author: WETTICK, /.,

text:
    Chevalier v. General Nutrition Centers Inc.

      C.P. of Allegheny County,
    No. GD-13-017194

      Adrian N. Roe and Michael D. Simon, for plaintiffs.

      Brad A. Funari and Laura A. Lange, for defendants.
    Oct. 20, 2014
   WETTICK, /.,

In this class action litigation, the subjects of this opinion and order of court are plaintiffs’ motion for partial summary judgment or in the alternative, for judgment on the pleadings and defendants’ motion for summary judgment. The issue addressed by both motions is whether defendants’ method of calculating the pay of salaried employees who work overtime complies with the Pennsylvania Minimum Wage Act (PMWA), 43 P.S. §333.101 et seq. There is no Pennsylvania appellate court case law that has addressed this issue.

Plaintiffs worked as store managers, assistant managers, or senior store managers for defendants (“GNC”) during the period between 2009 and April 2011. Plaintiffs were salaried employees whose weekly pay was the same no matter the number of hours worked. However, when a salaried employee worked more than forty hours in a workweek, GNC was also required to pay overtime for the hours worked over the forty-hour workweek.

Both parties agree that the PMWA requires a payment of at least one and one-half of the employee’s “regular rate” for each hour worked in excess of forty hours. However, they disagree over how to calculate the employee’s “regular rate.”

The following illustration sets forth the method by which GNC calculates overtime: the salaried employee is paid $1,000 a week regardless of the number of hours worked. In a particular week, the salaried employee worked 50 hours. GNC divides the weekly pay ($1,000) by the number of hours worked (50). This produces a $20 amount which GNC treats as the employee’s “regular rate.” GNC divides the $20 amount by two, which produces a $10 amount. This represents 50% of the employee’s “regular rate.” GNC multiplies the $10 amount by the number of hours of overtime (10). This amount ($100) is paid as overtime. Thus, for this workweek, the salaried employee is paid $1,100.

Plaintiffs contend that the “regular rate” should be calculated based on what is earned in a forty-hour workweek. Thus, the “regular rate” should be calculated by dividing the $1,000 weekly payment by forty hours. This produces a $25 per hour amount which plaintiffs treat as their “regular rate.”

Plaintiffs next multiply each hour of overtime by one and one-half of this dollar amount, which, according to plaintiffs, is consistent with the FLSA’s use of a forty-hour workweek. This produces an amount for ten hours of overtime of $375. Thus, for this workweek, the salaried employee is paid $1,375. This will be referred to as the forty-hour method of compensating salaried employees.

These two methods of calculating overtime produce very different results. For the next examples, the workweek pay of the salaried employee is also $1,000.

GNC’S METHOD: THE FLUCTUATING WORKWEEK

Week One-50 Hours

Weekly Salary $1,000.00

Employee’s Regular Rate $20.00/hour ($1,000/50)

50% of the Regular Rate $10.00

Overtime (10 x $10.00) $100.00

Total $1,100.00

Week Two — 70 Hours

Weekly Salary $1,000.00

Employee’s Regular Rate $14.28/hour ($1,000/70)

50% of the Regular Rate $7.14

Overtime (30 x $7.14) $214.20

Total $1,214.20

Week Three — 80 Hours

Weekly Salary $1,000.00

Employee’s Regular Rate $12.50/hour ($1,000/80)

50% of the Regular Rate $6.25

Overtime (40 x $6.25) $250.00

Total $1,250.00

Differences between week two and week one: Employee worked 20 additional hours — earned an additional $114.20 — i.e., $5.71 per hour for the hours of overtime between 50 and 70.

Differences between week three and week one: Employee worked an additional 30 hours — earned an additional $150.00 — which equates to $5.00 per hour for the 30 additional hours of overtime between week one (50 Hours) and Week Three (80 Hours).

PLAINTIFF’S FORTY — HOUR METHOD

Week One — 50 Hours

Weekly Salary $1,000.00

Employee’s Regular Rate $25.00/hour ($1,000/40)

150% of the Regular Rate $37.50

Overtime (10 x $37.50) $375.00

Total $1,375.00

Week Two — 70 Hours

Weekly Salary $1,000.00

Employee’s Regular Rate $25.00/hour ($1,000/40)

150% of the Regular Rate $37.50

Overtime (30 x $37.50) $1,125.00

Total $2,125.00

Week Three — 80 Hours

Weekly Salary $1,000.00

Employee’s Regular Rate $25.00/hour ($1,000/40)

150% of the Regular Rate $37.50

Overtime (40 x $37.50) $1,500.00

Total $2,500.00

Differences between week one and week two: Employee worked 20 additional hours and earned an additional $750 ($37.50 per hour).

Differences between week one and week three: Employee worked 30 additional hours and earned an additional $1,125.00 ($37.50 per hour).

There is a third construction that neither party has proposed. The “regular rate” will be based on a forty-hour week, but for a salaried employee, the salary covers the first 100% of the overtime. See Goodrow v. Lane Bryant, Inc., 732 N.E.2d 289 (Mass. 2000).

PENNSYLVANIA MINIMUM WAGE LAW AND REGULATIONS

Both parties agree that the question of whether defendants’ method of calculating overtime is permitted under the PMWA is governed by 43 P.S. §333.104(c) of the PMWA and regulations promulgated pursuant to this section. Section 333.104(c) ofthe PMWA reads as follows:

(c) Employes shall be paid for overtime not less than one and one-half times the employe’s regular rate as prescribed in regulations promulgated by the secretary: Provided, That students employed in seasonal occupations as defined and delimited by regulations promulgated by the secretary may, by such regulations, be excluded from the overtime provisions of this act: And provided further, That the secretary shall promulgate regulations with respect to overtime subject to the limitations that no pay for overtime in addition to the regular rate shall be required except for hours in excess of forty hours in a workweek....

The relevant regulations promulgated pursuant to 43 P.S. §333.104(c) are set forth in 34 Pa.Code §§231.41, 231.42, and 231.43:

231.41. Rate.

Except as otherwise provided in section 5(a)-(c) of the act (43 P.S. §333.105(a)-(c)), each employee shall be paid for overtime not less than 1-1/2 times the employee’s regular rate of pay for all hours in excess of 40 hours in a workweek.

§231.42. Workweek.

The term workweek shall mean aperiod of 7 consecutive days starting on any day selected by the employer. Overtime shall be compensated on a workweek basis regardless of whether the employee is compensated on an hourly wage, monthly salary, piece rate or other basis. Overtime hours worked in a workweek may not be offset by compensatory time off in any prior or subsequent workweek.

§231.43. Regular rate.

For purposes of these §§231.41-231.43 (relating to overtime pay), the regular rate at which an employee is employed shall be deemed to include all remuneration for employment paid to or on behalf of the employee, but it shall not be deemed to include the following:
(1) Sums paid as gifts, payments in the nature of gifts made at Christmas time or on other special occasions as a reward for service, the amounts of which are not measured by or dependent on hours worked, production or efficiency.
(2) Payments made for occasional periods when no work is performed due to vacation, holiday, illness, failure of the employer to provide sufficient work or other similar cause, reasonable payments for traveling expenses or other expenses incurred by an employee in the furtherance of his employer’s interests and properly reimbursable by the employer, and other similar payments to an employee which are not made as compensation for the employee’s hours of employment.
(3) Sums paid in recognition of services performed during a given period if:
(i) Both the fact that payment is to be made and the amounts of the payment are determined at the sole discretion of the employer at or near the end of the period and not pursuant to any prior contract, agreement or promise causing the employee to expect such payments regularly.
(ii) The payments are made pursuant to a bona fide profit-sharing plan or trust or bona fide thrift or savings plan without regard to hours of work, production or efficiency.
(iii) The payments are talent fees paid to performers, including announcers on radio and television programs.
(4) Contributions irrevocably made by an employer to a trustee or third person under a bona fide plan for providing old-age, retirement, life, accident or health insurance or similar benefits for employees.
(5) Extra compensation provided by a premium rate for certain hours worked by the employee in any day or workweek because such hours are hours worked in excess of 8 in a day or in excess of the maximum workweek applicable to the employee under §231.41 (relating to rate) or in excess of the normal working hours or regular working hours of the employee, as the case may be.
(6) Extra compensation provided by a premium rate paid for work by the employee on Saturdays, Sundays, holidays or regular days of rest, or on the sixth or seventh day of the workweek, where such premium rate is not less than 11/2 times the rate established in good faith for like work performed in nonovertime hours on other days.
(7) Extra compensation provided by a premium rate paid to the employee in pursuance of an applicable employment contract or collective bargaining agreement for work outside of the hours established in good faith by the contract or agreement as the basic, normal or regular workday not exceeding 8 hours or workweek not exceeding the maximum workweek applicable to the employee under §231.41 (relating to rate), where the premium rate is not less than 11/2 times the rate established in good faith by the contract or agreement for like work performed during the workday or workweek.
(b) If the employee is paid a flat sum for a day’s work or for doing a particular job without regard to the number of hours worked in the day or at the job and if he receives no other form of compensation for services, his regular rate is determined by totaling all the sums received at the day rates or job rates in the workweek and dividing by the total hours actually worked. He is then entitled to extra half-time pay at this rate for hours worked in excess of 40 in the workweek.
(c) No employer may be deemed to have violated these §§231.41-231.43 (relating to overtime pay) by employing an employee for a workweek in excess of the maximum workweek applicable to the employee under § 231.41 (relating to rate) if the employee is employed under a bona fide individual contract or under an agreement made as a result of collective bargaining by representatives of employees, if the duties of the employee necessitate substantially irregular hours of work. For example, where neither the employee not the employer can either control or anticipate with a degree of certainty the number of hours the employee must work from week to week, where the duties of the employee necessitate significant variations in weekly hours of work both below and above the statutory weekly limit on nonovertime hours, or where the substantially irregular hours of work are not attributable to vacation periods, holidays, illness, failure of the employer to provide sufficient work, or other similar causes, and the contract or agreement:
(1) Specifies a regular rate of pay of not less than the minimum hourly rate and compensation at not less than 11/2 times the rate for hours worked in excess of the maximum workweek.
(2) Provides a weekly guaranty of pay for not more than 60 hours based on the rates so specified.
(d) No employer may be deemed to have violated these §§231.41-231.43 by employing an employee for a workweek in excess of the maximum workweek applicable to the employee under §231.41 if, under an agreement or understanding arrived at between the employer and the employee before performance of the work, the amount paid to the employee for the number of hours worked by him in the workweek in excess of the maximum workweek applicable to the employee under §231.41:
(1) In the case of an employee employed at piece rates, is computed at piece rates not less than 11/2 times the bona fide piece rates applicable to the same work when performed during nonovertime hours.
(2) In the case of an employee’s performing two or more kinds of work for which different hourly or piece rates have been established, is computed at rates not less than 11/2 times the bona fide rate applicable to the same work when performed during nonovertime hours.
(3) Is computed at a rate not less than 11/2 times the rate established by the agreement or understanding as the basic rate to be used in computing overtime compensation thereunder; and if the average hourly earnings of the employee for the workweek, exclusive of payments described in subsection (a)(l)-(7), are not less than the minimum hourly rate required by applicable law and if extra overtime compensation is properly computed and paid on other forms of additional pay required to be included in computing the regular rate.
(e) Extra compensation paid as described in subsection (a)(5)-(7) shall be creditable toward overtime compensation payable under these §§231.41-231.43 (relating to overtime pay).
(f) No employer may be deemed to have violated these § §231.41 -231.43 by employing an employee of a retail or service establishment for a workweek in excess of 40 hours if:
(1) The regular rate of pay of the employee is in excess of 1 1/2 times the minimum hourly rate applicable.
(2) More than half of the employee’s compensation for a representative period, not less than 1 month, represents commissions on goods or services. In determining the proportion of compensation representing commissions, all earnings resulting from the application of a bona fide commission rate shall be deemed commissions on goods or services without regard to whether the computed commissions exceed the draw or guarantee.

