Opinion
Nos. CV01-0507255S, CV01-0506475S
April 2, 2003
MEMORANDUM OF DECISION
In this consolidated court trial claiming unpaid wages pursuant to oral contracts of employment by two long-haul truckers, the court heard testimony on February 5 and 6, 2003. Each of the plaintiffs proceeded on three counts of their respective eight-count complaints and the other counts were abandoned. While the facts alleged are different for each plaintiff, in all other respects, the counts are the same. In each case, the first count is against Henry J. Lavette, III individually and against Custom Transportation, Inc., hereafter "Custom," the corporate defendant for breach of the contracts of employment. The third count claims non-payment of wages against Custom, pursuant to General Statutes § 31-72. The fourth count is against Henry F. Lavette, III personally, pursuant to General Statutes § 31-72 as the individual in control of the corporate defendant and responsible for all major decisions, including hiring and firing and the payment of wages.
For the reasons set forth in detail below, the court concludes that there was inadequate evidence to support the allegations in count one that the defendant Henry F. Lavette, III personally intended to hire either of the plaintiffs or that he personally was engaged in the business of moving and transporting personal property. The court dismisses count one in each complaint as to the individually named defendant, Henry F. Lavette, III.
The court enters judgment in favor of Andrew J. Probulis on Counts One and Three as to Custom Trucking, Inc. in the gross total amount of unpaid wages of $2,217.91, an additional $2,217.91 pursuant to General Statutes § 31-72 together with statutory interest at 10 percent per annum. While the court also finds that the allegations of count four have been proven as against the defendant, Henry F. Layette, III, the court concludes that all counts are for the same basic wrong, the withholding of wages for work performed. The court concludes that the remedial purposes of the statute are served with the total amount above awarded, for which the court finds Henry F. Lavette, III, jointly responsible with the corporate defendant. The court declines to award an additional sum over and above the amounts so found.
The court enters judgment in favor of Ronald DiMauro on Counts One and Three for total gross unpaid wages of $5,977.92 and reimbursements of $168.00. Further, the court awards an additional $5,977.92 pursuant to General Statutes § 31-72 together with statutory interest at 10 percent per annum, for the reasons outlined above and set forth in detail below. The court also finds that count four has been proven as against the defendant, Henry F. Lavette, III. Nonetheless, the court concludes that the remedial purposes of the statute are served with the total amount above awarded, for which the court finds Henry F. Lavette, III, jointly responsible with the corporate defendant. The court declines to award an additional sum over and above the amounts so found.
The court continues the trial for evidence concerning an award of reasonable attorneys fees pursuant to General Statutes § 31-72. The hearing is scheduled for 9:30 a.m. on Tuesday, April 22, 2003.
I FACTS
A. COUNTS ONE, THREE and FOUR as to ANDREW J. PROBULIS
Andrew Probulis testified that, after some negotiations in early 2000, the defendant Henry Lavette hired him as an employee of Custom to perform long distance truck driving. Mr. Probulis had worked for Mr. Lavette in connection with two other corporations about five years earlier in the same capacity. As to all other facts concerning the wages the plaintiff was to be paid as well as the various other aspects of the compensation to be paid to him, the principals disagree vehemently. Of the two, the Plaintiff, Andrew Probulis and the Defendant, Henry Lavette, the court finds the plaintiff, Andrew Probulis, to be credible and cannot credit much of the defendant's testimony. The court's conclusions are based on the testimony, the demeanor of the parties in court, the documentation of the payment made to Mr. Probulis including the various tax forms and corrected forms provided to him and inferences drawn from all of the evidence presented.
The corrected W-2 form, Plaintiff's Exhibit 7, shows no compensation originally reported; neither the $295.00 payment made nor any other credits or debits that Custom Trucking, Inc. made as to the amount of the payment. The corrected box shows payment of gross wages of $1,365.28 and various deductions, the amounts of which were also not explained by defendants. The court also notes that there is no question that, even at the time of trial, Mr. Lavette remained very angry with the plaintiff and his claims.
