source: Caselaw Access Project

author:
PER CURIAM.
      Justice SAYLOR,

license: Public Domain

text:
    106 A.3d 656
    Michelle BRAUN, on behalf of herself and all others similarly situated, Appellee, v. WAL-MART STORES, INC., a Delaware Corporation, and Sam’s Club, an Operating Segment of Wal-Mart Stores, Inc., Appellants. Dolores Hummel, on behalf of herself and all others similarly situated, Appellees, Wal-Mart Stores, Inc., a Delaware Corporation, and Sam’s Club, an Operating Segment of Wal-Mart Stores, Inc., Appellants.
    Supreme Court of Pennsylvania.
    Argued May 8, 2013.
    Decided Dec. 15, 2014.

      Mark Alan Aronchick, Daniel Segal, Hangley Aronchick Segal & Pudlin, P.C., Michael Joshua Newman, Hangley Aron-chick Segal Pudlin & Schiller, Philadelphia, Theodore J. Boutrous, Los Angeles, CA, John J. Cunningham IV, William H. Lamb, Maureen Murphy McBride, James C. Sargent, Jr., Scot Russel Withers, Lamb McErlane, PC, West Chester, Mark Andrew Perry, Gibson, Dunn & Crutcher, LLP, Washington, DC, Julian W. Poon, Gibson, Dunn & Crutcher, LLP, Los Angeles, CA, for Wal-Mart Stores, Inc. and Sam’s East, Inc.
    Michael D. Donovan, Donovan & Axler, LLC, Philadelphia, Judith L. Spanier, Abbey Spanier Rodd Abrams & Paradis, LLP, New York, NY, for Michelle Braun.
    James Michael Beck, Dechert LLP, Philadelphia, for Amicus Curiae Product Liability Advisory Council, Inc.
    Amanda Dealy Haverstick, Proskauer Rose, L.L.P., Newark, NJ, for Amicus Curiae Retail Litigation Center, Inc.
    Henry M. Sneath, Chicago, IL, Quin Mikael Sorenson, Sidley Austin, LLP, Washington, DC, for Amicus Curiae DRI-The Voice of the Defense Bar.
    A. Lauren Carpenter, Joseph B.G. Fay, Howard L. Meyers, Michael J. Puma, Marc J. Sonnenfeld, Morgan Lewis & Bockius, L.L.P., Philadelphia, PA, for Amicus Curiae The Pa. Chamber of Business and Industry, et al.
    Alan M. Feldman, Feldman, Shepherd, Wohlgelernter, Tanner, Weinstock & Dodig, Philadelphia, Della Barnett, Michael Caesar, Jocelyn Larkin, Berkeley, CA, for Amicus Curiae Impact Fund, AARP, Asian Law Caucus, et al.
    Ira Neil Richards, Trujillo, Rodriguez & Richards, LLC, Philadelphia, Terisa Chaw, San Francisco, CA, Joseph Sellers, Peter Romer-Friedman, Cohen Milstein Hausfeld & Toll, PLLC, Nicholas Clark, William Lurye, Judy Scott, Washington, DC, Rachel Geman, Jahan Sagafi, New York, NY, for Amicus Curiae United Food and Commercial Workers International Union, et al.
    CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, JJ.
   OPINION

PER CURIAM.

This discretionary appeal concerns whether the class action proceedings in this case improperly subjected Appellants to a “trial by formula.” The trial court certified the class, a jury rendered a divided verdict, and the Superior Court affirmed in part and reversed in part. We now affirm.

Appellees brought various class action claims against their former employers, Wal-Mart Stores, Inc., and Sam’s Club (hereinafter “Wal-Mart”), based on policies and conduct pertaining to rest breaks and meal breaks. Appellees asserted that Wal-Mart had promised them paid rest and meal breaks, but then had forced them, in whole or in part, to miss breaks or work through breaks, and also to work “off-the-clock,” i.e., to work without pay, after a scheduled shift had concluded. The trial court certified a class consisting of “all current and former hourly employees of Wal-Mart in the Commonwealth of Pennsylvania from March 19, 1998 to the present December 27, 2005.” See Order, 12/27/05, at 1. The class ultimately consisted of 187,979 members.

The jury trial of this class action alleging systemic wage and hour violations spanned six weeks, resulting in a voluminous record. Appellees called eighteen fact witnesses and three expert witnesses during their case-in-chief. The parties’ examinations of Appellees’ expert witnesses took six full days of trial (September 11, 12, 13, 19, 20, and 21). Additionally, lengthy arguments were conducted during trial but outside the hearing of the jury on Wal-Mart’s motions to strike portions of the testimony of Appellees’ experts. Ultimately, the jury rendered a verdict in favor of Wal-Mart on all claims relating to meal breaks but in favor of Appellees on all claims relating to rest breaks and off-the-clock work. The amount of the judgment ultimately entered on the verdict was $187,648,589. Wal-Mart appealed the judgment, and the Superior Court affirmed in part and reversed in part in a published unanimous per curiam opinion, which corrected a patent mathematical error committed by the trial court, reversed the award of attorneys’ fees, and remanded to the trial court to recalculate the lodestar it had employed to determine the amount of attorneys’ fees. Braun v. Wal-Mart Stores, Inc., 24 A.3d 875 (Pa.Super.2011). This Court granted Wal-Mart’s request for discretionary review, limited to the following issue framed by Wal-Mart:

Whether, in a purported class action tried to verdict, it violates Pennsylvania law (including the Pennsylvania Rules of Civil Procedure) to subject Wal-Mart to a “Trial by Formula” that relieves Plaintiffs of their burden to produce class-wide “common” evidence on key elements of their claims.

Braun v. Wal-Mart Stores, 616 Pa. 354, 47 A.3d 1174 (2012).

The issue accepted for review requires this Court to address: (1) whether Wal-Mart was subjected to a “trial by formula”; and (2) whether Appellees were thereby improperly relieved of their burden to produce class-wide common evidence on key elements of their claims. Notwithstanding WalMart’s inclusion of the phrase “purported class action” in the issue presented for review, the propriety of the certification of the class in the first instance is not before the Court in this appeal. Notably, however, much of Wal-Mart’s challenge to the method of trial is premised upon its contention that the class never should have been certified because Appellees did not present sufficient, class-wide “common” evidence of contract formation, breach, or unjust enrichment. Moreover, Wal-Mart asserts that the trial court’s class certification, the jury verdict, and the Superior Court affirmance all improperly relied upon “sham statistics and baseless extrapolations of [Appellees’] expert witnesses, Drs. Baggett and Shapiro[,]” regarding “Wal-Mart’s time clock and cash register records.” Appellants’ Brief at 27, 30. In short, Wal-Mart asserts that Appellees’ statistical and extrapolation evidence was flawed in that it failed to show “that class members, on a class-wide basis, missed breaks, took shortened breaks or worked off-the-clock.” Id. at 18-19.

More specifically, Wal-Mart claims that the time clock and cash register records did not show that employees had been forced to miss breaks or work off-the-clock, and that Appellees’ expert analysis reaching the opposite conclusion was based on faulty assumptions that failed to account for the actual practices of Wal-Mart and its employees. Specifically, Wal-Mart claims that the analysis regarding rest breaks failed to account for “voluntary” missed breaks, and that the analysis regarding off-the-clock work failed to account for the alleged fact that it was not uncommon for cashiers to log into and operate cash registers under another employee’s name. Thus, Wal-Mart asserts that the class was overbroad, that appellees had not shown proper proof of Wal-Mart’s liability as to each “purported” class member, and that Wal-Mart had been subject to a “trial by formula” that denied Wal-Mart its right to due process in violation of Pennsylvania law. Appellants’ Brief at 18-19. Specifically, Wal-Mart claims it was denied the right to defend inherently individual issues of liability. Id. at 22-24.

