J-A13044-20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
BARBARA WENNINGER AND JOHN : IN THE SUPERIOR COURT OF
WENNINGER, H/W, : PENNSYLVANIA
:
Appellants :
:
v. :
:
HTSS, INC. AND MICHAEL KRAMER, :
: No. 2786 EDA 2019
Appellees
Appeal from the Order Entered September 16, 2019
in the Court of Common Pleas of Bucks County
Civil Division at No(s): No. 2017-02690
BEFORE: BENDER, P.J.E., LAZARUS, J. and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED: APRIL 5, 2021
Barbara and John Wenninger appeal from the September 16, 2019
order granting summary judgment in favor of HTSS, Inc. (HTSS) and
Michael Kramer (collectively, Defendants).1 Upon review, we vacate the trial
court’s grant of summary judgment in favor of Defendants and against the
Wenningers and remand to the trial court for further proceedings.
We glean the following from the record. On July 7, 2015, Wenninger, a
human resources coordinator employed by Ryder Truck Rental and
Maintenance Services (Ryder), fell on a wet bathroom floor while she was at
work. According to Wenninger, there were no indications from the hallway
1 References to Wenninger in this memorandum refer to Barbara, but
references to the Wenningers refer to both Barbara and John. John brought
a loss of consortium claim against Defendants, but was not involved in the
incident at issue.
___________________
* Retired Senior Judge assigned to the Superior Court.
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outside the bathroom that the floor was wet. When she swung the bathroom
door open, she took one step inside and immediately fell on the wet
bathroom floor. She sustained injuries to her hip, shoulder, and back, and
underwent a total hip replacement.
The floor had recently been mopped by Michael Kramer, a temporary
worker assigned to Ryder by HTSS, a staffing services agency. In 2015,
Ryder had stopped hiring employees in anticipation of closing the facility and
arranged for the services of temporary workers employed by HTSS instead.
As a human resources manager, part of Wenninger’s job at Ryder included
hiring these temporary workers through HTSS. Ryder and HTSS negotiated
the rates Ryder would be billed, from which HTSS would pay the temporary
workers’ hourly wages. HTSS and Ryder had no written contract regarding
this arrangement.
After Wenninger requested that HTSS provide Ryder a temporary
employee to perform cleaning tasks, HTSS hired Kramer and assigned him
to work at Ryder beginning in late June 2015. At Ryder, Kramer filled out a
weekly timesheet, which he submitted to Wenninger. She faxed it to HTSS
so that HTSS could pay Kramer for the hours he worked at Ryder. HTSS
retained responsibility for paying Kramer’s wages, workers’ compensation
benefits, and taxes related to his employment. If Kramer was unable to
report to work at Ryder due to sickness or another unexpected reason, he
was supposed to contact HTSS. HTSS selected the temporary workers for a
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given job based on the scope of the job requested by Ryder. HTSS retained
the right to terminate a worker’s employment, but Ryder could unilaterally
request removal of the worker from the assignment.
On his first day of work, Ryder provided Kramer with a safety vest and
safety glasses, and directed him to purchase safety boots, for which Ryder
would reimburse him up to $50. According to Wenninger, Ryder’s general
maintenance manager, Mark Tenaglia, “would direct [Kramer] as to what
[Ryder] needed to have accomplished.” Motion for Summary Judgment,
4/2/2019, at Exhibit C (Wenninger Deposition, 6/7/2018, at 27). Tenaglia
was a “task person” who “would show [Kramer] this is what we need to do.
This is why you are here.” Id. Kramer recalls that he met with someone in
the office who introduced him to a Ryder employee named Jose, who was to
train him. Id. at Exhibit F (Kramer Deposition, 6/7/2018, at 21-23). Jose
spoke “broken” English, but Kramer got the gist of what Jose was saying,
which was “[h]ere’s how you perform these acts. Here’s how you do it. So it
was kind of a monkey see, monkey do to replicate what he did.” Id. at
Exhibit F (Kramer Deposition, 6/7/2018, at 24). Jose showed him how to
perform his assigned tasks, which were all custodial in nature: cleaning
windows, emptying trash cans, mopping the floors of Ryder’s five
bathrooms, and sweeping the warehouse floor. Id. at Exhibit F (Kramer
Deposition, 6/7/2018, at 24, 28). Ryder provided Kramer a list of tasks to
complete daily, but Kramer decided the order in which he completed the
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tasks. Id. at Exhibit F (Kramer Deposition, 6/7/2018, at 30-33, 84). Kramer
never discussed the tasks with HTSS. Id.
