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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

No. 16-1196

_____________

CRYSTAL GRIMSLEY, 

Individually & as Administratrix of the Estate of 

Rickie L. Grimsley, Deceased,

 Appellant 

v.

THE MANITOWOC COMPANY, INC; 

MANITOWOC CRANE COMPANIES LLC; 

MANITOWOC CRANES LLC; 

GROVE US, LLC; KYLE MELLOTT 

_____________

 

On Appeal from the United States District Court

for the Middle District of Pennsylvania 

(District Court No. 1-15-cv-01275)

District Judge: The Honorable William W. Caldwell

 

Argued December 19, 2016

Before: SMITH, Chief Judge, McKEE, and SHWARTZ, Circuit Judges

(Filed: January 10, 2017) 

Robert F. Englert [ARGUED]

RFE Law Firm 

105 Rutgers Avenue

P.O. Box 249

Swarthmore, PA 19081

Counsel for Appellant
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James DeCinti

John T. Pion

Pion Nerone Girman Winslow & Smith

1500 One Gateway Center

420 Fort Duquesne Boulevard

Pittsburgh, PA 15222

Stephanie L. Hersperger [ARGUED]

Pion Nerone Girman Winslow & Smith

240 North 3rd Street

Payne Shoemaker Building, 10th Floor

Harrisburg, PA 17101

Counsel for Appellee 

_____________________

 OPINION*

____________________

 

* This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does 

not constitute binding precedent.
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SMITH, Chief Judge.

Plaintiff Crystal Grimsley brings suit individually and as the executrix of the estate 

of her late husband, Rickie L. Grimsley, who passed away in a crane-related accident at 

work. Named as defendants are several business entities and the crane’s operator, Kyle 

Mellott.

On October 29, 2015, the District Court dismissed plaintiff’s Complaint with 

prejudice for two reasons. First, the District Court determined that one of the entities, 

Grove, U.S., LLC (“Grove”), employed the decedent at the time of the accident, and is 

therefore entitled to immunity under the Pennsylvania Workers’ Compensation Act, 77 

P.S. § 481(a). Second, it extended that immunity to Grove’s parent companies 

(collectively, the “Manitowoc entities”).1 The District Court determined that plaintiff 

sought to pierce the corporate veil against those entities in order to circumvent the 

employer-immunity statute and hold them liable for Grove’s conduct. Finally, the District 

Court dismissed the claim against Mellott on the ground that Mellott and the decedent 

were co-employees. Plaintiff filed a motion for reconsideration, which the District Court 

denied on January 4, 2016.

This timely appeal followed.2 We exercise plenary review, applying the same 

 

1 According to the Complaint, the entities named as defendants form a chain 

of ownership: Grove is owned by Manitowoc Cranes, LLC, which is owned by 

Manitowoc Crane Companies, LLC, which is owned by The Manitowoc Company, 

Inc.

2 The District Court had jurisdiction pursuant to 28 U.S.C. § 1332. We have 

jurisdiction pursuant to 28 U.S.C. § 1291.
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standard as the District Court. N.Y. Shipping Ass’n Inc. v. Waterfront Comm’n of N.Y. 

Harbor, 835 F.3d 344, 352 (3d Cir. 2016). For the following reasons, we will reverse and 

remand for further proceedings.

I

We begin with the District Court’s determination that Grove is entitled to 

immunity from suit under Pennsylvania law because it employed the decedent. We will 

reverse because the Complaint does not plead sufficient facts to establish an employment 

relationship as a matter of law.

A

The Pennsylvania Workers’ Compensation Act provides that: “The liability of an 

employer under this act shall be exclusive and in place of any and all other liability to 

such employes, . . . or anyone otherwise entitled to damages in any action at law or 

otherwise on account of any injury or death . . . .” 77 P.S. § 481(a). This so-called 

exclusivity provision “bar[s] actions at common law against an employer.” Kline v. Arden 

H. Verner Co., 469 A.2d 158, 161 (Pa. 1983).

Under Pennsylvania law, the employment relationship is fact-intensive and not 

easily resolved at the pleadings stage. See JFC Temps, Inc. v. W.C.A.B., 680 A.2d 862, 

864 (Pa. 1996) (“[The] employer-employee relationship . . . is . . . based upon findings of 

fact.”). The question is which entity “possess[es] the right to control the manner of the 

performance of the servant’s work . . . .” Id.

