Mancini, R. v. Concorde Grp.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ROBERT MANCINI IN THE SUPERIOR COURT OF PENNSYLVANIA

v.

CONCORDE GROUP AND HOWARD GORDON AND VALERIE BRADLEY

APPEAL OF: VALERIE BRADLEY No. 2233 EDA 2013

Appeal from the Judgment Entered July 26, 2013 In the Court of Common Pleas of Delaware County Civil Division at No(s): 10-6489

ROBERT MANCINI IN THE SUPERIOR COURT OF PENNSYLVANIA

v.

CONCORDE GROUP AND HOWARD GORDON AND VALERIE BRADLEY

APPEAL OF: CONCORDE GROUP AND No. 2234 EDA 2013 HOWARD GORDON

Appeal from the Judgment Entered July 26, 2013 In the Court of Common Pleas of Delaware County Civil Division at No(s): 10-6489

BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and MUSMANNO, J. MEMORANDUM BY MUNDY, J.: FILED SEPTEMBER 25, 2014

Appellants, Concorde Group (Concorde), Howard Gordon (Gordon), and Valerie Bradley (Bradley), appeal from the July 26, 2013 judgment entered against them and in favor of Appellee, Robert Mancini, in the

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amount of $83,414.25, constituting $29,948.34 in unpaid wages, 1 Concorde and

Gordon also appeal from a second July 26, 2013 judgment entered against them and in favor of Appellee in the amount of $47,250.00, constituting $42,000.00 in lost wages and $5,250.00 in lost employee benefits. After March 29, 2012 motion for summary judgment and March 22, 2011 sanction order, and remand for proceedings consistent with this memorandum.

We summarize the relevant factual and procedural history of this case as follows. On May 28, 2010, Appellee initiated this action by complaint alleging that Concorde, his former employer, failed to issue him payroll checks on 19 separate occasions from September 2008 to March 2010. During the contested timeframe, Gordon and Bradley were both officers and shareholders of Concorde. Within his complaint, Appellee raised the following four counts against each Appellant: 1) a violation of the Pennsylvania Wage Payment and Collection Law (WPCL),2 43 P.S. §§ 260.1-____________________________________________

1 On September 3, 2014, we consolidated these appeals sua sponte pursuant to Pennsylvania Rule of Appellate Procedure 513. 2 of Hirsh v. EPL Techs., Inc., 910 A.2d 84, 86 n.4 (Pa. Super. 2006), appeal denied, 920 A.2d 833 (Pa. 2007).

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260.12; 2) wrongful discharge; 3) a violation of the Pennsylvania Whistleblower Law, 43 P.S. §§ 1421-1428; and 4) unjust enrichment.

Attorney Jack W. Coopersmith entered his appearance on behalf of C Attorney Coopersmith also filed an answer with new matter on this date.3 Notably, these two documents are the only filings submitted of record by Attorney Coopersmith sans a May 27, 2011 withdrawal of appearance, discussed infra. Attorney Coopersmith died on September 1, 2013, at the

see also

Following the filing of th abounding with discovery motions and requests for sanctions filed by Appellee. These motions were filed because Attorney Coopersmith ignored

months. An abbreviated version of this tortured history follows.

On October 8, 2010, Appellee filed a motion to compel Concorde and Gordon to respond to his requests for production of documents. On

request and awarded ____________________________________________

3 This document is absent from the certified record but was submitted within reproduced records.

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4 Trial

Court Order, 11/17/10. On November 29, 2010, Appellee filed a motion to compel responses to interrogatories addressed to Concorde. As Concorde did not respond to the motion, the trial court granted it on March 22, 2011. The trial court subsequently ordered Concorde to file interrogatory responses within 20 days. against Concorde and Gordon based upon their failure to respond to discovery requests. On December 17, 2010, Appellee filed a motion for sanctions against Concorde and Gordon for failing to abide by the trial January 24, 2011, Appellee filed a motion to deem the requests for admissions that he served upon Concorde admitted pursuant to Pennsylvania Rule of Civil Procedure 4014(b).5 ____________________________________________

4 Within this order, the trial court did not delineate a response deadline. 5 Rule 4014 provides, in pertinent part, as follows.

