Opinion
No. 564 C.D. 2011
02-09-2012
Lie Canot and Kemely Canot, Husband and Wife, Appellants v. City of Easton
BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge
HONORABLE , Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION BY JUDGE BROBSON
Lic and Kemely Canot (Canots) appeal from an order of the Court of Common Pleas of Northampton County (trial court), dated March 10, 2011. The trial court granted the City of Easton's (City) motion for summary judgment and denied the Canots' motion for partial summary judgment, determining that the City was entitled to immunity from civil liability pursuant to the exclusivity provisions of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708. For the reasons that follow, we affirm.
In June 2006, a flood occurred in Easton, Pennsylvania, which caused damage to the City's property. In response, the City entered into a National Emergency Grant Worksite Project Agreement (Agreement) with the Private Industry Council (PIC). (Reproduced Record (R.R.) at 78-89.) Under the Agreement, PIC agreed to provide "participants" to assist City employees with flood-related elean-up duties for the period of August 15, 2006, to Deeember 31, 2006. (Id. at 78.) In return, the City agreed to provide adequate direetion and supervision for the PIC-provided workers, as follows:
PIC is a nonprofit organization that receives state and federal funding to operate employment and training programs for individuals that meet specific program criteria. (R.R. at 57.) PIC received a federal National Emergency Grant (NEG) when Lehigh County and Northampton County were declared disaster areas following the June 2006 flood. (Id.)
VII. REPRESENTATIONS AND UNDERSTANDING:(Id. at 81.)
The [City] agrees to operate this worksite in aeeordanee with the provisions, eonditions and speeifieations as follows:
1. To insure that partieipants assigned to this worksite will only perform tasks that are a result of the disaster or are neeessary beeause of the destruetion in this deelared area.
2. To insure that PIC will be notified as soon as all tasks whieh are neeessary as a direet result of the destruetion have been eompleted.
3. To insure eomplianee with governing state and federal laws and poliey.
4. To provide adequate supervision of the temporary partieipants.
5. To provide suffieient work to fully oeeupy the temporary participants' working hours.
6. To maintain the worksite timesheets and monitoring of hours and attendanee.
7. To adhere to applieable wage and hour regulations.
8. To insure safe and sanitary working eonditions.
9. To file injury reports when applieable and immediately advise PIC as the Workers' Compensation provider.
10. To insure that no temporary partieipant will be involved in any seetarian or politieal aetivities.
As required by the Agreement, the parties drafted a "job description"—dietated by eriteria submitted by the City (id. at 60, 67, 73)—setting forth the PIC-provided workers' responsibilities, hours, rate of pay, ete. (Id. at 82-86.) The job deseription deseribed the PIC-provided workers as "laborers," as defined by materials submitted by the City and attaehed to the job deseription, and provided that the PIC-provided workers were to work 40 hours per week, from 7:00 a.m. to 3:30 p.m., with an unpaid luneh break between 12:00 p.m. and 12:30 p.m., at a rate of $12.00 per hour. (Id. at 82.) The job deseription provided that PIC was to equip the PIC-provided workers with reasonable safety equipment, sueh as steel-tipped boots, glasses, and gloves, but that the City was to supply all operational equipment. (Id. at 83.) Finally, the job deseription identified "Carl Sehumaeher, Supervisor of Parks," as the PIC-provided workers' supervisor, and "Robert Rudd, Exeeutive Direetor of Hugh Moore Park," as alternate supervisor. (Id. at 82)
Regarding the relationship between the City, PIC, and the PIC-provided workers, the Agreement provided, in pertinent part:
H. RELATIONSHIP OF PARTIES:
The [City] does not beeome the agent of PIC for any purpose pursuant to this Agreement, and will make no representation of sueh. In agreeing to provide direetion and supervision for the partieipant(s), the [City] understands that this does not make any partieipant an employee or agent of PIC, nor is PIC liable to the [City] or any third party by reason of any future aet or failure to aet by any partieipant on or off the job(Id. at 80.)
