my name is stephen saltzburg and along with eric white we represent the guardian for i h s a harris a child who rendered a quadriplegic as result of automobile accident and judge ever i'd like to reserve three minutes for rebuttal a fine there's only one issue in this case and that is whether the district court err in granting summary judgment to the with their home which was the home under contract with the county to provide foster care for children like i say actually this case the allegation was that the foster father was negligent driving the automobile and the lutheran home impute the actions of mr norton with regard to this accident to others that engage norton to begin with that's correct your honor the contention here is norton was in fact the servant of the lutheran home and that lutheran home was my curiously liable under pennsylvania law and you're relying i think from what i can gather prince of way on the smaller case of the of the pennsylvania we are relying on a small case but on the smaller just one of cases where the pennsylvania supreme court has recognized the master servant relationship and defined it what more does a good case it in small like it looks like what they're saying is in the past we have said that there can be imputing with regard to principle agent whatnot or vicarious liability found but that was turns out that was an overstatement we really need to refine that and that it can only be found in the context of a master servant like your employer at the office controlling what the employee does this doesn't seem to fit that well let me may i address that director or i don't disagree with you i think it's very clear that right now that pennsylvania supreme court decided it's not just enough generally speaking that you have a principle agent which has to be something more and  is the right of control and in this case i submit that there is no situation in which there be a clear right of control then exists in this case and let me be me point you to why i say that the contract between the county and the home provided that it is the home that would provide foster care and the home had a non delegate duty to do that now the district court said well once the home  found a foster parent the foster parent had all the rights of ordinary parents and operated accordingly what it says is that the provider is deemed an independent contractor and so i'm not going to turn over this contract among other things delegate any any all or any part of its obligations responsibilities with up by written approval of the county but isn't its principal responsibility to find foster parents that's not net is not in the contract it is its principal responsibility is to provide foster care however it chooses to do that if it hadn't found force the parents it would have had to provide foster care it would have had to employ people to provide foster care and let me address it is that the home retained in the way of power the district court said in its opinion that parents could go and buy clothing for their children like ordinary parents could it's not true contract between the lutheran home and the parent says you can't buy clothing what about transportation the contract between the county and the home says in one of the a demba says that the home that is the provider is responsible for transportation in the in the contract with between the home and the foster parents the home exercised that control but actually this the only for transportation all you need to do was have somebody with a license right now and that's not actually true if you did if you honor at the contract between the home and the parent the actual home required this was a day or two the parents that they actually put the foster child in a car seat that met federal safety standards and if you take you dish will notice of when it is that pennsylvania law required safety seats for children you'll see that came after this accident in fact the harem set the standards the home decided who could drive the home decided  which was which people the parents could authorize to drive when they were the home was in control of that in deed in this case the home was can the home was contractually bound to take care of discipline what you're really you're saying that the home has dated they control did have day to day control exercised day to day control when they were required to do that they were required to discipline the child contract between the county and the home under discipline it says it is the provider not the foster parent that will set the standards of discipline and one of those stands to discipline of course as your honor points out is how do you deal with a child who behaves badly in an automobile that was the homes responsibility this case is all about whether a county ten if you choose well i don't understand your proposition you mean to say that if a child acts badly in the presence of his forster character and the lutheran home is not present at that time exactly what happens when a child has a tantrum in the backseat of a car which is approximately twenty miles away from wherever the lutheran homeowners under the contract between the home and the parents any change  they have required the parents to inform them any change in circumstances so that behavior that the child gauged in that was disruptive or improper behavior requiring discipline is something the homeless first to be notified of and then the home is to decide how the parents are to deal with that was their responsibility now obviously i am not saying that the home if it's happened that does not happen to be there is responsible in the moment for the discipline they are responsible once they are informed of setting the discipline standards and telling the parents what it is there to do i point out that the well home received income from the county the home to the parents by contract that you are not to declare anything that you receive from us as income and that it is all every dollar you receive is a reversible expense that is there's never been an independent contractor to my knowledge who has not had the right to decide certain standards of cleanliness you will display logos on you will have certain arrangement goods for sale and they maintain and they inspect this compliance with in that framework the franchisee is free to conduct the business and is liable for what happens in the one big difference just rough and that is the typical franchise agreements i've seen do the opposite of what happen case the county has said by way counties have a choice when it comes to how they see go about foster care this quickly recognize that we're not saying counties have to sell sell foster care agencies wrong we're just trying to say is somebody is going to pay for what happens to foster kids when they're injured and that is if you say oh there's no response the outside period liability here is going to taxpayers and this kid is going to be the foster parents in their insurance cover whether as much as you know from the