OPINION PER CURIAM.

Appellants, Wal-Mart Stores, Inc. and Sam's Club (collectively, "Wal-Mart"), appeal from a judgment in the amount of $187,648,589.11 entered in the Philadelphia County Court of Common Pleas in favor of Appellees, Michelle Braun ("Braun"), Dolores Hummel ("Hummel") (we refer to Braun and Hummel collectively as "Appellees"), and the certified class.1 This appeal arises from claims against Wal-Mart by its hourly employees, alleging, inter alia, claims for breach of contract, unjust enrichment, and statutory violations. Under these unique facts and the liberal construction of Pennsylvania's class action rules, we hold the record substantiates the trial court's certification of the class and discern no denial of due process. We conclude that monetary payments for contractual rest breaks qualify as "wages" under the Pennsylvania Wage Payment and Collection Act ("WPCL").2 Further, we hold the trial court construed 43 P.S. § 260.10 correctly to permit recovery of statutory liquidated damages and Appellees are entitled to recover under the WPCL. We also hold there was sufficient evidence in the record for a fact finder to conclude there was a breach of contract, unjust enrichment, violation of the Pennsylvania Minimum Wage Act ("MWA"),3 and violation of the WPCL. Finally, we hold the trial court erred in calculating some of Appellees' counsel's fees by enhancing the lodestar to reflect contingent risk when the lodestar already accounted for contingent risk. Accordingly, we affirm the judgment in part as modified, reverse in part, and remand for further proceedings.

Class representative Braun was an hourly employee of a Wal-Mart store located at Franklin Mills, Pennsylvania, from November 1998 to January 1999. R.R. at 1626a.4 Class representative Hummel was an hourly employee of a Sam's Club store located near Reading, Pennsylvania, from 1992 to 2002. R.R. at 1635a.

At the beginning of Appellees' respective employment, Wal-Mart gave them an employee handbook; both signed an acknowledgment page stating: "[T]he policies and benefits presented in this handbook are for your information only and do not constitute terms or conditions of employment.. . . This handbook is not a contract." R.R. at 6734a-36a, 6785a-86a. During the course of Appellees' employment, Wal-Mart had several policies in place regarding rest breaks and off-the-clock work. The rest break policy is known as PD-07 and the off-the-clock work policy is known as PD-43. Pls.' Ex. 4c; R.R. at 6987a-89a; Pls.' Ex. 27a; R.R. at 7020a-26a. PD-07 states in pertinent part that hourly associates5 who work between three and six hours will be given one, fifteen-minute, paid, rest break, and those who work more than six hours will be given two, fifteen-minute, paid, rest breaks. Pls.' Ex. 4c; R.R. at 6987a-89a.

PD-07 was revised several times during the class period of March 19, 1998, through May 1, 2006. Pls.' Exs. 4a-4d; R.R. at 6974a-92a. Early versions stated that "[h]ourly associates whose break or meal periods [are] interrupted to perform work will receive compensation for the entire period at their regular rate of pay and be allowed an additional break or meal period." Pls.' Ex. 4a; R.R. at 6975a-76a. After February 10, 2001, that statement was omitted. Pls.' Ex. 4b; R.R. at 6984a-85a.

The version of PD-07 governing paid rest breaks became effective in May of 2004. Pls.' Ex. 4c; R.R. at 6987a-89a. It states:

Pls.' Ex. 4c; R.R. at 6987a-88a.

In addition to paying for non-working time on rest breaks under PD-07, Wal-Mart had a policy, PD-43, purporting to pay for all hours worked. PD-43 stated in part: "It is against Wal-Mart policy for any Associate to perform work without being paid. We are committed to compensating every Associate for the work they perform." Pls.' Ex. 27a; R.R. at 7020a. The Wal-Mart 2006 Associate Benefits Book also described all available benefits to employees under the heading "My Money":

Defs.' Ex. 146; R.R. at 6902a-03a; see also id.; R.R. at 6790a, 6901a.

Wal-Mart employees used a time clock.6 In order to keep track of their hours, Appellees were required to "swipe" or "punch" their badges in and out for breaks. Pls.' Ex. 4a; R.R. at 6975a. Wal-Mart's Time Clock Punch Exception Report ("TPER") generated a daily listing of every employee whose punches or swipes established that they took too few breaks, short breaks, or no breaks. Pls.' Ex. 2b; R.R. at 6970a-73a; Pls.' Ex. 54; R.R. at 7264a; Pls.' Ex. 90; 7443a-91a. Wal-Mart tracked employees' breaks and recorded their time from Wal-Mart's Time Clock Archive Report ("TCAR"). Pls.' Ex. 54; R.R. at 7286a-87a. This report detailed total hours worked and "total break" time. Pls.' Ex. 45; R.R. at 7086a. On February 10, 2001, Wal-Mart officially ended its policy of requiring hourly employees to swipe in and out for rest breaks. N.T., 9/12/06 (afternoon), at 25; R.R. at 1529a; Pls.' Ex. 142; R.R. at 7612a-13a; see also Pls.' Ex. 4c; R.R. at 6987a-89a. TPER and TCAR were used in the regular course of Wal-Mart's business. See, e.g., N.T., 9/9/04, at 75-76; N.T., 9/10/04, at 82-85; R.R. at 342a-45a.

Meanwhile, Wal-Mart retained data reflecting which employees were operating cash registers and, during their shifts, when they were logged onto and actively operating the cash registers. N.T., 9/21/06, at 30-36; R.R. at 1758a-63a. Wal-Mart's internal audit department used TPER and TCAR to conduct internal audits of employees' compliance with the rest-break policies. Pls.' Ex. 97; R.R. at 7493a-7501a. If the audits revealed violations of the policies, then managers or employees could be subject to discipline up to and including termination. Pls.' Ex. 4c; R.R. at 6989a; Pls.' Ex. 27a; R.R. at 7020a.

Appellees alleged that Wal-Mart failed to compensate them for rest breaks and off-the-clock work as mandated in its policies. As a result, Ms. Braun and Ms. Hummel filed separate complaints against Wal-Mart. On March 21, 2002, approximately two years after her employment ended with Wal-Mart, Ms. Braun filed a complaint, on behalf of herself and all others similarly situated, against the store manager and district manager of the Franklin Mills, Pennsylvania, Wal-Mart store. Ms. Braun filed an amended complaint on March 26, 2002, and a second amended complaint on May 28, 2002. Ms. Braun alleged a "systematic scheme of wage abuse against its hourly employees in Pennsylvania." Braun's Second Am. Compl., at 2. More specifically, Ms. Braun alleged causes of action for breach of contract, restitution, and unjust enrichment for off-the-clock work and missed or shortened rest breaks, along with violation of the MWA, violation of the WPCL, and tortious interference with contractual relations. Id. at 4-5.

Ms. Hummel filed a petition to intervene in the Braun suit, which the trial court denied on August 26, 2004. R.R. at 396a. On August 27, 2004, the court granted summary judgment in favor of Wal-Mart and against Ms. Braun on her claims for violation of the MWA and WPCL, and for tortious interference with contractual relations. Order, 8/27/04; R.R. at 311a.

On August 30, 2004, Ms. Hummel filed a complaint on behalf of herself and all others similarly situated. The Hummel complaint alleged that Wal-Mart required its employees to miss or cut short rest breaks and work off-the-clock. Hummel Compl. at 1-2. The Hummel action contained causes of action for breach of contract, restitution, and unjust enrichment for off-the-clock work and missed or shortened break periods, along with violations of the MWA and WPCL. Wal-Mart denied these allegations and asserted, inter alia, that it did not intend to contract with its employees related to breaks. Further, Wal-Mart claimed that missed swipes did not equate to missed or skipped breaks, and sometimes employees voluntarily missed or skipped breaks for reasons unrelated to workplace demands. See, e.g., N.T., 9/19/06 (afternoon), at 79-80, 96; R.R. at 1691a-92a, 1694a.

The trial court held two class-certification hearings, one in September 2004 for the Braun action, and the other in October 2005 for the Hummel action. The court evaluated hundreds of exhibits regarding Wal-Mart's policies, practices, and record-keeping, and considered arguments, testimony, and Appellees' expert reports by Drs. Scott Baggett and Martin Shapiro analyzing Wal-Mart's business records. Relying primarily on the experts' analyses, the court concluded Appellees demonstrated the systemic loss of contractual break time. The court held that Appellees established the existence of common questions of law and fact, and that common issues predominated.

On December 27, 2005, the court granted class certification for both actions. The certified class in each case consisted of "all current and former hourly employees of Wal-Mart in the Commonwealth of Pennsylvania from March 19, 1998 to the present." Trial Ct. Order, 12/27/05, at 1. On March 20, 2006, Wal-Mart petitioned this Court for interlocutory review of the class-certification decision and a stay of proceedings pending appellate review. This Court denied Wal-Mart's petition on April 26, 2006. The trial court consolidated both cases for trial.

On July 17, 2006, prior to trial, Wal-Mart filed a motion for partial summary judgment on the issue of whether meal periods and rest breaks are wages, "fringe benefits," or wage supplements under the WPCL. The court granted in part that motion on September 7, 2006.

The jury trial began on September 8, 2006, and lasted for thirty-two days. Both sides introduced evidence of Wal-Mart's business practices and procedures, and fact and expert witnesses testified. The evidence focused on Wal-Mart's break and off-the-clock policies and practices. Appellees called eighteen fact witnesses and three expert witnesses: Dr. Frank Landy, Dr. Baggett, and Dr. Shapiro.

Dr. Landy, an industrial organizational psychologist, testified that Wal-Mart, by means of its uniform, written, corporate policies, promised employees paid rest breaks during which they were to perform no work, and receive pay for all hours worked. See, e.g., N.T., 9/12/06 (afternoon), at 61-64; R.R. at 1540a-41a. He opined that paid rest breaks were a benefit. N.T., 9/12/06 (afternoon), at 11-12; R.R. at 1525a; N.T., 9/13/06 (morning), at 45-46; R.R. at 1556a-57a. Dr. Landy testified that a reasonable employee would understand the uniform disclaimer in Wal-Mart's handbook as disclaiming only the intent to form anything other than an "at will" employment. N.T., 9/13/06 (morning), at 49-51; R.R. at 1560a-61a. The employees, he testified, would not understand the disclaimer as disclaiming paid, rest-break benefits and receiving pay for all hours worked. Id. at 51-52; R.R. at 1561a-62a. Dr. Landy asserted that, based on Wal-Mart's numerous, mandatory statements, notices, postings, and labor guidelines, a reasonable employee would have understood that Wal-Mart offered and promised benefits, and that employees would receive those benefits upon working the specified number of hours. N.T., 9/12/06 (afternoon), at 76-77; R.R. at 1545a-46a.

Dr. Landy also discussed understaffing in Wal-Mart stores. He opined that Wal-Mart's "preferred scheduling" program was the "root cause" of understaffing in the stores. N.T., 9/11/06 (afternoon), at 100-02; R.R. at 1496a-98a. There is a correlation, Dr. Landy stated, between understaffing and employees' ability to receive breaks: the more understaffed the stores, the greater the pressure on managers not to provide breaks and on employees not to take breaks. N.T., 9/12/06 (afternoon), at 52-53; R.R. at 1537a. He explained how the pressure to reduce payroll costs led to understaffing. See, e.g., N.T., 9/13/06 (morning), at 106-08; R.R. at 1596a-98a. Dr. Landy noted that the Wal-Mart store-manager-bonus system had a "negative effect" on compliance with Wal-Mart's policies on breaks and pay. See, e.g., id. at 81-82; R.R. at 1589a-91a. Lastly, Dr. Landy testified that after Wal-Mart conducted its Shipley Audit,7 Wal-Mart eliminated the requirement that employees punch the time clock for rest breaks; he opined that Wal-Mart eliminated "smoking gun" evidence of its policy violations to limit its liability. N.T., 9/12/06 (afternoon), at 57-58; R.R. at 1539a.

In contrast, Wal-Mart's retail expert, Wade Fenn, testified that he analyzed Wal-Mart's business practices and procedures. N.T., 10/3/06 (morning), at 90-91. He claimed that Dr. Landy applied the wrong mathematical calculation between man-hour and store profitability. Id. at 93-94. Mr. Fenn testified that he did not believe there was a link between Wal-Mart's compensation program and rest breaks. Id. at 95. He stated that Wal-Mart's practices were consistent with other "big box" retailers. Id. at 100.

Dr. Baggett, a statistical-analysis expert, also testified for Appellees regarding rest breaks. N.T., 9/19/06 (morning), at 29; R.R. at 1656a. He conducted a computerized, statistical analysis using Wal-Mart's reports to determine the number of missed rest breaks by Pennsylvania hourly employees. Id. at 21; R.R. at 1653a; N.T., 9/19/06 (afternoon), at 11-15; R.R. at 1671a-74a. He analyzed swipes for rest breaks from 1998 to February 2001. N.T., 9/19/06 (afternoon), at 11; R.R. at 1671a. For the period after February 2001, Dr. Baggett statistically extrapolated the number of missed or shortened rest breaks. Id. at 14-15; R.R. at 1673a-74a. He testified that damages from missed rest breaks totaled $68,412,107. Id. at 9. Dr. Baggett calculated that damages from shortened rest breaks totaled $7,561,968. Id. at 26; R.R. at 1677a. He asserted that his calculations were based in part on a clause in PD-07 and Wal-Mart's rest-break policy providing for an additional break if a manager or supervisor required or requested an employee to work during his or her break. Id. at 46, 52-53; R.R. at 1684a, 1687a-88a.

Dr. Baggett, however, admitted he could not explain why a rest break was missed or shortened, or ascertain whether a manager caused an employee to shorten or miss a break. Id. at 47-48; R.R. at 1685a-86a. His affidavit was based on an analysis of records produced by Wal-Mart. Trial Ct. Order, 10/3/07, at 10. Dr. Baggett concluded that hourly employees of the class each experienced an average of twenty-five break violations. Further, he averred that 98.81% of those employees experienced at least one rest-break violation. Decl. of L. Scott Baggett, at 3; R.R. at 2478a.8

Wal-Mart's expert, Dr. Denise Martin, rebutted Dr. Baggett's conclusion. N.T., 10/5/06, at 36. Dr. Martin opined that because Dr. Baggett extrapolated data that did not exist or was incorrect, his conclusion was flawed. Id. at 45-48, 59, 67. First, she asserted Dr. Baggett improperly assumed that a missed rest-break swipe always meant the employee did not actually take a rest break. Id. at 47. Second, Dr. Martin testified that Dr. Baggett incorrectly assumed an employee was denied a rest break if the employee worked over six hours. Id. at 49. She claimed it is statistically improper to make these assumptions and, therefore, Dr. Baggett's analysis was inaccurate and unreliable. Id. at 64. She opined that it was not reasonable or professionally appropriate for Dr. Baggett, as a statistician, to assume missed rest breaks when he admittedly did not know whether an employee voluntarily or involuntarily missed a rest break. Id. at 60-62.

