*1 MYSZKOWSKI, Appellant, v. Christine Inn, Lee HOTEL, INC., Pocono Best Western PENN STROUD t/a Saloon, Tavern, Andrews, Andrews, Good Time Stroud Harriet Associates, Inc., Best Western Spahr, Kerchner Kenneth John International, Inc. Pennsylvania.
Superior Court 10, 1993. Argued Feb. 30, 1993.
Filed Nov. *2 Bethlehem, for Gorski, appellant. D. Richard Hotel, Penn Stroud Carroll, Philadelphia, for J. Thomas Inc., appellee. Western, appellee. Hildabrand, for Best Harrisburg, R.
Karl CIRILLO, CAVANAUGH, JJ. WIEAND Before CAVANAUGH, Judge: *3 of Common order of the Court is from an appeal
This an in summary judgment County granted of Monroe Pleas (“Best International, Inc. Best Western appellee favor Western”). against, filed suit Myszkowski Christine Appellant Stroud”) (“Penn Hotel, Inc. alia, appellee Penn Stroud inter she was Best Western after Inn and Best Western Pocono t/a room of the Best Western in the ladies’ sexually assaulted to provide Inn failed theory that the had Inn on the Pocono appeal in this main issues raised security. The adequate (1) Best Western whether questions agency: involve two (2) Stroud; Penn and with agency relationship actual had an an apparent Best had whether Western summary judgment was that Having Penn Stroud. found (cid:127)with court, we affirm. by the trial appropriately granted campus hired her two were partners, and Appellant, jockeys at a social function the work as disc ministry group to 24, 1987. The April on the sponsoring night was group Inn in Pocono contracted with the Best Western group for this County to use its ballroom Stroudsburg, Monroe associates, had been hired they her event. do, designated night, up set at the Inn on the up showed ball- AM, left the began appellant work. At about 1:30 room to use the ladies’ there, restroom. While she was attacked and sexually assaulted by John Kenneth Spahr.1 Appellant then initiated present alia, suit against, inter Best Western and Penn Stroud alleging that Best Western either exercised or retained the right to control all of Penn Stroud’s operations, they were in negligent failing to ensure that there was adequate security and that as a direct proximate result, appellant was attacked and suffered physical and mental injuries.
Best Western is a non-profit corporation organized under laws Arizona and registered to do business Commonwealth of Pennsylvania. Stroud, by virtue of a marketing agreement Western, with Best is a member of the Best Western organization which allows it to use the “Best Western” name and participate the Best Western reserva- tion network. Following suit, the commencement of this Best Western moved for summary judgment that, on the grounds law, as a matter of an agency relationship did not exist between itself and Penn Stroud. The trial court agreed with Best Western and summary entered judgment in their favor. This appeal followed. issues,
Before we can address the agency we must first dispose preliminary of a issue by appellant. raised It is her contention that she was severely prejudiced when the trial court entered summary judgment without giving her the opportunity to either file a brief or argue opposition to Best held, Western’s motion. We have ruling when on a motion, it is within the discretion of the trial court to decide whether briefs oral argument are required whether and/or *4 the matter can disposed best be of from a review of the record Phila., alone. Gerace v. Holmes Protection 357 Pa.Super. 467, 475, 354, Here, there was an extensive record before the trial court and it was aware of the legal positions parties they oppor were afforded the to at a tunity argue pretrial Having this motion conference. arguments by reviewed the record and considered the made Spahr imprisonment following 1. was sentenced to a term of his convic- charges stemming tion on from this attack. was court, appellant how we fail to see this parties to on the abuse of discretion and find no in this case prejudiced court.2 of the trial part us to by appellant require raised remaining issues
The two that, as a ruling erred in trial court whether determine relation- law, apparent an actual nor neither matter of as to so and Penn Stroud Best Western ship existed between When responsibility. vicarious Best Western implicate applica- we review summary judgment, grant reviewing following standard: of the tion only if the bemay granted summary judgment