record i think in this case that the foster the foster parents had a liability policy that's exhausted on their automobile coverage indeed in this case it is th lutheran home that had insurance its leader home that was home that was required to have insurance was required to insure it subcontractors and it is the county was intitled under pennsylvania law to impose this burden it's foster care agencies if he chose to do and if it wanted as it did if it wanted them responsible if it wanted to make it's hard to imagine a contract at rock that you can write that would be any clearer than this which is you're going to be responsible for things like transportation you can't delegate it it is your duty and you can choose who you want to provide the services you can say parents you can't drive are drivers will drive but that's the choice the whole made as to how to the duty but it was responsible under this contract and it is responsible under any fair reading of pennsylvania law how do you respond to the arguments that the mickey make that if we were to be the first federal appellate court to rule in your favor that this would not throw a monkey wrench this would literally unhinge implode the system that we have for foster care in this country i i have a important question and i'd like to answer it three steps because i needs a very clear answer no one there is no federal appellate court that's come out the other way this is a case of first impression and it's all pennsylvania law we're not asking you to create federal law number two the argument that that is made makes no sense that the argument seems to assume if you hold that this contract says what it says so that you're recognizing that lehigh county can impose this kind of a burden on first to carry agencies because it decides that that's a better way to do it then to have taxpayers pay for injured kids the any other county in pennsylvania is perfectly free to write a contract that says you're an independent contractor and you're foster parents are going to be independent contractors too and that would mean that this would go away as an issue but third and final that this court it would be a strange ruling indeed for this court as the first appellate court to address this to say that accounting like really high cannot use to protect these vulnerable children can i choose to set up a system will there be insurance and will require insurance so that these kids if they are going to find a texan beyond what the taxpayers can give them i mean this is all about choice and the i county made it joyce and the argument that's being thrown at you is somehow if you decide this case one way you're going to find the counties and you're saying that the choice is requires us to come down but there was a master servant relationship it let me let me ask you you came out a minute ago talking simply about the motor vehicle insurance area now in your brief you see to be arguing broadly a master servant relationship that would cover many aspects of what was done and what a forced marriage might do what it was your child might are you limiting your argument to a requirement that the lutheran home or the agency contracting to provide for extra care is required to get motor vehicle insurance to cover injuries foster children or are you arguing a broader span of broader span of argument that a fair reading of the contract between the county in the home is that the county specified exactly one chart beat when it came to insurance that they were going to have to get and who was going to be covered by it but the a specified a number of other things they were not then we could be responsible for and so i guess they were responsible for everything they promised the county that they would undertake thank you brian thank you present requires only a very straightforward application of the control test under pennsylvania law and under universal and cam might there be or one could argue a middle ground there are saying there is a masters or relationship you're saying definitively there is not but the when you look at for example cases like small it's that those rendering service but retaining control over the manner of doing it are not servants they may be agents agreeing on the sufferer isn't there a possibility that this is a question that needs to be worked out a trial there are no disputed issues of fact plaintiffs have in fact  relationship between these parties are defined by state regulations and the contracts between the parties those are pure questions of law there are in fact no questions of fact resolved by a jury in plaintiff's counsel has never pointed out a single question of fact yours all master of an ultimate comes down to the degree of control in this case on a day to day basis why wouldn't that be a good candidate for sorting out by a jury because there's no because the day to day control of the contractual relationship defines the relationship between the parties and limits lutheran whole lutheran homes duties because of the foster care parent and in this case the contracts the service contract itself imposes on lutheran home only the duty to provide foster care services the placement agreement sets forth about twenty and the placement agreement in the handbook passed through state regulations about twenty itemized requirements they all have a corresponding pennsylvania code provision if they don't have a corresponding pennsylvania code provision then they are dependent on other motor vehicle motor vehicle laws tribal trial child labor laws administrative tasks like providing contact information or clothing allowance none of those provisions has anything to do with control over the foster parent in his day to day parenting of the child that is left up to the foster of what's already been done by the connecticut and massachusetts courts it would seem it would be time to have a real look at how these contracts are drafted in order to protect yourself  regulations that that is not probative of the master servant relationship and the court explained it's because where the requirement is to comply with state regulations it is the law and not the initiative of the putative master who controls the work to be done and most of these contracts most of the requirements imposed on peter norton by lutheran home have to do with compliance with the pennsylvania department of public welfare regulations but what proposals were saying is yes they've done that and they've gone through the required more and they've intruded on things you know all the way down to discipline discipline they decide if you compare the discipline provision in the placement agreed in the i think the it's an appendix to the service contract and it is a one of the itemize pieces of the handbook that's almost the disciplinary provision is almost verbatim  recounting of the pennsylvania code provision on discipline so discipline transportation all of those items are dictated by the pennsylvania code and as i said where there's not a saying there's nothing