           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Mathew Grubel, Eric Tomlinson,                :
Frances Byers, Carol M. Coccagna,             :
and the class they represent,                 :
                          Appellants          :
                                              :
                     v.                       :   No. 1307 C.D. 2014
                                              :   Argued: May 4, 2015
City of Philadelphia and County               :
Board of Elections                            :


BEFORE:       HONORABLE BERNARD L. McGINLEY, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE LEADBETTER                                  FILED: November 30, 2015


              Appellants are two judges of election and two minority inspectors of
election for the Board of Elections (Board)1 of the City of Philadelphia (City); and
the certified class consisting of judges of elections, majority inspectors, minority
inspectors, clerks, machine operators, overseers and bilingual interpreters who
have served in the elections since November 8, 2005 or will serve in the future
elections. Appellants challenge the orders of the Court of Common Pleas of
Philadelphia County (trial court) granting the motion of the City and the Board
(collectively, the City) for summary judgment, denying Appellants’ motion for
summary judgment, and dismissing Appellants’ action with prejudice.

    1
     In Philadelphia, the City Commissioners serve as the County Board of Elections. The City
Commissioners are a three member bipartisan board of elected officials in charge of elections
and voter registration for the City of Philadelphia.
            Appellants commenced the instant action against the City in
November 2008. In the amended complaint, Appellants alleged that the City failed
to pay the minimum hourly wage of at least 150% of the federal minimum wage in
violation of Title 17 of the Philadelphia Code (“Contracts and Procurement”),
Section 17-1305 of Chapter 17-1300 (“Philadelphia 21st Century Minimum Wage
and Benefits Standard”) (Minimum Wage Ordinance), enacted on May 26, 2005.
Appellants sought an award of back pay in the amount of the difference between
the minimum wage required by the Minimum Wage Ordinance and the
compensation they already received. They also asked the court to certify the action
as a class action.
              Section 17-1305 of the Minimum Wage Ordinance provides:
                     Except as otherwise provided in this Chapter, an
              Employer subject to this Chapter shall provide its
              covered      Employees       the  following  minimum
              compensation:
                     (1) Minimum Wage Standard. The Employer shall
              pay each Employee an hourly wage, excluding benefits,
              equal to at least the higher of:
                     (a) 150 % of the federal minimum wage or
                     (b) $12 multiplied by the CPI [Consumer Price
              Index] Multiplier. [Emphasis added.]
Based on the current federal minimum hourly wage of $7.25, the minimum hourly
wage required by the Minimum Wage Ordinance is $10.88. Section 17-1302(4) of
the Minimum Wage Ordinance defines a covered “Employee” as:

            Any person who performs work for a covered Employer
            arising directly out of a Service Contract, City financial
            aid, the grant of a City lease, concession or franchise, or
            a funding agreement with a public agency, on a full-time,
            part-time, temporary, or seasonal basis, including
            employees, temporary workers, contracted workers,
            contingent workers, and persons made available to work


                                        2
             through the services of a temporary services, staffing or
             employment agency or similar entity. [Emphasis added.]
The term “Employer” is defined as “[t]hose persons with more than five (5)
employees, except that no person shall be deemed an Employer until they receive a
new contract, lease, concession, franchise, or financial aid from the City.” Section
1302(5) (emphasis added). Employers subject to the minimum wage standards are
(1) the City, including all of its agencies, departments and offices, (2) for-profit
service contractors receiving a certain contract amount from the City, (3) non-
profit service contractors receiving a certain amount from the City, (4) recipients of
City leases, concessions, or franchises, or subcontractors or subrecipients, (5) City
financial aid recipients and (6) public agencies receiving a certain amount from the
City. Section 17-1303 of the Minimum Wage Ordinance. A “Service Contract” is
“[a] contract given to an employer by the City for the furnishing of services to or
for the City, except contracts where services are identical to the delivery of
products, equipment or commodities.” Section 1302(9) of the Minimum Wage
Ordinance.
             The City filed preliminary objections, arguing that applying the
Minimum Wage Ordinance to the election workers would violate the uniformity
clause of Article VII, Section 6 of the Pennsylvania Constitution, Pa. Const. art.
VII, § 6, which provides that “[a]ll laws regulating the holding of elections … shall
be uniform throughout the State,” and that the Minimum Wage Ordinance is
preempted by Section 412.2 of the Pennsylvania Election Code (Election Code),
Act of June 3, 1937, P.L. 1333, as amended, added by Section 6 of the Act of
December 9, 2002, P.L. 1246, 25 P.S. § 2682.2. The City further argued that the
election workers are not covered employees under the Minimum Wage Ordinance.