The PMWA provides that employees shall be paid for overtime “not less than one and one-half times the employe’s regular rate as prescribed in regulations promulgated by the secretary....” 43 P.S. §333.104(c). The PMWA does not define “regular rate.” However, the Act does authorize the secretary to promulgate regulations that could, inter alia, define the term “regular rate” as used in the PMWA and 34 Pa.Code §231.41. The regulations set forth above were promulgated pursuant to this legislative authorization. None provide guidance as to whether an employer may use the fluctuating work week to calculate overtime pay for salaried employees.

The initial regulation (§231.41) titled rate repeats the language within the PMWA that employees shall be paid for overtime “not less than 1-1/2 times the employee’s regular rate of pay for all hours in excess of 40 hours in a workweek.” It provides no guidance as to the meaning of “regular rate.”

The second regulation (§231.42) does not address the meaning of “regular rate.” This regulation, titled Workweek, provides that overtime shall be compensated on a workweek basis.

The third regulation (§231.43), titled Regular Rate, initially describes seven categories of payments for or on behalf of an employee that shall not be included in calculating the “regular rate” of pay, a term that remains undefined.

Neither party suggests that this third regulation supports that party’s interpretation of “regular rate” as applied to salaried employees.

The remainder of 34 Pa.Code §231.43 does not address the definition of “regular rate” as applied to a salaried nonexempt employee.

Section 231.43(b) governs overtime for employees paid a flat sum for a day’s work or for doing a particular job without regard to the number of hours worked in the day or at the job — this employee’s “regular rate is determined by totaling all the sums received at the day rates or job rates in the workweek and dividing by the total hours actually worked.” Id. The employee is then entitled to extra half-time pay at this rate for hours worked in excess of 40 in the workweek. Id. At oral argument, each party agreed that this subsection did not apply to salaried employees who work overtime. The obvious reason is that plaintiffs are not paid a flat sum for a day’s work or for doing a particular job without regard to the number of hours worked.

Neither party contends that 34 Pa.Code §231.43(c) applies. This provision creates a safe harbor where the duties of the employee necessitate substantially irregular hours of work such as where neither the employee nor the employer can control or anticipate with a degree of certainty the number of hours the employee must work from week to week, and where the duties of the employee necessitate significant variations in weekly hours of work both below and above the statutory weekly limit on nonovertime hours. The obvious reason for neither party relying on this subsection is that the subsection does not describe the work that plaintiffs perform.

I next consider section of 34 Pa.Code §231.43 (d)(3) which states that an employer shall not be deemed to have violated the PMWA if the employer pays not less than one and one-half times a “rate established by the agreement or understanding [of the employer and the employee] as the basic rate to be used in computing overtime compensation.” At oral argument, the parties stated that they were not looking to this provision to support their proposed interpretations of the term “regular rate” as applied to salaried employees. The obvious reason is that there was no agreement or understanding arrived at between plaintiffs and defendants as to the basic rate to be used in computing overtime compensation.

CONCLUSION

The PMWA provides for overtime pay at one and one-half times the employee’s “regular rate.” 43 P.S. §333.104(c). “Regular rate” is an undefined term. The regulations promulgated pursuant to the provisions of the PMWA providing for the secretary to promulgate regulations do not define “regular rate.” Consequently, the answer to the question of whether an employer can use the fluctuating workweek to calculate the overtime pay owed to a salaried employee cannot be found in the language of the legislation or accompanying regulations.

CASE LAW

There is no Pennsylvania appellate court case law which has considered how the “regular rate” shall be calculated where a salaried non-exempt employee works more than forty hours in a workweek. Plaintiffs contend that three recent cases decided by Pennsylvania Federal District Courts, applying Pennsylvania state law, support plaintiffs: Verderame v. RadioShackCorp.,_F.Supp.2d _(2014), No. 2:13-2539, United States District Court for the Eastern District of Pennsylvania, July 10, 2014; Foster v. Kraft Foods Global, Inc., 285 F.R.D. 343 (W.D. Pa. 2012); and Cerutti v. Frito-Lay, Inc., 777 F.Supp.2d 920 (W.D. Pa. 2011). I disagree.

These cases do not address the issue of whether an employer’s utilizing the fluctuating workweek to compensate a salaried employee who works overtime is permitted by the PMWA where a basic rate has not been established by agreement. In each of these cases, the court ruled that a basic rate to be used in computing overtime compensation was established by agreement or understanding within the meaning of §231.43(d)(3) of the regulations and that, where the rate is established by agreement or understanding, the overtime rate cannot be “less than 11/2 times” this basic rate established by the agreement or understanding. I believe that the rulings of the Federal District Court are supported by clear and unambiguous language that does not provide any guidance where the parties have not established a basic rate by agreement or understanding.

See Cerutti where the court ruled:

Section 231.43(d)(3) clearly requires that OT pay be computed at “1 1/2 times” the rate established by the agreement or understanding. Id. Under a plain reading of that regulation, Frito-Lay cannot have it both ways. Frito-Lay concedes that it paid plaintiffs pursuant to 34 PA. CODE §231.43(d). If so, it cannot comply with that section without paying plaintiffs at an OT rate of one and one-half times the plaintiffs’ regular rate. Therefore, the court need not predict whether Pennsylvania courts would recognize the FWW method of OT payment. Similarly, the court need not consider communications from the Pennsylvania Department of Labor and Industry, discussing whether Pennsylvania law would recognize the FWW.

With respect to whether Frito-Lay’s method of compensating plaintiffs according to the FWW would be lawful in Pennsylvania, the court finds this question is irrelevant because Frito-Lay’s OT payment to plaintiff in the amount of one-half times their regular pay for hours worked over forty in a week does not comport with either 34 PA.CODE §231.43(b) or (d)(3).

Id. at 945.

In Foster, the court addressed only whether “the FWW [fluctuating work week] method is permissible under 34 Pa.Code §231.43(d)(3)....” Id. at 345. The court agreed with the ruling in Cerutti that the employer’s use of the fluctuating workweek method is not permissible under 34 Pa.Code §231.43(d)(3). Id. at 348. The fluctuating workweek pays only one-half times the “regular rate,” and 34 Pa.Code §231.43(d)(3) expressly requires overtime payment at the rate of one and one-half times the “regular rate.”

The court’s opinion was limited to whether an employer can rely on the safe harbor set forth in 34 Pa.Code §231.43(d)(3) if the employer pays only one-half times the pay rate:

The undersigned, like Judge Conti, need not predict whether Pennsylvania courts would recognize the FWW method as permissible under the PMWA. The undersigned joins Judge Conti, however, in holding that payment of overtime under the FWW method at one-half times the regular or basic rate, as opposed to one and one-half times (or more), is impermissible under the plain language of 34 Pa.Code §231.43(d)(3).

Id. at 347 (footnote omitted).

In Verderame, the court also addressed the employer’s claim that its use of the fluctuating workweek method for compensating the plaintiff for overtime fits within 34 Pa.Code §231.43(d)(3). The court, citing Cerutti and Foster, and relying on §231.43(d)(3), stated:

RadioShack has been compensating plaintiff using the fluctuating workweek method as set forth in 29 C.F.R. §778.114. While this method of compensation may be lawful under the baseline federal regulation, the same cannot be said as it applies to the more employee-friendly Pennsylvania regulation. Upon a reading of the plain regulatory language of 34 Pa.Code §231.43(d) (3), I hold that RadioShack violated the PMWA by not compensating plaintiff for overtime at “1 1/2 times” the basic rate as set forth in their compensation plan.

Id. at *7.

CONCLUSION

The case law, cited by plaintiffs, barring employers from using the fluctuating workweek for compensating salaried employees relies on the language of 34 Pa.Code §231.43(d)(3). In the present case, both parties have agreed that this regulation does not apply to this case because the parties did not establish a basic rate to be used in computing overtime compensation.

