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VIRTUE v. SQUARE D CO.

June 1, 1995

DANIEL E. VIRTUE, Plaintiff
v.
SQUARE D COMPANY, ADVANCED HANDLING SYSTEMS, Defendants



The opinion of the court was delivered by: WILLIAM W. CALDWELL

 Pending is the Defendant Square D Company's motion for summary judgment. We exercise jurisdiction pursuant to 28 U.S.C. § 1332.

 Plaintiff was employed by Olsten Corporation ("Olsten"), a temporary employment agency, and was assigned by Olsten to perform maintenance work at Defendant Square D Company's ("Square D") warehouse. He was injured while operating a motorized forklift at Square D. The forklift collided with the steel frame of a roller line (an apparatus similar to a conveyor belt) and seriously injured Plaintiff's leg. He instituted this action against Square D, alleging that it was negligent in failing to: properly instruct and train him in the operation of the forklift; properly supervise him in the operation of the forklift; regularly inspect and maintain the roller line; warn him of defective conditions in the roller line; and implement preventive measures to eliminate or reduce the hazard posed by the roller line. *fn1"

 II. Law and Discussion

 A. Standard for Summary Judgment

 Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." F.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In reviewing the evidence, facts and inferences must be viewed in the light most favorable to the nonmoving party. Matsushita Electric Industrial Co., Ltd., et al v. Zenith Radio Corp., et al, 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538, 553 (1986). Summary judgment must be entered in favor of the moving party "where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party . . . ." Matsushita, 475 U.S. at 586-87, 106 S. Ct. at 1356, 89 L. Ed. 2d at 552 (citations omitted).

 When a moving party has carried his or her burden under Rule 56, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . ." Matsushita, 475 U.S. at 586-87, 106 S. Ct. at 1356, 89 L. Ed. 2d at 552 (citations omitted). The nonmoving party "must present affirmative evidence in order to defeat a properly supported motion for summary judgment", and cannot "simply reassert factually unsupported allegations contained in [the] pleadings." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989) (emphasis in original) (citation omitted). However, "if the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, 477 U.S. 242, 249-50, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 212 (1986) (internal citations omitted).

 B. "Borrowed Servant" Doctrine

 Square D argues that it is immune from suit because it was plaintiff's "statutory employer" under the Pennsylvania Workmen's Compensation Act ("the Act"), 77 P.S. § 1 et seq. The Act is the exclusive method for securing compensation for injuries incurred in the course of employment if the person from whom compensation is sought is the claimant's employer. 77 P.S. § 481. In determining whether Square D was Plaintiff's statutory employer, "any factual discrepancies are for the trier of fact to resolve." Keller v. Old Lycoming Twp., 286 Pa. Super. 339, 345, 428 A.2d 1358, 1361 (1981). However, where, as here, the facts are not in dispute, "the issue of whether an employer is a 'statutory employer' for purposes of the Workmen's Compensation Act is properly the subject of a motion for summary judgment, as 'whether the facts as they are determined to exist constitute an employment relationship is strictly a question of law.'" Wilkinson v. K-Mart, 412 Pa. Super. 434, 437-38, 603 A.2d 659, 660-61 (1992) (citing Keller, 286 Pa. Super. at 345, 428 A.2d at 1361).

 The test for ascertaining the "true master" of a borrowed employee was set forth by the court in Wilkinson:

 
the crucial test in determining whether a servant furnished by one person to another becomes the employe of the person to whom he is loaned is whether he passes under the latter's right of control with regard not only to the work to be done but also to the manner of performing it.. . .
 
A servant is the employe of the person who has the right of controlling the manner of his performance of the work, irrespective of whether he ...

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