Mancini, R. v. Concorde Grp.

J-A20016-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ROBERT MANCINI IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
CONCORDE GROUP AND HOWARD
GORDON AND VALERIE BRADLEY
APPEAL OF: VALERIE BRADLEY No. 2233 EDA 2013
Appeal from the Judgment Entered July 26, 2013
In the Court of Common Pleas of Delaware County
Civil Division at No(s): 10-6489
ROBERT MANCINI IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
CONCORDE GROUP AND HOWARD
GORDON AND VALERIE BRADLEY
APPEAL OF: CONCORDE GROUP AND
No. 2234 EDA 2013
HOWARD GORDON
Appeal from the Judgment Entered July 26, 2013
In the Court of Common Pleas of Delaware County
Civil Division at No(s): 10-6489
BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and MUSMANNO, J.
MEMORANDUM BY MUNDY, J.: FILED SEPTEMBER 25, 2014
Appellants, Concorde Group (Concorde), Howard Gordon (Gordon),
and Valerie Bradley (Bradley), appeal from the July 26, 2013 judgment
entered against them and in favor of Appellee, Robert Mancini, in the
J-A20016-14
amount of $83,414.25, constituting $29,948.34 in unpaid wages,
1
Concorde and
Gordon also appeal from a second July 26, 2013 judgment entered against
them and in favor of Appellee in the amount of $47,250.00, constituting
$42,000.00 in lost wages and $5,250.00 in lost employee benefits. After
March 29, 2012 motion for summary judgment and March 22, 2011 sanction
order, and remand for proceedings consistent with this memorandum.
We summarize the relevant factual and procedural history of this case
as follows. On May 28, 2010, Appellee initiated this action by complaint
alleging that Concorde, his former employer, failed to issue him payroll
checks on 19 separate occasions from September 2008 to March 2010.
During the contested timeframe, Gordon and Bradley were both officers and
shareholders of Concorde. Within his complaint, Appellee raised the
following four counts against each Appellant: 1) a violation of the
Pennsylvania Wage Payment and Collection Law (WPCL),2 43 P.S. §§ 260.1-
____________________________________________
1
On September 3, 2014, we consolidated these appeals sua sponte pursuant
to Pennsylvania Rule of Appellate Procedure 513.
2
of
Hirsh v. EPL Techs.,
Inc., 910 A.2d 84, 86 n.4 (Pa. Super. 2006), appeal denied, 920 A.2d 833(Pa. 2007).
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260.12; 2) wrongful discharge; 3) a violation of the Pennsylvania
Whistleblower Law, 43 P.S. §§ 1421-1428; and 4) unjust enrichment.
Attorney Jack W. Coopersmith entered his appearance on behalf of
C
Attorney Coopersmith also filed an answer with new matter on this date.3
Notably, these two documents are the only filings submitted of record by
Attorney Coopersmith sans a May 27, 2011 withdrawal of appearance,
discussed infra. Attorney Coopersmith died on September 1, 2013, at the
see
also
Following the filing of th
abounding with discovery motions and requests for sanctions filed by
Appellee. These motions were filed because Attorney Coopersmith ignored
months.
An abbreviated version of this tortured history follows.
On October 8, 2010, Appellee filed a motion to compel Concorde and
Gordon to respond to his requests for production of documents. On
request and awarded
____________________________________________
3
This document is absent from the certified record but was submitted within
reproduced records.
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4
Trial
Court Order, 11/17/10. On November 29, 2010, Appellee filed a motion to
compel responses to interrogatories addressed to Concorde. As Concorde
did not respond to the motion, the trial court granted it on March 22, 2011.
The trial court subsequently ordered Concorde to file interrogatory responses
within 20 days.
against Concorde and Gordon based upon their failure to respond to
discovery requests. On December 17, 2010, Appellee filed a motion for
sanctions against Concorde and Gordon for failing to abide by the trial
January 24, 2011, Appellee filed a motion to deem the requests for
admissions that he served upon Concorde admitted pursuant to
Pennsylvania Rule of Civil Procedure 4014(b).5
____________________________________________
4
Within this order, the trial court did not delineate a response deadline.
5
Rule 4014 provides, in pertinent part, as follows.
Rule 4014. Request for Admission
(b) Each matter of which an admission is
requested shall be separately set forth. The matter
is admitted unless, within thirty days after service of
the request, or within such shorter or longer time as
the court may allow, the party to whom the request
(Footnote Continued Next Page)
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motions regardi
eration of the order within 20 days.
