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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    MARC MATRANGA,                               :   IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                       Appellant


                 v.


    U -HAUL
          COMPANY OF                             :   No. 1067 EDA 2017
    PENNSYLVANIA

               Appeal from the Order Entered February 15, 2017
      In the Court of Common Pleas of Philadelphia County Civil Division at
                      No(s): March Term, 2015, No. 04019


BEFORE:       PANELLA, J., LAZARUS, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                                              FILED JUNE 22, 2018

        Marc Matranga appeals from the trial court's order granting summary

judgment in favor of Appellee,      U -Haul   Company of Pennsylvania (U -Haul), and

dismissing Matranga's complaint with prejudice.                        After careful review, we

affirm.

        On March 31, 2015,         Matranga instituted the underlying negligence

action against    U -Haul   after he was injured in      a   July 2013 forklift accident. At

the time of the accident, Matranga was working as                  a   welder helper at the Falls

Manufacturing Company (Facility) in Fairless Hills, one of                  U -Haul's   production

facilities. The Facility manufactures parts for              U -Haul    trailers. Matranga was

employed by McGrath Technical Staffing, Inc.,                  a   staffing agency.       McGrath

would hire workers and assign them to various temporary positions to perform

work at the Facility with its client,         U -Haul.       In 2013, McGrath executed           a




      Retired Senior Judge assigned to the Superior Court.
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Staffing Services Contract (Contract) with               U -Haul   that included     a   waiver

provision wherein Matranga waived his right to pursue               a   claim against    U -Haul


for any workplace injuries.            The Contract also specified that "All workers

assigned to    U -Haul   are employees of [McGrath] and that such workers are not

employees of     U -Haul."     2013 Staffing Services Contract, 4/9/13, at ¶ 2. On

the date of the accident, Matranga's job was to load parts onto                 a   cart, push

them to   a   welding station, and then unload the parts.

        At the time of the accident, Matranga was holding an electrical line out

of the way of      a   forklift being operated by        U -Haul   employee, Jose Molina.

Molina crashed the forklift into         a    stack of steel frames, which then fell over

onto Matranga. Matranga suffered serious and permanent injuries from the

accident, including:     a   tear of his labrum; pelvic injury; disc protrusion; lumbar

sprain and strain; and back and hip pain. As            a   result of the injuries, Matranga

alleged he had suffered          a   significant loss of wages and income, suffered

permanent impairment, and will continue to incur medical expenses related to

his treatment.

        On September 6, 2016, U -Haul filed a motion               for summary judgment

claiming that it was not liable for Matranga's injuries based on the defenses

of statutory employer, co -employee, borrowed servant and contractual

waiver/release. Matranga filed          a    response to the motion, claiming that he was

specifically designated as      a    McGrath employee under the parties' contract, he

was functionally an employee of McGrath because the staffing service

exercised control over him and his work, and that any contractual waiver was

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ineffective. On February 15, 2017, the trial court entered its order granting

U -Haul's    motion and dismissing Matranga's complaint with prejudice.       This

timely appeal follows.' On appeal, Matranga presents the following issues for

our consideration:

        1. Whether U -Haul should be denied status as the statutory
        employer of Marc Matranga, where U -Haul is unable to establish
        the factors for statutory employment status under the
        McDonald[v. Levinson Steel Co., 153 A. 424 (Pa. 1930)] test,
        and where both the contract between U -Haul and Mr. Matranga's
        employer, McGrath, and the evidence of record clearly
        demonstrate that McGrath, not U -Haul, was Mr. Matranga's
        employer and both had the right of control and, in fact, exercised
        such control, over Mr. Matranga and his work?
        2. Whether U -Haul should be denied immunity on the basis of the
        alleged co -employee status of Marc Matranga and Jose Molina,
        where the evidence of record clearly demonstrates that Mr.
        Matranga was an employee of, and controlled and supervised by,
        McGrath, and Mr. Molina was an employee of, and controlled and
        supervised by, U -Haul, each performing different work functions
        under separate control?
        3. Whether U -Haul's contention that Marc Matranga is a borrowed
        servant must fail, where the contract between U -Haul and
        McGrath expressly provides that Mr. Matranga was an employee
        of McGrath, and where the contract and evidence of record clearly
        demonstrate that McGrath had the right of control and, in fact,
        exercised such control, over Mr. Matranga and his work?
        4. Whether U -Haul's contention that Marc Matranga contractually
        waived and released all claims against U -Haul must fail, where the
        document relied upon by U -Haul was not the same document
        which Mr. Matranga was given and signed, U -Haul was not the
        party purportedly released in the document, Mr. Matranga's
        signature to this contract of adhesion was procured under duress,



' Matranga filed a motion for reconsideration on February 24, 2017, which the
trial court denied as moot, on March 22, 2017, once he filed his timely notice
of appeal on March 13, 2017.

