J.L. Nagle. v. TrueBlue, Inc., Labor Ready, Inc. and Labor Ready Northeast, Inc. and Rye Twp.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeffrey Lynn Nagle, :

Executor of the Estate of :

Douglas Edward Bell, Deceased, :

Appellant :

:

v. :

:

TrueBlue, Inc., Labor Ready, Inc. :

and Labor Ready Northeast, Inc. : No. 247 C.D. 2016

and Rye Township : Argued: September 13, 2016

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE P. KEVIN BROBSON, Judge (P.)

HONORABLE ANNE E. COVEY, Judge

OPINION BY

JUDGE COVEY FILED: October 24, 2016

Jeffrey Lynn Nagle (Nagle), as executor of Douglas Edward Bell’s

(Bell) estate, appeals from the January 29, 2016 order of the Court of Common Pleas

of the 41st Judicial District (Perry County Branch) (trial court) granting TrueBlue,

Inc.’s, Labor Ready Inc.’s and Labor Ready Northeast, Inc.’s (collectively, Labor

Ready)1 and Rye Township’s (Township) motions for summary judgment (Motions),

and dismissing Nagle’s complaint (Complaint). Nagle presents two issues for this

Court’s review: (1) whether the trial court erred by determining that equitable

principles preclude Nagle from suing Labor Ready and, (2) whether the trial court

erred by concluding that Labor Ready and the Township were entitled to immunity

under the Workers’ Compensation Act (Act).2 After review, we affirm.

1

According to Labor Ready, Defendant-Appellees are “TrueBlue, Inc., formerly known as

Labor Ready, Inc., and its wholly owned subsidiary Labor Ready Northeast, Inc. (collectively

referred to as ‘Labor Ready.’).” Labor Ready Br. at 3.

2

Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.

Bell was hired by Labor Ready, an employment agency, to furnish

temporary services. Labor Ready and the Township had an agreement under which

Labor Ready would furnish the Township temporary labor. On October 18, 2010,

Labor Ready instructed Bell to report to work for the Township. The Township

assigned Bell to work on the back of a Township trash truck. Township employee

Bradley Sloop (Sloop) instructed Bell regarding the job.3 Sloop testified that, after

successfully making a few stops, while the truck was still moving, Bell “step[ped]

back like he was getting off the truck and he fell.” Reproduced Record (R.R.) at

650a; see also R.R. at 647a. Bell sustained serious injuries that ultimately resulted in

his death on August 25, 2011.

As a result of Bell’s work injury, Labor Ready’s workers’ compensation

insurance carrier paid approximately $770,000.00 in workers’ compensation

benefits.4 On February 14, 2011, Nagle filed a penalty petition alleging that Labor

Ready “has failed to [timely] pay wage loss benefits.” R.R. at 552a; see also R.R. at

549a-551a, 553a. The penalty petition was resolved by March 23, 2011 stipulation,

wherein Nagle and Labor Ready agreed that “Defendant/[E]mployer” Labor Ready

would pay a lump sum of $900.00. R.R. at 552a; see also R.R. at 553a. The

Township did not participate in the workers’ compensation proceedings.

On December 1, 2011, Nagle filed a writ of summons with the Dauphin

County Common Pleas Court. After conducting pre-pleading discovery, Nagle filed

his Complaint with the Dauphin County Common Pleas Court on July 6, 2012

3

Sloop stated that his instruction was essentially: “[G]et on the truck, . . . hold on and don’t

get off until the truck stops.” Reproduced Record (R.R.) at 971a.; see also R.R. at 631a (Township

road worker/trash truck driver Michael Miller testified that Sloop gave Bell an approximately 10-

minute explanation).

4

By February 17, 2011 decision, as a result of Nagle’s appointment as Bell’s guardian, the

workers’ compensation judge ordered “that the indemnity compensation checks shall be made

payable to and issued to . . . Nagle.” R.R. at 547a; see also R.R. at 544a-576a.

2

asserting negligence, wrongful death and survival claims against Labor Ready and the

Township.5 The case was transferred to the trial court on May 5, 2014.6

In June 2014, Labor Ready and the Township filed preliminary

objections claiming they were entitled to immunity under Section 303(a) of the Act,

77 P.S. § 481(a). On December 19, 2014, the trial court overruled the preliminary

objections. The pleadings were closed on February 20, 2015. After discovery was

completed, Labor Ready and the Township filed the Motions asserting their immunity

under the Act. On January 29, 2016, the trial court granted the Motions and

dismissed the Complaint. Nagle appealed to this Court.7

Initially,

[s]ummary judgment is properly granted ‘whenever there is

no genuine issue of material fact as to a necessary element

of the cause of action or defense which could be established

by additional discovery or expert report[.]’ Pa.R.C[].P. No.

1035.2(1). Summary judgment may be granted only in

those cases where the right is clear and free from doubt.

The moving party has the burden of proving that there is no

genuine issue of material fact. Furthermore, the record and

any inferences therefrom must be viewed in the light most

favorable to the non-moving party, and any doubt as to the

existence of a genuine issue of material fact must be

resolved against the moving party.

Laich v. Bracey, 776 A.2d 1022, 1024 (Pa. Cmwlth. 2001) (citations omitted).

5

In a January 8, 2013 letter to Nagle’s counsel, Labor Ready’s counsel asserted Labor

Ready’s subrogation rights. See R.R. at 543a.

6

The Township preliminarily objected to Nagle’s Complaint on the basis of improper

venue. The Dauphin County Common Pleas Court overruled the objection, and the matter was

appealed to this Court (Pa. Cmwlth. No. 1369 C.D. 2013, filed April 2, 2014) (J. Pellegrini, single

judge op.). By April 2, 2014 opinion, then-President Judge Pellegrini vacated the Dauphin County

Common Pleas Court’s decision and remanded the matter for transfer to the trial court.

