J-A24037-19

                                   2019 PA Super 335


    BRUCE BURRELL                              :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    STREAMLIGHT, INC.                          :   No. 908 EDA 2019

               Appeal from the Order Entered February 19, 2019
      In the Court of Common Pleas of Montgomery County Civil Division at
                           No(s): No. 2016-30144


BEFORE:      BENDER, P.J.E., DUBOW, J., and COLINS, J.*

OPINION BY COLINS, J.:                              FILED NOVEMBER 07, 2019

        This is 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.

        Bruce 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

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*   Retired Senior Judge assigned to the Superior Court.
J-A24037-19


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.

      On 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 followed.

      Plaintiff 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 Act?




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Appellant’s 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. 2019).

      Section 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. 2003).

      Under 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 well established:

      The test for determining whether a servant furnished by
      one person to another becomes the employee of the person

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     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.

JFC Temps, Inc., 680 A.2d at 864 (citations omitted) (emphasis added); see

also Gardner, 189 A.3d at 444; Mullins, 763 A.2d at 400.

     A company that is an injured worker’s employer under the borrowed

employee doctrine is liable for payment of workers’ compensation benefits for

his work injuries, JFC Temps, Inc., 680 A.2d at 866, and is immune from

tort liability for work injuries. Gardner, 189 A.3d at 444; Mullins, 763 A.2d

at 400-01; Wilkinson, 603 A.2d at 660-63. Whether a company is an injured

worker’s employer under the borrowed employee doctrine under a given set

of facts is a question of law. JFC Temps, Inc., 680 A.2d at 864; Mullins,

763 A.2d at 399 n.3; Wilkinson, 603 A.2d at 661. If there is conflicting

evidence as to the direction, supervision or control of the work, there are

disputes of material fact and summary judgment cannot be granted.

Gardner, 189 A.3d at 444-47 (reversing summary judgment where there was

evidence that both staffing company and company where work was done had

supervisors on site who instructed workers); Shamis v. Moon, 81 A.3d 962,

965-67, 971-73 (Pa. Super. 2013) (reversing summary judgment where there

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J-A24037-19


was evidence that defendant supervised plaintiff’s work, but was also evidence

that other company that paid plaintiff was required by contract to provide all

supervision of plaintiff’s work). Summary judgment may properly be granted

in favor of the defendant on grounds of WCA immunity, however, where the

facts concerning supervision and control of the plaintiff’s work are undisputed

and show that the defendant was the entity that had the right to supervise

and direct the plaintiff’s work. Mullins, 763 A.2d at 400-01; Wilkinson, 603

A.2d at 660-63; English v. Lehigh County Authority, 428 A.2d 1343, 1349-

50, 1358 (Pa. Super. 1981).

       On Defendant’s motion for summary judgment, the parties submitted to

the trial court the contract between Aerotek and Defendant under which

Plaintiff was assigned to Defendant and Plaintiff’s deposition testimony

concerning his employment and his work at Defendant’s facility.

       Aerotek’s contract with Defendant1 provided that Plaintiff and the other

personnel that Aerotek supplied to Defendant were paid by Aerotek and that

all personnel supplied by Aerotek were employees of Aerotek, not Defendant.

Aerotek-Streamlight Personnel Agreement ¶¶1(c), 4(b), 5(a), 5(c), 7(a). The

contract stated that “[n]othing in this Agreement shall be regarded as creating



____________________________________________


1  In the trial court, Plaintiff disputed whether this contract was adequately
authenticated, but submitted it and relied on it in his summary judgment
response. In his arguments in this appeal, Plaintiff does not dispute the
authenticity of the contract or contend that the trial court erred in considering
it. Appellant’s Brief at 16-20.

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any relationship, whether as employer-employee, joint employer, as a joint-

venture, partner or shareholder between the parties or between Streamlight

and the Personnel.” Id. ¶5(b). Aerotek was responsible for withholding and

paying taxes for those employees and for providing workers’ compensation

insurance that included Defendant as an alternate employer. Id. ¶¶5(c), 6(c).

      Aerotek’s contract with Defendant, however, also provided that "[a]ll

work and services to be performed by the Personnel shall be performed solely

at Streamlight’s premises under the technical management and supervision of

Streamlight.” Aerotek-Streamlight Personnel Agreement ¶1(b). Under the

contract, Defendant could terminate an individual’s work at its facility. Id. ¶2

(providing that Aerotek “shall immediately cease supplying any individual

upon the request of Streamlight”). The contract provided that Aerotek would

advise the personnel that it supplied that “all scheduling, requests for leave

or other accommodations must be made solely and directly to and with

Aerotek.” Id. ¶1(c) (unnecessary capitalization omitted).

      Plaintiff testified that Defendant set his hours and job duties and where

he would be performing his work.         Burrell Dep. at 32-33, 36-37, 43.

Defendant interviewed Plaintiff and made the decision as to the job he would

do before Aerotek assigned him to Defendant. Id. at 26-31. Plaintiff further

testified that his work was supervised by Defendant and that employees of

Defendant showed him how to do his assigned work and answered any

questions about the work. Id. at 33-35, 37-38, 42. Plaintiff testified that


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J-A24037-19


there were no Aerotek supervisors at Defendant’s facility, and that he did not

have any significant interaction with Aerotek while working at Defendant’s

facility.   Id. at 35-36, 42.     Plaintiff communicated with Defendant, not

Aerotek, concerning his hours. Id. at 36, 38-39, 40-43.