Rule 4014. Request for Admission

(b) Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within thirty days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request (Footnote Continued Next Page)

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motions regardi

eration of the order within 20 days.

On April 12, 2011, Attorney W. Russell Carmichael filed an entry of appearance as co-counsel on behalf of Concorde and Gordon. Up until this with his entry of appearance, Attorney Carmichael filed a motion for Gordon. Also on this date, A Concorde and Gordon. Trial Court Opinion, 1/8/14, at 15. On April 15,

_______________________ (Footnote Continued)

is directed serves upon the party requesting the admission an answer verified by the party or an

attorney; but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of forty-five days after service of the original process upon him or her.

Pa.R.C.P. 4014(b). We note that Bradley, through her attorney, W. Russell Carmichael, Esquire, responded to this discovery motion, requesting that Concorde be given a short period of time to respond to the requests for admissions.

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2011, Appellee objected to this motion by asserting that it was filed one day late.6 motion for reconsideration.

On May 27, 2011, Attorneys Coopersmith and Carmichael withdrew their appearances on behalf of Concorde and Gordon and Attorney Nicholas Guarente entered his appearance on behalf of these parties.7 On June 15, 2011, Attorney Guarente responded on behalf of Concorde and Gordon to

h high document dump[8 that consisted of] approximately 1,500 pages deemed by [Attorney] Guarente to Opinion, 1/8/14, at 10 (internal quotation marks omitted). ____________________________________________

6 Rule 236 notice of the sanction order was given by the Delaware County Prothonotary on March 22, 2011. Thus, the 20-day timeframe imposed by the court for reconsideration ended on April 11, 2011. However, we note that the Judicial Code, 42 Pa.C.S.A. §§ 101-9913, permits a trial court to modify or rescind any order within 30 days 42 Pa.C.S.A. § 5505 (emphasis added). 7 To date, Attorney Carmichael is still representing Bradley. 8 Concord

systematically tabbed and contained 19 pages of item by item annotated explanations and responsive commentary for what was in those documents. It also contained specific, enumerated responses to the numerous Id. (internal quotation marks omitted).

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Appellee filed a motion for summary judgment against Concorde and Gordon and for partial summary judgment against Bradley on September 16, 2011. Concorde, Gordon, and Bradley filed answers to this motion on October 7 and October 17, 2011, respectively. On March 29, 2012, the trial Specifically, the trial court entered judgment in favor of Appellee and against Concorde and Gordon as to all counts of the underlying complaint and in favor of Appellee and against Bradley as to the first count of the complaint, i.e., a violation of the WPCL.

On August 13, 2012, Appellee moved to voluntarily discontinue his action against Bradley as to the remaining counts of the complaint, to wit, wrongful discharge, a whistleblower violation, and unjust enrichment. See method of voluntary termination of an action, in whole or in part, by the

ourt granted this request on October 11, 2012.

On December 21, 2012, Concorde and Gordon filed a motion in limine to preclude an award of damages to Appellee. Essentially, this motion asserted that Appellee is ineligible to recover damages because he is not entitled to relief on the underlying causes of action. On January 29, 2013, the trial court denied Concorde a

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The trial court proceeded to schedule a damages hearing for February

13, 2013. Prior to the scheduled damages hearing, Appellee filed a petition 9 Following the

damages hearing, the trial court entered an order that awarded both

L claim, the trial court entered judgment in favor of Appellee and against Concorde, Gordon, and Bradley in the amount of $29,948.34 (constituting $23,958.67 in unpaid damages and $5,989.67 in liquidated damages). Pursuant to the WPCL, the trial court als and $3,645.91 in costs. The trial court ordered Concorde, Gordon, and ____________________________________________

9 Section 9a of the WPCL provides, in pertinent part, as follows.

§ 260.9a. Civil remedies and penalties

(f) The court in any action brought under this section shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow costs for reasonable a defendant.

