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March 18, 2004.

JOHN A. POYNER Plaintiff

The opinion of the court was delivered by: NORMA SHAPIRO, Senior District Judge


Plaintiff, John Poyner ("Poyner"), alleging claims of negligence and carelessness on the part of defendants Georgia-Pacific Corporation ("Georgia-Pacific") and Fort James Operating Company ("Fort James"), filed this action on March 17, 2003. Defendants moved for summary judgment on the ground that Poyner's claims were barred by the Pennsylvania Worker's Compensation Act, 77 P.S. § 481, because, at the time of his injuries, he was a "borrowed servant" of Georgia-Pacific, his statutory employer.*fn1 Page 2

I. Background

  Before daylight, on the rainy morning of March 13, 2001, Poyner suffered injuries to his knee and hand when he fell into a deep pothole, which he believed was a puddle, while working at the Georgia-Pacific facility located at 605 Kuebler Road in Easton, Pennsylvania ("Kuebler Facility"). At the time of his fall, Poyner was an employee of Labor and Logistics Management ("LLM") and was assigned to perform truck-driving services at the Kuebler facility.

  When he fell, Poyner was performing truck-driving services for Georgia-Pacific, pursuant to a January 11, 2001 Agreement between LLM and Georgia-Pacific. A Motor Vehicle Operator Lease Agreement ("the Agreement") provided that Georgia-Pacific leased operators from LLM to perform truck-driving services. The Agreement stated that LLM would provide Georgia-Pacific with "such Operators and Laborers as it may require to operate motor vehicle equipment, owned or leased by [Georgia-Pacific]." The Agreement enumerated the responsibilities of LLM and Georgia-Pacific respectively with regard to the leased operators. LLM retained responsibility for: all proper payroll deductions, including income tax and social security tax deductions; appropriate unemployment insurance; worker's compensation insurance coverage; preparation and filing of all required Page 3 governmental reports. LLM invoiced Georgia-Pacific weekly for operator leasing fees set by LLM. The Agreement stated LLM would bill Georgia-Pacific a minimum eight hour charge for vacation days, personal days, and holidays. LLM maintained ultimate control over the financial arrangements for the leased operators' employment.

  However, Georgia-Pacific retained exclusive control over the day-to-day direction and supervision of the operators. The Agreement provided:
At all times, [Georgia-Pacific] solely and exclusively is responsible for maintaining operational control, direction and supervision over motor vehicle carriage operations, including but not limited to scheduling and dispatching of the Operators and Laborers, routing directions, delivery instructions and all matters relating to day to day operation of the motor vehicles and transportation services.
Georgia-Pacific reserved the right to request substitute operators and laborers at any time it was dissatisfied with the services of those provided.

  LLM retained significant control over the daily activities of operators such as Poyner. LLM controlled whether Poyner worked at Georgia-Pacific's facility or another LLM customer's facility. At any time, Poyner or Georgia-Pacific could request Poyner's transfer from Georgia-Pacific, but only LLM had the authority to remove Poyner from the Georgia-Pacific job or to send him to Page 4 another location. If Poyner had a problem with Georgia-Pacific, LLM required him to address the problem through LLM, not directly with Georgia-Pacific. Georgia-Pacific could not stop LLM from removing Poyner from the Georgia-Pacific account.

  Georgia-Pacific was solely and exclusively responsible for scheduling and dispatching Poyner. Each day that he was assigned to work for Georgia-Pacific, Poyner reported directly to the Kuebler facility. At that hour, no Georgia-Pacific supervisors and/or employees were yet on duty (except for a guard with whom he had limited communication); Poyner received his daily job assignments by way of a scribble board or memos that were placed on his desk; and he knew which trucks were to be moved in the morning because he moved the same trucks all the time. The trucks driven by Poyner all had a Georgia-Pacific logo, but Poyner chose his own routes and was responsible for reporting the hours he worked.

 II. Discussion

  A. Standard of Review

  A party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is Page 5 entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. V. Catrett, 477 U.S. 317, 323, 325 (1986). The moving party may meet its initial burden simply by "pointing out to the district court that there is a lack of evidence to support the non-moving party's case." Id. at 323, 325. Once the moving party has met its initial burden, summary judgment is appropriate where the non-moving party fails to rebut with a factual showing "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id., at 325.

  "The issue of whether an employer is a `statutory employer' for purposes of the Worker'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." Virtue v. Square D Company, 887 F. Supp. 98, 100 (M.D. Pa. 1995).

  B. Borrowed Servant Doctrine

  Georgia-Pacific alleges Poyner's claims are barred by the Pennsylvania Worker's Compensation Act, 77 P.S. § 481. It is well-established under Pennsylvania law that an employee's claim for damages against an employer arising from a personal injury is Page 6 generally barred. Worker's Compensation Act, 77 P.S. § 481.*fn2 The Act is "the exclusive method for securing compensation for injuries incurred in the course of ...

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