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        and  U -Haul failed to plead waiver of release as an affirmative
        defense in its answer to the complaint?
Appellant's Brief at 6-7.

        Our standard of review in cases of summary judgment is well settled.

This court will only reverse the trial court's entry of summary judgment where

there was an abuse of discretion or an error of law.                      Merriweather    v.

Philadelphia Newspapers, Inc., 684 A.2d 137, 140                         (Pa. Super. 1996).

Summary judgment          is   proper when the pleadings, depositions, answers to

interrogatories, admissions on file, and affidavits demonstrate that there

exists no genuine issue of material fact and the moving party is entitled to

judgment as      a   matter of law. Pa.R.C.P. 1035.2. In determining whether to

grant summary judgment            a   trial court must resolve all doubts against the

moving party and examine the record in                 a    light most favorable to the non-

moving party.        Id. Summary judgment may only                be granted in cases where

it is clear and free from doubt that the moving party is entitled to judgment

as a   matter of law. Id.

        Matranga first claims that         U -Haul         was not his statutory employer

because it did not prove the elements of such                    a   theory and because the

parties' contract and the evidence of record clearly demonstrate that McGrath

was Matranga's employer, having both the right of control and actually

exercising such control over his work.

        Pennsylvania's Workers' Compensation Act (the Act) provides the

exclusive remedy for employees seeking to recover from their employers for

work -related injuries. See 77 P.S.        §   481. Under the Act, the term "employer"

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also refers to those who qualify as                a   statutory employer. Id. at          §   52.   A

statutory employer        is   defined under the Act as:

        An employer who permits the entry upon the 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 to such laborer or
        assistant in the same manner and to the same extent as to his
        own employe.

Id. "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."                            Shamis v.
Moon, 81 A.3d 962, 969 (Pa. Super. 2013), citing McDonald v. Levinson
Steel Co., 153     A.   424, 425 (Pa. 1930).

        In McDonald, our Supreme Court established the test for determining

whether    a   party qualifies as     a   statutory employer under the Act.2 According

to McDonald,       a    party must establish the following elements to qualify as                    a

statutory employer: (1) an employer who                    is   under contract with an owner or

one in the position of an owner; (2) the premises is occupied by or under the

control of such employer; (3)             a   subcontract made by such employer; (4) part

of the employer's regular business entrusted to such subcontractor; and (5)

an employee of such subcontractor.                Kelly    v.    Thackray Crane Rental, Inc.,
874 A.2d 649, 655 (Pa. Super. 2005).

        Instantly, the trial court found that              U -Haul         was Matranga's statutory

employer, where it concluded that:                     U -Haul    had a contract with McGrath,


2          203, as amended 77 P.S. § 52 (Employers' liability to employe of
     77 P.S.   §
employe or contractor permitted to enter upon premises).
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Matranga's employer; the Facility was occupied by                                U -Haul;   there was   a

subcontract made by           U -Haul;      part of   U -Haul's       regular business was entrusted

to McGrath; and Matranga was an employee of McGrath.                                   See Affidavit of

Michael     P.   Wiley, CEO of McGrath Technical Staffing, Inc., 7/27/16, at                        ¶ 2

(averring that in 2013 McGrath contracted with                         U -Haul   to provide its workers

for assignment at        U -Haul's     Fairless Hills facility on as -needed basis and for

duration to be determined solely by                   U -Haul).

         John Kathrins,       a   "lead man" in the welding department at the Facility,

stated in his deposition that his day-to-day duties consisted of:                            setting the

workers up on jobs, teaching them the jobs, making sure the job at hand was

being done correctly, making sure the workers have all their parts, making

sure the parts are correct, and making sure any needed fixtures are at the

stations. Deposition of John Kathrins, 5/20/16, at 11.                            Kathrins also stated

that     U -Haul   would have made the decisions regarding what assignments

Matranga, as       a   laborer, would have throughout his shift, id. at 34, and that

McGrath was not "involved in any of the day-to-day control over the temporary

workers in [the] welding department."                      Id.   at 35-36. Finally, Matranga stated

in his   affidavit that his       U -Haul    supervisor would meet with the welders daily,

discuss what they were going to make in                          a   given day, what trail they were

making, and how many pieces had to be completed. See Affidavit of Marc

Matranga, 4/20/16, at 149-152. McGrath was not responsible for training any

of the welders.        Id.   at 197.