On April 12, 2011, Attorney W. Russell Carmichael filed an entry of
appearance as co-counsel on behalf of Concorde and Gordon. Up until this
with his entry of appearance, Attorney Carmichael filed a motion for
Gordon. Also on this date, A
Concorde and Gordon. Trial Court Opinion, 1/8/14, at 15. On April 15,
_______________________
(Footnote Continued)
is directed serves upon the party requesting the
admission an answer verified by the party or an
attorney; but, unless the court shortens the time, a
defendant shall not be required to serve answers or
objections before the expiration of forty-five days
after service of the original process upon him or her.
Pa.R.C.P. 4014(b). We note that Bradley, through her attorney, W. Russell
Carmichael, Esquire, responded to this discovery motion, requesting that
Concorde be given a short period of time to respond to the requests for
admissions.
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2011, Appellee objected to this motion by asserting that it was filed one day
late.6
motion for reconsideration.
On May 27, 2011, Attorneys Coopersmith and Carmichael withdrew
their appearances on behalf of Concorde and Gordon and Attorney Nicholas
Guarente entered his appearance on behalf of these parties.7 On June 15,
2011, Attorney Guarente responded on behalf of Concorde and Gordon to
h high document dump[8 that
consisted of] approximately 1,500 pages deemed by [Attorney] Guarente to
Opinion, 1/8/14, at 10 (internal quotation marks omitted).
____________________________________________
6
Rule 236 notice of the sanction order was given by the Delaware County
Prothonotary on March 22, 2011. Thus, the 20-day timeframe imposed by
the court for reconsideration ended on April 11, 2011. However, we note
that the Judicial Code, 42 Pa.C.S.A. §§ 101-9913, permits a trial court to
modify or rescind any order within 30 days 42 Pa.C.S.A.
§ 5505 (emphasis added).
7
To date, Attorney Carmichael is still representing Bradley.
8
Concord
systematically tabbed and contained 19 pages of item by item annotated
explanations and responsive commentary for what was in those documents.
It also contained specific, enumerated responses to the numerous
Id. (internal quotation marks
omitted).
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Appellee filed a motion for summary judgment against Concorde and
Gordon and for partial summary judgment against Bradley on September 16,
2011. Concorde, Gordon, and Bradley filed answers to this motion on
October 7 and October 17, 2011, respectively. On March 29, 2012, the trial
Specifically, the trial court entered judgment in favor of Appellee and against
Concorde and Gordon as to all counts of the underlying complaint and in
favor of Appellee and against Bradley as to the first count of the complaint,
i.e., a violation of the WPCL.
On August 13, 2012, Appellee moved to voluntarily discontinue his
action against Bradley as to the remaining counts of the complaint, to wit,
wrongful discharge, a whistleblower violation, and unjust enrichment. See
method of voluntary termination of an action, in whole or in part, by the
ourt granted this
request on October 11, 2012.
On December 21, 2012, Concorde and Gordon filed a motion in limine
to preclude an award of damages to Appellee. Essentially, this motion
asserted that Appellee is ineligible to recover damages because he is not
entitled to relief on the underlying causes of action. On January 29, 2013,
the trial court denied Concorde a
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The trial court proceeded to schedule a damages hearing for February
13, 2013. Prior to the scheduled damages hearing, Appellee filed a petition
9
Following the
damages hearing, the trial court entered an order that awarded both
L claim, the
trial court entered judgment in favor of Appellee and against Concorde,
Gordon, and Bradley in the amount of $29,948.34 (constituting $23,958.67
in unpaid damages and $5,989.67 in liquidated damages). Pursuant to the
WPCL, the trial court als
and $3,645.91 in costs. The trial court ordered Concorde, Gordon, and
____________________________________________
9
Section 9a of the WPCL provides, in pertinent part, as follows.
§ 260.9a. Civil remedies and penalties
(f) The court in any action brought under this section
shall, in addition to any judgment awarded to the
plaintiff or plaintiffs, allow costs for reasonable
a
defendant.
43 P.S. § 260.9a(f).
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wrongful discharge claim, the trial court entered judgment in favor of
Appellee and against Concorde and Gordon in the amount of $47,250.00
(constituting $42,000.00 in lost wages and $5,250.00 in lost employee
benefits). At the time of the hearing, Appellee withdrew his whistleblower
and unjust enrichment claims against Concorde and Gordon. Trial Court
Opinion, 1/8/14, at 5.
