J-A04041-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

BRANDON R. TROTT,                        :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                 Appellant               :
                                         :
                    v.                   :
                                         :
ANTHONY NAPLES AND LEAR, LLC,            :
                                         :
                 Appellees               :        No. 1097 WDA 2014

                Appeal from the Judgment Entered July 3, 2014
              in the Court of Common Pleas of Lawrence County
                      Civil Division, at No(s): 2005-11278

BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                      FILED APRIL 17, 2015

      Brandon R. Trott (Trott) appeals from the July 3, 2014 judgment

entered against him and in favor of Appellees Anthony Naples (Naples) and

Lear, LLC (Lear), following a jury trial in this personal injury case.   We

affirm.

      The trial court summarized the facts of this case as follows.

            This matter arises out of an accident occurring on
      November 3, 2003 at Neshannock Elementary School in New
      Castle, Lawrence County, Pennsylvania. The Plaintiff, [Trott],
      was employed as an ironworker for Sheraden Steel. At the time
      of the accident [Trott] was working on a construction site at
      Neshannock Elementary School (hereinafter, the “job site”). For
      the purpose of steel erection in connection with the project,
      Sheraden Steel rented a crane and crane operator from [Lear].
      [ ] Lear sent [Naples] to operate the 50-ton TMS475 crane at the
      Neshannock job site.

            On the morning of November 3, 2003, [] Naples, [Trott],
      and other members of the construction crew were concluding
      steel erection activities on the rear of the building. Also an


* Retired Senior Judge assigned to the Superior Court.
J-A04041-15


     ironworker, Mr. Willard Ensminger (hereinafter, “Ensminger”)
     was the foreman on the job site. Ensminger was responsible,
     inter alia, for controlling the work to be completed and, in some
     instances, the manner in which the work was to be performed.
     [] Naples described Ensminger to be “the boss.”

            Later, Ensminger decided to move the construction to the
     front of the building. [] Naples then drove the crane to the front
     of the building. While [] Naples was driving the crane to the
     front, the jib extension, which is also called the lattice boom
     extension, was positioned to the side of the crane. Once in
     position, the jib extension had to be swung around the crane to
     the front in order for the ironworkers to reach interior areas of
     the building. In order to do so, four pins that were holding the
     jib extension in place on the side of the crane had to be
     removed. The pins had to be removed and inserted manually;
     however, conflicting testimony was presented regarding the
     permissible and prohibited manners of doing so. [Trott] first
     climbed onto the side of the crane to remove the pins, and the
     jib extension swung to the front of the crane. The pins then had
     to be reinserted to stabilize the jib extension so it could safely
     move the steel beams. [Trott] then climbed onto the boom and
     walked toward the head of the jib extension. Conflicting
     testimony was presented regarding whether the boom moved in
     any way; nevertheless, [Trott] suddenly fell off the left side of
     the boom and landed headfirst onto his wrists.

            [] Naples testified that in his 50 years of employ as a crane
     operator, he has never seen an ironworker walk on the boom to
     insert pins to secure the jib extension. He testified that he
     would have no reason to think someone was walking on the
     boom since he had never seen anyone do it. Conversely, [Trott]
     presented the testimony of Ensminger and another ironworker,
     Mr. Kevin Cain (hereinafter, “Cain”), who was working alongside
     [Trott] when he fell, both of whom testified that ironworkers
     typically walked on the boom to insert pins in this way. Cain
     testified that he had climbed onto the boom to insert the pins
     into the jib extension approximate[ly] one thousand times. He
     and Ensminger also each testified that [] Naples appeared to
     move the boom while [Trott] was on top of it, which caused
     [Trott’s] fall. They also each testified that no one gave [] Naples
     a signal to do so; rather, [] Naples made an independent call to
     move the crane. [] Naples, however, denied this claim. []
     Naples explained that while operating a crane, the operator’s


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J-A04041-15


         view is obstructed and he relies on signaling from ironworkers on
         the ground. He testified that he never moves the crane without
         receiving a signal. [] Naples also testified that he engaged the
         emergency brake and foot brake on the crane so it would have
         been impossible for him to move the crane at that point.

Trial Court Opinion, 9/8/2014, at 2-4 (footnotes omitted).

