Trott, B. v. Naples, A.

J-A04041-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
BRANDON R. TROTT, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
ANTHONY NAPLES AND LEAR, LLC, :
:
Appellees : No. 1097 WDA 2014
Appeal from the Judgment Entered July 3, 2014
in the Court of Common Pleas of Lawrence County
Civil Division, at No(s): 2005-11278
BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 17, 2015
Brandon R. Trott (Trott) appeals from the July 3, 2014 judgment
entered against him and in favor of Appellees Anthony Naples (Naples) and
Lear, LLC (Lear), following a jury trial in this personal injury case. We
affirm.
The trial court summarized the facts of this case as follows.
This matter arises out of an accident occurring on
November 3, 2003 at Neshannock Elementary School in New
Castle, Lawrence County, Pennsylvania. The Plaintiff, [Trott],
was employed as an ironworker for Sheraden Steel. At the time
of the accident [Trott] was working on a construction site at
Neshannock Elementary School (hereinafter, the “job site”). For
the purpose of steel erection in connection with the project,
Sheraden Steel rented a crane and crane operator from [Lear].
[ ] Lear sent [Naples] to operate the 50-ton TMS475 crane at the
Neshannock job site.
On the morning of November 3, 2003, [] Naples, [Trott],
and other members of the construction crew were concluding
steel erection activities on the rear of the building. Also an
* Retired Senior Judge assigned to the Superior Court.
J-A04041-15
ironworker, Mr. Willard Ensminger (hereinafter, “Ensminger”)
was the foreman on the job site. Ensminger was responsible,
inter alia, for controlling the work to be completed and, in some
instances, the manner in which the work was to be performed.
[] Naples described Ensminger to be “the boss.”
Later, Ensminger decided to move the construction to the
front of the building. [] Naples then drove the crane to the front
of the building. While [] Naples was driving the crane to the
front, the jib extension, which is also called the lattice boom
extension, was positioned to the side of the crane. Once in
position, the jib extension had to be swung around the crane to
the front in order for the ironworkers to reach interior areas of
the building. In order to do so, four pins that were holding the
jib extension in place on the side of the crane had to be
removed. The pins had to be removed and inserted manually;
however, conflicting testimony was presented regarding the
permissible and prohibited manners of doing so. [Trott] first
climbed onto the side of the crane to remove the pins, and the
jib extension swung to the front of the crane. The pins then had
to be reinserted to stabilize the jib extension so it could safely
move the steel beams. [Trott] then climbed onto the boom and
walked toward the head of the jib extension. Conflicting
testimony was presented regarding whether the boom moved in
any way; nevertheless, [Trott] suddenly fell off the left side of
the boom and landed headfirst onto his wrists.
[] Naples testified that in his 50 years of employ as a crane
operator, he has never seen an ironworker walk on the boom to
insert pins to secure the jib extension. He testified that he
would have no reason to think someone was walking on the
boom since he had never seen anyone do it. Conversely, [Trott]
presented the testimony of Ensminger and another ironworker,
Mr. Kevin Cain (hereinafter, “Cain”), who was working alongside
[Trott] when he fell, both of whom testified that ironworkers
typically walked on the boom to insert pins in this way. Cain
testified that he had climbed onto the boom to insert the pins
into the jib extension approximate[ly] one thousand times. He
and Ensminger also each testified that [] Naples appeared to
move the boom while [Trott] was on top of it, which caused
[Trott’s] fall. They also each testified that no one gave [] Naples
a signal to do so; rather, [] Naples made an independent call to
move the crane. [] Naples, however, denied this claim. []
Naples explained that while operating a crane, the operator’s
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view is obstructed and he relies on signaling from ironworkers on
the ground. He testified that he never moves the crane without
receiving a signal. [] Naples also testified that he engaged the
emergency brake and foot brake on the crane so it would have
been impossible for him to move the crane at that point.
Trial Court Opinion, 9/8/2014, at 2-4 (footnotes omitted).
