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Home My WebLink About99-047283 =' s lu Ii /J V. CIVIL ACTION - LAW NO. 99-4728 STERLING SHUMAN, Defendant JURY TRIAL DEMANDED NOTICE TO PLEAD TO: STERLING SHUMAN, Plaintiff and RICHARD GAFFNEY, ESQUIRE, His Attorney: You are hereby notified to plead to the within document within twenty (20) days after service hereof, or a default judgment may be entered against you. METTE, EVANS & WOODSIDE By: ELIZA ETH GOLDSTEIN DIXON Supreme Court I.D. #73779 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff Commerce Bank/ Harrisburg, N.A. DATED: September 10, 1999 COMMERCE BANK/ IN THE COURT OF COMMON PLEAS HARRISBURG, N.A., CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA CIVIL ACTION - LAW V. NO. 99-4728 STERLING SHUMAN, Defendant JURY TRIAL DEMANDED COMPLAINT Plaintiff Commerce Bank/Harrisburg, N.A. ("Commerce") is a national banking association whose principal place of business is located at 100 Senate Avenue, Camp Hill, Pennsylvania 17011. 2. Defendant Sterling Shuman ("Shuman") is an adult individual residing at 323 W. Meadow Drive, Mechanicsburg, Cumberland County, Pennsylvania 17055. 1. COMMERCE V. SHUMAN BREACH OF CONTRACT 3. The averments of paragraphs 1 and 2 above are incorporated by reference as though fully set forth herein. 4. Commerce and Shuman entered into a written contract on June 12, 1998. A true and correct copy of the written contract is attached hereto as Exhibit "A" and made a part hereof as though fully set forth herein. 5. Pursuant to the written contract, Commerce paid Shuman a $25,000 sign-on bonus from which normal state and federal taxes were withheld and $21,000 reimbursement of closing costs on a net after-tax basis. 6. The contract required Shuman to repay 100% of the sign-on bonus and the reimbursement of closing expenses if employment ceased within the first 12 months of employment. Shuman was terminated on May 6, 1999 which was within the first 12 months of employment. 8. Commerce has demanded and Shuman has refused to repay Commerce the sign- on bonus and reimbursement of closing costs. 9. Shuman, thus, has breached the written contract set forth as Exhibit "A" to the Complaint. 10. As a direct and proximate result of Shuman's breach of contract, Commerce has been damaged. -2- WHEREFORE, Plaintiff Commerce Bank/Harrisburg N.A. demands judgment in its favor and against Defendant Sterling Shuman in an amount in excess of the jurisdictional limits for compulsory arbitration, together with costs, pre judgment interest and such other and further relief as the Court deems just and appropriate. II. COMMERCE V. SHUMAN UNJUST ENRICHMENT 10. The averments of paragraphs I through 9 above are incorporated by reference as though fully set forth herein. 11. In the alternative, if the written contract attached as Exhibit "A" to the Complaint is deemed unenforceable, Shuman will be unjustly enriched. 12. Commerce paid Shuman the sign-on bonus and closing costs pursuant to Exhibit "A:, 13. Shuman accepted payment of the sign-on bonus and closing costs with the understanding that he would be required to repay 100% of these costs if his employment with Commerce ceased within 12 months. -3- 14. After Shuman's employment with Commerce ceased within 12 months, Commerce requested repayment of the sign-on bonus and closing costs. 15. Shuman has refused to repay the sign-on bonus and closing costs. 16. Shuman's retention of the sign-on bonus and closing costs is wrongful and he has been unjustly enriched thereby. 17. As a direct and proximate result of Shuman's unjust enrichment, Commerce Bank has been damaged. WHEREFORE, Plaintiff Commerce Bank/Harrisburg N.A. demands judgment in its favor and against Defendant Sterling Shuman in an amount in excess of the jurisdictional limits for compulsory arbitration, together with costs, pre judgment interest and such other and further relief as the Court deems just and appropriate. Respectfully submitted, METTE, EVANS & WOODSIDE By: L4w.FC.GL ELIZA ETH GOLDSTEIN DIXON Supreme Court I.D. #73779 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff Commerce Bank/ Harrisburg, N.A. DATED: September 10, 1999 1 tS kfa Sh "„1 ibit A .06/12/98 "1 15:50 FAX 304 291 7786 MB WEST VIRGINIA 002 June 12, 1998 Sterling Shuman 11422 Xmdleaton Rd. Glean Dalm, UD 20769 Dear Sterling: Contmetre Bank is pleased to base salary of $105,000 and a taxes will be withheld. If amp expenses would be repaid to C Within 12 months - ref 13 - 24 months - repay 25 - 36 months -repay after 36 months - no re In addition, Cotmrtercc Bank i business expense account prim. and the Stock Option Program insurance to you and any non- be able to participate in the 40 employee's contribution. Commerce f8ank.. you employment as Senior Vice PresidelNLending, with a 7n bonus of $25,000 from which normal state and federal at ceases, the sign-on bonus and the reimbursement of closing am Bank as follows: 100% d provide you with a company ear, a cellular phone, and normal s. You would be eligible to participate in the Bonus Program 1998 and thereafter, and Commerce Bank will provide health dng dependent. If you are employed by July 1, 1998, you will program, with Commerce cuffmdy matching 25% of any Commerce Bank will pay for r teeing the household goods of your present residence, and will allocate fimds for 3 months of orage, if necessary. Temporary relocation expenses of 53600 and $21,000 reimbursemletu of clog costs will also be paid to you on & Net after-tat basis. I have enjoyed our call. took forward to your response to this oiler, and will await your G 1n,ALA Tables T. Cabson PresideWCE0 rrGldaw l? ?i 4 ?(IalR8, Commerce nark NA P.O.80116592 100 8er" •wwa Gino Kn, Pam-A nia 17021.05119 p17) 975-SM VERIFICATION I, MARK ZODY, Executive Vice President and Chief Financial Officer of Commerce Bank/Harrisburg, N.A., am hereby authorized to verify the Complaint on behalf of Commerce Bank and have read the foregoing Complaint and verify that the facts stated therein are true and correct to the best of my knowledge, information and belief. To the extent that the foregoing document and/or its language is that of counsel, I have relied upon counsel in making this Verification. Dated: 9//0/99 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Richard Gaffney, Esquire P.O. Box 627 101 Front Street Boiling Springs, PA 17007 METTE, EVANS & WOODSIDE By: 1"? .C J.tfG?? ELIZA1 ETH GOLDSTEIN DIXON Supreme Court I.D. #73779 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff Commerce Bank/ Harrisburg, N.A. DATED: September 10, 1999 lw6 j ._ ?., ?=. r:. ?- __ ?J COMMERCE BANK/ HARRISBURG, N.A., Plaintiff V STERLING SHUMAN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 99-4728 NOTICE TO PLEAD TO: COMMERCE BANK/ HARRISBURG, N.A. and ELIZABETH GOLDSTEIN DIXON, ESQUIRE OF METTE, EVANS & WOODSIDE, its attorneys You are hereby notified to file a written response to the enclosed Amended Answer with New Matter within twenty (20) days from service hereof or judgment may be entered against you. Dated: 11 - og_ 9q B . c and C. Gaffney, Esquire Supreme Court I.D. 63313 P.O. Box 627 101 Front Street Boiling Springs, PA 17007-0627 Telephone 717.249.2525 COMMERCE BANK/ HARRISBURG, N.A., Plaintiff V STERLING SHUMAN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 99-4728 AMENDED ANSWER WITH NEW MATTER AND NOW, comes the Defendant, Sterling Shuman, by and through his attorney, Richard C. Gaffney, Esquire, who files this Amended Answer with New Matter as a matter of course pursuant to Pa.R.C.P. 1028(c)(1) and states as follows: ANSWER 1. Denied. Defendant denies for want of knowledge the allegations contained in paragraph I of the Complaint. 2. Admitted. 3. In response to paragraph 3 of the Complaint, Defendant restates, as if fully rewritten, his answers to paragraphs I through 2 of the Complaint. 4. Admitted in part and Denied in part. Defendant admits as much of the allegation in paragraph 4 of the Complaint as that the Plaintiff and Defendant entered into a contract for employment on June 12, 1998. Defendant denies that Plaintiff's Exhibit "N' memorialized the contract of employment. 5. Admitted in part and Denied in part. Defendant admits as much of the allegation in paragraph 5 of the Complaint as that the Plaintiff paid Defendant $25,000 as a sign-on bonus from which state and federal taxes were withheld and $21,000 as reimbursement for Defendant's closing costs on a net after-tax basis. Defendant denies that Plaintiffs payment was made to Defendant "(p)ursuant to the written contract." To the extent 1 that Plaintiffs allegations imply or infer that Defendant has an obligation to "repay" Plaintiff, Defendant denies the allegations. 6. Denied. Defendant denies the allegations contained in paragraph 6 of the Complaint. 7. Admitted. 8. Admitted in part and Denied in part. Defendant admits as much of the allegations in paragraph 8 of the Complaint as that Plaintiff has demanded payment from the Defendant and that Defendant has refused payment to Plaintiff. To the extent that the allegations in paragraph 8 of the Complaint infer or imply that Defendant has an obligation to "repay" Plaintiff, Defendant denies the allegations. 9. Denied. The allegations contained in paragraph 9 of the Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that a responsive pleading is required, Defendant denies the allegations contained in paragraph 9 of the Complaint. 10. Denied. The allegations contained in paragraph 10 of the Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that a responsive pleading is required, Defendant denies the allegations contained in paragraph 10 of the Complaint. 11. (Second paragraph 10). Denied. In response to second paragraph 10 of the Complaint, Defendant restates, as if fully rewritten, his answers to paragraphs 1 through 10 of the Complaint. 12. (Paragraph 11). Denied. The allegations contained in paragraph I 1 of the Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that a responsive pleading is required, Defendant denies the allegations contained in paragraph 11 of the Complaint. 13. (Paragraph 12). Admitted in part and Denied in part. Defendant admits as much of the allegation in paragraph 12 of the Complaint as that the Plaintiff paid Defendant a sign-on bonus and closing costs. Defendant denies that Plaintiffs payment was made to Defendant "pursuant to Exhibit `A'." To the extent that Plaintiffs allegations imply or infer that Defendant has an obligation to repay Plaintiff, Defendant denies the allegations. 14. (Paragraph 13). Denied. Defendant denies the allegations contained in paragraph 13 of the Complaint. By way of further pleading, Defendant avers that his obligation to repay a portion of the sign-on bonus only arose in the event that he voluntarily left his position with Plaintiff and accepted a position with a competitor of Plaintiff. 15. (Paragraph 14). Admitted in part and Denied in part. Defendant admits as much of the allegation in paragraph 14 of the Complaint as that the Plaintiff involuntarily terminated Defendant's employment within twelve months of his hire date and that Plaintiff "requested repayment of the sign-on bonus and closing costs" after the date on which Plaintiff involuntarily terminated Defendant's employment. To the extent that Plaintiffs allegations imply or infer that Defendant has any obligation to repay Plaintiff, Defendant denies the allegations. 16. (Paragraph 15). Admitted in part and Denied in part. Defendant admits as much of the allegation in paragraph 15 of the Complaint as that the Defendant has refused Plaintiffs demand for payment. To the extent that Plaintiffs allegations imply or infer that Defendant has any obligation to repay Plaintiff, Defendant denies the allegations. 17. (Paragraph 16). Denied. The allegations contained in paragraph 16 of the Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that a responsive pleading is required, Defendant denies the allegations contained in paragraph 16 of the Complaint. 18. (Paragraph 17). Denied. The allegations contained in paragraph 17 of the Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that a responsive pleading is required, Defendant denies the allegations contained in paragraph 17 of the Complaint. NEW MATTER AFFIRMATIVE DEFENSES FIRST DEFENSE 19. Defendant restates, as if fully rewritten, the answers contained in paragraphs 1 through 18 hereinabove. 20. Plaintiffs Complaint fails to state a claim upon which relief can be granted. SECOND DEFENSE 21. Defendant restates, as if fully rewritten, the answers contained in paragraphs I through 20 hereinabove. 22. Plaintiffs claims are barred by the doctrine of accord and satisfaction. THIRD DEFENSE 23. Defendant restates, as if fully rewritten, his answers contained in paragraphs I through 22 hereinabove. 24. Plaintiffs claims are barred by the doctrine of waiver. FOURTH DEFENSE 25. Defendant restates, as if fully rewritten, his answers contained in paragraphs I through 24 hereinabove. 26. Defendant is discharged from any obligation owed to Plaintiff by virtue of Plaintiff's breach of an implied contract of employment and failure to perform. FIFTH DEFENSE 27. Defendant restates, as if fully rewritten, his answers contained in paragraphs I through 26 hereinabove. 28. Defendant is discharged from any obligation owed to Plaintiff by virtue of Plaintiff's fraud and misrepresentation. SIXTH DEFENSE 29. Defendant restates, as if fully rewritten, his answers contained in paragraphs I through 28 hereinabove. 30. Plaintiffs claims are barred by the equitable doctrine of unclean hands. WHEREFORE, Defendant demands that the Plaintiffs Complaint be dismissed with prejudice and that the Defendant be awarded his costs, including reasonable attorney fees in this action. COUNTERCLAIMS 31. In or around March 1998, National Search Associates contacted the Defendant to solicit interest in a Vice President/Lending position with the Plaintiff. i 32. Defendant was employed at that time as President, North Central Region, by Huntington Bancshares, Inc. ("Huntington") in Morgantown West Virginia. Under the terms of a Hiring/Relocation Agreement between them, Defendant was obligated to repay to Huntington, if he voluntarily terminated employment within twelve months of employment by Huntington, any relocation or cash payments made to him or on his behalf. 33. Several days after first contact, the Defendant told National Search Associates that he would be interested in the Vice President/Lending position with Plaintiff so long as the Plaintiff would offer the Defendant employment terms equal to or better than those that he had received from Huntington Bank. 34. Between March 1998 and June 12, 1998 Plaintiff and Defendant discussed and negotiated salary, job responsibilities, performance expectations, relocation reimbursement, employee benefits and starting date. 35. Defendant earned a base annual salary of $105,000.00 with Huntington. 36. Plaintiff offered Defendant a base annual salary of $105,000.00. 37. Huntington had paid the Defendant a relocation allowance of $25,000.00 to cover lost equity in the sale of his Maryland home. 38. Plaintiff offered to pay Defendant a "sign-on bonus" of $25,000.00 less state and federal taxes to keep Defendant whole for his repayment obligation to Huntington. 39. Huntington had agreed to reimburse the Defendant for Realtor's fee and miscellaneous inspections, appraisal and legal fees incurred in relocating to West Virginia on a "net after-tax basis." 40. Plaintiff offered to reimburse Defendant for reasonable closing costs in the amount of $21,000.00 on a "Net after-tax basis." 41. Huntington had offered to provide Defendant temporary relocation expenses, including two house hunting trips and up to sixty (60) days of temporary housing. 42. The Plaintiff agreed to pay Defendant $3,600.00 in order to keep the Plaintiffwhole for his repayment obligation to Huntington and to pay for Defendant's temporary relocation expenses. 5 43. Huntington had agreed to pay all reasonable costs involved in moving the Defendant's household goods to the greater Morgantown, West Virginia area. j 44. Plaintiff agreed to pay all reasonable costs involved in moving the Defendant's household goods to Harrisburg, Pennsylvania, including paying for ninety (90) days of storage. 45. Huntington had agreed to reimburse the Defendant for those reasonable and customary costs (excluding "Buy down points") incurred in obtaining mortgage financing. 46. Plaintiff, agreed to originate for the Defendant a mortgage loan free of origination fees. 47. Huntington agreed to recommend the Defendant for participation in its Management Incentive Plan for 1998 at the "B" level. 48. Plaintiff offered Defendant eligibility in its Bonus Program for 1998 and thereafter. 49. Huntington agreed that, depending on job performance, the Defendant may be initially recommended for approximately 2,000 stock option shares to be awarded in August 1998. 50. Plaintiff offered Defendant eligibility in its Stock Option Program for 1998 and thereafter. Plaintiff verbally promised Defendant approximately 1,000 shares of stock options, dependent on job performance. 51. Huntington offered to provide Defendant insurance. and his non-working dependents with health 52. Plaintiff offered to provide Defendant and his non-working dependents with health insurance. 