Loading...
HomeMy WebLinkAbout98-00510 '. v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JURY TRIAL DEMANDED DOUGLAS C. TILLEY, Plaintiff THE KOSTECKY GROUP, INC., and JOHN M. KOSTECKY, JR., Defendants NO. CJf. ,1-/ {'l Ci IIi I COMPLAINT AND NOW, comes the Plaintiff, Douglas C. Tilley, by his attorneys, wix, Wenger & Weidner, and files the within Complaint, as follows: Count I - Breach of Contract vs. The Kosteckv Group. Inc. 1. Plaintiff Douglas C. Tilley ("Tilley") is an adult ,r citizen of the Commonwealth of Pennsylvania residing at 1536 Fox Hollow circle, Pennsylvania. 2. Defendant The Kostecky Group, Inc. ("Kostecky") is Upper Allen Township, Cumberland County, a Pennsylvania business corporation with its principal place of business at 224 North Front street, Wormleysburg, Cumberland County, Pennsylvania. Kostecky owns a fictitious name filing for The Kostecky Group. 3. Defendant John M. Kostecky, Jr. ("Mr. Kostecky") is an adult individual of the Commonwealth of Pennsylvania who is an officer and director of Kostecky who has a business address of 224 North Front Street, Wormleysburg, Cumberland county, Pennsylvania. 4. Tilley is a registered architect and was employed by Kostecky pursuant to an employment contract dated August 20, 1992 .' 0, (the "Employment contract"). A copy of the Employment Contract is attached hereto as Exhibit A and is incorporated herein by reference. 5. Part of Tilley's compensation pursuant to the Employment Contract was a performance bonus for business that Tilley obtained for Kostecky through Tilley's efforts. 6. In spite of the clear requirements of the Employment contract, Kostecky never paid Tilley any commissions until Tilley left employment with Kostecky. 7. Tilley performed all obligations on his part to be performed in a satisfactory and timely manner on behalf of Kostecky. 8. On or about November 7, 1994, Tilley provided Kostecky with notice of his intent to resign from his employment at Kostecky in accordance with the Employment Contract. Kostecky provided Tilley with a letter confirming the resignation, which letter is dated November 23, 1994 (the "Exit Letter"). A copy of said letter is attached hereto as Exhibit B and is incorporated herein by reference as if fully set forth herein. 9. Pursuant to the Employment Contract and the Exit Letter, Kostecky paid Tilley a performance bonus on projects that Tilley had earned to that date. Tilley was paid $2,581. 72. Further, Kostecky promised to pay future bonuses as they accrued pursuant to the Employment Contract. -2- 0, 10. Kostecky has failed to pay further bonuses earned by Tilley, despite the clear requirements in the Employment Contract to do so and the promise of payment in the Exit Letter. 11. Kostecky has breached Kostecky's obligations pursuant to the Employment Contract, which obligations entitle Tilley to compensation in the form of performance bonuses for projects performed by Kostecky that Tilley had brought to Kostecky. Attached hereto as Exhibit C and incorporated herein by reference is a list of all projects known to Tilley for which performance bonuses are owed. The performance bonus owed is at least $13,142.65. 12. Tilley is entitled to a complete accounting of Kostecky's records to determine what other bonuses are due to and owing to Tilley in addition to those set forth on Exhibit C. 13. Kostecky has refused to pay the bonuses due and owing to Tilley pursuant to the Employment Contract, despite demand made in writing. 14. Tilley is entitled to pre-judgment interest at the legal rate for Kostecky's breach of contract. Pre-judgment interest should accrue on each project from the date that the bonuses were due until jUdgment is entered in this case. 15. Tilley is further entitled to post-judgment interest at the legal rate until payment is received. -3- 16. Plaintiff believes and avers that the amount in controversy exceeds the amount requiring compulsory arbitration pursuant to Cumberland County Rules of Court. WHEREFORE, Tilley demands judgment against Kostecky in an amount in excess of $10,000.00, plus pre-judgment interest, post- judgment interest, and costs of suit. Count II - Waae pavment and Collection Law vs. The Kosteckv Groue. Inc. and John M. Kosteckv. Jr. 17. Paragraphs 1 16 are incorporated herein by reference as if fully set forth herein. 