Concorde, Gordon, and Bradley filed timely post-trial motions on May 1
and May 2, 2013, respectively. The trial court granted reconsideration of its
damages verdict on May 16, 2013. Following reconsideration, the trial court
-trial motions by orders dated
Prothonotary entered judgment in favor of Appellee and against Concorde,
Gordon, and Bradley in the above-stated amounts on July 26, 2013. On July
31, 2013, Concorde, Gordon, and Bradley timely filed their notices of
appeal.10
____________________________________________
10
Appellants and the trial court have timely complied with Pennsylvania Rule
of Appellate Procedure 1925. We note that Appellants raised a number of
issues within their Rule 1925 statements that are not presented within their
appellate briefs. Specifically, Concorde and Gordon present their second,
forth, seventh, and tenth Rule 1925 statement errors within their appellate
brief. Likewise, Bradley raises only a partial portion of her third and the
entirety of her seventh Rule 1925 statement error within her appellate brief.
and not addressed within their appellate briefs are waived on appeal. See
Penn-Am. Ins. Co. v. Peccadillos, Inc., 27 A.3d 259, 269 (Pa. Super.
2011) (concluding issues that are not discussed within the argument section
(Footnote Continued Next Page)
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On appeal, Concorde and Gordon raise the following issues for our
review.
[1.] Did the [trial] court err or abuse its discretion
in the entry of a sanctions order precluding the
defenses of [] Concorde [] and [] Gordon
caused by the repeated record neglect of initial
Concorde/Gordon counsel when the record
deficiencies were corrected by subsequent
counsel before reconsideration was denied?
[2.] Did the [trial] court err or abuse its discretion
in the granting of summary judgment on all
four complaint counts against Concorde [] and
[] Gordon?
[3.] Did the trial court err in its opinion that []
Concorde [] and []
on appeal for failure to seek reconsideration of
a denied reconsideration?
[4.] Did the trial court err in its opinion that []
Concorde [] and [] Gordon waived their claims
on appeal for failure to immediately appeal the
granting of summary judgment against
Concorde [] and Gordon and partial summary
judgment against [] Bradley?
[5.] Were fee-shifted counsel fees properly
awarded under the Wage Payment Collection
Law when that law was not applicable to the
circumstances of this case?
[6.] Did the trial court err in awarding a future
wage loss and benefits for wrongful
termination where [Appellee] pleaded that this
theory had the whistleblower statute as its
statutory predicate and the claim for
_______________________
(Footnote Continued)
appeal denied, 34 A.3d 832 (Pa. 2011);
accord Pa.R.A.P. 2119(a).
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whistleblower damages had been withdrawn at
the damages hearing?
for our review.
[1.] Did the [trial] court err in entering summary
judgment against [] Bradley, where substantial
factual questions existed regarding her
participation in the conduct of Concorde []
under the Wage Payment and Collection Law,
43 [P.S.] 260.1 et seq?
[2.] Were the amounts allegedly owed to [Appellee]
11
Prior to reaching the merits of these consolidated appeals, we must
determine if they are properly before us.12 Within its Rule 1925(a) opinion,
____________________________________________
11
The following caveat immediately precedes the two issues raised within
assignment of errors, but adopts all arguments as set forth in the Brief for []
4. It appears Bradley is
attempting to incorporate the entirety of her Rule 1925(b) statement, by
reference, into her appellate brief. This action is impermissible. See M.J.M.
v. M.L.G., 63 A.3d 331, 337 n.7 (Pa. Super. 2013) (concluding issues that
are
brief are waived); accord Pa.R.A.P. 2116(a). Moreover, Bradley only
addresses the two issues listed within her statement of questions involved
within her appellate brief. See Brad -10. Accordingly, any
issue Bradley failed to discuss within the argument section of her appellate
brief is likewise waived. See Penn-Am. Ins. Co., supra; accord Pa.R.A.P.
2119(a).
12
issues, they assert
Concorde and G
(Footnote Continued Next Page)
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the trial court questions our jurisdiction. Trial Court Opinion, 1/8/14, at 42-
45. The trial court also submits that all issues with regard to its sanction
order are waived because Appellants failed to request reconsideration of the
order. Id. at 33-42.