in here nothing in this contract at all but isn't directly required by a regulation of the state or federal government to the extent there is anything that are a permission to take the kids on vacation but it doesn't have to be a complete lack of in disha of a master servant relationship for the court to hold that there is no mash master servant relationship universal and cam there were certain the trucker had to still report in every twenty four hours had to take a mandatory one hour break and had to do certain other tasks required by the you know that's pretty clear that it was it was regs that existed that the you you had to make sure were complied with by the trucker right but the the he also had in that case are also certain facts that the that the owner required of certain requirements of the owner required of the truck or that weren't required by state regulations or federal regulations but those were not enough to tip the scales in favor of finding a master servant relationship because the essential functions of the trucker in that case were dictated by federal law and that's exactly the rules to be abided by the quality control with suit that there were supervision and there were other factors that favored a master servant relationship in that case but the overriding feature of the contract was just that of supervision and state regulations at fifty five p a code thirty seven hundred point four define foster family but define a foster care agency as an agency which recruits approves supervisors and places children it defines a foster parent as the individual responsible for providing foster care the contracts are written in light of those code provisions the code the service contract provides that the scope of  work is a service contract between the county and the foster care agency this is what lutheran home agreed to take on from the county the scope of work is foster care services the plaintiffs rely on provisions taken out of context from the appendix where they fought where there's language the fact that the with her home agreed to provide a temporary living environment the form of foster family care that is always in the context of in agreement a placement agreement with a foster family they are reading provide far too narrowly to to suggest that it meant lutheran home itself undertook the duty to provide foster care this is always in the context of provision of foster care indirect if home itself to take in foster kids if there were a parent available in the state so it's not an orphanage pommy it is not an orphanage it is not an orphanage its role is to assist the county in placing children in foster families and that's set out in the contract and that's consistent with the pennsylvania regulation but also in maintaining a check on whether the forester families are performing appropriate right it is a monitoring role yes it had of supervisory monitoring role inspecting the progress of the work and under pennsylvania law that is not sufficient to establish the master servant relation just a lutheran home provide any insurance coverage to protect children either in motor vehicle situations or health situations or any type of situation it has insurance coverage which may be implicated in a drug liability claim but their direct liability claims were dismissed and that has that's not on appeal so that if the child was in  lutheran home vehicle or is that type of direct responsibility you're talking about right for there their argument also is ineffective for several other reasons not only is it not is it inconsistent with the contract but it is a direct their non delafield duty claim is a direct liability claim that's not even a vicarious liability theory and their direct liability claims are dismissed by the trial court and they did not appeal that part of the  isaiah was found non responsive in a swimming pool the county required the county has a course has its own duty to supervise inspect the county required lutheran home to go in and that instance after the fact to just monitor the placement there's normally under the contract relationship by the revisits in the very beginning of the foster family relationship that trails off over time and the county asked with her homework with her home to go in and spot check actually that isolated incident but that wasn't the relationship that continued over the rest of the almost year long relationship with peter norton he  issue of the money that this is a forty four dollar a day contract lutheran home kept twenty seven dollars and if claim of serious correct that means that lutheran home agreed for a dollar an hour to have the responsibility of supervising this child twenty four seven and conversing when you look at peter norton's perspective that meant he invited complete control over his family home for seventeen dollars a day and that just defies common sense i'm going to leave the rest of my time here saying you're saying that the forty four dollars is twenty seven of it goes to lutheran home seventeen goes to norton right so it sounds like there's more control with their home than there is of norton that's their argument that because if they kept the sixty percent of the fee that that is somehow indicative of a master s relationship that's no different than any any contractor subcontractor independent contractor relationship and the fact that it is only forty four dollars a day if they are going to impose on luther and they say luther home had the right to control the child twenty four seven that means it had a corresponding duty and that means that it would boil down to a just over a dollar an hour that lutheran home would be compensated to have that there you can flip that and say it's even worse for norton i agree except norton was just covering expenses right this is not i think this is not a seven thousand dollars a day job that he took this is foster parent does this for a labor of love he those are to cover his incidental expenses for  transportation you know pin money for the kids this is not this isn't meant to be a a financial windfall for foster parents or you're from  archer case in massachusetts what's been the fallout from that at all if anything you know you talk about the consequences that the system will implode that they won't be able to do anything but you you've got two exemplars so far what's happened in the run i represent the county association of pennsylvania and the way the state commonwealth of pennsylvania has structured their handling of foster care for children in a state i cannot speak to the other states but you're saying or you're saying you're saying that the sky will fall and that there's a good argument that that might be the case but i would imagine pennsylvania's taking a look at what's happened in those two other states in terms of how it conducts its affairs pertaining to foster care and what if anything i mean and a lot of the amicus briefs in fact that have been filed here talk about those consequences yes your honor and because of this the system