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KEMETHER v. PENNSYLVANIA INTERSCHOLASTIC ATH. ASS'

August 6, 1998

NOREEN P. KEMETHER
v.
PENNSYLVANIA INTERSCHOLASTIC ATHLETIC ASSOCIATION, INC.



The opinion of the court was delivered by: YOHN

MEMORANDUM AND ORDER

 YOHN, J.

 August 6, 1998

 Plaintiff Noreen Kemether brings this action under Title VII and Title IX of the Civil Rights Act of 1964, based on allegations that she suffered gender-based discrimination as a basketball official (i.e., referee), in her assignments to officiate high school interscholastic games. Defendant Pennsylvania Interscholastic Athletic Association, Inc. has filed a motion for summary judgment, and plaintiff has filed a motion for partial summary judgment. For the reasons set forth below, defendant's motion will be granted in part and denied in part, and plaintiff's motion will be denied.

 STANDARD OF REVIEW

 Under Fed.R.Civ.P. 56(c), summary judgment is to be granted upon motion of any party "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." A factual dispute does not preclude summary judgment unless it is material; that is, unless it might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 Where the parties present cross-motions for summary judgment, the court must consider each party's motion separately. Bencivenga v. Western Pa. Teamsters & Employers Pension Fund, 763 F.2d 574, 576 n.2 (3d Cir. 1985) (citing Rains v. Cascade Indus., Inc., 402 F.2d 241 (3d Cir. 1968)). On each issue, "the evidence of the nonmovant is to be believed," and the court must draw all reasonable inferences in the nonmovant's favor. Anderson, 477 U.S. at 255. The nonmovant nonetheless "must present affirmative evidence to defeat a properly supported motion for summary judgment," Anderson, 477 U.S. at 257, and must do more than rest upon mere allegations, general denials, or vague statements. Trap Rock Indus., Inc. v. Local 825, 982 F.2d 884 (3d Cir. 1992). Where the nonmovant bears the burden of persuasion at trial, the moving party may meet its burden with a showing "that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. However, "the mere existence of a scintilla of evidence in support of the [nonmovant]'s position will be insufficient." Anderson, 477 U.S. at 252. Rather, "where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

 BACKGROUND

 The following account is based upon substantially undisputed facts, except where noted. *fn1"

 Defendant Pennsylvania Interscholastic Athletic Association, Inc. ("PIAA") is a statewide athletic association, organized as a non-profit membership corporation. (Def.'s App. Ex. D.) PIAA's membership comprises approximately 1,300 Pennsylvania high schools and junior high schools, both public and private. (Id.) PIAA's executive and administrative body is its Board of Control, which has "general control over all interscholastic athletic relations and athletic contests in which a member school of this association participates." (PIAA Const. art. VI, § 1, art. VIII, § 1(A).)

 PIAA divides Pennsylvania into eleven districts, both for administrative purposes and for interscholastic competition in which district qualifiers advance to statewide championships. (Id. art. V, § 1; Rules and Regulations at 22-27.) Each district is administered by a district committee, elected by the member schools in that district. (PIAA Const. art. VIII.) Each district has at least one representative on PIAA's Board of Control. (Id. art. VI, § 2.) PIAA District I includes Bucks, Chester, Delaware, Montgomery, and Philadelphia counties. (Id. art. V, § 1.)

 PIAA undertakes four major areas of responsibility: (1) establishing and enforcing eligibility rules for high school athletes, (2) organizing and operating playoffs and championships, (3) adopting playing rules for each sport, and (4) registering and training officials. (Cashman Dep. Ex. 6 at 4-5.) Pursuant to the last of these responsibilities, PIAA tests and registers officials in various sports, and charters local chapters of registered officials.

 Plaintiff Noreen Kemether is a PIAA-registered basketball official. Kemether played basketball competitively in high school and college, where she was a member of a national championship women's team. She has continued to play in adult recreational leagues since college, and has coached basketball in camps, elementary schools, and high schools. Since the 1984-85 season, she has officiated basketball games at local schools and colleges that were not members of PIAA. Kemether passed PIAA's required examination, and in November 1990, she became registered with PIAA as a basketball official. She was then permitted to work in basketball games played by PIAA member schools.