Weible
v. Allied Signal, Inc., 963 A.2d 521, 525 (Pa. Super. 2008), citing
Pa.R.A.P. 341(a). Since the amendment of Pennsylvania Rule of Appellate
Procedure 341 in 1992, we have consistently concluded that pretrial
discovery orders are not appealable, final orders. Buckman v. Verazin, 54
A.3d 956, 959 (Pa. Super. 2012), appeal denied, 77 A.3d 1258 (Pa. 2013).
pursuant to Rule 341.13
_______________________
(Footnote Continued)
the court asserts both waiver and lack of jurisdiction. Accordingly, as the
trial
address those claims first.
13
Notably, Rule 341 was amended to
See
Pa.R.A.P. 341, Note.
The following is a partial list of orders that are no
longer appealable as final orders pursuant to
Rule 341 but which, in an appropriate case, might
fall under Rules 312 (Interlocutory Appeals by
Permission) or 313 (Collateral Orders) of this
Chapter.
(Footnote Continued Next Page)
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By the same token
final and appealable because it entered only partial summary judgment as to
all Appellants. Although the trial court found Concorde and Gordon liable as
to all counts of the underlying complaint, it postponed its damages
calculation for a later date. The order also rendered Bradley liable as to only
one of the four counts within the complaint. Similarly, the trial court
forewent its damages calculation as to this claim. Therefore, the summary
judgment order was not a final, appealable order because the order did not
See Weible,
supra.claims against Bradley did not render this matter appealable due to the
outstanding damages claim. See id._______________________
(Footnote Continued)
(3) a pre-trial order refusing to permit a
defendant to introduce evidence of an
affirmative defense[.]
Id. Hull v.
Tolentino, 536 A.2d 797 (Pa. 1988) (opinion announcing judgment), is
misplaced as Hull was decided prior to the 1992 amendment to Rule 341.
See id. -trial order precluding the assertion of an
of fact could have determined in favor of the pleader so as to provide him
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Instead, this matter ripened for appeal once the Delaware County
See Pa.R.A.P.
301; Pa.R.C.P. 227.4; Prime Medica Assocs. v. Valley Forge Ins. Co.,
970 A.2d 1149, 1154 n.6 (Pa. Super. 2009), appeal denied, 989 A.2d 918(Pa. 2010) (providing that orders denying post-trial motions are
interlocutory and generally not appealable; rather, the subsequent judgment
entered is appealable). As all parties appealed to this Court within 30 days
of these July 26, 2013 judgments, our jurisdiction is proper. See Pa.R.A.P.
entry of the order from which the appeal i
With respect to motions for reconsideration, Section 5505 of the
Judicial Code, 42 Pa.C.S.A. §§ 101-
modify its orders and states as follows.
§ 5505. Modification of orders.
Except as otherwise provided or prescribed by
law, a court upon notice to the parties may modify or
rescind any order within 30 days after its entry,
notwithstanding the prior termination of any term of
court, if no appeal from such order has been taken
or allowed.
42 Pa.C.S.A.
be exercised sua sponte or invoked by the filing of a motion for
reconsideration. Haines v. Jones, 830 A.2d 579, 584 (Pa. Super. 2003).
Accordingly, we have concluded that waiver may not arise
election to forego filing such a reconsideration motion because they are not
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procedurally required. See Harahan v. AC&S, Inc., 816 A.2d 296, 301
(Pa. Super. 2003) (concluding no waiver issue can attach when a motion for
reconsideration is filed because such a motion is not required to be filed
before appealing a grant of summary judgment), appeal denied, 828 A.2d
350 (Pa. 2003). Therefore, Concorde and Gordon did not waive their issues
regarding the sanction order by choosing not to file for reconsideration of the
order.
purport to raise four additional errors for appellate review. Concorde and
t
assertion of defenses, and the repercussions thereof. Id. Within this
consolidated issue, Concorde and Gordon argue that the trial court erred in
imposing this sanction, which effectively entered a default judgment against
abandonment of their defense.14 Id. at 27-31.
____________________________________________
14
We note that the trial court characterizes its discovery sanction against
summary judgment motions
against the parties. Trial Court Opinion, 1/8/14, at 47. Following our review
of the record, it is apparent that the trial court precluded Concorde and
Pennsylvania Rule of Civil Procedure 4019(c)(2) (stating the trial court may
to allow
the disobedient party to support or oppose designated claims or defenses, or
prohibiting such party from introducing in evidence designated documents,
(Footnote Continued Next Page)
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Generally, [trial] courts are afforded great
discretion in fashioning remedies or sanctions for
vi
Notwithstanding those general propositions, we
highly disfavor dismissal of an action, whether
express or constructive, as a sanction for discovery
violations absent the most extreme circumstances.