When it came to the bathrooms, Kramer typically began by emptying
the trash, cleaning mirrors and toilets, and filling soap and paper towel
dispensers as needed. He then mopped the entire tile floor from back to
front. Id. at Exhibit F (Kramer Deposition, 6/7/2018, at 36-38). Kramer,
who was in college and considered this assignment to be his summer job,
had never mopped a floor prior to performing this task at Ryder. Kramer was
aware prior to starting this job that a tile floor could be slippery when wet
and a caution sign could warn people of this fact. Jose told Kramer to put out
wet floor signs when mopping as part of his training. He did not tell Kramer
where to position the sign. Ryder stored wet-floor caution signs in certain
bathrooms, but Kramer was unaware of such a sign being stored in the
women’s bathroom near the offices. Id. at Exhibit F (Kramer Deposition,
6/7/2018, at 28-29).
On the day in question, Kramer mopped the women’s bathroom near
the offices. He then left the recently-mopped bathroom to retrieve a wet-
floor caution sign from the maintenance cage where Ryder stored the
cleaning supplies. Id. at Exhibit F (Kramer Deposition, 6/7/2018, at 53).2 By
2
Despite Kramer’s implicit admission that he had not set up a wet floor sign
prior to mopping, and the assertion in the Wenningers’ brief that he had not
set up a wet floor sign, see the Wenningers’ Brief at 4, Wenninger testified
that after she fell, she saw a wet floor sign inside the bathroom. Wenninger
(Footnote Continued Next Page)
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the time he had returned, Wenninger had fallen on the floor. He sometimes
left the mop cart in the hallway during mopping, but did not on this
particular day. He did not recall where he left the cart.
Approximately two weeks following Wenninger’s accident, Ryder told
Kramer his services were no longer needed. Id. at Exhibit F (Kramer
Deposition, 6/7/2018, at 54-56). Kramer then contacted HTSS and told him
he was resigning from his employment with HTSS. Id.
Following her accident at work, Wenninger filed a claim and obtained
compensation from Ryder pursuant to the Workers’ Compensation Act.3
Subsequently, the Wenningers filed a complaint on April 21, 2017, alleging
negligence against Defendants. Specifically, the complaint alleged that
Kramer was negligent when he mopped the bathroom floor at Ryder,
insomuch as he “allow[ed] the bathroom floor of the property to be and
remain in a dangerous and defective condition” and “allow[ed] water to
(Footnote Continued) _______________________
Deposition, 6/7/2018, at 41-42. Nevertheless, this portion of Wenninger’s
deposition appears only in the supplemental reproduced record. Since it was
neither before the trial court nor made part of the certified record, we will
not consider it.
3 As such, Ryder is not part of this lawsuit. See Grabowski v. Carelink
Community Support Servs., Inc., 230 A.3d 465, 471 (Pa. Super. 2020)
(“[Generally,] where an injury is covered by the [Workers’ Compensation
Act], workers’ compensation is the employee’s sole remedy against her
employer and the employee may not bring a tort action against her
employer.”); 77 P.S. § 481(a) (“The liability of an employer under this act
shall be exclusive and in place of any and all other liability to such
employe[e], [her] husband, … or anyone otherwise entitled to damages in
any action at law or otherwise on account of any injury or death[.]”).
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accumulate and remain on the bathroom floor … for an unreasonable length
of time so as to create an unreasonable hazard to invitees, in general, and
[Wenninger] in particular.” Complaint, 4/21/2017, at ¶ 9(b). The
Wenningers also averred that Kramer “fail[ed] to post or display warnings to
invitees, in general, and [Wenninger] in particular, of the dangers associated
with water on the bathroom floor.” Id. at ¶ 9(c).