                                          3
              All primaries and elections must be conducted in each election district
“by a district election board consisting of a judge of election, a majority inspector
of election and a minority inspector of election, assisted by clerks and machine
inspectors in certain cases.” Section 401 of the Election Code, 25 P.S. § 2671.
Judges and inspectors of election are elected to serve for a term of 4 years. Id. A
clerk is appointed by the minority inspector. Section 1113(a) of the Election Code,
25 P.S. § 3013(a). A machine inspector is appointed by the county board of
elections.    Section 404 of the Election Code, 25 P.S. § 2674(a).                    Bilingual
interpreters for non-English speaking voters are not Election Officers2 under the
Election Code but are recruited by the City to meet the federal requirements.
Overseers of election are appointed by the court upon the petition of five or more
registered electors as a reasonable precaution to secure the purity and fairness of
any election. Section 415 of the Election Code, 25 P.S. § 2685.
              Section 412.2 of the Election Code provides in relevant part:

              (a) In all counties regardless of class, the compensation
              of judges of election, inspectors of election, clerks and
              machine operators shall be fixed by the county board of
              elections for each election in accordance with the
              following:

                Election Officers        Minimum               Maximum
                                         Compensation          Compensation
                Judges of election            $75                  $200
                Inspectors of election        $75                  $195
                Clerks and machine            $70                  $195
                operators
                      ….


    2
       Judges of election, inspectors of election, machine operators and clerks collectively will
be referred to as “Election Officers.”



                                               4
             (c) The county board of elections may, in its discretion,
             establish different per diem rates within the minimum
             and maximum provided for in subsection (a) based on the
             number of votes cast for the following groups:
                    (1) 150 votes or fewer.
                    (2) 151 to 300 votes.
                    (3) 301 to 500 votes.
                    (4) 501 to 750 votes.
                    (5) 751 votes and over.
                    ….
                    (i) Compensation and other payments received by
             election officials pursuant to this section shall not be
             deemed income classified and categorized under section
             303 of the act of March 4, 1971 (P.L. 6, No. 2), [72 P.S.
             § 7303,] known as “the Tax Reform Code of 1971.”
25 P.S. § 2682.2. The City Commissioners, who oversee and administer the Board
under the City Home Rule Charter, pay Election Officers and election workers on a
per-diem basis, regardless of the hours they actually serve on an election day. The
Commissioners pay $100 to judges of election and $95 to inspectors of election,
clerks, and machine operators, all of which exceed the minimum compensation set
forth in Section 412.2(a) of the Election Code. Bilingual interpreters receive $75
on an election day and an additional $20 if they attend a standard training session
before the election day. They receive $30 if they attend an additional training.
             The trial court dismissed Appellants’ motion for class certification.
On appeal, this Court vacated the trial court’s order and remanded for further
proceedings, stating that the trial court issued the order without a certification
hearing or a supporting opinion. The trial court subsequently denied the City’s
motion to withdraw deemed admissions resulting from its failure to timely respond
to Appellants’ request for admission. The trial court also overruled the City’s
preliminary objections. Based on the parties’ stipulation, the court certified the
class, consisting of those who have served in the elections since November 8, 2005


                                         5
and will serve in the future elections as a judge of election, a majority inspector, a
minority inspector, a clerk, a machine operator, an overseer and a bilingual
interpreter (collectively, election workers). The court denied Appellants’ motion
for partial summary judgment on the City’s liability.
             On May 13, 2013, the City Commissioners filed with the City Office
of Labor Standards a request for a waiver of the minimum wage standards under
Section 17-1304(9) of the Minimum Wage Ordinance, which provides that
“[n]otwithstanding any other provision of this Section to the contrary, … the City
reserves the right to waive the requirements of this Chapter upon a finding and
determination that a waiver is in the best interests of the City.” In requesting a
waiver, the Commissioners stated that the election workers are paid on a per-
election-day basis, not on an hourly basis, and that they are not employees covered
by the Minimum Wage Ordinance.            The Commissioners estimated that the
additional cost of paying the election workers the minimum wage under the
Minimum Wage Ordinance would be $984,000 per year. The Office of Labor
Standards approved the waiver request.
             Appellants thereafter filed a motion for summary judgment, invoking
regulatory estoppel.    They argued that the City changed its position on the
applicability of the Minimum Wage Ordinance to the election workers by
requesting a waiver of the minimum wage standards. The City also filed a motion
for summary judgment. In separate orders, the trial court granted the City’s motion
for summary judgment, denied Appellants’ motion for summary judgment, and
dismissed Appellants’ action with prejudice.
             The trial court concluded that the Minimum Wage Ordinance is
preempted by the Election Code. The court stated that the uniformity requirement