The Superior Court’s slip opinion in this case is 211 pages long, and thoroughly details the evidence presented at trial. We set forth here only those facts necessary for resolution of the single issue raised on appeal, in which Wal-Mart challenges the method by which the trial was conducted.

Wal-Mart employees (characterized as “associates” in WalMart’s employee handbooks and other written policies) are required to “punch” time clocks. During orientation for new employees, employee handbooks are distributed that, among other things, inform employees that they are entitled to paid rest breaks and that they will be paid for all hours worked. Additionally, all employees are informed, through a variety of means, about Wal-Mart’s rest break policy, known as PD-07, and its off-the-clock work policy, known as PD-43. The rest break policy states that a paid, 15-minute break will be given to an employee who works between three and six hours, and that an additional paid, 15-minute break will be given to an employee who works more than six hours. The rest break policy requires that employees take full, uninterrupted breaks, and warns that disciplinary action may result if an employee misses breaks or takes breaks that are either too long or too short. Wal-Mart’s off-the-clock work policy provides that it is against company policy for any employee to perform work without being paid, and that employees will be compensated for all work performed.

Prior to February 10, 2001, Wal-Mart employees were required to clock out and clock back in for each rest break, ie., employees were required to “punch” or “swipe” a time clock at the beginning and end of every rest break. Beginning in 1999, Wal-Mart conducted approximately ten regional internal audits that indicated widespread rest break violations, such as missed breaks, breaks that were too long, or breaks that were too short. In 2000, Wal-Mart conducted the “Shipley Audit,” which was national in scope and included an examination of time clock and cashier log-in records. The Shipley Audit revealed that in one week, across 127 Wal-Mart stores, including five in Pennsylvania, more than 60,000 rest break violations had occurred. The Shipley Audit showed that an average of two rest breaks per week per employee were either missed or shortened at every store. The results were reported to top-level Wal-Mart executives, and on February 10, 2001, Wal-Mart eliminated its policy requiring employees to clock out and clock back in for each rest break. Additionally, there was evidence that, prior to 2003, it was possible for Wal-Mart cashiers to log in to and operate cash registers even if they were “off-the-clock.” In 2003, Wal-Mart instituted a “lock-out” system whereby no employee who was off-the-clock could log in to a cash register. However, the system permitted managers to override lock-outs, i.e., to enable an off-the-clock employee to log in to and operate a cash register.

In both seeking certification of the class and litigating their case at trial, Appellees presented the expert opinions of statisticians L. Scott Baggett, Ph.D., and Martin M. Shapiro, Ph.D., who had analyzed Wal-Mart’s own business records regarding hours worked, breaks taken, and wages paid to each employee, as well as the results of the Shipley Audit. At trial, Dr. Baggett testified that he had been provided the hourly employee time clock, rest break, and payroll records for all 139 Wal-Mart stores in Pennsylvania for the period from 1998 through early 2006, which amounted to 46 million individual shifts. Dr. Baggett further testified that the data provided had been incomplete, and that statistical extrapolation from the data revealed that, in fact, 52 million individual shifts had occurred during that time period; he testified that his computation of that total had been formulated within a reasonable degree of statistical certainty. Dr. Baggett also explained his methodology for determining how many rest breaks should have been earned over the course of those 52 million individual shifts, and how many rest breaks had been missed. Among other things, this undertaking required calculating numbers for the period from February 2001 to 2006, during which time actual rest break data was no longer available, due to the 2001 change in Wal-Mart’s policy that eliminated the requirement for employees to clock out and clock back in at the beginning and end of rest breaks. Dr. Baggett explained that his method for extrapolating the total amount of breaks that had been missed but unrecorded included baseline calculations of the number of known, recorded missed breaks that had occurred prior to the 2001 change in rest break time clock policy. Based on these extrapolations, coupled with the average rate of pay for hourly Wal-Mart employees, all of which had been calculated within a reasonable degree of statistical certainty, Dr. Baggett testified that the total damages to Wal-Mart hourly employees for missed rest breaks during the relevant time period had been $68,412,107. Dr. Baggett also testified that, although he could not tell from the data why any individual rest break had been missed, he presumed rest breaks had not been missed voluntarily because Wal-Mart’s policy prohibited employees from missing or working through scheduled rest breaks.

Dr. Shapiro testified for Appellees regarding off-the-clock work. Dr. Shapiro stated that he had compared the WalMart time clock, payroll, and rest break computer databases, and found numerous recorded instances of employees actively logged in to cash registers or computer-based learning terminals during times when they had simultaneously been clocked out for a break or had been clocked out of a shift altogether. He added that the total amount of such off-the-clock work hours decreased significantly after Wal-Mart instituted its “lock-out” policy in 2003. Dr. Shapiro had been provided with time clock and cash register log-in data for sixteen Pennsylvania Wal-Mart stores for the period from 2001 to 2006. In his testimony, Dr. Shapiro explained how he had extrapolated from that data to determine the average total number of hours of off-the-clock work performed by all hourly employees at all Pennsylvania Wal-Mart stores during the period from 1998 to 2005. He calculated that the unpaid earnings for all WalMart employees working off-the-clock during the relevant period was $2,993,063.32, and testified that his computation had been formulated within a reasonable degree of statistical certainty.

Appellees also presented the expert testimony of organizational psychologist and statistician, Frank Landy, Ph.D., who testified that Wal-Mart had promised all its employees, through a variety of means, that paid breaks were a benefit of employment with Wal-Mart, and that its employees understood and expected that all breaks were to be paid breaks. In discussing the Shipley Audit, Dr. Landy testified that WalMart stores had used daily “time adjustment slips” to correct known rest break violation errors. He explained: “Adjustment means that the associate actually comes in and says, no, no, I actually did get my break; I just forgot to swipe in [and] out for [it].” Dr. Landy testified that only approximately 10% of the total number of rest break violations had been corrected through time adjustment slips, which led him to the conclusion that “the magnitude of this problem even after they correct it for honest mistakes is big.” See Braun, 24 A.3d at 932 (quoting Dr. Landy’s trial testimony).

Appellees also presented the testimony of a number of former and current Wal-Mart employees, who testified that they had regularly been forced to work without taking breaks (or to take shortened breaks) because the stores in which they worked were chronically understaffed. In response, WalMart presented the testimony of a number of current and former employees (all of whom had opted out of the class), who testified that they had never been forced to miss a rest break and had always been paid for the breaks they did take.

During the defense case, Dr. Denise Martin, an expert statistician, testified that she had identified a number of alleged errors in the methods used by Appellees’ experts to arrive at their estimated damages computations. Principally, Dr. Martin took issue with Dr. Baggett’s premise that an employee’s failure to clock out and clock back in from a rest break indicated a missed rest break, as well as his conclusion that no missed breaks were voluntary. In Dr. Martin’s opinion, Dr. Baggett had used “bad” data to account for missing data, which is “statistically improper.” With respect to Dr. Shapiro’s methodology, Dr. Martin criticized his assumption that cashiers did not routinely log in to cash registers under another employee’s name. On this basis, Dr. Martin testified that Dr. Shapiro’s comparisons of time clock data to cash register log-in data were improper and resulted in an erroneous calculation of the number of hours of off-the-clock work that had occurred during the relevant time period.

In this appeal, Wal-Mart asserts that it was subjected to “trial by formula,” a practice disapproved by the United States Supreme Court in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011), and Comcast Corp. v. Behrend, — U.S. —, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013). The Court notes that Wal-Mart’s formulation of the issue accepted for review focuses on the procedural conduct of the trial. Nevertheless, Wal-Mart argues that the class was improperly certified because Appellees failed to prove that questions of law and fact were common to the class, and that common questions predominated over individual issues.

In effect, Wal-Mart’s arguments in support of its assertion that the class should not have been certified mirror its arguments in support of the assertion that it was subjected to a trial by formula. Nevertheless, the focus in this appeal should be primarily on the proofs offered at trial and whether the proceeding conducted by the trial court amounted to a trial by formula that relieved Appellees of their burden to produce common evidence on key elements of their claims. Our review of this question of law is plenary and de novo. Lower Makefield Twp. v. Lands of Dalgewicz, 620 Pa. 312, 67 A.3d 772, 775 (2013).

