The opinion of the court was delivered by: MENCER
GLENN E. MENCER, UNITED STATES DISTRICT JUDGE
This case arises out of an accident occurring at a logging site in Allegheny National Forest. A dead birch tree fell and struck William Rolick, injuring him severely. The defendants have filed a motion for summary judgment based on assumption of risk and tort immunity under the Pennsylvania Workmen's Compensation Act, 77 P.S. § 1 et seq. This motion is presently before this court.
In August, 1983, the defendants (Kane Hardwood) and the United States Department of Agriculture, Forest Service (Forest Service) entered into a Timber Sale Contract. Under the terms of this contract, the Forest Service agreed to sell timber to Kane Hardwood and to allow Kane Hardwood to cut and remove that timber from a specified tract of land.
In October, 1983, Kane Hardwood entered into a Logging Services Agreement with Nortim Corporation (Nortim) under which Nortim would perform logging operations for Kane Hardwood as a subcontractor. The agreement authorized Nortim to hire independent subcontractor loggers to cut and haul the timber. Nortim agreed to monitor the loggers, to secure worker's compensation insurance for the loggers, and to teach and monitor safety practices.
Nortim subsequently entered into a Cutting and Hauling Agreement with William Rolick (Rolick). Under this agreement, Rolick was to cut and haul the trees designated by Nortim. The agreement stated that Rolick was a contractor and described the relationship as follows:
Contractor shall supply all labor, tools and equipment required in the performance of this Contract, and shall provide all fuel, oil, grease, accessories, repairs and other items required in the operation of such tools and equipment. Contractor shall have the sole right to hire, fix the wages and hours of, supervise, discipline and discharge its employees, free from interference, direction, or control by Nortim, and shall be solely responsible for the methods used and the manner in which all obligations of the Contractor hereunder are fulfilled. It is the intention of Nortim and of Contractor that under no circumstances whatever shall Contractor, his employees, his subcontractors or their employees be considered employees of Nortim for any purpose.
Appendix to Defendant's Motion for Summary Judgment and Brief in Support Thereof, Exh. D, para. 9.
In January, 1985, Rolick was felling maple trees pursuant to the agreements. One or two of the maple trees allegedly landed on a birch tree, causing the birch tree to become "disturbed." Rolick allegedly examined the birch tree, then decided it was safe to continue working near the tree. When he felled a cherry tree located down hill from the birch, the impact of the cherry tree seems to have caused the birch tree to fall. The birch tree landed on Rolick, causing him severe injuries.
A. Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure provides that the court shall grant summary judgment if, upon a review of the materials properly before the court, "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Summary judgment may be granted in spite of some alleged factual disputes between the parties because Rule 56(c) requires only that there be no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). While a court must view the evidence in the light most favorable to the non-moving party, Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983), the court must grant summary judgment "against a party who fails to establish the existence of an element essential to that party's case, and on which that ...