Mason v. Ne. Architectural Prods.

• Docket Number: 735 MDA 2023,J-S39034-23
• Decision Date: 21 December 2023
• Parties: ANTHONY MASON Appellant v. NORTHEAST ARCHITECTURAL PRODUCTS D/B/A DARON NORTHEAST
• Court: Pennsylvania Superior Court

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ANTHONY MASON Appellant
v.
NORTHEAST ARCHITECTURAL PRODUCTS D/B/A DARON NORTHEAST

No. 735 MDA 2023

No. J-S39034-23

Superior Court of Pennsylvania

December 21, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Order Entered April 28, 2023 In the Court of Common Pleas of Lackawanna County Civil Division at No(s): 2017-06152

Benjamin D. Kohler, Esq.

BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM

McCAFFERY, J.

Anthony Mason (Mason) appeals from the order entered in the Lackawanna County Court of Common Pleas entering summary judgment in favor of Northeast Architectural Products d/b/a/ Daron Northeast (Daron) in this negligence action seeking damages for a work-related injury. On appeal, Mason contends the trial court erred in determining, as a matter of law, that he was Daron's "borrowed employee" at the time of the incident, and, therefore, Daron was immune from liability under the exclusivity provisions of Pennsylvania's Workers' Compensation Act (WCA).^[1] For the reasons below, we affirm.

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Mason instituted this negligence action following a work-related injury he suffered on January 22, 2016, while working at Daron's manufacturing plant. Daron produces "[h]ardscape products," such as pavers and concrete blocks. See Daron's Motion for Summary Judgment, 2/3/23, Exhibit G, Deposition of Michael Kapuscinski, 12/1/22 (Kapuscinski's Deposition) at 10.^[2]Approximately a month prior, Mason went to Express Services, Inc. (Express), a temporary employment agency, in search of employment. See Daron's Motion for Summary Judgment, Exhibit I, Deposition of Anthony Mason, 11/1/21 (Mason's Deposition) at 33-34. He filled out paperwork for Express and was told about an inspector position at Daron. Id. at 35. Express explained "it was a physically demanding job, very fast-pace[d], 12-hour days[,]" and instructed him to report to Daron at 5:00 a.m. the next workday. Id. at 35-37.

When Mason arrived at Daron for work, one of Daron's supervisors, Dale, gave him and the other new workers a tour of the facility, and provided them with hearing protection, eyewear, and gloves. See Mason's Deposition at 39-40. He had been informed by Express that he needed to wear steel-toed boots. Id. at 40. Dale had a "brief" discussion with Mason concerning his job responsibilities, which included "inspection of the . . . bricks [as they]

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were coming out of the mold[,]" and the removal of any defective bricks from the conveyor belt before they went into the "palletizer." Id. at 40-41, 51.

The accident occurred when Mason stopped the conveyer belt after noticing "a brick was angled improperly" as it entered the palletizer. Mason's Complaint, 5/15/20, at 4. In order to "access the line," Mason had to enter a caged-off area near a mechanical arm. Id. He had been told that when he opened the cage door, "magnetization would stop everything . . . inside the fence[,]" including the mechanical arm. See Mason's Deposition at 57.

However, upon entering the area, the mechanical "arm struck him, and pinned him against a barrier . . . causing severe injuries[.]" Mason's Complaint at 4. Mason subsequently received workers' compensation benefits from Express.^[3]See N.T., 4/11/23, at 4.

Mason initiated this negligence action against Daron by filing a praceipe for writ of summons on November 21, 2017. Subsequently, on May 15, 2020, Mason filed a complaint,^[4] and Daron thereafter filed an answer and new

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matter, asserting, inter alia, it was statutorily immune from liability as Mason's employer. See Daron's Answer & New Matter to Mason's Complaint, 7/23/20, at 20.

After discovery was complete, on February 3, 2023, Daron filed a motion for summary judgment, arguing, inter alia, there was no genuine issue of material fact that Mason was Daron's borrowed employee, and, therefore, Daron was entitled to workers' compensation immunity. See Daron's Motion for Summary Judgment at 9. Mason filed an answer, and the trial court conducted oral argument on April 11, 2023.