A motion and ad- interrogatories, answers to depositions, pleadings, affidavits, if any, show file, together with missions on fact, and to material genuine is no issue as that there only part certified to this of the record Appellant also contends Western’s ruled on Best the trial court when it court was before given opportunity summary judgment because she was not motion admissions, court, depositions and an affidavit to to submit the trial opposition motion. argument to this upon her which she based however, point specifically what documents in out Appellant, does allegedly and our not before the trial court record were the certified documents, of the original indicates that all review of the record were, in therein interrogatories admissions contained depositions, fact, long summary judgment was the lower court before filed with entered. terms, general argument but in the most has made brief, original glean from her we been able to from what have record, appears occurred is reproduced it that what has and the record reproduced documents which appellant has included in the record below and were never docketed never before the trial court and were brief, appellant’s original page At 24 of part of record. made a reproduced is an page of the record which reference is made to 249a by appellant. Our review indicates that this affida- sworn out affidavit Pa.R.A.P., part original record. See Rule is not of the vit properly lower court are (only those documents filed in the Pa.C.S.A. was not part appeal). We note that the affidavit of the record on also entry summary appellant’s motion to reconsider attached Furthermore, argument appellant her judgment. maintains that while affidavit, is judgment heavily on this opposition summary relied 2, November which was it was not attested until clear that such, summary judgment entered. As nearly months was five after only those appellant’s argument merit and we will review is without disposition original in our contained in the record 10, materials infra, reference to appellant. See note for further issues raised this affidavit. *5 320
that the moving party is entitled to judgment as a matter of law. passing on a for summary motion judgment, court must examine the record light most favorable to party. [However], the non-moving it is clear that to survive a motion for summary judgment, the non-moving party may rely upon merely allegations plead- of contested but ings, must set forth specific affidavit, facts by way of or way some provided rule, other by the demonstrating a genuine that issue exists. v. Hospital, 533, 536,
Kerns Methodist 393 Pa.Super. 574 A.2d (1990) (citations 1068, omitted). 1069 of grant “[T]he sum mary judgment -willonly be reversed an error of law or a clear abuse of discretion.” v. Carns 406 Yingling, Pa.Super. 279, 282, 337, (1991) (citation omitted). 594 A.2d 339 issue; now appellant’s
We focus on second whether the trial that, law, ruling court erred in as a matter of an actual relationship did not exist between Best Western and Penn Appellant argues Stroud. an agency existed relationship because Best Western had the to substantially control marketing Penn Stroud pursuant agreement. their She maintains Best Western concerns itself with the total of operation through Penn Stroud the workshops pro- and conducts, grams regulations the rules it imposes and its noncompliance to sanction for its ability quality with stan- dards. that, analysis by
We our begin recognizing every “not relationship principal agent responsi creates vicarious bility principal agent.” Gajkowski in the acts v. Etc., Teamsters, 285, 301, Pa.Super. Intern. Broth. 350 504 840, (1986), 320, Pa. rehearing, A.2d 848 on 519 548 A.2d aff'd in the agent relationship “A can be principal servant, simply in the status two of a master and v. City Philadelphia, contractors.” Juarbe independent (1981) (citations 1073, Pa.Super. omitted). servant, the principal “If a is not a particular agent liable may vicariously be held is not considered a master who Thus, for' agent.” Id. in order acts of the negligent for the alleged vicariously be held liable for the Best Western to them Stroud, between of Penn negligence servant.3 that of master and must have been *6 Stroud Western-Penn determining whether the Best that of simply or of master and servant relationship was one contractors, by our given guidance arewe independent two Court, has declared: Supreme to the subject is person is such inquiry whether the basic respect with right to control employer’s control alleged of the services performance in the physical conduct his an employee- hallmark of engaged.... which he was only controls employer is that the employer relationship manner direct the right has the result of the work but hallmark an accomplished; the in which work shall be is that relationship contractee-contractor independent the exclusive control in the work has person engaged it, for the being responsible only of performing manner result. Co., 477, 483-4, 414 Pa. v. Oil Independent
Green omitted). (citations (1964) 207, 210 that the is insofar as she contends correct is that master relationship master-servant