43 P.S. § 260.9a(f).

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wrongful discharge claim, the trial court entered judgment in favor of Appellee and against Concorde and Gordon in the amount of $47,250.00 (constituting $42,000.00 in lost wages and $5,250.00 in lost employee benefits). At the time of the hearing, Appellee withdrew his whistleblower and unjust enrichment claims against Concorde and Gordon. Trial Court Opinion, 1/8/14, at 5.

Concorde, Gordon, and Bradley filed timely post-trial motions on May 1 and May 2, 2013, respectively. The trial court granted reconsideration of its damages verdict on May 16, 2013. Following reconsideration, the trial court

-trial motions by orders dated Prothonotary entered judgment in favor of Appellee and against Concorde, Gordon, and Bradley in the above-stated amounts on July 26, 2013. On July 31, 2013, Concorde, Gordon, and Bradley timely filed their notices of appeal.10 ____________________________________________

10 Appellants and the trial court have timely complied with Pennsylvania Rule of Appellate Procedure 1925. We note that Appellants raised a number of issues within their Rule 1925 statements that are not presented within their appellate briefs. Specifically, Concorde and Gordon present their second, forth, seventh, and tenth Rule 1925 statement errors within their appellate brief. Likewise, Bradley raises only a partial portion of her third and the entirety of her seventh Rule 1925 statement error within her appellate brief.

and not addressed within their appellate briefs are waived on appeal. See Penn-Am. Ins. Co. v. Peccadillos, Inc., 27 A.3d 259, 269 (Pa. Super. 2011) (concluding issues that are not discussed within the argument section (Footnote Continued Next Page)

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On appeal, Concorde and Gordon raise the following issues for our review.

[1.] Did the [trial] court err or abuse its discretion in the entry of a sanctions order precluding the defenses of [] Concorde [] and [] Gordon caused by the repeated record neglect of initial Concorde/Gordon counsel when the record deficiencies were corrected by subsequent counsel before reconsideration was denied?

[2.] Did the [trial] court err or abuse its discretion in the granting of summary judgment on all four complaint counts against Concorde [] and [] Gordon?

[3.] Did the trial court err in its opinion that [] Concorde [] and [] on appeal for failure to seek reconsideration of a denied reconsideration?

[4.] Did the trial court err in its opinion that [] Concorde [] and [] Gordon waived their claims on appeal for failure to immediately appeal the granting of summary judgment against Concorde [] and Gordon and partial summary judgment against [] Bradley?

[5.] Were fee-shifted counsel fees properly awarded under the Wage Payment Collection Law when that law was not applicable to the circumstances of this case?

[6.] Did the trial court err in awarding a future wage loss and benefits for wrongful termination where [Appellee] pleaded that this theory had the whistleblower statute as its statutory predicate and the claim for _______________________ (Footnote Continued)

appeal denied, 34 A.3d 832 (Pa. 2011); accord Pa.R.A.P. 2119(a).

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whistleblower damages had been withdrawn at the damages hearing?

for our review.

[1.] Did the [trial] court err in entering summary judgment against [] Bradley, where substantial factual questions existed regarding her participation in the conduct of Concorde [] under the Wage Payment and Collection Law, 43 [P.S.] 260.1 et seq?

[2.] Were the amounts allegedly owed to [Appellee]

Prior to reaching the merits of these consolidated appeals, we must determine if they are properly before us.12 Within its Rule 1925(a) opinion, ____________________________________________

11 The following caveat immediately precedes the two issues raised within

assignment of errors, but adopts all arguments as set forth in the Brief for [] 4. It appears Bradley is attempting to incorporate the entirety of her Rule 1925(b) statement, by reference, into her appellate brief. This action is impermissible. See M.J.M. v. M.L.G., 63 A.3d 331, 337 n.7 (Pa. Super. 2013) (concluding issues that are brief are waived); accord Pa.R.A.P. 2116(a). Moreover, Bradley only addresses the two issues listed within her statement of questions involved within her appellate brief. See Brad -10. Accordingly, any issue Bradley failed to discuss within the argument section of her appellate brief is likewise waived. See Penn-Am. Ins. Co., supra; accord Pa.R.A.P. 2119(a). 12 issues, they assert

Concorde and G (Footnote Continued Next Page)

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the trial court questions our jurisdiction. Trial Court Opinion, 1/8/14, at 42-45. The trial court also submits that all issues with regard to its sanction order are waived because Appellants failed to request reconsideration of the order. Id. at 33-42.