U.S. FAIR LABOR STANDARDS ACT (“FLSA”)

While the PMWA and the accompanying regulations do not address the issue of whether employers may use the fluctuating workweek to calculate the overtime pay owed to salaried employees, defendants contend that Pennsylvania borrowed the federal scheme for calculating overtime. This scheme permits the use of the fluctuating workweek for salaried employees.

In 1938, Congress enacted legislation, 29 U.S.C.A. §201 et seq. (FLSA), which provided that no employer shall employ any of its employees for a workweek longer than forty hours “unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C.A. §207(a)(l). The act did not define “regular rate.”

Four years later, in Overnight Motor Transp. Co. v. Missel, 316 U.S. 572 (1942), the United States Supreme Court ruled that the term “regular rate” was flexible enough to permit calculation of overtime compensation using the fluctuating workweek.

Subsequently, the Department of Labor incorporated into Title 29 of the Code of Federal Regulations Overnight Motors’ definition of “regular rate” as the total remuneration for employment in any workweek divided by the total number of hours actually worked. 29 C.F.R. §778.109.

The FLSA sets a minimum wage applicable to all employers engaged in interstate commerce. 29 U.S.C.A. §206. This legislation does not preempt the states from setting minimum wages, including minimum wages for overtime, that exceed FLSA wage mínimums. 29 U.S.C.A. §218. Consequently, the issue in this case is whether PMWA allows Pennsylvania employers to use the fluctuating workweek method for compensating salaried employees.

At the times that the PMWA was enacted and the accompanying regulations were promulgated, federal law, through case law and regulation, permitted employers to use the fluctuating workweek to calculate overtime for salaried employees. The PMWA uses language similar to the language of the FLSA. Both Acts prohibit employers from employing any employees for a workweek longer than forty hours unless:

FLSA

“such employee receives compensation for his employment...at a rate not less than one and one-half the regular rate at which he is employed.” 29 U.S.C.A. §207(a)(l) (emphasis added).

PMWA

[the employee] is “paid for overtime not less than one and one-half times the employe’s regular rate as prescribed in regulations promulgated by the secretary....” 43 P.S. §333.104(c) (emphasis added).

Defendants contend that since the Pennsylvania General Assembly, in enacting a minimum wage requirement for overtime pay, used the language of the FLSA, namely, one and one-half the employee’s “regular rate,” it intended for the words “regular rate” to receive the meaning given to these words under existing federal law.

Defendants rely on the rule of construction that where a more recently enacted state law uses the language of a federal act, the state law shall be interpreted in the same fashion as the federal act. See Commonwealth of Pa., Dep’t of Labor and Indus., Bureau of Labor Law Compliance v. Stuber, 822 A.2d 870, 873 (Pa. Cmwlth. 2003) (“In the past, this court has indicated that it is proper to give deference to a federal interpretation of a federal statute when the state statute substantially parallels it...and the state and federal acts have identity of purpose.” (Citations omitted.))

Also, defendants correctly state that the regulations promulgated by the secretary use the terminology used in the FLSA:

FLSA §207(a)(l) is reflected (albeit worded differently) in 34 Pa.Code §231.41.

Subparagraphs 1-7 of FLSA §207(e) titled “Regular rate” defined appears in 34 Pa.Code §231.43(a)(5) at subparagraphs 1-7.

FLSA §207(f) appears at 34 Pa.Code §231.43(c).

FLSA §207(g), “Employment at piece rates,” is placed nearly word-for-word at 34 Pa.Code §231.43(d).

34 Pa.Code §231.42 appears to be an amalgam of 29 CFR §§778.104, 105, and 109.

34 Pa.Code §231.43 includes a deliberate selection of several provisions in the FLSA and in federal regulations.

According to defendants, the secretary’s promulgating only regulations also found in the FLSA and federal regulations signals the intention of the secretary that the FLSA and its regulations look to the federal law’s interpretation of “regular rate” in interpreting state law.

In summary, defendants contend that the general assembly’s use of the term “regular rate,” also used in the FLSA, expressed an intention to use federal case law and regulations to interpret “regular rate.” Also, according to defendants, because the Pennsylvania regulations use language and concepts of the FLSA and its regulations, the secretary intended to adopt the federal scheme for calculating overtime pay. Finally, defendants argue that because federal law is settled and there is a uniformity of purpose between federal and state law, the general assembly and the secretary, by using the same language as used in the federal law, intended for the FLSA and accompanying regulations to be persuasive authority.

I agree with plaintiffs that there are several flaws in defendants’ analysis.

First, the PMWA does not say that employees shall be paid for overtime, not less than “the employe’s regular rate.” If that was all that was said, I would agree with defendants that the general assembly did not define “regular rate” because it intended for federal law to answer the many questions not answered by the one sentence requiring payment for overtime. I would reach this result because the most reasonable explanation for the decision of the general assembly to enact legislation that did not define “regular rate” or address obvious questions that are not answered by the general assembly is that federal law had already done so and the general assembly intended to borrow the federal scheme.

The difficulty with this argument is that the general assembly did not look to federal law to define “regular rate.” To the contrary, the general assembly looked to the secretary to fill in the blanks by providing in the PMWA that an employee shall be paid for overtime not less than one and one-half times the employee’s “regular rate” “AS PRESCRIBED IN REGULATIONS PROMULGATED BY THE SECRETARY.” 43 P.S. §333.104(c) (emphasis added). This emphasized provision expresses a legislative intent that the secretary shall decide whether and when to promulgate regulations answering the unanswered questions. Defendants’ argument that the general assembly intended for federal law to apply is without merit because the PMWA expressly delegated to the secretary the authority to promulgate regulations that would define “regular rate.” Defendants’ contention that the language of the PMWA shows a legislative intent to incorporate federal law with respect to the meaning of “regular rate” of pay cannot be reconciled with the language of the PMWA, stating that the employees shall be paid overtime that is based on the employee’s “regular rate” “as prescribed in regulations promulgated by the secretary.” 43 P.S. §333.104(c).

While both parties acknowledge that the secretary is authorized by 43 P.S. §333.104(c) to address whether overtime for salaried employees may be calculated by using the fluctuating workweek, neither party claims that any regulation promulgated by the secretary addresses this question.

I next consider defendants’ contention that the fact that all regulations promulgated by the secretary are borrowed from the FLSA and federal regulations shows that the secretary intended to adopt the federal scheme. I agree with plaintiffs that this argument lacks merit, because the regulations which the secretary promulgated cover only a small number of sections of the FLSA and the code of federal regulations governing overtime payments.

34 Pa.Code §231.43(b) governing overtime to employees paid a flat sum for a day’s work or for doing a particular job without regard to the number of hours worked is taken word-for-word from the FLSA §207(f). This Pennsylvania regulation allows the use of the fluctuating workweek.

Flowever, the provision of the Federal Code (29 CFR §778.114) governing salaried employees (which also allows the use of the fluctuating workweek) is not included in the Pennsylvania regulations.

I agree with plaintiffs that the inclusion of only one of the two federal regulations undermines the argument that the secretary intended to adopt all overtime provisions of the FLSA and Code of Federal Regulations. See Friedrich v. U.S. Computer Servs. Inc., 833 F.Supp. 470, 476 (E.D. Pa. 1993):

The fact that §231.43(b) is analytically identical to the two federal regulations [i.e., Sections 778.112 and 778.114] — and exactly identical to one of them, §778.112 — indicates that [Pennsylvania’s] Industrial Board of the Department of Labor and Industry knew about the federal regulations when drafting the state regulations. The industrial board adopted — verbatim — one of the regulations, but did not adopt the other. To hold that the industrial board intended to adopt both federal regulations, even though the language of only one appears in the state regulations, would be to ignore what the industrial board actually did. While it might be convenient for ... multi-state employers if federal law and Pennsylvania law were identical on the issue of overtime compensation, the fact is that they are not.

Plaintiffs want to take the inclusion of the one federal regulation and the exclusion of the other one step further. Plaintiffs contend that since the two federal regulations address similar situations, the best explanation for the secretary’s decision not to include the federal regulation allowing the use of the fluctuating workweek for salaried employees is that a decision was made that this federal regulation and the fluctuating workweek method should not be used for salaried employees.

I do not believe that this is the best explanation for the secretary having included only one of two federal regulations governing similar issues.

The secretary would have been very aware of the common practice of salaried employees being required to work overtime. The secretary would not have believed that there was no need for a regulation. This would be inconsistent with the secretary’s promulgating a regulation covering a similar issue that probably arises less frequently than salaried employees working overtime, namely, how to calculate overtime pay for employees paid a flat sum for a day’s work or for doing a particular job without regard to the number of hours worked. Also, because of the frequency of the practice of salaried employees working overtime and the absence of any guidance from the PMWA, it is not at all likely that the secretary, who is charged with developing a definition of “regular rate,” saw no need for a regulation answering the question of whether an employer may use the fluctuating workweek to calculate overtime for salaried employees.

I believe that the most reasonable explanation as to why the secretary did not promulgate a regulation governing salaried employees is that there was not sufficient support for a regulation answering, one way or the other, the question of whether an employer may use the fluctuating workweek for salaried employees.

Since neither the general assembly nor the secretary has addressed the issue of how to construe “regular rate” of pay, it is for the courts to do so.

In deciding this matter, a court should first determine what is the apparent purpose for the enactment of the portion of the PMWA requiring extra pay for overtime and should, thereafter, determine whether the apparent purpose is best furthered by permitting employers to use the fluctuating workweek to calculate overtime pay for salaried employees or by barring the use of this method of calculating overtime pay for salaried employees.

