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HomeMy WebLinkAbout96-01499 ~ ~' J~ r ' ~ ~ I cs ~ , """. " ~ ~ . ~ r " ~ "", !~ J , ~ j j ~,I -...3' \)' '- COMMONWEALTH OF' PENNSYlVANIA DEPARTMENT OF' LABOR & INDUSTRY BUREAU OF' WORKERS' COMPENSATION ROBERT SNYDER, Claimant SSII 20430,3198 vs, TRUMBULL CORPORA nON, Defendant Vs, SEIFER. LIMITED. end MARKEY BUILDERS, Additional defendants TO: J Joseph Danyo, M,D, KDV Orthopaedics 908 S, George Street York, PA 17405 AleXilnder J, Palutls. Esq. Post & Schell. P,C, 101 North Front Street Harrisburg. PA 17101 .Judge Karl H, Peckmann Eastgate Center. Room 319 1010 North Seventh Street Harrisburg. PA 17102 Douglas Eberly. Esq, Marshall Dennehey Warner Coleman & Goggin P,O, Box 803 Harrisburg. PA 17108.0803 Robert Snyder 905 Newburg Road Shippensburg, PA 17257 Debora L. Zepp, Court Reporter 121 State Street York Springs. PA 17372 NOTICE OF' DEPOSITION PURSUANT TO 34 PA. CODE SECTION 131.63 Please take notice that the undersigned will take the deposition of J, Joseph Danyo, M.D. on oral examination in lieu of his appearing in person at a hearing, The deposition will be conducted at Dr, Danyo's oHice at KDV Orthopaedics. 905 South George Street. York. PA on Thursday, March 19, 1998. commencing at 2:00 PM, NOTICE TO PARTIES AND WITNESS You may object to his deposition by mailing or delivering a letter listing your objfctions to the undersigned at least seven (7) days before the date set for the de po ' ion. Date ~#Y6V Fred H, Halt, A orney lor Claimant McGraw. Halt & Deitchman 4 Liberty Avenue Carlisle, PA 17013 (717) 2494500 Tennessee pursuant to a written contract dated January 3, 1993, a correct copy of which is attached, marked Exhibit "A" and incorporated herein as fully as though it were set forth at length. 5. Plaintiff's employment by the Corporation January 30, 1995. terminated on 6. At the time of the termination there was owed to Plaintiff by Defendant corporation earned base salary and commissions, acrued vacation pay, reimbursement for expenses incurred on behalf of the Defendant Corporation, a 1994 bonus and payments owed for builders' applications submitted by her. 7. Plaintiff's base salary for the bimonthly period ending January 31, 1995 which amounted to $750.00 was never paid to Plaintiff; consequently Plaintiff is owed base salary in the amount of $750.00. 8. Plaintiff is entitled to commissions earned for the month of January, 1995 in an amount of $450.00, determined by calculating the average monthly commissions paid to Plaintiff; despite requests from Plaintiff's counsel for the information necessary to calculate the amount of commissions due Plaintiff, such request, authorized by law, has been ignored and the actual amount remains unknown to the Plaintiff at this time. 2 9. Plaintiff is entitled to two weeks vacation payor $750.00. 10. Plaintiff submitted to Defendant Corporation for reimbursement itemized expenses for the month of January, 1995, in a total amount of $397.79. 11. Plaintiff is owed her 1994 December bonus in the amount of. $460.00. 12. Plaintiff is owed certain sums of money by the Defendant Corporation on account of builders' applications submitted for December, 8ix at $175.00 or $1050; applications submitted for January, eight at $75.00 or $600.00; and new builders submitted in February, 1995, in accordance with an oral agreement between the parties, four at $300.00 or $1200.00; or a grand total owing with regard to these matters of $2850.00. 13. Defendant Corporation has not paid any wages, including f.ringe benefits, owed to Plaintiff despite her demand for payment. 13. The Pennsylvania Wage Payment and Collection Law (Act) provides in Section 10 thereof, 43 P.S. Sec. 260.10, that an employee is entitled to liquidated damages in the amount of "twenty-five percent (25%) of the total wages due, or five hundred dollars ($500), whichever is greater..." and wages are defined by section 2a, 43 ~ Sec.260.2a, to include salary, commissions and 3 fringe benefits, the latter being further defined to include vacation pay and reimbursement of expenses. 14. The Act further provides in Section ~a(f), 43 ~ Sec.260.9a(f), for the allowance of "costs for reasonable attorneys' fees of any nature to be paid by the defendant; to date Plaintiff's counsel has accrued six hours of time on behalf of Plaintiff; counsel's usual and customary fee is $125.00 per hour. 15. Defendant Joseph M. Olshefski, as President of the Defendant Corporation and the person whc acted as the agent and officer of the Defendant Corporation with regard to all matters set forth above relative to this course of action, is specifically made personally liable by the Act for all wages, as that term is defined in the Act, found to be due to Plaintiff; all of the foregoing Paragraphs of this Complaint are hereby incorporated herein as averments affecting the personal liability of Defendant Joseph M. Olshefski, as fully as though they were set forth at length. WHEREFORE, Plaintiff demands judgment against Defendant Quality Builders Warranty Corporation ar.d Defendant Joseph M. Olshefski, jointly and severally, in an amount of at least $5657.79 plus liquidated damages of at least $1414.45, but total damages not in excess of $25,000, and attorney's fees of at least $750, and such other damages as justice requires. 4 ,z 44 -~~ \ This Agreement is made thls Jrd day of January, Builders Warranty Corporation, P.O. Box 271. Camp Hill, PA to as "QBW", Ind TRACY BAISE TURNER, herein referred to as EMPLOYM/!H'1' AGRIlIlXEIlT 1994, between Quality 17001, herein referred nTURN~R". QBW administers a program (the "Program") in the housing industry whereby home-bullders registered with QBW enroll homes in the Prog.'am. and, the purchasers of the homes are protected by warranties ag~inst certain specified defects. To assist in the establishmen t of the program in the areas ass1gnsd as well as other future areas, TURNER agrees to rscruit builders for ths'program,' and ~o , . provide certain other serv ices necessary to administer thl!," Program, under ',the terms and conditions set forth in this Agreement. -:...", ',;' In consideration of the mutual promises set forth hereln and intending lega Uy bound, it is agreed by and between QBW and TURNER as '':fOllower':, ' 1.' :'i '.\' F.l~, f'll, to be ~ 1. ,\. Performance Standard .~.. ~".~ II " The parties acknOWledge that the success of' "the eaiiHoY'l'ilnt rela~iQnship depends on the number of builders in areas recruited by TlJRNl!a who ultimately are '. -,' \ ' registered with QBW in the Program, and accordingly; the .partl..., agree tha~ during the time that this Agreement remains in effedt, TURRER'9 m!rii.uar.Ontblt~Uota is 7 completed builder applications. .' :."H',: ....,.. L' " '". . I,; ;," , , The parties understand and agree that the decidon whether to regiUer sacb builder recruited by TURNER wi11 be made.eJClioltUttvOiy"bY'llBW.""'; ~. ::,?",,:,. . ..~~td:';,:..~".~: "',;! ';l'f'd''','.'" C i E d P .. II ", . ~ .~ ,.q. I \ II. ompen8at on, xpens8s an ring.. t '. ,'_ ." '. .1. :'..:, ,'~:; A. Tbe base salary .to TURNi:R,1s $'25,000 .tl\J:per Y84'.r pla'!d lp.z;01Porttonately on a semi-monthly basis" lIIinu. tbev'spproprltill.'Jw.l:thboldin9' ~s~'it;;:'ecc. !he :firat pay-period's ulary shall "e w1thllWld..,:'l't,~tiRilaitm.e1;8 her:'quota ti\dd perforDIs her duties as assigned ahe shall receLlle an' addiUonlt'$f ,500.0IF.it ilii end of every 6 month period for which, she: is 8IIIP10ye.s'lly;Q8W,';'l\o'prorat!on -at.'':teiaination of the employment relationship. '...',! we;.} ,,/ '.;P\'/, .:'r: :' .::","" " .... . . ". ,_, ..,' '. I, ..:.: .~. B. COlDlllission scbedule 1;~ be p.dd,'OlI 'a'lIC1nthly basis'as'tollolts: " . '#~' I, :'1'" . I ';'.C.: "-.',' .... J:j~ '" . .' t. SIOO.OO (One,llundred'Dollars)'per builder application recruited by TURNER who subllli t a "completed", :apJl1icat:l:on ,110: l!Bw i ,,,, COllllll,issioitiJ kor tbe month shall be paid on the t~th ,of *he fOllowbl9',Glonth., "'''. (",' ' ,I"'; " ",I:', ,1,,' 2. ~n additl~a. TURNER Itill ,receiVe S100.00 (One Hundred Dollars) for every approved appli&atilln. No, further cOlIIIDission will "be paid on any rejected applIcatiqns., If the approved builder fails to forward a Construction Notificat,l.on to QBW .within ~O' days' of approval the $100.00 approval co....ission shall be forfiete~.,..,. '" , J. Dollar) $50.00. Subsidiary company applications shall receive a one time $50.00 (Fifty commiss~on only, or the amount paid by the subsidiary company if less then 4. A fu..ther commission of two and one-half percent (.025) of the paid premium wiL 1 be paid to TURNER for each home constructed by a registered QBW builder who was recruited by TURNER and which home is accepted by QBW. Should employment te;r:minate for any reason, no fllrther Commissions or salaries shall be paid by QBW after date of termination. !':;('r+ I f3 , r A C. Fringe Benefit 1. TURNER may receive a company car or car allowance At the option of QBW. 2. The auto casualty/liability Insurance shall be obtained and cost of 84me shall be borne by QBW If a company car is supplied. QBW will also pay for the regular maintenance if a company car is supp1J.ed. TURNER wlil be responsible for schedullng the car for maintenance and keaplng it clean and presentable. If A mechanical failure occurs because TURNER fails to maintain the CAr then she will be responsible to pay for corrective work. J. Health (Medical) insurance, ~s paid by QBW on its group insurAnce program, will be provldsd to TURNER after ninety (90) days of employment. Cost Of any additional dependents shall be borne by TURNER. In addition, TURNER shall be entitled to six (6) paid sick days per annum, not to be used as per80nal daye arid non-cumulative. " " ..' , 4. year of builders, TURNER will employment. TURNER will l~ ~: \ ~ : ,;:.. receive two week paid vacation (ten (10) days) in the first....:', Upon attaining two hundred and fifty (250) approved" receive three (3) weeks paid vacation in subsequent years. . . '.;I';7~ D. Expense Account ~'I' "~ ~~.,; \ . , . ., ;1:" .