Concerning the payment of wages and workers' compensation, the Agreement provided, in pertinent part:
A. PAYMENTS:
(1) The [City] will assist PIC by providing the appropriate doeumentation (signed timesheets) to PIC on a timely basis to ensure the partieipant is paid on a timely basis.(Id. at 79-80.)
(2) All hours must be rounded to the nearest quarter hour on a daily basis.
. . . .
I. WORKERS' COMPENSATION:
PIC will provide Workers' Compensation coverage to all partieipants.
Mr. Canot was one of the workers sent by PIC to assist the City with flood elean-up. Mr. Canot's primary assignment was eonstrueting and moving eabinets. (Id. at 122.) Mr. Canot eontends that he was injured on November 17, 2006, while working in the parks department garage. Speeifieally, Mr. Canot alleges that he was in the proeess of moving a large metal eabinet when he slipped and fell on grease, or some other slippery substanee, eausing the eabinet to fall on top of him. (Id. at 12.) Mr. Canot subsequently sought and received workers' eompensation benefits from PIC. (Id. at 381-95.) The City did not partieipate in the workers' compensation proceedings.
On Oetober 16, 2008, the Canots filed a eomplaint against the City with the trial eourt, asserting eauses of aetion in negligenee and loss of eonsortium arising out of the alleged slip and fall that oeeurred on November 17, 2006. On November 5, 2010, the City filed a motion for summary judgment and a brief in support thereof, asserting that the Canots' claims were barred by the exclusivity provisions of the Aet, beeause Mr. Canot was a City employee at the time of the alleged ineident under the "borrowed servant" doctrine. The Canots filed a response and a brief in opposition to the City's motion for summary judgment. The Canots also filed a motion for partial summary judgment and a brief in support thereof, asserting that the City was estopped from arguing that Mr. Canot was a City employee at the time of the alleged ineident beeause the City knew of Mr. Canot's workers' compensation claim against PIC and acquiesced in PIC's admission that it was Mr. Canot's employer. The Canots also argued that the exelusivity provisions of the Aet did not apply beeause, as a matter of law, PIC, not the City, was Mr. Canot's employer at the time of the alleged incident. The City filed a response and a brief in opposition to the Canots' motion for partial summary judgment. The Canots filed a reply brief.
In support of the parties' respective motions for summary judgment, the trial eourt reeeived, inter alia, the deposition testimony of Mr. Canot; Carl Sehumaeher, the City's Supervisor of Parks; David Hopkins, the City's Director of Publie Works; Michael D'Annibale, PIC's NEG administrator; and Vietor Hernandez, PIC's NEG eoordinator.
Mr. Canot testified that he beeame assoeiated with PIC in 2006, and that his eontaet person was Vietor Hernandez. (Id. at 120.) Mr. Canot explained that PIC plaeed him with the City to assist in flood elean-up and that his primary assignment was assembling and moving eabinets. (Id. at 121.) Mr. Canot testified that PIC did not provide him with any training before plaeing him with the City; however, Mr. Canot explained that he has a technical degree and stated: "I could be a manager of [sie] high-rise building. I eould do heating and AC type of work in the building. I eould supervise teehnieal employees in my area of expertise." (Id. at 119-20.) Mr. Canot stated that the City provided all of the tools neeessary to eomplete his daily tasks, but that PIC provided him with gloves and safety goggles. (Id. at 120, 126.) Mr. Canot testified that Carl Sehumaeher would take attendanee every morning and assign eaeh PIC-provided worker to a partieular area of the City's public works complex. (Id. at 121-22.) Mr. Canot explained that he would then reeeive further instruetions from the supervisor of the City department to whieh he was assigned. (Id. at 122.) Mr. Canot testified that Mr. Hernandez would eome to the worksite on oeeasion to insure that the PIC-provided workers were performing their work, but that Mr. Hernandez did not provide the work assignments. (Id. at 123.) On November 17, 2006, the date that the alleged slip and fall oeeurred, Mr. Canot explained that he reeeived his work instruetions from Mr. Schumacher and the supervisor of the City's Motor Vehicle Bureau. (Id. at 126.) Mr. Canot testified that he did not know whether someone from PIC eame to the scene following the alleged incident, but that the "second in command" of the City's Motor Vehicle Bureau prepared an injury report. (Id. at 128-29.)