hallmark of a in which the serv to control the manner possesses However, urges us to accomplished. she work shall be ant’s conception of what overly-broad what we believe is an apply not “direct Best Western does constitutes “control.” simply by accomplished” work is to be manner which the “It is the with Stroud. marketing agreement having principal to the will of the subjection continuous element of important distinction be- Pennsylvania courts have drawn an 3. While servant, relationships principal agent and master and tween the jurisdictions recognize and use these this differentiation some do not jurisdictions, interchangeably. cited Several cases from other terms infra, disposition appellant’s to in our which we have made reference issue, principal-agent and master-servant agency actual use the terms analysis, purposes our these interchangeably. We note that for the agent, generic principal and terms other courts’ use of more concept they implicate specific legal and servant as the more master Pennsylvania. Additionally, point “actual we out that are defined agency” specifically and not the to a master-servant refers general principal-agent relationship. more 322
which distinguishes the ... agency agreement from other (Second) agreements.” 1(1), § Restatement of Agency, com (1957) added). b (emphasis ment While we are unaware of any Pennsylvania defines, case which jurisdictions as other have, the inquiry context, actual we believe our the focus of inquiry should be whether alleged master has day-to-day over control the manner of alleged performance. Co., servant’s v. Little Howard Johnson 675, 679, (1990) Mich.App. 390, (franchisor 455 N.W.2d must have right to control day day operations of a franchise in order to an agency establish relationship); Schweich v. Inc., Ziegler, (Minn.1990); 463 N.W.2d v. Carlton Inc., Queen, (Ala.1988); Alabama Dairy So.2d 924-5 Laboratories, Assistance, Hunter Min. Inc. v. Management *7 Inc., 568, 570, 350, 104 (1988); Nev. 763 P.2d 352 v. Hayman Inn, Inc., 274, 277, 394, Ramada 86 357 N.C.App. S.E.2d 397 (1987); Fashions, Inc., v. Georgia McMullan Girl Ga.App. 180 228, 748, (1986); Bonanza, 348 S.E.2d 750 Herman v. 223 474, 479-81, 536, (1986); Neb. 390 N.W.2d 541-2 v. Schear America, 670, Management Motel Corp. Md.App. 61 487 1240, 1248-9 (1985); Ortega A.2d v. Corp., General Motors 392 40, Coty So.2d 42-3 v. (Fla.Dist.Ct.App.1981); Slicing U.S. Co., Inc., 237, 687, 241, 691, 58 15 Ill.App.3d Machine Ill.Dec. Inn, Inc., 1371, (1978); 1375 Murphy Holiday 373 N.E.2d v. 490, 874, 495, 216 219 Va. S.E.2d find for support proposition
We additional the the on inquiry agency day-to-day actual focuses the control of reasoning servant’s conduct from the purported issue, Pennsylvania case in Green v. Indepen- seminal on this Co., Green, our ruled that supra. Supreme dent Oil Court in submitting jury relationship court erred to a lower Independent between Oil Co. and one of its franchisee/dealers. (1) agreement was: between Significant its decision agency of an parties disclaimed existence specifically (3) (2) dealer; the sales relationship; profits went to the all name; in the dealer’s tax and the electric bills were permits (4) employees paid his and dealer hired and fired own (5) in bank them; personal all were the dealer’s kept monies (6) Co.’s Oil purchased Independent account; the dealer and Thus, 210.4 Green, 482-3, 201 A.2d at at supra, products. area focused its the seminal case judgment is our master controlled purported on to which the the extent inquiry also, See alleged of the servant. day-to-day operations 360-1, Ferroni, Pa.Super. v. Strain (no (1991) and cover- relationships physician between his own discre- to use covering doctor free ing doctor where tion, patient). in care knowledge skill and day-to Here, managed the owners of Stroud decisions made all of the of the business and day operations Inn of the were employees operation. incidental to this managers. hired, fired, by Penn Stroud paid, supervised various services for the managers prices Penn Stroud set the has no provide. Best Western they accommodations one contrary, To the ownership Penn Stroud. interest is by in Penn Stroud owned stock percent hundred Inn run various mem and the is defendant Lee Andrews Stroudsburg; Best is Western family bers of the Andrews ($23,500) for services. its year fixed amount each only paid a Western and Penn Moreover, the between Best agreement their is one provides that specifically Stroud has, alia, contractor, inter that Best Western independent It safety premises.” ... also for the responsibility “no its voluntarily end association Stroud the affords Penn For these any reason. time with Best Western *8 by Best reasons, necessary control clearly there is to a master-serv establish day-to-day operations Western Green, supra. relationship. ant See of the Best Western- points to incidental duties state that a master- agreement to marketing
Penn Stroud
Specifi-
the parties.