7

“Our scope of review of an order granting . . . summary judgment is limited to determining

whether the trial court committed an error of law or abused its discretion.” Azar v. Ferrari, 898

A.2d 55, 59 n.2 (Pa. Cmwlth. 2006).

3

Labor Ready claims that because Labor Ready employed Bell at the time

he was injured, and paid Bell’s resulting workers’ compensation benefits, Bell

“‘surrender[ed]’ [] any other form or amount of compensation or damage” and, thus,

Labor Ready is immune from Nagle’s actions under Section 303(a) of the Act. Labor

Ready Br. at 6. Labor Ready also contends that since Nagle explicitly agreed during

the workers’ compensation proceedings that Labor Ready was Bell’s employer,

judicial estoppel prohibits Nagle from now seeking tort remedies from Labor Ready.

The Township asserts that since it “controlled [Bell’s] work and the

manner in which he performed [it],” Township Br. at 9, the Township is immune

from Nagle’s lawsuit under Section 303(a) of the Act. The Township further argues

that since Nagle maintains on appeal that the trial court only erred by dismissing

Labor Ready, Nagle concedes that the Township was Bell’s employer on October 18,

2010 and, thus, is immune from Nagle’s action.

Genuine Issue of Material Fact

The facts of this case are undisputed.8 On December 21, 2009, Bell

signed an employment application with Labor Ready, wherein he acknowledged,

among other things, that Labor Ready was his employer and, if he was ever injured

while in the course of his work for a Labor Ready customer, he “will look only to

Labor Ready’s Workers’ Compensation coverage and not to Labor Ready’s customer

for any recovery.” R.R. at 215a. Bell also agreed and consented: “While working at

8

In Nagle’s brief, he highlights the trial court’s statement that “there may be factual issues[]

as to the ultimate right of control and[,] therefore, technical employment status . . . .” Nagle Br. at

12. Notwithstanding, the trial court concluded “there are no meaningful issues in the way of a final

disposition of this action.” Trial Ct. Op. at 3. Further, Nagle does not cite to any disputed facts.

This Court has held: “‘[A]n adverse party may not rest upon the mere allegations or denials of his

pleading, but his response . . . must set forth specific facts showing that there is a genuine issue for

trial.’” Fritz v. Glen Mills Sch., 894 A.2d 172, 177 (Pa. Cmwlth. 2006) (quoting Babcock v. Dep’t

of Transp., 626 A.2d 672, 675 (Pa. Cmwlth. 1993)).

4

the customer’s job site, . . . the customer is [his] special employer and . . . directs,

controls and supervises [his] work.” R.R. at 215a. Labor Ready paid Bell as a day

laborer, and provided him general safety training (see R.R. at 219a-221a, 224a, 228a-

231a, 387a), work gloves and workers’ compensation coverage. Labor Ready had the

authority to assign Bell to any job, to remove him from that job or fire him from

Labor Ready’s employ.

The Township has an agreement with Labor Ready under which Labor

Ready is to furnish temporary day laborers to the Township on an as-needed basis.

The Confirmation of Rates and Services agreement between Labor Ready and the

Township specified that Labor Ready’s bill rates included “all wages, withholdings,

FICA, Medicare, payroll taxes, unemployment insurance and workers’ compensation

insurance . . . for supplied employees.” R.R. at 919a. The Township was required to

“[p]rovide adequate supervision and accurately record work hours . . . .” R.R. at

919a. In the agreement, Labor Ready further specified that “[s]ince our workers will

be under [the Township’s] supervision, . . . [the Township is] required to . . . provide

any necessary site-specific safety training . . . .” R.R. at 919a.

In addition, the Township agreed to Labor Ready’s Conditions of

Service that “Labor Ready workers are under Customer’s [the Township’s]

supervision, direction, and control.” R.R. at 921a. Labor Ready’s Temporary

Worker Safety Training Manual (Manual) also stated: “Labor Ready does not provide

work site supervision, as you will be under the sole direction and control of the

customer.” R.R. at 924a. Moreover, the Manual detailed:

Labor Ready requires from its customers that each work site

be supervised by a ‘competent’ person. This is someone

who:

Has knowledge and experience in the job.

Has the knowledge of the work site hazards.

5

Has knowledge of safety regulations related to the job site.

Has authority to correct hazards.

R.R. at 924a. Accordingly, Labor Ready expected the Township to instruct Bell and

supervise him in his job while he worked for the Township.9 See R.R. at 906a.

On October 18, 2010, in response to the Township’s request for a

laborer, Labor Ready selected Bell and instructed Bell to report to work for the

Township. Labor Ready supplied Bell with gloves for the Township assignment. See

R.R. at 377a. The Township assigned Bell to work on its trash truck, and told Bell

how to perform the assigned job. Bell sustained his fatal injuries when he fell from

the moving trash truck. Labor Ready paid Bell’s workers’ compensation benefits

without the Township’s involvement. Clearly, there are no genuine issues of material

fact that would preclude summary judgment in this matter. Rather, the parties dispute

the legal consequences of the undisputed facts.

Judgment as a Matter of Law

In order to promote certainty in the legal affairs of

Pennsylvania’s industrial base, while protecting employees

and their families from economic devastation arising from

work-related injuries, our legislature formulated [the Act] . .

. to assure quick, fair, and certain compensation for

employment-related injuries without requiring the

complainants to resort to the courts for recovery.

