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Gardner v. Mia Products Co.

Superior Court of Pennsylvania

May 30, 2018

ERIC GARDNER Appellant
v.
MIA PRODUCTS COMPANY, DONETTA FOODS, INC., AND J & J SNACK FOODS CORP/MIA

          Appeal from the Order Entered February 27, 2017 In the Court of Common Pleas of Lackawanna County Civil Division at No(s): 11-CV-1560

          BEFORE: OTT, J., DUBOW, J., and STRASSBURGER [*] , J.

          OPINION

          OTT, J.

         Eric Gardner appeals from the order entered in the Court of Common Pleas of Lackawanna County, on February 27, 2017, granting summary judgment in favor of MIA Products Company and J & J Snack Foods Corp./MIA (MIA).[1] The trial court determined that Gardner was a borrowed servant of MIA and, therefore, not entitled to file a tort claim against the company for injuries allegedly suffered while working there. In this timely appeal, Gardner raises two claims. First, he argues the trial should not have looked beyond the fact that he was not a statutory employee of MIA. Second, Gardner argues the trial court erred in concluding he was borrowed employee of MIA.[2] After a thorough review of the submissions by the parties, relevant law, and the certified record, we agree that there are open issues of fact that prevent the proper grant of summary judgment. Accordingly, we reverse the order granting summary judgment and remand for trial.

         Our standard of review of an order granting summary judgment is as follows:

We view the record in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered. Our scope of review of a trial court's order granting or denying summary judgment is plenary, and our standard of review is clear: the trial court's order will be reversed only where it is established that the court committed an error of law or abused its discretion.

Good v. Frankie & Eddie's Hanover Inn, LLP, 171 A.3d 792, 795 (Pa. Super. 2017) (citation omitted).

         Many of the underlying facts in this matter are not in dispute. Gardner was an employee of DelVal Staffing (DelVal), a temporary employment agency. Gardner was assigned to work at MIA as a freezer/packer. His work consisted of taking food items from a walk-in freezer to be packed for shipment. While performing these tasks, Gardner fell on a slippery spot in or near the freezer. He received workers' compensation benefits from DelVal, and then filed a complaint alleging negligence against MIA. Following discovery, MIA moved for summary judgment, claiming Gardner was a "borrowed employee" and was, therefore, ineligible to file a tort action pursuant to the Workers' Compensation Act (WCA), 77 P.S. § 481(a). What is currently in dispute is the determination of who was Gardner's employer - solely DelVal or DelVal and MIA.

         Gardner's first claim is that because MIA was not his statutory employer, he is not limited to collecting workers' compensation benefits as the sole remedy for his injuries. This argument is not on point, as the trial court did not base the grant of summary judgment on whether MIA was Gardner's statutory employer. Indeed, by our review, MIA never claimed to have been Gardner's statutory employer. Rather, MIA's motion for summary judgment was based on his assertion that Gardner was a borrowed employee, not a statutory employee.

          Indeed, there are differences between being a statutory and borrowed employee. See Shamis v. Moon, 91 A.3d 962, 969-70 (Pa. Super. 2013). Essentially, the borrowed employee (servant) doctrine is simply an outgrowth of common law, with common law factors that are required to be met to entitle one to the protection of the WCA. There are separate, statutory, requirements that must be met to satisfy the definition of a statutory employee. The differences between the two are immaterial to the resolution of this matter, as MIA never claimed to be a statutory employer. However, despite different requirements, both borrowed and statutory employees are entitled to the benefits and limitations of the Workers' Compensation Act. Id.

         Next, we examine the question of whether the trial court correctly determined Gardner was a borrowed employee of MIA.

The law governing the "borrowed" employee is well-established. The test for determining whether a servant furnished by one person to another becomes the employee 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. Hamler v. Waldron, 445 Pa. 262, 265, 284 A.2d 725, 726 (1971); Mature v. Angelo, 373 Pa. 593, 595, 97 A.2d 59, 60 (1953). The entity possessing the right to control the manner of the performance of the servant's work is the employer, irrespective of whether the control is actually exercised. Mature, 373 Pa. at 596, 97 A.2d at 60. Other factors which may be relevant include the right to select and discharge the employee and the skill or expertise required for the performance of the work. Id. at 597, 97 A.2d at 60. The payment of wages may be considered, but is not a determinative factor. Venezia v. Philadelphia Electric Company, 317 Pa. 557, 177 A. 25 (1935). Although the examination of these factors guides the determination, each case must be decided on its own facts. Daily Express, Inc. v. Workmen's Compensation Appeal Board, 46 Pa.Commw. 434, 406 A.2d 600 (1979).

JFC Temps, Inc. v. WCAB (Lindsay), 680 A.2d 862, 864 (Pa. 1996).

         Pursuant to our standard of review, we are required to examine the facts in the light most favorable to the non-moving party, Gardner. In determining that MIA was Gardner's employer, the trial court reasoned as follows:

A careful application of the above standards[3] to the facts in this case reveals that, regardless of DelVal Staffing's right to control, [MIA] had the clear right to control [Gardner] as an employee.

Trial Court Opinion, 2/27/2017 at 5.

         This statement is unaccompanied by citation to the record. However, the trial court continued:

In terms of performance of the actual work, [Gardner] was directed by [MIA]. (See generally, Exhibit "A", pp. 98, 107-109.) [MIA] directed [Gardner] as to which product he would be stacking and placing on pallets. [MIA] also directed [Gardner] as to how to place different sizes of boxes on the pallets and how high to operate the "cage door" of the elevator. One of [MIA's] supervisors was always present with [Gardner] while he was working in the freezer, and, by [Gardner's] own admission, that supervisor ...

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