Yoder, J., Aplt. v. McCarthy Const.

• Court: Supreme Court of Pennsylvania
• Decided: October 23, 2025
• Docket: 43 EAP 2024
• Status: Published

Opinion

[J-11-2025] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, McCAFFERY, JJ.

JASON YODER : No. 43 EAP 2024 : : Appeal from the Published Order of v. : the Superior Court at No. 1605 EDA : 2021 entered on January 31, 2023, : vacating and remanding the MCCARTHY CONSTRUCTION, INC.; : Judgment of the Philadelphia CASTELLI MECHANICAL DESIGN AND : County Court of Common Pleas at CATANIA ENGINEERING ASSOCIATES, : No. 180500769. INC. : : ARGUED: March 5, 2025 : v. : : : AIR CONTROL TECHNOLOGY, INC.; AND : RRR CONTRACTORS, INC., : : : APPEAL OF: JASON YODER :

OPINION JUSTICE BROBSON DECIDED: October 23, 2025 Under the Workers’ Compensation Act (Act),1 as interpreted by this Court for

decades, 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 Act, 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 imposition of secondary liability, the Act’s

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-041.4, 2501-2710. 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.

This has been the law in this Commonwealth since at least 1930, when the Court

issued its decision in McDonald, interpreting and applying Section 203 of the Act.

Following amendments to the Act in 1974, this Court considered the question of whether

those amendments limited the immunity afforded to general contractors under

Section 203 to only those instances where the statutory employer actually pays benefits

to the injured employee of a subcontractor. See Fonner, 724 A.2d at 904. In Fonner, this

Court held that the 1974 amendments had no effect on the immunity afforded to statutory

employers under Section 203, primarily because the General Assembly did not amend

the statutory employer provision in the legislation—Section 302(b) of the Act—leaving

intact the very language the Court interpreted and applied in McDonald. See id.

at 906-07.

We accepted this matter to afford Jason Yoder (Yoder) the opportunity to convince

this Court that we should overrule long-standing caselaw interpreting Section 203 of the

Act and uphold the $5 million civil judgment in his favor and against McCarthy

Construction, Inc. (McCarthy), despite McCarthy’s assertion that it is immune as Yoder’s

statutory employer. In so doing, Yoder claims that this Court should overrule Fonner and

2 Section 203 of the Act provides:

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 to his own employe. 77 P.S. § 52; see McDonald v. Levinson Steel Co., 153 A. 424, 426 (Pa. 1930); Fonner v. Shandon, Inc., 724 A.2d 903, 905 (Pa. 1999).

[J-11-2025] - 2 allow an injured employee of a subcontractor to recover for his workplace injury both

under the Act 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. Alternatively, Yoder contends that the general contractor here, McCarthy, either

waived the so-called statutory employer defense or was not entitled to its application. As

to the former, Yoder urges us to overrule our decision in LeFlar v. Gulf Creek Industrial

Park #2, 515 A.2d 875 (Pa. 1986), in which we held that the statutory employer defense

in Section 203 of the Act is in the nature of a challenge to the common pleas court’s

subject matter jurisdiction and, therefore, unwaivable. See LeFlar, 515 A.2d at 879. As

to the latter, Yoder contends that the Pennsylvania Superior Court erred in its assessment

that McCarthy established, under the standard set forth by this Court in McDonald,3 that

it is entitled to statutory employer immunity in this case.

I. BACKGROUND

On August 29, 2016, McCarthy, a carpentry company, and the Borough of

Norwood (Borough), which is the owner of the Norwood Public Library (Library), entered

into a contract pursuant to which McCarthy was to remove and replace the Library’s roof

3 This Court in McDonald established the following framework in assessing whether a

defendant was entitled to statutory employer status under the Act: To create the relation of statutory employer under [S]ection 203 of the [A]ct . . . , all of the following elements essential to a statutory employer’s liability must be present: (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 intrusted to such subcontractor. (5) An employee of such subcontractor. McDonald, 153 A. at 426.

[J-11-2025] - 3 as well as complete other projects at the Library. (See Yoder’s Reproduced Record (R.R.)

at 166a-185a.) Thereafter, McCarthy and RRR Contractors, Inc. (RRR) entered into a

subcontract wherein RRR agreed to perform the roofing on the Library. (See id.

at 359a-373a.) Yoder worked for RRR. While working on the Library’s roof, Yoder fell

through an uncovered hole and sustained severe and permanent disabling injuries that

will require pain management for the rest of his life.

On May 10, 2018, Yoder filed a complaint for negligence against McCarthy in the

Philadelphia County Court of Common Pleas (trial court), which he subsequently

amended on September 20, 2018. On February 6, 2020, McCarthy filed an answer and

new matter to Yoder’s amended complaint, asserting, inter alia, all the defenses available

to it under the Act which bar or limit Yoder’s claims. Yoder moved to strike McCarthy’s

answer and new matter as untimely. On June 22, 2020, the trial court granted Yoder’s

motion to strike.

Prior to trial, McCarthy filed a motion in limine to preclude Yoder from presenting

evidence on liability given McCarthy’s belief that McCarthy was Yoder’s statutory

employer and, therefore, entitled to immunity from civil liability under the Act. Yoder

responded with a motion to preclude McCarthy from raising the issue of whether

McCarthy was Yoder’s statutory employer at trial, contending that McCarthy had waived

the statutory employer defense. Following oral argument on the parties’ respective

motions in limine, the trial court denied McCarthy’s motion and granted Yoder’s motion.

The trial court acknowledged that McCarthy’s claim that McCarthy was Yoder’s statutory

employer implicated the trial court’s jurisdiction and, thus, was not waivable, but the trial

court concluded nonetheless that McCarthy did not establish that it was Yoder’s statutory

employer. McCarthy, therefore, was not immune from Yoder’s common law action in tort

for negligence. (See R.R. at 824a-825a.) Thereafter, the case proceeded to a jury trial.

[J-11-2025] - 4 Following trial, the jury unanimously determined that McCarthy was negligent and

returned a verdict for Yoder in the amount of $5 million. McCarthy filed a post-trial motion,

requesting, inter alia, a judgment notwithstanding the jury’s verdict (JNOV), which the trial

court denied. Thereafter, the trial court, inter alia, entered judgment in favor of Yoder.

McCarthy appealed the judgment to the Pennsylvania Superior Court. At the trial court’s

direction, McCarthy filed a statement of matters complained of on appeal pursuant to

Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, and the trial court

responded with an opinion under Pennsylvania Rule of Appellate Procedure Rule 1925(a)

(Rule 1925(a) Opinion). While McCarthy raised several issues on appeal to the Superior

Court, we address only those which we granted review.

In a precedential decision, a three-judge panel of the Superior Court vacated the

trial court’s judgment entered in favor of Yoder and remanded the case for the trial court

to enter judgment in favor of McCarthy. Yoder v. McCarthy Constr., Inc., 291 A.3d 1 (Pa.

Super. 2023). First, the Superior Court addressed McCarthy’s claim that the trial court

erred in denying its post-trial motion for JNOV as Yoder’s statutory employer.

