Pauline Bailey v. BS Quarries Inc, et al

Filing

NOT PRECEDENTIAL OPINION Coram: SMITH, Chief Judge, MCKEE and SHWARTZ, Circuit Judges. Total Pages: 8. Judge: SMITH Authoring.

Case: 16-2169

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-2169
_____________
PAULINE BAILEY, Administrator of the Estate of Wesley Sherwood, Jr.
v.
BS QUARRIES INC; DAMASCUS 535 QUARRY AND STONE PRODUCTS
LLC; DAMASCUS 535; TNT ONE LIMITED PARTNERSHIP;
TNT SERVICES CORP; LIPPMANN MILWAUKEE INC;
LIPPMAN QUALITY USED EQUIPMENT; VIRA CORPORATION;
TIMOTHY SMITH; THOMAS BOLLES
Damascus 535 Quarry and Stone Products, LLC,
Appellant
_____________

On Appeal from the United States District Court
for the Middle District of Pennsylvania
District Court No. 3-13-cv-03006
District Judge: Honorable James M. Munley
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
December 19, 2016
Before: SMITH, Chief Judge, McKEE, and SHWARTZ, Circuit Judges
(Filed: January 5, 2017)

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_____________________
OPINION
_____________________
SMITH, Chief Judge.
Appellant Damascus 535 Quarry and Stone Products, LLC, seeks
interlocutory appellate review of an order denying summary judgment. Damascus
argued that it is entitled to immunity from suit under Section 303(a) of the
Pennsylvania Workers’ Compensation Act because it was Decedent Wesley
Sherwood Jr.’s employer. In denying summary judgment, the District Court held
that there were genuine disputes of material fact that prevented it from determining
who employed Sherwood and, in any event, Damascus was equitably estopped
from raising the immunity defense. Because Damascus’s challenge to the District
Court’s order is nothing more than a challenge to the sufficiency of the evidence
that formed the basis of the District Court’s determination that there is a genuine
issue of material fact and we would have to overturn the District Court’s
determination to hold that Damascus has immunity, we lack appellate jurisdiction
over this lawsuit under the rule of Johnson v. Jones, 515 U.S. 304 (1995).
On December 15, 2011, Sherwood died at work when he fell into a rock
crusher. Pauline Bailey, Sherwood’s mother and the executor of his estate, sued


This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
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B.S. Quarries, Inc., in state court. An attorney for B.S. Quarries wrote to Bailey’s
attorney, claiming that B.S. Quarries was immune from suit under Section 303(a)
of the Pennsylvania Workers’ Compensation Act. See 77 P.S. § 481(a) (“The
liability of an employer under this act shall be exclusive and in place of any and all
other liability to such employes . . . .”); City of Erie v. Workers’ Comp. Appeal Bd.,
838 A.2d 598, 602 (Pa. 2003) (“The statute seeks ‘to provide recompense
commensurate with the damage from accidental injury, as a fair exchange for
relinquishing every other right of action against the employer.’” (quoting Rudy v.
McCloskey & Co., 35 A.2d 250, 253 (Pa. 1944))).

The letter attached the

“Affidavit of Timothy Smith, the President of B&S Quarries, Inc.,” stating that, at
the time of the accident, “Sherwood was a full-time employee of B&S Quarries,
Inc.” 503a, 505a.
Bailey dismissed her state-court case and filed the instant suit in federal
court naming, among others, B.S. Quarries and Damascus, as defendants. B.S.
Quarries and Damascus are related: According to Damascus, “Defendant Smith
is . . . the sole corporate officer of Appellant Damascus 535. Defendant B.S.
Quarries is owned equally by Mr. Smith and Defendant Thomas Bolles . . . .” Br.
Appellant 14. In the instant suit, B.S. Quarries, Smith, and Damascus all now
seem to agree that Damascus was actually the employer and therefore actually the
party entitled to immunity under the Pennsylvania Workers’ Compensation Act.
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At summary judgment, Damascus argued that it was entitled to employer
immunity; Bailey argued that Damascus should be collaterally estopped from
arguing that it was the employer because of B.S. Quarries’ representations in the
state-court suit. Addressing Damascus’s argument, the District Court held that it
could not grant summary judgment on the immunity issue because “[t]he record
evidence makes manifestly clear that myriad genuine issues of material fact exist
regarding which company employed Wesley Sherwood.” Bailey v. B.S Quarries,
Inc., No. 3:13cv3006, 2016 WL 1271381, at *6 (M.D. Pa. Mar. 31, 2016). The
District Court declined to “directly address” Bailey’s collateral estoppel argument,
instead holding that Damascus was equitably estopped from raising the immunity
defense. Id. at *6–7, *6 n.6.
Damascus appealed the denial of its summary judgment motion and
requested a stay,1 arguing that it should not be forced to go to trial given its
statutory immunity from suit.2 Damascus argues that we have jurisdiction over its
appeal under the collateral order doctrine, analogizing workers’ compensation
immunity to qualified immunity possessed by government officials. See generally
1