The Supreme Court of Pennsylvania has recognized that corporate parentsubsidiary relationships pose special challenges in this context:
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[I]n a situation wherein the issue is which of two corporations, one of which 

is a wholly-owned subsidiary of the other, is the employer of an injured 

employee, the problem of determining the question of control can properly 

be resolved only by a consideration of the functions performed by every 

interested party—each corporation and the injured employee—in addition to 

other indicia of control.

Mohan v. Publicker Indus., Inc., 222 A.2d 876, 879 (Pa. 1966). We have interpreted 

Mohan as requiring two steps: First, we apply a “functional” analysis. Second, if that 

analysis is inconclusive, we turn to other indicia of control. Joyce v. Super Fresh Food 

Mkts., Inc., 815 F.2d 943, 946–47 (3d Cir. 1987).

Functional analysis “focus[es] on the functions performed by each corporation and 

by the employee.” Mohan, 222 A.2d at 879. “If the corporate functions are distinct and . . 

. the employee is shown to have acted in furtherance of the functions of only one, . . . 

then that corporation will be deemed his employer.” Id. In Mohan, for example, the 

decedent received paychecks from the parent company, but worked at a plant owned by a 

subsidiary, making products sold by the subsidiary. See id. at 878–79. The Supreme 

Court of Pennsylvania concluded that the subsidiary was the employer “without regard to 

any other indicia of control.” Joyce, 815 F.2d at 946.

But the entities will not always have distinct functions. See Mohan, 222 A.2d at 

879. Where functional analysis “does not provide a clear-cut answer,” it is appropriate to 

“turn to other indicia of the right to control.” Joyce, 815 F.2d at 946–47. Other indicia of 

control include “which party has the right to hire and the right to fire, which party has the 

obligation to pay wages, which party supplies the employee with the tools of her job, and 

to which party the employee normally reports.” Id. at 947 (citations omitted).
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B

In this case, the District Court correctly determined that the Complaint “does not 

shed much light, if any, on Grimsley’s functions as an employee at the Facility or the 

distinct functions of each corporate defendant.” A009. But the District Court erred when 

it concluded that “the allegations in the complaint suggest the existence of an employer / 

employee relationship between Grove and Grimsley on the date of the incident.” A010.

The few indicia of control pled in the Complaint are insufficient to establish 

immunity as a matter of law at this early stage. The only indicia that favor Grove—the 

2013 W-2 form and payroll checks—suggest that Grove paid the decedent’s salary. Yet it 

is well established under Pennsylvania law that payment of salary alone is not sufficient 

to establish an employer-employee relationship. See, e.g., Joyce, 815 F.2d at 948 (“[T]he 

fact that [a company] managed payroll is not at all probative . . . .”); JFC Temps, Inc., 

680 A.2d at 864 (“The payment of wages may be considered, but is not a determinative 

factor.”); Mohan, 222 A.2d at 878 (finding that it was “clear” that the entity issuing an 

employee’s checks was not his employer); Venezia v. Phila. Elec. Co., 177 A. 25, 26 (Pa. 

1935) (“The payment of wages is not a decisive factor . . . and one may be the servant 

and employee of another, though hired and paid by a third person.”). Discovery may 

reveal that Grimsley’s functions aligned with one entity in particular, rendering the W-2 

form and payroll checks irrelevant to the analysis. See Mohan, 222 A.2d at 878–79.

Defendants also rely on the fact that the Occupational Safety and Health 

Administration (“OSHA”) identified Grove as the decedent’s employer. We fail to 

understand why we should accord that finding any consideration. Defendants have not 
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argued that OSHA’s finding is preclusive in this litigation or that OSHA relied on factors 

coextensive with Pennsylvania law. Without peering outside the Complaint, there is no 

apparent link between OSHA’s conclusion and any indicium of control recognized by

Pennsylvania courts.

