Williams v. Delta Truck Body Co., Inc.

• Decision Date: 29 December 1989
• Docket Number: No. 89-1168,89-1168
• Parties: Eugene WILLIAMS, Appellant, v. DELTA TRUCK BODY COMPANY, INC., Appellee.
• Court: U.S. Court of Appeals — Third Circuit

Page 327

892 F.2d 327

Eugene WILLIAMS, Appellant, v. DELTA TRUCK BODY COMPANY, INC., Appellee.

No. 89-1168.

United States Court of Appeals, Third Circuit.

Argued July 10, 1989.

Decided Dec. 29, 1989.

Richard A. Weisbord (argued), Weisbord & Weisbord, P.C., Philadelphia, Pa., for appellant.

Fred Greenberg (argued), Hepburn, Willcox, Hamilton & Putnam, Philadelphia, Pa., for appellee.

Before HIGGINBOTHAM, BECKER, and NYGAARD, Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

This appeal presents the familiar "borrowed servant" question, i.e., whether a plaintiff seeking a common law damage recovery for personal injuries is the servant of the employer in pursuit of whose activities he was injured, and hence barred from third party recovery against that employer by the exclusive remedy provisions of the worker's compensation laws, or whether he remains the servant of the employer who "loaned" him, so as to be entitled to bring a third party suit. Because temporary employment services have vastly increased their presence in the labor market, this question arises with considerable frequency.

Appellant Eugene Williams seeks to recover for injuries sustained in a fall in the parking lot of Delta Truck Body ("Delta") that occurred while Williams was working temporarily at Delta through his contract with EDP/TEMPS ("EDP"). Williams was a skilled computer operator placed in charge of Delta's financial computer operations, and given responsibility for training Delta employees in computer skills. After discovery, the district court granted Delta's motion for summary judgment, concluding, under Pennsylvania Law, ¹ that Delta was Williams's employer for purposes of the exclusive remedy provision of the Pennsylvania Worker's Compensation Act, 77 Pa.Stat.Ann. § 481 (Purdon Supp.1988) ("the Act"). Under Pennsylvania law, determination of borrowed servant status turns on the application of a multi-faceted test, the most important aspect of which is the right of the putative borrowing employer to control the manner and method of performance of the employee's work. However, one aspect of Pennsylvania's test focuses on the question whether the putative borrowed servant is a highly skilled specialist who requires no further training in order to perform his duties; if he is, he may be considered independent of the putative borrowing employer's control. That rule is critical in this case.

The district court, after examining the record, concluded that the right of Delta to control the manner and method of Williams's performance was clear. We are not so convinced, particularly in view of the evidence of Williams's considerable expertise in the computer field. Rather, we conclude that there is a genuine issue of material fact as to whether the right of control that Delta enjoyed over Williams was just to tell him what to do or also to tell him how to do it. Under the circumstances we must reverse and remand for further proceedings.

I.

Williams sustained serious back injuries on December 26, 1985 when he slipped on the ice and fell while walking across the Delta parking lot. ² Williams received worker's compensation benefits from EDP but filed this negligence action against Delta to recover for his injuries, claiming that EDP was his true employer at the time of the accident. Delta contended that it was Williams's employer and moved for summary judgment based upon the exclusive remedy provisions of the Act. The district court granted the motion, and this appeal followed. The following is a summary of the relevant facts of record.

On September 13, 1985, EDP, whose specialty is furnishing skilled temporary personnel, and Delta entered into a verbal agreement for EDP to assign Williams to Delta. The agreement was for the services of Williams only, and EDP had no right to select or provide other persons to work at Delta. It was anticipated that Williams would work for Delta for approximately two months; in fact, however, Williams worked at Delta for more than three months, from September 16, 1985 through the date of his injury. Williams was to run Delta's financial computer operations until such time as Delta could find a permanent replacement to fill the position. Williams was prohibited by his contract with EDP from accepting direct employment with Delta. EDP also retained the right to withdraw Williams from his job assignment and to assign him elsewhere. Delta did not have the power to hire or fire Williams; this power was reserved to EDP.

Delta paid EDP a flat hourly rate of $16.00 for Williams's services, from which EDP paid Williams $9.00 per hour and took all of the necessary deductions, including payroll taxes. Delta did not pay unemployment compensation taxes or worker's compensation premiums for Williams; rather, such premiums were paid by EDP, and reimbursed by Delta as part of the flat hourly rate. As noted above, when Williams in fact became entitled to worker's compensation benefits, such benefits were paid by EDP's worker's compensation carrier.

Delta paid no wages to Williams, and he was not entitled to any sick or holiday leave from Delta. When Williams wanted time off, he had to arrange for leave through EDP, and on one occasion such leave was arranged over the objection of Delta. When Delta employees were dismissed because of inclement weather, they were paid for the balance of their day, but Williams was not. Williams was an hourly employee, and the duration of his work at Delta was uncertain. When his schedule at Delta was cut back to 4 to 5 hours per day, EDP agreed to assign him to a concurrent assignment at another job site.

Although the foregoing facts are essentially undisputed, the facts relating to the nature of the training provided to Williams by Delta are not. According to Delta, Williams was trained for two weeks by two of Delta's employees, Cindy Leeland and Jeff Frederick, to perform the specific tasks that he was expected and required by Delta to perform. Delta further asserts that Williams's activities were supervised and controlled by both Haas Patel (Delta's controller) and Anthony Custer (Delta's former Treasurer, a Vice President of Finance). The weekly time card that EDP required Williams to complete and Delta to sign stated: "EDP/TEMPS employee's performance is directly under the customer's supervision and is acceptable to the customer." Further, Kenneth P. Reisman, the general counsel of Technical Aid Corporation, who manages the legal affairs of EDP, stated in an affidavit in support of the motion for Summary Judgment that the agreement between EDP and Delta "entitled Delta to exercise complete control and supervision over the work to be done by Williams and the manner in which it was to be performed." However, there is no specific evidence that EDP exercised control over the work that Williams performed at Delta, or the manner in which that work was performed.

According to Williams's affidavit, Williams trained Delta employees to program and operate its computers. He was already skilled in the operation of such computers and required no specialized training at the assignment site. All he received from Delta was general direction and, having more skill in the computer operation than anyone from Delta, he operated independently and trained Delta employees. In Williams's submission, Delta possessed (and exercised) only the right to tell him what to do, not how to do it:

I did not receive computer instructions from Delta employees. On the contrary, I provided instruction and training....