and its decision rests on two legal indefensible grounds the first is that according to the district court the pennsylvania minimum wage act the pm w s j can in fact should be read inconsistently among  sections specifically the pm w a's tip credit section refers to amounts added to a bill by management like the service charges in this case as gratuities never the last the district court found that when applying the  pm w a in other contexts outside of the tip credit section that service charges need not be regarded as gratuities this inconsistent reading of the plain language of the statute and inconsistent application of a defined term in the statute is directly contrary to basic principles of statutory construction you want this panel to determine that what is libby her colleagues receive and what they believe in the way of amount they are to receive is a gratuity with respect to the service charge what is gratuitous about an amount that two other parties have contractually bound one to pay to the other how is that refer to  well the definition of gratuity under the pm w a which is contained in that tip credit section the definition section contains the tip credit disc the tip credit provision as well as definition of gratuity so it's clear that  purposes at least of the tip credit section that the pm w intended treat amounts added to a bill in fact automatically by management as a gratuitous and in fact defendants concede in their brief to it in other words a voluntary payment there's no other reasonable way of reading the tip credit section except as referring to in amount automatically added to a bill by management as a it's a number set by the the hotel the fountains your own bed set by the hotel defendants insertions object to ultimately an agreement between the hotel defendants and the other contracting party that is a more accurate statement are it's a matter of contractual agreement and presumably negotiation between the parties now it was or versus the servers are not part of the negotiation correct the servers are not part of the negotiation they play no role in sales whatsoever previous negotiation ways are always the same number well your honor i don't think there's there's not a lot of evidence in the record on doubt because defendants resisted discovery of the identities of their customers with one exception there's a contract with bristol myers squibb there's also a supplement supplemental contract with bristol myers squibb for a bank would have now which was clearly negotiated by bristol myers squibb and bristol myers in that supplemental agreement specifically shared which they agreed was to be theirs this service charge is a function of a contractual agreement between the hotel and a third party who wishes the banquet services right who wishes are all right so easy is there any separate agreement collective bargaining agreement is there any policy what what is it any written document for that matter is there anything that you can point to that sets out high it's practices paying the bank with servers fifteen percent as opposed to twenty or twenty one well prior to november two thousand and fifteen the contracts the bank with contracts didn't tell the customer that part of the service charge would be paid to the bank with so why should that matter why should that matter to anyone other than the customer well but i think it's reflective your honor and there's deposition testimony from defendants witnesses that they change the contract to be more open with the customer about always change the contract in response to this litigation or in light of th should but but i still that still doesn't tell me why it ought to matter with respect to the interests of ms levy and any potential class of well that gets a bit if the beneficiary if the promise e under a contract believes that the benefit of that contract is going to a third party that is enough to state a third party beneficiary  that the district court didn't consider although plaintiff appellant cited this decision to the district court of a commonwealth court decision in churchill valley country club in that decision in the context of unemployment  churchill dolly country club it's a commonwealth court of pennsylvania decision and in that decision give a cite for i do your honor it's nineteen pennsylvania commonwealth for thirty three thirty three a two d seven thirty eight and in that decision the pennsylvania commonwealth court in the context deciding an appeal on an unemployment compensation case said that service charges of exactly the type at issue here they were levied automatically by the country club on bank would have outs and paid to servers ultimately at that country club including the claimant in churchill valley the pennsylvania commonwealth court said that those service charges are gratuities and in doing so the court said the following federal law seems to distinguish gratuities on the basis of the degree to which they are accounted for by the employer and alternatively on the difference between a service charge and a true tip though this methodology may be helpful in our deliberations we need not consider it controlling under our act and we find that it is not a precise statement of pennsylvania law the district court should have at least addressed this decision in churchill valley because it is the only pennsylvania appellate guidance on the issue of whether service charges like those in this case are gratuities but what about  if your contention if i recall correctly that that we should not be looking to a parallel provision in the app l s a with respect to commissions here in if we are being called upon to predict how the pennsylvania supreme court would define commission if you have staked that position have you not that we should not look to that parallel provision that's correct your honor why not i mean how how do you distinguish the pennsylvania case law that directs pennsylvania who are still look to federal interpretations of the of the f l say where statutes are pro the district court ignore how so what material differences are there between the well for one the tip credit language the language and the tip credit provision that i've been discussing which refers to amounts added to a bill by management gratuities a what do you make of that of what i see is nearly identical language that both statutes use concerning commissions how do you get around that the limits all your honor explain number one i think the did we believe the district court should have looked at the entire statute because interpret in the commission argument or the commission that the meaning of the term commission as it did necessarily impacts the treatment of service charges throughout the rest of the statute and gratuities number one number two the uphill a c house or regulation which explicitly sounds service charges are not like the ones that issue in this case are not to be regarded into play if the court were to determine that it's not clear from the face of the pm to be doing and we've argued that it is that service charges are gratuities because then we get into the issues of third party beneficiary  benefit from the contract that's certainly an element or perhaps the controlling alan and under the pennsylvania supreme court's precedent and score p d where the restatement second was adopted and the supreme court said it's enough to state a claim for third party beneficiary status if the promise e believed that the money was due to the third party all the record evidence we believe says that the customers although discovery was limited on that the service charges that higher retain and this claim must fail for two reasons first of all is the district court's decision made clear what levy's trying to do here is pull out a