The court finds there existed an employment contract between Andrew Probulis and Mr. Lavette on behalf of Custom Trucking, Inc., which provided for the payment of $.41 cents per mile for long haul truck driving. Further, the court finds that Andrew Probulis was to be paid $10 for each pick-up and delivery as well as $75 a day for down-time. The court finds credible that the mileage for the trip from the defendant corporation's yard in Plainville to Providence, Rhode Island to Denver, Colorado to Laredo, Texas, back to Providence, Rhode Island and then to the yard in Plainville was a total of 5,251 miles as computed by Mr. Probulis from a published Rand McNally Map for a total of $2,152.91. The court further credits the plaintiff with three deliveries and three pick-ups for a total additional $60.00, as well as four days of down-time in Denver while waiting for the truck to be repaired for an additional $300. The gross total amount, which should have been paid the plaintiff, the court finds to be $2,512.91. Mr. Probulis testified and the court credits his testimony that the total check he received for the trip was $295.00, for which no explanation was ever provided to him. The amount of wages thus due from the defendant, Custom Trucking, to the plaintiff, Andrew Probulis, for the contract of employment is $2,217.91. The court enters judgment on Count One as to Defendant Custom Trucking, Inc. in that amount.
Mr. Lavette claimed that mileage was to be computed through a computer program called "Prophesy" but did not supply his mileage calculations or why the calculations of the plaintiff were inaccurate and to what extent. The court finds, contrary to defendant's claims, that plaintiff may testify as to how he calculated the mileage without producing the actual Rand McNally map from which he made his calculations. This is adequate proof under the circumstances, which remained unchallenged as to the number of miles traveled.
The court also finds credible his testimony, that although the truck and trailer were owned by Custom Trucking, Mr. Lavette blamed the plaintiff for its breakdown and refused therefore to pay for the down-time while replacement repair parts had to be flown to Denver to complete the truck repairs. The court credits Andrew Probulis' testimony that to the extent wages were due him, Mr. Lavette improperly deducted amounts for which Custom was responsible.
As to Count Three, the court makes the same findings set forth in detail above, having concluded that there was a contract of employment between the plaintiff Andrew J. Probulis and the Defendant, Custom. The total amount due for wages from Custom to Andrew J. Probulis is $2,127.91. The court further finds that the corporate defendant's failure to pay the wages due was arbitrary and unreasonable. The actions taken by its president, Henry Lavette, were motivated by personal animus, the court finds. The court doubles this amount, awarding an additional $2,127.91. Doubling damages for unpaid wages is in keeping with "the remedial purpose of the wage laws." Petronella v. Venture Partners, Ltd., 60 Conn. App. 205, 215, 758 A.2d 869, cert. granted, 255 Conn. 909, 763 A.2d 1936 (2000).
Count Four seeks to impose personal liability upon Henry F. Lavette pursuant to General Statutes § 31-72. The court finds that Custom Trucking, Inc. was a closely held family corporation with two shareholders, the defendant Henry F. Lavette and his wife. His wife did the bookkeeping for the business and Mr. Lavette testified he was the president and operations manager. He hired and fired all employees of the company and "did everything," he testified. The court concludes that in this small, closely held family corporation, Henry Lavette possessed the ultimate authority and control, even though his wife wrote out all the checks.
In Butler v. Hartford Technical Institute, Inc., 243 Conn. 454, 462, 704 A.2d 222 (1997), the Supreme Court held that: "when placed in its statutory context, the term employer as used in § 31-72 encompasses an individual who possesses the ultimate authority and control within a corporate employer to set the hours of employment and pay wages and therefore is the specific or exclusive cause of improperly failing to do so." In that case, in a civil suit brought for overtime pay by a former employee, the court imposed liability upon the corporation involved as well as personal liability on the individual operating the corporation, without the necessity of resorting to the legal doctrine of "piercing the corporate veil." This case presents similar circumstances. The mere fact that Pamela Layette wrote out the payroll checks and that an outside accountant assisted the two shareholders in the preparation of all required tax filings with the state and the federal government does not change the nature of the control Mr. Lavette exercised.
Having determined that the plaintiff is due double the unpaid amount of the wages from the corporation together with statutory interest at 10 percent per annum, the court concludes that the defendant Henry F. Lavette is jointly and severely liable with the corporation for this amount. The court does not believe, under the facts of this case, that it is just or equitable to award this sum again and so quadruple the total recovery due.
