Berdejo v. Ideal Systems, Inc. et al
MEMORANDUM and ORDER granting 85 dfts Charles and Melita Lakhkan' Motion for Summary Judgment ; and DENYING dft Exlusive Builders'Motion for summary judgment 60 .Signed by Honorable James M. Munley on 8/22/11 (sm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOSE LUIS URENA BORDEJO,
EXCLUSIVE BUILDERS, INC.;
CHARLES LAKHAN; and MELITA
Before the court are the defendants’ respective motions for summary
judgment. The motions are ripe for disposition.
Plaintiff Jose Luis Urena Berdejo (“Berdejo”) is an unauthorized
illegal alien who worked for a company named, alternatively, Ideal
Systems, Inc., Ideal Systems Constructions, Inc., or Ideal Systems USA,
Inc. (“Ideal”). (Def.’s Statement of Material Facts (“SMF”) ¶¶ 2, 9 (Doc.
62)). Berdejo was working on a home construction project at 208 Quail
Ridge in Stroudsburg, Pennsylvania (“the Quail Ridge project”). (Id. ¶ 1).
Defendant Exclusive Builders, Inc. (“Exclusive”) was the general contractor
for the home construction but did not do any actual construction on the
project. (Id. ¶ 4). Berdejo’s employer, Ideal, was Exclusive’s subcontractor
for roofing and siding at the project. (Id. ¶ 8). Defendants Charles and
Melita Lakhan were the mother and son owners of the home under
construction. (Macaluso Dep. (Doc. 60-4 at 51-52); Aff. of Charles Lakhan
(Doc. 88); Aff. of Melita Lakhan (Doc. 89)).
On November 9, 2008, Berdejo fell from the roof while working on the
Quail Ridge project. (SMF ¶ 1). Berdejo was about eleven feet from the
ground when he fell. (Berdejo Dep. (Doc. 60-2 at 38)). Another employee
grabbed Berdejo but had to let go as Berdejo was hanging off the roof. (Id.
at 44). Berdejo landed on his back and head, leaving him unconscious.
(Id. at 52, 74). Berdejo’s boss, Julio Puma the owner of Ideal was called
and came to the job site about one half hour later, but refused to take
Berdejo to the hospital. (Id. at 56-57). Berdejo believed that Julio Puma
refused to take him to the hospital because Puma was afraid to answer
questions. (Id.) Nine hours later, he was taken to the hospital. (Id. at 5960).
Berdejo wore a hard plastic brace for two months, twenty-four hours
per day to help discs in his back reposition themselves. (60-2 at 67-68).
After the hard plastic brace, Berdejo wore an elastic girdle for another four
months. (Id. at 68-69).
As opposed to previous employers for whom Berdejo worked, Ideal
did not provide safety ropes or harnesses to its roofers. (Doc. 60-2 at 2427). Berdejo at first refused to work on the roof without safety equipment
but eventually agreed. (60-2 at 31). Berdejo had no contact with anyone
from Exclusive at the job site. (60-2 at 36).
Exclusive is a general contractor who subcontracted all of its house
building jobs. (Macaluso Dep. (Doc. 60-4 at 21)). The corporation was
formed and run by Angela Lillian Macaluso (“Macaluso”) and Adrian LoDico
(“LoDico”), sister and brother. (Id. at 30). There were no other employees.
(Id. at 74). Exclusive did oversee the projects, however. (Id. at 21).
Macaluso and LoDico visited the Quail Ridge job site on numerous
occasions– more than twenty times. (Id. at 18, 28, 67-68). Macaluso
stated that she was not concerned about safety at the project during her
visits and she knew of no safety issues. (Id. at 67-68). Generally,
Macaluso would visit the site when workers were not present. (Id.)
Exclusive did not require hard hats or safety equipment– this was up to the
subcontractor according to Macaluso. (Id. at 68-69). According to
Macaluso, the subcontractor was responsible for the safety of its
employees. (Id. at 71). Exclusive and Ideal had nothing in writing as to
safety protocol or any specific delegation of safety oversight. (Id. at 70,
72). Exclusive did not provide any training to anyone regarding falls. (Id.
at 78). Exclusive did not make efforts to determine whether their
contractors were safe. (Id. at 79). Exclusive had no policy regarding
safety. (Id. at 81). Macaluso was not familiar with particular Occupational
Safety and Health Administration (“OSHA”) requirements or aware of the
existence of OSHA. (Id. at 82).
