Bonds, J. v. GMS Mine Repair ( 2020 )

J. A02039/20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
JOSEPH A. BONDS, INDIVIDUALLY : IN THE SUPERIOR COURT OF
AND ON BEHALF OF ALL OTHERS : PENNSYLVANIA
SIMILARLY SITUATED :
:
v. :
:
GMS MINE REPAIR & MAINTENANCE, :
INC., : No. 1273 WDA 2019
:
Appellant :
Appeal from the Judgment Entered August 9, 2019,
in the Court of Common Pleas of Washington County
Civil Division at No. 2015-CV-6310
BEFORE: SHOGAN, J., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 24, 2020
Appellant, GMS Mine Repair & Maintenance, Inc. (“GMS”) (defendant
below), appeals from the judgment1 entered on August 9, 2019, in favor of
appellees, Joseph A. Bonds, individually and on behalf of all others similarly
situated (“the class”) (plaintiffs below), in the Court of Common Pleas of
Washington County. After careful consideration, we affirm.
We take the underlying facts and procedural history from our review of
the certified record and the trial court’s August 12, 2019 opinion.
1 In the caption of their brief, GMS purports to appeal from the order denying
its post-trial motions. However, an appeal does not lie from the denial of
post-trial motions. Jackson v. Kassab, 812 A.2d 1233, 1233 n.1 (Pa.Super.
2002), appeal denied, 825 A.2d 1261 (Pa. 2003) (parallel citation omitted).
We have amended the caption accordingly.
J. A02039/20
On August 23, 2013, a class action complaint
identifying Joseph Bonds as an individual plaintiff was
filed in Federal Court in the Western District of
Pennsylvania. 25 months later (9/23/2015), after
substantial pre-trial litigation, Senior District Judge
Terrence F. McVerry partially granted GMS’ motion for
summary judgment. Judge McVerry granted
summary judgment as to [the class’] claim of a
violation of the [f]ederal Fair Labor Standards Act
(FLSA). Judge McVerry denied summary judgment as
to the [class’] state related claims. Also,
Judge McVerry denied both the [the class’] motion for
class certification pursuant to FRCP 23 and GMS’
motion for decertification of a conditionally certified
collective action. Judge McVerry declined to exercise
supplemental jurisdiction over the [class’] state law
claims.
On October 1, 2015, this matter was transferred to
the Court of Common Pleas of Washington County.
On November 18, 2015, [the class] filed a [s]econd
[a]mended [c]omplaint asserting claims that
included: breach of contract; unjust enrichment and
violations of the Pennsylvania Minimum Wage Act
(PMWA) [43 P.S. §§ 333.101-115] for which they
sought relief under the Pennsylvania Wage Payment
and Collection Law (WPCL) [43 P.S. 260, et seq.]. On
January 30, 2017, the Hon. Damon Faldowski granted
[the class’] motion for class certification.
On December 12, 2017, Judge Faldowski denied GMS’
summary judgment motion. In a well-reasoned
opinion that reflected a clear understanding of the
principles of federalism, Judge Faldowski concluded
that [the class’] PMWA claim did not fail “simply
because the FLSA claim has already been disposed of
by the federal court.” Citing the published opinions of
multiple [f]ederal [d]istrict [c]ourt [j]udges,
Judge Faldowski noted that the PMWA provides more
protection for employees than the FLSA, which was
intended to “establish a national floor under which
wage protections cannot drop. . .”[.]
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On February 5, 2018, this trial court granted
GMS’ motion to certify for interlocutory appeal
pursuant to 42 Pa.C.S.[A.] § 702(b). The issue
certified was whether the pre-shift and post-shift
activities in this case constituted compensable “work”
under the PMWA. On March 28, 2018, the
Pennsylvania Superior Court refused to grant
GMS’ interlocutory appeal.
Following jury selection on September 17, 2018, the
parties proceeded to trial between September 24
through 26, 2018. Much of the trial evidence
consisted of testimony of class members
Joseph Bonds, Luke Horvath, Shane Baker,
Joshua Wade, Timothy Cramer and Joshua Roth, all of
whom worked for GMS at Consol Enlow Fork Mine.
Mr. Bonds, the class representative, described the
hiring process with GMS. After filling out an on-line
application, he attended an interview at a GMS work
trailer in Waynesburg, Pennsylvania. GMS hired him
to do underground mining. He received a “verbal” but
not written offer of employment with GMS. Mr. Bonds
was hired as [an] hourly worker to work shifts,
designated in 8 hour increments. Mr. Bonds stated
that he and other GMS miners were required to attend
pre-shift safety meetings. After starting work at the
Enlow Fork Mine, Consol determined that the parking
lot nearest to the mine’s bathhouse could no longer
be used by GMS employees. In April of 2012, GMS
employees were directed to park at a satellite lot
located “at the top of the hill” some distance from the
bathhouse. GMS responded by initially directing their
employees to arrive at the premises 15 minutes
earlier for scheduled shifts. 30 to 45 days later, GMS
changed the report time to thirty minutes prior to the
miners’ scheduled shift. GMS workers were not
permitted to walk from the satellite parking lot to their
customary reporting location. GMS workers were also
not permitted to have a Consol worker transport them
from the satellite lot to the bathhouse or to have a
spouse drop them off at the bathhouse.
The class members testifying at trial all indicated that
GMS workers for all shifts were required to report 15,
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and then shortly thereafter, 30 minutes prior to their
shift for the purpose of getting onto a GMS shuttle
which then transported them to the Consol Mine
bathhouse. Those miners who failed to make the
shuttle on time were disciplined or sent home.
Post-shift, GMS Miners were required to wait between
10 and 30 minutes for a shuttle to take them to a
satellite parking lot. GMS Supervisor, B.J. Gales, told
Mr. Bonds and other miners that no payment would
be made for additional pre and post shift time the
miners were required to be on premises. No payment
was made for the early report time or mandated
attendance at pre-shift safety meetings which
occurred two to three times per week.
At the close of all evidence, this trial court granted a
directed verdict in favor of GMS with regard to [the
class’] unjust enrichment claim. Further, this trial
court decided that the jury should first determine the
[c]lass’ liability claims and special interrogatories
regarding the amounts of time [the class] was
required to work pre and post shift.
