J-S56003-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PHILIP ADAMS, JR.,                              IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

DURA-BOND PIPE, LLC A/K/A DURA-
BOND PIPE, DURA-BOND INDUSTRIES,
INC. A/K/A DURA-BOND INDUSTRIES,

                            Appellee                 No. 498 MDA 2015


               Appeal from the Order Entered February 19, 2015
               In the Court of Common Pleas of Dauphin County
                    Civil Division at No(s): 2012 CV 480 CV


BEFORE: SHOGAN, JENKINS, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED NOVEMBER 06, 2015

       Philip Adams, Jr. (“Adams”), appeals from the February 19, 2015 order

granting the motion for summary judgment filed on behalf of Dura-Bond

Pipe, LLC, also known as Dura-Bond Pipe and Dura-Bond Industries, Inc.,

also known as Dura-Bond Industries (“Dura-Bond”). We affirm.

       The trial court set forth the relevant facts and procedural background

of this matter as follows:

             Before the Court is the Motion for Summary Judgment on
       behalf of [Dura-Bond], and [Adams’s] Response. Oral Argument
       was held on February 9, 2015.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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             This claim arises from an injury suffered by [Adams] on
        March 8, 2010, while he was working at the Steelton location of
        Dura-Bond. At the time of the injury [Adams] was on the payroll
        of an employment agency, Capital Impact, Inc. d.b.a. Express
        Employment Professionals (Express). [Adams] began working at
        Dura-Bond on March 4, 2010, after having been referred to
        Dura-Bond as a fabricator from Express. The referral was made
        pursuant to a contract between Express and Dura-Bond dated
        August 15, 2008.

Trial Court Memorandum and Order, 2/19/15, at 1-2.              The trial court

concluded that Adams was barred from filing suit against Dura-Bond because

he was a borrowed employee. As a borrowed employee, Adams’s exclusive

remedy was to pursue a claim under the Workers’ Compensation Act, 77

P.S. §§ 1-2708.     The trial court granted Dura-Bond’s motion for summary

judgment in an order filed on February 19, 2015, and this timely appeal

followed.    Both Adams and the trial court have complied with Pa.R.A.P.

1925.

        On appeal, Adams raises the following issues for this Court’s

consideration:

        1. Did the trial court err as a matter of law and abuse its
        discretion by finding that Adams was a borrowed employee of
        Dura-Bond?

        2. Did the trial court err by accepting disputed material facts as
        true?

Adams’s Brief at 6. Because Adams combines the argument on these issues

in his brief, we address the issues concurrently. Our scope and standard of

review are as follows:




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           Our scope of review of an order granting summary
     judgment is plenary. We apply the same standard as the trial
     court, reviewing all the evidence of record to determine whether
     there exists a genuine issue of material fact. We view the record
     in the light most favorable to the non-moving 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.

            Motions for summary judgment necessarily and directly
     implicate the plaintiff’s proof of the elements of his cause of
     action. Thus, a record that supports summary judgment will
     either (1) show the material facts are undisputed or (2) contain
     insufficient evidence of facts to make out a prima facie cause of
     action or defense and, therefore, there is no issue to be
     submitted to the fact-finder. Upon appellate review, we are not
     bound by the trial court’s conclusions of law, but may reach our
     own conclusions. The appellate Court may disturb the trial
     court’s order only upon an error of law or an abuse of discretion.

DeArmitt v. N.Y. Life Ins. Co., 73 A.3d 578, 585-586 (Pa. Super. 2013)

(internal citations and quotation marks omitted).

     Here, the trial court determined that Adams was a borrowed

employee.   A borrowed employee is defined as follows:

     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 considered, but is not a
     determinative factor. Although the examination of these factors
     guides the determination, each case must be decided on its own
     facts.

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Mullins v. Sun Co., Inc., 763 A.2d 398, 400 (Pa. Super. 2000) (citing JFC

Temps, Inc. v. Workers’ Compensation Appeal Board, 680 A.2d 862,

864 (Pa. 1996)) (emphasis added).