Macaluso would generally work in the office while LoDico would
oversee job sites. (Macaluso Dep. (Doc. 60-4 at 30)). In relation to safety,
Macaluso or LoDico would visit the project and remove debris so that the
job site was clear. (Id. at 75-76, 80). LoDico would visit job sites most
days to oversee and assist subcontractors. (Id. at 29-30). Generally,
Macaluso and LoDico would inspect the work that Ideal performed to make
sure it was done properly and so that Ideal could be paid. (Id. at 61-62).
Berdejo’s expert, Vincent Gallagher states that: “[Exclusive]
permitted Ideal Systems’ workers to work in very dangerous conditions in
violation of OSHA standards. It is my opinion that they simply did nothing
to comply with the standard of care as expressed in Section VIII of my
report. It is my opinion that the above failures were a cause of Jose Luis
Urena Berdejo’s injuries.” (Gallagher Report at 23 (Doc. 63 at 40)).
Plaintiff Jose Luis Urena Berdejo filed this action on March 18, 2009
against Exclusive, Ideal Systems, Inc., Ideal Systems Constructions, Inc.,
Charles Lakhan, and Melita Lakhan raising claims of negligence. (Compl.
(Doc. 1)). On August 3, 2009, Exclusive answered the complaint and
asserted cross-claims against the existing defendants and Defendant Ideal
Systems USA, Inc. (Doc. 15). On September 11, 2009, the plaintiff was
granted leave to file an amended complaint joining Defendant Ideal
Systems USA, Inc. (Doc. 19).
On February 2, 2010 the court granted the plaintiff’s motions for
default judgment against Defendants Charles Lakhan and Melita Lakhan
(Doc. 36) and against Defendants Ideal Systems, Inc., Ideal Systems
Constructions, Inc., and Ideal Systems USA, Inc. (Doc. 37). (Doc. 42).
Subsequently the plaintiff and the remaining defendant, Exclusive,
conducted discovery and mediation. On August 19, 2010, Exclusive filed a
motion for summary judgment. (Doc. 60).
On September 20, 2010 Defendants Charles and Melita Lakhan filed
a motion to strike default judgment for improper service. (Doc. 68).1 On
March 8, 2011 the court granted the motion to strike default judgment and
reinstated Defendants Charles and Melita Lakhan. (Doc. 76). These
reinstated defendants moved for summary judgment on April 15, 2011.
(Doc. 85). The plaintiff objected to the Lakhans’ motion for summary
judgment because he had not had an opportunity to depose these
defendants since their reinstatement. On June 17, 2011 these defendants
were deposed. (Doc. 97). On August 9, 2011 the plaintiff filed a
supplemental reply to the Lakhans’ motion for summary judgment, bringing
the case to its present posture. (Id.)
Because there is complete diversity of citizenship between the
parties and the amount in controversy exceeds $75,000.00, the court has
jurisdiction over the case. See 28 U.S.C. § 1332 (“district courts shall have
The case was stayed upon Exclusive’s suggestion of bankruptcy
until the United States Bankruptcy Court for the Middle District of
Pennsylvania granted relief from the stay and the case was reopened on
March 2, 2011. (Docs. 70 - 75).
original jurisdiction of all civil actions where the matter in controversy
exceeds the sum or value of $75,000, exclusive of interest and costs, and
is between . . . citizens of different States[.]”)
The granting of summary judgment is proper “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter
of law. See Knabe v. Boury, 114 F.3d 407, 410 n.4 (3d Cir. 1997) (citing
FED. R. CIV. P. 56(c)). “[T]his standard provides that the mere existence of
some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
When considering a motion for summary judgment, the court must
examine the facts in the light most favorable to the party opposing the
motion. Int’l Raw Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946, 949
(3d Cir. 1990). The burden is on the moving party to demonstrate that the
evidence is such that a reasonable jury could not return a verdict for the
non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A fact is material if it might affect the outcome of the suit under the
governing law. Id. Where the non-moving party will bear the burden of
proof at trial, the party moving for summary judgment may meet its burden
by showing that the evidentiary materials of record, if reduced to
admissible evidence, would be insufficient to carry the non-movant's
burden of proof at trial. Celotex v. Catrett, 477 U.S. 317, 322 (1986).
Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond its pleadings, and designate specific
facts by the use of affidavits, depositions, admissions, or answers to
interrogatories showing that there is a genuine issue for trial. Id. at 324.
The remaining defendants seek summary judgment on all of
Berdejo’s claims. We will address the Lakhans’ motion and then
Exclusive’s motion, in turn.
A. Lakhans’ Motion for Summary Judgment
The Lakhans move for summary judgment on Berdejo’s claims,
arguing that, as landowners, they owed no duty of care to an employee of
a subcontractor. The general rule in Pennsylvania is that a landowner who
hires an independent contractor is not liable for injuries caused by the
independent contractor or its employees. See Beil v. Telesis Const., Inc.,
11 A.3d 456, 466 (Pa. 2011) (“For over 100 years, the accepted and
general rule regarding liability in our Commonwealth has been that a
landowner who engages an independent contractor is not responsible for
the acts or omissions of such independent contractor or his employees.”)
(citing Pender v. Raggs, 35 A. 1135 (1896); Hader v. Coplay Cement Mfg.
Co., 189 A.2d 271 (1963); RESTATEMENT (SECOND) OF TORTS § 409). The
Lakhans, as landowners who engaged Exclusive as an independent
contractor, are therefore protected, in the first instance, by the general rule.
The general rule, however, is subject to several exceptions. See
RESTATEMENT (SECOND) OF TORTS § 409 cmt. b (“[T]he law has progressed
by the recognition of a large number of “exceptions” to the ‘general rule.’
These exceptions are stated in §§ 410-429. They are so numerous, and
they have so far eroded the ‘general rule,’ that it can now be said to be
‘general’ only in the sense that it is applied where no good reason is found
for departing from it.”).
Having reviewed the record, and the catalogue of exceptions to the
general rule of non-liability, we conclude as a matter of law that the
Lakhans had no duty of care with respect to Berdejo. The only exceptions
which might have exposed the Lakhans to liability in this sort of scenario
would have been the “retained control exception” found in § 414 of the
Second Restatement and the “peculiar risk exception” found in §§ 416 and
Under the “retained control exception,” we must determine whether
retained at least some degree of control over the
manner in which the work is done. It is not enough
that he has merely a general right to order the work
stopped or resumed, to inspect its progress or to
receive reports, to make suggestions or
recommendations which need not necessarily be
followed, or to prescribe alterations and deviations.
Such a general right is usually reserved to
employers, but it does not mean that the contractor
is controlled as to his methods of work, or as to
operative detail. There must be such a retention of
a right of supervision that the contractor is not
entirely free to do the work in his own way.
RESTATEMENT (SECOND) OF TORTS §414 cmt. c; see also Beil, 11 A.3d at
The plaintiff’s supplemental brief of August 9, 2011 describes the
extent of the Lakhans’ involvement in the project. Charles Lakhan
occasionally drove by the project to check on its progress. (Charles
Lakhan Dep. (Doc. 97 at 10)). He was not involved in designing or building
the home. (Id. at 9). Charles and Melita Lakhan visited the property with
Macaluso on three occasions. (Id. at 11). During one visit the Lakhans
inspected tiles. (Id.) Neither Charles nor Melita had any say over
Exclusive’s subcontractor selection or had any interaction with the
subcontractors. (Id. at 11-12; Melita Lakhan Dep. (Doc. 97 at 24)). No
workers were at the site when Charles Lakhan visited. (Charles Lakhan
Dep. (Doc. 97 at 14).
Melita Lakhan, aside from the three visits to the project with her son
Charles, also visited twenty-five times with her husband; approximately
every other week over a year and one half. (Melita Lakhan Dep. (Doc. 97
at 24, 30)). Work was being performed during three visits– tile installation,
master bath construction, and painting of the garage. (Id. at 24). Melita
Lakhan did not speak to any of the workers. (Id. at 28). For most of the
twenty-five visits there were no workers and no progress. (Id. at 30).