Following several hours of deliberation, the jury found
for [the class]. Specifically, the jury determined that:
1. [The class] proved by a preponderance of
the evidence that GMS violated the
Pennsylvania Minimum Wage Act of 1968.
2. The [c]lass proved by a preponderance of
the evidence that the van report time was
15 minutes before the stated shift for
30 days.
3. The [c]lass proved by a preponderance of
the evidence that each member was
required to work 15 minutes per shift
before the shift while the van report time
was 15 minutes before the stated shift.
4. The [c]lass proved by a preponderance of
the evidence that the van report time was
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30 minutes before the stated shift for
687 days.
5. The [c]lass proved by a preponderance of
the evidence that each member was
required to work 30 minutes per shift
before the shift while the van report time
was 30 minutes before the stated shift.
6. The [c]lass proved by a preponderance of
the evidence that each member was
required to work 15 minutes per shift after
the shift from April 27, 2012 through
April 14, 2014.
7. The [c]lass proved by a preponderance of
the evidence that GMS breached an oral
contract by failing to pay the class
members for pre-shift and/or post-shift
time.
8. Regarding the Breach of Contract
damages, the jury repeated findings
2 through 6.
This trial court bifurcated the issue of a proper
calculation of the [class’] damages.[Footnote 3] At
post-verdict conferences on October 5, 2018,
November 14, 2018 and November 16, 2018, the
parties and this trial court discussed the appropriate
manner in which to proceed regarding the calculation
of [the class’] damages. At the November 16, 2018
conference, GMS [c]ounsel conceded that incomplete
wage and hour records had been supplied to [the
class]. This trial court denied [the class’]
corresponding motion for sanctions due to GMS’
non-disclosure as it appeared to be an unintentional
error.
[Footnote 3] On several occasions prior to
trial, [c]ounsel for GMS argued that a
bifurcation of the damages calculation
was necessary.
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Ultimately, on April 16, 2019, the parties stipulated to
an amount of “wage damages.” The parties stipulated
to “wage damages” in the amount of $1,186,853.63
based upon the jury verdict. In addition to this
stipulated sum, [the class] also [sought] an award of
attorney’s fees and costs pursuant to 43 Pa.C.S.[A.]
§ 260.9a, liquidated damages pursuant to
43 Pa.C.S.[A.] § 260.10, and pre-judgment interest.
On July 12, 2019, the parties appeared for argument
on post-trial motions. No testimony was presented
regarding damages. Instead, on the basis of their
stipulation and respective submissions, the parties put
this matter to decision. On the basis of the parties’
post-trial motions, [the trial court determined the
following issues]:
1) The appropriate award of statutory
attorney’s fees and costs;
2) The propriety of awarding liquidated
damages;
3) The propriety of awarding post-judgment
interest;
4) Whether this trial court erred in failing to
grant summary judgment;
5) Whether this trial court erred in failing to
grant a compulsory non-suit or direct a
verdict on [the class’] PMWA/WPCL and
breach of contract claims; and
6) Whether this trial court erred in certifying
and refusing to decertify the class.
Trial court opinion, 8/12/19 at 1-8 (record citations omitted, most footnotes
omitted.)
The trial court determined the class was entitled to attorneys’ fees in
the amount of $349,865.00. (Id. at 9-14.) It awarded the class costs in the
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amount of $25,562.53. (Id. at 14.) It further held the class was owed
liquidated damages in the amount of $405,028.64. (Id. at 15-19.) It also
gave it pre-judgment interest in the amount of $418,132.07. (Id. at 20-23.)
The trial court held it properly denied GMS’ motion to decertify the class. (Id.
at 23-26.) It found GMS’ claim the trial court erred in denying summary
judgment was not “a proper subject for a post-trial motion.” (Id. at 27; see
also id. at 27-28.) Lastly, it held GMS was not entitled to either a directed
verdict and/or a judgment of non-suit. (Id. at 28-33.) The instant, timely
appeal followed.2
On appeal, GMS raises the following issues for our review:
[1. Whether the trial court] misconstrued the
statutory phrase “hours worked[?]”
[2. Whether the trial court] erred in failing to find
that the PMWA claim is precluded by collateral
estoppel[?]
[3. Whether the trial court] erred in failing to grant
summary judgment, compulsory non-suit
directed verdict, or new trial on the oral contract
claim[?]
[4. Whether the trial court] erred in failing to grant
compulsory non-suit, directed verdict, or new
trial on the PMWA claim for post-shift time[?]
[5. Whether the trial court] abused its discretion in
awarding fees incurred in another lawsuit[?]
2 The trial court did not order GMS to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and did not author
any additional opinion.
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[6. Whether the trial court] erred in awarding
liquidated damages[?]
[7. Whether the trial court] abused its discretion in
awarding pre-judgment interest[?]
GMS’ brief at 2.3
3 We note GMS raised seven issues in its statement of the questions involved,
and, if you consider each of the subparts in issue one to be separate issues,
eleven issues on appeal. While this court understands GMS believes the trial
court made numerous errors,
. . . we note that it has been held that when an
appellant raises an extraordinary number of issues on
appeal, as in this case, a presumption arises that
there is no merit to them. In United States v. Hart,
693 F.2d 286, 287 n.1 (3rd Cir. 1982), the court had
an opportunity to address this situation:
Because of the inordinate number of
meritless objections pressed on appeal,
spotting the one bona fide issue was like
finding a needle in a haystack. One of our
colleagues has recently cautioned on the
danger of “loquaciousness:”
With a decade and a half of
federal appellate court
experience behind me, I can
say that even when we
reverse a trial court it is rare
that a brief successfully
demonstrates that the trial
court committed more than
one or two reversible errors.