Preliminarily, the Superior Court, adhering to our binding precedent in LeFlar, concluded

that McCarthy did not waive its statutory employer defense for failure to raise it in

response to Yoder’s amended complaint. As this Court held in LeFlar, the Act “deprives

the common pleas courts of jurisdiction of common law actions in tort for negligence

against employers and is not an affirmative defense which may be waived if not timely

plead[ed].” LeFlar, 515 A.2d at 879. Rather, “lack of jurisdiction of the subject matter

may be raised at any time and may be raised by the court sua sponte if necessary.” Id.

(citing Pa.R.Civ.P. 1032(2)). Also preliminarily, the Superior Court rejected Yoder’s

argument that the Superior Court must confine its review to the trial record in assessing

whether McCarthy satisfied the five-part McDonald test for statutory employer status.

[J-11-2025] - 5 Instead, the Superior Court held that its scope of review included the entire record below,

particularly in light of the trial court’s decision to grant Yoder’s motion in limine and

preclude McCarthy from presenting any evidence at trial on its statutory employer

defense. Yoder, 291 A.3d at 13.

With these preliminary matters out of the way, the Superior Court proceeded to

assess whether McCarthy satisfied the five-part McDonald test. It began with the fifth

element (the only part addressed by the trial court in its Rule 1925(a) Opinion), which

required McCarthy to show that Yoder was an employee of RRR. On this element, the

Superior Court found particularly compelling McCarthy’s reliance on record documents

pertaining to Yoder’s successful claim for workers’ compensation benefits under the Act

against RRR. Specifically, in a “Compromise and Release Agreement by Stipulation

Pursuant to Section 449 of the [Act],”4 which is dated October 10, 2017, Yoder expressly

referred to himself as an employee of RRR. Indeed, independent contractors are not

entitled to workers’ compensation under the Act. See Universal Am-Can, Ltd. v. Workers’

Comp. Appeal Bd. (Minteer), 762 A.2d 328, 330 (Pa. 2000) (“An independent contractor

is not entitled to benefits because of the absence of a master/servant relationship. Thus,

employee or independent contractor status is a crucial threshold determination that must

be made before granting workers’ compensation benefits.”) (internal citations omitted).

The Superior Court, therefore, concluded that Yoder was judicially estopped from now

claiming that he was an independent contractor. Yoder, 291 A.3d at 15 (quoting

Trowbridge v. Scranton Artificial Limb Co., 747 A.2d 862, 864 (Pa. 2000) (OAJC) (“As a

general rule, a party to an action is estopped from assuming a position inconsistent with

4 Section 449(b) of the Act, 77 P.S. § 1000.5(b), provides, in relevant part, that “[u]pon or

after filing a petition, the employer or insurer may submit the proposed compromise and release by stipulation signed by both parties to the workers’ compensation judge for approval.”

[J-11-2025] - 6 his . . . assertion in a previous action, if his . . . contention was successfully maintained.”)

(citing Associated Hosp. Serv. of Phila. v. Pustilnik, 439 A.2d 1149, 1151 (Pa. 1981))).

Although the trial court did not discuss any of the remaining elements of the

McDonald test in its 1925(a) Opinion, the Superior Court continued its analysis. On the

first element, which required McCarthy to show that it was under contract with the

Borough, the owner of the Library, the Superior Court considered the contract between

those parties. Specifically, the Superior Court identified that, therein, McCarthy was

denoted “Contractor” and the Borough the “Owner.” Also, under the contract, McCarthy

“agree[d] to remove and replace the [L]ibrary’s existing roof, and perform various other

tasks, for a grand total of $117,590.00.” Yoder, 291 A.3d at 17-18 (record citation

omitted). The Superior Court, thus, determined that McCarthy satisfied the first element.

On the second element, which required McCarthy to show that it occupied or

controlled the premises, the Superior Court explained that “[n]ot only did McCarthy

occupy the site in that it was doing work on both the roof and inside of the [L]ibrary, it also

communicated with the subcontractors to ensure the [L]ibrary project’s completion and

had responsibility for the safety of the job site.” Id. at 21. On this element, the Superior

Court considered, inter alia, the trial testimony of Michael McCarthy (Mr. McCarthy), a

McCarthy employee, and Dave Adams (Mr. Adams), who worked for RRR as the foreman

on the day of the incident. Mr. McCarthy testified that, on the day of the incident, he and

other workers for McCarthy “were patching holes throughout the roof, rotted wood,

anything that was damaged from . . . age or water issues. And [they] were also patching

three holes from the HVAC units.” Id. at 20 (record citation omitted). Additionally, Mr.

McCarthy testified that McCarthy was doing work inside the Library, including carpentry,

painting and ceiling work. Further, Mr. McCarthy “agreed that McCarthy oversaw its

subcontractors and scheduled them, and that—with respect to the [L]ibrary project—it

[J-11-2025] - 7 was McCarthy’s job to communicate effectively with the subcontractor roofers in order to

complete the project.” Id. Mr. Adams similarly testified that McCarthy was a general

contractor on the project, had the responsibility to fill any holes on the roof of the Library,

and, in fact, Mr. Adams did tell McCarthy’s carpenters to fix the hole through which Yoder

fell. Id.

On the third element, which required McCarthy to show that it entered into a

subcontract with RRR, the Superior Court noted that Yoder did not dispute that McCarthy

satisfied this element. “Indeed,” the Superior Court relayed that “the record shows that

[McCarthy] entered into a contract with RRR to, inter alia, ‘[r]emove and dispose of

existing roofing systems down to existing wood roof deck,’” id. at 22 (record citation

omitted), and, further, in McCarthy’s “contract with [the] Borough, McCarthy identified

RRR as its subcontractor.” Id.

Lastly, on the fourth element, which required McCarthy to show that it entrusted a

regular part of its business to RRR, the Superior Court observed that McCarthy satisfied

this element because the contract between the Borough and McCarthy provided, inter

alia, that McCarthy “[r]emove and [r]eplace existing roof w[ith] new E.POM [r]oof with

tapered insulation,” id. at 23, and the subcontract between McCarthy and RRR provided

that RRR perform the roofing work. (See R.R. at 157a (stating that scope of work included

removal and disposal “of existing roofing systems down to existing wood roof deck”).)

In sum, the Superior Court determined that because McCarthy satisfied each part

of the McDonald test it was “constrained to conclude that [McCarthy] is [Yoder’s] statutory

employer, rendering it immune from tort liability.” Id. at 25.

II. ISSUES

Yoder’s appeal presents three issues. First, we must decide whether to overrule

our precedent in Fonner “and hold that the General Assembly’s 1974 amendments to

[J-11-2025] - 8 the . . . Act, making it mandatory for all employers to obtain workers’ compensation

coverage, necessitates denying ‘statutory employer’ status to general contractors unless

they in fact have been called on to pay workers’ compensation benefits to the injured

employee of a subcontractor.”5 Yoder v. McCarthy Constr., Inc., 318 A.3d 757 (Pa. 2024).