 Every PIAA-registered official is required to join a local chapter. One such chapter is the Delaware County Chapter of PIAA Basketball Officials ("Delco Chapter"), which Keme then joined upon registering with PIAA. Plaintiff alleges that the Delco Chapter "acts as PIAA's agent at the local level." (Amended Compl. P 19.) Defendant contests that allegation, contending that the Delco Chapter is merely a "local group[] of individuals who are not members of PIAA." (PIAA Br. Mot. Summ. J. at 5.)

 Officials are paid on a per-game basis by the member schools, pursuant to a standard "Contract for Officials Under P.I.A.A. Rules" approved by PIAA (see Fromson Decl. Ex. 7- 9), which PIAA requires its member schools and its registered officials to use for each contest. In its constitution, PIAA asserts the power "to determine the method and the qualifications for the registration of officials; to determine their powers and duties; and to make and apply necessary penalties and forfeits for the control of such officials." (PIAA Const. art. VII, § 1(F).)

 As a Delco Chapter official, plaintiff has officiated games between PIAA schools in two local leagues, one of which is the Del Val Athletic Association ("Del Val"). Del Val is an athletic league of eight high schools that regularly compete against each other. Del Val is organized as an unincorporated association, and includes seven public schools and one private school. The Del Val schools are members of PIAA, and are located in PIAA District I. (Fromson Decl. Ex. 5 at 1; Ruoff Dep. at 25-27.) During the regular basketball season, Del Val and its member schools arranged for PIAA-registered basketball officials from the Delco Chapter to officiate their interscholastic games.

 An "assignor" is a person authorized and paid to select officials to officiate particular games. Harry Sheldrake was the assignor who assigned Delco Chapter basketball officials to games in the Del Val league. Sheldrake was a PIAA-registered official and a member of the Delco Chapter. In the 1996-97 season, James Faulkner succeeded Sheldrake as assignor and has continued through the current season. Del Val paid the assignors a fee for their services. (Fromson Decl. Ex. 11.) Plaintiff alleges that the Delco Chapter selected the assignors for Del Val, and that the assignors were agents of PIAA through the Delco Chapter. (Amended Compl. P 27.) Defendant alleges that Delco Chapter merely recommended the assignors to Del Val, and gave them advice, but that the assignors were not controlled by the Delco Chapter. (Def.'s Mem. Opp. Summ. J. at 20.)

 Despite plaintiff's request for boys' games and varsity games, Sheldrake assigned Kemether only to girls' junior varsity games during her first three seasons as a member of the Delco Chapter. (Sheldrake Dep. at 100-01, 237-44; Fromson Decl. Ex. 1.) Sheldrake and Faulkner have never assigned a female official to boys' varsity or junior varsity games, but only to ninth grade or younger boys' games. (Sheldrake Dep. at 143, 155, 235; Faulkner Dep. at 93, 119.) In the 1993-94 and 1994-95 seasons, after Kemether's complaint to the EEOC, Sheldrake assigned Kemether to at least one girls' varsity game, and three ninth grade boys' games. (Sheldrake Dep. at 145, 245-47; Fromson Decl. Ex. 1.) In the 1995-96 season and thereafter, Sheldrake and Faulkner assigned no games to Kemether. Plaintiff alleges that the assignors' failure to assign her to any games was in retaliation for filing and pursuing her EEOC complaint. (Amended Compl. PP 53, 56, 60, 62, 64.)

 Officials were assigned to post-season playoff and championship games by a different method. (See, e.g., Fromson Decl. Ex. 10, 15-17, 44.) The assignor's role in directly selecting officials ends with the regular season, and does not extend to post-season district playoffs, state playoffs, and championships. PIAA does not dispute that it has general control and responsibility over championship events, including selecting officials for all post-season games. (See Rules and Regulations at 5.) On the basis of recommendations from coaches and assignors, PIAA District I selects officials for district playoffs. (Ruoff Dep. at 77, 81.) Two separate lists are maintained for officials wishing to be considered for boys' games or girls' games. (Id. at 63.) To be eligible, each official must have officiated ten varsity games in both the current and the previous year. (Id. at 63, 76.) For state playoffs, the district recommends officials using criteria that include a requirement of five years officiating in district playoffs, and working ten varsity games in the current season. (Lombardi Dep. at 151-59, 165; Cashman Dep. at 145.) To be eligible for boys' playoffs, the ten games must be boys' varsity games, and for girls' playoffs they had to be girls' varsity games. (Cashman Dep. at 145.)