I have said in open court that
when I read an appellant’s
brief that contains ten or
twelve points, a presumption
arises that there is no merit to
any of them. I do not say that
this is an irrebuttable
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In its first issue,4 GMS contends the trial court, “misconstrued the
statutory phrase ‘hours worked.’” (GMS’ brief at 11.) Specifically, GMS
argues: (1) the Department of Labor (“DOL”) regulation which defines, “hours
worked” violated the Statutory Construction Act (“SCA”) (id. at 14-16);
(2) the regulation is not valid because the DOL exceeded its authority (id. at
16-20); (3) the phrase “hours worked” should be construed in accordance
with the FLSA (id. at 27-29); (4) the trial court failed to construe the phrase
“hours worked” according to its plain meaning (id. at 11-13); and (5) this
court’s decision in Lugo v. Farmer’s Pride, Inc., 967 A.2d 963 (Pa.Super.
2009), appeal denied, 980 A.2d 609 (Pa. 2009) (parallel citation omitted),
is not controlling (GMS’ brief at 20-27).5 We disagree.
presumption, but it is a
presumption nevertheless
that reduces the effectiveness
of appellate advocacy.
Appellate advocacy is
measured by effectiveness,
not loquaciousness.
Aldisert, The Appellate Bar: Professional
Competence and Professional
Responsibility—A View From the
Jaundiced Eye of One Appellate Judge, 11
Cap.U.L.Rev. 445, 458 (1982).
Estate of Lakatosh, 656 A.2d 1378, 1380 n.1 (Pa.Super. 1995).
4GMS’ brief fails to comply with the Rules of Appellate Procedure; in particular,
Rule 2119(a) (“The argument shall be divided into as many parts as there are
questions to be argued[.]”). See 42 Pa.C.S.A. § 2119.
5 For ease of disposition, we have reordered the subparts in GMS’ first issue.
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When this court engages in statutory interpretation, we must be mindful
of the following:
[a]s in all cases of statutory interpretation, our goal is
to ascertain the intent of the General Assembly in
adopting the statute. 1 Pa.C.S.[A.] § 1921(a). In
doing so, we must, if possible, give effect to all the
provisions of a statute. 1 Pa.C.S.[A.] §§ 1921, 1922.
“When the words of a statute are clear and free from
all ambiguity, the letter of it is not to be disregarded
under the pretext of pursuing its spirit.” 1 Pa.C.S.[A.]
§ 1921(b). Only when the words are ambiguous may
we look to the general purposes of the statute,
legislative history, and other sources in an attempt to
determine the legislative intent. 1 Pa.C.S.[A.]
§ 1921(c). In construing a statute, the courts must
attempt to give meaning to every word in a statute as
we cannot assume that the legislature intended any
words to be mere surplusage. Furthermore, we
should avoid construing a statute in such a way as
would lead to an absurd result. 1 Pa.C.S.[A.] § 1922.
Holland v. Marcy, 883 A.2d 449, 455-456 (Pa. 2005) (parallel citation
omitted).
In its first subpart, GMS claims, “the [DOL] regulations defining the
phrase ‘hours worked’ is an invalid statutory interpretation violative of the
SCA.” (GMS’ brief at 14; see also id. at 14-16.) In its second subpart, GMS
argues the regulation is invalid because DOL exceeded the authority delegated
to it by the legislature. (GMS’ brief at 16-20.) We disagree.
The regulation at issue is found at 34 Pa. Code § 231.1(b), which
provides in pertinent part:
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§ 231.1. Definitions.
....
(b) In addition to the provisions of subsection (a),
the following words and terms, when used in
this chapter, have the following meanings,
unless the context clearly indicates otherwise:
....
Hours worked--The term includes
time during which an employee is
required by the employer to be on
the premises of the employer, to be
on duty or to be at the prescribed
work place, time spent in traveling
as part of the duties of the
employee during normal working
hours and time during which an
employee is employed or permitted
to work; provided, however, that
time allowed for meals shall be
excluded unless the employee is
required or permitted to work
during that time, and provided
further, that time spent on the
premises of the employer for the
convenience of the employee shall
be excluded.
34 Pa. Code § 231.1(b).
In Bayada Nurses, Inc. v. Commonwealth, Dept. of Labor and
Industry, 958 A.2d 1050 (Pa.Cmwlth. 2008),6 affirmed, 8 A.3d 866 (Pa.
2010), an employer raised a challenge to the validity of this same regulation,
6 While decisions of the commonwealth court are not binding upon us, they
may serve as persuasive authority. See Commonwealth v. Ortega, 995
A.2d 879, 885 (Pa.Super. 2010), appeal denied, 20 A.3d 1211 (Pa. 2011).
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arguing the DOL engaged in an invalid exercise of legislative rulemaking power
and challenged the regulatory definition of the phrase “domestic services” as
being at odds with both the FLSA and the plain meaning of the phrase. Id. at
1054-1055. In rejecting this challenge, the commonwealth court stated:
The rules of statutory construction apply to
regulations. See Highway News, Inc. v.
Pennsylvania Department of Transportation, 789
A.2d 802 (Pa.Cmwlth. 2002). See also
Section 1921(a), (b) of the Statutory Construction Act
of 1972, 1 Pa.C.S. § 1921(a),(b) (providing that every
statute should be construed, if possible, to give effect
to all provisions with each word given meaning and
not treated as mere surplusage). Moreover, a court
may not substitute its discretion for that of the
administrative agency acting within the boundaries of
its powers, absent fraud, bad faith or abuse of power.
Rohrbaugh v. Pennsylvania Public Utility
Commission, 556 Pa. 199, 727 A.2d 1080 (1999).
In Hosp. Ass'n of Pa. v. MacLeod, 487 Pa. 516, 410
A.2d 731 (1980), the court noted that administrative
interpretations are guides to legislative intent when
not disturbed by the legislature.
Notably, the . . . regulatory definition ha[s] not
changed since [its] original enactment. . . . Hence, the
regulatory definition tracks the MWA’s meaning and
does not violate legislative intent. DRB, Inc. v.
Pennsylvania Department of Labor and
Industry, 853 A.2d 8 (Pa.Cmwlth. 2004), aff'd, 585
Pa. 8, 887 A.2d 1216 (2005).
....