53. Huntington offered Defendant participation in its 401(k) program. 54. Plaintiff offered Defendant participation in its 401(k) program if Defendant started his employment with Plaintiff by July 1, 1998. 55. Huntington offered Defendant a cellular telephone and normal business expense account privileges. 56. Plaintiff offered Defendant a company car, a cellular telephone and normal business expense account privileges. 57. At Huntington, the Defendant's duties as President, North Central Region were primarily executive and managerial. 58. During the interview process, Plaintiffs president/CEO, James T. Gibson ("Gibson") described Defendant's duties as Vice President/Lending as being primarily executive and managerial. Gibson defined satisfactory performance after one year in the job for the Defendant as follows: (a) to meet or exceed department budget; (b) to increase the credit skills of the lenders whom he would supervise; and (c) to build a cohesive teamwork environment. 59. Throughout the interview process, Plaintiff never stated that Defendant would have specific personal Loan production goals. 60. Plaintiff and Defendant agreed that Defendant's employment start date would be June 28, 1998. 61. On June 11, 1998, Plaintiff faxed Defendant a letter offering employment to Defendant as Senior Vice President/Lending. The letter was signed by Gibson. 62. Gibson's June I I letter contained a provision that stated: "If employment ceases, the sign-on bonus and the reimbursement of closing expenses would be repaid to Commerce Bank as follows: Within 12 months - repay 100% 13 - 24 months - repay 2/3 25 - 36 months - repay 1/3 after 36 months - no repayment." 63. Gibson's June 11 fax was the first time that the issue of repayment was raised by the Plaintiff. 64. Defendant asked Gibson on June 11, 1998 for an explanation of the repayment provision and the phrase "if employment ceases." 65. Gibson explained to Defendant on June 11, 1998 that the repayment provision and the phrase "if employment ceases" means that if the Defendant were to voluntarily leave his employment by the Plaintiff to work for a competitor of the Plaintiff, then but only in that event, the Defendant would be obligated to repay the Plaintiff a portion of the sign-on bonus and closing costs, according to the schedule in the letter. 66. Defendant asked Gibson if the repayment schedule could be changed from three years to two years. 67. Gibson refused to shorten the schedule and stated that he did not want to pay to relocate the Defendant and then allow the Defendant to leave employment within three years. 68. Defendant accepted Plaintiffs offer of employment subject to the understandings set out in paragraphs 33 through 67, hereinabove. 69. But for the understandings set out in paragraphs 33 through 67, hereinabove, Defendant would not have accepted Plaintiffs offer of employment. 70. Defendant is 46 years of age. He is married. He has two (2) children of school age. 71. Following Defendant's acceptance of Plaintiffs offer of employment, Defendant relocated his family to Harrisburg, Pennsylvania. 72. At all times relevant to this action, Defendant's job performance met or exceeded the minimum requirements of the position as they were described and represented by the Plaintiff throughout the interview and selection process. 73. In or around September 1998, Gibson abruptly changed Defendant's responsibilities to include unreasonably high goals for persona! loan production generated by the Defendant. 74. In or around September 1998, Defendant's job duties changed significantly from managerial and supervisory duties to one of lead producer, requiring significant levels of "cold calling" and sales duties. 75. Plaintiff involuntarily terminated Defendant. 76. Plaintiffs involuntary termination of Defendant was for reasons other than job performance. COUNT 1: BREACH OF EXPRESS CONTRACT 77. Defendant restates, as if fully rewritten, paragraphs 31 through 76 hereinabove. 78. Gibson's letter of June 11, 1998 is an express contract for employment. 79. The term of Defendant's employment is thirty-six (36) months, pursuant to Gibson's letter of June 11. 80. Plaintiff terminated the Defendant's employment after only eleven (11) months. 81. Plaintiff thereby breached the employment contract. 82. As a direct and proximate result of Plaintiffs breach of the express employment contract, Defendant has been damaged. WHEREFORE, Defendant claims of the Plaintiff and demands judgment against the Plaintiff in the amount of $218,750.00, which amount represents twenty-five months of Defendant's salary at $8,750.00 per month, plus interests, reasonable attorney fees and costs. COUNT II: BREACH OF IMPLIED-IN-FACT CONTRACT 83. Defendant restates, as if fully rewritten, paragraphs 31 through 82 hereinabove. 84. Plaintiff offered employment to Defendant and Defendant accepted Plaintiffs offer of employment under terms and conditions set out in paragraphs 31 through 76 hereinabove. 85. By uprooting his family and relocating to Pennsylvania, the Defendant suffered a hardship. 86. By relinquishing his secure employment as President, North Central Region, at Huntington, Defendant incurred a detriment. 87. The schedule set out in Gibson's letter of June 11, 1998 and his June 12, 1998 letter contemplates an implied-in-fact contract for employment for at least thirty-six (36) months. 88. Defendant accepted Plaintiffs offer of employment with the understanding that he and the Plaintiff were committing to an employment contract for thirty-six (36) months. 89. The hardships suffered and the detriments incurred by the Defendant provided additionai consideration, sufficient to defeat the "at-will" employment presumption and to constitute an implied-in-fact contract. 90. Plaintiff terminated Defendant's employment on May 6, 1999, after only eleven (11) months. 91. Plaintiff thereby breached the implied-in-fact contract of employment with Defendant. 92. As a direct and proximate result of Plaintiffs breach of the implied-in-fact contract of employment, Defendant has been damaged. WHEREFORE, Defendant claims of the Plaintiff and demands judgment against the Plaintiff in the amount of $218,750.00, which amount represents twenty-five months of Defendant's salary at $8,750.00 per month, plus interests, reasonable attorney fees and costs. COUNT II: PRONUSSORX ESTOPPEL 93. Defendant restates, as if fully rewritten, paragraphs 31 through 92 hereinabove. 94. Plaintiff represented the following to the Defendant: a. that Defendant's job responsibilities as Vice President/Lending would consist of executive and managerial duties; b. that Defendant's job performance would be evaluated based on the goals enumerated in paragraph 58 hereinabove; c. that Defendant's obligation to repay some or all of the sign-on bonus and closing costs would arise if, but only if, the Defendant voluntarily left employment within three years; d. that the Plaintiff and Defendant were making a commitment for a long term employment arrangement whose duration was to be at least three years; e. that the Defendant could participate in Plaintiff's 401(k) program, if he was employed by June 28, 1998. 95. Plaintiffs representations were material to Defendant's decision to accept Plaintiffs offer of employment. 96. Defendant's reliance on Plaintiffs representations was reasonable. 97. Plaintiffs representations were false. a. Beginning in September 1998, Defendant's job responsibilities consisted of "cold calling" and sales duties instead of executive and managerial duties. b. Beginning in September 1998, Plaintiff evaluated Defendant's job performance on different criteria than those enumerated in paragraph 58 herinabove; 10 c. By the instant action, Plaintiff now asserts that Defendant's obligation to repay Plaintiff some or all of the sign-on bonus and closing costs arises even when Plaintiff involuntarily terminated Defendant; d. Plaintiff terminated Defendant's employment within three years; e. Plaintiff did not permit the Defendant to participate in the 401(k) plan for 1998. 98. As a direct and proximate result of Plaintiffs wrongful acts, the Defendant has suffered detriments and has been damaged thereby. WHEREFORE, Defendant claims of the Plaintiff and demands judgment against the Plaintiff in the amount of $218,750.00, which amount represents twenty-five months of Defendant's salary at $8,750.00 per month, plus interests, reasonable attorney fees and costs. COUNT III: NEGLIGENT MISREPRESENTATION 99. Defendant restates, as if fully rewritten, paragraphs 31 through 98 hereinabove. 100. Plaintiff has a duty to Defendant to truthfully represent the job responsibilities, performance objectives, and other terms and conditions of employment. 101. Plaintiff misrepresented Defendant's job responsibilities, performance objectives and other terms and conditions of employment. 102. Plaintiff thereby breached its duty to the Defendant. WHEREFORE, Defendant claims of the Plaintiff and demands judgment against the Plaintiff in the amount of $218,750.00, which amount represents twenty-five months of Defendant's salary at $8,750.00 per month, plus interests, reasonable attorney fees and costs. COUNT IV: FRAUDULENT MISREPRESENTATION 103. Defendant restates, as if fully rewritten, paragraphs 31 through 102 hereinabove. 104. Gibson, Plaintiffs President and CEO, knew or should have known that his representations to Defendant regarding job expectations and term of employment were false and misleading. 105. Plaintiff communicated the representations to the Defendant with intent to induce the Defendant to accept Plaintiffs offer of employment. 106. Plaintiff's representations were false and misleading. 107. Defendant relied on Plaintiffs misrepresentations when he accepted Plaintiff's offer of employment. 108. As a direct and proximate result of Plaintiff's misrepresentations, the Defendant has suffered detriments and has been damaged thereby. WHEREFORE, Defendant claims of the Plaintiff and demands judgment against the Plaintiff in the amount of $218,750.00, which amount represents twenty-five months of Defendant's salary at $8,750.00 per month, together with pre judgment interest, reasonable attorney fees and costs, and such other and further relief as this Honorable Court deems just and appropriate. Respectfully submitted, GAFFNEY, ESQUIRE SUPREME COURT I.D. # 63313 P.O. Box 627 101 Front Street Boiling Springs, PA 17007-0627 Telephone: 717.249.2525 Attomey for the Defendant, DATED: November 8, 1999 Sterling Shuman 12 COMMERCE BANK/ HARRISBURG, N.A., Plaintiff V STERLING SHUMAN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 99-4728 AFFIDAVIT OF SERVICE I, Richard C. Gaffney, Esquire, attorney for the Defendant in the above captioned matter, do hereby state and affirm that on this _9!j day of November, 1999, I served the foregoing Amended Answer with New Matter by United States first-class mail, postage prepaid, on the person(s) named below: ELIZABETH GOLDSTEIN DIXON METTE, EVANS & WODSIDE 3401 North Front Street Harrisburg, PA 17110-5000 Date: U o9 4q BY: Gaffney, Esquire COMMERCE BANK/ HARRISBURG, N.A., Plaintiff V. STERLING SHUMAN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW No. 99-4728 JURY TRIAL DEMANDED DEFENDANT STERLING SHUMAN'S ANSWER TO PLAINTIFF'S AND NOW comes the Defendant, Sterling Shuman, by and through his attorney, Richard C. Gaffney, Esquire, who files this Answer to Plaintiffs Preliminary Objections and states as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted in part and Denied in part. Defendant admits as much of the allegation in paragraph 6 of Plaintiffs Preliminary Objections as that the language of the written agreement states that "if employment ceases, the sign-on bonus and the reimbursement of closing expenses would be repaid..." Defendant denies the allegation in paragraph 6 to the extent that it implies that Defendant has an obligation to repay the sign-on bonus and the reimbursement for closing expenses. Admitted in part and Denied in part. Defendant admits the allegation in paragraph 7 to the extent that the schedule for repayment included in the written employment agreement is graduated. Defendant denies the allegation in paragraph 7 to the extent that it implies any obligation on his part to repay the sign-on bonus or to repay the reimbursement for closing costs. 8. Admitted. 9. Admitted. 1. Demurrer to Imolied Contract 10. Admitted. 11. Admitted in part and Denied in part. Defendant admits that the phrases "implied in fact" and "implied in law" are not used in the Counterclaim. However, Defendant denies the allegation in paragraph 1 I to the extent that the Counterclaim pleads facts sufficient to place the Plaintiff on notice that Defendant is proceeding on an "implied in fact" theory. 12. Denied. 13. Admitted. 14. Denied. WHEREFORE, Defendant Sterling Shuman respectfully requests that the Plaintiffs Demurrer to Defendant's Counterclaim based upon an implied contract be denied. -2- H. Demurrer to Fraudulent Misrepresentation 15. Admitted. 16. Denied for want of knowledge. 17. Denied. Paragraphs 51 - 67 of the Counterclaim name James T. Gibson as Plaintiffs president and describe the representations which Mr. Gibson made to the Defendant. 18. Admitted. 19. Denied. Pennsylvania law requires a party to plead fraud "with particularity." Defendant has pleaded his cause of action for fraud with particularity. Although Defendant did not use the term "elements" and did not label each allegation as a particular element of fraud, his pleadings do allege the elements of fraud. Paragraphs 58 and 59 of Defendant's Counterclaim allege misrepresentation on the part of Plaintiffs president, Mr. Gibson. Defendant alleges Plaintiffs fraudulent intent in paragraph 59 of his Counterclaim. Defendant alleges his reliance on Plaintiffs misrepresentation in paragraph 68 of his Counterclaim, where he alleges that he accepted Mr. Gibson's offer of employment. The Defendant alleges damages as a direct and proximate result of Plaintiffs breach of the implied contract of employment in Paragraph 86 of his Counterclaim. WHEREFORE, Defendant Sterling Shuman respectfully requests that Plaintiffs Demurrer to Fraudulent Misrepresentation be denied. -3- III. Motion to Strike 20. Admitted. 21. Denied. 22. Denied. 23. Denied. WHEREFORE, Defendant Sterling Shuman respectfully requests that Plaintiff's Motion to Strike Defendant's request for attorney fees be denied. Respectfully submitted, IF C. Gaffney, Esquire Supreme Court I.D. #63313 P.O. Box 627 101 Front Street Boiling Springs, PA 17007-0627 Telephone: 717.249.2525 Attorney for the Defendant, Sterling Shuman DATED: WOKO. $ t4Oki- -a- CERTIFICATE OF SERVICE AND NOW, this 8"* day of n1Wer?te i , 1999, Richard C. Gaffney, Esquire, the attorney for the Defendant in the above captioned matter hereby certifies that a copy of the foregoing document was properly served via First Cass United States Mail, Postage Prepaid, on the following persons at the addresses listed below: Elizabeth Goldstein Dixon, Esquire METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-5000 Attorneys for the Plaintiff Commerce Bank/ Harrisburg, N.A. Dated: Noa- ® Igg9 gy; icht .Gaffney, Esquire Supreme Court I.D. 63313 P.O. Box 627 101 Front Street Boiling Springs, PA 17007 Telephone: 717.249.2525 Facsimile: 717.249.5141 -5- ?- o, ,== - ? -? ??_. Fc ? ?? ? ?, LL, ,. ? Ls F:: c`.. - -..i ii C r _. c, ?.J IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA NO. 99. V 1,,w F -1? Civil Action - (x) Law ( ) Equity COMMERCE BANK/ STERLING SHUR-MAN HARRISBURG, N.A., 323 W. Meadow Drive Mechanicsburg, PA 17055, Plaintiff Versus Defendant PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COUNTY: Please issue writ of summons in the above-captioned action. X Writ of Summons shall be issued and forwarded to ( ) Attorney ( X ) Sheriff ELIZABETH G. DIXON, ESQUIRE Mette, Evans & Woodside 3401 North Front Street Harrisburg, PA 17110 717-232-5000 Sign ture of Attorney Supreme Court ID No. 73779 Date: August 5,1999 WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT(S): YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOU. Date: g Prothonotary u by x-1,4« 72k?? Deputy 191486 N ? ? `h,! A ? ? ? T M r ?? rG '? r : =' ?-? r ?. ?? ?? SHERIFF'S RETURN - REGULAR CASE NO: 1999-04728 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND COMMERCE BANK/HARRISBURG N A VS. SHURMAN STERLING BRIAN BARRICK , Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon STERLING SHERMAN the defendant, at 14:23 HOURS, on the 12th day of August 1999 at 323 W MEADOW DRIVE MECHANICSBURG, PA 17055 CUMBERLAND County, Pennsylvania, by handing to STERLING SHURMAN a true and attested copy of the WRIT OF SUMMONS and at the same time directing His attention to the contents thereof. Sheriff's Costs: So answers: Docketing 18.00 Service .20 Affidavit .00 ? &Oleolp Surcharge 8.00 X. idorma 0E TE, 9V9& WOODSIDE by ??? Sneritr Sworn and subscribed to before me this 1,3 r-` day of Q 19q9 A. D. Ch/ u, !.t_ ?7 t12O., . CPa rotnonotar IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Commerce Bank/ Harrisburg, N.A. Plaintiff V. No. 99-4728 Civil Term - Law PRAECIPE AND RULE TO FILE A COMPLAINT Sterling Shuman Defendant TO THE PROTHONOTARY / CLERIC OF SAID COURT: Issue a rule on August 2-5 1999 for Plaintiff to file a Complaint in the above case within twenty (20) days after service of the rule or suffer judgement of non pros. Richard C. Gaffney uire PA Supreme Court ID No. 3 101 Front Street P.O. Box 627 Boiling Springs, PA 17007-0627 (717) 249-2525 Attorney for the Defendant s o n .........................................