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August 28, 1995


The opinion of the court was delivered by: J. CURTIS JOYNER


 AUGUST 28, 1995

 Defendant Bethlehem Musikfest Association has moved this Court for summary judgment on the claims against it. This Motion is opposed both by Plaintiff and the other Defendants.

 Musikfest is a Pennsylvania non-profit corporation that sponsors a large music festival every year in Bethlehem, Pennsylvania. Musikfest attracts as many as 900,000 people over the course of the nine-day event. In 1993, one of the people present at Musikfest was Plaintiff, Dr. John Mahon. He arrived at Musikfest one evening to pick up his teenaged son who had been attending the festival. It is uncontested that Dr. Mahon was told by several Defendants, City of Bethlehem police officers, that he could not remain where he was because that area was being kept free of pedestrians. Dr. Mahon told the police officers that they were acting like the Gestapo and Nazis. One Defendant, Officer Gross, arrested Dr. Mahon for disorderly conduct, and Dr. Mahon alleges that during the course of the arrest and his transport to the Bethlehem police station, one or more officers used excessive force against him and other police officers did nothing to protect him. All parties agree that these acts, if proven, constitute intentional conduct and not negligence.

 Dr. Mahon's lawsuit brings claims against the City of Bethlehem and several individual police officers. The Complaint also sues Musikfest on the ground that the police officers were either employees or independent contractors of Musikfest, and that Musikfest is therefore liable for the officers' actions. In addition, the City asserted a Cross-claim against Musikfest for indemnification based on several indemnity clauses in the leases between the City and Musikfest.

 Summary Judgment Standard

 In considering a motion for summary judgment, a court must consider whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The court must determine whether the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 In making this determination, all of the facts must be viewed in the light most favorable to the non-moving party and all reasonable inferences must be drawn in favor of the non-moving party. Id. at 256. Once the moving party has met the initial burden of demonstrating the absence of a genuine issue of material fact, the non-moving party must establish the existence of each element of its case. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990), cert. denied, 499 U.S. 921, 113 L. Ed. 2d 246, 111 S. Ct. 1313 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)).


 1. Dr. Mahon's Claims Against Musikfest

 According to the parties, Musikfest's Motion hinges on one point; whether Musikfest is vicariously liable for the Police Officer Defendants' actions due to an agency or independent contractor relationship. Pl.'s Brief in Opp. at 2. In Pennsylvania, an agency relationship is distinguished from an independent contractor relationship based on the amount of control one party has over the other. Jones v. Century Oil, U.S.A., 957 F.2d 84, 86 (3d Cir. 1992) (quoting Feller v. New Amsterdam Cas. Co., 363 Pa. 483, 486, 70 A.2d 299, 300 (1950)). In an agency relationship, the master "not only controls the results of the work but has the right to direct the way in which it shall be done." Id. In contrast, an independent contractor "has the exclusive control over the manner of performing [the work], being responsible only for the result." Id. ; Moon Area School Dist. v. Garzony, 522 Pa. 178, 190, 560 A.2d 1361, 1367 (1989). The burden of showing an agency relationship is on the party asserting it. Volunteer Fire Co. v. Hilltop Oil Co., 412 Pa. Super. 140, 146, 602 A.2d 1348, 1351 (1992). Generally, it is a jury question whether a person is an agent or an independent contractor. Woolfolk v. Duncan, 872 F. Supp. 1381, 1392 (E.D. Pa. 1995). This question can be determined by summary judgment, however, if the facts are undisputed. Id.

 Dr. Mahon asserts that there are genuine issues of material fact concerning Musikfest's control over the Police Officer Defendants. He proffers evidence demonstrating that Musikfest negotiated with the City of Bethlehem over what streets Musikfest would use, and in what amount and where security would be necessary. There is also evidence showing that Musikfest paid the City for the Police Officer Defendants' services. Each of the Police Officers Defendants, at their depositions, testified that they knew that Musikfest paid the City for their police services of crowd control and safety at Musikfest. According to Dr. Mahon, though, the most telling piece of evidence demonstrating control is that Musikfest had certain rules of its own, such as no bicycles or pets on Musikfest grounds, and that the Police Officer Defendants were supposed to enforce Musikfest's Rules along with local and state ordinances and laws.

 Musikfest does not contest Dr. Mahon's evidence. Rather, Musikfest asserts that this evidence does not demonstrate control and proffers additional evidence to support its assertion. For example, each Police Officer Defendant testified at his deposition that his Musikfest work assignment was made via a roster system by the Fraternal Order of Police and the Police Department. In addition, the Police Officer Defendants testified that Musikfest did not have discretion over enforcement decisions, and that the Police Officer Defendants did not have to report or clear arrests with Musikfest. Further, several Police Officer Defendants testified that they were to act as police officers, and that they had no additional duties. Indeed, the leases entered into by Musikfest had identical ...

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