The Wenningers averred that HTSS was vicariously liable for the acts
of Kramer because Kramer was an employee of HTSS. Id. at ¶ 15. The
Wenningers also averred that HTSS caused her injuries by its own negligent
and careless conduct. Specifically, they allege that HTSS “knew or should
have known that [] Kramer was not qualified, skilled[,] and/or trained to
perform the tasks he was assigned at the property and was likely to perform
such tasks, in general, and the mopping/cleaning of the bathroom floor, in
particular, in an unsafe manner.” Id. at ¶ 16(a). According to the
Wenningers, HTSS “had information tending to suggest that [] Kramer was
negligently and carelessly inclined or otherwise unfit for the assignment he
was given by [] HTSS on the property and such unfitness could be
ascertained through a proper screening process[.]” Id. at ¶ 16(b). They
further alleged HTSS breached its duty of care and failed to exercise the
proper degree of care by assigning Kramer to Ryder without “proper
screening, training[,] and instruction[,]” and ensuring that he “possessed
the necessary knowledge and skill regarding how to properly mop and clean
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a floor, in order to minimize the accumulation of water” and “properly post
caution signs and restrict access to an area where he created a wet floor
hazard to those walking on the property.” Id. at ¶ 16(c)-(e).
Defendants filed an answer denying the allegations and pleading a new
matter, to which the Wenningers replied. Following the close of discovery,
Defendants moved for summary judgment against the Wenningers.
Defendants argued that HTSS was immune from vicarious liability because
Kramer worked under Ryder’s direction and control as a borrowed employee,
and pursuant to 77 P.S. § 481, the Wenningers’ exclusive remedy was
through the Workers’ Compensation Act from Ryder. Motion for Summary
Judgment, 4/2/2019, at ¶¶ 40-51. Additionally, Defendants argued that
because Kramer was Wenninger’s co-worker and acting in the scope of his
employment at the time of the incident, Kramer was not personally liable for
any injuries from the incident pursuant to 77 P.S. § 72. Motion for Summary
Judgment, 4/2/2019, at ¶¶ 52-66.
The Wenningers filed a response, arguing that the borrowed employee
doctrine did not apply and/or there were disputes of material fact because
HTSS retained control over Kramer. Wenningers’ Reply to Motion for
Summary Judgment, 4/25/2019, at ¶¶ 7-65. They further argued Wenninger
and Kramer were not in the same employ because one worked for Ryder and
the other for HTSS. Id. They also asserted that the motion for summary
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judgment did not address the Wenningers’ claim for negligent placement and
training against HTSS. Id. at ¶¶ 35, 49.
On September 13, 2019, the trial court granted summary judgment in
favor of Defendants and against the Wenningers. The Wenningers timely
filed a notice of appeal, and both the Wenningers and the trial court
complied with Pa.R.A.P. 1925. On appeal, the Wenningers raise the following
claims, which we reorder for ease of disposition:
A. Whether the trial court committed an abuse of discretion
and/or error of law in failing to even consider whether an
employment agency, HTSS, waived the borrowed employee
defense by contract.
B. Whether the trial court committed an abuse of discretion or an
error of law in failing to find that genuine issues of material fact
existed as to the application of the borrowed employee defense.
C. Whether the trial court committed an abuse of discretion
and/or error of law in failing to provide the Wenningers with the
benefit of all favorable testimony and every reasonable inference
of fact regarding the establishment of an independent cause of
action against HTSS for failure to train and properly place
Kramer in a position whereby he caused injury to Wenninger.
The Wenningers’ Brief at 3-4 (quotation marks omitted; capitalization and
party designations altered).
We review an appeal from the grant of summary judgment mindful of
the following:
Our standard of review on an appeal from the grant of a motion
for summary judgment is well-settled. A reviewing court may
disturb the order of the trial court only where it is established
that the court committed an error of law or abused its discretion.
As with all questions of law, our review is plenary.
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In evaluating the trial court’s decision to enter summary
judgment, we focus on the legal standard articulated in the
summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
where there is no genuine issue of material fact and the moving
party is entitled to relief as a matter of law, summary judgment
may be entered. Where the nonmoving party bears the burden
of proof on an issue, he may not merely rely on his pleadings or
answers in order to survive summary judgment. Failure of a
non-moving party to adduce sufficient evidence on an issue
essential to his case and on which he bears the burden of proof
establishes the entitlement of the moving party to judgment as a
matter of law. Lastly, we will review the record in the light most
favorable to the non-moving party, and all doubts as to the
existence of a genuine issue of material fact must be resolved
against the moving party.
Krauss v. Trane U.S. Inc., 104 A.3d 556, 562-63 (Pa. Super. 2014). Our
Supreme Court has emphasized “that it is not [a] court’s function upon
summary judgment to decide issues of fact, but only to decide whether there
is an issue of fact to be tried.” Fine v. Checcio, 870 A.2d 850, 862 (Pa.
2005) (citing Pa.R.C.P. 1035.2(1)).
