The opinion
J-A05036-20
2020 PA Super 60
JAVIER SARDINA-GARCIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
BROWNSVILLE MARINE PRODUCTS, : No. 1254 WDA 2019
LLC, A LIMITED LIABILITY COMPANY :
Appeal from the Order Entered July 18, 2019
In the Court of Common Pleas of Fayette County Civil Division at No(s):
No. 2016-01748
BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*
OPINION BY PELLEGRINI, J.: FILED MARCH 13, 2020
Javier Sardina-Garcia (Sardina-Garcia) appeals the order granting
summary judgment in the Court of Common Pleas of Fayette County (trial
court) as to his common law negligence claim against the defendant,
Brownsville Marine Products, LLC (BMP). Sardina-Garcia argues that BMP was
not his “employer” under the Longshore and Harbor Workers’ Compensation
Act (LHWCA) and the exclusivity provision of the LHWCA does not bar him
from raising his negligence claim. After careful review, we affirm.
I.
We glean the following facts from the certified record. Sardina-Garcia
is a shipfitter who was employed by MK Industries (MK). MK had a General
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* Retired Senior Judge assigned to the Superior Court.
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Staffing Agreement (GSA) with BMP under which it would recruit qualified
employees for BMP. See Motion for Summary Judgment, 5/16/18, Exhibit C—
GSA at 1. MK and BMP agreed that MK would pay employees, withhold taxes,
provide benefits, perform drug screens and criminal background checks, verify
employment eligibility, provide unemployment insurance and workers’
compensation benefits and handle any claims, and provide personal protective
equipment and safety training to any employees it supplied for BMP. Id. In
turn, BMP would supervise employees on its premises and provide a safe
worksite and safety training as necessary, but would not provide the assigned
employees with any benefits that were available to BMP employees. Id. at 1-
2. MK paid the assigned employees from funds it received from BMP.
When Sardina-Garcia began his employment with MK, he signed an
Employment Agreement outlining the terms of the relationship. See Plaintiff’s
Response to Motion for Summary Judgment, Exhibit 2—Employment
Agreement, 10/18/13. The Employment Agreement specified that he was only
eligible for employment benefits as an employee of MK and could not claim
any benefits from any of MK’s clients. The Employment Agreement also
prevented Sardina-Garcia from seeking or accepting employment with any of
MK’s clients for one year after his last assignment with the client. Finally, the
Employment Agreement confirmed that he “understands and agrees that he
or she is employed by [MK] and is not an employee of any client of [MK].” Id.
at 1.
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Through his Employment Agreement with MK, Sardina-Garcia was
assigned in October 2013 to construct barges for BMP at a BMP-owned facility.
He worked at BMP for four to six days per week, eight to twelve hours per
day. His hours were set by BMP and he received permission from his
supervisors at BMP to work overtime or take days off. His supervisor would
give him daily assignments and direct him where to work, but did not tell him
how to perform his job as Sardina-Garcia was already trained and qualified to
work as a shipfitter.1 While he brought some of his own hand tools to work,
the majority of his tools and protective gear were provided by BMP. BMP could
not terminate Sardina-Garcia’s employment, but if it was dissatisfied with his
performance, BMP could notify MK to remove him from the assignment.
Sardina-Garcia continued work through this assignment until May 2015
when he was injured on the job. While carrying a large jack across the facility,
he came across an unguarded opening in the floor. See Complaint, 9/6/16,
at Paragraph 6. He jumped over the hole to avoid falling and landed on a
discarded piece of metal, causing serious injuries to his right foot and ankle.
Id. at Paragraphs 8-9. Following his injury, Sardina-Garcia received workers’
compensation benefits pursuant to the LHWCA. The benefits were paid by
MK’s insurance carrier as required by the GSA. See GSA at 3.
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1Sardina-Garcia does not read or speak English, so his supervisors would give
him assignments by pointing to areas where work was needed, using
drawings, or occasionally using a translation app on Sardina-Garcia’s phone.
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Sardina-Garcia subsequently filed a common law negligence action
against BMP alleging that its failure to maintain safe working conditions caused
his injuries. BMP filed an Answer and New Matter, and Amended Answer and
New Matter, raising, inter alia, the LHWCA and the borrowed servant doctrine
as a defense to the negligence claim. Following discovery, BMP filed a motion
for summary judgment arguing that Sardina-Garcia’s claim was categorically
barred by the exclusivity provisions of the LHWCA. The trial court granted the
motion for summary judgment and dismissed the claim.2 Sardina-Garcia filed
a timely notice of appeal, and he and the trial court have complied with
Pa.R.A.P. 1925.3
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2 “[S]ummary judgment is appropriate only in those cases where the record
clearly demonstrates that there is no genuine issue of material fact and that
the moving party is entitled to judgment as a matter of law.” Atcovitz v.
Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221 (Pa. 2002); Pa. R.C.P.
No. 1035.2(1). When considering a motion for summary judgment, the trial
court must construe all facts of record and make all reasonable inferences in
the light that most favors the non-moving party. See Toy v. Metropolitan
Life Ins. Co., 928 A.2d 186, 195 (Pa. 2007). Any question as to whether
there exists a genuine issue of material fact must be resolved against the
moving party. Id.
3 On appeal, “an appellate court may reverse a grant of summary judgment if
there has been an error of law or an abuse of discretion.” Weaver v.
Lancaster Newspapers, Inc., 926 A.2d 899, 902–03 (Pa. 2007) (internal
citations omitted). A de novo standard of review applies as to whether there
exists an issue of material fact, as this presents a pure question of law. Id.
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II.
A.
The LHWCA governs workers’ compensation for individuals who suffer
disability or death as a result of employment upon navigable waters or
qualifying adjacent areas.4 33 U.S.C. § 903(a). “Every employer shall be
liable for and shall secure the payment to his employees of the compensation
payable” under the statute, and employees are entitled to compensation
regardless of fault for the cause of the injury. 33 U.S.C. § 904(a)-(b). “The
liability of an employer prescribed in section 904 of this title shall be exclusive
and in place of all other liability of such employer to the employee. . . .” 33
U.S.C. § 905(a). This statutory scheme represents a balancing of interests
wherein “[e]mployers relinquished their defenses to tort actions in exchange
for limited and predictable liability. Employees accept the limited recovery
because they receive prompt relief without the expense, uncertainty, and
delay that tort actions entail.” Peter v. Hess Oil Virgin Islands Corp., 903
F.2d 935, 951 (3d Cir. 1990) (citation omitted).
Thus, when an employee suffers an injury at work that is compensable
under the LHWCA, he is prohibited from seeking further recovery through tort
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4The parties agree that Sardina-Garcia’s work as a shipfitter qualified him for
compensation under the LHWCA.
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actions against his employer. Federal courts5 have read the LHWCA and its
definition of “employer” to include “borrowing employers” who have a
“borrowed servant” relationship to their employee. See id. at 940; Cruz v.
Nat’l Steel & Shipbuilding Co., 910 F.3d 1263, 1269 (9th Cir. 2018). A
borrowed servant is an “employee whose services are, with the employee’s
consent, lent to another employer who temporarily assumes control over the
employee’s work.” BLACK’S LAW DICTIONARY, Employee (11th ed. 2019). 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
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5 This Court has provided that:
absent a United States Supreme Court pronouncement, the
decisions of federal courts are not binding on Pennsylvania state
courts, even when a federal question is involved. When
considering a given issue, however, we prefer Third Circuit
decisions to those of other federal circuits, to discourage litigants
from ‘crossing the street’ to obtain a different result in federal
court than they would in Pennsylvania court. If, however, the
Third Circuit has no law on a given question, we may seek
guidance in the courts of appeals and district courts in other
circuits.
Graziani v. Randolph, 856 A.2d 1212, 1218 (Pa. Super. 2004) (quoting
Werner v. Plater–Zyberk, 799 A.2d 776, 782 (Pa. Super. 2002)). Neither
this court nor our Supreme Court has addressed the borrowed servant doctrine
in the context of the LHWCA. Thus, we look to the federal courts for guidance.
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of that third party while under that third party's direction and control. Shamis
v. Moon, 81 A.3d 962, 970 (Pa. Super. 2013).6
In Peter, the United States Court of Appeals for the Third Circuit
adopted the borrowed servant doctrine to determine whether the defendant
was the plaintiff’s employer under the LHWCA. 903 F.2d at 940. There, the
court focused on two primary factors for evaluating the existence of a
borrowed servant relationship: “(1) whether the borrowing employer was
responsible for the borrowing employee’s working conditions and (2) whether
the employment was of such duration that the borrowed employee could be
presumed to have acquiesced in the risks of his new employment.” Id. at 942
(citing Gaudet v. Exxon Corp., 562 F.2d 351, 357 (5th Cir. 1977)). The
court ultimately concluded that the plaintiff in that case was a borrowed
servant because his work was controlled, directed and supervised solely by
the defendant, the defendant provided his safety equipment and was
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6 While this court has not addressed the borrowed servant doctrine in the
context of the LHWCA, we have applied the doctrine under Pennsylvania’s
Workers’ Compensation Act (WCA), which contains a similar exclusivity
provision to that of the LHWCA. See 77 P.S. § 481(a). When determining
whether a borrowed servant relationship exists in that context, the crucial
consideration is whether the borrowed servant “passes under the [borrowing
employer’s] right of control with regard not only to the work to be done
but also to the manner of performing it.” Shamis, 81 A.3d at 967 (Pa.
