Coryell, C. v. Morris, J.

J-A26040-22

2023 PA Super 232

CLARENCE DAVID CORYELL, AND : IN THE SUPERIOR COURT OF
SANDRA CORYELL, H/W : PENNSYLVANIA
:
v. :
:
STEVEN MORRIS, JASON DAWSON, :
ROBIZZA, INC., AND DOMINO’S :
PIZZA LLC :
:
: No. 1977 EDA 2021
APPEAL OF: DOMINO’S PIZZA LLC :

Appeal from the Judgment Entered September 21, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 180602732

BEFORE: BOWES, J., KING, J., and PELLEGRINI, J.*

DISSENTING OPINION BY BOWES, J.: FILED NOVEMBER 8, 2023

I respectfully dissent. In my view, the majority both conducts an

improper review and reaches the wrong ultimate disposition. For the reasons

that follow, I would affirm the judgment.

First, although the matter sub judice comes to us on appeal from a

judgment entered upon a verdict reached at a jury trial, the learned majority

elects to review the propriety of a pretrial motion for summary judgment. As

this Court recently explained:

This Court has recognized that in cases where “a summary
judgment motion is based on the sufficiency of the evidence to
prove the plaintiff’s claims, once a case goes to trial and evidence
is presented at trial, the denial of summary judgment is moot and
the sufficiency of the evidence must be analyzed based on the trial
record.” Xtreme Caged Combat v. Zarro, 247 A.3d 42, 50–51
____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-A26040-22

(Pa.Super. 2021) (citing Whitaker v. Frankford Hospital of
City of Philadelphia, 984 A.2d 512, 517 (Pa.Super. 2009)).

In Whitaker, this Court noted that, once the parties
proceeded to trial, the parties presented evidence, and a verdict
was entered in the plaintiff’s favor, the defendants’ motion for
summary judgment became moot and the “issue became whether
the trial court erred in failing to grant them JNOV.” See also
Ortiz v. Jordan, 562 U.S. 180, 184, (2011) (an order denying
summary judgment “retains its interlocutory character as simply
a step along the route to final judgment. Once the case proceeds
to trial, the full record developed in court supersedes the record
existing at the time of the summary-judgment motion.”) (citation
omitted).

A recent panel of this Court held in Yoder v. McCarthy
Constr., Inc., 291 A.3d 1 (Pa.Super. 2023), that “where
summary judgment is denied and the same claim then proceeds
to trial, post-trial and appellate review must focus on whether
[JNOV] is required, not on whether summary judgment or nonsuit
were improperly denied.” Id. at 13 n.15 (emphasis in original).5
______
5 We recognize that this Court’s precedent has not always

directly addressed whether a party may appeal the denial of
a motion for summary judgment after a trial has been held.
See Windows v. Erie Ins. Exch., 161 A.3d 953, 956-57
(Pa.Super. 2017) (reaching the merits of a challenge to the
denial of summary judgment without explanation as to why
the denial was reviewable); Krepps v. Snyder, 112 A.3d
1246, 1257-60 (Pa.Super. 2015) (same). This Court has on
occasion reviewed the merits of challenges to the denial of
summary judgment after a trial has been held. See
Brownlee v. Home Depot U.S.A., Inc., 241 A.3d 455,
2020 WL 6197405, *3-4 (Pa.Super. October 22, 2020)
(non-precedential decision).

Turnpaugh Chiropractic Health & Wellness Ctr., P.C. v. Erie Ins. Exch.,

297 A.3d 404, 412 (Pa.Super. 2023) (cleaned up).

Here, Domino’s asserted pretrial that it was entitled to judgment as a

matter of law because the Coryells had “not produced any evidence or

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documents to support the allegations in their Amended Complaint against

[Domino’s].” Domino’s Motion for Summary Judgment, 3/2/20, at ¶ 44.