Weible v. Allied Signal, Inc., 963 A.2d 521, 525 (Pa. Super. 2008), citing Pa.R.A.P. 341(a). Since the amendment of Pennsylvania Rule of Appellate Procedure 341 in 1992, we have consistently concluded that pretrial discovery orders are not appealable, final orders. Buckman v. Verazin, 54 A.3d 956, 959 (Pa. Super. 2012), appeal denied, 77 A.3d 1258 (Pa. 2013). pursuant to Rule 341.13

_______________________ (Footnote Continued)

the court asserts both waiver and lack of jurisdiction. Accordingly, as the trial address those claims first. 13 Notably, Rule 341 was amended to See Pa.R.A.P. 341, Note.

The following is a partial list of orders that are no longer appealable as final orders pursuant to Rule 341 but which, in an appropriate case, might fall under Rules 312 (Interlocutory Appeals by Permission) or 313 (Collateral Orders) of this Chapter.

(Footnote Continued Next Page)

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By the same token final and appealable because it entered only partial summary judgment as to all Appellants. Although the trial court found Concorde and Gordon liable as to all counts of the underlying complaint, it postponed its damages calculation for a later date. The order also rendered Bradley liable as to only one of the four counts within the complaint. Similarly, the trial court forewent its damages calculation as to this claim. Therefore, the summary judgment order was not a final, appealable order because the order did not

See Weible, supra. claims against Bradley did not render this matter appealable due to the outstanding damages claim. See id.

_______________________ (Footnote Continued)

(3) a pre-trial order refusing to permit a defendant to introduce evidence of an affirmative defense[.]

Id. Hull v. Tolentino, 536 A.2d 797 (Pa. 1988) (opinion announcing judgment), is misplaced as Hull was decided prior to the 1992 amendment to Rule 341. See id. -trial order precluding the assertion of an

of fact could have determined in favor of the pleader so as to provide him

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Instead, this matter ripened for appeal once the Delaware County

See Pa.R.A.P. 301; Pa.R.C.P. 227.4; Prime Medica Assocs. v. Valley Forge Ins. Co., 970 A.2d 1149, 1154 n.6 (Pa. Super. 2009), appeal denied, 989 A.2d 918 (Pa. 2010) (providing that orders denying post-trial motions are interlocutory and generally not appealable; rather, the subsequent judgment entered is appealable). As all parties appealed to this Court within 30 days of these July 26, 2013 judgments, our jurisdiction is proper. See Pa.R.A.P. entry of the order from which the appeal i

With respect to motions for reconsideration, Section 5505 of the Judicial Code, 42 Pa.C.S.A. §§ 101-modify its orders and states as follows.

§ 5505. Modification of orders.

Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.

42 Pa.C.S.A. be exercised sua sponte or invoked by the filing of a motion for reconsideration. Haines v. Jones, 830 A.2d 579, 584 (Pa. Super. 2003). Accordingly, we have concluded that waiver may not arise election to forego filing such a reconsideration motion because they are not

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procedurally required. See Harahan v. AC&S, Inc., 816 A.2d 296, 301 (Pa. Super. 2003) (concluding no waiver issue can attach when a motion for reconsideration is filed because such a motion is not required to be filed before appealing a grant of summary judgment), appeal denied, 828 A.2d 350 (Pa. 2003). Therefore, Concorde and Gordon did not waive their issues regarding the sanction order by choosing not to file for reconsideration of the order. purport to raise four additional errors for appellate review. Concorde and t assertion of defenses, and the repercussions thereof. Id. Within this consolidated issue, Concorde and Gordon argue that the trial court erred in imposing this sanction, which effectively entered a default judgment against abandonment of their defense.14 Id. at 27-31. ____________________________________________

14 We note that the trial court characterizes its discovery sanction against summary judgment motions against the parties. Trial Court Opinion, 1/8/14, at 47. Following our review of the record, it is apparent that the trial court precluded Concorde and

Pennsylvania Rule of Civil Procedure 4019(c)(2) (stating the trial court may to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting such party from introducing in evidence designated documents, (Footnote Continued Next Page)

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Generally, [trial] courts are afforded great discretion in fashioning remedies or sanctions for vi Notwithstanding those general propositions, we highly disfavor dismissal of an action, whether express or constructive, as a sanction for discovery violations absent the most extreme circumstances.