Likewise, we are tasked with deciding whether to overrule our precedent in LeFlar “in a

case such as this where the supposed statutory employer was not called on to pay any

workers’ compensation benefits.” Id. We then must determine whether “the Superior

Court failed to properly apply the facts that must be strictly established under McDonald

. . . for a general contractor to qualify as a statutory employer in the light most favorable

to the plaintiff as verdict-winner, necessitating at the very least a retrial at which the jury

would resolve the disputed factual issues concerning whether McCarthy qualifies as

Yoder’s statutory employer.” Id.

5 As part of the 1974 amendments, the General Assembly amended Section 302(b) of the

Act, 77 P.S. § 462, which now provides, in relevant part: 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. (Emphasis added).

[J-11-2025] - 9 III. DISCUSSION

A. Fonner

i. Yoder’s Arguments6

Before this Court, Yoder rehashes the same claim that the appellant in Fonner had

raised—i.e., that the General Assembly’s addition of the “unless” language to

Section 302(b) of the Act in 1974 added a sixth element to the McDonald test to determine

statutory employer status, that being whether the contractor or employer actually paid

benefits to the injured claimant. The only novel argument Yoder raises before us now is

that the General Assembly’s 1974 amendments to the Act “that required subcontractors

to maintain workers’ compensation insurance” was “further strengthened by the 1993

amendments to the Act requiring general contractors to ensure that all subcontractors

possessed workers’ compensation coverage for the subcontractor’s employees before

the general contractor could enter into a subcontract with the subcontractor.” 7 (Yoder’s

Brief (Br.) at 41.)

In support of us overruling Fonner, Yoder also relies on criticisms of numerous

jurists of the “egregiously unfair result” that Fonner necessitates. (Yoder’s Br. at 33-34.)

While he acknowledges that the General Assembly has not amended the Act in any

relevant way since Fonner, he nevertheless proclaims that “the time has come for this

Court to intervene to finally put an end to the severe injustices that the current statutory

employer regime perpetrates on the injured workers of this Commonwealth, their

immediate employers, and the workers’ compensation insurers for their employers.” (Id.

at 41-42.) Yoder also suggests that overruling Fonner will not upset reliance interests

6 The Pennsylvania Association for Justice (PAJ) filed an amicus curiae brief in support

of Yoder, and we have considered PAJ’s arguments in rendering our decision. 7 Section 302(d) of the Act, 77 P.S. § 462.1, provides:“A contractor shall not subcontract all or any part of a contract unless the subcontractor has presented proof of insurance under this act.”

[J-11-2025] - 10 because the Act requires subcontractors to carry workers’ compensation coverage for

their employees or else be unable to contract with general contractors, see 77 P.S.

§ 462.1, and the Act does not treat statutory employers any differently than they were

pre-1974. (See Yoder’s Br. at 27 (stating prior to 1974 Section 203 “simply meant that

general contractors that did not voluntarily obtain workers’ compensation coverage for the

employees of subcontractors would remain liable for damages at common law to such a

subcontractor’s employee, as would any subcontractor that had not obtained workers’

compensation coverage applicable to its own direct employees.”).)

In maintaining that Fonner is plainly incorrect and severely unfair, Yoder

specifically claims that this Court egregiously misconstrued the General

Assembly’s 1974 amendments to the Act. In doing so, Yoder suggests that, post-1974,

the General Assembly moved the substantive criteria for whether an employer is a

“statutory employer” under the Act from Section 203 of the Act to Sections 302(a) and (b)

of the Act. (See Yoder’s Br. at 22 (citing Feldman v. CP Acquisitions 25, L.P., 325 A.3d

691, 703 (Pa. Super. 2024) (stating that “[i]f either [S]ection 302(a) or (b) [of the Act] is

applicable, a statutory employer ‘is immune from suit by an injured worker for common

law negligence,’ regardless of whether the subcontractor carried workers’ compensation

insurance that paid the injured worker.” (quoting Fonner, 724 A.2d at 904)).) Thus, in

Yoder’s view, if an employer establishes that it is a statutory employer under

Section 302(a) or (b), then the statutory employer is immune from common law actions in

tort for negligence under Section 203. Yoder also claims that the “antiquated statutory

employer defense” harms Pennsylvania construction workers insofar as general

contractors, under the current statutory employer regime, are not motivated to ensure the

safety of these workers because they do not have to face any consequences for their

actions. (Yoder’s Br. at 46.) Finally, Yoder suggests that after the General

[J-11-2025] - 11 Assembly’s 1974 amendments to the Act, statutory employers are afforded blanket

immunity at the expense of subcontractors’ and their workers’ compensation insurance

carriers’ right to subrogation. See Section 319 of the Act, 77 P.S. § 671.

ii. McCarthy’s Arguments8

McCarthy counters that Yoder’s effort to convince us to overrule Fonner is

foreclosed by stare decisis, foreclosed by legislative acquiescence, and should be denied

on the merits as well. First, McCarthy emphasizes that the jurists who have criticized the

result in Fonner nonetheless recognize the pedigree of Fonner and the many decisions,

thereafter, affirming that payment of benefits by a statutory employer is not determinative

as to whether that employer is entitled to immunity under the Act. In this way, McCarthy

contends that Yoder is asking this Court to “superintend the pace of legislative change.”

(McCarthy’s Br. at 24 n.8.) McCarthy also suggests that the General Assembly’s inaction

since Fonner, a point which Yoder himself acknowledges, evinces the General

Assembly’s agreement with this Court’s interpretation of its statute.9 See 1 Pa. C.S.

§ 1922(4) (providing that “when a court of last resort has construed the language used in

a statute, the General Assembly in subsequent statutes on the same subject matter

intends the same construction to be placed upon such language”). Further, McCarthy

explains that, for the past century, insurance and construction industries “have structured

contractual agreements, calculated insurance premiums, and evaluated defense and

8 The Pennsylvania Defense Institute, Philadelphia Association of Defense Counsel, the

Insurance Federation of Pennsylvania, the School Districts Insurance Consortium, Delaware Valley Trusts, Pennsylvania Self-Insurers’ Association, the National Association of Home Builders of the United States and Pennsylvania Builders Association have filed amici curiae briefs in support of McCarthy, and we have considered their arguments in rendering our decision. 9 McCarthy also points out that neither Yoder nor his allies have gone to the General

Assembly to ask for the change to Section 302(b) of the Act that he urges this Court to make.

[J-11-2025] - 12 indemnification obligations” in reliance on this Court’s consistent application of statutory

employer immunity to general contractors which does not consider payment of benefits,

and the change that Yoder asks us to effect would cause enormous and unwarranted

implications. (McCarthy’s Br. at 18.)

In response to Yoder’s claim that the 1974 amendments moved the substantive

criteria for statutory employers from Section 203 of the Act to Section 302(a) and (b) of

the Act, McCarthy submits that he is wrong. On this point, McCarthy highlights that the

General Assembly has not amended Section 203 since 1915. McCarthy also notes that,

even assuming Yoder’s claim was accurate, it would not assist him in his quest for

legislative change. This is because, McCarthy explains, under either Section 203 or

Sections 302(a) and (b), payment of benefits by a statutory employer is irrelevant.

