J-A02043-18

                             2018 PA Super 108



MISTY M. SOMMERS, ON BEHALF OF                    IN THE SUPERIOR COURT
HERSELF AND ALL OTHERS SIMILARLY                            OF
SITUATED,                                              PENNSYLVANIA



                     v.

UPMC AND UPMC PRESBYTERIAN
SHADYSIDE,

APPEAL OF MISTY M. SOMMERS
                                                    No. 1202 WDA 2017


                 Appeal from the Order Entered, July 21, 2017,
              in the Court of Common Pleas of Allegheny County,
                     Civil Division at No(s): GD-12-012901.


BEFORE: BOWES, OLSON, and KUNSELMAN, JJ.

OPINION BY KUNSELMAN, J.:                              FILED MAY 02, 2018

      Before 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 original composition.

                   I. Facts and Procedural Background

      Class 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
J-A02043-18



Hospitals,”1 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 meruit.

       Ms. 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.

       UPMC began correcting its payroll data to fix prior oversights of certain

BSN nurses, to whom it owed the differential. Ms. Sommers testified:

              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.

       Ms. Zaspel’s email also indicated widespread underpayments. “Over the

course of the last several months, steps have been taken to accurately,
____________________________________________


1 UPMC defines what constitutes an “Urban,” “Community,” or “Regional”
hospital. UPMC Compensation Manual: Fiscal Year 2011 at 9.

                                           -2-
J-A02043-18



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 362a, 363a.

     Ten 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




                                     -3-
J-A02043-18



25, 2012; reflected the standardized July 3, 2011 increase; and included no

interest or liquidated damages. R.R. at 364a.

      Ms. Sommers thought that UPMC’s retroactive payments were legally

insufficient, so, in July of 2012, she filed this class action.

      Originally, 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.

      After 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




                                       -4-
J-A02043-18



23, 2006 to present.”2 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 Wettick explained:

          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.

        He 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.

        When 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 right?

          A: Yes.


____________________________________________


2 For ease of discussion, we refer to this group of plaintiffs as the “Original
Class.”


                                           -5-
J-A02043-18


         Q: That she wasn’t paid for; is that right?

         A: Hours worked that she wasn’t paid for when she had the
            BSN — she should have had the BSN differential.

         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 didn’t.

                We then went back three years and made
            payments to them based on that.

         Q: And it was the filing of the Sommers’ lawsuit that caused
            you to undertake that analysis; is that right?

         A: Yes.

Deposition of Gary DuJordan, at 13-14, R.R. at 569a.

      Further inquiry revealed that UPMC had repaid only a part of the Original

Class. “Only the actual active employees that we did the original analysis…did

we make the actual payments to[, because w]e thought that was the right

thing to do.” Id. at 21, R.R. at 576a. Thus, nurses who transferred jobs or

left UPMC have received no backpay, despite being in the Original Class. Id.

at 23, 28; R.R at 578a, 583a.

      After creating subcategories of repaid nurses and unpaid nurses, UPMC

moved for summary judgment and total decertification of the class. Judge

Wettick retired shortly thereafter, and the case was reassigned to Judge

Robert J. Colville. On May 11, 2017, Judge Colville denied summary judgment



                                     -6-
J-A02043-18


to all parties, but he granted UPMC partial decertification. He allowed Ms.

Sommers to continue representing the partially-repaid nurses but removed all

unpaid nurses from the class.

       This interlocutory appeal followed under Pennsylvania Rule of Appellate

Procedure 313.3


____________________________________________


3                           Rule 313. Collateral Orders

          (a) General rule. An appeal may be taken as of right from
          a collateral order of an administrative agency or lower court.

          (b) Definition. A collateral order is an order separable from
          and collateral to the main cause of action where the right
          involved is too important to be denied review and the
          question presented is such that if review is postponed until
          final judgment in the case, the claim will be irreparably lost.

Pa.R.A.P. 313.

