The opinion of the court was delivered by: Hon. John E. Jones III
This matter is before the Court on Plaintiffs' Motion for Class Certification (Doc. 77), filed on January 15, 2010. Also pending before the Court is Defendant Federal Express Corporation's Motion to Deny Class Certification on Grounds of Issue Preclusion (Doc. 89) filed on February 16, 2010. Both Motions have been fully briefed by the parties and are therefore ripe for our review.*fn1 For the following reasons, both Motions shall be denied.
Plaintiffs Brendan Masterson, John Martin, and Joseph DeFazio, Sr. bring this action on behalf of three putative classes of all Pennsylvania-based couriers employed by Defendant Federal Express Corporation ("FedEx"). Plaintiffs define the classes as follows:
(1) All couriers employed by FedEx in Pennsylvania from October 15, 2002 to March 31, 2006 for breach of express and implied contract claims for unpaid preliminary work;
(2) All couriers employed by FedEx in Pennsylvania from December 10, 2004 to March 31, 2006 for claims for violations of Pennsylvania's Wage Payment and Collection Law, 43 P.S. § 260.1, et seq. for unpaid preliminary work;
(3) All couriers employed by FedEx in Pennsylvania from October 15, 2002 to March 31, 2006 for unjust enrichment/quantum meruit claims for unpaid preliminary work.
Plaintiffs allege that FedEx violated Pennsylvania statutory and common law by requiring couriers to perform unpaid preliminary work between their arrival at the station and their scheduled start time.
FedEx couriers are paid an hourly wage. It is undisputed that FedEx couriers are required to keep two sets of daily time records. First, FedEx couriers must manually punch a timecard upon their arrival and departure to and from the station. Second, couriers utilize "Trackers," which are electronic notepads upon which couriers report their work activities for the day. It is also undisputed that FedEx pays wages based solely on the couriers' Tracker entries.
According to Plaintiffs, prior to April 1, 2006,*fn2 FedEx systematically encouraged and/or required couriers to perform preliminary work during the gap time between when the couriers arrived at the station and when they logged the first entry on their Trackers at their scheduled start time. Preliminary work included gathering personal supplies such as clipboard and backbelt, inspecting uniforms and personal appearance, picking up the daily manifest, picking up work supplies such as the Tracker, and recording additional information on timecards. Because FedEx based couriers' pay on the Tracker time entries and not the manual timecards, Plaintiffs contend that FedEx required them to perform unpaid work.
B. Class Certification Cross-Motions
Plaintiffs and FedEx cross-move for an against class certification. Plaintiffs contend that they satisfy the standards of numerosity, commonality, typicality and adequacy required by Fed. R. Civ. P. 23(a), and that common questions of law and fact predominate over individual considerations, thus making class consideration of the claims a superior method of adjudication for purposes of Fed. R. Civ. P. 23(b)(3). Regarding common questions of law and fact, Plaintiffs contend that they can prove FedEx breached the WPCL and contractual requirements to pay couriers for all hours worked because FedEx training materials instructed couriers to perform various types of preliminary work during the gap time between manual timecard punch on arrival and first tracker entry.
Plaintiffs further submit that 49 C.F.R. § 395.2, a regulation promulgated by the Federal Motor Carrier Safety Administration of the Department of Transportation (hereinafter "DOT regulation"), provides a common legal standard for their WPCL and contractual claims, which allege that couriers were not paid for all "hours worked." The DOT regulation defines "on-duty time" as "[a]ll time from the time a driver... is required to be in readiness to work until the driver is relieved from work," which includes "[a]ll time at a plant, terminal, facility or other property of a motor carrier or shipper, or on any public property, waiting to be dispatched." Plaintiffs argue that they were "on duty" but unpaid during the gap time between when couriers manually clocked-in on arrival and when they submitted their first ...