See City of Phila. v. Fraternal Order of Police Lodge No. 5 (Breary), 985 A.2d 1259, 1269-1270 (Pa. 2009) (citations, footnote, and internal quotation marks omitted; emphasis added). Moreover, our Supreme Court

s] hesitancy to

Id. at 1270. Accordingly, we have concluded that where a discovery sanction results in the effective dismissal of a case, our standard of review is stringent. Anthony Biddle Contractors, Inc. v. Preet Allied Am. St., LP, 28 A.3d 916, 926 (Pa. Super. 2011); see also Croydon Plastics Co., Inc. v. Lower Bucks Cooling & Heating, 698 A.2d 625, 629 (Pa. Super. 1997).

Pennsylvania Rule of Civil Procedure 4019 addresses the sanctions that a trial court may impose upon parties who fail to engage in meaningful discovery. That rule states, in pertinent part, as follows.

Rule 4019. Sanctions

_______________________ (Footnote Continued)

summary judgment against Concorde and Gordon.

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(a)(1) The court may, on motion, make an appropriate order if

(i) a party fails to serve answers, sufficient answers or objections to written interrogatories under Rule 4005;

(vii) a party, in response to a request for production or inspection made under Rule 4009, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested;

(viii) a party or person otherwise fails to make discovery or to obey an order of court respecting discovery.

(c) The court, when acting under subdivision (a) of this rule, may make

(2) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting such party from introducing in evidence designated documents, things or testimony, or from introducing evidence of physical or mental condition;

(3) an order striking out pleadings or parts thereof, or staying further proceedings until

by default against the disobedient party or party advising the disobedience;

(5) such order with regard to the failure to make discovery as is just.

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Pa.R.C.P. 4019.

Although Rule 4019 facially permits a trial court to enter an order precluding the assertion of defenses as a discovery sanction, a trial court must consider the following four factors when assessing the severity of a discovery sanction.

(1) [T]he prejudice, if any, endured by the non- offending party and the ability of the opposing party

willfulness or bad faith in failing to provide the requested discovery materials; (3) the importance of the excluded evidence in light of the failure to provide the discovery; and (4) the number of discovery violations by the offending party.

City of Phila., supra at 1270-1271 (emphases added). Greater emphasis has consistently been placed on the first two factors, i.e., the prejudice to the non-offending party and the bad faith of the offending party. Id. at 1271.

When analyzing the vitality of an imposed discovery sanction, our Supreme Court instructed us to also consider these four City of Phila. factors. Id. nature and the severity considered on appellate review. Biddle, supra (citations omitted; that each factor represents a necessary consideration[ when formulating a

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Rohm and Haas Co. v. Lin, 992 A.2d 132, 142 (Pa. Super. 2010), cert. denied, Lin v. Rohm and Haas Co., 132 S. Ct. 852 (2011). With these standards in mind, we turn to the case at bar.

Upon review of the certified record, it is apparent that the trial court failed to address the importance of the excluded evidence when formulating its discovery sanction, in direct contravention of City of Phila. See Trial Court Order, 3/22/11. Accordingly, we initially conclude the trial court erred as a matter of law when it failed to consider all four factors delineated in City of Phila.

Additionally, we conclude that the trial court abused its discretion it is evident that the trial court based its order primarily upon the prejudice endured by Appellee. While we agree with the trial court that Appellee encountered prejudice during the underlying discovery proceedings, it is unclear to us whether Concorde and Gordon or Attorney Coopersmith dictated these actions. In fact, the trial court itself appears to believe the belabored, eight-month discovery process occurred as a result of Attorney

City of Phila. and Biddle ive discovery sanction that necessitated the instant judgments against Concorde and Gordon.