B. COUNTS ONE, THREE and FOUR as to RONALD DIMAURO
The evidence concerning Ronald DiMauro's claims is lengthier and more complex as he remained working for Custom and Henry Lavette for more than one road trip in the early months of 2000. Like his uncle, Andrew Probulis, he began to work for Custom in early 2000. The parties agree that his first trip undertaken was for $.28 cents per mile. In addition, they agree that because Ronald DiMauro did not own his own truck, he was an employee of Custom. Every other term and condition of the employment contract is again vehemently disputed. As in the case of Mr. Probulis, the contract of employment was never reduced to writing, nor was there any evidence that the terms were generally posted in the office of Custom.
Connecticut General Statutes § 31-71f. Employer to furnish employee certain information. "Each employer shall: (1) Advise his employees in writing, at the time of hiring, of the rate of remuneration, hours of employment and wage payment schedules, and (2) make available to his employees, either in writing or through a posted notice maintained in a place accessible to his employees, any employment practices and policies or change therein with regard to wages, vacation pay, sick leave, health and welfare benefits and comparable matters."
All agree it was not Ronald DiMauro's job to load or unload the trailer of the tractor-trailer he was driving. Ronald claims he was to be paid an additional $10 for each pick-up and delivery, since this could take time, time he could otherwise have used driving. As to how the miles were to be calculated, Mr. DiMauro understood the contract was for elapsed mileage, that is odometer miles. Mr. Layette claims that the miles were to be calculated according to the "Prophesy" computer program generally used in the trucking business.
While there was much disputed testimony as to whether or not the trucks driven by Mr. DiMauro had a "trip switch" on the trip odometer or even whether the trucks had a trip odometer at all, there is only the directly contradictory testimony of the two principals concerning how the elapsed miles were to be calculated.
For his first trip, Mr. DiMauro drove a total of 4,796 odometer miles from Plainville, Connecticut to Lenexa, Kansas and from there to Englewood, Colorado, then to Kansas City, Missouri to Attawa, Kansas to Front Royal, Virginia, to Afton, Virginia and then to Brockton, Massachusetts. From there he went back to Cranston, Rhode Island and then back to the yard in Plainville, Connecticut. No mileage was charged for the trip from his house to the yard in Plainville, either to start or end this trip. He received a certain amount of "run-out" money, that is advanced to pay for the Custom truck expenses for gas, and tolls. He received $1,100 and spent $1,124.03, according to the trip sheet he supplied to Custom. Had he been paid in accordance with the odometer miles, the gross pay would have been $1,342.88, plus 17 pick-up and deliveries for another $170.00. The gross total paid him computed on 4500 "Prophesy" miles was $1,260, with no reimbursement of the $24.03 which he advanced on behalf of the company nor the "per stop" amount of $170.
See Defendants' exhibit D.
When he returned from this two week trip, it is his claim that Mr. Lavette told him "you are the man" and told him that his rate of pay would increase to $.38 a mile. Mr. DiMauro concluded from this that he was Custom's principal driver, as indeed the records reflect that he was during the next three months. He was very busy during the months of February and March and his wife came in to the office to pick up his paychecks regularly.
It was during this time that problems began as the payroll checks, in Mr. DiMauro's opinion, were significantly less than was due him under the new contract of employment. He never received a satisfactory explanation from Mr. Lavette, although he repeatedly stated either he or his wife questioned the checks. It is the testimony of both Mr. DiMauro and his wife that Mr. Lavette stated he would "catch up" on the sums so due later. It is admitted that the "Prophesy" mileage calculations attached to the corporate records were never supplied to the plaintiff, nor was a detailed record given him of certain expenses which Mr. Lavette disallowed on behalf of the corporation.
Mr. Lavette adamantly denies that he ever offered to pay Mr. DiMauro anything more than the $.28 cents a mile, which he testified was the customary rate for all drivers in his company. He claims that his testimony and that of another driver, Jesus Gomez, amply demonstrate the terms of payment. The court does not agree. Jesus Gomez did not know directly what Mr. DiMauro was to be paid. Upon cross-examination, Mr. Gomez revealed that his recollection of any of the events during the time in question was so faulty as to be of no assistance to the trier of fact. Given the manner in which the employment relationship between the parties ended and the court's assessment of Mr. Lavette's credibility, the court finds from all of the testimony that there was an employment agreement initially for $.28 cents a mile and, after the first trip, for $.38 a mile. Further, the court concludes that Mr. DiMauro's method of mileage calculation was the agreed-upon method. The court also finds that there was a $10 per loading and unloading fee, which was never paid.