     Moreover:

     A statutory employer is a master who is not a contractual or a
     common-law one, but is made one by the Workers’
     Compensation Act. McDonald v. Levinson Steel Co., 302 Pa.
     287, 153 A. 424, 425 (1930). As our Commonwealth Court has
     explained, the statutory employer defense is a legal fiction,
     based entirely upon a statute passed in the early part of the
     twentieth century, created to assist the Pennsylvania worker by
     assuring coverage for that worker under the Workers’
     Compensation Act. Peck v. Del. Cty. Bd. of Prison
     Inspectors, 765 A.2d 1190, 1192 (Pa. Cmwlth. 2001).
     Specifically, statutory employer immunity arises from section
     203 of the Workers’ Compensation Act, which declares:

           An employer who permits the entry upon premises
           occupied by him or under his control of a laborer or
           an assistant hired by an employe or contractor, for
           the performance upon such premises of a part of the
           employer’s regular business entrusted to such
           employe or contractor, shall be liable under the
           Workers’ Compensation Act to such laborer or
           assistant in the same manner and to the same
           extent as to his own employe.

           77 P.S. § 52[.]

Shamis v. Moon, 81 A.3d 962, 969 (Pa. Super. 2013) (internal quotation

marks omitted).

     The trial court addressed the issue as follows:

           The Staffing Agreement between Express and Dura-Bond
     provides that Dura-Bond will supervise, direct, and control the
     work performed by Express’s Associates. (Staffing Agreement at
     ¶ 3). John Petty, shareholder and Chief Executive of Express,

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       testified that Dura-Bond was responsible to determine whether
       Express’[s] associate was working properly, both generally and
       specifically with regard to the work they would be performing for
       Dura-Bond. (Deposition of John Petty at pp. 22-23). Mr. Petty
       also agreed that associates were under the supervision, direction
       and control of a supervisor at Dura-Bond rather than Express.
       (Id. at p. 24).

            [Adams] testified during his deposition that a supervisor at
       Dura-Bond would tell him what needed to be done. (Deposition
       of Philip Adams at p. 19). Ryan [N]orris, who is a general
       manager at the Dura-Bond facility in Steelton, testified that he
       would supervise temporary employees, the work that they did,
       and the manner [in which] they performed it. (Deposition of
       Ryan [N]orris at p. 15-16.) Mr. [N]orris further testified that if a
       temporary employee did something incorrect he would dismiss
       them. (Id. at p. 16).

              Viewing the record in the light most favorable [to Adams],
       as we must, we find that Dura-Bond had right of control with
       regard to not only to the work that [Adams] performed, but also
       to the manner [in which] he performed it. Dura-Bond had the
       absolute right to select and discharge Express associates and to
       determine whether the associate had the skill or expertise
       required by Dura-Bond for the performance of the work. Dura-
       Bond had the absolute right to dismiss [Adams] as a worker at
       its facility at any time for any reason. While [Adams] had some
       skill as a welder and his wages were paid by Express, these
       factors do not outweigh Dura-Bond’s right of control over him.

Trial Court Memorandum and Order, 2/1/15, at 3-4 (internal quotation

marks omitted).1


____________________________________________


1
   Additionally, we point out that while Adams labels himself a skilled
employee, “the mere fact that the employee is skilled does not, in and of
itself, establish that the original employer has retained the right to control
the manner of performance of the work assigned.” Mullins, 763 A.2d at
401.




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     Adams disputes some of the factors that the trial court relied upon in

concluding that he was a borrowed employee. Adams claims that Dura-Bond

did not supervise or direct his work activities.   Adams’s Brief at 25-26.

Adams cites to an affidavit, which was attached to his answer to Dura-

Bond’s motion for summary judgment, wherein he stated as follows:

     6. Welding is skilled labor, requiring independent judgment and
     skill and not the kind of work in which another individual can
     instruct you on how to perform it.

     7. Fabrication work involves the reading and interpretation of
     plans, but requires the use of independent judgment and skill as
     to how those plans will be implemented. It is not simple “connect
     the dots” type work, but is rather analogous to how an
     independent builder follows plans drafted by an architect. Many
     independent decisions are required in following these plans.

     8. I was never given direction or supervision by the Defendants
     regarding how to follow the plans mentioned in the preceding
     paragraph.

