Appeal from the Order Dated February 1, 2007, in the Court of Common Pleas of Philadelphia County Civil Division at No. July Term, 2006, No. 002187.
The opinion of the court was delivered by: Ford Elliott, P.J.
BEFORE: FORD ELLIOTT, P.J., PANELLA AND KELLY, JJ.
¶ 1 In this appeal of a class action, appellants challenge the sustaining of preliminary objections to their complaint. Among those objections were two in the nature of a demurrer, which encompassed each of the four substantive counts of appellants' complaint, and which effectively terminated the litigation and disposed of the entire case. The court also sustained an objection to venue in Philadelphia County. Upon review, we reverse and remand for further proceedings.
¶ 2 Appellants' complaint sought compensation for alleged unpaid wages. Appellants represent former employees of appellee, a corporation operating a chicken processing plant in Fredericksburg, Lebanon County. The plant renders chickens and produces meat products. Before and after their workday routine, as well as before and after work breaks, appellants were required to don or doff, and sanitize certain protective gear before and after entering the production line. The gear protected both the workers and the chicken meat from cross-contamination, and also protected the workers from cutting injuries.
¶ 3 Central to each of the substantive counts of appellants' complaint was the fact that appellee paid wages to appellants only for the time that they were actively engaged on the production line, but not for any of the time they spent donning, doffing, and sanitizing their protective gear. Appellants' complaint did not allege that appellee specifically promised to pay appellants for the time they spent donning, doffing, and sanitizing their protective gear. Rather, the complaint merely alleged that appellee promised appellants "that they would be paid for all hours worked." (Complaint, at paragraph 35.)
¶ 4 Appellants filed their complaint on July 20, 2006. The complaint stated four causes of action: (1) a claim pursuant to the [Pennsylvania] Minimum Wage Act of 1968 ("PMWA"), 43 P.S. §§ 333.101-333.115; (2) a claim pursuant to the Wage Payment and Collection Law ("WPCL"), 43 P.S. §§ 260.1-260.12; (3) a claim based upon breach of an oral contract; and (4) a claim based upon unjust enrichment. Appellee responded on September 26, 2006 by filing preliminary objections. Oral argument was scheduled for January 16, 2007; and on February 1, 2007, the trial court sustained all of the objections, effectively ending this litigation. On appeal, appellants argue that the court erred in granting preliminary objections in the form of a demurrer to each count of their suit. Appellants also argue that the court erred in finding that venue was not proper in Philadelphia County, but properly belonged in Lebanon County.
¶ 5 We begin our analysis with our well-settled standard of review:
A preliminary objection in the nature of a demurrer is properly granted where the contested pleading is legally insufficient. Preliminary objections in the nature of a demurrer require the court to resolve the issues solely on the basis of the pleadings; no testimony or other evidence outside of the complaint may be considered to dispose of the legal issues presented by the demurrer. All material facts set forth in the pleading and all inferences reasonably deducible therefrom must be admitted as true.
In determining whether the trial court properly sustained preliminary objections, the appellate court must examine the averments in the complaint, together with the documents and exhibits attached thereto, in order to evaluate the sufficiency of the facts averred. The impetus of our inquiry is to determine the legal sufficiency of the complaint and whether the pleading would permit recovery if ultimately proven. This Court will reverse the trial court's decision regarding preliminary objections only where there has been an error of law or abuse of discretion. When sustaining the trial court's ruling will result in the denial of claim or a dismissal of suit, preliminary objections will be sustained only where the case if [sic] free and clear of doubt.
Strausser v. PRAMCO III, 944 A.2d 761, 764-765 (Pa.Super. 2008), quoting Excavation Technologies, Inc. v. Columbia Gas Company of Pennsylvania, 936 A.2d 111, 113 (Pa.Super. 2007).
¶ 6 Appellants' complaint stated their first cause of action based upon the PMWA. In advocating that the PMWA authorizes such a cause of action, appellants devote much of their appellate argument citing federal cases interpreting the federal Fair Labor Standards Act, 21 U.S.C. § 201 et seq.
Under developing federal law in this area, employers are required to pay animal processing employees for time spent donning, doffing, and sanitizing their protective gear. See De Ascencio v. Tyson Foods, Inc., 500 F.3d 361 (3rd Cir. 2007), cert. denied, Tyson Foods, Inc. v. de Ascencio, 128 S.Ct. 2902 (2008). Further, appellants attempt to argue that the legislature adopted the standards of the Fair Labor Standards Act for the PMWA when it amended the definition of "employe," under 43 P.S. § 333.103(h).*fn1 While we do not agree with appellants' logic in this regard, we nonetheless agree that the PMWA contemplates that appellants are entitled to wages for the time they spend donning, doffing, and sanitizing their protective gear.
¶ 7 The focal point of the issue before us is whether the concept of "hours worked" includes, under the PMWA, the time that appellants spent donning, doffing, and sanitizing their protective gear.*fn2 The answer, under the facts of this case, is found in the regulations promulgated in support of the PMWA.
Those regulations define "hours worked" as follows:
Hours worked--The term includes time during which an employee is required by the employer to be on the premises of the employer, to be on duty or to be at the prescribed work place, time spent in traveling as part of the duties of the employee during normal working hours and time during which an employee is employed or permitted to work; provided, however, that time allowed for meals shall be excluded unless the employee is required or permitted to work during that time, ...