(", ,''';- The expense account shall be for fuel And other QBW pre-approved expenses. TURNER shall be responsible tor submitting an itemized expense report on a monthly besis (25th ot the month) substantiated by the necessary and appropriate original receipts to QBW. Upon the apprOVAL ot the expense report by QBW, reimbursement will be mAde to TURNER. ';~~t:". """'oj...,, .., 'lj'1i: E. TerminAtion TURNER shall not receive or be entitled to receive Any commissions on homes enrolled by QBW after dAte of te~ination. ",' ;' III. Restrictive CovenAnts TURNER agrees that At no time during the term of her employment, and tor a period of two (2) years immediatoly following the termination of employment, will she, for herself or on behalf of Any person or entity other than QBW, be employed by or engage in the recruitment of builders for and in connection with the programs (for newly constructed or manufactured homos, etc.) other than that offered by QBW within the states where QRW is registered. TURNER also Agrees that all records of the names and addresses of builders registered in the Program and any other records relating in any manner whatsoever to the registered builders, whether compiled or prepared by TURNER or otherwise coming into her possession, shall be the exclU3ive property of QBW and will be returned to QBW illlllledi"telY upon termination of employment. As such, during the term of employment and for a period of two (2) years thereafter, TURNER shall not at any time, directly or indirectly, use or disclose to any person, except to QBW and its duly authorized officers and employees entitled thereto, the list of registered or applicant builders, their credit Classifications, records, statistics, or other information with respect to registered or application builders. acquired by TURNER or anyone else in the course of the performance of her duties under this Agreement in any capaci ty whatsoever I nor sha 1.1 sha in any manner I directly or indirectly I aid or be party to any acts, the effect of which would intend to divert, diminish or prejudice the good will or business of QBW. ',4 , IV. Miscolldneou~ . A. 'fhls Agr....m.nt suparcedua any end ,..I other agreemants, either oral or written. between the parties herato .and respect to tho eubject matter hereat and contains ell of the covenents end agreements between the partlee with respect to the subject matter hereof. , .~.. .. .,I " ',,' '"' \ '" B. It one or Glore of the provisions r:ontcJined in this Aqreement shall for f.:,", any reason be held invalld. Illegal or unenforceabie in any respect, such '; ,"i." invalldlty, inegallty or unenforceabl1ity ohall not aftect any other provisions . w.', .,~. here"f and this Agreement ehali be construed aa If such invalid, i11sgal or . unenforceable provision h4d never been contained herein. " "::,':?' . "\..-...,- '1; ", .,1\,/-,,"1...... C. TURNER will provide QDW with 30 days advance written notLce betor~i4ll~~i,' quitting. If notice at termination Is given by TURNER, QBW has the option'la'':-. .t' accept or reject any portion of the thirty (30) day notice period. It 'QBW rej~ct"~}~f' the notice period, QBW is not responsible for compensation during this',PSr1~::,s'J~",;.'~,~, termination of TURNER's employment is IlIIJlIodiate. QIlW may termlnete the.~m,p.:o e,nb~,',,~', of TURNER as an at will employee. . ~.,%, ,/::'.. , ~~ ,'.1" ' /'~': , , :,., ,'~';, " D. The waiver by ei ther party of any breach of this Agreement on the par!fl!f" (~.. the other sha 11 not const Itute or be construed to be a waiver by euch party "qt~!';.ny '. ~',r subsequent breach by the other. . , ". ..,,, ., .' ,1""1" E. TURNER shall devote her entire productive time, ability, and,~t~:~~i~~~, the business of QBW during the term at her employment. TURNER .hall not ~lrict!t! or indirectly render any Services at a business, cOllllllercial, or a prote..l?rjil~ nature to any other pereon or organization whether tor compeneatLon or"othervbe , without the prior written consent ot QBW. .' '''.,.. ':,~ 1:'" F. This Agreement shall be binding upon the partie. hereto and ~helr:~~ir.~~ representatives, successors and essign8. ",~.,.:,'!?'~;~' _ ' f .,r;..~... .'., ..~'~ "',' ~ r'~';:;~ ."J-Xi th18'~gre~ent t ,. .. ~..t.;I. . \.,~'~ Y CORPORATION ,r I>>"WITNESS WHE~, the .j day at , .;..J,(l..J parties hereto havD , 1993. ATTEST: \~~ ~)ness ~ By ." ~~s~ "~, . " .... ..., ;" . .~,. , ,OJ;;',, l,". ~~.~ ,,; '1 . ,.:.~t ..f .' ..f'i ~ 5, Plailuiff all~g~s lhat th~ infonnalion is within th~ hounds of pennissihl~ Discov~ry and thai lh~ infomlation is also sought becausc of th~ possihilily that th~ nndcrsigncd counsel is an offic~r or shar~hold~r of thc company. 6, Plail1liffs counsel's all~gations ar~ frivolous givcn lhc fact that his st~pson was onc~ ~mploy~d hy th~ Dcfendant corporal ion and is providing him with infonnation onlh~ corporation and knows for a fact that th~ nndersign~d counsel is neither an oftic~r nor shareholder of lhe corporation. In addition, the other information sought exceeds lh~ scope of pennissihle Discov~ry and is not calculat~d to lead to discov~rahl~ or rel~vant infonnalion. 7. Plail1lift's argum~nt is lantamount to advocating that any in-house gen~ral counsel may not appear in Conn on behalf of their corporate employer by the fact that th~ income from the corporate Defendant may make it difficult for him to also serve as an officer of lhe Court. Taking Plail1liffs counsel's argum~nt to the illogical conclusion, th~ Plaintiff in the within Action indicat~d that Plaintift's counsel's st~pson failed miserably in his position and, therefor~, may bring into ques1ion Plaintift's counsel's independent repres~ntation of this pany givcn the remarks mad~ about Plaintiffs counsel's st~p-son. 8. Plaintiffs IIll~rrogatory Number 5 s~~ks the id~ntity of ~ach person who has be~n an ~rnploy~~ of the corporat~ D~fendant sinc~ inception or the Iolst five years, which~v~r is I~sser... D~fendant respond~d to th~ Int~rrogalory as r~quir~d under th~ Rul~s of Civil Proc~dur~ and obj~cted to the remaining ponions of the Interrogatory as Ih~y ~xc~~ded the scope of pennissible Discovery and the information was not calculated to lead 10 discov~rahle or relevant infonnation. 9. Plail1liff all~ges that this information is n~c~ssary sinc~ if Defendalll has treated other employ~es the same as lh~ Plaintiff, it is admissible to show the course of conduct. The information sought is beyond the scope of permissible Discovery and, in any evclll, Def~ndanls h,IVe "~amed through th~ Deposition of Plaintiff that Plaintift's counscl apparently receivcd infomlUtion on prior employe~s from his stepson, in violation of his stepson's contract and forwarded individual questionnaires to past employ~~s inquiring as to lh~ t~nns of paym~nt of lheir IDst paych~ck, . 10. Plaintiff's Inte:rrogatory Numbe:r 6 se:e:ks information conce:nling the: pt:rsonal status of the individual Defe:ndant including re:sidence, marital status, etc. Defendant ohjected to this Interrogatory as be:yond the: scopc of pcnnissible Discovery. The Plaintiff alleges that this information is ne:e:de:d be:cause the: Ddendant has acte:d in a "pcculiar" manner and wishcs to rule: out any iIIncss or disease:, Said allegation is slande:rous and is indicative: of Plaintiffs continuing harassme:nl. WHEREFORE, Defendants re:spt:ctfully request that Plaintifl's Motion to Compcl be: dismissed give:n the questions posed by the Interrogatories are: clearly be:yond the scopc of pt:rmissihle Discovery and not calculato:d to lead to Discoverahle or rdevant infomlation. Motion For A Protective Order II. Plaintiff claims that during the Deposition she was thre:atened by counsd for the Defendants that he: would require her to appcar again in Pennsylvania for a furthe:r Deposition. Such is not the case. 12. Plaintiff does, in fact, live in Tennessee and dected to institute the within suit in Pennsylvania. 