Jon Campisi Jan. 13, 2014, 6:51am


A U.S. District Court judge in Philadelphia has granted a motion by Herr

Foods Inc. to dismiss a class action by delivery drivers that alleged they were not paid overtime wages, although the jurist did afford the plaintiffs an opportunity to file a second amended complaint in the litigation.

In a Jan. 9 ruling, Judge Berle Schiller determined that Herr was correct in its assertion that a class asserting violations of Pennsylvania’s Wage Payment and Collection Law had to be tossed because the plaintiffs failed to identify a contractual basis for the claim.

The plaintiffs – Kalvin Drummond, Christopher Grandison, Mohammed Bah and Shane Bent – claimed they were non-exempt hourly employees who were entitled to overtime pay under the federal Fair Labor Standards Act.

In arguing to keep the suit alive, the plaintiffs pointed to state case law that supported their conclusion that a contractual entitlement to wages is not necessary to sustain a WPCL claim.

In his ruling, Schiller wrote that the plaintiffs failed to address a relatively recent Pennsylvania Superior Court case that demonstrates their issue remains unsettled.

That appeals body ultimately concluded that the current state of case law requires a plaintiff to establish a contractual obligation to compensation in order to state a WPCL claim.

“Admittedly, the Pennsylvania Superior Court has provided both sides with support for their respective positions,” Schiller wrote. “But the most recent pronouncement from that court, a pronouncement consistent with the Third Circuit Court of Appeal’s view and the view of this Court in a previous case, convinces this Court that a contractual obligation remains necessary for a WPCL claim.”

The judge wrote that the plaintiffs in this case have failed to allege any such contractual obligation, either express or implied.

Schiller did, however, give the plaintiffs permission to file an amended complaint in which they seek to provide apparent “evidence” that exists suggesting Herr incorporated its statutory obligation to follow the Fair Labor Standards Act and the Pennsylvania Minimum Wage Act into its employment agreements with the delivery drivers.

“Because it is possible for Plaintiffs to plead a contractual obligation sufficient to sustain a WPCL claim even in the absence of an express employment agreement, the Court will afford them the opportunity to state such a claim,” Schiller wrote. “Therefore, the Court will grant Defendant’s motion but will allow Plaintiffs to amend their amended complaint for the sole purpose of alleging facts sufficient to maintain a WPCL claim based on a contractual entitlement to compensation.”

While the plaintiffs’ exact job duties will need to be fleshed out during discovery, the judge noted in his memorandum, the plaintiffs say that as deliverers, they transported and stocked Herr’s products at franchise, local chain and independent retailers.

The memorandum shows that Herr paid its employees a base salary of between $500 and $550 per week and a commission on proceeds above a base amount that were generated from sales to retailers along the delivery route.

The plaintiffs in the class action claim that while they regularly worked 50 or more hours per week, Herr didn’t pay them for more than 40 hours a week.

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