Minchin v. Tony Sanchez Ltd

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
GERALDINE MINCHIN,
Plaintiff,
v.
TONY SANCHEZ LTD.,
Defendant and
Third-Party Plaintiff,
v.
JD ECKMAN, et al.,
Third-Party Defendants.
CIVIL ACTION NO. 3:24-cv-00143
(SAPORITO, J.)
MEMORANDUM
This is 	a diversity 	action, 	brought 	by the 	plaintiff, 	Geraldine
Minchin, an individual Pennsylvania citizen, against the defendant, Tony
Sanchez Ltd. (“Sanchez”), a New Jersey corporation that builds and sells
custom 	truck 	bodies. 	Minchin 	asserts 	state-law 	product 	liability,
negligence, and breach of warranty claims against Sanchez concerning a
dump truck it had built and sold to a Pennsylvania corporation, Horwith
Trucks, Inc. (“Horwith”), which in turn sold the dump truck to Minchin’s
employer.
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On August 9, 2022, Minchin was operating the dump truck at a
worksite on I-476, which is part of the Pennsylvania Turnpike highway
system, just north of the Grange Road overpass in Carbon County,
Pennsylvania. At about 11:15 p.m., Minchin left the worksite and drove
the dump truck in a southerly direction in the southbound lane of the
Turnpike. Unbeknownst to Minchin, the dump body was in a raised and
dangerous position as she operated the dump truck. As a consequence,
the raised dump body of the dump truck collided with the Grange Road
overpass as she passed under it, causing Minchin to be injured.
In her complaint, Minchin alleges that, based on invoices, the dump
truck was to be equipped with a “body up light with buzzer” to alert the
operator of the dump truck if the dump body is in a raised position while
the truck is being driven on a highway. She alleges that the dump truck
she drove at the time of her injury was equipped with an ineffective body
up light. In particular, she alleges that the body up light was installed in
such a manner that the operator’s view of it was obstructed by the stick
used to raise and lower the dump body, and that it was installed
without
a buzzer.
Minchin commenced this federal civil action by filing her complaint
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against Sanchez on January 24, 2024.1
On June 3, 2024, Sanchez filed a third-party complaint in this
federal civil action, asserting common law indemnity and contribution
claims 	against 	Horwith 	and 	several 	other 	allegedly 	negligent 	joint
tortfeasors: 	(a) 	J.D. 	Eckman, 	Inc. 	(“Eckman”), 	a 	Pennsylvania
corporation and general contractor for the project where Minchin had
been working; (b) Mark Schwalm, an individual Pennsylvania citizen and
Minchin’s employer;2 (c) the Pennsylvania Turnpike Commission (the
“Commission”), an agency of the Commonwealth of Pennsylvania; and (d)
Duane 	Wilson, 	an 	individual 	Pennsylvania 	citizen 	and 	driver 	of 	a
Commission plow truck that struck Minchin’s body on the roadway after
she was ejected from the dump truck. In answering the third-party
complaint, each of the third-party defendants has cross-claimed against
each of the others for common law indemnity and contribution. In
addition, Eckman has asserted a cross-claim for contractual defense and
1 Minchin also commenced a substantially similar state-court action
against Horwith.
2 Based on the pleadings filed in both actions, Schwalm appears to
have been doing business as both “Breezewood Farms,” in which capacity
he purchased the dump truck, and “S & L Landscaping,” in which
capacity he employed Minchin.
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indemnity against Schwalm.
One of the third-party defendants, Mark Schwalm, has moved for
summary judgment on all claims against him. Doc. 83. The motion is fully
briefed and ripe for disposition.
There is no genuine dispute of material fact with respect to this
motion. At the time of the incident giving rise to this action, Mark
Schwalm was Minchin’s employer and coworker. She was injured in the
course of performing her work for Schwalm, who 	provided hauling
services as a subcontractor for general contractor Eckman.
Schwalm contends that, because he is both Minchin’s employer and
coworker, he is protected from liability by the Pennsylvania Workers
Compensation Act, 77 P.S. § 1
et seq. In relevant part, the Act provides
that:
In the event injury to an employe is caused by a third
party, then such employe . . . may bring their action at
law against such third party, but the employer, his
insurance carrier, their servants and agents, employes,
representatives 	acting 	on 	their 	behalf 	or 	at 	their
request shall not be liable to a third party for damages,
contribution, or indemnity in any action at law, or
otherwise, 	unless 	liability 	for 	such 	damages,
contributions or indemnity shall be expressly provided
for in a written contract entered into by the party
alleged to be liable prior to the date of the occurrence
which gave rise to the action.
