NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 19-1479 ____________

CRYSTAL GRIMSLEY, Individually & as Administratrix of the Estate of Rickie L. Grimsley, Deceased, Appellant

v.

THE MANITOWOC COMPANY INC; MANITOWOC CRANES COMPANIES, LLC; MANITOWOC CRANE, LLC; GROVE U.S., LLC; KYLE MELLOTT ____________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 1-15-cv-01275) District Judge: Honorable John E Jones, III ____________

Argued October 2, 2019

Before: SHWARTZ, FUENTES and FISHER, Circuit Judges.

(Filed: November 7, 2019)

Robert F. Englert [ARGUED] RFE Law Firm 105 Rutgers Avenue P.O. Box 249 Swarthmore, PA 19081 Counsel for Appellant

Dennis P. Herbert [ARGUED] Stephen D. Menard Joseph P. Trabucco, III Trabucco & Menard 600 West Germantown Pike Suite 400 Plymouth Meeting, PA 19462 Counsel for Appellees Manitowoc Co. Inc., Manitowoc Cranes LLC., Manitowoc Crane Co. LLC.

Stephanie L. Hersperger [ARGUED] Pion Nerone Girman Winslow & Smith 240 North 3rd Street Payne Shoemaker Building, 10th Floor Harrisburg, PA 17101

John T. Pion Pion Nerone Girman Winslow & Smith 1500 One Gateway Center 420 Fort Duquesne Boulevard Pittsburgh, PA 15222 Counsel for Appellees Grove United States and Kyle Mellott ____________

OPINION * ____________

FISHER, Circuit Judge.

Rickie Lee Grimsley (“Decedent”) died in a workplace accident after becoming

trapped between two industrial cranes. Since his death, his wife, Crystal Grimsley, has

received workers’ compensation death benefits. Mrs. Grimsley also filed suit asserting

claims of, inter alia, negligence against the Decedent’s fellow employee Kyle Mellott and

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

2 various corporate entities, including The Manitowoc Company, Inc. and its subsidiary,

Grove U.S. L.L.C. The District Court granted summary judgment in favor of Grove and

Mellott based on Pennsylvania Workers’ Compensation Act (“PWCA”) immunity and in

favor of Manitowoc for failure to state a claim of negligence. This appeal followed. We

will affirm. 1

First, the District Court did not err in granting summary judgment in favor of Grove

and Mellott because Grove was the Decedent’s employer and, therefore, it and its

employees are entitled to immunity under the PWCA. See 77 Pa. Stat. §§ 72, 481(a). The

PWCA defines “employer” “to be synonymous with master.” Id. § 21. Thus, courts turn to

the common law test of control to determine the relation of employer and employee under

the PWCA. See Kiehl v. Action Mfg. Co.,

(Pa. 1987). When the case

involves a corporate parent-subsidiary relationship, “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.,

(Pa. 1966). “If the corporate functions are

distinct and in the performance of his duties, the employee is shown to have acted in

furtherance of the functions of only one, or essentially one of the corporations, then that

1 The District Court had jurisdiction pursuant to

. We have jurisdiction pursuant to

. “We exercise plenary review of a district court’s grant of summary judgment.” Goldenstein v. Repossessors Inc.,

(3d Cir. 2016).

3 corporation will be deemed his employer.”

Only when “a functional analysis does not

provide a clear-cut answer” do we “turn to other indicia of the right to control.” Joyce v.

Super Fresh Food Mkts., Inc.,

, 946–47 (3d Cir. 1987).

Here, Mrs. Grimsley fails to create a genuine dispute of material fact as to the

functions of Manitowoc and Grove. Mark Klaiber, the Defendants’ corporate designee,

testified that Manitowoc “does not manufacture or produce anything” but functions “as a

holding company” or “an umbrella organization simply for the ownership” of several

different product lines. Supp. App. 91. Klaiber stated that after Manitowoc acquired Grove,

it took over administrative functions, such as “tax and accounting and payroll.” Supp. App.

92. By contrast, Grove “managed all of the operations [including] engineering, designing,

testing, manufacture, [and] sales” for the cranes produced at Shady Grove. Supp. App. 91.

Although Manitowoc paid employees’ wages, it charged the costs back to Grove. In

addition, Grove’s Environmental Health and Safety Manager attested that “[t]he safety

policies and procedures in place at the [Shady Grove facility] at the time of [the

Decedent’s] accident were independently developed, prepared, implemented and enforced

by Grove . . . and not by [Manitowoc].” Supp. App. 897–98.