“As an order denying class certification is appealable under the collateral order
doctrine, we conclude that the trial court’s order, to the extent that it
decertifies the class action, is appealable.” Clark v. Pfizer, Inc., 990 A.2d
17, 23 n. 3 (Pa. Super. 2010) (citations omitted), appeal denied, 13 A.3d 473
(Pa. 2010).

Prior to oral argument this Court questioned whether it or the Commonwealth
Court of Pennsylvania has jurisdiction over this appeal under 42 Pa.C.S. §
706(a)(5). At oral arguments, both sides argued that this Court has proper
jurisdiction, because the WPCL is “right in the Superior Court's wheelhouse.”

The application of 42 Pa.C.S. § 706(a)(5) to ascertain whether appellate
jurisdiction lies in this Court or the Commonwealth Court is a question of law,
which we may raise sua sponte. Commonwealth v. Shearer, 882 A.2d 462,
465 n. 4 (Pa. 2005). Because this is a pure question of law, the scope of
review is plenary and the standard of review de novo. Snead v. Society for
Prevention of Cruelty to Animals of Pennsylvania, 985 A.2d 909 (Pa.
2009). Under Section 706(a)(5) appellate jurisdiction could lie in the



                                           -7-
J-A02043-18



                         II. Scope & Standard of Review

       This Court reviews an order to certify or decertify class action members

for an abuse of discretion. Janicik v. Prudential Ins. Co. of America, 451

A.2d 451 (Pa. Super. 1982). An “order concerning class certification will not

be disturbed on appeal unless the court failed to consider the requirements of

the rules or abused its discretion in applying them.” Id. at 454.

          An abuse of discretion is not merely an error of judgment,
          but if in reaching a conclusion the law is overridden or
          misapplied, or the judgment exercised is manifestly
          unreasonable, or the result of partiality, prejudice, bias or
          ill-will, as shown by the evidence of record, discretion is
          abused. We emphasize that an abuse of discretion may not
          be found merely because the appellate court might have
          reached a different conclusion, but requires a showing of
          manifest unreasonableness, or partiality, prejudice, bias, or
          ill-will, or such lack of support as to be clearly erroneous.

Paden v. Baker Concrete Construction Co., Inc., 658 A.2d 341, 343 (Pa.

1995).

       In performing an abuse of discretion review, when a trial court's

application of the underlying law is called into question, as it is here, it

heightens “our standard of review [to] de novo, and our scope of review is

plenary” as to the underlying question of law.         Snead v. Society for

____________________________________________


Commonwealth Court, because the application of the WPCL to UPMC — a
nonprofit corporation — implicates both its “corporate affairs” and the affairs
of its employees. However, as both sides expressly consented to jurisdiction
in this Court, its jurisdiction may be “perfected” pursuant to 42 Pa.C.S. § 704
(providing for appellate jurisdiction via appellee’s waiver of objection and with
the court’s indulgence). We hold that it is now so “perfected,” and whatever
obstruction that possibly arose from Section 706(a)(5) is hereby removed.

                                           -8-
J-A02043-18



Prevention of Cruelty to Animals of Pennsylvania, 985 A.2d 909, (Pa.

2009).

                                 III. Analysis

      Although the nurses raised four issues on appeal, they condensed them

to two arguments as to why we should return the unpaid nurses to the Original

Class. First, they attacked decertification procedurally: i.e., the Original Class

should have gone undisturbed, because UPMC's post-complaint creation of

subgroups is not a later development in the litigation. Second, they argued

that common issues of fact and law predominate, because the BSN differential

is a statutory “wage” under the WPCL that all similarly situated nurses earned

by working the same hours, at the same hospitals, on the same jobs, with the

same BSN degrees.

      UPMC countered that there is no commonality of evidence showing that

it had any obligation to pay the BSN differential to unpaid nurses. In order

for those nurses to recover, it said, they each need proof that it owes them

the “wage” on an individual basis. UPMC provided no answer to the nurses’

procedural argument.