exist between
relationship may
servant
program quality
Western
she contends that the Best
cally,
note,
present agreement,
was a
to
there
We also
that similar
Independent
Co. could termi-
provision which stated that
Oil
contract
uphold
part
his
relationship if
nate the
the dealer
failed
Id.,
did not
agreement.
414 Pa.
grams and workshops Best Western conducts in order to achieve this goal are tantamount to control or the right However, control. the fact that Best Western sets certain standards in order to maintain a uniform quality of inn service only addresses the result of the work and not the manner Here, which it is conducted. it is Penn Stroud which decides manner which it will meet quality criteria set Best Western. Such an arrangement does not constitute a master-servant but relationship, rather is indicative of an independent contractor-contractee relationship as outlined in Green, supra.
Appellant also stresses the fact if Penn Stroud failed to adhere to these control quality requirements which were checked biannual inspections, Best Western could terminate the Inn from using sanction, however, its trade name. Such does not indicate that there is continuous subjection to the will of the alleged master so as to constitute a master-servant Green, relationship. Rather, See supra, note supra. merely reemphasizes Stroud, that Penn which has ability to voluntarily terminate its with Best Western at time, independent entity is an which controls its own destiny.5 Best Western cannot compel Stroud to alter merely ability its conduct. It has the to either terminate its relationship with Penn Stroud or threaten terminate it. We type marketing arrangement conclude does simply type not evidence the control day-to-day over manner performance would establish a master-servant rela- tionship. Sckear, particularly persuasive
We find the decision in supra, Maryland where the court addressed a fact pattern Sckear, similar to the one. In had present plaintiffs certain valuable items from in the stolen their room while Chase, Inn at The Hotel was not Holiday Chevy Maryland. respective rights obligations. many 5. All contracts contain contracts, party’s outweigh corresponding duties of one duties often other; presence rights Notwithstanding, of these and duties necessarily does not create the existence of a master-servant relation- ship. *9 Inns, Incorporated, Holiday The Holiday Inn. by owned Associ- Chevy Chase Motel a franchise to granted (“Holiday”) (“Associates”). Associates, turn, with Motel contracted ates to op- (“Management”) of America Management Corporation by control The court found that the hotel. manage erate oversight general lacking,” noting Holiday “totally was under the law: constitute “control” does not The totally lacking this case. was The control element Inn Holiday Chevy Chase operation of management Associates, in turn contracted entirely in were vested running manage to Management, Craig’s employer, with to con- right Holiday retained the Although hotel. insuring as means of adherence inspections a duct periodic standards, day-to-day in the part it took no Holiday Inn to a purchased merely of Associates the hotel. operation inn of service— system uniform Holiday from product —a stan- to maintain certain obligation with it an that carried of that one by But “the fact the seller. prescribed dards of for the interests has duties act subsidiary parties another, goods from a manufactur- a purchaser where the manufac- will the interests of agrees that he advance er an relation respects, does create turer in certain (Second) Agency Restatement respect with sale.” Holiday to right possessed § c comment standards constitutes compliance with its franchise insure subsidiary duty. a such than the enforce no more Schear, A.2d at 1249. supra, bar was identical facts as the case at
A with almost situation Hayman, In a woman was supra. in Hayman, presented Winston-Salem, Inn in of Ramada premises on the assaulted Inc., sued, alia, Inn inter Ramada She North Carolina. negli- alleged liable for the vicariously that it was asserting affirming grant summary its franchise. gence the court declared: judgment, Agreement between reviewed the Licensee