In response, Appellees argue that on the merits, class certification was warranted here, and that Wal-Mart was not subjected to a trial by formula, but rather was faced with a recognized and acceptable style of class action known as “replicated proof,” in which the same underlying evidence, if relevant and credible, proves each class member’s claim as if each class member had proceeded alone. Appellees’ Brief at 18 (citing Liss & Marion v. Recordex Acquisition Corp., 603 Pa. 198, 983 A.2d 652 (2009)). In a reply brief, Wal-Mart largely reiterates the positions in its original brief. Appellants’ Reply Brief at 1-25. The Court notes that a number of amicus curiae briefs were also filed in this appeal.

Due process in legal proceedings requires an opportunity to confront and cross-examine adverse witnesses. Goldberg v. Kelly, 397 U.S. 254, 269-70, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). As observed by the United States Court of Appeals for the Third Circuit, the validity of an argument challenging the manner in which a trial has been conducted and alleging that it was so highly prejudicial so as to amount to a denial of due process must be measured against the background of the trial as a whole; the complexity of the litigation; the length of the trial; the quantity of evidence received; and, the difficulty of the task that confronted the factfinder. Citron v. Aro Corp., 377 F.2d 750, 752 (3d Cir. 1967). The class action mechanism is designed to permit a named individual to proceed to trial on behalf of the class, including him- or herself, and to try all of the class members’ claims together to judgment. Samuel-Bassett, 34 A.3d at 34 (citing Pa.R.C.P. 1715(c)).

The United States Supreme Court’s disapproval of “trial by formula” in Dukes was directed at a plan to try a sample set of class members’ claims of sex discrimination and, if discrimination was found and the claims were meritorious, to then multiply the average back-pay award to determine the class-wide recovery without further individualized proceedings. Dukes, 564 U.S. at 366-67, 131 S.Ct. at 2561. To the High Court, this “novel” process would have robbed Wal-Mart (in that case) of its right to litigate its defenses to individual claims, because liability for all but the sample set would never be tried. Id. The United States Court of Appeals for the Sixth Circuit has described the “trial by formula” method disapproved in Dukes as follows:

Dukes proposed a “Trial by Formula” process. Under this system, the district court would appoint a master to determine whether and how much backpay was due to a sample set of class members. The court would then multiply the total number of class members by the percentage of claims the special master determined were valid. Next, it would multiply that number by the average backpay award for sample claimants with a valid claim to determine the class’s recovery. The Court did not make clear whether Dukes proposed that the class’s recovery would be distributed pro rata, whether there would be some sort of claims procedure, based on the particular applicant’s date of non-promotion, or whether class counsel would dispose of the money through a cy pres distribution. Regardless, the Court held that the Trial by Formula approach would violate the Rules Enabling Act because it would abridge or modify Wal-Mart’s right to present affirmative defenses to individual backpay determinations. Dukes, 131 S.Ct. at 2561.

Davis v. Cintas Corp., 717 F.3d 476, 486 n. 2 (6th Cir.2013).

Similarly, a Magistrate Judge of the United States District Court for the Southern District of New York described the “trial by formula” method disapproved in Dukes in the following terms:

Specifically, the Supreme Court rejected a “Trial by Formula,” in which the plaintiffs would hold a trial for a sample set of class members’ claims of sex discrimination and then multiple the average backpay award to determine the class-wide recovery without further individualized proceedings. Under this proposal, Wal-Mart would have been denied its right to litigate its defenses to individual claims of discrimination, as liability for all but the sample set would have never been tried. Chipotle contends that Dukes requires individualized discovery of opt-in plaintiffs so that it can litigate its individualized defenses, and that the denial of this information might, in fact, render certification inappropriate.
In Dukes, the Supreme Court focused on the need for a common contention that is capable of class-wide resolution: “Without some glue holding the alleged reasons [behind all of Wal-Mart’s individual employment] decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.” Dukes, 131 S.Ct. at 2552 (emphasis in original).

Scott v. Chipotle Mexican Grill, Inc., 300 F.R.D. 188, 191 (S.D.N.Y.2014) (citations and quotation marks omitted).

In this case, contrary to Wal-Mart’s assertions, the now-disapproved “trial by formula” process at issue in Dukes was not at work here, because there was no initial or prior adjudication of Wal-Mart’s liability to a subset of employees that would then be extrapolated to the rest of the class. Instead, the extrapolation evidence Wal-Mart challenges in this appeal involves the amount of damages to the class as a whole. By contrast, the evidence of Wal-Mart’s liability to the entire class for breach of contract and WPCL violations was established at trial by presentation of Wal-Mart’s own universal employment and wage policies, as well as its own business records and internal audits. These records were sufficient to support the factfinder’s determination that there was an extensive pattern of discrepancies between the number and duration of breaks earned and the number and duration of breaks taken. Both parties had ample opportunity to present evidence to explain these discrepancies, i.e., to show that the discrepancies were or were not evidence of class-wide wage- and-hour violations. Thus, Wal-Mart’s claim that it was denied due process fails.

Also, in Dukes, the class-action was brought for alleged violations of Title VII of the Civil Rights Act of 1964, and specifically alleged sexual discrimination in the hiring and promotion of female workers. The evidence in Dukes showed that Wal-Mart had an express policy prohibiting sex discrimination. Importantly, although some Wal-Mart managers applied their own subjective gender biases in making hiring and promotion decisions, some did not. Thus, the High Court ruled that the element of class commonality was lacking because the required showing of “significant proof’ that WalMart operated under a “general policy of discrimination” was “entirely absent.” Dukes, 564 U.S. at 353-54, 131 S.Ct. at 2553. The Court noted that the expert opinion evidence of a “general policy of discrimination” offered by the plaintiffs could not assess “whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking.” Id.

In this case, where systemic wage-and-hour violations were asserted, evidence was presented by appellees that, if believed, supported an inference that Wal-Mart managers company-wide were pressured to increase profits and decrease payroll by understaffing stores through the preferred scheduling system, and that these factors, including the managers’ annual bonus compensation program, impeded the ability of employees, across the board, to take scheduled, promised, paid rest breaks. The lack of proof of class commonality present in Dukes is not present here.

Turning to Comcast v. Behrend, which Wal-Mart also cites here, the question for review before the High Court in that case was “[w]hether a district court may certify a class action without resolving whether the plaintiff class had introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.” — U.S. at —, 133 S.Ct. at 1431 n. 4. In that matter, two million Comcast customers comprised the class alleging various antitrust violations. The Court noted that both the U.S. District Court for the Eastern District of Pennsylvania and the U.S. Court of Appeals for the Third Circuit had perceived no need for the plaintiffs to “tie each theory of antitrust impact” to a calculation of damages. Id. at —, 133 S.Ct. at 1433. The Court determined that the District Court and the Court of Appeals had entirely ignored the “first step” of a “damages study,” which requires “the translation of the legal theory of the harmful event into an analysis of the economic impact of that event.” Id. at —, 133 S.Ct. at 1435 (italics in original) (citing Federal Judicial Center Reference Manual on Scientific Evidence 432 (3d ed.2011)). Because the damages methodology used in Behrend identified damages that were not the result of the specific antitrust violation for which the class had been certified, the High Court reversed the order upholding the class certification. Id. at —, 133 S.Ct. at 1434-35.