Dr. Shapiro, a statistical expert, also testified for Appellees about off-the-clock work. He analyzed records from a sample of sixteen Wal-Mart stores in Pennsylvania to determine the amount of off-the-clock work and pre-off-the-clock work. N.T., 9/21/06 (afternoon), at 48, 54-56; R.R. at 1767a, 1769a-71a.9 Dr. Shapiro calculated the amount of off-the-clock work by analyzing the amount of time cashiers were logged onto operator-accountable cash registers but not logged into the time-keeping system. Id. at 27; R.R. at 1754a-55a. He also analyzed records from 2001 through part of 2006, and extrapolated data for 1998 through 2000. Id. at 59-60. Additionally, Dr. Shapiro statistically extrapolated data for the other Pennsylvania Wal-Mart stores not included in the analysis. Id. at 65.

Dr. Shapiro testified that the off-the-clock data he analyzed established the rate of rest-break violations. Id. at 61-62; R.R. at 1772a-73a. He assumed employees worked off-the-clock whenever cashiers logged onto their cash registers but were not logged into the time clock. Id. Dr. Shapiro, after extrapolating his findings to include all Pennsylvania Wal-Mart stores, calculated total, off-the-clock, work damages of $2,993,063.32. Id. at 76; R.R. at 1775a.

Dr. Martin rebutted Dr. Shapiro's statistical conclusions. She stated that his analysis was not an appropriate method to determine whether a cashier actually worked off-the-clock. N.T., 10/5/06, at 70. Dr. Martin noted that because other employees testified an employee sometimes logged onto a cash register using another employee's identification number, she disagreed with Dr. Shapiro's underlying assumption that no employee did so. Id. at 70-71. Dr. Martin also claimed Dr. Shapiro's analysis was flawed because he merged the cash-register data with the time-clock data in order to reach his conclusion regarding off-the-clock work. Id. at 71-72. She discounted his analysis by conducting her own test in one Pennsylvania store, where she found that a cashier appeared to be logged onto a register for at least twenty-one hours. Id. at 72. Thus, Dr. Martin opined that Dr. Shapiro's entire analysis was unreliable. Id. at 79-80.

On October 12, 2006, the jury returned a verdict in favor of Wal-Mart on all claims related to meal periods, and returned a verdict in favor of Appellees on the claims related to rest breaks and off-the-clock work. Jury Verdict Interrog.; R.R. at 2181a-85a. Specifically, the jury found for Appellees on their WPCL claims, finding that Wal-Mart failed to pay employees for all the work they performed and failed to allow employees to take their paid, mandatory, rest breaks. Trial Ct. Op., 11/14/07, at 2. Wal-Mart, the jury found, required its employees to work without pay by directing them not to record their hours on Wal-Mart's computerized pay system, resulting in a savings of $1,031,430 to Wal-Mart. Id. The jury also found that Wal-Mart prohibited employees from taking their promised, paid, rest breaks, which resulted in Wal-Mart's saving $48,258,111. Id. Further, the jury concluded that Wal-Mart did not have a good-faith reason for refusing to pay its employees everything they had earned. Trial Ct. Op., 11/14/07, at 2. The jury awarded damages of $2,494,340.35 for the off-the-clock work claims and $75,974,075.00 for the rest-break claims. Jury Verdict Interrog.-Damages, at 1-2; R.R. at 2186a-87a.

Also on October 12, 2006, Appellees moved for statutory, mandatory, liquidated damages. Appellees sought only a single, WPCL, statutory penalty per class member. Trial Ct. Op., 11/14/07, at 10. Appellees relied on the affidavit of Dr. Baggett, which averred that 98.81% of the class experienced at least one rest-break violation and calculated the statutory, liquidated damages in the amount of $62,253,000. Id.

Wal-Mart countered with an affidavit from Dr. Martin, who criticized Dr. Baggett's conclusion. Dr. Martin opined: "At best [Dr. Baggett's method] can only approximate the number of associates to include in a calculation of liquidated damages using extrapolated data and a probabilistic approach." Id. at 11. She stated that she did not believe Dr. Baggett's method, calculating liquidated damages using extrapolated data, was appropriate. Id. Dr. Martin, however, opined in her report that if every one of the 125,304 class members were entitled to liquidated damages, the statutory award should be $62,652,000. Id. at 11. On October 3, 2007, the court ordered statutory, liquidated damages in the amount of $62,253,000.

In addition to statutory, liquidated damages, the court awarded $45,694,576 in attorneys' fees. The trial court allocated the total-fee award based on recovery for the WPCL and non-WPCL claims. Trial Ct. Op., 11/14/07, at 21. The court ordered Wal-Mart to pay attorneys' fees of $33,813,986.24, with the remaining amount of $11,880,589.76 paid from the common fund. The total judgment follows:

WPCL verdict:         $ 49,568,541.00
Common Law verdict:   $ 29,178,873.35
Statutory Interest:   $ 10,163,863.00
WPCL penalty:         $ 62,253,000.00
WPCL attorney fees:   $ 33,813,986.24
WPCL expenses:        $ 2,670,325.52
Total:51              $187,648,589.11

51 Attorney fees in the amount of $11,880,589.76
and expenses of $938,222.48 shall be paid from the
Common Law [sic] fund created.

Id. at 22.10 Wal-Mart timely filed post-trial motions, which the court denied on November 14, 2007. This timely appeal followed.

Wal-Mart raises the following issues:

Wal-Mart's Brief at 4-5 (re-ordered to facilitate disposition).

"An appellate court will reverse a trial court's grant or denial of a JNOV only when the appellate court finds an abuse of discretion or an error of law." Dooner v. DiDonato, 601 Pa. 209, 218, 971 A.2d 1187, 1193 (2009). "Our scope of review with respect to whether judgment n.o.v. is appropriate is plenary, as with any review of questions of law." Shamnoski v. PG Energy, Div. of S. Union Co., 579 Pa. 652, 659, 858 A.2d 589, 593 (2004).

Moure v. Raeuchle, 529 Pa. 394, 402-03, 604 A.2d 1003, 1007 (1992) (citations and quotation marks omitted). "Questions of credibility and conflicts in the evidence are for the [fact-finder] to resolve and the reviewing court should not reweigh the evidence." Shamnoski, 579 Pa. at 659, 858 A.2d at 593 (citation omitted). "If there is any basis upon which the jury could have properly made its award, the denial of the motion for judgment n.o.v. must be affirmed." Smith v. Renaut, 387 Pa.Super. 299, 564 A.2d 188, 191 (1989); accord Simon v. Wyeth Pharms., Inc., 989 A.2d 356, 365 (Pa.Super.2009).

With respect to a request for a new trial, our standard and scope of review follows:

Harman ex rel. Harman v. Borah, 562 Pa. 455, 467-69, 756 A.2d 1116, 1122-24 (2000) (citations, quotation marks, and alterations omitted). This Court may affirm on any basis. Donnelly v. Bauer, 553 Pa. 596, 611, 720 A.2d 447, 454 (1998).

We address the first two issues together. Wal-Mart raises a number of claims regarding its challenge to the class certification. Wal-Mart contends the trial court disregarded class action requirements by certifying and refusing to decertify a class of approximately 187,000 current and former Wal-Mart employees for claims of breach of contract, unjust enrichment, and violations of the WPCL and MWA without a method of class-wide proof that could show Wal-Mart's liability to each class member and with a vague and overbroad class definition. Wal-Mart requests judgment notwithstanding the verdict or, in the alternative, a new trial. Wal-Mart is not entitled to relief.

Liss & Marion, P.C., v. Recordex Acquisition Corp., 937 A.2d 503, 505 (Pa.Super. 2007) (emphasis added and citations and quotation marks omitted);11 accord Debbs v. Chrysler Corp., 810 A.2d 137 (Pa.Super.2002); Weismer by Weismer v. Beech-Nut Nutrition Corp., 419 Pa.Super. 403, 615 A.2d 428, 431 (1992); D'Amelio v. Blue Cross of Lehigh Valley, 347 Pa.Super. 441, 500 A.2d 1137, 1141 (1985); Janicik v. Prudential Ins. Co. of Am., 305 Pa.Super. 120, 451 A.2d 451, 454 (1982); Bell v. Beneficial Consumer Discount Co., 241 Pa.Super. 192, 360 A.2d 681, 688 (1976). "This is because such suits enable the assertion of claims that, in all likelihood, would not otherwise be litigated. Bell, supra." Debbs, 810 A.2d at 153.

This Court recently stated:

Pa.R.C.P. 1702; see Pa.R.C.P. 1708 and 1709.

Clark v. Pfizer Inc., 990 A.2d 17, 24-25 (Pa.Super.) (some citations, quotations, and punctuation marks omitted), appeal denied, 13 A.3d 473 (Pa.2010).15 "Unlike its federal counterpart at Fed.R.Civ.P. 23(b), Pennsylvania's rule does not require that the class action method be `superior' to alternative modes of suit." Weinberg v. Sun Co., 740 A.2d 1152, 1162-63 (Pa.Super.1999) (citations omitted), rev'd in part on other grounds, 565 Pa. 612, 777 A.2d 442 (2001).16 In Janicik, this Court held that "[t]he existence of individual questions essential to a class member's recovery is not necessarily fatal to the class, and is contemplated by the rules. See Pa. R.Civ.P. 1708(a)(1)." Janicik, 451 A.2d at 457.

Prince George Ctr., Inc. v. U.S. Gypsum Co., 704 A.2d 141, 145 (Pa.Super.1997) (citations and punctuation marks omitted). "Moreover, class members can assert a single common complaint even if they have not all suffered actual injury; demonstrating that all class members are subject to the same harm will suffice." Baldassari v. Suburban Cable TV Co., 808 A.2d 184, 191 n. 6 (Pa.Super.2002).

Debbs, 810 A.2d at 154 (some citations omitted).

Wal-Mart contends that the trial court disregarded class action requirements "by certifying a class that lacked commonality and predominance and was defined imprecisely." Wal-Mart's Brief at 16. Further, Wal-Mart challenges the class certification of each of Appellees' claims, viz., breach of contract, unjust enrichment, violations of the WPCL and the MWA. We thus state the required elements of each.

A breach of contract action involves: (1) the existence of a contract; (2) a breach of a duty imposed by the contract; and (3) damages. Sullivan v. Chartwell Inv. Partners, LP, 873 A.2d 710, 716 (Pa.Super.2005). While every element must be pleaded specifically, it is axiomatic that a contract may be manifested orally, in writing, or as an inference from the acts and conduct of the parties. Id. (citation omitted).

With respect to unjust enrichment, "[w]here one party has been unjustly enriched at the expense of another, he is required to make restitution to the other. In order to recover, there must be both (1) an enrichment, and (2) an injustice resulting if recovery for the enrichment is denied." Meehan v. Cheltenham Twp., 410 Pa. 446, 449, 189 A.2d 593, 595 (1963) (citing Bailis v. Reconstruction Fin. Corp., 128 F.2d 857 (3d Cir.1942); Restatement, Restitution § 1, comment a (1936)). As amplified by this Court:

Stoeckinger v. Presidential Fin. Corp. of Del. Valley, 948 A.2d 828, 833 (Pa.Super. 2008). It is long-settled that "the quasi-contractual doctrine of unjust enrichment is inapplicable when the relationship between parties is founded on a written agreement or express contract." Schott v. Westinghouse Elec. Corp., 436 Pa. 279, 290, 259 A.2d 443, 448 (1969); accord Sevast v. Kakouras, 591 Pa. 44, 53 n. 7, 915 A.2d 1147, 1153 n. 7 (2007). "Quasi-contracts may be found in the absence of any expression of assent by the party to be charged and may indeed be found in spite of the party's contrary intention." Schott, 436 Pa. at 290-91, 259 A.2d at 449.

The WPCL is a statute permitting employees to recover unpaid wages. Lugo v. Farmers Pride, Inc., 967 A.2d 963, 968 (Pa.Super.), appeal denied, 602 Pa. 668, 980 A.2d 609 (2009). 43 P.S. § 260.9a states in relevant part:

43 P.S. § 260.9a(a), (b), (f).

43 P.S. § 260.2a. "Fringe benefits" are defined:

Id. (footnote omitted).

Section 260.3 of the WPCL requires that employers pay or provide the fringe benefits or wage supplements:

43 P.S. § 260.3(b).

The Minimum Wage Act provides:

43 P.S. § 333.101. The statute establishes the minimum wage as $7.15. 43 P.S. § 333.104. The MWA guarantees overtime pay equivalent to one-and-one-half times the regular hourly pay. 43 P.S. § 333.104(c).

Appellees contend Wal-Mart's business practices, policies, business records, and their own policy of enforcing those policies by disciplining managers and associates who violate them, were uniform among all employees, and therefore common issues of fact predominate. Additionally, common issues of law predominate, viz., whether the associates relied on the employee handbook and Wal-Mart's policies concerning off-the-clock work and rest breaks resulting in a unilateral contract which Wal-Mart breached. Instantly, a careful review of the voluminous record reveals the common questions of law and fact are directly traceable to Wal-Mart's corporate policies and practices as well as Wal-Mart's witnesses' testimony regarding the proliferation and strict enforcement of those corporate polices. The common questions of fact rely on common questions of law. See Clark, 990 A.2d at 24-25.

Canetta Ivy Reid was director of corporate employment compliance for Wal-Mart. N.T., 9/28/06 (morning), at 58.17 She testified about Wal-Mart's policy regarding rest breaks, denominated as PD-07:

Id. at 70-71; R.R.1963a-64a. To facilitate compliance with Wal-Mart's policies, she testified that they conducted training for associates:

Id. at 73-75, 81-82, 92-93, 120-23. She testified that there were posters over the time clocks which reiterated the policy of not working off-the-clock:

Id. at 126. She testified further:

N.T., 9/28/06 (afternoon), at 54-55. When she did not concede that paid rest breaks were a benefit of employment, a video of her deposition testimony in another case involving Wal-Mart was played for the jury:

(The following video clip is played for the jury:)

Id. at 60-63. Mrs. Reid was asked about the Shipley report:

Id. at 78. Mrs. Reid proceeded to testify about the timeclock lockout:

Id. at 82-85. Mrs. Reid testified that, pursuant to the policy known as PD-43, managers were not required to report employee complaints:

Id. at 94-96.

Mrs. Reid testified further about Wal-Mart's policy of not working off the clock:

Id. at 97-98.

