J-A04041-15

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

BRANDON R. TROTT,

 Appellant

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ANTHONY NAPLES AND LEAR, LLC,

 Appellees

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 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 
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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