Mrs. Grimsley argues that Manitowoc’s functions included “designing,

manufacturing, and selling” its cranes, and says Grove functioned as nothing more than “a

real estate holding company” or “an accounting write off for operations directed by”

Manitowoc. Appellant Br. 43, 50–51. Mrs. Grimsley’s evidence that Manitowoc’s logo,

4 name, and copyright appear on various signs and documents is consistent, however, with

Manitowoc’s function as an umbrella organization. As Klaiber testified, “[W]e want all of

the products under that umbrella organization of The Manitowoc Company, Inc. to be

associated with and affiliated with Manitowoc as its name.” Supp. App. 97. Furthermore,

although Manitowoc publicly represented that it owned manufacturing space at Shady

Grove, these mere representations do not call into question the fact that, according to the

deed, Grove owns the Shady Grove facility.

After establishing the functions of the various entities, we conclude that the

Decedent’s work furthered the functions of Grove. The Decedent inspected and prepared

cranes for sale at the Shady Grove facility, which was owned and operated by Grove.

Although his work may have involved filling out documents that included the Manitowoc

logo, his work furthered Grove’s function of manufacturing and selling cranes far more

directly than it furthered Manitowoc’s function as an umbrella organization that handled

certain administrative matters. See Kiehl,

(employee furthered functions

of subsidiary even though his work also indirectly benefitted parent). Because the

functional analysis conclusively establishes that Grove, and not Manitowoc, was the

Decedent’s employer, we do not consider other indicia of the right to control. See Joyce,

815 F.2d at 946–47.

Alternatively, Mrs. Grimsley argues that Manitowoc admitted it was the Decedent’s

employer because it failed to give notice that temporary compensation would stop within

5 ninety days of initiating payments pursuant to a Notice of Temporary Compensation

Payable (“NTCP”). 2 The NTCP, however, identifies “Grove Cranes Worldwide” as the

Decedent’s employer, lists the address for the Shady Grove facility, and omits a Federal

Employer Identification Number. Mrs. Grimsley fails to offer evidence that Manitowoc

and “Grove Cranes Worldwide” are the same entity, and Klaiber testified that the use of

the name on the form was “sloppy reporting” because “there is no such entity.” Supp. App.

114. Thus, the District Court did not err in granting summary judgment to Grove and

Mellott based on PWCA immunity. 3

Second, the District Court did not err in granting summary judgment in favor of

Manitowoc because Mrs. Grimsley fails to state a claim of negligence against

Manitowoc. Under Pennsylvania law, an employee of a subsidiary may sue the parent for

its independent acts of negligence. Kiehl, 535 A.2d at 574–75. Manitowoc, however, did

not owe a duty to the Decedent. Manitowoc did not owe a duty as the owner and operator

of the Shady Grove facility because, as noted above, Grove in fact owned the facility.

2 Under the PWCA, an employer must “promptly” investigate a workplace injury and pay compensation. 77 Pa. Stat. § 717.1(a). An employer may initiate such payment “without admitting liability pursuant to a [NTCP]” for up to ninety days. Id. §§ 717.1(d)(1), (d)(2)(ii). If an employer does not notify the employee within ninety days that it will stop making temporary payments, it “shall be deemed to have admitted liability.” Id. §§ 717.1(d)(5), (6). 3 Mrs. Grimsley’s judicial estoppel argument also fails. Judicial estoppel is premised on an assault to the integrity of the court. She presents no evidence that the Defendants advanced irreconcilably inconsistent positions to mislead the court. See Krystal Cadillac- Oldsmobile GMC Truck, Inc. v. Gen. Motors Corp.,

(3d Cir. 2003).

6 Nor did Manitowoc undertake a duty by issuing safety standards to govern the Shady

Grove facility. Although a parent corporation may be liable to the employees of its

subsidiary for failing to provide a safe work environment if it undertook such a duty, see

Cantwell v. Allegheny County,

, 1353 & n.4 (Pa. 1984), uncontroverted

evidence shows that Grove developed and implemented the policies used at the Shady

Grove facility.

Furthermore, Manitowoc may not be held directly liable for any failure to adopt or

enforce safety procedures. Although Mrs. Grimsley’s engineering expert concluded that

Manitowoc owed a duty under industry standards, that opinion was premised on the

assumption that “Manitowoc controlled the work that was being performed at the time of

the incident.” D. Ct. Docket No. 118-42, at 20. The question of who controlled the work

at Shady Grove is a legal one, and the expert’s report cannot establish a duty by opining

on a legal question. Thus, the District Court did not err in granting summary judgment in

favor of Manitowoc.

For the reasons set forth above, we will affirm the District Court’s judgment.

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