author: NEALON, J.,

text:
    Ford v. Lehigh Valley Restaurant Group Inc.

      C.P. of Lackawanna County,
    No. 14 CV 3227

      Peter Wine brake, R. Andrew Sintillo and Mark J. Gottesfeld, for plaintiffs.

      Richard L. Hackman, David J. Freedman, Paul W. Minnich and Geff Blake, for defendant.
    April 24, 2015
   NEALON, J.,

Two former servers at local Red Robin restaurants have instituted this class action lawsuit asserting violations of the minimum wage provisions of the Minimum Wage Act of 1968 (“MWA”), 42 RS. § 333.102 et seq. The MWA permits employers to satisfy their minimum wage obligation of $7.25/hour to “tipped employees” by paying a minimum wage of $2.83/hour and utilizing a “tip credit” in the amount of $4.42/hour to satisfy the difference between $7.25/ hour and $2.83/hour. Like its federal counterpart, the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201 et seq., the MWA’s “tip credit” provisions enable employers to implement a tip pooling arrangement among their employees, provided that the sharing of pooled tips to satisfy the minimum wage requirement is restricted to “employees who customarily and regularly receive tips.”

Plaintiffs allege that the “customarily and regularly receive tips” test limits tip pool sharing to “front-of-the-house” staff like servers, bartenders, hosts and busboys who have direct customer interaction, and does not permit “back-of-the-house” staff such as cooks, dishwashers and janitors to participate in a tip pool since they do not typically interact with customers and regularly receive tips. Plaintiffs maintain that defendant, Lehigh Valley Restaurant Group, Inc. (“Red Robin”) improperly allowed “expos” to share in the tip pool proceeds to supplement their hourly wage of $5.00/hour even though the expos were “back-of-the-house” employees who rarely interacted with customers since their job duties entailed assisting in food preparation, assuring that the prepared meals conformed with customers’ orders, and correcting food orders that did not adhere to Red Robin’s standards. Arguing that Red Robin was obligated to pay its expos $7.25 an hour, rather than subsidizing their substandard wages with pooled tips earned by servers through customer interaction and service, plaintiffs seek to recover on behalf of themselves and other similarly-situated servers the tip pool proceeds that Red Robin distributed and credited to expos in attempting to fulfill its minimum wage obligations to the expos under the MWA. Red Robin has filed preliminary objections seeking to dismiss the MWA claim on the ground that customer interaction is irrelevant in determining whether particular employees “customarily and regularly receive tips” so as to be entitled to share in tip pool funds. In the alternative, Red Robin seeks to stay this state litigation pending the outcome of a companion federal case based upon identical statutory language contained in the FLSA.

The phrase “customarily and regularly receives tips” in Section 3(d) of the MWA, 43 P.S. § 333.103(d), has yet to be interpreted by any Pennsylvania court. However, the great weight of the federal authority construing the same language in the FLSA has concluded that the level of customer interaction is relevant in deciding whether employees “customarily and regularly receive tips” so as to be eligible to share in tip pool proceeds. Based upon the sound reasoning of that federal precedent, and in light of the MWA’s remedial purpose, the degree of direct customer interaction and service is likewise a relevant consideration under Section 3(d) of the MWA in deciding whether an employee is entitled to participate in a tip pool. Since plaintiffs have averred that Red Robin’s expos “rarely interact with restaurant customers” and “are not the types of employees who customarily and regularly receive tips from customers,” Red Robin has not established as a matter of law that expos “customarily and regularly receive tips” for purposes of 43 RS. § 333.103(d). Nor has Red Robin demonstrated that a stay is warranted under the doctrine of lis pendens. Therefore, for the reasons set forth at length below, Red Robin’s preliminary objections will be overruled.

I. FACTUAL BACKGROUND

According to the well-pleaded factual allegations of the class action complaint, plaintiffs were formerly employed as “servers” at Red Robin restaurants in Dickson City, Lackawanna County, and Wilkes-Barre, Luzerne County. (Docket entry no. 1 at ¶¶ 5, 8-9). Plaintiffs contend that Red Robin required its servers to purchase “company-authorized shirts bearing the Red Robin name and logo” through mandatory deductions from their paychecks. (Id. at ¶ 10-11). Asserting that the Red Robin uniforms were required “for the benefit and convenience” of Red Robin, rather than its servers, and that Red Robin “did not obtain written authorization from the Pennsylvania Department of Labor & Industry for the uniform deductions,” plaintiffs aver that the Wage Payment and Collection Law (“WPCL”), 42 P.S. § 260.1 et seq., “prohibits employers from making pay deductions for employee uniforms that are not for the convenience of employees,” and seek to obtain “[reimbursement of all uniform deductions” on behalf of themselves and similarly-situated Red Robin servers. (Id. at^ 11-12, 35-36).

Plaintiffs also aver that Red Robin “pays plaintiffs and other servers an hourly wage of $2.83 plus a portion of their tips,” and “in seeking to satisfy the MWA’s mandate that employees receive a minimum wage of $7.25/hour, [Red Robin] utilizes a ‘tip credit’ in the amount of $4.42 for each hour worked by plaintiffs and other servers.” (Id. at ¶ 13). “At the end of each work shift, [Red Robin] requires plaintiffs and other servers to contribute an amount equaling 3% of their gross sales to a ‘tip pool.’” (Id. at ¶ 14). Plaintiffs allege that the servers “tip pool” contributions are distributed, inter alia, to “expos” who work “in or near the kitchen area” and whose job responsibilities are “to fix any orders that do not adhere to the Red Robin standard or recipe, to help prepare food when the kitchen is extremely busy, and to check the flow of tickets and make sure the orders match what’s on the plates.” (Id. at ¶¶ 15-16).

Expos “rarely interact with restaurant customers,” and “are not the types of employees who customarily and regularly receive tips from customers.” (Id. at ¶¶ 16-17). Plaintiffs submit that “[t]he [MWA] entitles employees to a minimum wage of $7.25/hour for hours worked under 40 in a week, [citations omitted], and $ 10.875/hour for hours worked over 40 in a week, [citation omitted],” and “prohibits an employer from utilizing a tip credit to satisfy its minimum wage obligations to an employee where such employee contributes to a tip pool that it distributed to other employees who do not customarily and regularly receive tips.” (Id. at ¶¶ 28-29). Plaintiffs posit that “[b] ecause expos do not customarily and regularly receive tips, [Red Robin’s] policy of distributing tip pool proceeds to expos prohibits [Red Robin] from utilizing a tip credit to satisfy its minimum wage obligations to plaintiffs and the class members.” (Id. at ¶ 30). Based upon that reasoning, plaintiffs argue that “during a time period in which expos shared in the tip pool, [Red Robin] violated the [MWA’s] minimum wage and, in some instances, overtime pay mandate.” (Id).

Red Robin has filed preliminary objections seeking to dismiss plaintiffs’ MWA claim on the ground of legal insufficiency, or, in the alternative, to stay this litigation pending the conclusion of the parties’ federal suit “where the parties are litigating the threshold legal issue of whether the term ‘customarily and regularly receives tips’ means that employees must directly interact with customers to receive tip pool funds.” (Docket entry no. 4 at ¶¶ 25-26, 34, 40). Red Robin contends that the MWA, not unlike the FLSA, allows an employer to “require a tipped employee to pool tips with other employees ‘who customarily and regularly receive tips,”’ and argues that federal regulations adopted by the United States Department of Labor state “that funds received through a tip pool count in determining whether the receiving employee ‘customarily and regularly’ receives tips,” but “mention nothing about direct customer interaction.” (Id. at ¶¶ 15, 20-21). Red Robin submits that “[b]ecause the FLSA does not require that an employee have direct customer interaction to ‘customarily and regularly receive tips,’ then he [MWA], which features identical language, likewise does not require that employers have direct customer interaction to receive tip pool funds.” (Id. at ¶ 22).

Employing that rationale, Red Robin demurs to Count I of the class action complaint alleging violations of the MWA, and contends that the MWA, “like the FLSA, only prohibits employers from sporadically including employees in a tip pool” but that plaintiffs “do not allege that [Red Robin] sporadically required servers to pool tips with expos.” (Id. at ¶¶ 23-24,26). Red Robin alternatively argues that “[t]he court should stay plaintiffs’ [MWA] claim because that claim arises from the same factual allegations and liability theory as plaintiffs’ previously-filed FLSA claim.” (Id. at ¶ 31). Claiming that the prospect of both cases “proceeding simultaneously would require a duplication of effort by the parties, waste judicial resources, and create an unnecessary race to judgment,” Red Robin contends that plaintiffs’ MWA claim should be stayed “until final resolution of plaintiffs’ FLSA claim currently pending in federal court,” as a result of which “[t]he parties will litigate in this court only plaintiffs’ [WPCL] action in Count II.” (Id. at ¶¶ 36, 40-41).

In their reply, plaintiffs note that Red Robin advanced an identical argument in the companion federal suit, and that Senior U. S. District Judge James “Munley held that ‘to properly participate in a tip pool a restaurant employee must have direct customer interaction.’” (Docket entry no. 15 at p. 7). Citing numerous federal rulings, plaintiffs maintain that the expos’ level of customer interaction is highly relevant in determining whether an employee “regularly and customarily receives tips” so as to be entitled to participate in a mandatory tip pool. (Id. at pp. 8-12). In addition, plaintiffs submit that Red Robin “did not merely use customer tips to subsidize its minimum wage obligations to plaintiffs and other servers,” but also improperly “used customer tips to subsidize the wages of expos, who otherwise received only $5.00/hour from [Red Robin].” (Id. at p. 3). Plaintiffs claim that Red Robin “is responsible for paying its expos a living wage” of at least $7.25 per hour, and that “[t]his responsibility cannot be pushed off on waiter, waitresses, and the tipping customers” in the form of an “illegal and unfair” tip pool sharing arrangement. (Id. at p. 4).