      We will address each of the nurses’ arguments in turn.

      A. Without a Later Evidentiary Development, the Trial Court Has
         No Authority to Revisit the Certification Order.




                                      -9-
J-A02043-18



       Once a trial court orders class certification, Rule 1710 of Civil Procedure4

permits it to revisit that decision. But this Court has limited such changes to

only when “later developments in the litigation reveal that some prerequisite

to certification is not satisfied.” Janicik, 451 A.2d at 445.

       For instance, in Clark v. Pfizer, Inc., 990 A.2d 17 (Pa. Super. 2010),

appeal denied, 13 A.3d 473 (Pa. 2010), this Court, applying Janicik,5 affirmed
____________________________________________


4 “An order under this rule may be conditional and, before a decision on the
merits, may be revoked, altered or amended by the court on its own motion
or on the motion of any party.” Pa.R.C.P. 1710(d).

5The Clark court also cataloged cases from other courts to underscore the
general rule that a trial court may…

          reassess class certification when changed circumstances
          arise. See, e.g., Farmers Ins. Exch. v. Benzing, 206
          P.3d 812 (Colo. 2009) (“Generally, we agree that trial courts
          should not consider decertification without the discovery of
          new facts or changes in the law or positions of the parties.”);
          Rivera v. Veterans Mem'l Med. Ctr., 262 Conn. 730, 818
          A.2d 731, 738 (2003) (stating that “a class once certified on
          the basis of the requirements of [the class action rules]
          should be decertified only where it is clear there exist
          changed circumstances making continued class action
          treatment improper.”); Key v. Jewel Cos., 176 Ill.App.3d
          91, 125 Ill.Dec. 652, 530 N.E.2d 1061, 1066 (1988) (stating
          that a court could alter a certification order after a decision
          on the merits “where warranted by more complete
          discovery.”). In interpreting language identical to Pa.R.C.P.
          1710(d), the United States Court of Appeals for the Third
          Circuit has held that this exception holds true even when a
          trial court first renders a decision during the summary
          judgment phase in favor of the defendant and then decides
          to decertify the class action. Barnes v. American Tobacco
          Co., 161 F.3d 127, 140 (3d Cir.1998) (decertifying class
          after summary judgment); see Fireside Bank v. Superior



                                          - 10 -
J-A02043-18



decertification of an entire class. The Clarks had sued Pfizer for various torts,

alleging that Pfizer’s marketing caused doctors to prescribe its drug,

Neurontin, off-label.6 The Clarks offered an expert on prescription trends as

their prima facie case for class certification.        In discovery, Pfizer “adduced

evidence to prove that doctors in Pennsylvania have prescribed off-label use

of Neurontin to class members for reasons wholly unrelated to [its] alleged

fraudulent marketing.” Id. at 27.              This “adduced evidence” was a later

development in        that ligation; procedurally, it justified revisiting the

certification question. Id.

       In this case, the nurses contend that the trial court had no reason to

revisit certification, because UPMC’s self-manufactured subcategories are not

later developments in litigation. Instead, they castigate those subcategories

as a “fiction created by UPMC in this litigation as an afterthought in order to

set up the argument which the lower court ultimately used to rationalize

decertification” and as a “unilateral manipulation of the record.”              Ms.
____________________________________________


          Court, 40 Cal.4th 1069, 56 Cal.Rptr.3d 861, 155 P.3d 268,
          276 (2007) (“Before judgment, a class should be decertified
          ‘only where it is clear there exist changed circumstances
          making continued class action treatment improper.’ A
          fortiori, a similar showing must be made to warrant
          decertification after a decision on the merits.”)

Clark, supra. 29.
6 “Off-label” is medical lingo. It occurs when a doctor prescribes a drug for a
treatment, even though the U.S. Food and Drug Administration (FDA) has not
approved it for that treatment. Doctors are free to exercise their professional
judgement to proscribe FDA-approved drugs for any use they see fit, but drug
makers may not promote their wares for off-label uses.

