United States District Court, D. Minnesota
DAVID A. BUCHE, Plaintiff,
LIVENTA BIOSCIENCE, INC., Defendant.
Joseph M. Windler, WINTHROP & WEINSTINE, PA, for plaintiff.
Josh Jacobson, LAW OFFICE OF JOSH JACOBSON, P.A., for defendant.
PATRICK J. SCHILTZ, District Judge.
Plaintiff David A. Buche filed this lawsuit against Liventa Bioscience, Inc. ("Liventa"), which formerly employed Buche as its chief operating officer. Liventa is a Delaware corporation whose principal place of business is in Pennsylvania. Buche is a citizen of Minnesota who lived and worked in Minnesota while he was employed by Liventa. This matter is before the Court on Liventa's motion to dismiss Count III of Buche's complaint, which asserts a claim under the Pennsylvania Wage Payment and Collection Law ("WPCL"), 43 Pa. Cons. Stat. Ann. § 260.1 et seq.
Liventa argues that only someone who works in Pennsylvania may bring a claim under the WPCL. Buche disagrees. As best as the Court can tell, this issue has never been addressed by the Pennsylvania Supreme Court, and thus this Court must attempt to predict "what that court would probably hold were it to decide the issue, " taking into account "relevant state precedent, analogous decisions, considered dicta, scholarly works and any other reliable data." Ventura v. Titan Sports, Inc., 65 F.3d 725, 729 (8th Cir. 1995).
This is a rather difficult prediction to make. Not only has the Pennsylvania Supreme Court given no clue about how it would decide this issue, but neither of Pennsylvania's two intermediate appellate courts have said a word about the issue. Two Pennsylvania trial courts have addressed the issue, but their decisions conflict. In Broadwell v. Defense Solutions, Inc., No. 2009-08130-CA, 2011 WL 8584566 (Pa. Ct. Com. Pl. Chester Cnty. Apr. 21, 2011), the trial court dismissed a WPCL claim brought by a plaintiff who had worked in Thailand after finding that he "is not an employee in Pennsylvania for the purposes of the WPCL." In so holding, Broadwell joined a long line of decisions that have agreed with Killian v. McCulloch, 873 F.Supp. 938, 942 (E.D. Pa. 1995), aff'd 82 F.3d 406 (3d Cir. 1996), that "the protections contained in the WPCL extend only to those employees based in Pennsylvania." By contrast, in Crites v. Hoogovens Tech. Servs., Inc., 43 Pa. D. & C.4th 449 (Pa. Ct. Com. Pl. Allegheny Cnty. Jan. 7, 2000), a Pennsylvania trial court explicitly rejected Killian and held that, under some circumstances, someone who does not work in Pennsylvania can sue under the WPCL.
The judges of the United States District Court for the Eastern District of Pennsylvania have addressed this issue on many occasions, and on every one of those occasions-with one exception-they have agreed with Killian that the WPCL protects only employees who work in Pennsylvania. See McGoldrick v. TruePosition, Inc., 623 F.Supp.2d 619, 631-32 (E.D. Pa. 2009); Tomlinson v. Checkpoint Sys., Inc., No. 06-2205, 2008 WL 219217, at *9-10 (E.D. Pa. Jan. 25, 2008); Tucci v. CP Kelco ApS, No. 02-1765, 2002 WL 31261054, at *2-3 (E.D. Pa. Oct. 10, 2002); Bunnion v. Consol. Rail Corp., No. 97-4877, 1998 WL 372644, at *10 (E.D. Pa. May 14, 1998); McHugh v. Ries, No. 97-516, 1997 WL 381611, at *1 (E.D. Pa. July 2, 1997); Eastland v. DuPont, No. 96-2312, 1996 WL 421940, at *5 (E.D. Pa. July 23, 1996); Hides v. CertainTeed Corp., No. 94-7352, 1995 WL 458786, at *2 (E.D. Pa. July 26, 1995). The exception is Synesiou v. DesignToMarket, Inc., No. 01-5358, 2002 WL 501494, at *2-3 (E.D. Pa. Apr. 3, 2002), which found Crites persuasive.