In Rohrbaugh the Supreme Court explained the
distinctions between rules adopted under
administrative agencies’ legislative rulemaking power
and their interpretative rulemaking power. The
former, known as substantive rules or regulations,
result from legislative power granted by the
legislature and establish new law, rights or duties and
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“enjoy a general presumption of reasonableness.”
Borough of Pottstown v. Pennsylvania Municipal
Retirement Board, 551 Pa. 605, 610, 712 A.2d 741,
743 (1998). Regulations adopted under legislative
rulemaking power have the force of law and are
binding on reviewing courts as part of a statute as
long as they are within the granted power, issued
under proper procedures and are reasonable. Bailey
v. Zoning Board of Adjustment of Philadelphia,
569 Pa. 147, 801 A.2d 492 (2002). Interpretative
rules or regulations construe a statute and do not
expand upon its terms, and courts defer to agency
interpretations so long as they are reasonable and
genuinely track the meaning of the underlying statute.
Id.....
The legislature has not changed the definition of
domestic services in 34 Pa.Code § 231.1(b) since its
adoption in 1977. It is now firmly established that
administrative interpretations, that are not disturbed
by the legislature, represent appropriate guides to
legislative intent, Hosp. Ass'n of Pa., and in this
regard the [c]ourt acknowledges the rule expressed in
Commonwealth v. McClintic, 589 Pa. 465, 909 A.2d
1241 (2006), that the plain language of a statute
generally provides the best indication of legislative
intent. The Supreme Court has long adhered to the
principle of statutory construction that courts must
consider the consequences of a particular
interpretation and that legislative enactments are
generally construed to effectuate their object and to
promote justice. Department of Transportation v.
Beam, 567 Pa. 492, 788 A.2d 357 (2002).
The MWA grants the Department broad powers to
adopt regulations to carry out the statute’s purposes
of protecting employees from unreasonable and unfair
wages and safeguarding the established minimum
wage. Section 1 of the MWA. Under Section 9, the
Department may adopt regulations that might include
but are not limited to defining and governing matters
enumerated therein, including “overtime standards”
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and the “allowances for such other special conditions
or circumstances which may be incidental to a
particular employer-employee relationship.” When
Section 9 is construed liberally, it confers in the
Department either legislative or interpretative
rulemaking power. As such, the Department acted
properly . . . The regulation is reasonable, and it
genuinely tracks the underlying meaning of
Section 5(a)(2). Where as here the interpretation of
an agency charged with enforcing a statute is not
clearly erroneous, the interpretation is entitled to
great deference and is to be given controlling weight.
Riverwalk Casino, L.P. v. Pennsylvania Gaming
Control Board, 592 Pa. 505, 926 A.2d 926 (2007).
Id. at 1055-1058 (footnotes omitted).
Here, as in Bayada, the definition of “hours worked” has been in place
for over 40 years and has not been disturbed by the legislature. GMS does
not distinguish or even acknowledge the existence of the Bayada decision,
which our supreme court affirmed, and does not provide any legal support,
other than citations to boilerplate language on statutory interpretation, to
support its claim the DOL exceeded its authority or the definition of “hours
worked” is somehow invalid.
Moreover, while GMS relies on this court’s 1964 decision in Department
of Labor and Industry, Bureau of Employment Security v.
Unemployment Compensation Board of Review, 199 A.2d 474 (Pa.Super.
1964), which it refers to as “Vitolins,” such reliance is misplaced. Firstly,
Vitolins involved the legitimacy of a newly enacted regulation not an over
40-year-old one. Id. at 476-477. Secondly, Vitolins, which involved a
dispute over the meaning of a regulation interpreting unemployment
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compensation law, has no factual similarity to the instant matter. Id. Lastly,
at most, it stands for the proposition, “[i]t is a fundamental precept of
statutory construction that words and phrases be construed according to their
common and approved usage.” Id. at 477. However, in arriving at the
“common and approved usage” of the phrase, “net earnings,” which was at
issue, our court understood “common and approved usage” was not just the
dictionary definition of a word or phrase but instead looked to a variety of
different sources, the dictionary, accounting principles, and prior law in
determining the proper meaning and usage in professional settings. Id. at
478.
Here, GMS has not done this. Instead, it found a single dictionary
definition that supports its preferred interpretation of the phrase
“hours worked,” and concluded, again with no citation to relevant legal
authority, this definition is the only proper definition of the phrase.
(GMS’ brief at 14-16.) We find the reasoning of Bayada to be persuasive,
and GMS has offered nothing to show either the definition of the phrase
“hours worked” or the regulation in question is invalid. Thus, the first two
subparts of this issue do not merit relief.
In its third subpart, GMS maintains the phrase “hours worked” should
be construed in accordance with the FLSA. (GMS’ brief at 27-29.) There is
no legal support for this claim.
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It is well settled the purpose of the FLSA is to establish a floor for the
protections to be afforded workers within its scope. See Verderame v.
RadioShack Corp., 31 F.Supp.3d 702, 709 (E.D.Pa. 2014) (“The FLSA was
meant to establish a national floor under which wage protections cannot drop,
not to establish absolute uniformity in minimum wage and overtime standards
nationwide at levels established in the FLSA.” (citation and emphasis
omitted));7 In re Cargill Meat Solutions Wage and Hour Litigation, 632
F.Supp.2d 368, 393 (M.D.Pa. 2008) (same). This policy reflects Congress’
intent “to leave undisturbed the traditional exercise of the states’ police
powers with respect to wages and hours more generous than the federal
standards.” In re Cargill, 632 F.Supp.2d at 393 (internal quotation marks
and citation omitted). Thus, this Commonwealth has established protections
in the area of wage and hour laws that provide supplemental protections
above those afforded by the FLSA. Bayada Nurses, Inc. v. Com., Dept. of
Labor and Industry, 8 A.3d 866, 883 (Pa. 2010) (upholding more favorable
protections for domestic services workers under the PMWA and opining, “the
FLSA does not supersede state law; Pennsylvania may enact and impose more
generous overtime provisions than those contained under the FLSA which are
more beneficial to employees; and it is not mandated that state regulation be
7 We note “decisions of the federal district courts . . . are not binding on
Pennsylvania courts, even when a federal question is involved. Nevertheless,
these decisions are persuasive authority and helpful in our review of the issue
presented.” Dietz v. Chase Home Finance, LLC, 41 A.2d 882, 886 n.3
(Pa.Super. 2012).
