Mario Escano Ventura, v. Farmers Pride, Inc., d/b/a Bell & Evans

Mario Escano Ventura, v. Farmers Pride, Inc., d/b/a Bell & Evans

Civil Action-Labor Law-Violation of Pennsylvania Minimum Wage Act-Class Action-Certification of Class-Discovery-Scope-Objections-Pa.R.C.P. Rule 1702-Policies-Multiple Plants

Mario Escano Ventura (“Plaintiff”) seeks to initiate a Class Action claim on behalf of thousands of employees who worked for Farmers Pride, Inc., (“Defendant”) for violation of the Pennsylvania Minimum Wage Act (“PMWA”), 43 P.S. § 333.101 et seq., for failing to pay overtime wages for time spent by employees undergoing mandatory COVID screening before commencing work.  Plaintiff sought discovery pertaining to three (3) of Defendant’s plants.  Defendant objected to providing information relating to two (2) plants on the basis that Plaintiff never worked in those plants. 

1.  A party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action.

2.  It is not grounds for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. 

3.  Discovery is to be allowed liberally, and all doubts should be resolved in favor of permitting discovery. 

4.  The burden of demonstrating non-discoverability lies upon the objector and not upon the party proffering the request for discovery. 

5.  Pa.R.C.P. Rule 1702 provides that one (1) or more members of a class may sue or be sued as representative parties on behalf of all members in a class action only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions or law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; (4) the representative parties fairly and adequately will assert and protect the interest of the class; and (5) a class action provides a fair and efficient method for adjudication of the controversy. 

6.  Discovery can be undertaken regarding the issues outlined in rule 1702. 

7.  Class certification discovery is a case specific inquiry. 

8.  Where the degree to which Defendant’s three (3) plants were or were not on the same page regarding payment of overtime will be a fact of significance when class certification is addressed, the extent to which the policies of each plant are similar or different is an issue that may be addressed during discovery. 

L.C.C.C.P. No. 2023-00836, Opinion by Bradford H. Charles, Judge, February 5, 2024.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

CIVIL ACTION – LAW

MARIO ESCANO VENTURA,                  :  No. 2023-00836

on behalf of himself and others       :

similarly situated,                             :

                        Plaintiff                                              :

                                                                                    :                                                                      

•                                     :

:

FARMERS PRIDE, INC, d/b/a                   : 

            Bell & Evans,                                     :

                        Defendant                                          :

ORDER OF COURT

AND NOW, this 5^th day of February, 2024, upon consideration of the parties’ dispute regarding scope of discovery, the Order of this Court is as follows:

1. Discovery will be broadly authorized to address all issues generally described in Pa.R.C.P. 1702.  Specifically, discovery will be permitted as it relates to the manufacturing facilities of FARMER’S PRIDE characterized by the parties as “Plant #1”, “Plant #2” and “Plant #3”.
2. Consistent with the above, the objections lodged by FARMER’S PRIDE to discovery requests of Plaintiff will be overruled. 
3. This Court will not undertake a specific analysis of each and every discovery question or request.  The Court expects all parties to be governed by the contents of this Opinion as it relates to relevance and scope of discovery.  If specific questions arise during the discovery process, the Court directs that said questions be communicated to the Judicial Assistant of the undersigned by emailing the issue to patricia.daubert@lebanoncountypa.gov.  This Court will thereafter schedule a conference with counsel.

BY THE COURT:

                                                                                                                                    J.

                                                            BRADFORD H. CHARLES

BHC/pmd

cc:        Marielle Macher, Esq. & DeJonna Bates, Esq.//Community Justice Project, 118 Locust Street, Harrisburg PA 17101

            Sarah R. Schalman-Bergen, Esq. & Kryston Connon, Esq.// 729 Boylston Street, Ste 2000, Boston MA 02116

Peter Winebrake, Esq. & Deirdre Aaron, Esq.// Winebrake & Santillo, LLC, 715 Twining Road, Ste 211, Dresher, PA 19025

Kenneth D. Kleinman, Esq.// 1500 Market Street, East Tower, Ste 1800, Philadelphia PA 19102

