The Pa. Supreme Court Has Upended Co-Employee Liability in Workers’ Comp Cases

The doctrine of co-employee immunity under the Pennsylvania Workers’ Compensation Act

Section 72 of the Act states that:

If disability or death is compensable under this act, a person shall not be liable to anyone at common law or otherwise on account of such disability or death for any act or omission occurring while such person was in the same employ as the person disabled or killed, except for intentional wrong.

The leading case law on Section 72 is the Pa. Supreme Court’s 1971 decision in Apple v. Reichert, 278 A.2d 482. In Apple, Ruth Apple was a passenger in a vehicle driven by Virginia Bonner. Both Apple and Bonner were school teachers with what is now the Centennial School District in Bucks County. The school’s practice was for Apple and Bonner to meet their classes at one school building, take the roll and lunch count, and then have the students transported by school bus to another building. Apple and Bonner could choose to travel to the other building by school bus or in their private vehicles.

Apple and Bonner were traveling to the other school building when their vehicle collided with another at an intersection. Apple filed a workers’ compensation claim against the school district and eventually entered into an agreement for compensation with the district’s workers’ compensation carrier. Apple also filed a personal injury lawsuit against Bonner.

Bonner cited Section 72 as a defense to Apple’s suit. The trial court determined that because both Bonner and Apple were acting within the scope of their employment, Bonner was entitled to immunity from Apple’s suit and entered a nonsuit.

On appeal, Apple argued she and Bonner were not in the “same employ” when the accident occurred. Apple argued that Section 72 applied only when a co-employee’s act or omission occurred within the scope of their employment. Apple contended that while Bonner was acting within the course of her employment, she was not acting within the scope of her employment. The Pa. Superior Court en banc agreed.

The Pa. Supreme Court rejected Apple’s argument. The court found that the evidence clearly showed that Apple and Bonner were both in the “same employ” because both were traveling from one place of employment to another during the workday, in furtherance of their job duties, in a manner approved by their employer. The court noted that Section 72 did not use the terms “course” or “scope” of employment and therefore declined to read them into the statute as considerations for whether immunity applied.

Although the court speculated that Section 72 was intended to immunize co-employees for workplace accidents where they were unlikely to have liability insurance—whereas Bonner had auto insurance for the accident—the court concluded that on these facts, Section 72 applied. Importantly, the Apple court was never tasked with addressing the Section 72 immunity interpretation where a co-employee clearly deviated from the furtherance of their employer’s business and acted outside the course and scope.

Importantly, the facts in Apple were such that it was evident that both Apple and Bonner were acting in furtherance of their employer’s business at the time of the accident. Both were traveling from one work location to another during the workday, performing assigned duties in a manner approved by the employer. Against that factual backdrop, the Pa. Supreme Court concluded as it did that Apple and Bonner were in the “same employ” for purposes of Section 72. Apple, therefore, did not squarely address the distinct question of whether Section 72 immunity extends when only the defendant co-employee’s allegedly negligent act or omission occurred within the course and scope of employment.

Brown v. Gaydos: A severe injury on the first day of employment

In Brown v. Gaydos, the Pa. Supreme Court revisited the scope of co-employee liability under Section 72 of the Act. John Brown was injured on the first day of his employment with American Concrete Solutions, Inc (“ACS”). Brown was severely injured when he attempted to enter a skid loader. One of the machine’s hydraulic arms caught his body, crushing him between the arm of the loader bucket and the top of the operator cab, and then dropping him to the ground.

ACS was owned by George Gaydos and his cousin, Mark Raymond. Before founding ACS, Gaydos had operated as a sole proprietorship under the name Gaydos Construction, which operated the skid loader that injured Brown. Gaydos and Raymond had agreed that they would provide their individually owned equipment to ACS as needed and that ACS would not pay for its use. Gaydos was not present on the job site at the time of Brown’s accident.

Brown filed a workers’ compensation claim against ACS, which ACS did not contest. He later filed a civil suit against Gaydos, alleging negligence in maintaining the skid loader and training the ACS employee who operated it. Gaydos moved for summary judgment, claiming immunity under the Act either as Brown’s employer or co-employee. The trial court ultimately granted Gaydos’ motion on reconsideration, finding that Gaydos, as co-owner of ACS, was Brown’s employer, or alternatively, was his co-employee.

Brown appealed to the Pa. Superior Court, which reversed and remanded. Citing Apple, the Superior Court held that co-employee immunity only applied when “both parties were . . . working for the same employer . . . performing acts in furtherance of their duties . . . in a manner approved by their employer.” The Superior Court found that there was a genuine issue of material fact whether Gaydos was acting in “the same employ” as Brown at the time of his accident.

The Superior Court highlighted three disputed material facts that precluded summary judgment. First, Gaydos operated a sole proprietorship that independently owned, insured, and performed maintenance on the skid loader, and he loaned it to ACS as needed, instructing ACS employees that he was to be its sole operator. Second, 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. Third, 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, but Brown did not sue Gaydos in his capacity as Brown’s employer or co-employee. Thus, the Superior Court held there was a genuine issue of material fact whether Gaydos was acting in the course of his performance of duties for ACS when he made the skid loader available for ACS’ use.