13. Defendants scheduled the Deposition of the Plaintiff which was unilaterally canceled by Plaintifl's counsd on two occasions hy simply indicating that she would not appt:ar. De:fendants accommodated Plaintiff including holding the De:position at a place: outside of De:fe:nd.mls' counsel's place of business. 14, Prior to the Deposition De:fe:ndants requeste:d that the documents identifie:d in the Notice: of Deposition be: forwarded prior to the Deposition for review so the: Deposition could be: stre:amline:d. Plaintiff's counsel refused to coopt:rate: in this re:que:sl. 15. In addition, Ddendants' counsel spccifically re:rninde:d Plaintiff's counsel that Plaintiff should be: dire:cte:d to hring all documents since failure to do so would nece:ssitate a reappcarance. II, ISSUE A, Whether Plainliff can collect damages under Pennsylvania Wage P-dyment and Colleclion Law given the fact she is a Tennessee resident. Ill, ARGUMENT P-drdgmphs U and 14 of Plaintiff's Complailll seeks relief under Pennsylvania Wage P-dymelll and Collection Law in the form of liquidated damages and attorney's fees, Funher Plaillliff seeks tn impose personal liability on the Presidelll of QBW. Given the fact that Plaillliff is a Tennessee resident, Defendallls have tiled the within Motion for Summary Judgment. Summary Judgment is appropriate where there is no genuine issue as to any material fact and the moving puny is entitled to judgment as a matter of law. Keenan v. Scott Townshio Authority, 151 P'd. Commw, 225,616 A,2d 751 (1992); P-d.R.C,P. 8035(b), See also Kru!,! v. City of Philadelphia, 152 P'd. Commw. 475, 620 A,2d 46 (1993). A genuine issue is one which can be mailllained by substalllial evidence. Chuy v. Philadelohia E.llzlo:s, 407 F. SUPP. 717 (E.D.P'd. 1(76). A material fact is one which affects the outcome of the case. Beach v, Bums IllIemational Security Services, 406 P'd. Super, 160, 593. A.2d 1285 (1991). A moving pany is "entitled to judgment as a matter of law" when the puny's right to relief is free and clear from doubt. See Nelson v. Citv of Philadelohia. 149 P'd. Commw, 611, 6U A.2d 674,676 (1992). There is no genuine Issue as to Plailllift's ability to collect under the Pennsylvania Wage P.dymelll and Collection Law, The Wage P'dymelll and Collection Law (WPCL) does nol create a statutory right to wages. Rather. it provides a statutory remedy for an employee who is not paid earned wages but it is the employmelll COlllmct which cOlllrols in detennining whether wages are due, See Hardina v, Duuuesne. 882 F. SUPP. 422,427-428 (W,D,PA, 1995). also 19 Summary of Pu. Juris Prudence ~ .~:76 P'dge 334. Ill. DISCUSSION A. The 'plain words. of the Act provide that damages are payable to an employee of an employer covered under it. In the instant case it is conceded that OBWC is an "Employer. as defined by Section 2.1 of the Act, 43 P.s. ~tlO.2a. See Complaint, Para. 1: "Defendant Corporation is a Pennsylvania business corporation with it principal office at 75 Utley Drive, Camp Hill, Cumberland County, Pennsylvania 17011, ..... A_,., Para. 1. .Admitted" In fact, the Utley Drive address represents the sole office of the Defendant Corporation, to the best knowledge of the Plaintiff. It is further beyOnd dispute that the Plaintiff WB8 an employee of the Corporate employer, B8 opposed, for nample; to beiriS an independent contractor. The question before Your Honorable Court is whether or not an employee who is not a Pennsylvania resident can utilize the Act to collect wages and fringe bei'lefits due her as well as liquidated damages and attorneys' fees. It is first argued that Plaintiff can claim the benefits of the Act because the .choice of law" involved is Pennsylvania employment law which incorporates the Act as part of that particular piece of tlie landScape of the law. Plaintiff, a resident of Tennessee, interviewed for the job of sales representative at the Camp Hili office, signed the employment contract at the Camp Hill offiCe, reported, often daily, by telephone and by written reports to the Camp Hill office, forwarded each procured contract for warranty services to the Camp Hill office for approval. Plaintiff reported directly to the President of the Corporation, the individual Defendant, Joseph M. Olshefski, at his office in the .3- 1II such, the Act supplemcnlS Pcn/1.llylvllnia cmploymcnt a:mtract law by pruvidins for collcction and damases for employees of PCl1/1.llylvania employers without limitation. In short, if it is a Pen/1.llylvania employment contract cntered into by a Pen/1.llyivania employcr with a nonresidcnt employec, the Act applies. In flll;t, Section 7 of tho: act states that "No provision of the act shall in any way be contravened or set asido: by a private aareement." 43 p, S. !l260.7. B. The KJl/jQn caae can be distinillished on illl facta since in the il1ltant caae Plaintiffs employment was "bas.:d" in Pennsylvania even thousJl the employee's duties were represcntini the employer in TeMeSICe, In KiJliDn the employees workcd out of "sato:lIite. offices of their employer Nutri/System, Inc., II dief/WeisJlt Ioas company that went into bankruptcy in 1993. The Court found that ihey were .based" in California and New YorkINew Jersey. In the i/1.lltant ellie, the Plaintiff Wlll .based" in Pennsylvania thoulh she worked in TeMessee. In Ea.suanJ v. DuPonl. 1996 WL 421940,3 Wale & Hour Cases 2d (BNA) 795 (E.D.Pa.. 1996), Judie William Yohn of the same court which decided KJl/jQn, points out that .... Killian docs not address 'whether the Waae Law applies to an employee with numo:rous Pen/1.llylvania work contacts who opened an out-of-s1ate office at the request of his Pennsylvania employer.. (At S.) Judge Yohn. ... finds that tho: residence and citize/1.llhip alone do not defeat his claim under the WCPL.. (lbiJ.) C. To co/1.lltrue the act to exclude Plaintiff from its benefits is to raise a Constitutional violation undo:r the federallnterstale Commerce Clause. -s- .....,. ~ MJ 7 715~.?'75' - ~0 2 J PAGE 1 citation Database Not Reported in F.Supp. FOUND DOCUMENT OCT 3 wage & Hour Cas.2d (BNA) 195 celt. ... 1'" WL 421140 CB.D.Pa.}) Larry L, EASTLAND, Plaintiff v. John E. Du PONT, Defendant. No. CIV. A. 96-2312. united States District Court, E.D. Pennsylvania. July 23, 1996. MEMORANDUM AND ORDER Mode Page YOHN, J. *1 Larry L. Eastland ("Eastland") sues John E. du Pont ("du pont") under the alternative theories of breach of contract, violation of the Wage Payment and collection Law, and unjust enrichment, alleging that du Pont terminated their business relationship without paying him all compensation earned. Du Pont has moved to dismiss for failure to state claims upon which relief may be granted. In the alternative, du Pont movem for a more definite statement of all counts of the complaint. The court will deny du Pont's motion. I. Standards for 12(b)(6) and 12(e) motions Under Fed.R.Civ.P. 12(b) (6), dismissal of a complaint is appropriate for "failure to state a claim upon which relief can be granted." At this stage of the litigation, "A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the ~llegations." Hishon v. King & spalding, 461 U.S. 69, 13 (1984). Thus, in considering a motion to dismiss, "all allegations in the compLaint and all reasonable inferences that can be drawn therefrom must be accepted as true and viewed in the light most favorable to the non-moving party." sturm v. Clark, 835 F.2d 1009, 1011 (3rd Cir.1981). Under Fed.R.Civ.P. 12(e), the court may order a more definite statement "(iJf a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading." To interpret this rule, the court turns to the general pleading rules provided in Fed.R.civ.P. 8j The Federal Rules of civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rulee require is a 'short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff'S claim is and the groundS upon which it rests. Leatherman v. Tarrant county Narcotics Intelligence & Coordination Unit, 501 U.S. 163, 168 (1993) (quoting Conley v. Gibson, 355 U.S. 41, 41 (1951)). Thus, "[AJ motion for a more definite statement is generally disfavored, and is used to provide a remedy for an unintelligible pleading rather than as a correction for lack of detail." Frazier v. Southeastern Pennsylvania Transp. Auth., 868 F.Supp. 151, 163 (E.D.Pa.1994). II. Allegations of the complaint In his complaint, Eastland alleges the following. At a meeting in pennsylvania i~ 1988, du Pont and Eastland entered into a contract under which Eastland would perform personal services for du Pont on a regular basis in exchange for monthly compensation, expense reimbursement, and severance compensat.ion. (Compl.P 14) specifically, copr. (e) West 1991 No claim to orig. U.s. govt. works Not Reported in F.SUpp. PAGE 2 (Cite ... 