The opinion of the court was delivered by: Tucker, J.
Presently before the Court is Defendant's Motion for Summary Judgment (Doc. 17). Upon careful consideration of Defendant's Motion, Plaintiff's Answer to Defendant's Motion for Summary Judgment and Plaintiff's Cross-Motion for Summary Judgment (Doc. 18), Defendant's Response in Support (Doc. 19), Defendant's Response in Opposition to Plaintiff's Cross-Motion (Doc. 21), and Plaintiff's Reply (Doc. 22), for the reasons set forth below this Court will grant Defendant's Motion.
Plaintiff Richard Zaragoza, a temporary worker at BASF Construction Chemicals, LLC's (hereinafter "BASF") facility from June 21, 2007 through September 11, 2007, brings this personal injury suit against BASF for serious injuries he sustained while working at its facility.*fn1
At the facility, BASF engages in the manufacture, production and distribution of stucco products. Since BASF has taken over the facility, the building has developed certain defects including, but not limited to, leaks in the roof. These leaks permit rainwater to drip into the interior of the facility and down onto the floors, where part of the business operations of BASF are conducted. On September 11, 2007, Mr. Zaragoza, then an employee of a temporary labor service utilized by BASF, was working at the facility having been assigned to its Powder Department for the day. During the course of moving bags full of stucco from the conveyor system onto surrounding pallets, Mr. Zaragoza walked in the vicinity of the distribution area and stepped into a large accumulation of rainwater on the floor. This caused Mr. Zaragoza to slip, lose his balance and fall backward. Mr. Zaragoza landed on, and became entangled in, the moving conveyor system. This accident led to serious injuries to, and a functional loss of use of, Mr. Zaragoza's right forearm, wrist, hand, and fingers.
At the time of his fall, Mr. Zaragoza was an employee of Adecco USA, Inc., successor-in-interest to Adecco North America, LLC (hereinafter "Adecco") who was assigned to work at BASF pursuant to a national contract entitled "Preferred Agreement for Temporary Personnel Agency" signed in 2001 between BASF Corporation and Adecco (hereinafter "the Agreement"). Under the terms of the Agreement Adecco supplied temporary workers to help staff BASF Corporation subsidiaries and affiliates, including BASF. The Agreement set forth the responsibilities of both Adecco and BASF Corporation as respects the temporary workers. The Agreement essentially provided that Adecco would retain responsibility for all payroll services, workmen's compensation insurance, and day-to-day administrative services for temporary workers such as Mr. Zaragoza. Under the Agreement Adecco would charge BASF for a temporary worker's time, services and expenses after the worker completed and returned the requisite time cards to Adecco. The Agreement also established that Adecco would maintain ultimate control over the temporary employees placement and financial arrangements. Significantly, the Agreement specifically contemplated that BASF would retain exclusive control over the day-to-day direction and supervision of Adecco employees by providing that "[a]ll work performed by personnel shall be performed under the general direction of a BASF employee..." and that "[Adecco] shall cause its Personnel assigned to perform Work and Services for BASF to comply with BASF's rules and procedures...."
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" if it might affect the outcome of the case under governing law. Id.
A party seeking summary judgment always bears the initial responsibility of informing the district court of the basis of its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the movant's initial Celotex burden can be met simply by "pointing out to the district court that there is an absence of evidence to support the non-moving party's case." Id. at 325. After the moving party has met its initial burden, "the adverse party's response, by affidavits or otherwise as provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). That is, summary judgment is appropriate if the non-moving party fails to rebut by making 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." Celotex, 477 U.S. at 322. "[I]f the opponent [of summary judgment] has exceeded the 'mere scintilla' [of evidence] threshold and has offered a genuine issue of material fact, then the court cannot credit the movant's version of events against opponent, even if the quality of the movant's evidence far outweighs that of its opponent." Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Under Rule 56, the Court must view the evidence presented on the motion in the light most favorable to the opposing party. Anderson, 477 U.S. at 255.
B. "Borrowed Servant" Doctrine
BASF asserts that it is immune from Plaintiff's suit because it was Mr. Zaragoza's "statutory employer" as contemplated by the Pennsylvania Workmen's Compensation Act (hereinafter "the Act"). 77 P.S. § 1 et seq. In determining whether BASF was indeed Mr. Zaragoza's statutory employer, "any factual discrepancies are for the trier of fact to resolve." Keller v. Old Lycoming Twp., 286 Pa. Super. 339, 345 (1981). Furthermore, 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 (1992) (citing Keller, 286 Pa. Super. At 345).
It is well settled under Pennsylvania law that an employee's claims for damages against their employer, which arise from a personal injury are generally barred. 77 P.S. § 481. Thus, 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." Id.; Virtue v. Square D Company, 887 F. Supp. 98, 100 (M.D. Pa. 1995). Similarly, it is well established that a non-traditional employee is barred from recovery for a personal injury against his de facto employer. Mature v. Angelo, 97 A.2d 59, 60 (1953). This is because, under the "borrowed servant" doctrine, a person who is in the general employ of one employer may be transferred to the service of another employer in such a way that the transferred employee effectively becomes an employee of that second employer. Virtue, 887 F. Supp. at 100-01 (quoting Red Line Express Co., Inc. v. Worker's Compensation Appeal Board (Price), 588 A.2d 90, 93 (1991)) (citations omitted).
While there remains a factual presumption that a borrowed employee remains in the employ of his original employer, this presumption is rebuttable by evidence tending to show that the borrowing employer assumed and exercised "control" over the borrowed employee. North Penn Transfer Inc. v. Workmen's Compensation Appeal Board (Michalovicz), 61 Pa. Commw. 469, 475 (1981) (citations omitted). Hence, the critical test for ...