The Pa. Supreme Court, in a split decision, affirmed the Superior Court’s decision in a majority decision penned by Justice Mundy.

Gaydos argued he was entitled to immunity as Brown’s co-employee because Section 72 provides immunity to co-employees who are “in the same employ” as the injured worker, and Apple broadly interpreted Section 72’s “in the same employ” as covering all employees employed by the same employer. Gaydos further argued that Apple rejected arguments that the co-employee must be acting in the course and scope of their employment with the injured worker.

Brown, on the other hand, argued that Section 72’s language hinges immunity on a connection between the defendant co-employee’s negligence and their employment duties. He noted that in Apple, the court interpreted the phrase “in the same employ” within the factual context of both employees acting within the course and scope of their employment when the negligent act or omission occurred. According to Brown, “the act or omission that caused the harm must have occurred while the defendant was ‘in the same employ’ such that co-employee immunity does not extend to conduct ‘completely divorced from workplace duties.’”

The Pa. Supreme Court sided with Brown, holding that Section 72 and Apple did not provide the broad immunity Gaydos advocated. Regarding Section 72, the court held that the Act “contains a temporal requirement for its grant of immunity because it provides immunity for any act or omission ‘occurring while’ the allegedly liable person was ‘in the same employ’ as the injured worker.” The court explained that for a co-employee to establish immunity under Section 72, they must establish that the act or omission forming the basis of civil liability occurred while the defendant was in the same employ as the injured party.

As for Apple, the court held its decision there defined “in the same employ” by highlighting facts showing the parties were acting within the course and scope of their employment at the time of injury. Thus, in the court’s view, Apple did not interpret “in the same employ” to grant unlimited immunity to co-employees; the Apple court viewed that immunity as requiring the parties to be acting within the course and scope of their employment at the time of an injury.

Applying Section 72 to the record before it, the court agreed with the Superior Court that there was a genuine issue of material fact regarding whether Gaydos’s allegedly negligent maintenance and inspection of the skid loader occurred within Gaydos’s separate role as an individual or as the owner of a sole proprietorship.

Justice Brobson concurred and dissented from the majority opinion. He agreed with the majority that there was a genuine issue of material fact whether Gaydos was “in the same employ” as Brown at the time of his alleged negligent acts, but Justice Brobson noted his disagreement with the majority’s approach of considering whether an injured worker was injured in both the course of employment and the scope of employment. In his view, only the scope of employment was relevant.

Justice Wecht dissented from the majority opinion. He argued the majority had misconstrued Apple to hold that the co-employee was immune under the Act because she was acting in the course and scope of her employment. In Justice Wecht’s view, Apple held Section 72 protected co-employees in all situations in which their negligent conduct injures a fellow employee, provided that the injury qualifies as compensable under the Act. Thus, he rejected the majority’s characterization of co-employee immunity as dependent on both the course and scope of employment. Although he acknowledged that there was a temporal element to Section 72, Judge Wecht argued that the relevant act or omission in the case was the use of the skid loader, which occurred while Brown and Gaydos were furthering the business of their employer, ACS.

A practical effect of the narrower co-employee immunity for workplace accidents

With the Pa. Supreme Court’s decision here in Brown, sharing an employer with an injured worker, on its own, is no longer enough for a co-employee to escape liability when their negligence allegedly caused the worker’s injuries. Instead, to successfully assert co-employee immunity to a civil negligence action, the defendant co-employee must establish that: (1) the injury was compensable under the Pa. Workers’ Compensation Act and (2) the allegedly negligent act or omission forming the basis of civil liability occurred while the defendant was acting in the course and scope of the employment.

This limitation protects Pennsylvania’s workers. No longer can negligent co-employees receive a ticket to statutory immunity merely because they share an employer with their injured colleague. Through its holding in Brown, the Pa. Supreme Court rightly forces negligent co-workers to earn that immunity by drawing a short, taut line between the activity they engaged in when the injury occurred and the activities they were hired to perform that further their employer’s affairs. Under Brown, injured workers in the commonwealth can pursue civil claims against their co-employees when those co-employees engage in negligent conduct having little or no connection to their employer’s affairs or the job they were hired to do.

It’s easy to envision a scenario where Brown could come into play. Imagine that, during the workday, your client’s co-worker recklessly drives a work vehicle in violation of Pennsylvania law, injuring your client. Your client may be entitled to workers’ compensation benefits because the injury occurred in the course of employment. Depending on the specific facts of the case, the reckless co-worker’s conduct may also support a third-party recovery under that co-worker’s automobile insurance, and potentially under other liability coverage, because the negligent act may fall outside the protection of Section 72.

Vladimir Dorash is a workers’ compensation attorney at Pond Lehocky Giordano, Inc., the largest workers’ compensation and social security disability law firm in Pennsylvania, and one of the largest in the U.S. He can be reached at vdorash@pondlehocky.com.

Reprinted with permission from the April 16, 2026 edition of The Legal Intelligencer © 2026 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.