Citing not only the 2006 Franchise Agreement and the 2016 operating

standards, but also the affidavits and depositions of its employees and the

franchisee, Domino’s maintained that “the evidence and documents produced

show that [Domino’s] has never had any right to, nor did it ever participate in

the hiring, training and/or supervising of the individuals [that Robizza]

employed,” and thus “[t]he evidence simply does not indicate any liability for

this motor vehicle accident on the part of [Domino’s].” Id. at 47- 48.

Hence, Domino’s moved for summary judgment on the basis that the

Coryells failed to produce sufficient evidence to support their claim of the

vicarious liability of Domino’s, and, after the motion was denied, the case

proceeded to trial on the same claim raised in the summary judgment motion.

Pursuant to Whitaker, Xtreme, Yoder, and Turnpaugh, this Court’s duty

on appeal is to examine the trial evidence to determine whether Domino’s was

entitled to JNOV, not to review the pretrial denial of summary judgment upon

the then-extant record.

The majority opts to rely upon Windows, Krepps, and the non-

precedential decision in Brownlee to address the prior denial of summary

judgment rather than the countervailing authority of Whitaker, Xtreme,

Yoder, and Turnpaugh. I would follow the latter, more recent cases as

presenting the sounder approach, as it is in accord with well-settled law on

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the analogous challenges to evidentiary sufficiency in criminal cases.1

Accord, e.g., Commonwealth v. Lee, 662 A.2d 645, 650 (Pa. 1995)

(holding subsequent conviction at trial rendered moot challenge to denial of

pretrial motion for habeas corpus relief on the basis that the Commonwealth

failed to proffer sufficient evidence to establish a prima facie case);

Commonwealth v. Taylor, 596 A.2d 222, 225 (Pa.Super. 1991) (observing

that, to obtain appellate review of the denial of a pretrial challenge to the

sufficiency of the evidence to warrant a trial, the defendant must immediately

petition for an interlocutory appeal by permission, as the issue is mooted by

the subsequent proffer of sufficient evidence at trial).

If Domino’s wished to seek appellate review of the denial of its motion

for summary judgment before trial, it could have sought permission to file an

interlocutory appeal pursuant to 42 Pa.C.S. § 702(b). See Turnpaugh,

supra at 412 (Pa.Super. 2023). By electing to instead proceed to trial,

Domino’s allowed the pretrial sufficiency challenge to become moot. However,

it properly preserved the issue of whether the facts of this case as established

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1 While my perspective aligns with that of Whitaker, Xtreme, Yoder, and

Turnpaugh, I concede that our jurisprudence has been inconsistent.
Accordingly, the resolution of the issue by an en banc panel of this Court would
ease the lingering confusion among the bench and bar. Considering our
omnipresent effort to find consistency in the law, I believe that it is time for
this Court to resolve this dissonance so that all similarly-situated litigants are
treated the same.

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at trial were sufficient to give rise to vicarious liability by raising the claim in

its motion for JNOV.

I find the majority’s insistence upon reviewing the summary judgment

determination under these circumstances perplexing due to the complete lack

of necessity for it given the framework the majority opts to employ. The

majority opines that this case presents a purely legal question because the

evidence whose sufficiency is at issue consists only of the parties’ written

agreements, and not any disputed facts established through testimony or

other documents. The majority further expressly acknowledges that same

standard of review applies to denial of summary judgment or JNOV when a

pure question of law is presented. See Majority Opinion at 15. Consequently,

the majority’s pronouncements on the post-trial reviewability of summary

judgment amount to mere dicta. In my view, this gratuitous further-

muddying of already-murky waters is as injudicious as it is unwarranted.2

Were the majority correct that we faced a purely legal issue in this case,

the prevailing reason for precluding post-verdict review of the denial of a

motion for summary judgment, i.e., the preeminence of the trial record, would

____________________________________________

2 The majority goes so far as to suggest that it would be unfair not to review

the summary judgment motion in this case because there was some precedent
upon which the parties could have selectively relied in deciding to proceed to
trial rather than pursuing a permissive interlocutory appeal. See Majority
Opinion at 13. I find this contention both baseless, since no right to review
was lost here, and ill-advised, insofar as it encourages litigants to ignore
countervailing precedent, of which there was plenty in this case, and to argue
that this Court is somehow thereby estopped to apply it.