•............................... Now,r 41442 S 1999, RULE ISSUED AS ABOVE. r11 ??.?_ Prothonotary 7 'k Ddpty y . cv 0 w c„ of c.n n.. t ln U c l m U IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Commerce Bank/ Harrisburg, N.A. Plaintiff V. Sterling Shuman Defendant No. 99-4728 Civil Term - Law PRAECH'E AND RULE TO FILE A COMPLAINT CERTIFICATE OF SERVICE This is to certify that an original copy of the foregoing Praecipe and Rule To File a Complaint, as such Rule has this day been signed pro clerk has been served upon counsel for Plaintiff listed below by certified mail, return receipt requested, this 23 day of August 1999: Elizabeth G. Dixon, Esquire Mette, Evans and Woodside 3401 North Front Street Harrisburg, PA 17110 Richard C. Gaffney MBIQ-13sq'i 101 Front Street P.O. Box 627 Boiling Springs, PA 17007-0627 N ? C`:)??' c7 :` n u ? ?... N ..+ G cl: j: Q ?'L12 1 L C7% ? COMMERCE BANK/ IN THE COURT OF COMMON PLEAS HARRISBURG, N.A., CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA • CIVIL ACTION - LAW STERLING SHUMAN, NO. 99-4728 Defendant NOTICE TO PLEAD TO: COMMERCE BANK/ HARRISBURG, N.A. and ELIZABETH GOLDSTEIN DIXON, ESQUIRE OF METTE, EVANS & WOODSIDE, its attorneys You are hereby notified to file a written response to the enclosed complaint within twenty (20) days from service hereof orjudgment may be entered against you. Dated: C--IcAoUA 1 19u9 BY: Richard . a ey, Esquire Supreme Court I.D. 63313 P.O. Box 627 101 Front Street Boiling Springs, PA 17007-0627 Telephone 717.249.2525 15 COMMERCE BANK/ HARRISBURG, N.A., Plaintiff V STERLING SHUMAN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 99-4728 ANSWER WITH NEW MATTER AND NOW, comes the Defendant, Sterling Shuman, by and through his attorney, Richard C. Gaffney, Esquire, who files this Answer with New Matter and states as follows: ANSWER 1. Denied. Defendant denies for want of knowledge the allegations contained in paragraph 1 of the Complaint. 2. Admitted. 3. In response to paragraph 3 of the Complaint, Defendant restates, as if fully rewritten, his answers to paragraphs I through 2 of the Complaint. 4. Admitted in part and Denied in part. Defendant admits as much of the allegation in paragraph 4 of the Complaint as that the Plaintiff and Defendant entered into a contract for employment on June 12, 1998. Defendant denies that Plaintiffs Exhibit "A" memorialized the contract of employment. 5. Admitted in part and Denied in part. Defendant admits as much of the allegation in paragraph 5 of the Complaint as that the Plaintiff paid Defendant $25,000 as a sign-on bonus from which state and federal taxes were withheld and $21,000 as reimbursement for Defendant's closing costs on a net after-tax basis. Defendant denies that Plaintiff s payment was made to Defendant "(p)ursuant to the written contract." To the extent that Plaintiffs allegations imply or infer that Defendant has an obligation to "repay" Plaintiff, Defendant denies the allegations. 6. Denied. Defendant denies the allegations contained in paragraph 6 of the Complaint. 7. Admitted. 8. Admitted in part and Denied in Part. Defendant admits as much of the allegations in paragraph 8 of the Complaint as that Plaintiff has demanded payment from the Defendant and that Defendant has refused payment to Plaintiff. To the extent that the allegations in paragraph 8 of the Complaint infer or imply that Defendant has an obligation to "repay" Plaintiff. Defendant denies the allegations. 9. Denied. The allegations contained in paragraph 9 of the Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that a responsive pleading is required, Defendant denies the allegations contained in paragraph 9 of the Complaint. 10. Denied. The allegations contained in paragraph 10 of the Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that a responsive pleading is required, Defendant denies the allegations contained in paragraph 10 of the Complaint. 11. (Second paragraph 10). Denied. In response to second paragraph 10 of the Complaint, Defendant restates, as if fully rewritten, his answers to paragraphs through 10 of the Complaint. 12. (Paragraph 11). Denied. The allegations contained in paragraph 11 of the Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that a responsive pleading is required, Defendant denies the allegations contained in paragraph 11 of the Complaint. 13. (Paragraph 12). Admitted in part and Denied in part. Defendant admits as much of the allegation in paragraph 12 of the Complaint as that the Plaintiff paid Defendant a sign-on bonus and closing costs. Defendant denies that Plaintiffs payment was made to Defendant "pursuant to Exhibit `A'." To the extent that Plaintiffs allegations imply or infer that Defendant has an obligation to repay Plaintiff, Defendant denies the allegations. 14. (Paragraph 13). Denied. Defendant denies the allegations contained in paragraph 13 of the Complaint. By way of further pleading, Defendant avers that his obligation to repay a portion of the sign-on bonus only arose in the event that he voluntarily left his position with Plaintiff and accepted a position with a competitor of Plaintiff. I5. (Paragraph 14). Admitted in part and Denied in part. Defendant admits as much of the allegation in paragraph 14 of the Complaint as that the Plaintiff involuntarily terminated Defendant's employment within twelve months of his hire date and that Plaintiff "requested repayment of the sign-on bonus and closing costs" after the date on which Plaintiff involuntarily terminated Defendant's employment. To the extent that Plaintiffs allegations imply or infer that Defendant has any obligation to repay Plaintiff, Defendant denies the allegations. 16. (Paragraph 15). Admitted in part and Denied in part. Defendant admits as much of the allegation in paragraph 15 of the Complaint as that the Defendant has refused Plaintiff's demand for payment. To the extent that Plaintiffs allegations imply or infer that Defendant has any obligation to repay Plaintiff, Defendant denies the allegations. 17. (Paragraph 16). Denied. The allegations contained in paragraph 16 of the Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that a responsive pleading is required, Defendant denies the allegations contained in paragraph 16 of the Complaint. 18. (Paragraph 17). Denied. The allegations contained in paragraph 17 of the Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that a responsive pleading is required, Defendant denies the allegations contained in paragraph 17 of the Complaint. NEW MATTER AFFIRMATIVE DEFENSES FIRST DEFENSE 19. Defendant restates, as if fully rewritten, the answers contained in paragraphs I through 18 hereinabove. 20. Plaintiffs Complaint fails to state a claim upon which relief can be granted. SECOND DEFENSE 21. Defendant restates, as if fully rewritten, the answers contained in paragraphs 1 through 20 hereinabove. 22. Plaintiffs claims are barred by the doctrine of accord and satisfaction. THIRD DEFENSE 23. Defendant restates, as if fully rewritten, his answers contained in paragraphs through 22 hereinabove. 24. Plaintiffs claims are barred by the doctrine of waiver. FOURTH DEFENSE 25. Defendant restates, as if fully rewritten, his answers contained in paragraphs 1 through 24 hereinabove. 26. Defendant is discharged from any obligation owed to Plaintiff by virtue of Plaintiffs breach of an implied contract of employment and failure to perform. FIFTH DEFENSE 27. Defendant restates, as if fully rewritten, his answers contained in paragraphs I through 26 hereinabove. 28. Defendant is discharged from any obligation owed to Plaintiff by virtue of Plaintiff s fraud and misrepresentation. SIXTH DEFENSE 29. Defendant restates, as if fully rewritten, his answers contained in paragraphs through 28 hereinabove. 30. Plaintiffs claims are barred by the equitable doctrine of unclean hands. WHEREFORE, Defendant demands that the Plaintiffs Complaint be dismissed with prejudice and that the Defendant be awarded his costs, including reasonable attorney fees in this action. COUNTERCLAIMS 31. In or around March 1998, National Search Associates contacted the Defendant to solicit interest in a Vice President/Lending position with the Plaintiff. 32. Defendant was employed at that time as President, North Central Region, by Huntington Bancshares, Inc. ("Huntington") in Morgantown West Virginia. Under the terms of a Hiring/Relocation Agreement between them, Defendant was obligated to repay to Huntington, if he voluntarily terminated employment within twelve months of employment by Huntington, any relocation or cash payments made to him or on his behalf. 33. Several days after first contact, the Defendant told National Search Associates that he would be interested in the Vice President/Lending position with Plaintiff so long as the Plaintiff would offer the Defendant employment terms equal to or better than those that he had received from Huntington Bank. 34. Between March 1998 and June 12, 1998 Plaintiff and Defendant discussed and negotiated salary, job responsibilities, performance expectations, relocation reimbursement, employee benefits and starting date. 35. Defendant earned a base annual salary of $105,000.00 with Huntington. 36. Plaintiff offered Defendant a base annual salary of $105,000.00. 37. Huntington had paid the Defendant a relocation allowance of $25,000.00 to cover lost equity in the sale of his Maryland home. 38. Plaintiff offered to pay Defendant a "sign-on bonus" of $25,000.00 less state and federal taxes to keep Defendant whole for his repayment obligation to Huntington. 39. Huntington had agreed to reimburse the Defendant for Realtor's fee and miscellaneous inspections, appraisal and legal fees incurred in relocating to West Virginia on a "net after-tax basis." 40. Plaintiff offered to reimburse Defendant for reasonable closing costs in the amount of $21,000.00 on a "Net after-tax basis." 41. Huntington had offered to provide Defendant temporary relocation expenses, including two house hunting trips and up to sixty (60) days of temporary housing. 42. The Plaintiff agreed to pay Defendant $3,600.00 in order to keep the Plaintiff whole for his repayment obligation to Huntington and to pay for Defendant's temporary relocation expenses. 43. Huntington had agreed to pay all reasonable costs involved in moving the Defendant's household goods to the greater Morgantown, West Virginia area. 44. Plaintiff agreed to pay all reasonable costs involved in moving the Defendant's household goods to Harrisburg, Pennsylvania, including paying for ninety (90) days of storage. 45. Huntington had agreed to reimburse the Defendant for those reasonable and customary costs (excluding "Buy down points") incurred in obtaining mortgage financing. 46. Plaintiff, agreed to originate for the Defendant a mortgage loan free of origination fees. 47. Huntington agreed to recommend the Defendant for participation in its Management Incentive Plan for 1998 at the "B" level. 48. Plaintiff offered Defendant eligibility in its Bonus Program for 1998 and thereafter. 49. Huntington agreed that, depending on job performance, the Defendant may be initially recommended for approximately 2,000 stock option shares to be awarded in August 1998. 50. Plaintiff offered Defendant eligibility in its Stock Option Program for 1998 and thereafter. Plaintiff verbally promised Defendant approximately 1,000 shares of stock options, dependent on job performance. 51. Huntington offered to provide Defendant and his non-working dependents with health insurance. 52. Plaintiff offered to provide Defendant and his non-working dependents with health insurance. 53. Huntington offered Defendant participation in its 401(k) program. 54. Plaintiff offered Defendant participation in its 401(k) program if Defendant started his employment with Plaintiff by July 1, 1998. 55. Huntington offered Defendant a cellular telephone and normal business expense account privileges. 56. Plaintiff offered Defendant a company car, a cellular telephone and normal business expense account privileges. 57. At Huntington, the Defendant's duties as President, North Central Region were primarily executive and managerial. 58. During the interview process, Plaintiff's president/CEO, James T. Gibson ("Gibson") described Defendant's duties as Vice President/Lending as being primarily executive and managerial. Gibson defined satisfactory performance after one year in the job for the Defendant as follows: (a) to meet or exceed department budget; (b) to increase the credit skills of the lenders whom he would supervise; and (c) to build a cohesive teamwork environment. 59. Throughout the interview process, Plaintiff never stated that Defendant would have specific personal Loan production goals. 60. Plaintiff and Defendant agreed that Defendant's employment start date would be June 28, 1998. 61. On June 11, 1998, Plaintiff faxed Defendant a letter offering employment to Defendant as Senior Vice President/Lending. The letter was signed by Gibson. 62. Gibson's June I 1 letter contained a provision that stated: "If employment ceases, the sign-on bonus and the reimbursement of closing expenses would be repaid to Commerce Bank as follows: Within 12 months - repay 100% 13 - 24 months - repay 2/3 25 - 36 months - repay 1/3 after 36 months - no repayment." 63. Gibson's June I 1 fax was the first time that the issue of repayment was raised by the Plaintiff. 64. Defendant asked Gibson on June 11, 1998 for an explanation of the repayment provision and the phrase "if employment ceases." 65. Gibson explained to Defendant on June 11, 1998 that the repayment provision and the phrase "if employment ceases" means that if the Defendant were to voluntarily leave his employment by the Plaintiff to work for a competitor of the Plaintiff, then but only in that event, the Defendant would be obligated to repay the Plaintiff a portion of the sign-on bonus and closing costs, according to the schedule in the letter. 66. Defendant asked Gibson if the repayment schedule could be change from three years to two years. 67. Gibson refused to shorten the schedule and stated that he did not want to pay to relocate the Defendant and then allow the Defendant to leave employment within three years. 68. Defendant accepted Plaintiffs offer of employment subject to the understandings set out in paragraphs 33 through 67, hereinabove. 69. But for the understandings set out in paragraphs 33 through 67, hereinabove, Defendant would not have accepted Plaintiff s offer of employment. 70. Defendant is 46 years of age. He is married. He has two (2) children of school age. 71. Following Defendant's acceptance of Plaintiffs offer of employment, Defendant relocated his family to Harrisburg, Pennsylvania. 72. At all times relevant to this action, Defendant's job performance met or exceeded the minimum requirements of the position as they were described and represented by the Plaintiff throughout the interview and selection process. 73. In or around September 1998, Gibson abruptly changed Defendant's responsibilities to include unreasonably high goals for personal loan production generated by the Defendant. 74. In or around September 1998, Defendant's job duties changed significantly from managerial and supervisory duties to one of lead producer, requiring significant levels of "cold calling" and sales duties. 75. Plaintiff involuntarily terminated Defendant. 76. Plaintiffs involuntary termination of Defendant was for reasons other thanjob performance. COUNT 1: BREACH OF IMPLIED CONTRACT 77. Defendant restates, as if fully rewritten, paragraphs 31 through 76 hereinabove. 78. Plaintiff offered employment to Defendant and Defendant accepted Plaintiff's offer of employment under terms and conditions set out in paragraphs 31 through 76 hereinabove. 79. By uprooting his family and relocating to Pennsylvania, the Defendant suffered a hardship. 80. By relinquishing his secure employment as President, North Central Region, at Huntington, Defendant incurred a detriment. 81. The schedule set out in Gibson's letter of June 11, 1998 and his June 12, 1998 letter contemplates and implies employment for at least thirty-six (36) months. 82. Defendant accepted Plaintiffs offer of employment with the understanding that he and the Plaintiff were committing to an employment contract for thirty-six (36) months. 83. The hardships suffered and the detriments incurred by the Defendant provided additional consideration for the contract of employment. 84. Plaintiff terminated Defendant's employment on May 6, 1999, after only eleven (11) months. 85. Plaintiff thereby breached the implied contract of employment with Defendant. 86. As a direct and proximate result of Plaintiffs breach of the implied contract of employment, Defendant has been damaged. W1, 7REFORE, Defendant claims of the Plaintiff and demands judgment against the Plaintiff in the amount of $218,750.00, which amount represents twenty-five months of Defendant's salary at $8,750.00 per month, plus interests, reasonable attorney fees and costs. COUNT H: PROMISSORY ESTOPPEL 87. Defendant restates, as if fully rewritten, paragraphs 31 through 86 hereinabove. 