The jury also heard testimony from Mrs. Reid regarding understaffing and missed breaks by cashiers:

N.T., 9/29/06 (morning), at 32. Mrs. Reid was also questioned about an internal memorandum from a holiday meeting which occurred in 2002. Id. at 65-66.

Id. at 68-69.

Coleman H. Peterson was executive vice president of human resources, known as People Division. He was responsible for human resources world-wide when he retired from Wal-Mart in 2004. N.T., 10/5/06 (afternoon), at 153. He reported to the president and chief executive officer. N.T., 10/6/06 (morning), at 15. He was questioned about a memo dated August 3, 1998, from Kendall Schwindt that went to district managers, regionals, and to Tom Coughlin, president of Wal-Mart at the time the memo was sent. Id.

Id. at 16. Mr. Peterson testified that he did not agree with this assessment. Id. at 15.

Id. at 16. He stated that he believed he was present when Mr. Coughlin discussed with the group the five reasons cashiers quit. Id. at 17.

Id. at 17-19. Mr. Peterson was then questioned about a memo dated October 9, 2000, from Mr. Oneil Clark to Don Harris. Id. at 20.

Id. at 27.

Dr. Baggett testified about Wal-Mart's business records:

N.T., 9/19/06 (morning), at 18-19; R.R. at 1650a-51a.

After being qualified as an expert, Dr. Baggett testified:

N.T., 9/19/06 (morning), at 21, 27-32, 35-36, 38-44, 51-56, 58-68; R.R. at 1653a-59a, 1662a-63a, 1165a-68a.

At the start of the afternoon session, Dr. Baggett was asked about a chart he prepared entitled, "Summary Analysis of Missed Rest Breaks." He was asked to explain the chart:

N.T., 9/19/06 (afternoon), at 9.

During the statutory period, Wal-Mart saved $48,258,111 by prohibiting rest breaks. Trial Ct. Op., 10/3/07, at 2. The jury was shown a chart which showed Wal-Mart's Timeclock Archive Report Data based upon the forty-six million shifts and Statistically Determined Timeclock Archive Report Data. N.T., 9/19/06 (afternoon), at 10; R.R. at 1670a. Dr. Baggett explained the latter data:

N.T., 9/19/06 (afternoon), at 11-16, 18-19; R.R. at 1670a-76a.

Dr. Baggett was asked to explain the one-minute docking of employees for long rest breaks:

N.T., 9/20/06 (morning), at 28.

Dr. Martin Shapiro, an expert in statistics, computer programming, and psychology, testified. N.T., 9/21/06 (morning), at 13, 20; R.R. 1745a, 1748a. He compared the time-clock data to the cash-register data. Id. at 20; R.R. at 1749a. Each cashier had a unique cashier identification number. Id. at 21; R.R. at 1750a.

Id. at 21-23; R.R. at 1750a-52a.

Id. at 29-30; R.R. at 1756a-58a.

Id. at 43-47, 49-50, 52-54, 57, 62-63; R.R. at 1766a-70a, 1773a.

Dr. Shapiro explained how he extrapolated data from the 16 stores:

Id. at 64-66, 68, 70, 72-76; R.R. at 1774a-75a.

In the afternoon session, Dr. Shapiro's testimony continued and his report of September 18, 2006, was discussed. The calculation of damages in that report differed from numbers given earlier in his testimony:

N.T., 9/21/06 (afternoon), at 9-11, 21, 48-49, 60-62, 69-70; R.R. at 1780a-82a, 1792a, 1801a-02a.

Wal-Mart's expert testified and attempted to discredit Drs. Baggett and Shapiro:

N.T., 10/5/06, at 33. She testified further:

Id. at 37. The following occurred at side bar outside of the jury's presence.

Id. at 46-48. When asked if she was "critical of Wal-Mart for eliminating rest break swiping," she replied, "No. That's not part of my opinion here at all." Id. at 90. Dr. Martin's criticism was based on her opinion that the data was "bad," rather than that the methodology of extrapolation was flawed.

Id. at 91-94.

Id. at 100-05 (colons added). Dr. Martin was questioned regarding the use of extrapolation in the field of statistics:

Id. at 107-11; R.R. at 2079a-83a. Dr. Martin testified that she used extrapolation when she testified in a case against Wal-Mart in California.

Id. at 111; R.R. at 2083a.

N.T., 10/5/06 (afternoon), at 122-28; R.R. at 2085a-86a.

Dr. Frank Landy, an expert in human resources, industrial organizational psychology, and statistics, testified for Appellees that a reasonable employee would understand Wal-Mart to have offered and promised the benefits.

N.T., 9/13/06 (morning), at 42-44, 46-47, 52; R.R. at 1553a-55a, 1557a-58a, 1562a.

Dr. Landy testified that the manager bonus program impacted negatively on the rest breaks and off-the-clock benefits:

Id. at 77-79; R.R. at 1585a-88a. Dr. Landy testified that Wal-Mart was aware of the violations of company policy:

N.T., 9/12/06 (morning), at 51-52. Dr. Landy was asked whether there was a problem with cashiers:

Id. at 55-57. Dr. Landy described the purpose of the internal audits that were performed.

Id. at 62-65.

Dr. Landy testified about the Shipley Audit, a nationwide audit of 128 stores, 5 of which were in Pennsylvania. Id. at 65-67. The audit indicated that 76,472 exceptions were noted in 127 stores for a one-week period. Id. at 67. The audit indicated that the number of too-few breaks was 60,767, the balance missed meals. Id. at 68. He stated: "There aren't enough people in the store because of preferred scheduling, which is leading to missed breaks and missed meals. So now this is all starting to make some sense. And the audit says, we've got a problem." Id. at 74. There was a policy for correcting mistakes:

Id. at 81-82. The parties stipulated that the jury would be told how many lawsuits against Wal-Mart had been filed. Id. at 86. As a result of the Shipley Audit, the following actions were taken:

Id. at 88.

The commonality of proof of the loss of rest breaks and work off the clock was demonstrated by Appellees relying upon Wal-Mart's own business records.18 Dr. Landy testified:

Id. at 30-34.

Ms. Hummel was a named class representative. She testified that she started to work at a Sam's Club store in 1992. N.T., 9/18/06 (afternoon), at 11, 24; R.R. at 1632a, 1635a.

Id. at 13-14, 20-21; R.R. at 1634a. She was terminated after ten years and told that there was not enough work for her in the bakery. Id. at 23.

Ms. Braun was an employee at Wal-Mart from November 17, 1998, until she was fired in late January of 1999. N.T., 9/15/06 (afternoon), at 9; R.R. at 1626a.

Id. at 7-8; R.R. at 1624a-25a. Ms. Braun was asked to describe the time between the day after Thanksgiving, which was referred to as Blitz, and through Christmas:

Id. at 10-11, 18-19, 26-28.

Patricia Holley testified that she worked at the Franklin Mills Wal-Mart:

N.T., 9/22/06 (afternoon), at 6-7.

Delores Killingsworth Barber was a Wal-Mart employee from 2003-2005. N.T. 9/25/06 (afternoon), at 16; R.R. at 1897a.

Id. at 16-17, 20; R.R. at 1897a-98a, 1901a.

Instantly, the trial court opined:

Trial Ct.1925(a) Op., 9/3/08, at 5-6 (quoting Trial Ct. Cert. Op., 12/27/05, at 8-10).

Wal-Mart avers that Dr. Baggett's testimony could not demonstrate on a class-wide basis whether employee swipe records adequately reflected missed breaks. Individual employees would have to be questioned, Wal-Mart claims, to determine whether Wal-Mart managers forced class members to work through or cut short their breaks. Similarly, Dr. Shapiro's methodology could not show off-the-clock work. His analysis of data from cash registers at sixteen Wal-Mart stores could not show whether or why employees worked off the clock. Simply because an employee was not logged onto Wal-Mart's timekeeping system, Wal-Mart argues, did not prove that the employee was forced to work off the clock. In support of its contentions regarding Appellees' experts, Wal-Mart cites Basco v. Wal-Mart Stores, Inc., 216 F.Supp.2d 592 (E.D.La.2002), Cutler v. Wal-Mart Stores, Inc., 175 Md.App. 177, 927 A.2d 1 (2007), Petty v. Wal-Mart Stores, Inc., 148 Ohio App.3d 348, 773 N.E.2d 576 (2002), Harrison v. Wal-Mart Stores, Inc., 170 N.C. App. 545, 613 S.E.2d 322 (2005), and Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 557 (Tex.App. 2002).19 These cases are distinguishable from the instant case because those courts do not liberally construe class action rules. See Cutler, 927 A.2d at 14. Furthermore, the Petty Court did not discuss the Baggett-Shapiro testimony. In Basco and Lopez, the courts do not discuss the Baggett-Shapiro testimony, and they are further distinguishable from the instant case since they involve claims for breach of oral contracts. See Basco, 216 F.Supp.2d at 602-03; Lopez, 93 S.W.3d at 556-57.

It is undisputed that corporate, written directives existed governing rest breaks and off-the-clock work, viz., corporate policies PD-07 and PD-43. Prior to February, 2001, all hourly employees were required to clock out for breaks. The parties stipulated that after January 4, 2001, this policy changed and that there was pending litigation:

N.T., 9/26/06 (morning), at 5; R.R. at 1905a.

Furthermore, in response to a request for admissions, Wal-Mart stated:

N.T., 9/26/06 (morning), at 6-8, R.R. at 1906a-08a.

Wal-Mart's own policies and its directives for enforcement of the policies are undisputed. The individual most qualified to speak of Wal-Mart's policies, Mrs. Reid, testified that managers and associates would be disciplined if they violated the rest break policy. The policies were strictly enforced by Wal-Mart. If a manager reported that a fellow manager forced an employee to work off the clock, then that manager would be subject to discipline. In fact, that manager would not be promoted and may be fired.

Undisputed testimony from Wal-Mart's own personnel verified that the associates were not receiving rest breaks. The executive vice president of human resources worldwide, Mr. Peterson, who reported to the president and chief executive officer, Mr. Coughlin, acknowledged a memo sent as early as 1998 that associates were not receiving rest breaks. Every associate had access to the twice-yearly meetings attended by all store managers and Wal-Mart's top management via an internal internet system. It is undisputed that Wal-Mart's policies were disseminated to associates.

Mrs. Reid testified that associates received employee handbooks at orientation which contained the promise of certain benefits.20 "Unilateral contracts... involve only one promise and are formed when one party makes a promise in exchange for the other party's act or performance." First Home Sav. Bank, FSB v. Nernberg, 436 Pa.Super. 377, 648 A.2d 9, 14 (1994). In Bauer v. Pottsville Area Emergency Med. Servs., Inc., 758 A.2d 1265 (Pa.Super.2000), this Court stated:

Id. at 1269.

Instantly, Appellees do not argue that the handbook supplanted their employee at-will status. On the contrary, they contend that at-will employees may be parties to a unilateral contract. In Bauer, as in the case sub judice, the employee handbook provided a disclaimer that the employer was an employer-at-will. The Bauer Court found that an employee handbook could create a contractual relationship while not supplanting the at-will employer-employee relationship:

Id. "A handbook distributed to employees as inducement for employment may be an offer and its acceptance a contract." Morosetti v. Louisiana Land & Exploration Co., 522 Pa. 492, 495, 564 A.2d 151, 152 (1989). In Morosetti, however, "[t]he employees in their evidence were able only to show that they believed there was a policy of severance pay." Id. at 495, 564 A.2d at 153.

We are persuaded by the reasoning in a decision by the United States District Court for the Eastern District of Pennsylvania, Caucci v. Prison Health Servs., Inc., 153 F.Supp.2d 605 (E.D.Pa. 2001), where the court stated:

Id. at 611 (citations and quotation marks omitted); see also Golkow v. Esquire Deposition Servs., LLC, No. 07-3355, 2009 WL 3030218, at *3, 2009 U.S. Dist. LEXIS 87226, at *7 (E.D.Pa. Sept. 23, 2009) (stating, "A unilateral contract is proven if the plaintiff can show that `one party made a promissory offer, which calls for the other party to accept by rendering performance.'" (quoting Bauer, 758 A.2d at 1269)); Pilkington v. CGU Ins. Co., No. 00-2495, 2000 WL 33159253, at *6-7, 2001 U.S. Dist. LEXIS 3668, at *22-*23 (E.D.Pa. Feb. 9, 2001) (employer can create a unilateral contract with employee-at-will by offering additional terms of employment conditioned upon the employee's continued performance of his job).

In McGough v. Broadwing Commc'ns, Inc., 177 F.Supp.2d 289 (D.N.J. 2001), applying Pennsylvania law, the court stated:

Id. at 295-97. "[I]t is the intention of the parties which is the ultimate guide, and, in order to ascertain the intention, the court may take into consideration the surrounding circumstances...." Martin v. Capital Cities Media, Inc., 354 Pa.Super. 199, 511 A.2d 830, 839 (1986) (citation omitted).

Appellees claimed that Wal-Mart deprived the class of unpaid, thirty-minute meal-periods and paid, fifteen-minute rest-breaks pursuant to Wal-Mart's PD-07 policy and required its employees to work off the clock without compensation, in violation of PD-43. Appellees claim they continued to work in reliance on the promise that these corporate policies would be enforced.

In Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 922 A.2d 710 (2007), the Supreme Court of New Jersey reversed the trial court's refusal to certify a class of "all current and former hourly employees of Wal-Mart (including Wal-Mart Stores, Supercenters and Sam's Clubs) in the State of New Jersey during the period May 30, 1996 to the present." Id. at 714.21 The Court held "that common questions of law and fact predominate over individualized questions and that the class-action device is superior to other available methods of adjudicating this dispute." Id. On virtually identical facts, the Court opined:

Id. at 722. In Iliadis, as with the instant case,

Id. at 723.

Canetta Ivy Reid, the designated representative of Wal-Mart who was most knowledgeable about the policies known as PD-07 and PD-43, testified that Wal-Mart associates were told from day one in orientation that they were supposed to get rest breaks. Associates received employee handbooks and were told of Wal-Mart policies. She stated that it was against Wal-Mart's policy to work without getting paid.22 She also conceded that the employee handbook promised these benefits to employees. Drs. Shapiro and Baggett reviewed Wal-Mart's own records, which were used to generate payroll. Payroll hours were transmitted to corporate headquarters in Bentonville. Wal-Mart's own internal audits revealed violations of company policies regarding missed breaks and work off-the-clock.