Carl Sehumaeher testified that he was the City's Supervisor of Parks at the time of the alleged ineident. (Id. at 110.) Mr. Sehumaeher testified that he supervised the PIC-provided workers under the Agreement. (Id. at 110, 114.) As supervisor, Mr. Sehumaeher testified that he took attendanee every morning, logged hours, and gave the PIC-provided workers their job assignments. (Id. at 112, 114.) Once assigned to a department within the City's public works eomplex, Mr. Sehumaeher explained that the PIC-provided workers would then reeeive further job instruetions from the supervisor of the partieular department to whieh they were assigned. (Id. at 114.) Mr. Sehumaeher testified that the PIC-provided workers were direeted solely by City employees at the worksite, and that the City provided all of the tools neeessary for the PIC-provided workers to eomplete their assigned tasks. (Id.) Finally, Mr. Sehumaeher testified that his eontaet in PIC was Vietor Hernandez. (Id. at 112.) Mr. Sehumaeher explained that Mr. Hernandez would visit the worksite approximately onee a week to eolleet time sheets and to make sure that the PIC-provided workers were eompleting their assigned tasks. (Id. at 112-13.)
David Hopkins testified that he was the City's Director of Public Works at the time of the alleged ineident. (Id. at 42.) Mr. Hopkins testified that the City and PIC entered into the Agreement following the June 2006 flood, and that PIC agreed to provide temporary workers to assist in flood elean-up. (Id. at 45.) Mr. Hopkins explained that the City did not pay any money under the Agreement; instead, the NEG administered by PIC funded the PIC-provided workers. (Id. at 45, 47.) Mr. Hopkins stated that Mr. Sehumaeher was the PIC-provided workers' supervisor, and that Mr. Sehumaeher was responsible for giving the PIC-provided workers their job assignments. (Id. at 46-47.) Finally, Mr. Hopkins testified that the PIC-provided workers were considered "laborers," and that their assigned tasks did not require speeial training. (Id. at 46.)
Mr. D'Annibale testified that he was responsible for administering the NEG that PIC reeeived following the June 2006 flood, whieh ineluded "contacting] the municipalities that were interested in having projects done for them beeause of the flood, arranging the projeets with them, [and] hiring staff on [PIC's] end to take on the day-to-day operations of the program." (Id. at 57.) Mr. D'Annibale explained that, per the Agremeent, the City did not pay anything for the PIC-provided workers: PIC eovered wages, meals, and travel expenses. (Id. at 58.) PIC also provided workers' compensation coverage. (Id.) Mr. D'Annibale testified that he assigned Vietor Hernandez to eoordinate exeeution of the Agreement on behalf of PIC, whieh ineluded reeruiting workers and determining their eligibility to partieipate in a NEG program under federal and state guidelines; orienting eligible workers into the NEG program; and overseeing the day-to-day operations of workers plaeed with the City. (Id.) Regarding supervision of the PIC-provided workers, Mr. D'Annibale testified: "[W]e did not supervise any of the [PIC-provided workers] direetly. That was all done by the [City]. . . . [T]he [City] provided the work, the [City] provided the supervision of those [PIC-provided workers]." (Id.) Additionally, Mr. D'Annibale engaged in the following eolloquy:
Q. In this partieular ease, who determined where Mr. Canot would be working on a day-to-day basis?(Id. at 69.)
A. That would be deeided by his supervisor with the [City], where they were going to be working at on those partieular days.
Q. If a deeision had to be made to reloeate Mr. Canot from one flooded building to another flooded building for eleanup serviees, for instanee, who would make that eall?
A. His supervisor, the [City].
Q. Let me ask you this question. If transportation had to be provided to different [City] worksites, who would provide that transportation?