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When discussing the prejudice bore by Appellee, the trial court this lawsuit. Id. at 40. Further, the trial court is blatantly upset that for new employment while the economy was in [a] deep recession as if they

Id.

Insisting that [Concorde and Gordon] should not be blamed for the inaction of [Attorney Coopersmith]

present his case at a time when he was struggling to

reprehensible, from both a business and legal standpoint. Taking the position that it was of no moment to force [Appellee] to beg for his daily bread

that effort lifted the level of their disrespect of [Appellee] from the sublime to the ridiculous. unexplained failure to respond to reasonable discovery requests to which [Concorde and Gordon] never raised an objection,

so as to move this stalled litigation to conclusion was for the purpose of enriching himself.

Id.

Id. at 41.

Despite this chastising, the trial court submits that, to date, Concorde and Gordon complied

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months late. Trial Court Opinion, 1/8/14, at 37, 41. Notwithstanding order should be upheld because neither of the parties have explained why it took eight months to produce discovery. Id. made to the court regarding their delayed discovery responses. Id. at 38, 49. Specifically, Concorde and Gordon asserted that their then-employed counsel abandoned their defense. Id. As apparent from an arduous reading meet a failed burden of [asserting a] timely objection to [requested]

Id. at 38.

edurally reconsideration and proffer of 362 documents was within the 30-day timeframe outlined by the Judicial Code for modification of orders. 42 Pa.C.S.A. § 5505.

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] Id.

record. Id. at 15. Therefore,

City of Phila. factors are unsupported.

Furthermore, the trial court failed to discuss the importance of the evidence excluded by the sanction order. Instead, the trial court asserted assertion of defenses within a case and it elects to do so in this instance. Trial Court Opinion, 1/8/14, at 38-40. As stated previously, due process con discovery violation. City of Phila., supra at 1270. Accordingly, we must stringently review such an order. Biddle, supra at 926. As the trial court readily concedes that Attorney discovery violations, we question whether the complete preclusion of

Lastly, we consider the number of discovery violations and the nature and severity of such violations simultaneously. Instantly, it is uncontested that Concorde and Gordon did not respond to discovery requests for

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the parties submitted discovery materials to Appellee on April 12 and May 27, 2011. Thus, the discovery requests to date. Trial Court Opinion, 1/8/14, at 37, 41.

Upon consideration of the aforementioned City of Phila. factors and the additional Biddle factor, we believe the trial court not only committed an error of law but also abused its discretion when it precluded Concorde and Gordon from asserting defenses as a discovery sanction. See City of Phila., supra; Biddle, supra. order is reversed. Moreover, since the trial court improperly invoked this discovery sanction, its March 29, 2012 summary judgment order and July 26, 2013 judgments, regarding Concorde and Gordon, must be reversed and vacated, respectively, because they were based upon an improper sanction order.15 discretion and committed an error of law when it granted summary judgment in favor of Appellee and against her pursuant to the WPCL. See

-10. ____________________________________________

15 Based upon our r

award. See

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We begin by noting our wellstandard of review of an order granting summary judgment requires us to determine whether the trial court abused its discretion or committed an

Petrina v. Allied Glove Corp., 46 A.3d 795, 797-798 view the record in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be

Barnes v. Keller, 62 A.3d 382, 385 (Pa. Super. 2012), citing Erie Ins. Exch. v. Larrimore, 987 A.2d 732, issue as to any material fact and it is clear that the moving party is entitled

Id.

The rule governing summary judgment has been codified at Pennsylvania Rule of Civil Procedure 1035.2, which states as follows.

Rule 1035.2. Motion

After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law

(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or

(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party

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who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.

-moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to

Babb v. Centre Cmty. Hosp., 47 A.3d 1214, 1223 (Pa. Super. 2012) (citations omitted), appeal denied, 65 A.3d 412 (Pa.

