Pennsylvania: Summary Judgment Based On Borrowed Employee Doctrine
October 2, 2017

Preston v. Gen Con, et al., Philadelphia Court of Common Pleas No. 02075, January 2016 Term.

This case involved a 19-year-old bicyclist, Michael Preston, who was seriously injured on Frankford Avenue in Philadelphia, Pennsylvania, when he struck a depressed section of the roadway and was thrown from his bicycle.

Plaintiff claimed that he suffered serious and permanent disfigurement from a frontal sinus fracture requiring sutures as well as multiple herniations with radiculopathy as a result of the accident. Plaintiff alleged that the depressed section of the roadway that he struck was under construction hours prior to the accident.

Plaintiff filed suit against the owners of the property, the general contractor, the City, the Commonwealth, the Department of Transportation, an engineering firm as well as Rawle & Henderson LLP’s client, Gen Con, an excavator hired by the general contractor for this construction. Plaintiff alleged that the repair, and particularly the excavation, was improper. Plaintiffs also alleged that backfill material and grade was not compliant with both the City and the Commonwealth’s regulations. Liability was contested by all of the defendants.

At the conclusion of discovery, Rawle & Henderson LLP filed a Motion for Summary Judgment on behalf of its client Gen Con, the excavator, arguing that it had no liability for the accident as it was the “borrowed employee” of the general contractor. Under the borrowed employee doctrine, when an employee of one entity is furnished to another entity, the employee referred to as a “borrowed” employee is relieved of liability during the period of transferred control for the employee’s job-related torts.

The general rule in Pennsylvania is that an employer is vicariously liable for negligent acts of its employees that cause injuries to a third party, “provided that such acts were committed during the course of and within the scope of the employment.” Valles v. Albert Einstein Medical Center, 2000 PA Super 243, 758 A.2d 1238, 1244 (Pa.Super. 2000). Where an employee of one entity is furnished to another entity, the employee is sometimes referred to as a “borrowed” employee. In such situations an issue may arise as to whether vicarious liability for torts of the employee remains with the first employer or passes to the second employer. Id.

A servant is the employee of the person who has the right of controlling the manner of his performance of the work, irrespective of whether he exercises that control or not. Mature, at 97 A.2d at 60 (emphasis in original) (internal citations omitted); see also Wilkinson v. K-Mart, 412 Pa. Super. 434, 603 A.2d 659 (Pa. Super. 1992). In Mature v. Angelo, 373 Pa. 593, 97 A.2d 59 (Pa. 1953), the Pennsylvania Supreme Court held that, under the borrowed servant doctrine:

“The crucial test in 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.”

In our Brief in support of our Motion for Summary Judgment, Rawle & Henderson LLP argued that our client met the necessary requirements to be considered “under the control of the general contractor” as it performed all of its duties under the sole direction, guidance and control of the general contractor. We cited to admissions from the general contractor that it supervised and directed our client’s performance, paid for its work on a per diem basis, and had no written contract with it supporting that it was an independent contractor as opposed to an employee. We argued that the evidence was undisputed that when Gen Con was furnished to the general contractor, it did so under the general contractor’s complete control with regard not only to the work to be done, but also to the manner of performing it.

On June 6, 2017, counsel for Plaintiff timely filed written opposition to the Motion for Summary Judgment. Plaintiff argued that the evidence supported that our client was hired for its expertise in excavation and that there were issues of fact concerning the excavation and backfill procedure establishing that our client was not a borrowed employee; but rather an independent contractor. On June 8, 2017, The Honorable Ellen Ceisler granted defendant’s Motion for Summary Judgment.

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