Similarly, McCarthy protests Yoder’s suggestion that his proposed test—payment of

workers’ compensation benefits—puts general contractors on equal footing as they were

prior to the 1974 amendments to the Act. Instead, McCarthy clarifies that pre-1974,

whether general contractors were entitled to immunity under the Act was not determined

based on whether they paid workers’ compensation benefits but, rather, whether they

opted to carry coverage under the Act. To that end, McCarthy suggests that the only

relevant change effected by the General Assembly’s 1974 amendments to the Act is that

employers are now mandated to carry coverage under the Act; if the employer does not,

then it cannot avail itself of the defenses under the Act. McCarthy also implores that the

fact that its liability never transformed from secondary to primary should not cause

McCarthy to be penalized for securing payment of compensation for RRR’s employees—

i.e., complying with its obligation under the Act—to reap the benefit of immunity. In this

sense, McCarthy faults Yoder for not appreciating the continuing nature of a statutory

employer’s reserve liability. Specifically, McCarthy suggests that there are several

[J-11-2025] - 13 instances where a statutory employer could be called on in the future to pay workers’

compensation benefits to an injured employee where the primarily liable employer is no

longer able to pay due to, i.e., insolvency.

Finally, McCarthy contends that Yoder’s claim that statutory employer immunity

deprives, inter alia, a subcontractor of its right to subrogation against general contractors,

ignores that statutory employers are subjected to increased premiums given that such

premiums “are typically calculated based on the number and/or compensation of an

insured’s employees.” (Id. at 43.) McCarthy also suggests that depriving statutory

employers of immunity under the Act based on nonpayment of workers’ compensation

benefits would create “sweeping new defense and indemnification obligations of

subcontractors,” where subcontractors “typically execute contracts that waive their

workers’ compensation immunity.” (Id. at 44.) In addition, “general contractors will pursue

their contractual rights against subcontractors and their insurers,” which “would require

subcontractors to pay compensation benefits, plus indemnify general contractors for tort

recoveries obtained by their own employees, and pay higher insurance premiums.” (Id.

(emphasis in original).) According to McCarthy, Yoder’s proposed change to the statutory

employer regime would inflict harm on subcontractors’ interests. McCarthy further

emphasizes that there is no evidentiary support for Yoder’s claim that depriving general

contractors of immunity under the Act would incentivize safety. On this point, McCarthy

notes that, regardless of immunity under the Act, it remains subject to the Occupational

Safety and Health Administration’s (OSHA) regulations and its fines for any violation

thereof.

iii. Yoder’s Reply

In response, Yoder challenges McCarthy’s reliance on Section 1922(4) of the

Statutory Construction Act of 1972 as misplaced because the 1974 amendments did not

[J-11-2025] - 14 add “language used” in Section 203 of the Act to a “subsequent statute[] on the same

subject matter.” 1 Pa. C.S. § 1922(4). In fact, Yoder acknowledges, the 1974

amendments left Section 203 undisturbed. To that end, Yoder submits that “[i]t was this

Court’s . . . decision in Fonner that attributed a manifestly different meaning to

[Section] 203 in the aftermath of the 1974 amendment than [Section] 203 was understood

to have before those amendments occurred.” (Yoder’s Reply Br. at 25.) Yoder also

insists that McCarthy’s claim that overruling Fonner would harm subcontractors is wrong,

relying on Section 303 of the Act, 77 P.S. § 481, providing, in relevant part, that an

employer is not liable for damages, contribution or indemnity in an action at law by an

injured employee against a third party that caused an injury or death unless expressly

provided for in a written agreement. In addition, Yoder notes that legislative

acquiescence, on which McCarthy relies in support of affirming Fonner is discretionary—

not mandatory. Yoder further refutes McCarthy’s reliance on Sections 305(a) and (d) of

the Act, 77 P.S. § 501(a), (d)—requiring “[e]very employer” to insure payment of

compensation and providing if “[a]ny employer” does not, then the injured employee may

proceed under Act or in suit at common law for damages—because, according to Yoder,

McCarthy is not an “employer” given it did not pay workers’ compensation benefits to

Yoder. Lastly, Yoder criticizes McCarthy’s suggestion that a general contractor’s liability

to an injured employee of a subcontractor is not “finite,” proclaiming that it is a “highly

unrealistic scenario” that a general contractor would be called on in the future to pay

benefits to the injured employee. (Yoder’s Reply Br. at 17.)

iv. Analysis

“Stare decisis is ‘a principle as old as the common law itself,’” Commonwealth v.

Alexander, 243 A.3d 177, 195 (Pa. 2020) (quoting Morrison Informatics, Inc. v. Members

1st Fed. Credit Union, 139 A.3d 1241, 1249 (Pa. 2016) (Wecht, J., concurring)) (emphasis

[J-11-2025] - 15 added), deriving itself “from the Latin maxim ‘stare decisis et non quieta movere,’ which

means to stand by the thing decided and not disturb the calm.” Id. (quoting Ramos v.

Louisiana, 590 U.S. 83, 115 (Kavanaugh, J., concurring in part)). In the absence of our

commitment to precedent, our system of jurisprudence would lack stability. Id. Indeed,

stare decisis achieves “invaluable and salutary principles,” Stilp v. Commonwealth,

905 A.2d 918, 966-67 (Pa. 2006), which include “protect[ing] the interests of those who

have taken action in reliance on a past decision,” “reduc[ing] incentives for challenging

settled precedents,” and “saving parties and courts the expense of endless relitigation.”

Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 263-64 (2022) (quoting Kimble v.

Marvel Ent., LLC, 576 U.S. 446, 455 (2015)). In addition, “[s]tare decisis simply declares

that for the sake of certainty, a conclusion reached in one case should be applied to those

which follow, if the facts are substantially the same, even though the parties may be

different.” Burke v. Pittsburgh Limestone Corp., 100 A.2d 595, 598 (Pa. 1953) (emphasis

added). That is not to say, however, that stare decisis is “an inexorable command to be

followed blindly when such adherence leads to perpetuating error.” Stilp, 905 A.2d

at 967.

This Court has also recognized that overruling precedent “demands a special

justification—over and above the belief that the precedent was wrongly decided—in

matters involving statutory, as opposed to constitutional, construction.” Commonwealth

v. Reid, 235 A.3d 1124, 1168 (Pa. 2020). Particularly, “[i]n cases resolved upon statutory

interpretation, stare decisis does implicate greater sanctity because the legislature can

prospectively amend the statute if it disagrees with a court’s interpretation.”

Commonwealth v. Doughty, 126 A.3d 951, 955 (Pa. 2015). Similarly, once a statutory

construction is made and followed it “should never be altered upon the changed views of

new personnel of the court.” In re Burtt’s Est., 44 A.2d 670, 677 (Pa. 1945). “Among

[J-11-2025] - 16 appropriate considerations in assessing the wisdom of departing from precedent are

‘workability,’ ‘the antiquity of the precedent, the reliance interests at stake, and . . .

whether the decision [is] well[-]reasoned.’” Morrison Informatics, Inc., 139 A.3d at 1250

(Wecht, J., concurring) (some alterations in original) (internal citations omitted).