Alston v. St. Paul Ins. Cos., 567 A.2d 663, 665-66 (Pa. Super. 1989), aff’d, 612 A.2d

421 (Pa. 1992); see also Tooey v. AK Steel Corp., 81 A.3d 851 (Pa. 2013). To that

end, Section 301(a) of the Act requires that “[e]very employer shall be liable for

compensation for personal injury to, or for the death of each employe, by an injury in

9

In its March 2012 answers to interrogatories, Labor Ready specified that it was Bell’s

“[g]eneral employer,” and the Township was Bell’s “[s]pecial employer.” R.R. at 535a.

6

the course of his employment, and such compensation shall be paid in all cases by the

employer, without regard to negligence[.]” 77 P.S. § 431.

However, “[i]n exchange for greatly eased burdens of proof and the

abolition of various common-law affirmative defenses, the Act . . . deprives workers

of some rights in return for greater certainty in the receipt of benefits.” Danese v.

Morrison-Knudsen/Slattery, 784 F. Supp. 228, 229 (E.D. Pa.), aff’d, 975 F.2d 1549

(3d Cir. 1992); see also Kuney v. PMA Ins. Co., 578 A.2d 1285 (Pa. 1990).

Specifically, in Section 303(a) of the Act, the General Assembly declared:

The liability of an employer under this [A]ct shall be

exclusive and in place of any and all other liability to

such employes, [] legal representative[s, or] . . . next of kin .

. . entitled to damages in any action at law or otherwise on

account of any injury or death as defined in [S]ection

301(c)(1) and (2) [of the Act, 77 P.S. § 411(1), (2).]

77 P.S. § 481(a) (emphasis added). The Pennsylvania Supreme Court has stated:

“Worker[s’] [c]ompensation can best be understood as a replacement of common

law tort actions between employees and employers as a means for obtaining

compensation for injuries.” Markle v. Workmen’s Comp. Appeal Bd. (Caterpillar

Tractor Co.), 661 A.2d 1355, 1357 (Pa. 1995) (emphasis added).

“Employment status is a critical threshold determination for [workers’

compensation] liability. A claimant must prove an employment relationship in order

to receive benefits.” Am. Rd. Lines v. Workers’ Comp. Appeal Bd. (Royal), 39 A.3d

603, 610 (Pa. Cmwlth. 2012) (citation omitted). This Court has held:

The existence of an employer-employee relationship is a

question of law based upon the facts of each case. Red Line

Express Co. v. Workmen’s Comp. Appeal Bd. (Price), . . .

588 A.2d 90, 93 ([Pa. Cmwlth.] 1991). Under the Act, the

terms ‘employer’ and ‘employee’ are synonymous with

master and servant, respectively. Sections 103 and 104 of

the Act, 77 P.S. §§ 21-22. The ‘borrowed servant’

doctrine stands for the proposition that ‘[o]ne who is in

7

the general employ of one employer may be transferred

to the service of another in such a manner that the

employee becomes an employee of the second employer.’

[Red Line Express, 588 A.2d at 93] (citing Mature v.

Angelo, . . . 97 A.2d 59 ([Pa.] 1953)). In JFC Temps, Inc. v.

Workmen’s Compensation Appeal Board (Lindsay), . . . 680

A.2d 862, 864 ([Pa.] 1996) (citing Mature), our Supreme

Court explained:

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 to

control with regard not only to the work to be done

but also 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.

([Italic e]mphasis added).

Although the right to control the performance of the work is

the most persuasive indication of the existence of an

employer-employee relationship, other factors may be

relevant. [JFC Temps], 680 A.2d at 865. In Mature, . . .

our Supreme Court stated:

Facts which indicate that the servant remains the

employe of his original master are, among others,

that the latter has the right to select the employe to

be loaned and to discharge him at any time and send

another in his place, that the lent servant has the

skill of a technician or specialist which the

performance of the work requires, that the hiring is

at a rate by the day or hour, and that the

employment is for no definite period.

[Id. at 61.] The payment of wages, withholding of payroll

deductions, and provision of workers’ compensation

coverage, may also be considered, but are not determinative

factors. See Supp v. Erie Ins. Exch., . . . 479 A.2d 1037,

1041 ([Pa. Super.] 1984).

8

Canot v. City of Easton, 37 A.3d 53, 61 (Pa. Cmwlth. 2012) (bold emphasis added).

“The parties are not bound by their characterization of the relationship.” Virtue v.

Square D Co., 887 F.Supp. 98, 102 (M.D. Pa. 1995); see also Keller v. Old Lycoming

Twp., 428 A.2d 1368, 1365 (Pa. Super. 1981) (“the meaning of ‘employer’ under the

Act is controlled by the legal interpretation of the Act as reflected in our past cases, . .

. and not by the definitions that others care to give to that term.”).

Moreover,

[u]nder the [Act], the fact that the ‘lending employer’ pays

for [workers’ c]ompensation insurance is no impediment to

finding the ‘borrowing employer’ to be immune from suit

pursuant to [Section] 303 [of the Act]. The means used to

fulfill the statutory obligation to provide [workers’

c]ompensation coverage do not affect the immunity

conferred by [Section] 303 [of the Act]. Consequently,

despite the nature of the claim being asserted and

despite the indirect method by which [workers’

c]ompensation was provided, the bar of [Section] 303 [of

the Act] is not avoided.

Supp, 479 A.2d at 1041 (citations omitted; emphasis added). Further, “entities who

borrow laborers from temporary employment agencies can be statutory employers,

and thus immune from suit under [S]ection [303] of the Act, even if they exercise

control for only a short time.” Virtue, 887 F.Supp. at 102.

Based upon the record in this case, the trial court granted summary

judgment in favor of both Labor Ready and the Township stating, in pertinent part:

At the [o]ral [a]rgument on the [Motions], counsel for

[Nagle] made it clear to the [trial c]ourt that he believed

[the] Township qualified as the legal employer of [] Bell, by

virtue of the fact of many elements of control over the

physical actions of [] Bell, sufficient for a traditional

finding of employer/employee status.