Super. 2013) (quoting Mature v. Angelo, 97 A.2d 59, 60 (Pa. 1953)
(emphasis in original)). “Whether a company is an injured worker’s employer
under the borrowed employee doctrine under a given set of facts is a question
of law.” Burrell v. Streamlight, Inc., __ A.3d __, 908 EDA 2019, at *2 (Pa.
Super. Nov. 7, 2019).
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responsible for his working environment, and the defendant, by paying the
staffing agency, was responsible for his salary and LHWCA insurance. Id. The
plaintiff had worked for the defendant for approximately ten months,
demonstrating clear acquiescence to the working conditions and the
defendant’s control over his employment. Id.
The court noted that there were nine additional considerations for
evaluating the existence of a borrowed servant relationship in the Fifth Circuit
case law on which it relied, but these considerations were sublimated to the
two essential factors listed above. Id. at 942 & n.7 (3d Cir. 1990); see also
Gaudet, 562 F.2d at 356 (citation omitted) (listing the nine factors but noting,
“none of these factors, or any combination of them, is decisive”). The
additional considerations are:
(1) Who has control over the employee and his work? (2) Whose
work is being performed? (3) Was there an agreement between
the original and borrowing employer? (4) Did the employee
acquiesce in the new work situation? (5) Did the original employer
terminate his relationship with the employee? (6) Who furnished
the tools and place for performance? (7) Was the new
employment over a considerable length of time? (8) Who has the
right to discharge the employee? (9) Who had the obligation to
pay the employee?
Peter, 765 F.2d at 942 & n.7 (citing West v. Kerr-McGee Corp., 765 F.2d
526, 530 (5th Cir. 1985)). The court emphasized that the borrowed servant
doctrine applies when there is “some expressed or implied contract of hire
between the borrowed employee and the borrowing employer.” Id. at 942.
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Significantly, the Peter court relied on several precedents from the Fifth
Circuit Court of Appeals in applying the borrowed servant doctrine to the
exclusivity provision of the LHWCA and identifying the relevant test. In those
cases, the Fifth Circuit held that when the relevant facts are undisputed,
whether an employee constitutes a borrowed servant under the LHWCA is a
question of law. See, e.g., Gaudet, 562 F.2d at 357-58. Thus, Peter
addressed the question as a matter of law based on the record before it on
appeal, finding that no alternative conclusion could be drawn based on the
facts before it. Peter, 765 F.2d at 942; accord Cruz, 910 F.3d at 1268
(holding as a matter of law that the plaintiff was the defendant’s borrowed
servant when she worked for nearly two years at the direction and control of
the defendant, even though a staffing agency was responsible for her payroll).
With these principles in mind, we turn to the merits of Sardina-Garcia’s claim.
B.
Sardina-Garcia argues that the trial court erred in granting BMP’s motion
for summary judgment and finding as a matter of law that he was BMP’s
borrowed servant. He contends that the evidence adduced at summary
judgment established genuine issue of material fact as to whether BMP was
his employer at the time of his accident. We disagree.
As outlined previously, the two central considerations when determining
whether a borrowed servant relationship exists are “(1) whether the borrowing
employer was responsible for the borrowing employee’s working conditions
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and (2) whether the employment was of such duration that the borrowed
employee could be presumed to have acquiesced in the risks of his new
employment.” Peter, 765 F.2d at 942. An examination of the GSA and of
Sardina-Garcia’s own deposition testimony reveal that BMP, not MK, was
responsible for his daily working conditions. The GSA specifically placed the
burden on BMP to provide the facility at which the work would be performed
and safe working conditions. GSA at 1-2. Sardina-Garcia testified that BMP’s
supervisors assigned his shifts, approved any requested time off, and dictated
whether he could work overtime. Depo. of Sardina-Garcia, 12/15/17, at 36-
39. When he came into work, he would punch in on BMP’s time clock and a
BMP supervisor would tell him where he would be working and give him a
specific assignment. Id. at 40, 46-48. While the BMP supervisors would give
him instructions regarding the work that needed to be performed, Sardina-
Garcia would choose how to perform the work based on his expertise as a
shipfitter. Id. at 61. Whenever he had questions about the details of an
assignment, he would consult the BMP supervisor and the supervisors would
check his work once it was complete. Id. at 61-62. While Sardina-Garcia
certainly relied on his own specialized expertise and training to perform his
duties, BMP retained ultimate control over his worksite and work product.
The second consideration also weighs easily in favor of finding a
borrowed servant relationship. Sardina-Garcia had been assigned to work at
BMP for approximately 20 months at the time he was injured, and during that
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period, he worked four to six days per week and eight to twelve hours per
day. Id. at 35-37. Sardina-Garcia had worked for his borrowing employer
for over twice as long as the plaintiff in Peter, whom the Third Circuit
considered to be a borrowed servant. Peter. This lengthy relationship with
BMP suggests that Sardina-Garcia acquiesced to the employment relationship
for the purposes of the LHWCA. See Gaudet, supra, at 356 (“[B]y the very
act of continuing in employment, [the borrowed servant] may be assumed to
agree that, considering the likelihood of injury and the likely severity of injury
within the working conditions he experiences, the benefits offered by the
LHWCA in the event of injury are acceptable.”).