88. Plaintiff represented to the Defendant: a. that Defendant's job responsibilities as Vice President/Lending would consist of executive and managerial duties; b. that Defendant's job performance would be evaluated based on the goals enumerated in paragraph 58 hereinabove; C. that Defendant's obligation to repay some or all of the sign-on bonus and closing costs would arise if, but only if, the Defendant voluntarily left employment within three years; d. that the Plaintiff and Defendant were making a commitment for a long term employment arrangement whose duration was to be at least three years; e. that the Defendant could participate in Plaintiff's 401(k) program, if he was employed by June 28, 1998. 89. Plaintiffs representations were material to Defendant's decision to accept Plaintiff's offer of employment. 90. Defendant's reliance on Plaintiff's representations was reasonable. 91. Plaintiffs representations were false. a. Beginning in September 1998, Defendant's job responsibilities consisted of "cold I calling" and sales duties instead of executive and managerial duties. b. Beginning in September 1998, Plaintiff evaluated Defendant's job performance on different criteria than those enumerated in paragraph 58 herinabove; c. By the instant action, Plaintiff now asserts that Defendant's obligation to repay Plaintiff some or all of the sign-on bonus and closing costs arises even when Plaintiff involuntarily terminated Defendant; d. Plaintiff terminated Defendant's employment within three years; e. Plaintiff did not permit the Defendant to participate in the 401(k) plan for 1998. 92. As a direct and proximate result of Plaintiffs wrongful acts, the Defendant has suffered detriments and has been damaged thereby. 10 WHEREFORE, Defendant claims of the Plaintiff and demands judgment against the Plaintiff in the amount of $218,750.00, which amount represents twenty-five months of Defendant's salary at $8,750.00 per month, plus interests, reasonable attorney fees and costs. COUNTIII: NEGLIGENT MISREPRESENTATION 93. Defendant restates, as if fully rewritten, paragraphs 31 through 92 hereinabove. 94. Plaintiff has a duty to Defendant to truthfully represent the job responsibilities, performance objectives, and other terms and conditions of employment. 95. Plaintiff misrepresented Defendant's job responsibilities, performance objectives and other terms and conditions of employment. 96. Plaintiff thereby breached its duty to the Defendant. WHEREFORE, Defendant claims of the Plaintiff and demands judgment against the Plaintiff in the amount of $218,750.00, which amount represents twenty-five months of Defendant's salary at $8,750.00 per month, plus interests, reasonable attorney fees and costs. COUNT IV: FRAUDULENT MISREPRESENTATION 97. Defendant restates, as if fully rewritten, paragraphs 31 through 96 hereinabove. 98. Plaintiff knew or should have known that its representations to Defendant were false and misleading. 99. Plaintiff made the representations with intent to induce the Defendant to accept Plaintiff s offer of employment. 100. Plaintiffs representations were false and misleading. 101. As a direct and proximate result of Plaintiffs misrepresentations, the Defendant has suffered detriments and has been damaged thereby. WHEREFORE, Defendant claims of the Plaintiff and demands judgment against the Plaintiff in the amount of $218,750.00, which amount represents twenty-five months of Defendant's salary at $8,750.00 per month, together with pre judgment interest, reasonable attorney fees and costs, and such other and further relief as this Honorable Court deems just and appropriate. Respectfully submitted, RICHARD C. GAFFNEY, ESQUIRE SUPREME COURT I.D. # 63313 P.O. Box 627 101 Front Street Boiling Springs, PA 17007-0627 Telephone: 717.249.2525 Attorney for the Defendant, Sterling Shuman DATED: October 1, 1999 12 COMMERCE BANK/ HARRISBURG, N.A., Plaintiff v STERLING SHUMAN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW No. 99-4728 VERIFICATION I verify that the statements made in the foregoing Answer and Counterclaim are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. Cons. Stat. Ann. § 4904, relating to unswom falsification to authorities. Date: 1 _ BV; 13 1 .i 0 -. FL C ) `n U COMMERCE BANK/ IN THE COURT OF COMMON PLEAS HARRISBURG, N.A., CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA CIVIL ACTION - LAW V. NO. 99-4728 STERLING SHUMAN, Defendant JURY TRIAL DEMANDED NOTICE TO PLEAD TO: STERLING SHUMAN, Defendant, and RICHARD GAFFNEY, ESQUIRE, His Attorney: You are hereby notified to plead to the within document within twenty (20) days after service hereof, or a default judgment may be entered against you. METTE, EVANS & WOODSIDE By: ELIZABETH GOLDSTEIN DIXON Supreme Court I.D. #73779 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff Commerce Bank/ Harrisburg, N.A. DATED: October 21, 1999 COMMERCE BANK/ HARRISBURG, N.A., Plaintiff V. STERLING SHUMAN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-4728 JURY TRIAL DEMANDED PLAINTIFF COMMERCE BANK'S PRELIMINARY OBJECTIONS TO DEF'ENDANT'S COUNTERCLAIMS AND NOW comes Plaintiff, Commerce Bank/Harrisburg, N.A., by and through its attorneys, Mette, Evans & Woodside, and avers the within Preliminary Objections to Defendant's Counterclaims: 1. This action was commenced by Writ on August 5, 1999. 2. A Rule to File Complaint was issued on August 23, 1999. 3. Plaintiff Commerce Bank/Harrisburg, N.A.'s ("Commerce Bank") Complaint was filed on September 10, 1999. 4. The Complaint arises from Defendant Sterling Shuman's ("Shuman") employment with Plaintiff Commerce Bank. 5. The Complaint seeks repayment for a 525,000.00 sign-on bonus and $21,000.00 of closing costs paid by Commerce Bank pursuant to a written employment agreement (attached as Exhibit "A" to the Complaint) entered into on June 12, 1998. 6. The written agreement specifically provides for Defendant Shuman's repayment of sign-on bonus and closing costs "if employment ceases." 7. Repayment is based upon a graduated scheduled provided in the written employment agreement. 8. Plaintiff Commerce Bank terminated Defendant Shuman's employment on May 6, 1999 which was within the first twelve months of his employment. 9. Defendant Shuman filed an Answer with New Matter and Counter Claims on October 1, 1999. 1. Demurrer to Implied Contract 10. The Counterclaim contains a Count seeking recovery of twenty five months of Defendant's salary from the date of Defendant Shuman's termination forward based upon a theory of "implied contract". 11. The Counterclaim does not specify whether the claim of "implied contract" is based upon a contract implied in fact or implied in law. 12. If Defendant Shuman seeks to enforce a contract allegedly implied in fact, Defendant Shuman's counterclaim is legally deficient in that it is based upon an express written agreement and provides no basis for an allegation of a contract implied in fact. 13. If Defendant Shuman seeks to enforce a contract allegedly implied in law, Defendant Shuman's counterclaim is legally deficient in that it would be seeking recovery via quantum meruit for sums allegedly due pursuant to an express written agreement. 14. The portion of Defendant Shuman's counterclaim based upon "implied contract" fails as a matter of law to set forth a cause of action upon which recovery may be granted. -2- WHEREFORE Plaintiff Commerce Bank/Harrisburg, N.A. respectfully requests that Defendant Sterling Shuman's counterclaim based upon implied contract be dismissed with prejudice. H. Demurrer to Fraudulent Misrepresentation 15. In Count IV of his counterclaim, Defendant Shuman alleges fraudulent misrepresentations based upon certain representations which he alleges were made by "Plaintiff." 16. Plaintiff Commerce Bank is a corporate entity consisting of thousands of employees, IT Defendant Shuman fails to specify which employee of Plaintiff Commerce Bank allegedly made the representations complained of in his counterclaim and further fails to identify the date and specific nature of the alleged misrepresentations. 18. An action sounding in fraud requires that the elements of fraud be pleaded with specificity. 19. Defendant Shuman's counterclaim is legally deficient in that fails to plead the elements of fraud with specificity. WHEREFORE, Plaintiff Commerce Bank/Harrisburg, N.A. respectfully requests that Count IV of Defendant Sterling Shuman's counterclaim be dismissed with prejudice; or, in the alternative, that Defendant Sterling Shuman be required to amend Count IV of his counterclaim to include specific allegations regarding the elements of the alleged fraud. 3- III. Motion to Strike 20. Defendant Shuman's counterclaim seeks "reasonable attorney fees" in each of the counts presented therein. 21. Under Pennsylvania law, attorney fees are not recoverable unless provided for in a written agreement or by statute. 22. Defendant Shuman has stated no basis for the inclusion of attorney fees in his counterclaim. 23. Accordingly, Defendant Shuman's request for attorney fees is contrary to law and should be stricken. WHEREFORE, Plaintiff Commerce Bank/Harrisburg, N.A. respectfully requests that Defendant Sterling Shuman's request for attorney fees be stricken. Respectfully submitted, METTE, EVANS & WOODSIDE By: ?' \•?Uc? ELIZABETH GOLDSTEIN IXON Supreme Court I.D. #73779 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff Commerce Bank/ Harrisburg, N.A. DATED: October 21, 1999 -4- CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Richard Gaffney, Esquire P.O. Box 627 101 Front Street Boiling Springs, PA 17007 METTE, EVANS & WOODSIDE By:V t?? ?? y o _l ELIZABETH GOLDSTEIN DIXO Supreme Court I.D. #73779 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff Commerce Bank/ Harrisburg, N.A. DATED: October 21. 1999 :201465 -I 1. llJi .1 C7 (^ 7_ Ll N Q iT U COMMERCE BANK/ IN THE COURT OF COMMON PLEAS HARRISBURG, N.A., CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA CIVIL ACTION - LAW V. NO. 99-4728 STERLING SHUMAN, Defendant JURY TRIAL DEMANDED NOTICE TO PLEAD TO: STERLING SHUMAN, Defendant, and RICHARD GAFFNEY, ESQUIRE, His Attorney: You are hereby notified to plead to the within document within twenty (20) days after service hereof, or a default judgment may be entered against you. METTE, EVANS & WOODSIDE By: ELIZA ETH GOLDSTEIN DIXON Supreme Court I.D. #73779 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff Commerce Bank/ Harrisburg, N.A. DATED: %I - a' -qci COMMERCE BANK/ HARRISBURG, N.A., Plaintiff V. STERLING SHUMAN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-4728 JURY TRIAL DEMANDED PLAINTIFF COMMERCE BANK'S PRELIMINARY OBJECTIONS TO DEFENDANT'S AMENDED ANSWER WITH NEW MATTER AND NOW comes Plaintiff, Commerce Bank/Harrisburg, N.A., by and through its attorneys, Mette, Evans & Woodside, and avers the within Preliminary objections to Defendant's Amended Answer with New Matter: This action was commenced by Writ on August 5, 1999. 2. A Rule to File Complaint was issued on August 23, 1999. 3. Plaintiff Commerce Bank/Harrisburg, N.A.'s ("Commerce Bank") Complaint was filed on September 10, 1999. 4. The Complaint arises from Defendant Sterling Shuman's ("Shuman") employment with Plaintiff Commerce Bank. 5. The Complaint seeks repayment for a $25,000.00 sign-on bonus and $21,000.00 of closing costs paid by Commerce Bank pursuant to a written employment agreement (attached as Exhibit "A" to the Complaint) entered into on June 12, 1998. 6. The written agreement specifically provides for Defendant Shuman's repayment of sign-on bonus and closing costs "if employment ceases." Repayment is based upon a graduated schedule provided in the written employment agreement. 8. Plaintiff Commerce Bank terminated Defendant Shuman's employment on May 6, 1999 which was within the first twelve months of his employment. 9. Defendant Shuman was an at-will employee. 10. Defendant Shuman filed an Answer with New Matter on October I, 1999. 11. Plaintiff Commerce Bank filed Preliminary Objections to Defendant Shuman's Answer with New Matter on October 21, 1999. 12. In response to Plaintiff Commerce Bank's Preliminary Objections, Defendant Shuman filed an Amended Answer with New Matter on November 8, 1999. 13. Defendant's Amended Answer with New Matter contains several counterclaims. 14. Plaintiff Commerce Bank's Preliminary Objections concern these counterclaims. Demurrer to Breach of Express Contract Counterclaim CountI 15. Defendant Shuman admits that an express contract between the parties was memorialized in Mr. Gibson's letter June 12, 1998 (mistakenly referred to in Counterclaim Count I as June 11, 1998), attached as Exhibit "A" to Plaintiff Commerce Bank's Complaint. 16. Defendant Shuman avers that Plaintiff Commerce Bank breached the June 12, 1998 written contract by terminating Defendant Shuman within the first three years of employment. 17. The terms of the written agreement are not ambiguous. 18. The written agreement's terms do not include a promise of three years of employment for Defendant Shuman. -1) - 19. Therefore, as a matter of law, Plaintiff Commerce Bank did not breach the June 12, 1998 contract by terminating Defendant Shuman on May 6, 1999. 20. Defendant Shuman's counterclaim based upon breach of express contract fails as a matter of law to set forth a cause of action upon which recovery may be granted. WHEREFORE Plaintiff Commerce Bank/f-farrisburg, N.A. respectfully requests that Defendant Sterling Shuman's counterclaim based upon breach of an express contract be dismissed with prejudice. 11 Demurrer to Breach of Implied-In-Fact Contract Counterclaim Count 11 21. The Counterclaim contains a Count seeking recovery of twenty-five months of Defendant's salary from the date of Defendant Shuman's termination forward based upon a theory of an implied-in-fact contract. 22. Defendant Shuman's implied-in-fact counterclaim is legally deficient in that it is based upon an express written agreement and provides no basis for an allegation of a contract implied-in-fact. 23. Consequently, Defendant Shuman's counterclaim based upon "implied contract" fails as a matter of law to set forth a cause of action upon which recovery may be granted. WHEREFORE Plaintiff Commerce Bank/Harrisburg, N.A. respectfully requests that Defendant Sterling Shuman's counterclaim based upon an implied-in-fact contract be dismissed with prejudice. -3- I? Demurrer to Promissory Estoppel Counterclaim Second Count II 24. Defendant Shuman does not aver that any employee or agent of Plaintiff Commerce Bank represented to him that he would be employed by Plaintiff Commerce Bank for at feast three years. 25. Defendant Shuman does not aver that any employee or agent of Plaintiff Commerce Bank represented to him that his job responsibilities never change. 26. Defendant Shuman's counterclaim based upon promissory estoppel is legally deficient in that it would be seeking recovery for sums which may only be obtained in an action at law. 27. Plaintiff Commerce Bank is a corporate entity consisting of thousands of employees. 28. Defendant Shuman fails to specify which employee of Plaintiff Commerce Bank allegedly made the representations complained of in his counterclaim and further fails to identify the date and specific nature of the alleged misrepresentations. 29. Defendant Shuman's counterclaim is legally deficient in that it fails to plead the facts required to establish the elements of promissory estoppel. 30. Defendant Shuman's counterclaim based upon promissory estoppel fails as a matter of law to set forth a cause of action upon which recovery may be granted. WHEREFORE Plaintiff Commerce Bank/Harrisburg, N.A. respectfully requests that Defendant Sterling Shuman's counterclaim based upon promissory estoppel be dismissed with prejudice. -4- Iv Motion to Strike Wherefore Clause and ParaEraphs 94 and 97 of_Prom issory Estoppel Counterclaim Second Count 11 31. Defendant Shuman's counterclaim based upon promissory estoppel is legally deficient in that it's wherefore clause seeks damages which may only be obtained in law. 32. Therefore, the portion of Defendant Shuman 's promissory estoppel wherefore clause seeking damages "in the amount of $218,750.00, which amount represents twenty-five months of Defendant's salary at $8,750.00 per month, plus interests, reasonable attorney fees and costs" should be stricken. 33. Plaintiff Commerce Bank is a corporate entity consisting of thousands of employees. 34. Defendant Shuman fails to specify which employee of Plaintiff Commerce Bank allegedly made the representations complained of in his counterclaim and further fails to identify the date and specific nature of the alleged misrepresentations. 