J-A06019-16


                              2016 PA Super 229

ALISHA SICILIANO, CASSIE STARETZ,                IN THE SUPERIOR COURT OF
SAMANTHA LYNN EARLY AND JUSTIN                         PENNSYLVANIA
ECK, INDIVIDUALLY AND ON BEHALF OF
ALL SIMILARLY SITUATED PERSONS

                         Appellees

                    v.

ALBERT/CAROL MUELLER, T/A
MCDONALDS; ALBERT AND CAROL
MUELLER LIMITED PARTNERSHIPS;
ALBERT MUELLER, INDIVIDUALLY; AND
CAROL MUELLER, INDIVIDUALLY

                         Appellants                    No. 1321 MDA 2015


                Appeal from the Order Entered May 29, 2015
              In the Court of Common Pleas of Luzerne County
                     Civil Division at No(s): 2013-07010


BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

OPINION BY LAZARUS, J.:                           FILED OCTOBER 21, 2016

     Albert   and   Carol    Mueller,   Albert   and   Carol   Mueller   Limited

Partnerships, and Albert/Carol Mueller t/a McDonalds (collectively “the

Muellers”) appeal from the order of the Court of Common Pleas of Luzerne

County denying their motion for summary judgment. After careful review,

we affirm.

     The Muellers, through their limited partnership, own and operate

sixteen McDonalds franchises in Pennsylvania.           On August 26, 2013,
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Plaintiffs, a class consisting of current and former McDonalds’ hourly

employees1, filed an action against the Muellers alleging violations of the

Pennsylvania Wage Payment and Collection Law (WPCL). 43 P.S. § 260.3.

Specifically, Plaintiffs alleged that the Muellers violated the WPCL by paying

their wages from November 2010 to July 2013 through a mandatory JP

Morgan Chase Payroll Card rather than by cash or check. Plaintiffs sought,

inter alia, compensatory and punitive damages as well as counsel fees and

litigation costs.

        On May 14, 2015, the trial court certified this matter as a class action.

Shortly thereafter, on May 29, 2015, the court denied the Muellers’ motion

for summary judgment; the court included in the order a statement that the

matter involved a controlling question of law, as to which there is substantial

ground for difference of opinion, the immediate appeal of which might

materially advance the ultimate termination of the matter. See 42 Pa.C.S. §

702(b) (interlocutory appeals by permission).2 The Muellers filed a petition

to appeal the May 29, 2015 order, which this Court granted on August 3,

2015.3

____________________________________________


1
 Plaintiffs averred that Appellants allowed managerial employees to be paid
wages by direct deposit. Plaintiffs’ Amended Complaint, 8/26/13, at ¶ 9.
2
    Plaintiffs’/Appellees’ motion to dismiss this interlocutory appeal is denied.
3
  On October 19, 2015, the Muellers filed a Petition for Extraordinary Relief
in the Supreme Court, which was denied on December 10, 2015.



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      The sole issue on appeal, a question of first impression, is whether

mandatory payment of wages by payroll debit card (“payroll card”) meets

the requirement of section 260.3 of the WPCL that “wages shall be paid in

lawful money of the United States or check.”     43 P.S. § 260.3. We conclude

that it does not, and, therefore, we affirm the trial court’s order.

      Our standard of review of an order granting or denying summary

judgment is well-settled:

      We view the record in the light most favorable to the nonmoving
      party, and all doubts as to the existence of a genuine issue of
      material fact must be resolved against the moving party. Only
      where there is no genuine issue as to any material fact and it is
      clear that the moving party is entitled to a judgment as a matter
      of law will summary judgment be entered. Our scope of review
      of a trial court’s order granting or denying summary judgment is
      plenary, and our standard of review is clear: the trial court’s
      order will be reversed only where it is established that the court
      committed an error of law or abused its discretion.

Daley v. A.W. Chesterton, Inc., 37 A.3d 1175, 1179 (Pa. 2012) (citation

omitted).

      Section 260.3(a) of the WPCL provides, in relevant part:

      Wages other than fringe benefits and wage supplements. Every
      employer shall pay all wages, other than fringe benefits and
      wage supplements due to his employes on regular paydays
      designated in advance by the employer. . . . The wages shall
      be paid in lawful money of the United States or check.

43 P.S. § 260.3(a) (emphasis added).

      As our analysis involves interpreting section 260.3 of the WPCL, we

begin by considering the Statutory Construction Act. 1 Pa.C.S.A. §§ 1501,

et seq.     The Statutory Construction Act is clear: the objective of all

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interpretation and construction of statutes is to ascertain and effectuate the

intention of the legislature. 1 Pa.C.S.A. § 1921(a). Our Supreme Court has

found that “the best indication of the General Assembly’s intent is the plain

language of the statute.”       Ario v. Ingram Micro, Inc., 965 A.2d 1194,

1201 (Pa. Super. 2009), citing Martin v. Commonwealth, Dep’t of

Transp., Bureau of Driver Licensing, 905 A.2d 438, 443 (Pa. 2006). See

1 Pa.C.S.A. § 1921(b) (when words of statute are clear and unambiguous,

there is no need to look beyond plain meaning of statute “under the pretext

of pursuing its spirit.”). Only where the words of a statute are not explicit,

or they are ambiguous, is there need to resort to consideration of the factors

in   aid   of   construction   enumerated   in   1   Pa.C.S.A.   §   1921(c).   See

Commonwealth v. Fithian, 961 A.2d 66, 74 (Pa. 2008).

