[J-43A&B-2013][M.O. – Per Curiam] 

IN THE SUPREME COURT OF PENNSYLVANIA 

EASTERN DISTRICT 

MICHELLE BRAUN, ON BEHALF OF 

HERSELF AND ALL OTHERS SIMILARLY 

SITUATED, 

Appellee 

v. 

WAL-MART STORES, INC., A 

DELAWARE CORPORATION, AND 

SAM'S CLUB, AN OPERATING 

SEGMENT OF WAL-MART STORES, 

INC., 

Appellants 

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No. 32 EAP 2012 

Appeal from the Judgment of Superior 

Court, entered on June 10, 2011, at No. 

3373 EDA 2007, affirming in part and 

reversing in part the Judgment of the 

Court of Common Pleas of Philadelphia 

County, Civil Division, entered 

November 14, 2007 at No. 3127, March 

Term 2002 

ARGUED: May 8, 2013 

DOLORES HUMMEL, ON BEHALF OF 

HERSELF AND ALL OTHERS SIMILARLY 

SITUATED, 

Appellees 

v. 

WAL-MART STORES, INC., A 

DELAWARE CORPORATION, AND 

SAM'S CLUB, AN OPERATING 

SEGMENT OF WAL-MART STORES, 

INC., 

Appellants 

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No. 33 EAP 2012 

Appeal from the Judgment of Superior 

Court, entered on June 10, 2011, at No. 

3376 EDA 2007, affirming in part and 

reversing in part the Judgment of the 

Court of Common Pleas of Philadelphia 

County, Civil Division, entered 

November 14, 2007 at No. 3757, 

August Term 2004 

ARGUED: May 8, 2013 
[J-43A&B-2013][M.O. – Per Curiam] - 2 

DISSENTING OPINION 

MR. JUSTICE SAYLOR DECIDED: December 15, 2014 

I agree with Appellants that the trial court implemented, and the intermediate 

court approved, a severely lax approach to the application of governing substantive law 

in the issuance and sustainment of an almost two-hundred-million-dollar verdict based 

on proof which was insufficient to establish liability and damages across a 187,000-

member class. Although I take no issue with the majority’s observation that the burden 

of proof may be relaxed to some degree in wage-and-hour cases, see Majority Opinion, 

slip op. at 17, the latitude extended in this case is of an untenable magnitude. Here, the 

Appellee class was permitted to effectively project the anecdotal experience of each of 

six testifying class members upon thirty-thousand other members of the class at large, 

to extrapolate abstract data concerning missed and mistimed “swipes” from 16 

Pennsylvania stores to 139 others, to overlay discrete data taken from several years’ 

experience across a distinct four-year period, and to attribute a single cause to missed 

and mistimed swipes, all despite indisputable variations across store locations, 

management personnel, time, and other circumstances.1 The sorts of gross 

generalizations and assumptions which permitted the simple averaging and 

extrapolations offered up by Appellees’ expert witnesses to stand in support of the 

conclusion that some tens of millions of missed or mistimed swipes reflected rest breaks 

foregone on account of payroll pressure exerted from the Wal-Mart boardroom would 

 

1

 For example, presumably as a result of Wal-Mart compliance initiatives, the numbers 

of missed swipes for meal breaks dropped dramatically over the years. See N.T., Sept. 

19, 2006 (afternoon), at 61-62. Nevertheless, in extrapolating rest-break data taken 

from 1998 through 2001 into the 2002 through 2006 timeframe, Appellees’ expert 

witness took the liberty of assuming that none of Wal-Mart’s compliance measures were 

of any effect whatsoever relative to the rest breaks. See id. at 67. 
[J-43A&B-2013][M.O. – Per Curiam] - 3 

never hold up to peer review as a matter of science. Therefore, it is very troublesome 

for the same to be relied upon in courts of law as the essential support for a large scale 

class-action verdict. 

Certainly, I am sympathetic to efforts to vindicate the interests of workers with 

modest claims who may lack the ability and incentive to pursue remedies on an 

individualized basis. Nevertheless, I remain of the view that the kinds of alterations to 

substantive law reflected in the majority’s relaxed approach to class-action litigation 

should be the subject of overt consideration in the political branch and should not occur 

as a byproduct of the application of a mere procedural device by the judiciary. Accord 

Samuel-Bassett v. Kia Motors Am., Inc., 613 Pa. 371, 466-77, 34 A.3d 1, 58-65 (2011) 

(Saylor, J., dissenting).2 I maintain this position, in particular, in light of the broad-scale 

social effects likely to attend these sorts of modifications. In this regard, and more 

generally, I also incorporate by reference the remarks set forth in my dissent in the Kia 

case. See id. 

 

2

 The ability of the General Assembly to alter the class action landscape via legislation 

is, of course, subject to constitutional limitations such as the due process constraints 

raised by Appellants.