Mark D. Bradshaw, Esq.// 17North Second Street, Harrisburg PA 17101

Michael J. Mueller, Esq.// 2200 Pennsylvania Ave. NW, Washington DC 20037

Ryan A Glasgow, Esq. & Reilly C. Moore, Esq.// 951 East Byrd St., Richmond VA 23219

Court Administration

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

CIVIL ACTION – LAW

MARIO ESCANO VENTURA,                  :  No. 2023-00836

on behalf of himself and others       :

similarly situated,                             :

                        Plaintiff                                              :

                                                                                    :                                                                      

v.                                                         :

:

FARMERS PRIDE, INC, d/b/a                   : 

            Bell & Evans,                                     :

                        Defendant                                          :

                        Intervenor     

APPEARANCES

Marielle Macher, Esq.          For  Plaintiff

DeJonna Bates, Esq.

Deirdre Aaron, Esq.

Sarah R. Schalman-Bergen, Esq.

Krysten Connon, Esq.

Kenneth D. Kleinman, Esq.                         For  Defendant

Michael G. Greenfield, Esq.

Michael J. Mueller, Esq.

Ryan A. Glasgow, Esq.

Reilly C. Moore, Esq.

OPINION BY CHARLES, J.,  February 5, 2024

             What discovery will be required leading up to a class action certification dispute?  Predictably, Plaintiff in this Pennsylvania Minimum Wage Act (PMWA) litigation asks us to approve a broad scope of discovery, while Defendant Farmer’s Pride, Inc., d/b/a/ Bell & Evans, (hereafter “FARMER’S PRIDE”) asks us to restrict discovery based upon its somewhat circular argument that Plaintiff will not ultimately be able to establish grounds for a class certification.  Because the only issue now before us involves scope of discovery, and because Pennsylvania’s Discovery Rules are intentionally broad, we will err on the side of more rather than less disclosure. 

I.     FACTS and PROCEDURAL BACKGROUND

            Plaintiff filed his initial Complaint in Philadelphia County on February 23, 2023.  The Complaint sought to initiate a Class Action claim on behalf of several thousand employees who worked at FARMER’S PRIDE.  According to the Complaint, FARMER’S PRIDE violated the Pennsylvania Minimum Wage Act (PMWA), 43 P.S. § 333.101 et seq.  Plaintiff specifically alleged that FARMER’S PRIDE failed to pay overtime wages for time spent by employees undergoing mandatory COVID screening prior to commencement of work. 

            Preliminary Objections were filed in Philadelphia County.  The primary Preliminary Objection raised a challenge to venue.  During the course of the venue challenge, the parties agreed to transfer the above-referenced matter to Lebanon County. 

            We met with all counsel in August of 2023 to establish scheduling deadlines.  Pertinent to this discussion, we established a deadline for a Class Certification Request of January 1, 2025.  All parties contemplated that discovery would take place regarding Plaintiff’s Request for Class Certification.  This Court asked the parties to refer any discovery disputes directly so that said disputes would not have to proceed through the sometimes unwieldy and time-consuming Lebanon County Motions practice. 

            In November, the parties communicated with this Court regarding a discovery dispute that was described as “fundamental”.  We conducted a conference with counsel.  We quickly learned that the discovery dispute involved a question of relevancy that was indeed “fundamental” to the parties’ dispute.  We therefore established a Briefing Schedule, pursuant to which Briefs were filed in December of 2023 and January of 2024.

            We learned from the parties that FARMER’S PRIDE maintained three chicken processing plants during the time relevant to this dispute.  Plant #1 operated until November of 2021.  It employed 800 workers and was described as a “general processing” plant.  Plant #2 was located approximately one (1) mile from Plant #1.  Plant #2 employed 600 workers.  It was more focused upon the specific task of manufacturing chicken nuggets.  Plant #3 was a modern facility that was constructed recently and went on-line in December of 2021.  Plant #3 employed 1,000 employees.  It performed all functions that were previously performed by Plant #1 plus some additional operations. 