See City of Phila. v. Fraternal Order of Police Lodge No. 5 (Breary),
985 A.2d 1259, 1269-1270 (Pa. 2009) (citations, footnote, and internal
quotation marks omitted; emphasis added). Moreover, our Supreme Court
s] hesitancy to
Id. at 1270. Accordingly, we have concluded that
where a discovery sanction results in the effective dismissal of a case, our
standard of review is stringent. Anthony Biddle Contractors, Inc. v.
Preet Allied Am. St., LP, 28 A.3d 916, 926 (Pa. Super. 2011); see also
Croydon Plastics Co., Inc. v. Lower Bucks Cooling & Heating, 698 A.2d
625, 629 (Pa. Super. 1997).
Pennsylvania Rule of Civil Procedure 4019 addresses the sanctions that
a trial court may impose upon parties who fail to engage in meaningful
discovery. That rule states, in pertinent part, as follows.
Rule 4019. Sanctions
_______________________
(Footnote Continued)
summary judgment against Concorde and Gordon.
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(a)(1) The court may, on motion, make an
appropriate order if
(i) a party fails to serve answers, sufficient
answers or objections to written interrogatories
under Rule 4005;
(vii) a party, in response to a request for
production or inspection made under Rule
4009, fails to respond that inspection will be
permitted as requested or fails to permit
inspection as requested;
(viii) a party or person otherwise fails to make
discovery or to obey an order of court
respecting discovery.
(c) The court, when acting under subdivision (a) of
this rule, may make
(2) an order refusing to allow the
disobedient party to support or oppose
designated claims or defenses, or prohibiting
such party from introducing in evidence
designated documents, things or testimony, or
from introducing evidence of physical or
mental condition;
(3) an order striking out pleadings or parts
thereof, or staying further proceedings until
by default against the disobedient party or
party advising the disobedience;
(5) such order with regard to the failure to
make discovery as is just.
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Pa.R.C.P. 4019.
Although Rule 4019 facially permits a trial court to enter an order
precluding the assertion of defenses as a discovery sanction, a trial court
must consider the following four factors when assessing the severity of a
discovery sanction.
(1) [T]he prejudice, if any, endured by the non-
offending party and the ability of the opposing party
willfulness or bad faith in failing to provide the
requested discovery materials; (3) the importance
of the excluded evidence in light of the failure to
provide the discovery; and (4) the number of
discovery violations by the offending party.
City of Phila., supra at 1270-1271 (emphases added). Greater emphasis
has consistently been placed on the first two factors, i.e., the prejudice to
the non-offending party and the bad faith of the offending party. Id. at
1271.
When analyzing the vitality of an imposed discovery sanction, our
Supreme Court instructed us to also consider these four City of Phila.
factors. Id.
nature and the severity
considered on appellate review. Biddle, supra (citations omitted;
that each factor represents a necessary consideration[ when formulating a
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Rohm and Haas Co. v.
Lin, 992 A.2d 132, 142 (Pa. Super. 2010), cert. denied, Lin v. Rohm and
Haas Co., 132 S. Ct. 852 (2011). With these standards in mind, we turn to
the case at bar.
Upon review of the certified record, it is apparent that the trial court
failed to address the importance of the excluded evidence when formulating
its discovery sanction, in direct contravention of City of Phila. See Trial
Court Order, 3/22/11. Accordingly, we initially conclude the trial court erred
as a matter of law when it failed to consider all four factors delineated in
City of Phila.
Additionally, we conclude that the trial court abused its discretion
it is evident that the trial court based its order primarily upon the prejudice
endured by Appellee. While we agree with the trial court that Appellee
encountered prejudice during the underlying discovery proceedings, it is
unclear to us whether Concorde and Gordon or Attorney Coopersmith
dictated these actions. In fact, the trial court itself appears to believe the
belabored, eight-month discovery process occurred as a result of Attorney
City of
Phila. and Biddle ive
discovery sanction that necessitated the instant judgments against Concorde
and Gordon.
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When discussing the prejudice bore by Appellee, the trial court
this lawsuit. Id. at 40. Further, the trial court is blatantly upset that
for new employment while the economy was in [a] deep recession as if they
Id.