199' WL 421940. *1 (B.D.P..)) Eastland was to work from month to month and to be paid ~or his services at the rate of $25,000.00 per month plus reimbursement of all expenses incurred in performing du Pont's tasks (except Eastland's personal office expenses and travel expenses to and from Eastland's home). Furthermore, as compensation tor his commitment and continued service and for devoting himself faithfully to du Pont, Eastland was to be paid three times the annual rate of his salary (i.e., $900,000) in the event that du Pont no longer required his services, after Eastland had worked for du Pont for more than five years. *2 (Compl.P 9) Under the initial contract, Eastland was to write books and prepare them for publication. Over time, however, his duties grew to include a wide variety of tasks ranging from reviewing videotapes of circumstances at du Pont's home that du Pont thought suspicious to opening an office in Idaho to "manage any confidential matters which du Pont did not wish to have dealt with through his own otfice or staft in Pennsylvania." (Compl.P 8) In June 1995, du Pont informed Eastland that his services were no longer needed. However, "Du Pont failed to give Eastland any advance notice, failed to pay Eastland for his last months' services and expenses, and failed to pay Eastland the severance compensation in the amount of $900,000 that he had earned." (Compl.P 11) with respect to the regular compensation due, "Du Pont failed to compensate Eastland for two months of service." (C~mpl.P 16) III. Breach of contract Eastland claims that du Pont breached his employment contract by failing to pay Eastland for his last two months' work and for refusing to give him promised severance pay. Du Pont argues that no breach of contract claim lies, as Eastland was an at-will employee. Although du Pont relies upon the doctrine of at-will employment as developed in Pennsylvania, du Pont also argues that the alleged contract is invalid under the Idaho statute of frauds. A. At-will employment, compensation due, and severance pay Eastland does not contest the characterization of his business relationship with du Pont as one of employment at-will. Under the doctrine of employment at-will, "it is presumed that either party may end an employment relationship at any time, for any or no cause." Murray v. Commercial union Ins. co., 782 F.2d 432, 435 (3rd Cir.1986). [FN1) Furthermore, "The undoubted right to terminate an at-will contract necessarily includes the right to insist on the compensation arrangements as a condition of continued employment." Green v. Edward J. Bettinger co., 608 F.Supp. 35,41-42 (E.D.Pa.1984), aff'd, 791 F.2d 917 (3rd cir.1986), cert. denied, 479 U.S. 1069 (1987). See also, Borrell v. Weinstein Supply Corp., 1995 WL 156205, at *5 (E.D. Pa. April 10, 1995) (employer may unilaterally change sick leave policy). Thus, du Pont's power to discharge Eastland carried with it the power to dictate prospective changes in Eastland's compensation. FN1. The parties do not dispute the application of Pennsylvania law to questions of contract interpretation as opposed to contract validity. However, du Pont's power to discharge Eastland does not logically encompass a decision not to pay him, as agreed upon, for work already completed. Under the allegations of the complaint, "Defendant has ... received full performance from plaintiff[ ) and cannot now be permitted to accept the benefits of its agreement while at the same time repudiate the obligations it assumed and has Copr. (C) West 1997 No claim to orig. u.S. govt. works Not Reported in F.Supp. PAGE 3 CCite a., 111' WL .~11.0, *2 (B.D.pa.)) recoqnized for (seven] years." Linn v. Employers Reinsurance Corp., 153 A.2d 483, 486 (Pa.1959). Although it was terminable at-will, the alleged employment agreement was a contract. Therefore, the court finds that Eastland's complaint clearly states a claim for the two months' salary that purports to be owed. *3 According to the complaint, part of Eastland's agreed-upon and earned compensation was severance pay. otherwise conceptualized, Eastland allegedly had an independent, enforceable agreement under which he would receive severance pay in exchange for faithfulness to du Pont for more than five years of service. An agreement for severance pay is not at all incompatible with at will employment. See Browne v. Maxfield, 663 F.Supp. 1193, 1201 (E.D.Pa.1987) (at-will employee-to-be who was discharged before he reported to work had claim for breach of a severance pay agreement); Sell v. Nobel Educ. Dynamics, Inc., 1994 WL 502544 (E.D.Pa. Sept. 15, 1994) (at-will employeet had vested rights under ERISA plan), aff'd, 60 F.3d 817 (3rd Cir.1995). Thus, the court finds that ~astland's complaint states a breach of contract claim for wages and severance pay--and obviously states it clearly enough to enable du Pont to respond. B. The Idaho statute of frauds Although neither party has set forth a choice-of-law analysis in its brief, the court must consider whether Idaho law governs the validity of the alleged employment contract as defendant contends. Pennsylvania choice-of-law rules govern this case, as "In choosing which law applies, a federal court sitting ir diversity must apply the choice-of-law rules of the forum state." Lejeune v. Bliss-Salem, Inc., 85 F.3d 1069, 1071 (3rd Cir.1996) (citing Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)). "Pennsylvania choice-of-la~ analysis consists of two parts. First, the court must look to see whether a false conflict exists. Then, if there is no false conflict, the court determines which state has the greater interest in the application of its laws." Id. An actual conflict may exist between the law of Pennsylvania and Idaho. On the one hand, "(T]he Pennsylvania statute of Frauds does not contain a provision for agreements that cannot be performed within one year." Hornyak v. Sell, 629 A.2d 138, 141 (Pa.Super.1993); Linn v. Employers Reinsurance Corp., 397 Pa. 153, 157 (1959) (Pennsylvania statute of frauds does nat require commission agreement extending beyond one year to be in writing). On the other hand, the Idaho statute of frauds renders invalid an oral agreement "that by its terms is not to be performed within a year." I.e. s 9-505 (West 1996). Moreover, plaintiff's argument that his employment contract would fall within an exception to the Idaho statute is not clearly borne out by Idaho case law. See Burton v. Atomic Workers Fed. Credit Union, 803 P.2d 518 (Idaho 1990). Assuming, arguendo, that an actual conflict does exist, the limited information provided in Eastland's complaint suggests that Pennsylvania has a greater interest than Idaho in the transaction at issue, as the contract was purportedly negotiated and entered into in Pennsylvania, and as at least partial performance took place in Pennsylvania. Based on the foregoing, the court will apply Pennsylvania law for purposes of this motion. However, the court notes that the complaint contains limited information and that the parties have not briefed the choice of law issue. Therefore, the court may return to this issue as the litigation progresses. Copr. (e) West 1997 No claim to orig. U.s. govt. works Not Reported in F.supp. (Cite ..1 1'" WL 421'40, .) (B.D.P..)) For r~w, the Idaho statute of frauds does not require dismissal of the claim. IV. The ~age Payment and Collection Law .4 In the second count of his complaint, Eastland alleges that he is entitled to recover unpaid wages and wage supplements, attorney's fees, interest, and liquidated damages under the Wage Payment and collect.ion Law, 43 P.S. s 260.1 et seq. (1992) (ItWPCL"). 43 P.S. s 260.9a provides: (a) Any employee ... or party to whom any type of wages is payable may institute actions provided under the act. (b) Actions by an employe ... or party to whom any type of wages is payable to recover unpaid wages and liquidated damages may be maintained in any court of competent jurisdiction ... In support of his motion to dismiss, du Pont argues: an employee of du Pont as defined by Pennsylvania law; Eastland's legal residence was Idaho during the tenure du Pont, the WCPL affords Eastland no protection. The WCPL defines those employers to whom it applies: "'Employer.' Includes every person, firm, partnership, association; corporation, receiver or other officer of a court of this Commonwealth and any agent or officer of any of the above-mentioned classes employing any person in this Commonwealth." 43 P.S. 260.2a (1992). However, it contains no definition of "employe." In other contexts, though, Pennsylvania courts consider a number of factors to determine whether an individual is an employee as opposed to an independent contractor. Although the list is long, the salient considerations relate to the nature of the work performed, to control over the manner in which it is performed, and tc the terms of the agreement between the parties, including the basis for compensation. Duquesne Truck Servo v. Workmen's Compensation Appeal Bd., 644 A.2d 271, 175 (Pa.Commw.1994) , appeal denied, 651 A.2d 543 (Pa.1994); Kelly V. Workmen's Compensation Appeal Bd., 625 A.2d 135, 137 (Pa.Commw.1993). Eastland alleges that the tasks he performed for du Pont included acting as his personal advisor, "assist[ing] du Pont in writing books, articles and motivational pieces," acting as du Pont's "representative" at wrestling events and related meetings, and recruiting du Pont's domestic staff. (Compl.P 8) This type of work does not lend itself to the conclusion that Eastland was "engaged in a distinct occupation or business" from du Pont, Duquesne Truck Servo v. Workmen's Compensation Appeal Bd., 644 A.2d at 275, or that Eastland had significant freedom to perform his duties in whatever manner he wished. Furthermore, Eastland alleges that he performed the tasks enumerated in the complaint at du Pont's direction and that he was paid by time rather than by task. Moreover, the WCPL applies fully to "any party to whom any type of wages is payable." 