Having carefully owner], find no evidence that Inn’s we [the defendant control or exercised the kind of detailed defendant retained Inn Akron Drive Ramada operation over daily *10 that would establish a principal-agent relationship. The general purpose of the contract is the maintenance of uni- within, form service toward, and public good the Ramada Inn system. Otherwise, [the Inn’s operates the owner] facility on its own behalf. The agreement primarily re- quires [the Inn’s to comply owner] with certain standards in construction, furnishing, and advertising of the facility. Apart imposition from the upon Inn’s [the to main- owner] clean, tain attractive, its accommodations “in a safe and manner,” orderly the twenty-page contract imposes no stan- dards nor makes any provision other with respect to securi- ty premises. Under agreement, defendant nei- over, ther retained authority for, nor established standards hiring, firing, supervision, discipline of personnel or myriad other details of day-to-day operation. More- over, although defendant has retained the right to conduct regular inspections of the accommodations to compli- insure ance with the operation, contract and rules of defendant’s right actual control is limited to a to terminate the franchise agreement damages any noncompliance [by collect for circumstances, the Inn’s Under these we conclude owner]. agency relationship that no actual existed that justify would holding responsible defendant Inn’s securi- [the owner’s] ty arrangement.
Hayman, supra,
trial court erred Western did exist between Best held contends that Best Western Penn Stroud. Stroud, she owner/operator itself out therefore, Best Western representation relied on vicariously negligent for the acts held liable could be and/or of Penn Stroud. omissions to the refer our attention and Best Western appellant
Both *11 (Second) (1975), outlines § of 267 which Agency, Restatement also agency.7 Appellant or of ostensible apparent the rule purport which to principally on two federal cases relies 6. area, Drexel v. Union predict Pennsylvania law in this attempt to Inc., Centers, (3rd Cir.1978) and Drummond Prescription 781 582 F.2d (E.D.Pa.1980). Corp., case Hotel F.Supp. 29 former v. Hilton 501 scenario, having with franchise speak had to deal a to our fact does not gave such broadly it the franchisor agreement was so drawn that impose power be to on the franchisee discretionary as to able broad Drexel, supra, F.2d at warranted. virtually measure it deemed judice, as case sub analogous to Accordingly, we do not find the 789. herein, clearly rights in the contract at issue respective the and duties Penn Stroud’s business Western does control indicate that Best conduct. case, the Drummond court denied the franchisor’s In latter the (1) following the judgment the facts: summary based on motion for advertising in all required to the franchisor’s name was use franchisee (2) right the consult with the promotion; and the of franchisor to (3) operating problems; right the of the franchisor hotel franchisee on quality; of inspect to maintain its standards the franchisee hotel (4) of express agency of is not fact that an denial an the Drummond, relationship. of a itself determinative of the existence such more, supra, analysis to be erroneous. Without at 31. We believe this right the the to control these do not indicate that franchisor had factors most, only operations franchisee. At these factors day-to-day of the result, of a speak which is the maintenance to the franchisor’s desired by quality level of franchisees. None of the factors cited uniform its the manner in which the fran- directly Drummond court concerns alone, Thus, presence of these factors chisee must meet this result. give genuine respect with to the does not rise to a issue material fact day-to-day operations Because control franchisee. flawed, reasoning find it of Drummond we is we do not believe persuasive appellant’s agency resolution of actual issue. our (Second) Agency § 7. 