Thereafter, on April 28, 2023, the trial court granted Daron's motion and entered judgment in its favor. This timely appeal by Mason follows.^[5]

Mason purports to raise three issues for our review

I. Whether [Daron] is considered a statutory employer[?]

II. Whether the trial court erred in granting [Daron's] motion for summary judgment[?]

III. Whether the trial court erred in ruling . . . Mason was [Daron's] borrowed employee as a matter of law[?]

Mason's Brief at 5. Because all three of Mason's claims challenge the trial court's determination that he was Daron's "borrowed employee" for purposes of WCA immunity, we address the claims together.

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A trial court may grant summary judgment "when the record clearly shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Krepps v. Snyder, 112 A.3d 1246, 1258 (Pa. Super. 2015) (citation omitted). When considering a trial court's order granting summary judgment:

We view the record in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. . . . Our scope of review . . . is plenary, and our standard of review is clear: the trial court's order will be reversed only where it is established that the court committed an error of law or abused its discretion.

Gardner v. MIA Prod. Co., 189 A.3d 441, 443 (Pa. Super. 2018) (citation omitted).

"[T]he WCA requires employers to pay employees who are injured on the job workers' compensation benefits regardless of negligence[,]" in exchange for which employers receive immunity from tort liability with respect to work-related injuries. Brown v. Gaydos,____ A.3d____,_____ 2023 PA Super 258, *3 (Pa. Super. Dec. 7, 2023) (en banc) (citation omitted). See also 77 P.S. § 481(a).

Preliminarily, we emphasize that the trial court did not find Daron was Mason's "statutory employer" for purposes of WCA immunity pursuant to the five-part test outlined in McDonald v. Levinson Steel Co., 153 A. 424 (Pa. 1930). See id. at 426 (requiring the following elements to create "statutory employer" relationship: (1) employer is under contract with owner or one in position of owner; (2) premises is under control of or occupied by owner; (3)

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subcontract made by employer; (4) employer entrusted part of regular business to subcontractor; and (3) injured worker is employee of subcontractor). See also 77 P.S. § 52. Despite the fact that Mason addresses "statutory employer" immunity in his first issue, he concedes that Daron "did not assert this area of immunity." See Mason's Brief at 14.

Rather, the trial court found Daron was immune from liability under the WCA because Mason was his "borrowed employee" or "borrowed servant."

[T]he borrowed servant doctrine is an outgrowth of the common law rule that a servant who is loaned by his master to a third party is regarded as the servant of that third party while under that third party's direction and control. The "borrowing employer" is thus the common-law master of the borrowed employee - and, by definition, the borrowing employer cannot be a statutory employer. . . .

Shamis v. Moon, 81 A.3d 962, 969-70 (Pa. Super. 2013) (citations & quotation marks omitted; emphasis in original). The courts of this Commonwealth have applied the following test to determine whether an injured worker is a "borrowed employee" for purposes of WCA immunity:

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.

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Burrell v. Streamlight, Inc., 222 A.3d 1137, 1139-40 (Pa. Super. 2019) (emphasis in original), citing JFC Temps, Inc. v. W.C.A.B. (Lindsay), 680 A.2d 862, 864 (Pa. 1996).

In the present case, the trial court determined that the record supported a finding, as a matter of law, that Mason was Daron's "borrowed employee," and, therefore, Daron was immune from tort liability for Mason's workplace injury. The court opined:

There is no issue of fact here that Daron had the right to control Mason's work and the manner in which it was performed. There is no evidence to suggest that Express . . . directed Mason to do anything but show up at a determined time, it did not direct how his work was to be performed and it did not have any supervisory personnel at Daron's facilities. While it is undisputed that representatives of Express . . . visited Daron's facilities, they did so once or twice a year and it was more in the nature of a "sales call." Indeed, Mason was not aware when those visits took place nor did he witness any such visits.

All in all, we are satisfied that Daron had the right to control Mason's work and the manner in which it was performed. Daron was, as a matter of law, Mason's employer under the Workers' Compensation Act and immune from personal injury tort liability.

Trial Ct. Op. at 10-11.

Mason argues, however, that the record contains disputed issues of material fact as to whether Daron or Express was Mason's employer at the time of his injury. See Mason's Brief at 14. He contends that...