from the Order Entered February 27, 2017 In the Court of
Common Pleas of Lackawanna County Civil Division at No(s):
BEFORE: OTT, J., DUBOW, J., and STRASSBURGER [*] , J.
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). 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
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.
standard of review of an order granting summary judgment is
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).
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.
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
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.
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
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 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.
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 ...