Finally, plaintiffs assert that a stay of this proceeding is unwarranted since the appellate courts have endorsed “hybrid” class action lawsuits that are predicated upon federal and state law. (Id. at p. 12). Noting that the existence of “two separate actions” in federal and state court was created by Red Robin’s own “litigation tactics” in “unnecessarily moving to sever plaintiffs’ [MWA/ WPCL] claims from the [federal] action,” plaintiffs aver that Red Robin “incorrectly assumes that the parties must ‘duplicate’ discovery to litigate the federal and state court actions” when, “in reality, both parties may use the discovery obtained in the [federal] action to litigate this state court action and vice versa” (Id.). Plaintiffs submit that Red Robin’s judicial economy argument is particularly disingenuous since the parties will still be required to litigate the pending WPCL claim even if the MWA claim is stayed. (Id. at p. 13). Thus, they request that Red Robin’s “preliminary objections to Count I of the complaint” be overruled and that Red Robin’s “alternative request for a partial litigation stay” be denied. (Id.).

II. DISCUSSION

(A) STANDARD OF REVIEW

Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. HRANEC Sheet Metal Inv. v. Metalico Pittsburgh. Inc., 107 A.3d 114, 118 (Pa. Super. 2014). The question presented by a demurrer “is whether, on the facts averred, the law says with certainty that no recovery is possible.” Bruno v. Erie Ins. Co., 106 A.3d 48, 56 (Pa. 2014); Eastern Roofing Systems. Inc. v. Cestone, 24 Pa. D. & C. 5th 394, 403 (Lacka. Co. 2012). In making that determination, “the trial court must accept as true all well-pleaded material facts set forth in the complaint and all inferences fairly deducible from those facts.” Bargo v. Kuhns, 98 A.3d 686, 689 (Pa. Super. 2014). “If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.” Lenau v. Co-eXprise. Inc., 102 A.3d 423, 439 (Pa. Super. 2014); Lilac Meadows. Inc. v. Rivello, 25 Pa. D. & C. 5th 250, 258 (Lacka. Co. 2012).

(B) FLSA&MWA

The FLSA, which was originally enacted in 1938, and the current MWA, which was adopted in 1968, recognize the adverse effects “of labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers,” 29 U.S.C. § 202(a), and the “evils of unreasonable and unfair wages as they affect some employes employed in the Commonwealth of Pennsylvania....” 43 P.S. § 333.101. Both statutes establish a mandatory minimum wage that is presently fixed at $7.25 an hour. See 29 U.S.C. § 206(a)(1)(C); 43 P.S. § 333.104(a.l) (statingthat if the minimum wage set forth in the FLSA “is increased above the minimum wage required” under the MWA, the minimum wage required under the MWA “shall be increased by the same amounts and effective the same date as the increases under the Fair Labor Standards Act”). In 1966, “Congress added restaurant workers to the list of protected workers under the FLSA,” and “adopted the concept of a tip credit which allowed employers to credit an employee’s tips to satisfy the federal minimum wage requirement” and also approved “the practice of tip pooling among customarily and regularly tipped employees.” Neil Patrick McConnell, Mr. Pink Never Leaves a Tip: How Current Tip Credit and Tip Pool Guidelines Leave Employees at the Mercy of Employers, 114 Penn. St. L. Rev. 621, 623 (Fall 2009) (citing S. Rep. No. 89-1487 (1966)).

Specifically, in defining the term “wage,” Section 203(m) of the FLSA sets forth special provisions applicable to “a tipped employee,” and states that the required minimum wage for such an employee “shall be an amount equal to (1) the cash wage paid” to the employee “and (2) an additional amount on account of the tips received” by that employee, which tip amount “is equal to the difference between” the cash wage paid and the minimum wage in effect under the FLSA. 29 U.S.C. § 203(m). The FLSA further provides that the tip credit allowance “shall not apply with respect to any tipped employee” unless “such employee has been informed by the employer” of the tip pooling arrangement, and “all tips received by such employee have been retained by the employee.” Id. However, and more importantly for purposes of Red Robin’s demurrer, Section 203(m) expressly states that the foregoing tip credit requirements “shall not be construed to prohibit the pooling of tips among employees who customarily and regularly receive tips.” Id.

Section 3(d) of the MWA defines the word “wage” in the context of “a tipped employe” in language virtually identical to 29 U.S.C. § 203(m). Section 3(d) states that the statutorily required minimum wage payable to “a tipped employe” must “be an amount equal to: (i) the cash wage paid” to the employe and “(ii) an additional amount on account of the tips received by the employe which is equal to the difference between the wage specified in (i)” and the minimum wage in effect under the MWA. 43 P.S. § 333.103(d). Like the FLSA, the MWA provides that the tip credit calculation “shall not apply with respect to any tipped employee unless: (1) [s]uch employe has been informed by the employer” of the tip credit arrangement; and “(2) [a] 11 tips received by such employe have been retained by the employe....” 43 P.S. § 333.103(d)(l)-(2). Additionally, the MWA likewise states that its tip credit provisions “shall not be construed to prohibit the pooling of tips among employees who customarily and regularly receive tips.” 43 P.S. §333.103(d)(2).

Consequently, under federal and state law, an employer may satisfy its minimum wage obligations by including an employee’s tips in the minimum wage determination. Stated otherwise, an employer may pay an employee a cash wage below the stated minimum wage of $7.25 an hour, provided that the employer supplements that shortfall with the employee’s tips. The employer may utilize such a “tip credit” toward the minimum wage only if the employer informs the employee of the “tip credit” practice and the employee retains all tips received by the employee. Notwithstanding that fact, the employee may receive tips pursuant to a tip pooling arrangement, but only if the tip pool is shared exclusively among employees who customarily and regularly receive tips.

Neither the FLSA nor the MWA provides any guidance as to the specific types of employees “who customarily and regularly receive tips.” Section 203(t) of the FLSA defines a “tipped employee” as “any employee engaged in an occupation in which he customarily and regularly receives more than $30 a month in tips.” 29 U.S.C. § 203(t) (emphasis added). Although the MWA does not contain a definition of a “tipped employee,” the Pennsylvania Department of Labor and Industry has adopted a regulation defining a “tipped employee” as “[a]n employee engaged in an operation in which the employee customarily and regularly receives more than $30 a month in tips.” 34 Pa. Code § 231.1(b) (emphasis added). The federal regulation addressing “tipped employees” under Section 203(t) of the FLSA states that “[t]he phrase ‘customarily and regularly’ signifies a frequency which must be greater than occasional, but which may be less than constant.” 29 C.F.R. § 531.57. The Pennsylvania Code does not include a comparable regulatory definition of the phrase “customarily and regularly” for purposes of Section 3(d) of the MWA.

A separate federal regulation entitled “Tipped pooling” identifies “busboys” as individuals who may share in a tip pool, and provides that “[w]here employees practice tip splitting, as where waiters give a portion of their tips to the busboys, both the amounts retained by the waiters and those given to the busboys are considered tips of the individuals who retain them, in applying the provisions of Section 3(m) and 3(t)” of the FLSA. 29 C.F.R. § 531.54. In an apparent effort to provide clarity regarding the categories of employees who may be included in a tip pool, the U.S. Senate Committee on Labor and Public Welfare listed waiters, waitresses, bellhops, countermen, busboys and service bartenders as employees who customarily and regularly receive tips, with janitors, dishwashers, chefs and laundry room attendants being identified as employees who are not eligible to participate in a valid tip pool. See Roussell v. Brinker International, Inc., 2008 WL 2714079, at *6 (S.D. Tex. 2008) (quoting S. Rep. 93-690, at 43 (Feb. 22, 1974)), aff’d, 441 Fed. Appx. 222 (5th Cir. 2011); McConnell, 114 Penn St. L. Rev. at 632 (same). The U.S. Department of Labor Field Operations Handbook echoes the Senate Report and contains the same examples and controlling language almost verbatim. Galicia v. 63-68 Diner Corp., 2015 WL 1469279, at *5 n.6 (E.D.N.Y. 2015) (citing DOL Field Operations Handbook Ch. 30, § 30d04(a, c) (Dec. 9, 1988)); Roussell, supra, at *7 (same). Additionally, the U.S. Department of Labor has issued an opinion letter stating that “[t]he legislative history of the 1974 Amendments to the FLSA...indicates that waiters, bellhops, waitresses, countermen, busboys, and service bartenders are among those who may participate in a tip pool,” whereas “an employer will lose the benefit of the exception from the tip-retention requirement if tipped employees are required to share their tips with employees who do not customarily and regularly receive tips, such as janitors, dishwashers, chefs, or laundry room attendants.” Mould v. NJG Food Service. Inc., 37 F. Supp. 3d 762, 770 (D. Md. 2014) (quoting DOL Opinion Letter, 1997 WL 998047 (Nov. 4, 1997)). Essentially identical information is contained in Fact Sheet No. 15: Tipped Employees Under the Fair Labor Standards Act (FLSA) published by the U. S. Department of Labor. See Yoram Margalioth, The Case Against Tipping, 9 U. Pa. J. Lab. & Emp. L. 117, 141 n.113 (Fall 2006).

In sum, employers are exempt from paying their employees the current minimum wage of $7.25 an hour if the employer subsidizes the deficiency pursuant to a tip pool in which only those “employers who customarily and regularly receive tips” are entitled to share in the pooled tips. See 29 U.S.C. § 203(m); 43 P.S. § 333.103(d)(2). With the benefit of the foregoing statutory and regulatory background, we will address the merits of Red Robin’s demurrer asserting that direct customer interaction, upon which plaintiffs have predicated their MWA argument, is irrelevant in determining whether “expos” customarily and regularly receive tips so as to be eligible to participate in a tip pool.