A. [The City].
Q. Who would eontrol the timing of breaks, luneh breaks, things of that nature throughout the workday?
A. [The City].
Q. And who would assign the partieular day-to-day job duties or job tasks to the PIC partieipants?
A. [The City].
Finally, Vietor Hernandez testified that he was the NEG eoordinator of the Agreement between PIC and the City. (Id. at 93.) As NEG eoordinator, Mr. Hernandez explained that his duties ineluded determining worker eligibility to partieipate in a NEG program and overseeing the day-to-day operations of workers plaeed with the City. (Id. at 93-94.) Mr. Hernandez stated that PIC did not provide any training to the PIC-provided workers before plaeing them with the City, but that the City provided safety training. (Id. at 95.) Mr. Hernandez testified that he would visit the worksite approximately two to three times per week to ensure that the PIC-provided workers were performing flood-related work. (Id. at 94-95.) Mr. Hernandez explained that Carl Sehumaeher was the PIC-provided workers' main supervisor, and that the City's department supervisors provided additional supervision. (Id. at 95, 99.) Mr. Hernandez testified that the City was responsible for eompleting time and attendanee sheets for eaeh PIC-provided worker, and that he would eolleet the eompleted forms from Mr. Sehumaeher every week to proeess them for payment. (Id. at 100-01.) With regard to employee diseipline, Mr. Hernandez explained that PIC guidelines eontrolled, and that although the City eould make reeommendations, only PIC eould aetually diseipline the PIC-provided workers. (Id. at 94, 102.) The following exeerpt from Mr. Hernandez's deposition testimony summarizes his role as NEG coordinator:
Q. And onee you ehose these workers to go down to the [City] what, if anything, did you then do regarding these workers?(Id. at 94, 97, 99-100.)
A. Onee we assigned them to whatever worksite they were assigned to, my funetion was to go ensure they were working, eheek the area they might have been working, and definitely to make sure they were working based on the NEG grant guidelines, whieh was anything that had to do with the disaster. At that point, it was just the flood disaster. So they had to work flood-related damages.
Q. So, in some respeet, you were supervising what they were doing?
A. No, no. I did not supervise them. I would eheek in on them. Their supervisors were the [City].
Q. But what if you went down and you saw that they were not doing grant-related funetions?
A. Then I would let the [City] know you're not using them the appropriate way.
Q. And they would have to stop using them that way? A. Exaetly.
. . . .
Q. How mueh, if any, involvement did you have in, like, assigning them their work with the [City]?
A. My only assignment—I would assign them to the [City]. The [City] had a few worksites. The [City] would then assign whatever they needed to the aetual worksites. . . .
. . . .
Q. Did you ever personally train Lie Canot?
A. No.
Q. Did you personally supervise Canot on a day-to-day basis?
A. No.
Q. Did Canot report to you when he arrived at the worksite every morning?
A. No.
Q. Did Canot report to you when he left the worksite?
A. No.
Q. Did Canot ever ask you any questions about how to perform his job?
A. No.
Q. Did you ever give Canot any job assignments?
A. No.
Q. Did you ever tell Canot when he eould take breaks throughout the day or, for instanee, eat his luneh?
A. No.
Q. Who filled out Canot's time sheet?
A. The supervisors that were assigned with him would fill it out. Mr. Sehumaeher would sign off on it and I would piek them up.
By order dated March 10, 2011, the trial court granted the City's motion for summary judgment and denied the Canots' motion for partial summary judgment, holding that the City was immune from eivil liability under the exelusivity provisions of the Aet, beeause the City was Mr. Canot's employer at the time of the alleged ineident. In so holding, the trial eourt found that the City was not estopped from asserting that Mr. Canot was a City employee at the time of the alleged ineident, beeause the City did not participate in the workers' eompensation proeeedings between Mr. Canot and PIC. The trial eourt further found that, under the "borrowed servant" doctrine, the City was Mr. Canot's employer at the time of the alleged ineident beeause the City had the right to eontrol Mr. Canot's performance. This appeal followed.
On appeal, the Canots argue that the trial eourt erred in holding that their eivil eause of aetion was barred under the exelusivity provisions of the Aet. Speeifieally, the Canots eontend that the trial eourt erred in finding that the City was not estopped from asserting that Mr. Canot was a City employee at the time of the alleged ineident. The Canots also eontend that the trial eourt erred in finding that the City was Mr. Canot's employer at the time of the alleged ineident under the "borrowed servant" doctrine.
