CONSTRUCTION LAW – CO-EMPLOYEE IMMUNITY – WORKER’S COMPENSATION – IMMUNITY – JURY ISSUE

Brown v. Gaydos, 2026 Pa. LEXIS 267 (February 18, 2026) Mundy, J.
Judges: TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, McCAFFERY, JJ. Chief Justice Todd and Justices Donohue and Dougherty join the opinion. Justice Brobson files a concurring and dissenting opinion. Justice Wecht files a dissenting opinion. Justice McCaffery did not participate in the consideration or decision of this matter.
Granted allowance of appeal to consider whether the Superior Court properly reversed the trial court’s grant of summary judgment in favor of Appellant George Gaydos based on Section 205 of the Worker’s Compensation Act (WCA), which provides for co-employee immunity. The Supreme Court concluded that the summary judgment was improper due to a genuine issue of material fact regarding whether Gaydos’s allegedly negligent acts or omissions occurred while he was in the same employ as Appellee John Brown. The Supreme Court affirms the order of the Superior Court and remands for further proceedings.
As relevant background to the co-employee immunity issue, which is the only issue we accepted for review, the Superior Court indicated that the WCA requires employers to pay workers’ compensation benefits to employees who are injured at work regardless of negligence, i.e., the “Grand Bargain.” Id. at 887; see also Herold v. Univ. of Pittsburgh, 329 A.3d 1159, 1180-83 (detailing the Grand Bargain underlying the WCA). The court further opined that “the WCA provides immunity [from civil liability] to a co-employee whose negligent actions caused the claimant’s injuries, so long as the injury occurred while the co-employee was ‘in the same employ’ as the injured claimant.” Brown, 306 A.3d at 888 (quoting 77 P.S. § 72; citing Apple v. Reichert, 278 A.2d 482, 485 (Pa. 1971)). Additionally, the court found “the term ‘co-employee’ includes managers, executives, and even those who have an ownership interest in the employer.” Id. (citing 77 P.S. § 22; Jadosh v. Goeringer, 275 A.2d 58, 59-60 (Pa. 1971)).
Applying Apple [Apple, 278 A.2d at 484] to this case, the Superior Court found “there is a genuine issue of material fact as to whether Gaydos was acting within ‘the same employ’ as Brown—that is, acting in furtherance of his duties as an employee/co-owner of ACS and in a manner approved by ACS— at the time of Brown’s injury.” Id. The court proceeded to highlight several disputed material facts that it found precluded summary judgment. First, Gaydos operated a sole proprietorship that independently owned, insured, and performed maintenance on the skid loader. Id. In fact, the court explained, Gaydos merely loaned the skid loader to ACS as needed and instructed ACS employees that he was to be its sole operator. Id. at 894. Second, the Superior Court found the record did not support Gaydos’s claim that the skid loader was on the ACS job site the morning of Brown’s injury for that job because Gaydos’s deposition testimony did not specify the purpose for which the skid loader was onsite, and an equally reasonable inference could be drawn that Gaydos did not intend to use the skid loader that day because he left the job site and explained there was other work ACS employees could perform in his absence. Id. Third, the court emphasized that Brown sued Gaydos based on Gaydos’s personal negligence in maintaining the skid loader, including his failure to warn Brown that the skid loader’s safety mechanisms were not working, and Brown did not sue Gaydos in his capacity as Brown’s employer or co-employee. Id. at 894-95. For these reasons, the Superior Court concluded that whether Gaydos was acting “‘in the course of [his] performance of duties for the employer[,]’ ACS, is a genuine issue of material fact” and the trial court erred in granting summary judgment based on Section 72’s co-employee immunity provision. Id. at 895 (quoting Bell v. Kater, 943 A.2d 293, 298 (Pa. Super. (2008)).
Section 72 provides a person is immune from civil suit “for any act or omission occurring while such person was in the same employ as the person disabled or killed[.]” Id. Significantly, the statute contains a temporal requirement for its grant of immunity in that it provides immunity for any act or omission “occurring while” the allegedly liable person was “in the same employ” as the injured worker. Id. This leaves no ambiguity as it relates to the timing of the act or omission forming the basis for the asserted civil liability. Accordingly, pursuant to the plain language of Section 72, to obtain co-employee immunity in a civil negligence lawsuit, the defendant must establish that: (1) the disability or death was compensable under the WCA; and (2) the act or omission forming the basis of civil liability occurred while the defendant was in the same employ as the injured party.
Applying Section 72 to this case, there is a genuine issue of material fact regarding whether the allegedly negligent act or omission occurred while Gaydos was in the same employ as Brown. As noted above, Brown’s civil negligence complaint asserted numerous theories for Gaydos’s negligence. For the purpose of determining whether any of those allegations created a genuine issue of material fact precluding summary judgment on the grounds of co-employee immunity, we focus on the allegations that Gaydos was negligent in “improperly maintaining the subject skid loader,” and in “inspecting and/or reviewing the subject skid loader prior to [Brown’s] usage[.]” Id. at 30(a), (b). Here, the undisputed facts were that Gaydos personally owned the skid loader and insured it under the name of his sole proprietorship. Gaydos’s Deposition, 9/10/20, at 18 (R.R. at 55a). Gaydos acknowledged that he performed maintenance on the skid loader himself, and he stored it on property he owned when it was not in use. On the other hand, ACS did not own, maintain, or insure the skid loader. Nor was there a lease agreement or transfer of money between ACS and Gaydos or ACS and Gaydos Construction for the use of the skid loader. During proceedings related to Brown’s civil suit, Gaydos speculated that the skid loader’s seat sensor safety mechanism failed during Brown’s accident, and he admitted that he did not frequently check that the sensor was functioning. Additionally, he hypothesized that the foot pedal controlling the skid loader’s hydraulic arm must have stuck when Brown was entering the machine, a mechanical issue of which he was aware occurred at least twice prior to Brown’s accident but did not fix. The foregoing presents a genuine issue of material fact regarding whether Gaydos’s alleged negligence in maintaining and inspecting the skid loader occurred while he and Brown were in the same employ or whether they occurred in Gaydos’s separate and independent role as an individual or as the owner of a sole proprietorship.
We conclude there remains genuine issues of material fact related to whether some of Gaydos’s allegedly negligent acts or omissions occurred while he was in the same employ as Brown. Accordingly, we affirm the order of the Superior Court reversing the trial court’s order granting summary judgment, and we remand for further proceedings consistent with this opinion.
Chief Justice Todd and Justices Donohue and Dougherty join the opinion. Justice Brobson files a concurring and dissenting opinion. Justice Wecht files a dissenting opinion. Justice McCaffery did not participate in the consideration or decision of this matter.
• There remain genuine issues of material fact related to whether some of Gaydos’s allegedly negligent acts or omissions occurred while he was in the same employ as Brown.
• The Superior Court affirmed reversing the Trial Court’s order granting summary judgment.
• Split opinion by the court.
• The Supreme Court concludes that the act or omission for which a defendant seeks Section 72 co-employee immunity must occur while the parties are in the same employ therefore supplements prior case law “in the same employ.”
• As a result, we hold that Section 72 co-employee immunity applies to an act or omission that occurs while the defendant and the injured worker were in the same employ, for example: acting in the course or scope of their employment.