Shamis v. James Moon C/O Geppert Brothers, Inc.
81 A.3d 962
| Pa. Super. Ct. | 2013Background
- On March 4, 2008 Gary Shamis, employed by M.L. Jones Construction (subcontractor), was injured when allegedly run over by a dump truck operated by James Moon, an employee of Geppert Brothers (general demolition contractor) at the Pennsylvania Convention Center expansion.
- Shamis and his wife sued multiple defendants for negligence; Geppert Brothers moved for summary judgment asserting borrowed-servant immunity under the Workers’ Compensation Act (i.e., it was the "borrowing employer" and Shamis a "borrowed employee").
- Geppert Brothers relied largely on oral deposition testimony of its witnesses to show control; plaintiffs produced the subcontract (assigning supervision obligations to M.L. Jones) and workers’ compensation filings showing M.L. Jones as Shamis’ employer and wage-payer.
- The trial court granted Geppert Brothers summary judgment; a substitute order also dismissed claims against Moon. Plaintiffs appealed challenging application of the borrowed-servant doctrine.
- The Superior Court vacated and remanded, finding genuine factual disputes about whether M.L. Jones retained the right to control the manner of Shamis’ work (the critical Mature test factor) and that other statutory-employer issues were undeveloped.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Geppert Brothers was immune under the borrowed-servant doctrine | Shamis (plaintiff) argued M.L. Jones retained the right to control the manner of his work (subcontract and WC filings show M.L. Jones as employer/wage-payer), so borrowed-servant immunity does not apply | Geppert argued it exercised supervisory control on site (schedules, safety, foreman directives) so Shamis became its borrowed employee and it is immune | Vacated trial court; remanded — genuine issue of material fact whether the right to control manner of work passed to Geppert Brothers, precluding summary judgment |
| Whether summary judgment could be based solely on depositions of moving party's witnesses (Nanty-Glo issue) | Plaintiffs did not raise Nanty-Glo below; they relied on documentary evidence and contested the depositions | Geppert relied principally on its witnesses’ deposition testimony | Court noted a potential Nanty-Glo problem but plaintiffs waived that argument by not raising it in the trial court; decision turned on factual disputes about control |
| Whether statutory-employer immunity should be considered | Plaintiffs argued the record shows M.L. Jones was employer; court must not decide an unpled statutory-employer defense without record support | Geppert did not plead or argue statutory-employer immunity (moved only on borrowed-servant grounds) | Court declined to consider statutory-employer doctrine on appeal because the record lacked necessary contracts and facts; parties did not litigate it |
| Whether dismissal of claims against co-defendant Moon was proper | Plaintiffs did not contest on appeal that Moon’s dismissal was erroneous | Geppert and Moon sought substitution/dismissal; trial court entered order dismissing Moon too | Court noted the substitute dismissal of Moon was entered off the original motion and parties agreed, but remanded overall because borrowed-servant summary judgment was erroneous |
Key Cases Cited
- Mature v. Angelo, 97 A.2d 59 (Pa. 1953) (test: whether the worker passed under the borrower’s right to control the work and manner of performance)
- McDonald v. Levinson Steel Co., 153 A. 424 (Pa. 1930) (elements required to establish statutory-employer status under section 203)
- Nanty-Glo v. American Surety Co., 163 A. 523 (Pa. 1932) (moving party’s uncontradicted testimonial affidavits/depositions alone are insufficient for summary judgment because credibility is for the factfinder)
- Penn Ctr. House, Inc. v. Hoffman, 553 A.2d 900 (Pa. 1989) (summarizes Nanty-Glo rule on testimonial evidence at summary judgment)
- Mathis v. United Eng’rs & Constructors, Inc., 554 A.2d 96 (Pa. Super. 1989) (describes borrowed-servant doctrine as common-law allocation of control)
- Englert v. Fazio Mech. Serv’s, Inc., 932 A.2d 122 (Pa. Super. 2007) (summary judgment standard; view record in light most favorable to nonmoving party)
- LeFlar v. Gulf Creek Indus. Park Number 2, 515 A.2d 875 (Pa. 1986) (Workers’ Compensation Act divests common pleas courts of jurisdiction over common-law negligence claims against employers)