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Michalesko v. Office Max

June 20, 2006


The opinion of the court was delivered by: Judge Jones



Pending before the Court is a Motion for Summary Judgment (doc. 35) filed by Defendant Office Max ("Office Max") on April 21, 2006. We also have before us a Motion for Summary Judgment (doc. 37) filed by Defendant Werner Enterprises, Inc. ("Werner") on May 2, 2006. For the reasons that follow, the Motions will be denied.


We initially note that we will, where necessary, view the facts and all inferences to be drawn therefrom, in the light most favorable to the nonmoving party, the Plaintiff, in our analysis of the pending Motions.

As we explained in our January 24, 2006 Order, this action arises out of a slip and fall accident that occurred on December 4, 2002 when Plaintiff James Michalesko ("Plaintiff" or "Michalesko") fell while loading a trailer at the Office Max Distribution Center in Hazleton, Pennsylvania. Plaintiff, an employee of APS Group, LLC ("APS"), a service that places individuals in temporary job positions, was loading a trailer when he allegedly slipped and fell on ice located on the floor of a trailer.

In or about August 2002, Plaintiff was hired by APS and assigned to Office Max's Distribution Center in Hazelton, Pennsylvania pursuant to a request by Office Max. On or about April 16, 2002, Office Max entered into an Agreement entitled "Outside Service Provider Agreement" ("the Agreement") with APS. Pursuant to the Agreement, APS as the "Contractor" was to provide to Office Max "one or more contract employees as requested by Office Max from time to time." (Rec. Doc. 36, Ex. B at 1). The Agreement makes clear that "Contractor shall instruct and require its employees and agents assigned to perform services for Office Max to abide by all rules and policies established by Office Max regarding appropriate conduct and behavior, including, without limitation, Office Max's anti-discrimination and anti-harassment policies." Id. Moreover, the "Independent Contractor" provision of the Agreement states that services provided by Contractor (APS) "shall be performed as an independent contractor, and not as an agent or employee of Office Max." Id. In that regard, APS is responsible for the supervision, control, compensation, benefits, withholdings, health, and safety of its employees and agents. Id.

On or about October 14, 2004, Plaintiff filed an action in the Court of Common Pleas of Luzerne County, Pennsylvania alleging personal injuries and damages as a result of the December 4, 2002 slip and fall incident. Plaintiff alleged that Defendants Office Max and Werner were negligent for failing to maintain the trailer and allowing the existence of a dangerous condition in the trailer. This matter was removed to the United States District Court for the Middle District of Pennsylvania on November 12, 2004.

In the complaint, Plaintiff asserts that his Office Max supervisor instructed him to use oil-dry on an icy area after he informed Office Max about this condition. As the Office Max Distribution Center did not have a sufficient quantity of oil-dry, Plaintiff placed what he had on the trailer. While removing a pallet on December 4, 2002, Plaintiff was allegedly caused to slip and fall, landing on his back. Following the December 4, 2002 accident, Plaintiff submitted claim petitions for worker's compensation benefits against both APS and Office Max. On February 5, 2004, the parties to Plaintiff's worker's compensation petitions stipulated that APS, and not Office Max, was the proper employer. The stipulation dismissed Office Max from the case. Workers' Compensation Judge Joseph B. Sebastianelli, relying upon said stipulation, ordered APS, not Office Max, to provide Plaintiff with worker's compensation benefits.

Plaintiff's action against Defendants Office Max and Werner alleges personal injuries and damages, including but not limited to cervical and lumbar herniations and related past and future wage loss, as a result of the December 4, 2002 accident.

On April 21, 2006 and May 2, 2006 respectively, Defendants Office Max and Werner filed the instant Motions for Summary Judgment, which have been briefed by the parties. Discovery concluded on April 21, 2006. The Motions are accordingly ripe for disposition.


Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." FED .R. CIV. P. 56(c); see also Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). The party moving for summary judgment bears the burden of showing "there is no genuine issue for trial." Young v. Quinlan, 960 F.2d 351, 357 (3d Cir. 1992). Summary judgment should not be granted when there is a disagreement about the facts or the proper inferences which a fact finder could draw from them. Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982).

Initially, the moving party has a burden of demonstrating the absence of a genuine issue of material fact. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). This may be met by the moving party pointing out to the court that there is an absence of evidence to support an essential element as to which the non-moving party will bear the burden of proof at trial. Id. at 325.

Federal Rule of Civil Procedure 56 provides that, where such a motion is made and properly supported, the non-moving party must then show by affidavits, pleadings, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue for trial. FED. R. CIV. P. 56(e). The United States Supreme Court has commented that this requirement is tantamount to the non-moving party making a sufficient showing as to the essential elements of their case that a reasonable jury could find in its favor. Celotex Corp., 477 U.S. at 322-23.

It is important to note that "the non-moving party cannot rely upon conclusory allegations in its pleadings or in memoranda and briefs to establish a genuine issue of material fact." Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 511 (3d Cir. 1994) (citation omitted). However, all inferences "should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912 (1993) (citations omitted).

Still, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)(emphasis in original). "As to materiality, the substantive law will identify which facts are material." Id. at 248. A dispute is considered to be ...

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