43 P.S. s 260.9a (1992). Therefore, the court does not find that the allegations of the complaint negate the possibility that Eastland worked as du Pont's employee, as "employee" is defined by Pennsylvania law. Although plaintiff may well have been an independent contractor, the issue can be revisited when the record has been more fully developed with respect to all factors relevant to the "employee" determination. .5 In support of his argument that the WCPL affords no protection to Eastland, an Idaho citizen, du Pont relies on Killian v. McCUlloch, 873 F.Supp. 983 (E.D.pa.1995).~n Killian, the court determined that the WCPL's protections did not extend to individuals who were never based in Pennsylvania Copr. (C) West 1997 No claim to orig. U.S. govt. works PAGE 4 (1) Eastland was never and (2) Because of his relationship witt Not Reported in F.Supp. PAGE 5 (cit. ..1 19" lfL UUto, ., (l1.D.Pa.)) and who were not residents of Pennsylvania. In arriving at this conclusion, the court found: The legislature has a strong interest in enacting legislation to protect those who work in the Commonwealth, but has almost no interest in extending that protection to those who work outside Pennsylvania. And while the statute assuredly has the effect of deterring wrongful behavior on the part o~ employers, its primary aim is to ensure that those who are employed in Pennsylvania receive compensation for their work. Id. at 942. However, Eastland correctly points out that Killian does not address "whether the Wage Law applies to an employee with numerous Pennsylvanii work contacts who opened an out-of-state office at the request of his Pennsylvania employer." (PI.'s Br., p. 8) The court finds that plaintiff's residence and citizenship alone do not defea1 his claim under the WCPL. The court also finds that something less than full- time in-state employment can trigger the WCPL's protections. Since the complaint specifies neither where Eastland performed each of the various tasks enumerated nor how much time he spent in Pennsylvania performing services for du Pont, the court concludes that dismissing Eastland's WCPL claim would be inappropriate at this time. Again, the issue may be revisited when the record is more fully developed. The court also finds that du Pont should have no difficulty preparing respon~es to this count of the complaint. v. Unjust enrichment In the alternative to his breach of contract and WPCL claims, Eastland allegel that he is owed quantum meruit, the reasonable value of the services he rendered to du Pont without compensation. Defendant, in turn, argues that a quantum meruit claim may not be maintained as part of the same complaint that sets forth contractual terms. [FN2] The court finds that du Pont misunderstands the law. FN2. Both parties rely upon Pennsylvania law. Moreover, the court notes that the equitable doctrine of quantum meruit is treated similarly in Idaho. See BECO Constr. Co., Inc. v. Bannock Paving co., Inc., 797 P.2d 863 (Idaho 1990). However, Idaho more consistently distinguishes between proof of damages under the theories of unjust enrichment and of quantum meruit. These are, re~pectively, the value of the benefit conferred and the value of the services rendered. See Blaser v. Cameron, 829 P.2d 1361, 1366 (ct.App.1991); Hartwell Corp. v. Smith, 686 P.2d 79, 85 (Ct.App.1984). "Quantum meruit is a quasi-contractual remedy in which a contract is implied- in-law under a theory of unjust enrichment." Hershey Foods Corp. v. Ralph Chapek, Inc., 828 F.2d 989, 998 (3rd cir.1987). To prevail on this theory, Eastland must show that du Pont "either wrongfully secured or passively received a benefit that would be unconscionable for the party to retain without compensating" Eastland. Id. at 999. Where an express or implicit contract governs the relationship or fixes the value of the services at issue, no recovery may be had undsr the quantum meruit doctrine. Id. However, a plaintiff is free to allege restitution as an alternative basis for relief in the event a breach of contract claim fails. See, e.g., Mercier v. ICH Corp., 1990 WL 107325, . 6 (E.D.Pa. July 25, 1990); Lampl v. Latkanich, 231 Copr. (C) West 1997 No claim to orig. U.S. govt. works Not Reported in F.Supp. PAGE 6 (cite ..1 1'" WL 421'40, .5 (B.D.Pa.)) A.2d 890, 892 (pa.super.1967) (written agreement attached to pleading did not constitute election of theory of recovery as between contract and quantum meruit); Geesey v. Albee pennsylvania Homes, Inc., 235 A.2d 176, 178 (Pa.Super.t967) (though language of complaint suggested quantum meruit theory, it was sufficien~ to put defendant on notice of price agreement claim). [FN3] FN3. Moreover, the Pennsylvania Superior Court has cited the following observation with approval: Even though it be conceded tha~ one may not sue upon an express contract and recover upon a quantum meruit ..., the courts generally have treated the matter from the standpoint of amendment of the pleadings, and have hel, that where all the evidence concerning the transaction has been fully developed, and the defendant has not been misled by the variance, if any, between the pleadings and the evidence, the pleadings may be amended to conform to the proof, or the amendment will be regard [sic] as made. Cohen v. Marian, 90 A.2d 373, 377 (Pa.Super.1952) (citing 18 A.L.R. 1208, Annotation). VI. Conclusion ., As the above discussion demonstrates, the allegations of the complaint are hardly too ambiguous for defendant to address in a responsive pleading. Furthermore, defendant's contention that plaintiff has failed to state legal claims is without merit. Therefore, the court will not order plaintiff to submit a more definite statement of his claims and will deny defendant's motio: to dismiss. An order follows. ORDER And now, this --- day of July, 1996, it is ORDERED that the Motion of Defendant John E. du Pont to Dismiss Plaintiff's complaint Pursuant to Rules 12(b) (6) and 12(e) is hereby DENIED. END OF DOCUMENT copr. (C) West 1997 No claim to orig. u.s. govt. work: included the r~quirement that every contract of sale he suhmilled to its office where the sale was approved and finalized; that she was instructed to report directly to the President. rather than through the sales manager, and that the President. the individual Defendant, was a resident of ?ennsylvania with his office at the Corporate headquarters hereinbefore identified; that various records were submitted to the ottice on a regular basis, some of the records were required to be submitted daily; that the documents setting forth the expenses for which she was to be reimbursed were required to be forwarded to the Pennsylvania oft ice for payment and that the checks paying the expenses were written at the Pennsylvama office on a Pennsylvania bank and forwardeu to her from Pennsylvania; that the compensation paid by the Corporate Defendant to the Plaintiff was calculated by the Defendant Corporation at its oftice, the checks were sent from the Pennsylvania oftice and the checks were written on a Pennsylvania bank account: that the Defendant Corporation, to the best knowledge of the Plaintiff. had no '.lther office except for its Pennsylvania office and, specifically, that it had no office of any kind in Tennessee except for the office maintained by the Plaintiff in her home at the request of and for the benefit of the Defendant Corpuration: Plaintiff also deposes and says that she presently does not have in her possession any records of the Defendant Corporation, including "dailies' as referred to in her deposition, which are the property of the corporate Defendant or which are relevant to her employment with it. except for certain "cards' which are presently in the possession of her attorney; and that she understand~ that she is executing this Aftidavit in .2. , _.r C. . c: IU' , , l":' , ~. .'"1 fl, 11 C" , .. , V 27. Under the terms of Plaintiff's employment contract she was required to return those materials but. after due and proper demand. has of this date failed to return the materials in her possession. 28. Plaintiff's failure to return company materials upon termination of employment as required caused Q8W to sustain loss of business since the materials she refused to return included leads generated in the course of her employment which could not be followed up because she refused to return them. 29. Plaintiff has further breached her contract by diverting or diminishing the goodwill of Q8W cy, among other things: A. Contacting prior employees to induce them to terminate employment; 8. Disseminated false information about the company and its President. 