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Home My WebLink About00-08876 ~". Uo ,'I ,,1"':""0 ~, ~ 'l>,,', ' !"'<':""',,,:,, ..,;~ ..\i PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and subnitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next ArgIInent Court. --------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption IIR.I5t be stated in full) James A. Kise, Plaintiff (Plaintiff) vs. JURY TRIAL DEMANDED Pennsylvania Office Services Group and Linda Till, Defendants (Defendant) No. 00-8876 Civil Law x", 2000 1. State matter to be argued (Le., plaintiff's lIDtion for new trial, defendant's danurrer to canplaint, etc.): Defendants' demurrer to complaint. 2. Identify cOlmsel who will argue case: ( a) for plaintiff: Address: Glenn R. Davis, Esq. Latsha Davis & Yohe, P.C. P.O. Box 825 Harrisburg, PA 17108-0825 (b) for defendant: Address: Kenneth A. Wise, Esq. 126 Locust Street P.O. Box 11489 Harrisburg, PA 17108-1489 3. I will notify all parties in writing within blo days that this case has been listed for argunent. Yes. 4. Argument Court Date: Next argument list. Dated: ~lU:Jo Attorney for Defendants &~~C '~N'"'h"i_~.~'~"'< ,~.,'~~.,~ UL" "<~~, ,~~ ~, :ii\m4~fi;i't';"~~i'8iigi!t~';\i3fli!ili~~_''''"-'''''''<"IIIIJI. . '-~.~, " ~~" "'~,- .' ,~,,> .~" e ," ,""'__~'""""",,, ",",~e ' "' ," .., ~\\w;iliiiidlii8M'! ' "....~'" .= 0 c:) ;:: -n f!: m r,": L:'::r' ~~0 ei~:~-, t'=' ~C ~E'~ -~ ~S'; lD ;-"'i > C -:::.! ~~ :::> "';""" ~:;"., :<: (:::> =< "~ ,--~ ." "~ ti'4 -&iI0' - ",.-1 - " J I ~" ~ ..> ~ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA JAMES A. KISE, CIVIL ACTION - LAW Plaintiff v, No, to - -;:q-7~ ?~ PENNSYLVANIA OFFICE SERVICES GROUP, and LINDA TILL JoC( ~ i;i'J:Lw-~ jbwll(lfA:~ 1Ji.11PjI?efendants JURY TRIAL DEMANDED PRAECIPE FORA.WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please issue writ of summons in the above-captioned action. Writ of Summons shall be issued and forwarded to ~Attorney ( )Sheriff. ~~ . 1 ture 0 Attorney Id. No, 16Y;; r Date: )111 U. tlO Kenneth A Wise, Esq]jire p, O. Box 11489 126 Locust Street Harrisburg, PA 17108-1489 (717) 238-3838 WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT,; YOU ARE NOTIFIED THAT THE ABOVE NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOu. /5/ ~. RX~ Prothonotary Date: f:&. 0;9. ~ by: ~ /2:: ~ n;;t DepuT t7 ( ) Check here if reverse is issued for additional information, __',l:l,',;;:",; '"lI(iJl ...mI'Ji!iiAi W,,=,. ' ',','f ': . ~ r1~~fi~~'~~,'~'"~;'f:~~'Qit~#'1S~(i2et,h{i<!~,;-%",,"i ";-,,h,";'~"'"~~"~'""" ,j;ffi-l".'"(A;;f;,ml"~:~w,f,ji;Jlg'-Mffl~k1kM;}@~@!i'5)'J!'!m",'li,<M~1~.~"'~~~~I~rJ.i~~'1H lillJ "'r-~'" '8-->"__;,;,,;,l;"~1,,.LJT..., ""__' , '__""~ "__". u~ ~~. t'} ~b 'J' ~' ~, "'". '~~', ~,., "~ ,~ ,~~. ,,~"'. "~ _",'.' __"J~~ ,~ :~ <I' ct- . r'.'~ ;:.'\ ' ~\;"''3 ~ ~"..~. \ \~ ~~~ } , ~ " o ~ ~?,:: ,.7r- ~;> '-' i;3 '.,2 ---1 -< C;" < C) :::;~ C) ;....., \.D --::J :',) fJl ~ -'""~ 5J -<: J! 1 " ,I 1. C,", .,'1 ,1.. " it ~...,~- .~"'''" ..... ... IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA JAMES A. KISE, Plaintiff CIVIL ACTION - LAW v. No. 00-8876 Civil PENNSYLVANIA OFFICE SERVICE GROUP and LINDA TILL, Defendants JURY TRIAL DEMANDED PRAECIPE FOR RULE TO FILE COMPLAINT TO THE PROTHONOTARY: Please enter a Rule upon Plaintiff, James A. Kise, in the above-captioned matter to file a complaint within twenty (20) days of service of the Rule or suffer a judgment of non pros. LATSHA DAVIS & YOHE, P.e. By (~~Qok Glenn R. Davis Attorney 1. D. No. 31040 P. O. Box 825 Harrisburg, P A 17108-0825 (717) 761-1880 Attorneys for Defendants, Pennsylvania Office Service Group and Linda Till AND NOW, this J () --t-Z. day of has been entered upon Plaintiff as above directed. ..J ~C-t ::- /) '- r ( ,2001, a Rule Curt LOng, ,pmth=o~ By t?t~) k, 63133_1 -, ~~ ~. L.. ~ .1' , . jl , '""". ,~ '. " -- 1t.