MISTY M. SOMMERS, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED,
UPMC AND UPMC PRESBYTERIAN SHADYSIDE, APPEAL OF MISTY M. SOMMERS
from the Order Entered, July 21, 2017, in the Court of Common
Pleas of Allegheny County, Civil Division at No(s):
BEFORE: BOWES, OLSON, and KUNSELMAN, JJ.
us is an interlocutory appeal from an order decertifying part
of a class of nurses, who are suing their employer for unpaid
wages. Because there were no later evidentiary developments
in the litigation and common issues predominate over
individual ones, we reverse and restore the class to its
Facts and Procedural Background
Representative Misty Sommers sued the University of
Pittsburgh Medical Center (UPMC) and its subsidiaries for
unpaid wages nearly six years ago. The class alleged that
UPMC owes nurses a shift differential of $1.00 per hour in
"Urban and Community Hospitals" and $0.50 per hour
in "Regional Hospitals, " if they have a
Bachelor's of Science in Nursing (BSN) Degree. The nurses
asserted claims for breach of contract; violation of the Wage
Payment and Collection Law (WPCL), 43 P.S. § 206.1,
et seq.; promissory estoppel; and quantum
Sommers began working for UPMC in 1998 when it acquired her
then-employer, Presbyterian Hospital. Several years later,
she learned of the BSN differential and that she and other
nurses should have been receiving it. For example, UPMC Human
Resources Manager Laura Zaspel emailed her, stating, "As
you are aware, in July 2011, the differential for RNs in
eligible positions who possess BSNs was increased from $.50
to $1.00." R.R. at 82a.
began correcting its payroll data to fix prior oversights of
certain BSN nurses, to whom it owed the differential. Ms.
I just waited. Other co-workers were talking to human
resources here and there, and I would hear back from them.
And then it got to the point where it had been a couple of
months, and that's when I called human resources myself.
Q: What happened in that call?
A: I was told that they were working on it,
it was gonna take some time and there were thousands of
nurses that were affected by this…
Deposition of Misty Sommers at 11-12, R.R. at 338a-339a.
Zaspel's email also indicated widespread underpayments.
"Over the course of the last several months, steps have
been taken to accurately, consistently and comprehensively
determine the appropriate rate at which you, and others who
may have been affected by this circumstance, should be
paid." R.R. at 82a. Human resources described a
"time and labor intensive" process that involved
"leaders and staff from a number of departments,
including Payroll Compensation, Retirement, HR and Legal
working together to resolve this issue so that all impacted
RNs will be appropriately compensated for the attainment of
their BSN." Id. She assured Ms. Sommers that
"executives in the HR and Legal departments are
reviewing the data" and "[o]nce any salary
adjustments and retroactive pay amounts are finalized and
approved, you will be notified." Id. Those
notifications of retroactive pay came via email three months
later; they were identical in form and substance. R.R. at
days later, UPMC sent a spreadsheet to Ms. Sommers calling
the retroactive differential a "Back Wage Payment."
R.R. at 343a. UPMC's wage repayment to Ms. Sommers ran
from February 24, 2009 to February 25, 2012, and the
spreadsheet reflected the standardized July 3, 2011 increase
from $.50 to $1.00, described by Ms. Zaspel in her previous
email. The total restitution from UPMC to Ms. Sommers was $4,
397.73. Id. UPMC's computations included no
interest or liquidated damages as mandated under the WPCL.
Id. UPMC's Legal Department sent a substantially
similar spreadsheet to another nurse, Danielle Gregory, which
also called the differential a "Back Wage Payment;"
ran from February 24, 2009 to February 25, 2012; reflected
the standardized July 3, 2011 increase; and included no
interest or liquidated damages. R.R. at 364a.
Sommers thought that UPMC's retroactive payments were
legally insufficient, so, in July of 2012, she filed this
the case was assigned to Allegheny County Court of Common
Pleas Judge R. Stanton Wettick, Jr. In response to
interrogatories, UPMC produced the names of 91 nurses at
Magee-Women's Hospital of UPMC "who were
retroactively paid the BSN differential effective July 3,
2011" and "eleven BSNs who UPMC Presbyterian
Shadyside identified as having not received the BSN
differential and who were ultimately paid retroactively in
March 2012." R.R. at 351a.
pleadings closed, Ms. Sommers moved for class certification.
The trial court declined to certify a class action as to UPMC
Presbyterian Shadyside for lack of numerosity, because only
eleven of its nurses had claims similar to Ms. Sommers'.
Wettick Opinion, 3/2/15 at 2, R.R. at 394a. However, Judge
Wettick found that UPMC itself was an "employer"
under the WPCL, and he certified Ms. Sommers'
representation as to UPMC for a class consisting "of all
individuals employed by any UPMC subsidiary and/or business
unit at any time on or after February 23, 2006 who should
have received but did not receive all or any portion of the
regular or overtime BSN Differential from February 23, 2006
to present." Wettick Order, 3/2/15 at 2. He held that
Ms. Sommers and other nurses at UPMC Presbyterian Shadyside
had commonality with their UMPC-wide colleagues, because UPMC
set the compensation plans for all of its subsidiaries. Judge
UPMC contends that the evidence offered by the plaintiffs
does not show a corporate-wide response to unpaid
differentials. I disagree. The record shows that it is the
practice of UPMC to adopt system-wide corporate policies for
personnel matters impacting more than one subsidiary. Thus,
if there were numerous nurses with BSN degrees employed by
other subsidiaries who also received a three-year retroactive
payment, this would support a finding that the three-year
payment was a corporate-wide policy.
Wettick Opinion at 6.
ordered UPMC to identify all class members. UPMC then
identified a class of "at least 330 nurses 'who
should have, but did not, receive a BSN Wage
Differential' during the time frame relevant to this
matter." R.R. at 417a.
confronted with lists of 337 nurses, UPMC Compensation
Director Gary DuJordan acknowledged that UPMC owed them the
differential and that UPMC made retroactive payments to some
of them because of the suit.
Q: But the calculation that's reflected
here of the amount owed is based on hours she worked; is that
Q: That she wasn't paid for; is that
A: Hours worked that she wasn't paid for
when she had the BSN - she should have had the BSN
Q: I understand.
You had mentioned a minute ago in your answer that it was
based on - nurses who had payout is what you said; what do
you mean, a payout?
A: We actually audited our nurses to see if
there were any nurses beyond the original 11 in the lawsuit
that didn't have payment for the BSN differential, and
through this audit process we discovered that they
We then went back three years and made payments to them based
Q: And it was the filing of the Sommers'
lawsuit that caused you to undertake that analysis; is ...