[Nagle] suggests that the issue of control determines

whether or not, in this case, [the] Township can enjoy

9

immunity from a [n]egligence [a]ction under the [Act].

Counsel for [Nagle] suggests that is the case.

On the other hand, [Nagle] seeks damages for traditional

negligence against Labor Ready [], on the theory that the

only immunity available on this case, under the [Act], is

that afforded [the] Township for the reasons stated.

Labor Ready suggests that it should be able to enjoy

immunity[] under the [Act], because it was in fact the

employer, that [Bell] elected Labor Ready as the [workers’

c]ompensation carrier, that it paid benefits and that those

benefits were in fact accepted by [Bell] and/or his [e]state.

Under the circumstances, although [the] Township,

undoubtedly, had a right to control, we are not

convinced that this element or conclusion prevents the

bar of immunity to be asserted by Labor Ready.

On equitable principles, whether or not estoppel is

technically available, it would seem that, under the

circumstances, to permit [Bell’s] [e]state to sue an

employer[] who fully paid under the [Act] pursuant to an

agreement to that effect with the employer[,] and for other

reasons[,] would be inappropriate.

As we stated, [Nagle] argues that the bar to suit only applies

to the entity with control and [Nagle] suggests that [the]

Township is that entity and [is] therefore entitled to

immunity. [Nagle] further suggests the fact of payment is

irrelevant. We do not think it is under the circumstances.

R.R. at 949a-950a (emphasis added).

Nagle argues that the trial court erred by granting summary judgment in

Labor Ready’s favor based upon findings that equitable principles preclude Nagle

from filing a lawsuit against Labor Ready. Nagle specifically asserts that “[n]either

the doctrine of judicial estoppel nor any other equitable theory would preclude Nagle

from pursuing an action based on negligence against Labor Ready, especially where

Labor Ready was not [] Bell’s employer under the Act at the time of the accident.”

Nagle Br. at 11. We disagree.

10

As to the doctrine of judicial estoppel, this Court

recognizes:

[a]s a general rule, a party to an action is estopped

from assuming a position inconsistent with his or

her assertion in a previous action, if his or her

contention was successfully maintained.

Accordingly, judicial estoppel is properly applied

only if the court concludes the following: (1) that

the appellant assumed an inconsistent position in an

earlier action; and (2) that the appellant’s contention

was ‘successfully maintained’ in that action.[10]

Canot . . . , 37 A.3d [at] 60 . . . (quoting Black v. Labor

Ready, Inc., 995 A.2d 875, 878 (Pa. Super. 2010)).

Marazas v. Workers’ Comp. Appeal Bd. (Vitas Healthcare Corp.), 97 A.3d 854, 859

(Pa. Cmwlth. 2014). “The purpose of judicial estoppel is to ensure the parties do

not play ‘fast and loose’ with the facts in order to suit their interests in different

actions before different tribunals.” Id. “To estop later inconsistent statements,

the original statements must be verified or sworn.” Id. at 860.

Labor Ready was, indeed, the defendant/employer that provided Bell’s

workers’ compensation benefits, and against whom Nagle filed the workers’

compensation penalty petition on February 14, 2011. See R.R. at 545a, 547a, 549a,

552a-553a. Nagle’s counsel Derek Cordier, Esquire filed the penalty petition on

Nagle’s behalf, listing Labor Ready under “Employer Name.” See Certified Record

(C.R.) Item 5 at LR0092; see also R.R. at 552a. Nagle’s counsel further alleged that

10

In Black v. Labor Ready, Inc., 995 A.2d 875 (Pa. Super. 2010), the Pennsylvania Superior

Court observed: “Our Supreme Court has not definitively established whether the second element

(successful maintenance) is strictly necessary to implicate judicial estoppel or is merely a factor

favoring the application. See [In re Adoption of] S.A.J., [838 A.2d 616 (Pa. 2003)].” Black, 995

A.2d at 878 n.8; see also Westfield Ins. Co. v. Astra Foods, Inc., 134 A.3d 1045 (Pa. Super. 2016).

Notwithstanding, the Pennsylvania Supreme Court in S.A.J. held that “successfully maintained”

does not require an adjudication, but includes situations in which “the individual who made

inconsistent statements successfully established [his] claim and reaped its reward (i.e., payment of

benefits).” S.A.J., 838 A.2d at 622.

11

“[Labor Ready] has violated the terms of the [Act] and/or Regulations . . . ,” and

demanded Labor Ready to pay penalties as a result. C.R. Item 5 at LR0093. The

workers’ compensation judge adopted the parties’ stipulation, which reflects that

“Defendant” Labor Ready timely answered Nagle’s penalty petition and, ultimately,

Nagle and Labor Ready agreed that “Defendant/Employer” Labor Ready’s lump sum

payment resolved the penalty petition. R.R. at 552a; see also R.R. at 551a, 553a.

As discussed above, the law is well-established that the threshold

requirement for the imposition of workers’ compensation liability is the existence of

an employer-employee relationship. By filing the penalty petition and executing the

March 22, 2011 stipulation resolving Labor Ready’s workers’ compensation

payments and accepting payment, Nagle verified/swore/stipulated and successfully

maintained that Labor Ready was Bell’s employer. See R.R. at 553a. Nagle did not

take a contrary position until he filed the instant Complaint. Thus, we hold that

Nagle is judicially estopped from now claiming that Labor Ready was not Bell’s

employer. Accordingly, the trial court did not err by granting summary judgment in

Labor Ready’s favor based upon finding that equitable principles precluded Nagle

from filing a lawsuit against Labor Ready.