~,5, ~~. ... ~ , , - CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing Praecipe for Rule to File Complaint was served by first-class United States mail, postage prepaid, upon the following in conformity with Pa. R.ep. 440: Kenneth A. Wise, Esq. 126 Locust Street P. O. Box 11489 Harrisburg, PA 17108-1489 Dated:~ ~~~ Glenn R. Davis 63133_1 ",;l"':;;~-~'~;;"';"r;'-'{~~~__.r' ::" ':"",,,,,,-,' e~i%*~-m1li!A,."':m>':%w,-~,~illl~n~ _0'_' - ~ W~_ I~ , .' " = " .' ,~....'-'", .... ~' i~ ~n () ~~;~ ;:g f( :2=~~ 01-' ,~ 5~~; ~ 3; -~ , -in" c; a ~I . , .,<~ -c- .~ ". "') ,- ----... , ' ~ :E ....<: "'" - .- j ~ L,.~ ~~fu1'~'" JAMES A. KISE, : IN THE COURT OF COMMON PLEAS : CUMBERLANDCOUNTY,PA Plaintiff . : NO. CX>--8'67(. v. : CIVIL ACTION - LAW PENNSYLVANIA OFFICE SERVICES GROUP, and LINDA TILL Defendants : JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE TillS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. DAUPHIN COUNTY LA WYERREFERRAL SERVICE 213 N. Front Street Harrisburg, P A 17101 (717) 232-7536 NOTICIA ,"~' .' ~- I '~--' "'" ~u . .~~!JlH~~'m:-ff.;oI,'~i^ Le ban demandado a usted en la corte. Si usted quiere defenderse de estas dernllnrlllS expuestas en las plleina.~ siguientes, usted tiene viente (20) dias de plazo at partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objectiones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso 0 notificacion y por cualquier queja 0 alivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades 0 ostros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TlENE ABOGADO 0 SI NO TlENE EL DINERO SUFIClENTE DE P AGAR TAL SERVICIO, V AYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA A VERIGUAR DONDE SE PUEDE CONSEQUIR ASISTENCIA LEGAL. DAUPHIN COUNTY LAWYER REFERRAL SERVICE 213 N. Front Street Harrisburg, P A 17101 (717) 232-7536 , , , , ~ '. ,J, .-1 '~~!"'f.;i,,,,,,,, JAMES A. KISE, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA : NO. 00-8876 v. CIVIL ACTION - LAW PENNSYLVANIA OFFICE SERVICES GROUP, and LINDA TILL Defendants JURY TRIAL DEMANDED COMPLAINT COUNT! AND NOW, comes Plaintiff James Kise by and through his undersigned counsel and respectfully makes the following complaint against Defendants, setting forth in support thereof as follows: 1. Plaintiff James A Kise is an adult individual residing at 27 North Seventh Street, Columbia, Lancaster County, Pennsylvania. 2. Defendant Pennsylvania Office Service Group ("PO SO") is a corporation duly authorized and existing under the laws of the Commonwealth of Pennsylvania with its principal place of business at 309 South Tenth Street, Lemoyne, Cumberland County, Pennsylvania, 3. Defendant Linda Till is an adult individual with a principal place of business at 309 South Tenth, Lemoyne, Cumberland County, Pennsylvania, At all times pertinent hereto, Defendant Till is the President ofPOSG. 4. Plaintiff was employed by Defendant POSG as a sales representative from approximately July 13, 1998, until June 14, 1999, , ,'. ~ m1~ "'.. 'J!,~~,1$,;~<!lii*"'-"'." 5, The general terms and conditions of Plaintiff' s employment with Defendant POSG are set forth in a letter dated June 22, 1998, from Defendant Till to Plaintiff. A copy of this document is attached hereto as Exhibit "),:' and is incorporated by reference herein. 6. Defendants have failed to pay Plaintiff commissions due and owing to him during the period of his employment which were undeclared and unpaid, or underpaid, or had improper assessments or deductions made from them_ Plaintiff has made a claim for wages due in violation of the Pennsylvania Wage Payment and Collection Law. That claim is contained in an action styled James A. Kise v. Pennsylvania Office Services Group and Linda Till; Defendants, and docketed at number 99 - 5210 - Civil of the records of the Office of the Prothonotary of Cumberland County, Pennsylvania. The allegations are set forth in the allegations contained in the First Amended Complaint which i~ incorporated generally by reference herein. 