that we have in place and pennsylvania i can't speak to the system that they have in place and other states my organization the pennsylvania children and youth administrators of the state is comprised of the sixty seven county youth administrators that report each county commissioner and what they know is how this system works in pennsylvania and this istomin pennsylvania these county commissioners have a children and youth service and administrator that's that's responsible for the placement of these children who are the victims of neglect or abuse and one of the important things of this system is that the responsibilities the placement of children in foster care and foster care a lot of times through a private entity each such as a lutheran home in this case the county contracts with the private foster care agency to  do that work and these private agencies are about close to two hundred fifty of them in the state a lot of them are nonprofit work on a shoestring budget do a lot of their own fund raising and provide some of the financial resources for the care of these children in the commonwealth is the question here is there such control that it passes a threshold that you can say that there is in effect a master servant relationship no your honor their spin their standards set their standards set that are are our hast to be in in force because we have so many federal and state guidelines that have to be passed down that this not create a master servant relationship it's important understand your twenty thousand children in the commonwealth their balls in this what what is not controlled theoretically on a day to day basis the simple decisions like judge garth said how do you how do you discipline a child for some thing that's immediate it's preposterous to think that lutheran home would have the responsibility to effect an immediate correction to a child's misbehavior but they did come in and say stop  well if if that is not within the standard that that is set for them by by regulation then that's that's a standard issue it's not something that's a day to day issue i see my time is up thank you very much law on the answers clearly they did there's nothing in state regulations that tells you where kids should go to school how many clothes he should have a whether in go to camp in fact the but in this case where you have someone driving what control over mr norton at that time was being exercised by lutheran mr norton had no right to drive the children unless the lutheran home authorizing the drive he had no right to use a particular automobile left authorized by the lutheran home he had no right to have more than one child in the car unless authorized by the lutheran home he was required by the with her home to have the child in a car seat didn't do it on the roof her home was was totally in charge of transportation we pointed out that the whole the whole intervene when it felt that the discipline being imposed on the child was the wrong discipline they came into the home and said you can't do this we're going to tell you what you should do and the question is when the child drowned and was fortunately lutheran home came in and had to make a decision are we going to leave this child with this family and the natural mother objected and nonetheless the decision was made to leave him these are the kind of decisions truly white and potentially death decisions the home was called the company in general yes the question isn't this something that perhaps a jury ought to address and i think we are as you know we have indicated that we did not appeal the failure to grant summary judgment to the pla s in this case we believe that in fact the question of how whether there's anything in the day to day operations that suggests that the contract with the non delegate will do he wasn't actually carried out the way that the county intended but that is something that a trial court and the jury audience are and that many worry this court might have about adverse consequences can clearly be taken care of by simply having agencies and counties right contracts that make it clear who they want to be responsible it is not on reasonable for lehigh county which is not before this court and not complaining about the fact that vicarious liability is being sought here it nothing on reasonable about them wanting to make sure about ninety plus percent of them over ninety percent of them are nonprofit agencies and that if you rule your way that there will be a catastrophic effect on how they are able to to do their jobs if indeed they are any longer able to do their job they may just say that's it we won't do it any mojo drop the answer to that of course is clear as the supreme court has recognized in other contexts like mr nada when it comes to bargaining which is if homes like the lutheran home say that we won't operate if it's good we're responsible for foster parents then a county is going to have to decide whether or not it's going to look for others who will operate under that regime or whether it will change the regime but you asked the question judge off the other side about insurance and it writes something judge ambrose said about what what would happen what happened in pennsylvania since these other decisions but we know what's happened which is groups like the lutheran home  insurance they're being defended without a reservation of rights in this case by nature and scary and they anticipated that this could happen and that's something that the county has a right to insist upon you spread the costs over by doing it through insurance it's a very efficient means that this court would recognize as applicable in any number of circumstances but if somebody agency said we can't afford the insurance there would be saying to counties if you insist on this regime we won't be able to participate and then what will happen is it will get worked out but why i was asking you whether you are limiting your argument to the motor riya motor vehicle area or whether you're saying that there is a broad scope  vicarious liability because certainly if we're just dealing with motor vehicles insurance is is a practical solution that can be easily determined but if you're saying across the board that the the lutheran is vicariously liable for any negligently caused injury to the trial then i think we don't know what the scope is and it's frightening to think what employees are going to do and we can't be there to control them twenty four hours a day and yet we hold employers who have the right of control responsible the answer i think to your question is that counties can work this out with the provider with the agencies with which they deal if they want to say you are only required to have automobile insurance and you're not going to be held responsible and you should make clear in your contracts with the foster families they can do that this is workable by contract but as i've said to judge him bro i don't think this court wants to we're going to hang here while people were leaving