Mangiofico v. McKelvey

Full title: FRANCES MANGIOFICO ET AL. v. JOHN McKELVEY ET AL

Court: Connecticut Superior Court Judicial District of New Britain at New Britain

Date published: Apr 18, 2005

2005 Ct. Sup. 7096 (Conn. Super. Ct. 2005)

Opinion

No. CV 04-4000609 S

April 18, 2005

MOTION TO STRIKE #124

BURKE, JUDGE.

FACTS

The plaintiffs, Frances Mangiofico, Joan Turgeon, and Joanne Burnett, brought this action for unpaid wages, pursuant to General Statutes § 31-72, against the defendants, John McKelvey, Lawrence Davidson, Edwin Davidson, Robert Finkelstein, Stanley Silver, David Renter and LLR Partners, Inc. to recover wages, severance payments and bonuses allegedly promised to them. The plaintiffs were hourly employees at the distribution warehouse of the New Weathervane Retail Corporation ("the corporation") in Berlin, Connecticut. At all relevant times, the defendant, Robert Finkelstein was the Vice-President of Planning and Allocation for the corporation.

The plaintiffs allege the following facts in their complaint. In January 2004, Finkelstein notified the plaintiffs, in writing, of the planned closure of the distribution warehouse and allegedly promised the plaintiffs that they could earn specific bonuses and severance packages if they continued their employment at the plant through May 1, 2004 or June 1, 2004. On June 2, 2004, the corporation filed a petition for bankruptcy relief in the United States Bankruptcy Court for the District of Delaware. The plaintiffs were terminated from employment on June 4, 2004. The plaintiffs were still owed wages and bonuses when they were terminated, and the plaintiffs allege that pursuant to General Statutes § 31-71c(b), they were entitled to be paid their wages in full no later than the business day succeeding the date of such discharge. On the date of the bankruptcy filing, the corporation moved to authorize the payment of wages to the employees for wages earned prior to the filing of the petition. On June 8, 2004, the United States Bankruptcy Court entered an order authorizing the payment of wages earned prior to the date of the filing of the bankruptcy petition. Despite the authorization, the plaintiffs have not been paid.

On September 7, 2004, the plaintiffs filed, pursuant to General Statutes § 31-71c(b), their final, one-count amended complaint to recover wages, bonuses and severance pay, against Finkelstein and the other defendants,¹ claiming unpaid wages. The plaintiffs allege that Finkelstein was the person authorized to induce the plaintiffs to work through June 1, 2004 and that he is the individual in control of the payment of compensation to the plaintiffs for services they rendered in reliance upon his promise.

1 The defendants, John McKelvey, Lawrence Davidson and Edwin Davidson are no longer parties to this action.

On November 29, 2004, Finkelstein filed a "Motion to Dismiss and/or Strike" the complaint,² claiming that the court lacks personal jurisdiction over Finkelstein for improper service and that the plaintiffs fail to state a cause of action under General Statutes § 31-7c(b) because the relevant bonus and severance payments do not constitute wages as defined in General Statutes § 31-722.³ On December 8, 2004, the plaintiffs filed a memorandum of law in opposition to Finkelstein's motion to strike.

2 Accompanied by a supporting memorandum of law.

3 At oral argument, Finkelstein withdrew his motion to dismiss. Therefore, Finkelstein's motion to strike count one of the complaint is the only issue before the court at this time.

DISCUSSION

"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "For the purpose of determining whether . . . [a] count is legally sufficient, the motion to strike admits all facts well pleaded." (Internal quotation marks omitted.) Clohessy v. Bachelor, 237 Conn. 31, 33 n. 4. 675 A.2d 852 (1996). In ruling on a motion to strike the court should, "take the facts to be those alleged in the complaint . . . [the court must] construe the complaint in the manner most favorably to sustaining its legal sufficiency." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498. "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004).