In Salvas v. Wal-Mart Stores, Inc., 452 Mass. 337, 893 N.E.2d 1187 (2008), again on virtually identical facts, the court held that the trial court erred in granting Wal-Mart's motion to decertify the class:

Id. at 1211; see also Armijo v. Wal-Mart Stores, Inc., 142 N.M. 557, 168 P.3d 129, 140 (2007) (holding "that the question of whether a missed break constitutes a breach of contract is also an issue common to the class").23

Instantly, the employee handbook contained Wal-Mart's policies regarding rest breaks, off-the-clock work and meal breaks, policies which were reinforced by Wal-Mart's corporate-wide policies and orientation sessions in which the handbook was disseminated and signed for by the hourly associates, resulting in a unilateral contract between Wal-Mart and the members of the class. See Bauer, 758 A.2d at 1269.

The video of the Cheryl Lippert deposition was read to the jury at the time of trial:

N.T., 9/15/06, at 36-39; Supp. R.R. at 8125a-28a.

The trial court opined:

Trial Ct. Op., 12/27/05, at 11-12. We agree.

Instantly, "there are questions of law or fact common to the class." Pa.R.C.P. 1702(2). The evidence presented at the time of trial by Wal-Mart and Appellees shows that Wal-Mart violated its own corporate policies promising benefits to associates. After considering all of the factors enunciated in Rule 1702, the court found that common questions of fact predominated based upon, inter alia, Wal-Mart's own internal memos, audits, payroll records, and policies. See Clark, 990 A.2d at 24-25; Bauer, 758 A.2d at 1269; Janicik, 451 A.2d at 457.

Wal-Mart claims the trial court's definition of the class was vague and overbroad. The trial court certified the class as follows: "[A]ll current and former hourly employees of Wal-Mart in the Commonwealth of Pennsylvania from March 19, 1998, to the present." The class was certified from March 19, 1998, to May 1, 2006, the opt out date. The class period was set using the notice opt-out deadline of May 1, 2006, as the end date. Wal-Mart cites Bailey and Harrison for the proposition that the definition of the class was overly broad because it included employees who never missed breaks or worked off-the-clock. As previously discussed, those cases are distinguishable. Further, to reiterate: "[C]lass members can assert a single common complaint even if they have not all suffered actual injury; demonstrating that all class members are subject to the same harm will suffice." Baldassari, 808 A.2d at 191 n. 6 (emphasis added).

Next, Wal-Mart avers the court prevented it from raising the affirmative defense of voluntary waiver of rest breaks. However, a review of the record reveals Wal-Mart withdrew this defense at the close of Appellees' case:

N.T., 10/6/06, at 87-88; R.R. at 2100a-01a.

Wal-Mart also contends the trial court deprived it of due process by eliminating its right to try inherently individualized issues on liability. The court did not preclude Wal-Mart from presenting employees to testify as to their individual experiences. The trial court stated:

Trial Ct. Op., 9/3/08, at 4 n. 4.

Wal-Mart, in fact, called several witnesses. Denise Pettigrew, a cake decorator at a Sam's Club store in Reading, Pennsylvania, testified that during her seven years of employment, she never had a manager ask her to miss a rest break or interrupt her during a break or ask her to work off-the-clock. N.T., 9/26/06 (afternoon), at 11-12, 15. She opted out of the class. Id. at 26. Tyrone Johnson, an employee of a Wal-Mart in Bechtelsville, Pennsylvania, also testified. Id. at 33. He testified that in six years of working for Wal-Mart, he was never asked by a manager to take a short rest break, skip a rest break, or interrupt a rest break. Id. at 36; R.R. at 1912a. He stated that since the termination of the swipe cards, he observed employees taking more and longer breaks. Id. at 38. He noted that when he works off the clock, he fills out a time-adjustment sheet. Id. He also opted out of the class. Id. at 47. Janet Ulmer, who worked for a Wal-Mart in Harleysville, Pennsylvania, and opted out of the class, testified:

N.T., 9/27/06 (morning), at 32, 33-39; R.R. at 1917a-18a.24 Bill Clinton, a full-time, hourly employee at the Wal-Mart in Quakertown, Pennsylvania, and who opted out of the class, also testified for Wal-Mart:

N.T., 10/3/06 (morning), at 11, 13-14, 19; R.R. at 2057a-59a. Rosemary Aquilino worked at a Wal-Mart store in Franklin Mills, Pennsylvania, for nine years. N.T., 10/4/06 (afternoon), at 38. She was an hourly employee in the accounting office. Id. She testified:

Id. at 39-41. She also opted out of the class. Id. at 47. Susan Detwiler testified for Wal-Mart. She was a cashier at the Wal-Mart in Harleysville:

Id. at 49, 51-53.

Wal-Mart argues that it was denied its due process rights to have a jury determine liability as to each individual class member, rather than relying upon the analysis of Drs. Shapiro and Baggett, citing Alix, Lopez, and Basco. As discussed above, those cases are distinguishable from the instant case. Wal-Mart avers that it was denied its due process rights in defending against Drs. Baggett and Shapiro. Wal-Mart's argument is in derogation of class certification. Wal-Mart contends:

Wal-Mart's Brief at 39-41. Appellees counter that Wal-Mart's "own policies and promises, its own business records, its own uniform scheduling plans, its own centralized staffing dictates, its own bonus practices and its own corporate admissions" applied to the members of the class. Appellees' Brief at 35. As the trial court opined:

Trial Ct. Op., 10/27/05, at 11.

The contention that Wal-Mart was denied due process in not being able to question each individual employee is in derogation of class certification, since common questions of law and fact predominate. See Debbs, 810 A.2d at 153; see also Iliadis, 922 A.2d at 726. The primary and predominant issue was whether Wal-Mart promised its employees breaks, and whether it encouraged, at times, a culture of denying those promised breaks. We discern no abuse of discretion by the trial court. The court considered all of the factors enumerated in Pa.R.C.P. 1702 and certified the class. See Liss & Marion, P.C., 937 A.2d at 505.

With respect to Wal-Mart's third issue, we briefly restate the background. Appellees brought a WPCL claim against Wal-Mart for breach of an agreement to pay wages for rest breaks and off-the-clock work. As part of Wal-Mart's benefits for all employees, Wal-Mart had instituted a guaranteed, paid, single, fifteen-minute rest break if an employee worked more than three hours in a shift, or two such breaks if an employee worked more than six hours in a shift. Wal-Mart's employee handbook and PD-07 policy referenced these rest breaks as a benefit to Wal-Mart employees.

Wal-Mart counters that the employees were not denied any payment for missed rest breaks because they were paid regardless of whether they took a break or not. First, Wal-Mart argues that the WPCL's definitions of "fringe benefits" and "wage supplements" exclude rest breaks. Wal-Mart insists that the WPCL encompasses only payments to employees, such as cash, stock, or stock options. Conversely, Wal-Mart suggests, the WPCL does not cover rest breaks because rest breaks are not "payments." Wal-Mart's Brief at 50. Wal-Mart asserts that rest breaks are distinguishable from payments recognized under the WPCL because "the opportunity to rest cannot be exchanged for money." Wal-Mart's Reply Brief at 27-28.

Second, Wal-Mart contends that rest breaks do not constitute "fringe benefits" or "wage supplements" because the deprivation of the rest breaks does not give rise to a contractual right to payment. Wal-Mart reasons it pays employees regardless of whether they took rest breaks, missed rest breaks, or had shortened rest breaks. Thus, because employees are paid regardless, Wal-Mart concludes employees have no statutory right under the WPCL to payments for missed or shortened rest breaks. In other words, Wal-Mart insists its own corporate policies do not grant employees "extra" pay if they missed a rest break. Because employees do not receive "extra" pay if they missed a rest break, Wal-Mart suggests employees are not entitled to payments under the WPCL. Wal-Mart's Brief at 49-50 (citing Harding v. Duquesne Light Co., 882 F.Supp. 422 (W.D.Pa.1995)).

Should this Court conclude, however, that Appellees are entitled to payments for missed rest breaks under the WPCL, Wal-Mart advances four alternative arguments. First, Appellees failed to present evidence that "shortages in the wage payments made exceed five percent (5%) of the gross wages payable on any two regularly scheduled paydays in the same calendar quarter...." 43 P.S. § 260.10. If an employer underpays by less than 5%, Wal-Mart suggests that Appellees have alternative methods of recovering damages. Absent record evidence of such shortages, Wal-Mart claims the court erred in calculating damages. Second, Wal-Mart introduced evidence of its good faith in disputing Appellees' claims for payments under the WPCL. Third, the court erred in charging the jury regarding the requirements for liquidated damages under the WPCL. Fourth, Appellees failed to identify the specific plaintiffs entitled to liquidated damages. Simply, Wal-Mart's arguments pertain to reducing or eliminating the amount of $62,253,000 in statutory liquidated damages.

In sum, Wal-Mart's argument is three-fold. First, the WPCL excludes rest breaks. Even if the WPCL encompasses rest breaks, Wal-Mart's own employment agreement does not grant employees a right to "extra" pay for missed rest breaks. Finally, even if this Court finds otherwise, Appellees failed to meet their burden of proof, the court erred in calculating damages and charging the jury, and Wal-Mart acted in good faith.

Appellees counter that they established Wal-Mart's agreement to pay for rest breaks and all time worked. They dispute Wal-Mart's interpretation of the liquidated damages provision. Specifically, Appellees argue the court awarded liquidated damages based on wages unpaid "for thirty days beyond the regularly scheduled payday...." 43 P.S. § 260.10. Appellees contend Wal-Mart waived its 5%-shortage argument and, regardless, they introduced evidence supporting the court's calculation of damages. Further, Appellees suggest Wal-Mart failed to establish good faith by clear and convincing evidence by, e.g., offering evidence that it was unaware of the alleged failures to pay for rest breaks, investigated the alleged failures, or undertook remedial measures upon learning of the alleged failures. Appellees contend the jury evaluated conflicting testimony regarding Wal-Mart's good-faith efforts and the jury's determination should not be disturbed.

In addition to disagreeing with Wal-Mart's interpretation of the WPCL, Appellees claim Wal-Mart waived the issue. Appellees note that the court granted Appellees' motion in limine to preclude Wal-Mart from introducing evidence regarding statutory liquidated damages. Appellees therefore reason that Wal-Mart cannot challenge the court's alleged error of failing to charge the jury on shortages. Appellees also contend they were not required to identify the specific class members entitled to statutory liquidated damages because Wal-Mart waived the issue. Appellees suggest that because they were precluded from making any jury arguments regarding liquidated damages, Wal-Mart cannot now contend Appellees were required to identify class members entitled to liquidated damages. Regardless, Appellees conclude, the WPCL does not require identification of class members.

In reply, Wal-Mart disputes Appellees' statutory construction of the WPCL. Wal-Mart also relies on Hartman v. Baker, 766 A.2d 347 (Pa.Super.), appeal denied, 564 Pa. 712, 764 A.2d 1070 (2000), in insisting it acted in good faith in disputing Appellees' wage claim. Specifically, Wal-Mart contends that because it has consistently argued it had no contract with Appellees for paid rest breaks, it has demonstrated good faith. Finally, Wal-Mart reiterates its challenge to the court's allegedly improper jury charge on the WPCL.

The trial court reasoned that Appellees' claim is for payment of wages that were earned but unpaid because they were required to miss rest breaks and to work without time-clock records, which constituted "wages," "fringe benefits," and "wage supplements" as defined by the Act. Trial Ct. Op., 11/14/07, at 3. Because equity interests that highly-paid executives may have qualify as "protected fringe benefits and wage supplements," the court similarly concluded that "the monetary equivalents of `paid [rest] break[s]' ... are protected fringe benefits and wage supplements." Id. at 6. The court found that mandatory liquidated damages apply to wages withheld from employees who worked off-the-clock. Trial Ct. Op., 11/14/07, at 6.

We initially examine whether the WPCL's definition of "fringe benefits" encompasses paid rest breaks. "Because statutory interpretation is a question of law, our standard of review is de novo, and our scope of review is plenary." Snead v. Soc'y for Prevention of Cruelty to Animals of Pennsylvania, 604 Pa. 166, 171, 985 A.2d 909, 912 (2009).

Penn Jersey Advance, Inc. v. Grim, 599 Pa. 534, 540, 962 A.2d 632, 634 (2009). "[T]he Pennsylvania rules of statutory construction require the civil provisions of the WPCL to be liberally construed." Hartman, 766 A.2d at 353 (citing 1 Pa.C.S. § 1928(c)).

By way of background, the WPCL "provides employees a statutory remedy to recover wages and other benefits that are contractually due to them." Oberneder v. Link Computer Corp., 548 Pa. 201, 204, 696 A.2d 148, 150 (1997) ("Oberneder II"); Lugo, 967 A.2d at 968.25 The WPCL defines "wages" as including "any other amount" pursuant to an employment contract. See 43 P.S. § 260.2a. For example, bonuses, commissions, and stock options are "wages." See id. Thus, if an employee demonstrates that any "amount to be paid pursuant to an agreement" "remain[s] unpaid," then that employee may be entitled to liquidated damages. See 43 P.S. §§ 260.2a, 260.10.

"To present a wage-payment claim," the employee must aver a contractual entitlement "to compensation from wages" and a failure to pay that compensation. Sullivan v. Chartwell Inv. Partners, LP, 873 A.2d 710, 716 (Pa.Super.2005); Hartman, 766 A.2d at 352 (stating WPCL "establishes an employee's right to enforce payment of wages and compensation to which an employee is otherwise entitled by the terms of an agreement."); see also Weldon v. Kraft, Inc., 896 F.2d 793, 801 (3d Cir.1990) (stating, "The contract between the parties governs in determining whether specific wages are earned."). We agree with the United States Court of Appeals for the Third Circuit's observation that, absent a formal employment contract or collective bargaining agreement, an employee raising a WPCL claim would have to establish, at a minimum, an implied oral contract between the employee and employer. See De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 309 (3d Cir.2003).

As the Hartman Court noted, "the courts of Pennsylvania have had little opportunity" to interpret the WPCL. Hartman, 766 A.2d at 353. In Hartman, an employee, in exchange for a reduction in pay, agreed to an equity stake in the company. Id. at 350. That employee wanted to exercise his equity stake, but the employer refused. Id. at 350-51. The Court addressed whether the employee's equity interest in the company constituted "wages" under the WPCL. Id. at 353.

In resolving this issue, the Hartman Court relied on Bowers v. NETI Techs., Inc., 690 F.Supp. 349 (E.D.Pa. 1988).26 In Bowers, the employees had an agreement providing for severance pay and an option by the employees to sell their equity interest—the employer's stock—back to the employer. Bowers, 690 F.Supp. at 352. The employer was required to repurchase any such stock. Id. The employees sued the employer under the WPCL. Id.

