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Employer Who “Borrowed” Employee Immune From Lawsuit under the Workers Compensation Act

January 5, 2024

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Last month, the Pennsylvania Superior Court found that because an individual was a “borrowed employee,” the entity to which he was loaned was immune from a personal injury lawsuit under the Pennsylvania Workers’ Compensation Act (“WCA”).  In Mason v. Northeast Architectural Products d/b/a Daron Northeast, Plaintiff Anthony Mason (“Mason”) suffered a workplace injury while working at a manufacturing plant of Northeast Architectural Products d/b/a Daron Northeast (“Daron”). No. 735 MDA 2023, 2023 WL 8827960 (Pa. Super. Ct. Dec. 21, 2023).  Approximately one month before the injury, Mason went to a temp agency, Express Services, Inc., (“Express”), and was told to report at Daron for a position the next day.

Mason initiated a negligence action against Daron.  In its answer, Daron asserted, inter alia, it was immune from liability as Mason’s employer pursuant to the WCA.  At the close of discovery, Daron filed a motion for summary judgment claiming the same. The trial court granted Daron’s motion finding that Mason was Daron’s “borrowed employee” or “borrowed servant” and was thus immune under the WCA.

Under the WCA, employers must pay employees who suffer an on-the-job injury regardless of negligence, in exchange for which said employers are immune from tort-liability for these injuries.  This immunity extends to instances with “borrowed employees.” To determine whether an injured worker is a “borrowed employee” under the WCA, Courts look to whether the person or entity to whom the worker was loaned has the right to control the work and manner in which it is to be performed.  Burrell v. Streamlight, Inc., 222 A.3d 1137, 1139–40 (Pa. Super. 2019) (emphasis in original), citing JFC Temps, Inc. v. W.C.A.B. (Lindsay), 680 A.2d 862, 864 (Pa. 1996).  Courts also consider “the right to select and discharge the employee and the skill or expertise required for the performance of the work.”  Id.

The Superior Court found that Daron was Mason’s employer.  When Mason arrived at Daron, he was met by a supervisor, who gave him safety equipment and a tour of the plant, as well as instructions on Mason’s job duties.  Additionally, the other workers from Express who trained Mason were placed at Daron by Express and were thus training Mason in their capacity as Daron workers.  Finally, while Express paid Mason’s salary and had hiring/firing capabilities, the Court deemed those facts were not dispositive, because while Daron could not control who Express sent to fill a position, it could instruct Express not to send an employee back to the jobsite.

This case is instructive for instances where a party may try to circumvent the WCA to seek tort liability against an entity protected by the statute, particularly within the realm of temporary employment.

Please e-mail Brian Noel with any questions.

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