Myszkowski v. Penn Stroud Hotel, Inc.

• Decision Date: 30 November 1993
• Citation: 430 Pa.Super. 315,634 A.2d 622
• Parties: Christine MYSZKOWSKI, Appellant, v. PENN STROUD HOTEL, INC., t/a Best Western Pocono Inn, Lee Andrews, Harriet Andrews, Stroud Tavern, Good Time Saloon, John Kenneth Spahr, Kerchner Associates, Inc., Best Western International, Inc.
• Court: Pennsylvania Superior Court

Page 622

634 A.2d 622

430 Pa.Super. 315

Christine MYSZKOWSKI, Appellant, v. PENN STROUD HOTEL, INC., t/a Best Western Pocono Inn, Lee Andrews, Harriet Andrews, Stroud Tavern, Good Time Saloon, John Kenneth Spahr, Kerchner Associates, Inc., Best Western International, Inc.

Superior Court of Pennsylvania.

Argued Feb. 10, 1993.

Filed Nov. 30, 1993.

Richard D. Gorski, Bethlehem, for appellant.

Thomas J. Carroll, Philadelphia, for Penn Stroud Hotel, Inc., appellee.

Karl R. Hildabrand, Harrisburg, for Best Western, appellee.

Before CAVANAUGH, WIEAND and CIRILLO, JJ.

CAVANAUGH, Judge:

This is an appeal from an order of the Court of Common Pleas of Monroe County which granted summary judgment in favor of appellee Best Western International, Inc. ("Best Western"). Appellant Christine Myszkowski filed suit against, inter alia, appellee Penn Stroud Hotel, Inc. ("Penn Stroud") t/a Best Western Pocono Inn and Best Western after she was sexually assaulted in the ladies' room of the Best Western Pocono Inn on the theory that the Inn had failed to provide adequate security. The main issues raised in this appeal involve two questions of agency: (1) whether Best Western had an actual agency relationship with Penn Stroud; and (2) whether Best Western had an apparent agency relationship with Penn Stroud. Having found that summary judgment was appropriately granted by the trial court, we affirm.

Appellant, and her two partners, were hired by a campus ministry group to work as disc jockeys at a social function the group was sponsoring on the night of April 24, 1987. The group contracted with the Best Western Pocono Inn in Stroudsburg, Monroe County to use its ballroom for this event. Appellant and her associates, as they had been hired to do, showed up at the Inn on the designated night, set up and began work. At about 1:30 AM, appellant left the ballroom to use the ladies' restroom. While there, she was attacked and sexually assaulted by John Kenneth Spahr. ¹ Appellant then initiated the present suit against, inter alia, Best Western and Penn Stroud alleging that Best Western either exercised or retained the right to control all of Penn Stroud's operations, that they were negligent in failing to ensure that there was adequate security and that as a direct and proximate result, appellant was attacked and suffered physical and mental injuries.

Best Western is a non-profit corporation organized under the laws of Arizona and registered to do business in the Commonwealth of Pennsylvania. Penn Stroud, by virtue of a marketing agreement with Best Western, is a member of the Best Western organization which allows it to use the "Best Western" name and participate in the Best Western reservation network. Following the commencement of this suit, Best Western moved for summary judgment on the grounds that, as a matter of law, an agency relationship did not exist between itself and Penn Stroud. The trial court agreed with Best Western and entered summary judgment in their favor. This appeal followed.

Before we can address the agency issues, we must first dispose of a preliminary issue raised by appellant. 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 in opposition to Best Western's motion. We have held, that when ruling on a motion, it is within the discretion of the trial court to decide whether briefs and/or oral argument are required or whether the matter can best be disposed of from a review of the record alone. Gerace v. Holmes Protection of Phila., 357 Pa.Super. 467, 475, 516 A.2d 354, 359 (1986). Here, there was an extensive record before the trial court and it was aware of the legal positions of the parties as they were afforded the opportunity to argue this motion at a pretrial conference. Having reviewed the record and considered the arguments made by the parties to this court, we fail to see how appellant was prejudiced in this case and find no abuse of discretion on the part of the trial court. ²

The two remaining issues raised by appellant require us to determine whether the trial court erred in ruling that, as a matter of law, neither an actual nor apparent agency relationship existed between Best Western and Penn Stroud so as to implicate Best Western of vicarious responsibility. When reviewing the grant of summary judgment, we review application of the following standard:

A motion for summary judgment may be granted only if 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 judgment as a matter of law. In passing on a motion for summary judgment, the court must examine the record in the light most favorable to the non-moving party. [However], it is clear that to survive a motion for summary judgment, the non-moving party may not rely merely upon the allegations of the contested pleadings, but must set forth specific facts by way of affidavit, or in some other way as provided by the rule, demonstrating that a genuine issue exists.