35. Therefore, the alleged representations provided in paragraphs 94 and 97 of the Amended Answer with New Matter should be stricken. WHEREFORE Plaintiff Commerce Bank/Harrisburg, N.A. respectfully requests that Defendant Sterling Shuman's wherefore clause to its promissory estoppel counterclaim requesting damages "in the amount of $218,750.00, which amount represents twenty-five months of Defendant's salary at $8,750.00 per month, plus interests, reasonable attorney fees and costs" and paragraphs 94 and 97 of the Amended Answer with New Matter should be stricken. -5- V Demurrer to Neelieent Misrepresentation Counterclaim Count 111 36. Plaintiff Commerce Bank is a corporate entity consisting of thousands of employees. 37. Defendant Shuman fails to specify which employee of Plaintiff Commerce Bank allegedly made the representations complained of in his counterclaim and further fails to identify the date and specific nature of the alleged misrepresentations. 38. Pennsylvania requires that all material facts be pleaded in the Complaint. 39. Under Pennsylvania law, employees are presumed to be at-will employees. 40. Under Pennsylvania law, employers have no duty to indicate when job duties, responsibilities, and performance objectives will change. 41. Under Pennsylvania law, employers have the right to unilaterally and without notice change at-will employees job duties, responsibilities, and performance objectives. 42. Defendant Shuman has not averred that Plaintiff Commerce Bank's alleged misrepresentations were made negligently. 43. Defendant Shuman's counterclaim based upon promissory estoppel fails as a matter of law to set forth a cause of action upon which recovery may be granted. WHEREFORE Plaintiff Commerce Bank/Harrisburg, N.A. respectfully requests that Defendant Sterling Shuman's counterclaim based upon negligent misrepresentation be dismissed with prejudice. 6- VI Motion to Strike Paragraphs 100 and 101 of the Ne li ent Misre resen ation Counterclaim Count III 44. Defendant Shuman avers in paragraph 100, "Plaintiff has a duty to Defendant to truthfully represent thejob responsibilities, performance objectives, and other terms and conditions of employment." 45. Defendant Shuman fails to specify what "other terms and conditions of employment" he is referring to in his negligent misrepresentation count. 46. Defendant Shuman avers in paragraph 101, "Plaintiff misrepresented Defendant's job responsibilities, performance objectives, and other terms and conditions of employment." 47. Defendant Shuman fails to identify which employee allegedly made the misrepresentations relied upon by Defendant Shuman, and the date and specific nature of the alleged misrepresentations. WHEREFORE Plaintiff Commerce Bank/Harrisburg, N.A. respectfully requests that paragraphs 100 and 101 of the negligent misrepresentation counterclaim be stricken. VII Demurrer to the Fraudulent Misrepresentation Couterclaim Count IV 48. In Count IV of his counterclaim, Defendant Shuman alleges fraudulent misrepresentations based upon certain representations which he alleges were made by "Plaintiff." Answer with New Matter at T¶ 105-108. 49. Plaintiff Commerce Bank is a corporate entity consisting of thousands of employees. -7- 50. Defendant Shuman fails to limit his claim to a specific employee or employees of Plaintiff Commerce Bank who allegedly made the representations and further fails to identify the date and specific nature of these alleged misrepresentations. See Answer with New Matter I$ 105-107. 51. An action sounding in fraud requires that the elements of fraud be pleaded with specificity. 52. Defendant Shuman's counterclaim is legally deficient in that it fails to plead the elements of fraud with specificity. WHEREFORE, Plaintiff Commerce Bank/Harrisburg, N.A. respectfully requests that Count IV of Defendant Sterling Shuman's counterclaim be dismissed with prejudice; or, in the alternative, that Defendant Sterling Shuman be required to amend Count IV of his counterclaim to include specific allegations regarding the elements of the alleged fraud. Vlll Motion to Strike Paragraphs 105-107 of the Fraudulent Misrepresentation Counterclaim Count IV 53. In Count IV of his counterclaim, Defendant Shuman alleges fraudulent misrepresentations based upon certain representations which he alleges were made by "Plaintiff." Answer with New Matter at J¶ 105-108. 54. Plaintiff Commerce Bank is a corporate entity consisting of thousands of employees. 55. Defendant Shuman fails to limit his claim to a specific employee or employees of Plaintiff Commerce Bank who allegedly made the representations. Defendant Shuman -8- complained of in his counterclaim and further fails to identify the date and specific nature of these alleged misrepresentations. See Answer with New Matter IT 105-107. 56. An action sounding in fraud requires that the elements of fraud be pleaded with specificity. WHEREFORE Plaintiff Commerce Bank/Flarrisburg, N.A. respectfully requests that paragraphs 105 and 107 of the fraudulent misrepresentation counterclaim be stricken. IX Motion to Strike 57. Defendant Shuman's counterclaim seeks "reasonable attorney fees" in each of the counts presented therein. 58. Under Pennsylvania law, attorney fees are not recoverable unless provided for in a written agreement or by statute. 59. Defendant Shuman has stated no basis for the inclusion of attorney fees in his counterclaim. 60. Accordingly, Defendant Shuman's request for attorney fees is contrary to law and should be stricken. -9- WHEREFORE, Plaintift'Commerce Bank/Flarrisburg, N.A. respectfully requests that Defendant Sterling Shuman's request for attorney fees be stricken. Respectfully submitted, METTE, EVANS & WOODSIDE By: EL" zu_ ELIZ/tBETH GOLDSTEIN DIXON Supreme Court I.D. 073779 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff Commerce Bank/ DATED: I 1-;z4-'?N Harrisburg, N.A. -10- CERTIFICATE OF SERVICE 1 certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Richard Gaffney, Esquire P.O. Box 627 101 Front Street Boiling Springs, PA 17007 METTE, EVANS & WOODSIDE By: E4?4_Ke." h 2. n.. ELIZA ETH GOLDSTEIN DIXON Supreme Court I.D. #73779 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff Commerce Bank/ Harrisburg, N.A. DATED: 11--Z' 4-q u :204997 1 L: Cv 'r•? U? J COMMERCE BANK/ HARRISBURG, N.A., Plaintiff V. STERLING SHUMAN, Defendant M THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-4728 JURY TRIAL DEMANDED AND NOW comes the Defendant, Sterling Shuman, by and through his attorney, Richard C. Gaffney, Esquire, who files this Answer to Plaintiffs Preliminary Objections to Defendant's Amended Answer With New Matter: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted in part and Denied in part. Defendant admits as much of the allegation in paragraph six as that the language of the written employment agreement reads as follows: "if employment ceases, the sign-on bonus and the reimbursement of closing expenses would be repaid...." Defendant denies the allegation in paragraph six to the extent that it implies, under the facts of this case, that Defendant has an obligation to repay the sign-on bonus and the reimbursement for closing expenses. 7. Admitted in part and Denied in part. Defendant admits the allegation in paragraph seven to the extent that the written employment agreement contains a graduated schedule for repayment. Defendant denies the allegation in paragraph seven to the extent that it implies that he has any obligation under the facts of this case to repay the sign-on bonus or to repay the reimbursement for closing costs. 8. Admitted. 9. Denied. Defendant specifically denies that his employment with Plaintiff was "at-will." Defendant's act of selling his home in Maryland and relocating his family to the Harrisburg area for the sole purpose of working for the Plaintiff constitutes additional consideration, sufficient to overcome the presumption of "at-will" employment. 10. Admitted. 11. Admitted. 12. Admitted. 13. Admitted. 14. Admitted. Demurrer to Breach of Fxnro.a r 15. Admitted in part and Denied in part. Defendant admits that an express contract between the parties was memorialized in Mr. Gibson's letter dated June 12, 1998. Defendant denies that he mistakenly referred to said letter as "Gibson's letter ofJune 11, 1998." Defendant first saw the letter on June 11, 1998 when a draft copy was faxed to him. However, to avoid further confusion, Defendant will, from this time forward, refer to said letter as "Gibson's letter of June 12, 1998." 16. Admitted. 17. Denied. Defendant specifically denies that the terms of the written employment agreement are not ambiguous. To the contrary, the terms of the written agreement are so vague that parole evidence must be considered in order to interpret its meaning. 18. Denied. Defendant specifically denies that the terms of the written agreement do not include a promise of three years of employment. To the contrary, the three-year graduated repayment schedule (and discussions between the Defendant and the Plaintiff's President, James T. Gibson) contain a promise of at least three years of employment. 19. Denied. 20. Denied. WHEREFORE, Defendant Sterling Shuman respectfully requests that Plaintiff's Demurrer to Defendant's counterclaim based on express contract be denied. 1R Demurrer to Breach of Implied-in-Fact ounterc im 21. Admitted. 22. Denied. Defendant restates paragraphs 85 - 89 of his Amended Answer with New Matter. 23. Denied. WHEREFORE, Defendant Sterling Shuman respectfully requests that the Plaintiffs Demurrer to Defendant's counterclaim based on the breach of an implied-in-fact contract be denied. III Demurrer to Promissory E toopel Counterclaim 24. Denied. Paragraph 67 of Defendant's Amended Answer with New Matter states that Mr. Gibson refused to shorten the repayment schedule in the June 12, 1998 letter because "he did not want to pay to relocate the Defendant and then allow the Defendant to leave employment within three years." By stating that he did not want to "allow the Defendant to leave employment within three years," Gibson indicated that Defendant Shuman's employment would continue for at least three years. 4 25. Admitted in part and Denied in part. Defendant admits that he did not specifically aver that Gibson "never represented to him that his job responsibilities [would] never change." Defendant denies the allegation in paragraph 25 to the extent that Defendant did aver in paragraphs 58 and 59 of his Amended Answer with New Matter that Gibson represented the job he offered to Defendant as "executive and managerial" in nature. Gibson did not, at any point in the interview process, state that the Defendant would have personal loan production goals. 26. Denied. 27. Denied for want of knowledge. 28. Denied. Paragraph 58 of Defendant's Amended Answer with New Matter names James T. Gibson as the individual who described the job that was offered to Defendant Shuman. Paragraph 61 states that the Plaintiff faxed a letter, which was signed by Gibson, offering employment to Defendant Shuman as a Senior Vice President/Lending. James T. Gibson, President and CEO of Commerce Bank, is the individual who did not represent the job responsibilities of a Senior Vice President/Lending with candor. Paragraph 34 avers the dates of the job negotiation discussions to be between March, 1998 and June 12, 1998. The specific nature of the misrepresentations is averred in paragraphs 58, 59, and 73 of the Defendant's Amended Answer with New Matter. 29. Denied. 30. Denied. WHEREFORE, Defendant Sterling Shuman respectfully requests that the Plaintiff's Demurrer to the Promissory Estoppel Counterclaim be denied. IV Motion to Strike Wherefore Clause and Paragraphs 94 and 97 of Promissory Estoppel Counterclaim 31. Denied. 32. Denied. 33. Denied for want of knowledge. 34. Denied. Paragraph 58 of Defendant's Amended Answer with New Matter names James T. Gibson as the individual who described the job that was offered to Defendant Shuman. Paragraph 61 states that the Plaintiff faxed a letter, which was signed by Gibson, offering employment to Defendant Shuman as a Senior Vice President/Lending. James T. Gibson, President and CEO of Commerce Bank, is the individual who did not represent the job responsibilities ofa Senior Vice President/Lending with candor. Paragraph 34 avers the dates of the job negotiation discussions as between March, 1998 and June 12, 1998. The specific nature of the misrepresentations is averred in paragraphs 58, 59, and 73 of the Defendant's Amended Answer with New Matter. 35. Denied. WHEREFORE, Defendant Sterling Shuman respectfully requests that the Plaintiffs motion to strike the wherefore clause in the promissory estoppel counterclaim and paragraphs 94 and 97 of Defendant's Amended Answer with New Matter be denied. V Demurrer to Nealis!ent Misrepresentation .nnnrerclaim 36. Denied for want of knowledge. 37. Denied. Paragraph 58 of Defendant's Amended Answer with New Matter names James T. Gibson as the individual who described the job that was offered to Defendant Shuman. Paragraph 61 states that the Plaintiff faxed a letter, which was signed by Gibson, offering employment to Defendant Shuman as a Senior Vice President/Lending, James T. Gibson, President and CEO of Commerce Bank, is the individual who did not represent the job responsibilities ofa Senior Vice President/Lending with candor. Paragraph 34 avers the dates of the job negotiation discussions to be between March, 1998 and June 12, 1998. The specific nature of the misrepresentations is averred in paragraphs 58, 59, and 73 of the Defendant's Amended Answer with New Matter. 38. Denied. Defendant has filed an Amended Answer with New Matter, not a Complaint. Rule 1030(a) of the Pennsylvania Rules of Civil Procedure states that, "A party may set forth as new matter any other material facts which are not merely denials of the averments of the preceding pleading." Rule 1030 does not require a Defendant to p!ead all material facts. 39. Denied as a statement or conclusion of law to which a responsive pleading is not required. To the extent that a responsive pleading may be required, the Defendant denies the allegation in paragraph 39 to the extent that it suggests that Defendant was an "at-will" employee. Defendant's relocation to the Harrisburg area constitutes additional consideration, sufficient to defeat the "at-will" presumption. 40. Denied as a statement or conclusion of law to which a responsive pleading is not required. To the extent that a responsive pleading may be required, the Defendant denies the allegation in paragraph 40 to the extent that it implies Mr. Gibson did not have a duty to be forthright in his description of the job responsibilities of a Senior Vice President/Lending. 41. Denied as a statement or conclusion of law to which a responsive pleading is not required. To the extent that a responsive pleading may be required, the Defendant denies the allegation in paragraph 41 to the extent that it implies that Defendant Shuman was an "at-will" employee, and to the extent that implies that Mr. Gibson did not have a duty to be forthright in his description of the job responsibilities of a Senior Vice President/Lending. 42. Denied. A fair reading of the title of Count III (Negligent Misrepresentation) along with paragraphs 100 and 102 of Defendant's Amended Answer with New Matter are sufficient to put the Plaintiff on notice that it is being sued for Negligent Misrepresentation. 43. Denied as a statement or conclusion of law to which no responsive pleading is required. WHEREFORE, Defendant Sterling Shuman respectfully requests that the Plaintiffs Demurrer to the Negligent Misrepresentation counterclaim be denied. VI Motion to Strike Paragraphs 100 and 101 of the Negligent Misrepresentation Counterclaim 44. Admitted. 45. Denied. Defendant specifies in paragraph 59 that "Plaintiff never stated that Defendant would have specific personal loan production goals." 46. Admitted. 47. Denied. Paragraph 58 of Defendant's Amended Answer with New Matter names James T. Gibson as the individual who described the job that was offered to Defendant Shuman. Paragraph 61 states that the Plaintiff faxed a letter, which was signed by Gibson, offering employment to Defendant Shuman as a Senior Vice President/Lending. James T. Gibson, President and CEO of Commerce Bank, is the individual who did not represent the job responsibilities ofa Senior Vice President/Lending with candor. Paragraph 34 avers the dates of the job negotiation discussions as between March, 1998 and June 12, 1998. The specific nature of the misrepresentations is averred in paragraphs 58, 59, and 73 of the Defendant's Amended Answer with New Matter. WHEREFORE, Defendant Sterling Shuman respectfully requests that Plaintiff's Motion to Strike Paragraphs 100 and 101 of the Negligent Misrepresentation Counterclaim be denied. VII Demurrer to the Fraudulent Mis sentation Counterclaim 48. Admitted. 49. Denied for want of knowledge. 50. Denied. Paragraph 58 of Defendant's Amended Answer with New Matter names James T. Gibson as the individual who described the job that was offered to Defendant Shuman. Paragraph 61 states that the Plaintiff faxed a letter, which was signed by Gibson, offering employment to Defendant Shuman as a Senior Vice President/Lending. James T. Gibson, President and CEO of Commerce Bank, is the individual who failed to represent the job description of a Senior Vice President/Lending with candor. Paragraph 34 avers the dates of the job negotiation discussions as between March, 1998 and June 12, 1998. The specific nature of the misrepresentations is averred in paragraphs 58, 59, and 73 of the Defendant's Amended Answer with New matter. 