The purpose of the portion of a minimum wage act requiring overtime pay is to increase employment, reduce overtime, and adequately compensate employees who must work more than a standard forty-hour workweek. The means for achieving this goal is to require sufficient extra pay for overtime work such that employers will hire new employees in lieu of requiring existing employees to work overtime. Overnight Motor Transp. Co. v. Missel, supra, 316 U.S. at 577-78; Haynes v. Tru-Green Corp., 507 N.E.2d 945, 948 (III. App. Ct. 1987); and Janes v. Otis Eng’g Corp., 757 P.2d 50, 53 (Alaska 1988).

I find that these goals of the PMWA are furthered by construing the PMWA to bar the use of the fluctuating workweek for compensating salaried employees who work overtime. The fluctuating workweek method of compensating salaried employees provides very little financial incentive to expand the work force rather than pay substantial hours of overtime to existing employees at lower rates per hour. A reading of the PMWA that reduces the hourly overtime compensation as the amount of overtime increases clashes with the goals of the PMWA.

Under the fluctuating workweek method, a salaried employee receiving $600 each week will be paid $15 per hour if the employee worked only forty hours. If the employee works fifty hours, the employee will be receiving only $12 per hour as their “regular rate,” and if the employee works sixty hours, the employee will be receiving only $10 per hour as their “regular rate.” In other words, for each extra hour of overtime the employee works, the hourly rate declines. Consequently, the fluctuating workweek creates an incentive to increase the hours of overtime, rather than expanding the workforce.

In Inniss v. Tandy Corp., 7 P.3d 807 (Wash. 2000), the Supreme Court of Washington addressed the question of whether an employer’s use of the fluctuating workweek to calculate overtime pay for salaried employees violated the Washington Minimum Wage Act. The Washington Minimum Wage Act is similar to the PMWA; it provides compensation at one and one-half-times the “regular rate” — an undefined term. 49 RCWA §49.46.130. (However, the Washington Act did not specifically authorize the promulgation of regulations with respect to this provision.)

Five of the nine justices ruled that employers may use the fluctuating workweek to calculate overtime pay for salaried employees. The majority opinion stated that the Legislature enacted the Washington Minimum Wage Act to confirm state minimum wage laws to the FLSA Thus, the provisions of the FLSA and regulations set forth in the CFR were persuasive authorities. Consequently, the court looked to 29 CFR §778.114, which considers overtime pay for salaried employees and permits the use of the fluctuating workweek.

I agree with the ruling of the majority. See page 15 of this opinion where I said that I would have found a legislative intent to follow federal law if the PMWA had not authorized the secretary to implement regulations.

However, where, as in the present case, there is no legislative intent, I find to be persuasive the dissenting opinion in Inniss, supra, which rejected the defendants’ interpretation of “regular rate” as allowing the use of the fluctuating workweek to calculate overtime pay for salaried employees. The dissenting opinion concludes that “[rjather than offering an incentive to employers to spread employment and hire additional workers, an employer like Radio Shack would have an actual incentive to work employees like their managers an ever increasing number of hours because the effective rate paid to such individuals would diminish with the additional hours worked.” Id. at 817. The dissenting opinion further stated:

The purpose of overtime wage laws is to encourage employers to spread employment by hiring additional workers rather than paying overtime. In fact, some courts across the United States have held the fluctuating workweek concept defeats the very purpose of overtime wage statutes. The Alaska Supreme Court reached this conclusion regarding its minimum wage law in Dresser Indus., Inc. v. Alaska Dep’t of Labor, 633 P.2d 998 (Alaska 1981). In that case, the Alaska Supreme Court held the use of the fluctuating workweek allows employers to decrease the workers’ average hourly wage as the workers’ overtime increases, which “contravenes the policies of requiring increased overtime compensation and promoting the spreading of employment.” Id. at 1006. These states are correct. A fluctuating workweek concept, as practiced here, is inconsistent with RCW 49.46.130(1).

Id. at 818 (citations omitted).

I also find to be persuasive the reasoning of the court of appeals for New Mexico in Dir., Labor and Indus. Div., New Mexico Dept. of Labor v. EchoStar Commc’ns Corp., 134 P.3d 780 (N.M. Ct. App. 2006). This court stated that the purpose of the statute providing for time and a half pay for overtime is to adequately compensate for overtime, discourage overtime, and encourage employment of more workers. Id. at 782-83. The court barred the use of the fluctuating workweek for calculating the “regular rate” because any calculation that decreases the hourly rate as the number of hours worked increases conflicts with the New Mexico Minimum Wage Act, which prohibits any calculation resulting in overtime pay of less than time and a half.

I recognize that from the employer’s standpoint, the salaried employee looks very much like an hourly employee if overtime is not calculated by using the fluctuating workweek. However, the justification for minimum wage legislation is that employees lack bargaining power. Consequently, the controlling issue should be whether or not the use of the fluctuating workweek promotes the goals of the PMWA.

In their brief, defendants recognize that the secretary could promulgate a regulation either permitting or prohibiting the use of the fluctuating workweek or, in other words, that the PMWA may be construed to bar or permit the use of the fluctuating workweek for salaried employees. If the PMWA can be construed to bar the use of the fluctuating workweek, the question for this court to decide should be whether or not the use of the fluctuating workweek furthers the goals of the PMWA.

CONCLUSION

The general assembly delegated to the secretary the responsibility for promulgating regulations interpreting “regular rate.” The one sentence of the PMWA mandating overtime pay provides no guidance as to whether an employer is permitted to use the fluctuating workweek to calculate overtime pay for salaried employees. The regulations also provide no guidance.

When the words of a statute are not clear, the intention of the general assembly may be ascertained by considering the occasion and necessity for the statute, the mischief to be remedied, and the object to be attained. Habecker v. Nationwide Ins. Co., 445 A.2d 1222, 1224 (Pa. Super. 1982); 1 Pa.C.S.A. §1921.

The purpose of the portion of the PMWA governing overtime was to alter the behavior of employers. The goal was to cause employers to hire new workers in lieu of paying existing employees to work overtime by making overtime more expensive. A construction of the PMWA that allows the use of the fluctuating workweek encourages the use of overtime. A method for calculating overtime that defines “regular rate” as the rate based on a forty-hour workweek creates a substantial financial incentive to hire new employees instead of paying for overtime. Consequently, GNC’s use of the fluctuating workweek to calculate plaintiffs’ overtime pay violates the PMWA.

For these reasons, I enter the following order of court:

ORDER OF COURT

On this 20th day of October 2014, it is hereby ordered that:

(1) Plaintiffs’ motion for partial summary judgment requesting this court to hold that GNC’s policy of using the fluctuating workweek method of calculating overtime violates the Pennsylvania Minimum Wage Act is granted;

(2) Defendants’ motion for summary judgment seeking dismissal of plaintiffs’ complaint is denied; and

(3) a status conference will be held on November 5, 2014 at 11:00 A.M. o’clock.

      . GNC contends that through payment of salary, the salaried employee has already received regular pay for each of the 50 hours or, in other words, the salary covers the first 100% of the overtime. Thus, the employee is owed only an additional 50% of the wage as overtime.

      . GNC’s method of calculating overtime pay is called the fluctuating workweek method of compensating overtime. In this opinion, I use the term “fluctuating workweek” to describe this methodology.

      . The parties agree that the above provision of §231.43 should be treated as subsection (a).

        . Most employees have no protection from being required to work excessive hours. For many salaried employees, excess overtime substantially interferes with the employees’ responsibilities as parents and spouses and their participation in community and in religious activities.

      . I recognize that this case can be distinguished because of a specific provision in the New Mexico Minimum Wage Act providing for basing overtime on fluctuating rates of pay for one limited category of employees. N.M.S.A. §50-4-22.


source: Caselaw Access Project

author: DEMBE, /.,

license: Public Domain

text:
    Corinthian Marble & Granite Inc. v. TD Bank N.A.

      Francis Malofiy, for plaintiff.

      Seth A. Goldberg, Alexander D. Bono, Ryan E. Borneman and Harry M. Byrne, for defendant.
    Oct. 27, 2014
   DEMBE, /.,

This is a breach of contract action instituted by plaintiff Corinthian Marble & Granite, Inc. (“Corinthian”) against defendant TD Bank, N.A. (“Bank”). Corinthian was a marble and granite company. On January 28, 2008, Corinthian opened a business checking account no. —7363 at the Bank (“the first account”) with three authorized signatories, Nicholas Evangelopoulos, Sophoklis D. Evangelopoulos and Anastasios Papadopoulos (“Tasos”). This account is not in dispute.

On April 17, 2008, Corinthian closed account — 7363 and opened another business checking account with the Bank bearing account number —4674 (“the second account”). This second account was also set up with three authorized signatures which differed from the first account; the signatories were, Sophoklis D. Evangelopoulos, Theofilos Kamberidis and Tasos. In August 2008, Corinthian removed Sophoklis D. Evangelopoulos as an authorized signor from the second account; the remaining authorized signors on the second account were Theofilos Kamberidis and Tasos.

On March 21, 2009, Kamberidis resigned all relationships with Corinthian. Corinthian never informed the Bank of Kamberidis’ resignation. On March 28, 2009, Kosmos C. Fotiadis and Erietta Fotiadis presented to the Bank for the purpose of closing the second Corinthian account bearing account number —4674 and opening a third business checking account bearing account number —4216. The third account —4216 was titled in Corinthian Marble & Granite, Inc.’s name and the authorized signatories for the account were identified as Kosmas C. Fotiadis (“Kosmas”), business manager and Erietta Fotiadis (“Erietta”), office manager. Account — -4216 was opened by Bank employee Melissa C. Boyd with an initial deposit of $9,125.00.

The signature card contains the following language:

Each of the authorized individual(s) certify that they have all required authority to act with respect to this account(s) and, jointly and severally, agree to indemnify and hold “Bank” harmless from and against any loss or damages arising from each such authority or lack thereof. “Bank” has no responsibility or duty to assure or verify that authorized individual(s) have or are acting within the authority given them by the authorizing document or that such authorizing document is genuine or valid, even if “Bank” has seen or retained a copy of such document.

