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Elizabeth Sherman, et al. v. American Eagle Express

March 8, 2012


The opinion of the court was delivered by: Juan R. Sanchez, J.


Plaintiffs Elizabeth Sherman, Mohamad Abushalieh, Anthony Sturgis, and William Walsh, delivery drivers for Defendant American Eagle Express, Inc. (AEX), bring this action for declaratory, injunctive, and monetary relief, pursuant to Pennsylvania's Wage Payment and Collection Law (WPCL), Minimum Wage Act (MWA), and Workers' Compensation Act (WCA), on behalf of a putative class of current and former AEX delivery drivers who were allegedly improperly classified as independent contractors. Plaintiff's move for class certification as to their WPCL and MWA claims only. Plaintiffs ask this Court to certify a class, pursuant to Federal Rule of Civil Procedure 23, of all AEX delivery drivers who were classified by AEX as independent contractors and worked in Pennsylvania between February 10, 2006 and the present. Plaintiffs also seek certification of a sub-class consisting of class members who operated vehicles weighing 10,000 pounds or less. For the reasons set forth below, this Court finds Plaintiffs have satisfied the requirements of Rule 23 as to their WPCL claim, but not as to their MWA claims. Accordingly, the motion for class certification will be granted in part and denied in part.


AEX is a courier company in the business of delivering financial and medical products to banking institutions, hospitals, and pharmacies in the mid-Atlantic region. AEX contracts with several hundred drivers to make its scheduled pick-ups and deliveries. Since May 2008, all AEX drivers have been required to sign a form contract, the Transportation Brokerage Agreement (TBA), which classifies each driver as an independent contractor. Plaintiffs assert this classification is improper because AEX completely controls the manner, method, and means of each driver's work, thereby creating an employer-employee relationship under Pennsylvania law.

Plaintiffs contend AEX has a financial motive to classify its drivers as independent contractors because it is both able to defray the costs of delivery equipment-by requiring each driver to purchase his or her own truck, vehicle insurance, work phone, and uniform-and to avoid the financial burden of treating its drivers as employees entitled to protection under Pennsylvania's employment laws. Despite language in the TBA indicating each driver is an individual businessperson, Plaintiffs allege AEX exercises pervasive control over its drivers' activities, requiring them to adhere to AEX's strict business policies and mandated practices. The policies and regulations which govern driver conduct are memorialized in the TBA, as well as in a series of documents which apply universally to all AEX drivers, including the Security and Compliance Audit Process form, the Compliance Audit checklist, the Driver Quality Control form, and the AEX Group's Policy on Drugs and Alcohol form (collectively, the AEX standard forms).Additionally, Plaintiffs have offered the declarations of five former AEX employees who, in their role as dispatchers, supervised AEX delivery drivers and became familiar with AEX's company-wide business practices and operations (the dispatcher declarations). These dispatcher declarations affirm that AEX exercised pervasive control over its drivers.*fn2

AEX's policies and practices require, inter alia, that drivers check in daily at AEX routing centers and follow assigned itineraries. These itineraries dictate the precise route the driver must take and the exact time each package must be delivered. If drivers wish to change the order or route of their deliveries, they must receive permission from AEX to do so. Drivers are also obligated to regularly report on the progress of their deliveries. AEX requires its drivers to wear clothing with AEX logos, have photo identification readily visible on their person, and carry a spare key and cellular phone at all times. In addition, AEX prohibits drivers from having helpers or other people ride with them in their vehicles unless such individuals are pre-approved. AEX drivers are not permitted to sell or assign their routes and are required to receive AEX approval before taking vacation or sick leave. The drivers are subject to fines, deducted from their pay, if they do not adhere to AEX's strict rules governing driver conduct, appearance, and delivery performance. AEX ensures compliance with these rules by dispatching a team of auditors who follow and sporadically inspect AEX drivers.