"Our scope of review on appeal from a grant of summary judgment is limited to a determination of whether the trial eourt eommitted an error of law or abused its diseretion. Summary judgment is a question of law based upon findings of fact." Wetzel v. City of Altoona, 618 A.2d 1219, 1221 n.5 (Pa. Cmwlth. 1992) (eitations omitted). "For courts to enter summary judgment, the reeord must demonstrate that no genuine issue of material faet exists after an examination of the reeord in a light most favorable to the non-moving party." Bacon v. City of Chester, 564 A.2d 276, 277 (Pa. Cmwlth. 1989).
Seetion 303(a) of the Aet, 77 P.S. § 481(a), generally makes the Aet the exelusive method for seeuring eompensation for injuries sustained in the eourse of employment; therefore, an employee is barred, absent some exeeptions, from bringing suit at eommon law against his employer for sueh injuries. Kincel v. Dep't of Transp., 867 A.2d 758, 761 (Pa. Cmwlth. 2005). Aeeordingly, the eritieal question in this ease is whether the City was Mr. Canot's employer at the time of the alleged ineident.
Seetion 303(a) of the Aet provides, in pertinent part:
The liability of an employer under this aet shall be exelusive and in plaee of any and all other liability to sueh employees, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any aetion at law or otherwise on aeeount of any injury or death as defined in seetion 301(e) (1) and (2) or oeeupational disease as defined in seetion 108.
We address, first, the Canots argument that the City should be estopped from asserting that it was Mr. Canot's employer at the time of the alleged ineident. The Canots eontend, inter alia, that estoppel should apply beeause the City was aware of Mr. Canot's workers' compensation claim against PIC and acquiesced in PIC's admission that it was Mr. Canot's employer. We disagree.
Deseribing the doetrine of judieial estoppel in Black v. Labor Ready, Inc., 995 A.2d 875, 878 (Pa. Super. 2010), the Superior Court stated:
Our Supreme Court has held that "[a]s a general rule, a party to an aetion is estopped from assuming a position ineonsistent with his or her assertion in a previous aetion, if his or her eontention was sueeessfully maintained." Accordingly, judicial estoppel is properly applied only if the eourt eoneludes the following: (1) that(Citations omitted) (emphasis and alterations in original).
the appellant assumed an ineonsistent position in an earlier action; and (2) that the appellant's contention was "successfully maintained" in that action.
In Black, a worker was sent by a temp ageney to work in a faetory where she was injured, prompting the worker to seek workers' compensation benefits from the factory. In its answer to the worker's claim petition, the factory denied being the employer, asserting that the worker was an employee of the temp ageney. In a subsequent eivil suit, the faetory argued that it was entitled to immunity under the Aet beeause the worker was an employee of the faetory at the time of the alleged ineident. Applying judieial estoppel, the Superior Court held that the faetory was preeluded from asserting that it was the employer for purposes of immunity under the Aet beeause the faetory had sueeessfully denied being the employer in the previous workers' compensation proceedings. But unlike the faetory in Black, the City did not participate in the workers' compensation proeeedings between Mr. Canot and PIC. Aeeordingly, there is no reeord of the City previously denying that it was Mr. Canot's employer. Judicial estoppel, therefore, does not apply.
We address, next, the Canots' argument that the trial eourt erred in finding that the City was Mr. Canot's employer under the "borrowed servant" doetrine. The existenee of an employer-employee relationship is a question of law based upon the faets of eaeh ease. Red Line Express Co. v. Workmen's Comp. Appeal Bd. (Price), 588 A.2d 90, 93 (Pa. Cmwlth. 1991). Under the Aet, the terms "employer" and "employee" are synonymous with master and servant, respeetively. Seetions 103 and 104 of the Aet, 77 P.S. §§ 21-22. The "borrowed servant" doctrine stands for the proposition that "[o]ne who is in the general employ of one employer may be transferred to the serviee of another in sueh a manner that the employee becomes an employee of the second employer." Id. (eiting Mature v. Angelo, 373 Pa. 593, 97 A.2d 59 (1953)). In JFC Temps, Inc. v. Workmen's Compensation Appeal Board (Lindsay), 545 Pa. 149, 153, 680 A.2d 862, 864 (1996) (eiting Mature), our Supreme Court explained:
The test for determining whether a servant furnished by one person to another beeomes the employee of the person to whom he is loaned is whether he passes under the latter's right to control with regard not only to the work to be done but also the manner of performing it. The entity possessing the right to eontrol the manner of the performance of the servant's work is the employer, irrespeetive of whether the eontrol is aetually exereised.(Emphasis added).