7. For the reasons set forth above, Plaintiff had earned commissions of no less than $59,711.90 and was paid against those commissions due and owing only $12,692.35. 8. Defendant Till made a decision not to pay Plaintiff wages and commissions due him under the terms of his employment agreement, and she fraudulently altered the records of Defendant POSG in order to deny Plaintiff the full commissions he was due. 9. To the extent that Plaintiff's claim as contained in Exhibit "B" of his First Amended Complaint in the prior action (99 - 5210 Civil) is either not listed or does not constitute a violation of the Pennsylvania Wage Payment and Collection Law, Plaintiff believes, and therefore avers that Defendants are liable to him for the amount claimed in Exhibit "B" to the , First Amended Complaint because Defendants' actions constitute a breach of contract. , I, " ." ~ ' 11'll. '~~_wifi..""k-'-<<!'" 1 O. Defendant received valuable service from Plaintiff of work in generating sales which Plaintiffs realized, 11. Defendant modified the terms and conditions ofPlaintifP s employment and has manipulated certain receipts of sales so as to avoid paying Plaintiff under the terms and conditions of the employment contract. WHEREFORE, to the extent that there are wages due and owing to Plaintiff which are not covered by his action filed at number 99 - 5210 - Civil filed in the Office of the Prothonotary of Cumberland County, Plaintiff respectfully requests judgement in his favor in the amount of $47,019.55, together with interest, costs of suit, and punitive damages, COUNT IT 10. Paragraphs 1 - 9 above are incorporated by reference herein_ 11. To the extent that Plaintiff's claim does not constitute wages, Defendants have kept the benefit of valuable services provided by Plaintiff under circumstances not authorized by any contract of employment and under circumstances which would make Defendants' retention of the value of such benefits unfair. 12, The value of the benefit conferred on Defendants by Plaintiff's sales activities is no less than $47,019_55. ""' -" 1", ~ifuWd""".",-of*"" WHEREFORE, Plaintiff respectfully requests judgement in his favor in the amount in el(cess of$47,019.55, less any monies he may be due by reason of his claim filed in this Court and docketed to number 99 - 5210 - Civil, together with interest, costs of suit, and punitive damages. Respectfully, ~ r Date: 1--1J tfh.- t/ I ,,//~ Kenneth A Wise, Esquire Id. No. 16142 126 Locust Street P. O. Box 11489 Harrisburg, PA 17108-1489 (717) 238-3838 Attorney for Plaintiff James A Kise , ""~" . j" l - - , ~ ^", .1 -' iiiW,,,,- VERIFICATION Upon my personal knowledge or information and belief, I hereby verify that the facts averred in the foregoing Complaint are true and correct to the best of my knowledge, information, and belief. I understand that false statements or averments therein made will subject me to the criminal penalties of 18Pa.C.S. ~ 4904 relating to unsworn falsification to authorities. Date: 0/ ~a ~I ( I "~'iwi Jf [.~ ... _,,,',j,;.., - I. ~~""""""""-t,J>-"'iI'rt" ~ ;; :!;>. ,..,'-, ';J .~ ' lennsylvania Office Service Graup Ergonomic Furniture & Supplies June 22, 1998 Jim Kise 27 N. 7th Street Columbia, PA 17512 Dear Jim: I want to take this opportunity to welcome you aboard with Pennsylvania Office Service Group, Inc. Your responsibilities will the PA State Contract Sales Specialist. The official start day will be July 13, 1998. Our office hours are 8:00 am to 5:00 pm, but as a Sales Specialist your hours 'need to be flexible to meet the needs of your clients. Your earnings will be $30,000 annually for the first six months of your employment. At the end of a six month period the $30,000 annual fixed rate