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read identically to, or in pari materia with, the federal regulatory scheme.
Thus, we reject Bayada’s assertion that federal law compels a different result
than that reached by the Commonwealth Court.”). Thus, GMS’ contention the
phrase “hours worked” should have been construed in accordance with the
FLSA does not merit relief.
In subparts four and five, GMS takes issue with the trial court’s reliance
on this court’s decision in Lugo, supra. (GMS’ brief at 11-13; 20-29.)
GMS’ argument in these two subparts can be summarized as follows:
(1) Lugo was wrongly decided; and (2) because Lugo was wrongly decided,
we should adopt what GMS argues is the plain meaning of the phrase,
“hours worked.” (See id.) At no point does GMS attempt to distinguish this
case from Lugo.
As we emphasized to GMS at oral argument, we have no authority to
overrule Lugo. See Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa.Super.
2006) (“It is beyond the power of a Superior Court panel to overrule a prior
decision of the Superior Court, except in circumstances where intervening
authority by our Supreme Court calls into question a previous decision of this
Court.”), appeal denied, 946 A.2d 686 (Pa. 2008). Moreover,
our role as an intermediate appellate
court is clear. It is not the prerogative of
an intermediate appellate court to
enunciate new precepts of law or to
expand existing legal doctrines. Such is a
province reserved to the Supreme Court.
It is well-settled that the Superior Court is
an error correcting court and we are
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obliged to apply the decisional law as
determined by the Supreme Court of
Pennsylvania.
Matter of M.P., 204 A.3d 976, 981 n.2. (Pa.Super.
2019). Further, we “underscore[d] our role as an
intermediate appellate court,” recognizing that our
decisions “may not be disposition-driven[, and w]e
are bound by decisional and statutory legal authority,
even when equitable considerations may compel a
contrary result.” Id. Accordingly, we emphasize that
any decisional change must originate from our
Supreme Court and any statutory change must come
from the legislature.
John v. Philadelphia Pizza Team, Inc., 200 A.3d 380, 386 (Pa.Super.
2019) (some internal quotation marks and some internal citations omitted),
appeal denied, 221 A.3d 1205 (Pa. 2019).
Further, as noted above, GMS makes no attempt to distinguish this
matter from Lugo. In Lugo, we found:
the term “hours worked” has been defined as a term
of art by the regulations supporting the PMWA. It
includes all time that the worker is required by the
employer to be on the employer’s premises and
could therefore be found to include the time at issue
here for the donning, doffing, and sanitizing of
equipment. Under the circumstances of this case,
appellants could argue that the regulations
supporting the PMWA supply the meeting of the
minds because they set firm the meaning of
“hours worked.” Thus, appellants can maintain an
action for breach of contract, and the trial court should
not have sustained appellee’s preliminary objections
as to this cause of action.
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Lugo, 967 A.2d at 969 (emphasis added). In explaining how it, at all stages
of the proceedings, applied Lugo and defined “hours worked,” the trial court
stated:
[i]n this action . . . in pre-trial dispositive motions,
and . . . at trial, [the court] endeavored to faithfully
apply Lugo. In the context of the class’ PMWA claim,
this trial court provided to the jury the regulatory
definition relied upon and discussed in Lugo. Though
GMS requested an embellished definition of “hours
worked”, their request was not supported by any case
authority. This trial court did not preclude GMS from
arguing that mandated pre-shift report and post-shift
wait times were not “hours worked.”
With regard to the class’ breach of contract claim, this
trial court, during final instructions, did not define the
term “hours worked.” Instead, this trial court[]
provided the jury with suggested standard
instructions for all contracts. Such instructions[]
informed the jurors as to the requirements of an offer,
acceptance and valid consideration. Such instructions
informed the jurors that a contract need not be written
but could be verbal and its terms derived from the
parties’ conduct.
Trial court opinion, 8/12/19 at 28-29 (transcript citations and footnote
omitted.)
Thus, as GMS does not dispute Lugo’s applicability to this matter, as
our review of both Lugo and the certified record demonstrates the trial court
properly applied it, and as we have no authority to overturn Lugo, we find
GMS’ first claim to be wholly lacking in merit.
In its second issue, GMS argues the class’ claims are precluded by the
doctrine of collateral estoppel. (GMS’ brief at 29-33.) We disagree.
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The doctrine of collateral estoppel precludes relitigation of an issue
determined in a previous action where:
(1) the issue decided in the prior case is identical to
the one presented in the later action; (2) there was a
final adjudication on the merits; (3) the party against
whom the plea is asserted was a party or in privity
with a party in the prior case; (4) the party or person
privy to the party against whom the doctrine is
asserted had a full and fair opportunity to litigate the
issue in the prior proceeding; and (5) the
determination in the prior proceeding was essential to
the judgment.
Office of Disciplinary Counsel v. Kiesewetter, 889 A.2d 47, 50-51 (Pa.
2005) (citation and parallel citation omitted).
Here, GMS raised this challenge in its motion for summary judgment; in
declining to grant the motion, the trial court addressed the issue as follows:
[GMS] argues that the doctrine of collateral estoppel
precludes [the class] from pursuing their claim under
the [P]MWA. Specifically, [GMS] claims that [the
class] had the opportunity to fully litigate the [P]MWA
claim when the case was initially filed in federal court
and, since [GMS’] [m]otion for [s]ummary [j]udgment
was granted by Judge McVerry [of the United States
Court for the Western District of Pennsylvania], [the
class] cannot relitigate this claim before this [c]ourt.
. . . . It is undisputed that the parties in the matter
presently before the [c]ourt are the same parties that
participated in the proceedings in the [f]ederal
[c]ourt. However, it is clear to [the trial court] that
[the class] did not have the opportunity to fully litigate
the [P]MWA claim.