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77 P.S. § 481(b).
Sanchez and Horwith point to the fact that Schwalm purchased the
truck from Horwith as “Mark Schwalm d/b/a Breezewood Farms,” and to
Minchin’s testimony that she had been employed by “S & L Landscaping,”
and they argue that two business entities are distinct from one another,
and thus the owner of the truck, “Mark Schwalm d/b/a Breezewood
Farms,” is not entitled to immunity under § 481(b). But it is undisputed
that 	both 	Breezewood 	Farms 	and 	S 	& 	L 	Landscaping 	are 	sole
proprietorships wholly owned by Mark Schwalm. As the Third Circuit
has recognized, “a sole proprietorship has no existence separate and
apart from its individual owner, and . . . it did not matter that [Schwalm]
traded under a name different than his own.”
Standard Fire Ins. Co. v.
Arnold, 27 Fed. App’x 125, 126 (3d Cir. 2002);
see also Bucchi v. Wachovia
Bank, N.A., 591 F. Supp. 2d 773, 782 (E.D. Pa. 2008) (“As a sole
proprietorship, 	EES 	has 	no 	existence 	separate 	and 	apart 	from 	its
individual owner.”). Moreover, the evidence of record—in particular, tax
and workers compensation documents—clearly establish that Minchin’s
employer was simply “Mark Schwalm.” Because there is simply no legal
distinction between “Mark Schwalm,” “Breezewood Farms,” or “S & L
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Landscaping,” this argument by Sanchez and Horwith is unavailing.
Based on the evidence of record, viewed in the light most favorable
to the non-moving parties, we conclude that the movant, Schwalm, is
entitled to immunity from liability for all common law indemnity and
contribution claims under the Pennsylvania Workers Compensation Act,
77 P.S. § 481(b).
In addition to a claim for common law indemnity and contribution,
Eckman has also asserted a cross-claim for contractual defense and
indemnity 	against 	Schwalm.3 	Eckman 	relies 	on 	an 	indemnification
provision in a “Subhauler Agreement” entered into between Eckman
(“Contractor”) and S & L Landscaping (“Subhauler”) on or about April 11,
2022. In relevant part, the agreement provides:
Without 	limitation 	to 	any 	other 	indemnification
provisions 	contained 	within 	this 	Subhauler
Agreement, Subhauler shall be liable for the acts of its
3 	In an exceptionally concise 	brief in opposition to Schwalm’s
motion, the Commission has joined and adopted Eckman’s arguments in
opposition to summary judgment. But the Commission has only asserted
common law indemnity and contribution cross-claims against Schwalm.
It has not asserted a similar contractual indemnity cross-claim, and it
has adduced no evidence of any contract between the Commission and
Schwalm upon which such a claim could be based. The Commission’s
reference in its brief to 	a contractual indemnity provision 	between
Eckman and the Commission is simply immaterial to Schwalm’s motion
for summary judgment.
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employees and/or its agents, and to the fullest extent
allowed by law, Subhauler shall hold harmless, defend
and indemnify Contractor from and against any claims,
damages, 	losses, 	fines, 	penalties 	and/or 	expenses,
including but not limited to claims of wrongful death,
and any related attorney’s fees (collectively referred to
as 	“losses”), 	arising 	from, 	in 	whole 	or 	in 	part,
Subhauler’s acts or omissions, or any such acts or
omissions 	of 	Subhauler’s 	agents, 	employees, 	sub-
subcontractors, 	or 	any 	party 	under 	Subhauler’s
supervision, 	in 	the 	performance 	of 	its 	work. 	This
indemnification includes any losses caused in part by
Contractor,
	but 	only 	to 	the 	extent 	that 	Subhauler
caused the loss.
Subhauler’s 	obligation 	to 	defend, 	indemnify, 	and
hold 	harmless 	Contractor 	is 	neither 	limited 	nor
abridged by Subhauler’s rights or immunities under
Pennsylvania’s Worker’s Compensation Act or similar
provisions in other jurisdictions pertaining to injuries
or 	deaths 	to 	its 	employees. 	This 	indemnification
obligation under this agreement shall not be limited by
a 	limitation 	on 	amount 	or 	types 	of 	damages,
compensation 	or 	benefits 	payable 	by 	or 	for 	the
Contractor 	or 	a 	Subcontractor 	under 	workers’
compensation 	acts, 	disability 	benefit 	acts 	or 	other
employee benefit acts.