         Naples moved for summary judgment on the basis that he was a

borrowed employee of Sheraden Steel when Trott was injured, and therefore

he was not liable under 77 P.S. § 72,1 which provides that a person cannot

be held liable for a work-related injury caused to someone in the same

employ. The trial court granted summary judgment to Naples and Lear on

this basis, and Trott appealed. On appeal, this Court held that the trial court

“usurped the role of a factfinder and abused its discretion” in finding upon

conflicting evidence that Naples was the statutory employee of Sheraden

Steel.     Trott v. Naples, 29 A.3d 825 (Pa. Super. 2011) (unpublished

memorandum at 9). This Court, therefore, vacated the judgments in favor

of Naples and Lear, reversed the orders granting summary judgment, and

remanded the case for trial. Id. at 10.

         The case went to trial, with both sides moving for a directed verdict on

the issue of Naples’ employer. The trial court denied both motions, and the

jury subsequently determined that Naples was the employee of Sheraden

Steel at the time of Trott’s injury.      Trott’s post-trial motion was denied,




1
    This “fellow servant” rule is part of the Worker’s Compensation Act.


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judgment was entered in favor of Naples and Lear, and Trott timely filed a

notice of appeal.

      Trott presents this Court with two questions on appeal: (1) whether

the trial court erred in denying Trott’s motion for a directed verdict on the

issue of Naples’ employer, and (2) whether the trial court erred in failing to

instruct the jury on a particular federal code provision. Trott’s Brief at 8.

      We consider Trott’s first question mindful of the following standard of

review.

            In reviewing a trial court’s decision whether or not to grant
      judgment in favor of one of the parties, we must consider the
      evidence, together with all favorable inferences drawn
      therefrom, in a light most favorable to the verdict winner. Our
      standard of review when considering motions for a directed
      verdict and judgment notwithstanding the verdict are identical.
      We will reverse a trial court’s grant or denial of a judgment …
      only when we find an abuse of discretion or an error of law that
      controlled the outcome of the case. Further, the standard of
      review for an appellate court is the same as that for a trial court.

            There are two bases upon which a [directed verdict] can
      be entered: one, the movant is entitled to judgment as a matter
      of law and/or two, the evidence is such that no two reasonable
      minds could disagree that the outcome should have been
      rendered in favor of the movant. With the first, the court
      reviews the record and concludes that even with all factual
      inferences decided adverse to the movant the law nonetheless
      requires a verdict in his favor, whereas with the second, the
      court reviews the evidentiary record and concludes that the
      evidence was such that a verdict for the movant was beyond
      peradventure.

Polett v. Public Communications, Inc., 83 A.3d 205, 211-12 (Pa. Super.

2013) (quoting Ty–Button Tie, Inc. v. Kincel and Co., Ltd., 814 A.2d

685, 690 (Pa. Super. 2002)).


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     The law regarding borrowed servants in general 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. 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. v. W.C.A.B. (Lindsay), 680 A.2d 862, 864 (Pa. 1996)

(citations omitted) (citing, inter alia, Mature v. Angelo, 97 A.2d 59 (Pa.

1953)).

     The test is slightly altered for a worker who is supplied to operate a

piece of leased equipment.

           Where one is engaged in the business of renting out
     trucks, automobiles, cranes, or any other machine, and furnishes
     a driver or operator as part of the hiring, there is a factual
     presumption that the operator remains in the employ of his
     original master, and, unless that presumption is overcome by
     evidence that the borrowing employer in fact assumes control of
     the [employee]’s manner of performing the work, the servant
     remains in the service of his original employer.

Mature, 97 A.2d at 61 (citations omitted).        The presumption is not

overcome by “[t]he mere fact that the person to whom a machine and its

operator are supplied points out to the operator from time to time the work

to be done and the place where it is to be performed.” Id.




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            Where the facts are not in dispute, and the evidence
      leaves no sufficient ground for inconsistent inferences therefrom,
      the question as to who is the servant’s employer is a matter for
      the determination of the court, but, where the evidence presents
      an issue of fact, or different inferences can reasonably be drawn
      therefrom, the question is one for determination by the jury.

Id. (citations omitted).