Naples moved for summary judgment on the basis that he was a
borrowed employee of Sheraden Steel when Trott was injured, and therefore
he was not liable under 77 P.S. § 72,1 which provides that a person cannot
be held liable for a work-related injury caused to someone in the same
employ. The trial court granted summary judgment to Naples and Lear on
this basis, and Trott appealed. On appeal, this Court held that the trial court
“usurped the role of a factfinder and abused its discretion” in finding upon
conflicting evidence that Naples was the statutory employee of Sheraden
Steel. Trott v. Naples, 29 A.3d 825 (Pa. Super. 2011) (unpublished
memorandum at 9). This Court, therefore, vacated the judgments in favor
of Naples and Lear, reversed the orders granting summary judgment, and
remanded the case for trial. Id. at 10.
The case went to trial, with both sides moving for a directed verdict on
the issue of Naples’ employer. The trial court denied both motions, and the
jury subsequently determined that Naples was the employee of Sheraden
Steel at the time of Trott’s injury. Trott’s post-trial motion was denied,
1
This “fellow servant” rule is part of the Worker’s Compensation Act.
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judgment was entered in favor of Naples and Lear, and Trott timely filed a
notice of appeal.
Trott presents this Court with two questions on appeal: (1) whether
the trial court erred in denying Trott’s motion for a directed verdict on the
issue of Naples’ employer, and (2) whether the trial court erred in failing to
instruct the jury on a particular federal code provision. Trott’s Brief at 8.
We consider Trott’s first question mindful of the following standard of
review.
In reviewing a trial court’s decision whether or not to grant
judgment in favor of one of the parties, we must consider the
evidence, together with all favorable inferences drawn
therefrom, in a light most favorable to the verdict winner. Our
standard of review when considering motions for a directed
verdict and judgment notwithstanding the verdict are identical.
We will reverse a trial court’s grant or denial of a judgment …
only when we find an abuse of discretion or an error of law that
controlled the outcome of the case. Further, the standard of
review for an appellate court is the same as that for a trial court.
There are two bases upon which a [directed verdict] can
be entered: one, the movant is entitled to judgment as a matter
of law and/or two, the evidence is such that no two reasonable
minds could disagree that the outcome should have been
rendered in favor of the movant. With the first, the court
reviews the record and concludes that even with all factual
inferences decided adverse to the movant the law nonetheless
requires a verdict in his favor, whereas with the second, the
court reviews the evidentiary record and concludes that the
evidence was such that a verdict for the movant was beyond
peradventure.
Polett v. Public Communications, Inc., 83 A.3d 205, 211-12 (Pa. Super.
2013) (quoting Ty–Button Tie, Inc. v. Kincel and Co., Ltd., 814 A.2d
685, 690 (Pa. Super. 2002)).
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The law regarding borrowed servants in general 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.
JFC Temps, Inc. v. W.C.A.B. (Lindsay), 680 A.2d 862, 864 (Pa. 1996)
(citations omitted) (citing, inter alia, Mature v. Angelo, 97 A.2d 59 (Pa.
1953)).
The test is slightly altered for a worker who is supplied to operate a
piece of leased equipment.
Where one is engaged in the business of renting out
trucks, automobiles, cranes, or any other machine, and furnishes
a driver or operator as part of the hiring, there is a factual
presumption that the operator remains in the employ of his
original master, and, unless that presumption is overcome by
evidence that the borrowing employer in fact assumes control of
the [employee]’s manner of performing the work, the servant
remains in the service of his original employer.
Mature, 97 A.2d at 61 (citations omitted). The presumption is not
overcome by “[t]he mere fact that the person to whom a machine and its
operator are supplied points out to the operator from time to time the work
to be done and the place where it is to be performed.” Id.
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Where the facts are not in dispute, and the evidence
leaves no sufficient ground for inconsistent inferences therefrom,
the question as to who is the servant’s employer is a matter for
the determination of the court, but, where the evidence presents
an issue of fact, or different inferences can reasonably be drawn
therefrom, the question is one for determination by the jury.
Id. (citations omitted).