In addition to signing the signature card, the Fotiadis presented the Bank with a corporate banking resolution for deposit accounts. The corporate banking resolution identified the depositor as Corinthian Marble & Granite, Inc., a for profit corporation with a principal office in Malvern, Pennsylvania and bears the signatures of Kosmas, business manager and Erietta, office manager. The resolution certifies that pursuant to a meeting of the Corinthian board of directors on November 1, 2007, a quorum was present and voting. The resolution resolved that the Bank was the financial institution for the deposits of the Corporation’s funds which may be withdrawn on checks, drafts, advices of debit, notes or other orders for the payment of monies bearing one signature of either Kosmas or Erietta. The resolution additionally resolved that the agents were authorized to endorse checks and that the authority conferred upon them shall remain in full force and effect until the written notice of the revocation is delivered to and received by the Bank where the account is maintained. The resolution was not certified to or attested to by the secretary or assistant secretary to Corinthian.

At the time account —4674 was closed and account number —4216 was opened, Melissa Boys spoke to Theofilos Kamberidis, a signatory on account number — 4674, who allegedly orally authorized the second account to be closed. Boyd stated she was very familiar with Kamberidis and spoke to him on many occasions.

The Bank deposit agreement contract states the following with respect to business accounts:

Business Accounts: If the account is not owned by a natural person (a corporation, partnership, limited liability company, sole proprietorship, unincorporated associations, etc.) then the account holder [Corinthian] must provide evidence to our [Bank] satisfaction of the authority of the individuals who sign the signature card to act on behalf of the account holder [Corinthian]. On any transactions involving the account, we may act on the instructions of the person(s) authorized in the resolutions, banking agreement, or certificate of authority to act on behalf of the account holder [Bank] .

Sometime after March 2009, a fourth bank account bearing account number-----3547 in Corinthian’s name was also opened by the Bank.

On July 21, 2009, Tasos filed a complaint and petition for special injunction against Corinthian, Kosmas C. Fotiadis, Lazaros Hatziestathiou, Theofilos Kamberidis and Haralambos Fotiadis in the court of common pleas in Chester County. Tasos instituted the Chester County action alleging he was removed as manager of Corinthian and was denied access to the business’ books and location. His petition sought to restore authority to him over Corinthian’s finances, access to the place of business and access to financial records. A hearing on Tasos’ petition for injunctive relief was held on August 7, 2009 and September 24, 2009. On October 5, 2009, based on the doctrine of unclean hands and failure to satisfy the element of irreparable harm, the court denied the injunction. Tasos appealed the order. On November 10, 2010, the trial court’s order was affirmed.

In February 2010, Tasos filed a two count complaint against the Bank in this court alleging claims for breach of contract and breach of fiduciary duty. On November 2, 2010, the case was dismissed in its entirety. On March 28, 2011, Tasos instituted a shareholder derivative suit against the Bank and Boyd. On December 23, 2011, the suit was dismissed since Tasos failed to satisfy the prerequisites for bringing a shareholder derivative claim. On January 26, 2012, under the same court term and number, a second amended complaint was filed by Corinthian, a new party to the action. Tasos was eliminated as a party. The Bank filed preliminary objections which were sustained on June 13, 2012 dismissing all counts against Boyd and dismissing all counts against the Bank with the exception of breach of contract.

The parties filed cross motions for summary judgment. On April 8, 2014, the court issued an order and opinion granting the Bank’s motion for summary judgment and denying Corinthian’s motion for summary judgment. On April 21, 2014, Corinthian filed a motion for reconsideration. On May 7, 2014, the court granted the motion for reconsideration and vacated its order granting summary judgment in favor of the Bank. Presently before the court are the parties’ cross motions for summary judgment.

DISCUSSION

Corinthian alleges that TD Bank breached its contractual duties to it in three separate incidents, first when account number —4216 was opened and —4674 was closed; second when —3547 account was opened, and three when the Bank failed to place a “no hold” on the —4216 account after the Bank was made aware of the dispute concerning the account. The contracts giving rise to these claims are the signature cards and the Bank’s deposit agreement contract. According to Corinthian, the above breaches caused Tasos to be “robbed of the value and control of Corinthian when the defendant, TD Bank, N.A., turned over Corinthian’s business account to a third party without authorization, who subsequently raided the company.” The damages resulting from the Bank’s breaches are allegedly between $6,000,000 and $7,500,000.

A. A question of fact exists as to whether the Bank breached its contract with Corinthian when account — 4674 was closed.

Corinthian argues the Bank breached its contract when it closed account —4674 without proper authorization. In response and in support of its motion for summary judgment, the Bank argues that in fact proper authorization was received to close the account. In support of their respective positions, the parties rely upon conflicting testimonial evidence which places before the court issues of credibility which may not be assessed at this time. Moreover, the signature card for account —4674 fails to identify the Fotiadis as authorized agents for Corinthian with the requisite authority to close the account. Based on the foregoing, the court finds questions of fact exist as to whether the Bank received proper authorization to close account —4674. Accordingly, summary judgment is denied.

B. The Bank is not liable for breach of contract in opening accounts —4216 and —3547.

Corinthian argues that the Bank breached its contract when it permitted the Fotiadis’ to open accounts —4216 and 3547. The court does not agree. The signature card for account —4216 specifically provides as follows:

Each of the authorized individual(s) certify that they have all required authority to act with respect to this account (s) and, jointly and severally, agree to indemnify and hold “Bank” harmless from and against any loss or damages arising from each such authority or lack thereof. “Bank” has no responsibility or duty to assure or verify that authorized individual(s) have or are acting within the authority given them by the authorizing document or that such authorizing document is genuine or valid, even if “Bank” has seen or retained a copy of such document, (emphasis added).

The foregoing language unequivocally and unambiguously removes any responsibility from the Bank to verify the authority of individuals who open accounts on behalf of others. Said language also removes from the Bank all responsibility to investigate the authenticity and validity of corporate banking resolutions, the authorizing documents, presented by Fotiadis to the Bank to open accounts —4216 and —3547. Since the Bank did not have any contractual obligation to investigate or verify the authority of the Fotiadis per the signature cards, the Bank may not be held liable for breach of contract. As such, defendant the Bank’s motion for summary judgment on this issue is granted.

C. Summary judgment is granted on the claim for breach of contract regarding the “no hold” claim.

Corinthian further argues that the Bank breached its contract when it failed to place a “no hold” on the Corinthian account once defendant was made aware of the breach. In support thereof, Corinthian relies upon a section contained within the Bank’s deposit agreement contract which provides “if we [Bank] receive conflicting instructions or a dispute arises as to authorization with regard to handling of the account, you [Corinthian] agree we may place a hold on the account until such conflict or dispute is resolved to our satisfaction.... Viewing the facts in the light most favorable to Corinthian, i.e. that Taso informed the Bank about the shareholder dispute, the Bank did not breach any contract with Corinthian. Placing a hold on an account is based on the Bank’s discretion as evidenced by the term “may”. As such, since the Bank was not obligated to place a hold on the account, the court finds that summary judgment on this particular claim is granted in favor of the Bank and against Corinthian

D. Corinthian’s entitlement to damages, if a breach is proven, is less than $50,000.00 and therefore the case is remanded to arbitration.

In order to recover damages for a breach of contract, the party alleging the breach must prove: (1) the existence of a contract, (2) a breach of a duty imposed by the contract, and (3) damages. Where one party to a contract breaches the contract, the other party is entitled to recover, unless the contract provided otherwise, whatever damages he suffered, provided (1) they were such as would naturally and ordinarily result from the breach, or (2) they were reasonably foreseeable and within the contemplation of the parties at the time they made the contract, and (3) they can be proved with reasonable certainty.

The purpose of a damage award is to place the non-breaching party “as nearly as possible in the same position [it] would have occupied had there been no breach.” The measure of damages for breach of contract is compensation for the loss sustained. The aggrieved party can recover nothing more than will compensate him. The preferred remedy is expectation damages, which is the amount of money necessary to put a plaintiff in the position it would have enjoyed but for the defendant’s breach. Damages are not recoverable if they are too speculative, vague or contingent and are not recoverable for loss beyond an amount that the evidence permits to be established with reasonable certainty.

The damages sought must be “aproxímate consequence of the breach, not merely remote or possible.” The element of causation defines the range of socially and economically desirable recovery and requires not only “‘but-for’ causation in fact” but also “that the conduct be a ‘substantial factor’ in bringing about the harm.”

Here, taking these legal principles into consideration, any damages by Corinthian allegedly caused by the Bank’s unauthorized closing of Corinthian account — 4674 must be reasonable, foreseeable and causally related the breach alleged. Corinthian argues that as a result of the Bank actions, Tasos was forced out of the business and Corinthian’s revenues failed to grow as expected under Tasos business model and Corinthian was forced out of business. This alleged harm is not causally related to the alleged breach by the Bank.

If a determination is made that the Bank in fact breached its contract with Corinthian by closing account —4674 without authorization, the only harm that is reasonable, foreseeable and causally related to this breach is the loss of funds in account —4674 at the time the account was closed and possibly the funds used to open account — 4216 on the same date. The Bank’s reimbursement of said balances to Corinthian would put Corinthian in the same position it would have been in if the Bank had not closed or opened the accounts. Allowing any other damages, such as loss revenue, failure to implement a business plan and loss business to be assessed against the Bank is unreasonable and speculative. The Bank was not the only financial institution in which Corinthian did business. The Bank is merely an intermediary, a commercial instrumentality used by businesses and individuals to conduct banking activities. Since it appears that the reasonable, foreseeable and causally related damages that could potentially be recovered by Corinthian are less than $50,000.00, this matter is remanded to arbitration.