Melita Lakhan’s husband complained to Lillian Macaluso that the house did
not have a driveway, gutters, bathroom doors, toilet paper holders, or
landscaping. (Id. at 25, 28).
Upon reviewing the record in a light most favorable to Berdejo, there
is no genuine issue of material fact as to whether the Lakhans retained any
control over Exclusive’s or Ideal’s methods of work. No evidence suggests
that the Lakhans ever gave any directions to their contractor or
subcontractors as to how the construction of their home should proceed.
No evidence indicates that the Lakhans interfered with the operative detail
of their contractor’s or subcontractors’ work. Thus, no duty arose on the
part of the Lakhans.
The “peculiar risk exception” is also inapplicable.2 The Pennsylvania
Superior Court has held that:
a special danger or peculiar risk exists where:
1) the risk is foreseeable to the employer of
the independent contractor at the time the
contract is executed, i.e., a reasonable
The Pennsylvania Superior Court has equated the concepts of
“peculiar risk” and “special danger” found in §§ 416 and 427. Lorah v.
Luppold Roofing Co., Inc., 622 A.2d 1383, 1385 n.1 (Pa. Super. Ct. 1993).
The court has also held that these sections, though explicitly creating a
duty in an employer of an independent contractor only towards “others”
injured by the independent contractor, also create a duty towards
employees of the independent contractor itself. Id. at 1386 n.2.
person, in the position of the employer, would
foresee the risk and recognize the need to
take special measures; and
2) the risk is different from the usual and
ordinary risk associated with the general type
of work done, i.e., the specific project or task
chosen by the employer involves
circumstances that are substantially
Ortiz v. Ra-El Development Corp., 528 A.2d 1355, 1358 (Pa. Super. Ct.
1987). The Pennsylvania Superior Court, in Lorah v. Luppold Roofing Co.,
Inc., examined this exception in the case of an iron worker who fell from an
unsecured ladder while carrying rebar. 622 A.2d 1383 (Pa. Super. Ct.
1993). The court found that the plaintiff failed the second prong of the
Ortiz test, stating:
The task to be performed-the movement of rebars
of nominal weight down a ladder into an excavation
pit-does not involve a risk that is substantially out
of the ordinary at a construction site. To the
contrary, the task being performed appears to be
nothing more than a common or routine worksite
procedure. What made the activity of increased risk
was not the activity itself, which is normally of
minimal risk, but the failure of the independent
contractor (and/or his servants) to take adequate
Id. at 1386. Here, Berdejo fell from a roof while roofing. That unfortunate
occurrence is the primary risk confronted by such a worker. There is no
genuine issue of material fact as to whether this roof presented a risk not
usually faced by a roofer. As in Lorah, the nature of the Lakhans’ roof did
not increase Berdejo’s risk– rather, it was the lack of fall protection which
increased his risk.3 Accordingly, this exception does not subject the
To the extent that § 413 of the Second Restatement of Torts,
entitled “Duty To Provide For Taking Of Precautions Against Dangers
Involved In Work Entrusted To Contractor,” contributes to the doctrine of
the peculiar risk exception, that section is also not applicable to the
Lakhans. This exception is not applicable in situations where the injury
results from risks normally associated with the work. See RESTATEMENT
Lakhans’ to liability. For the reasons stated above, we will grant the
Lakhans’ motion for summary judgment.
B. Exclusive’s Motion for Summary Judgment
Exclusive seeks summary judgment on Berdejo’s claims.
Alternatively it seeks summary judgment on portions of Berdejo’s claims for
damages and partial summary judgment with respect to two of Berdejo’s
allegations. We will address each argument in turn.
