Bacon v. Tucker

• Decision Date: 21 September 1989
• Citation: 128 Pa.Cmwlth. 575,564 A.2d 276
• Parties: Arthur BACON v. James TUCKER and City of Chester. Appeal of CITY OF CHESTER, Appellant. 93 T.D. 1988
• Court: Pennsylvania Commonwealth Court

Page 276

564 A.2d 276

128 Pa.Cmwlth. 575

Arthur BACON v. James TUCKER and City of Chester.

Appeal of CITY OF CHESTER, Appellant.

93 T.D. 1988

Commonwealth Court of Pennsylvania.

Submitted on Briefs June 5, 1989.

Decided Sept. 21, 1989.

Cynthia A. McNicholas, Rankin, Brennan & Donaldson, Media, for appellant, City of Chester.

Leonard A. Sloane, with him, Mitchell S. Clair, Caine, DiPasqua, Sloane, Raffaele & Nigro, Media, for appellee, Arthur Bacon.

Before DOYLE and SMITH, JJ., and BARBIERI, Senior Judge.

SMITH, Judge.

The City of Chester (City) appeals from the denial of a motion for summary judgment pursuant to an interlocutory order of the Court of Common Pleas of Delaware County dated May 23, 1988 subsequently amended by the trial court by order dated August 12, 1988 ¹ which permitted the City to file with the Superior Court of Pennsylvania a petition for permission to appeal. The Superior Court granted permission for such appeal on October 4, 1988. The appeal was thereafter transferred to the Commonwealth Court by per curiam order of the Superior Court on December 16, 1988.

The issue before this Court is whether the City or the County of Delaware is the employer of Arthur Bacon (Bacon), a summer employee referred to the City by the County of Delaware Office of Employment and Training (OET), and therefore entitled to immunity from suit pursuant to The Pennsylvania Workmen's Compensation Act (Act). ²

Bacon was injured on August 29, 1985 after falling from the back of a pickup truck owned by the City and used in its rodent control program where Bacon was employed for the summer. The truck was being driven by James Tucker (Tucker), an employee of the City on rodent control program business. At the time of the accident, Bacon was in the course of his employment with the City pursuant to the Summer Youth Employment and Training Program (SYETP), a federal job program under the Job Training Partnership Act ³ administered by OET. As a result of his accident, Bacon filed a negligence action against Tucker and the City seeking damages for personal injuries sustained. Motions for summary judgment were filed by Tucker and the City asserting immunity from suit under the Act. Summary judgment was granted in favor of Tucker only, resulting in the City's appeal.

This Court's scope of review in reviewing a grant or denial of summary judgment is limited to determining whether the trial court committed an error of law or abused its discretion. County of Schuylkill v. Maurer, 113 Pa.Commonwealth Ct. 54, 536 A.2d 479 (1988). For courts to enter summary judgment, the record must demonstrate that no genuine issue of material fact exists after an examination of the record in a light most favorable to the non-moving party. Jones v. Cheltenham Township, 117 Pa.Commonwealth Ct. 440, 543 A.2d 1258 (1988).

The question of whether an employer-employee relationship exists is one of law based upon findings of fact. While there is no set formula for determining the existence of an employer-employee relationship, this Court has held that the key element is the right to control the manner in which work is performed. However, each case must be decided on its own facts. City of Scranton v. Workmen's Compensation Appeal Board (Cimoch), 88 Pa.Commonwealth Ct. 64, 488 A.2d 648 (1985).

The City asserts that the determination of which governmental body is the employer for purposes of the Act should be governed by a Superior Court case which held that the "borrowed servant" doctrine, i.e., the entity that has actual control or the right to control the work to be done and the manner of its performance, determines the existence of an employer-employee relationship. Keller v. Old Lycoming Township, 286 Pa.Superior Ct. 339, 428 A.2d 1358 (1981). ⁴ In Keller, the administrative entity referred CETA participants to employers who determined whether or not they would hire the referred individual. The Court there held that workers in the CETA program were employees of their work site placement or the hiring entity rather than employees of the administrative entity involved. Keller, 286 Pa.Superior Ct. at 344, 347, 350-351, 428 A.2d at 1361-1362, 1364. In the matter before this Court, the City, specifically Bacon's supervisors in the rodent control program, trained Bacon to do the work required of him. The City exercised control over Bacon with regard to the work to be done as well as the manner of performing it. Keiter Exhibit 1, p. 3; Keiter Exhibit 2, p. 2; Deposition of Arthur Bacon N.T., pp. 15-16. OET did not supervise the work to be done by Bacon. These facts, the City argues, dictate that the City is Bacon's employer for purposes of the Act.

This Court has previously held that the "prime sponsor" test governs the determination of employer status for purposes of the Act. That is, an agency which receives and administers federally provided funds for employees' wages and payment of workmen's compensation insurance premiums is the employer for purposes of the Act. Pennsylvania Manufacturers' Association Insurance Co. v. Workmen's Compensation Appeal Board, 52 Pa.Commonwealth Ct. 588, 418 A.2d 780 (1980). (Federal government provided the county with funds to pay worker's compensation coverage for persons employed under the CETA program. Therefore, the county was claimant's employer at the time of his injury, although the community progress council had charge of training and supervision of claimant and of any disciplinary and firing responsibilities.) See also County of Armstrong v. Workmen's Compensation Appeal Board (Ross), 81 Pa.Commonwealth Ct. 474, 473 A.2d 755 (1984) (in determining whether employee hired under CETA was working for the county or the borough when he suffered a work-related injury, the county which administered the CETA program and retained financial control of the employee was the employer responsible for paying benefits rather than the borough which supervised and directed the employees' daily work). Here, OET was responsible for pay, for social security and for worker's compensation premiums for participants in the SYETP program. Keiter Exhibit 1, p. 2; Deposition of Kathryn Keiter, p. 24. OET is therefore the prime sponsor of the program employing Bacon. These facts, Bacon argues, dictate that OET is his employer for purposes of the Act.

Both Pennsylvania Manufacturers' Association and Armstrong relied upon the holding in Frederico Granero Co. v. Workmen's Compensation Appeal Board, 43 Pa.Commonwealth Ct. 308, 402 A.2d 312 (1979) to support the decisions reached. In Frederico, petitioner filed a fatal claim petition for death benefits as a result of her husband's death while performing carpentry work. Workmen's compensation benefits were awarded by the Board to petitioner. On appeal to this Court, Frederico Granero Company contended that the decedent was not an employee of the Company. The record established that the Company would call decedent on the telephone...