                                          - 11 -
J-A02043-18



Sommers’ Brief, at 13 (emphasis in original). Given UPMC’s total failure to

respond to this argument and the absence of newly discovered evidence of

record, we agree.

       Notably, UPMC attempts to avoid the issue altogether. In its Brief, UPMC

would have us restrict the nurses’ appeal to “[w]hether the lower court abused

its discretion in holding that employees to whom no retroactive payments

were made (i.e., the “transferred” and “terminated” categories) should be

excluded from the class action?” UPMC’s Brief, at 1. Indeed, Janicik, the

wellspring of our decertification jurisprudence, makes no appearance in

UPMC’s Brief, despite UPMC and both trial judges having previously relied upon

the case. For example, UPMC argued that the trial court “‘may revoke, alter,

or amend the Certified Order where later developments reveal that some

prerequisite to certification is not satisfied…’” Defendants’ Brief in Support of

Motions for Summary Judgement and Decertification at 16, T.C.R. at 1418

(quoting Wettick Opinion at 6) (emphasis added).7         Or, as Judge Colville

correctly stated, “In the absence of some new evidentiary revelation proffered

by UPMC, Judge Wettick’s certification Order will stand.” Colville Opinion at 3
____________________________________________


7 This portion of Judge Wettick’s Opinion relied upon Samuel-Bassett v. Kia
Motors America, Inc., 34 A.3d 1, 34 (Pa. 2011) and Debbs v. Chrysler
Corp., 810 A.2d 137, 153 (Pa. Super. 2002). Both opinions cite to Janicik
v. Prudential Ins. Co. of America, 451 A.2d 451 (Pa. Super. 1982) for the
proposition that “Even if the class is certified, before a decision on the merits,
the certification order ‘may be revoked, altered or amended by the court on
its own motion or on the motion of any party.’ Pa.R.C.P. No. 1710(d). See
Janicik…(court has extensive powers to protect absent class members and to
ensure efficient conduct of class action).” Samuel-Bassett, supra. 16; and
see also Debbs, 810 A.2d at 153 (quoting Janicik, 415 A.2d at 455).

                                          - 12 -
J-A02043-18



(emphasis added). But neither Judge Colville nor UPMC identified any new

evidentiary revelations.

       All parties agree that decertification had no connection to new evidence.

“The critical factor in Judge Colville’s decertification decision was the absence

of evidence of a contractual right to be paid the BSN Differential; that is, the

absence of any evidence of an offer and acceptance.”        UPMC’s Brief at 15

(emphasis added). Hence, the judge’s inquiry was actually a reevaluation of

the nurses’ prima facie case. Thus, the only later development in this case

was that Judge Wettick retired. Thereafter, UPMC requested reconsideration

of the class certification. “The Defendants respectfully submit that the Court

should reconsider its decision to certify this case as a class action at all.”

Defendants’ Brief in Support of Motions at 16, T.C.R. at 1418. But, without

new evidence of record, Judge Wettick’s certification must stand.

       UPMC’s efforts to create subcategories of nurses, a unilateral dissection

of the Original Class, was not based upon any “later developments in the

litigation.” Janicik, supra. At the time Judge Wettick certified the class, he

knew that a subset of BSN nurses had received three years’ backpay. Pre-

certification, UPMC had identified 102 nurses to whom it had made partial

restitution. R.R. at 351a. Had Judge Wettick wanted to certify a class of only

those nurses with the unique “quasi-admission”8 of backpay, Judge Wettick

____________________________________________


8 Judge Colville first coined the phrase “quasi-admission” in reference to
UPMC’s backpay. See Colville Opinion at 4. This Opinion uses it in the same
manner and sense that he did.