267 of Restatement states: offers, in support position, of her caselaw which relies on the authority. doctrine of apparent Our review of the relevant n caselaw, however, leads us to Pennsylvania conclude while recognizes closely related agency apparent doctrines of authority agency by estoppel, our has not Commonwealth Juarbe, § formally adopted 267 of the Restatement.8 we a supra, principal may stated that be liable to another for agent grounds authority the acts of an on the apparent agency by estoppel. Pa.Super. Id. 288 431 A.2d at these two explained We theories follows: Agency by estoppel by is defined section 8B. of the Restate- (Second) Agency ment and the doctrine has been em- by emphasized braced this court:... two basic [We have] (1) agency by estoppel: negli- elements of there must be gence part principal failing on the to correct (2) there party concerning agent; belief of the third Agency the third justifiable party.... must be reliance closely deemed to be related to generally is by estoppel Thus, stated, principal authority. alternatively apparent is apparent authority estopped his with agent who clothes deny authority. such Juarbe, Soffer, v. Turnway Corporation supra, quoting omitted) (1975) (citations 447, 457, Pa. added). (emphasis *12 case, author apparent
In the doctrine of present the authority and apparent Both simply applicable. is not ity relevant “customarily [only] are by estoppel agency Juarbe, Here, the supra.9 of business transactions.” context agent or other and is his servant represents that another One who rely upon care or skill justifiably to thereby person causes a third person for liability the third subject to to apparent agent is of such appearing to be a the one by of care or skill of caused the lack harm agent if he were such. as servant or other however, note, agency, embodied in as apparent or ostensible 8. We authority 267, apparent substantially to the doctrines of § similar is Hospital, 287 Pa.Su estoppel. Capan v. Divine Providence agency by 647, 364, 4, 649 n. 4 per. 369 n. Juarbe, against negligence action brought a plaintifh'appellant 9. slipped and after she had Company Exxon service station and an Exxon resulted negligence which alleged one for the is tort claim case, facts of this Under the appellant. assault of the sexual upon be said have relied see can appellant fail to how we being avoid of Penn Stroud to authority apparent review of the act violence. Our of this random of victim no evidence presented has appellant indicates that record that she relied allegation her remotely supports even which Western, Best represented the fact that Penn Stroud upon As ex- sexually assaulted. night on she was agent, its a campus a third by party, was hired supra, appellant plained Best Western or unrelated to either ministry group, wholly Stroud, of night April on the jockey to work as disc Penn Inn. neither Pocono at the Best Western Stroud; or Penn with Best Western negotiated nor contracted the function where ministry specified appellant group up to show at the simply agreed take She place. was to music for a designated night play on the designated place, ministry Our review group. function sponsored social rely that she on the only record not indicates did of the “Best West- place carried the name designated fact ern,” performed she have service appears but that it would campus minis- to at most location the had contracted she Thus, Best cannot be held had Western try group designated. negligence of Stroud vicariously alleged liable for the authority.10 apparent theory under petroleum products present on the side- on an fallen accumulation station, gave claiming that as a of this fall she of the service result walk child, subsequently died as a result of premature birth to her who premature regard this birth. to Exxon causes associated with With authority liability apparent Company’s under the doctrines entry summary by estoppel, trial we affirmed the court's issue, customarily judgment reasoning on that these are doctrines application in the no relevant context of business transactions and had Juarbe, supra, supra. Gajkowski, presented. under the facts See (doctrine Pa.Super. apparent authority A.2d at 850 customarily applicable liability settings when there is reli- in contract authority). agent's on the ance supra, appellant As noted has submitted an affidavit this court original part Although is not a record. we have held that of the raised, disposing appellant will not it in has we consider issues *13 reads, believe it comment. affidavit in we warrants one further part: pertinent therefore, conclude, law, We a matter that as a master- servant relation did exist between Best and Penn Western authority Stroud nor was Penn Stroud clothed with apparent under facts of this as to the case so render Best Western for Penn vicariously alleged liable Stroud’s Ac- negligence. cordingly, affirm the granting we order trial court summary in judgment favor of Best Western. relinquished.