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be diminished significantly. However, I disagree with the majority’s holding

on this front as well. In my view, the nature of the parties’ relationship is a

mixed question of law and fact which, in this instance, was properly submitted

to the jury.

When the determination of whether a legal threshold or definition has

been met varies from case to case, with the answer depending upon the

particular set of facts involved, then the issue is a mixed question of law and

fact. See, e.g., J.S. by M.S. v. Manheim Twp. Sch. Dist., 263 A.3d 295,

305 n.11 (Pa. 2021) (noting whether a statement constitutes a punishable

true threat is a mixed question of law and fact); Messina v. E. Penn Twp.,

62 A.3d 363, 366 (Pa. 2012) (observing that issue of whether an ordinance

was invalid based upon failure to readvertise after changes were made to a

zoning map presented mixed questions of law and fact); Gentex Corp. v.

W.C.A.B. (Morack), 23 A.3d 528, 534 (Pa. 2011) (concluding that question

of adequate notice presented a mixed question of law and fact and, “[a]s this

issue is significantly fact driven, great deference is to be given to the lower

tribunal’s determinations”); Commonwealth v. Crawley, 924 A.2d 612,

615–16 (Pa. 2007) (holding that whether a petitioner fit the definition of

“mental retardation” was a fact-intensive mixed question of law and fact).

The standard of review for mixed questions of law and fact “must be

evaluated on an issue-by-issue basis” because “some mixed questions are

more heavily weighted toward fact, while others are more heavily weighted

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towards law.” Id. at 615. “The more fact intensive a determination is, the

more deference a reviewing court should give the conclusion below.” Id. at

615-16.

The issue before us is whether Domino’s was properly determined to be

vicariously liable for the negligence of its franchisee’s employee. As our

Supreme Court has explained:

Vicarious liability, sometimes referred to as imputed negligence,
means in its simplest form that, by reason of some relation
existing between A and B, the negligence of A is to be charged
against B although B has played no part in it, has done nothing
whatever to aid or encourage it, or indeed has done all that he
possibly can to prevent it. Once the requisite relationship (i.e.,
employment, agency) is demonstrated, the innocent victim has
recourse against the principal, even if the ultimately responsible
agent is unavailable or lacks the ability to pay.

Green v. Pennsylvania Hosp., 123 A.3d 310, 316 (Pa. 2015) (cleaned up).

In determining whether the relationship between two parties triggers

vicarious liability, the focus is on the control that the purported principal has

over the purported agent “with respect to his physical conduct in the

performance of the services for which he was engaged[.]” Cox v. Caeti, 279

A.2d 756, 758 (Pa. 1971).

The hallmark of an employee-employer relationship is that the
employer not only controls the result of the work but has the right
to direct the manner in which the work shall be accomplished; the
hallmark of an independent contractee-contractor relationship is
that the person engaged in the work has the exclusive control of
the manner of performing it, being responsible only for the
result[.]

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Green v. Indep. Oil Co., 201 A.2d 207, 210 (Pa. 1964). Phrased differently,

“[a] servant is an agent whose physical conduct in the performance of the

service is controlled or is subject to the right of control by the master; that is,

a master controls not only the results of the work, but the manner in which

the work is to be performed.” Juarbe v. City of Philadelphia, 431 A.2d

1073, 1076 (Pa.Super. 1981). “It is the element of continuous subjection

to the will of the principal which distinguishes the agency agreement from

other agreements.” Myszkowski v. Penn Stroud Hotel, Inc., 634 A.2d

622, 626 (Pa.Super. 1993) (cleaned up, emphasis in original).