CONCLUSION

For the reasons set forth above, plaintiff’s motion for partial summary judgment is denied. Defendant’s motion for summary judgment is granted in part as follows: the claim for breach of implied contract is dismissed; the claim for breach of contract based on “no hold” is dismissed; the claim for breach of contract based on opening accounts —4216 and 3547 is dismissed; the action is remanded to arbitration since the amount in controversy is less than $50,000 and all other aspects of the motion are denied.

ORDER

And now, this 27 day of October 2014, upon consideration of plaintiff Corinthian Marble & Granite, Inc.’s motion for summary judgment and defendant TD Bank, N.A.’s Cross motion for summary judgment and all responses in opposition, it hereby is ordered that the motions for summary judgment are granted in part and denied in part as follows:

1. Plaintiff’s motion for partial summary judgment is denied.
2. Defendant’s motion for summary judgment is granted in part as follows:
a. The claim for breach of implied contract is dismissed.
b. The claim for breach of contract based on “no hold” is dismissed.
c. The claim for breach of contract based on opening accounts —4216 and —3547 is dismissed.
d. This action is remanded to arbitration since it appears the amount in controversy is less than $50,000.
e.All other aspects of defendant’s motion are denied.

      . Bank’s motion for summary judgment par. 3. Corinthian’s response to bank’s motion for summary judgment p. 3.

      . Bank’s motion for summary judgment par. 4. Corinthian’s response to bank’s motion for summary judgment p. 4.

      . Bank’s motion for summary judgment par. 5-6. Corinthian’s response to bank’s motion for summary judgment p. 5-6.

      . Bank’s motion for summary judgment par. 8. Corinthian’s response to bank’s motion for summary judgment p. 8.

      . The Fotiadis’ name is misspelled on the signature next to Erietta’s name.

      . The signature card is missing two signatures on the required lines including the line for Corinthian’s secretary’s name.

      . The prior resolutions dated April 17, 2008 and August 8, 2008 bear the signature of the secretary of the Corinthian.

      . The bank was subpoenaed to testify in a preliminary hearing held in Chester County. Boyd testified during the hearing.

      . Deposit agreement p. 10.

      . Plaintiff’s expert report of Robert L. Capoferri.

      . Id.

      . In reviewing the exhibits attached to the motions and responses for summary judgment, the court failed to locate the signature card for account - — 3547. The corporate banking resolution however was located. Since the language on signature cards for accounts —4674 and —4216 is the same, the court presumes the language on the signature card for account —3547 is also the same.

      . The court further notes bank was not contractually required to investigate ownership disputes. See deposit agreement contract p. 10 and 7 P.S. §606 (An institution shall not be required, in the absence of a court order or indemnity required by this section, to recognize any claim to, or any claim of authority to exercise control over, a deposit account... made by a person or persons other than (i) The customer in whose name the account or property is held by the institution.”

      . Plaintiff’s exhibit N, p. 10.

      . J.F. Walker Co., Inc. v. Excalibur Oil Group, Inc., 792 A.2d 1269 (Pa.Super. 2002).

      . Ferrer v. Trustees of the University of Pennsylvania, 573 Pa. 310, 825 A.2d 591, 610 (2002); Helpin v. Trustees of Univ. of Pennsylvania, 608 Pa. 45, 50-51, 10 A.3d 267, 270 (2010).

      . Lambert v. Durallium Products Corporation, 364 Pa. 284, 72 A.2d 66, 67(1950).

        . See Ferrer v. Trs. of the Univ. of Pa. supra at610.

      . Spang & Co. v. U.S. Steel Corp., 519 Pa. 14, 545 A.2d 861, 866 (1988).

      . Dairymen’s Cooperative Sales Ass’n v. McCreary, 132 Pa. Super. 524, 528, 1 A.2d 508, 510 (1938).

      . Klages v. General Ordnance Equip. Co., 240 Pa. Super. 356, 373, 367 A.2d 304, 313 (1976).

      . The expert opinion offered by Corinthian does not address the harm suffered by Corinthian by bank’s alleged breach of contract but rather specifically address harm suffered by a shareholder frozen out of Corinthian, Tasos, a non party to this action.

      . At the time account —4674 was closed a negative balance existed and account —4216 was opened with an initial deposit of $9,125.00.

      . The claim for breach of implied contract is redundant of the claim for breach of express contract and is therefore dismissed.


author: NEALON, J.,

text:
    Commonwealth v. Dominick
    C.P. of Lawrence County,
    No. 13 CR 2273

      Eugene M. Talerico, Jr., William J. Fisher, Brian J. Gallagher and Jamie L. Davis, for Commonwealth.

      Bernard J. Brown, for defendant.
    Nov. 3, 2014
   NEALON, J.,

In this murder case in which defendant’s post-trial motion and post-sentence motion are currently pending, Bernard J. Brown, Esquire (“Brown”), has filed a “motion to withdraw as counsel” for defendant, Jason Dominick (“Dominick”). The Commonwealth has filed an answer and brief in opposition to the motion to withdraw, and an evidentiary hearing was conducted on November 3,2014. The motion to withdraw is now ripe for disposition.

By way of relevant background, Dominick was arrested on August 2,2013, in connection with the murder of Frank Bonacci. Dominick originally retained Brown to represent him, but following the preliminary hearing on October 11, 2013, and October 15, 2013, Dominick and his family failed to pay Brown in accordance with their fee agreement. See Com. v. Dominick, 2014 WL 222859, at * 1 (Lacka. Co. 2014). In light of Dominick’s indigency, he filed an in forma pauperis petition seeking the appointment of Brown as his counsel pursuant to Pa.R.Crim.P 123, and by order dated January 21, 2014, Dominick’s request was granted and Brown was appointed to represent him in this matter. Id. at *3. On May 10,2014, a jury found Dominick not guilty of first-degree murder and criminal conspiracy to commit first-degree murder, but guilty of third-degree murder and criminal conspiracy to commit third-degree murder. (Transcript of proceedings on 5/10/14 at pp. 14-19). On August 1, 2014, Dominick was sentenced to an aggregate sentence of 40 years to 80 years incarceration, and on August 11, 2014, Brown filed a timely post-trial motion on Dominick’s behalf. Subsequent to the filing of Dominick’s post-trial motion and post-sentence motion, Brown filed the instant motion to withdraw.

Brown’s motion to withdraw is premised upon “a presentence submission” dated May 27, 2014, in which a friend of the Dominick family forwarded a letter to the undersigned requesting leniency in the sentencing of Dominick, and voicing criticism of Brown’s representation of Dominick at trial. (Motion to withdraw as counsel at 17). Brown requests “that he be relieved of his duty to appear as counsel” for Dominick “so that [Dominick] can have this case proceed forward to the appellate level, accordingly.” (Id. at ¶¶6, 8). At the hearing on November 3,2014, Brown advocated the appointment of new counsel for Dominick so that a “fresh set of eyes” could review the trial record for purposes of appeal.

In opposing Brown’s motion, the Commonwealth notes that the pre-sentence letter that was authored by a Dominick family friend “was not adopted or sanctioned by [Dominick], nor is there any evidence of record that demonstrates an irretrievable breakdown in the relationship between [Brown] and [Dominick].” (Commonwealth’s brief in opposition at p. 1). The Commonwealth argues that “there are significant reasons to retain Attorney Brown as appellate and post-sentence counsel” since he “is well versed in the factual background of this case” and “has a significant command of the issues presented both at trial and on appeal as evidenced by his post-trial motion and supporting brief.” (Id. at p. 2). Additionally, the Commonwealth notes that “Brown throughout the proceedings has demonstrated that he has a mutually respectful relationship with [Dominick].” (Id.).

During the hearing on November 3, 2014, Dominick advised the court that he has been satisfied with Brown’s legal representation of him in this case. Dominick also denied that there has been any disagreement or breakdown of communications between Dominick and Brown. It also bears noting that although the Commonwealth charged Dominick as the shooter and his co-defendant, Neil Pal (“Pal”), as Dominick’s accomplice, see Com. v. Pal, 2014 WL 1978623 (Lacka. Co. 2014), separate juries convicted Pal of first-degree murder and conspiracy to commit first-degree murder, whereas Dominick was acquitted of those same offenses. (See transcript of proceedings in Com. v. Pal, No. 13 CR 2269, dated 6/12/14 at pp. 202-203). Finally, to date, Dominick has not made any allegation of ineffective assistance of counsel by Brown.

Although an indigent defendant has the right to the appointment of counsel at no cost, [s]he does not have the right to free counsel of his or her choice. Com. v. Philistin, 617 Pa. 358, 384, 53 A.3d 1, 16 (2002); Com. v. Johnson, 428 Pa. 210, 213, 236 A.2d 805, 807 (1968). Under Rule 122(C), “[a] motion for change of counsel by a defendant for whom counsel has been appointed shall not be granted except for substantial reasons.” Pa.R.Crim.P. 122(C). “To satisfy this standard, a defendant must demonstrate that he has an irreconcilable difference with counsel that precludes counsel from representing him.” Com. v. Keaton, 615 Pa. 675, 709-710, 45 A.3d 1050, 1070-1071 (2012) (finding no abuse of discretion in denying request for new counsel since the trial court concluded “although Keaton and trial counsel obviously disliked working together, [citation omitted], there was no reason counsel was incapable óf zealously representing Keaton.”). Our appellate courts have reasoned “that ‘substantial reasons’ or ‘irreconcilable differences’ warranting appointment of new counsel are not established where the defendant merely alleges a strained relationship with counsel, where there is a difference of opinion in trial strategy, where the defendant lacks confidence in counsel’s ability, or where there is brevity of pre-trial communications.” Com. v. Floyd, 937 A.2d 494, 497 (Pa. Super. 2007).

