Hirsch v. Epl Technologies, Inc.

910 A.2d 84

Stephen S. HIRSCH, Appellee, v. EPL TECHNOLOGIES, INC. and Paul L. Devine Appeal of: Paul L. Devine, Appellant.

Superior Court of Pennsylvania.

Argued April 4, 2006.

Filed October 16, 2006.

Thomas G. Wolpert, Royersford, for appellant.

Michael J. Salmanson, Philadelphia, for appellees.

BEFORE: STEVENS, GANTMAN, and KELLY, JJ.

OPINION BY STEVENS, J.:

¶ 1 Appellant Paul Devine appeals from an August 18, 2005 judgment entered in the Court of Common Pleas of Chester County.¹ We affirm.

¶ 2 This appeal stems from a dispute over unpaid wages. Appellee Stephen S. Hirsch was employed by EPL Technologies, of which Devine was president, CEO and chairman of the board of directors. "EPL was in essence a holding company for various operating subsidiary companies, which eventually fell in to financial distress, as did EPL." Order dated and filed 8/18/05 at 1, n. 1. Hirsch initially held the title of "Chief Quality Officer," then became "Vice President of Group Services" and "Assistant Secretary."² N.T. 3/14/05 at 49-50, 57.

¶ 3 "[A]bout two years after Hirsch was hired, EPL began withholding payment of his and other employees' salaries, which led to various wage collection actions by these employees against EPL." Order dated and filed 8/18/05 at 1, n. 1. The parties to this action disagree whether Hirsch was part of the group of executives who participated in the decision to withhold wages.³

¶ 4 On October 9, 2003, Hirsch filed a civil complaint against EPL and Devine under the Pennsylvania Wage Protection and Collection Law (WPCL),⁴ seeking unpaid wages, liquidated damages, and attorneys' fees. On December 20, 2004, the parties stipulated to a $381,013.00 judgment in Hirsch's favor against EPL only. Hirsch then continued to pursue the claim against Devine, seeking to impose joint and several liability.

¶ 5 A two-day bench trial was conducted before the Honorable Ronald C. Nagle beginning on March 14, 2005. Following the conclusion of trial and the submission of arguments by the parties, Judge Nagle issued a "Decision" finding in favor of Hirsch and against Devine in the amount of $393,675.00.⁵ Decision dated and filed 4/12/05. Hirsch then filed a motion for attorney's fees, and Devine filed a motion for post-trial relief. On August 18, 2005, Judge Nagle issued an order stating, in part, as follows:

AND NOW, this 18th day of August 2005, upon consideration of Defendant, Paul L. Devine's Motion for Post Trial Relief, seeking in the alternative the entry of judgment in his favor or a new trial, and the briefs and oral arguments of the parties, the Motion is DENIED.

IN ADDITION, upon consideration of the Plaintiff's post trial Motion to Amend the Decision against the Defendant, Paul L. Devine, to include the Plaintiff's Attorney's Fees and Costs, and upon consideration of Plaintiff's Motion in open court and with the agreement and stipulation of the parties that the Court's Decision of April 12, 2005 may be molded to reflect the award of Attorney's fees to the Plaintiff in the total amount of $31,079.04, as a consequence of which the Decision of April 12, 2005 is amended to reflect a Total judgment in favor of the Plaintiff and against the Defendant, Paul L. Devine only in the amount of $412,254.04. In all other respects the Court's April 12, 2005 Decision shall remain unchanged and in full force and effect. The Prothonotary is ORDERED and DIRECTED to reflect the Decision, as so molded, on the docket.

Order dated and filed 8/18/05. In accordance with the August 18, 2005 order, a docket entry bearing the same date indicates "Judgment entered in favor of Stephen S. Hirsch against Paul L. Devine in the amount of $412,254.04."

¶ 6 Devine filed the appeal currently before us on September 15, 2005. He has filed a court-ordered Pa.R.A.P. 1925(b) statement raising several claims, which we paraphrase for simplicity as follows: (1) the trial court erred in failing to find that Hirsch was an officer and senior executive of EPL, with policy and decision making authority; (2) the trial court erred in failing to find that Hirsch, as a decision making executive, was an employer, not an employee, and, as such, was barred from piercing the corporate veil to attach personal liability to Devine; (3) the trial court's ruling that Devine is personally responsible for paying Hirsch's wages is contrary to Section 260.11a of the WPCL; (4) the trial court erred in granting Hirsch liquidated damages pursuant to Section 260.10 of the WPCL.

¶ 7 Judge Nagle responded to Devine's Rule 1925(b) statement with a Rule 1925(a) opinion directing us to his August 18, 2005 Order, which, in addition to the above quoted paragraph, contains an extensive explanatory footnote addressing the following claims: (1) whether Hirsch was a policy maker/employer under the WPCL for purposes of determining Devine's personal liability for Hirsch's wages; (2) whether Hirsch is liable for nonpayment of wages under Section 260.11a of the WPCL, thereby waiving any right to bring his own action for such conduct; (3) whether Hirsch's claim is barred by waiver or consent; and (4) whether Hirsch is entitled to liquidated damages. Rule 1925(a) Opinion filed 10/17/06 at 1, n. 1.