Plaintiffs assert AEX, by improperly classifying its delivery drivers as independent contractors, failed to provide them the benefits to which they are legally entitled as employees under Pennsylvania law, including compensation for all hours actually worked, overtime pay, protection from unauthorized deductions and withholdings from wages, and workers' compensation insurance provided by AEX. Plaintiffs' First Amended Complaint seeks a declaration that all AEX delivery drivers in Pennsylvania are employees of AEX and an injunction barring AEX from classifying such drivers as independent contractors (Count I), as well as an order compelling AEX to comply with its obligations under the Pennsylvania Workers' Compensation Act (WCA), 77 Pa. Stat. Ann. § 501 (Count V). Plaintiffs also bring claims for monetary relief for violations of the Pennsylvania Wage Payment and Collection Law (WPCL), 43 Pa. Stat. Ann. § 260.1 et seq. (Count II), and the Pennsylvania Minimum Wage Act (MWA), id. § 333.101 et seq. (Counts III and VI).*fn3

Plaintiffs ask this Court to certify a class for Counts II (WPCL) and III (MWA) consisting of "[a]ll individuals who have worked for AEX in Pennsylvania between February 10, 2006 and the present and performed work as delivery drivers classified as independent contractors." Pls.' Mem. on Mot. for Class Certification 1. For Count VI (MWA), Plaintiffs seek to certify a sub-class consisting of "[a]ll individuals who have worked for AEX in Pennsylvania between February 10, 2006 and the present, performed work as delivery drivers classified as independent contractors, and operated vehicles weighing 10,000 lbs or less." Id. at 2.


As a preliminary matter, AEX challenges the competence of much of Plaintiffs' proffered evidence in support of class certification. First, AEX asserts Plaintiffs' documentary exhibits 11 through 16*fn4 are not competent to support class certification because they are too vague and not authenticated, some fall outside the proposed class period, and Plaintiffs have failed to show they are relevant or how they apply to the putative class. This Court disagrees.

Evidence in support of class certification need not be admissible at trial. Hayden v. Freightcar Am., Inc., No. 07-201, 2008 WL 375762, at *2 (W.D. Pa. Jan. 11, 2008); Vinson v. Seven Seventeen HB Phila. Corp., No. 00-6334, 2001 WL 1774073, at *20 n.28 (E.D. Pa. Oct. 31, 2001) ("[O]n a motion for class certification, the evidentiary rules are not strictly applied and courts will consider evidence that may not be admissible at trial." (quoting Rockey v. Courtesy Motors, Inc., 199 F.R.D. 578, 582 (W.D. Mich. 2001))). The documents challenged by AEX all reflect AEX's policies governing delivery drivers which are described in the deposition testimony and declarations proffered by Plaintiffs' in support of their certification motion. To the extent these policies were in force during the class period, as Plaintiffs assert, the documents are relevant to show the extent of AEX's control over its drivers, and are thus relevant to this Court's determination of Plaintiffs' class certification motion.

Second, AEX argues the declarations of three Maryland dispatchers are not competent evidence because the dispatchers either have no knowledge of AEX's Pennsylvania practices or have knowledge derived solely from inadmissible hearsay. In their declarations, however, the dispatchers state they are aware of AEX's national policies, which they know to be applied universally across all states, including Pennsylvania. To the extent any of this knowledge was derived through alleged hearsay statements, such statements appear to have come from other AEX employees and are likely admissible as party admissions. See Fed. R. Evid. 801(d)(2)(D) (defining statements offered against an opposing party by that party's agent or employee regarding matter within the scope of employment as not hearsay). Because the dispatchers attest to having first-hand knowledge of AEX's national practices regarding delivery drivers, their declarations are competent. In any event, Plaintiffs offer two additional declarations from AEX dispatchers who worked at the Aston, Pennsylvania terminal, and who assert the same AEX policies discussed by the Maryland dispatchers were applied to Pennsylvania drivers.

At bottom, AEX's challenges to Plaintiffs' evidence go to the evidence's weight and credibility at trial, and not its admissibility or competence with regard to the instant motion. The Court next turns to the requirements for class certification.

A class action is "peculiarly appropriate" when a case presents issues which are common to the class as a whole and "when [such issues] turn on questions of law applicable in the same manner to each member of the class." Hydrogen Peroxide, 552 F.3d at 309 n.6 (3d Cir. 2008) (quoting Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 155 (1982)). A class action "saves the resources of both the courts and the parties by permitting an issue potentially affecting every class member to be litigated in an economical fashion." Falcon, 457 U.S. at 155 (citation and internal alteration and quotations marks omitted). In deciding whether to certify a class under Rule 23, a district court must undertake a "rigorous analysis," making "whatever factual and legal inquiries are necessary and [considering] all relevant evidence and arguments presented by the parties." Hydrogen Peroxide, 552 F.3d at 307. A class will not be certified unless the plaintiff shows by a preponderance of the evidence that all Rule 23 requirements are met. Id.

Class certification involves a two-step process. First, the court must find the proposed class satisfies the four requirements of Federal Rule of Civil Procedure 23(a):

(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative ...

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