will be a $30,000 maximum draw until your commissioned earnings exceed your draw. That is the point where you will be earning commission. At that time, you do receive maximum freedom of your working hours. Pay days are the 15th and the last day of the month, You will be eligible for the company paid insurance coverage for yourself after the first month. If you choose the Short-Term Disability coverage, you will be responsible for this cost. You will also receive coverage of $10,000 of Life Insurance after the first month period. Your focused area will be the State of PA Harrisburg offices to include Penn Dot, Public Welfare, Dept. of Revenue, DEP, DCNR, Auditor General, Attorney General to name a few of the largest agencies. However, DCED and State Police Headquarters will remain my personal accounts until your experience and the consent of the client allows the turnover of those clients to your management. There are existing clients outside Harrisburg that will remain the existing salesperson. Those clients that are not currently purchasing from POSG are open targets. As discussed and mentioned specifically, the Ephrata State Police and Millersville University opportunities will beCC?rne yours. .-:..i....,. ~ .' '309 South 10th Street. Lemoyne. PA 17043 . [7171 763-4793 . (8001 241.8895 . FAX (7171 763-5652 ~.' " . "I ~' J1 " : Jim .Kise . ,.J':'..,'" '. eage Two June 22, 1998 Upon arrival on July 13, 1998, you will receive a copy of our policy manual that explains vacation, holiday and other benefits and responsibilities. The only time requirement would be to att~nd our staff meeting every Monday morning at 8:00 am. . You are scheduled to attend the GF Sales Training on July 18th and 19th in Gallatin, TN. Flight schedules are attached. I am also asking your commitment to the Dale Carnegie Sales Advantage course starting August 31, 1998 running 13 weeks on Monday nignt, 6:30 pm until 10:00 pm at the Holiday Inn in New Cumberland. I personally look forward to becoming a part of our team and know that your journey will be successful. Sincerely, ~~ Linda Till President " 'l, ~, Iln ;- - ... o. . ~. '. I l "~ ,\0 I !liII~~'~,jt,'I" CERTIFICATION I hereby certify that I am this day serving a true and correct copy of the attached Complaint on the following individual by First Class U.S. Mail addressed as follows: Glenn Davis, Esquire Latsha, Davis, & Yohe, P.C. PO Box 825 Ramsburg, PA 17108-0825 Date: ,oJIf;v- ~/ / ! //~ /~f~ / ,''''-'' , ~1tI14/;1dfU;? .Kenneth A. Wise, Esquire ill No. 16142 126 Locust Street P. O. Box 11489 Rarrisburg,PA 17108-1489 (717) 238-3838 Attorney for Plaintiff James A. Kise ~~~~, j I " "~"... '. : " ,.L ) ,0,': r ~ ., -, " . " IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA JAMES A. KISE, Plaintiff CIVIL ACTION - LAW v. No. 00-8876 Civil PENNSYLVANIA OFFICE SERVICES GROUP and LINDA TILL, Defendants JURY TRIAL DEMANDED ORDER AND NOW, this _ day of , 2001, it is hereby ordered that Defendants' Preliminary Objections are hereby sustained and Plaintiff's Complaint is dismissed with prejudice. BY THE COURT J. 64063 , -f " 1- j', -, ~". " , .' b.' """""(~~k ( t " 'r . IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA JAMES A. KISE, Plaintiff CIVIL ACTION - LAW v. No. 00-8876 Civil PENNSYLVANIA OFFICE SERVICES GROUP and LINDA TILL, Defendants JURY TRIAL DEMANDED NOTICE TO PLEAD You are hereby notified to plead to the enclosed preliminary objections within twenty (20) days from the service hereof or your Complaint may be dismissed. LATSHA DAVIS & YOHE, P.e. By G>...~~ Glenn R. Davis Attorney L D. No. 31040 Chadwick O. Bogar Attorney LD. 83755 P. O. Box 825 Harrisburg, P A 17108-0825 (717) 761-1880 Attorneys for Defendants, Pennsylvania Office Service Group and Linda Till 64063 "' ".' 1.'