Mershman v. Enertech Corp.Mershman v. Enertech Corp.
INTRODUCTION
{¶ 1} This matter comes on for consideration by the court as the result of cross-motions for summary judgment filed by the parties. After careful consideration of the parties’ motions for summary judgment, supporting evidentiary materials, and authority supplied by the parties, the court finds as follows.
STATEMENT OF THE FACTS
{¶ 2} This case arises out of a dispute between the plaintiff, Tim Mershman (“Mershman”), a resident of Ottawa, Ohio, and the defendant, Enertech Corporation (“Enertech”), a contractor as defined by
{¶ 4} The plaintiff filed a complaint with the Ohio Department of Commerce, Division of Labor and Worker Safety, Wage and Hour Bureau (“bureau”), claiming that he had not been paid the prevailing rate of wages. The bureau undertook an investigation and determined that the defendant had underpaid the plaintiff.
{¶ 5} On August 28, 2000, the bureau issued letters to both the plaintiff and the defendant announcing its determination. In the letter to the defendant, the bureau stated that Enertech violated the prevailing wage law and had thirty days to submit payment of the wage underpayment. In the letter to the plaintiff, the bureau advised Mershman of his rights under the determination and specifically that he had sixty days in which to file suit against the defendant if he so chose.
{¶ 6} On September 22, 2000, the plaintiff filed suit to recover wages due him. On September 25, 2000, the defendant mailed the underpayment checks, which were received by the bureau on September 29, 2000.
CLAIMS
{¶ 7}' The parties have filed motions for summary judgment as to the following issues.
Enertech Corporation
{¶ 8} The defendant moves for summary judgment on the issue that (1) the plaintiffs claim is moot and (2) pursuant to
Tim Mershman
{¶ 9} The plaintiff moves for summary judgment on the issue and that pursuant to
STANDARD OF REVIEW
{¶ 10}
{¶ 12} In addition, subsection (C) also states:
{¶ 18} “Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule.”
{¶ 14}
{¶ 15} “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated herein.”
{¶ 16} In addition, the Supreme Court of Ohio stated in Osborne v. Lyles (1992),
{¶ 17} “
{¶ 18} The party moving for summary judgment bears the burden of showing that no genuine issue exists as to any material fact. Harless v. Willis Day Warehousing Co. (1978),
{¶ 19} As is set forth in Wing v. Anchor Media, Ltd. of Texas (1991),
{¶ 20} “A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial.”
{¶ 21}
{¶ 22} In Dresher v. Burt (1996),
CONCLUSIONS OF LAW
{¶ 23} All five issues under review by this court turn upon the interpretation and application of R.C. Chapter 4115. Sufficient case law exists that attests to the ambiguity of this chapter of the Revised Code. See Rausch v. Farrington Constr., Inc. (1988),
{¶ 24} Both parties have stated that the purpose of the prevailing wage statute “ ‘[i]s to level the playing field’ and obtain from the employer the unpaid wages for the employee involved.” (Defendant’s Supplemental Memorandum in Support of Motion for Summary Judgment, at 3.) “[T]he primary purpose of the prevailing wage law is to support the integrity of the collective bargaining process by preventing the undercutting of employee wages in the private sector.” Harris v. Van Hoose,
{¶ 26} The five claims raised emanate from each party’s interpretation of how
{¶ 27} The defendant does not qualify as an “interest party” under any of the definitions provided in the Revised Code. However,
{¶ 28} When the administrator determines that a violation has occurred, both employer and employee are notified by correspondence. The defendant relies heavily upon the administrator’s instructions in the letter of determination to support its position. According to
{¶ 29} The difficulty here is that a second letter was sent to the plaintiff. In that letter, the administrator notified the plaintiff that he had sixty days in which to file a suit in order to enforce the bureau’s determination. Nothing in the letter suggested or mandated that the plaintiff could not commence his lawsuit until the expiration of the thirty-day deadline that the administrator had set for payment of restitution. Further, there is no administrative rule or statutory provision that would support this interpretation of the process. “The language of the letter[s] expressly advised the plaintiffs that following an investigation, by the department, a determination had been made that the plaintiffs were due back wages from [employer]. Therefore, as contemplated by
{¶ 30} “[A]ny employee upon any public improvement, except an employee to whom * * * restitution is made pursuant to division (C) of
{¶ 31} Accordingly, a strict construction of the statute would make it appear as though the plaintiff does not have a cause of action so long as the employer has paid restitution pursuant to
{¶ 32} The question next turns to whether the payment of the wage deficiency by the defendant rendered the plaintiffs action moot. The defendant received a letter of determination from the bureau stating that the defendant had violated the Prevailing Wage Act. In this letter, the defendant was given thirty days in
{¶ 33} The bureau issued its letter of determination on August 28, 2000. The employer then had thirty days to make payment of the restitution. The defendant issued the checks on September 28, 2000, which were received by the bureau on September 29, 2000. (Affidavit of Susan Sestito, at ¶ 3.) the thirty-day time frame that allowed the defendant to make restitution ran through September 27, 2000. Accordingly, the defendant violated the thirty-day window allowed by the administrator to make restitution, thereby undercutting its own argument.
{¶ 34} Furthermore, the plaintiff filed suit for recovery on September 22, 2000. This filing occurred within the statutorily allowable time frame to file suit and prior to the defendant’s making a payment of restitution. “Clearly, the legislative intent is to enforce claims for prevailing wage violations.” Harris v. Van Hoose,
{¶ 35} Finally, the plaintiff requests that the defendant pay an amount equal to twenty-five percent of the prevailing wage underpayment, reasonable attorney fees, and costs.
{¶ 36} The defendant argues that because the employee’s complaint to the bureau was filed under subdivision (B), the defendant is relegated to exhaust the procedures prescribed by this subdivision. Specifically, he argues, “Each process is identified separately in paragraphs (A), (B) and (C) [of
{¶ 37} Therefore, simply because the plaintiffs right to file a complaint with the bureau arises under
CONCLUSION
{¶ 38} In conclusion, the court finds that while the statutory scheme in question is not perfect, it is not so ambiguous as to justify the wholesale judicial reinterpretation sought by the defendant. Moreover, the legislation, with all of its imperfections and questions, appears to have accomplished its original intent and serves the ends of justice.
{¶ 39} Accordingly, as there exists no genuine issues of fact, the court finds as a matter of law that the plaintiffs motion for summary judgment should be granted in its entirety. Further, the defendant’s motion for summary judgment is denied in its entirety.
{¶ 40} This matter is ordered set for trial on all remaining damage issues.
Plaintiffs motion for summary judgment granted.