51. Admitted. 52. Denied. WHEREFORE, Defendant Sterling Shuman respectfully requests that Plaintiff's Demurrer to the Fraudulent Misrepresentation counterclaim be denied. VIII Motion to Strike Paragraphs 105 - 107 of the Fraudulent Misrepresentation Counterclaim 53. Admitted. 54. Denied for want of knowledge. 55. Denied. Paragraph 58 of Defendant's Amended Answer with New Matter names James T. Gibson as the individual who described the job that was offered to Defendant Shuman. Paragraph 61 states that the Plaintiff faxed a letter, which was signed by Gibson, offering employment to Defendant Shuman as a Senior Vice President/Lending. James T. Gibson, President and CEO of Commerce Bank, is the individual who failed to represent the job description of a Senior Vice President/Lending with candor. Paragraph 34 avers the dates of the job negotiation discussions as between March, 1998 and June 12, 1998. The specific nature of the misrepresentations is averred in paragraphs 58, 59, and 73 of the Defendant's Amended Answer with New Matter. 10 56. Admitted. WHEREFORE, Defendant Sterling Shuman respectfully requests that Plaintiffs Motion to Strike Paragraphs 105 - 107 of the Fraudulent Misrepresentation Counterclaim be denied. IX Motion to Strike 57. Admitted. 58. Denied. 59. Denied. 60. Denied. WHEREFORE, Defendant Sterling Shuman respectfully requests that Plaintiff's Motion to Strike Defendant's request for attorney fees be denied. Respectfully submitted, RICHARD C. GAI• • , SUPREIvvIE CouRT I.D. #6 P.O. Box 627 101 Front Street Boiling Springs, PA 17007-0627 Telephone: 717.249.2525 Dated: IQ- DEC Ilick g Attorney for Defendant Sterling Shuman CERTIFICATE OF SERVICE AND NOW, this 14TM day of 1999, Richard C. Gaffney, Esquire, the attorney for the Defendant in the above captioned matter hereby certifies that a copy of the foregoing document was properly served via First Class United States Mail, Postage Prepaid, on the following persons at the addresses listed below: Elizabeth Goldstein Dixon, Esquire METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-5000 Attorneys for the Plaintiff Commerce Bank/Harrisburg, N.A. Dated: %4 pr--c w%cial BY RICHARD C. GAFF K, UIRE SUPREME COURT I.D. 6334 P.O. Box 627 101 Front Street Boiling Springs, PA 17007 Telephone: 717.249.2525 Facsimile: 717.249.5141 12 Y [_ N ? C { - Lir ' J ?. L.. rj?.? ? ice. - L T - ?' C.1 " : ?_ L a CJ Cpl ? .) Oi ?, PRAECIPF FOR LISTING ASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) Commerce Bank/Harrisburg, N.A., Plaintiff V. Sterling Shuman, Defendant No. 99-4728 Stale matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Plaintijj's Preliminary Objections to Defendant's Conntcrclednts. 2. Identify counsel who will argue case: (a) Plaintiff: Elizabeth Goldstein Dixon, Esquire (b) Defendant: Richard C. Gaffney, Esquire (c) Defendant: SEE: ATTACHED CERTIFICATE OF SERVICE: FOR ADDRESSES 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: March 1, 2000 Elizab t Goldstein Dixon, Esquire E0737791 Attorney for Plaintiff, Commerce Bank/Harrisburg, N.A. DATED: Januarya5, 2000 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Richard C. Gaffney, Esquire P.O. Box 627 Boiling Springs, PA 17007-0627 METTE, EVANS & WOODSIDE By:n 1J Elizabeth Goldstein Dixon, Esquire Sup. Ct. I.D. No. 73779 3401 N. Front Street P. 0. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff, Commerce Bank/Harrisburg, N.A. DATE: January a5, 2000 :1316) e? A COMMERCE BANK/HARRISBURG, N/A, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. STERLING SHUMAN, DEFENDANT 99-4728 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF PLAINTIFF TO DEFENDANT'S COUNTERCLAIMS BEFORE BAYLEY J. AND GUIDO J. ORDER OF COURT AND NOW, this._day of March, 2000, IT IS ORDERED: (1) In each instance in defendant's counterclaim in which defendant avers that "plaintiff' represented something to him, defendant shall specifically plead who on behalf of the corporate plaintiff made such representations and when such representations were made. (2) All other preliminary objections of plaintiff to defendant's counterclaims, ARE DISMISSED.' By the Court, Edgar B. Bayle, Elizabeth Goldstein Dixon, Esquire zop-t eo)Jma For Plaintiff J-100 Richard C. Gaffney, Esquire RKS For Defendant :saa 'See Mazzu v. Knowledgesoft, Inc., 48 Cumberland L.J. 11 (1998). oar• hrg4Y ? KAR - / pH 3. 1 5 CUydtfiG14,, N,V3Y?UA4Y COMMERCE BANK/ HARRISBURG, N.A., Plaintiff V STERLING SHUMAN, , Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 99-4728 NOTICE TO PLEAD TO: COMMERCE BANTU HARRISBURG, N.A. and ELIZABETH GOLDSTEIN DIXON, ESQUIRE OF METTE, EVANS & WOODSIDE, its attorneys You are hereby notified to file a written response to the enclosed Second Amended Answer with New Matter within twenty (20) days from service hereof or judgment may be entered against you. Dated: b 3 - 23 - 00 By; Richard C. Gaffney, Esq e Supreme Court 1. D. 63313 P.O. Box 627 101 Front Street Boiling Springs, PA 17007-0627 Telephone 717.249.2525 COMMERCE BANK/ HARRISBURG, N.A., Plaintiff V STERLING SHUMAN, Defendant • IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA • CIVIL ACTION - LAW No. 99-4728 SECOND AMENDED ANSWER WITH NEW MATTER AND NOW, comes the Defendant, Sterling Shuman, by and through his attorney, Richard C. Gaffney, Esquire, who files this Second Amended Answer with New Matter pursuant to the Order of Court dated March 1, 2000. ANSWER 1. Denied. Defendant denies for want of knowledge the allegations contained in paragraph 1 of the Complaint. 2. Admitted. 3. In response to paragraph 3 of the Complaint, Defendant restates, as if fully rewritten, his answers to paragraphs 1 through 2 of the Complaint. 4. Admitted in part and Denied in part. Defendant admits as much of the allegation in paragraph 4 of the Complaint as that the Plaintiff and Defendant entered into a contract for employment on June 12, 1998. Defendant denies that Plaintiffs Exhibit "A" memorialized the contract of employment. 5. Admitted in Part and Denied in part. Defendant admits as much of the allegation in paragraph 5 of the Complaint as that the Plaintiff paid Defendant $25,000 as a sign-on bonus from which state and federal taxes were withheld and $21,000 as reimbursement for Defendant's closing costs on a net after-tax basis. Defendant denies that Plaintiffs payment was made to Defendant "(p)ursuant to the written contract." To the extent that Plaintiffs allegations imply or infer that Defendant has an obligation to "repay" Plaintiff, Defendant denies the allegations. 6. Denied. Defendant denies the allegations contained in paragraph 6 of the Complaint. 7. Admitted. 8. Admitted in part and Denied in part. Defendant admits as much of the allegations in paragraph 8 of the Complaint as that Plaintiff has demanded payment from the Defendant and that Defendant has refused payment to Plaintiff. To the extent that the allegations in paragraph 8 of the Complaint infer or imply that Defendant has an obligation to "repay" Plaintiff, Defendant denies the allegations. 9. Denied. The allegations contained in paragraph 9 of the Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that a responsive pleading is required, Defendant denies the allegations contained in paragraph 9 of the Complaint. 10. Denied. The allegations contained in paragraph 10 of the Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that a responsive pleading is required, Defendant denies the allegations contained in paragraph 10 of the Complaint. 11. (Second paragraph 10). Denied. In response to second paragraph 10 of the Complaint, Defendant restates, as if fully rewritten, his answers to paragraphs I through 10 of the Complaint. 12. (Paragraph 11). Denied. The allegations contained in paragraph 11 of the Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that a responsive pleading is required, Defendant denies the allegations contained in paragraph 11 of the Complaint. 13. (Paragraph 12). Admitted in part and Denied in part. Defendant admits as much of the allegation in paragraph 12 of the Complaint as that the Plaintiff paid Defendant a sign-on bonus and closing costs. Defendant denies that Plaintiffs payment was made to Defendant "pursuant to Exhibit `A'." To the extent that Plaintiffs allegations imply or infer that Defendant has an obligation to repay Plaintiff, Defendant denies the allegations. 14. (Paragraph 13). Denied. Defendant denies the allegations contained in paragraph 13 of the Complaint. By way of further pleading, Defendant avers that his obligation to repay a portion of the sign-on bonus only arose in the event that he voluntarily left his position with Plaintiff and accepted a position with a competitor of Plaintiff. 15. (Paragraph 14). Admitted in part and Denied in part. Defendant admits as much of the allegation in paragraph 14 of the Complaint as that the Plaintiff involuntarily terminated Defendant's employment within twelve months of his hire date and that Plaintiff "requested repayment of the sign-on bonus and closing costs" after the date on which Plaintiff involuntarily terminated Defendant's employment. To the extent that Plaintiffs allegations imply or infer that Defendant has any obligation to repay Plaintiff, Defendant denies the allegations. 16. (Paragraph 15). Admitted in part and Denied in part. Defendant admits as much of the allegation in paragraph 15 of the Complaint as that the Defendant has refused Plaintiffs demand for payment. To the extent that Plaintiffs allegations imply or infer that Defendant has any obligation to repay Plaintiff, Defendant denies the allegations. 17. (Paragraph 16). Denied. The allegations contained in paragraph 16 of the Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that a responsive pleading is required, Defendant denies the allegations contained in paragraph 16 of the Complaint. 18. (Paragraph 17). Denied. The allegations contained in paragraph 17 of the Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that a responsive pleading is required, Defendant denies the allegations contained in paragraph 17 of the Complaint. NEW MATTER AFFIRMATIVE DEFENSES FIRST DEFENSE 19. Defendant restates, as if fully rewritten, the answers contained in paragraphs 1 through 18 hereinabove. 20. Plaintiffs C=P!zait fails to state a claim upon which relief can be granted. SECOND DEFENSE 21. Defendant restates, as if fully rewritten, the answers contained in paragraphs I through 20 hereinabove. 22. Plaintiffs claims are barred by the doctrine of accord and satisfaction. THIRD DEFENSE 23. Defendant restates, as if fully rewritten, his answers contained in paragraphs 1 through 22 hereinabove. 24. Plaintiffs claims are barred by the doctrine of waiver. FOURTH DEFENSE 25. Defendant restates, as if fully rewritten, his answers contained in paragraphs I through 24 hereinabove. 26. Defendant is discharged from any obligation owed to Plaintiff by virtue of Plaintiffs breach of an implied contract of employment and failure to perform. FIFTH DEFENSE 27. Defendant restates, as if fully rewritten, his answers contained in paragraphs I ti?rough 26 hereinabove. 28. Defendant is discharged from any obligation owed to plaintiff by virtue of Plaintiffs fraud and misrepresentation. SIXTH DEFENSE 29. Defendant restates, as if fully rewritten, his answers contained in paragraphs 1 through 28 hereinabove. 30. Plaintiffs claims are barred by the equitable doctrine of unclean hands. WHEREFORE, Defendant demands that the Plaintiffs Complaint be dismissed with prejudice and that the Defendant be awarded his costs, including reasonable attorney fees in this action. COUNTERCLAIMS 31. On or about March 15, 1998, National Search Associates contacted the Defendant to solicit interest in a Senior Vice President/Lending position with the Plaintiff. 32. Defendant was employed at that time as President, North Central Region, by Huntington Bancshares, Inc. ("Huntington') in Morgantown, West Virginia. Under the terms ofa Hiring/Relocation Agreement between them, Defendant was obligated to repay to Huntington, if he voluntarily terminated employment within twelve months of employment by Huntington, any relocation or cash payments made to him or on his behalf. The Defendant was in the process of moving his family to Morgantown, West Virginia where Huntington Bank maintained its Regional Headquarters. 33. Several days after the first contact, the Defendant told National Search Associates that he would be interested in exploring the Senior Vice President/Lending position with Plaintiff so long as the Plaintiff would offer the Defendant employment terms equal to or better than those that he had received from Huntington Bank. 34. At all times relevant to this action, Plaintiffs President and Chief Executive Officer was James Gibson (hereinafter "Gibson" or "Plaintiffs President'). 35. At all times relevant to this action, Plaintiffs President and CEO had apparent authority to bind the Plaintiff to a contract for employment with the Defendant. 36. At all times relevant to this action, Plaintiffs President and CEO had actual authority to bind the Plaintiff to a contract for employment with the Defendant. 37. At all times relevant to this action, Plaintiffs President and CEO had implied authority to bind the Plaintiff to a contract for employment with the Defendant. 38. In all instances referred to in this pleading, James Gibson acted within the scope of his employment as President and CEO of Plaintiff. 39. Between March 1998 and June 12, 1998, Plaintiffs President negotiated with Defendant regarding salary, job responsibilities, performance expectations, relocation reimbursement, employee benefits and starting date. 40. Defendant earned a base annual salary of $105,000.00 with Huntington. 41. Plaintiffs President offered Defendant a base annual salary of $105,000.00. 42. Huntington had paid the Defendant a relocation allowance of $25,000.00 to cover lost equity in the sale of his Maryland home and assist with the purchase of a home in Morgantown, West Virginia. 43. Plaintiffs President offered to pay Defendant a "sign-on bonus" of $25,000.00 less state and federal taxes to keep Defendant whole for his repayment obligation to Huntington. 44. Huntington had agreed to reimburse the Defendant for Realtor's fee and miscellaneous inspections, appraisal and legal fees incurred in relocating from Maryland to West Virginia on a "net after-tax basis." 45. Plaintiffs President offered to reimburse Defendant for reasonable closing costs in the amount of $21,000.00 on a "Net after-tax basis." 46. Huntington had offered to provide Defendant temporary relocation expenses, including two house hunting trips and up to sixty (60) days of temporary housing. 47. Plaintiffs President agreed to pay Defendant $3,600.00 in order to keep the Defendant whole for his repayment obligation to Huntington and to pay for Defendant's temporary relocation expenses. 48. Huntington had agreed to pay all reasonable costs involved in moving the Defendant's household goods from Maryland to the greater Morgantown, West Virginia area. 49. Plaintiffs President agreed to pay all reasonable costs involved in moving the Defendant's household goods to Harrisburg, Pennsylvania, including paying for ninety (90) days of storage. 50. Huntington had agreed to reimburse the Defendant for those reasonable and customary costs (excluding "Buy down points") incurred in obtaining mortgage financing. 51. Plaintiffs President agreed to originate a mortgage loan free of origination fees for the Defendant. 52. Huntington agreed to recommend the Defendant for participation in its Management Incentive Plan for 1998 at the "B" level. 53. Plaintiffs President offered Defendant eligibility in its Bonus Program for 1998 and thereafter. 54. Huntington agreed that, depending on job performance, the Defendant may be initially recommended for approximately 2,000 stock option shares to be awarded in August 1998. 55. Plaintiffs President offered Defendant eligibility in its Stock Option Program for 1998 and thereafter. Plaintiffs President verbally promised Defendant approximately 1,000 shares of stock options, dependent on job performance. 56. Huntington offered to provide Defendant and his non-working dependents with health insurance. 57. Plaintiffs President offered to provide Defendant and his non-working dependents with health insurance. 58. Huntington offered Defendant participation in its 401(k) program. 59. Plaintiff s President offered Defendant participation in its 401(k) program if Defendant started his employment with Plaintiff by July 1, 1998. 60. Huntington offered Defendant a cellular telephone and normal business expense account privileges. 61. Plaintiff's President offered Defendant a company car, a cellular telephone and normal business expense account privileges. 62. At Huntington, the Defendant's duties as President, North Central Region were primarily executive and managerial. 63. Throughout the interview process, from March 1998 until June 12, 1998, Plaintiffs President described Defendant's duties as Senior Vice President/Lending as being primarily executive and managerial. 