Dempster v. Waste Management Inc.

41 Pa. D. & C.4th 401, 1998 Pa. Dist. & Cnty. Dec. LEXIS 94
CourtPennsylvania Court of Common Pleas, Alleghany County
DecidedMay 5, 1998
Docketno. GD96-11731
StatusPublished

This text of 41 Pa. D. & C.4th 401 (Dempster v. Waste Management Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Alleghany County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dempster v. Waste Management Inc., 41 Pa. D. & C.4th 401, 1998 Pa. Dist. & Cnty. Dec. LEXIS 94 (Pa. Super. Ct. 1998).

Opinion

WETTICK, J.,

The subject of this opinion and order of court is Waste Management Inc.’s motion for summary judgment. Plaintiff has sued Waste Management to recover damages which he sustained when he was injured while riding on the rear step of a Waste Management truck. In this motion for summary judgment, Waste Management seeks dismissal of plaintiff’s claims on the ground that at the time of the accident Waste Management was plaintiff’s employer under the borrowed servant doctrine and is therefore immune from suit under section 481 of the Pennsylvania Workers’ Compensation Act, Act of June 2, 1915, P.L. 736, 77 PS. §481. Section 481 provides that an employer shall not be liable to an employee in any action at law on account of any injury which the employee sustained during the course of his employment. Waste Management relies on established Pennsylvania case law which both imposes the obligation on a borrowing employer to provide workers’ compensation benefits to a borrowed employee and provides the immunity protections of the Workers’ Compensation Act to the borrowing employer. JFC Temps Inc. v. W.C.A.B. (Lindsay), 545 Pa. 149, 680 A.2d 862 (1996); Wilkinson v. K-Mart, 412 Pa. Super. 434, 603 A.2d 659 (1992); English v. Lehigh County Authority, 286 Pa. Super. 312, 428 A.2d 1343 (1981).

[403]*403At the time of the accident, plaintiff was an employee of Network Industrial Inc., a temporary employment agency. Network had a contract with Waste Management under which it provided temporary laborers to Waste Management. At Network’s direction, on December 30, 1995, plaintiff reported to the Ambridge facility of Waste Management as a potential temporary thrower/helper. On that date, Waste Management conducted an orientation for temporary employees which consisted of viewing films and listening to supervisors’ presentations. Waste Management determined that plaintiff was qualified for the position of thrower/helper and directed him to report for work on January 2, 1996.

From January 2, 1996 through March 8, 1996, this being the date of the accident that is the subject of this litigation, plaintiff worked as a temporary thrower/helper. For the first two weeks, he worked with the same driver for his initial training. Thereafter, Waste Management assigned plaintiff to various trucks and drivers, depending upon Waste Management’s needs. During this two-month period, plaintiff worked regularly as a thrower/helper, averaging close to 40 hours per week.

Plaintiff reported to work in the early morning of March 8,1996. He was assigned by Waste Management to a specific truck. At the time of the accident, plaintiff was standing on a rear step of the truck. The accident occurred when the truck unexpectedly slid backwards into a brick building pinning plaintiff between the truck and the building.

Throughout the approximate two-month period that plaintiff performed work for Waste Management, in-[404]*404eluding the date of the accident, Waste Management set plaintiff’s hours, schedule, and duties. No one from Network had any involvement in deciding the particular work that plaintiff performed, the manner in which plaintiff would perform the work, the hours that plaintiff worked, or the Waste Management driver to whom plaintiff was assigned. No one from Network provided any instructions to plaintiff regarding the performance of his duties as a thrower/helper. Waste Management determined the work that plaintiff performed and the manner in which he performed the work.

Prior to his assignment to Waste Management, plaintiff executed a writing (Policies and Procedures Checklist of Network Industrial Inc.) which stated that plaintiff understood that he was an employee of Network and that only Network could terminate his employment. The writing provided that if plaintiff cannot make it to work or will be late, he is to contact Network so that Network may call its client and/or find a replacement. The writing further provided that Network pays its employees once a week with checks to be distributed at the work site or mailed directly to the employee’s home according to each job site’s specification. Pursuant to this writing, Network paid plaintiff’s wages during the period that he was assigned to Waste Management and made the necessary state and federal tax deductions and payments. Network also maintained a personnel file for plaintiff — Waste Management did not do so because plaintiff was a temporary helper.

Network assigned plaintiff to Waste Management pursuant to a March 2, 1995 temporary service agreement between Waste Management and Network. The agreement provided that Waste Management is an inde[405]*405pendent contractor and that Network’s employees assigned to perform work for Waste Management are solely the employees of Network. The agreement further provided that Network will carry workers’ compensation insurance (minimum limit of liability — $1,000,000) that shall name Waste Management as an additional insured with Network to furnish certificates of insurance and endorsements evidencing such coverage.

Only Network had the authority to discipline plaintiff or to terminate plaintiff’s employment with Network. However, at any time Waste Management could terminate plaintiff’s assignment to Waste Management, in which case plaintiff would report to Network for another assignment.

At the time of the accident, Network had a policy of workers’ compensation insurance with State Workmen’s Insurance Fund. After plaintiff’s accident, Network filed an employer’s report of occupational injury which stated that Network was plaintiff’s employer and that Network was responsible for the workers’ compensation benefits. Plaintiff has received workers’ compensation benefits pursuant to this policy.

The case law which Waste Management cites supports its position that for workers’ compensation purposes, including its immunity provisions, plaintiff was Waste Management’s employee at the time of the accident.

In JFC Temps Inc. v. W.C.A.B. (Lindsay), supra, the Pennsylvania Supreme Court addressed the issue of when an employer-employee relationship exists under the law governing the borrowed employee doctrine. The court stated that:

“The test for determining whether a servant furnished by one person to another becomes the employee of [406]*406the 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.” Id. at 153, 680 A.2d at 864. (citations omitted)

The issue that the court addressed in JFC Temps was whether workers’ compensation benefits should be provided by the temporary employment agency which employed plaintiff or by the entity to which the employee was assigned, G&B.

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Related

Cranshaw Construction Inc. v. Ghrist
434 A.2d 756 (Superior Court of Pennsylvania, 1981)
JFC Temps, Inc. v. Workmen's Compensation Appeal Board
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Red Line Express Co. v. Workmen's Compensation Appeal Board
588 A.2d 90 (Commonwealth Court of Pennsylvania, 1991)
English v. Lehigh County Authority
428 A.2d 1343 (Superior Court of Pennsylvania, 1981)
Wilkinson v. K-Mart
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606 A.2d 655 (Commonwealth Court of Pennsylvania, 1992)

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Bluebook (online)
41 Pa. D. & C.4th 401, 1998 Pa. Dist. & Cnty. Dec. LEXIS 94, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dempster-v-waste-management-inc-pactcomplallegh-1998.