We begin by addressing the Wenningers’ first and second issues
challenging the trial court’s grant of summary judgment to Defendants
based upon its finding that Kramer was a borrowed employee of Ryder.
Wenningers’ Brief at 21, 25.
The borrowed employee doctrine, also known as the 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.” Shamis v. Moon,
81 A.3d 962, 969-70 (Pa. Super. 2013); see also Mature v. Angelo, 97
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A.2d 59, 60 (Pa. 1953) (“One who is in the general employ of another may,
with respect to certain work, be transferred to the service of a third person
in such a way that he becomes, for the time being and in the particular
service which he is engaged to perform, an employe[e] of that person.”).
The law governing the “borrowed” employee is well-
established. 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.
Gardner v. MIA Products Co., 189 A.3d 441, 444 (Pa. Super. 2018)
(quoting JFC Temps, Inc. v. WCAB (Lindsay), 680 A.2d 862, 864 (Pa.
1996)). The “right to control the performance of the work is the overriding
factor” in determining whether an entity is an employer for purposes of
workers’ compensation under the borrowed employee doctrine. JFC Temps,
Inc., 680 A.2d at 865.
Whether a company is [a] worker’s employer under the
borrowed employee doctrine under a given set of facts is a
question of law. If there is conflicting evidence as to the
direction, supervision or control of the work, there are disputes
of material fact and summary judgment cannot be granted.
Gardner, 189 A.3d at 444-47 (reversing summary judgment
where there was evidence that both staffing company and
company where work was done had supervisors on site who
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instructed workers); [Shamis, 81 A.3d at 965-67, 971-73]
(reversing summary judgment where there was evidence that
defendant supervised plaintiff’s work, but was also evidence that
other company that paid plaintiff was required by contract to
provide all supervision of plaintiff’s work).
Burrell v. Streamlight, Inc., 222 A.3d 1137, 1140 (Pa. Super. 2019).
Pursuant to our standard of review, we are required to examine the facts in
the light most favorable to the non-moving party, which is the Wenningers.
Gardner, 189 A.3d at 444.
In the instant case, Defendants have invoked the borrowed employee
doctrine to argue that Kramer was a borrowed employee of Ryder at the
time of the incident and, therefore, the Wenningers can recover workers’
compensation from Ryder only. This is because if an individual is injured by
the act or omission of another person in the same employ, liability is limited
by the Workers’ Compensation Act.
If disability … is compensable under this act, a person shall not
be liable to anyone at common law or otherwise on account of
such disability … for any act or omission occurring while such
person was in the same employ as the person disabled …, except
for intentional wrong.
77 P.S. § 72. Thus, the viability of the Wenningers’ action against Kramer
depends on whether or not Wenninger and Kramer were in the same
employ. Further, the claim against HTSS for vicarious liability is derivative of
the claim against Kramer; if Kramer is not liable for his acts or omissions,
neither is HTSS. See Mamalis v. Atlas Van Lines, Inc., 560 A.2d 1380,
1383 (Pa. 1989) (“A claim of vicarious liability is inseparable from the claim
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against the agent since any cause of action is based on the acts of only one
tortfeasor.”).
With that background, we turn now to the specific arguments of the
Wenningers. First, the Wenningers claim that HTSS waived by contract its
argument that Kramer was the borrowed employee of Ryder. Wenningers’
Brief at 21-22. They argue that because HTSS made Kramer sign documents
as part of his employment with HTSS stating Kramer was an employee of
HTSS and not any HTSS customer to which he was assigned, 4 Defendants
cannot now claim Kramer was an employee of Ryder.5 The Wenningers’ Brief
at 22-23.
4 For example, Kramer signed a "Policies and Procedures Checklist," which
states in pertinent part, “I understand that I am an employee of this staffing
company and only this staffing company or I can terminate my employment.
When an assignment ends I must report to this staffing company for my
next job assignment.” Motion for Summary Judgment, 4/2/2019, at Exhibit
G. The Wenningers cite to other employment documents between HTSS and
Kramer, such as a waiver and release of claims, wherein Kramer
acknowledged that any work-related injuries he sustained would be covered
by HTSS’s workers’ compensation insurance and he agreed not to sue or
make a claim against any HTSS customer related to work-related injuries,
and an HTSS employee handbook and orientation slides explaining that
HTSS was his employer and he was not an employee of HTSS’s customer.