     9. While at Dura-Bond, I was not directed on how to perform my
     welding or fabrication work, other than using plans. Instead, I
     used my own professional judgment.

Adams’s Affidavit, 11/13/14, at ¶¶ 6-9.

     Viewing this information in the light most favorable to Adams, it does

not negate the trial court’s findings.    The fact that Adams was a welder

possessing skills and utilizing independent judgment on his assigned tasks

does not support his position. Dura-Bond assigned Adams those tasks and




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supervised his work. Adams himself testified that a foreman at Dura-Bond2

provided the design drawings and told him what to do. N.T., Deposition of

Philip Adams, 1/15/14, at 19-28.

       Additionally, Adams argues that the testimony given by Dura-Bond’s

general manager, Ryan Norris, was in dispute, and therefore, the trial

court’s reliance on this testimony was in error.           Adams’s Brief at 26-27.

Specifically, Adams challenges that part of Norris’s testimony wherein he

stated that he had the right to, and in fact would terminate temporary

workers for poor performance.              Id.   Adams avers that the testimony

provided by Express’s Chief Executive, John Petty, refuted Norris’s testimony

regarding which party had the authority to terminate temporary employees.

Id.    However, after review, we agree with the trial court that Norris

unequivocally     testified   that    he   dismissed   poor-performing   temporary

employees.      Trial Court Memorandum and Order, 2/19/15, at 3; N.T.,

Deposition of Ryan Norris, 1/15/14, at 16.             Nothing in Petty’s testimony

refutes Norris’s statement.          Rather, the portion of Petty’s deposition that

Adams cites to is a hypothetical posed by Adams’s counsel:

       Q     Would you ever as a result of that pull someone off a
       particular job for a particular client, do you remember?

____________________________________________


2
  The foreman’s name is Mohamed Sadrafe. N.T., Deposition of Philip
Adams, 1/15/14, at 20; N.T., Deposition of Mohamed Sadrafe, 1/15/14, at
6-7. Sadrafe was Dura-Bond’s foreman at the time of Adams’s work
accident. Deposition of Mohamed Sadrafe, 1/15/14, at 7.



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     A       I do not recall that.

     Q      Do you not recall one way or the other, or you just don’t
     recall that? In other words, it may have happened, you just don’t
     know?

     A     Specifically in regards to Mr. Adams I do not recall a
     specific incident.

          Specific to other clientele, if there was attendance issues,
     them being late, them missing work, them having poor attitude
     or work ethics, there were associates I did pull off clients based
     upon my client’s directive, that is correct.

     Q     How about your associates, you said they’re people, you
     talk to them, if your associates expressed concern about a
     particular job, would you pull them off, based on what the
     associate told you could you pull the associate back?

     A     I do not recall an instance where that occurred, sir. It may
     have, but I do not recall that happening.

     Q     Do you believe you could have done that if someone said
     to you I hate this, I fear for my life, or whatever, that you could
     have pulled someone off?

     A    If that was the case, yes, sir, that would have been
     something that would have demanded a response.

N.T., Deposition of John Petty, 3/17/14, at 28-29.

     This testimony does not stand for the proposition that Express, or

Petty on behalf of Express, retained the authority to dismiss temporary

employees.     Rather, Petty testified that he would remove a temporary

employee at the client’s directive. It was not until Adams’s counsel posed

the question in terms of “fearing for one’s life” that Petty admitted that he

may remove an associate, and said “that would have been something that

would have demanded a response.”        Petty did not say he retained the

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control to dismiss an associate who was working for a client, and he did not

say that the client could not terminate the associate. Adams’s claim to the

contrary is meritless.

      After review, we agree with the trial court’s conclusion and rationale.

Adams was a borrowed employee.       Dura-Bond controlled the work Adams

performed and the manner in which Adams was to perform it. Mullins, 763

A.2d at 400.    Therefore, Dura-Bond was not liable to Adams in his tort

action, and Adams’s exclusive remedy was the Workers’ Compensation Act.

Accordingly, we affirm the order granting summary judgment in favor of

Dura-Bond.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2015




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