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        Under such circumstances, we agree with the trial court that            U -Haul   was

Matranga's statutory employer.              See Kelly, supra at 657 (employer

effectively occupies premises for purposes of section 52 of the Act when its

supervisor   is   present at site on daily basis and when its employees are

regularly present on premises at same time as subcontractor's employees);

see also Wilkinson v. K-Mart, 603 A.2d 659 (Pa. Super. 1992) (plaintiff,                     a

truck driver, qualified as   K -Mart's   statutory employee where: plaintiff's direct
employer had contract with       K -Mart   to supply it truck drivers;    K -Mart   reserved

right to dispatch vehicle given to plaintiff to drive and to direct plaintiff        in   day-

to-day operations of vehicle; and          K -Mart   not only controlled the work to be

done, but also controlled manner of performance by selecting the routes to be

used).3

        Matranga next asserts that because the Contract specified that McGrath

was his employer and that he was not an employee of                 U -Haul,   he cannot be

considered to be    U -Haul's   statutory employee and      is   not precluded in bringing

a   negligence action against U-Haul.4 We disagree.



3  Having determined that U -Haul was Matranga's statutory employer,
Matranga is also barred from pursuing a tort action against his co -employee,
U -Haul worker Jose Molina. See 77 P.S. § 72 (person not liable to anyone at
common law on account of disability for any act or omission occurring while
he or she in same employ as person disabled except for intentional wrong).

4 Because we have concluded that U -Haul was Matranga's statutory employer,
there is no need to further review the merits of his remaining claims that
involve the alternative legal bases the court relied on in granting summary
judgment in U -Haul's favor. However, to stave off any further appeals in the
matter, we have decided to review the issues.
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        In Pastore v. Anjo Consr. Co., 578 A.2d 21 (Pa. Super. 1990), our

Court explained that we are not controlled by the names that parties use in             a

contract to describe their relationship. Rather, courts must look to the entire

body of the contract and its purpose to determine the legal effect.           Id. at   25

(quoting Capozzoli v. Stone & Webster Engineering Corp., 42 A.2d 524,

525 (Pa. 1945)). Here, the evidence clearly showed that there was         a   statutory
employer -employee relationship between       U -Haul   and Matranga; the language

of the parties' Contract does not change that legal conclusion.

        The court also determined that Matranga was       a   borrowed servant where

U -Haul   controlled the work he performed.        The test for determining the

identity of the "true" master when       a   servant has been loaned to another

focuses on the right of control:

        The crucial test in determining whether a servant furnished by one
        person to another becomes the employe 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.
        A servant is the employe of the person who has the             right of
        controlling the manner of his performance of the work,
        irrespective of whether he actually exercises that control or not.

Wilkinson v. K-Mart, 603 A.2d 659, 661              (Pa. Super.      1992) (citations

omitted) (emphasis added and in original).

        Specifically, the evidence showed that:    U -Haul    chose the departments

to which Matranga was assigned; Matranga reported to floor supervisors, who

were   U -Haul   employees, with work concerns, when he ran out of work or when


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he left his    workstation; and    U -Haul   employees assigned Matranga with tasks,

trained Matranga how to perform them, and reviewed Matranga's work.

Matranga stated that the plant manager would have                  a   daily meeting every

morning with the welding department workers to discuss what they were

making, which trailer parts they were making, and how many pieces had to

be completed. The manager would then follow up during the day and give the

welders the specific details as to what was actually being made or expected.

When Matranga first started working in the welding department,                     U -Haul


employee Jose Molina would direct him in his duties, with the general guidance

of   U -Haul   welding supervisor, John Cathy.          See Affidavit of Marc Matranga,

4/20/16, at 170-73; 189. McGrath was not responsible for training any of the
welders.    Id. at   197. Under such circumstances, we agree with the trial court's

conclusion that Matranga was         a   borrowed servant of     U -Haul.

        Finally, the trial court found that Matranga had contractually waived his

claims against       U -Haul   based upon    a   provision in the parties' Contract, which

provided:

        Limitation of Liability.

        12. Limitation of Liability. To the extent permitted by law, you,
        on your own behalf and on behalf of anyone claiming by or through
        you, waive any and all   right you have, or may have, to claim
        or assert a claim, suit, action or demand of any kind, nature
        or description, including without limitation, claims, suits,
        actions or demands for personal injury or death whether
        arising in tort, contract or otherwise, against Client or
        Client's customers, agents, officers, directors, or
        employees, resulting from or arising directly or indirectly
        out of your employment with McGrath Systems. You

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        recognize and agree that McGrath Systems provides
        workers' compensation coverage for such things as on-the-
        job injuries or occupational diseases incurred while on
        assignment for McGrath Systems, and you agree to look
        solely to McGrath Systems and/or its insurer for damages
        and/or expenses for such injury, illness or other claims
        incurred while on assignment. You agree to notify McGrath
        Systems if you believe that there are any unsafe conditions at the
        Client worksite or facility. In the event of a workplace injury that
        does not permit you to return to full duty, McGrath Systems will
        make modified duty positions available that meet any Physician's
        restrictions, which may or may not be at your normal place of
        employment.
Parties' Contract, 4/9/13, at      ¶ 12    (emphasis added).