(C) RELEVANCE OF DIRECT CUSTOMER INTERA CTION

Plaintiffs aver that Red Robin’s “expos” work “in or near the kitchen area” where they assist in food preparation, ensure that the finished food product corresponds with the customers’ orders, and correct any food orders that do not comply with Red Robin’s standards. (Docket entry no. 1 at ¶¶ 15-16). Plaintiffs assert that expos “rarely interact with restaurant customers” and are ineligible to share in tip pools since they “are not the types of employees who customarily and regularly receive tips from customers.” {Id. at ¶¶ 16-17). Plaintiffs submit that “[a]t its core, this lawsuit addresses the legality of a restaurant chain’s diversion of waiters’ and waitresses’ hard-earned tips to pay other restaurant employees who do not interact with customers.” (Docket entry no. 15 at p. 4).

In seeking to dismiss plaintiffs’ MWA claim, Red Robin argues that “[t]he FLSA and [MWA] feature identical language, and, as such, the statutes should be interpreted identically.” (Docket entry no. 8 at p. 7). Red Robin stresses the fact that “[n] either the FLSA’s language, nor the DOL’s regulations mentions anything about customer interaction, direct or otherwise.” (Id. at p. 9). Relying upon its analysis of federal law, Red Robin contends that “customer interaction is irrelevant” under Section 203(m) of the FLSA, and that “[a]s a result, the [MWA] does not require that tip pool recipients have direct customer interaction.” (Id. at pp. 7, 14).

The first federal appellate reference to the significance of direct customer interaction in determining whether an employee “customarily and regularly receives tips” for purposes of 29 U.S.C. § 203(m) is found in Kilgore v. Outback Steakhouse of Florida, Inc., 160 F.3d 294 (6th Cir. 1998). In finding that “hosts at Outback are part of an occupation that customarily and regularly receive tips,” the United States Court of Appeals for the sixth circuit reasoned that hosts “sufficiently interact with customers” since “they greet customers, supply them with menus, seat them at tables, and occasionally ‘enhance the wait.’” Id. at 301. Noting that hosts “have more than de minimis interaction with the customers” and are more akin to a maitre d’, see Dole v. Continental Cuisine, Inc., 751 F. Supp. 799, 800-801 (E.D. Ark. 1990) (upholding a mandatory tip pool which included a maitre d’ whose responsibilities included greeting and seating customers, serving the first drink to customers, and assisting servers in serving customers as needed), the Kilgore court “rejected] plaintiffs’ argument that outback’s tip credit and tip pool [are] invalid because outback hosts are not employed ‘in an occupation in which they customarily and regularly receive tips.’” Id. at 301-302 (citing Ekins v. Showcase, Inc., 704 P.2d 977, 989 (Kan. 1985) (concluding that non-service bartenders were not “tipped employees” because they “were located behind a wall so that they did not have any contact with customers and were not in a position to receive tips”)).

Citing Kilgore with approval, the sixth circuit court of appeals later held that “salad preparers” could not be categorized as “tipped employees” under 29 U.S.C. § 203(m) since they “abstain from any direct intercourse with diners” and “performed duties traditionally classified as food preparation or kitchen support work.” Myers v. The Copper Cellar Corp., 192 F.3d 546, 550 (6th Cir. 1999). The only other federal circuits which have considered the proffered relevance of direct customer interaction under Section 203(m) have agreed with the Sixth Circuit’s analysis. See Shahriar v. Smith & Wollenskv Restaurant Group, Inc., 659 F.3d 234, 240 (2d Cir. 2011) (“Under the FLSA an employer may not avail itself of the tip credit if it requires tipped employees to share their tips with employees who do not ‘customarily and regularly receive tips.’ [citation omitted]. Thus, an employer loses its entitlement to the tip credit where it requires tipped employees to share tips with (1) employees who do not provide direct customer service or (2) managers”); Roussell v. Brinker International, Inc., 441 Fed. Appx. 222, 231 (5th Cir. 2011) (“We conclude that the district court reasonably found direct customer interaction ‘highly relevant’ to tip-eligibility”). The clear majority of the federal district courts that have addressed the importance of direct customer interaction in determining whether an employee qualifies as someone “who customarily and regularly receives tips” similarly deem such customer interaction to be a relevant consideration. See, e.g., Conners v. Catfish Pies, Inc., 2015 WL 632236, at *2 (E.D. Ark. 2015) (citing Roussell and Kilgore and holding that “defendants’ cooks are not tipped employees” since “nothing in defendants’ description of cooks’ duties indicates that they are required to interact with customers more than occasionally”); Alvarado v. Five Towns Car Wash. Inc., 2014 WL 4678258, at *2 (E.D.N.Y. 2014) (“In determining whether an employee customarily and regularly receives tips, the Court ‘focuses on whether the employee in question is part of an occupation that customarily and regularly receives tips, and whether they have more than de minimis interaction with customers as a part of their employment’”); Mould, 37 F. Supp. 3d at 770 (finding that “cooks, crab steamers, and prep cooks” were not “employees who customarily and regularly receive tips” since “at best, some of the kitchen staff occasionally had limited contact with customers,” but “that those cooks, crab steamers and prep cooks who were not on ‘counter help’ duty ‘abstained from any direct intercourse with diners, worked entirely outside the view of patrons, and solely performed duties traditionally classified as food preparation or kitchen support work, and therefore could not be validly characterized as tipped employees under Section 203(m).’”) (emphasis in original); Porter v. West Side Restaurant, LLC, 2014 WL 1642152, at *10 (D. Kan. 2014) (“The case law suggests that direct customer interaction is a relevant factor in determining whether an employee ‘regularly and customarily receives tips’ and therefore can participate in a mandatory tip pool”); Chhab v. Darden Restaurants, Inc., 2013 WL 5308004, at *6 (S.D.N.Y. 2013) (“When deciding whether an employee customarily and regularly receives tips, courts must determine whether the employee’s job is historically a tipped occupation and whether he has more than ‘de minimis1 interaction with customers as a part of his employment.”); Stewart v. CUS Nashville, LLC, 2013 WL 4039975, at *15 (M.D. Tenn. 2013) (“There is ample evidence in the record to demonstrate that security guards employed at company-owned Coyote Ugly saloons sufficiently interact with customers so as to constitute employees who ‘customarily and regularly receive tips’ under Kilgore”); Rubio v. Fuji Sushi & Teppani, Inc., 2013 WL 230216, at *2 (M.D. Fla. 2013) (“Courts have focused on the extent of an employee’s customer interaction as a significant factor in determining whether the employee is a customarily tipped employee”); Pedigo v. Austin Rumba, Inc., 722 F. Supp. 2d 714, 730 (W.D. Tex. 2010) (“The Southern District of Texas, a sister court of like mind on the issue, cogently explained that the level of customer interaction is highly relevant to the question of whether an employee may participate in a valid tip pool because ‘the degree of direct customer interaction distinguishes to some extent the employees identified by the Senate and the Department of Labor as eligible to participate in a mandatoiy pool from the kind of employees that are not eligible to participate in such a pool’”); Ash v. Sambodromo, LLC, 676 F. Supp. 2d 1360, 1369-70 (S. D. Fla. 2009) (“Courts determining whether an employee is a tipped employee have focused on the amount of customer interaction”); Morgan v. SpeakEasy, LLC, 625 F. Supp. 2d 632, 653 (N.D. 111. 2007) (discussing Kilgore and holding that “senior servers” had “sufficient customer interaction to establish that they were engaged in an occupation in which they ‘customarily and regularly received tips’” since they “helped serve food and drinks to tables, greeted customers, and checked on tables during the dinner service.”); Townsend v. BG-Meridian. Inc., 2005 WL 2978899, at *6 (W.D. Okla. 2005) (“The cases that have considered whether a given occupation falls within the definition of a tipped employee have focused on the level of customer interaction involved in that occupation”).

In the parties’ federal litigation, Red Robin filed a motion “to dismiss the complaint, contending that its inclusion of expos in the tip pool does not violate the FLSA.” Ford v. Lehigh Valley Restaurant Group. Inc., 2014 WL 3385128, at *2 (M.D. Pa. 2014). As in the case sub judice, Red Robin asserted that the expos’ degree of customer interaction is irrelevant to whether they “customarily and regularly receive tips” for purposes of 29 U.S.C. § 203(m). Id. In rejecting that interpretation of Section 203(m), Judge Munley reviewed the federal appellate precedent and held:

Based on this case law, Section 203(m)’s plain meaning and the directive that exemptions to the FLSA are narrowly construed, we conclude that to properly take part in a tip pool a restaurant employee must have direct customer interaction. Accordingly, Section 203(m)’s requirement that employees “customarily and regularly received tips” to be included in this tip pool will be a fact intensive inquiry focusing on an employee’s level of direct customer interaction.
Here, plaintiffs allege that “expos spend almost of their time working in or near the kitchen area and rarely interact with restaurant customers.” (Compl. ¶ 18). Viewing plaintiffs’ allegations as true, this allegation, read in conjunction with plaintiffs’ remaining factual averments, may establish a cause of action under the FLSA. Ergo, the court will deny defendant’s motion to dismiss.

Id. at *4.

Following Judge Munley’s ruling, Red Robin filed a “motion to certify an issue for immediate appeal and partial stay.” Ford v. Lehigh Valley Restaurant Group. Inc., 2014 WL 3867970, at *1 (M.D. Pa. 2014). Citing the holdings in Giuffre v. Marys Lake Lodge, LLC, 2012 WL 4478806 (D. Colo. 2012), Turner v. Millennium Park Joint Venture, LLC, 767 F. Supp. 2d 951 (N.D. Ill. 2011) and Lentz v. Spankv’s Restaurant II, Inc., 491 F. Supp. 2d 663 (N.D. Tex. 2007), Red Robin “assertfed] that three district court opinions outside the third circuit court of appeals are in substantial disagreement with [Judge Munley’s] determination that Section 203(m)’s plain meaning requires a level of direct customer interaction.” Ford, supra, at *3. In denying Red Robin’s motion, Judge Munley reasoned that Red Robin’s “legal authority is not in substantial disagreement with our prior decision” and actually “may support plaintiffs’ cause of action.” Id. at *4.