 Both male and female officials have officiated girls' playoff and championship games. However, no female official has ever been recommended to officiate a boys' playoff game in PIAA District I. (Lombardi Dep. at 99, 108.) No female official has ever officiated a boys' championship game at the state level. (Cashman Dep. at 145; Lombardi Dep. at 184.)

 EEOC issued plaintiff a right-to-sue letter on August 20, 1996. In plaintiff's amended complaint, she asserts claims against PIAA for violations of Title VII and Title IX, the Equal Protection Clause of the Fourteenth Amendment and 42 U.S.C. § 1983, and the First Amendment, as well as state law claims under Pa. Const. art. 1, § 7 (freedom of speech) and Pa. Const. art. 1, § 28 (Equal Rights Amendment). Defendant has filed a motion for summary judgment, and plaintiff has filed a motion for partial summary judgment.

 ISSUES OF AGENCY

 For many of the claims in this case, defendant's liability will turn upon whether Harry Sheldrake and his successor James Faulkner, in performing their work as assignors, were acting as agents or servants of PIAA.

 Much of the assignors' relevant conduct arose out of their relationship with the Delco Chapter, and not from any relationship they may have had with PIAA's Board of Control or a district committee. Therefore, the jury must necessarily decide whether the Delco Chapter stands in a relationship with PIAA such that defendant PIAA may be held liable for Delco Chapter's conduct. The jury must also decide whether the assignors were agents or servants of the Delco Chapter, which could establish that they were subagents or subservants of PIAA.

 If the assignors were not directly or indirectly acting as agents or servants of PIAA, then PIAA is not liable for any discriminatory practices the assignors might have committed against plaintiff.

 I. RELEVANT PRINCIPLES OF COMMON-LAW AGENCY

 In determining an employer's vicarious liability under Title VII, the United States Supreme Court recently emphasized that "a uniform and predictable standard must be established as a matter of federal law. We rely 'on the general common law of agency, rather than on the law of any particular State, to give meaning to these terms.'" Burlington Industries, Inc. v. Ellerth, 141 L. Ed. 2d 633, 118 S. Ct. 2257, 2265 (1998) (quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730, 740, 109 S. Ct. 2166, 2173, 104 L. Ed. 2d 811 (1989)). The Court in Burlington points to the Restatement (Second) of Agency (1957) (hereinafter "Restatement") as "a useful beginning point for a discussion of general agency principles," although "common-law principles may not be transferable in all their particulars to Title VII." 118 S. Ct. at 2266 (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 72, 106 S. Ct. 2399, 2408, 91 L. Ed. 2d 49 (1986)).

 A. Definition of Relationships Under Agency Law

 Where one party agrees to act on another's behalf, there are three relevant relationships that may be possible between them, based primarily upon the second party's control or right to exercise control over the actor. The actor may be: (1) a servant, (2) an agent independent contractor, or (3) a non-agent independent contractor. AT&T v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1437-39 (3d Cir. 1994). The distinction between a servant, an agent, and a non-agent is critical due to the liability implications for the hiring party.

 The relationship between principal and agent is defined as "the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act." General Building Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375, 392, 102 S. Ct. 3141, 3151, 73 L. Ed. 2d 835 (1982) (quoting Restatement § 1(1)). *fn2"

 The master-servant relationship is a specialized kind of principal-agent relationship. While a servant necessarily must be an agent, "a finding of agency is not tantamount to a finding of a master-servant relationship." Williamson v. Consolidated Rail Corp., 926 F.2d 1344, 1349 (3d Cir. 1991) (quoting Kelley v. Southern Pacific Co., 419 U.S. 318, 325, 95 S. Ct. 472, 477, 42 L. Ed. 2d 498 (1974) (citing Restatement § 2)). Rather, "[a] master-servant relationship is a form of agency in which the master employs the servant as 'an agent to perform service in his affairs' and 'controls or has the right to control the physical conduct of the other in the performance of the service.'" General Building, 458 U.S. at 392, 102 S. Ct. at 3151 (quoting Restatement § 2). The word "servant," used as a term of art in agency law, is generally the same as "employee in modern day parlance." McCarthy v. Recordex Service, Inc., 80 F.3d 842, 853 (3d Cir. 1996); see Restatement § 2 cmt. d. *fn3"