The employer filed a motion for judgment on the pleadings, arguing that severance pay and the employer's payment to repurchase the employees' stock did not qualify as "wages" under the WPCL. Id. at 353. The Bowers court denied the employer's motion, reasoning that severance pay was both "guaranteed pay" and an amount to be paid pursuant to an agreement under the statute. Id. (citing 43 P.S. § 260.2a). Similarly, the court concluded that the stock-repurchase payment was also a "wage" because it was a payment pursuant to an agreement, and "offered to plaintiffs as employees, and not for some reason entirely unrelated to their employment." Id.

Because the stock repurchase payment in Bowers qualified as "wages," the Hartman Court similarly concluded that the equity interest at issue also qualified as "wages." Hartman, 766 A.2d at 353. The Hartman Court reasoned that the equity interest was a payment offered to the employee in exchange for a reduction in pay. Id. Further, the employer did not offer the equity interest for reasons unrelated to the employee's employment. Id.

In Kafando v. Erie Ceramic Arts Co., 764 A.2d 59 (Pa.Super.2000), this Court examined whether a gainsharing plan constituted earnings of an employee or a fringe benefit.27 Initially, the Kafando Court declined to define a gainsharing plan as earnings of an employee "because the funds in the plan" were "not determined based upon an employee's time or task, piece or commission. Rather, the program is entirely dependent upon the ratio of the total cost of goods manufactured by" the employer. Id. at 62.

The Court then considered whether the gainsharing plan was a "fringe benefit" or "wage supplement":

Id. at 62-63 (footnote omitted). Because the employee was not on the payroll as of the last day of the calculation period and the date of distribution, the employee did not comply with the terms of the agreement. Id. at 63. Thus, the Kafando Court concluded that because the employee did not comply with the agreement, the gainsharing plan could not be considered "guaranteed pay" or a payment "pursuant to an agreement." Id.

The Kafando Court also distinguished the cases relied upon by the employee:

Id. at 63.

An employer that has contractually agreed to "pay or provide" fringe benefits and wage supplements must "pay or provide" them within a certain timeframe. 43 P.S. § 260.3; Regier v. Rhone-Poulenc Rorer, Inc., No. 93-4821, 1995 WL 395948, at *6, 1995 U.S. Dist. LEXIS 9384, at *16 (E.D.Pa. June 30, 1995) (stating "pay or provide" phrase "suggests that fringe benefits and wage supplements are not limited to cash compensation and that the phrase `amount to be paid' contained in § 260.2a should be construed to include the value of non-monetary obligations owed to an employee." (footnote omitted)). "It is the contract between the parties that governs the determination of whether specific `wages' or benefits were `earned.' See, e.g., DeAsencio v. Tyson Foods, Inc., 342 F.3d 301, 309 (3d Cir.2003); Oberneder v. Link Computer Corp., 548 Pa. 201, 696 A.2d 148, 150 ([ ] 1997); Kafando v. Erie Ceramic Arts Co., 764 A.2d 59, 61 (Pa.Super. [] 2000)." Integrated Serv. Solutions, Inc. v. Rodman, No. 07-3591, 2009 WL 1152162, at *7 (E.D.Pa. Apr.29, 2009).

Employing a broad interpretation of the WPCL, courts have defined various monetary forms of compensation as "wages" under the WPCL. The statute specifically covers monetary compensation such as separation, vacation and holiday pay, and bonuses. See 43 P.S. § 260.2a; Bowers, 690 F.Supp. at 353; Dep't of Transp. v. Pennsylvania Indus. for the Blind & Handicapped, 886 A.2d 706, 714 (Pa. Cmwlth.2005). Other forms of compensation defined as "wages" include equity interests, put options, and call options. See Bowers, 690 F.Supp. at 353; Hartman, 766 A.2d at 353; Regier, 1995 WL 395948, at *6. This Court has recognized those forms of compensation as "wages" under the WPCL when "they were offered to plaintiffs as employees, and not for some reason entirely unrelated to their employment." Hartman, 766 A.2d at 353 (quoting Bowers, 690 F.Supp. at 353).

Consistent with the foregoing, we hold that monetary payments for rest breaks pursuant to an agreement between an employer and employee are "fringe benefits," and thus "wages" under the WPCL. Similar to the severance pay in Bowers, the payment associated with a paid, agreed-upon rest break is both "guaranteed" and pursuant to an agreement. Bowers, 690 F.Supp. at 353. Analogous to the equity interest in Hartman and Bowers, the payment associated with a paid rest break is offered pursuant to an agreement with an employee. Id.; Hartman, 766 A.2d at 353. Unlike the gainsharing plan in Kafando, the payment is not dependent upon an employer's earnings and is dependent on an employee's compliance with an agreement. Kafando, 764 A.2d at 62-63. Thus, an employer's failure to timely pay the amount associated with a paid, agreed-upon rest break could constitute a violation of the WPCL. 43 P.S. § 260.3; Sullivan, 873 A.2d at 716; Hartman, 766 A.2d at 352; see Doe v. Kohn, Nast & Graf, P.C., 862 F.Supp. 1310, 1325 (E.D.Pa.1994) (stating WPCL provides remedy when employer breaches contractual right to wages). Conversely, if an agreement provides for unpaid rest breaks, we suggest a violation of the WPCL could not occur because no monetary payments are involved. 43 P.S. § 260.2a; see Doe, 862 F.Supp. at 1325.

We reiterate that a violation of the WPCL occurs when an employer fails to timely pay the monetary amount associated with a paid, agreed-upon rest break. 43 P.S. § 260.3. An employer's failure to provide the rest break itself does not establish a violation of the WPCL. An employee retains the burden of, inter alia, establishing that the wages associated with a paid rest break were guaranteed or pursuant to an agreement. 43 P.S. § 260.2a. An employee, of course, still has the burden of establishing an employer's untimely payment of or failure to pay those wages. Thus, the evidence establishing a breach of an agreement to provide a paid rest break and a violation of the WPCL overlap, but are not identical.

Having established that monetary payments associated with paid rest breaks could be "wages" under the WPCL, we examine Wal-Mart's second argument. Briefly, as summarized above, Wal-Mart argues that Appellees cannot recover under the WPCL because there is no contractual right to payment for missed or shortened rest breaks. We disagree.

"[T]he interpretation of the terms of a contract is a question of law for which our standard of review is de novo, and our scope of review is plenary." McMullen v. Kutz, 603 Pa. 602, 609, 985 A.2d 769, 773 (2009) (citation omitted). Furthermore:

Pennsylvania Indus. for the Blind & Handicapped, 886 A.2d at 711 (citations and quotation marks omitted).

"The WPCL does not create a statutory right to compensation. Rather, it provides a statutory remedy when the employer breaches a contractual right to earned wages. Whether specific wages are due is determined by the terms of the contract." Doe, 862 F.Supp. at 1325 (citations omitted); accord Sullivan, 873 A.2d at 716; Hartman, 766 A.2d at 352. Courts have refused to find a contractual right to payment when an employee offers no evidence in support of that right. See Weldon, 896 F.2d at 801 (holding that, under WPCL, a suspended employee who was then terminated had no right to wages during suspension because there was no contractual or implied contractual obligation to pay wages during suspension unless employee was reinstated); Doe, 862 F.Supp. at 1325-26 (holding that because discharged employee had no contractual right to payment for accrued but unused vacation days, summary judgment in favor of employer was proper for WPCL claim). For example, in Harding, Duquesne Light Company fired the employee for failing a drug test. Harding, 882 F.Supp. at 424. The employee sued under the WPCL to recover a claimed contractual right to payment for unused vacation time and for a stock-appreciation right. Id. at 425.28 The court explained that the employer's written policies governing payment for unused vacation and stock-appreciation rights expressly identified certain situations where an employee could receive payment for accrued-but-unused vacation time and could continue to exercise a stock-appreciation right. Id. at 428. Those policies did not provide such a right to fired employees. Id. Thus, because the employee failed to identify material issues of fact with respect to his contractual right, the court granted summary judgment in favor of the employer. Id. Similarly, if an employee does not comply with the agreement, that employee usually does not have a right to payment under the WPCL. See Kafando, 764 A.2d at 63 (holding that because employee did not comply with terms of agreement, employee was not entitled to payment under WPCL).

In this case, Wal-Mart's policy states that employees "are to take full, timely, uninterrupted breaks" and shall "receive compensation for break time at the applicable rate of pay." PD-07, Revised May 2004; R.R. at 6987a-88a. This language is unambiguous and incapable of alternative interpretations. Pennsylvania Indus. for the Blind & Handicapped, 886 A.2d at 711. Indeed, Wal-Mart reinforced the mandatory nature of the paid rest breaks by warning employees they could be disciplined for missing or taking shortened rest breaks. PD-07, Revised May 2004; R.R. at 6987a-88a. Management would also be disciplined for failing to provide paid rest breaks pursuant to PD-07. Id. In conjunction with PD-07, Wal-Mart also guaranteed payment for all hours worked. PD-43; R.R. at 7020a. Essentially, Wal-Mart promised to pay a full-time hourly employee for a forty-hour workweek in exchange for thirty-seven-and-a-half hours of labor (including meal periods) and two-and-a-half hours of rest. Given such unequivocal language, we disagree with Wal-Mart's argument that its refusal to provide or curtailing of a contractual, paid rest break negates its WPCL liability because "[e]mployees are paid regardless of whether or not they take their rest breaks." Wal-Mart's Brief at 50.

The WPCL requires Wal-Mart to make any payments pursuant to an agreement. 43 P.S. § 260.2a. Appellees introduced evidence that Wal-Mart had the contractual obligation to provide paid rest breaks. PD-07, Revised May 2004; R.R. at 6987a-88a; Weldon, 896 F.2d at 801; Harding, 882 F.Supp. at 428; Doe, 862 F.Supp. at 1325-26. Appellees also introduced evidence that they could not take rest breaks. See, e.g., N.T., 9/15/06 (afternoon), at 16; Kafando, 764 A.2d at 63. Wal-Mart's failure to provide those paid rest breaks triggered both a breach of contract claim and a WPCL claim. See Sullivan, 873 A.2d at 716; Hartman, 766 A.2d at 352; accord Doe, 862 F.Supp. at 1325.

After viewing the evidence in the light most favorable to Appellees, the instant case is distinguishable from Weldon and Doe. In Weldon, the Court affirmed summary judgment against the employee on the WPCL claim because the evidence failed to establish material issues of fact regarding the employer's express or implied contractual obligation to pay the wages at issue. Weldon, 896 F.2d at 801. The Doe court similarly affirmed summary judgment in favor of the employer on the employee's WPCL claim because the employee could not establish a contractual right to payment for accrued-but-unused vacation time. Doe, 862 F.Supp. at 1325-26.

In contrast to Weldon and Doe, Appellees established their contractual right to payment for taking a mandatory rest break. See PD-07, Revised May 2004; R.R. at 6987a-88a. Indeed, if Appellees did not take their rest breaks, then Wal-Mart could discipline them. Id. Thus, unlike in Kafando, where the employee did not satisfy the agreement's terms for payment, Appellees complied with the terms of the instant contract by working shifts of the requisite length necessary for a rest break. See, e.g., N.T., 9/15/06 (afternoon), at 16; cf. Kafando, 764 A.2d at 63.

Similarly, Wal-Mart's reliance on Harding is inapt. Wal-Mart cites Harding for the proposition that an employee, to recover under the WPCL, must establish "a contractual right to payment if the benefit is not provided." Wal-Mart's Brief at 49. In Harding, the contract specified the circumstances under which an employee could receive payment for unused vacation and for a stock-appreciation right. Harding, 882 F.Supp. at 428. For example, a retired or disabled employee was entitled to payment. Id. An employee fired for failing a drug test, however, was not identified as one of those circumstances warranting payment. Id. at 428-29. Unlike Harding, Appellees established a contractual right to paid rest breaks after working a qualifying number of hours. PD-07, Revised May 2004; R.R. at 6987a-88a. The policy did not specify any additional conditions that would, like the employer in Harding, absolve Wal-Mart of any contractual obligation to pay Appellees. Once Appellees worked a shift of a qualifying length, they had a right to be paid for temporarily not working, pursuant to their agreement. See PD-07, Revised May 2004; R.R. at 6987a-89a. Nothing in the agreement indicates that Appellees forfeited their right to paid rest breaks when they failed to receive or had to work during those breaks. Having established Wal-Mart's breach of that agreement, Appellees demonstrated entitlement to the wages they should have received.

Barring or cutting short a paid, agreed-upon rest break provides a basis for a WPCL claim because the employer is no longer paying the employee to rest, but to work. Thus, refusing to provide or curtailing a paid, agreed-upon rest break results both in a violation of the agreement to provide a paid rest break and a violation of the WPCL when the employer fails to make the payment associated with taking, e.g., a fifteen-minute rest break. That the employee is not entitled to extra pay for a missed or shortened rest break does not negate the employer's contractual obligation to provide a paid rest break and WPCL obligation to pay the employee for taking that agreed-upon rest break. Under these specific facts, the WPCL does not permit an employer to escape liability when it receives the benefit of, for example, an employee's eight hours of labor when that employee agreed to be paid to work seven-and-a-half hours and to rest for one-half hour. Having discerned no error in concluding Appellees have established a contractual right to payment for missed or shortened rest breaks, we examine whether the court erred in awarding liquidated damages.

To reiterate briefly, Wal-Mart argues that the court misinterpreted 43 P.S. § 260.10, the liquidated damages provision of the WPCL. Wal-Mart interprets the first two sections of that provision as addressing a scenario of when the employer completely fails to pay wages, while the third section addresses when the employer fails to pay a portion of wages only. Because Appellees alleged underpayment of wages, as opposed to a complete nonpayment of wages, Wal-Mart argues that Appellees' WPCL claim falls under the third section only. Wal-Mart thus suggests Appellees had, but failed, to demonstrate a wage shortage exceeding five percent in order to obtain liquidated damages. Specifically, Wal-Mart claims Appellees did not establish they had wage shortages of over five percent of their gross wages on any two paydays within three months. If Appellees' WPCL claim is considered an allegation for partial unpaid wages, Wal-Mart suggests that the third section is mere surplusage. Absent Appellees' shortages calculation, Wal-Mart claims the court had no basis to award liquidated damages. In sum, Wal-Mart argues that because the first two sections do not apply, the only applicable section is the third, and Appellees failed to establish liability under the third section. Because Wal-Mart's liability is not limited to the third section only, we disagree.