The Behrend Court, did, however, recognize that where a theory of liability is capable of class-wide proof, calculations of damages need not be exact. Id. at —, 133 S.Ct. at 1433-34. Indeed, as one federal district court has noted, one takeaway from the Supreme Court’s decisions in this area is that “the propriety of class certification in wage and hour cases that involve recordkeeping violations should be assessed in light of the relaxed burden of proving damages.” Gomez v. Tyson Foods, Inc., 295 F.R.D. 397, 400 (D.Neb.2013) (citing Behrend and Dukes). It is also well-settled that when an employer fails to keep complete records of hours, employees may prove their hours through representative testimony. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 688, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), superseded by statute on other grounds. “[E]ven where the lack of accurate records grows out of a bona fide mistake as to whether certain activities or non-activities constitute work, the employer, having received the benefits of such work, cannot object to the payment for the work on the most accurate basis possible under the circumstances.” Id. One federal Circuit Court has observed that “[a] rule preventing employees from recovering for uncompensated work because they are unable to determine precisely the amount due would result in rewarding employers for violating federal [and state] law.” Reich v. Southern New England Telecomms. Corp., 121 F.3d 58, 69 (2d Cir.1997) (citing Mt. Clemens, 328 U.S. at 687, 66 S.Ct. 1187).

Unlike the plaintiffs in Behrend, who failed to translate the legal theory of their harm into an analysis of its economic impact, Appellees here offered data and analysis from WalMart’s own business records, including time clock and cashier log-in data, to support their claim of damages related to systemic wage and hour violations. Wal-Mart responds now, as it did at trial and on direct appeal, that the time clock and cash register log-in data do not necessarily reflect that breaks were missed or shortened. Nevertheless, by advancing this argument, Wal-Mart impliedly acknowledges that its record-keeping has been incomplete, and it cannot now avoid the relaxed burden of proving damages through extrapolation. Mt. Clemens.

The essence of Wal-Mart’s appeal is its assertion that the class-action device, in this instance, had “run amok,” resulting in a “trial by formula” during which Appellees’ requirement to prove the essential elements of their claims as to each class member was eliminated. Appellants’ Brief at 18. Indeed, Wal-Mart seems to suggest that the class claims of breach of contract and unjust enrichment could only be properly proven by an individual examination of the 187,979 class members to determine whether each had been promised paid breaks that they were then forced to miss, or partially work through, and whether each had, or had not, been forced to work off-the-clock. Relatedly, Wal-Mart suggests that any determination of damages is only proper on an individual class member basis, and that any tabulation of damages across-the-board would violate due process. The Court disagrees.

There was a single, central, common issue of liability here: whether Wal-Mart failed to compensate its employees in accordance with its own written policies. On that question, both parties presented evidence. Wal-Mart’s liability was proven on a class-wide basis. Damages were assessed based on a computation of the average rate of an employee’s pay (about eight dollars per hour) multiplied by the number of hours for which pay should have been received but was not. In our view, this was not a case of “trial by formula” or of a class action “run amok.” Accordingly, the judgment of the Superior Court is affirmed.

Jurisdiction relinquished.

Former Justice McCAFFERY did not participate in the decision of this case.

Chief Justice CASTILLE, Justices EAKIN, BAER and TODD join the opinion.

Justice SAYLOR files a dissenting opinion.

Justice SAYLOR,

dissenting.

I agree with Appellants that the trial court implemented, and the intermediate court approved, a severely lax approach to the application of governing substantive law in the issuance and sustainment of an almost two-hundred-million-dollar verdict based on proof which was insufficient to establish liability and damages across a 187,000-member class. Although I take no issue with the majority’s observation that the burden of proof may be relaxed to some degree in wage-and-hour cases, see Majority Opinion, at 309-10, 106 A.3d at 666-67, the latitude extended in this case is of an untenable magnitude. Here, the Appellee class was permitted to effectively project the anecdotal experience of each of six testifying class members upon thirty-thousand other members of the class at large, to extrapolate abstract data concerning missed and mistimed “swipes” from 16 Pennsylvania stores to 139 others, to overlay discrete data taken from several years’ experience across a distinct four-year period, and to attribute a single cause to missed and mistimed swipes, all despite indisputable variations across store locations, management personnel, time, and other circumstances. The sorts of gross generalizations and assumptions which permitted the simple averaging and extrapolations offered up by Appellees’ expert witnesses to stand in support of the conclusion that some tens of millions of missed or mistimed swipes reflected rest breaks foregone on account of payroll pressure exerted from the Wal-Mart boardroom would never hold up to peer review as a matter of science. Therefore, it is very troublesome for the same to be relied upon in courts of law as the essential support for a large scale class-action verdict.

Certainly, I am sympathetic to efforts to vindicate the interests of workers with modest claims who may lack the ability and incentive to pursue remedies on an individualized basis. Nevertheless, I remain of the view that the kinds of alterations to substantive law reflected in the majority’s relaxed approach to class-action litigation should be the subject of overt consideration in the political branch and should not occur as a byproduct of the application of a mere procedural device by the judiciary. Accord Samuel-Bassett v. Kia Motors Am., Inc., 613 Pa. 371, 466-77, 34 A.3d 1, 58-65 (2011) (Saylor, J., dissenting). I maintain this position, in particular, in light of the broad-scale social effects likely to attend these sorts of modifications. In this regard, and more generally, I also incorporate by reference the remarks set forth in my dissent in the Kia case. See id.

      . Appellees alleged claims against Wal-Mart for breach of contract, unjust enrichment, and violations of the Pennsylvania Wage Payment and Collection Law ("WPCL”) and Pennsylvania Minimum Wage Act (“PMWA”).

      . This amount breaks down as follows:

        WPCL verdict: $ 49,568,541
      Common Law verdict: $ 29,178,873
      Statutory Interest: $ 10,163,863
      WPCL liquidated dam- $ 62,253,000
      ages:
      WPCL attorney fees: $ 33,813,986
      WPCL expenses: $ 2,670,325
      Additional attorney fees in the amount of $11,880,589 and expenses of $938,222 were ordered to be paid from the fund arising from the common law verdict.

      . The Superior Court’s correction of the error reduced the WPCL verdict amount from $49,568,541 to $49,289,541.

      . There are no federal due process claims asserted.

      . Wal-Mart stipulated at trial that as of one month prior to the change in policy, lawsuits alleging violations of Wal-Mart’s rest break policy had been filed in seven states: Colorado, Indiana, Louisiana, New Mexico, North Carolina, Ohio, and Texas.

      . Wal-Mart maintained "Time Clock Archive Reports” that showed total hours worked and total breaks taken by every employee for every shift worked. Wal-Mart's "Time Clock Punch Exception Reports” showed missed, inadequate, or overly-long breaks for all employees. These business records were used by Wal-Mart primarily for purposes of calculating payroll, and were analyzed by Appellees' experts. At the class-certification stage, Dr. Baggett testified that he had analyzed some 24,000 individual employee work shifts in twelve Pennsylvania WalMart stores between March 1998 and December 2000, and had concluded that some 40% of hourly workers had not received the number or duration of rest breaks to which they had been entitled. Dr. Baggett stated that his analysis squared with the results of the Shipley Audit. In challenging class certification, Wal-Mart presented the deposition testimony of its own expert to explain that the evidence relied upon by Appellees' experts to show missed breaks was not reliable because an employee’s failure to clock out and clock back in from any given break did not necessarily indicate that the employee had failed to take a break. In certifying the class, the trial court ruled that "the discrepancies in testimony [regarding the accuracy/reliability of the business records] will undoubtedly be an issue for jury determination at trial.” Trial Court Opinion, 12/27/05, at 11.