Nagle also contends that the trial court erred by granting summary

judgment in Labor Ready’s and the Township’s favor based upon a finding that both

were employers entitled to immunity under Section 303(a) of the Act. Specifically,

Nagle contends that, in the temporary worker context, only the employer with the

right to control the temporary employee’s performance is entitled to immunity under

the Act. We disagree.

Pennsylvania courts have long held that the overriding factor indicative

of an employer-employee relationship is the employer’s right to control the work to

be done and the manner of performing it. See Puhlman v. Excelsior Express &

Standard Cab Co., 103 A. 218 (Pa. 1918); see also JFC Temps; Mature; Venezia v.

12

Phila. Elec. Co., 177 A. 25 (Pa. 1935); Canot; City of Monessen v. Workmen’s Comp.

Appeal Bd. (Galanoudis), 387 A.2d 1000 (Pa. Cmwlth. 1978); Black; Wilkinson v. K-

Mart, 603 A.2d 659 (Pa. Super. 1992); Keller; English v. Lehigh Cnty. Auth., 428

A.2d 1343 (Pa. Super. 1981); Claudio v. MGS Mach. Corp., 798 F. Supp. 2d 575

(E.D. Pa. 2011). However, these decisions also recognize that the existence of other

factors may indicate an employer-employee relationship.

Here, the undisputed facts establish that Labor Ready hired Bell and had

the authority to fire him, Bell reported to Labor Ready for his daily assignments,

Labor Ready provided him with general safety training and gloves for jobs, Labor

Ready paid Bell’s wages and workers’ compensation benefits, and Bell expressly

acknowledged that Labor Ready was his employer relative to work injuries.

However, at the time Bell’s injury occurred on October 18, 2010, the Township had

the right, and indeed was required, to direct, control and supervise Bell’s work. The

record is clear that the Township did just that. Because the established law holds that

the entity with the right to control Bell’s work and his manner of performing it is the

leading indicator of his employer, the Township was clearly Bell’s borrowing

employer at the time of his work injury. Thus, the Township is entitled to immunity

under Section 303(a) of the Act. Accordingly, the trial court properly entered

judgment in the Township’s favor.11

Notwithstanding, the above-cited case law does not answer the specific

question before us – whether both Labor Ready and the Township, who undisputedly

evidenced indicia of the employer-employee relationship with Bell, are immune from

11

In light of our holding, we need not address the Township’s claim that it is immune under

what is commonly referred to as the Political Subdivision Tort Claims Act, 42 Pa.C.S. §§ 8541-

8542.

13

tort liability under Section 303(a) of the Act for damages arising from and relating to

Bell’s work-related injury. Section 303(a) of the Act provides:

The liability of an employer under this [A]ct shall be

exclusive and in place of any and all other liability to

such employes, [] legal representative[s, or] . . . next of kin

. . . entitled to damages in any action at law or otherwise

on account of any injury or death as defined in [S]ection

301(c)(1) and (2) [of the Act, 77 P.S. § 411(1), (2)] . . . .

77 P.S. § 481(a) (emphasis added). Our Supreme Court has declared that “[S]ection

303(a) [of the Act] is essentially self[-]explanatory.” Lewis v. Sch. Dist. of Phila.,

538 A.2d 862, 867 (Pa. 1988). The purpose of the Act’s exclusivity provision is

‘to restrict the remedy available to an employee against

the employer to compensation, and to close to the

employee, and to third parties, any recourse against the

employer in tort for negligence.’ Tsarnas v. Jones &

Laughlin Steel Corp[.], . . . 412 A.2d 1094, 1097 ([Pa.]

1980). . . . We hold, therefore, that the [Act’s exclusivity

provision] deprives the common pleas courts of

jurisdiction of common law actions in tort for negligence

against employers . . . .

LeFlar v. Gulf Creek Indus. Park No. 2, 515 A.2d 875, 879 (Pa. 1986) (emphasis

added).

Th[e Pennsylvania Supreme] Court has recognized that the

Act ‘substitutes a quick and inexpensive scheme to provide

compensation for work-related injuries in place of the

common law process where the employee must sue the

appropriate parties for damages. Employers pay benefits at

a set rate and they are immune from common-law liability.’

Sporio [v. Workmen’s Comp. Appeal Bd. (Songer Constr.)],

. . . 717 A.2d [525,] 530 [Pa. 1998)] (citation omitted); see

also Markle v. [Workmen’s Comp. Appeal Bd.] (Caterpillar

Tractor Co.), . . . 661 A.2d 1355, 1357 ([Pa.] 1995)

(‘[w]orker’s [c]ompensation can best be understood as a

replacement of common law tort actions between

employees and employers as a means for obtaining

compensation for injuries.’).

14

Tooey, 81 A.3d at 860 (emphasis added). Thus, with certain limited exceptions not

applicable here,12 “[t]he exclusivity provision of the Act essentially ‘bars tort

actions flowing from any work-related injury.’” Am. Rd. Lines, 39 A.3d at 610

(quoting Kline v. Arden H. Verner Co., 469 A.2d 158, 160 (Pa. 1983)) (bold and

underline emphasis added); see also Poyser v. Newman & Co., 522 A.2d 548 (Pa.

1987); Lozado v. Workers’ Comp. Appeal Bd. (Dependable Concrete Work &

Uninsured Emps. Guar. Fund), 123 A.3d 365, 371 (Pa. Cmwlth. 2015) (“Since the

Act was amended in 1974, it has served as a complete substitute for common law

tort actions” against employers for work injuries. (Emphasis added.)); Minto v. J.B.

Hunt Transp., Inc., 971 A.2d 1280 (Pa. Super. 2009). Accordingly, Nagle’s

exclusive remedy for injuries and damages arising from Bell’s October 18, 2010

work accident is the workers’ compensation benefits Labor Ready has already paid.