No federal appellate court has adopted Red Robin’s argument that “customer interaction is irrelevant” in determining whether an employee “customarily and regularly receives tips” under Section 203 (m) of the FLSA. Red Robin bases its demurrer upon the same trial court holdings in Lentz, Turner and Giuffree that it cited in support of its unsuccessful motion to dismiss the federal suit. (Docket entry no. 16 at pp. 10-12). Lentz, which cited the 1997 DOL Opinion Letter referenced in Section 11(B) above, see Lentz, 491 F. Supp. 2d at 671, no longer possesses precedential value within the Fifth Circuit in light of the appellate ruling in Roussell declaring “direct customer interaction ‘highly relevant’ to tip eligibility.” Roussell, 441 Fed. Appx. at 231. Indeed, subsequent district court authority within the Northern District of Texas has acknowledged the relevance of customer interaction in determining tip pool eligibility. See, e.g., Rudy v. Consolidated Restaurant Companies, Inc., 2010 WL 3565418, at *4 (N.D. Tex. 2010) (citing Kilgore and holding that “[t]he record is clear that the maitre d’s at Silver Fox were highly involved in customer interaction and satisfaction and should be considered tipped employees as a matter of law, unless they were statutorily precluded from sharing in the tip pool because they were employers under the FLSA”).

As Judge Munley observed in his second ruling, see Ford, supra, at *3, the Northern District of Illinois decision in Turner, which quoted S. Rep. No. 93-690, primarily reasoned that “[i]n determining the tips that should be treated as having been ‘customarily and regularly received by an employee from a tip pool, a critical fact to consider is whether the arrangement is an ongoing one based on a voluntarily-arrived-at understanding.” Turner, 767 F. Supp. 2d at 954. Moreover, later holdings in the Northern District of Illinois found customer interaction to be a relevant consideration under the FLSA. See, e.g, Arango v. Landry’s, Inc., 2013 WL 3671704, at *4 (N.D. 111. 2013) (citing Kilgore and stating that “[considering the above case law, what is most central is not whether parties were paid commensurate with back-house employees, but whether or not their job functions were more like traditionally tipped employees because of their degree of customer interaction or other factors”). Last, although the district court in Giuffre did state in a footnote “that interaction with customers is not necessarily the sine qua non of the analysis,” Giuffre, supra at *4 n.4, it found that “plaintiff’s evolving and increasingly vague description of the position” at issue was “insufficient to survive summary judgment” and create “a genuine dispute of material fact” to rebut the employer’s supporting affidavits that the tip-sharing employee’s responsibilities included “taking the serving trays to the tables and delivering the food to customers; checking in with customers about their meals and exchanging food if the customer has a complaint; refilling beverages; chatting with customers; and assisting the wait staff in any other way necessaiy.” Id. at *2-3 (emphasis in original).

Like Judge Munley, we do not consider the three lower court rulings cited by Red Robin to be more persuasive than the federal appellate precedent or the multiple district court holdings that deem direct customer interaction to be a relevant factor under Section 203(m). “Customarily, front-of-the-house staff like servers and bartenders receive tips,” while “[b]ack-of-the-house staff like cooks and dishwashers do not, and thus cannot participate in a mandatory tip pool.” Roussell, 441 Fed. Appx. at 231. The direct customer interaction “[tjest reflects the lists created by the Senate Committee on Labor and Welfare and the Department of Labor because those employees who are visible and have contact with patrons are the employees who are more likely to have an impact on customer service.” McConnell, 114 Penn St. L. Rev. at 632-633. We agree with Judge Munley’s sound conclusion that the level of direct customer interaction is a significant factor in determining whether employees “customarily and regularly received tips” for purposes of 29 U.S.C. § 203(m).

“Pennsylvania courts have indicated that it may be proper to interpret the M WA in light of federal interpretation of the FLSA, given the substantial similarity.” Baum v. AstraZeneca LP, 605 F. Supp. 2d 669, 674 (W.D. Pa. 2009), aff’d, 372 Fed. Appx. 246 (3rd Cir. 2010), cert. denied, 562 U.S. 896 (2010). The FLSA is a remedial statute that should be liberally construed, Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1334 (U. S. 2011), and “exemptions to it are construed narrowly, i.e., against the employer.” Smith v. Johnson & Johnson, 593 F.3d 280. 284 (3rd Cir. 2010). Similarly, “[i]n applying the provisions of the MWA, it should be borne in mind that the MWA is remedial legislation which should be interpreted liberally to achieve its remedial purpose,” Caiarelli v. Sears. Roebuck & Co., 616 Pa. 38, 46 n.3, 46 A.3d 643, 647 n.3 (2012) (McCaffeiy, Todd, JL, dissenting), and “as with the FLSA, the exemptions to the MWA protections are to be applied narrowly.” Anne Thibadeau, Pennsylvania Employees Protected Abroad: Extraterritorial Application of State Labor Law in Truman v. Dewolff. Boberg & Associates, Inc. and the Fair Labor Standards Act Foreign Work Exemption, 73 U. Pitt. L. Rev. 193, 202 (Fall 2011) (citing Davis v. Sulcowe, 416 Pa. 138, 141, 205 A.2d 89, 90-91 (1964)). In fact, exemptions to the MWA’s minimum wage and overtime requirements have been interpreted more narrowly than the parallel exemptions contained in the FLSA. See, e.g., Boyada Nurses. Inc. v. Com., Department of Labor and Industry, 607 Pa. 527, 555-556, 8 A.3d 866, 882-882 (2010) (holding that the domestic services exemption from the minimum wage and overtime provisions of the MWA is more narrow than the FLSA’s exemption and “more beneficial to our Commonwealth’s employees”).

To succeed with its demurrer and thereby secure the dismissal of plaintiffs’ MWA claim, Red Robin must establish that it is free and clear from doubt that customer interaction is an irrelevant and inappropriate consideration in determining whether an expo “customarily and regularly receives tips” for purposes of Section 3(d) of the MWA. See Hill v. Ofalt, 85 A.3d 540, 547-548 (Pa. Super. 2014) (preliminary objections which result in the dismissal of a claim “may be sustained only where the case is free and clear of doubt”). No Pennsylvania appellate or trial court has had occasion to interpret the phrase “customarily and regularly receive tips” in 43 P.S. § 333.103(d). Nevertheless, in light of the federal appellate rulings in Roussell, Shahriar and Myers, the foregoing holdings of the district courts in Arkansas, Florida, Illinois, Kansas, Maryland, New York, Oklahoma, Tennessee and Texas, the well-reasoned opinions by Judge Munley in the companion federal litigation, and the U.S. Department of Labor’s Operations Handbook and Opinion Letter, we conclude that direct customer interaction is a relevant factor in determining whether employees “customarily and regularly receive tips” for purposes of tip pool eligibility under Section 3(d) of the MWA. See Com., Department of Labor and Industry v. Stuber, 822 A.2d 870, 873 (Pa. Cmwlth. 2003) (stating that “it is proper to give deference to federal interpretation of a federal statute when the state statute substantially parallels it”), aff’d, 580 Pa. 66, 859 A.2d 1253 (2004). Since plaintiffs have averred that Red Robin’s expos “rarely interact with customers” and function as “back-of-the-house” staff such as food preparers, Red Robin has not demonstrated that “on the facts averred, the laws says with certainty that no recovery is possible” under the MWA. See Bruno, supra. Accordingly, Red Robin’s demurrer, which is premised upon a proffered adjudication that “customer interaction is irrelevant” under 43 P.S. § 33.103(d), is without merit.

(D) STAY REQUEST

In the alternative, Red Robin requests that this state action be stayed pending the conclusion of the parallel federal suit since plaintiffs’ MWA claim in this case “involves the same factual allegations and liability theory as plaintiffs’ previously filed FLSA claim.” (Docket entry no. 8 at p. 14). Red Robin submits that if a stay is granted, “and the federal court determines that customer interaction is not a requirement for a tip pooling arrangement under the FLSA or that the expos did, in fact, have direct customer interaction, such findings would entitle [Red Robin] to judgment on the [MWA] claim in the present case.” (Id. at pp. 14-15). Plaintiffs oppose Red Robin’s stay request and argue that the two cases may proceed forward in tandem with shared discovery in both matters. (Docket entry no. 15 at p. 12). According to plaintiffs, Red Robin’s stay proposal is particularly unwarranted since Red Robin “does not seek a stay of plaintiffs’ WPCL uniform deduction claim,” and the grant of a stay would result in multiple class certification motions and “the issuance of separate class action notice forms for separate claims.” (Id. atp. 13).

Under the doctrine of lis pendens, a defendant may seek to dismiss or stay a subsequently filed lawsuit due to the pendency of a prior action. Crutchfield v. Eaton Corp., 806 A.2d 1259, 1262 (Pa. Super. 2002). To secure a dismissal, the defendant must show that the same parties are involved, the same rights are asserted, and identical relief is sought in each action. PNC Bank. N.A. v. Bluestream Technology, Inc., 14 A.3d 831, 835 (Pa. Super. 2010); Solfanelli v. First Union National Bank, 101 Lacka. Jur. 457, 468 (2000). If the defendant cannot strictly satisfy that three-pronged identity test, the defendant may alternatively secure a stay of the later-filed action “where the litigation of two suits would create a duplication of effort on the part of the parties, waste judicial resources, and ‘create the unseemly spectacle of a race to judgment.’” Crutchfield, supra (quoting Norristown Automobile Co. v. Hand, 386 Pa. Super. 269, 562 A.2d 902, 905 (1989)).

This separate state court proceeding asserting violations of the MWA and WPCL was filed due to Red Robin’s motion to dismiss those state claims in the federal suit based upon lack of supplemental jurisdiction under 28 U.S.C. § 1367. (Docket entry no. 4, Exhibit 2). The parties’ submissions and arguments reflect that the federal and state actions may proceed simultaneously without causing a duplication of effort, wasting judicial resources and inciting a race to judgment. Thus, Red Robin has not demonstrated its entitlement to a stay, and its request for an abeyance of this case will be denied.