In sum, the District Court determined that Grove employed the decedent based on 

a factor that is not determinative. Even if select facts “suggest that Grove was Grimsley’s 

employer at the time of the incident,” A010 (emphasis added), those facts do not establish 

that Grove is subject to dismissal as a matter of law. Accordingly, we conclude that the 

District Court erred in according immunity to Grove and will remand for further 

proceedings.

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II

The District Court also concluded that Grove’s immunity extends to the 

Manitowoc entities. Having concluded that Grove is not immune from suit, we need not 

reach that issue.4 Nonetheless, we write to clarify the nature of the claims that remain in 

the case.

The District Court’s analysis proceeded in two steps. First, it determined that 

plaintiff solely sought relief against the Manitowoc entities on an “alter-ego” (veilpiercing) theory. That is, the District Court read the Complaint as solely alleging that The 

Manitowoc Company, Inc., through its chain of subsidiaries, dominated and controlled 

 

3 The District Court may, in its discretion, order limited discovery on the 

issue of the employer’s identity. See Fed. R. Civ. P. 26(d)(1).

4 We will also reinstate the claim against Mellott because it is premature to 

conclude that Mellott and the decedent were co-employees.
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Grove. Second, the District Court predicted that the Supreme Court of Pennsylvania 

would recognize immunity under this circumstance. It viewed plaintiff’s alter-ego claim 

as an attempt to circumvent Grove’s immunity and hold the Manitowoc entities liable for 

conduct that would otherwise be immune from suit. Plaintiff responds that she did not sue 

the Manitowoc entities on an alter-ego theory, and that the District Court’s novel and 

unsupported prediction of state law is, in effect, “reverse” veil-piercing in violation of 

Kiehl v. Action Manufacturing Co., 535 A.2d 571 (Pa. 1987). We conclude that the 

District Court incorrectly characterized plaintiff’s claims. We therefore need not address 

whether the rule adopted by the District Court violates Kiehl.

Pennsylvania law distinguishes between claims based on direct participation in a 

tort and actions performed behind the veil of a sham corporation. “Under the participation 

theory, the court imposes liability on the individual as an actor rather than as an owner. 

Such liability is not predicated on a finding that the corporation is a sham and a mere 

alter ego . . . .” Wicks v. Milzoco Builders, Inc., 470 A.2d 86, 89–90 (Pa. 1983).

A fair reading of the Complaint discloses that plaintiff sued the Manitowoc entities

on a direct participation theory. In particular, plaintiff pled: “At all times relevant hereto, 

Manitowoc was responsible for and/or assumed responsibility for the safety and security 

of the property, premises, and crane manufacturing facility . . . .” Compl. ¶ 27. Plaintiff 

also pled that The Manitowoc Company, Inc. directly employed Kyle Mellott, the crane 

operator who allegedly caused the accident. Additionally, the Complaint enumerates

separate Counts for each entity. Those Counts allege that the entities are liable for

individual acts or omissions.
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To be sure, plaintiff pled that Manitowoc “dominated and controlled” Grove.

Compl. ¶ 22. But there is no reason to disregard the parts of the Complaint that seek relief 

on a participation theory because plaintiff also pled facts that sound in veil-piercing. See 

Fed. R. Civ. P. 8(d)(2)–(3) (providing for alternative and inconsistent pleadings); Estate 

of Lagano v. Bergen Cty. Prosecutor’s Office, 769 F.3d 850, 855 (3d Cir. 2014) 

(“[T]he . . . complaint must be read as a whole, and its averments and the inferences 

reasonably drawn from those averments must be viewed in the light most favorable to the 

plaintiff.”). Moreover, plaintiff is the master of her Complaint, and has repeatedly 

insisted—in the District Court and here—that she will not pursue an alter-ego theory. 

Based on those representations, plaintiff should simply be estopped from making a veilpiercing argument in any further proceeding. See generally MD Mall Assocs., LLC v. 

CSX Transp., Inc., 715 F.3d 479, 486 (3d Cir. 2013), as amended (May 30, 2013).

III

For the foregoing reasons, we will vacate the orders and remand for further 

proceedings consistent with this opinion.