While the nine additional considerations are not dispositive as to
whether a borrowed servant relationship exists, we find that they also militate
in favor of finding that Sardina-Garcia was BMP’s employee. From the
foregoing discussion, it is clear that BMP had control over Sardina-Garcia’s
work, Sardina-Garcia was performing solely BMP’s work on a daily basis, and
that the employment was over a significant length of time with Sardina-Garcia
acquiescing to the working conditions. Peter, 765 F.2d at 942 & n.7 (as to
considerations 1, 2, 4 and 7). In addition, the sixth consideration favors a
finding that BMP was Sardina-Garcia’s employer, as BMP furnished the place
of employment as well as many of the tools and the protective gear. BMP
provided Sardina-Garcia’s fire retardant vest, gloves, goggles, face shield,
masks, knee protection and welding hood. Depo. of Sardina-Garcia,
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12/15/17, at 62-63. Sardina-Garcia brought his own hand tools to the site,
but BMP provided the larger tools necessary for the work. Id. at 64-67.
The third consideration in determining whether the employee was a
borrowed servant is the GSA between MK and BMP. Peter, 765 F.2d at 942
& n.7. The GSA outlined the parties’ respective duties towards the employees
recruited by MK, predominantly placing recruiting, payroll and benefits
obligations on MK and day-to-day instructions and workplace control on BMP.
See GSA at 1-2. Sardina-Garcia relies on West v. Kerr-McGee Corp., 765
F.2d 526, 528, 531 (5th Cir. 1985), and Aladay v. Patterson Truck Line,
Inc., 750 F.2d 375, 377-78 (5th Cir. 1985), for the principal that a question
of fact arises when the contract between the original and borrowing employer
explicitly states that assigned employees will not become employees of the
borrowing employer. West and Aladay are inapposite because there was no
comparable provision in the GSA between MK and BMP.7 The terms of the
GSA do not suggest that the parties intended to prevent MK’s employees from
becoming borrowed servants of BMP. Further, whether a borrowed servant
relationship exists is a question of law, and the outcome does not turn solely
on the intent of the parties but rather on the full nature of the relationship
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7Sardina-Garcia also relies on a provision in his Employment Agreement with
MK that states that he would not become an employee of any employer with
whom he is placed by MK. However, the relevant consideration is the
agreement between the borrowing and original employer, not the agreement
between the original employer and the employee. Peter, 765 F.2d at 942
n.7.
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between the staffing agency, the purported borrowing employer, and the
employee.
Next, we consider whether BMP terminated Sardina-Garcia or had the
right to do so. Peter, 765 F.2d at 942 & n.7 (considerations 5 and 8). While
BMP did not directly terminate employees under the GSA, it did have the
power to suspend MK’s employees or request that MK remove the employee
from the assignment. When BMP no longer wished to work with an MK
employee, it would notify MK to remove the employee from the assignment.
Depo. of Eva Metzger, 12/20/17, at 38-39. BMP also retained the authority
to discipline MK employees. Id. On one occasion, Sardina-Garcia was, in
fact, disciplined by BMP for failing to comply with a safety requirement and he
was suspended from work for one day as a consequence. Depo. of Sardina-
Garcia, 12/15/17, at 42-43. Even though BMP never terminated Sardina-
Garcia, it had an attenuated ability to permanently remove him from its
employment by contacting MK.
Finally, we consider which entity had the obligation to pay Sardina-
Garcia for his work. Peter, 765 F.2d at 942 & n.7 (consideration 9). MK
provided wages and benefits to its employees and was responsible for workers’
compensation insurance, including LHWCA coverage, for all of its employees.
Id. at 1, 3. While MK was responsible for payroll, all billing rates were agreed-
upon in the GSA and BMP was responsible for approving time sheets and
invoices for payroll. Id. at 2. In Peter, the Third Circuit found that even
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though the staffing firm handled the logistics of the plaintiff’s salary and
LHWCA, the defendant was, in fact, responsible for paying those amounts
through its contract with the staffing agency. Peter, 765 F.2d at 942. The
same logic holds here, and this factor weighs in favor of finding a borrowed
servant relationship.
Accordingly, the two primary factors in the borrowed servant doctrine
under the LHWCA, as well as the nine additional considerations,
overwhelmingly support the trial court’s finding that BMP was Sardina-Garcia’s
employer under the LHWCA. We discern no error in the trial court’s judgment.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/13/2020
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