ORDER

And now, this 24th day of April, 2015, upon consideration of “defendant Lehigh Valley Restaurant Group, Inc.’s preliminary objections to Count I of plaintiffs’ complaint,” the memoranda of law submitted by the parties, and the oral argument of counsel on March 4, 2015, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

1. The preliminary objections of defendant, Lehigh Valley Restaurant Group, Inc., to Count I of the complaint are overruled, and defendant’s request for a stay of this proceeding is denied; and

2. Within twenty (20) days of the date of this order, defendant shall file a responsive pleading to the complaint.

      . Plaintiffs originally filed a federal class action suit challenging Red Robin’s inclusion of expos in the tip pool as violative of the federal Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., the MWA and the WPCL. See Ford v. Lehigh Valley Restaurant Group, Inc., 2014 WL 3385128 (M.D. Pa. 2014), stay pending appeal denied by, 2014 WL 3867970 (M.D. Pa. 2014). However, “[bjecause the latter two causes of action involve state statutes, the parties have agreed to litigate these claims in state court.” Id. at * 1. “Thus, the only remaining claim [in the federal action] is Count One — Violation of the FLSA’s minimum wage requirement.” (Id.).

      . Pennsylvania originally adopted the Minimum Wage Act of 1937, Act of May 27, 1937, P.L. 917, 43 P.S. § 33 la et seq., establishing a ‘ ’minimum fair wage” for women and minors. See In re Fisher, 344 Pa. 96, 98-99, 23 A.2d 878, 879 (1942); Daugherty v. Continental Can Company, Inc., 226 Pa. Super. 342, 350, 313 A.2d 276, 280 (1973). The General Assembly later expanded the scope of minimum wage protection to all employees by adopting the Minimum Wage Act of 1961, Act of September 15, 1961, P.L. 1313, 43 P.S. § 333.1 etseq., Conti v. Department of Labor and Industry, 405 Pa. 309, 310, 175 A.2d 56, 57 (1961), which was later supplanted by the current Minimum Wage Act of 1968, Act of January 17, 1968, P.L. 11, as amended, 43 P.S. § 333.102 etseq. See Golfview Manor Inc. v. Com., Department of Labor and Industry, 51 Pa. Cmwlth. 323, 329 n.9, 414 A.2d 722, 725 n.9 (1980); Daugherty, supra.

      . The DOL Field Operations Handbook “is an operations manual that provides Wage and Hour Division (WHD) investigators and staff with interpretations of statutory provisions, procedures for conducting investigations, and general administrative guidance,” and “reflects policies established through changes in legislation, regulations, court decisions, and the decisions and opinions of the WHD Administrator.” Barrera v. MTC, Inc., 2011 WL 3273196, at *3 n.12 (W.D. Tex. 2011).

      . Department of Labor opinion letters "’constitute a body of experienced and informed judgment’ and the court will give these materials ‘substantial weight.’” Barrera, supra, at n.13 (quoting Samson v. Apollo Resources, Inc., 242 F.3d 629, 639 (5th Cir. 2000).

      . While not fully developed in its supporting briefs, Red Robin inferred that as long as the expos regularly and frequently shared in Red Robin’s tip pool, they qualified as employees who “customarily and regularly” received tips under 29 U. S. C. § 203(m). (Docket entry no. 8 at p. 8). Under such circular logic, employers would have carte blanche authority to allow ineligible employees to participate in a tip pool and thereafter argue that those same employees “customarily and regularly receive tips” under Section 203(m). Federal courts have uniformly rejected such tautological reasoning, and we likewise repudiate that argument. See Kilgore, 160 F.3d at 301 (“Plaintiffs correctly identify some circularity here: whichever employees Outback decides to allocate the tip pool to could receive the requisite $30 a month in tips.... Plaintiffs’ argument fails because the circularity is limited by the subsection 203(t) requirement that an employee work ‘in an occupation in which he customarily and regularly receives...tips’”); Barrera, supra, at *9 (“However, the court agrees with plaintiff that [employer’s] tautological interpretation would grant employers fiat power to include anyone in the tip pool simply by doing so regularly, [citations omitted]. The court also agrees with plaintiff that [employer] ignores the necessary subsection 203(t) tip-pool limitation in the FLSA”); Roussell, 2008 WL 2714079 at *9 (“To the extent that defendant intends to argue that an employee may participate in a tip pool as long as they are ‘customarily and regularly’ tipped, i.e., with the ‘frequency’ defined in 29 C.F.R. § 531.57, the court agrees with plaintiffs that such an argument would lack any limiting principle and would appear inconsistent with congressional intent. Such a reading would allow an employer to include virtually any employee in a tip pool simply by allowing them to regularly share in tips, in apparent disregard of the fact that Congress and the Department of Labor have explicitly listed certain types of employees that may not participate in a tip pool”); Chan v. Triple 8 Palace, Inc., 2006 WL 851749, at *14 n.22 (S.D. N.Y. 2006) (“However, to the extent this reading would allow workers to become eligible for tip sharing simply by taking money from the tip pool, the restriction on tip sharing would become utterly meaningless. To avoid this circular reasoning and absurd result, the sixth circuit interpreted 29 U.S.C. § 203(m) as requiring that individuals sharing in a tip pool be ‘tipped employees’ as defined in § 203(t). That is, they must not only ‘customarily and regularly’ receive tips, but they must be ‘engaged in an occupation in which they customarily and regularly receive tips.’.... Though this court rejects a circular reading of § 203(m) under which anybody who takes from a tip pool thereby become eligible to do so, it need not determine at this stage whether to adopt the Kilgore court’s reading of the statute or some alternative interpretation”).


source: Caselaw Access Project

author: KELLER, J.,

license: Public Domain

text:
    In the Interest of I.A.-H. and R.A.-H.

      C.P. of Berks County,
    Nos. DP-326-14, DP-327-14

      Jennifer L. Grimes, for BCCYS.

      Sharon M. Scullin, guardian ad litem.

      Kevin Feeney, appellant mother.

      Gary S. Fronheiser, for father, R.A.-H.
    May 4, 2015
   KELLER, J.,

PROCEDURAL HISTORY

Berks County Children and Youth Services (hereinafter “BCCYS”) filed dependency petitions on August 20, 2014. In those petitions, BCCYS alleged that Stepfather, A.D., had a lengthy history of inappropriate sexual contact with minors. Further, BCCYS alleged that A.D. admitted to sending a sexually graphic picture to his stepdaughter, I.A.-H., and that mother did not believe A.D. posed a risk to the minor children.

The court held an adjudicatory hearing on October 15, 2014. At the conclusion thereof, the court entered orders declaring the children dependent. The children’s physical custody remained with mother and the court ordered that mother participate in enumerated services. Specifically, the court ordered that mother cooperate with a non-offending parent evaluation and any recommended treatment. A.D. was ordered to not have any contact with the minor children until therapeutic recommendation. Mother appealed from the court’s adjudicatory orders and those appeals remain active in the Pennsylvania Superior Court.

On February 27, 2015, BCCYS filed a motion for review of dispositional order. In that motion, BCCYS alleged that contact was continuing between A.D. and the minor children. BCCYS averred that mother was unable to ensure the safety of the minor children in her home. The court held a hearing to address the motion on March 18, 2015. (Notes of Testimony, hereinafter N.T., 3/18/15). At the conclusion thereof, the court entered orders transferring custody of the minor children to their biological father, R.A.-H. The court denied mother’s motion for reconsideration on March 26, 2015.

Mother now appeals from the court’s dispositional orders transferring custody to father. Mother’s notices of appeal and concise statements were filed on April 6,2015. Mother asserts the following errors on appeal:

1. The court erred in removing two of mother’s five children from her home.
2. The court erred in removing two of mother’s five children from her home, when the evidence produced at the hearing did not provide clear and convincing evidence that leaving the two removed children were was [SIC] not in those children’s welfare.
3. The court erred in finding clear and convincing evidence to support removing two of mother’s five children from her home, when the petition to place the children outside the home contained materially false evidence, specifically the allegations that mother and material[SIC] grandparents were permitting telephone communication between mother and stepfather, when the child testified that she did not speak on the phone to her stepfather.
4. The evidence presented at the hearing established that the best interest of the two removed children would be served by leaving the children in the home because the children were bonded with their mother, with their siblings and because the counsellors[SIC] testified that removing the children would have an adverse effect on the children’s treatment.
5. The court erred in overruling it’s [SIC] order of February 27, 2015 (which accepted an[SIC] adopted a master’s report] finding the children safe in mother’s home and mother was moderate[SIC] compliant with counselling[SIC], when no new evidence was presented from February 26,2015 (the date of the master’s report) until the full hearing before this court.
6. The court committed an error of law and violated mother’s due process rights, when the court addressed matters outside the emergency petition for custody.
7. The court erred in finding that reasonable efforts were not available or applicable to leave the children in the home, when Mother was compliant with counselling[SIC] and was following the court’s prior orders
8. The court committed an error when it interviewed a child outside the presence of the attorneys for the parents, as the presence of the parent attorneys is required under Pa Rule Juv Pro 1334.

DISCUSSION

Mother argues that the court erred in transferring custody of the minor children to father. Specifically, mother contends that there was insufficient evidence that the minor children were unsafe in her home, that the evidence showed no continued contact between A.D. and the children, and that the minor children were bonded to her and their siblings.

“The [c]ourt shall conduct [a] dispositional hearing in an informal but orderly manner.” Pennsylvania Rule of Juvenile Court Procedure 1512(A). After the dispositional hearing, the court “shall issue a written order, which provides that the disposition is best suited to the safety, protection, and physical, mental and moral welfare of the child.” Pennsylvania Rule of Juvenile Court Procedure 1515(A). “If the child is found to be a dependent child[,] the [cjourt may... [p]ermit the child to remain with his parents, guardian or other custodian...[or] transfer temporary legal custody to...[a]ny individual..., including any relative, who...is found by the [cjourt to be qualified to receive and care for the child.” 42 Pa. cons. stat. § 6351(A)(l)-(2)(i). Before removing a child from the home, the court shall determine that staying in the home is contraiy to the child’s welfare, safety or health, that reasonable efforts to prevent removal were made or unnecessary, and that efforts were made to place siblings together. 42 Pa. cons. stat. § 6351(b). When a county agency requests modification of a dependent child’s placement, the court may hold a prompt hearing to determine if modification is proper. Pennsylvania Rule of Juvenile Court Procedure 1606(D)(1).

