NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                  No. 09-2024


                          EDWARD P. O’DONNELL
                          MICHELLE O’DONNELL,
                                                         Appellants

                                          v.

           NEW ENGLAND MOTOR FREIGHT; TRANSFORCE, INC.;
               and TRANSPORT LEASING/CONTRACT, INC.,




                 On Appeal from the United States District Court
                     for the Middle District of Pennsylvania
                             (D.C. No. 06-cv-1068)
                  District Judge: Honorable John E. Jones, III


                  Submitted Under Third Circuit L.A.R. 34.1(a),
                               March 23, 2010

           Before: RENDELL, FUENTES, and JORDAN, Circuit Judges.

                              (Filed: April 7, 2010 )


                          OPINION OF THE COURT




FUENTES, Circuit Judge:
       Appellants, Edward O’Donnell and Michelle O’Donnell, filed a personal injury

action asserting claims for negligence and loss of consortium against Appellee New

England Mother Freight, Inc. (“NEMF”) arising out of injuries Edward O’Donnell

(“O’Donnell”) sustained in an accident at NEMF’s truck terminal. NEMF filed a third-

party complaint against Appellee Transforce, Inc. (“Transforce”) asserting claims of

indemnification, contribution, and breach of contract. Transforce asserted counterclaims

against NEMF and filed a fourth-party complaint against Appellee Transport

Leasing/Contract, Inc. (“TLC”) asserting claims of indemnification and breach of

contract. Transforce and TLC moved for summary judgment on the ground that all

Defendants were immune from suit under the Pennsylvania Workers’ Compensation Act

because O’Donnell was a “borrowed servant” of NEMF at the time of the accident.

Concluding that under Pennsylvania law, O’Donnell was a borrowed servant of NEMF,

the District Court granted the motions for summary judgment and entered judgment in

favor of all Defendants. For the reasons that follow, we will affirm.1

                                             I.

       Because we write primarily for the parties, we only discuss the facts and

proceedings to the extent necessary for the resolution of the case.

       NEMF is a trucking company with a terminal in Lehightown, Pennsylvania.

       1
        The District Court had diversity jurisdiction pursuant to 28 U.S.C. § 1332. This
Court has jurisdiction pursuant to 28 U.S.C. § 1291. “We review a grant of summary
judgment de novo, and thus apply the same standard as that used by the District Court.”
Am. Eagle Outfitters v. Lyle & Scott Ltd., 

, 580–81 (3d Cir. 2009) (citation
omitted).

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Transforce is a staffing company that leases drivers to the transportation industry. At all

relevant times, NEMF and Transforce were parties to an agreement by which Transforce

would provide NEMF with temporary drivers during peak business periods. TLC is a

professional employer organization that handles payroll, workers’ compensation

insurance, and other human resources functions. Transforce contracted with TLC to

screen and perform background checks on potential employees. Transforce considered

leased drivers to be its employees, in the common sense of the word. Leased drivers were

paid by Transforce (although the payroll was done by TLC) and could be terminated by

Transforce. Transforce also provided benefits, including workers’ compensation

insurance, to leased drivers. If a leased driver did not like an assignment, Transforce

would attempt to accommodate the transfer request.

       When NEMF needed a temporary driver, it would contact Transforce with a

description of the assignment. NEMF had to approve any leased driver provided by

Transforce. Once the driver was approved, NEMF would determine the driver’s work

assignments and direct performance of his job duties. An NEMF supervisor would

approve the driver’s time cards, which were sent to Transforce for payment. Although it

could not terminate a leased driver’s employment with Transforce, NEMF could

terminate the leased driver’s assignment with NEMF. Pursuant to the terms of the

agreement, a leased driver was an employee of Transforce, not an NEMF employee.

       O’Donnell responded to a Transforce advertisement for drivers. Transforce sent

him a TLC application packet, which he received and completed. O’Donnell then met


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with the Transforce branch manager, Larry Heinly, who forwarded the application to TLC

for processing. Soon thereafter, Heinly called O’Donnell and asked him if he was

interested in a yard jockey assignment with NEMF. A yard jockey is a driver who moves

loaded and unloaded trailers around NEMF’s premises. O’Donnell said that he was

interested, and Heinly contacted NEMF.

       On the day of the accident, O’Donnell reported to NEMF’s Leighton terminal.

The parties’ characterizations of what occurred next differ, but the essential facts are not

in dispute.2 Heinly recalled that NEMF wanted to interview and test O’Donnell before

putting him to work. David Hillman, the manager of the NEMF terminal, recalled that he

greeted O’Donnell and then almost immediately passed him off to the operations

manager. He stated that he did not interview Transforce drivers as Transforce was to

have already interviewed them. O’Donnell recalled that he had a discussion/interview

with a manager when he first arrived at NEMF.

       Next, Wilbur Green, a yard jockey on duty at the time, demonstrated the operation

of the yard horse (a small tractor used to move trailers around the terminal yard).

O’Donnell then operated the yard horse himself, although the parties disagree whether

this constituted a test, training, or neither. Thereafter, Green resumed operation of the

yard horse to show O’Donnell how to back a trailer into the docking area. O’Donnell was

standing behind the cab of the yard horse on a small platform. O’Donnell and Green

       2
        As the District Court did in the first instance, when the facts are in dispute, we
review the record and draw all inferences in the light most favorable to O’Donnell, the
nonmoving party. Am. Eagle 

.

                                             -4-
disagree regarding whether Green directed O’Donnell to stand in that location, but this

dispute is not material. O’Donnell became pinched between the yard horse and the trailer

and was injured. Following the accident, O’Donnell applied for and received workers’

compensation benefits from TLC.

                                             II.

       The Pennsylvania Workers’ Compensation Act is the “the exclusive means for

obtaining compensation for injuries which has been substituted for common law tort

actions between employees and employers.” Shick v. Shirey, 

, 1237 (Pa.

1998) (citation omitted); accord 77 Pa. Cons. Stat. Ann. § 481(a). Thus, if NEMF was

O’Donnell’s “employer” at the time of the accident, O’Donnell’s personal injury action is

barred. Where an employee is furnished by one entity to another, the “borrowed servant”

doctrine applies. The Pennsylvania Supreme Court has described this doctrine as follows:

       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.

JFC Temps, Inc. v. Workers’ Compensation Appeal Bd., 

, 864 (Pa. 1996)

(internal citations omitted). “[T]he right to control the performance of the work is the

overriding factor.” 

As long as the material facts are undisputed, “[t]he

question of whether an employer-employee relationship exists is one of law.” 

                                             -5-
(citation omitted).

       In a thorough opinion, the District Court correctly concluded that, as a matter of

law, under the “borrowed servant” doctrine, NEMF was O’Donnell’s employer at the

time of the accident. While Transforce retained some control over O’Donnell, NEMF

exercised control over O’Donnell’s performance of the work at the NEMF facility, the

key inquiry. See English v. Lehigh County Auth., 

, 1349 (Pa. Super. Ct.

1981). Contrary to O’Donnell’s argument, the fact that NEMF had not yet formally

“hired” him is irrelevant. O’Donnell was not volunteering at NEMF, and his presence at

the facility was for NEMF’s benefit. See Kirk v. Commonwealth, Unemployment

Compensation Bd. of Review, 

, 1235–36 (Pa. Commw. Ct. 1982).

Accordingly, NEMF was a borrowing employer for the purpose of the Workers’

Compensation Act, and O’Donnell’s claims are barred.

                                            III.

       For the foregoing reasons, we affirm the District Court’s Memorandum and Order

granting Defendants’ motions for summary judgment and entering judgment in favor of

Defendants.




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