In the case sub judice, there is no evidence that irreconcilable differences exist between Brown and Dominick, which render Brown unable to zealously represent Dominick in post-trial proceedings and on appeal. To the contrary, Dominick has stated on the record that he is satisfied with Brown’s representation, and that there has never been any breakdown in communication between them. Nor has Dominick raised any claims of ineffectiveness by Brown so as to warrant the appointment of substitute counsel to pursue an ineffective assistance of counsel claim in this matter. Compare Com. v. Chmiel, 2003 WL 25287182, at *3, 81 (Lacka. Co. 2003), aff’d, 585 Pa. 547, 889 A.2d 501 (2005), cert denied, 549 U.S. 848 (2006). Consequently, based upon the record and materials submitted for review, “substantial reasons” do not exist for allowing a change of counsel under Pa.R.Crim.P. 122(C), and Brown’s motion to withdraw as counsel will therefore be denied.

And now, this 3rd day of November, 2014, upon consideration of the “motion to withdraw as counsel” filed by Bernard J. Brown, Esquire, the Commonwealth’s response thereto and the evidence introduced during the hearing on November 3, 2014, and based upon the reasoning set forth above, it is hereby ordered and decreed that the “motion to withdraw as counsel” is denied.


text:
    Moritz v. Horace Mann Property & Casualty Insurance Co.

      C.P. of Lackawanna County,
    No. 13 CV 544

      John M. Mulcahey, for plaintiffs.

      Richard Polacheck, for defendant.
    Nov. 5, 2014-
   NEALON, J.,

ORDER

Plaintiffs, Cynthia Moritz (“Moritz”), and her husband, George Moritz, have commenced this action against their insurer, Horace Mann Property & Casualty Insurance Company (“Horace Mann”), seeking underinsured motorist (UIM) benefits for injuries and losses that Moritz suffered in an automobile accident. (Docket entry no. 1). Moritz has collected the tortfeasor’s liability insurance policy limits of $15,000.00, and seeks to recover UIM benefits from Horace Mann for her damages which exceed the tortfeasor’s policy limits of $15,000.00. {Id. at ¶¶6-15, 17-19,21-22).

By order dated July 9, 2014, this matter was scheduled for ajuiy trial commencing onNovember 12,2014, and in anticipation of that trial, Horace Mann has filed a motion in limine to preclude Moritz from introducing testimony from Varsha A. Desai, BSN, RN, CNLCP, LNCC, whose Life Care Plan report dated June 27, 2014, was provided to defense counsel on July 1,2014. (Docket entry nos. 23, 25). Moritz has filed two motions in limine seeking (1) to prohibit the defense from introducing evidence of Moritz’s pre-accident hip condition which was not injured in the accident; and (2) to bar the defense medical expert, Peter A. Feinstein, M.D., from offering testimony regarding the credibility of Moritz. (Docket entry nos. 29, 31). The parties presented oral argument on their respective motions in limine during the final pre-trial conference on October 27, 2014, and those motions are now ripe for resolution.

Factual Background

Moritz was injured in an automobile accident that occurred on August 26, 2010, when an underinsured motorist crossed into Moritz’s lane of travel, struck Moritz’s vehicle and forced it off the roadway and into an embankment. (Joint pre-trial order at ¶6^)). Moritz asserts that as a result of the accident, she suffered a right shoulder rotator cuff tear, a comparable injury to her left shoulder, a ruptured long head of the right biceps tendon, a subacute fracture of the vertebral body at Tl, and an aggravation of cervical degenerative disc disease. (Id. at pp. 6-7). Moritz underwent arthroscopic repair of the right rotator cuff tear, which surgery also included “repair of two tendons using seven anchors.” (Id. atp. 8). Her treating physician has indicated that Moritz is also a candidate for left shoulder surgery, and Varsha A. Desai has authored a Life Care Plan report estimating the projected cost of Moritz’s future medical care. (Id.).

Horace Mann retained Dr. Peter Feinstein to conduct a medical examination of Moritz pursuant to Pa.R.C.P. 4010. In his report dated May 21,2014, Dr. Feinstein claims that Moritz denied receiving medical treatment for shoulder or neck pain prior to the accident on August 26, 2010, and states that “[t]his would be patently untrue, given the medical records reviewed and documented.” (Docket entry no. 29, Exhibit A at p. 3). Dr. Feinstein opines that Moritz suffered a “cervical whiplash injury” and “right rotator cuff partial thickness to full thickness tear in the context of clearly defined preexisting degenerative changes,” but also concludes that she “has made a full and complete recovery from those injuries.” (Id. at pp. 6-7). In addition to stating that Moritz’s continuing symptomatology is attributable to “longstanding degenerative and arthritic issues in the areas of ongoing symptoms of which she complains,” Dr. Feinstein opines that her accident-related injuries would have resolved within “six weeks to three months.” (Id. at pp. 1,6-7). On July 3, 2014, Dr. Feinstein authored a supplemental report responding to the Life Care Plan opinions and calculations of Ms. Desai. (Docket entry no. 34, Exhibit A).

In this UIM action, Moritz seeks to recover damages for future medical expenses and past and future non-economic loss, but she has not advanced a claim for past or future loss of income or earning capacity, nor does she contend that she is vocationally disabled. (Joint pre-trial order at pp. 7-8). Moritz alleges injuries to her neck and shoulders, and does not contend that she suffered any type of a hip injury in the accident. (Docket entry no. 1 at ¶ 8). Additionally, Horace Mann’s medical expert, Dr. Feinstein, made no note of any hip problems or issues during his physical examination of Moritz, and, in fact, specifically reported that “[t]here was no pain to internal or external rotation of the hips radiating to the buttocks, groin or SI joint regions.” (Docket entry no. 29, Exhibit A at p. 4).

Plaintiff’s Life Care Plan Expert

Horace Mann’s motion in limine requests “an order precluding [Moritz]...from entering any evidence and/or testifying to the Life Care Plan authored by Varsha Desai, BSN, RN, CNLCP, LNCC, dated June 27,2014.” (Docket entry no. 23 at p. 3). Horace Mann contends that Moritz violated Lacka. Co. R.C.P. 214(b) by producing the Life Care Plan report after filing a Certificate of Readiness, as a result of which Horace Mann has been prejudiced by “the untimely report.” (Docket entry no. 24 at pp. 3-4). Moritz maintains that the Life Care Plan report was produced more than four months prior to the start of trial, such that Horace Mann “has been provided sufficient time to prepare a defense to the Life Care Plan.” (Docket entry no. 34 at p. 4). Moritz further submits that any alleged prejudice “has already been cured as evidenced by the July 3, 2014, expert report of Peter A. Feinstein, M.D., commenting on the Life Care Plan.” (Id.).

Pennsylvania Rule of Civil Procedure 4003.5 governs the discovery of expert witness information, and permits a party to request and receive an expert report or verified interrogatory answer setting forth the substance of the facts and opinions to which the expert will testify, as well as a summary of the grounds for each opinion. See Pa.R.C.P. 4003.5(a)(1). Rule 4003.5(b) states that “[a]n expert witness whose identity is not disclosed in compliance with subdivision (a)(1) of this rule shall not be permitted to testify on behalf of the defaulting party at the trial of the action,” unless “the failure to disclose the identity of the witness is the result of extenuating circumstances beyond the control of the defaulting party,” in which event “the court may grant a continuance or other appropriate relief.” Pa.R.C.P. 4003.5(b). “The sanction authorized by Rule 4003.5 is not mandatory,” and “when a discovery violation occurs as a result of a failure to identify an expert witness, the presiding court must balance the facts and circumstances of each case to determine the prejudice to each party.” Corrado v. Thomas Jefferson University Hospital, 790 A.2d 1022, 1032 (Pa. Super. 2001).

The “imposition of sanctions for a party’s failure to comply with discoveiy is subject to the discretion of the trial court, as is the severity of the sanctions imposed.” Anthony Biddle Contractors. Inc. v. Preet Allied American Street. LP, 28 A.3d 916, 926 (Pa. Super. 2011); Fratzola v. Klepadlo, 26 Pa. D. & C.5th 533, 538 (Lacka. Co. 2012). The factors to be considered in determining whether to exclude an expert’s testimony are: (1) the prejudice or surprise in fact to the party against whom the witness will testify; (2) the ability of that party to cure the prejudice; (3) the extent to which waiver of the exclusionary rule would disrupt the orderly and efficient trial of the case or other cases; and (4) the bad faith or willfulness on the part of the defaulting party. City of Philadelphia v. Fraternal Order of Police Lodge No.5 (Breary), 604 Pa. 267, 285-286, 985 A.2d 1259, 1270 (2009) (quoting Feingold v. SEPTA, 512 Pa. 567, 574, 517 A.2d 1270, 1273 (1986)). “In the absence of bad faith or willful disobedience of the rules, the most significant considerations are the importance of the witness’s testimony and the prejudice, if any, to the party against whom the witness will testify.” Jacobs v. Chatwani, 922 A.2d 950, 962 (Pa. Super. 2007), app. denied, 595 Pa. 708, 938 A.2d 1053 (2007).

In the case at bar, Horace Mann does not allege, nor does the record reflect, any bad faith or willfulness on the part of Moritz in producing the Life Care Plan on July 1, 2014. By virtue of the fact that the Life Care Plan was produced four and one-half (4 1/2) months prior to trial, Horace Mann clearly had the ability to cure any resulting prejudice. See Curran v. Stradley, Ronan, Stevens & Young, 361 Pa. Super. 17, 31, 521 A.2d 451, 457 (1987) (holding that since plaintiff “was notified of the witness’s identity almost two weeks in advance of trial and could have used that time to investigate the qualifications of Stradley’s expert,” plaintiff’s failure to do so “mitigates any real prejudice caused by Stradley’s untimely disclosure.”); Silverstein v. Mt. Airy Family Practice, 2008 WL 2214632, at *4 (Phila. Co. 2008) (plaintiff failed to demonstrate requisite prejudice to warrant preclusion of defense expert’s testimony since plaintiff’s counsel received expert report sixteen days before start of trial), aff’d, 972 A.2d 570 (Pa. Super. 2009), app. denied, 603 Pa. 695, 983 A.2d 729 (2009). Indeed, Horace Mann did in fact cure any proffered prejudice by securing a supplemental report from Dr. Feinstein responding to the Life Care Plan. Although we do not condone Moritz’s violation of Lacka. Co. R.C.P. 214(b) by filing a Certificate of Readiness prior to producing an additional expert report, and would impose sanctions for such conduct in different circumstances, preclusion of the expert testimony and report of Varsha A. Desai is not justified in light of the absence of any incurable prejudice to the defense. Therefore, based upon the importance of that expert’s testimony and the lack of any prejudice resulting from the belated production of her report, Horace Mann’s motion in limine will be denied. See Jacobs, 922 A.2d at 962 (“[W]e note that to preclude the testimony of a witness is a drastic sanction, and it should be done only where the facts of the case make it necessary.”); Kurian ex rel. v. Anisman, 851 A.2d 152, 162 (Pa. Super. 2004) (“[Preclusion of testimony is a drastic sanction, and it should be done only where the facts of the case make it necessary; the prejudice may not be assumed.”).