64. Plaintiffs President defined satisfactory performance after one year in the job for the Defendant as follows: (a) to meet or exceed department budget; (b) to increase the credit skills of the lenders whom he would supervise; and (c) to build a cohesive teamwork environment. 65. Throughout the interview process, Plaintiffs President never stated that Defendant would have specific personal Loan production goals. 66. Plaintiffs President told Defendant that the Senior Vice President/Lending position was a "long term career opportunity." 67. Plaintiffs President agreed that Defendant's employment start date would be June 28, 1998. 68. On June 11, 1998, Plaintiffs President faxed Defendant a letter offering employment to Defendant as Senior Vice President/Lending. The letter was signed on behalf of Plaintiff by its President and CEO, Gibson. 69. Gibson's June 1 I letter contained a provision that stated: "If employment ceases, the sign-on bonus and the reimbursement of closing expenses would be repaid to Commerce Bank as follows: Within 12 months - repay 100% 13 - 24 months - repay 2/3 25 - 36 months - repay 1/3 after 36 months - no repayment." 70. Gibson's June 11 fax was the first time that the issue of repayment was raised. 71. Defendant asked Gibson on June 11, 1998 for an explanation of the repayment provision and the phrase "if employment ceases." 72. Gibson explained to Defendant on June 11, 1998 that the repayment provision and the phrase "if employment ceases" means that if the Defendant were to voluntarily leave his employment by the Plaintiff to work for a competitor of the Plaintiff, then but only in that event, the Defendant would be obligated to repay to Plaintiffs portion of the sign-on bonus and closing costs, according to the schedule in the letter. 73. Defendant asked Gibson if the repayment schedule could be changed from three years to two years. 74. Gibson refused to shorten the schedule and stated that he did not want to pay to relocate the Defendant and then allow the Defendant to voluntarily leave employment within three years. 75. Gibson told Defendant that this position was a long-term career opportunity. 76. Gibson told Defendant that the repayment schedule was a disincentive to leave the Bank within three years of employment. 77. Gibson told Defendant that the stock options would provide a strong incentive to stay with the Bank for the long-term and that the stock options would make Defendant "a wealthy man." 78. Defendant accepted Gibson's offer of employment with the Plaintiff, subject to the understandings set out in paragraphs 33 through 77, hereinabove. 79. But for the understandings set out in paragraphs 33 through 77, hereinabove, Defendant would not have accepted Plaintiffs offer of employment. 80. Defendant is 46 years of age. He is married. He has one (1) child of school age residing with him. 81. Following Defendant's acceptance of Plaintiff's offer of employment, Defendant resigned from Huntington on June 15, 1998 and relocated his family from Maryland to Harrisburg, Pennsylvania. 82. At all times relevant to this action, Defendant's job performance met or exceeded the minimum requirements of the position as they were described and represented by the Plaintiff's President throughout the interview and selection process. 83. In or around September 1998, Plaintiffs President abruptly changed Defendant's responsibilities to include unreasonably high goals for personal loan production generated by the Defendant. 84. In or around September 1998, Defendant's job duties changed significantly from managerial and supervisory duties to one of lead producer, requiring significant levels of "cold calling" and sales duties. 85. Plaintiff involuntarily terminated Defendant. 86. Plaintiffs involuntary termination of Defendant was for reasons other than job performance. COUNT 1: BREACH OF EXPRESS CONTRACT 87. Defendant restates, as if fully rewritten, paragraphs 31 through 86 hereinabove. 88. Gibson's letter of June 11, 1998 is an express contract for employment. 89. The term of Defendant's employment is thirty-six (36) months, pursuant to Gibson's letter of June 11. 90. Plaintiff terminated the Defendant's employment after only eleven (11) months. 91. Plaintiff thereby breached the employment contract. 92. As a direct and proximate result of Plaintiffs breach of the express employment contract, Defendant has been damaged. WHEREFORE, Defendant claims of the Plaintiff and demands judgment against the Plaintiff in the amount of $218,750.00, which amount represents twenty-five months of Defendant's salary at $8,750.00 per month, plus interests, reasonable attorney fees and costs. COUNT II: BREACH OF IMPLIED-IN-FACT CONTRACT 93. Defendant restates, as if fully rewritten, paragraphs 31 through 92 hereinabove. 94. Plaintiff offered employment to Defendant and Defendant accepted Plaintiffs offer of employment under terms and conditions set out in paragraphs 31 through 77 hereinabove. 95. By uprooting his family and relocating them to Pennsylvania, the Defendant suffered a hardship. 96. By relinquishing his secure employment as President, North Central Region, at Huntington, Defendant incurred a detriment. 97. The schedules set out in Gibson's fax of June 11, 1998 and his letter of June 12, 1998 contemplate an implied-in-fact contract for employment for thirty-six (36) months. 98. Defendant accepted Plaintiff's offer of employment with the understanding that he and the Plaintiff were committing to an employment contract for thirty-six (36) months. 99. The hardships suffered and the detriments incurred by the Defendant provided additional consideration, sufficient to defeat the "at-will" employment presumption and to constitute an implied-in-fact contract. 100. Plaintiff terminated Defendant's employment on May 6, 1999, after only eleven (11) months. 101. Plaintiff thereby breached the implied-in-fact contract of employment with Defendant. 102. As a direct and proximate result of Plaintiff's breach of the implied-in-fact contract of employment, Defendant has been damaged. 10 WHEREFORE, Defendant claims of the Plaintiff and demands judgment against the Plaintiff in the amount of $218,750.00, which amount represents twenty-five months of Defendant's salary at $8,750.00 per month, plus interests, reasonable attorney fees and costs. COUNTU: PROMISSORY ESTOPPEL 103. Defendant restates, as if fully rewritten, paragraphs 31 through 102 hereinabove. 104. Plaintiff, through its President and CEO, James Gibson, represented the following to the Defendant: a. that Defendant's job responsibilities as Senior Vice President/Lending would consist of executive and managerial duties; b. that Defendant's job performance would be evaluated based on the goals enumerated in paragraph 64 hereinabove; c. that Defendant's obligation to repay some or all of the sign-on bonus and closing costs would arise if, but only if, the Defendant voluntarily left employment within three years; d. that the Plaintiff and Defendant were making a commitment for a long term employment arrangement whose duration was to be at least three years; e. that the Defendant could participate in Plaintiff's 401(k) program, if he was employed by June 28, 1998. 105. The representations made by Plaintiffs President were material to Defendant's decision to accept Plaintiffs offer of employment. 106. Defendant's reliance on Plaintiffs President's representations was reasonable. 107. The representations made by Plaintiffs President were false. a. Beginning in September 1998, Defendant's job responsibilities consisted of "cold calling" and sales duties instead of executive and managerial duties. b. Beginning in September 1998, Plaintiffs President evaluated Defendant's job performance on different criteria than those enumerated in paragraph 64 hereinabove; c. By the instant action, Plaintiff now asserts that Defendant's obligation to repay Plaintiff some or all of the sign-on bonus and closing costs arises even when Plaintiff involuntarily :..rminated Defendant; d. Plaintiff terminated Defendant's employment within three years; e. Plaintiff did not permit the Defendant to participate in the 401(k) plan for 1998. 108. As a direct and proximate result of Plaintiff's wrongful acts, the Defendant has suffered detriments and has been damaged thereby. WHEREFORE, Defendant claims of the Plaintiffand demands judgment against the Plaintiff in the amount of $218,750.00, which amount represents twenty-five months of Defendant's salary at $8,750.00 per month, plus interests, reasonable attorney fees and costs. COUNT III: NEGLIGENT MISREPRESENTATION 109. Defendant restates, as if fully rewritten, paragraphs 31 through 108 hereinabove. 110. Plaintiff, through its President and CEO, James Gibson, has a duty to Defendant to truthfully represent the job responsibilities, performance objectives, and other terms and conditions of employment. 111. Plaintiff s President and CEO, James Gibson, misrepresented Defendant's job responsibilities, performance objectives and other terms and conditions of employment. 112. Plaintiff, through its President and CEO, James Gibson, thereby breached its duty to the Defendant. WHEREFORE, Defendant claims of the Plaintiff and demands judgment against the Plaintiff in the amount of $218,750.00, which amount represents twenty-five months of Defendant's salary at $8,750.00 per month, plus interests, reasonable attorney fees and costs. 12 COUNTIV: FRAUDULENT MISREPRESENTATION 113. Defendant restates, as if fully rewritten, paragraphs 31 through 112 hereinabove. 114. Plaintiffs President, James Gibson, knew or should have known that his representations to Defendant regarding job expectations and term of employment were false and misleading. 115. Plaintiffs President, James Gibson, communicated the representations to the Defendant with intent to induce the Defendant to accept Plaintiffs offer of employment. 116. Plaintiffs President, James Gibson, made representations to the Defendant that were false and misleading. 117. Defendant relied on the misrepresentations made by the Plaintiffs President, James Gibson, when he accepted Plaintiffs offer of employment. 118. As a direct and proximate result of the misrepresentations made by Plaintiffs President, James Gibson, the Defendant has suffered detriments and has been damaged thereby. WHEREFORE, Defendant claims of the Plaintiff and demands judgment against the Plaintiff in the amount of $218,750.00, which amount represents twenty-five months of Defendant's salary at $8,750.00 per month, together with pre judgment interest, reasonable attorney fees and costs, and such other and further relief as this Honorable Court deems just and appropriate. Respectfully submitted, RICHARD C. GAFFNEY, ESQkRE\ SUPREME COURT I.D. # 63313 P.O. Box 627 101 Front Street Boiling Springs, PA 17007-0627 Telephone: 717.249.2525 Attorney for the Defendant, DATED: Sterling Shuman 13 COMMERCE BANK/ HARRISBURG, N.A., Plaintiff V STERLING SHUMAN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW No. 99-4728 VERIFICATION I verify that the statements made in the foregoing Second Amended Answer with New Matter are true and correct. 1 understand that false statements herein are made subject to the penalties of 18 Pa. Cons. Stat. Ann. § 4904, relating to unsworn falsification to authorities. BY: Date: ZZ ' 00 14 COMMERCE BANK/ HARRISBURG, N.A., Plaintiff V STERLING SHUMAN, Defendant IN THE COURT OF COMMON PLEAS • CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW No. 99-4729 CERTIFICATE OF SERVICE 1, Richard C. Gaffney, Esquire, attorney for the Defendant in the above captioned matter, do hereby state and affirm that on this 22?c1 day of March, 2000, I served the foregoing Second Amended Answer with New Matter by United States first-class mail, postage prepaid, on the person(s) named below: ELIZABETH GOLDSTEIN DIXON METTE, EVANS & WOODSIDE 3401 North Front Street Harrisburg, PA 17110-5000 Date: 03- 2 3 -00 BY: ?Z'L91?? eA 1 Richard C. Gaffney, Esq ire a) M ' i CY ". 4.?1' CC ?IiL LO U C7 C? - 1 J y ? ? A ?, m d a 0 0 ; ? s?< ? z < j N '? ? y 0 y Z 2 m s ? w o k a a: ? a p ii m F x F & X ? ?" _ ,. ? mwe?e•?owm??nmm•eezeuo Gov wve? COMMERCE BANK/ : IN THE COURT OF COMMON PLEAS HARRISBURG, N.A., CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA V. : CIVIL ACTION -LAW STERLING SHUMAN, NO. 99-4728 Defendant NOTICE TO PLEAD TO: Sterling Shuman, Defendant, and Richard C. Gaffney, Esquire, his attorney You are hereby notified to file a written response to the enclosed Reply to New Matter and Answer with New Matter to Counterclaim within twenty (20) days from service hereof or judgment may be entered against you. Dated: ?l 1 o o By: ??, i9 Cr Elizabeth G. Dixon, Esquire Sup. Ct. I.D. #73779 Mohammad A. Ghiasuddin, Esquire Sup. Ct. I.D. #83925 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff COMMERCE BANK/ HARRISBURG, N.A., Plaintiff V. STERLING SHUMAN, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA CIVIL ACTION -LAW NO. 99-4728 PLAINTIFF'S REPLY TO NEW MATTER AND ANSWER WITH NEW MATTER TO COUNTERCLAIM AND NOW comes Plaintiff, Commerce Bank/Harrisburg, N.A., by and through its attorneys of record, Mette, Evans & Woodside, and hereby files the following Reply to New Matter and Answer With New Matter to Counterclaim, and avers as follows: REPLY TO NEW MATTER REPLY TO DEFENDANT'S FIRST DEFENSE 19. The averments of paragraphs 1-18 of Plaintiffs Complaint are incorporated herein by reference as if fully set forth. 20. Denied. The averments of paragraph 20 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that Plaintiffs Complaint fails to state a claim upon which relief can be granted, and each and every claim and averment of paragraphs 1-18 of Plaintiffs Complaint are incorporated herein by reference and asserted against Defendant. REPLY TO DEFENDANT'S SECOND DEFENSE 21. Paragraphs 19-20 of Plaintiffs Reply to New Matter, above, are incorporated herein by reference as if fully set forth. 22. Denied. The averments of paragraph 22 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that the Plaintiffs claims are barred by the doctrine of accord and satisfaction. To the contrary, there has been no accord and satisfaction of Plaintiffs claims. REPLY TO DEFENDANT'S THIRD DEFENSE 23. Paragraphs 19-22 of Plaintiffs Reply to New Matter, above, are incorporated herein by reference as if fully set forth. 24. Denied. The averments of paragraph 24 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that the Plaintiffs claims are barred by the doctrine of waiver. To the contrary, the doctrine of waiver does not bar any of Plaintiffs claims. REPLY TO DEFENDANT'S FOURTH DEFENSE 25. Paragraphs 19-24 of Plaintiffs Reply to New Matter, above, are incorporated herein by reference as if fully set forth. 26. Denied. The averments of paragraph 26 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, Plaintiff specifically denies the existence of the implied contract of employment alleged by Defendant, and specifically denies the breach of any such alleged implied contract of employment and/or failure to perform any such alleged implied contract of employment. To the contrary, Defendant is in breach of a written contract of employment with Plaintiff, as set forth in the Complaint. It is specifically denied that Defendant is discharged from any obligation owed to Plaintiff. -2- REPLY TO DEFENDANT'S FIFTH DEFENSE 27. Paragraphs 19-26 of Plaintiffs Reply to New Matter, above, are incorporated herein by reference as if fully set forth. 28. Denied. The averments of paragraph 28 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, Plaintiff specifically denies that Plaintiffs acts/omissions constitute fraud, and specifically denies that Plaintiffs acts/omissions constitute misrepresentation. It is specifically denied that Defendant is discharged from any obligations owed to Plaintiff. REPLY TO DEFENDANT'S SIXTH DEFENSE 29. Paragraphs 19-28 of Plaintiffs Reply to New Matter, above, are incorporated herein by reference as if fully set forth. 30. Denied. The averments of paragraph 30 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that Plaintiff's claims are barred by the equitable doctrine of unclean hands, and it is specifically denied that Plaintiff engaged in any inequitable conduct regarding the Defendant. To the contrary, Defendant has engaged in inequitable conduct toward the Plaintiff by, inter alia, breaching its employment contract and failing to return funds that rightfully belong to Plaintiff, as set forth in the Complaint, and as set forth below. WHEREFORE, Plaintiff, Commerce Bank/Harrisburg, N.A., demands that judgment be entered in its favor as claimed in its Complaint. -3- ANSWER WITH NEW MATTER TO COUNTERCLAIMS 31. Paragraphs 19-30 of Plaintiffs Reply to New Matter, above, are incorporated herein by reference as if fully set forth. In further answer, the averments of paragraph 31 are denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 31. Said averments, therefore, are denied and strict proof thereof is demanded at trial. 32. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 32. Said averments, therefore, are denied and strict proof thereof is demanded at trial. 33. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 33. Said averments, therefore, are denied and strict proof thereof is demanded at trial. 