            Plaintiff sought discovery pertaining to all three of FARMER’S PRIDE’s plants.  FARMER’S PRIDE objected to providing information pertaining to Plant #2 and Plant #3 because Plaintiff never worked in those facilities.  According to Plaintiff, the same pay, timekeeping policies and COVID screening requirements applied at all three of FARMER’S PRIDE’s plants.  Plaintiff also alleged that the “team member handbook” that set forth requirements for timekeeping applied equally to all three of FARMER’S PRIDE’s plants. The issue of whether to permit discovery over all three of FARMER’S PRIDE’s plants is now before us for disposition. 

II.     LEGAL PRINCIPLES

1.  Scope of Discovery

            Civil discovery in Pennsylvania is governed by the Pennsylvania Rules of Civil Procedure.  See, Pa.R.C.P. 4001 et seq.  All Rules of Civil Procedure are to be “liberally applied to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable.” See, Pa.R.J.A. 109.  Moreover, the preamble to the Rules expresses a clear preference that procedure not be elevated over the substantive rights of the parties.  See, Pa.R.J.A. 104.

            As it relates to discovery, “A party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action…It is not grounds for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”  Pa.R.C.P. 4003.1.  In general, the purpose of discovery is to prevent surprise and unfairness, thereby enabling the parties to receive a fair trial regarding their substantive issues.  See, e.g., Carlino East Brandywine LP v. Brandywine Village Associates, 260 A.3d 179 (Pa. Super. 2021).

As it relates to the scope of discovery, this Court has stated:

“To the extent that litigation can be considered a test, it is an open book one.  As it relates to civil litigation, Pennsylvania abhors trial by ambush.  All parties are therefore granted liberal rights to pre-trial discovery.”

Maria Garcia, Administratrix of the Estate of B.G. v. Aman Soin and Kevin’s Towing & Repair, LLC., C.P. Leb.Co. No. 2019-00237 (Sept. 20, 2022).

            The scope of discovery authorized by Pennsylvania’s Discovery Rules has been described as “broader than the standard used at trial for the admission of evidence; the purpose of allowing a broader standard is to ensure that a party has in its possession all relevant and admissible evidence before the start of trial.” Commonwealth Ex Rel Pappert v. T.A.P. Pharmaceutical Products Inc., 904 A.2d 986, 994 (Pa. Cmwlth. 2006).  Stated differently, “Discovery is liberally allowed, and all doubts should be resolved in favor of permitting discovery.” Koken v. One Beacon Insurance Company, 911 A.2d 1021, 1025 (Pa. Cmwlth. 2006).  Although courts should be careful to disallow so-called “fishing expeditions” (Cooper v. Frankfurt Health System Inc., 960A.2d 134 (Pa. Super. 2008)), any doubts regarding relevancy “are to be resolved in favor of relevancy”. See, Koken, supra.  Moreover, the burden of demonstrating non-discoverability is on the objector and not on the party proffering the request for discovery.  Koken, supra at page 1025.^[1] 

2.  Issues Pertaining to Class Certification

            Pennsylvania’s Rules governing class action lawsuits are deliberately patterned after the Federal Rules of Evidence.  See, Pa.R.C.P. 1702; Fed.R.C.P. 23.^[2]  Because Pennsylvania’s Rules so closely mirror the ones that govern Federal proceedings, Pennsylvania Courts have treated Federal precedent as “instructive” as it relates to class action practice.  See, Janicik v. Prudential Insurance Company of America, 451 A.2d 451 (Pa. Super. 1982) at Note 3. (“Federal precedent is instructive in construing Pennsylvania’s class action rules.”) That said, Federal precedent is not “binding”.  See, Bell v. Beneficial Consumer Discount Company, 348 A.2d 734 (Pa. 1975).

            Pa.R.C.P. 1702 sets forth the general principles governing Pennsylvania class action practice.  That Rule states:

“Rule 1702. Prerequisites to a Class Action

One or more members of a class may sue or be sued as representative parties on behalf of all members in a Class Action only if:

• The Class is so numerous that joinder of all members is impracticable.
• There are questions of law or fact common to the Class;
• The claims or defenses of the representative parties are typical of the claims or defenses of the Class;
• The representative parties will fairly and adequately assert and protect the interest of the Class under the criteria set forth in Rule 1709; and
• A Class Action provides a fair and efficient method for adjudification of the controversy under the criteria set forth in Rule 1708.”