      . Dr. Landy also testified, inter alia, that Wal-Mart store managers earned significant year-end bonuses for maximizing profits, the key to which was keeping payroll costs down by intentionally understaffing their stores and forcing employees to miss breaks and work off-the-clock. He opined that a store manager could earn a $1300 annual bonus by simply shaving one minute per week per employee from a store's payroll obligation. He further explained that if a manager could shave one hour per week per employee from a store’s payroll obligation, the annual bonus would be $82,000. The Superior Court summarized Dr. Landy’s testimony as follows:

        Dr. Landy also discussed understaffing in Wal-Mart stores. He opined that Wal-Mart’s "preferred scheduling” program was the "root cause” of understaffing in the stores. There is a correlation, Dr. Landy stated, between understaffing and employees’ ability to receive breaks: the more understaffed the stores, the greater the pressure on managers not to provide breaks and on employees not to take breaks. He explained how the pressure to reduce payroll costs led to understaffing. Dr. Landy noted that the Wal-Mart store-manager-bonus system had a “negative effect” on compliance with Wal-Mart’s policies on breaks and pay. Lastly, Dr. Landy testified that after Wal-Mart conducted its Shipley Audit, Wal-Mart eliminated the requirement that employees punch the time clock for rest breaks; he opined that Wal-Mart eliminated "smoking gun" evidence of its policy violations to limit its liability.

        Braun, 24 A.3d at 887 (citations to record and footnotes omitted).
      In contrast, Wal-Mart’s retail expert, Wade Fenn, testified that there was no link between Wal-Mart’s managers' bonus compensation program and rest breaks, that Wal-Mart's practices were consistent with other big-box retailers, and that Dr. Landy’s testimony regarding hypothetical year-end bonuses had been based on an erroneous comparison of employee hours to store profitability.

      . Specifically, Wal-Mart asserts that the trial court, in certifying the class, and the Superior Court in affirming class certification, disregarded the "individualized issues [that] included whether class members actually missed breaks or had them cut short; whether, if a class member missed a break, his or her actions were voluntary; whether cashiers whose cash register log-in records did not match their time clock records actually worked off-the-clock; whether Wal-Mart intended to be contractually bound to each class member by the employment handbooks [promising paid breaks]; and whether each class member relied on the employee handbooks in deciding to work at Wal-Mart.” Appellants' Brief at 28. The Court notes that an order granting class certification will not be disturbed on appeal unless the court abused its discretion in applying the procedural requirements for class certification. Samuel-Bassett v. Kia Motors Am., Inc., 613 Pa. 371, 34 A.3d 1, 15 (2011). In deciding whether class action procedural requirements were misapplied or an incorrect legal standard was used in ruling on class certification, our standard of review is de novo and our scope of review is plenary. Id. Wal-Mart’s allegation that both courts below disregarded individualized issues does not prove misapplication of procedural requirements because the existence of distinguishing individual facts among class members is not fatal to certification. Id. at 23. Appellees here were not required to prove that the claims of all class members were identical. Class members may assert a single common complaint even if they have not all suffered actual injury, and demonstrating that all class members are subject to the same harm will suffice. Id. (citing Liss & Marion, P.C. v. Recordex Acquisition Corp., 603 Pa. 198, 983 A.2d 652, 666 (2009)). For this reason, we do not discern an abuse of discretion in the pre-trial certification decision.

      . See Samuel-Bassett, 34 A.3d at 34 ("Once the jury rendered its decision, the trial court’s certification of the class was no longer revocable. [Pa.R.C.P. 1710(d)], The only available avenue for [Defendant] to obtain relief from the judgment based on post-verdict arguments that evidence personal to [individual Plaintiff] was not probative of the class claims was to challenge the sufficiency or weight of the evidence.”).

      . Two groups filed amicus briefs in support of Appellees: one group consisted of various labor organizations and the other consisted of various legal aid and legal rights organizations. Four entities filed amicus briefs in support of Wal-Mart: the Defense Research Institute, the Product Liability Advisory Council, a group of national and state retail associations, and a group of national, state, and local chambers of commerce.

      . We are persuaded by the observation of the federal district court in Jackson v. Bloomberg, 298 F.R.D. 152, 168 (S.D.N.Y.2014), which declined to read into Behrend “a principle that would fundamentally undermine the use of the class action vehicle in the wage-and-hour context.” In addition, we subscribe to what appears to be the prevailing view that Dukes does not bar class actions in wage and hour cases. See Ensorv. Chipotle Mexican Grill, Inc., 300 F.R.D. 188, 191 (S.D.N.Y. 2014) ("The weight of authority rejects the argument that Dukes bars certification in wage and hour cases.”); Morris v. Affinity Health Plan, Inc., 859 F.Supp.2d 611, 616 (S.D.N.Y.2012) (collecting cases).

      . For example, presumably as a result of Wal-Mart compliance initiatives, the numbers of missed swipes for meal breaks dropped dramatically over the years. See N.T., Sept. 19, 2006 (afternoon), at 61-62. Nevertheless, in extrapolating rest-break data taken from 1998 through 2001 into the 2002 through 2006 timeframe, Appellees’ expert witness took the liberty of assuming that none of Wal-Mart’s compliance measures were of any effect whatsoever relative to the rest breaks. See id. at 67.

      . The ability of the General Assembly to alter the class action landscape via legislation is, of course, subject to constitutional limitations such as the due process constraints raised by Appellants.


author: PER CURIAM.

text:
    106 A.3d 669
    PRESBYTERIAN CHURCH OF CHESTNUT HILL, Respondent v. Rev. Dr. Sandra M. THOMAS, Petitioner.
    Supreme Court of Pennsylvania.
    Dec. 17, 2014.
   ORDER

PER CURIAM.

AND NOW, this 17th day of December, 2014, the Emergency Motion to Seal the Record is hereby GRANTED and the Petition for Allowance of Appeal is DENIED.


text:
    106 A.3d 669
    COMMONWEALTH of Pennsylvania, Respondent v. James Lynn HEFFERMAN, Petitioner.
    Supreme Court of Pennsylvania.
    Dec. 17, 2014.
   ORDER

PER CURIAM.

AND NOW, this 17th day of December, 2014, the Petition for Allowance of Appeal is GRANTED. The issues, as stated by petitioner, are:

(1) Whether a police officer can knowingly violate the MPJA to investigate an alleged crime outside of their jurisdiction with only reasonable suspicion that a crime might have occurred inside their jurisdiction without coming into contact with Defendant at any time inside the officer’s jurisdiction?
(2) Whether the Superior Court erred as a matter of law by not applying the exclusionary rule?


text:
    106 A.3d 669
    Mark Anthony ROBINSON, Petitioner v. AS YET UNIDENTIFIED SCI-ROCKVIEW SUPERVISORS in Both their Official and Individual Capacities, Brian Thompson, Deputy Superintendant for Facility Management, Robert Marsh, Deputy Superintendant for Centralized Services, Captain Dale, Unit Manager, Granlund, Jeffrey Rackovan, Grievance Coordinator/Superintendant Assistant, Lt. Grice, Officer Van Gorder, Officer Baney, Officer Davis, Officer John Doe 1, Officer John Doe 2, ‘Brenda’, LPN, ‘Pam’, LPN, ‘Ted’ (William) Williams, Chief Health Care Administrator, Respondents.
    Supreme Court of Pennsylvania.
    Dec. 17, 2014.
   ORDER

PER CURIAM.

AND NOW, this 17th day of December, 2014, the Petition for Allowance of Appeal and “Motion for Good Cause” are DENIED.


text:
    106 A.3d 670
    James D. SCHNELLER, Keepradnorsafe.com v. PENNSYLVANIA LIQUOR CONTROL BOARD Pietro’s Italian Restaurant, Intervenor. Petition of James D. Schneller.
    Supreme Court of Pennsylvania.
    Dec. 17, 2014.
   ORDER

PER CURIAM.

AND NOW, this 17th day of December, 2014, the Petition for Allowance of Appeal and “Motion to Reply to New Matter Stated in Answer of Respondent” are DENIED.


text:
    106 A.3d 670
    Rev. Dr. Sandra M. THOMAS, Petitioner v. The PRESBYTERIAN CHURCH OF CHESTNUT HILL, The Presbytery of Philadelphia, Inc., The Presbyterian Synod of the Trinity, Inc., and The Presbyterian Church (USA), Inc., Respondents.
    Supreme Court of Pennsylvania.
    Dec. 17, 2014.
   ORDER

PER CURIAM.