30. 8y reason of Plaintiff's breach of her employment contract and office rules and guidellnes and misrepresentations and fraudulent conduct, QBW has sustained liquidated damages of a minimum of One Hundred Nine Thousand Sixty-Eight Dollars ($109.068.00) and unllquidated damages in an amount yet to be determined. 31. By reason of the foregoing Defendants have a full and complete setoff to any amounts claimed due by Plaintiff. 32. By reason of the foregoing Plaintiff has breached her employment contract and is not entitled to any damages as claimed. 33. As indicated previously. Plaintiff's Counsel's claim of usual and customary fees of $125.00 is inaccurate since Plaintiff's Counsel admitted ~o Defendants' Counsel that his usual and customary fee is $100.00 but added and extra $25.00 to be "punitive". .~ w~. aware of such prohibition. 23. Plaintiff has no knowledge of the allegations contained in this Paragraph; if such facts are relevant, strict proof of same are dem~nded at the time of trial. 24. Plaintiff, as a result of the conversation and her belief that she had been discriminated against and other reasons, resigned her position with the Corporate Defendant. 25. The allegations of this Paragraph are conclusions of law, and as such, require no reply. 26. Admitted. 27. Plaintiff specifically denies that she has in her possession any materials provided by the Corporate Defendant. 28. Plaintiff specifically denies that she refused to return "lead cards" belonging to the Corporate Defendant; further she denies that the Corporate Defendant sustained any loss of business on account of any act on her part. 29. Plaintiff specifically denies that she diverted or diminished the goodwill of the Corporate Defendant; further she denies that: A. She contacted any employee to induce them to terminate employment. B. She disseminated false information about the company and its President. 30. The allegations of this Paragraph are both general statements (not facts) and conclusions of law, and for both reasons do not require an answer. 31.-32. The allegations of these Paragraphs are conclusions of law and as such do not require an answer. 33. Plaintiff has no knowledge of the allegations of this Paragraph; ahe has been informed by her counsel that his customary fee for litigation matters is $125.00 per hour, that such fee is reasonable and customary in this area for such services and that he never said what is alleged to have been said in this Paragraph; for further answer Plaintiff avers that her counsel has now accrued 37.2 hours of time on her behalf in this matter. 2 ,,If TRACY BAISE TURNER, P1aint1tf IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. No. 1996-1499 CIVIL TERM QUALITY BUILDERS WARRANTY CORPORATION AND JOSEPH M. OLSHEFSKI, Defendants CIVIL ACTION - LAW FOR AR!lITP.ATIO~ OMU AND NOW this z,,' day of February, 1997, the Defendants, Quality BUilders Warranty Corporation and Joseph M. Olshefski shall fU.. a response to the Motion to Compel Answers to Plalntiff's Interrogatories and Motion for Protective Order on or before ~ to oI""'1J oJ..... J"...... - d..... _! 11___1., U9'r after which the Court shall at the request of either party schedule a discovery conference or other proceeding a. i. appropriate. If the Defendants or either of them shall fail to file a response as noted above within the time allotted, the Court may, without further notice, grant the Plaintiff the relIef requested without turther notice or hearing. TRUE COpy FROM RECORD In 7 .~ 11'11111 ." r ..r. I I, ,e 'JIlIn ';011 my hand 11'1<.1 Jht.' 'Ir,1 rj: ~ ';,1 (()II~' ~I (Ilrlj~I~, Pa. Ihis ~ '}.it u~y of :'r. .d. '. 19..'l.] .................wAI.~.~~~..(~;of~~~~_ /Iii , J. service for approval and finalization; reported by telephone and by written report directly to the President of the Corporation, the individual Defendant herein, who resides in Pennsylvania and is employed at the Corporation's ofticc in Pennsylvania; was required to submit various records to the Corporation at its Pennsylvania oftice, including "dailies" and c:qlCnse documents for reimbursement. received her e:qlCnse reimbursement checks and her checks for compensation from the Pennsylvania office, with the checks drawn on a Pennsylvania bank. It is further averred that the Defendant Corporation has no oftice anywhere except at 75 Utley Drive, Camp Hill, Cumberland County, Pennsylvania, and more spccitically. does not have and newr ha., had an office in Tennessee, other than the oftice flaintiff at the request of the Defendant Corporation maintained in hcr home while she was employed by the Defendant Corporation. 8. . 9. The allegations of these paragraphs constitute conclusions of law and therefore require no answer. However, for further response. it is averred that the denial of a cause of aetion by the Plaintiff against the Defendants as requested by the Defendants is contrary to the speeitie and plain meaning of the Pennsylvania Wage and ColleL'lion Law, 43 P. S. ~ 260.1 et seq., and sueh denial would constitute a violation of the Interstate Commerce Clause of the United States Constitucion. .2. -'" .; :1'~ 1i >- c-: L:". ... ". c' r.' \" () , , .\::' , ;.~j \ . , :.1 .. Cl ~ I' 0, \~.: c< / ._ I ~ t.' .:uj ..... '.0 I.''-!.... , ,~ \\, : r- C. c" ~,;) \);. .r; c:=-1 <l- ....... '" I' rt ~ " , , . { ., '" , 4 R ,. , , . , . ';'.' ,. ,': . ~ , , . as to each, the office held, the beginning and ending dates of the term of office, the number cf shares of stock held and the date of and price actually paid for their acquisition. The Defendants' reponse was as folows: Defendant was incorporated in December 1985 under the name of Quality Builders Warranty Corporation. The place of incorporation was Pennsylvania. Defendants object to the re.aining portion of thia Interrogatory aince it exceed. the acope of peraiaaible Diacovery and ia not calculated to lead to diacoverable or relevant inforaation. (Emphasis supplied.) PurDose of Interroqatory First, the information sought is within the bounds of permissible discovery in that the officers, as well as the shareholders may be liable for the injuries caused the Plaintiff. See the Opinion filed in this case on June 12, 1996, by Judge Bayley, dismissing the Defendants' Preliminary Objections, holding that Mr. Olshefski's position as a corporate officer exposed him to liability for the corporation's breach of contract with the employee, citing Laborers Combined Funds... v. Mattei, 359 Pa. Superior ct. 399, 402, 518 A. 2d 1296, 1298 (1986) (hOlding both the president and the secretary-treasurer liable under the act). Second, the information is sought also because of the possiblity that John Gill, counsel for the parties Defendants, may be one of the officers or shareholders of the Corporation. If he is, this may lead to a Motion to Disqualify Counsel on the basis of a conflict of interest contrary to Rules of Professional Conduct, No. 1.7; See Simbraw, Inc. v. U.S., 367 F. 2d 373 (3d Cir. 1966); Phoenix Mut. LiLe Ins. Co. v. RadcliLfe on the Delaware, Inc., 439 Pa. 159, 166, 266 A. 2d 698, 701 (1970): ".. .the right of a litigant to appear in person rather than by counsel does not apply to corporations, citing Industrial Valley Bank & Trust Co. v. Miller Realty, 44 Pa. Dist. & Co. R. 2d 207 (1967). Although we have never previously considered the question, generally speaking, we would have to agree with the holding in the IVB & T Co. Case Supra." If Mr. Gill is an officer or a shareholder, he may have a conflict of interest in representing the two Defendants. If he is merely "in-house" counsel, he may still have a conflict in that his income from the corporate Defendant may make it difficult for him to also serve as an officer of the court. -2- Plaintiff's Interrogatory No.5: 5. Identify each person who has been employed since the inception of the corporation, or the last five years, whichever is the lesser period, whose employment with the corporation was terminated whether by discharge or resignation and as to each, provide his or her full name as carried on the records of the defendant corporation; the beginning and ending dates of employment; whether the employee resigned or was discharged; whether any "wages" as defined by the Pennsylvania Wage Payment and Collection Law, were owing to the employee thirty or more days after the termination, disregarding any claims which the Defendants may have had to off-set the aforesaid wages; the amounts and nature of the claims or set-offs or counterclaims which the Defendants may have asserted or had available to assert; whether the employee retained an attorney, and if so, the name and address of the attorney; whether or not any suit was filed on behalf of the employee or by the corporation against the