In their briefs, both parties recognize that discovery can be undertaken regarding the issues outlined in Rule 1702.  Plaintiff cites Boeynaemms v. LA Fitness International, 285 F.R.D. 331 (E.D. Pa. 2012) for the proposition that “discovery is necessary for the parties to advocate, and for the court to determine, whether a Class is appropriate.” Id at page 334.  FARMER’S PRIDE similarly recognizes that a plaintiff in a putative Class Action “may generally conduct discovery relevant to class certification.” Landau v. Viridian Energy Pa. LLC, 223 F.Supp. 3d 401, 422 (E.D. Pa. 2016).  From this initial point of consensus, the parties diverge dramatically in terms of what type of discovery should be permitted in this case. 

Plaintiff has cited cases where discovery has been permitted regarding policies and practices at multiple facilities.  Plaintiff cites Braun v. WalMart Stores Inc., 78 Pa. D&C 4^th 359 (Phila. County 2005) (affirmed at 24 A.3d 875 (Pa. Super. 2011) and 106 A.3d 656 (Pa. 2014), where the Philadelphia Court certified a Class of 150,000 members employed at 130 separate retail stores throughout the Commonwealth of Pennsylvania.  See also, Bell v. Lockheed Martin, 270 F.R.D. 186 (D.C.N.J. 2010); Williams v. Sweet Home Healthcare LLC, 325 F.R.D. 113 (E.D. Pa. 2018). In Bell, supra, the Court rejected an argument similar to the one proffered by FARMER’S PRIDE herein.  In rendering this decision, the District Court for New Jersey stated: “The scope of the claims in this case extends beyond the specifics of Plaintiff’s individual claims, and Plaintiff is therefore entitled under [Federal Rule of Civil Procedure] 26 to discovery concerning all business areas in support of her proposed Class claim.” Id at page 193.

In response, FARMER’S PRIDE has cited cases where courts have limited the scope of discovery in employment situations “to the location where the named plaintiffs worked unless plaintiffs come forth with some evidence that the violations alleged implicated company-wide policies that extend beyond the individual plaintiff’s location.” Aldapa v. Fowler Packaging Company Inc., 310 F.R.D. 583, 589 (E.D.Cal. 2015).  See also, Nguyen v. Baxter Healthcare Corp., 275 F.R.D. 503 (C.D.Cal. 2011). FARMER’S PRIDE also cites the ironically-named case of Charles v. Nationwide Mutual Insurance Company, 2010 WL7132173 (E.D.N.Y. 2010) for the proposition that a plaintiff cannot conduct company-wide discovery at the pre-certification stage of proceedings based solely upon “bare allegations” that putative Class members were subject to the same pay practices.

It is obvious from reading the briefs of both parties that Class certification discovery is a case-specific question.  From reading the cases cited by the parties, it is clear that the Class sought by Plaintiff that involves three chicken processing plants located within a few miles of one another is far less expansive than most others implicated in the cases referenced above.  Moreover, the parties acknowledged at oral argument that the same pay policies and practices were employed at all three plants operated by FARMER’S PRIDE.    

3.  Lugo v. Farmer’s Pride Inc., 737 F.Supp. 2d.291 (ED Pa. 2010)

            Farmer’s Pride relies heavily on a 2010 case in which it was a litigant.  In Lugo v. Farmer’s Pride Inc., 737 F.Supp. 2d.291 (ED Pa. 2010) (hereafter “LUGO”), current and former employees of Farmer’s Pride sued under the Federal Fair Labor Standards Act, claiming that Farmer’s Pride failed to fully compensate them for time they spent putting on and taking off sanitary protective clothing and equipment (“PPE”).  Apparently, employees of Farmer’s Pride were required to don PPE at the beginning of their shift and remove said items whenever they left the plant.  Plaintiffs allege that it took time for them to “don and doff” the PPE, but they were not compensated for such time.  As with this case, the plaintiffs in LUGO sought to certify all employees of Farmer’s Pride as a class. 