In the context of a franchisor-franchisee relationship, the question of

the agency is answered by examining “whether the alleged master has day-

to-day control over the manner of the alleged servant’s performance.” Id. If

an agreement gives the principal the right to control the agent’s day-to-day

performance, then it matters not whether the principal actually exercised that

right. See Coleman v. Bd. of Ed. of Sch. Dist. of Philadelphia, 383 A.2d

1275, 1279 (Pa. 1978) (“The test is thus framed in terms of the right and

power to exercise such control, not in terms of whether the right and power

were actually exercised or whether they were delegated to another.”).

However, evidence of actual control exerted by the principal outside of the

parties’ agency agreement may also establish a level of control that gives rise

to vicarious liability. See George v. Nemeth, 233 A.2d 231, 233 (Pa. 1967)

(“Although the Distribution Agreement signed by Nemeth and Freihofer

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specifically refers to their relationship as being one of an independent

contractor, this is not determinative of the matter for it is the actual practice

between the parties which is crucial.”).3

The above case law manifestly indicates that whether Domino’s exerted

sufficient control over Robizza to render it vicariously liable for the Coryells’

damages is a mixed question of law and fact. Indeed, I posit that the nature

of the relationship between Robizza and Domino’s is such a fact-intensive

inquiry that we are bound to give great deference to the decision below. See

Crawley, supra at 615–16. Further, it is well-settled that “[i]f the facts as

to such relationship are in dispute, it is the function of a jury to determine

the precise nature of the relationship between the parties[.]” Cox,

supra at 758 (emphasis added) (citing Feller v. New Amsterdam Cas. Co.,

70 A.2d 299, 300 (Pa. 1950)). See also Juarbe, supra at 1076 (same). It

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3 At times, the majority acknowledges that the issue in the case sub judice is

what the actual relationship was between Domino’s and Robizza, not how the
Franchise Agreement chose to characterize it. See Majority Opinion at 25,
30. Yet the majority also suggests that our task is to determine whether the
Franchise Agreement unambiguously calls for a finding of vicarious liability, as
if we were deciding the parties’ rights and obligations to each other pursuant
to their contract. Id. at 14-16. There is no question here that the Franchise
Agreement plainly states that the parties intended for Robizza to be an
independent contractor. However, while the parties could agree to indemnify
each other for third-party claims, their agreement has no bearing upon the
Coryells’ ability to hold Domino’s vicariously liable for Robizza’s negligence if
Domino’s, in fact, had sufficient control over Robizza through its rights under
the agreement, its various operating standards, and its actual practices to
establish an agency relationship. Hence, the lack of contractual ambiguity as
to the parties’ characterization of their relationship is a red herring.

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is only “where the facts are not in dispute, [that] the question of the

relationship becomes one for determination by the court[.]” Cox, supra at

758.

Having a jury determine the existence of vicarious liability is hardly a

rarity. Quite the opposite, “[o]rdinarily, the question of the existence of a

principal-agent or master-servant relationship is one of fact for the jury to

determine.” Breslin by Breslin v. Ridarelli, 454 A.2d 80, 82 (Pa.Super.

1982) (emphasis added). Pennsylvania Courts have long and oft approved

submitting to the jury the question of the existence of a master-servant or

principal-agent relationship. See, e.g., Tonsic v. Wagner, 329 A.2d 497,

501 (Pa. 1974) (holding question of whether a hospital, in addition to

operating surgeon, was liable as a master for the negligence of its personnel

during an operation involved “issues of fact which should have been submitted

to the jury with proper instructions”); Brown v. Shirks Motor Exp., 143 A.2d

374, 379 (Pa. 1958) (holding trial court properly assigned to the jury the

question of whether tortfeasor was working in the course and scope of his

employment with his employer at the time of his negligence or he had been

under control of a different master); Kissell v. Motor Age Transit Lines, 53

A.2d 593, 596 (Pa. 1947) (same); Rosen v. Diesinger, 158 A. 561, 562 (Pa.