The Wenningers’ Brief at 22-23. Although it appears that all or some of
these may have been exhibits to the Wenningers’ reply to Defendants’
summary judgment motion, they were not transmitted to this Court as part
of the certified record. Nevertheless, given our disposition, their absence
does not affect our appellate review.
5
We note that the Wenningers do not raise any sort of an estoppel
argument, such as claiming HTSS took a contrary position in prior litigation
or suggesting that Wenninger was aware of and induced to change her
behavior because of the employment documents between Kramer and HTSS.
(Footnote Continued Next Page)
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The Wenningers cite no law in support of their waiver argument,
perhaps because the law is not favorable to their position. This Court has
held that “[t]he test … is whether [a company] had the right to direct and
control [an individual’s] work and the manner of [his] performance, not the
nomenclature used by the parties.” Burrell, 222 A.3d at 1142; see also
Wilkinson v. K-Mart, 603 A.2d 659, 662 (Pa. Super. 1992) (holding that
for purposes of the borrowed employee doctrine, “the determining factor is
the actual conduct of the parties,” not how they classified the relationship in
a contract). In other words, the agreement of HTSS and Kramer upon
Kramer’s hire that Kramer would be an employee of HTSS cannot override
the application of the borrowed employee doctrine if Ryder in fact had the
right to control Kramer and become his legal borrowed employer.
Furthermore, the Wenningers’ argument is predicated on the
assumption that only Ryder or HTSS could be Kramer’s employer for
purposes of immunity under the Workers’ Compensation Act. However, the
Workers’ Compensation Act does not mandate that an employee can have
only one employer or that only one employer could invoke the immunity
afforded by the Act. In Nagle v. TrueBlue, Inc., 148 A.3d 946, 955-61 (Pa.
Cmwlth. 2016), after a thorough and persuasive analysis of law from this
Court, the Commonwealth Court, our Supreme Court, and another
(Footnote Continued) _______________________
C.f. Black v. Labor Ready, Inc., 995 A.2d 875, 878 (Pa. Super. 2010)
(explaining judicial estoppel); Novelty Knitting Mills, Inc. v. Siskind, 457
A.2d 502, 503 (Pa. 1983) (explaining equitable estoppel).
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jurisdiction, the Commonwealth Court6 determined that the Workers’
Compensation Act permitted both a temporary staffing agency and the
agency’s customer to be considered a temporary worker’s employer for the
purposes of workers’ compensation benefits and immunity from tort suits.
The temporary staffing agency was the worker’s employer because it had
provided his workers’ compensation benefits. The agency’s customer
directed and controlled the worker’s work on the job and, therefore, was his
borrowing employer.7 Accordingly, HTSS and Kramer’s agreement in the
employment documents that HTSS was Kramer’s employer and provider of
his workers’ compensation benefits does not necessarily preclude Ryder from
6 “This Court is not bound by decisions of the Commonwealth Court.
However, such decisions provide persuasive authority, and we may turn to
our colleagues on the Commonwealth Court for guidance when appropriate.”
Sampathkumar v. Chase Home Finance, LLC, 241 A.3d 1122, 1139 n.8
(Pa. Super. 2020).
7 Accord Capozzoli v. Stone & Webster Eng’g Corp., 42 A.2d 524, 526
(Pa. 1945) (holding that contractor, which had carried deceased employee
on its workers’ compensation insurance, was deceased employee’s actual
employer; subcontractor was employee’s statutory employer, which is a
legal doctrine similar to but separate from the borrowed employee doctrine;
and both actual and statutory employer were immune from a tort suit by
deceased employee’s estate); Pastore v. Anjo Const. Co., 578 A.2d 21, 25
(Pa. Super. 1990) (same). But see Gardner, 189 A.3d at 445 n. 4 (opining
in dicta that this Court has implied that there can be only one employer
under the Workers’ Compensation Act) (quoting English v. Lehigh County
Authority, 428 A.2d 1343, 1346 n.1 (Pa. Super. 1981) (“As a practical
matter, however, [staffing agency’s appeal] is of no significance, for in
deciding the appeal[] by [deceased worker’s estate] administrator … from
the order[] granting summary judgment in favor of the [staffing agency’s
customer], we shall necessarily decide whether [the staffing agency or the
customer] was [deceased worker’s] employer.”)).
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also being his employer with respect to this incident under the borrowed
employee doctrine. Accordingly, no relief is due on the Wenninger’s waiver
argument.