       The WPCL states that wages “shall be paid in lawful money of the

United States or check.” 43 P.S. § 260.3. The language is clear. A debit

card is not “lawful money” and it is not a “check” as contemplated by the

drafters of the WPCL. We agree with the learned trial judge, the Honorable

Thomas Burke, Jr., that the Legislature obviously did not contemplate the

concept of a payroll debit card when it adopted the language of section

260.3 in 1961.

       The term “check” is defined in the WPCL as follows: “A draft drawn on

a bank and payable on demand.” 43 P.S. § 260.2(a). A “draft,” though not

defined in the WPCL, is “[a]n unconditional written order signed by one

person (the drawer) directing another person (the drawee or payor) to pay a

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certain sum of money on demand or at a definite time to a third person (the

payee) or to bearer.        A check is the most common example of a draft.”

Black’s Law Dictionary (10th ed. 2014).

       The term “lawful money” is not defined in the statute; however, its

common definition or approved usage does not include a debit card.            See 1

Pa.C.S. § 1903 (where terms are not defined in statutes, Statutory

Construction Act requires words and phrases to be construed by their

common and approved usages).                   The Statutory Construction Act itself

defines “money” as:        “Lawful money of the United States.”         1 Pa.C.S. §

1991. Black's Law Dictionary defines “lawful money” as:              “Money that is

legal tender for the payment of debts.”             Black’s Law Dictionary (10th ed.

2014). “Legal tender” is defined as follows: “The money (bills and coins)

approved in a country for the payment of debts, the purchase of goods, and

other exchanges for value.”            Id.      The dictionary defines “money” as:

“something generally accepted as a medium of exchange, a measure of

value, or a means of payment: officially coined or stamped metal currency.”

See              Merriam-WebsterDictionary                     http://www.merriam-

webster.com/dictionary/money.           None of these definitions includes a debit

card or a payroll debit card.4
____________________________________________


4
  Shortly after this litigation was instituted, Representative Gerald J. Mullery
(Luzerne County) introduced legislation to amend the WPCL. The bill was
referred to the Committee on Labor and Industry on June 2, 2015. See
2015 Pennsylvania House Bill No. 1274, Pennsylvania One Hundred Ninety-
(Footnote Continued Next Page)


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      The Muellers’ argument that a debit card is the “functional equivalent”

of a check or lawful money is unavailing, particularly because the payroll

cards, which were mandatory for hourly employees, forced users to incur

fees, including over-the-counter cash withdrawal fees and inactivity fees,

unless the employees complied with the requirements of the bank/company

issuing and managing the debit cards.             For example, the fee schedule

indicates the cardholder was limited to one free withdrawal per deposit, and

thereafter each withdrawal carried a $5.00 fee.        See Amended Complaint,

8/26/13, at ¶¶ 61, 96, 118, 143, 154.

      In an amicus brief in support of the Muellers, the American Payroll

Association (APA) argues that the Legislature has made clear that an

employer may satisfy the requirements of the WPCL when “lawful money or

                       _______________________
(Footnote Continued)

Ninth General Assembly - 2015-2016 (June 02, 2015). The proposed
amendment allows employers to pay an employee’s wages in the form of a
payroll debit card. The bill adds “payroll card” to the manner in which wages
shall be paid under the WPCL, provided the “employe voluntarily provides
advance authorization, in writing, permitting payment of the employe’s
wages in this manner.”        See H.B. 1274, June 2, 2015, Section 3(4)
(emphasis added). The bill also proposes definitions of “Lawful money” and
“[p]ayroll card,” defining “[l]awful money” as “legal tender of the United
States[,]” and “Payroll card” as “[a] prepaid card or other device used by an
employe to access wages from a payroll card account.” See H.B. 1274, June
2, 2015, Section 2.1. The proposed legislation “establishes requirements and
parameters for employers using payroll debit cards in the payment of
employee wages, ensuring increased protection for workers.           Required
guidelines will not only ensure that employees have access to the full
amount of their wages, but are provided with unlimited, no-cost access to
their accounts.” Mullery, Co-Sponsorship Memoranda, 2/3/15 (emphasis
added).



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a check is not involved by depositing an employee’s wages into an account

at a financial institution[.]”    See Brief of Amicus Curiae American Payroll

Association, at 10.    The APA cites to section 6121 of the Banking Code,

which provides:

      For the purposes of any statute, rule or regulation requiring any
      payment to be made in lawful money or by check, whether for
      wages, salaries, commissions or other claims of any kind, such
      payment may be made by credit to an account in a bank, credit
      union or other financial institution authorized to accept deposits
      or payments designated by the recipient of such payment if the
      recipient has requested such method of payment in writing.

7 P.S. § 6121 (emphasis added).          Amicus argues that, “[b]y definition,

payroll cards involve the deposit of wages into an employee’s account at a

financial institution.” Id. at 11. However, what the Muellers fail to address

is the fact that the statute clearly requires the written request of the

recipient. We emphasize that Plaintiffs here alleged they were required to

“receive their employment wages exclusively by a Chase Payroll Card.”

Amended Complaint, supra, at ¶ 7.

      The use of a voluntary payroll debit card may be an appropriate

method of wage payment.          However, until our General Assembly provides

otherwise, the plain language of the WPCL makes clear that the mandatory

use of payroll debit cards at issue here, which may subject the user to fees,

is not. See note 4, supra.




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      We conclude that the trial court did not abuse its discretion in denying

the Muellers’ motion for summary judgment, Daley, supra, and, therefore,

we affirm the trial court’s order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/21/2016




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