1932) (same); Consol. Rail Corp. v. ACE Prop. & Cas. Ins. Co., 182 A.3d

1011, 1027 (Pa.Super. 2018) (reversing grant of summary judgment because

whether a principal-agent relationship existed presented a jury question);

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Lynn v. Cepurneek, 508 A.2d 308, 316 (Pa.Super. 1986) (quoting Dunmire

v. Fitzgerald, 37 A.2d 596, 599 (Pa. 1944)) (“Where, as here, it is not

entirely clear who was the controlling master and different inferences in that

regard can fairly be drawn from the evidence, it is for the jury, not the court,

to determine agency.” (cleaned up); Simmons v. St. Clair Mem’l Hosp.,

481 A.2d 870, 874 (Pa.Super. 1984) (holding trial court erred in not permitting

the jury to determine the relationship between the parties for, while the

evidence of agency “may have been tenuous,” there was a factual dispute for

the jury).

I submit that the trial court in the instant case properly tasked the jury

with deciding whether Domino’s had de facto or de jure control over Robizza

such that Robizza was the agent of Domino’s for purposes of vicarious liability.

Indeed, a review of Domino’s motion for JNOV and the Coryells’ response

readily reveals the conflicting facts presented at trial.

In arguing that it was entitled to judgment notwithstanding the jury’s

contrary verdict, Domino’s contended that the evidence at trial was not

“sufficient to sustain the jury’s verdict . . . finding that Domino’s, as a

franchisor, is vicariously liable for the acts or omissions of the employees of

its franchisee, Robizza[.]” Motion for Post-Trial Relief, 8/23/21, at 2.

Asserting that there was no proof that Domino’s had a right to control, or

actually exercised control over, the day-to-day operations of the franchise,

Domino’s cited the Franchise Agreement; the trial testimony of Jason Dawson,

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who owned franchisee Robizza; the trial testimony of Jason Devereaux,

Domino’s director of franchise services; and the video deposition of January

Shook, the Domino’s area leader responsible for enforcing the Franchise

Agreement with Robizza.

Domino’s highlighted provisions of the Franchise Agreement that: (1)

placed sole responsibility for training employees; (2) indicated no

modifications to operating standards would alter the franchisee’s status under

the agreement; (3) stipulated that the franchisee must directly supervise the

store; and (4) identified the parties as independent contractors. Id. at 10

(citing, inter alia, Franchise Agreement, 8/15/06, at ¶¶ 10.2, 15.4, 15.6,

22.8). Regarding that last point, ¶ 22.8 of the Franchise Agreement defined

the parties’ relationship as follows:

The parties to this Agreement are independent contractors and no
training, assistance or supervision which we may give or offer to
you shall be deemed to negate such independence or create a
legal duty on our part. We shall not be liable for any damages to
any person or property arising directly or indirectly out of the
operation of the Store, including but not limited to those damages
which may occur while your employees are making or returning
from making deliveries, or arising out of your delivery service
policies. Nor shall we have any liability for any taxes levied upon
you, your business, or the Store. The parties further acknowledge
and agree the relationship created by this Agreement and the
relationship between us is not a fiduciary relationship nor one of
principal and agent. Furthermore, we have no relationship with
your employees and have no rights, duties, or responsibilities with
regard to their employment by you. You acknowledge and agree
that you do not have the authority to act for or on behalf of us or
to contractually bind us to any agreement. No party to this
Agreement shall have any authority to assume any liability for the
acts of the other, or to alter the legal relationships of the
other. . . .

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Franchise Agreement, 8/15/06, at ¶ 22.8.