 The difference between a mere agent and a servant depends "not so much on 'the fact of actual interference or exercise of control by the employer . . . but the existence of the right or authority to interfere or control, which renders one a servant rather than an independent contractor.'" Jones v. Century Oil U.S.A., Inc., 957 F.2d 84, 86-87 (3d Cir. 1992) (citations omitted). The Third Circuit has pointed out that "the determining factor is not the way in which plaintiff[] or defendant regards this relationship but 'what it really was under the facts and applicable rules of law.'" Id. "[A] master not only controls the results of the work but also may direct the manner in which such work shall be done, and a servant, in rendering the agreed services, remains entirely under the control and direction of the master." Id. (quoting Smalich v. Westfall, 440 Pa. 409, 269 A.2d 476, 481 (Pa. 1970)).

 An independent contractor may be an agent or a non-agent, but cannot be a servant, since "servant" and "independent contractor" are antithetical terms. McCarthy, 80 F.3d at 853 (citing Restatement § 2 cmt. b). Where prerequisites of agency, such as control, are not satisfied, a non-agent independent contractor relationship may exist:

 
A person who contracts to accomplish something for another or to deliver something to another, but who is not acting as a fiduciary for the other is a non-agent contractor. He may be anyone who has made a contract and who is not an agent. The term is used colloquially to describe builders and others who have contracted to accomplish physical results not under the supervision of the one who has employed them to produce the results.

 Winback, 42 F.3d at 1439 (quoting Restatement § 14N cmt. b).

 B. Liability of Master or Principal to Third Parties

 In adapting the common law of agency to Title VII concepts, agency law relating to intentional torts, rather than negligent torts, is applied to determine an employer's liability. See Burlington, 118 S. Ct. at 2266 (applying Restatement § 219) ("Sexual harassment presupposes intentional conduct.") Like a sexual harassment claim, an employment discrimination claim for disparate treatment requires proof of intentional conduct. International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15, 97 S. Ct. 1843, 1854 n.15, 52 L. Ed. 2d 396 (1977).

 The distinction between an agent and a servant is critical due to the liability implications for the principal. It is a central principle of agency law that "[a] master is subject to liability for the torts of his servants committed while acting in the scope of their employment." Burlington, 118 S. Ct. at 2266 (quoting Restatement § 219(1)); Jones, 957 F.2d at 86-87. "It is because a master has the right to exercise control over the physical activities of the servant within the time of service, that he is vicariously liable [even] for the servant's negligent acts committed within the scope of his employment." Id. (quoting Smalich v. Westfall, 440 Pa. 409, 269 A.2d 476, 481 (Pa. 1970)) (internal quotations omitted). As a matter of policy, "it would be unjust to permit an employer to gain from the intelligent cooperation of others without being responsible for the mistakes, the errors of judgment and the frailties of those working under his direction and for his benefit." Winback, 42 F.3d at 1434 (citing Petro-Tech, Inc. v. Western Co. of North America, 824 F.2d 1349, 1358 (3d Cir. 1987) (quoting Restatement § 219 cmt. a)).

 Intentional discrimination may be within the scope of a servant's employment. The Restatement provides:

 
Conduct of a servant is within the scope of employment if, but only if: (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; (c) it is actuated, at least in part, by a purpose to serve the master . . . .

 Restatement § 228(1); see Aliota v. Graham, 984 F.2d 1350, 1358 (3d Cir. 1993) (applying § 228 and predicting Pennsylvania would adopt same). "There are instances, of course, where a supervisor engages in unlawful discrimination with the purpose, mistaken or otherwise, to serve the employer," such as when the employer has a policy of discouraging women from seeking advancement, and the discrimination furthers that policy. Burlington, 118 S. Ct. at 2266 (citing Sims v. Montgomery County Comm'n, 766 F. Supp. 1052, 1075 (M.D. Ala. 1990)).