Insisting that [Concorde and Gordon] should not be
blamed for the inaction of [Attorney Coopersmith]
present his case at a time when he was struggling to
reprehensible, from both a business and legal
standpoint. Taking the position that it was of no
moment to force [Appellee] to beg for his daily bread
that effort lifted the level of their disrespect of
[Appellee] from the sublime to the ridiculous.
unexplained failure to
respond to reasonable discovery requests to which
[Concorde and Gordon] never raised an objection,
so as to move this stalled litigation to conclusion was
for the purpose of enriching himself.
Id.
Id. at 41.
Despite this chastising, the trial court submits that, to date, Concorde
and Gordon complied
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months late. Trial Court Opinion, 1/8/14, at 37, 41. Notwithstanding
order should be upheld because neither of the parties have explained why it
took eight months to produce discovery. Id.
made to the court regarding their delayed discovery responses. Id. at 38,
49. Specifically, Concorde and Gordon asserted that their then-employed
counsel abandoned their defense. Id. As apparent from an arduous reading
meet a failed burden of [asserting a] timely objection to [requested]
Id. at 38.
edurally
reconsideration and proffer of 362 documents was within the 30-day
timeframe outlined by the Judicial Code for modification of orders. 42
Pa.C.S.A. § 5505.
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]
Id.
record. Id. at 15. Therefore,
City of Phila.
factors are unsupported.
Furthermore, the trial court failed to discuss the importance of the
evidence excluded by the sanction order. Instead, the trial court asserted
assertion of defenses within a case and it elects to do so in this instance.
Trial Court Opinion, 1/8/14, at 38-40. As stated previously, due process
con
discovery violation. City of Phila., supra at 1270. Accordingly, we must
stringently review such an order. Biddle, supra at 926. As the trial court
readily concedes that Attorney
discovery violations, we question whether the complete preclusion of
Lastly, we consider the number of discovery violations and the nature
and severity of such violations simultaneously. Instantly, it is uncontested
that Concorde and Gordon did not respond to discovery requests for
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the parties submitted
discovery materials to Appellee on April 12 and May 27, 2011. Thus, the
discovery requests to date. Trial Court Opinion, 1/8/14, at 37, 41.
Upon consideration of the aforementioned City of Phila. factors and
the additional Biddle factor, we believe the trial court not only committed an
error of law but also abused its discretion when it precluded Concorde and
Gordon from asserting defenses as a discovery sanction. See City of
Phila., supra; Biddle, supra.
order is reversed. Moreover, since the trial court improperly invoked this
discovery sanction, its March 29, 2012 summary judgment order and July
26, 2013 judgments, regarding Concorde and Gordon, must be reversed and
vacated, respectively, because they were based upon an improper sanction
order.15
discretion and committed an error of law when it granted summary
judgment in favor of Appellee and against her pursuant to the WPCL. See
-10.
____________________________________________
15
Based upon our r
award. See
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We begin by noting our well-
standard of review of an order granting summary judgment requires us to
determine whether the trial court abused its discretion or committed an
Petrina v. Allied Glove
Corp., 46 A.3d 795, 797-798
view the record in the light most favorable to the nonmoving party, and all
doubts as to the existence of a genuine issue of material fact must be
Barnes v. Keller, 62 A.3d 382,
385 (Pa. Super. 2012), citing Erie Ins. Exch. v. Larrimore, 987 A.2d 732,
issue as to any material fact and it is clear that the moving party is entitled
Id.The rule governing summary judgment has been codified at
Pennsylvania Rule of Civil Procedure 1035.2, which states as follows.
Rule 1035.2. Motion
After the relevant pleadings are closed, but within
such time as not to unreasonably delay trial, any
party may move for summary judgment in whole or
in part as a matter of law
(1) whenever there is no genuine issue of any
material fact as to a necessary element of the
cause of action or defense which could be
established by additional discovery or expert
report, or
(2) if, after the completion of discovery
relevant to the motion, including the
production of expert reports, an adverse party
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who will bear the burden of proof at trial has
failed to produce evidence of facts essential to
the cause of action or defense which in a jury
trial would require the issues to be submitted
to a jury.
-moving party bears the burden of proof
on an issue, he may not merely rely on his pleadings or answers in order to
Babb v. Centre Cmty. Hosp., 47 A.3d 1214,
1223 (Pa. Super. 2012) (citations omitted), appeal denied, 65 A.3d 412 (Pa.