- l , . " , ,,' '-' ___~~-'C',- , -, .. ., ... IN 'IHE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA JAMES A. KISE, Plaintiff CIVIL ACTION - LAW v. No. 00-8876 Civil PENNSYLVANIA OFFICE SERVICES GROUP and LINDA TILL, Defendants JURY TRIAL DEMANDED DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, come Defendants, Pennsylvania Office Services Group and Linda Till, by and through their attorneys, Latsha Davis & Yohe, P.c., and file the following preliminary objections to Plaintiff, James A. Kise's, complaint: 1. Plaintiff commenced this action by filing a writ of summons on or about December 29, 2000. 2. On or about January 30, 2001, Plaintiff filed a complaint, setting forth two causes of action in separate counts. 3. Prior to the filing of the aforementioned writ of summons and complaint, Plaintiff had filed a complaint against the same Defendants in the instant action on August 25, 1999, at No. 99-5210 in the Court of Common Pleas of Cumberland County, which he amended on September 28, 1999. 64063 I'" ~ " l ~ ~l '-'""'--~v""_'~'" " .. -- ';-' 4. In his amended complaint Plaintiff alleges that Defendants violated Pennsylvania's Wage Payment and Collection Act, 43 P.5. S 260.1, et seq., by failing to turnover commissions earned by him. 5. Count I of the instant action, which sounds in breach of contract, arises out of the same "transaction" as the aforementioned amended complaint and, therefore, it is barred. 6. Count II of the instant action is ostensibly grounded in equity, although it is entirely unclear upon which equitable principle. 7. Count II of the instant action is barred by Plaintiff's failure to exhaust an available statutory remedy and the availability of an adequate remedy at law. WHEREFORE, Defendants, Pennsylvania Office Services Group and Linda Till, demur to the above-captioned action and request that this Court enter an order dismissing it with prejudice as well as award costs and fees incurred by Defendants in the defense of this matter. Respectfully submitted, LA TSHA DAVIS & YOHE, P.C ~~~ Glenn R Davis Attorney I. D. No. 31040 Chadwick O. Bogar Attorney I.D. No. 83755 P. O. Box 825 Harrisburg, PA 17108-0825 (717) 761-1880 Attorneys for Defendants, Pennsylvania Office Service Group and Linda Till By 64063,1 2 , ~ - L " ~ L " , 11 lil';,,;- , -, "r CERTIFICATE OF SERVICE '.' ,. The undersigned hereby certifies that on this date a true and correct copy of the foregoing Defendants' Preliminary Objections to Plaintiff's Complaint was served by first-class United States mail, postage prepaid, upon the following in conformity with Pa. R.c.P. 440: Kenneth A. Wise, Esq. 126 Locust Street P. O. Box 11489 Harrisburg, PA 17108-1489 Dated: aJ/3J ()/ ~oJ1 {).(?~ Deborah A. Peterson Legal Secretary 64063 ~ '~' ,~; ~,.- 81kLg r ~ ~",' 0'::"''-'" tii:l'llJ!li;:'~!IIki!~Q-$,M.~,'i!1i4/4:;ilii~..[:r'llm ..,r R'"' ,......'~'.lw"' 'Mr~H'~'--<"_ =~-~ ." "~;.ii1 ";'.",,1~'- -,~ .~ "''-'''"' o c S "OJ:"J7 nlf1-; ;;:::::: . ~~J :'- :Z~:~ 5>~': z ::c! c' ....-, C"1 ',,:}J ,~ ' i.l \ '" -~.- " , ';":-~ ':c; "v ::h "'iL~ :;::2~:~~ 2" '.J;.t- 2;: :..0 :::> (P -,' ~ . ~ ,"." _"~ ~""''''''-~'^,',~ "''',~'" r'~'''',', _. ,1.'~ ',C;j"c"~. '" "''''~'" , JAMES A. KISE, Plaintiff vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 00-8876 CIVIL CIVIL ACTION - LAW PENNSYLVANIA OFFICE SERVICES GROUP and LINDA TILL, Defendants IN RE: DEFENDANTS' PRELIMINARY OBJECTION TO PLAINTIFF'S COMPLAINT BEFORE HOFFER. PJ., HESS AND OLER, JJ. ORDER AND NOW, this 1/' day of June, 2001, at docket number 00-8876 Civil, the preliminary objection of the defendants to the effect that the complaint of the plaintiff is barred by PaKC.P. 1020 is GRANTED and the complaint of the plaintiff DISMISSED. BY THE COURT, --/v A4- Ker. Hess, 1. Kenneth A. Wise, Esquire For the Plaintiff :r/m :) /~ .1:\).0 \9 Glenn R. Davis, Esquire For the Defendants :'.~ I _ .