        Matranga claims that he did not contractually waive and release all

claims against       U -Haul   based upon the above -quoted language from the

parties' contract. Specifically, he asserts that the contract was not the same

one that he was given and signed, that          U -Haul      was not the party released in

the document, that his signature on the contract was procured under duress,

and that   U -Haul   failed to plead waiver of release as an affirmative defense in

its answer to the complaint. We disagree.

        First, we note that     U -Haul   did raise the defense of waiver generally in

its new matter.         See    U -Haul    Answer & New Matter, 6/16/15, at           ¶   58

("Plaintiff's claims may be barred by                .   .       waiver.").   Under such

circumstances, we decline to find that         U -Haul       has waived this defense. See

Pa.R.C.P. 126 (favoring liberal construction of rules to resolve issues in "a just,

speedy, and inexpensive manner").

        Next, Matranga claims that he was "never afforded the opportunity to

'contemplate' the purported Agreement and release as he was never provided

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with   a   copy of the Agreement      .    .   .   [and] was given only        a   signature page that

U -Haul     purports belongs to the Agreement and was never presented with the

entire document." Appellant's Brief, at 50-51. Instantly, Matranga admitted

he signed the Contract. While he stated                  that he felt rushed and may not have
reviewed the entire document before signing it, this does not render the

agreement unenforceable. See Toro v. Fitness                              Intl LLC.,    150 A.3d 968

(Pa. Super 2016) (failure to read agreement before signing it does not render

agreement either invalid or unenforceable).                            To be valid, an exculpatory

clause, such as the instant waiver clause, must meet three conditions: (1) it

must not contravene public policy; (2) the contract must be between persons

relating entirely to their own private affairs; and (3) each party must be                      a   free

bargaining agent to the agreement so that the contract is not one of adhesion.

Chepkevich v. Hidden Valley Resort, L.P.,                          2   A.3d 1174, 1189 (Pa. 2010).

           Here,   Matranga      has not elicited            any evidence showing that the

Chepkevich conditions were not present                        in       the instant case.     Matranga

averred that he had the opportunity to ask questions about the Contract and,

in   fact, did ask questions prior to signing it. Moreover, it was Matranga's duty

to read the contract before signing it; it is well -established that the failure to

read some or all of          a   contract does not justify nullifying the agreement.

Standard Venetian Blind             Co. v.         American Emp. Ins. Co., 469 A.2d 563
(Pa. 1983);        accord Seaton      v.       East Windsor Speedway, Inc., 582 A.2d
1380 (Pa. Super. 1990) (where plaintiff claimed he did not know and was not

told he was signing      a   release, Court found plaintiff signed release voluntarily,

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where he was not compelled to sign it, and there was no evidence of fraud or

issue of trust between parties to contract).              Matranga has not proven fraud,

issues of mistrust among the parties, or that he was forced to sign the

Contract.     Under such circumstances, we fail to find that the Contract was

unenforceable as it relates to Matranga.

        To the extent that Matranga claims            that the Facility, not U -Haul, was the
party released in the document, we disagree. The Contract clearly states that

it was made "by and between Falls Manufacturing Incorporated,                    (hereinafter
"U -Haul") and McGrath Solutions (hereinafter "Staffing Agency[.]")                          2013

Staffing Services Contract, 4/9/13, at            1   (emphasis added). The remainder of

the document references           U -Haul     as the contracting     party; the Facility       is a

division of   U -Haul.    See    U -Haul     Answer & New Matter, 6/16/15, at              ¶ 3 (U -

Haul    "operates,       manages, controls and            maintains the [Fairless Hills]

premises."); see also Affidavit of Michael                 P.   Wiley of McGrath Technical

Staffing Inc., 7/27/16, at        ¶ 2       (McGrath contracted with      U -Haul   to provide

workers for assignment at          U -Haul's    production facility in Fairless Hills, PA);

Affidavit of William     B.   Hawthorne, President of Falls Mfg. Co., 5/23/16, at              ¶   1


(averring that Falls Manufacturing Company                  is a   division of   U -Haul    Co. of

Pennsylvania).

        Order affirmed.

        Judge Panella joins this Memorandum.

        Judge Strassburger files        a   Dissenting Memorandum.



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Judgment Entered.




J seph D. Seletyn,
Prothonotary



Date: 6/22/18




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