On September 23, 2017, Judge McVerry issued an
[o]pinion and [o]rder granting [GMS’] [m]otion for
[s]ummary [j]udgment. Judge McVerry determined
that the pre- and post-shift safety meetings were not
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compensable under the [FLSA]. Importantly,
Judge McVerry only decided the issues under the
federal law and expressly declined to exercise
supplemental jurisdiction over the remaining state law
claims under the WPCL and [P]MWA. In fact, and in
support of his decision to decline jurisdiction,
Judge McVerry reasoned that [the class’] WPCL and
[P]MWA claims raise novel issues of state
law.[Footnote 1]
[Footnote 1] See [m]emorandum
[o]pinion and [o]rder of [c]ourt filed
September 23, 201[5] by Judge McVerry
in the United States District Court for the
Western District of Pennsylvania.
Although Judge McVerry’s decision constitutes a final
judgment on the merits with respect to [the class’]
claims through the lens of the federal law, his decision
is not of any consequence to [its] state law claims.
[The class] ha[s] yet to have the opportunity to fully
litigate the [P]MWA claim since Judge McVerry refused
to exercise jurisdiction over the state claims.
Therefore, the doctrine of collateral estoppel is
inapplicable and [GMS’] [m]otion for [s]ummary
[j]udgment as to [the class’] PMWA claim is [denied].
Summary judgment opinion, 12/13/17 at 5-6.
In Murphy v. Duquesne University, 777 A.2d 418 (Pa. 2001) (parallel
citation omitted), the appellant filed a claim in federal court under the
Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(a), a claim
of age discrimination in employment under the Pennsylvania Human Relation
Act (“PHRA”), 43 P.S. § 951 et esq., and a common law claim for breach of
contract. Murphy, 777 A.2d at 423. As in the instant matter, the federal
court granted summary judgment for the appellee on the ADEA claim but
declined to exercise supplemental jurisdiction over the PHRA and breach of
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contract claims. Id. Subsequently, the appellant discontinued his PHRA
claim. Id. On appeal to our supreme court, the appellee argued the
appellant’s breach of contract claim was collaterally estopped by the federal
action. Id. at 435. Our supreme court rejected the claim, finding where the
federal court declined to exercise supplemental jurisdiction, it “was not
apparent” the appellant had a “full and fair opportunity” to litigate his state
law claims. Id.
Here, our review of the federal court decision demonstrates the court
specifically declined to rule on the class’ state law claims because, “the
remaining claims raise novel issues of state law.” Bonds v. GMS Mine
Repair & Maintenance, Inc., 2015 WL 5602607, at *11 (W.D.Pa. Sep. 23,
2015). In so doing, the federal court noted the United States Court of Appeals
for the Third Circuit had long expressed “serious reservations” about the
propriety of the federal court’s ruling on claims under the relevant
Pennsylvania laws. Id. Moreover, the court specifically noted GMS opposed
the court’s exercising supplemental jurisdiction over the claims, “[p]erhaps
aware of this substantive difference in the applicable law[.]” Id.We have thoroughly reviewed the law and the record and find GMS’
contention the class is estopped from bringing its state law claims to be both
disingenuous and absurd. GMS provides no legal support for their contention
when a federal court declines to exercise supplemental jurisdiction over
state-law claims, the litigant is collaterally estopped from bringing those
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claims in state court. To make such a finding would result in an untenable
situation where litigants either needed to bring claims simultaneously in state
and federal courts in order to protect their rights or face the possibility they
would have no remedy available under state law if a federal court declined to
exercise supplemental jurisdiction. GMS’ second claim lacks merit. See
Murphy, 777 A.2d at 435.
In its third and fourth issues, GMS maintains the trial court erred in
failing to grant summary judgment, a compulsory non-suit, a directed verdict,
or a new trial with respect to the breach of contract and in the PMWA claim
for post-shift time. (GMS’ brief at 33-45.) We disagree.
Initially, we note while GMS argues the trial court erred in failing to
grant any of the above, it does not include either our standard of review or
the trial court’s standard of review for any of these contentions in its brief.
Moreover, aside from citing to a few cases with respect to boilerplate contract
law standards, it does not cite to any cases which support its contentions. In
the main, its argument on this issue consists of long quotations from trial
testimony followed by GMS’ opinion that, looking at the evidence in the light
most favorable to it, the jury erred in crediting the testimony. (GMS’ brief
at 33-45.) In sum, rather than present a legal argument, GMS reargues its
case. However, this court is not a finder of fact.
As the trial court discusses in its opinion, there was “more than adequate
evidence” to put before a jury regarding GMS’ breach of an oral contract “and
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for the jury to rule in the class’ favor.” (Trial court opinion, 8/12/19 at 30.)
After reviewing the record, we see no basis to upset the trial court’s rulings
denying GMS’ preliminary objections and motion for summary judgment, and
we affirm the trial court’s order denying GMS’ post-trial motions because there
was record evidence from which the jury could reach its verdict. See Brown
v. Progressive Insurance Co., 860 A.2d 493, 497 (Pa.Super. 2004)
(“Concerning questions of credibility and weight accorded evidence at trial, we
will not substitute our judgment for that of the finder of fact.”), appeal
denied, 872 A.2d 1197 (Pa. 2005) (parallel citation omitted); see also
Commonwealth v. Hawkins, 701 A.2d 492, 501 (Pa. 1997) (the credibility
of witnesses is “solely for the jury to determine”), cert. denied, 523 U.S.
1535 (1998) (parallel citations omitted).
We acknowledge “[i]t is the function of the jury to evaluate evidence
adduced at trial to reach a determination as to the facts, and where the verdict
is based on substantial, if conflicting evidence, it is conclusive on appeal.”
Commonwealth v. Reynolds, 835 A.2d 720, 726 (Pa.Super. 2003) (internal
citation omitted). In Morin v. Brassington, 871 A.2d 844, 852-853
(Pa.Super. 2005), we declined to reweigh the evidence on appeal in a breach
of oral contract action, and affirmed the trial court’s verdict in plaintiff’s favor,
despite incredible accusations made by both parties regarding the actual
existence of the agreement. Id. The Morin court ruled it “[would] not invade
the credibility-determining powers of the fact-finder merely because the
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evidence was conflicting and the fact-finder could have decided the case either
way.” Id. at 852. Likewise, we will not “invade the credibility-determining
powers of the fact-finder” in the present case. GMS’ third and fourth claims
do not merit relief.