Wal-Mart's "claim requires us to consider the proper interpretation of § 260.10, making the issue a question of law for which our standard of review is de novo and our scope of review is plenary." Thomas Jefferson Univ. v. Wapner, 903 A.2d 565, 574 (Pa.Super.2006) (citing Krebs v. United Refining Co. of Pa., 893 A.2d 776, 787 (Pa.Super.2006)); see generally Snead, 604 Pa. at 171, 985 A.2d at 912 (discussing standard of review for statutory interpretation); Penn Jersey Advance, Inc., 599 Pa. at 540, 962 A.2d at 634 (same). Punctuation may be used to construe the statute, but cannot override or otherwise affect the legislative intent. 1 Pa.C.S. § 1923(b). The word "or" is disjunctive and the word "and" is conjunctive. In re Paulmier, 594 Pa. 433, 448, 937 A.2d 364, 373 (2007); Rivera v. Philadelphia Theological Seminary of St. Charles Borromeo, Inc., 510 Pa. 1, 15, 507 A.2d 1, 8 (1986). We acknowledge our mandate to construe the WPCL liberally. Hartman, 766 A.2d at 353 (citing 1 Pa.C.S. § 1928(c)).

The liquidated-damages provision states:

Because the WPCL is analogous to the federal Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-219, this Court has examined federal cases interpreting the FLSA. Signora v. Liberty Travel, Inc., 886 A.2d 284, 296 (Pa.Super.2005) (relying on Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 65 S.Ct. 895, 89 L.Ed. 1296 (1945), and Friedrich v. U.S. Computer Sys., Inc., No. 90-1615, 1995 WL 412385, 1995 U.S. Dist. LEXIS 9791 (E.D.Pa. July 10, 1995), in interpreting the WPCL).30 In Brooklyn Sav. Bank, the United States Supreme Court interpreted the then-existing version of the FLSA and observed "the liquidated damage provision is not penal in its nature but constitutes compensation for the retention of a workman's pay which might result in damages too obscure and difficult of proof for estimate other than by liquidated damages." Brooklyn Sav. Bank, 324 U.S. at 707, 65 S.Ct. at 902, 89 L.Ed. at 1309. Compensating the aggrieved employee with both lost wages and liquidated damages acknowledges the employee's injury from the delayed payment. Id.

Pennsylvania courts have similarly acknowledged the compensatory purpose of the WPCL's liquidated damages provision. The Signora Court, for example, adopted the rationale of Friedrich, which relied on Brooklyn Sav. Bank, and concluded that "both the liquidated damages and pre-judgment interest are intended to compensate for the loss of use of the proper amount of wages payable" and such damages are not "punitive in nature." Signora, 886 A.2d at 296;31 see also Oberneder v. Link Computer Corp., 449 Pa.Super. 528, 674 A.2d 720, 722 (1996) ("Oberneder I") (noting "the primary goal of the WPCL is to make whole again [] employees whose wages were wrongfully withheld by their employers"); accord Ambrose v. Citizens Nat'l Bank of Evans City, 5 A.3d 413, 420 (Pa.Super.2010), appeal denied, 19 A.3d 1049, 2011 WL 1134712 (Pa.2011). As the Superior Court observed, "[t]he WPCL is not only a vehicle for recovery of unpaid wages; it also provides for damages in the event an employer withholds compensation in the absence of good faith." Wapner, 903 A.2d at 574.

The WPCL defines "wages" as including "fringe benefits," which encompasses "any other amount to be paid pursuant to an agreement". See 43 P.S. § 260.2a. For example, bonuses, commissions, and stock options are "wages". Thus, if an employee demonstrates that any "amount to be paid pursuant to an agreement" "remain[s] unpaid," then that employee may be entitled to liquidated damages. See 43 P.S. §§ 260.2a, 260.10.

The liquidated damages statute identifies three conditions separated by two disjunctive "or" clauses, followed by a comma and then a conjunctive "and" clause requiring "no good faith." See 43 P.S. § 260.10; In re Paulmier, 594 Pa. at 448, 937 A.2d at 373; Rivera, 510 Pa. at 15, 507 A.2d at 8. To succeed on a claim for liquidated damages, a claimant must establish one of the three conditions separated by the disjunctive "or". Cf. In re Paulmier, 594 Pa. at 448, 937 A.2d at 373; Rivera, 510 Pa. at 15, 507 A.2d at 8. Our conclusion is bolstered by the original language of the statute, which required only "no good faith" and a single condition that a claimant had to fulfill: unpaid wages beyond thirty days. Cf. 43 P.S. § 260.10 (1961) (current version at 43 P.S. § 260.10 (2009)). If a claimant establishes one of those three conditions, then the burden of proof shifts to the employer to establish good faith. Wapner, 903 A.2d at 575 (holding employer has burden of proof); Hartman, 766 A.2d at 353 (assuming, without deciding, employer bore burden of proof).

We discern no statutory language in the first condition limiting recovery of liquidated damages to factual scenarios where, as Wal-Mart suggests, there is a complete nonpayment of wages. See Penn Jersey Advance, Inc., 599 Pa. at 540, 962 A.2d at 634 (noting, absent ambiguity, "plain language is generally the best indication of legislative intent"). The WPCL defines "fringe benefits" as including "any other amount to be paid pursuant to an agreement". Id. Thus, the liquidated damages statute provides: "Where `any other amount to be paid pursuant to an agreement' remains unpaid for thirty days", the employee may be entitled to liquidated damages. 43 P.S. § 260.10. This construction does not render the third condition mere surplusage. The third condition addresses the factual scenario of when an employer consistently pays an employee late, i.e., not on the regularly scheduled payday, but within thirty days of the regularly scheduled payday. See id. The third condition closes a loophole in the first condition, under which a dilatory employer might avoid liquidated damages by paying the amount owed within thirty days. See id. The amount owed, however, must exceed 5%. See id.

Instantly, to establish a claim for liquidated damages, an employee must demonstrate that any monetary amount associated with a paid rest break remained unpaid for at least thirty days beyond a regularly scheduled payday. See 43 P.S. § 260.10. The monetary amount does not have to exceed 5% of gross wages payable. See id. Alternatively, an employee must prove that the employer underpaid the monetary amounts associated with paid rest breaks and the amount of underpayment exceeds "five percent (5%) of the gross wages payable on any two regularly scheduled paydays in the same calendar quarter". Id.32 Under this proviso, the employee does not have to establish a thirty-day window of time and only has to establish, inter alia, the amount of underpayment. See id.

Under Wal-Mart's proposed interpretation, an employer, in bad faith, could underpay an employee by 4%. If the first condition was limited to a complete nonpayment of wages, then the employee would have no claim for liquidated damages. The employee, similarly, would have no claim for liquidated damages under the third condition because the shortage is less than 5%. Accordingly, because of the compensatory purpose of this section, we are reluctant to construe the first condition as limited to a complete nonpayment of wages, as that interpretation could potentially bar liquidated damages should an employer, for example shortchange an employee 4% in bad faith. See Signora, 886 A.2d at 296; see also Oberneder I, 674 A.2d at 722; cf. Brooklyn Sav. Bank, 324 U.S. at 707, 65 S.Ct. at 902, 89 L.Ed. at 1309; Friedrich, 1995 WL 412385, at *3, 1995 U.S. Dist. LEXIS 9791, at *10 (commenting, in reference to Pennsylvania's Minimum Wage Act, "violators would in effect enjoy an interest-free loan for as long as they could delay paying out the wages."). In that circumstance, an employee should have the ability to recover compensatory damages, i.e., liquidated damages, under the WPCL, and not under some alternative legal theory. See Oberneder I, 674 A.2d at 722; see also Oberneder II, 548 Pa. at 204, 696 A.2d at 150; Lugo, 967 A.2d at 968. Otherwise, an employee is not necessarily guaranteed damages for the injury caused by the delay. See Brooklyn Sav. Bank, 324 U.S. at 707, 65 S.Ct. at 902, 89 L.Ed. at 1309. Contrary to Wal-Mart's contention, Appellees did not have to introduce evidence establishing shortages of at least 5% because Appellees' WPCL claim was cognizable under the first condition. Thus, we discern no error of law. See Wapner, 903 A.2d at 574.

Wal-Mart next claims it met its burden of establishing, via clear and convincing evidence, a "good faith contest or dispute" of Appellees' wage claims. 43 P.S. § 260.10. Wal-Mart, although conceding the statute identifies "non-exhaustive examples of `good faith,'" contends that the court should focus on the employer's litigation conduct because section 260.10 identifies the "right of set-off or counter-claim" and "litigation is the only possible forum for assertion of set-off or counterclaim rights." Wal-Mart's Brief at 53. Given this focus, Wal-Mart suggests it had a reasonable legal basis for withholding Appellees' wages even if a court concludes that basis was incorrect. Id. (citing Hartman, 766 A.2d at 354-55). Wal-Mart notes that no Pennsylvania court has resolved these WPCL issues. Further, Wal-Mart argues, Appellees abandoned, or the jury rejected, a number of claims, giving further credence to Wal-Mart's position that its litigation conduct was in good faith. Wal-Mart is not entitled to relief.

In reference to the phrase, "[N]o good faith contest or dispute of any wage claim including the good faith assertion of a right of set-off or counter-claim exists accounting for such non-payment," the WPCL does not define "good faith." 43 P.S. § 260.10. With respect to the term "include," "[t]he term `include' is to be dealt with as a word of `enlargement and not limitation.'" Pa. Human Relations Comm'n v. Alto-Reste Park Cemetery Ass'n, 453 Pa. 124, 130-31, 306 A.2d 881, 885 (1973) (alterations omitted); accord Samantar v. Yousuf, ___ U.S. ___, ___ n. 10, 130 S.Ct. 2278, 2287 n. 10, 176 L.Ed.2d 1047, 1062 n. 10 (2010). As one treatise notes:

2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes & Statutory Construction § 47:7 (7th ed.2007) ("Sutherland") (footnote omitted).

The Hartman Court analogized lack of good faith with bad faith in insurance caselaw in holding that an employer must establish good faith by clear and convincing evidence:

Hartman, 766 A.2d at 354 n. 3; see also Oberneder II, 548 Pa. at 206 n. 3, 696 A.2d at 151 n. 3 (noting, in dicta, "that employers that act in bad faith in contesting an employee's claim for wages must pay liquidated damages").

In Hartman, the employer misunderstood the binding nature of the agreement at issue and interpreted the WPCL as excluding payment for equity interests. Hartman, 766 A.2d at 354-55. The Hartman Court reversed an award of liquidated damages, reasoning:

Id. at 355 (some citations omitted). Accordingly, the Hartman Court held that the employer established it acted in good faith because it had a reasonable, although incorrect, legal conclusion. Id.

In the case of O'Donnell ex rel. Mitro v. Allstate Ins. Co., 734 A.2d 901 (Pa.Super.1999), this Court interpreted a statute providing for damages if an insurer acted in bad faith. Id. at 906 (interpreting 42 Pa.C.S. § 8371). The O'Donnell Court held that "section 8371 was designed to remedy all instances of bad faith conduct by an insurer, whether occurring before, during or after litigation." Id. at 906; accord Bombar v. West Am. Ins. Co., 932 A.2d 78, 92 (Pa.Super.2007); Hollock v. Erie Ins. Exch., 842 A.2d 409, 415 (Pa.Super.2004) (en banc). The O'Donnell Court, however, refused to permit recovery under the statute for alleged discovery violations because "the Pennsylvania Rules of Civil Procedure provide an exclusive remedy[.]" Id. at 909.

More recently, in Wapner, a hospital defended a WPCL claim by arguing it withheld the physician's wages on the basis that it exercised its right of set-off in good faith. Wapner, 903 A.2d at 574. The Wapner Court disagreed, holding that the record suggested the hospital failed to pay the wages owed to the physician for several months before learning the physician was not complying with his employment agreement, which could have justified the nonpayment. Id. at 575. Thus, the Wapner Court affirmed the trial court's denial of the hospital's motion for judgment notwithstanding the verdict, reasoning, "[T]he issue of good faith was properly a question for the jury because it was neither established as a matter of law, nor a matter about which two reasonable minds could not disagree." Id. at 575.

We disagree with Wal-Mart's suggestion that courts should examine "good faith" in the context of claims and arguments raised in litigation only. As Wal-Mart acknowledges, the term "include" is non-exhaustive and it is long-settled that "include" is not a term of limitation, but a term of enlargement. Alto-Reste Park Cemetery Ass'n, 453 Pa. at 130-131, 306 A.2d at 885; 2A Sutherland, supra, § 47:7. The statute's use of the word "including" and listing, as examples, the "right of set-off or counter-claim," does not limit the examination of good faith to solely the claims raised in litigation. We observe that in Wapner, the employer's defense of set-off was based on facts predating the litigation itself. Wapner, 903 A.2d at 574. The jury in Wapner did not examine whether the employer raised the defense in good faith during the litigation, but whether the employer acted in good faith by raising a right to set-off at the time it refused to pay the employee's wages. Id. at 575. Similarly, the Hartman Court examined the events and the employer's conduct prior to the lawsuit in determining whether a fact-finder could conclude the employer acted in good faith. Hartman, 766 A.2d at 355 & n. 6 (assuming the employer "did not act in good faith when [it] refused to pay"). Further, the liquidated damages statute compensates the employee for lost wages and not, for example, only an employer's lack of good faith with respect to claims raised during litigation. Signora, 886 A.2d at 296; see also Brooklyn Sav. Bank, 324 U.S. at 707, 65 S.Ct. at 902, 89 L.Ed. at 1309. Interpreting that statute as focusing exclusively on the employer's litigation conduct—occurring after the withholding of wages—undermines the compensatory purpose of the statute. Cf. O'Donnell, 734 A.2d at 906 (concluding the insurance bad-faith statute encompasses bad faith conduct "before, during or after litigation").

To the extent Wal-Mart relies on Hartman, that case is distinguishable because the jury could, and did, find instantly that Wal-Mart did not meet its burden of clear and convincing evidence. In Hartman, the employer satisfied the evidentiary standard because there was little indication from the parties' conduct that anything more than "mere bad judgment" regarding the employer's legal obligations caused the employer's failure to pay. Hartman, 766 A.2d at 355. The employer, the Hartman Court concluded, "made an incorrect legal conclusion in good faith that was based upon supportive authority and a thorough examination of the parties' course of conduct." Id. (emphasis added).