In the present case, Yoder does not advance a special justification to overrule

Fonner. Instead, he, reiterates the same claims that the appellant in Fonner raised and

this Court rejected. See Fonner, 724 A.2d at 906 (“Appellant argues that the ‘unless’

language which was part of the 1974 amendment to Section 302(b) [of the Act] implicitly

amended Section 203 [of the Act] by adding a sixth element to the McDonald statutory

employer test: whether the contractor or employer actually paid benefits to the injured

claimant.”) Because this Court already considered, and rejected, Yoder’s arguments in

Fonner, Yoder must do more than proclaim Fonner is wrong to prevail now. In other

words, it is not enough for Yoder to rehash the appellant’s arguments from Fonner. Yet,

that is precisely what he does.

The only novel argument Yoder raises before us now is that the General

Assembly’s 1993 amendments to the Act further strengthened the 1974 amendments

mandating that employers maintain workers’ compensation insurance for their

employees. In 1993, the General Assembly added Section 302(d) of the Act, which

provides that “[a] contractor shall not subcontract all or any part of a contract unless the

subcontractor has presented proof of insurance under this act.” 77 P.S. § 462.1. Not

only does Yoder fail to explain how Section 302(d) furthers his position that a statutory

employer must pay workers’ compensation benefits to an injured worker to qualify as a

“statutory employer,” but he also fails to explicate how the addition of Section 302(d)

advances a special justification to overrule Fonner. In our view, Yoder’s reliance on

Section 302(d) actually hinders his point. This is because, clearly, the General Assembly

[J-11-2025] - 17 has demonstrated its ability to enact changes to the Act to align with its intent. Yet, since

this Court decided Fonner over two decades ago, the General Assembly has done

nothing to suggest that it disagrees with our interpretation of Section 302(b) of the Act. 10

What is more, Yoder seems to suggest that a special justification exists to overrule Fonner

because several jurists have criticized Fonner’s result thereby compelling us to overrule

it. Yoder is wrong. Even those learned justices acknowledged that the courts remain

duty bound to the General Assembly’s legislative pronouncements.

For example, in his concurring opinion in Travaglia v. C.H. Schwertner & Son,

Inc., 570 A.2d 513 (Pa. Super. 1989), appeals denied, 590 A.2d 758, 759 (Pa. 1990), the

late Judge Melinson opined that “Sections 203 and 302 of the . . . Act have outlived their

usefulness,” Travaglia, 570 A.2d at 518 (Melinson, J., concurring), and that, under those

sections “general contractors are completely insulated from tort liability for negligent or

grossly negligent acts.” Id. at 519 (Melinson, J., concurring). “Furthermore,” Judge

Melinson remarked “as is clear from their language, these sections of the . . . Act ‘operate

to relieve [the general contractor] from payment of [workmen’s] compensation by placing

that responsibility upon the subcontractor.’” Id. (quoting Capazzoli v. Stone & Webster

Eng’g Corp., 42 A.2d 524, 526 (Pa. 1945)) (emphasis added) (alterations in original).

Thus, Judge Melinson suggested “the effect of these abhorrent legislative

pronouncements is to absolve a general contractor of any and all responsibility for

10 Legislative acquiescence is “a term of art for what courts have called the ‘special force’

of stare decisis in matters of statutory construction, which follows from the fact that the [L]egislature is ‘free to correct any errant interpretation of its intentions’ by amending the statute in question.” Klar v. Dairy Farmers of America, Inc., 300 A.3d 361, 376-77 (Pa. 2023) (quoting Hunt v. Pa. State Police, 983 A.2d 627, 638 (Pa. 2009) (other citations omitted)). Furthermore, “the ‘definitive’ example of legislative acquiescence would be legislative silence in response to a series of decisions by this Court,” which is the Court of last resort in Pennsylvania. Commonwealth v. Rosario, 294 A.3d 338, 355 (Pa. 2023). Like stare decisis, the principle of legislative acquiescence “is not absolute,” and our application thereof “is discretionary, not mandatory.” Klar, 300 A.3d at 377.

[J-11-2025] - 18 negligent or grossly negligent conduct without even imposing upon that contractor the

corresponding duty to compensate an injured employee under” the Act, which runs

counter to the fundamental concept of the judicial system that is “based upon the concept

that individuals and corporations alike will be held accountable for their mistakes and

indiscretions.” Id. at 519-20 (Melinson, J., concurring) (emphasis added).

Also, in Oster v. Serfass Construction Company, Inc. (Pa. Super.,

No. 1052 EDA 2021, filed Aug. 17, 2022), then-Judge, now-Justice McCaffery, filed a

concurring opinion wherein he agreed with the majority of the Superior Court to affirm the

trial court’s grant of summary judgment in favor of the statutory employer. Then-Judge

McCaffery did, however, express his strong disagreement “with the manner in which the

statutory employer doctrine has been wielded by negligent general contractors to shield

themselves from civil liability when they have not taken any steps to ensure the

employees of their subcontractors will be adequately compensated (or even insured) for

on-the-job injuries they sustain as a result of that negligence.” Oster, slip op.

at 2 (McCaffery, J., concurring). Notwithstanding, then-Judge McCaffery acknowledged

that the Superior Court was “bound by existing, controlling statutory and case law to the

contrary.” Id. (emphasis added).

Furthermore, and, most notably, seventeen years after Fonner was decided,

Justice Nigro altered his stance, explaining that “[a]lthough [he] dissented in Fonner . . .

because [he] believed that a statutory employer should be required to show that it

assumed responsibility for providing workers’ compensation to the injured employee

before statutory immunity may attach, [he] recognize[d] that our current law does not

impose such a requirement.” Peck v. Delaware Cnty. Bd. of Prison Inspectors, 814 A.2d

185, 192 (Pa. 2002) (Nigro, J., concurring) (emphasis added).

[J-11-2025] - 19 Most recently, in Patton v. Worthington Associates, Inc., 89 A.3d 643 (Pa. 2014),

the late Chief Justice Baer explicitly called on the General Assembly to eliminate blanket

immunity for statutory employers. In doing so, Chief Justice Baer explained that, “[g]iven

the clear and unambiguous language of the relevant provisions of the . . . Act . . . as

consistently interpreted by decades of precedent from this Court,” he was constrained to

join the majority’s opinion, concluding that there were no material facts in question that

Worthington Associates, Inc. was Patton’s statutory employer. Patton, 89 A.3d

at 650 (Baer, C.J., concurring) (emphasis added). Chief Justice Baer opined, however,

that “[a]s has been written several times over the past thirty-five years . . . the mandatory

nature of workers’ compensation has rendered the statutory employer doctrine obsolete.”

Id. “Nevertheless,” Chief Justice Baer acknowledged, “it remains undisturbed within

Pennsylvania’s statutory scheme as an irrational relic of a bygone era.” Id. at 650-51

(emphasis added). Chief Justice Baer, thus, urged the General Assembly to eliminate

immunity for general contractors under the Act that do not pay compensation to the injured

employee of the subcontractor thereby “thwarting a victim’s right to recover from a

tortfeasor[] and an innocent subcontractor-employer’s right to recoup workers’

compensation payments through subrogation[,] while adversely impacting worker safety

by eliminating the traditional consequences (money damages) when a general

contractor’s negligence harms a subcontractor’s employee.” Id. at 651.