1. Whether Exclusive Can Be Found Liable to Berdejo
Exclusive argues that it cannot be found negligent because it did not
have a duty to Berdejo. Exclusive argues that it entrusted the construction
of the Quail Ridge property to Ideal, among other subcontractors, and that
Exclusive did not retain any control over the means or methods of Ideal’s
work. Exclusive cites Leonard v. Commonwealth of Pennsylvania, 771
A.2d 1238, 1241 (Pa. 2001) for the general rule, taken from § 384 of the
Second Restatement of Torts, that a contractor is not liable for injuries
resulting from work entrusted to a subcontractor. The general contractor in
Leonard, Kiewitt/Perini, subcontracted with High Steel to make bridges on
Interstate 476. High Steel, in turn, subcontracted with Cornell to erect
steel. That contract– the sub-subcontract– provided:
(SECOND) OF TORTS § 413 cmt. b (“This Section has no reference to such a
general anticipation of the possibility that the contractor may in some way
be negligent. It is not concerned with the taking of routine precautions, of a
kind which any careful contractor could reasonably be expected to take,
against all of the ordinary and customary dangers which may arise in the
course of the contemplated work. Such precautions are the responsibility
of the contractor; and if the employer has exercised reasonable care to
employ a contractor who is competent and careful (see § 411), he is not
required to provide, in the contract or otherwise, that the contractor shall
[Cornell] agrees to conduct and carry on its work in
such manner as to avoid injury or damage to
persons or property including its own work and be
strictly responsible for damage to persons or
property by failure so to do or by [Cornell's]
negligence, and shall assume as to its work
hereunder all obligations imposed on [High Steel]
under the provisions of the General Contract and
shall indemnify and hold harmless [High Steel]
against such obligations in the same manner that
[High Steel] is obligated to indemnify [Kiewit/Perini]
Leonard, 771 A.2d at 1242. The court stated, “[t]hus, Cornell, under its
subcontract for erection of steel, assumed all of the contractors'
responsibilities for safety compliance with respect to its portion of the work.
Having fully delegated to Cornell the task of erecting steel, the contractors
higher in tier no longer had control over the manner in which that work was
It is not apparent to this court, however, that Leonard is dispositive of
the issue in this case.4 Leonard may best be understood as holding that
although a general contractor may be contractually obligated by the
landowner to ensure the safety of the overall project, the general contractor
can, by subcontract, delegate that responsibility to its subcontractors. See
Farabaugh v. Pennsylvania Tpk. Com’n, 911 A.2d 1264, 1281 (Pa. 2006)
The issues before the Pennsylvania Supreme Court in Leonard
were: “whether a general contractor or subcontractor who was not ‘present’
at the work site may nevertheless be in ‘control’ of the work site pursuant
to contract or law so as to have a duty to make the site safe, and whether
such a contractor or subcontractor may delegate such a duty to a
subordinate subcontractor. Hence, our review focuses on Commonwealth
Court's rationale that Kiewit/Perini and High Steel had no duty to Leonard,
in that they had no actual involvement in erection of the steel, they had no
presence or control with respect to the work site, they had no control over
the manner in which Leonard performed his job, and they had contractually
delegated all safety responsibility and control over the work site to Cornell.”
Leonard, 771 A.2d at 1240.
(“The Leonard and Hader lines of cases relate to situations where an
employer reserves the right to supervise and inspect an independent
contractor. These cases consider whether and to what extent the owner or
general contractor has delegated responsibility for the work on the property
to a subcontractor.”).
Here, Berdejo argues that, in the absence of a contract specifically
delegating safety responsibilities from Exclusive to Ideal, Exclusive
retained such responsibility. See Young v. Commercial Group, Inc., No.
Civ. A. 01-05074, 2005 WL 591199, *6 (E.D. Pa. Mar. 8, 2005). Exclusive
argues that safety responsibilities were delegated to its subcontractors.
Exclusive argues that “Ideal assumed the duty of safety at this job site, in
the absence of any specific written contracts between Ideal and Exclusive
Builders, Inc.” (Br. Supp. Mot. Dismiss at 5 (Doc. 61)). Thus, the parties,
in essence, argue over with whom the duty of ensuring a safe job site
resides in the absence of a specific contractual delegation of that duty.