~'" -,< - Gr-: ~,(:~:LS'~~Lo',':F/Gr:: ':}J'\,::jJ;~RY 01 JLlN -8 p' , i1 2: & J CWvW~~~gJiv~U1VTY , . "",,,,,,,~~~..w.j~~l'!liiWi~~~~~~[~~~o'lIil!~,. '~", ' , .', "..J.' _ ~,' ",',' . "', ",: "_", .b5' ",' ,~Ij':j~, ~,.O),.':"".,__,l;;~','",__', 'w" JAMES A. KlSE, Plaintiff vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99-5210 CIVIL CIVIL ACTION - LAW PENNSYL VANIA OFFICE SERVICES GROUP and LINDA TILL, Defendants JAMES A. KlSE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA vs, 00-8876 CIVIL CIVIL ACTION - LAW PENNSYLVANIA OFFICE SERVICES GROUP and LINDA TILL, Defendants IN RE: PLAINTIFF'S MOTION TO AMEND COMPLAINT. AND DEFENDANT'S PRELIMINARY OBJECTION TO PLAINTIFF'S COMPLAINT OPINION AND ORDER Pending before the court is a preliminary objection to the complaint filed to 00-8876 and a motion to amend the complaint filed to 99-5210. For reasons which will become apparent, we dispose of these motions together. On August 25, 1999, the plaintiff, James Kise (Kise), filed a complaint against Pennsylvania Office Services Group (POSG) and its president, Linda Till, which he subsequently amended on October 15, 1999. This action docketed to 99-5210, featured one count, premised on the Wage Payment and Collection Law ("WPCL"), 42 P.S. 260.1 et seq., seeking damages in the amount of$47,019.55. In his complaint, the plaintiff recites that he was employed by the ~ -- - ~ ~'. "" ,-- ".'"=..", &.? 99-5210 CIVIL , 00-8876 CIVIL defendant, POSG, an office furnishings and supply company, as a salesman. He worked on a commission basis and was employed by POSG from July 1998 until June 1999. Kise alleged that POSG failed to pay him commissions due for sales he had made during his employment with the company, The plaintiff filed a second action, docketed to 00-8876 Civil, on December 29, 2000. This complaint contained two counts; one for breach of contract and the other in quantum meruit. As with the single count in the first action, both counts of the second complaint sought damages in the amount of $47, 019.55. The defendants filed preliminary objections to the plaintiffs second complaint noting that it stemmed from the same transaction and occurrence as the complaint filed earlier. Oral argument on these preliminary objections was held on March 28, 2001. On April 23, 2001, perhaps in acknowledgment that his second complaint was filed in error, the plaintiff filed a motion to amend his first complaint, seeking leave of court to add a second count for quantum meruit. The defendants have objected to the proposed amendment arguing that it is too late for the plaintiff to add a second count and, given the availability of a statutory cause of action, the plaintiff is barred from the equitable remedy of quantum meruit. Oral argument on the plaintiff s motion to amend was held on May 23, 2001. We first address the question of whether or not the plaintiff s second action is barred by Pennsylvania Rule of Civil Procedure 1020. That Rule provides, in pertinent part: (d)(I) If a transaction or occurrence gives rise to more than one cause of action against the same person, including causes of action in the alternative, they shall be joined in separate counts in the action against any such person. 2 ~ '"..', ~' ~"< ....,. "..' , , "" ,""~_"",, ',',=,,"w,'. , _, ,'" "),:(, 99-5210 CIVIL , 00-8876 CIVIL (4) Failure to join a cause of action as required by subdivision (d)(1) of this Rule shall be deemed a waiver of that cause of action as against all parties to the action. It is clear that both actions which have been filed by the plaintiff stem from the same transaction or occurrence; namely, the alleged nonpayment of outstanding commissions by the defendant to the plaintiff. Clearly, therefore, the plaintiff is barred from bringing a second action where he is required, by rule, to include all of the causes of action in his first complaint. The appropriate manner by which to introduce any