Finkelstein moves to strike the plaintiffs' amended complaint on the ground that the plaintiffs fail to state a claim upon which relief may be granted. Finkelstein asserts that § 31-72 does not entitle the plaintiffs to the bonuses and severance pay allegedly promised to them because bonuses and severance pay do not fall within the definition of wages as described in § 31-71a(3).⁴ Finkelstein further argues that bonuses and severance are not monies offered as incentive for the plaintiffs to perform any additional work or task. The plaintiffs, however, counter that because Finkelstein promised bonuses and severance to induce the plaintiffs to remain working at the plant for additional amounts of time, the money was offered as incentive for the plaintiffs to perform additional tasks and therefore constitutes wages.⁵

4 General Statutes § 31-71a(3) states in relevant part: "`[w]ages' means compensation for labor or services rendered by an employee, whether the amount is determined on time, task, piece, commission or other basis of calculation . . ."

5 The plaintiffs allege that the additional task is that they agreed to remain working at the plant for an extended period of time.

Section 31-72 provides for a civil action to collect wages. "When any employer fails to pay an employee wages in accordance with the provisions of section 31-71a . . . such employee . . . may recover, in a civil action, twice the full amount of such wages, with costs and such reasonable attorneys fees as may be allowed by the court . . ." General Statutes § 31-72. Section 31-71a(3) defines wages as, "compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis of calculation . . ."

The appellate courts of this state have not yet considered whether the term "wages" in § 31-72 includes severance pay and bonus payments. Fulco v. Norwich Roman Catholic Diocesan Corp., 27 Conn.App. 800, 609 A.2d 1034, cert. granted, 233 Conn. 917, 614 A.2d 821 (1992), appeal dismissed, 226 Conn. 404, 627 A.2d 931 (1993), however, is instructive to the analysis of whether severance pay and bonuses should be considered wages under § 31-72. In Fulco, the court focused its analysis on the rules of statutory construction. "The principal canon of statutory construction is that where the statutory language is clear and unambiguous, we interpret the statute to mean what it says." Fulco v. Norwich Roman Catholic Diocesan Corp., supra, 804. The court therein read the definition of "wages" in § 31-71a(3) literally, and determined that vacation benefits are not included within the definition of wages and that the plaintiff, therefore, could not bring a claim for unpaid wages under § 31-72. Id. In addition, the Fulco court noted that, "it is significant that the legislature chose not to amend the statutory definition of wages set forth in [§] 31-71a(3). Instead, it altered the text of [§] 31-72, which delineates the breadth of statutory liability by authorizing double damages . . ." Id., 804-05. The court concluded that vacation pay does not constitute wages for the purposes of § 31-72. Id., 805.

In Morales v. Pentec, Inc., 57 Conn.App. 419, 749 A.2d 47 (2000), the Appellate Court once again addressed the issue of defining wages pursuant to § 31-71a(3). Therein, the plaintiffs claimed that pension and medical benefits should be considered wages for the purposes of a § 31-72 cause of action. Id. The Morales court, however, determined that "[i]t is the duty of the court to interpret statutes as they are written . . . and not by construction read into statutes provisions which are not clearly stated." (Internal quotation marks omitted.) Morales v. Pentec, Inc., supra, 429. In relying on statutory interpretation and legislative intent as outlined in Fulco, the Morales court determined that pension and medical benefits may not be considered wages for the purposes of § 31-72. Id. 429-30.⁶

6 In addition, superior courts in the state of Connecticut have found that a plaintiff may not sue under § 31-72 for "equity interests'" promised to them as such interests do not constitute wages as defined by § 31-71a(3). NOFS v. Gemini Network, Inc., Superior Court, judicial district of Hartford, Docket No. CV 02 0818599 (February 4, 2003, Cohn, J.).