18. The bonus payments that were due to Tilley pursuant to the Employment Contract and the Exit Letter are "wages" as that term is defined in the Wage Payment and Collection Law, 43 P.S. S 260.1 et seq. (the "Act"). 19. Pursuant to the Exi t Letter, Kostecky and Mr. Kostecky agreed to pay commissions in the future as they arose. 20. Mr. Kostecky and Kostecky have repeatedly promised Tilley that payments would be forthcoming. To date, no payments have been made despite the assurances made by Mr. Kostecky and Kostecky. 21. Tilley is entitled to wages pursuant to the Act. 22. Tilley is entitled to collect a penalty of twenty five (25%) percent in addition to the wages owed to him pursuant to the Act, 43 P.S. S 260.10. -4- Hr. Douglas c. Tilley Auqust 20, 1992 Page 2 d. a 40l(K> pension plan with salary deferral up to ten percent (10'> of total compensation and fifty percent (SO,> matching company funding provisions up to eix percent (6'> of total compensation plus a profit sharing plan with discretionary company funding. Eligibility requires that you be employed with our firm for a period of one year. Subssquent entry into the plan is either January 1 or July 1 following the anniversary date. 4. All promotion, entertainment or other authorized expenses incurred during the day to day execution of your position will be reimbursed on a monthly expense report plus itemized receipt submittal basis. An advance of $500 towards these expenses will be issued to you immediately upon etart of employment. 5. The position includes company provided transportation which will consist of a fully equipped full size four door sedan. The company will provide maintenance, insurance and local gasoline. OUt of town gasoline expensee will be reimbursed on an expense account plue receipt basis. 6. A cellular telephone will be provided in the above automobile. 7. There will be a bonus provision based on performance for each fiscal year of service. This performance bonus will be calculated on One Percent (1.0'> of total fee income for each fiscal year from design contracts for which you are directly responsible for bringing into the firm. The firm reserves the right to adjust performance bonus uaLculations after $4,000,000 in fee levels per fiscal year are achieved. Prorata payment of the performance bonuses are made upon receipt of project fse income from the contract billings. 8. In addition to the performance bonus provisions, you will also be eligible to participate in our general bonus program. This program is at my discretion and is directly related to your performance and its contribution to company profit status. 9 The firm will provide you with a living subsidy for a period of up to 30 days between start of employment and the acquisition of a residence in the Harrisburg area. This subsidy is primarily designed to cover the cost of temporary housing and subsistence and is established for the purposes of this agresment at $50 per overnight stay. 10 The firm will provide you with a relocation allowance of an amount to be determined after estimates are received from professional moving companies for moving expenses. The allowance will also include an approppriate sum to cover miscellaneous costs associated with the relocation process. Payment will be made immediately upon presentation of ~ppropriate invoices, agreements, etc. The Kostecky Group ') ." '. Hr. Douglas c. Tilley August: 20, 1992 Page 3 11. Employment: wit:h The Xost:ecky Group and all condit:ions associat:ed wit:h such employment as stated above shall be assured for the period beginning wit:h start: of employment: and ending september 21, 1993. Please call if any of t:he above is cont:rary t:o your underst:anding. Doug, as st:at:ed earlier, I am confident: t:hat: your professional at:t:itude and skills will contribute in a posit:ive manr.er to t:he future development of The xost:ecky Group. We look forward to a long ~~d good personal and professional relationship. Sincerely, TIIB lWS'l'BCltY GROUP Jo~e~~ ~ JKK/ps eCI Ed Bit:ar The KoBtecky Group ') , \ ~~ ArcbJllJct8 Engineers Planners ConetruclJon Managers November 23, 1994 Mr. Douglas C. Tilley 1536 Fox HoUow Circle Mechanicsburg, PA 17055 Dear Doug: This correspondence acknowledges your resignation from Tne Kostecky Group effective Friday, November 18, 1994. The foUowing Is a summary of the status of compensation due and aU fringe benefits relative to this resignation: 1. Your W-2 withholding statement for 1994 income will be forwarded no later than January 31, 1995. 