A motions panel of this Court granted the stay pending this appeal.
Motion for Stay ¶ 13 (“It is imperative that the litigation and upcoming trial be
stayed until this Court resolves Damascus 535’s appeal and determines whether
Plaintiff’s claims are barred by Damascus 535’s employer immunity . . . .”); Br.
Appellant 3 (“As the District Court has entered an order erroneously denying
Damascus 535 its statutory immunity from suit pursuant to Section 303, 77 P. S.
§ 481(b), the Order is a collateral order subject to immediate appeal and Damascus
535 should not be burdened or forced to trial in a court that lacks jurisdiction.”).
2

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Pearson v. Callahan, 555 U.S. 223, 231–32, 236 (2009) (describing qualified
immunity). Applying the qualified immunity framework,3 we hold that we have no
jurisdiction under an exception derived from Johnson v. Jones.
We have “jurisdiction of appeals from all final decisions of the district
courts of the United States.” 28 U.S.C. § 1291. A collateral order is a rare type of
order that does not terminate the litigation but, nonetheless, is treated as a “final
decision.” See Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867–68
(1994). We generally follow a three-part test derived from Coopers & Lybrand v.
Livesay, 437 U.S. 463, 468–69 (1978), to determine whether a case falls within the
collateral order doctrine:

“[T]he order must: (1) conclusively determine the

disputed question; (2) resolve an important issue completely separable from the
merits of the action; and (3) be effectively unreviewable on appeal from a final
judgment.” Bines v. Kulaylat, 215 F.3d 381, 384–85 (3d Cir. 2000) (quoting
Transtech Indus., Inc. v. A & Z Septic Clean, 5 F.3d 51, 56 (3d Cir. 1993)).
Following Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), in which the
Supreme Court held “that a district court’s denial of a claim of qualified immunity,
to the extent that it turns on an issue of law,” was a collateral order, we usually

3

Because we do not have jurisdiction over this case, we do not determine whether
a denial of employer immunity would be a collateral order if such denial were
based on an issue of pure law. Recently, the Sixth Circuit held that a denial of
immunity under Kentucky’s workers compensation system is a collateral order.
See Black v. Dixie Consumer Prods. LLC, 835 F.3d 579 (6th Cir. 2016).
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hold that all three of these elements are met where a party seeks review of a denial
of immunity from suit, see Robinson v. Hartzell Propeller, Inc., 454 F.3d 163, 171
(3d Cir. 2006) (explaining that “[t]he key consideration” in a series of collateral
order cases was “whether the claimed right sought to be protected was
characterized as a right to immunity from suit or a defense to liability”).
However, in Johnson v. Jones, the Supreme Court limited appellate courts’
jurisdiction over interlocutory appeals of a denial of qualified immunity. The
Court held that a defendant seeking review of a denial of qualified immunity “may
not appeal a district court’s summary judgment order insofar as that order
determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for
trial.” 515 U.S. at 319–20. Thus, we have held “that when a District Court rests
its denial of summary judgment on the basis of qualified immunity on the existence
of a genuine issue of fact, then we have no jurisdiction.” Walker v. Horn, 286 F.3d
705, 710 (3d Cir. 2002); see also Blaylock v. City of Philadelphia, 504 F.3d 405,
409 (3d Cir. 2007); Forbes v. Township of Lower Merion, 313 F.3d 144, 147–48
(3d Cir. 2002).
Here, Damascus argues that the District Court “erred” when determining
“myriad genuine issues of material fact exist regarding which company employed
Wesley Sherwood” because the record evidence “overwhelmingly and indisputably
established that Damascus 535 was Mr. Sherwood’s employer at the time of his
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death as a matter of law.” Br. Appellant 46–47; Bailey, 2016 WL 1271381, at *6.
This is precisely the kind of dispute that we have held Johnson forbids us from
reviewing.
We also have no appellate jurisdiction over the equitable estoppel decision.4
Damascus did not argue that we should take jurisdiction over the estoppel decision
alone. This makes sense. Because we lack jurisdiction to review the denial of
summary judgment regarding immunity, Damascus could only raise its employerimmunity defense at trial. Because Damascus cannot avoid suit, its immunity
defense is now functionally a merits defense. Thus, any holding related to it—
including the District Court’s ruling on equitable estoppel—is no more effectively
unreviewable than any run-of-the-mill summary judgment order barring any other
merits defense. See In re Mushroom Direct Purchaser Antitrust Litig., 655 F.3d
158, 167 (3d Cir. 2011) (holding that, because the defense at issue did not allow
the defendant “to avoid entirely the burden of litigation,” there was no collateral
order and no jurisdiction); see also Mitchell v. Forsyth, 472 U.S. 511, 525–26
(1985) (explaining that qualified-immunity orders were effectively unreviewable
because what was at stake was “an entitlement not to stand trial or face the other
burdens of litigation” (emphasis added)); cf. United States v. Wright, 776 F.3d 134,
4

Damascus argued we should modify the District Court’s ruling on disregarding
the corporate form because that ruling was bound up with the estoppel ruling.
Because we have no jurisdiction over the estoppel ruling, we do not consider the
veil-piercing ruling.
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141 (3d Cir. 2015) (adopting the rule of other courts of appeals that, in a criminal
case, “the touchstone for interlocutory jurisdiction is a collateral-estoppel claim
that, if successful, would require dismissal of, at a minimum, an entire count”).
For the reasons set forth above, we will dismiss the appeal for lack of
appellate jurisdiction. Bailey’s motion for leave to append exhibits to her brief is
denied as moot.

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