In contrast to Hartman, the instant record provides ample evidence from which a juror could conclude Wal-Mart's failure to pay was not a result of a good-faith, but incorrect, legal conclusion. Id.33 The record reflects testimony and documentary evidence suggesting that because of pressure from the home office to reduce labor costs and the availability of significant bonuses for managers based on store profitability, Wal-Mart's scheduling program created chronic understaffing, leading to widespread rest-break violations. See, e.g., Pls.' Ex. 429; R.R. at 7787a-88a; N.T., 9/13/06 (morning), at 106-08; R.R. at 1596a-98a. Wal-Mart's own audit reports identified many such violations. See, e.g., N.T., 9/12/06 (morning), at 61-65; R.R. at 1501a-05a. This case is more akin to Wapner, in which the record established that the facts purportedly justifying the hospital's right of set-off occurred months after the hospital's refusal to pay. Wapner, 903 A.2d at 575. Appellees introduced evidence that Wal-Mart did not permit its employees to take breaks and that it recognized off-the-clock work violated the law. See, e.g., N.T., 9/15/06 (morning), at 19; R.R. at 1617a; Pls.' Ex. 27a; R.R. at 7020a. After viewing the entire record in the light most favorable to Appellees, the record does not compel the conclusion that Wal-Mart established good faith. Moure, 529 Pa. at 402-03, 604 A.2d at 1007. Similarly, we cannot conclude the record does not support the court's reasoning for denying a new trial on this particular basis. Harman, 562 Pa. at 467-69, 756 A.2d at 1122-24. Analogously, post-hoc events such as abandoned or dismissed claims and an award of damages in an amount less than that sought by Appellees do not, under these facts, tend to establish Wal-Mart's good faith under this provision. Accordingly, we cannot agree that, in examining whether an employee may receive liquidated damages, the statute limits examination to whether the employer acted in good faith "in the context of the claims made in the litigation." Wal-Mart's Brief at 53.

Wal-Mart's third argument challenging the liquidated damages award is that the trial court's jury instruction misstated the law regarding liquidated damages under the WPCL. The court instructed the jury as follows:

N.T., 10/11/06, at 48-49; R.R. at 2145a-46a.

After the jury began deliberating at 11:40 a.m., the jury returned with a question at 1:50 p.m.: "We need more clarification about good faith contest." Id. at 75. Wal-Mart's counsel opined that the court should not respond to the question, but if it opted to respond, to reread only the section defining good faith. Id. at 80. Wal-Mart's counsel reiterated, "I do not think that the Court should provide them elaboration about what good faith is beyond the charge that has already been given." Id. at 81. The court agreed and briefly repeated the relevant sections of the charge to the jury, including the section defining good faith. Id. at 83-85. After additional discussion with counsel, the court clarified the scope of good faith to the jury. Id. at 95.

Wal-Mart contends that the court erred in rejecting its request that the jury make a finding that the wage shortages exceeded five percent of the gross wages payable on any two regularly scheduled paydays in the same calendar quarter. Wal-Mart also claims that the court erroneously charged the jury on good faith. In support of that assertion, Wal-Mart refers to an alleged misstatement of law in the verdict form, which asked if Wal-Mart "[had] a good faith contest or dispute when [it] failed to pay class members for every hour worked," and if Wal-Mart "[had] a good-faith contest or dispute when [it] failed to provide rest breaks to class members." Jury Verdict Interrog., at 2-3; R.R. at 2182a-83a. Wal-Mart suggests that the court should have asked whether Wal-Mart acted in good faith in disputing the wage claims raised by Appellees in this lawsuit. Wal-Mart is not entitled to relief.

As a prefatory matter, we address Appellees' claim that because Wal-Mart filed a successful motion precluding Appellees from referring to or introducing evidence regarding liquidated damages, Wal-Mart waived its argument that the jury is required to find shortages. Appellees' claim of waiver lacks merit. We fail to discern how, under these facts, winning a pretrial motion precluding evidence is the equivalent to waiving a challenge that the court instruct the jury properly.

Having resolved Appellees' allegation of waiver, the standard of review for this issue is one of abuse of discretion. Rettger v. UPMC Shadyside, 991 A.2d 915, 931 (Pa.Super.2010). "[O]ur courts have made clear that an appellant must make a timely and specific objection to a jury instruction to preserve for review a claim that the jury charge was legally or factually flawed." Stumpf v. Nye, 950 A.2d 1032, 1041 (Pa.Super.2008) (citations and quotation marks omitted).

Price v. Guy, 558 Pa. 42, 46, 735 A.2d 668, 670-71 (1999) (citations and footnote omitted). Similarly:

Stewart v. Motts, 539 Pa. 596, 606, 654 A.2d 535, 540 (1995) (citations and quotation marks omitted). Finally,

Rettger, 991 A.2d at 931 (citations, alterations, and punctuation marks omitted); Ettinger v. Triangle-Pacific Corp., 799 A.2d 95, 106 (Pa.Super.2002).

Initially, Wal-Mart preserved its objection:

N.T., 10/10/06, at 30. Wal-Mart again preserved its challenge the next day:

N.T., 10/11/06, at 5-6; R.R. at 2135a-36a. Wal-Mart preserved its challenge to the scope of good faith in the liquidated-damages statute. See Stumpf, 950 A.2d at 1041.

For the reasons discussed above, however, we discern no merit to Wal-Mart's claim that the court should have instructed the jury to find wage shortages in excess of five percent in order to impose liquidated damages. To recover liquidated damages, Appellees did not have to establish wage shortages under that section. Cf. In re Paulmier, 594 Pa. at 448, 937 A.2d at 373; Rivera, 510 Pa. at 15, 507 A.2d at 8. Similarly, Wal-Mart's argument that an examination of good faith was limited to its actions in this lawsuit lacks merit. The liquidated damages statute does not limit examination of the employer's good faith to the employer's litigation conduct. Alto-Reste Park Cemetery Ass'n, 453 Pa. at 130-31, 306 A.2d at 885; Wapner, 903 A.2d at 574-75; Hartman, 766 A.2d at 355 & n. 6. The court could not accept Wal-Mart's proposed instructions, as they did not reflect the law accurately. After considering only Wal-Mart's specific, preserved challenges, the court did not err by limiting the jury's examination of good faith to only Wal-Mart's conduct after litigation commenced. See Price, 558 Pa. at 46, 735 A.2d at 670-71; Stewart, 539 Pa. at 606, 654 A.2d at 540.34 We perceive no abuse of discretion. See Rettger, 991 A.2d at 931.

Wal-Mart also argues that Appellees are not entitled to a liquidated damages award because Appellees did not identify specific individuals who are owed liquidated damages. Wal-Mart asserts that Appellees are required to identify those individuals because the WPCL's liquidated damages provision provides that liquidated damages are awarded to an "employee." Therefore, Wal-Mart reasons that the provision does not contemplate an award to unidentified employees that comprise a class. Wal-Mart further contends that the compensatory purpose behind the liquidated-damages provision confirms its view that Appellees need to identify specific class members. Wal-Mart notes that its elimination of its policy requiring employees to swipe for rest breaks after February 9, 2001, means there are no time records identifying which particular employees were denied rest breaks in whole or in part. To the extent liquidated damages are proper, Wal-Mart suggests that any award be calculated via a claims-administration process. Wal-Mart theorizes that a claims-administration process would create a wage claim under 43 P.S. § 260.10 that obviates an award of liquidated damages as long as it was paid within sixty days. Further, the process ensures that liquidated damages are awarded only to aggrieved individuals, as opposed to the class. Wal-Mart is not entitled to relief.35

Liquidated damages under the WPCL are compensatory, and not punitive, in nature. Signora, 886 A.2d at 296. The WPCL also states:

43 P.S. § 260.9a(b). The statute does not specify that individual members of a class action must be identified in order to receive liquidated damages.

Instantly, Wal-Mart correctly notes the liquidated-damages statute is compensatory in nature. Signora, 886 A.2d at 296. We discern nothing in the WPCL, however, that requires Appellees to identify individual employees entitled to liquidated damages. Additionally, narrowly construing section 260.10 in that fashion would result in a seeming conflict with section 260.9a, which permits a representative to maintain an action to recover liquidated damages on behalf of all similarly situated employees—not just an individual employee. 43 P.S. § 260.9a. We decline to read these two sections together in a manner that could potentially render them at odds, particularly given our mandate to construe the WPCL liberally. Penn Jersey Advance, Inc., 599 Pa. at 540, 962 A.2d at 634; Hartman, 766 A.2d at 353. Thus, absent explicit legislative language to the contrary, we decline to impute into section 260.10 a requirement that, in order to recover liquidated damages, the plaintiff must identify every individual employee entitled to such damages. On that basis, we also reject Wal-Mart's arguments regarding usage of a claims-administration process. Adopting Wal-Mart's reasoning would permit Wal-Mart to evade an award of liquidated damages by requiring individual employees to come forward or pay wages long-since overdue. As Wal-Mart acknowledged, liquidated damages is compensatory in nature and designed to compensate the employee for the loss of spending power of wages that an employee should have had. See Signora, 886 A.2d at 296; see also Oberneder I, 674 A.2d at 722; Friedrich, 1995 WL 412385, at *2, 1995 U.S. Dist. LEXIS 9791, at *5.

With respect to Wal-Mart's fourth issue, we affirm based on reasons similar to those set forth in our resolution of Wal-Mart's first issue. As with Wal-Mart's challenge to class certification, Wal-Mart suggests that because the policies and handbook did not establish a contract, the evidence was insufficient to establish a breach of contract. Wal-Mart contends that the testimony of Drs. Baggett and Shapiro was the only testimony establishing class-wide liability. Wal-Mart suggests that because their testimony was erroneous, it was insufficient to establish breach of contract, unjust enrichment, and violation of the WPCL and MWA. Notably, Wal-Mart rests its challenge to the sufficiency only on the policies, handbook, and testimony of Drs. Baggett and Shapiro. Because of the limited nature of Wal-Mart's challenge to the sufficiency of evidence, and because of our resolution of Wal-Mart's challenge to class certification, we similarly conclude that this evidence, viewed in the light most favorable to Appellees, tends to support Appellees' claims. Conversely, we cannot conclude, after giving every reasonable inference of fact in favor to Appellees, that "the evidence was such that no two reasonable minds could disagree that the verdict should have been rendered for the movant." Moure, 529 Pa. at 402, 604 A.2d at 1007.

We also observe that Wal-Mart agreed to pay Appellees for taking rest breaks, and therefore had to comply with the WPCL statute providing for timely payments of fringe benefits. See 43 P.S. § 260.3. Because Wal-Mart failed to provide rest breaks and the associated payments for those rest breaks, Wal-Mart violated that section. See id. Appellees are thus entitled to compensation under the WPCL. See id.

We next examine Wal-Mart's fifth issue. We briefly restate the pertinent facts. On October 30, 2006, Appellees filed a petition for attorney fees and moved for prejudgment interest. Trial Ct. Op., 9/03/08, at 2. That same day, Wal-Mart filed a post-trial relief motion asking the Court either to enter judgment in Wal-Mart's favor notwithstanding the jury's verdict, or to grant a new trial. Id. at 2-3.

In support of their petition for attorney fees and expenses, Appellees provided detailed fee and expense reports identifying the hours spent over five years by each of the five firms involved, categorizing each firm's hourly rate, and summarizing the expenses incurred. Trial Ct. Op., 11/14/07, at 3. Appellees' petition also included affidavits from counsel averring their hourly rates for, among other personnel, twenty-six lawyers and seventeen paralegals. Id. at 3.36 Appellees claimed total counsel fees of $12,336,547.15 and $3,583,782.62 in expenses. Ex. A and B to Pls.' Pet. for Award of Att'ys' Fees and Reimbursement of Expenses; R.R. at 2245a-48a. Wal-Mart filed an answer to Appellees' fee petition and Appellees filed a reply. Trial Ct. Op., 11/14/07, at 3. The trial court ordered Wal-Mart to reveal the aggregate fees expended in its defense, which amounted to $10,048,944 in fees and $7,006,982 in expenses. Id. at 4, 19.

On February 27, 2007, the trial court heard oral arguments on Wal-Mart's post-trial motions and Appellees' petition for attorney fees and costs. There was a two-day fee-petition hearing in February and April of 2007. Two Wal-Mart witnesses testified, challenging the reasonableness of Appellees' fee request. John Marquess, a fee auditor, testified as an expert in fee cutting, although he had no academic training in fee auditing or certification.37 For multiple reasons, the court rejected his expert opinion. Although Mr. Marquess criticized Appellees' counsel fees, the court noted a lack of a factual basis for his methodology. He concluded, for example, that Appellees' counsel who appeared at trial, but did not actually participate at trial, should not bill their time at trial because, inter alia, he could not ascertain whether they participated at each stage of the litigation. N.T., 2/27/07, at 45-48. The trial court stated:

Trial Ct. Op., 11/14/07, at 13.

Wal-Mart's second expert, Ralph Wellington, Esq., testified about reasonable attorney fees. He opined that he had no criticism of the number of attorneys involved, work performed, and hours spent by Appellees' litigation team. He disputed, however, some of the hourly rates identified by some of Appellees' counsel. Id. at 14. After considering the affidavit, evidence, and conflicting testimony of the parties' experts regarding the reasonableness and necessity of the legal services provided, the court held that the rates requested by Appellees' counsel and the work performed by all attorneys, associates, paralegals, and interns were reasonable. Id. at 14.

The trial court then examined the reasonableness of Appellees' lodestar. The court compared the value of the total recovery, $151,164,277.35, against the $12,336,547.15 in fees, or a contingency equivalent of 8%. Id. at 20. The court categorically opined:

Id. at 20.38

Appellees' counsel requested a contingency multiplier39 of 3.7, or 370% of their fees and expenses, for a total of $45,600,000, or approximately 31% of the value of the total monetary recovery. Id. at 21. The court summarily held:

Id. at 21. The trial court did not discuss any other factors, including those set forth by Pa.R.C.P. 1716.

On appeal, Wal-Mart argues that the court erred in approving a contingency multiplier when the contingency risk was already factored into the hourly rate. Wal-Mart thus contends that the trial court contravened the holding of Birth Ctr. v. St. Paul Cos., 727 A.2d 1144 (Pa.Super.1999). Wal-Mart alleges that no Pennsylvania court ever approved a 3.7 multiplier, particularly considering the prediction by the United States Court of Appeals for the Third Circuit that the Pennsylvania Supreme Court would accept a 1.5 multiplier as the outer limit. Wal-Mart's Brief at 61 (citing Polselli v. Nationwide Mut. Fire Ins. Co., 126 F.3d 524, 536 (3d Cir.1997)). Wal-Mart asserts that where damages exceed $100 million, using a multiplier that results in counsels' recovering 33% of that figure in fees contradicts the maxim that "percentage awards generally decrease as the amount of the recovery increases" because "in many instances the increase in recovery is merely a factor of the size of the class and has no direct relationship to the efforts of counsel." Wal-Mart's Brief at 61 (quoting Krell v. Prudential Ins. Co. of Am., 148 F.3d 283, 339 (3d Cir.1998)). For these reasons, Wal-Mart suggests the trial court abused its discretion.