sentence from the tip credit  vision of the pennsylvania minimum wage act and make it into a standalone tip to protection statute but that sentence has to be read in context what we got here is the  tip what we're talking about the tip credit is employers are allowed to pay tipped employees an amount below minimum wage with the idea that tips will make up the balance probably more so in this case livy for example made fifty seven thousand dollars in their last four your employment  to cross in order for an employer to do that and one condition is that where the gratuity is added to the charge made by the establishment either by management of the customer the gratuity is the property of the employee eat that's the sentence on which the movie hinges you're saying simply that this is it inapplicable provision to the kind of arrangement we have here that's precisely it is i ask you the same question i  or is is there any kind of a contract or collective bargaining agreement or some kind of document in this record that demonstrates or sets forth hyatt's policy of paying back which her know there's no document that there's no internal document the hyatt does that the only documents in play are the contracts with the customers the benefits are is union members and their own yes that here they are they are not represented by by you know the you know the normal or the regular upper that way hospital employee hospital hyatt employees who might if i go to hyatt for lunch for example the person who serves me at the table the server regular that night if i go to a banquet from customers once or i wouldn't see that same person there that's a different different universe of workers this is a different yeah right there are high employees who are in the restaurant there are high  reason is that i don't think there's any there is no conflict the decisions of state law on this they have addressed it it i do agree that neither this court nor the pennsylvania supreme court have decided the issue but i  around opinion come to your aid in any way with respect to whether or not we should certify i'm sorry i didn't catch what he said we would the  applied the technique in determining how the pennsylvania supreme court would rule on actions i'm wondering if that provides any sort of support to your position regs they they set for the tip credit one of the conditions is that the employee keeps all the taps except for a valid to pool which is exactly what the company and wage act provides for it also provides a definition of a distinction go to the employee as a tip for get the percentage did the employer was getting for intended as you isn't it would that matter i don't believe it does i think i think the intent of both parties is necessary to establish a third party here then tended that to go to that i'm doing you know that amount of money to go to the bank with her i don't believe for purposes of the retention of to claim under the pennsylvania minimum wage act or the overtime claim that the intent of the customer matters  what matters is what what happened out of the contract which was that ahead of time a how it sets forth a condition for the bank where there's going to be a twenty and twenty one percent service charge  always every contract in the record sets forth either twenty up to a certain point in time and then twenty one thereafter now there's never been any variance from that we know from you we know from council that the putative class are not members of a union that this is not a collective bargaining situation but our employees banquet employees servers in any way involved in the negotiation and entry into the contractual relationship between hyatt and the party seeking would you concede that if it's a commission which it is not a commission in any garden variety sense most of us would think  it is a percentage of the sale meaning it's a commission that is not in the sale is being made by hyatt to a third party crap and it and what the servers are doing here is having had no role whatsoever in this contractor's negotiations they're offering labor effectively build up its crackdown are they the servers do not have a sales function they are not getting they're not labor opinion letter that it and adopted by the seventh circuit and found to be a commission for purposes of the section seven i exception where auto mechanics auto repair people  also are paid by a percentage of the sale they are not involved in making sales to customers of what you how you want to repair your your vehicle but they are paid that way as well and are considered section seven i ex part of labor even i think both before and after metamath and in opinion matters by the deal also this is this is the this is the decision of the department of labor as well it's not just the seventh circuit and there are no conflicting decisions out there as well which is you know another reason why we don't believe this needs to be certified to the pennsylvania supreme court and as well it wouldn't in our view dispose of the entire case it only involves since it is not under attack is the entry of two parties into a contract yes and so to that extent there was a voluntary action which included  which you correctly suggest correctly point to it's not exactly a model of clarity in the way it is drafted gratuities mean mean voluntary monetary contributions received by an employee from a guest paid from a customer for services rendered  it it was not a contribution voluntarily made it was a contractual obligation so whether or not this definition fits the circumstances here my view in any event remains to well what i meant your honor is that they serve food they serve drink perhaps even have less of a sales function than servers outside of hotels but it makes little sense to say th commission to employees when they perform largely the same duties as their colleagues in the restaurant industry i'd also like to say with respect to the nomic decision which the district court relied on almost entirely f eighteen it's in making its holding i agree with judgment key for all the reasons he stated that that case should not be applied here but there's another important distinction about not met which is that the plaintiffs in that case conceded that the service charges that issue were not gratuitous the issue there was whether they were something other than commissions that's a very important distinction because that's obviously not the case here and there's no evidence of next minute but there was anything in mr finkel during his presentation a few minutes ago began to reference third party beneficiary status is i recall you have at no point relied upon a third party beneficiary theory  i don't recall seeing it in your brief is that correct i recall you invoking and just enrichment at some point but i don't recall third party beneficiary status we do have in third party beneficiary claim your prong is that it's in the you balance that the courts should decide that the service charges or something other than gratuities perhaps treat wages the third party beneficiary theory explains why contract inquiries that is absolutely relevant to the third party beneficiary claim although it's trumped by a statute which controls how that money's to be appropriate as i understand that's mr pinkus argument i asked him what if the contract employees argued that specifically i can tell you that your honor fight other states new york for instance perhaps being the primary example have passed legislation saying that there is a rebuttable presumption that these service charges are gratuities after there were a lot of cases in new york where the issue of the intent of the parties came up and the new york legislature apparently concluded the default assumption for a customer is that a