Moreover, as is evident from the leading borrowed employee cases cited

above, neither the courts nor the Workers’ Compensation Appeal Board have

declared that only a single employer may be shielded from tort liability under the

Act’s exclusivity provision, and Section 303(a) of the Act does not require such a

result. Rather, the General Assembly and our Supreme Court have made clear that

12

For example, the Act’s exclusivity provision does not apply where the court determines

that the injury did not arise in the course of employment. See Minto v. J.B. Hunt Transp., Inc., 971

A.2d 1280 (Pa. Super. 2009). The Act does not preclude employee actions based on an employer’s

negligence, if the negligence is associated with injuries inflicted by a co-worker for personal

reasons. See Krasevic v. Goodwill Indus. of Cent. Pa., Inc., 764 A.2d 561 (Pa. Super. 2000); see

also 77 P.S. § 411(1). Employee can bring common law actions against employers who make

fraudulent misrepresentations that lead to a delay which aggravates a work-related injury. See

Martin v. Lancaster Battery Co., Inc., 606 A.2d 444 (Pa. 1992) (relating to employer’s withholding

of lead blood test results); see also Kostryckyj v. Pentron Lab. Techs., LLC, 52 A.3d 333 (Pa. Super.

2012) (relating to employer’s failure to warn of, and employee’s continued exposure to, toxic

chemicals). In addition, under Section 305(d) of the Act, 77 P.S. § 501(d), “an employee is given

the option to sue an employer in tort or pursue a workers’ compensation remedy if the employer is

uninsured or is not an approved self-insurer.” Campagna v. Brandon Knitwear, Inc., 797 A.2d 405,

406 n.1 (Pa. Cmwlth. 2002).

15

the General Assembly’s pronounced policy is that workers’ compensation is the

injured worker’s sole remedy against any employer for all work-related injuries.

This Court has concluded that all of a borrowed servant’s employers are

entitled to immunity under Section 303(a) of the Act. Temple v. Milmont Fire Co.,

525 A.2d 848 (Pa. Cmwlth. 1987). Standard Pennsylvania Practice 2d states,

without limitation:

An employee may have more than one employer, both of

whom are entitled to the immunity granted by the

[Act].1

[]Observation: The liability or responsibility to pay

workers’ compensation benefits is not a prerequisite to

being considered an employer under the [Act]. As long as

the injured worker is provided with compensation benefits

by some employer, all such employers under the Act are

entitled to immunity under the Act.2

1

Capozzoli v. Stone & Webster Eng[’g] Corp., . . .

42 A.2d 524 ([Pa.] 1945); Merryman v. Farmington

Volunteer Fire Dep[’]t, . . . 572 A.2d 46 ([Pa.

Cmwlth.] 1990); Temple . . . .

2

Temple . . . .

39 Standard Pa. Practice 2d § 167:421 (bold and underline text emphasis added).

In Temple, Richard Temple (Temple), a volunteer fire company member,

was injured during a local school demonstration conducted as part of the township-

authorized fire prevention week event. The township furnished Temple workers’

compensation disability benefits pursuant to the Act. Thereafter, Temple filed a

negligence action against the fire company and the township, both of which moved

for summary judgment on grounds that they were immune under Section 303 of the

Act. The trial court granted both summary judgment motions. Temple appealed,

claiming that he was not the township’s employee. This Court held in Temple:

16

[T]he Township’s payment of workmen’s compensation

benefits under Section 301(a) of the Act . . . and

[Temple’s] acceptance of the same, barred him from

suing the Township since his sole remedy was within the

provisions of the Act. The grant of summary judgment in

favor of the Township on the basis of Section 303 of the

Act . . . must be affirmed.

The issue of whether summary judgment was properly

granted to the Fire Company is more complex. With

respect to the Fire Company’s immunity under the Act, that

immunity will only be applicable if the Fire Company can

be deemed to have been [Temple’s] employer at the time in

question. Whether an injured employe may have more than

one employer under the Act is raised here as an issue. Our

reading of the Act, and research into the interpretative case

law, convinces us that an employe may have more than

one ‘employer’ for purposes of the Act.

We initially note that under the Act, the General Assembly

has provided for multiple liability to provide workm[e]n’s

compensation benefits in certain circumstances. For

example, in the subcontractor/contractor situation, Sections

302(a) and 302(b) of the Act, 77 P.S. §§ 461[,] 462, provide

that the prime contractor is the statutory employer of the

employees of its subcontractors and is liable for the

payment of workmen’s compensation benefits to the

subcontractors’ injured employees unless the prime

contractor required its subcontractors to secure the payment

of such benefits. Thus, while the injured employe is the

actual employe of the subcontractor, that same employe is

also the statutory employe of the prime contractor as well

for workmen’s compensation purposes. In Capozzoli . . . ,

the Pennsylvania Supreme Court held that both the actual

and statutory employer of a deceased employe were entitled

to the immunity granted by the Act. The significant portion

of the Capozzoli decision was the Supreme Court’s holding

that the statutory employer was still entitled to the

immunity granted by the Act despite the fact it had

relieved itself of the liability to pay workmen’s

compensation benefits by requiring the subcontractor to

secure the payment of such benefits through the purchase of

insurance. Under Capozzoli, the liability or responsibility

to pay workmen’s compensation benefits is not a

prerequisite to being considered an ‘employer’ under the

17

Act and that decision can be read to hold that so long as the

injured worker is provided with workmen’s

compensation benefits by some employer, all such

employers under the Act are entitled to the grant of

immunity in Section 303 of the Act. . . . Thus, we

conclude, as did the common pleas court, that the federal

district court misconstrued the Act and interpretative case

law in Guffey v. Logan, 563 F. Supp. 951 (E.D. Pa. 1983),

when it held that an injured worker could have only one

‘employer’ entitled to immunity under the Act.

