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January 20, 1988

Walter Spencer and Patricia Spencer, husband and wife, t/a Manitou Mountain Resort, Plaintiffs
Resorts and Spas, Ltd., t/d/b/a Weight Watchers Resorts and Spas, Ltd., a Corporation, and Weight Watchers International, Inc., a Corporation, Defendants

The opinion of the court was delivered by: NEALON

 William J. Nealon, Chief Judge, Middle District of Pennsylvania.

 Presently before the court is the motion for summary judgment of defendant Weight Watchers International, Inc. (Weight Watchers). For the reasons set forth below, the motion will be denied.


 Plaintiffs instituted this action on November 14, 1986. According to their complaint, they owned and operated a resort facility known as the Manitou Mountain Resort in Stroudsburg, Pennsylvania. By written agreement dated March 28, 1986 and executed by plaintiff Patricia Spencer and the executive vice-president of defendant Resorts and Spas, Ltd. (Resorts and Spas), plaintiffs leased their resort facility to Resorts and Spas for two (2) eleven (11) consecutive week periods commencing on June 15, 1986 and June 15, 1987, respectively.

 According to plaintiffs, defendants terminated the March 28, 1986 lease agreement on September 17, 1986. Plaintiffs claim that they complied with all terms of the contract and that defendants' termination of the lease agreement was improper and constituted a breach of contract. Defendants filed a counterclaim in which they aver that plaintiffs misrepresented the condition of the resort and failed to provide essential services and facilities required under the contract.

 Weight Watchers has moved for summary judgment on plaintiffs' claims against it. Weight Watchers asserts that its license agreement with Resorts and Spas does not create an agency relationship between Weight Watchers and Resorts and Spas and that Resorts and Spas had no authority to create or assume any obligation on behalf of Weight Watchers or to act as Weight Watchers' legally empowered representative.

 The parties have briefed the relevant issues, and Weight Watchers' motion for summary judgment is now ripe for disposition.


 When faced with a summary judgment motion, a district court must determine whether "the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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." Fed.R.Civ.P. 56(c). An issue is "genuine" only if the evidence is such that a reasonable jury could find for the party opposing the motion. Equimark Commercial Fin. Co. v. C.I.T. Fin. Servs. Corp., 812 F.2d 141, 144 (3d Cir. 1987) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986)). The court must view all facts in the light most favorable to the party opposing the motion. Betz Laboratories, Inc. v. Hines, 647 F.2d 402, 404 (3d Cir. 1981).

 The law of Pennsylvania applies to this diversity case. Erie R.R. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938). "Under Pennsylvania law, when an injury is done by an 'independent contractor,' the person employing him is generally not responsible to the person injured." Drexel v. Union Prescription Centers, Inc., 582 F.2d 781, 785 (3d Cir. 1978) (citing Hader v. Coplay Cement Mfg. Co., 410 Pa. 139, 150-51, 189 A.2d 271, 277 (1963)). "However, when the relationship between the parties is that of 'master-servant' or 'employer-employee' as distinguished from 'independent contractor-contractee,' the master or employer is vicariously liable for the servant's or employee's negligent acts committed within the scope of his employment." Drexel, 582 F.2d at 785 (citing Smalich v. Westfall, 440 Pa. 409, 415, 269 A.2d 476, 481 (1970)). In the Drexel case, the Third Circuit identified the basic inquiry which Pennsylvania courts have utilized to determine whether a particular individual or entity is an employee-servant or an independent contractor:

'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.'

 Drexel, 582 F.2d at 785 (quoting Green v. Independent Oil Co., 414 Pa. 477, 483-84, 201 A.2d 207, 210 (1964)). "Actual control over the manner of work is not essential; rather, it is the right to control which is determinative" (emphasis supplied). Drexel, 582 F.2d at 785 (citing Coleman v. Board of Education, 477 Pa. 414, 421-22, 383 A.2d 1275, 1279 (1978)).

 Where the alleged master and servant occupy the status of franchisor and franchisee, respectively, "some degree of control by the franchisor over the franchisee would appear to be inherent in the franchise relationship. . . ." Drexel, 582 F.2d at 786. Nonetheless, "the mere existence of a franchise relationship does not necessarily trigger a master-servant relationship, nor does it automatically insulate the parties from such a relationship." Id. Accordingly, "whether the control retained by the franchisor is also sufficient to establish a master-servant relationship depends in each case upon the nature and extent of such control as defined in the franchise agreement or by the actual practice of the parties." Id. Moreover, "the fact that the franchise agreement expressly denies the existence of an agency relationship is not in itself determinative of the matter." Id. See also Drummond v. Hilton Hotel Corp., 501 F. Supp. 29, 31 (E.D. Pa. 1980).

 In the Drexel case, the defendant occupied the status of franchisor by virtue of a written franchise agreement. The franchise bore the name of the defendant, but the defendant disclaimed any ownership or control over the franchisee. Consequently, the defendant moved for summary judgment, denying all liability for any negligence on the part of the franchisee. The district court granted summary judgment, and the Third Circuit reversed that decision. Despite a provision in the franchise agreement which stated that the liability of the defendant was strictly limited, the Third Circuit concluded that other clauses in the franchise agreement could be interpreted as reserving to the defendant the right to control facets of the franchisee's operations. In particular, the Third Circuit determined that the agreement was "so broadly drawn as to render uncertain the precise nature of [the franchisor's] rights vis-a-vis its franchisee" and that further evidence was necessary to ascertain what the parties meant by the terms of the agreement. Drexel, 582 F.2d at 788. The court was influenced by clauses in the franchise agreement which apparently gave the defendant the right to inspect the franchisee's premises and to control, inter alia, the franchisee's location, appearance, inventory, equipment, business hours and ...

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