 Furthermore, "in limited circumstances, agency principles impose liability on employers even where employees commit torts outside the scope of employment." Burlington, 118 S. Ct. at 2267 (citing Restatement § 219(2)). This may occur, inter alia, where "the master was negligent or reckless," Restatement § 219(2)(b), or where the servant "was aided in accomplishing the tort by the existence of the agency relation." Id. § 219(2)(d); see generally Burlington, 118 S. Ct. at 2268.

 A principal generally will not be held liable for the torts of his agent who is an independent contractor, not a servant. Winback, 42 F.3d at 1437. However, there are many exceptions to that general rule. The principal may be liable if the agent's tortious conduct is authorized but unintended, "if the agent reasonably misunderstands the principal's meaning which is ambiguous in light of the circumstances." Restatement § 215. Even if unauthorized, a principal "is often subject to liability for the unauthorized conduct of an agent with respect to matters which, under the agreement creating the relation, he has the right to direct. . . . Liability is normally based upon the fact that the tort is brought about in the course of an undertaking for the benefit, and subject to the right, of the principal to control his servant or other agent." Restatement § 216 cmt. a.

 Where there is no agency at all, liability must be based on other theories, such as apparent authority, under which the court examines the principal's actions and the reasonable beliefs of third parties. Id. at 1439-40.

 II. THE DELCO CHAPTER'S RELATIONSHIP TO PIAA

 Plaintiff does not clearly describe the relationship she seeks to establish between PIAA and Delco Chapter, sometimes referring to "PIAA's Delco Chapter" (Pl.'s Mem. Summ. J. at 10, 15; see id. at 7, 28), or to the chapter as PIAA's "subunit" (id. at 31, 34). Plaintiff's own evidence, however, shows that the Delco Chapter is organized as a distinct association with its own constitution, by-laws, and officers. *fn4" (Athletic Officials' Manual, §§ I D, II.) "Subunit" is therefore not the appropriate term to describe its relationship to PIAA. By characterizing Delco Chapter as PIAA's "subunit," plaintiff may be attempting to demonstrate that Delco Chapter and PIAA are so closely integrated that they should be considered a single employer. *fn5"

 As an alternative theory, plaintiff may show that PIAA is liable for Delco Chapter's conduct because of a master-servant or principal-agent relationship between the two.

 Defendant PIAA, arguing against such a relationship, characterizes the chapters as "local groups of individuals who are not members of PIAA." (PIAA Br. Mot. Summ. J. at 5). Chapters are formed and managed by PIAA-registered officials, and not by PIAA or its member schools. (Athletic Officials' Manual § I D.) Defendant asserts as a fact that PIAA has no role in the selection of officials during the regular season. (PIAA Mem. Opp. Summ. J. at 19.) Defendant argues that it could not have delegated the task of selecting officials to the Delco Chapter as a principal delegating a task to an agent, because defendant had no such task to delegate. (Id.)

 Plaintiff provides evidence supporting an inference that each chapter is comprehensively regulated and controlled by PIAA from its inception. In order to be chartered by PIAA, each chapter must adopt a PIAA-approved constitution without modification. (Id. §§ I D 5, II.) This document, titled "Constitution and By-Laws of the Pennsylvania Interscholastic Athletic Association, Inc. Chapters of Registered Athletic Officials," was revised by the PIAA Board of Control in 1986. (Athletic Officials' Manual § II, hereinafter "PIAA Chapter Const.") This required constitution provides that whenever PIAA adopts new rules, they become binding upon all chapters in the following season. (PIAA Chapter Const. art. VI.) PIAA may revoke a charter for failure to follow PIAA rules. (PIAA Const. art. III.) A regulation imposed by PIAA requires each registered official to join a PIAA-chartered local chapter of registered officials, such as the Delco Chapter, and to attend meetings of that chapter. (Athletic Officials' Manual § I C 1.) Each member and officer of a chapter must be a PIAA-registered official. (PIAA Chapter Const. arts. IV, VII.) Members of each chapter are required to pay dues directly to PIAA. (PIAA Chapter Const. art. V, § 2.) A chapter must formally report its membership and meeting dates to PIAA annually. (PIAA Chapter Const. art. X.) Given these facts, plaintiff urges that PIAA has the authority to control the Delco Chapter, and in fact exercised that power to control assignments of officials through the Delco Chapter. (Fromson Decl. Opp. Summ. J. Ex. 1.)