AND NOW, this 17th day of December, 2014, the Emergency Motion to Seal the Record in this matter is hereby Granted and the Petition for Allowance of Appeal is DENIED.


author: PER CURIAM. Justice SAYLOR, Chief Justice CASTILLE,

text:
    106 A.3d 671
    In re Philadelphia Traffic Court Judge Christine SOLOMON.
    Supreme Court of Pennsylvania.
    Argued Sept. 10, 2013.
    Filed Dec. 19, 2014.
    Michael A. Bloom, Esq., Morgan Lewis & Bockius, L.L.P., Philadelphia, Robert L. Byer, Esq., Harry Moody Byrne III, Esq., Robert McCarthy Palumbos, Esq., Duane Morris LLP, Pittsburgh, Forest Neil Myers, Esq., Forest N. Myers Law Offices, Shippensburg, Thomas G. Wilkinson Jr., Esq., Cozen O’Connor, Philadelphia, for Pennsylvania Bar Association.
    Robert A. Graci, Esq., Judicial Conduct Board of Pennsylvania, for Judicial Conduct Board.
    Samuel C. Stretton, Esq., for Christine Solomon.
    A. Taylor Williams, Esq., Philadelphia, Administrative Office of Pennsylvania Courts, for AOPC.
   ORDER

PER CURIAM.

AND NOW, this 19th day of December, 2014, upon consideration of the Joint Application for Leave to File Post-Submission Communication Pursuant to Pa.R.A.P. 2501(a) filed by the Judicial Conduct Board and Philadelphia Traffic Court Judge Christine Solomon, indicating that the Judicial Conduct Board has investigated the complaint filed against Judge Solomon and dismissed it with a Letter of Caution, the parties’ joint petition is GRANTED, the per curiam, orders entered in this matter dated May 21, 2013, and July 12, 2013 are VACATED, and the rule issued upon Judge Solomon, directing her to show cause why she should not be suspended for ninety days, is DISCHARGED.

Justice SAYLOR files a Concurring Statement.

Chief Justice CASTILLE files a Dissenting Statement.

Justice SAYLOR,

concurring.

I join the per curiam order deferring to the Judicial Conduct Board.

I agree with Mr. Chief Justice Castille that the issue of whether a member of the minor judiciary has willfully defied an administrative directive issued by this Court is not one to be treated lightly. To my mind, however, it does not follow that the present allegations of misconduct give rise to “extraordinary circumstances” justifying the exercise of our King’s Bench powers. In re Bruno, 627 Pa. 505, 584-85, 101 A.3d 635, 683 (2014); see also id. (“We have confidence that the standardized procedure of Article V, Section 18 [of the Pennsylvania Constitution] will, in the vast majority of circumstances, adequately respond to ... the necessities of protecting the integrity of the Unified Judicial System, against judicial impropriety and the appearance of judicial impropriety.” (emphasis omitted)). In my opinion, the prospect that a traffic court jurist failed to cooperate in an administrative review of traffic court operations falls into the “vast majority of circumstances.” Thus, I believe that deferring to the Judicial Conduct Board for the investigation and resolution of the allegations of misconduct against Judge Solomon is the appropriate course in the present context.

All else being equal, I might be sympathetic to the position that the confidentiality inherent in the Board’s proceedings and the private warning it issued to Judge Solomon leave room for additional action on the part of this Court. I do not consider all else to be equal, however, as I am particularly concerned by the manner in which the underlying investigation supervised by this Court has unfolded. I would proffer that such investigation does not itself give rise to confidence in the integrity of the proceedings.

To be specific, I am troubled by the way in which promises of confidentiality have been handled. When an administrative judge wrote to Judge Solomon requesting an interview, he stated without qualification that the interview would remain confidential and that Chadwick Associates would be providing a “confidential report” to the Chief Justice. Letter dated March 9, 2012, introduced as AOPC Hearing Exhibit C. See N.T., June 21, 2013, at 156 (reflecting that the exhibit was admitted into evidence). Yet, the ensuing report by Chadwick, which was made public, quoted some of Judge Solomon’s remarks and more generally summarized the substance of the interviews, thus rendering the promised confidentiality illusory. The Administrative Office of Pennsylvania Courts (“AOPC”) now suggests that use of the term “confidential” was nothing more than a device to dissuade interviewees from attempting to have counsel present, and that its sole purpose was to protect the federal prosecution from taint, and not to protect the confidentiality of the interviewed judges.

This is consistent with the representation of the administrative judge, Judge Glazer, who, in an August 21, 2013, affidavit — attached as Exhibit C to the AOPC’s Motion to Vacate— represented that the limited purpose of promising confidentiality in his letters to the Traffic Court judges was to clarify that the recipient of the letter could not bring counsel to the interview, and that the term “confidential” was not intended to convey that the information would actually be kept secret. Attachment 3 to that affidavit includes a February 29, 2012, email from William Chadwick to Judge Glazer suggesting that the Court Administrator of Pennsylvania “agrees that the judges may not have their attorneys at the interviews and advised that we address the issue subtly by terming the interviews ‘confidential’ in the letter[s ]” (emphasis added).

The unusual nature of the inquiry into Judge Solomon’s conduct also put the AOPC into a difficult position. While initially explaining to the Special Master that the AOPC was assuming a neutral role, see N.T., June 21, 2013, at 8 (“[T]he Supreme Court order directed the AOPC to participate. We certainly agree that we will not take a prosecutorial stance.”), the AOPC’s counsel proceeded to present witnesses who testified that Judge Solomon refused to cooperate and lied during the administrative review — including William Chadwick, see, e.g., id. at 36-37 (“Q: What did your operational review conclude as to Judge Solomon, Mr. Chadwick.... A: Well, I concluded that she had lied to us. I concluded that she had not cooperated.”), and one of his associates, see id. at 107 (“Q: Do you remember [Judge Solomon] saying, I will not cooperate? A: Yes.”) — and to cross-examine Judge Solomon during her testimony. See id. at 191-205. Later, the AOPC submitted papers to this Court complaining that it would be “prejudiced” if it could not respond to Judge Solomon’s proposed findings of fact and conclusions of law with its own proposed findings and conclusions, together with “[r]esponsive [argument” responding to the advocacy submitted by Judge Solomon on her own behalf. See Motion to Vacate at 6-7. In its proposed conclusions of law, the AOPC offered that, at the June 21, 2013, hearing, the witnesses called by the AOPC testified credibly, but Judge Solomon’s testimony was “not credible.” See id., Exhibit A, at 15-18.

To my mind, the manner in which the inquiries into Judge Solomon’s conduct proceeded have been, at the very least, irregular. For this reason, as well as the absence of any ongoing exigency, I believe that, at this late juncture, the Court has reached an appropriate determination: that no further investigation of Judge Solomon is needed to protect the integrity of the judicial system in view of the disposition reached by the Judicial Conduct Board — a tribunal that is both constitutionally authorized to conduct such an investigation and, just as importantly, is less closely connected than this Court with the circumstances noted above.

Chief Justice CASTILLE,

dissenting.

The Court today discharges its rule to show cause entered upon the Honorable Christine Solomon, Judge of the Philadelphia Traffic Court, and vacates this Court’s related per curiam orders of May 21 and July 12, 2013. Today’s order does not specifically address the petition of the Judicial Conduct Board (the “JCB” or “Board”), which is technically the matter at issue on appeal; however, the Court’s disposition of the underlying orders issued upon Judge Solomon essentially renders the JCB petition moot. For the reasons that follow, I cannot join the per curiam disposition. In my view, it is vital that the Court retains responsibility to the Pennsylvania Constitution to vindicate its authority over the Unified Judicial System.