-moving party to adduce sufficient evidence
on an issue essential to his case and on which he bears the burden of proof
establishes the entitlement of the moving party to judgment as a matter of
Id.Thus, our responsibility as an appellate court is to
determine whether the record either establishes that
the material facts are undisputed or contains
insufficient evidence of facts to make out a prima
facie cause of action, such that there is no issue to
be decided by the fact-finder. If there is evidence
that would allow a fact-finder to render a verdict in
favor of the non-moving party, then summary
judgment should be denied.
Id., quoting Reeser v. NGK N. Am., Inc., 14 A.3d 896, 898 (Pa. Super.
2011).
interpretation of the WPCL -10. Specifically, the trial
court found Bradley liable to Appellee under the WPCL solely based upon
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i.e., its chief executive
officer (CEO). Trial Court Opinion, 1/8/14, at 5.
Pennsylvania enacted the WPCL to provide a vehicle
for employees to enforce payment of their wages
and compensation held by their employers. The
underlying purpose of the WPCL is to remove some
of the obstacles employees face in litigation by
providing them with a statutory remedy when an
employer breaches its contractual obligation to pay
substantive right to compensation; rather, it only
of wages and compensation to which an employee is
otherwise entitled by the terms of an agreement.
Hirsh, supra
§ 260.9a(a).
Pertinent to thi
firm, partnership, association, corporation, receiver or other officer of a
court of this Commonwealth and any agent or officer of any of the above-
mentioned classes employing any person in this Commonwea Id.
§ 260.2a (emphasis added). Despite the ability to hold an agent or officer
Mohney v. McClure, 568 A.2d 682, 686 (Pa. Super. 1990), affirmed, 604
Hirsh, supra, quoting I
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J-A20016-14
Stage Employees, Local Union No. 3 v. Mid-Atl. Promotions, Inc., 856
A.2d 102, 105 (Pa. Super. 2004), appeal denied, 878 A.2d 864 (Pa. 2005);
accord Mohney, supra. Specifically, an employee must establish that the
-making, such as
corporate decision-making or corporate advisement on matters of pay or
Hirsh, supra, citing Mid-Atl., supra at 106.
In the case sub judice, Bradley does not contest that she is an officer
Complaint, 5/28/10, at ¶ 5. Rather, she asserts the trial court found her
liable under the WPCL based solely upon her status as a corporate officer.
9-10. Bradley argues that, in order for her to be held
Id. at 9, citing Hirsh, supra
(citations omitted); accord Mohney, supra. As Bradley contests taking an
-making, she posits this issue was
-
10.
Herein, the trial court granted summary judgment in favor of Appellee
and against Bradley o
review the pleadings in this matter to determine if they support the trial
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J-A20016-14
to cause Concorde not to pay [Appellee] the aforesaid sums to which he is
w[as] acting in accordance with the terms and conditions of [an] oral
Answer, 7/16/10, at ¶ 18.
Bradley also asserted numerous defenses. Id. at ¶¶ 36-45.
Thereafter, Appellee filed the contested motion for summary judgment
on September 16, 2011. Within this motion, Appellee averred Bradley
nted the decisions that caused Concorde not
CEO of Concorde since 2004, and that she is consulted on management
Id. at ¶ 83. In support of these
See id. at Exhibits A, E.
Specifically, Appellee attached
produce all of the documents reflecting her input, contribution, or
E
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J-A20016-14
Id. at Exh
for Summary Judgment, 9/16/11, Exhibit E. Bradley likewise responded to
-making process.
-35, citing Hirsch, supra.16
When reviewing this record in the light most favorable to Bradley, we
decision-making of Concorde. See Barnes, supra. As WPCL liability cannot
be imposed upon Bradley based solely upon her status as an officer and
shareholder of Concorde, we conclude the trial court erred in finding Bradley
liable under the WPCL during the summary judgment phase of the
underlying proceedings. See Hirsh, supra; Mid-Atl., supra; Mohney,
supra.
judgment order and vacate the resulting July 26, 2013 judgment.17
____________________________________________
16
her first set of interrogatory responses. Id.
17
See .
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J-A20016-14
Based upon the foregoing, we conclude that Bradley, Concorde, and
reverse both the
entered against Bradley, Concorde, and Gordon, and remand to the trial
court so that it may condu
claims.
Judgment vacated. Orders reversed. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/25/2014
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