The court believes that sufficient evidence was presented at the October 15th and March 18th hearings to show that minor child, I.A.-H., was unsafe in mother’s care. No additional, reasonable measures could be put in place to assure the minor child’s safety. While there was some disagreement over the level of contact between I.A.-H. and A.D., there was, at least, some contact that the expert testimony showed would be detrimental to I.A.-H.’s treatment. (N.T., 3/18/15, at 7, 10-11, 18-19). Additionally, the court found evidence of mother’s continued connection with A.D., in light of the safety risk he poses to her minor children, extremely important. Months after discovering that A.D. sent a sexually-graphic picture to I.A.-H., mother became pregnant with A.D.’s child. (N.T., 3/18/15, at 35-36). The court acknowledges that the expert testified that a bond existed between mother and I.A.-H. as well as I.A.-H. and her other siblings. (N.T., 3/18/15, at 17, 23-24). In fact, the court took the expert’s testimony in consideration when making its dispositional ruling transferring custody of I.A.H. and full-sibling, R.A.-H., to father, a home where they frequently visited. The court took great care to avoid I.A.-H.’s perception that transferring custody to father was a punishment for her disclosure. (N.T., 3/18/15, at 19-21).

In addition to the clear evidence supporting the court’s conclusion that the minor child was unsafe in mother’s home, the court notes that placement was with biological father. “[I]n a dependency proceeding, a court may grant custody of an allegedly dependent child to that child’s non-custodial natural parent...as long as sufficient evidence of dependency exists.” In the Interest of Justin S., 543 A.2d 1192, 1199 (Pa. Super. 1988). “[I]t is the duty of the trial court to determine whether the noncustodial parent is capable and willing to render proper parental care and control...” Id. at 1200. The minor children’s father was available to provide care in a safe environment. It was the court’s duty to consider father as a placement option. Placement of I.A.-H. and her full-sibling, R.A.-H., in father’s home was a safe option to avoid foster care.

In alleged error five (5), mother claims that the court erred by transferring custody of the minor children to father when on February 27, 2015, the court accepted a master’s recommendation finding the children safe with mother. It appears to the court that there were some timing issues with discovery of the alleged contact which led BCCYS to file its modification request. The master’s recommendation was dated February 26, 2015, the same day that BCCYS alleged it learned of the contact between A.D. and I.A.-H. While the child may have been safe, based on all of the information available at the master’s hearing on February 26,2015, the subsequent discovery led BCCYS to request a modification. The court held a hearing on that request and, based on the evidence presented on March 18, 2015, transferred custody to father.

In alleged error six (6), mother asserts that the court violated her due process by considering matters outside of BCCYS’ motion for a placement modification. At the March 18th hearing, mother’s attorney argued the only relevant issue was contact between A.D. and the minor children. (N.T., 3/18/15, at 9-10). However, BCCYS’ motion requested removal of the children from mother’s home based on concerns with mother’s ability to protect. It was certainly within the court’s role to consider any evidence of the minor child’s treatment and mother’s treatment as it related to protective factors. The court would have been unable to make a dispositional decision without considering all relevant evidence.

Lastly, in alleged error eight (8), mother argues that the court violated Pennsylvania Rule of Juvenile Court Procedure 1134 by interviewing the child outside of the presence of mother’s attorney. Rule 1134 provides “[u]pon motion by any party or on the court’s own motion, in camera proceedings are to be recorded and reach party’s attorney shall be present.” The court acknowledges, and the record reveals, that the court spoke with I.A.-H. in the jury room with the guardian ad litem. (N.T., 3/18/15, at 4-8). Initially, the court notes that mother’s attorney never requested to be present for the court’s interview or objected to the interview on March 18th. Furthermore, the interview was transcribed so all parties have access to the substance of that interview. Even if the court’s interview was conducted in error, the court does not believe that this supports a reversal of its March 18th orders.

Therefore, we respectfully request that mother’s appeal be denied.

      . BCCYS also filed dependency petitions for the minor children’s half-siblings, S.K., D.D. and K.D. Mother is the biological parent of all five half-siblings. However, this appeal relates only to full-siblings, I.A.-H. and R.A.-H.

        ~See 1914 MDA 2014 and 1915 MDA 2014.

      . Father (R.A.-H.) and the minor child (R.A.-H.) share the same name.

      . Error No. 3 from the Concise Statement filed for child, R.A.-H., differs from the Concise Statement filed for child, I.A.-H. Error No. 3 for child, R.A.-H. reads:
      The Court erred in finding clear and convincing evidence to support removing this child from the home when the petition for [R.A.-H.] does not mention any reason to remove this child from the home. In fact it appears the only reason to remove [R.A.-H.] was because he was a sibling of his sister.

      . In her Concise Statements, Mother cites to Pennsylvania Rule of Juvenile Court Procedure 1334. However, based on context, it is clear that Mother intended to cite to Pennsylvania Rule of Juvenile Court Procedure 1134.


author: WETTICK, J.,

text:
    Lesterick v. Singh

      C.P. of Allegheny County,
    No. GD-13-016483

      Harry S. Cohen and ToddD. Bowlus, for plaintiffs.

      Arthur J. Murphy, Jr. and Donald B. Lucidi, for defendants.
    May 4, 2015
   WETTICK, J.,

The subject matter of this opinion and order of court is the merit of defendants’ contention that a report of a charge nurse is protected from discovery by § 311 of the Medical Care Availability and Reduction of Error (“MCARE”) Act, 40 P.S. § 1303.3 ll.

This is a professional negligence action based on defendants’ alleged failure to timely perform a STAT C-section.

In their complaint, plaintiffs allege that defendant, Datar Singh, M.D., was the on-call “house” attending obstetrician during the evening of December 10, 2011; he was also the only obstetrician present at the hospital; as the house obstetrician, Dr. Singh was required to remain in the hospital throughout his entire shift; and the delay in performing the STAT C-section resulted from Dr. Singh leaving the hospital to have dinner at a restaurant. Plaintiffs further allege that ultimately, contrary to hospital policy, a resident had to perform the STAT C-section with no supervision because the obstetrical team assembled in the operating room could not wait any longer for Dr. Singh.

Jennifer Largent, R.N., was one of the nurses present during the period of time in which Dr. Singh was absent from the hospital. She was deposed on May 7, 2014. In her deposition, she testified that she has worked at West Penn Hospital in the in the Obstetrical Department for about nine and one half years. She has never heard of the house on-call obstetrician leaving the hospital during his or her shift while responsible for patients in the hospital (Largent Depo. at p. 5), and she has never witnessed a resident performing a STAT C-section without the attending physician present (Id).

Nurse Largent was the charge nurse on the evening in question (Id. at p. 9). The charge nurse oversees what is going on on the floor (Id. at p. 11). The charge nurse will get involved in a patient’s care when there is an emergency situation or where help is needed or when nurses ask for help. She has also gotten involved in the care of a patient on her own (Id. at p. 12). As a charge nurse, she is responsible for the other nurses (Largent Depo. at p. 32). She was concerned that Dr. Singh was out of the hospital. She had never heard of anything like this all the years she had been an obstetrical nurse (Id. at pp. 16-17). She remembers looking for Dr. Singh when the patient was in the operating room. She saw him walking toward the OR. However, he was in street clothes, and she testified that you cannot go in the OR with street clothes.

She was present in the OR when the obstetrical team was ready to perform the C-section. She left the room looking for Dr. Singh.

During the same evening, Nurse Largent prepared the incident report that is the subject of this discovery dispute.

Nurse Largent described the preparation of this report at pages 41-43 of her deposition which is attached as Exhibit B to West Penn Allegheny Health System, Inc.’s brief in response to plaintiffs’ motion to compel incident report:

A. I don’t remember if I did, I should say. I —
Q. Well, if you did, you would have written that down, right?
A. Yes.
Q. All right. So based on that, can we agree you probably — you didn’t do anything?
A. Well, I don’t remember if we did do a report that night on that. I don’t remember.
Q. What do you mean do a report on that?
A. We do — I can’t think of what it’s called right now.
MR. MURPHY: I’m going to object if this is peer review.
MS. BELL: Yeah. If this is peer review —
THE WITNESS: No, it — no.
A. Like, when something happens, if a patient falls, there’s a — there is a form that we go in and fill out, and I can’t remember what it’s called right now, but I don’t remember if we did it that night or not. I have to think about that.
Q. And you understand that’s not peer review, to your understanding?
A. No, it is not a peer review.
Q. And do you think something like this where Dr. Singh was out of the hospital would compel you to write a report like that or compel someone to write a report?
MR. MURPHY: Foundation, speculation, opinion, hearsay —
A. Yes.
MR. MURPHY: — relevance.
Q. Yes, that would compel you or someone to write a report?
A. Yes.
Q. And how would that report be written? Hand-written or electronically?
A. Electronically.
Q. And do you know who that gets submitted to?
A. I don’t.
Q. And if you — if a report like that is written out, is there typical — typically some follow-up to that?
A. I would think so. I don’t know.
Q. Have you ever written out a report like that?
A. Yes.
Q. And times when you’ve written a report like that, did you have follow-up from somebody?
A. No.
Q. And if a report was written like that in this circumstance, would it be your responsibility as the charge nurse to do it?
A. It would either be mine or the nurse taking care of the patient.
Q. So either you or Nurse Miller or Nurse Baker?
A. Right.
Q. And I understand you’re having a hard time —
A. It’s called an incident report.
Q. Okay, okay. Do you know if Dr. Singh was with anybody?
A. I don’t know.
Q. Do you know what restaurant Dr. Singh was at?
A. I don’t.
Q. If I said the name Wai Wai, would that — does that refresh your recollection at all?
A. It — well, it’s a restaurant in Bloomfield.
Q. Do you recall whether prior to the delivery you reviewed the fetal heart tracing?
A. Prior to delivery?