By way of background, Judge Christine Solomon was elected to the Philadelphia Traffic Court bench in November 2011, and began hearing cases in March 2012. Her election coincided with the turmoil generated by the federal investigation and indictment of nine Philadelphia Traffic Court judges on felony charges predicated upon allegations that judges of that court and others engaged in ex parte communications and gave preferential treatment to certain ticketholders, “most commonly by ‘fixing’ tickets for those with whom they were politically and socially connected.” See U.S. v. Sullivan, 2013 WL 3305217 (E.D.Pa.2013). Having taken the bench after the federal crimes charged occurred, Judge Solomon, of course, was not among the indicted jurists.

However, the federal investigation prompted the First Judicial District (the “FJD”) — acting upon authority delegated by this Court — to commence review of Traffic Court operations. See 42 Pa.C.S. §§ 1701, 1721, & 102 (Supreme Court may delegate administrative authority to any court or other officer of Unified Judicial System). The immediate goal of the review was to secure and preserve evidence, to facilitate full cooperation with the federal investigation, and to reestablish the probity of Traffic Court operations. The administrative review was to be supervised by the newly appointed Administrative Judge of the Traffic Court, the Honorable Gary S. Glazer, Judge of the Philadelphia County Court of Common Pleas. This Court, via correspondence this author sent as liaison Justice to the FJD, informed the President Judge of Traffic Court, then-judge Thomasine Tynes, of the expanded mandate of the FJD and that the full cooperation of all Traffic Court personnel was expected.

As an aspect of the review, Judge Glazer and the FJD’s consultant, Chadwick Associates, conducted interviews with Traffic Court employees and judges, including Judge Solomon. The subsequent report prepared by Chadwick Associates (“FJD Report”) alleged that Judge Solomon had refused to cooperate with the administrative review, by failing to respond or by failing to respond forthrightly to questions.

On April 18, 2013, premised upon the conclusions of the FJD Report, the Court entered upon Judge Solomon a Rule to Show Cause why Judge Solomon “should not be subject to a suspension from her judicial duties without pay for a period of ninety (90) days based upon her refusal to cooperate with the [Supreme] Court-ordered administrative review of the Traffic Court.” The rule was returnable on April 29, 2013. On April 24, 2013, Judge Solomon answered the Rule to Show Cause, challenging the conclusions of the FJD Report. On May 21, 2013, upon review of Judge Solomon’s answer, this Court appointed the Honorable William H. Platt, Senior Judge of the Superior Court of Pennsylvania, to serve as the Court’s Master, and directed Judge Platt to “gather necessary factual information and consider pertinent legal questions,” and to “forward his Report and Recommendations, detailing proposed findings of fact and conclusions of law, as soon as practicable.” The Administrative Office of Pennsylvania Courts was instructed to attend any hearings and participate as necessary. See In re Solomon, 620 Pa. 216, 66 A.3d 764 (2013) (per curiam). Judge Solomon asked the JCB to participate.

In June 2013, Judge Solomon and the JCB (“petitioners”) filed an application which, in relevant part, challenged the authority and jurisdiction of this Court to enter the rule to show cause upon Judge Solomon. According to petitioners, such authority was reposed exclusively in the Court of Judicial Discipline (the “CJD”). The JCB also represented that it was pursuing an investigation of Judge Solomon in light of the FJD Report, even though such an investigation by the Board presumably is confidential. The Court permitted the JCB to participate and, in October 2014, the Court resolved the broad constitutional claims raised by petitioners in the companion case implicating Judge Mark A. Bruno. In re Bruno, 627 Pa. 505, 101 A.3d 635 (2014).

In Bruno, the Court held that the supervisory and administrative authority articulated in Section 10(a) of Article V of the Pennsylvania Constitution is a legacy aspect of the Court’s King’s Bench authority, which persists as a legal predicate for gathering information via a special master and, upon review of the master’s recommendations, for any additional actions by our Court, including the suspension of a sitting jurist. Employing the King’s Bench authority is discretionary and, in cases of judicial misconduct for which Article V, Section 18 provides a disciplinary mechanism, the exercise of discretion is appropriate only in extraordinary circumstances. The separate Bruno matter focused largely upon the residual role of the Court in a case in which a sitting jurist is charged with felonious offenses (in Bruno, relating to conduct on the bench), a circumstance that raises the prospect of an interim suspension pending resolution of the criminal charges. Interim suspensions are addressed expressly by Article V, Section 18 of the Pennsylvania Constitution and squarely implicate the competing authority of the CJD. See Pa. Const, art. V, § 18(d). By contrast, the central issue in dispute involving Judge Solomon is whether an inquiry into a jurist’s compliance with administrative directives from this Court (here, relating to cooperation with the FJD’s efforts to reform the Philadelphia Traffic Court) is a task best undertaken by this Court’s Special Master, or whether the Court should defer to the judicial disciplinary mechanism of the JCB and the CJD.

This case obviously raises concerns for this Court that are distinct from those in Bruno. Solomon originated purely from the exercise by this Court of its constitutional administrative and supervisory responsibilities. Judge Solomon’s alleged failure to respond, or to respond forthrightly, to court-appointed interviewers whose task was recommending reform measures in light of evidence of pervasive corruption in the very court upon which she sat — if proven — would be an apparent “unjustified defiance” of this Court’s express delegated authority to conduct a review of Traffic Court operations. See In re Assignment of Avellino, 547 Pa. 385, 690 A.2d 1138, 1143-44 (1997) (“Avellino I”) (footnote omitted). A factual inquiry by this Court, via a special master, into Judge Solomon’s conduct is a logical extension of the administrative review already conducted by the FJD. Whether disciplinary action by the JCB or the CJD was also appropriate is a separate matter. See Bruno, 101 A.3d at 686-87.

The JCB’s petition revealed that it was investigating Judge Solomon; but for that representation, forwarded to the Court only because of the Rule to Show Cause we issued upon the jurist, we would have no knowledge whether the Board was investigating Judge Solomon for her alleged refusal to cooperate. It appears that, while this matter was pending, and unbeknownst to the Court, the JCB and Judge Solomon have settled the judicial disciplinary issue arising under Article V, Section 18 of the Constitution. Thus, on December 5, 2014, the Board and Judge Solomon filed a post-submission communication informing the Court that, Judge Solomon having waived the confidentiality that would otherwise apply to JCB proceedings, the Board’s investigation has “concluded” and has “resulted in a dismissal of the complaint filed in relation to Judge Solomon, with a Letter of Caution,” which is “a private warning of judicial misconduct.” The post-submission communication does not detail the precise nature of the complaint the Board actually pursued and what its findings were; from the judicial disciplinary point of view, the matter will remain confidential, as mandated by Article V, Section 18(a)(8) (“All proceedings of the board shall be confidential except when the subject of the investigation waives confidentiality.”).

In light of the conclusion of the JCB investigation, the Court today vacates our order appointing Judge Platt and discharges the rule to show cause issued upon Judge Solomon, thereby ending the case as an administrative matter. In my view, the notion that the Court must, or even should, defer to the investigation and outcome of the judicial disciplinary apparatus in a case involving whether a member of the minor judiciary has defied this Court’s administrative directive is misguided. We do not know, for example, if the JCB found as fact that Judge Solomon did not defy our authority; or, if the Board instead found that she did defy the Court but, in the Board’s estimation, such defiance was excusable or de mini-mus. Or, it could be that, given the JCB’s limited resources, resolution by agreement seemed to be the best resolution. Indeed, we do not even know the standard by which the Board measures defiance, assuming Judge Solomon’s alleged defiance was the focus of the Board’s endeavor. I think the Court, and the public, have a right to know precisely what happened in this instance, and the confidential process and outcome resolving the judicial disciplinary matter here is insufficient. I cast no aspersions on the Board’s action in this matter; it has a different constitutional charge and responsibility. But, I do believe the situation here demonstrates the unforeseen consequences arising from the amendment to Article V, Section 18(a)(8) of the Constitution.

