from the Order Entered February 19, 2019 In the Court of
Common Pleas of Montgomery County Civil Division at No(s):
BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.
an appeal from an order granting summary judgment in favor of
the defendant in a work-place personal injury action on the
grounds that the action was barred by the exclusive remedy
provision of Section 303(a) of the Workers' Compensation
Act (WCA), 77 P.S. § 481(a). For the reasons set forth
below, we affirm.
Burrell (Plaintiff) was injured on the premises of
Streamlight, Inc. (Defendant) on January 29, 2015 when he
fell during his work shift while disposing of trash in the
trash compactor at Defendant's facility. Complaint
¶¶9, 13-14; Burrell Dep. at 47-53, 66-67, 82-83.
Plaintiff was a temporary worker hired by Aerotek, Inc.
(Aerotek), a recruiting agency, and was placed by Aerotek to
work for Defendant as a temporary worker at Defendant's
facility. Complaint ¶¶4-6; Burrell Dep. at 26-32.
Plaintiff's injury occurred in the course and scope of
his employment and he has received workers' compensation
benefits for his injury. Plaintiff's Answers to
Defendant's Interrogatories Nos. 7, 29.
December 27, 2016, Plaintiff filed a negligence action
against Defendant alleging that his injuries were caused by a
dangerous condition of Defendant's facility. Defendant in
its answer to the complaint pleaded as an affirmative defense
that it was immune from suit under the WCA because Plaintiff
was acting as Defendant's employee or borrowed servant at
the time of the accident. Answer and New Matter
¶¶27-28. On November 28, 2018, following the
completion of discovery, Defendant moved for summary judgment
on two grounds, 1) that it was immune from tort liability
under the WCA and 2) that Plaintiff could not prove
negligence. The trial court granted Defendant's motion
for summary judgment on the ground that Defendant was
Plaintiff's employer under the borrowed employee doctrine
and was therefore immune under the WCA. This timely appeal
presents one issue for our review:
Did the Trial Court improperly grant Summary Judgment where
genuine issues of material fact existed as to the nature of
the relationship between the Appellant's actual employer
and the Appellee, rendering the Appellee ineligible to assert
Immunity under the Pennsylvania Workmen's Compensation
Brief at 6. Our standard of review of the trial court's
grant of summary judgment is de novo and the scope
of review is plenary. American Southern
Insurance Co. v. Halbert, 203 A.3d 223, 226 (Pa. Super.
303(a) of the WCA provides in relevant part:
The liability of an employer under [the WCA] shall be
exclusive and in place of any and all other liability to such
employes [sic], his legal representative, husband or
wife, parents, dependents, next of kin or anyone otherwise
entitled to damages in any action at law or otherwise on
account of any injury or death . . . .
77 P.S. § 481(a). Except in limited circumstances not
present here, an employer is therefore immune from tort
liability for injuries suffered by its employees that are
compensable under the WCA. Soto v. Nabisco, Inc., 32
A.3d 787, 790-91 (Pa. Super. 2011); O'Donnell v. R.M.
Shoemaker & Co., 816 A.2d 1159, 1162 (Pa. Super.
the borrowed employee doctrine, where a worker employed by
one company is furnished by that company to perform work for
another company, the latter company is his employer under the
WCA if it has the right to control his work and the manner in
which the work is done. JFC Temps, Inc. v. WCAB
(Lindsay), 680 A.2d 862, 864 (Pa. 1996); Gardner v.
MIA Products Co., 189 A.3d 441, 444 (Pa. Super.
2018); Mullins v. Sun Co., 763 A.2d 398, 400 (Pa.
Super. 2000); Wilkinson v. K-Mart, 603 A.2d 659, 661
(Pa. Super. 1992). The test for whether a company is the
worker's employer under the borrowed employee doctrine is
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. 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. 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. The payment of wages may be ...