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ARTHUR BACON v. JAMES TUCKER AND CITY CHESTER. APPEAL CITY CHESTER (09/21/89)

decided: September 21, 1989.

ARTHUR BACON
v.
JAMES TUCKER AND CITY OF CHESTER. APPEAL OF CITY OF CHESTER, APPELLANT



Appeal from Common Pleas Court, Delaware County; Honorable Edward S. Lawhorne, Judge.

COUNSEL

Cynthia A. McNicholas, Rankin, Brennan & Donaldson, Media, for appellant, City of Chester.

Leonard A. Sloane, with him, Mitchell S. Clair, Caine, DiPasqua, Sloane, Raffaele & Nigro, Media, for appellee, Arthur Bacon.

Doyle and Smith, JJ., and Barbieri, Senior Judge.

Author: Smith

[ 128 Pa. Commw. Page 576]

The City of Chester (City) appeals from the denial of a motion for summary judgment pursuant to an interlocutory order of the Court of Common Pleas of Delaware County dated May 23, 1988 subsequently amended by the trial court by order dated August 12, 1988*fn1 which permitted the City to file with the Superior Court of Pennsylvania a petition for permission to appeal. The Superior Court granted permission for such appeal on October 4, 1988. The appeal was thereafter transferred to the Commonwealth Court by per curiam order of the Superior Court on December 16, 1988.

The issue before this Court is whether the City or the County of Delaware is the employer of Arthur Bacon (Bacon), a summer employee referred to the City by the County of Delaware Office of Employment and Training (OET), and therefore entitled to immunity from suit pursuant to The Pennsylvania Workmen's Compensation Act (Act).*fn2

Bacon was injured on August 29, 1985 after falling from the back of a pickup truck owned by the City and used in its rodent control program where Bacon was employed for the summer. The truck was being driven by James Tucker (Tucker), an employee of the City on rodent control program business. At the time of the accident, Bacon was in the course of his employment with the City pursuant to the Summer Youth Employment and Training Program

[ 128 Pa. Commw. Page 577]

(SYETP), a federal job program under the Job Training Partnership Act*fn3 administered by OET. As a result of his accident, Bacon filed a negligence action against Tucker and the City seeking damages for personal injuries sustained. Motions for summary judgment were filed by Tucker and the City asserting immunity from suit under the Act. Summary judgment was granted in favor of Tucker only, resulting in the City's appeal.

This Court's scope of review in reviewing a grant or denial of summary judgment is limited to determining whether the trial court committed an error of law or abused its discretion. County of Schuylkill v. Maurer, 113 Pa. Commonwealth Ct. 54, 536 A.2d 479 (1988). For courts to enter summary judgment, the record must demonstrate that no genuine issue of material fact exists after an examination of the record in a light most favorable to the non-moving party. Jones v. Cheltenham Township, 117 Pa. Commonwealth Ct. 440, 543 A.2d 1258 (1988).

The question of whether an employer-employee relationship exists is one of law based upon findings of fact. While there is no set formula for determining the existence of an employer-employee relationship, this Court has held that the key element is the right to control the manner in which work is performed. However, each case must be decided on its own facts. City of Scranton v. Workmen's Compensation Appeal Board (Cimoch), 88 Pa. Commonwealth Ct. 64, 488 A.2d 648 (1985).

The City asserts that the determination of which governmental body is the employer for purposes of the Act should be governed by a Superior Court case which held that the "borrowed servant" doctrine, i.e., the entity that has actual control or the right to control the work to be done and the manner of its performance, determines the existence of an employer-employee ...


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