Furthermore, the Court has confronted similar situations in the past and has acted to vindicate the authority of the Court and to assure the proper functioning of the judicial system. See, e.g., In re Assignment of McFalls, 568 Pa. 228, 795 A.2d 367, 373 (2002) (common pleas judge failed to comply with judicial assignment; Court imposed thirty-day suspension without pay as “proper response” to jurist’s defiance and, additionally, referred matter to JCB); In re Avellino, 547 Pa. 398, 690 A.2d 1144, 1145-46 (1997) (‘Avellino II”) (judicial officer refused to comply with assignment to preside over criminal trials in “felony-waiver program” of court of common pleas; three-month suspension without pay appropriate remedial sanction). This is not a typical case of alleged judicial misconduct. To the extent Bruno applies at all — except to reaffirm our authority — the circumstances of Judge Solomon’s alleged resistance to the FJD’s reform efforts, and by extension her supposed defiance of the legitimate authority delegated by this Court, if proven, are certainly “extraordinary” and require, in my opinion, further action to vindicate our authority-

Given the nature of the JCB resolution, any information gathered by the Board will remain confidential and the Court has no opportunity to make a reasoned decision whether its administrative authority has been vindicated. If our historical and constitutional powers of supervision are to be effective, when affronts to our authority occur, such as that alleged here of Judge Solomon, it is essential, at a minimum, to develop a factual record of the matter which would be available to this Court. In this vein, I reiterate the observation of the Justices of the Court in 1862 on its King’s Bench power, which is equally applicable in this context: because the Court’s authority “is a trust for the people of Pennsylvania, judges have no right, from motives of ease and convenience, to surrender, weaken, or obscure, by judicial refinements, one single one of the powers granted.” Chase v. Miller, 41 Pa. 403, 411 (1862).

In light of these considerations, my preference remains to continue the proceedings before Judge Platt as outlined in our April 18, 2013, Order. This resolution has the advantage of allowing the Court access to information necessary to determine whether any action, including imposition of our own administrative sanction, is appropriate. See Annenberg v. Commonwealth, 562 Pa. 581, 757 A.2d 338 (2000) (review of master’s findings and recommendations is de novo where Court exercised and did not relinquish plenary jurisdiction; although findings are not binding upon this Court, they are afforded due consideration).

I respectfully dissent.

      . See AOPC's "Motion to Vacate the Court’s July 12, 2013 Stay, or in the Alternative, to Lift the Stay for the Limited Purpose of Allowing the Filing of AOPC’s Proposed Responsive Findings of Fact, Conclusions of Law, Argument, and Other Supplemental Information,” dated August 23, 2013 ("Motion to Vacate”), Exhibit A, at 31; see also id. at 19 (”[T]he confidentiality referenced in the letter was intended by Judge Glazer solely to indicate that interviewees would not be permitted to bring counsel into the interview.”); cf. id. at 8-9, 29 (suggesting that the term "confidential” was only meant to convey that information would not be directly transmitted to federal authorities, notwithstanding that such authorities would be able to obtain it if it was published); id. at 11 (explaining that Judge Solomon was not informed of her right to counsel on the basis that the information would not be directly shared with the FBI). See generally id. at 20 (positing that it was unreasonable for Judge Solomon to believe that "confidential” meant "secret").

      . Judge Solomon's term ends on December 31, 2017. Pa. Const, art. V, § 15(a). The General Assembly has amended Title 42 to provide that the composition of the Philadelphia Traffic Court is limited to "two judges: (1) who are serving on the court on the effective date of this subsection; and (2) whose terms expire on December 31, 2017.” 42 Pa.C.S. § 1321. Section 1321 thus specifically addresses the tenures of the last two elected Traffic Court Judges: Judge Solomon and Judge Michael J. Sullivan.

      . This author is not the first to recognize the difficulties inherent in the task of the JCB, as presently constituted. In its recommendations respecting judicial discipline, the Interbranch Commission on Juvenile Justice stated, in relevant part:
      2. Long term recommendations:
      With regard to the long term recommendations, the commission has come to two inescapable conclusions: (1) the Judicial Conduct Board lacks sufficient oversight to assure that it is fulfilling its constitutional duties and obligations; and (2) the existing confidentiality provisions relating to the work of the Judicial Conduct Board prohibit any meaningful oversight and accountability.
      In order to effectuate the needed reforms to the Judicial Conduct Board, the commission recommends the creation of a group, perhaps similar to the composition of the Beck Commission, to conduct a constitutional review and study to determine what changes are necessary to assure oversight and accountability of the Judicial Conduct Board. In particular, the commission emphasizes the following areas for review:
      a. The appointment process for board members and the general board composition;
      b. The powers and duties of the board;
      c. Determination if the general rules governing the conduct of its members are adequate to discharge the members’ constitutional mandate and if they are being adequately implemented;
      d. The creation of an appellate mechanism to the Court of Judicial Discipline for review of the Judicial Conduct Board’s decision to dismiss a complaint;
      e. A careful review and revision of Article V, Section 18(a)(8) as it relates to confidentiality and accountability of the Judicial Conduct Board in fulfilling its constitutional obligations;
      f. The creation of an outside administrator and record keeper. Such an administrator would be bound by the confidentiality standards mandated for the board and would, therefore, have access to details about complaints and their handling. The administrator would then be in a position to audit the board’s specific performance. When warranted, the administrator could promptly question the failure to address complaints, or why investigations were allowed to languish.
      Interbranch Commission on Juvenile Justice, Report, at 45 (May 2010), available online at www.pacourts.us/Links/Public/Interbranch CommissionJuvenileJustice.htm (last visited December 16, 2014).


text:
    106 A.3d 677
    OCIRNE, INC. t/a Provco Partners, L.P. and 10 East Germantown Pike, LLC v. NEW TEES CO., L.P. Petition of Ocirne, Inc. t/a Provco Partners, L.P.
    Supreme Court of Pennsylvania.
    Dec. 23, 2014.
   ORDER

PER CURIAM.

AND NOW, this 23rd day of December, 2014, the Petition for Allowance of Appeal is GRANTED. The issues as stated by petitioner are:

(1) Did the Superior Court correctly hold that successive periods of adverse use of a property may not be “tacked” to establish the requisite twenty-one years for a prescriptive easement claim unless the prescriptive easement claim is specifically referred to in the deed between the successive landowners?
(2) Did the trial court misapply Pennsylvania law by requiring Proveo to prove that the prior owner of the Proveo Property “asserted” a prescriptive easement claim to the owners of the New Tees Property, and by failing to recognize that proof of an open, notorious, continuous and uninterrupted use for the prescriptive period, without evidence to explain how it began, raises a presumption that the use is adverse and under a claim of right?


text:
    106 A.3d 678
    COMMONWEALTH of Pennsylvania, Appellee v. Kevin JOHNSON, Appellant.
    Supreme Court of Pennsylvania.
    Argued Nov. 18, 2014.
    Decided Dec. 24, 2014.
    Leonard Sosnov, Esq., Harrisburg, for Pennsylvania Association of Criminal Defense Lawyers, amicus curiae.
    Brandon Donald Pack, Esq., Glenn D. Welsh, Esq., Berks County Public Defender’s Office, Richard Alan Joyce Jr., Esq., Lebanon, for Kevin Johnson.
    Alisa Rebecca Hobart, Esq., Berks County District Attorney’s Office, John T. Adams, Esq., for Commonwealth of Pennsylvania.
    CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, STEVENS, JJ.
   ORDER

PER CURIAM.

AND NOW, this 24th day of December, 2014, the appeal is dismissed as having been IMPROVIDENTLY GRANTED.

Chief Justice CASTILLE did not participate in the consideration or decision of this matter.


text:
    106 A.3d 678
    In re Nomination Petition of Mel M. MARIN for the Democratic Nomination for U.S. Representative from the 3rd Congressional District. Appeal of Mel M. Marin.
    Supreme Court of Pennsylvania.
    Dec. 24, 2014.
   ORDER

PER CURIAM.

AND NOW, this 24th day of December, 2014, the Application to Dismiss is granted.