                                          - 13 -
J-A02043-18



certainly could have done so. Instead, he certified a class of nurses “who

should have received but did not receive all or any portion of the regular or

overtime BSN Differential...” Wettick 3/2/15 Order at 2 (emphasis added).

The nurses who did not receive all of the BSN differential are those whom

UPMC has partially repaid, while those who did not receive any of the BSN

differential are the unpaid nurses. Thus, Judge Wettick’s original intent was

for any “quasi-admission” to extend to all nurses, similarly situated at the time

of underpaid employment, regardless of the extent of UPMC’s repayment.

      As he made clear in his Opinion in favor of certification:

            A May 2012 publication titled UPMC Nursing Pathways to
         Excellence provided to UPMC's more than 11,000 nurses,
         addressed Baccalaureate and Advanced Degrees.                It
         described the following benefit available to all of its nurses:

                UPMC acknowledges baccalaureate-prepared
                nurses at the bedside with a BSN-differential
                of $1 an hour in the urban and community
                hospitals, and $0.50 in the regional hospitals.

             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.

Wettick Opinion at 5-6. UPMC’s Compensation Director has admitted that the

unpaid nurses did not receive “any portion of the regular or overtime BSN

Differential,” Wettick 3/2/15 Order at 2, and that, because of this fact, they

were a part of the Original Class. R.R. at 576a, 583a. Judge Colville never

explains what new evidence came to light that caused those nurses to forfeit

their class membership, besides the fact that they were unpaid.

                                     - 14 -
J-A02043-18



        Thus, Judge Colville revisited Judge Wettick’s initial ruling to certify and

impermissibly reversed him without any newly discovered evidence, proffered

by UPMC, upon which to base his reevaluation. Accordingly, we conclude that

the trial court’s decertification misapplied Pa.R.C.P. 1710 as interpreted in

Janicik. Therefore, procedurally speaking, this decertification of a portion of

the Original Class constituted an abuse of discretion.

        B. The Employment Law of This Commonwealth Requires That
           the Original Class Proceed, in Unity, as Previously Certified.

        To determine who may be included in a class action, we start with Rule

1702 of Civil Procedure. It provides:

        One or more members of a class may sue…as representative
        parties on behalf of all members in a class action only if:

        (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;

        (4)   the representative parties will fairly and adequately assert
              and protect the interests of the class under the criteria set
              forth in Rule 1709; and

        (5)   a class action provides a fair and efficient method for
              adjudication of the controversy under the criteria set forth
              in Rule 1708.

Pa.R.C.P. 1702.      Also, “a class action is a fair and efficient method of

adjudicating the controversy” when “common questions of law or fact

predominate over any question affecting only individual members…” Pa.R.C.P

1708.

                                       - 15 -
J-A02043-18



      When applying the Rules of Civil Procedure regarding class certification

or decertification, the trial courts’ “decisions should be made liberally and in

favor of maintaining a class action.    This is because such suits enable the

assertion of claims that, in all likelihood, would not otherwise be litigated.”

Weinburg v. Sun Co., 740 A.2d 1152, 1162 (Pa. Super. 1999), reversed in

part on other grounds, 777 A.2d 442 (Pa. 2001), (citations and quotation

marks omitted).    This is “a mixed question of fact and law.”        Debbs v.

Chrysler Corp., 810 A.2d 137, 154 (Pa. Super. 2002). In deciding the class

issue, the trial court is not to invade the province of the fact finder by

considering the case’s merits, but it “may need to examine the elements of

the underlying causes of action in order to dispose of class issues properly.”

Id.

      Ms. Sommers argues that she has satisfied all five of Pa.R.C.P. 1702’s

prima facie requirements, so that she may continue as Class Representative

for the Original Class. To support her position, she essentially raises three

points. First, UPMC’s partial repayment of the differential to active nurses

constituted an admission that the differential was a wage owed to all similarly

situated nurses; however, the trial court erroneously limited the admission’s

applicability to the 150 nurse who received it. Second, the trial court failed to

consider the totality of UPMC’s corporate-wide practices of treating similarly

situated nurses similarly. And third, the trial court misapplied the case law.