Notwithstanding jurists’ qualms with Fonner’s result and explicit calls that the

General Assembly act, that policy-making branch has enacted no change to suggest that

our decades-old interpretation of the Act is contrary to its intent. Indeed, it seems, for that

very reason, Yoder has turned to this Court again to effect the change that the General

Assembly has not yet undertaken—at least not for the last twenty-six years and counting.

We will not be pressured to backpedal on our interpretation of Section 302(b) in Fonner

[J-11-2025] - 20 simply because the General Assembly has not acted. See In re Burtt’s Est., 44 A.2d

at 677 (explaining that once statutory construction is made and followed it “should never

be altered upon the changed views of new personnel of the court”). This is especially

true in this case involving statutory interpretation where stare decisis “implicate[s] greater

sanctity because the legislature can prospectively amend the statute if it disagrees with

a court’s interpretation.” Doughty, 126 A.3d at 955.

In sum, while some in the judiciary have concluded that the immunity afforded to

a statutory employer under the Act may be an idea of the past that is no longer useful or

equitable, that does not amount to a special justification to overrule Fonner. Indeed, this

Court’s role is limited in the sense that it cannot change the legislative scheme under

which that immunity exists. Simply stated, we lack the ability to rewrite the Act in a way

to reflect the change that so many judges and Justices have urged the General Assembly

to make as early as 1999 when this Court decided Fonner. See Commonwealth v.

Hopkins, 117 A.3d 247, 261 (Pa. 2015) (recognizing that “[i]t is beyond our province to,

in essence, rewrite [the statute] to transform” it in a way that is not in accord with General

Assembly’s intent).

We, therefore, conclude that, because Yoder does not advance a special

justification for us to overrule Fonner, we are constrained to adhere to the principles of

stare decisis and, accordingly, reaffirm this Court’s decision in Fonner that a general

contractor remains entitled to “historic immunity as a ‘statutory employer’ from suit for

common law negligence . . . even though the subcontractor which directly employed the

injured worker carried workers’ compensation insurance which paid benefits for the

worker’s injuries.” Fonner, 724 A.2d at 907. Further, we again direct Yoder and other

proponents of changes to the Act to the appropriate policy-making branch—the General

Assembly. See Patton, 89 A.3d at 650 (stating that any claims Fonner “reflects poor

[J-11-2025] - 21 public policy is at this point best expressed to the Legislature,” and “[t]he courts cannot

abide the sort of distortions which occurred here as a counterbalance to previous

decisions with which some may disagree”).

B. LeFlar

i. Yoder’s Arguments

In an effort to convince us to overrule LeFlar, Yoder, again, implores that payment

of benefits is the litmus test to determine whether a statutory employer can waive

immunity afforded to it under the Act. According to Yoder, if a general contractor does

not pay workers’ compensation benefits to the injured employee of the subcontractor,

then, the general contractor can waive immunity under the Act to the employee’s common

law action in tort for negligence by failing to timely plead it. Yoder also attempts to

distinguish the present case from LeFlar given the procedural history of the latter.

Specifically, in LeFlar, this Court remanded the matter to the court of common pleas to

determine if the claimant was an employee or independent contractor, which was

indicative of whether the claimant had a viable claim under the Act. Contrarily, here,

Yoder submits that “the workers’ compensation adjudication system” would never have

jurisdiction over a workers’ compensation claim filed by Yoder against McCarthy because

RRR secured payment of workers’ compensation benefits as required by the Act.

(Yoder’s Br. at 53.) In this sense, Yoder maintains that a court of common pleas’

jurisdiction over a common law action in tort for negligence “is only relinquished when an

employer actually pays workers’ compensation no-fault benefits.” (Id. at 53-54.) Yoder

further perfunctorily attempts to analogize immunity afforded to statutory employers under

the Act to sovereign immunity provided to Commonwealth parties under what is

commonly known as the Sovereign Immunity Act.11 According to Yoder, immunities are

11 42 Pa. C.S. §§ 8521-8527.

[J-11-2025] - 22 not ordinarily treated as jurisdictional bars but, rather, may entitle a proponent to judgment

in his favor. Lastly, Yoder relies on Section 305(d) of the Act, which provides, in relevant

part, that, “[w]hen any employer fails to secure the payment of compensation under this

act as provided in sections 305 and 305.2, the injured employe . . . may proceed either

under this act or in a suit for damages at law as provided by article II.” 77 P.S. § 501(d).

Under Yoder’s interpretation of Section 305(d), a direct employer is not entitled to

immunity under the Act unless it pays workers’ compensation benefits to an injured

employee. Thus, Yoder insists that “it makes absolutely no sense whatsoever” to allow

a general contractor, that is a supposed statutory employer, that did not pay workers’

compensation benefits to the injured employee of the subcontractor, to reap the benefit

of immunity under the Act. (Yoder’s Br. at 56.)

ii. McCarthy’s Arguments

In response, McCarthy maintains that we must reaffirm LeFlar. First, McCarthy

reiterates that, for almost a century, under our precedent, statutory employers have been

immunized from liability at common law regardless of whether or not they pay workers’

compensation benefits to an injured worker. McCarthy also claims that Yoder’s proposed

test—i.e., payment of benefits—is unworkable particularly where he proposes the same

test for immunity and waiver. To do so, McCarthy submits, would render waiver irrelevant

because, for example, a general contractor that does not pay workers’ compensation

benefits to the injured employee would not qualify as a “statutory employer” under the

Act. McCarthy further opines that to overrule LeFlar would be to “unravel bedrock

principles of both workers’ compensation immunity” and waiver insofar as

“traditionally[]immune individuals and entities . . . would be deprived of immunity.”

(McCarthy’s Br. at 48); see also (McCarthy’s Br. at 28 n.11 (citing cases where employers

were immune from common law tort action notwithstanding that employees’ injuries were

[J-11-2025] - 23 not compensable under Act). Likewise, McCarthy notes that this Court has relied on

LeFlar to further develop our jurisprudence proclaiming that lack of subject matter

jurisdiction is not a waivable defense.

iii. Analysis

Similar to his first issue, Yoder requests, in light of the General

Assembly’s 1974 amendments to the Act, that we overrule LeFlar to the extent that a

statutory employer can waive immunity under the Act if the statutory employer does not

actually pay workers’ compensation benefits to an injured worker. In LeFlar, this Court

held that the Act “deprives the common pleas courts of jurisdiction of common law actions

in tort for negligence against employers and is not an affirmative defense which may be

waived if not timely plead[ed].” LeFlar, 515 A.2d at 879. Thus, “[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.” Id. (citing Pa.R.Civ.P. 1032(2)). Because Yoder is asking us to overrule

our prior precedent, the principles of stare decisis, discussed above, are equally

applicable to our disposition of this issue. We briefly recall that, to overrule precedent, a

special justification is required. In an effort to unveil a special justification, relevant

considerations include “workability, the antiquity of the precedent, the reliance interests

at stake, and . . . whether the decision [was] well[]reasoned.” Morrison Informatics, Inc.,

139 A.3d at 1250 (Wecht, J., concurring) (internal quotations and citations omitted). In

addition, in the area of statutory interpretation, “the considerations for stare decisis are

afforded special force in the area of statutory interpretation[,] resulting in courts adhering

to a more strict application of the doctrine in” that context. Allegheny Reprod. Health Ctr.

v. Pa. Dep’t of Hum. Servs., 309 A.3d 808, 850 (Pa. 2024) (internal quotations omitted)

(alterations in original).