employee, and if so, its present status; whether or not any "wages" as aforesaid were paid by the Defendants more than thirty days after the employment was terminated, and if so, the amount and date of the payment. The Defendants response was as follows: The only suit instituted against QBW was that of the Plaintiff's attorney's stepson, which Plaintiff's attorney handled. Plaintiff's attorney is fully aware of the circumstance (sic) of that case. Defendants object to tbe re.aining portion of tbis interrogatory sinoe it exceeds tbe scope of permis.ible Disoovery and ie not oalculated to lead to discoverable or relevant information. (Emphasis supplied.) PurDos~ of Interroaatorv First, pursuant to section 10, Pennsylvania Wage Payment and Collection Act, 43 P.S. S260.10, Plaintiff is entitled to liquidated damages; evidence that the Defendants treated other employees the same as the Plaintiff in that they withheld "wages" owed for more than 30 days after termination of employment, whether in many (most) cases outrageous counterclaims were alleged; whether employees terminated or discharged were required to engage counsel before they were paid "wages" due them, etc. is admissable to show -3- a course of conduct by the Defendants which disregards the statutory injunction to pay without conditions wages owed at the termination of employment. Most of the employees live in other states, making the gathering of evidence expensive and difficult. While the exact number of employees involved is not known, some evidence suggests that the number of employees who meet the criteria in the Interrogatory maybe be significant. This information, in each case, is known to the Defendant Corporation and its CEO, the Defendant Joseph M. Olshefski, and is available in its corporate records. Second, as to employees not known to the Plaintiff who meet the criteria, further investigation will be necessary to determine if they also could furnish evidence relevant to the suit at hand. Plaintiff's Interrogatory No.6: 6. As to the individual Defendant, provide his full name and any other name, if any, which he has used or by which he has been known; his present residential address and the addresses where he has resided during the past five years; his marital status, and if married, the name of his spouse and the date and place of marriage; his date and place of birth; his social security number; his military service, if any; the schools attended and degrees or certificates obtained, if any; and, during the period May, 1994, through December, 1995, whe~her or not he was under the care of a physician, and if so, the name and address of the physician, and during the aforesaid period, whether or not he was taking any medication (whether prescribed by a physician or not), the purpose for which he was taking the medication, and the kind and amount of the medication he was taking, if any. The Defendants' rpsponse was as follows: Defendant objects to this Interrogatory since it exceeds the scope of permissible Discovery and is not calculated to lead to discoverable or relevant information. First, most of the information requested is the usual background information which goes to establishing the credability of the individual party Defendant Joseph M. Olshefski. Mr Olshefski is the CEO of the Corporate Defendant and the officer, or one of the officers, of the company who was responsible for the termination of the Plaintiff's employment. He has already been identified as a witness to be called by the Defendants. See Answer to Interrogatory No.2. -4- -- Second, the Defendant has acted toward the Plaintiff and others in a peculiar manner during discussions regarding their employment. Plaintiff wishes to rule out any illness or disease (requiring the use of mind-affecting drug treatment) as a source for these incidents. Motion for Protective Order Plaintiff lives in Antioch, Tennessee. She traveled to Pennsylvania to participate in her deposition. During the deposition, she was threatened by counsel for the Defendants that they would require her to appear again in Pennsylvania for further depositions. This threat is an an attempt to harass, intimidate, etc. the Plaintiff. She requests Your Honorable Court to issue a Protective Order against the Defendants to protect her from unreasonable annoyance, embarassment, oppression, burden, and expense. Plaintiff was requested to furnish the Oefendants her personal (home) telephone bills ~.. . showing itemization of long distance calls from January 1994 to present." Rescheduled Notice of Oral DeDosition, dated August 23, 1996. Plaintiff was employed by the Corporate Defendant from January 3, 1994 through January 29/30, 1995. During her period of employment she submitted her expenses, including long distance telephone calls for business purposes, for reimbursement. Since she is no longer employed in a capacity where she obtains reimbursement for long distance telephone calls, she no longer retains these telephone records. See OeDosition. pp. 4 - 9. Plaintiff has since the deposition acknowledged that she has no other records or phone bills. She objects to allowing the Defendants to secure copies of her phone bills for the period requested, since as to the period January 3, 1994 through January 29/30, 1995, they already have copies of the bills to the extent they are relevant and since the termination of her employment, they are not discoverable. Further, the compulsory production of the telephon~ bills would constitute a breach of her privacy. Relief Souaht Plaintiff requests that the Defendants be compelled to answer fully and with the detail requested the Interrogatories Nos. 4 , 5 and 6; if the Defendants fail to properly answer the questions, Plaintiff would ask the court to impose sanctions, including -5- TRACY BAISE TURNER . IN THE COURT OF COMMON PLEAS OF . . CUMBERLAND COUNTY, PENNSYLVANIA . V. . . . . QUALITY BUILDERS : NO. 96-1499 CIVIL TERM WARRANTY CORPORATION . . AND JOSEPH M. OLSHEFSKI . CIVIL ACTION - LAW . IW RB I DBPBNDANTS' MOTION POR PARTIAL SUMMARY JUDGMENT SBPOR! SHBBLY. P.J.. HOPPBR. J.. OLER . J. "'t 4- ORDER OP COURT AND NOW, this .J day of AUGUST, 1997, after careful consideration of the parties' briefs and oral argument, defendants' Motion for Partial Summary Judgment is DENIED. By e Court, (~., F- arold E. Sheely, .J. William H. Nast, Esquire For the Plaintiff John A. Gill, Esquire For the Defendant I.:...-j......'" ~..d.J.,.i fi/'1/9'1 ...j.y ISld TRACY BAISE TURNER . IN THE COURT OF COMMON PLEAS OF . CUMBERLAND COUNTY, PENNSYLVANIA V. . . . . QUALITY BUILDERS . NO. 96-1499 CIVIL TERM . WARRANTY CORPO~TION . . AND JOSEPH M. OLSHEFSKI . CIVIL ACTION - LAW . IN RE I DErENOANTS' MOTION rOR PARTIAL SUMMARY JUDGMEJlT BErORE SHEELY. P.J.. HorrER. J.. OLBa . J. OPIJlIOJl AND ORDIR or COURT Plaintiff has filed a Complaint against defendants seeking relief under the Pennsylvania Wage Payment and Collection Law (WPCL) for alleged unpaid salary, commissions, vacation pay, bonus, and fees owed to her pursuant to a written employment contract. Defendants contend that plaintiff, a Tennessee resident, is unable to recover under the WPCL. This motion was argued before the Court on May 28, 1997. FACTS Rule 1035.2 of the Rules of Civil procedure, sets forth as follows I After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (l) whenever there is no genuine issue of material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essdntial to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. NO. 96-1499 CIVIL TERM 42 Pa. C.S.A. S 1035.2. The record must be examined in a light most favorable to the non-moving party, with any doubts resolved in that party's favor. French v. United Parcel Service, 377 Pa.Super. 366, 371, 547 A.2d 411, 414 (1988). The facts necessary for disposition of the instant motion, and presented in a light most favorable to plaintiff, can be gleaned from the pleadings. Plaintiff is an individual residing in Antiooh, Tennessee. Defendant Quality Builders Warranty Corporation (QBWj is a Pennsylvania business corporation with its principal office located in Camp Hill. QBW administers a program in the housing industry whereby home-builders registered with QBW enroll homes in this program and the purchasers of the homes are protected by warranties. Defendant Joseph Olshefski is an individual who at all times relevant to this action was the President of defendant Qaw and its agent. In December of 1994, plaintiff came to Qaw's office for an employment interview and subsequently accepted an offer to become a sales representative for QBW. This offer was made to her by Olshefski at the Camp Hill headquarters. At the expense of QBW, plaintiff returned to the Camp Hill office for training. Plaintiff signed a contract on January 3, 1994, employing her as a QBW sales representative for the state of Tennessee. Plaintiff's duties under the contract included assisting in the establishment of the program in her assigned area as well as other future areas. Further, plaintiff was to recruit builders 2 NO. 96-1499 CIVIL TERM for the program and to provide certain other services. On January 29, 1995, plaintiff attended a National Builders Show in Houston, at which time she spoke to other employees about salary. As a result of this conversation, plaintiff left her employment, believing she had been discriminated against with regard to salary and other issues. Plaintiff now alleges that she is owed compensation for past performance under her employment contract. DISCUSSION The WPCL provides as follows: (a) Any employe or group of employes, labor organization or party to whom any type of wages is payable may institute actions as provided under this act. 43 P.S. S 260.9a. The right to recover wages "earned" by employees upon separation from employment is a statutory remedy which supplements rather than supplants a common law cause of action for breach of contract. Adam v. Benjamin, 426 Pa.Super. 