      For its part, UPMC expounds upon Judge Colville’s Opinion. UPMC claims

that Ms. Sommers produced no evidence of a class-wide offer or acceptance

                                     - 16 -
J-A02043-18



of the differential. Hence, it argues that each nurse must prove a contractual

right to the BSN differential on an individualized basis. In UPMC’s and Judge

Colville’s views, this means that any common issues of fact or law that Ms.

Sommers shares with the unpaid nurses will not predominate over questions

of personal contract formation.

      The trial court’s decision to decertify rests entirely upon its conclusion

that UPMC’s “quasi-admission” via partial repayment extends to only active

nurses. Because this limitation on the inferences that a jury may draw from

that “quasi-admission” is manifestly unreasonable, the decision to decertify

was an abuse of discretion. We do not see how partial repayments by UPMC

may be evidentiary admissions as to some of the Original Class but not as to

all of them.

      Judge Colville began his Opinion by acknowledging that “retroactive

payment may be viewed as a ‘quasi-admission’ of UPMC.” Colville Opinion at

4. Although we are not sure what is “quasi” about the “admission,” we do

agree that the backpay “is a common fact that supports the claim that each

of the [repaid nurses] was entitled to the differential payments. There is no

evidence that the retroactive payment was a settlement payment or anything

other than a wage payment.” Id.

      Judge Colville then properly noted that the backpay’s implications “must

be decided in a different proceeding.” Id. at 4, n. 4. We presume by “different

proceeding” he meant a jury trial. If so, he was correct, because determining

why UPMC undertook repayments in the first instance goes to the heart of the

                                    - 17 -
J-A02043-18



four causes of action.    Hence, that determination lies beyond both Judge

Colville’s authority and ours. “Here, for purposes of class decertification, it is

sufficient that UPMC’s retroactive payment establishes a common issue of fact

and law and may eliminate the need for individual inquiry as to whether each

putative class member has standing.” Id.

         This common issue of fact and law also binds the claims for
         breach of contract, promissory estoppel, and quantum
         meruit for purposes of establishing a contractual right or
         promise on a class-wide basis. This is because UPMC’s
         retroactive payment is arguably performance of a
         contractual obligation or promise.

Id. at 5. Here, too, the judge was correct. UPMC’s retroactive repayments

could only have been one of two things: (A) restitution for unpaid wages that

were due and owing under a legal obligation to all differential-eligible nurses

with a BSN or (B) bonuses/gifts from UPMC to select nurses. Only a jury may

decide which they were.

      But the trial court’s analysis on page six fails. He held that “[r]etroactive

payment to [repaid] nurses is a common binding fact, and, coupled with the

additional fact that the differential payment is a wage under the WPCL, affords

[repaid nurses] a unique ‘quasi-admission’ of UPMC, as discussed supra.” Id.

at 6. The trial court refused to extend the potential admission to the unpaid

nurses, because they have never been paid the differential. Id. He therefore

concluded that “UPMC has not acted so as to arguably establish [its] rights to

receive the differential wage payment.” Id. This limitation of the admission’s




                                      - 18 -
J-A02043-18



scope is not simply an error in judgment; it’s manifestly unreasonable,

because the conclusion does not logically follow from its stated premise.

      If a jury decides that the backpay was partial performance of a UPMC-

wide legal obligation to pay the differential, such an enterprise-wide obligation

would run to all Original Class members, because they all worked under the

same UPMC-wide terms and conditions of employment. This derives from the

case’s common issue of facts and law: namely – was the differential a legally

binding part of UPMC’s corporate-wide employment compensation during the

nurses’ employment? The question is not: which nurses did UPMC unilaterally

find worthy of restitution, after the fact? If it were, future class defendants

could self-determine their liability by repaying only part of the class, because

partial repayment would end commonality between paid and unpaid class

members. Allowing class action defendants to self-regulate class size in this

manner would be absurd.