In its fifth issue, GMS contends the trial court erred in awarding
attorneys’ fees for work done in preparation for the federal lawsuit.
(GMS’ brief at 45-49.) However, GMS’ waived this claim.
We review this claim under the following standard. “Appellate review of
an order of a tribunal awarding counsel fees to a litigant is limited solely to
determining whether the tribunal palpably abused its discretion in making the
fee award.” Braun v. Wal-Mart Stores, Inc., 24 A.3d 875, 974 (Pa.Super.
2011), affirmed, 106 A.3d 656 (Pa. 2014) (parallel citations omitted),
cert. denied, 136 S.Ct. 1612 (U.S. 2016) (parallel citations omitted). In
general, “the manner by which attorneys’ fees are determined in this
Commonwealth, under fee-shifting provisions, is the lodestar approach.”
Krishnan v. Cutler Group, Inc., 171 A.3d 856, 903 (Pa.Super. 2017)
(citation omitted). The lodestar is the product of “the number of hours
reasonably expended on the litigation times a reasonable hourly rate.” Id.The lodestar is “strongly presumed to yield a reasonable fee.” Logan v.
Marks, 704 A.2d 671, 674 (Pa.Super. 1997). A court has the discretion to
adjust the lodestar fee in light of the degree of success, the potential public
benefit achieved, and the potential inadequacy of the private fee arrangement.
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Id. Further, the lodestar “should be reduced in proportion to time spent on
distinct claims which do not produce finding of liability. After finalizing the
lodestar, the court may then apply a multiplier, i.e., enhancement.” Braun,
24 A.3d at 975 (internal citation omitted).
Here, GMS does not dispute the award of attorneys’ fees in general, but
disputes the award of fees expended in the federal court case. (GMS’ brief at
45-49.) However, they admit they can find no legal support for their claim.
(Id. at 46 n.8.) Moreover, GMS fails to provide any detailed information
regarding the facts underlying their claim. (Id. at 45-49.) While it says the
trial court awarded “over $100,000 in attorneys’ fees for time spent
unsuccessfully litigating the FLSA claim” (GMA’s brief at 45-46), it completely
fails to specify how it arrived at the figure.
In its opinion, the trial court attached several pages of tables to the
decision showing how it parsed out the award of attorneys’ fees. (See trial
court opinion, 8/12/19 at Exhibit A.) GMS does not specify which specific fees
it is challenging. (GMS’ brief at 45-49.) We have reviewed the charts; and
our review demonstrates the trial court differentiated between time spent
working on the federal claims and time spent working on the state-law claims,
and did not award any fees for time spent on the unsuccessful FLSA claims.
(See trial court opinion, 8/12/19 at Exhibit A.) Thus, we are unable to discern
the basis of GMS’ claims.
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We remind GMS it is not this court’s responsibility to comb through the
record seeking the factual underpinnings of its claim. Commonwealth v.
Mulholland, 702 A.2d 1027, 1034 n.5 (Pa.Super. 1997) (“In a record
containing thousands of pages, this court will not search every page to
substantiate a party’s incomplete argument.”). Further, “[w]here defects in a
brief impede our ability to conduct meaningful appellate review, we may
dismiss the appeal entirely or find certain issues to be waived.” Sephakis v.
Pa. State Police Bureau of Records and Certification, 214 A.3d 680,
686-687 (Pa.Super. 2019) (holding claim waived were appellant failed to
properly develop it) (internal quotation marks and citations omitted), appeal
denied, 223 A.3d 672 (Pa. 2020). Therefore, we find GMS waived its
fifth issue.8
8 In any event, even if we were to reach the merits, we would reject
GMS’ argument. Firstly, its reliance on Hensley v. Eckerhart, 461 U.S. 424(1983) (parallel citations omitted), is misplaced. Hensley stands for the
proposition where there is a mixture of successful and unsuccessful claims,
the trial court must not award fees on the unsuccessful claims and should only
award fees “that [are] reasonable in relation to the results obtained.”
Hensley, 461 U.S. at 424. That is exactly what the trial court in the instant
matter did, as the charts attached to its decision demonstrate. (See trial
court opinion, 8/12/19 at Exhibit A.) Secondly, again, we find GMS’ attempt
to penalize the class, because the federal court declined to exercise jurisdiction
over the state-law claims, the very result GMS wanted, to be, at best,
disingenuous. The class is entitled to attorneys’ fees on the successful claims;
the fact the federal court did not exercise jurisdiction over them does not
demonstrate the claims were unsuccessful, and we see no relevance to the
fact attorneys for the class worked on them during the pendency of the case
in federal court.
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In its sixth issue, GMS complains the trial court erred in awarding
liquidated damages. (GMS’ brief at 50-60.) We disagree.
The WPCL provides in pertinent part:
Where wages remain unpaid for thirty days beyond
the regularly scheduled payday, or, in the case where
no regularly scheduled payday is applicable, for
sixty days beyond the filing by the employe [sic] of a
proper claim or for sixty days beyond the date of the
agreement, award or other act making wages
payable, or where shortages in the wage payments
made exceed five percent (5%) of the gross wages
payable on any two regularly scheduled paydays in
the same calendar quarter, and no good faith contest
or dispute of any wage claim including the good faith
assertion of a right of set-off or counter-claim exists
accounting for such non-payment, the employe [sic]
shall be entitled to claim, in addition, as liquidated
damages an amount equal to twenty-five percent
(25%) of the total amount of wages due, or
five hundred dollars ($500), whichever is greater.
43 P.S. § 260.10. This “claim requires us to consider the proper interpretation
of § 260.10, making the issue a question of law for which our standard of
review is de novo and our scope of review is plenary.” Braun, 24 A.3d at
960 (citations omitted). This court has stated, “[t]he WPCL is not only a
vehicle for recovery of unpaid wages; it also provides for damages in the event
an employer withholds compensation in the absence of good faith.” Id. at
961 (citation omitted). If a claimant establishes wages are owed under
Section 260.10, it is the employer’s burden to establish good faith, not the
employees’ burden to establish bad faith, and the employer must prove it by
clear and convincing evidence. Id. at 961-63 (citation omitted); see also
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Andrews v. Cross Atlantic Capital Partners, 158 A.3d 123, 134 (Pa.Super.