      Naples and Lear argue that the question of whether the trial court

erred in submitting the determination of Naples’ employer to the jury is

controlled by the law of the case doctrine, which provides that “if an

appellate court has considered and decided a question on appeal, neither

that court nor any trial court may revisit that question during another phase

of the same case.” Gateway Towers Condominium Ass'n v. Krohn, 845

A.2d 855, 861 (Pa. Super. 2004).      A prior panel of this Court determined

that the trial court’s deciding the issue as a matter of law, on the conflicting

facts presented, usurped the role of the fact-finder. Accordingly, Naples and

Lear claim that the law of the case doctrine precluded the trial court from

deciding the question of Naples’ employer as a matter of law and directing a

verdict during the subsequent trial. Appellees’ Brief at 8-9.

      There are only three exceptions to the law of the case doctrine…
      [1] where there has been an intervening change in the
      controlling law, [2] a substantial change in the facts or evidence
      giving rise to the dispute in the matter, or [3] where the prior
      holding was clearly erroneous and would create a manifest
      injustice if followed.

Commonwealth v. O’Bidos, 849 A.2d 243, 253 (Pa. Super. 2004)

(citations and internal quotation marks omitted). There was no intervening



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change in the law, nor was the prior holding of this Court erroneous, clearly

or otherwise.       Although the prior decision was based upon the record at

summary judgment rather than the evidence offered at trial, it does not

appear that there was any substantial change in the facts or evidence.

Thus, we agree with Appellees that the law of the case doctrine applied.

      Even if the law of the case doctrine did not here require that the jury

resolve the question of who was Naples’ statutory employer, we hold that

the trial court properly put the question to the jury based on the evidence

offered at trial.

      The record contains, inter alia, the testimony of William Ensminger, a

Sheraden Steel employee who was the job foreman when Trott was injured.

Ensminger testified that, as foreman, he was responsible for deciding what

work was to be done each day. N.T., 2/11/2014, at 157. Naples and the

ironworkers worked as a team, and Ensminger was “the quarterback of that

team telling each party what to do[.]”      Id. at 161.   He instructed Naples

when to begin working with the ironworkers each day, when to eat lunch,

and when to leave the site for the day. Id. at 160.        The Sheraden Steel

ironworkers, under Ensminger’s stewardship, directed how Naples performed

his work by telling him when to move the boom, lift a load, and move the

crane. Id. at 159. Ensminger decided to move the crane from the back to

the front of the school on the day in question.     Id. at 158.   Importantly,

Ensminger testified that he was the person who determined that Naples



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must use the jib extension on the crane. Id. As noted earlier, Trott’s injury

occurred during the process of attaching the jib extension.

      Looking at this evidence in the light most favorable to the Naples and

Lear as the verdict winners, it is clear that they produced evidence of

Sheraden Steel’s control over Naples beyond merely pointing “out to the

operator from time to time the work to be done and the place where it is to

be performed.” Mature, 97 A.2d at 61. The evidence was such that the

jury was able to conclude reasonably that Sheraden Steel in fact assumed

control over the manner in which Naples performed his work, thus rebutting

the presumption that Naples remained in Lear’s employ. Cf. O'Connell v.

Roefaro, 137 A.2d 325 (Pa. 1958) (holding presumption was not overcome

by the fact that an employee of the company which rented a crane and

operator merely gave signals to crane operator, where the company had no

right to instruct him how to operate the crane or to tell him when to begin or

cease work).      Accordingly, the trial court did not err in denying Trott’s

motion for a directed verdict.

      Trott’s remaining claim on appeal is that the trial court’s instructions

as   to   fall-protection   regulations   were   erroneous.   Because   the   jury

determined that Sheraden Steel was Naples’ employer, Naples and Lear

were shielded from liability.      See 77 P.S. § 72 (providing that a person

cannot be held liable for a work-related injury caused to someone in the

same employ).       Hence, the jury did not reach the issue of whether the



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appropriate fall protections were utilized.     Therefore, Trott is unable to

demonstrate prejudice, and any error was harmless.         See, e.g., Boyle v.

Independent Lift Truck, Inc., 6 A.3d 492, 496 (Pa. 2010) (“[A]llegations

of error are harmless where the jury is not required to deliberate over the

issue out of which the alleged error arises in order to reach its verdict.”).

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/17/2015




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