Mr. Lavette also makes much of the discrepancies in Mr. DiMauro's unemployment compensation filings, which the court concludes do not support Mr. Lavette's claims.
Mr. DiMauro drove additional trips for Custom, as directed by Mr. Lavette, after completing the first trip at $.28 cents a mile. The court has reviewed in detail Plaintiff's Exhibits 1-4 for the elapsed mileage, the trip reports Mr. DiMauro filed the payroll checks and other documentation shown in the defendant's exhibits. The court finds from that evidence that the total amounts due are an additional $3,467.92 for unpaid mileage. The court further finds that there were a total of 251 pick-up and delivery stops for an additional $2,510. There were additional amounts unpaid for fuel of $138.00, which Mr. Lavette had disallowed. Unpaid tolls add another $30 to the total. The only amount the court does not award is the amount claimed to be due for a one time arrangement for a Stop and Shop location in Massachusetts as Mr. DiMauro agreed the arrangement made was for the extra funds to be passed on if collected by Mr. Lavette. There is no credible evidence that they were ever so collected. The total unpaid wages is thus $5,977.92 and reimbursements of $168.00.
This was purchased from a concern, which was, among other things, a fish hatchery. While Mr. DiMauro supplied the receipt for the purchase of gas, Mr. Lavette questioned the expense and did not pay it. The court finds Mr. DiMauro's testimony credible in this dispute.
The end of the relationship between Mr. DiMaura and Mr. Lavette was acrimonious and the hostility between them was apparent even at trial, just under three years later. These events surround Mr. DiMauro's claim for his last paycheck, which he states was never paid. Mr. DiMauro in mid-April had stopped by the office to get an advance of $700 for expenses for his next trip. When he arrived at his own home, he found that the brakes on the truck were not functional. He called Mr. Lavette and told him he was not going to drive the truck in its condition. On Saturday evening, apparently other trucks at Mr. Lavette's business yard were vandalized for which Mr. Lavette, without evidence, blames Mr. DiMauro and Mr. Probulis. Mr. Lavette apparently to this day believes that Mr. DiMauro deliberately sabotaged the brakes on the truck he had driven home for an early start the following Monday.
The court was provided with a truck part and testimony as to how the damage, if any, may have occurred. The court concludes that there is no evidence Mr. DiMauro did anything to the truck.
Mr. Lavette called Mr. DiMauro's home innumerable times that Sunday to demand the return of the $700 advance. He finally told Ronald DiMauro that he had made a complaint to the police, at which point Mr. DiMauro returned the cash to him. Mr. Lavette, in contradistinction, testified that he told Mr. DiMauro he could keep the $700 as his final payment. Again, the court cannot credit his testimony and finds that wages remain due for that last week as were computed above by the per mile calculations.
Having found that there was a contract of employment and determined its terms, the court enters judgment on Count One as to Defendant Custom Trucking, Inc. in the amount of $5,977.92 for unpaid wages as well as reimbursements in the amount of $168.00.
As to Count Three, the court makes the same findings set forth in detail above, having concluded that there was a contract of employment between the parties. The total amount due for wages from Custom to Ronald DiMauro is $5,977.92. The court further finds that the corporate defendant, through the actions of its principal, Henry F. Lavette, were arbitrary and unreasonable in its failure to pay the wages due. The court doubles this amount, awarding an additional $5,977.92. Doubling damages for unpaid wages is in keeping with "the remedial purpose of the wage laws." Petronella v. Venture Partners, Ltd., 60 Conn. App. 205, 215, 758 A.2d 869, cert. granted, 255 Conn. 909, 763 A.2d 1936 (2000).
Count Four seeks to impose personal liability upon Henry F. Lavette pursuant to General Statutes § 31-72. The court reiterates the findings made in the count against Andrew Probulis and finds that it is not equitable to impose an additional award under this count, even though it too has been demonstrated by a preponderance of the evidence. The court finds that Henry F. Lavette, III is jointly responsible pursuant to General Statutes § 31-72 for the unpaid wages above determined. It is so ordered.
The matter is continued for determination of counsel fees.
BY THE COURT
BARBARA M. QUINN, Judge