Neither the (long) Killian line of cases nor the (short) Crites line of cases is supported by terribly satisfying reasoning-not because of any shortcomings on the part of the judges, but because the judges had so little to work with. Nothing in the language of the WPCL seems helpful, no relevant legislative history appears to exist, public-policy concerns do not clearly favor any particular approach, and, as noted, the appellate courts of Pennsylvania have been silent. Recognizing that the issue is difficult, this Court nevertheless agrees with the substantial weight of authority that only someone who works in Pennsylvania can bring a claim under the WPCL.
The WPCL defines "employer" to include "every person, firm, partnership, association, [or] corporation... employing any person in this Commonwealth." 43 Pa. Cons. Stat. Ann. § 260.2a. This is an extremely broad definition; under it, any person or entity that employs even a single person in Pennsylvania is defined as an "employer." What has created the split in authority is not, however, the definition of "employer, " but rather the definition of "employee"-or, more precisely, the fact that the WPCL does not contain a definition of "employee." So while the WPCL defines the "employer" who can be sued, it does not define the "employee" who can bring suit.
No court has held that the WPCL should be read literally. In other words, no court has held that each and every employee of each and every person or entity defined as an "employer" under the WPCL should be able to sue that employer under the statute. As multiple courts have recognized, such a holding would create absurd results. See Killian, 873 F.Supp. at 942 ("A literal reading of the statute would, for example, allow an Arizona-based employee to bring a WPCL claim against his Oregon-based employer as long as that company also employed one person based in Pennsylvania."). Suppose, for example, that a California company employs 10, 000 people-9, 999 people at its headquarters in San Diego, and a single East Coast sales representative who works out of his home in Philadelphia. Suppose further that one of the company's employees-say, a janitor at the company's headquarters-accuses the company of not paying the wages that he is owed. All courts agree that it would be absurd if this California resident could sue his California employer in connection with a California wage dispute under a Pennsylvania wage-protection law-merely because the company employs a single sales representative in Pennsylvania. This result is so absurd that even Crites admitted that it was absurd, and that the WPCL should not be construed to permit it. Crites, 43 Pa. D. & C.4th at 453.
Recognizing that the WPCL cannot be read literally to allow every employee of every person or entity that is defined as an "employer" to bring suit, all of the courts confronting the issue have agreed that some kind of limitation on "employee" must be read into the statute. Killian and its progeny have adopted a straightforward and sensible limitation: Those who work in Pennsylvania can sue under the Pennsylvania statute, but those who do not work in Pennsylvania cannot. See Killian, 873 F.Supp. at 942 ("[W]e hold that the protections contained in the WPCL extend only to those employees based in Pennsylvania."). The reasoning behind this limitation is similarly straightforward: The primary purpose of the WPCL is to protect workers, and the primary concern of the Pennsylvania legislature is to protect those who work in Pennsylvania. Id. ("[T]he WPCL's purpose is to offer protection to workers to whom wages are owed.").
Crites disagreed with the reasoning of Killian and rejected its holding. Three major concerns seem to have motivated the Crites court's rejection of Killian:
First, Crites found that the purpose of the WPCL was not merely the protection of workers, but "the punishment of recalcitrant employers." Crites, 43 Pa. D. & C.4th at 455. By "employers, " Crites clearly did not mean everyone who is defined as an "employer" under the WPCL; as noted, Crites agreed that allowing every such "employer" to be sued by every one of its out-of-state employees would produce absurd results. Id. at 453. Rather, Crites had in mind what it referred to as "a Pennsylvania employer" ( id. at 454 n.4, 457, 458), "a Pennsylvania corporation" ( id. at 458), or "a Pennsylvania-based employer" ( id. at 458 n.6).
Second, Crites opined that it would be unreasonable to allow the employees of a "Pennsylvania employer" who worked in Pennsylvania to sue under the WPCL, but not allow the out-of-state employees of the same "Pennsylvania employer" to sue. See id. at 457-58. Crites posited a scenario under which "a Pennsylvania employer" employed both Pennsylvania residents and New Jersey residents, some in its principal offices in Philadelphia, and some "just across the Ben Franklin Bridge in Camden, New Jersey." Id. at 457. Under the Killian rule, the employees working in Philadelphia could sue under the WPCL (whether they lived in Pennsylvania or New Jersey), while ...