additional causes of action is through amending the original complaint "either by filed consent of the adverse party or by leave of court." Pa.R.C.P. 1033. By allowing the two complaints to proceed independently: . .. the same pretrial discovery would have taken place in both cases and the same witnesses, including the parties, would be required to appear at two separate trials. Two juries would have to be impaneled to hear virtually the same evidence and resolve many of the same legal questions. This kind of repetition is precisely what Rule 1 020( d) was intended to avoid. Hineline v. Stroudsburg Electric Supplv Co.. Inc., 402 Pa.Super. 178, 187,586 A.2d 455, 459 (1991). Here, the same facts stand to be determinative of each cause of action whether it involves the application of the Wage Payment and Collection Law or the law of quantum meruit. Thus, the plaintiff should not have brought a second and separate action and, accordingly, the complaint docketed to 00-8876 will be dismissed. The question then remains whether the plaintiff should be permitted to amend his first complaint to include a second count in quantum meruit. Pa.R.C.P. 1030 provides that, absent the 3 ,'H, 1, ~. ~' ~..,.' , ,-""~,',, ,l" i' 0' c,'~,k~;~'..., ,,-.-" k\,' ,', K~,,'- 99-5210 CIVIL . 00-8876 CIVIL filed consent of the adverse party, a party may amend a complaint only by leave of court. It is weIl established in Pennsylvania, however, that such amendments are liberally allowed. "As our Supreme Court once observed, 'hypertechnicality and formalism in pleading [are] contrary to the modem practice of allowing free amendment in order to promote resolution of cases on their merits.''' Biglan v. Biglan, 330 Pa.Super. 512, 521,479 A.2d 1021, 1026 (1984) citing West Penn Parkwav Garage. Inc. v. Citv of Pittsburgh, 464 Pa. 168, 187,346 A.2d 269,278 (1975). Two questions are posed by any proposed amendment; first, whether the amendment would unfairly prejudice the rights of the opposing party and, second, whether the proposed amendment violates the law. Soxman v. Goodge, 372 Pa.Super. 343, 539 A.2d 826 (1988). Here, the defendant has asserted that permitting the amendment violates the law of Agency and specifically the provisions of Section 455, Restatement (2nd) of Agency Law which, according to the defendant, provide that an agent who is terminated prior to the actual sale of personal property cannot recover an agreed upon commission. We note, however, the provisions of connnent (d) to section 445 which states: Irrespective of the completeness ofthe terms given the broker, ifhe is to be paid when he finds a customer able, "ready and willing", [sic] he is entitled to his commission if he finds such a customer who enters into an oral agreement with the principal which he is willing to perform at the time fixed for the performance of the transaction, even though the agreement is not binding upon the principal .... Restatement (2nd) of Agency Law, Section 445 cmt. d (1958). According to the plaintiff, his quantum meruit claim relates to wages based on commissions which were not received during his employment but result from his efforts expended prior to his termination. We see nothing in 4 ".~ ' , .' .. " rr ,~,,-- ',.' ""'" ,-. 0'__1 '''.~ '~"--'-";;U.*';,,^,.-- ?W5" 99-5210 CIVIL , 00-8876 CIVIL this contention which is inconsistent or in conflict with his claim premised on the Wage Payment and Collection Law. The defendant places emphasis on the holding of the Superior Court in Faden v. Vitrv, 425 Pa.Super. 