The implication from Leonard is that in the absence of contractual
delegation of safety responsibilities to a subcontractor, they remain with
the general contractor. Since there is no evidence that Exclusive
delegated safety responsibilities to Ideal, there is a genuine issue of
material fact as to which party retained that responsibility. 5 Accordingly,
See Young, 2005 WL 591199, *6 (“In this case, unlike Leonard v.
Comm. Dept. of Transportation, 723 A.2d 735 (Pa. Cmwlth. 1998) . . .
there was no clear delegation of the duty to provide safety precautions and
to supervise the work being performed. It is not clear that Milric delegated
its responsibilities under its contract with Home Depot to CCS in their oral
contract which existed at the time of the accident or to anyone else on site.
. . . Given the terms of the contract and considering all facts in favor of the
plaintiff, it would be possible for a jury to find that as part of its
responsibilities under the contract with Home Depot, as general contractor
Exclusive’s motion for summary judgment on Berdejo’s claims will be
2. Whether Berdejo Can Seek Lost Earnings as an Unauthorized
Exclusive argues that Berdejo cannot seek lost earnings because, as
an unauthorized alien, he could not have been legally hired to work and
earn. See Hoffman Plastic Compounds, Inc. v. N.L.R.B., 535 U.S. 137,
147 (2002) (“Congress enacted [the Immigration Reform and Control Act of
1986 (‘IRCA’)], a comprehensive scheme prohibiting the employment of
illegal aliens in the United States. § 101(a)(1), 100 Stat. 3360, 8 U.S.C. §
1324a.”). The United States District Court for the District of New Jersey
addressed the issue of “whether an individual can recover for economic
losses in the personal injury tort context when that individual cannot legally
obtain work in the United States.” Kalyta v. Versa Products, Inc., Civ. A.
No. 07-1333, 2011 WL 996168, *3 (D.N.J. Mar. 17, 2011). Noting that the
United States Court of Appeals for the Third Circuit has not ruled on this
issue, the court turned to other federal districts and New Jersey state law.
The court noted that the Second Circuit, in Madeira v. Affordable Hous.
Found., Inc., 469 F.3d 219, 237-43 (2d Cir. 2006), concluded that the IRCA
did not preempt New York state law with respect to whether an
undocumented alien could receive compensatory lost earning damages.
The district court in Kalyta found that, under New Jersey law, legal
Milric was responsible for coordinating the work of its two subcontractors,
for supervising, and for taking precautions to protect safety, by at a
minimum making sure that the employees were aware of the other work
being performed. When considering all of the facts in favor of the
non-moving party, we must therefore deny Milric's motion.”)
employment was not a prerequisite to recovering lost wages in a personal
injury action. 2001 WL 996168, *7.
Though we find the opinions of the Second Circuit in Madeira and the
District of New Jersey in Kalyta to be persuasive approaches the court
must determine whether the issue is otherwise addressed by Pennsylvania
law. The Pennsylvania Supreme Court has not squarely addressed
whether IRCA precludes a claim for lost earnings in a personal injury suit,
but in Reinforced Earth Co. v. W.C.A.B. (Astudillo), 810 A.2d 99, 105 (Pa.
2002) the court upheld an award of workers' compensation benefits to an
illegal alien. We find that this stance is persuasive as to whether an
unauthorized alien can recover for economic losses under Pennsylvania
personal injury law.
The dissent in Reinforced Earth would have found that the “the policy
of the Pennsylvania General Assembly to afford workers' compensation
benefits to employees injured in work-related accidents should yield to the
injunction of Congressional policy against employment of unauthorized
aliens.” Reinforced Earth Co., 810 A.2d at 111 (Newman, J., dissenting).
To the extent that the majority disagreed with that position, and to the
extent that one of the purposes of Pennsylvania’s workers’ compensation
system is to replace the traditional tort system, we predict that the
Pennsylvania Supreme Court would not preclude Berdejo’s claims for lost
earnings as a matter of law.6 See 77 P.S. § 481 (2002). Accordingly,
We note, as did the court in Kalyta, that there is no evidence in the
record that Berdejo fraudulently obtained his job with Ideal– he did not
present false documentation. See 8 U.S.C. § 1324c(a); Kalyta, 2011 WL
996168, *1 n.3. An argument could be made that disallowing claims for
lost earnings would have the perverse incentive of shielding an employer
from tort liability to an unauthorized alien employee, undercutting IRCA’s
Exclusive’s motion for summary judgment on Berdejo’s claims for lost
earnings will be denied.