      Instead, as this Court has explained, a common issue of fact or law:

         will generally exist if the class members’ legal grievances
         are directly traceable to the same practice or course of
         conduct on the part of the class opponent. The common
         question of fact [requirement] means precisely that the
         facts must be substantially the same so that proof as to one
         claimant would be proof as to all.

Clark, supra. 24 (citations and quotation marks omitted, emphasis in

original). There is no doubt that all of the BSN-educated nurses’ legal and

factual claims arise from the same practices of UPMC.        Indeed, UPMC has

admitted that paying the BSN differential was a practice. “[T]he practice had

                                     - 19 -
J-A02043-18



been that, once a nurse acquired their BSN, that if the paperwork was

appropriately processed, that they should be receiving the differential.”

Deposition of UPMC Presbyterian’s HR Manager Laura Zaspel at 23, R.R. at

300a (emphasis added). Ms. Sommers and the Original Class have alleged

that this common practice stems from UPMC’s contractual obligations,

promissory estoppel, quantum meruit, and/or the WPCL, as to all BSN nurses

who worked during the same shifts, in the same hospitals, in the same BSN-

eligible positions. Whether they will produce sufficient evidence to convince a

jury that they are entitled to recover under any of their theories is not now

before us.

      What matters is evidence of record indicates UPMC admitted that it

employed BSN nurses in various subsidiary hospitals, to whom it said it should

have paid the differential, but did not.     UPMC did this through emails,

spreadsheets of unpaid back wages, a newsletter, various depositions, and –

most importantly – by actually paying the BSN differential to half the 337

nurses. In other words, the Original Class’ best class-wide evidence, from

which a jury may conclude that UPMC made a legally enforceable promise, is

that it undertook steps to fulfill that obligation by starting to pay some of

them. That evidence, in light of the rest of the record, goes to the common

question of what those repayments are. And that question predominates over

the niceties of individual contract formation, because the parties’ course of

conduct may convince a jury that their conduct arose from an underlying




                                    - 20 -
J-A02043-18



contract or legally-enforceable promise. As this Court said in Braun v. Wal-

Mart Stores, Inc., 24 A.3d 875, 942 (Pa. Super. 2011):

           An offer of acceptance need not be identifiable and the
           moment of formation need not be precisely pinpointed. In
           general, there is an implication of a promise to pay for
           valuable services rendered with the knowledge and approval
           of the recipient, in the absence of a showing to the contrary.

Thus, UPMC’s preoccupation with the need for each nurse to testify as to the

exact instant when she or he agreed to receive an hourly pay increase is a red

herring.

      If the jury finds that UPMC, more probably than not, repaid Ms.

Sommers because the BSN differential was due and owed to her as a part of

her WPCL “wages,” then it follows that this is why it made similar repayments

to 150 other nurses. And if the BSN differential was also due and owed to

them as a part of their WPCL “wages,” then it follows that it was also due and

owed to the remainder of the Original Class.

      Thus, there is no reason to distinguish unpaid nurses from partially-

repaid ones. They all share the same common facts of UPMC employing them

to do the same work, in the same hospitals, in the same positions, with the

same degrees, under the same corporate-wide policies and publications, and

for the same compensation.

                                 IV. Conclusion

      By both misapplying Rule 1710 of Civil Procedure and limiting the scope

of UPMC’s admission, via partial restitution, without reasonable justification,



                                       - 21 -
J-A02043-18



the trial court abused its discretion. We therefore reverse that portion of its

July 21, 2017 Order which decertified unpaid nurses from this case and

reinstate the Original Class as found in Judge Wettick’s 3/2/15 Order.

      Order reversed.     Case remanded for jury trial consistent with this

Opinion. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/2/2018




                                      - 22 -