Although the right to eontrol the performanee of the work is the most persuasive indieation of the existenee of an employer-employee relationship, other faetors may be relevant. Id. at 156, 680 A.2d at 865. In Mature, 373 Pa. at 597, 97 A.2d at 61, our Supreme Court stated:
Faets whieh indieate that the servant remains the employe of his original master are, among others, that the latter has the right to seleet the employe to be loaned and to diseharge him at any time and send another in his plaee, that the lent servant has the skill of a teehnieian or speeialist whieh the performanee of the work requires, that the hiring is at a rate by the day or hour, and that the employment is for no definite period.The payment of wages, withholding of payroll deduetions, and provision of workers' compensation coverage, may also be considered, but are not determinative faetors. See Supp v. Erie Ins. Exch., 470 A.2d 1037, 1041 (Pa. Super. 1984).
Notwithstanding the above, the Canots argue that the "prime sponsor" test, not the "control" test, should be applied to determine whether Mr. Canot was a "borrowed servant" of the City. In support of their argument, the Canots cite this Court's opinion in Pennsylvania Manufacturer's Association Insurance Company v. Workmen's Compensation Appeal Board, 418 A.2d 780, 781 (Pa. Cmwlth. 1980). There, a worker was involved in an employment program run by York County (County) under the auspiees of the Federal Comprehensive Employment and Training Act (CETA). Acting as the "prime sponsor" under CETA, the County assigned the worker to a projeet run by the Community Progress Couneil (Couneil), where the worker sustained an injury. Id. at 781. Thereafter, the worker sought workmen's compensation benefits from the County. Before the referee (which are now referred to as workers' compensation judges), the County joined the Council as an additional defendant, arguing that the Council was the worker's rightful employer. The referee disagreed, determining that the County was the worker's employer, and the Board affirmed. On further appeal, this Court rejeeted the "control" test in favor of the "prime sponsor" test and affirmed the Board. We reasoned:
The County here emphasizes that the Couneil took eharge of the training and supervision of elaimant and of any diseiplinary and firing responsibilities, and argues that the erueial faetor in settling the issue is who has the right of controlling the manner of claimant's performance of his work. This Court has held many times that the most important faetor in determining the existenee of an employer-employee relationship is evidenee of aetual eontrol or of the right to eontrol the work to be done and the manner of its performanee. However, in the determination of an employer-employee relationship, eaeh ease must be deeided on its own faets. In the instant ease, the federal government has provided the County with funds to be utilized by the County to pay forId. at 781 (quotations and eitations omitted).
workmen's compensation coverage for persons employed under [federal] program. Under its eontraet with the Couneil, the only funds the County transferred to the Couneil were for administrative eosts. The County reeeived and retained eontrol of all other amounts reeeived under the [federal] program, ineluding amounts designed for claimant's wages and for the payment of worker's compensation insurance premiums. Therefore, we eannot eonelude that the Board erred as a matter of law in determining that the County was the claimant's employer at the time of his injury.
Applying Pennsylvania Manufacturer's Association, the Canots argue that PIC, not the City, was Mr. Canot's employer because PIC received and retained eontrol of all money reeeived under the NEG and paid Mr. Canot's wages and workers' compensation benefits. In other words, the Canots maintain that PIC was Mr. Canot's employer because PIC was Mr. Canot's "prime sponsor." The Canots' reliance on Pennsylvania Manufacturer's Association, however, is misplaeed.
