Key Points

  • The en banc Superior Court affirmed a $7,297,700.86 judgment for Jesse Hernandez against Independence Construction Corp., which the jury found 70% at fault for injuries he suffered when a SEPTA train struck him while he worked on a trench.
  • The majority held that Yoder v. McCarthy Construction did not require vacatur and remand where the trial court decided the statutory-employer defense mid-trial on a developed record, before Yoder was decided.
  • Trenching to lay electrical conduit is not work 'consisting of' excavation under Section 302(a) of the Workers' Compensation Act, and trenching was not a regular or recurrent part of ICC's business.
  • ICC did not establish Section 302(b)'s control-of-premises element, and its Rule 608(b) and Rule 403 objections to cross-examination of its owner about DBE and business-integrity contract terms were waived because it objected at trial only on relevance.
  • Judge Stabile, joined by Judges Dubow and King, would have found the evidentiary claims preserved and granted a new trial, and read Yoder as not always requiring a pre-trial ruling.

A divided Pennsylvania Superior Court, sitting en banc, on Oct. 28 upheld a $7.3 million jury verdict for a trench worker struck by a SEPTA train, rejecting a contractor's argument that workers' compensation law barred his negligence suit.

Judge Lane wrote for the court that Independence Construction Corp., or ICC, was not the statutory employer of Jesse Hernandez. Under the state's Workers' Compensation Act, a statutory employer is a general contractor that backs up a subcontractor's benefit obligations and in exchange receives the same immunity from the subcontractor's workers' tort suits. President Judge Lazarus, President Judge Emeritus Panella and Judges Kunselman and McLaughlin joined the opinion, and Judge Sullivan concurred in the result.

The decision addresses verdicts tried before Yoder v. McCarthy Construction, the Pennsylvania Supreme Court's October 2025 ruling that statutory-employer status is a jurisdictional question courts must decide before reaching a negligence claim. The majority held that a trial judge's mid-trial ruling, made after full argument on the trial evidence, did not require vacating the judgment. It also held that trenching to lay electrical conduit is not "excavation" under the act.

Judge Stabile, joined by Judges Dubow and King, dissented in part and would have ordered a new trial over the cross-examination of ICC's owner about minority-contracting terms in the company's SEPTA contract.

Hernandez, an employee of ICC subcontractor Minority Services Inc., or MSI, was digging a trench about four feet from SEPTA's tracks on March 12, 2018, when a train hit him. He was put into a medically induced coma and suffered a traumatic brain injury, hearing loss and multiple fractures. Steven Hare owned both ICC and MSI.

After a 10-day trial in the Philadelphia County Court of Common Pleas, a jury found ICC 70% at fault, SEPTA 29% and Hernandez 1%, and awarded $7,297,700.86.

ICC raised the statutory-employer defense first in a summary judgment motion, which was denied in an order stating only that "issues of material fact remain[ed] in dispute," and again in a directed-verdict motion at the close of Hernandez's case, which the trial judge denied after argument. The Superior Court granted en banc review eight days after the Supreme Court decided Yoder on Oct. 23, 2025, and ICC then argued that Yoder required a ruling before trial.

The majority agreed that the bare summary judgment order was not a pre-trial ruling, but held that a remand was unnecessary because both sides had argued the defense at length on the trial evidence. "A remand by this Court would merely direct the trial court to revisit an issue already raised, developed, argued, and decided on the merits, albeit during trial rather than prior to trial," Lane wrote, adding that it "would provide ICC a second bite of the apple on this issue."

Section 302(a) of the act covers anyone who contracts "to have work performed consisting of" the removal, excavation or drilling of soil, rock or minerals. ICC argued that the purpose of the digging did not matter. "While MSI's trenching work included the digging and removal of soil, such digging was incidental to the primary purpose of the work, which was to lay conduit pipe," Lane wrote.

Noting that Pennsylvania courts had applied the provision only to gas wells, oil drilling and timber harvesting, the majority wrote: "We decline to extend section 302(a) statutory employer immunity to the particular work performed in this matter — digging trenches and laying conduit pipe." The trial court had warned that ICC's reading meant "nearly every single construction contract would extend statutory employer immunity to a general contractor."

The court also held that trenching was not a regular part of ICC's own business, because ICC always subcontracted that work to MSI. Under Section 302(b), which requires a contractor to occupy or control the work site, the majority cited evidence that SEPTA trained the workers, held daily safety briefings and set trench depth, and that Hare was absent the day of the accident.

At trial, Hernandez's lawyers questioned Hare about MSI's designation as the contract's disadvantaged business enterprise, a firm owned by a woman or a member of a minority group, even though Hare is a Caucasian man. The majority held that ICC had objected only on relevance, waiving its appellate arguments under the rules limiting character attacks and requiring courts to weigh unfair prejudice. ICC "did not dispute this reasoning, and instead argued another evidentiary theory: relevance," Lane wrote.

The court also upheld admission of SEPTA's post-accident Rule 135, which required trains to come to a full stop before reaching work areas near railings and trenches, because Pennsylvania's bar on evidence of later safety measures "only protects the party that took the measures."

Stabile wrote that the majority "applied the rules for preservation in such a strict and hyper-technical fashion that its holding contradicts not only our decisional law, but also the mandate of the Pennsylvania Constitution to liberally construe the right to an appeal." He added that "the only purpose served by the introduction of this irrelevant testimony was to besmirch ICC's character in the eyes of the jury."

Stabile agreed that the trench work was not excavation but would have decided the point as a pure question of law. He also wrote that Yoder "should be read narrowly as directing pre-trial record development on issues of statutory immunity under the WCA when the parties have attempted to litigate the issue at that stage of the case."

The court affirmed the judgment entered July 14, 2023. Stabile wrote that the waiver ruling split from earlier decisions and that "further review by our Supreme Court may be warranted so that this new and significant conflict in our decisional law can be reconciled."