Defendants’ contention (which plaintiffs dispute) is that the Largent report was prepared pursuant to § 308(a) of the MCARE Act and is, thus, protected from discoveiy by § 311(a) of this Act. These provisions read as follows:

§ 1303.308. Reporting and notification
(a) Reporting. —A health care worker who reasonably believes that a serious event or incident has occurred shall report the serious event or incident according to the patient safety plan of the medical facility unless the health care worker knows that a report has already been made. The report shall be made immediately or as soon thereafter as reasonably practicable, but in no event later than 24 hours after the occurrence or discovery of a serious event or incident.
(b) Duty to notify patient—Amedical facility through an appropriate designee shall provide written notification to a patient affected by a serious event or, with the consent of the patient, to an available family member or designee within seven days of the occurrence or discovery of a serious event. If the patient is unable to give consent, the notification shall be given to an adult member of the immediate family. If an adult member of the immediate family cannot be identified or located, notification shall be given to the closest adult family member. For unemancipated patients who are under 18 years of age, the parent or guardian shall be notified in accordance with this subsection. The notification requirements of this subsection shall not be subject to the provisions of section 311 (a). Notification under this subsection shall not constitute an acknowledgment or admission of liability. (Footnote omitted).
§ 1303.311. Confidentiality and compliance
(a) Prepared materials. —Any documents, materials or information solely prepared or created for the purpose of compliance with section 310(b) or of reporting under section 304(a)(5) or (b), 306(a)(2) or (3), 307(b) (3), 308(a), 309(4), 310(b)(5) or 313 which arise out of matters reviewed by the patient safety committee pursuant to section 310(b) or the governing board of a medical facility pursuant to section 310(b) are confidential and shall not be discoverable or admissible as evidence in any civil or administrative action or proceeding. Any documents, materials, records or information that would otherwise be available from original sources shall not be construed as immune from discovery or use in any civil or administrative action or proceeding merely because they were presented to the patient safety committee or governing board of a medical facility. (Footnote omitted.)

The confidentiality provisions upon which defendants rely are set forth in § 311(a). Section 311(a) applies only to documents prepared under one or more of several sections of the MCARE Act, including § 308(a), upon which defendants rely. Thus, in order to rule in defendants’ favor, I must find that the Largent report comes within the provisions of § 308(a) and also meets the additional requirements of § 311.

I initially consider whether the Largent report is covered by § 308 which applies only to health care workers who reasonably believe that a serious event or incident has occurred. Nurse Largent did not testify that she prepared the report because she reasonably believed that this was a serious event or incident which mandated the preparation of a report.

However, even assuming that Nurse Largent is characterized as a health care worker who reasonably believed that a serious event or incident had occurred, § 308 also requires that the health care worker report the event or incident “according to the patient safety plan of the medical facility.” There is no evidence that Ms. Largent reported the incident “according to the patient safety plan of the medical facility.” In fact, there is no evidence of the existence of a patient safety plan.

Consequently, § 311(a) does not apply because the evidence does not support a finding that the Largent report comes under § 308(a).

However, even if I assume that the Largent report was prepared in compliance with § 308(a), defendants have not complied with the additional requirements of § 311. The first additional requirement is a provision within § 311(a) which protects reports prepared and created for the purpose of compliance with, inter alia, § 308(a) which “arise out of matters reviewed by the patient safety committee pursuant to section 310(b) or the governing board of a medical facility pursuant to section 310(b)...” Section 310(b) refers to the responsibilities of a patient safety committee to receive reports from the patient safety officer, evaluate investigations and actions of the patient safety officer, review and evaluate the quality of patient safety measures, make recommendations to eliminate future serious events, and to report to the administrative officer and governing body of the medical facility on a quarterly basis regarding the number of serious events and incidents and its recommendations to eliminate future serious events and incidents.

Nurse Largent was not a member of the patient safety committee. There is absolutely no evidence that the incident occurring on the evening of December 10, 2011 was ever considered by the patient safety committee. Thus, even if the Largent report came within § 308(a), this report does not arise out of matters reviewed by the patient safety committee. Thus, the confidentiality provision of § 311 does not apply.

The second requirement which I consider is § 311 which applies only to reports “solely prepared or created for the purpose of compliance with [section 308(a)].” It would appear that the requirement that the report be “solely” prepared for § 308(a) was imposed to prevent a hospital from protecting from discovery reports that the hospital would have created without the protections of § 311(a). In this case, the behavior described in the report which the charge nurse prepared was so extreme that it is unlikely that the sole motivation of the charge nurse for creating the report would have been compliance with the requirements of the MCARE Act. At the time the nurse prepared her report, it was not known that the delay would harm the baby. In her testimony, Nurse Largent was never asked to explain whether compliance with the MCARE Act was her sole reason for preparing the report or whether at least one purpose was to have appropriate hospital officials learn of this incident and take appropriate steps.

On the basis of my ruling that the Largent report does not meet the requirements of either § 308(a) or § 311(a), I am compelling production of this report prepared by Nurse Largent.

In reaching this conclusion, I considered the comprehensive opinion of Judge Nealon in Venosh v. Hemes, 31 Pa. D. & C. 5th 411 (Lackawanna County, 2013). In that case, the court ruled that the incident reports, described by the hospital as event reports, were not protected by § 311(a) for at least two reasons. First, the record did not support a finding that the reports were solely prepared or created for purposes of compliance with the MCARE Act; and second, the record did not show that the reports arose out of matters reviewed by the patient safety committee or board of trustees; to the contrary, there was no suggestion in the record that the patient’s care was ever reviewed by the patient safety committee or the board of trustees.

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

ORDER OF COURT

On this 4 day of May, 2015, it is hereby ordered that plaintiffs’ motion to compel production of the incident report is granted, and the report shall be furnished within twenty (20) days.

      . Defendants are not contending that the report is protected from discovery by the Peer Review Protection Act or the Federal Patient Safety Quality Improvement Act of2005.

      . Section 308(b) set forth at page 6 of this opinion, provides that the medical facility shall provide written notification to a patient affected by a serious event within seven days of the occurrence or discovery of a serious event. The medical facility never notified plaintiffs, which may suggest that the nurse’s report was not seen as a report of a serious event or incident governed by § 308(a).


author: FORADORA, J.,

text:
    McConville v. American Honda Motor Co.

      C.P. of Jefferson County,
    No. 28-2015 CD

      Christina Gill Roseman, for plaintiffs.

      James F. Marrion, for defendant.
    May 7, 2015
   FORADORA, J.,

Introduction

Claiming that each is legally insufficient, American Honda Motor Co. (“Honda”) challenges the three causes of action alleged against it by Michael J. McConville and Helen J. McConville (“McConvilles”), who claim that Honda violated Pennsylvania’s Automobile Lemon Law, 73P.S. §§ 1951 et seq., the federal Magnuson-Moss Warranty — Federal Trade Commission Improvement Act, 15 U.S.C.S. 2301 et seq., and Pennsylvania’s Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq. by failing to correct “numerous defects and nonconformities ... including but not limited to impaired visibility at night due to headlights and/or windshield.” Honda further contends that the McConvilles’ factual allegations do not satisfy Rule 1019(a) of the Pennsylvania Rules of Civil Procedure and must be more specific.

The Complaint

In their complaint, the McConvilles identify a total of five visits they made to authorized warranty repair facilities on account of restricted visibility after dark. Claiming that none resulted in a satisfactory resolution of the problem, however, they now claim that Honda is in violation of the above-referenced statutes.

The plaintiffs first went to Murrays Honda in DuBois, PA on September 5,2014, at which time the odometer read 2,711. Compl., ¶ 9. There the service technician recorded the following complaint: “Customer states that when driving after it gets dark out, the windshield from the top to about the middle starts to get black and can not [sic] be seen threw [sic]??” Id., Exh. 3. He attempted to remedy the problem by adjusting the lights up slightly but noted that the Accord had projector headlights with a sharp top edge on the beam that was normal for the vehicle. Id. He further observed that many people were not used to the projector headlights. Id.

Dissatisfied with the result, the McConvilles presented their vehicle to the Honda Store in Youngstown, Ohio five days later, id. at ¶ 10, where Mr. McConville explained that nearly three-fourths of the windshield went black when he was driving at night — a condition that was more pronounced as he drove up and down the hills in his gated community. Id., Exh. 4. The McConvilles allege, however, that they did not receive an invoice after that visit. See id.

The third visit was to a facility in Coeur D’Alene, Idaho, where the service technician recorded the plaintiffs’ request that he adjust the headlights to their original level. Id. at ¶ 11, Exh. 5. That adjustment still did not address their concerns, however, leading them to seek assistance from Delaney Honda in Indiana, Pennsylvania on February 12, 2015. Id. at ¶ 12, Exh. 7. Mr. McConville again asked that the headlights’ trajectory be inspected because the light was too low. Id. The mechanic observed that they were aimed “at near correct level” and thus adjusted them upward only slightly. Id. Echoing his colleague from Murrays Honda, moreover, he explained that the Accord was equipped with projector style lenses with a characteristically sharp cut off. Id. He then suggested a couple of different upgrades for improved lighting. Id.

After eight more days, Mr. McConville returned to Murrays Honda with the same complaint. Id. at ¶ 13 Exh. 6. The service technician again adjusted the Accord’s headlights and recorded the following description of his work and his interactions with Mr. McConville:

Checked headlight aim, at 25 feet away. Headlight beam should be just below the height of a normal passenger car mirror. Set the headlight beam to 34” at 25 feet away. Before adjustment, beam was (very) slightly low. Check front windshield for distortion, nothing found at this time [sic]. Visually inspected windshield under different lighting conditions, nothing found [sic]. Asked customer and suggested customer drive similar or like model. Customer stated he has not driven similar model.

Id. By then the vehicle had accrued 15,401 miles. Id.