[J-11-2025] - 24 Here, Yoder does not offer us any special justification to overrule LeFlar. Instead,

he, once more, proclaims that in the aftermath of the General

Assembly’s 1974 amendments to the Act, whether a contractor or employer qualifies as

a statutory employer requires the contractor or employer to pay workers’ compensation

benefits to an injured worker. We also recognize Yoder’s request that we overrule LeFlar

for what it is—a last ditch effort to sway us to change the law or otherwise effect legislative

change that the General Assembly clearly does not deem fit—i.e., by necessitating

contractors or employers to pay workers’ compensation benefits to injured workers to

achieve statutory employer status. We will not bite. Even where “[s]tare decisis is at its

weakest in the context of constitutional interpretation,” this Court has recognized that “[t]o

ensure certainty and finality, overturning a decision requires a ‘special justification, over

and above the belief that the precedent was wrongly decided.’” Id. (quoting

Alexander, 243 A.3d at 196-97) (emphasis added). Furthermore, this Court has

maintained that prior decisions “must be accepted as settled law, if the doctrine of stare

decisis is to have any binding force in determining questions involving constitutional

construction in our state.” Gerlach v. Moore, 90 A. 399, 400 (Pa. 1914). Thus, a majority

opinion from this Court “is precedent as to different parties in cases involving substantially

similar facts, pursuant to the rule of stare decisis.” Commonwealth v. Tilghman, 673 A.2d

898, 903 (Pa. 1996). “This remains true regardless of changes in the composition of the

Court.” Alexander, 243 A.3d at 198 (Baer, C.J., concurring). In this way, the rule of stare

decisis declares certainty. Burke, 100 A.2d at 598. Thus, we conclude that Yoder’s mere

disagreement with this Court’s decision in LeFlar falls far short of a “special justification”

to overrule that decision. Nor are we convinced that Yoder’s attempt to analogize

[J-11-2025] - 25 statutory employer immunity to sovereign immunity offers us a “special justification” to

overrule LeFlar.12

Accordingly, we reaffirm our holdings in LeFlar that the Act “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.” LeFlar, 515 A.2d at 879 (citing

Pa.R.Civ.P. 1032(2)). This is true even where a general contractor remains liable to the

injured employee of a subcontractor in a reserve status.

C. McDonald Test

Yoder first claims that McCarthy could not satisfy the first element of the McDonald

test because the evidence shows that the Borough—not McCarthy—was the general

contractor on the Library project. Yoder identifies that the contract between the Borough

and McCarthy describes McCarthy’s work on the Library project as being limited to

carpentry and roofing work. For other areas of work, however, such as HVAC and

electrical, the Borough contracted with other contractors. Second, Yoder claims that the

evidence before the jury—namely testimony from Mr. McCarthy that, if he had seen the

hole on the roof through which Yoder fell, then he would have immediately covered it—

proves that McCarthy never occupied or controlled the premises on which the project took

12 Yoder’s attempt is frail. Nevertheless, Yoder arguably waived this claim by failing to develop the issue in a fashion capable of review. See Banfield v. Cortes, 110 A.3d 155, 168 n.11 (Pa. 2015) (stating, inter alia, that “[w]here an appellate brief . . . fails to develop the issue in any other meaningful fashion capable of review, that claim is waived.” (quoting Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa. 2014)). In his brief, Yoder baldly asserts that “[o]rdinarily immunities from liability are not treated as jurisdictional bars to a court’s ability to hear and decide a lawsuit. Rather, they may entitle the defendant to judgment in its favor when properly invoked.” (Yoder’s Br. at 54.)

[J-11-2025] - 26 place. Thus, Yoder maintains that McCarthy could not satisfy the second element of the

McDonald test. (See Yoder’s Br. at 59-60.)

Lastly, Yoder contests that McCarthy satisfied the fourth element, highlighting that

roofing work is not a regular part of McCarthy’s business. Instead, Yoder characterizes

McCarthy as a “mom-and-pop carpentry subcontractor.” (Yoder’s Br. at 60.) Yoder also

explains that “the evidence at trial established that McCarthy is not a roofing company; it

does drywall, it does flooring, it never does any roofing work, and it fails to hire roofers as

a regular part of its business.” (Id.) Further, Yoder claims that the Superior Court nullified

the fourth element of the McDonald test by concluding that McCarthy satisfied this

element by contracting with the Borough to perform roofing work and, thereafter,

subcontracting with RRR to perform that work. According to Yoder, such an

understanding of the fourth element requires no more than what the first and third

elements of the McDonald test require—i.e., that an employer be under contract with an

owner or one in the position of an owner and that a subcontract be made by the general

contractor.

For all these reasons, Yoder submits that, at minimum, the Superior Court should

have remanded this case for a retrial at which a jury could have resolved the evidentiary

disputes surrounding whether McCarthy “strictly and literally satisfied” the McDonald test.

(Yoder’s Br. at 65.)

In response, McCarthy maintains that the Superior Court properly found that it

satisfied the five-part McDonald test. On the first element, McCarthy cites to testimony

of Yoder’s expert wherein he identified McCarthy as the general or prime contractor on

the Library project. (See R.R. at 916a, 920a.) Similarly, on the second element,

McCarthy relies on Yoder’s complaint wherein he alleged that McCarthy “managed,

[J-11-2025] - 27 supervised, and/or controlled the construction including of the roof.” (McCarthy’s Br.

at 52 (quoting R.R. at 113a).) McCarthy also recalls the deposition and trial testimony of

several witnesses which confirmed that McCarthy “undertook ‘coordination’ of all trades

on the project;” “coordinated work through its on-site supervisor;” and that McCarthy’s

“employees were regularly present on the roof.” (Id. at 53 (citing R.R. at 337a, 346a-347a,

381a, 420a, 426a).) Furthermore, McCarthy highlights that Yoder and his expert

acknowledged at trial that McCarthy “was responsible for safety on the jobsite, including

the very hole through which [he] fell.” (Id. (citing R.R. at 806a, 815a, 941a).)

On the fourth element, McCarthy claims that roofing work is part of its regular

business. For support, McCarthy recalls Mr. McCarthy’s testimony that he worked for

McCarthy for over twenty-five years and that McCarthy has served as the general

contractor on a hundred construction projects and has routinely hired subcontractors to

perform roofing work. McCarthy suggests that Yoder’s argument that a general contractor

itself must regularly perform the work that it subcontracts overlooks that general

contractors would have no reason to subcontract work that they regularly perform.

