appellant this morning the st of which is whether or not the district court erred as a matter of law when it failed to award mandatory attorneys fees and costs to a prevailing party of the pennsylvania wage payment and collection law which would require  determination of those fees but the nd issue is whether the dish will i think if that if that claim remains undisturbed that's absolutely right because that it's pretty clear that this could turn and are required but let me let me  the record found that there were five or six jobs that he had sold prior to terminations and determined that he had a right to any earned income from those sales which then resulted in the fifty one thousand dollars fo due to occur so for the two thousand and eleven projects correct right correct so now now maybe my question can be better focus right so if the breach occurred and we don't the judge made a pretrial determination that he was employed but if there is if there's a breach that ends the relationship presumably anything that arose as far as work d for have one commercial party the bridges with another commercial part here you have an employee that provided services whether it's through contract requiring marilyn w p c help or mess and is a statutory basis for an individual to capture the monies that they are owed for employing the day and gauge and for an employer i think that can be separately and distinctly put aside from whether or not there was a the jury found that there was a breach but he continued to provide services whatever that bridge was he continued to provide services for the employer and therefore the p c l provides a remedy ok and i have a question here a fundamental question thing he was commission based this year are i believe it was fifty percent some calculation of around fifty percent of the projects that he was up to sell fifty percent of the the price paid by the customer performance as an employee i mean usually employment contract is so much weaker how or something like that but this contract was strictly on the analysis of those factors in fact in one spot stating that mr land who was the owner had broad powers to control the manner in which mr kerr so accomplished his work as evidenced by the numerous to do list that showed mr wynn had the authority to manage the minutiae of mr courses employment the district court found in the balancing factors that some did lean in favor of independent contractors some did lean in favor of employee but on the made like the case was just submitted to the jury on the assumption that he was an employee and all that would leave this actually would be damages but the jury never  this type of analysis that those two factors and independent contractor agreement and one thousand and ninety nine income would be pretty persuasive in dishes that there was an independent contractor rather than employee if one thousand and ninety nine dollars any agreements and a contractor those are two factors that would lean in favor of independent contractor the court also looked into the specifics of the employment relationship which they found lean toward an employee which was that they had significant control over his employment the day to day aspects of his employment right but and and i and i take it then in that one of the issues that you raised was mr williams lay opinion testimony it seems to me that it that that issue is governed by actually judge greenberg's opinion and biting loop why why isn't it yeah i mean a quick a quick look i don't see a termination clause but i won't ask your syria about it in case i've missed it question on the trade secrets claim your brief says the jury's verdict on the tra claim is based on mr courses sharing of the username and password to select tory but there are several places in the record deposition testimony of mr karzai civically in a trial that referred to sharing pricing information why wouldn't that count as a misappropriation of trade secrets put aside the username and p information unless it's kept unless it's kept locked down within the company and unless you have confidentiality agreements with your customers tend not to be trade secrets in the industry because there's no because unless you have a confidentiality agreement with your customer saying you're not going to disclose our pricing to anybody i can pick up the phone call them and they can choose to disclose that pricing information if they chose to is that is that sounds totally reasonable is that in the record yes under another words under those circumstances but we'll have years long as we have questions so let's start with the question that i  s you have to sorry i presume that part of the reason we're here is that there's some inherent at least seemingly inherent inconsistency with the jury's finding  thinking of is well how can we sort of figure out what went on other than this must have been some sort of compromise verdict if we don't know when the breach was because if the breach preceded the the agreement but as i look quickly through the agreement it doesn't seem to be any contemplation of bases terminations or what happens in the event of termination so i kind of breached the agreement by virtue of the fact that he didn't stay in the employ of employment so in that case the earnings was prior to the breach and the superior court still had said since you breached you're not entitled to the ga think just heard judge greenberg raise some interesting questions about the independent contractor versus employee standard there is a lot more than the fact that this was just a commission based compensation structure if you look at the agreement there is nothing in the actual agreement that talks about how mr land was to control mr kerr so as work that's a threshold  the court points to mr land's direction on day to day tasks what those really were were clerical tasks and in fact there was no evidence that at the time of the term a nation and he was still even performing those tasks the reality of it is mistrial was so i think the notion that the day to day clerical tasks outweighs all the other things in this case is wrong and we have to remember and none of the cases that are cited to support the notion of this man was an employee did the employee in that case hold himself out as an independent contractor take advantage of that status that didn't happen in any of those cases and i think from a ten thousand dollars foot view the contractor in this case ought to be able to rely on what both parties are saying well this contractor is we we have a case that's a fairly  rose and in that case there was an agreement between the employees and me lawyer and the agreement describe relationship as one of an independent contractor but the district court found that independent contractors were in fact employees invited on the panel it's got to be within the last two months so if we put aside the notion that the fact that you have an independent contractor agreement is critical balancing of facts i think the jury supposed to balance facts on the judge is supposed to do that i mean i assumed when i got into this case that that was a fact