Having thus identified their vehicle’s deficiencies and relevant service history, the McConvilles concluded their general allegations with the following averment: “The nonconformities have not been repaired, resulting in a substantial impairment of the vehicle’s use, safety and value.” Id. at ¶ 14.

Relating those allegations to the Lemon Law, the McConvilles alleged in Count I that the aforementioned defects and conditions constituted “nonconformities” for purposes of the statute and that Honda had failed to repair and/or correct them after three attempts. Id. at ¶ 15-25. They also claimed that the defendant, through its authorized warranty repair facilities, failed to provide invoices for all its repair attempts or to adequately document the plaintiffs’ complaints. Id. at ¶ 26. They then demanded damages totaling the amount of the Accord, plus all collateral charges, alleging that they had “suffered damages as the use, safety and value of [their] vehicle ha[d] been substantially impaired.” Id. at ¶ 28.

Next invoking the Magnuson-Moss Act, the McConvilles averred in Count II that Honda had agreed to perform effective repairs to their vehicle at no charge; that their repair attempts had been ineffective; that the Accord did not comply with either Honda’s express warranties or the non-waivable implied warranty of merchantability; and that they had suffered damages as a result. Id. at ¶¶ 29-36.

In their third and final cause of action, the McConvilles pled that Honda violated Pennsylvania’s UTPCPL by, inter alia, “representing that repairs would be performed for defects in material and workmanship, failing to provide a merchantable vehicle, failing to comply with the terms of [the] warranty, failing to remedy the defects with the vehicle at no charge and failing to provide documentation of repair attempts.” Id. at 42-48. They further contended that its failure to provide documentation of its repair attempts ran afoul of 37 Pa. Code § 301.2 — a regulation promulgated by the Attorney General pursuant to its authority under the UTPCPL. Id. at ¶¶ 49-52. Further alleging their justifiable reliance upon representations made by Honda and its authorized sales facilities, the plaintiffs reiterated their claim of damages, adding that they were entitled to treble damages and attorneys’ fees pursuant to the statute. Id. at ¶¶53-56.

Discussion

A demurrer admits as true all of the challenged pleading’s well-pleaded material facts, as well as their reasonable inferences. Smith v. Wagner, 588 A.2d 1308, 1310 (Pa. Super. 1991). The reviewing court should only sustain a demurrer if the pleading demonstrates on its face that no recovery is possible upon the facts alleged. Id. Thus, only where the law says with certainty that no recovery is possible upon the facts alleged may the court grant a demurrer, and if any doubt exists regarding a cause of action’s sustainability, the decision should be to overrule the demurrer. Toney v. Chester County Hosp., 961 A.2d 192, 197 (Pa. Super. 2008). See also Junge v. Garlock, Inc., 629 A.2d 1027, 1028 n.l (Pa. Super. 1993) (saying that a court considering a demurrer must review the record in the light most favorable to the nonmoving party).

Amotion for a more specific pleading requires a different inquiry: Whether the factual averments are specific enough to adequately explain the nature of the asserted claims and allow the opposing party to frame a proper answer and prepare a defense. Martin v. Lancaster Battery Co., 606 A.2d 444, 448 (Pa. 1992); Banfield v. Cortes, 922 A.2d 36, 50 (Pa. Commw. Ct. 2007). If the averments apprise the other party of the asserted claims, summarize the facts essential to support them, and convince the court that the claims are not merely subterfuge, the pleading will be deemed sufficient as a matter of law. See Martin, supra; Krajsa v. Keypunch, Inc., 622 A.2d 355, 357 (Pa. Super. 1993).

Lemon Law:

A “nonconformity,” for purposes of this litigation, is “[a] defect or condition which substantially impairs the use, value or safety of a new motor vehicle and does not conform to the manufacturer’s express warranty.” 73 P.S. § 1952. In the event that a nonconformity occurs within one year after delivery of the vehicle, within the first 12,000 miles of use, or during the term of the warranty, it is incumbent upon the manufacturer to repair or correct it. § 1954. Honda contends that the McConvilles’ alleged headlight condition is not a nonconformity within the statutory definition, however. Relying on the service technicians’ observations, it instead characterizes the problem as a design issue not covered by its express warranties and, therefore, not within the Lemon Law’s ambit. It further asserts that the McConvilles’ ability to drive the Accord at least 15,401 miles from the date they purchased it obviates their claim that the alleged defect substantially impairs its use, value, or safety.

Reading the complaint as a whole and in the light most favorable to the McConvilles, the court disagrees with Honda’s position.

The McConvilles allege that their impaired night visibility is due to the vehicle’s headlights and/ or windshield, and the service receipts do not prove otherwise. More specifically, two service technicians’ shared opinion does not establish as an irrefutable fact that the McConvilles’ complaint is attributable to the vehicle’s headlight design. Nor does one mechanic’s failure to observe any defects in the windshield prove that the windshield is non-problematic. At this stage of the litigation, moreover, the McConvilles need not even plead evidence in support of their claims. See Maleski v. DP Realty Trust, 653 A.2d 54, 65 (Pa. Commw. Ct. 1994) (“[A] plaintiff is not required to plead evidence in his or her complaint, and therefore, need not allege all of the factual details underlying [a claim]”). Consequently, that they did not produce evidence to refute the technicians’ observations is of no moment. The purpose of preliminary objections is to test the sufficiency of the pleadings, not to test the evidence.

That the McConvilles have accumulated more than 15,000 miles on their Accord is also inconclusive, as there is nothing in the complaint to suggest the conditions under which those miles were driven. The principal concern here is reduced visibility at night, and when the court considers the allegations in the light most favorable to the McConvilles, it can reasonably infer that they drove the Accord primarily during daylight hours — a possibility that would eliminate the obvious safety hazard of driving while looking through a largely obscured windshield.

Honda further cannot undermine the McConvilles’ Lemon Law claim by proposing a single definition of “repair” and asserting that multiple headlight adjustments does not evidence a condition that required repair. Not only does the argument assume an unproven fact, i.e., that the headlight design caused the problem, but it ignores the statutory imperative to repair “or correct” a nonconformity. § 1954(a). According to the McConvilles, though, the issue causing their compromised nighttime visibility remains uncorrected despite Honda’s guarantee to “repair or replace any part that is defective in material or workmanship.” Compl., Exh. 2.

With respect to the allegations pertaining to §§ 1952-56, therefore, the court deems the complaint to be legally sufficient. Furthermore, insofar as it clearly apprises Honda that the plaintiffs are suing because they have experienced reduced visibility at night due to the headlights and/or the windshield, the court is confident that the defendant can frame a proper answer and prepare a defense.

The allegations are also sufficiently specific to sustain the McConvilles’ claim for damages. The cause of action is statutorily defined in this case and does not require injury beyond a manufacturer’s or dealer’s failure to comply with the statutory requirements. Having satisfied that requirement, the McConvilles have also satisfied their duty to sufficiently plead damages.

The McConvilles’ exhibits clearly disprove their claim pursuant to § 1957, however. They contend that Honda, through its authorized warranty repair facilities, “failed to provide invoices for all the repairs [sic] attempts and/ or failed to document all the complaints for the repair attempts.” Compl., ¶ 26. Section 1957 does not require a manufacturer or dealer to document all of a customer’s complaints, though; it only demands that it provide an itemized statement of its work — an obligation with which both the DuBois and Indiana facilities — the only Pennsylvania facilities to which the McConvilles delivered their vehicle — clearly complied. See Exhibits 3, 6, and 7.

Magnuson-Moss Act:

Applying the above analysis, the court concludes that the McConvilles have also sufficiently pled a cause of action under the Magnuson-Moss Act,

According to the federal legislature, “a consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this title, or under a written warranty, implied warranty, or service contract, may bring suit for damages and other legal and equitable relief.” 15 U.S.C. §2310(d)(1). If the McConvilles are able to prove that Honda violated its express warranty by failing to repair or replace a part defective in material or workmanship, therefore, they will likewise be able to prove that Honda violated the Magnuson-Moss Act. Additionally, a finder of fact could reasonably conclude that Honda sold the McConvilles a vehicle not fit for ordinary travel when it sold them a car whose windshield they could not properly see through after dark. See 13 Pa.C.S. § 2314(b)(3) (“Goods to be merchantable must be at least such as: are fit for the ordinary purposes for which such goods are used”).

UTPCPL:

Because a violation of the Lemon Law, without more, constitutes a violation of the UTPCPL, 73 P.S. § 1961, the court’s disposition of Honda’s objection to Count I means that Count III also stands as a viable cause of action.

The McConvilles have adequately set forth an independent UTPCPL claim, as well. Honda says they did not set forth any factual allegations to support their claim that it violated five separate subsections of § 201-2(4). In fact, though, the next paragraph directs it to the following actions: “representing that repairs would be performed for defects in material and workmanship, failing to provide a merchantable vehicle, failing to comply with the terms of [the] warrant, failing to remedy the defects with the vehicle at no charge and failing to provide documentation of repair attempts.” Compl., ¶ 48. As further clarified by the McConvilles’ allegations regarding the low visibility condition they experience while driving their Accord at night and their belief that it is attributable to the headlights and/or windshield, that paragraph sufficiently identifies the factual basis of their UTPCPL claim.

The McConvilles have further pled facts sufficient to establish a prima facie agency relationship between Honda and its dealership service centers. 38 Pa. Code § 301.1 does indeed define “repair shop” such that Honda does not fit within the latter category. There is nothing about § 301.1 or its accompanying provisions that tends to suggest an intent to divorce this area of law from the long-standing principles of agency, however.

With the exception of paragraphs 26-27 in Count I, therefore, the complaint in this case sufficiently sets forth causes of action under the referenced statutes and does so in a manner that will allow the defendant to appropriately respond and prepare its defense.

ORDER

And now, this 7th day of May 2015, in accordance with the foregoing opinion, it is hereby ordered and decreed that the defendant’s preliminary objections are sustained with respect to paragraphs 26 & 27, which are hereby stricken, and are otherwise overruled.

The defendant shall have twenty (20) days to file an answer.