The opinion of the court was delivered by: Hillman, District Judge
This matter has come before the Court on the motion of defendant Mayfair Organization and Mayfair Festival of the Arts ("Mayfair"), for summary judgment on plaintiff's personal injury claim. For the reasons expressed below, Mayfair's motion will be denied.
This Court exercises diversity jurisdiction pursuant to 28 U.S.C. § 1332. Plaintiff is a citizen of New Jersey. Defendants Mayfair and Zeo Brothers Productions ("Zeo") are incorporated and have their principal places of business in Pennsylvania. Plaintiff claims that the amount in controversy exceeds $75,000.00.
On May 2, 2005 plaintiff filed a Complaint against defendants Mayfair and Zeo alleging personal injury. The parties do not dispute the following facts.
The Mayfair Organization runs the Mayfair Festival of the Arts which takes place annually in May at Cedar Beach Park in Allentown, Pennsylvania. Mayfair retained Zeo to perform work at the Festival of the Arts in May 2003 including the set up of sound and lighting equipment to be used at the festival. Plaintiff claims that on May 22, 2003 he was injured when a volunteer at the festival named Roberto Maisonet allegedly caused a speaker cabinet to fall on his ankle. Plaintiff, contending that he was injured during the course and scope of his employment with Zeo, sought worker's compensation benefits in Pennsylvania and was subsequently awarded and received benefits through Pennsylvania Worker's Compensation.
Defendant Mayfair now moves for summary judgment arguing that Pennsylvania's "borrowed servant doctrine" brings the volunteer employee who allegedly caused plaintiff's injury under the auspices of Zeo.*fn1 With Zeo classified as the employer for purposes of liability, Mayfair further argues, plaintiff's claim should be barred by the exclusive remedy principle of the Pennsylvania Worker's Compensation Act.*fn2
A. Summary Judgment Standard
Summary judgment is appropriate where the Court is satisfied that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(c).
An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence "is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)(quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. A party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
As a District Court in New Jersey sitting in diversity, we apply New Jersey's choice of law rules. See Aetna Sur. and Cas. Co. v. Sacchetti, 956 F. Supp. 1163, 1168 (D.N.J. 1996). New Jersey applies the "governmental-interests analysis" to determine which state's laws apply. See P.V. v. Camp Jaycee, 922 A.2d 761, 763 (N.J. Super. Ct. App. Div. 2007)(citing Rowe v. Hoffman-La Roche, Inc., 917 A.2d 767 (N.J. 2007). First, it must be determined whether an "actual conflict" exists. Id. (other citations omitted). If an actual conflict exists, then the Court must determine the interest each state has in the dispute and "apply the law of 'the state with the greatest interest in governing the issue.'" Id. (other citations omitted). Because this case hinges on identifying either Mayfair or Zeo as the employer of the volunteer employee, Pennsylvania and New Jersey law on borrowed employees must be examined to determine if a conflict exists.
Under Pennsylvania law, the borrowed employee doctrine predominately focuses on the right to control the manner in which the employee performs the work. JFC Temps, Inc. v. Workers' Compensation Appeal Board, 680 A.2d 862, 865 (Pa. 1996).
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.
Id. at 864 (citations omitted).
In contrast, the New Jersey Supreme Court determines liability of general employers for the alleged negligence of special (borrowed) employees by applying a two prong test: (1) whether the general employer had the right to control the employee, and (2) whether the employee was working to further the business of the general employer. Galvao v. G.R. Robert Const. Co., 846 A.2d 1215, 1220 (N.J. 2004). "[T]he threshold inquiry is whether the general employer controlled the special employee." Id. Either direct or broad control by a general employer would satisfy the first prong of the test in New Jersey. Id. at 1221. If the general employer did exercise such control, then it must be ascertained whether the special employee furthered the business of the general employer. Id. If the special ...