk’s owner
testified with respect to the December 2017 job that he did not recall
specifically his communications with Covanta before being awarded the job,
but that he would have discussed how the job was to be done safely, that “I
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would go over step-by-step of how things were going to proceed, and how
much men go on the job, what equipment we were going to bring, how we
were going to proceed with the job,” and that the scope and manner of work
to be performed was reviewed and discussed. Id. at 77, 79-81. Sirk’s owner
testified that on December 19, 2017, at the start of the job, he went over with
the Covanta representative the scope of the work. Id. at 84. Sirk’s owner
testified that most of the control over how the work for Covanta was to be
performed was Sirk’s, but that Covanta had some control over how this job
was done and the means or method of how Sirk did the work. Id. at 78, 85.
Sirk’s owner, however, did not identify the aspects of the work over which
Covanta maintained control or testify that Covanta prescribed how Sirk was
to remove the catwalks or directed Sirk to lift the catwalks with a forklift. Id.
Plaintiff testified that on the morning of the accident he heard Sirk’s
owner and the Covanta operations manager talking about the job and heard
the Covanta operations manager talk about how the tarping stations were to
be disassembled, including when the cutting that Plaintiff was doing at the
time of the accident was to be performed and the fact that a forklift would be
used. N.T. Trial, 9/27/22 a.m., at 58-60, 63-67, 71-74. The other Sirk
employee who worked on the December 2017 Covanta job testified that he
heard the Covanta representative tell Sirk’s owner that Sirk was to take the
catwalks down, lay them on their side, and cut the legs off so the catwalks
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could be put on a flatbed to be transported to another site. N.T. Trial, 9/28/22
a.m., at 34-36, 40-41.
This testimony, in combination, was sufficient to permit the jury to find
that Covanta directed how the work involved in the accident was to be
performed and that Covanta did not merely impose safety requirements but
controlled Sirk’s method of doing the work to the degree that Sirk was not
free to do the work in its own way. The evidence was therefore sufficient for
Covanta to be held liable for Plaintiff’s injuries. Beil, 11 A.3d at 466-67;
Nertavich, 100 A.3d at 227. Accordingly, the trial court did not err in denying
Covanta’s motion for JNOV.2
In its second issue, Covanta contends that the trial court committed
reversible error in its instructions to the jury on whether Covanta retained
sufficient control over Sirk’s work to be liable for Sirk’s negligence. The trial
court’s only instructions to the jury on this issue were the following:
A land owner is subject to liability if an owner retains in control over the manner in which the work is done on its premise[s]. ____________________________________________
2 The trial court based its denial of the motion for JNOV on different reasoning,
relying in substantial part on the evidence that Covanta imposed safety requirements on Sirk and retained the authority to enforce them. Trial Court Opinion at 8-9. That was error, as the law is clear that as a matter of public policy, a property owner’s imposition of safety requirements cannot be a sufficient basis for imposing liability on it for the negligence of its independent contractor. Beil, 11 A.3d at 468-69; Nertavich, 100 A.3d at 230, 233-35. We are not, however, bound by the trial court’s analysis, as our review of a ruling on a motion for JNOV is plenary. In addition, we may affirm a trial court on grounds different than those on which it based its decision. Livingston v. Greyhound Lines Inc., 208 A.3d 1122, 1135 n.8 (Pa. Super. 2019); In re Estate of Rood, 121 A.3d 1104, 1105 n.1 (Pa. Super. 2015).
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One who entrust[s] work to be done by the contractor, but retains control for any part of work is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care. * * * The definition of retain control. Retain control can be demonstrated in two ways. First, evidence of contractual provisions giving a defendant any control over the manner, method, and operative details of the work. Or secondly, evidence that the defendant exercised any control over the manner, method, means, or operative details in which the work was performed.
N.T. Trial, 10/3/22 at 86, 95 (emphasis added). Covanta requested that the
trial court instruct the jury that retaining some authority over safety and
enforcing safety requirements is not sufficient to prove the retained control
that must be shown to impose liability for injuries caused by an independent
contractor. N.T. Trial, 9/30/22, at 195-97; N.T. Trial, 10/3/22 at 8-11;
Covanta Proposed Jury Instruction No. 48. The trial court denied this request
for charge. N.T. Trial, 10/3/22 at 11.
“[T]he purpose of a jury charge is to clarify the legal principles at issue
and guide the jury in its deliberations.” Moffitt v. Miller, 302 A.3d 1219,
1229 (Pa. Super. 2023). We review a claim of error in a trial court’s jury
instructions to determine whether the trial court committed clear abuse of
discretion or error of law controlling the outcome of the case. Lageman v.
Zepp, 266 A.3d 572, 589 n.78 (Pa. 2021); McManamon v. Washko, 906
A.2d 1259, 1271 (Pa. Super. 2006). Error in a jury charge is grounds for a
new trial if the charge as a whole is inadequate or unclear or has a tendency
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to mislead or confuse rather than clarify a material issue. Lageman, 266
A.3d at 589 n.78; Tincher v. Omega Flex, Inc., 180 A.3d 386, 397-98 (Pa.
Super. 2018); Wood v. Smith, 495 A.2d 601, 604 (Pa. Super. 1985), appeal
dismissed as improvidently granted, 518 A.2d 266 (Pa. 1986).