Order affirmed. Jurisdiction WIEAND, J., dissenting opinion. files a WIEAND, Judge, dissenting: majority carefully has the facts of
Although reviewed case, opinion unerringly I am of the that such facts do not lead to conclusion between Best relationship that International, Hotel, Inc. Western and Penn Stroud Inc. was contrary, independent that of owner and contractor. On the a jury there is here an issue of fact for to determine. present International, Inc. re- That issue is whether Best Western a over the in which served control manner sufficient Hotel, Inc. Best Pocono Western operated Stroud give Inn to rise to master and servant International, Inc. liable for vicariously render Best Western Hotel, if Inc. any, Penn Stroud negligence, .of Therefore, I the Best Western Pocono Inn. operation of to affirm majority’s dissent from the decision respectfully in favor of Best entry summary judgment trial court’s International, Inc. Western working I was to be at a hotel all under the belief that At I was times hotels, Western, a nationwide chain of operated Best owned and Myszkowski Christine /s/ on the to show she relied this affidavit in order offers However, all that Best Western.
fact that hotel carried name place she would is that was aware her indicates she statement not, any way Best Western. It does working be was a choosing Best Western name degree, that she relied on the indicate genuine of material fact to create a issue to work there so as Thus, judgment. if we were summary even motion for would defeat the disposition of her claim appellant’s affidavit in our to consider of this issue. apparent would our resolution agency, not affect *14 using while sexually assaulted Myszkowski was Christine Inn, Pocono at the Best Western ladies’ restroom filed Penn against suit County. Monroe She Stroudsburg, inn, also Best Hotel, Inc., against and which owned the Stroud International, secu- Inc., grounds inadequate on Western summary The trial court entered provided. had rity been Western, appealed. Myszkowski favor of Best and judgment working jockey as a disc 25,1987, Myszkowski was April On inn a local at the conducted being at social function a a had leased campus organization ministry group. college Mysz- inn had hired independently and room the banquet entertainment. music and partner provide and her to kowski had occasion to evening, Myszkowski During the course of restroom, assault- was surprised where she use the ladies’ Spahr.1 Kenneth by John ed 1981, approved as a Hotel was
In 1980 or Stroud This organization. enabled of the Best Western member advertising and name for to use “Best Western” hotel in the Best Western participate to promotional purposes Western, corporation a non-profit network. Best reservation to registered do of Arizona and under the laws organized contends that Pennsylvania, business in the Commonwealth hotel of Penn Stroud’s operation it does not control “marketing organization It describes itself a business. the use of a properties through its member which benefits system, joint advertising, volume dis- reservation cooperative counts, standards, gener- and other income quality assurance a It denies that there is franchisor-franchisee ating services.” relationship. that Best Western complaint, Myszkowski alleged
In her security failing require better negligent had been provide for Penn failure to vicariously was liable Stroud’s these security. Best denied claims and adequate Western summary entry judgment. moved for the criminally and was Spahr subsequently convicted for his conduct was imprisonment a state to serve a term of correctional sentenced institution. A motion for summary judgment be may granted only if there is genuine no issue as material fact and the moving party is entitled to judgment as a matter of law. passing upon a motion summary judgment, court must examine the record in a light most favorable to nonmoving party and all resolve doubts against moving party. Mariscotti Tinari, 599, 601, v . 335 Pa.Super. 56, 485 A.2d (1984); Bank, Thorsen v. Iron and Pa.Super. Glass 140-141, 930-931 “It is not the court’s function decide issues of fact solely but to determine *15 141, whether there is an of fact issue to be tried.” Id. at 476 at A.2d
Although employer may an be liable negligent acts of his or employees, her servants or there is no liability vicarious by harm caused independent Cybularz, contractors. Lutz v. 579, 583, (1992). 1089, 414 607 Pa.Super. A.2d 1091 See: Coplay Manufacturing Co., 139, Hader v. Cement 410 Pa. 189 (1963). A.2d 271 employee-employer
‘The hallmark of an is that relationship the not controls the result of the employer only work but in right has the to direct the manner which the work shall the hallmark of an accomplished; independent be eontrac- tee-contractor is that the in the person engaged performing has the exclusive control of the manner of work it, for the being responsible only result.’ Nemeth, 551, 553-554, 231, Pa. 233 A.2d 232 George v. 426 Co., 477, 484, (1967), 414 Pa. Independent v. Oil quoting Green (1964). 207, 210 See also: Moon Area School 201 A.2d (1989). 178, A.2d 1361 Garzony, v. 522 Pa. 560 District the stated, if is under the control of Broadly agent the control, servant; he is if he is not under such he is a employer, Casu- contractor. Feller v. New Amsterdam independent an 299, Co., 483, 486, The actual Pa. 70 A.2d 300 alty 363 work, of over the manner by employer control exercised an rather, it is however, relationship; is not determinative which renders one authority or to control employer’s right the contractor. independent and not an an or servant employee 583, A.2d 414 607 Cybularz, supra Pa.Super. Lutz v. See:
333 determine, the jury function of “It is exclusive at 1091. the relationship, evidence, the the nature precise from the latter event dispute, facts are not except where the court.” for determination one question becomes 430-431, Motts, Pa.Super. Melmed v. omitted). (1985) (citations Centers, Inc., F.Supp. Prescription v.