Kerns v. Methodist Hospital, 393 Pa.Super. 533, 536, 574 A.2d 1068, 1069 (1990) (citations omitted). "[T]he grant of summary judgment will only be reversed for an error of law or a clear abuse of discretion." Carns v. Yingling, 406 Pa.Super. 279, 282, 594 A.2d 337, 339 (1991) (citation omitted).

We now focus on appellant's second issue; whether the trial court erred in ruling that, as a matter of law, an actual agency relationship did not exist between Best Western and Penn Stroud. Appellant argues that an agency relationship existed because Best Western had the right to substantially control Penn Stroud pursuant to their marketing agreement. She maintains that Best Western concerns itself with the total operation of Penn Stroud through the workshops and programs it conducts, the rules and regulations it imposes and its ability to sanction for noncompliance with its quality standards.

We begin our analysis by recognizing that, "not every relationship of principal and agent creates vicarious responsibility in the principal for acts of the agent." Gajkowski v. Intern. Broth. of Teamsters, Etc., 350 Pa.Super. 285, 301, 504 A.2d 840, 848 (1986), aff'd on rehearing, 519 Pa. 320, 548 A.2d 533 (1988). "A principal and agent can be in the relationship of a master and servant, or simply in the status of two independent contractors." Juarbe v. City of Philadelphia, 288 Pa.Super. 330, 335, 431 A.2d 1073, 1076 (1981) (citations omitted). "If a particular agent is not a servant, the principal is not considered a master who may be held vicariously liable for the negligent acts of the agent." Id. Thus, in order for Best Western to be held vicariously liable for the alleged negligence of Penn Stroud, the relationship between them must have been that of master and servant. ³

In determining whether the Best Western-Penn Stroud relationship was one of master and servant or simply that of two independent contractors, we are given guidance by our Supreme Court, which has declared:

the basic inquiry is whether such person is subject to the alleged employer's control or right to control with respect to his physical conduct in the performance of the services for which he was engaged.... The hallmark of an employee-employer relationship is that the employer not only controls the result of the work but has the right to direct the manner in which the work shall be accomplished; the hallmark of an independent contractee-contractor relationship is that the person engaged in the work has the exclusive control of the manner of performing it, being responsible only for the result.

Green v. Independent Oil Co., 414 Pa. 477, 483-4, 201 A.2d 207, 210 (1964) (citations omitted).

Appellant is correct insofar as she contends that the hallmark of a master-servant relationship is that the master possesses the right to control the manner in which the servant's work shall be accomplished. However, she urges us to apply what we believe is an overly-broad conception of what constitutes "control." Best Western does not "direct the manner in which the work is to be accomplished" simply by having a marketing agreement with Penn Stroud. "It is the element of continuous subjection to the will of the principal which distinguishes the ... agency agreement from other agreements." Restatement (Second) of Agency, § 1(1), comment b (1957) (emphasis added). While we are unaware of any Pennsylvania case which defines, as other jurisdictions have, the inquiry for actual agency in this context, we believe that the focus of our inquiry should be whether the alleged master has day-to-day control over the manner of the alleged servant's performance. Little v. Howard Johnson Co., 183 Mich.App. 675, 679, 455 N.W.2d 390, 393 (1990) (franchisor must have right to control day to day operations of a franchise in order to establish an agency relationship); Schweich v. Ziegler, Inc., 463 N.W.2d 722, 730 (Minn.1990); Carlton v. Alabama Dairy Queen, Inc., 529 So.2d 921, 924-5 (Ala.1988); Hunter Min. Laboratories, Inc. v. Management Assistance, Inc., 104 Nev. 568, 570, 763 P.2d 350, 352 (1988); Hayman v. Ramada Inn, Inc., 86 N.C.App. 274, 277, 357 S.E.2d 394, 397 (1987); McMullan v. Georgia Girl Fashions, Inc., 180 Ga.App. 228, 348 S.E.2d 748, 750 (1986); Herman v. Bonanza, 223 Neb. 474, 479-81, 390 N.W.2d 536, 541-2 (1986); Schear v. Motel Management Corp. of America, 61 Md.App. 670, 487 A.2d 1240, 1248-9 (1985); Ortega v. General Motors Corp., 392 So.2d 40, 42-3 (Fla.Dist.Ct.App.1981); Coty v. U.S. Slicing Machine Co., Inc., 58 Ill.App.3d 237, 241, 15 Ill.Dec. 687, 691, 373 N.E.2d 1371, 1375 (1978); Murphy v. Holiday Inn, Inc., 216 Va. 490, 495, 219 S.E.2d 874, 878 (1975).

We find additional support for the proposition that the inquiry for actual agency...