In their second issue, the Wenningers argue that the trial court erred
by granting Defendants’ motion for summary judgment because genuine
issues of material fact exist as to the applicability of the borrowed employee
doctrine. Wenningers’ Brief at 26. They argue that because Kramer could
determine the order and method of completing the tasks assigned by Ryder
in the task list, HTSS had not relinquished direction and control of Kramer.
Id. at 27. Additionally, they highlight that HTSS selected Kramer for the job
assignment, retained the right to discharge Kramer from his assignment,
and issued Kramer’s paychecks, and they argue these indicators show
Kramer remained the employee of HTSS. Id. at 28-29.
The trial court defended its ruling with the following rationale:
[T]here is not a genuine issue of material fact as to Ryder[’s]
exerting exclusive control over Kramer. It is uncontroverted that
in May 2015, Ryder submitted two orders to HTSS to fill
temporary cleanup positions at its Quakertown warehouse: one
for a janitorial worker, for an indefinite duration, to perform
“sanitation of warehouse, no bathrooms, have corp[rate] [sic]
coming in, clean up warehouse. Couple days, if they do well
could possibly move into co-pack area. Monday thru [sic] Friday
8 a.m. to 4:30 p.m. $10 hr.” and the second for a cleanup
worker, for a [three] week duration to “work outside doing
general cleanup Monday through Friday, 8:00 a.m. to 4:00 p.m.
$10 hr. in Quakertown area.” [Motion for Summary Judgment at
Exhibit E]. It is undisputed that the position Ryder sought to
fulfill expressly excluded bathrooms and therefore if Kramer
began cleaning bathrooms, Ryder took over the control of the
manner of how Kramer performed this duty. Ryder defined the
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skills and tasks for the temporary general cleanup position when
it requested a temporary employee from HTSS.
Trial Court Opinion (TCO), 1/6/2020, at 6-7 (party designations altered).
Upon review, we agree with the Wenningers that the trial court’s
findings regarding the scope of the work are not supported by undisputed
facts in the record. HTSS produced two work orders in discovery showing
that Ryder requested two workers from HTSS in May 2015. Motion for
Summary Judgment, 4/2/2019, at Exhibit E. But the parties dispute whether
the work orders pertained to Kramer and whether Ryder enlarged the job to
include cleaning bathrooms on its own initiative after Kramer started his
assignment. Furthermore, while the parties agree that the arrangement
between Ryder and HTSS operated generally with Ryder’s defining the skills
and tasks for the position and HTSS’s filling the position accordingly, there is
a dispute of material fact over what skills and tasks Ryder requested in this
instance.
Wenninger testified that she told HTSS that Ryder “need[ed] a laborer”
and “need[ed] someone to clean bathrooms.” Id. at Exhibit C (Wenninger
Deposition, 6/7/2018, at 21). Wenninger stated Ryder “asked [her] to get
someone to clean the bathrooms, general cleanup, wash the floor in the
hallway, sweep up in the back …. But it was focused on the bathroom,
because we had five of them and they needed to be cleaned. We had six
shifts. So there was a lot of usage.” Id. at Exhibit C (Wenninger Deposition,
6/7/2018, at 24).
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In contrast, HTSS’s corporate designee and vice-president, Arlyce
Kusler, testified that Kramer “was attached to one of the work orders” and
“[a]ccording to the order, [Kramer] was hired to do general cleanup in the
warehouse and outdoors of the property.” Id. at Exhibit D (Kusler
Deposition, 9/20/2018, at 31). Nevertheless, Kusler conceded she could not
connect Kramer’s assignment with either work order based off of the
information on the work order and neither order identified the $14.80 rate
HTSS billed Ryder for Kramer’s time. Id. at Exhibit D (Kusler Deposition,
9/20/2018, at 35, 40). Therefore, the trial court’s findings regarding the
scope of the work are neither supported by the record nor based on facts
viewed in the light most favorable to the Wenningers.
In addition to the work orders, the trial court found it significant that
“Ryder set Kramer’s work hours, identified the location where Kramer would
work, described and showed Kramer the manner how to perform his work,
provided Kramer with safety equipment and cleaning supplies to do his
work, and after Wenninger’s fall terminated Kramer from working at Ryder.”