543, 554, 627 A.2d l186, 1192 (1993). It is not disputed that gBW is covered under the definition section of the act: "Employer." Includes every person, firm, partnership, association, corporation, receiver or other officer of a court of this Commonwealth and any agent or officer of any of the above-mentioned classes employing any person in this Commonwealth. 43 P.S. S 260.2a. The issue at bar is whether the act was intended to benefit non-residents who are employed by a Pennsylvania corporation. 3 NO. 96-1499 CIVIL TERM As the parties acknowledge, there is no Pennsylvania appellate authority deciding the issue. In fact, very few cases in general have been generated since enactment of the WPCL in 1961. However, two federal cases have specifically addressed the application of the WPCL to a nonresident employee. In Killian v. McCulloch, 873 F.Supp. 938 (E.D.Pa. 1995), a class action suit was brought on behalf of employee/participants in a profit sharing plan against the officers of a corporation that went into bankruptcy. The Killian court found that the act's protections did not extend to individuals who were never based in Pennsylvania.' When again faced with the issue, this very same court in Eastland v. DuPont, 1996 WL 421940 (E.D.Pa)~ denied the defendant's motion to dismiss the cause of action pursuant to Killian. In Eastland, defendant alleged that the WPCL was inapplicable on two grounds. First, he contended that the plaintiff was not an employee as defined by Pennsylvania law. The Complaint alleged that Eastland acted as DuPont's personal advisor, assisted him in his writing ventures, acted as a personal representative, and recruited DuPont's staff. The court found that on the facts averred, it was not clear whsther Eastland was an independent contractor or an employee and denied Plaintiff erroneously states that this case was affirmed in an unpublished opinion; the cite given in the brief is inaccurate. ~ This case is reported only on Westlaw. 4 NO. 96-1499 CIVIL TERM the motion to dismiss on this ground. In the present case, the pleadings show that plaintiff was an employee. The second argument made in Eastland for dismissal of the cause of action under the WPCL was that the plaintiff's legal residence during the tenure of his relationship with defendant was in Idaho. Keeping in mind the foregoing facts related above, the court ruled as followsl . . . Eastland correctly points out that Killian does not address 'whether the Wage Law applies to an employee with numerous Pennsylvania work contacts who opened out-of-state office at the request of his Ponnsylvania employer.' The court finds that plaintiff's residence and citizenship alone do not defeat his claim under the WCPL. The court also finds that something less than full time in-state employment can trigger the WCPL's protections. Since the Complaint specifies neither where Eastland performed each of the various tasks enumerated nor how much time he spent in Pennsylvania performing services for DuPont, the court concludes that dismissing Eastland's WPCL claim would be inappropriate at this time. rd. at *5. Although this Court is not bound by thp. above decisions, we find them instructive and adopt the rationale of inquiring into the type of contacts plaintiff had with this Commonwealth. In the instant case, plaintiff alleges not only that she accepted employment and received training in Pennsylvania at the expense of defendant, but that every contract of sale was required to be submitted to the Pennsylvania corporate office where the sale was approved and finali~ed; she was instructed to report directly to the President, a Pennsylvania resident with his office address 5 NO. 96-1499 CIVIL TERM also in this State; various records were submitted to the Pennaylvania office on a regular basis with some of the records required to be submitted daily; documents setting forth the expenses for which she was to be reimbursed were required to be forwarded to the Pennsylvania office for payment; checks paying the expenses were writ~en at the Pennsylvania office at a Pennsylvania bank and forwarded to her from Pennsylvania; compensation paid to her by QBW was calculated at the Pennsylvania office and forwarded to herj. the checks for her compensation were from a Pennsylvania bank; to the best of plaintiff's knowledge, QBW had no other office except for its Pennsylvania office and had no office in Tennessee except for that maintained by plaintiff in her home at the request of and for the benefit of QBW. This Court cannot help but analogize this type of situation to the issue of personal jurisdiction, where a party who has established the requisite minimum contacts with the forum State is subject to being sued there in the interests of "fair play and substantial justice" in part because the party has derived the benefits of the State's laws.' In Colt Plumbing v. Boisseau, 435 Pa.Super. 380, 645 A.2d 1350 (1994), the appellate court reversed this Court and held that Boisseau, a nonresident employee, had sufficient contacts to establish personal jurisdiction. Some of , Kachur v. Yugo America, Inc., 534 Pa. 316, 632 A.2d 1297 (1993). 6 NO. 96-1499 CIVIL TERM the allegations that Colt Plumbing made in support of jurisdiction are similar to those of the presunt c~se. For instance, the nature of the relationship was the same: Boisseau was the sales representative for Colt Plumbing in the territory of Virginia. Boisseau kept in continuous contact with Colt Plumbing via telephone and facsimile. Additionally, Colt Plumbing maintained complete records of its customers, profits, and market shares concerning its Virginia territory in Pennsylvania. Of further significance, Colt Plumbing alleged that "Defendant's actions purposefully availed himself of the privilege of conducting business within the forum state involving the benefits and protection of Pennsylvania Laws." Additionally, there are even stronger facts to indicate sufficient minimum contacts in the present case. Unlike the Colt Plumbing case, plaintiff here had a written contract that was consummated in Pennsylvania, and she returned to Pennsylvania for training. rd. at 3B3-3B7, 645 A.2d at 1352-54. Therefore, this Court believes that under the facts of the present case, plaintiff's contacts with Pennsylvania would satisfy the requirements of the test for personal jurisdiction under the holding of Colt Plumbing, supra. It is doubtful that the Legislature intended to violate the notion of "fair play and substantial justice" by theoretically allowing a party in the position of plaintiff to be sued on the one hand because she 7 ; ~ Detendants I IN THE COURT 01' COMMON PLEAS OF I CUMBERLAND COUNTY, PENNSYLVANIA I I CIVIL ACTION - LAW I I I I I NO. 96-1499 CIVIL TERM TRACY BAISE TURNER, plaintiU v. QUALITY BUILDERS WARRANTY CORPORATION AND JOSEPH M. OLSHEPSlCI, IN REI DISCOVERY CONFERENCE ORDER OF COURT AND NOW, this 5th day ot May, 1997, upon consideration ot Plaintitf's Motion To Compel Answers to Plaintiff's Interrogatories and tor a Protective Order Pursuant to Pa. R.C.P. No. 4012 and ot Detendants' Reply to Plaintitf's Motion To Compel Answers to Interrogatories and tor a Protective Order, and tol1owing a discovery conterence held on Monday, May 5, 1997, in which Plaintiff was represented by William H. Nast, Esquire, and Defendants were represented by John A. Gill, Esquire, it is ORDERED and DIRECTED as follows I 1. Within thirty days of today's date Defendants shall furnish to Plaintiff the names and addresses of the otticers and shareholders of Defendant Quality Builders Warranty Corporation from January 1, 1992, to the present. 2. Within thirty days of today's date Defendants shall furnish to Plaintiff a list of claims from January 1, 1992, to the present for unpaid wages by employees of Defendant Quality Builders Warranty Corporation, indicating the name of the claimant and, to the extent known, the claimant's address in each instance. 3. Pursuant to an agreement of counsel, F!l~l)-omc:: Cc r ,,- r -r"\. cr:-:s ~1W~' -7 ;\': !r: 05 "Ill' \."...'i' - ...J F ..:~~r<::'I'~.',.., .. \ '-I' .