-moving party to adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of

Id.

Thus, our responsibility as an appellate court is to determine whether the record either establishes that the material facts are undisputed or contains insufficient evidence of facts to make out a prima facie cause of action, such that there is no issue to be decided by the fact-finder. If there is evidence that would allow a fact-finder to render a verdict in favor of the non-moving party, then summary judgment should be denied.

Id., quoting Reeser v. NGK N. Am., Inc., 14 A.3d 896, 898 (Pa. Super. 2011). interpretation of the WPCL -10. Specifically, the trial court found Bradley liable to Appellee under the WPCL solely based upon

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i.e., its chief executive officer (CEO). Trial Court Opinion, 1/8/14, at 5.

Pennsylvania enacted the WPCL to provide a vehicle for employees to enforce payment of their wages and compensation held by their employers. The underlying purpose of the WPCL is to remove some of the obstacles employees face in litigation by providing them with a statutory remedy when an employer breaches its contractual obligation to pay

substantive right to compensation; rather, it only

of wages and compensation to which an employee is otherwise entitled by the terms of an agreement.

Hirsh, supra § 260.9a(a).

Pertinent to thi firm, partnership, association, corporation, receiver or other officer of a court of this Commonwealth and any agent or officer of any of the abovementioned classes employing any person in this Commonwea Id. § 260.2a (emphasis added). Despite the ability to hold an agent or officer Mohney v. McClure, 568 A.2d 682, 686 (Pa. Super. 1990), affirmed, 604

Hirsh, supra, quoting I

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Stage Employees, Local Union No. 3 v. Mid-Atl. Promotions, Inc., 856 A.2d 102, 105 (Pa. Super. 2004), appeal denied, 878 A.2d 864 (Pa. 2005); accord Mohney, supra. Specifically, an employee must establish that the

-making, such as corporate decision-making or corporate advisement on matters of pay or

Hirsh, supra, citing Mid-Atl., supra at 106.

In the case sub judice, Bradley does not contest that she is an officer Complaint, 5/28/10, at ¶ 5. Rather, she asserts the trial court found her liable under the WPCL based solely upon her status as a corporate officer.

9-10. Bradley argues that, in order for her to be held

Id. at 9, citing Hirsh, supra (citations omitted); accord Mohney, supra. As Bradley contests taking an

-making, she posits this issue was

-10.

Herein, the trial court granted summary judgment in favor of Appellee and against Bradley o review the pleadings in this matter to determine if they support the trial

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to cause Concorde not to pay [Appellee] the aforesaid sums to which he is w[as] acting in accordance with the terms and conditions of [an] oral

Answer, 7/16/10, at ¶ 18. Bradley also asserted numerous defenses. Id. at ¶¶ 36-45.

Thereafter, Appellee filed the contested motion for summary judgment on September 16, 2011. Within this motion, Appellee averred Bradley

nted the decisions that caused Concorde not CEO of Concorde since 2004, and that she is consulted on management

Id. at ¶ 83. In support of these

See id. at Exhibits A, E. Specifically, Appellee attached produce all of the documents reflecting her input, contribution, or E

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Id. at Exh for Summary Judgment, 9/16/11, Exhibit E. Bradley likewise responded to

-making process.

-35, citing Hirsch, supra.

When reviewing this record in the light most favorable to Bradley, we decision-making of Concorde. See Barnes, supra. As WPCL liability cannot be imposed upon Bradley based solely upon her status as an officer and shareholder of Concorde, we conclude the trial court erred in finding Bradley liable under the WPCL during the summary judgment phase of the underlying proceedings. See Hirsh, supra; Mid-Atl., supra; Mohney, supra. judgment order and vacate the resulting July 26, 2013 judgment.17 ____________________________________________ 16

her first set of interrogatory responses. Id. 17

See .

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Based upon the foregoing, we conclude that Bradley, Concorde, and

reverse both the entered against Bradley, Concorde, and Gordon, and remand to the trial court so that it may condu claims.

Judgment vacated. Orders reversed. Case remanded. Jurisdiction relinquished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/25/2014

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