TCO at 6-7 (party designations altered). To combat this part of the trial
court’s analysis, the Wenningers argue that because Kramer could determine
the order and method of completing the tasks assigned by Ryder in its task
list, HTSS had not relinquished direction and control of Kramer. The
Wenningers’ Brief at 27. Additionally, they highlight that HTSS selected
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Kramer for the job assignment, retained the right to discharge Kramer from
his assignment, and issued Kramer’s paychecks. Id.
In JFC Temps., Inc., a temporary agency supplied a truck driver to
its client G & B. In weighing the factors to determine whether the temporary
agency or G & B was the driver’s employer for purposes of injuries from an
accident the driver sustained on the job, our Supreme Court recognized that
the temporary agency selected the driver for the position at G & B after
examining his qualifications, it had the sole power to terminate the driver’s
employment, and the driver called off sick to the agency. JFC Temps., Inc.,
680 A.2d at 865. Nevertheless, since “the right to control the performance of
the work [was] the overriding factor,” the Court determined G & B was the
driver’s employer under the borrowed employee doctrine. Id. The Supreme
Court found it persuasive that G & B directed the driver as to the specifics of
deliveries to be made; the driver reported to G & B at the beginning and end
of each day; performed miscellaneous odd jobs under the direction of G & B
personnel; completed time slips and evaluated the driver’s performance; and
had the right to select the routes taken by the driver, even if in practice the
driver chose the routes. The temporary agency did not instruct the driver
regarding the performance of his work once he began the job at G & B and
agency personnel were not present at the worksite. “In fact, [the agency]
had no substantial contact with [the driver] other than processing his
paycheck.” Id. at 158.
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Like the driver in JFC Temps. Inc., the fact that Kramer decided the
order in which he completed the cleaning tasks is not determinative because
Ryder could have told Kramer to change the order at any time. HTSS issued
his paycheck, but Kramer did not have day-to-day interaction with HTSS on
the job site. No representative of HTSS was present. If Kramer had
questions about his work, Ryder instructed Kramer to ask Jose or the
maintenance supervisor, who were Ryder employees.
However, when we view the facts in the light most favorable to the
Wenningers, as we must, some dispute of material fact remains regarding
the control over Kramer’s tasks. Ryder’s provision of the daily task list is not
dispositive, as the mere fact that Ryder “point[ed] out … from time to time
the work to be done and the place where it is to be performed does not in
any way militate against the continuance of the relation of employe[e] and
employer between” Kramer and HTSS. See Mature, 97 A.2d at 61. In his
deposition, Kramer described his own strategies for how he tackled the
overall list for maximum efficiency as well as his particular method for
cleaning the bathroom, but it is not clear whether Kramer came up with this
method himself or whether he was following Jose’s instructions.
Moreover, Wenninger testified that Ryder directed Kramer “as to what
we needed to have accomplished” and “show[ed] him this is what we need
to do” and “this is why you are here.” Motion for Summary Judgment,
4/21/2019, at Exhibit C (Wenninger Deposition, 6/7/2018, at 27) (emphasis
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added). Kramer, on the other hand, testified that Ryder showed him
“[h]ere’s how you perform these acts” and was “kind of a monkey see,
monkey do to replicate what he did.” Id. at Exhibit F (Kramer Deposition,
6/7/2018, at 23-24) (emphasis added). Jose, a Ryder employee, told
Kramer he needed to put out a wet floor sign and showed him where to get
the sign, but not where to put it. Id. at Exhibit F (Kramer Deposition,
6/7/2018, at 28). The record is not clear if Jose instructed Kramer about
when in the process to put the sign out.
Taken as a whole in the light most favorable to the Wenningers, it is
not clear whether Ryder “assume[d] control of [Kramer’s] manner of
performing the work.” Gardner, 189 A.3d at 444 (emphasis added). The
evidence “may well allow for a finding in [Defendants’] favor,” but questions
of fact remain on the most crucial factor, which is worker control. Id. at
446-47. Because the evidence supporting Defendants’ motion for summary
judgment was not “so compelling as to resolve all questions of material fact
regarding the issue of worker control,” id., we conclude that the trial court
abused its discretion in granting summary judgment in favor of Defendants
on the negligence claim against Kramer and the vicarious liability claim
against HTSS.