Eckman Ex. A, at 3 (emphasis added), Doc. 89, at 11. Under this
language, 	it 	is 	apparent 	that 	Schwalm, 	doing 	business 	as 	S 	& 	L
Landscaping, has an obligation to defend and conditionally indemnify
Eckman for losses arising from, in whole or in part, any act or omission
of Schwalm.
See generally Kiewit E. Co. v. L & R Const. Co., 44 F.3d 1194,
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1199 (3d Cir. 1995).
“General indemnity language is insufficient to remove the bar to
recovery 	created 	by 	the 	exclusivity 	provision 	of 	the 	Work[ers’]
Compensation Act. The intent to indemnify against claims by employees
of the alleged indemnitor must clearly appear from the terms of the
agreement.”
Bethlehem Steel Corp. v. MATX, Inc., 703 A.2d 39, 43 (Pa.
Super. Ct. 1997);
see also Bookard v. Estee Lauder Cos., 443 F. Supp. 3d
561, 569 (E.D. Pa. 2020) (“For a written indemnity agreement to waive
an employer’s immunity under the Pennsylvania [workers compensation]
statute, the intent to indemnify against claims by employees of the
alleged 	indemnitor 	must 	clearly 	appear 	from 	the 	terms 	of 	the
agreement.” (internal quotation marks, brackets, and ellipsis omitted)).
“The provision must either explicitly state that it covers such claims, or
state that the employer’s indemnity obligations are not limited by the
protections of the Workers’ Compensation Act.”
Bookard, 443 F. Supp. 3d
at 573;
see, e.g.,
Kiewit E. Co., 44 F.3d at 1200–01 (provision stating that
obligation to defend and indemnify “shall not be limited by the provisions
of any Workers’ Compensation act or similar statute” sufficient to waive
immunity). In this case, it is clear from the language highlighted above
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that 	Schwalm 	has 	expressly 	waived 	employer 	immunity 	under 	the
Workers Compensation Act with respect to Eckman’s contractual defense
and indemnity claims.
In his reply brief, Schwalm argues, for the first time, that Eckman’s
contractual defense and indemnity claim is premature because there has
been no judgment against Eckman, and thus any such claim has not yet
accrued. It would be improper for us to grant summary judgment to
Schwalm on this new argument, raised for the first time in a reply brief,
without first giving Eckman an opportunity to respond.
See Alston v.
Forsyth, 379 Fed. App’x 126, 129 (3d Cir. 2010) (per curiam);
see also
United States v. Martin, 454 F. Supp. 2d 278, 281 n.3 (E.D. Pa. 2006) (“A
reply brief is intended only to provide an opportunity to respond to the
arguments raised in the response brief; it is not intended as a forum to
raise new issues.”). Regardless, Schwalm’s argument is not well taken,
as Rule 14 of the Federal Rules of Civil Procedure “patently contemplates
a defending party in federal court asserting claims for contribution and/or
indemnification before judgment is entered.”
Da Silva v. Temple Univ.
Hosp., Inc., 506 F. Supp. 3d 318, 326–27 (E.D. Pa. 2020).
Based on the evidence of record, viewed in the light most favorable
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to the non-moving parties, we are unable to conclude that the movant,
Schwalm, is entitled to immunity from liability for Eckman’s contractual
defense 	and 	indemnity 	claims 	under 	the 	Pennsylvania 	Workers
Compensation Act, 77 P.S. § 481(b).
For 	the 	foregoing 	reasons, 	Schwalm’s 	motion 	for 	summary
judgment will be granted in part and denied in part. The clerk will be
directed to enter judgment in favor of Schwalm and against defendant
Sanchez and third-party defendants Horwith, Eckman, the Commission,
and Wilson with respect to their common law indemnity and contribution
claims. The contractual defense and indemnity claim of third-party
defendant Eckman, however, will be permitted to proceed.
An appropriate order follows.
Dated: October 9, 2026
	s/Joseph F. Saporito, Jr.
JOSEPH F. SAPORITO, JR.
United States District Judge
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