                                          6
in Article 7, Section 6 of the Pennsylvania Constitution includes the manner of
calculating compensation of the election workers and that there is an irreconcilable
conflict between the Election Code and the Minimum Wage Ordinance regarding
the election workers’ compensation. The court further concluded that the election
workers are not employees covered under the Minimum Wage Ordinance. It also
rejected Appellants’ regulatory estoppel claim. This appeal followed.
             First, we will address the City’s conflict preemption argument, which
presents a pure question of law over which we exercise plenary review. See Nutter
v. Dougherty, 938 A.2d 401, 412 n.20 (Pa. 2007). Municipalities “possess only
such powers of government as are expressly granted to them and as are necessary
to carry the same into effect.” City of Phila. v. Schweiker, 858 A.2d 75, 84 (Pa.
2004). As a city of the first class pursuant to the First Class City Home Rule Act,3
the City “may exercise all powers and authority of local self-government and shall
have complete powers of legislation and administration in relation to its municipal
functions.” Section 17 of the First Class City Home Rule Act, 53 P.S. § 13131.
Under the concept of home rule, the ability of a locality to exercise municipal
functions is limited only by its home rule charter, the Pennsylvania Constitution,
and enactments of the General Assembly. Schweiker, 858 A.2d at 84; Section
2961 of the Home Rule and Optional Plan Government Act, 53 Pa. C.S. § 2961.
The doctrine of conflict preemption provides that a local ordinance that
contradicts, contravenes, or is inconsistent with a state statute is invalid. Holt’s
Cigar Co. v. City of Phila., 10 A.3d 902, 907 (Pa. 2011). Conflict preemption is
applicable when the conflict between the statute and the ordinance is

    3
      Act of April 21, 1949, P.L. 665, as amended, 53 P.S. §§ 13101-13116, 13131, 13133,
13155-13157.



                                           7
irreconcilable. City Council of the City of Bethlehem v. Marcincin, 515 A.2d 1320,
1326 (Pa. 1986). Further, the ordinance in question must be considered in light of
the objectives of the General Assembly and the purposes of the relevant statute.
Holt’s, 10 A.3d at 907. A local ordinance may not stand as an obstacle to the
execution of the full purposes and objectives of the General Assembly. Id.
              Article VII, Section 6 of the Pennsylvania Constitution states that “all
laws regulating the holding of elections…shall be uniform.” Section 412.2 of the
Election Code specifically provides that judges of election, inspectors of election,
machine operators and clerks shall be paid a per diem. The amount of the per diem
may vary by county, but the per diem must fall within the range specified by
Section 412.2(a) of the Election Code. Section 17-305(1) of the Minimum Wage
Ordinance states that an employer must pay an employee an hourly wage. Black’s
Law Dictionary 1251 (9th ed. 2009) defines “per diem” as “a daily fee.”
“Minimum wage” is defined as “the lowest permissible hourly rate of
compensation for labor….” Id. at 1716. Thus, an hourly wage and a per diem are
two different methods of compensation. The General Assembly has determined
that Election Officers in the Commonwealth shall be paid by a uniform method,
the per diem.4 By electing to specify the per diem method of compensation the
General Assembly excluded all other methods of compensation. Cali v. Phila.,
177 A.2d 824, 832-33 (Pa. 1962) (under the principle of expressio unius est

    4
       In Philadelphia v. Commonwealth, 119 A. 723 (Pa. 1923), the City sought reimbursement
from the Commonwealth for primary expenses, including per diems for Election Officers,
incurred on behalf of the Commonwealth during 1911-1913. Common pleas awarded the
statutory prescribed per diem fees plus additional sums. The Supreme Court held that the
Commonwealth was required to reimburse the City for the statutorily prescribed per diem fees,
but was not required to pay any additional sums because the “city councils could not increase the
compensation of election officers, without an enabling act of the assembly.” 119 A. at 724.