¶ 8 Devine has filed an appellate brief before this Court. Unfortunately, it does not carry forward in easily recognizable form the issues contained in his Rule 1925(b) statement. To further confuse the matter, the captions beginning each portion of the "Argument" section of the brief do not match the wording of the claims raised in the brief's "Statement of Questions Involved." While we strongly discourage the failure to conform an appellate brief to the court-ordered Rule 1925(b) statement, in light of the danger of waiver under Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998), we find in the instant case that Devine's appellate brief provides support, albeit in a contorted form, for his Rule 1925(b) claims. Since we additionally find that the claims have been sufficiently addressed by Judge Nagle's August 18, 2005 opinion, we will address them under the following well-established standard:

"Our appellate role in cases arising from non-jury trial verdicts is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in any application of the law." Baney v. Eoute, 2001 PA Super 260, 784 A.2d 132, 135 (Pa.Super.2001) (citation omitted). The findings of fact of the trial judge must be given the same weight and effect on appeal as the verdict of a jury. See id. (citation omitted). We consider the evidence in a light most favorable to the verdict winner. John B. Conomos, Inc. v. Sun Co., Inc. (R & M), 2003 PA Super 310, 831 A.2d 696, 703 (Pa.Super.2003), appeal denied 577 Pa. 697, 845 A.2d 818 (2004). We will reverse the trial court only if its findings of fact are not supported by competent evidence in the record or if its findings are premised on an error of law. See Cavallini v. Pet City & Supplies, Inc., 2004 PA Super 141, 848 A.2d 1002, 1004 (Pa.Super.2004).

Amerikohl Mining Co. v. Peoples Natural Gas Co., 860 A.2d 547, 549-550 (Pa.Super.2004).

Furthermore, it is within the province of the trial judge, sitting without a jury, to determine the credibility of the witnesses and weigh their testimony. Allegheny County v. Monzo, 509 Pa. 26, 500 A.2d 1096 (1985). Moreover, our Supreme Court has stated:

As long as sufficient evidence exists in the record to support the finding found by the trial court, as factfinder, we are precluded from overturning that finding and must affirm, thereby paying the proper deference due to the factfinder who heard the witnesses testify and was in the sole position to observe the demeanor of the witnesses and assess their credibility. Thus rule of law is well established in our jurisprudence and is rooted in concepts of fairness, common sense and judicial economy.

Commonwealth, Dept. of Trans. v. O'Connell, 521 Pa. 242, 555 A.2d 873, 875 (1989).

Roman Mosaic & Tile Co. v. Thomas P. Carney, Inc., 729 A.2d 73, 76 (Pa.Super.1999). "In a non-jury trial, the factfinder is free to believe all, part, or none of the evidence, and the Superior Court will not disturb the trial court's credibility determinations." Voracek, 2006 PA Super 232, ¶ 14, 907 A.2d at 1109,.

¶ 9 The Pennsylvania Supreme Court recently articulated the purpose of the WPCL as follows:

Pennsylvania enacted the WPCL to provide a vehicle for employees to enforce payment of their wages and compensation held by their employers. The underlying purpose of the WPCL is to remove some of the obstacles employees face in litigation by providing them with a statutory remedy when an employer breaches its contractual obligation to pay wages. The WPCL does not create an employee's substantive right to compensation; rather, it only establishes an employee's right to enforce payment of wages and compensation to which an employee is otherwise entitled by the terms of an agreement.

Thomas Jefferson Univ. v. Wapner, 903 A.2d 565, 574 (Pa.Super.2006) (citing Hartman v. Baker, 766 A.2d 347, 352 (Pa.Super.2000)).

¶ 10 The WPCL defines "employer" as "every person, firm, partnership, association, corporation, receiver or other officer of a court of this Commonwealth and any agent or officer of any of the above-mentioned classes employing any person in this Commonwealth." 43 P.S. 260.2a. "To hold an `agent or officer' personally liable for unpaid wages, `evidence of an active role in decision making is required.'" Int'l Ass'n of Theatrical Stage Employees, Local Union No. 3 v. Mid-Atl. Promotions, Inc., 856 A.2d 102, 105 (Pa.Super.2004) (citing Mohney v. McClure, 390 Pa.Super. 338, 568 A.2d 682 (1990), affirmed per curiam 529 Pa. 430, 604 A.2d 1021 (1992)). In that case, a panel of this Court found that "[t]o sustain its case against Appellee as an "employer" under the WPCL, Appellant had to show Appellee was actively involved...