 The party asserting the existence of an agency relationship bears the burden of showing it. Mahon v. City of Bethlehem, 898 F. Supp. 310, 312 (E.D. Pa. 1995) (citing Volunteer Fire Co. of New Buffalo v. Hilltop Oil Co., 412 Pa. Super. 140, 602 A.2d 1348, 1351 (Pa. Super. Ct. 1992)). Because the facts relating to PIAA's right to exercise control over the Delco Chapter are disputed, the question of agency will be for the jury to decide. Woolfolk v. Duncan, 872 F. Supp. 1381, 1392 (E.D. Pa. 1995). Both motions for summary judgment will be denied as to whether PIAA may be held liable for the Delco Chapter's conduct.

 III. THE ASSIGNORS' RELATIONSHIP TO PIAA AND THE DELCO CHAPTER

 It will be necessary to determine whether PIAA is liable for the acts of Sheldrake or Faulkner under the general common law of agency. Burlington, 118 S. Ct. at 2265. Unless the facts are undisputed, whether a person is a servant or an independent contractor for liability purposes is a jury question. See Woolfolk, 872 F. Supp. at 1392 (citing Feller v. New Amsterdam Cas. Co., 363 Pa. 483, 70 A.2d 299, 300-301 (Pa. 1950)). Plaintiff, as the party asserting the existence of an agency relationship, bears the burden of demonstrating that relationship. See Mahon, 898 F. Supp. at 312.

 Plaintiff has produced little evidence tending to show the existence of a direct principal-agent or master-servant relationship between the assignors and PIAA. *fn6" However, if the Delco Chapter is found to be a servant or agent of PIAA, the jury must also consider whether the assignors were servants or agents of the Delco Chapter, which would create a chain linking the assignors to defendant PIAA as subservants or subagents. Such a situation is contemplated in the general common law of agency. The Restatement defines a subservant as

 
a person appointed by a servant empowered to do so, to perform functions undertaken by the servant for the master and subject to the control as to his physical conduct both by the master and by the servant, but for whose conduct the servant agrees with the principal to be primarily responsible.

 Restatement § 5(2). The subservant relation exists where "the servant is to direct the conduct of the subservant who is to be subject also to the superior power of control which the master may exercise." Id. cmt. e. *fn7" In other words, the principal may be vicariously liable under Restatement § 219 for the conduct of an employee, servant, or subservant acting within the scope of his employment, but is not generally liable for the conduct of an independent contractor or non-servant who is merely an agent or subagent acting within the scope of his agency. See Restatement §§ 5, 219 & cmt. b.

 The subservant relationship may be established where the putative employee is "a subservant of a company that was in turn a servant of the [defendant]." Kelley v. Southern Pacific Co., 419 U.S. 318, 324, 95 S. Ct. 472, 476, 42 L. Ed. 2d 498 (1974) (applying common-law agency principles under FELA) (citing Restatement § 5(2)). Section 220 of the Restatement defines who is a servant, and although it is "directed primarily at determining whether a particular bilateral arrangement is properly characterized as a master-servant or independent contractor relationship, . . . [it] can also be instructive in analyzing the three-party relationship between two employers and a worker." Id. (citing Restatement § 220(2)).

 For liability purposes, a subagent is treated as an agent, and a subservant is treated as a servant. To establish the liability of defendant PIAA under the subservant theory, plaintiff must show both that Delco Chapter was the servant of PIAA, and that the individual assignors were employees or servants of Delco Chapter. If Delco Chapter is an agent but not a servant of PIAA, or if an assignor is an agent but not a servant of Delco Chapter, the assignor is a subagent of PIAA. *fn8"

 The distinction between a servant and an agent independent contractor depends primarily upon the right of control capable of being exercised by the principal; servants "generally are employees of the principal, and are subject to physical control by the principal." Winback, 42 F.3d at 1434-35. "Persons who render service but retain control over the manner of doing it are not servants." Id. at 1435 (quotation omitted). An agent who is subject only to "general ...


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