                                               8
exclusio alterius, the mention of a specific matter in a statute implies the exclusion
of others not mentioned). Payment of Philadelphia Election Officers by hourly
wage as directed by Section 17-305(1) of the Minimum Wage Ordinance, is
inconsistent and irreconcilable with the Election Code. Accordingly, the Election
Code preempts the Minimum Wage Ordinance with regard to the compensation of
the Election Officers.5
               We now turn to consideration of overseers and interpreters. The City
argues that the Election Code preempts the application of the Minimum Wage
Ordinance to overseers because overseers are appointed by the court of common
pleas and, as an “arm of the court” their compensation is at the discretion of the
court. The City asserts that application of the Minimum Wage Ordinance would
interfere with the court of common pleas’ discretion thereby constituting an
irreconcilable conflict with the Election Code.
               While overseers are authorized by Section 415 of the Election Code,
25 P.S. § 2685, compensation for overseers is not specified in the Election Code.
The Court was unable to locate any case law discussing the compensation of
overseers or any previous enactments providing for the compensation of overseers.
Given the Election Code’s specific directives regarding the compensation of other
election workers,6 the Election Code’s silence regarding the compensation of

    5
        We also note that, as elected officials, compensation for judges and inspectors of election
is subject to Article III, Section 27 of the Pennsylvania Constitution, which provides that “[n]o
law shall extend the term of any public officer, or increase or diminish his salary or emoluments,
after his election or appointment.” Pa. Const. art. III, § 27.
     6
       For example, Election Officers shall be paid a per diem, watchers shall be paid a per diem
not in excess of $120 by their respective political parties, custodians of voting machines shall be
paid not less than $5 per day, and court-appointed auditors shall be paid a reasonable sum per
day. Sections 412.2, 417, 1111, and 1636 of the Election Code, 25 P.S. §§ 2682.2, 2687, 3011
and 3256.



                                                9
overseers leads this Court to conclude that the General Assembly either intended
that overseers not receive compensation7 or that overseer compensation is within
common pleas’ province. In either instance, the application of the Minimum Wage
Ordinance is not appropriate.
             Further, overseers do not fall within the Minimum Wage Ordinance’s
definition of “employee.”       Section 17-1302(4) defines “employee” as “[a]ny
person who performs work for a covered Employer arising directly out of a Service
Contract, City financial aid, the grant of a City lease, concession or franchise, or
a funding agreement with a public agency.” (Emphasis added). Overseers do not
perform work pursuant to any of the methods listed in Section 17-1302(4). Rather,
overseers are appointed and serve at the discretion of the court of common pleas.
             The Election Code does not mandate that a municipality provide
language interpretation services. Section 1281 of the Election Code, 25 P.S. §
3058, provides that a voter who is unable to read the ballot “shall be permitted by
the judge of election to select a person of the elector’s choice to enter the voting
compartment or voting machine booth with him to assist him in voting.” However,
as a result of litigation brought by the United States Department of Justice pursuant
the Voting Rights Act of 1965, the City is required to supply non-English speakers
with voting assistance in the form of bilingual interpreters and bilingual election
materials. 52 U.S.C. § 10503. Bilingual interpreters are recruited by the City and
community agencies. Affidavit of Frederick L. Voight at 2, Reproduced Record
(R.R.) at 78. The City also contracts with a telephone language interpretation


    7
      “The Citizen’s Guide to Pennsylvania Local Government” (10th ed. 2010) issued by the
Pennsylvania Department of Community & Economic Development, Governor’s Center for
Local Government Services, states that overseers serve without compensation. Id. at 10.



                                           10
service to provide telephonic interpretation services in numerous languages. On
Election Day, bilingual interpreters work under the direction of the judge of
elections. Id.
              The Court concludes that because the Election Code does not require
the presence of bilingual interpreters at the polls, compensation of such persons is
not preempted by the Election Code. Additionally, from the record before us, it
appears that interpreters could be individuals acting as independent contractors,
individual business owners, sole proprietors or employees of a translation service.
Accordingly, we are unable to determine whether any or all of the interpreters fall
within definitions of employee or employer found in Sections 17-1302(4) or 17-
1302(5) of the Minimum Wage Ordinance.8
              We will now consider whether judicial estoppel bars the Office of
Labor Standards grant of a waiver. Appellants assert that the Office of Labor
Standards improperly granted a waiver with regard to Election Officers and
election workers because the doctrine of judicial estoppel prohibits the City from
espousing inconsistent positions. Appellants argue that by requesting a waiver the
City is arguing inconsistently that Election Officers and election workers are not
covered employees for purposes of this litigation, but are covered employees for
purposes of obtaining a waiver.
              “[T]he purpose of the doctrine of judicial estoppel is to uphold the
integrity of the courts by preventing parties from abusing the judicial process by
changing positions as the moment requires.” Gross v. City of Pittsburgh, 686 A.2d