3. Whether Paragraphs 13 and 14 Should be Struck
Exclusive seeks partial summary judgment on the allegations
contained in Paragraphs Thirteen and Fourteen of Berdejo’s Amended
Complaint. These paragraphs read:
13. Defendants failed to provide Plaintiff with any
type of workers’ compensation insurance.
14. Defendants failed to require and/or confirm that
Defendants’ employer, Ideal Systems, Inc., and/or
Ideal Systems Construction, Inc., and/or Ideal
Systems USA, Inc., carried workers compensation
insurance which would have covered the Plaintiff.
(Am. Compl. ¶¶ 13, 14 (Doc. 20)). Exclusive presents a Workers’
Compensation Decision in which Berdejo’s claims for compensation were
denied. (June 30, 2010 Workers’ Compensation Decision (Doc. 60-8)).
Exclusive argues that a workers’ compensation judge’s decision can have
a preclusive effect in civil proceedings, citing Yonkers v. Donora Borough,
702 A.2d 618 (Pa. Commw. Ct. 1997).
‘The doctrine of collateral estoppel precludes
relitigation of an issue determined in a previous
action if: (1) the issue decided in the prior case is
identical to the one presented in the later action; (2)
there was a final adjudication on the merits; (3) the
party against whom the plea is asserted was a party
or in privity with a party in the prior case; (4) the
party or person privy to the party against whom the
doctrine is asserted had a full and fair opportunity to
litigate the issue in the prior proceeding; and (5) the
determination in the prior proceeding was essential
to the judgment.’
Prusky v. Reliastar Life Ins. Co., 502 F. Supp. 2d 422, 429-30 (E.D. Pa.
2007) (quoting Office of Disciplinary Counsel v. Kiesewetter, 889 A.2d 47,
50-51 (Pa. 2005)).
provisions fining employers for employing unauthorized aliens. See §
Here, Exclusive notes that the workers’ compensation judge found
that “the record fails to establish that Exclusive Custom Builders, Inc. had
any involvement with Claimant and certainly fails to establish that Exclusive
Custom Builders, Inc. was Claimant’s employer as of November 9, 2008.”
(Id.) The record in this case does not mention any corporation named
Exclusive Custom Builders, Inc. The defendant in this case is Exclusive
Builders, Inc. There is a reference in the record to a limited liability
company named Exclusive Custom Builders, LLC. Macaluso testified in
her deposition, however, that Exclusive Custom Builders, LLC is a newer
corporation she started with her friend Endira Bash after she wound down
Exclusive– that is, Defendant Exclusive Builders, Inc. (Macaluso Dep.
(Doc. 60-4 at 84-88). Thus, the workers’ compensation judge’s finding as
to Exclusive Custom Builders, Inc. is not relevant to this case, and the
motion for partial summary judgment will be denied.7 To the extent that
Exclusive also seeks to preclude Berdejo from introducing evidence
regarding workers’ compensation insurance, such a motion is premature
and will be denied.
For the reasons stated above, the motion for summary judgment of
Defendants Charles and Melita Lakhan will be granted and the motion for
summary judgment of Defendant Exclusive Builders, Inc. will be denied.
An appropriate order follows.
Macaluso also testified in her deposition that Exclusive did not keep
workers’ compensation insurance or require subcontractors to keep the
same. (Macaluso Dep. (Doc. 60-4 at 32, 55)).
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOSE LUIS URENA BORDEJO,
EXCLUSIVE BUILDERS, Inc.;
CHARLES LAKHAN; and MELITA
AND NOW, to wit, this 22nd day of August 2011, upon consideration
of the defendants’ motions for summary judgment it is HEREBY
ORDERED as follows:
The motion for summary judgment of Defendants Charles and Melita
Lakhan (Doc. 85) is GRANTED.
The motion for summary judgment of Defendant Exclusive Builders,
Inc. (Doc. 60) is DENIED.
BY THE COURT:
s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court