Naples and Lear argue that the question of whether the trial court
erred in submitting the determination of Naples’ employer to the jury is
controlled by the law of the case doctrine, which provides that “if an
appellate court has considered and decided a question on appeal, neither
that court nor any trial court may revisit that question during another phase
of the same case.” Gateway Towers Condominium Ass'n v. Krohn, 845
A.2d 855, 861 (Pa. Super. 2004). A prior panel of this Court determined
that the trial court’s deciding the issue as a matter of law, on the conflicting
facts presented, usurped the role of the fact-finder. Accordingly, Naples and
Lear claim that the law of the case doctrine precluded the trial court from
deciding the question of Naples’ employer as a matter of law and directing a
verdict during the subsequent trial. Appellees’ Brief at 8-9.
There are only three exceptions to the law of the case doctrine…
[1] where there has been an intervening change in the
controlling law, [2] a substantial change in the facts or evidence
giving rise to the dispute in the matter, or [3] where the prior
holding was clearly erroneous and would create a manifest
injustice if followed.
Commonwealth v. O’Bidos, 849 A.2d 243, 253 (Pa. Super. 2004)
(citations and internal quotation marks omitted). There was no intervening
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change in the law, nor was the prior holding of this Court erroneous, clearly
or otherwise. Although the prior decision was based upon the record at
summary judgment rather than the evidence offered at trial, it does not
appear that there was any substantial change in the facts or evidence.
Thus, we agree with Appellees that the law of the case doctrine applied.
Even if the law of the case doctrine did not here require that the jury
resolve the question of who was Naples’ statutory employer, we hold that
the trial court properly put the question to the jury based on the evidence
offered at trial.
The record contains, inter alia, the testimony of William Ensminger, a
Sheraden Steel employee who was the job foreman when Trott was injured.
Ensminger testified that, as foreman, he was responsible for deciding what
work was to be done each day. N.T., 2/11/2014, at 157. Naples and the
ironworkers worked as a team, and Ensminger was “the quarterback of that
team telling each party what to do[.]” Id. at 161. He instructed Naples
when to begin working with the ironworkers each day, when to eat lunch,
and when to leave the site for the day. Id. at 160. The Sheraden Steel
ironworkers, under Ensminger’s stewardship, directed how Naples performed
his work by telling him when to move the boom, lift a load, and move the
crane. Id. at 159. Ensminger decided to move the crane from the back to
the front of the school on the day in question. Id. at 158. Importantly,
Ensminger testified that he was the person who determined that Naples
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must use the jib extension on the crane. Id. As noted earlier, Trott’s injury
occurred during the process of attaching the jib extension.
Looking at this evidence in the light most favorable to the Naples and
Lear as the verdict winners, it is clear that they produced evidence of
Sheraden Steel’s control over Naples beyond merely pointing “out to the
operator from time to time the work to be done and the place where it is to
be performed.” Mature, 97 A.2d at 61. The evidence was such that the
jury was able to conclude reasonably that Sheraden Steel in fact assumed
control over the manner in which Naples performed his work, thus rebutting
the presumption that Naples remained in Lear’s employ. Cf. O'Connell v.
Roefaro, 137 A.2d 325 (Pa. 1958) (holding presumption was not overcome
by the fact that an employee of the company which rented a crane and
operator merely gave signals to crane operator, where the company had no
right to instruct him how to operate the crane or to tell him when to begin or
cease work). Accordingly, the trial court did not err in denying Trott’s
motion for a directed verdict.
Trott’s remaining claim on appeal is that the trial court’s instructions
as to fall-protection regulations were erroneous. Because the jury
determined that Sheraden Steel was Naples’ employer, Naples and Lear
were shielded from liability. See 77 P.S. § 72 (providing that a person
cannot be held liable for a work-related injury caused to someone in the
same employ). Hence, the jury did not reach the issue of whether the
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appropriate fall protections were utilized. Therefore, Trott is unable to
demonstrate prejudice, and any error was harmless. See, e.g., Boyle v.
Independent Lift Truck, Inc., 6 A.3d 492, 496 (Pa. 2010) (“[A]llegations
of error are harmless where the jury is not required to deliberate over the
issue out of which the alleged error arises in order to reach its verdict.”).
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/17/2015
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