have reserved for minutes of time for rebuttal that request to be granted the key initial question in this case is whether janet king's franchisees or independent contractors are in place in on that question pennsylvania law has clearly and consistently distinguish between direct database supervisory control which is evidence relevant evidence of the employment relationship and control over the end result or quality of a product which is common law test they all go back and look at the same multi factor test that has the common factors in under that test it's understeering everyone agrees that whether it's right to control or control that's the predominant consideration it's the dominant and most important factor the question though is control over what in one of the plainest relied on this control over the quality of the final product but pennsylvania has consistently said that's not the right kind of control in the case that's most directly on point or drexel does not control this case for three different reasons number one that controls that issue there the court found there were so broad that they could control everything well you control you  it is controlled you can quibble about intermediate courts but you can't quibble about the supreme court that just controls hearing what universal herald's is that controls that are required either by a state or federal law don't count indeterminate control and that's relevant here have for the documentation have the right to control it's the right to control what and what the cases say is that it's control over the data physical contact better in which the work is done right yes the manner we should go this again whether it currently there you control the matter which the work is done is one thing but it seems to me that couldn't remember everything and and actually exercise that right if your does that you are isn't there now but exclusively that could be i think that is a much lower factor than what's actually there's a lot of those cases it's true that he only has the right to control the word even if it's not controlled you're right i agree that the cases depending on the context sometimes they emphasize right to control sometimes they exercise actual control the difference i don't think matters at all for this case because again the question is the right to control what in here are the most directly relevant provision of this franchise agreement a section for point one died it's at page one eighty six of the appendix and it says that the franchisee and i'm quoting is responsible for choosing the times and method of providing the services it places wed is more important hal i say that how in terms of one who's going to do what today that's the kind of direction day to day operational decisions and instructions is what the cases say is relevant to there's no evidence of that here here but i've got to keep coming back to the same thing quality controls even really invasive ones are not the relevant evidence that's the holding of best ruster it is not just there but this court in the eye each case that's the initials of a juvenile the very sad case of a foster child was killed under the care of a sponsor parents and sued the agency on pictures liability under pennsylvania law on this court recognize that there is no of a curious liability unless there's an employment master relationship and it went through the manuals for foster care which are incredibly invasive and it went through the visits which were weekly it went through polls which were even more frequently it is hell based on looking at all of this is a very direct incredibly invasive controls as asking the wrong question said the right question is was the foster agency there directing what they were doing on a day to day basis because the answer to that was no as a matter this court figured it out long before the supreme court held it in duke's versus wal mart that sometimes you have to look at the merits and we've cited two cases under which is an antitrust case and holder versus u p s which isn't age discrimination case in both those cases the district court interpreted the elements of the subject substantive claim in a way to make common evidence relevant this court took the appeal and disagreed on that on the interpretation of the elements and said only the correct substantive standard the relevant evidence is not going to be common it's going to be individual and that's what's going on here because the plaintiffs have relied on evidence the only common evidence they have are all these quality controls if that's not relevant and contract right then that's going to drive everything up that any common evidence argument is that you have to look at the right kind of control and what the documents say about that kind of control in opposition is just that in this case what the documents say on the right argument that you just heard from my brother counsel he began with a statement of what this case is about it's a for you that was absolutely incorrect he began by stating that the question here is whether these workers or in the morning if you choose it it's more efficient to have your crew get somewhere at ten o'clock and they do the work right that's what the franchise who is interested wrote didn't need your honor we may  individual evidence establish the control you have again let's look at the factors that we will need to prove to prove employee status and again the question is right it's the same for everyone maybe argument like we have seen and every independent contractor misclassification class action in recent years that there are some of the workers had such big operations that they can't possibly be considered to be employees essentially as judge walther in massachusetts said in granting summary judgment to the plaintiffs finding employees in a case that was sort of might be included on the control factor that doing the work but again people to do the work conservation because their handful of people who have the big operations know what happened in massachusetts case where it was certified as a class action on a handful of these big operators opted out of the class because they didn't think this really  people who have a contract with me and do the work so some of these so called the operators have a whole lot of people i knew them working but they're not doing good work themselves that's not who we're talking about which end because a lot of these workers are immigrants the that there is such a thing as a franchise or franchise relationship which is not a one of my plea employer employee relationship what regulations are they allowed to have under that relationship and not be an what is a legitimate regulation that they could have and that's the only reason hunting trouble because it does it is a regulation that they've imposed upon you are legitimate for the purpose of protecting their trademark or that defendants in these cases often get some reason or just of it cation for the control such as that they're following some other regulations their foreign federal regulations but that does not that's not a defense  determination there may be a requirement to look at some of the merits issues if i could just say one last thing i see that my time around might not be up yet to answer my question i am sorry but you through to exert control well yes they agree gives janet king complete control over everything to terminate the franchisee to change the terms of the agreement and again you do look at the right to control and their right to change there's a difference between screening franchise companies like john king and a franchise as we traditionally know of like donal's which is a much more involved in the details of the day to day work and again that may be a question for the jury one day but in massachusetts non compete provision which means they're not allowed to be working for anyone else or even doing the work in their own capacity and just like the massachusetts supreme judicial court said in the cover off least that the commissioner case that we have cited common factor whether the payment is by the time or by the job it's by the job but again that's common for everybody whether the work is part of the regular business of the employment and site is the part of the regular business  your honor's questions judge cohen the pennsylvania supreme court in universal cam case held the controls that are required by either state or federal law quote may not be considered in court are two the kinds of controls that are not relevant the best restroom cases are already said training not relevant inspections not relevant terminations for failing to comply not relevant branding sure  relevant what is relevant is dated a supervisory control direct control that comes out of the pennsylvania supreme court in green comes out of this court's ruling in i that's the kind of control that's relevant and didn't do it they don't have the evidence they haven't met the standard cerebrospinal is appropriate i want to briefly address massachusetts because it's come up so often the d g avani case was resolved on a prong that is not relevant under pennsylvania there is the a b c test that is unique to massachusetts the second one says that all the services have to be outside of the usual course of the business and of course they're not is the way they interpret that franchisee that was the basis for the decision ted is not the basis  pennsylvania law has nothing to do with this case finally counsel mentioned the prospect of certifying some of these issues to pennsylvania supreme court under the local rules historical rule one ten point one of this court if they're going to move to on your side saying how important this is to the franchise industry maybe this is a case of we should see me the guidance of the prince and the supreme court on this important question of penciling law you are we don't need to hard to figure out where they're going on this and then you could consider it but yeah having read this since the one nine hundred seventy s the pennsylvania supreme court has recognized what it is that makes a franchise a franchise that is a business to business relationship the core of which are these quality controls to make sure that no matter where customers bill no matter who is the actual owner there it's always the same and whether it's been cut and it's not to compete where there's been  liability in employment consistently case after case after case they have held but that those controls are different implying that they will not find at the very thing that makes a franchise a franchise which