    8
       The Court notes that since interpreters are not engaged pursuant to the Election Code any
fees or wages they earn would not be exempt from taxation under Section 412.2(c)(i) of the
Election Code.



                                              11
864, 867 (Pa. Cmwlth. 1996). A party may be judicially estopped when (1) the
party asserts a position inconsistent with his or her assertion in a previous action;
and (2) his or her contention in the previous action was “successfully maintained.”
Trowbridge v. The Scranton Artificial Limb Co., 747 A.2d 862, 864 (Pa. 2000).
See also Sunbeam Corp. v. Liberty Mut. Ins. Co., 781 A.2d 1189 (Pa. 2001)
(discussing judicial estoppel in a regulatory setting).
             We reject Appellants’ assertion that the City is judicially estopped
from requesting a waiver. At all times, the City has maintained that Election
officers and election workers are not covered employees and their per diem
compensation is set by the Election Code. In its request for a waiver, the City
stated:

             The Commissioners have consistently believed and
             continue to believe that election workers, as defined
             above, are not “covered employees” as defined in the
             Ordinance, and are not subject to its minimum wage
             requirement. Accordingly, the City Commissioners
             Office compensates election workers on a “per election
             day” basis, rather than an hourly basis, and the
             compensation of the election workers is set based upon
             the Pennsylvania Election Code, 23 P.S. [§] 26822.
             ****
             [W]e do not seek to change the way we compensate these
             workers to pay them an hourly “wage,” nor do we intend
             [to] relinquish the right and authority granted by the
             Election Code [ ] to the City Commissioners Office to fix
             the compensation of these workers.
R.R. at 186-87. Further, at the time the City requested the waiver, its contention
had not been successfully maintained as the trial court would not grant summary
judgment until nearly a year later. The City’s request for a waiver covered all
elections going forward from May 2013, while this litigation covers all elections


                                          12
from November 8, 2005 going forward. The City’s request for a waiver is akin to
arguing alternate theories before a court or requesting alternate relief.          By
requesting the waiver, the City essentially was ensuring that, even if the trial court
rejected its Election Code arguments, Election Officers and election workers would
be exempt from the Minimum Wage Ordinance after May 2013.
             We summarize our decision as follows. The Election Code preempts
the Minimum Wage Ordinance with regard to the compensation of the Election
Officers and, therefore, summary judgment in favor of the City is affirmed for
these class members. We conclude that overseers are not covered employees as
defined by the Minimum Wage Ordinance and summary judgment in favor of the
City is affirmed as to the overseers.      Finally, we conclude that although the
Election Code does not preempt the Minimum Wage Ordinance with regard to
bilingual interpreters, judicial estoppel does not bar the grant of waiver with regard
to bilingual interpreters for elections held after May 21, 2013.
             Summary judgment in favor of the City is reversed as to bilingual
interpreters participating in elections between November 2005 and May of 2013
and this matter is remanded for further proceedings. Otherwise, the judgment of
the court of common pleas is affirmed.




                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Judge




                                         13
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Mathew Grubel, Eric Tomlinson,                :
Frances Byers, Carol M. Coccagna,             :
and the class they represent,                 :
                          Appellants          :
                                              :
                     v.                       :     No. 1307 C.D. 2014
                                              :
City of Philadelphia and County               :
Board of Elections                            :


                                      ORDER


               AND NOW, this 30th day of November, 2015, the orders of the Court
of Common Pleas of Philadelphia County are hereby AFFIRMED in part and
REVERSED in part. Summary judgment is AFFIRMED as to judges of election,
inspectors of election, machine operators, clerks, and overseers.           Summary
judgment is REVERSED as to the claims of bilingual interpreters from November
8, 2005 through May 20, 2013 and this matter is REMANDED for further
proceedings.
               Jurisdiction relinquished.




                                            _____________________________________
                                            BONNIE BRIGANCE LEADBETTER,
                                            Judge