Domino’s further cited Mr. Dawson’s testimony that he “at all times

solely owned Robizza and operated it ‘as an independent business[;]’” that

“Robizza leased the premises and paid all of its own bills, expenses, and

taxes[;]” and that all of the food was “made from ingredients owned by

Robizza in equipment that Robizza owned and [was] sold at prices set by

Robizza directly to its customers.” Motion for Post-Trial Relief, 8/23/21, at 6

(quoting N.T. Trial, 8/4/21(AM), at 71, 82-88, 97-100). Domino’s also relied

upon Ms. Shook’s testimony in asserting that Domino’s never had an employee

working at the store, that “Mr. Dawson exclusively recruited, hired, trained,

scheduled, supervised, and paid all of Robizza’s employees” because Robizza

was solely responsible for those matters, and that “Domino’s was only present

in the Robizza store three to five times a year for approximately an hour at a

time for a quality review of Robizza’s operations.” Id. at 6-7 (citing

Videotaped Deposition of January Shook, 7/27/21, at 72, 86-103). Domino’s

additionally highlighted Mr. Devereaux’s testimony contrasting the operation

of Robizza’s store from those owned by Domino’s. In particular, Mr.

Devereaux indicated that all of the employees, including drivers, in corporate-

owned stores are directly hired, trained, and supervised by Domino’s. Id. at

7 (citing N.T. Trial, 8/5/21(AM), at 43-44).

In their response to Domino’s motion for JNOV, the Coryells pointed to

testimony from these same witnesses suggesting that, despite all the

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declarations of Robizza’s independence, Domino’s had the right to, and did,

dictate not just the results that Robizza produced, but also the precise manner

in which Robizza achieved them. For example, Mr. Dawson and Ms. Shook

both testified that Domino’s had the right pursuant to the Franchise

Agreement to set standards that Robizza was mandated to follow. See Brief

in Opposition to Post-Trial Motion, 9/13/21, at 14 (citing N.T. Trial,

8/4/21(AM), at 50-51; Videotaped Deposition of January Shook, 7/27/21, at

24-25). Mr. Devereaux testified that Domino’s exercised its contractual right

by adopting not only product standards to ensure the quality of food

associated with the Domino’s brand, but operating standards that mandated

how Robizza would operate its store. Id. at 14-15, 22 (citing N.T. Trial,

8/5/21(AM), at 9-16). These standards could be changed by Domino’s at any

time, without Robizza’s approval, to dictate Robizza’s operations. Id. (citing

N.T. Trial, 8/5/21(AM), at 13-14). Specifically, Domino’s issued operating

standards in July 2016, nearly ten years after the parties entered into the

Franchise Agreement, that Robizza was required to abide by. Id. (citing N.T.

Trial, 8/5/21(AM), at 13; Videotaped Deposition of January Shook, 7/27/21,

at 8). Mr. Dawson testified that these standards governed the day-to-day

operations of the Robizza store. Id. at 21 (citing N.T. Trial, 8/4/21(AM), at

99).

Along with this testimony, the Coryells introduced the fifty-page 2016

operating standards. This document provided rules governing such extensive

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areas of operation as how long employees’ fingernails and facial hair could be;

the size and amount of employees’ jewelry; when the store must be cleaned

and what types of supplies were permitted; methods of acceptable payment

by customers; what topics must be covered in employee training; how much

cash, including personal funds, driver were permitted to carry in the delivery

vehicles; and that drivers not carry mace or other types of personal protection

in the delivery vehicles. Id. at 17-20.

I posit that the above demonstrates that there was conflicting evidence

of the nature of Robizza’s relationship with Domino’s such that it was for the

jury to evaluate that evidence and decide, upon applying the trial court’s

instructions as to the law, whether Domino’s actually exerted, or had the

authority to exert, control over the day-to-day operations of the Robizza

Domino’s store to make Domino’s vicariously liable for the negligence of a

Robizza employee.