Temple, 525 A.2d at 849-50 (citations omitted; bold and underline emphasis added).

Nagle claims that Temple’s holding “is narrowly limited to situations

involving volunteer fire and rescue companies, where unique public policy concerns

support the finding that under these specific circumstances an employee could have

more than one employer.” Nagle Br. at 19. However, Nagle misconstrues the

Court’s holding.

In reaching its decision in Temple, this Court relied upon the

Pennsylvania Supreme Court’s reasoning in Capozzoli, which was not a volunteer fire

company case. Thereafter, in Merryman, this Court again declared:

In Temple, . . . this Court . . . held that an injured employee

may have more than one employer under the Act. The

Court further held that as long as the injured worker is

provided with workmen’s compensation benefits by some

employer all such employers under the Act are entitled to

the grant of immunity in Section 303 of the Act, 77 P.S. §

481. This Court specifically refused the interpretative case

law in Guffey . . . , which held that an injured worker could

have only one ‘employer’ entitled to immunity under the

Act. We note that the Guffey case, much relied upon by the

appellant, was decided before Temple, which latter case, it

is believed, was the first Pennsylvania state appellate

case which decided this issue. We note further the case of

Capozzoli . . . , where the Pennsylvania Supreme Court, in

an analogous situation, held that both the actual and

statutory employers of a deceased employee were

entitled to the immunity granted by the Act.

18

Merryman, 572 A.2d at 48 (emphasis added).

Although this Court in Temple and Merryman took into account the

unique situations posed by volunteer fire companies based upon the fact that their

workers’ compensation coverage requirements differ from other employers, 13 those

courts did not expressly limit their holdings to volunteer fire company cases.

Because the Merryman Court upheld Temple without limitation, the Temple Court’s

conclusion that an employee may have more than one employer under the Act, and

that all such employers are entitled to immunity under Section 303(a) of the Act,

remains the law.

Several years after Temple was decided, the Pennsylvania Superior

Court, in Pastore v. Anjo Construction Co., 578 A.2d 21 (Pa. Super. 1990), a non-

volunteer fire company case, relied upon Temple’s conclusion that “[an e]mployee

may have more than one employer under the [Act, and] all such employers under the

Act are entitled to immunity in Section 303 [of the Act] . . . .” Pastore, 578 A.2d at

25. Thereafter, the U.S. District Court for the Eastern District of Pennsylvania, in

another non-volunteer fire company case, held:

We do not interpret Temple and Merryman to hold that

there may be two actual employers under the Act, however,

merely that where the Act confers employer status on one

who is not the actual employer (with the right to control

the manner of performance of work) the court can also

recognize and find immune the injured employee’s

actual employer.

13

See Section 601(a)(1) of the Act, 77 P.S. § 1031(a)(1), added by Section 15 of the Act of

December 5, 1974, P.L. 782 (specifically relating to coverage for volunteer fire companies).

19

Sklodowski v. Isaac Watkin Co. (E.D. Pa. No. 90-3637, filed December 18, 1991),

slip op. at 4 (bold emphasis added).14, 15

14

Twenty years after Sklodowski, the Claudio Court stated that, although the

Commonwealth Court in Temple and Merryman, the Superior Court in Pastore and the federal court

in Sklodowski declared that an employee can have more than one employer under the Act’s

exclusivity provision, in Keller, Wilkinson and English, the Superior Court “implied that either the

lending employer or the borrowing employer is the employer for purposes of [Act] immunity, not

both.” Claudio, 798 F. Supp. 2d at 583 n.12. However, the Claudio Court failed to recognize that,

due to their specific procedural postures, the Superior Court was not presented in Keller (which was

decided before Temple) and Wilkinson (decided five years after Temple) with the question of

whether a lending and a borrowing employer could simultaneously be immune under Section 303(a)

of the Act. In English, since lending employer Kelly Labor’s motion for summary judgment based

upon immunity was denied on appeal, Kelly Labor remained a party to English’s civil action. We

do not know if the trial court in English ultimately declared Kelly Labor immune under the Act.

15

“Generally, decisions of federal district courts and courts of appeals are not binding on

this Court, . . . but they may have persuasive value.” GGNSC Clarion LP v. Kane, 131 A.3d 1062,

1069 n.15 (Pa. Cmwlth. 2016). Unreported federal court decisions may also have persuasive value.

We cite Sklodowski solely for its persuasive value.

Similar legal rulings have been reached by other jurisdictions (in non-volunteer firefighter

cases) where the courts have held that their workers’ compensation exclusivity provisions preclude

a claimant from accepting workers’ compensation from a temporary agency and then seeking civil

damages from the borrowing employer. Specifically, the Texas Supreme Court has declared:

The fact that [the temporary agency’s client] actually controlled the

details of [the employee’s] work at the time she was injured, and thus

was also an employer within the meaning of the Act, does not

preclude the applicability of the Act’s provisions, including the

exclusive remedy provision, to both [the temporary agency] and

[the temporary agency’s client].

Wingfoot Enters. v. Alvarado, 111 S.W.3d 134, 149 (Tex. 2003) (emphasis added); see also Garza

v. Excel Logistics, Inc., 161 S.W.3d 473 (Tex. 2005). The New Jersey Supreme Court affirmed the

New Jersey Superior Court’s holding on this issue:

New Jersey ‘allows an employee, for the purpose of workers’

compensation to have two employers, both of whom may be liable in

[workers’] compensation.’ Antheunisse [v. Tiffany & Co., Inc., 551

A.2d 1006, 1007 (N.J. Super. 1988)]. In such circumstances, the

right to recover workers’ compensation benefits serves to bar the

employee from maintaining a tort action against either employer.