       This undisputed evidence established that while Aerotek hired and paid

Plaintiff, Defendant, and not Aerotek, had the right to control Plaintiff’s work

and the manner in which it was performed. Defendant as a matter of law was

therefore Plaintiff’s employer under the WCA and immune from personal injury

tort liability.   Indeed, our courts have specifically addressed the situation

presented here and have held that under the borrowed employee doctrine, a

worker hired and paid by an agency that provides workers to other companies

is the employee of the entity to which he is assigned to work where that latter

entity supervises and directs his work. JFC Temps, Inc., 680 A.2d at 863-

66; English, 428 A.2d at 1346, 1349-50.

       In JFC Temps, Inc., our Supreme Court held that a truck driver was

the employee of the company to which he was assigned, even though he was

hired and paid by a temporary employment agency and reported to that

agency when he was late or could not work, because the company to which

the driver was assigned told him what truck to use and the destination to

which he was to drive, decided whether his work was satisfactory, and could

request a replacement if dissatisfied with his work, and no representative of

the employment agency was ever at facility where driver worked. 680 A.2d


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J-A24037-19


at 863-66. In English, this Court held that a worker who died on the job was

an employee of the government entity to which he was assigned, even though

he was hired and paid by an employment agency, workers’ compensation

insurance and taxes were paid by the employment agency, and the

employment agency had exclusive right to assign workers to its customers

and remove them, because the government entity to which the worker was

assigned directed him concerning the work that he was to perform and

employment agency did not direct how work was to be performed and had no

supervisory personnel at government entity’s facilities. 428 A.2d at 1346,

1349-50. This case is indistinguishable from JFC Temps, Inc. and English.

      Plaintiff argues that the borrowed employee doctrine does not apply

because he was injured taking out trash and that Defendant directed and

controlled only the work for which he was placed at Defendant, assembly and

packaging of flashlights. This argument fails for several reasons. Taking out

the trash was in fact within Plaintiff’s work duties for Defendant, as Plaintiff

admitted that Defendant had previously directed him to take out trash as part

of his job duties. Burrell Dep. at 24-25, 49; Plaintiff’s Answer to Defendant’s

Interrogatory No. 8. Moreover, Plaintiff admitted that he was performing work

at Defendant’s facility during work hours when he was injured and was within

the course and scope of his employment at the time of the accident. Plaintiff’s

Answers to Defendant’s Interrogatories Nos. 7, 13(a); Burrell Dep. at 48-49,

82-83. Defendant therefore clearly had the right to direct and control the


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J-A24037-19


work that Plaintiff was performing when he was injured. Aerotek-Streamlight

Personnel Agreement ¶1(b). There was no claim that Plaintiff was operating

under Aerotek’s direction or supervision in taking out the trash.

      Plaintiff also argues that the contract between Aerotek and Defendant

creates a genuine dispute of material fact because it provides that Plaintiff

was an employee of Aerotek, not Defendant. The test, however, is whether

Defendant had the right to direct and control Plaintiff’s work and the manner

of its performance, not the nomenclature used by the parties. JFC Temps,

Inc., 680 A.2d at 864; Wilkinson, 603 A.2d at 662 (company to which truck

driver was assigned was employer under WCA and immune from personal

injury liability because it controlled driver’s work and manner of performance,

even though its contract with the company that assigned the driver to it

expressly provided that drivers were employees of the assigning company);

English,   428   A.2d   at   1349-50,   1354   (workers’   characterization   of

employment agency as employer did not control issue of which entity was

employer under WCA). There was no conflict or ambiguity in the evidence on

the issue of which company controlled the work and the manner of its

performance.     Both the contract and Plaintiff’s testimony are clear that

Defendant, not Aerotek, had the right to control and direct Plaintiff’s

performance and in fact controlled and directed his work and how it was to be




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J-A24037-19


performed. Aerotek-Streamlight Personnel Agreement ¶1(b); Burrell Dep. at

32-38, 42-43.2

       Because the undisputed facts established that Defendant was Plaintiff’s

employer under the WCA and was therefore immune from tort liability for

Plaintiff’s injury, we affirm the trial court’s grant of summary judgment in

Defendant’s favor.

       Order affirmed.




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2 To the extent that Plaintiff also contends that the trial court erred in granting
summary judgment without allowing Plaintiff additional time for discovery to
respond to the motion, Appellant’s Brief at 18-20, that argument is without
merit. A trial court is not required to grant a party additional time for
discovery before ruling on a summary judgment motion where the parties
have already had a reasonable time for discovery and the party opposing
summary judgment has not demonstrated that it was prevented from timely
completing the necessary discovery.          Fort Cherry School District v.
Gedman, 894 A.2d 135, 140 (Pa. Super. 2006) (summary judgment was not
premature where the party opposing summary judgment had 15 months to
conduct discovery); Reeves v. Middletown Athletic Association, 866 A.2d
1115, 1124 (Pa. Super. 2004) (no error in ruling on summary judgment
without additional discovery where plaintiff already had at least one year to
conduct discovery). Defendant filed its answer pleading the defense of
immunity under the WCA on February 24, 2017. The discovery deadline in
this case was November 13, 2018, and Defendant filed its summary judgment
motion on November 28, 2018, after the completion of discovery. Plaintiff has
not set forth any reason why he could not complete all necessary discovery
on Defendant’s immunity defense in the period of more than one year and
eight months that he already had before discovery ended and the motion for
summary judgment was filed.

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J-A24037-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/19




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