Moreover, even if the trial court did err in allowing the jury to resolve a

question of law in reaching its verdict, the error was plainly harmless, as the

trial court in its opinion expressed its wholehearted agreement with the jury’s

conclusion. See Trial Court Opinion, 4/18/22, at 11 (concluding that “there

was overwhelming evidence” that Robizza was not “free to operate under the

agreement in any way other than in a master/servant relationship”). See

also Schneider v. Girard Tr. Bank, 218 A.2d 259, 260 (Pa. 1966) (“If this

be error, it is harmless error since the lower court, in its opinion for the court

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en banc, indicated that had it chosen to resolve the ambiguity presented by

the agreements its decision would have been the same as that of the jury.”).

Turning to the question of whether Domino’s was entitled to judgment

notwithstanding the jury’s verdict, I observe that the following standard of

review pertains:

[W]e review the denial of a request for JNOV for an error of law
that controlled the outcome of the case or an abuse of discretion.
In this context, an abuse of discretion occurs if the trial court
renders a judgment that is manifestly unreasonable, arbitrary or
capricious; that fails to apply the law; or that is motivated by
partiality, prejudice, bias or ill-will.

When reviewing the denial of a request for JNOV, the appellate
court examines the evidence in the light most favorable to the
verdict winner. Thus, the grant of JNOV should only be entered
in a clear case.

There are two bases upon which a movant is entitled to JNOV:
one, the movant is entitled to judgment as a matter of law, and/or
two, the evidence was such that no two reasonable minds could
disagree that the outcome should have been rendered in favor of
the movant. When an appellant challenges a jury’s verdict on this
latter basis, we will grant relief only when the jury’s verdict is so
contrary to the evidence as to shock one’s sense of justice.

Turnpaugh, supra at 413 (cleaned up).

My review of the record reveals the jury’s verdict to be contrary to

neither to the law nor the evidence. Rather, I agree with the amicus curiae

Pennsylvania Association for Justice that “[i]t is difficult to imagine how

Domino’s” is able to assert that there was “no evidence in the record that

Domino’s exercised actual control over the daily operations of Robizza’s

business” unless Domino’s believes that actual control “means having a person

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from Domino’s corporate offices physically present in the store telling

everyone to do at every moment.”4 Brief of Amicus Curiae at 23 (quoting

Domino’s brief at 18).

The Domino’s Franchise Agreement and operating standards left Robizza

with practically no discretion how to conduct the day-to-day operations of its

franchise store. In addition to the mandates discussed above, Domino’s also:

(1) specified the terms of the store’s lease and site plan, with the right to

order refurbishment, and the operating hours of the store; (2) commanded

the use of a specific IBM, Inc. platform for accepting and processing

employment applications; (3) forbade the hiring of employees who had tattoos

or “unprofessional” body modifications that could not be covered while

detailing the colors and style of clothes employees could wear and when they

could and could not wear them; (5) specified a list of acceptable computer

and server models and processing speeds; (6) obligated the franchisee to

maintain records of weekly or monthly sales, bank deposits, cancelled checks,

and statements, receipts for food purchased, counts of types of pizzas sold;

(7) outlawed the promotion of free delivery; required the use of approved

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4 The amicus observes that “[t]here is reason to believe [that] this is exactly

what Domino’s means,” as Domino’s argues as follows: “A representative of
Domino’s was present in the store only about five hours per year to observe
(but not to direct) Robizza’s operations. Those circumstances hardly
constitute daily operational control that ‘continuously subjugated’ Robizza to
the will of Domino’s.” Brief of Amicus Curiae at 23 n.1 (quoting Domino’s brief
at 26).

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types of a safe in the store and the deposit therein of anything more than

$150 that could be kept in the cash registers; (8) preluded the use of delivery

vehicles with “excessive” wear and tear or debris; (9) mandated that the store

feature at least three telephones and digital clocks viewable from various

areas of the store; (10) banned the presence of gaming machines or any form

of literature not related to work; and (11) required employees to deal with

complaining customers by “apologiz[ing], giv[ing] them what they want, [and]

giv[ing] them something extra.” See Domino’s Pizza Operating Standards,

7/16. Critically, violation of these operating standards, observed upon

unannounced inspections that Domino’s had the right to conduct at any time,

subjected Robizza to termination of its franchise. See Franchise Agreement,

8/15/06, at ¶ 18.2.2.