Appellees counter that Wal-Mart waived the issue for three reasons. First, Wal-Mart conceded that Appellees' counsels' hourly rates were appropriate. Second, Wal-Mart's experts did not opine that those hourly rates accounted for the contingency risk. Third, the multiplier ensures that litigants with small claims have access to class action counsel. On the merits, Appellees insist that this Court cannot make a factual determination as to the reasonableness of counsels' fees. Further, because the federal courts have found no difference between non-contingent and contingent hourly rates, Wal-Mart has no basis to assert that Appellees' counsels' hourly rate mitigated the contingency risk. Appellees suggest Pennsylvania's public policy justifies the 3.7 multiplier.40 Wal-Mart is entitled to limited relief, at the moment.

"[A]ppellate review of an order of a tribunal awarding counsel fees to a litigant is limited solely to determining whether the tribunal palpably abused its discretion in making the fee award." Lucchino v. Commonwealth, 570 Pa. 277, 284, 809 A.2d 264, 268-69 (2002) (citation omitted); First Pa. Bank, N.A. v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 397 Pa.Super. 612, 580 A.2d 799, 803 (1990). "An abuse of discretion is not simply an error of judgment. It requires much more. 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 or the record, discretion is abused." Bedford Downs Mgmt. Corp. v. State Harness Racing Comm'n, 592 Pa. 475, 487, 926 A.2d 908, 916 (2007) (quotation marks, alterations, and citations omitted).

In Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 483 U.S. 711, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987) (plurality), the dissent set forth the background of contingency fees:

Id. at 735-37, 107 S.Ct. at 3092-93, 97 L.Ed.2d at 604-05 (Blackmun, J., dissenting) (citations omitted and emphasis added).

A "lodestar" is "the product of reasonable hours times a reasonable rate." City of Burlington v. Dague, 505 U.S. 557, 559, 112 S.Ct. 2638, 2640, 120 L.Ed.2d 449, 454-55 (1992) (citation omitted);41 Krebs v. United Ref. Co. of Pa., 893 A.2d 776, 790 (Pa.Super.2006). The court must consider the factors set forth in Pa.R.C.P. 1716 in calculating the lodestar. Birth Ctr., 727 A.2d at 1160. The lodestar "should be reduced in proportion to time spent on distinct claims which do not produce finding of liability." Logan v. Marks, 704 A.2d 671, 674 (Pa.Super.1997); accord Hensley v. Eckerhart, 461 U.S. 424, 440, 103 S.Ct. 1933, 1943, 76 L.Ed.2d 40, 55 (1983). After finalizing the lodestar, the court may then apply a multiplier, i.e., enhancement. Logan, 704 A.2d at 674.42

The Dague Court examined whether a court "may enhance the fee award above the `lodestar' amount in order to reflect the fact that the party's attorneys were retained on a contingent-fee basis and thus assumed the risk of receiving no payment at all for their services." Dague, 505 U.S. at 559, 112 S.Ct. at 2639, 120 L.Ed.2d at 454. In reversing a 1.25 multiplier of the lodestar, the high Court noted:

Id. at 562-63, 112 S.Ct. at 2641, 120 L.Ed.2d at 456-57 (citations and quotation marks omitted; second and third emphases added);43 accord Perdue, ___ U.S. at ___, 130 S.Ct. at 1673, 176 L.Ed.2d at 505 (reiterating holding "that an enhancement may not be awarded based on a factor that is subsumed in the lodestar calculation").

In Polselli v. Nationwide Mut. Fire Ins. Co., 126 F.3d 524 (3d Cir.1997), the United States Court of Appeals for the Third Circuit addressed whether this Commonwealth would permit courts to evaluate contingent risk in awarding attorneys' fees. Initially, the district court addressed whether counsel was entitled to a contingency enhancement for a contract and a bad-faith claim. With respect to the contract claim, the district court "first calculated the lodestar amount based on the stipulated hourly rate for [counsel's] work in non-contingency matters and stipulated number of hours allocated to the contract claim." Id. at 533 (emphasis added). The district court rejected any enhancement for the contract claim, concluding "the contract claim was not unique or complex, and that it did not entail a substantial risk of failure." Id. The Polselli Court agreed, finding the district court did not abuse its discretion. Id.

With respect to the bad-faith claim, the district court enhanced the lodestar by 60%, a 1.6 multiplier, but then eliminated the enhancement, finding that the law barred any such award. Id. at 533-34. The Third Circuit thus had to "predict whether the Pennsylvania Supreme Court would permit consideration of the contingent risk of a particular case in calculating a reasonable fee for that case." Id. at 535. In concluding the Pennsylvania Supreme Court would permit consideration of contingent risk in calculating attorneys' fees, the Polselli Court reasoned:

Id. at 535-36 (emphases added).

As both parties acknowledge, Birth Ctr.44 is one of the seminal Pennsylvania cases addressing a contingency enhancement. In Birth Ctr., the Court remanded the issue of attorneys' fees to the trial court. Id. at 1160. Because the applicable statute did not identify the factors the court should consider in awarding attorneys' fees, the Birth Ctr. Court instructed the court to consider the factors in Pa. R.C.P. 1716. Id. at 1160 (citing Polselli 126 F.3d at 532-39). The Birth Ctr. Court embraced the reasoning of the Polselli Court and reinforced:

Id. at 1161 (emphasis added).

In considering whether to apply an enhancement to the lodestar, the court shall evaluate the degree of success, the deterrent effect of the verdict or decision, the potential public benefit, and the potential inadequacy of a private fee agreement. Logan, 704 A.2d at 674; accord Krebs, 893 A.2d at 790. "[T]he degree of success is the critical consideration. . . ." Logan, 704 A.2d at 674. The court shall consider "whether an award of fees and costs would promote the purposes of the" statute(s) in question. Krebs, 893 A.2d at 789-90; Logan, 704 A.2d at 674. "The court may consider the relationship between the damages sought and those recovered." Logan, 704 A.2d at 674; accord Krebs, 893 A.2d at 789. If a contingency-fee agreement exists, then the court may consider the agreement in determining the enhanced amount, but the agreement cannot create an "artificial ceiling based on the percentage agreed upon between attorney and client." Krebs, 893 A.2d at 791. The court, however, "may not lower the fee to achieve proportionality with the size of the verdict." Logan, 704 A.2d at 674; accord Krebs, 893 A.2d at 789. If an enhancement is applied, then the resulting sum should be "sufficient to attract competent counsel who might otherwise" refuse to represent the class. Logan, 704 A.2d at 674; accord Krebs, 893 A.2d at 790. The court should refrain from enhancing the lodestar based on factors incorporated into the reasonable fee. See Birth Ctr., 727 A.2d at 1161; see, e.g., Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 566, 106 S.Ct. 3088, 3099, 92 L.Ed.2d 439, 457 (1986) ("Delaware Valley") (stating, "Because considerations concerning the quality of a prevailing party's counsel's representation normally are reflected in the reasonable hourly rate, the overall quality of performance ordinarily should not be used to adjust the lodestar, thus removing any danger of `double counting'").45 Finally, the court is not limited to discussing only these factors in determining whether to apply an enhancement. Krebs, 893 A.2d at 791; see Polselli, 126 F.3d at 536 (noting, "We are therefore reluctant to provide courts with a specific list of factors to consider in determining whether and to what extent a contingency enhancement is appropriate in any given case").

In sum, courts are permitted to award a reasonable fee pursuant to a lodestar, a percentage of the common fund, or, if necessary, a hybrid approach. With respect to a lodestar, the court analyzes multiple factors in considering whether to apply a contingency enhancement, i.e., multiplier. See, e.g., Krebs, 893 A.2d at 790-91; Birth Ctr., 727 A.2d at 1161; Logan, 704 A.2d at 674. A contingency enhancement on top of the lodestar is appropriate only if the lodestar does not reflect counsel's contingent risk. See Birth Ctr., 727 A.2d at 1161; see also Perdue, ___ U.S. at ___, 130 S.Ct. at 1673, 176 L.Ed.2d at 505; Dague, 505 U.S. at 562-63, 112 S.Ct. at 2641, 120 L.Ed.2d at 456-57; Polselli, 126 F.3d at 536.

As a prefatory matter, we address Appellees' claim that Wal-Mart waived its argument. The record reflects that Wal-Mart challenged the imposition of a contingency multiplier when Appellees' counsel's hourly rates incorporated a contingency risk factor. Wal-Mart's Supplemental Mem. of Law in Opp'n to Pls.' Pet. for Award of Att'ys' Fees and Expenses, at 14; R.R. at 2651a (citing ¶ 4 of Aff. of Michael D. Donovan in Supp. of Pls.' Pet. for Att'ys' Fees and Reimbursement of Costs; R.R. at 2271a; and ¶ 4 of Aff. of Judith L. Spanier in Supp. of Pls.' Pet. for Award of Att'ys' Fees and Reimbursement of Expenses; R.R. at 2287a). Wal-Mart's concession to the appropriateness of counsel's hourly rates is not equivalent to waiving its double-counting argument. Further, Appellees refer us to no caselaw suggesting Wal-Mart's experts had to opine on Appellees' counsel's hourly rates. Regardless, Appellees submitted sworn declarations identifying the hourly rates for contingent matters. See ¶ 4 of Aff. of Michael D. Donovan in Supp. of Pls.' Pet. for Att'ys' Fees and Reimbursement of Costs; R.R. at 2271a; ¶ 4 of Aff. of Judith L. Spanier in Supp. of Pls.' Pet. for Award of Att'ys' Fees and Reimbursement of Expenses; R.R. at 2287a. To the extent Appellees contend that the multiplier ensures access to class action counsel, that contention has no bearing on whether Wal-Mart waived the argument on appeal.

With respect to the merits, in applying an enhancement, the court inadvertently double-counted contingency factors incorporated into the counsel fees for the firms of Donovan Searles, LLC, and Abbey, Spanier, Rodd, Abrams & Paradis, LLP. The affidavits for those firms state, "The hourly rates for the attorneys in my firm included in Exhibit A are the same as the regular current rates charged for their services in other contingent matters in class action litigation." ¶ 4 of Aff. of Michael D. Donovan in Supp. of Pls.' Pet. for Att'ys' Fees and Reimbursement of Costs; R.R. at 2271a (emphases added); ¶ 4 of Aff. of Judith L. Spanier in Supp. of Pls.' Pet. for an Award of Att'ys' Fees and Reimbursement of Expenses; R.R. at 2287a (emphases added). In contrast, the affidavits for the other firms aver they used their firms' "complex litigation hourly rates" to calculate their lodestars. ¶ 9 of Aff. of Franklin D. Azar in Supp. of Pls.' Pet. for Award of Att'ys' Fees and Reimbursement of Expenses; R.R. at 2306a; ¶ 24 of Aff. of Gerald L. Bader, Jr. in Supp. of Pls.' Pet. for Award of Att'ys' Fees and Reimbursement of Expenses; R.R. at 2331a; ¶ 18 of Aff. of John A. Smalley in Supp. of Pls.' Pet. for an Award of Att'ys' Fees and Reimbursement of Expenses; R.R. at 2343a. Because the instant lodestar was based in part on contingency rates, and not the rates paid by a client regardless of winning or losing, the court should not have enhanced the lodestar to the extent the enhancement double-counted counsel's contingent risk. See Birth Ctr., 727 A.2d at 1161; see also Perdue, ___ U.S. at ___, 130 S.Ct. at 1672, 176 L.Ed.2d at 505; Dague, 505 U.S. at 559, 112 S.Ct. at 2640, 120 L.Ed.2d at 454-55; Blum, 465 U.S. at 895 n. 11, 104 S.Ct. at 1547 n. 11, 79 L.Ed.2d at 905 n. 11. Indeed, in Polselli, the United States Court of Appeals for the Third Circuit accepted without question the calculation of a lodestar based on counsel's hourly rate in "non-contingency matters". Polselli, 126 F.3d at 533. The instant trial court erred in applying an enhancement which partially double counts because, according to the affidavits, Donovan Searles, LLC, and Abbey, Spanier, Rodd, Abrams & Paradis, LLP, charged a "premium over their hourly rates" to reflect their contingent risk. See Birth Ctr., 727 A.2d at 1161 (instructing that a fee enhancement, or multiplier, "shall be inappropriate where the factors creating the risk have been . . . already taken into account in the calculation" of the lodestar); see also Dague, 505 U.S. at 562-63, 112 S.Ct. at 2641, 120 L.Ed.2d at 456-57; Polselli, 126 F.3d at 535-36. Accordingly, because the trial court misapplied the law, we reverse the fee award and remand for proceedings in accordance with this decision. See Bedford Downs Mgmt. Corp., 592 Pa. at 487, 926 A.2d at 916; Lucchino, 570 Pa. at 284, 809 A.2d at 268-69.46

Upon remand, the court should explain thoroughly its rationale in approving the lodestar, including the factors set forth by Pa.R.C.P. 1716 and the Logan Court. See Pa.R.C.P. 1716; Logan, 704 A.2d at 674. We note, however, that in reviewing the court's opinion, we also find its justifications for applying a multiplier insufficient, particularly in light of its application of a 3.7 multiplier, compared to the Third Circuit's prediction that 1.5 would be the outer limit of acceptable multipliers in this Commonwealth. See Polselli, 126 F.3d at 536. Accordingly, if the court concludes an enhancement is warranted, then the court shall discuss comprehensively the factors it finds would justify an enhancement. See, e.g., Krebs, 893 A.2d at 790; Birth Ctr., 727 A.2d at 1161; Logan, 704 A.2d at 674; see also Delaware Valley, 478 U.S. at 568, 106 S.Ct. at 3099, 92 L.Ed.2d at 458 (noting, inter alia, that "absence of detailed findings" warranted reversal of fee enhancement for superior performance).47 In considering whether to apply an enhancement, the court should not reconsider factors "subsumed in the lodestar amount[, e.g.,]" "a difficult case [requiring] a high number of hours dedicated to research or discovery [or] the skills of someone who ordinarily bills at a high hourly rate." Polselli, 126 F.3d at 535; Birth Ctr., 727 A.2d at 1161. The court may wish to apply a second method of calculation as a cross-check. See In re GM Truck, 55 F.3d at 820.48 Because the trial court made a patent mathematical error while calculating damages, we also modify the judgment to reflect a WPCL verdict for $49,289,541, instead of $49,568,541. In re Paxson Trust I, 893 A.2d 99, 132 (Pa.Super.2006) (modifying amount of judgment to correct mathematical error); see supra n. 10. Accordingly, the judgment is affirmed in part as modified, reversed in part, and remanded for further proceedings in accordance with this decision.

Wal-Mart's application to strike Appellees' August 13, 2009 letter brief is denied. Judgment affirmed in part as modified, and reversed in part. Case remanded for further proceedings. Jurisdiction relinquished.