Here, the jury charge completely omitted any instruction on the issue
on which Covanta sought an instruction, whether retention of some authority
over safety and enforcement of safety requirements can constitute the kind of
retention of control sufficient to find liability. That omission was an error of
law on the central liability issue in this case. As discussed above, the law is
clear that a property owner’s retaining of some authority over safety, such as
supervising and enforcing safety requirements, retaining the right to stop
work for safety violations, and imposing additional safety requirements at the
work site, is not a sufficient retention of control to support liability. Beil, 11
A.3d at 468-69; Nertavich, 100 A.3d at 230, 233-35. Without any instruction
on this issue, the jury charge was misleading and inaccurate, as it instructed
that any control over the manner, method, or operative details of any part of
the work was sufficient for liability, N.T. Trial, 10/3/22 at 86, 95, and imposing
and enforcing safety requirements would be understood to be control of the
manner, method, or details over how the work was done unless specifically
excluded as a basis for liability.
Moreover, the failure to charge the jury that it could not find Covanta
liable based on evidence that Covanta retained some control over safety was
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particularly prejudicial to Covanta. Plaintiff repeatedly introduced evidence of
Covanta authority over safety and Covanta safety requirements and argued
that this showed that Covanta retained control over how the work was
performed. N.T. Trial, 9/27/22 a.m., at 17, 20-22; N.T. Trial, 9/27/22 p.m.,
at 28-34, 37-39, 46-47, 55-60, 72; N.T. Trial, 9/28/22 p.m., at 22-23, 32-35,
42; N.T. Trial, 9/30/22, at 123-27, 131-32, 147-48; N.T. Trial, 10/3/22, at
16, 22, 26-27. Because the trial court’s failure to give Covanta’s requested
jury instruction made the jury charge as a whole misleading and prejudiced
Covanta, the trial court’s denial of Covanta’s motion for a new trial was
reversible error.
In addition to the above two issues, Covanta has also raised a number
of other claims for a new trial, molding of the verdict, a new trial on damages,
or a remittitur on various grounds. Since the case must be remanded for a
new trial, we need not address these other issues to resolve this appeal.
Moreover, almost all of these issues either turn on the precise evidence at trial
or are based on the jury’s verdict and may not arise again at the retrial of this
case in the same way. One of these issues, Covanta’s contention that the cost
of medical marijuana cannot be recovered as medical expense damages,
however, will necessarily arise at retrial of this case. We therefore address
that issue at this time in the interest of judicial economy.
Covanta argues that the cost of medical marijuana is not recoverable as
damages because Section 2102 of the Medical Marijuana Act, 35 P.S. §
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10231.2102, limits the obligation to pay for medical marijuana and marijuana
is illegal under federal law. Appellant’s Brief at 51. Neither of these
arguments has merit.
Section 2102 of the Medical Marijuana Act provides: “Nothing in this act
shall be construed to require an insurer or a health plan, whether paid for by
Commonwealth funds or private funds, to provide coverage for medical
marijuana.” 35 P.S. § 10231.2102. An award of medical marijuana damages
against Covanta cannot violate Section 2102 because Covanta is neither an
insurer nor a health plan and the medical marijuana claim is a tort damages
award, not a direction to provide insurance coverage. Indeed, ordering a
workers’ compensation insurer to reimburse a claimant for medical marijuana
does not violate Section 2102. Fegley v. Firestone Tire & Rubber, 291
A.3d 940, 949-52 (Pa. Cmwlth. 2023) (en banc); Appel v. GWC Warranty
Corp., 291 A.3d 927, 933-35 (Pa. Cmwlth. 2023) (en banc).3
Ordering reimbursement for the cost of medical marijuana does not
violate federal law, 21 U.S.C. § 841(a), because reimbursing marijuana costs
does not constitute manufacture, distribution, dispensing, prescribing, or
possession of marijuana. Fegley, 291 A.3d at 953-54; Appel, 291 A.3d at
3 Although we are not bound by decisions of the Commonwealth Court, they
are persuasive authority where they do not conflict with any decisions of this Court or our Supreme Court. IRS v. Blue Mountain Ministry, Inc., 265 A.3d 824, 828 n.3 (Pa. Super. 2021); Petow v. Warehime, 996 A.2d 1083, 1189 n.1 (Pa. Super. 2010).
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935. Thus, a claimant may recover the cost of medical marijuana as medical
treatment under the Workers’ Compensation Act. Fegley, 291 A.3d at 953-
54; Appel, 291 A.3d at 935-36. Although one non-Pennsylvania court has
held that medical marijuana costs cannot be awarded as medical cost
damages in a civil action, Hemphill v. Liberty Mutual Insurance Co., 2013
WL 12123984, at *2-*3 (D.N.M. Mar. 28, 2013), that court based its ruling
that medical marijuana damages cannot be awarded on its conclusion that
reimbursement for medical marijuana violates federal law, a conclusion that
has specifically been rejected by the Commonwealth Court in Fegley and
Appel.4 We see no reason to depart from our sister court’s analysis of this
issue.
For the foregoing reasons, we conclude that the evidence at trial was
sufficient to prove that Covanta retained the control over the method of its
contractor’s work and could therefore be liable for Plaintiff’s injuries, but that
the trial court erroneously instructed the jury on this central issue in the case.
We therefore affirm the trial court’s denial of Covanta’s motion for JNOV, but
reverse its denial of Covanta’s motion for a new trial and vacate the judgment
and remand this case for a new trial.
4 Covanta also argues that the cost of medical marijuana could not be awarded
as damages because the evidence at trial was insufficient to support a finding that it was a reasonable and necessary future medical expense. We do not rule on that issue, as the sufficiency of the evidence to support this element of damages will depend on the evidence introduced when this case is retried.
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Judgment vacated. Case remanded for new trial. Jurisdiction
relinquished.
Date: 2/28/2024
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