Alternatively, McCarthy insists that there is no evidence to support Yoder’s claim that “the

common construction industry practice of subcontracting a portion of a general

contractor’s contracted-for work fails to satisfy the fourth McDonald element.”

(McCarthy’s Br. at 57.) Here, McCarthy maintains that it satisfied the fourth element,

relying on the contracts between the Borough and McCarthy and between McCarthy and

RRR.

We must consider whether the Superior Court properly remanded for the trial court

to enter JNOV in McCarthy’s favor based on the Superior Court’s application of the

McDonald test to the circumstances of this case. Preliminarily, we note that Yoder only

[J-11-2025] - 28 challenges the Superior Court’s application of the first, second, and fourth elements of

the McDonald test, and, therefore, our analysis is limited to those disputed elements.13

(See Yoder’s Br. at 18 (“With regard to three of the five McDonald [elements] in this

case, . . . McCarthy failed to strictly and unequivocally satisfy its entitlement to statutory

employer status.”).)

“An appellate court will reverse the trial court’s decision to grant or deny JNOV

only when it finds an abuse of discretion or an error of law.” Menkowitz v. Peerless

Publ’ns, Inc., 211 A.3d 797, 804 (Pa. 2019). “An abuse of discretion does not result from

a mere error of judgment” but “exists where the law is overridden or misapplied, or the

judgment exercised is manifestly unreasonable or the result of partiality, prejudice, bias,

or ill will, as shown by the evidence or the record.” Id. It is axiomatic that JNOV can be

entered on two bases: where “the movant is entitled to a judgment as a matter of law[]

and/or . . . the evidence was such that no two reasonable minds could disagree that the

outcome should have been rendered in favor of the movant.” Simmons v. Pacor, Inc.,

674 A.2d 232, 236 (Pa. 1996). Here, “we may conclude that the trial court’s denial of

JNOV was inappropriate only if there is insufficient, competent evidence to sustain the

verdict.” Menkowitz, 211 A.3d at 804 (citing Wenrick v. Schloemann-Siemag

Aktiengesellschaft, 564 A.2d 1244, 1246 (Pa. 1989)). “Moreover, JNOV should only be

entered in a clear case with any doubts resolved in favor of the verdict winner.” Id. “An

appellate court ‘stands on a different plane’ than a trial court, and it is the trial court that

has the benefit of an ‘on-the-scene evaluation of the evidence.’” Id. (quoting Exner v.

Gangewere, 152 A.2d 458, 472-73 (Pa. 1959)). Thus, “while the appellate court may

13 We briefly recall that the first, second, and fourth elements of the McDonald test require

McCarthy to establish that it was a general contractor on the Library project, it occupied or controlled the premises of the project, and McCarthy entrusted part of its regular business to RRR. See McDonald, 153 A. at 426.

[J-11-2025] - 29 disagree with a verdict, it may not grant a motion for JNOV simply because it would have

come to a different conclusion.” Id. “Indeed, the verdict must stand unless there is no

legal basis for it.” Id. (citing Birth Ctr. v. St. Paul Cos., Inc., 787 A.2d 376, 383 (Pa. 2001)).

While ours as well as the Superior Court’s standard and scope of review of the trial

court’s denial of McCarthy’s JNOV is clear, our review in this case is complicated by the

trial court’s pre-trial order that precluded McCarthy “from raising the statutory employer

defense at trial in any manner whatsoever.” (Trial Ct. Order, 08/07/21). Thus, in our view,

there was no record on which the Superior Court could have assessed whether McCarthy

satisfied the first, second, and fourth elements of the McDonald test. The Superior Court

also was not permitted to scour the pre-trial and post-trial record to support its

determinations on those elements. See Joseph v. Scranton Times, L.P., 129 A.3d 404,

433 (Pa. 2015) (noting that “Superior Court’s approach in scouring the record for evidence

which could” support its outcome was “contrary to the approach this Court has

mandated”). Indeed, we could not uncover any authority to support the Superior Court’s

extended scope of review aside from the Superior Court’s own decision in Sheard v. J.J.

DeLuca Co., Inc., 92 A.3d 68, 78 n.3 (Pa. Super. 2014) (considering averments made by

plaintiff in complaint in determining that JNOV should have been entered in defendant’s

favor on basis of statutory employer immunity), by which we are not bound. In re Est. of

duPont, 2 A.3d 516, 524 (Pa. 2010). We, therefore, conclude that the Superior Court

abused its discretion by exceeding its scope of review when it scoured the entire record

for evidence to support its determinations with respect to the first, second, and fourth

elements of the McDonald test.

We further note that where 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

[J-11-2025] - 30 negligent. LeFlar, 515 A.2d at 879. 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.

See e.g., Peck, 814 A.2d at 189 (“In determining whether a party is a statutory employer,

courts should construe the elements of the McDonald test strictly and find statutory

employer status only when the facts clearly warrant it.”) (emphasis added); Bisher v.

Lehigh Valley Health Network, Inc., 265 A.3d 383, 400 (Pa. 2021) (“A court’s sua sponte

ability to raise subject-matter defects on its own ensures that a court, at any time, can

make certain that the courts are adjudicating only those classes of cases which the law

allows us to hear.”); Sun Ship Emps. Ass’n v. Indus. Union of Marine and Shipbuilding

Workers of Am., Loc. No. 2 C.I.O., 40 A.2d 413, 415 (Pa. 1944) (“The petition before us

cannot raise in a preliminary way the right of the plaintiff to recover on its cause of action,

it only concerns the right to have the cause of action heard and determined. Here,

McCarthy first raised the statutory employer defense in a motion for summary judgment,

which the trial court denied without any explanation. (R.R. at 249a.) At that point,

however, once the trial court’s jurisdiction was placed into question, McCarthy should

have been afforded the opportunity to develop a record and obtain a ruling thereon before

the start of the jury trial. Accordingly, we reverse the Superior Court’s decision, vacate

the trial court’s orders denying McCarthy’s post-trial motion requesting JNOV and

entering judgment in favor of Yoder, and remand to the trial court to reconsider this matter.

Specifically, the trial court should make determinations on whether McCarthy satisfies the

three prongs of the McDonald test that are in dispute. To the extent that a record is

necessary, the trial court should conduct an evidentiary hearing. If the trial court

determines that McCarthy is entitled to the statutory employer defense, then it must grant

[J-11-2025] - 31 McCarthy’s post-trial motion for JNOV. If the trial court determines otherwise and denies

McCarthy’s post-trial motion for JNOV, then it must enter judgment in favor of Yoder.

IV. CONCLUSION

For all these reasons, Yoder has failed to advance a special justification for us to

overrule our decades-old precedent in Fonner and LeFlar. We nevertheless reverse the

Superior Court’s decision, vacate the trial court’s orders denying McCarthy’s post-trial

motion requesting JNOV and entering judgment in Yoder’s favor, and remand this matter

to the trial court for further proceedings consistent with this opinion.

Chief Justice Todd and Justices Dougherty, Wecht, Mundy and McCaffery join the

opinion.

Justice McCaffery files a concurring opinion in which Justices Dougherty and

Mundy join.

Justice Donohue did not participate in the consideration or decision of this matter.

[J-11-2025] - 32