In Drexel Union
against
claim
(E.D.Pa.1977),
brought
wife
a
decedent’s
(UPC)
for the
Centers, Inc.
to recover
Prescription
Union
decedent,
had
her
all which
injuries
resulting
death
UPC
prescription.
filled
improperly
of an
occurred as
result
duty
it owed no
averring that
summary judgment,
moved for
independent
was an
drugstore
plaintiff
because
“owner, operator, possessor
was not the
contractor and UPC
alleged
time of the
at the
drugstore
control” of
granted
motion and en-
district court
negligence. The
appeal,
in favor of UPC. On
summary judgment
tered
It held that it could
Third
Court of
reversed.
Appeals
Circuit
did not have
be
as a matter
law
UPC
determined
drugstore.
See:
operations
to control
(3d
Centers, Inc.,
UPC’s uniformly high
service,
appearance,
standards
quali-
ty of equipment and proved
operation.”
methods of
UPC had
the right
to terminate the relationship if the franchisee
any provision
breached
parties’ agreement.
Because
“reasonable minds could differ as to
whether
not UPC had
right
to control
physical
[the
conduct
franchisee’s]
and the
store,”
manner in which
operated
he
the Court held that a
genuine issue of fact remained to be decided. Drexel v. Union
Centers, Inc.,
Prescription
supra,
Applicant [Penn is of indepen- to its members one Best Western tionship of contractor, this has party Agreement neither to that dent and way, other that obligate any or bind the power the to joint agents or is of venturers partners, no is It under- Application Agreement. this by created use, for the responsibility has no that Best Western stood no control of subject property, of the operation condition or safety or the safety premises of the responsibility or that or Best any product, of structure design of or deci- responsibility no control over Western has any person supervision of affecting employment sion subject property. in connection with the employed hand, of the Best Western all members On other subject quality inspec- to a control biannual organization were tion, according were scored as a of which the members result provid- and the amenities properties the conditions of their score, pre-determined by to obtain a minimum ed. failure proba- from Western, ranging in sanctions Best could result of Even where sanctions membership. to termination tion correct, replace, obligated not members were imposed, were repairs areas where or renovations or renovate those repair regula- Best Rules and necessary by deemed Western. were required they incorporate that applicable to members tions signage and logo property into all the Best Western name words, “Best by using be answered telephone regulations pertained keeping Other Western.” maids, and by used attire and utensils grounds, the appear it furnishing rooms. From all this would may right well have reserved some control Best Western Inn was its operated which the Pocono over manner owners. case, therefore, be
Under the circumstances of cannot matter law relation- determined as a that a master-servant parties. did exist Whether Best West- ship between manner in ern reserved a to control the which the *18 Hotel, Inc., Inn operated by Pocono was Penn Stroud so as to vicariously negli- render Best Western liable for the inn’s if is a which must be gence, any, question by jury. decided I proceedings. would reverse and remand further