PER CURIAM.
AND NOW, this 25th day of April, 2012, the present appeal is DISMISSED as having been improvidently granted.
Justice McCAFFERY files a dissenting statement in which Justice TODD joins.
Justice McCAFFERY, dissenting.
I dissent from the determination to dismiss this appeal as having been granted improvidently. I continue to believe that this case presents an important issue worthy of this Court's review, an issue on which we granted, properly and not improvidently in my view, allowance of appeal as follows:
Moreover, having had complete briefing and having heard oral argument, for the reasons set forth below, I would reverse the opinion and order of the Superior Court and remand this case to the trial court for a trial.
Appellants are service repair technicians for Sears who participated in Sears's "Home Dispatch Program" ("HDP"). They sued Sears, alleging that Sears had violated the Pennsylvania Minimum Wage Act, 43 P.S. § 333.101 et seq. ("PMWA"), by not paying them for time during which they had to perform work at home, and for time spent attending to Sears matters while traveling in their Sears vans from their homes to customers' homes and back. In ruling on cross-motions for summary judgment, the trial court granted summary judgment in favor of Sears and against Appellants on Appellants' claim for violation of the PMWA, concluding that Appellants' travel time amounted merely to commuting time, which is non-compensable, and that the work they did at home was de minimis. Caiarelli v. Sears, Roebuck & Co., No. GD 03-1735, slip op. (C.P. Allegheny Cty. Jan. 15, 2009) ("Trial Court Opinion"). The trial court also noted that the program allowing service repair technicians to operate from home instead of from a Sears location was optional. In making its rulings, the trial court relied on what it viewed as comparable federal law under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA").
In opposing Sears's motion for summary judgment, Appellants contended that the time for which they were seeking to recover constituted "hours worked," entitling them to payment therefor. See 34 Pa. Code § 231.1.
Noting that Pennsylvania courts have not addressed "commute time in a company-owned vehicle," and stating that the PMWA "mirrors the [FLSA]," the trial court proceeded to apply the federal Fair Labor Standards Act and federal case law interpreting that act. Under the FLSA, as amended by the Portal-to-Portal Act, 29 U.S.C. § 251, and the Employee Commuting Flexibility Act, 29 U.S.C. § 254, time spent traveling to and from the actual place of performance of the employee's "principal activity" is not counted as "compensable work time." 29 U.S.C. § 254(a)(1). In addition, compensable work time under the FLSA excludes activity that occurs before or after the employee's principal activity. 29 U.S.C. § 254(a)(2). Moreover, the trial court noted that, under a federal implementing regulation, ordinary "home to work" travel is a normal incident of employment such that commuting to and from work is not work time, regardless of whether an employee works at a fixed location or at different job sites. 29 C.F.R. § 785.35. Thus, the court concluded, "it is clear that the service technicians' principal activity is servicing and repairing Sears[] appliances and that the work place is located in the various customers' homes." Trial Court Opinion at 7. Accordingly, the court determined that the work activities for which Petitioners alleged they were entitled to be compensated were merely incidental to their use of the Sears vehicles to commute, and thus not compensable. Id. at 5.
The Superior Court affirmed, largely on the basis of the trial court opinion. Caiarelli
Caiarelli, slip op. at 5-6 (emphasis in original; footnote omitted).
I believe it is clear that the Superior Court erred in affirming the trial court. First, it mischaracterized the issue raised by Appellants as whether employees must be compensated for "commuting to work." This is not what Appellants alleged in their complaint. They did not allege that they were entitled to be paid for merely commuting. Rather, they alleged that while they were driving to their first appointments of the day,
When deciding a motion for summary judgment, a court must view the record in the light most favorable to the non-moving
The lower courts noted that the HDP program is optional and that employees need not participate in it. On the surface, this fact may seem to detract from Appellants' contention that they are essentially forced to work uncompensated hours. However, the optional nature of the arrangement should not be treated as removing Appellants from the protection of the PMWA if, in fact, the work for which they seek to be compensated falls within the terms of the PMWA and its regulations. Even though there are some conveniences to employees who participate in the program, common sense suggests that Sears established the "optional" HDP program to benefit its business operations, and, accordingly, that Sears encourages technicians to participate in the program. Indeed, if all technicians opted out there would be no program, and Sears would lose whatever competitive advantage it believes the program provides.
Viewing the evidence of record in the light most favorable to Appellants as the non-moving parties, and resolving doubts in their favor, it is clear that service repair technicians' homes are used as shipping points for parts, which the technicians then have to load into their vans and sort; further, they have to deal with computer issues on an ongoing basis at home. According to Appellants, this arrangement requires them to do work at home
Rather than relying on federal law because Pennsylvania lacked case law on the specific points raised, the lower courts might have obtained better guidance from the Supreme Court of Washington in Stevens v. Brink's Home Security, Inc., 162 Wn.2d 42, 169 P.3d 473, 476 (2007). The Stevens court applied the Washington Minimum Wage Act and the regulations thereunder (which has nearly identical terminology to the PMWA and its regulations, as well as extremely similar definitions), and held that driving time from and to home, to first and from last appointments, of home alarm installation workers constituted "hours worked" for which the workers were entitled to be compensated. The court held that the technicians were on duty while traveling because their use of the company trucks was limited to company business, their receipt of assignments at home via handheld computers set them apart from regular commuters, and the truck constituted a "prescribed work place". Stevens, supra at 476-77.
At a bare minimum, Appellants have demonstrated the existence of genuine issues of material fact such as to preclude a grant of summary judgment to Sears if the law is properly applied. The lower courts improperly resolved those issues, including credibility issues based on the opposing parties' deposition testimony, in favor of the moving party — Sears. This was improper under our law. Appellants were not required to
For the foregoing reasons, I would reverse the order of the Superior Court and remand the case for trial.
Justice TODD joins the dissenting statement.
34 Pa.Code § 231.1(b) (emphasis added).