            It is apparent from reading LUGO that quite a few depositions were taken regarding Farmer’s Pride plant operations and compensation systems.  In addition, the Court for the Eastern District of Pennsylvania undertook a two-day factual hearing regarding class certification.  The goal of the Court was to determine whether plaintiffs satisfied their burden of establishing that members of its proposed class were “similarly situated”.  Very little was written in LUGO about differences in policy between Farmer’s Pride’s different plants.  However, Farmer’s Pride presented “testimony from multiple sources” that “the PPE required and chosen to be worn varies by department, position, and individual, and so too do the routines and amounts of time taken to perform these tasks.”  Id at page 314.  Moreover, the Court cited testimony from a plaintiff that “She did not know what donning and doffing routines and tasks were performed by hourly production workers on other shifts and in other departments.” Id at page 314.

            Ultimately, the Federal Court for the Eastern District of Pennsylvania chose to decertify plaintiff’s proposed class action.  However, the Court also stated that it “will not foreclose at this time the possibility of certifying some more precisely defined and smaller group…”  Id at page 317.

            Undoubtedly, LUGO will become more important once the parties are ready to fully litigate the question of whether a class should be certified.  However, at this point in the litigation, certain things are apparent to this Court from reading LUGO:

• Discovery was conducted in LUGO regarding a variety of Farmer’s Pride’s different departments.
• The court in LUGO did not recognize any distinction in company policy from department to department.  In fact, evidence was presented that a manager for Farmer’s Pride directed that “All departments are adhering to the donning and doffing times posted.”  Id at page 309.
• Considerable effort was undertaken at the decertification hearing to outline differences that were observed from department to department regarding PPE practices.

From the above, we discern that the degree to which Farmer’s Pride’s three plants were or were not on the same page regarding payment of overtime will be a fact of significance when class certification is addressed.  A fortiori, the extent to which the policies and practices at each of Farmer’s Pride’s three plants are similar or different should be an issue that can be addressed during discovery.

            As it relates to the issue now before this Court, we conclude that LUGO supports the broader view of discovery that Plaintiff is proposing.  At a later time, LUGO may well support the arguments of Farmer’s Pride.  Today, we hold that LUGO does not require us to limit discovery in the manner sought by Farmer’s Pride.

V.        CONCLUSION

             Our visceral impression of this dispute is that FARMER’S PRIDE is attempting to use a discovery objection in order to substantively prevail on the Class Certification issue.  Given the broad nature of discovery in Pennsylvania, given that we are loathe to resolve a significant substantive dispute via a discovery objection, and given that caselaw cited by the parties clearly indicates that a trial court has wide discretion in determining the scope of discovery, we will err on the side of permitting Plaintiff to fully investigate all facts that could potentially have relevance to the question of Class Certification.  In this case, that means that FARMER’S PRIDE will have to divulge information regarding all three of its manufacturing facilities. 

            We have not been asked to analyze each and every interrogatory and each and every request for production of documents, nor will we undertake that function today.  The parties have asked us to generally determine whether the scope of discovery should broadly include all three of FARMER’S PRIDE’s plants or whether it should be limited to only Plant #1.  We have resolved that issue via this Opinion.  We leave it to the parties’ capable counsel to apply the broad scope of discovery we have mandated on a question by question and interrogatory by interrogatory basis.  An Order to accomplish the above will be entered this date.^[3]

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[1] Koken also recognized that “If there is nothing in the record from which relevancy can be ascertained, this Court may place the burden of establishing relevancy upon the requesting party.” Id at page 1025.

[2] The official comment to Pa.R.C.P. 1702 does list topics for which Pennsylvania has “deliberately declined” to follow Federal precedent.  Most notably, Pennsylvania has declined to adopt a requirement of Federal law that class actions be “superior to other available methods for the fair and efficient adjudication of the controversy.”

[3] Of course, if the parties have a dispute over a specific question – and we certainly hope and expect that they will not – we would stand available to respond consistent with the parameters established by this Opinion.