In the final issue, the Wenningers argue that the trial court committed
an error of law by improperly conflating their direct negligence claim against
HTSS with their derivative vicarious liability claim. The Wenningers’ Brief at
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14-20. The Wenningers point to paragraph 16 of their complaint in which
they claim they set out a direct negligence claim against HTSS, which
alleged that HTSS knew or should have known Kramer did not have
qualifications, skill, and training for the cleaning position and was likely to
mop the floor in an unsafe manner and, therefore, breached a duty of care
by assigning Kramer to Ryder without proper training. Id. (citing Complaint,
4/21/2017, at ¶ 16(a)-(e)). According to the Wenningers, Kramer’s
inexperience in mopping floors is at odds with HTSS’s representations to its
clients on its website, wherein HTSS promises to screen its candidates to
match the candidate’s skill level to the assignment. They stress that because
there was a dispute of material fact as to the scope of the assignment
requested by Ryder as reflected in the work orders discussed supra, the jury
should decide whether Ryder’s request included or excluded bathrooms,
which would impact the skill level of the worker HTSS selected. The
Wenningers assert that the borrowed employee doctrine is not relevant to
this direct negligence claim because HTSS breached a duty to Wenninger
directly and, therefore, the trial court erred by granting summary judgment
on count II of their complaint in its entirety.
Upon review of the Wenningers’ complaint, we agree that count two of
the complaint attempts to set forth two negligence theories against HTSS:
one based on vicarious liability for its agent’s actions, i.e., the doctrine of
respondent superior, and one based upon a theory that HTSS breached a
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duty of care to Ryder and its employees by assigning an employee without
the skills to perform the job when it knew or should have known such skills
were required to perform the job without causing a foreseeable risk of harm.
As our Supreme Court has explained,
[t]o prove negligence, a plaintiff may proceed against a
defendant on theories of direct and vicarious liability, asserted
either concomitantly or alternately. Liability for negligent injury
is direct when the plaintiff seeks to hold the defendant
responsible for harm the defendant caused by the breach of a
duty owing directly to the plaintiff. By comparison, vicarious
liability is a policy-based allocation of risk. Vicarious liability,
sometimes referred to as imputed negligence, means in its
simplest form that, by reason of some relation existing between
A and B, the negligence of A is to be charged against B although
B has played no part in it, has done nothing whatever to aid or
encourage it, or indeed has done all that he possibly can to
prevent it. Once the requisite relationship (i.e., employment,
agency) is demonstrated, the innocent victim has recourse
against the principal, even if the ultimately responsible agent is
unavailable or lacks the ability to pay.
Where a corporation is concerned, the ready distinction
between direct and vicarious liability is somewhat obscured
because we accept the general premise that the corporation acts
through its officers, employees, and other agents. The
corporation, as principal, assumes the risk of individual agents’
negligence under the theory of vicarious liability. In this
scenario, the corporation’s liability is derivative of the agents’
breach of their duties of care to the plaintiff. But, this Court has
also recognized that a corporation may also owe duties of care
directly to a plaintiff, separate from those of its individual
agents, such as duties to maintain safe facilities, and to hire and
oversee competent staff. Accordingly, as a general proposition,
the recognition that a corporation acts through its agents has not
been held to be a fatal impediment to haling a corporation into
court on direct liability tort claims.
Scampone v. Highland Park Care Center, LLC, 57 A.3d 582, 597-98 (Pa.
2012).
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We offer no opinion regarding the clarity or artfulness of the
complaint, or the viability of such a claim. But it is clear that HTSS moved
for summary judgment solely on a vicarious liability claim against it for
Kramer’s actions. See Motion for Summary Judgment, 4/2/2019, at ¶ 40. In
response, the Wenningers asserted that in addition to a vicarious liability
claim, they also brought a direct liability claim wherein they asserted that
HTSS breached a duty it owed directly to Wenninger. Reply to Motion for
Summary Judgment, 4/25/2018, at ¶ 49; Plaintiff’s Brief in Opposition to
Defendant’s Motion for Summary Judgment, 4/25/2019, at 6. The trial court
did not address the Wenningers’ assertion in its opinion. See TCO at 1
(characterizing the Wenningers’ claim against HTSS as a vicarious liability
claim). Because HTSS only moved for summary judgment regarding
vicarious liability, but the Wenningers also have asserted a direct negligence
claim, the trial court erred in entering judgment on count II in its entirety.
Based on the foregoing, we vacate the trial court’s grant of summary
judgment in favor of Defendants and against the Wenningers and remand to
the trial court for further proceedings.
Judgment vacated. Remand for further proceedings in accordance with
this memorandum. Jurisdiction relinquished.
*Judge Strassburger did not participate in the consideration or
decision of this case.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/5/21
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