2017) (en banc) (citation omitted).
Here, for reasons which are not apparent, GMS chose not to present any
evidence, either testimonial or documentary, regarding good faith and also
chose not to have the jury charged on this issue. (Trial court opinion, 8/12/19
at 17.) Instead, GMS decided to adopt, at the trial court, the same erroneous
legal theory they pursue here; namely, that it is not their burden to prove
good faith but rather it was the class’ burden to prove bad faith. (Id.;
GMS’ brief at 50-60.) As discussed above, this is simply not a correct
statement of law. See Braun, 24 A.3d at 961-63; see also Andrews,
158 A.3d at 134. Moreover, on appeal, GMS argues we should focus on its
litigation conduct in defining good faith; in essence saying, as long as it had a
reasonable legal basis for withholding the wages, it acted in good faith.
(GMS’ brief at 50-60.) However, in Braun, supra, we specifically rejected a
similar claim. Braun, 24 A.3d at 965-966. GMS’ claim the class was not
entitled to liquidated damages because it failed to prove bad faith does not
merit relief.
In its seventh and final issue, GMS contends the trial court erred and
abused its discretion in awarding pre-judgment interest. (GMS’ brief at
60-64.) GMS argues, in order to be entitled to pre-judgment interest, “the
contract itself” must “contain[] a fixed standard by which to calculate
damages[.]” (Id. at 63.) It notes, in the instant matter, because there was
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no written contract, the parties agreed to a compromise, based on two expert
reports, about the amount due. (Id.)
It is well-established that in a contract action, an
award of prejudgment interest does not depend upon
discretion, but is a legal right and must be awarded
despite the good faith of the party contesting the
claim. The purpose of awarding interest as damages
is:
to compensate an aggrieved party for
detention of money rightfully due him or
her, and to afford him or her full
indemnification or compensation for the
wrongful interference with his or her
property rights. The allowance of interest
as an element of damages is not punitive,
but is based on the general assumption
that retention of the money benefits the
debtor and injures the creditor.
Andrews, 158 A.3d at 136-137 (internal citations omitted).
Our review of an award of pre-judgment interest is for
abuse of discretion. Our Supreme Court has
emphasized:
When a court comes to a conclusion
through the exercise of its discretion,
there is a heavy burden to show that this
discretion has been abused. It is not
sufficient to persuade the appellate court
that it might have reached a different
conclusion, it is necessary to show an
actual abuse of the discretionary power.
An abuse of discretion will not be found
based on a mere error of judgment, but
rather exists where the court has reached
a conclusion which overrides or misapplies
the law, or where the judgment exercised
is manifestly unreasonable, or the result
of partiality, prejudice, bias or ill-will.
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Absent an abuse of that discretion, we will
not disturb the ruling of the trial court.
Linde v. Linde, 220 A.3d 1119, 1150 (Pa.Super. 2019) (internal citations and
quotation marks omitted), appeal denied, 236 A.3d 1048 (Pa. 2020).
Here, the trial court discussed the issue as follows:
Pennsylvania follows the Restatement (Second) of
Contracts § 354, which, provides:
(1) If the breach consists of a failure to pay a
definite sum in money or to render a
performance with fixed or ascertainable
monetary value, interest is recoverable
from the time for performance on the
amount due less all deductions to which
the party in breach is entitled.
(2) In any other case, such interest may be
allowed as justice requires on the amount
that would have been just compensation
had it been paid when performance was
due.
Restatement (Second) of Contracts § 354(1)-(2)
(1981) as cited in Cresci Const. Servs., Inc. v.
Martin, 64 A.3d 254, 259 (Pa.Super. Ct. 2013).
In this instance, the nature of the breach was GMS’
failure to pay wages for mandated pre and post-shift
time rendered by the class. GMS has stipulated that
the monetary value of such service was properly
calculated by multiplying a “revised number of hours”
by established regular and overtime rates of pay.
(See [] Ex. E to [the class’] [a]mended [m]otion for
damages and fees, p. 4-5[.]) The monetary value of
uncompensated hours worked by the [] [c]lass was
ascertainable.[Footnote 13] Further, the calculation
of such value relied heavily upon documentation GMS
possessed. The initial pursuit of payment in [f]ederal
[c]ourt for relief, was not a cause of delay in payment.
Long before the [f]ederal [c]ourt action was filed, GMS
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mandated the use of its shuttle at times well before
and after the scheduled shifts for the affected class.
With the first paychecks that followed and continuing
until the mandated use of the shuttle was
discontinued, GMS was obligated to pay a definite sum
in money to affected class members.
[Footnote 13] GMS argued that the
decision of Judge Pratter in Accurso v.
Infra-Red Servs., Inc., CV 7509, 2018
WL 924985, at *11 (E.D. Pa. Feb. 16,
2018) should be similarly applied in this
case. However, in Accurso “the contract
at issue” did not contain a standard to
determine the damages arising from a
breach of confidentiality and non-compete
provisions. Id. In this instance, the
standard to determine damages was set
and particularly known by GMS[] that is
the hourly wage rates GMS determined to
pay the affected class members.
Therefore, an award of pre-judgment interest is
proper. Such award is $418,132.07 through April 12,
2019. (See [] Ex. E to [the class’] [a]mended
[m]otion for damages and fees, p. 8-9[.)]
Trial court opinion, 8/12/19 at 21-23.
We have reviewed the record and the briefs. GMS has failed to meet its
heavy burden of showing the trial court abused its discretion in awarding
pre-judgment interest. Linde, 220 A.3d at 1150. GMS’ final issue does not
merit relief.
Accordingly for the reasons discussed above, we find GMS’ claims are
either waived or do not merit relief. Therefore, we affirm.
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Judgment affirmed.
Shogan, J. joins this Memorandum.
Olson, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/24/2020
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