In Wetzel v. City of Altoona, 618 A.2d 1219 (Pa. Cmwlth. 1992), this Court limited the applieation of Pennsylvania Manufacturer's Association, determining that the "control" test was the proper avenue for determining the existenee of an employer-employee relationship. Similar to Pennsylvania Manufacturer's Association, the worker in Wetzel was involved in an employment program funded by CETA, known as the Summer Youth Employment Program (SYEP). Aeting as the SYEP administrator for Blair County, the Altoona Area Sehool Distriet (Distriet) assigned the worker to a City of Altoona highway erew. A work agreement between the Distriet and the City of Altoona identified the City of Altoona as the employing ageney. Under the agreement, the City of Altoona agreed to provide a safe and healthy work environment, jobs appropriate for youth, and adequate supervision. The worker was killed when a City of Altoona employee backed into him with a piece of earthmoving equipment. Thereafter, the worker, through his administratrix, brought a negligence action against, inter alia, the City of Altoona, the District, and Deere & Company (Deere), manufacturer of the earthmoving equipment. Both the City of Altoona and the District motioned for summary judgment, each arguing that they were immune from suit under the exclusivity provisions of the Act as the worker's employer. The trial court granted the City of Altoona's motion for summary judgment only, determining that the City of Altoona was the worker's employer. On appeal, Deere argued that the District was the worker's employer under Pennsylvania Manufacturer's Association because the District administered the SYEP, which included the payment of wages and the provision of workers' compensation coverage. Rejecting Deere's argument, this Court reasoned:
[I]t is control of the work to be performed, and not control over funding, which best determines the existence of the employer/employee relationship. Our examination of the record here reveals that the City assigned, supervised and controlled the work performed by decedent. Moreover, the employment agreement between the City and the District clearly indicates that the City was the employing agency with full control and responsibility for the work site. The trial court correctly found that the City determined the hours and location of the work. Similarly, the City established rules governing the use of hardhats and vests and safety requirements around the construction equipment. In sum, the facts confirm that the City had actual control over decedent's work and the manner of its performance.Wetzel, 618 A.2d at 1223 (citations and quotations omitted). Accordingly, the "control" test is the proper standard for determining whether the City is Mr. Canot's employer under the "borrowed servant" doctrine.
Here, the undisputed faets of reeord demonstrate that the City eontrolled the work to be performed by the PIC-provided workers and the manner of its performanee. The testimonies of Mr. Canot, Mr. Sehumaeher, Mr. Hopkins, Mr. D'Annibale, and Mr. Hernandez all confirm that the City was responsible for giving the PIC-provided workers their job assignments and for providing the PIC-provided workers with direetion and supervision on a day-to-day basis. Speeifieally, Mr. Canot testified that he reeeived his work instruetions from Mr. Schumacher and the supervisor of the City's Motor Vehicle Bureau on the date of the alleged ineident. (R.R. at 126.) Moreover, the Agreement between the City and PIC gives the City full responsibility and eontrol over the worksite. (Id. at 81.) While we aeknowledge that some of the faetors deseribed above lie in favor of finding that PIC was Mr. Canot's employer—sueh as the faet that PIC had the power to seleet, diseipline, and terminate the PIC-provided workers, and that PIC paid the PIC-provided workers' wages and provided workers' compensation eoverage—just as many faetors warrant the opposite eonelusion. For instanee, it was the City that dietated the PIC-provided workers' hours, and it was the City that supplied all of the tools neeessary for the PIC-provided workers to eomplete their assigned tasks. Even if we were to find that more faetors weighed against the City, however, we reiterate that "the right to control the performance of the work is the overriding factor." JFC Temps, 545 Pa. at 156, 680 A.2d at 865.
We reject the Canots' argument that Mr. Canot was a skilled worker. Although Mr. Canot may hold teehnieal expertise, that expertise was not required to eomplete his assigned tasks for the City.
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Accordingly, we affirm the trial court's decision.
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P. KEVIN BROBSON, Judge
Lic Canot and Kemely Canot, Husband and Wife, Appellants
v.
City of Easton
No. 564 C.D. 2011
ORDER
AND NOW, this 9th day of February, 2012, the order of the Court of Common Pleas of Northampton County (trial court), dated March 10, 2011, is hereby AFFIRMED.
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P. KEVIN BROBSON, Judge