question and that was my natural instinct because what you're looking at is which facts are more important i don't think that's the function of a judge i'm wrong then this issue that theory should have been submitted to the jury to determine whether he was an employee word independent contractor i would agree my position is i would agree with that but he did anybody ask this is a jury to be given that question it was not it was assumed throughout trial  issue well that's my that's my quandary that's my quandary is that the the judge and the pennsylvania law is that it's a legal issue and everyone operating under that assumption just because it oh because regulation in my brief i can't recall the specific numbers of my head he was required to pay half the expenses of the company i don't employ he is required to pay half the expenses of the company he was tasked with training sub contractors he could have hired subcontractors and employees and you know that this is the fact that that that is not present in any other case where someone is found to be an employee this man took advantage of the fact that he was an independent contractor he put it out there he asked for it he took advantage of it and now he's turning around and trying to get the benefit of being an employee i think i think that that's not fair i think the company in this case should have been allowed to think this guy saying is independent contractor he's putting himself out as an apparent project he asked us to one thousand and ninety nine him why shouldn't the employer earth the contract the within the company you know it's kind of just generally known who's doing what what's in the record that makes mr land's testimony testimony and again as a threshold i think somebody here recognized nobody ever argued that pricing information is not proprietary that that was that was put out a trial that was testified that that was the blueprint of the company's business and the jury accepted that you know when it said you're going against the trend i read in newspapers and you can't help but feel that you see you around the employee gets various benefits that seems to be the trend i don't know maybe not i agree with that i had trouble finding in all candor i had trouble finding pennsylvania cases that supported my position but i had trouble finding pennsylvania cases where the the contractor in this case was confronted with a situation where the independent contractor had all the things that he attached to this relationship and then took advantage of with regard to the sharing of person information we're just talking about the contact between mr occur so mr medina rest well yes of itself is wrong and that's not what the statute says st of all my clients are the one that acted willfully and maliciously my clients are the one that stole business my clients were trying to protect their business and were operating under the assumption based on mr curse those taking advantage of the fact that he was in godhra in essence my clients made a mistake so the notion to date acted badly is wrong and even if they secrets case where exemplary damages want wanted it's a good question and offhand i can't think of one but i think this case they should have been awarded because the conduct in this case was so bad there's a hibbert project you know that mean that that's that is clear trade secret information  here is i don't know if this is obvious but mr kurson had a motive to be feeding business to mr maybe mr occurs so as a cosigner mr medina's mortgage was mr medina was about to walk away from which would have left m hold back so there's circumstantial evidence at a minimum that he was doing this notwithstanding the fact that he project was not in question and there are other instances where the jury believed the testimony s chanel was one where they the company actually got the contract but lost future business because mr ker says interference opinion literally just came out with them alas couple of months you are correct my apologies or are you going to tell me what it said i just wanted to be clear that it was the district court that you're citing  for i tell you what they said already in the backcourt from that decision as the defendant exerts significant control over in a case involving dancers behavior appearance defendant dominates the key levers driving the dancers opportunity for profit in the dancers have no specialized skills  what your adversaries it's ok the district court ruled upon it but what we're concerned about is should the district court have walked upon it if there are genuine disputes of material fact should it have been a jury question now i think there's room for disagreement as to whether it always should be a jury question in some instances there won't be a sufficient record to determine if there are genuine disputes a material fact in which case it's entirely appropriate for the trial court as an initial matter do it so my question to you is in this particular instance were there genuine disputes that should have precluded the district court from going forward on the question i don't believe so after discovery i don't think there were much to speech between the parties is to what the four corners of mr cursors job was with infrared and those are the factors that you look to i mean both parties agreed that this was the agreement  and then also the district court did decided on published opinion of this court saffron in a not a direct quote however it is the economic realities of the relationship not the structure of the relationship as determinative so again it doesn't it's not that he hasn't been a contractor written on his agreement or that he's paid by commission you have to dig deeper than that to make the determination as to whether he's an employee or an independent contractor and then with respect to our trade secrets there was one other issue that my point brought up in your brief that they believe was a trade secret is hoover system computer system that's a proprietary rd party computer program that anybody can buy if they paid a subscription to it so the program itself  that counsel for the good how we told the board in charging conference that the claim was worth thirteen thousand dollars and anything above and beyond that would be too speculative to put on the jury that sounds really really interesting i'll be quick the economic realities of the relationship is the language i just heard the economic realities of this relationship are where the mr kerr so is paid strictly on commission and he was responsible for half the guy but but please answer the question if you were yes as a matter as a plenary matter it is a question of law of the hoover issues the idea in the password i can't you can't give somebody my google name and password i mean that's proprietary that was testified to and the value was attached to that as far as the chambers discussion counsel may very well have said that but there were five trade secrets submitted to the jury that wasn't the only trade secrets new to the jury were four other ones so on the jury returned verdicts on so i don't think chambers discussion gets us