Oral Arguments

A case that promises to have lasting effects on the state’s statutory employer law is expected to highlight the state Supreme Court’s oral argument session that kicks off today in Harrisburg.

On the first day of the two-day argument session, the court is expected to hear arguments in Patton v. Worthington Associates, which deals with whether a jury should be given a “prelude” or “screening question” before conducting the McDonald test to determine whether a worker is a “statutory employee” or an “independent contractor.”

The high court agreed to consider the case after a divided state Superior Court decision affirmed a $1.5 million judgment in favor of an injured worker who was pinned under a scissor lift while repairing a church ceiling. The court had found that no “master-servant relationship” existed between the plaintiff and defendant, and therefore the defendant could not be considered an employer immune from tort.

David F. Stern, who specializes in workers’ compensation claims at Pond Lehocky Stern Giordano, said the ruling will have the greatest impact on third-party cases. A decision by the Supreme Court to uphold the Superior Court’s decision, he said, will bring the more than 80-year-old McDonald test up to date.

McDonald was being overutilized. There were too many instances where they weren’t the statutory employer and were hiding behind this test,” he said. “I don’t think the charge to the jury anymore will be the McDonald test [if the Superior Court decision is upheld]. It will be the Patton test. It will be a different manner in which it is explained to the jury how they have to sort these issues.”

In the one-page order agreeing to hear the case, the justices left the issue before the court as stated by Worthington Associates Inc., the defendant general contractor in the case. Worthington had asked the court to consider whether the Superior Court’s majority had “sub silentio nullified the statutory employer doctrine and effectively overruled this court’s decision in McDonald v. Levinson Steel … by grafting a fact question onto the McDonald analysis that can never be answered in a way that allows the statutory employer doctrine to apply.”

The plaintiff, Earl Patton, who filed suit with his wife, owns and acts as an employee of Patton Construction Inc. Worthington hired Patton Construction to do carpentry work on a church Worthington had been contracted to repair. According to the Superior Court’s opinion, Patton was pinned under the scissor lift after he inadvertently drove it into a hole, causing it to tip. He fell 14 feet and sustained serious injuries, including fractured vertebrae. The couple filed suit alleging negligence in failing to provide a safe workplace and for failing to cover the holes.

A split three-judge panel Superior Court panel denied the contractor’s theory that the controlling question—whether the injured man was Worthington’s “statutory employee” or an “independent contractor”—should have never gone to the trial jury, and extended tort liability to Worthington.

The court’s majority opinion concluded the relevant literature pointed to a “master-servant relationship” as being a prerequisite to surviving McDonald. The court held that, because an independent contractor can never be a statutory employee, the elements of McDonald cannot be met if a contractor is an independent contractor.

The Supreme Court is expected to hear a total of 11 cases during the two-day argument session, with topics ranging from venue issues to wiretapping and proper disclosure of murder-suicides.


The high court is also expected to hear argument on the issue of forum non conveniens in Bratic v. Rubendall. The court had initially planned to hear argument in September but granted a continuance.

The court will hear arguments on whether a suit against Harrisburg law firm Keefer Wood Allen & Rahal and other defendants should be moved from Philadelphia to Dauphin County, where eight key witnesses in the case are located.

In April 2012, a split en banc Superior Court panel reversed a Philadelphia trial court’s holding that allowed the venue change. However, on reargument, the panel ruled 6-3 to reverse the lower court. The majority opinion said the defendants failed to show why litigating in Philadelphia would be inconvenient and the trial court relied on “irrelevant” factors, specifically the trial court’s concern that none of the appellants are from Philadelphia county.

The plaintiffs in the case filed suit in the Philadelphia Court of Common Pleas in February 2009 against defendants Charles W. Rubendall II, his firm, Keefer Wood, Residential Warranty Corp. of Pennsylvania and Integrity Underwriters Inc., alleging wrongful use of civil proceedings and abuse of process, according to the Superior Court.

The defendants argued that the venue was improper, and petitioned to transfer on the ground of forum non conveniens.

The trial court found that the defendants’ only connection to Philadelphia was that all of them occasionally do business in Philadelphia, and granted the petition. The Superior Court upheld the decision, finding that the trial court had not abused its discretion in determining that the defendants had met their burden to prove that the plaintiff’s selected venue was “vexatious and oppressive.”

On reargument, the plaintiff contended that the defense had relied on unspecified allegations about witnesses who were not likely to testify at trial.

Disclosing Murder-Suicide

Also Tuesday, the court is expected to hear arguments in Milliken v. Jacono, which addresses whether the seller of a house is required to disclose to potential buyers what the Superior Court called “psychological damage,” such as a murder or suicide that occurred on the property.

In November 2011, a split three-judge panel of the Superior Court ruled that a jury should decide whether the seller of a $610,000 home had a duty to tell the buyer that a murder-suicide had occurred in it. However, a divided en banc panel reversed the ruling in December 2012, holding that a murder-suicide does not constitute a material defect to real estate requiring disclosure under the Real Estate Seller Disclosure Law.

In a two-page order, the high court limited argument to whether material issues of fact existed with regard to plaintiff Janet S. Milliken’s claims of fraud, negligent misrepresentation and Unfair Trade Practices and Consumer Protection Law violations arising from the defendants’ alleged failure to disclose the home’s morbid history.

Wiretap Act

The court will also consider whether a state trooper violated the state Wiretapping and Electronic Surveillance Control Act when he listened to an informant set up a drug deal with a defendant on speakerphone.

The trial court had ruled to suppress the evidence in Commonwealth v. Spence, and a Superior Court panel, in an unsigned memorandum opinion issued in February 2011, upheld the ruling, finding that by listening in on the phone conversation without the defendant’s knowledge, the trooper violated the Wiretap Act.

According to court papers, the trooper hatched a plan in which he instructed the informant, a high school student who had recently been arrested for possession of prescription drugs, to call the defendant and order Percocet, OxyContin and Xanax. The trooper dialed the defendant’s number and then handed the informant the phone and told him to put it on speakerphone. The trooper never spoke and the defendant was never informed that a third party was listening.

The defendant argued that the trooper violated the Wiretap Act by intercepting a wire communication without a warrant or approval of the state attorney general or a district attorney.

According to court records, the state argued that the informant’s cellphone was exempted under the Wiretap Act because the informant was the subscriber or user.

The Superior Court reasoned in its opinion that “the trooper’s initiation of the call and his control over the content of the conversation require us to conclude that, at the same time the informant was using his telephone, the trooper was also using the informant’s telephone.”

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI. •