[Id.]

Kelly v. Geriatric & Med. Servs., Inc., 671 A.2d 631, 634 (N.J. Super.) (emphasis added), aff’d, 685

A.2d 943 (N.J. 1996).

20

In addition,

[i]t is well settled that ‘[t]he object of all interpretation and

construction of statutes is to ascertain and effectuate the

intention of the General Assembly. Every statute shall be

construed, if possible, to give effect to all its provisions.’

[Section 1921(a) of the Statutory Construction Act of 1972

(SCA),] 1 Pa.C.S.[] § 1921(a). Further, ‘[i]n giving effect

to the words of the legislature, we should not interpret

statutory words in isolation, but must read them with

reference to the context in which they appear.” Giant

Eagle, Inc. v. W[orkers’ Comp. Appeal Bd.] (Givner), . . .

39 A.3d 287, 290 (Pa. 2012) (citation omitted). When

construing statutory language, ‘[w]ords and phrases shall be

construed according to rules of grammar and according to

their common and approved usage.’ [Section 1903 of the

SCA,] 1 Pa.C.S.[] § 1903.

Tooey, 81 A.3d at 858. Section 1922 of the SCA specifies that, in ascertaining the

General Assembly’s intention, there is a presumption that it did not intend a result

that is absurd, impossible of execution or unreasonable. 1 Pa.C.S. § 1922.

First, the General Assembly did not specify in Section 303(a) of the Act,

as it could have, that only a single employer is immune from civil liability thereunder.

Rather, Section 303(a) of the Act does not refer to the liability of the employer, but

“an” employer. Section 102 of the Act expressly states: “Wherever in this [A]ct the

singular is used, the plural shall be included[.]” 77 P.S. § 2. Moreover,

Section 1902 of the [SCA] advises us that when considering

the intent of a statute’s wording, we must be aware that

‘[t]he singular shall include the plural, . . . .” 1 Pa.C.S. §

1902. Thus, . . . [S]ection [303(a) of the Act] herein can

appropriately be read as[, ‘[t]he liability of [employers]

under this [A]ct shall be exclusive and in place of any and

all other liability to such employes . . . .’ 77 P.S. § 481(a)].

The foregoing analysis would . . . permit [the exclusivity

provision’s application to more than one employer].

Summit House Condo. v. Commonwealth, 523 A.2d 333, 335 (Pa. 1987).

21

Second, we acknowledge that the Act is remedial in nature and must be

liberally construed in the injured worker’s favor. Giant Eagle, Inc. However, “[t]he

Act . . . does not authorize windfalls. . . . [T]he extent of an employer’s liability

may and should vary depending on the particular circumstances affecting the

claimant.” Griffiths v. Workers’ Comp. Appeal Bd. (Seven Stars Farm, Inc.), 943

A.2d 242, 257 (Pa. 2008) (emphasis added).

Considering the Act’s overall purpose of providing workers expeditious

coverage for their medical expenses and financial stability during their work-related

disability in exchange for not suing their employer in court, affording the Township

immunity from civil liability for Bell’s work injury but authorizing Nagle to seek tort

damages from Labor Ready (which, the parties agree, has fully compensated Bell as

required) would lead to an absurd and unreasonable result, and render Section 303(a)

of the Act utterly meaningless. A reasonable interpretation, consistent with the

General Assembly’s intent and stare decisis, is that both Labor Ready and the

Township are immune from Nagle’s actions. We adopt the Vermont Supreme

Court’s well-articulated and reasoned explanation:

The exclusive remedy of workers’ compensation payments

is part of the quid pro quo in which the sacrifices and gains

of employers and employees are balanced. 2A A. Larson,

Workmen’s Compensation Law § 65.11, at 12-1, 12-12

(1996). An injured employee is provided ‘expeditious and

certain payments’ without having to prove fault. St. Paul

Fire & Marine Ins. Co. v. Surdam, . . . 595 A.2d 264, 266

([Vt.] 1991). In return, the worker gives up the right to sue

the employer. Allowing an employee with more than

one employer to collect workers’ compensation benefits

from the first employer and then turn around and sue

the second in negligence frustrates this policy. [The

employee] seeks to live in the best of both worlds: having

collected benefits for her injuries from [the temporary

agency] without having to show employer fault, she now

seeks the right to pursue a separate, potentially larger jury

award from her second employer. If allowed, employers . .

22

. would be subject to double liability—ultimate

responsibility for paying benefits under the Act . . . , while

remaining exposed to the threat of common-law negligence

suits. . . . . We will not interpret the statute in a manner

that undermines the balance between expeditious,

automatic payments to employees in return for limited

liability for employers.

Candido v. Polymers, Inc., 687 A.2d 476, 478-79 (Vt. 1996) (emphasis added); see

also Welch v. Home Two, Inc., 783 A.2d 419 (Vt. 2000).

Applying Temple to this case, we hold that Labor Ready, like the

Township, is immune from Nagle’s civil claims under Section 303(a) of the Act.

Because the trial court did not err by granting summary judgment in Labor Ready’s

and the Township’s favor based upon a finding that both were employers entitled to

immunity under Section 303(a) of the Act, the trial court’s order is affirmed.

___________________________

ANNE E. COVEY, Judge

23

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeffrey Lynn Nagle, :

Executor of the Estate of :

Douglas Edward Bell, Deceased, :

Appellant :

:

v. :

:

TrueBlue, Inc., Labor Ready, Inc. :

and Labor Ready Northeast, Inc. : No. 247 C.D. 2016

and Rye Township :

ORDER

AND NOW, this 24th day of October, 2016, the January 29, 2016 order

of the Court of Common Pleas of the 41st Judicial District (Perry County Branch) is

affirmed.

___________________________

ANNE E. COVEY, Judge