555,625 A.2d 1236 (1993). According to the defendant, it is "implicit in the [Faden court's] holding that there is no need to plead an alternative theory of recovery sounding in quantum meruit if there is an agreement as to form of compensation, e.g. cash, stock, or partnership." Defendant's Brief in Opposition to Plaintiff's Motion to Amend His Amended Complaint at 4, ~ 2. We read Faden, instead, as being supportive ofthe position advanced by the plaintiff in this case. In Faden, the plaintiff established that there existed an oral agreement between the parties that she would be paid $2,000.00 per month as general manager of a cafe. The trial court also found that, because there was no agreement as to any other form of compensation, the parties had intended the payment of cash wages. Because there was a contractual obligation to pay wages, the court found that the Wage Payment and Collection Law was applicable. Particularly germane to the matter sub judice is the following language of the Superior Court: Appellants cite the trial court's conclusion that Faden was also entitled to payment under the doctrine of quantum meruit as an indication that it rejected the contract claim under the WPCL. This contention is belied, however, by the explicit conclusion oflaw that Faden was entitled to wages under the WPCL for services. We accept the trial court's explanation in its opinion that the award on the basis of quantum meruit was intended as an alternate theory of recovery. (emphasis added) 5 ,,' , "' , '11 '~ """k",,";;""~cdl"'_,, 0 ' -.' , . ,"'jK#i" 99-5210 CIVIL . 00-8876 CIVIL Id., at 1238. Contrary to the defendant's reading of the case, Faden does not force an election between quantum meruit and recovery under the WPCL. In fact, it expressly acknowledges that both claims may be brought together. That is all the plaintiff is attempting to do in this case. In summary, the plaintiff, here, seeks to show that under the WPCL he is entitled to the payment of outstanding commissions. This requires him to show the existence of an agreement between himself and the defendants for compensation. If he is unable to make a successful showing of an express agreement, he wishes to argue in the alternative that equity permits him to recover. We know of no reason why such an alternative pleading should be disallowed. ORDER AND NOW, this pv day of June, 2001, at docket number 00-8876 Civil, the preliminary objection of the defendants to the effect that the complaint of the plaintiff is barred by Pa.R.C.P. 1020 is GRANTED and the complaint ofthe plaintiff DISMISSED. BY THE COURT, Ai- 6 99-5210 CIVIL . 00-8876 CIVIL Kenneth A. Wise, Esquire For the Plaintiff Glenn R. Davis, Esquire For the Defendants :r1m '0' 7 ,,-,-'- , ~" .,; ,,' "",'-., ':;,:",,;;,:, ~~<; b,,,,,~ 0' " ',.~, J;}, ,I ;j"c ",^' "'''''~~''~ ~,I,_ ',-,L,,;;,^;~, L,. PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and subnitted in duplicate) , l t: \,- TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter f= the next Argunent Court. --------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) James A. Kise, Plaintiff ( Plaintiff) vs. JURY TRIAL DEMANDED Pennsylvania Office Services Group and Linda Till, Defendants (Deferrlant) No. 00-8876 Civil Law XIJ9 2001 1. State matter to be argued (i.e.. plaintiff's !lOtion for new trial.. deferrl3nt's damrrrer to canplaint, etc.): Defendants' opposition to Plaintiff's Motion to Amend Amended Complaint. 2. Identify =unsel who will argue case: Chadwick O. Bogar, Esq. (a) for plaintiff: Latsha Davis & Yohe, P.C. Address: P.O. Box 825 Harrisburg, PA 17108-0825 (b) for deferrlant: Address: Kenneth A. Wise, Esq. 126 Locust Street P.O. Box 11489 ,Harrisburg, PA 17108-1489 3. I will notify all parties in writing within bolo days that this case has been listed for argtrnent. Yes. 4. Argunent Court Date: Next argument list. Dated: if //9 /01 ~ --- ~ ~ - Attorney for Defendants - -: j .. ,,'~\I .' C' "Cx'-- ~liOO~."'''''''''';'''''~':';''', ~~M~~'j~~l\ItflJl'~~~\j~~lIiiti!iIiIl' '..." 1" ",ij ;1 ',; J J '"' ,," ,". '- il ";':"'~;' - ~ Q 0 -n ",. --, ~!B -0 ::r:-n :;;0 l'l1F i~ N -Orn W ~?Y 90 t<c -0 '.,--i'-n .---n ~o :x ~o rf'J 0 r.a ~ ~.~ N ~ N ...