2. Final payroU check No. 3773, dated November 18, 1994, in the amount of $1,695.36 for pay period ending November 19, 1994 Is enclosed, from which the $500 advance issued you on September 23, 1992, has been deducted. 3. Your Leave Time Record indicates you have taken aU of your pro-rated leave for 1994. " , 3. Check No. 8677, dated November 18, 1994, in the amount of $249.70, for October and November 1994 expenses Is enclosed. 4. Your Blue Cross/Blue Shield health insurance coverage will be canceUed effective November 30, 1994. However, in accordance with Consolidated Omnibus Budget Reconciliation Act (COBRA) you and your dependents are eligtble for continuation of your health care coverage. Please contact Jean Serynek immediately if you want to continue your coverage. Continuation requires that your premium payment be received in this office prior to the beginning of each month of continuation. 5. Your life insurance and long term disability will be canceUed effective November 30, 1994. 6. Questions regarding your retirement plan should be addressed to Eichelberger Management Services at 717-761-7626. 7. Check No. 3795, dated November 23, 1994, in the amount of $2,581.72 Is also enclosed. As we dis=d, this represents prorata payment of your contracted performance bonus for the fuU period of your employ. It Is anticipated that subsequent prorata payments of the bonus calculated on the fee balance will be made on a quarterly basis. Sincerely, TIlE KOS1ECKY GROUP Jorf'k~J~ ~ Enclosures Douglas C. Tilley Fee income Analysis, dated September 21, 1992 - November 18, 1994. 224 Norlh Fronl Slreel. Wormleysburg (Harrisburg). PA 17043 (717) 763-5661 EXHIBIT "B" DOUGLAS C. TILLEY - FEE INCOME ANALYSIS Project No. Fec Bonus 927.02 Coatesville Area School District $ 33,306.00 $ 333.06 Chiller Replacement Senior High School Coatesville Feasibility Study $ 20,000.00 $ 200.00 929 Accessibility Improvements $ 565.00 $ 5.65 Perry Point Veterans Medical Center Perry Point, MD 932.11 Taco Bell $ 11,495.00 $ 114.95 Carlisle, PA 932.12 Taco Bell $ 3,475.00 $ 34.75 Whitehall, PA 932.13 Taco Bell $ 11,495.00 $ 114.95 Feasterville, PA 932.14 Taco Bell $ 11,495.00 $ 114.95 Gettysburg, PA 932.15 Taco Bell $ 4,865.00 $ 48.65 Various Sites - PA 937 Courthouse Annex $150,000.00 $ 1,500.00 Franklin County CM Courthouse Annex - 50% $ 27,668.00 $ 276.88 130 Franklin County 938 Rear Gate Renovations $ 4,626.00 $ 46.26 Lewisburg Penitentiary 946 General Admin. Bldg. & Gatehouse $ 41,855.00 $ 418.55 Western Correctional Institution Cumberland, Maryland 947.01 Day Care Facility $ 1,400.00 $ 14.00 JCC - Reading, PA 955 Additions and Renovations $ 10,000.00 $ 100.00 First United Methodist Church Mechanicsburg, PA 956.01 Chevys Mexican Restaurant $ 49,500.00 $ 495.00 Arlington, V A EXHIBIT "e" '. 956.02 Chevys Mexican Restaurant $ 45,000.00 $ 455.00 Grecnbelt, MD 958.01 ADA Barrier Frec Modifications $ 3,850.00 $ 38.50 Chester County Intermediate Unit Brandywine Campus - Coatesville 961 ADA Barrier Fee Modification $ 3,950.00 $ 39.50 Cumberland Perry Area Yo-Tech Mechanicsburg, PA 965 Elementary School $529,000.00 $ 5,292.00 Mount Carmel Area School District (approx.) Mount Carmel, PA 966 Center for Earth and Environmental Sciences $350,000.00 $ 3,500.00 Union College (approx.) Schenectady, NY TOTAL: $13,142.65 (plus T&M projects, bonus on the Go1dsboro Post Office project, and interest) UNDETERMINED T&M PROJECTS Project No. 927.08 Coatesville Area School District Foundry Street Sidewalk Coatesville Area SD Campus 927.09 Coatesville Area School District Fire Damaged Structure Inspections Senior High School 927.10 Coatesville Area School District K-5, 6-8 Conversion Analysis Scott Intermediate High School 954.01 United States Postal Service Parking Deck Improvements Pottsville, P A Fee Bonus