To me, it is plain that this is not a franchisor-franchisee relationship like

the one at issue in Myszkowski, where the franchisee paid Best Western a

flat fee to use the trademark, contributed to advertising, and was otherwise

free to operate the hotel as they saw fit so long as it did not fall below

minimum quality standards. See Myszkowski, supra at 626-27. Nor did

Robizza have the type of day-to-day control as the franchisee in Green v.

Independent Oil Co. who was obligated to purchase all fuel and oil from the

franchisor, but was permitted to sell other wares of his choosing, keep all

profits, and handle all matters of employing store workers. See Green v.

Indep. Oil Co., supra at 210.

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As detailed above, Domino’s used its operating standards to

continuously subjugate Robizza to Domino’s will as to the minutia of the

store’s staffing and daily operation far beyond the minimum quality threshold

addressed by the product standards. The Franchise Agreement specified that,

rather than merely pay a yearly fee or buy supplies from the franchisor,

Robizza was obligated to pay Domino’s a set percentage of Robizza’s weekly

receipts. See Franchise Agreement, 8/15/06, at ¶ 6.1. Further, Domino’s

retained the right to require Robizza to give it access to Robizza’s bank

account to allow Domino’s to transfer to itself royalty fees and advertising

contributions. Id. at ¶ 6.4.

Consequently, the instant relationship is far more akin to that at issue

in Juarbe, in which this Court held the trial court erred in granting judgment

as a matter of law to the franchisor. We required the case to be submitted to

the jury to determine vicarious liability based upon the following:

[I]t cannot be said that a clear co-equal independent contractor
relationship exists where there is evidence that one party can:
randomly inspect the other’s operation; compel him to keep it neat
and orderly; control his hours of operation; control the type and
appearance of clothing worn by him and his employees; require
him to adjust customer grievances; set the prices he must charge;
specify the quantity and quality of products he must dispense but
yet have sole discretion on delivery and allocation of such
products; prohibit him from posting unauthorized signs; and
compel him not to sell products of a competitor. When such
powers are maintained under the threat of a termination of the
operator’s lease and business at the end of a brief term, Exxon’s
exercise of substantial control is evident.

Juarbe, supra at 1078.

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In sum, it is readily apparent to me that the judgment entered upon the

jury’s verdict in this case is sound. Domino’s control over Robizza was

sufficiently robust and extensive to deem Robizza its servant or agent for

purposes of vicarious liability for the negligence of Robizza’s employee.5

Therefore, I would affirm the trial court’s denial of Domino’s motion for JNOV,

and so must respectfully dissent.

____________________________________________

5 The majority notes that its finding that Domono’s did not exert sufficient
control to establish an agency relationship with its franchisee is in accord with
decisions in other states. See Majority Opinion at 45-46 n.16 (collecting
cases). I am similarly able to offer authority from other jurisdictions in support
of my position that Domino’s did establish a principal-agent relationship
through its pervasive control over the franchisee. See Domino’s Pizza, LLC
v. Wiederhold, 248 So.3d 212, 222 (Fla. Dist. Ct. App. 2018) (affirming
jury’s finding that Domino’s exerted sufficient control to be vicariously liable
for the delivery driver’s accident and declining Domino’s “invitation for this
Court to reweigh the evidence or recharacterize its control as being limited to
brand maintenance activities”). See also Viado v. Domino’s Pizza, LLC,
217 P.3d 199, 207 (Or. App. 2009) (holding a reasonable jury could conclude
that “Domino’s exercised sufficient control over [its franchisee] to establish an
agency relationship,” although ultimately the court ruled that vicarious liability
did not follow based upon the specific-instrumentalities paradigm that the
majority acknowledges is not the law in Pennsylvania).

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