Severance Pay

In applying the above reasoning to the plaintiffs' claim in the present case, it appears that the severance pay promised to the plaintiffs does not constitute wages for the purposes of § 31-72. See Fontaine v. Colt's Mfg. Co., Superior Court, judicial district of Hartford, Docket No. CV 99 0594929 (March 20, 2002, Freed, J.) aff'd 74 Conn.App. 730, 814 A2d 433 (2003). Although the appellate courts in Connecticut have never squarely addressed the issue of severance pay as wages in this context, in McGowan v. Administrator, 153 Conn. 691, 220 A.2d 284 (1966), the Connecticut Supreme Court determined that for the purposes of General Statutes § 31-222(b),⁷ since "wages cease when employment does, severance pay cannot be considered wages." McCowan v. Administrator, supra, 693.

7 A statute defining wages for the purposes of unemployment compensation in Connecticut.

In the present case, the promised severance payments were not compensation for services rendered as they were to commence upon the completion of the plaintiffs' work at the corporation. The United States District Court for the District of Connecticut explained that, "[t]he statute, which provides an extraordinary remedy, is concerned with timely payment of wages and was enacted to discourage unilateral withholding of wages by an employer. The `severance allowance' in issue was a bonus above and beyond the regular salary drawn . . . until [their] termination." ABC Office Equipment, Inc. v. Royal Consumer Business Products, 721 F.Sup. 1557, 1559 (D.Conn. 1989). Since the severance pay is not "compensation for labor or services rendered by an employee . . ." severance pay does not constitute wages for the purposes of General Statutes § 31-72. Wuerth v. Schott Electronics, Inc., Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 91 036406 (March 13, 1992, Flynn, J.) ( 7 C.S.C.R. 456, 457) ( 6 Conn. L. Rptr. 167).

Bonus Pay

The majority of superior courts in this state, however, have determined that unlike severance pay, vacation pay, and medical and pension benefits, under certain circumstances, bonus payments may be considered "wages" for the purposes of General Statutes § 31-72.

The word "bonus," as commonly used, may not rise to the level of wages as defined by § 31-71a(3). "The purpose of § 31-72, however, is remedial, and therefore it must be given a liberal construction in favor of those whom the legislature intended to benefit." Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 696, 651 A.2d 1286 (1995). Most lower courts in Connecticut have found that a bonus may be considered wages as defined by § 31-71a(3) where "the plaintiff has alleged a connection between . . . additional work performed and the promise of a bonus . . ." Wuerth v. Schott Electronics, supra, 7 C.S.C.R. 457; See also Miller v. O.S. Shipping Trading Corp., Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 01 0166810 (November 7, 2001, McWeeny, J.).⁸ "[W]hen a bonus is earned in exchange for additional services, it qualifie[s] as wages under . . . § 31-71a." Mislow v. Continuing Care of South Windsor, Inc., Superior Court, judicial district of New Haven, Docket No. CV 00 0443654 (April 2, 2001, Jones, J.).

8 Miller v. O.S. Shipping Trading Corp., supra, states that "[t]he plaintiff sufficiently alleges a claim for wages in the form of an annual bonus and . . . the bonus . . . [was] directly tied to the plaintiff's performance of such services for the [company]," and, that therefore, the motion to strike the claim for an unpaid bonus as unpaid wages pursuant to General Statutes § 31-72 should be denied.

The plaintiffs in the present case have alleged a connection between additional services performed,⁹ and the promised bonus. Accordingly, viewing the complaint in the light most favorable to the plaintiff, the alleged unpaid bonuses could constitute wages under § 31-71a(3). Therefore, the motion to strike the complaint with respect to the unpaid bonuses should be denied. See Cook v. Alexander, 40 Conn.Sup. 246, 248, 488 A.2d 1295 (1985).

9 The plaintiffs allege that the bonus was offered as incentive for the plaintiffs to remain working at the corporation for a significant period of time despite learning that the factory was going to close.

CONCLUSION

For the foregoing reasons, the court grants defendant Finkelstein's motion to strike the plaintiffs' complaint with respect to the alleged unpaid severance pay, but denies his motion to strike with respect to the alleged unpaid bonuses.

BURKE, J.