Plaintiff’s Pre-existing Hip Complaints

In Moritz’s first motion in limine, she notes that she has “had hip issues throughout her entire life and fell a few months prior to the automotible accident and injured her hip.” (Docket entry no. 31 at ¶7). Moritz also states that she “underwent a septoplasty” for a deviated nasal septum and “experienced a syncopal episode after the automobile accident.” (Id. at ¶ 8). Since Moritz “has not alleged that she suffers from any injuiy to or pain in her hip as a result of the August 26,2010, automobile accident,” she submits that any evidence regarding her “prior hip injuries and pain and her septoplasty and syncopal episode must be precluded as irrelevant.” (Id., at ¶ 13).

Horace Mann agrees that Moritz’s septoplasty and syncopal episode are irrelevant, but contends that it should be allowed to introduce evidence of Moritz’s prior hip complaints. (Docket entry no. 37 at p. 2). Horace Mann avers that the parties’ pre-trial discovery “revealed that [Moritz] has experienced hip problems her entire life and prior to the 08/26/2010 motor vehicle accident, and that she fell resulting in an injury to her hip before the motor vehicle accident.” (Id. at pp.4-5). In light of Moritz’s claim that she “can no longer hunt and fish” or “perform household chores” due to her shoulder and neck injuries, Horace Mann argues that evidence of Moritz’s pre-existing hip problems “is surely relevant” to the issue of “whether or not some of these activities that she can no longer do are also affected by her hip problems which she has had all of her life and prior to the accident in question.” (Id. at p. 5).

To be admissible, “evidence of previous medical complaints must be connected to the complaints at issue, and if it is not, the trial court should exclude the evidence as irrelevant and prejudicial.” Odato v. Fullen, 848 A.2d 964, 966 (Pa. Super. 2004) (“Since the previous medical complaints of left-shoulder pain were connected to the medical complaint at issue, we find the evidence relevant, and we further find no abuse of discretion or error of law committed by the trial court in denying the [plaintiffs’] motion in limine.”), app. denied, 580 Pa. 698, 860 A.2d 124 (2004); DeVita v. Durst, 167 Pa. Cmwlth. 105, 113-114, 647 A.2d 636, 640 (1994) (evidence of plaintiff’s prior emotional problems and anti-anxiety drug prescription was admissible because it “bore a direct connection to the allegations made by [plaintiff] concerning her emotional disability from the accident.”), app. denied, 540 Pa. 606, 655 A.2d 993 (1995). As the court in Papa v. Pittsburgh Penn-Center Corp., 421 Pa. 228, 218 A.2d 783 (1966) cogently observed, “[tjestimony concerning any prior fall [i]s not admissible for any purpose unless the injuries from that alleged accident could be connected to those claimed in the present suit, so as to raise the inference of a pre-existing condition.” Id., 218 A.2d at 789. See also, Valentine v. Acme Markets. Inc., 455 Pa. Super. 256, 261-262, 687 A.2d 1157, 1160 (1997) (trial court erred by allowing evidence of plaintiff’s two prior falls since “[tjhere is also no testimony that [plaintiff] suffered injuries in his two prior falls that are similar to the injuries he suffered in this fall.”); Bodnar v. Mesko, 26 Pa. D. & C.5th 85, 93 (Lacka. Co. 2012) (precluding evidence of plaintiff’s prior slip and fall incident and automobile accident on the ground that such evidence “is not properly ‘connected to the complaints at issue’ and must therefore be precluded ‘as irrelevant and prejudicial.’” (quoting Odato, supra)).

Horace Mann has not demonstrated that Moritz’s lifelong hip problems are “connected to the complaints at issue” in this case. Moritz does not allege any accident-related injury to her hip or a traumatic aggravation of that pre-existing hip condition. Horace Mann’s own expert, Dr. Feinstein, states in his report that Moritz experienced “no pain to internal or external rotation of the hips” during his examination of her. Moreover, the record reflects that prior to the accident on August 26, 2010, Moritz engaged in certain outdoor and household activities notwithstanding her longstanding hip condition. Consequently, Moritz’s prior hip complaints and injury are not properly “connected to” the claimed injuries in this case, and any such evidence will be excluded “as irrelevant and prejudicial.” See Odato, 848 A.2d at 966; Bodnar, 26 Pa. D. & C.5th at 93.

Dr. Feinstein’s Credibility Commentary

Moritz’s second motion in limine seeks to bar Dr. Feinstein from stating, as he did in his report of May 21, 2014, that Moritz’s alleged denial of pre-accident treatment for shoulder or neck pain is “patently untrue, given the medical records reviewed and documented.” (Docket entry no. 29 at ¶ 8). Citing Com. v. Seese, 512 Pa. 439, 443, 517 A.2d 920, 922 (1986) and Com. v. O’Searo 466 Pa. 244, 228-229, 352 A.2d 30, 32 (1976), Moritz argues that “[i]t is an encroachment upon the province of the jury to permit admission of expert testimony on the issue of a witness’s credibility.” (Id. at ¶ 9). Horace Mann counters that Moritz “cites cases which involve criminal matters which are inapplicable to the case at hand.” (Docket entry no. 36 at p. 5). Horace Mann posits that the proffered testimony by “Dr. Feinstein is simply outlining a fact that the records reflect otherwise, and that fact would be essential for the trier of fact to determine the credibility of the witness in assessing her overall testimony.” (Id. at p. 6).

Under the Pennsylvania Rules of Evidence, expert testimony is permitted when the expert’s scientific, technical, or other specialized knowledge is beyond that of the average layperson, and will help the fact-finder understand the evidence or determine a fact in issue. See Pa.R.E. 702(a)-(b). Earlier this year, the Supreme Court of Pennsylvania underscored that it has “consistently maintained that a lay jury is capable of determining whether a witness is lying, and thus expert testimony is not permissible as to the question of witness credibility.” Com. v. Alicia, 92 A.3d 753, 760 (Pa. 2014) (holding that expert testimony concerning the phenomenon of “false confessions” would impermissibly invade the juiy’s exclusive role as the arbiter of credibility). See also Kozak v. Strath, 515 Pa. 554, 562, 531 A.2d 420, 424 (1987) (stating that “expert testimony must be carefully scrutinized because issues...of credibility are for the jury, not the expert.”). In this regard, the Supreme Court has long recognized that:

The veracity of a particular witness is a question which must be answered in reliance on the ordinary experiences of life, common knowledge of the natural tendencies of human nature, and observations of the character and demeanor of the witness. As the phenomenon of lying is within the ordinaiy capacity of jurors to assess, the question of a witness’s credibility is reserved exclusively for the jury.

Alicia, 92 A.3d at 761 (quoting Com. v. Davis, 518 Pa. 77, 541 A.2d 315, 317 (1988)).

Our decisional precedent in criminal cases, see Alicia, supra, and civil litigation, see Kozak, supra, clearly states that expert testimony is not admissible on matters of credibility which are within the common knowledge of the average layperson. It is of no consequence that most of the relevant appellate authority is set forth in “cases which involve criminal matters” since those rulings establishing the permissible parameters of expert witness testimony have equal application in criminal and civil proceedings. See Com. v. Walker, 92 A.3d 766, 788 (Pa. 2014) (“Expert testimony is admissible in all cases, civil and criminal alike, when it involves explanations and inferences not within the range of ordinary training, knowledge, intelligence and experience.”); Auerbach v. Philadelphia Transp. Co., 421 Pa. 594, 604, 221 A.2d 163, 171 (1966) (same). Inasmuch as the credibility of Moritz is reserved for the jury, Dr. Feinstein may testify that Moritz denied any pre-accident treatment, but will be barred from stating that Moritz’s alleged comments are “patently untrue.” Accordingly, Moritz’s motion in limine to preclude Dr. Feinstein from offering any testimony concerning her credibility will be granted.

And now, this 5th day of November, 2014, upon consideration of the parties’ motions in limine, memoranda of law, and oral argument on October 27, 2014, and based upon the reasoning set forth above, it is hereby ordered and decreed that:

1. The “motion in limine of defendant Horace Mann Property & Casualty Company” to preclude any Life Care Plan testimony by Varsha A. Desai, BSN, RN, CNLCP, LNCC, is denied;

2. “Plaintiffs’ motion in limine # 1 to Preclude Any Evidence of Unrelated Medical Conditions Suffered by Cynthia Moritz” is granted; and

3. “Plaintiffs’ motion in limine # 2 to Preclude defendant’s Expert, Dr. Peter Feinstein, From Offering Testimony Regarding the Credibility of Plaintiff, Cynthia Moritz” is granted.

      . Local Rule 214(b) provides that “[n]o Certificate of Readiness may be filed until all discovery in the case has been completed,” and the prescribed Certificate of Readiness form in our local rules contains an attestation by counsel “that all discovery in the case has been completed” and “the case is ready in all respects for trial.” Lacka. Co. R.C.R 214(b), Form 7.