34. Denied as stated. James T. Gibson is the President and Chief Executive Officer of Commerce Bank/Harrisburg, N.A. 35. The averments of paragraph 35 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 36. The averments of paragraph 36 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 37. The averments of paragraph 37 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 38. The averments of paragraph 38 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, Gibson acted within the scope of his duties regarding the contract of employment between Plaintiff and Defendant, a written document attached to the Complaint as Exhibit A. -4- 39. Denied as stated. Between approximately March 1998 and June 12, 1998, Defendant and Plaintiffs President discussed job responsibilities, performance expectations, compensation and starting date for the Senior Vice President/Lending position. During this period, Defendant was interviewed by and met with several executives of Commerce Bank, including executives from both Commerce Bank/Harrisburg and Commerce Bank/New Jersey. During these meetings, Defendant, on several occasions, was specifically told that his primary duty would be to generate fee income by meeting or exceeding specific goals relating to lending and loan volumes. Defendant was informed, on several occasions, that his duties as Senior Vice President/Lending would include both personal and departmental loan fee and loan volume production. Additionally, he would have certain managerial and executive responsibilities. These performance goals and job responsibilities were consistent with those given to previous executives in the Senior Vice President/Lending position, and are similar to those given to the current Senior Vice President/Lending executive. 40. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 40. Said averments, therefore, are denied and strict proof thereof is demanded at trial. Additionally, based on information and belief, Defendant's duties at Huntington involved loan production requirements. 41. Admitted only that Plaintiff, through Plaintiffs President, offered Defendant "a base salary of $105,000", as stated in the letter from Plaintiffs President to Defendant, dated June 12, 1998 (hereinafter "Letter"). See Complaint at Exhibit A. 42. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 42. Said averments, therefore, are denied and strict proof thereof is demanded at trial. -5- 43. Denied as stated. The terms of the agreement between Plaintiff and Defendant regarding compensation for the Senior Vice President/Lending position are fully stated in the Letter. As stated therein, Plaintiff offered Defendant a "sign- on bonus" of $25,000, from which normal state and federal taxes would be withheld. However, the "sign-on bonus" was contingent upon Defendant's performance and continued employment with Plaintiff, and in the event Defendant's employment with Plaintiff ceased, the sign-on bonus, as well as reimbursement of closing expenses, would be repaid to Commerce Bank as outlined in the schedule included in the Letter, i.e., if Defendant's employment ceased within 12 months he would be obligated to repay Plaintiff 100% of the sign-on bonus and reimbursement of closing expenses. See Complaint at Exhibit A. 44. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 44. Said averments, therefore, are denied and strict proof thereof is demanded at trial. 45. Denied as stated. The terms of the agreement between Plaintiff and Defendant regarding compensation for the Senior Vice President/Lending position are fully stated in the Latter. As provided in the Letter, Plaintiff offered Defendant $21,000 as reimbursement of Defendant's closing costs. The aforesaid reimbursement was contingent upon Defendant's performance and continued employment with Plaintiff, and in the event Defendant's employment with Plaintiff ceased, the sign-on bonus, as well as reimbursement of closing expenses, would be repaid to Commerce Bank as outlined in the schedule included in the Letter, i.e., if Defendant's employment ceased within 12 months he would be obligated repay Plaintiff 100% of the sign-on bonus and reimbursement of closing expenses. See Complaint at Exhibit A. 46. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments of -6- paragraph 46. Said averments, therefore, are denied and strict proof thereof is demanded at trial. 47. Admitted in part. It is admitted only that Plaintiff offered Defendant temporary relocation expenses of $3,600, pursuant to the terms of the agreement between Plaintiff and Defendant regarding compensation for the Senior Vice President/Lending position, which are fully stated in the Letter. See Complaint at Exhibit A. By way of further answer, Plaintiff restates by reference its response to paragraph 46, above, as if fully set forth. 48. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 48. Said averments, therefore, are denied and strict proof thereof is demanded at trial. 49. Denied as stated. The terms of the agreement between Plaintiff and Defendant regarding compensation for the Senior Vice President/Lending position are fully stated in the Letter. As provided in the Letter, Plaintiff offered to "pay for relocating the household goods of [Defendant's] present residence, and will allocate funds for 3 months of storage, if necessary." See Complaint at Exhibit A. 50. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 50. Said averments, therefore, are denied and strict proof thereof is demanded at trial. 51. Denied as stated. Based on information and belief, Plaintiff agreed to originate a mortgage loan, secondary market, for Defendant, whereby Plaintiff would receive no profit from the loan. 52. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 52. Said averments, therefore, are denied and strict proof thereof is demanded at trial. 53. Denied as stated. The terms of the agreement between Plaintiff and Defendant regarding compensation for the Senior Vice President/Lending position are fully stated in the Letter. As provided in the Letter, Defendant "would be eligible to participate in the Bonus Program and the Stock Option Program for 1998..." See Complaint at Exhibit A. 54. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 54. Said averments, therefore, are denied and strict proof thereof is demanded at trial. 55. Denied as stated. The terms of the agreement between Plaintiff and Defendant regarding compensation for the Senior Vice President/Lending position are fully stated in the Letter. As provided in the Letter, Defendant "would be eligible to participate in the Bonus Program and the Stock Option Program for 1998..." See Complaint at Exhibit A. It is specifically denied that Plaintiff's President verbally promised Defendant approximately 1,000 shares of stock options. By way of further answer, Plaintiffs President informed Defendant that if Defendant adequately met the performance goals and requirements of the position of Senior Vice President/Lending, Defendant could anticipate such options. Plaintiffs President specifically informed Defendant that Defendant's stock options were contingent upon Defendant's job performance. 56. or information sufficient to form a belief as to the truth of the averments of paragraph 56. Said averments, therefore, are denied and strict proof thereof is demanded at trial. 57. Denied as stated. The terms of the agreement between Plaintiff and Defendant regarding compensation for the Senior Vice President/Lending position are fully stated in the Letter. As provided in the Letter, Plaintiff offered Defendant Denied. After reasonable investigation, Plaintiff is without knowledge -8- "health insurance to you and any non-working dependent." See Complaint at Exhibit A. 58. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 58. Said averments, therefore, are denied and strict proof thereof is demanded at trial. 59. Denied as stated. The terms of the agreement between Plaintiff and Defendant regarding compensation for the Senior Vice President/Lending position are fully stated in the Letter. As provided in the Letter, Defendant would be eligible to participate in Plaintiff's 401(K) program if he were employed by July 1, 1998. By way of further answer, it is specifically denied that Defendant's participation in the 401(x) program was to commence on July 1, 1998. See Complaint at Exhibit A. 60. or information sufficient to form a belief as to the truth of the averments of paragraph 60. Said averments, therefore, are denied and strict proof thereof is demanded at trial. 61. Denied as stated. The terms of the agreement between Plaintiff and Defendant regarding compensation for the Senior Vice President/Lending position are fully stated in the Letter. As provided in the Letter, Plaintiff offered to provide Defendant "with a company car, a cellular phone, and normal business expense account privileges." See Complaint at Exhibit A. 62. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 62. Said averments, therefore, are denied and strict proof thereof is demanded at trial. 63. Denied. It is specifically denied that Plaintiffs President described Defendant's duties as Senior Vice President/Lending as being primarily executive and managerial. To the contrary, Defendant was specifically told by Plaintiff s President Denied. After reasonable investigation, Plaintiff is without knowledge and other executives of Commerce Bank that Defendant's duties as Senior Vice President/Lending were primarily to generate fee income through producing loans. Defendant, on several occasions, was specifically told that his primary duty was to generate fee income by meeting or exceeding specific goals relating to lending and loan volumes. Plaintiff fully informed Defendant, on several occasions, that Defendant's duties would include both personal and departmental loan fee and loan volume production. Additionally, he would have certain managerial and executive responsibilities. By way of further answer, Plaintiff restates by reference its response to paragraph 39, above, as if fully set forth. 64. Denied. It is specifically denied that Plaintiffs President defined satisfactory performance after one year in the job for Defendant as set forth in paragraph 64(a)-(c) of Defendant's Counterclaim. To the contrary, Plaintiff fully informed Defendant that Defendant was expected to meet or exceed specific goals relating to lending and loan volume. Significantly, Defendant failed to adequately meet loan production and fee generation requirements. Furthermore, based on information and belief, Defendant also failed to meet the department budget and failed to build a cohesive team environment. 65. Denied. It is specifically denied that Plaintiff's President never stated that Defendant would have specific Loan production goals. To the contrary, Defendant, on several occasions, was specifically told that his primary duty was to generate fee income by meeting or exceeding specific goals relating to lending and loan volume. Plaintiff fully informed Defendant, on several occasions, that Defendant's duties would include both personal and departmental loan fee and loan volume production. By way of further answer, Plaintiff restates by reference its response to paragraph 39, above, as if fully set forth. 66. Denied as stated. To the extent that paragraph 66 implies that the Defendant was told by Plaintiffs President that Defendant's position would be "long term", such implication is specifically denied. Any implication that Defendant's -10- employment with Plaintiff was to be anything other than at-will is specifically denied. Plaintiffs President, on several occasions prior to Defendant's acceptance of the position, informed Defendant of the job requirements for the Senior Vice I President/Lending position, including performance goals. Defendant's career depended upon his own performance. 67. Denied as stated. Based on information and belief, Plaintiff and Defendant agreed that Defendant's employment would begin June 28, 1998. 68. Admitted in part, denied in part. Plaintiff President's letter to Defendant offering employment to Defendant as Senior Vice President/Lending is dated June 12, 1998. To the extent that the averments of paragraph 68 refer to the June 12, 1998 Letter, it is admitted only that the Letter was signed by Plaintiffs President and CEO, Mr. Gibson, on behalf of Plaintiff. It is specifically denied that a letter dated June 11, 1998, if such letter exists, represents any sort of employment contract between the parties. The June 12, 1998 letter is the express contract of employment between the parties. 69. Denied as stated. Plaintiff President's letter to Defendant offering employment to Defendant as Senior Vice President/Lending is dated June 12, 1998. The June 12, 1998 Letter was signed by Plaintiffs President and CEO, Mr. Gibson, on behalf of Plaintiff. It is specifically denied that a letter dated June 11, 1998, if such letter exists, represents any sort of employment contract between the parties. The June 12, 1998 letter is the express contract of employment between the parties. Furthermore, the June 12, 1998 Letter is attached to Plaintiffs Complaint as Exhibit A, and is a document in writing that speaks for itself. 70. Denied. It is specifically denied that the also-called June 11 fax, if such fax exists, or the June 12 Letter, was the first time that the issue of repayment was raised. To the contrary, the issue of repayment of the sign-on bonus and reimbursement of closing expenses was first discussed with Defendant during Defendant's first face-to-face interview with Plaintiff, which occurred in late April or early May of 1998. At that time, Defendant was specifically told that if Defendant did not meet the job expectations, which included performance goals, or if he left voluntarily, Defendant would have to repay the sign-on bonus and reimbursement of closing expenses to Commerce Bank. Prior to receiving the June 12 Letter, Defendant attempted to renegotiate the terms of repayment with Plaintiffs President. Furthermore, it was specifically stated by Plaintiffs President to Defendant that Defendant would be obligated to repay the sign-on bonus and the reimbursement of closing expenses to Commerce Bank in the event Defendant's employment ceased for any reason, including both voluntary termination and Defendant's failure to meet job requirements and performance expectations, including production goals. 71. Denied. Plaintiff restates by reference its response to paragraph 70, above, as if set forth in full. 72. Denied. Plaintiff restates by reference its response to paragraph 70, above, as if set forth in full. 73. Denied as stated. Defendant did seek to renegotiate the terms of the repayment schedule; however, any implication that such attempts by Defendant did not take place until after receiving the June 12, 1998 Letter are specifically denied. Plaintiff restates by reference its response to paragraph 70, above, as if set forth in full. 74. Denied as stated. Plaintiff s President refused to alter the repayment schedule. However, it is specifically denied that the repayment schedule relates only to Defendant's voluntary termination. It is also specifically denied that the repayment schedule constitutes any sort of promise, agreement or obligation to Defendant for a three-year term of employment. At all times, Defendant's employment was at-will. 75. Denied as stated. To the extent that paragraph 75 implies that the Defendant was told by Plaintiffs President that Defendant's position would be "long -12- term", such implication is specifically denied. Any implication that Defendant's employment with Plaintiff was to be anything other than at-will is specifically denied. Plaintiffs President, on several occasions prior to Defendant's acceptance of the position, informed Defendant of the job requirements for the Senior Vice President/Lending position, including performance goals. Defendant's career depended upon his own performance. 76. Denied as stated. It is specifically denied that Plaintiffs President, Mr. Gibson, told Defendant that the only purpose of the repayment schedule was as a disincentive to leave the Bank within three years of employment. Defendant was told that the repayment schedule was an incentive for Defendant to perform the job requirements, including meeting performance goals, of the Senior Vice President/Lending position, and that if Defendant's employment with Commerce Bank ceased for any reason, including failure to meet job expectations or voluntary termination, Defendant would repay Commerce Bank the sign-on bonus and the reimbursement of closing expenses. It is also specifically denied that the repayment schedule constitutes any sort of agreement, understanding or obligation for a three- year term of employment. To the contrary, Plaintiff did not promise Defendant any specified term of employment. At all times, Defendant's employment with Plaintiff was at-will. 77. Denied as stated. To the extent that paragraph 77 implies that the Defendant was told by Plaintiffs President that Defendant's position would be "long term", such implication is specifically denied. Any implication that Defendant's employment with Plaintiff was to be anything other than at-will is specifically denied. Plaintiffs President, on several occasions prior to Defendant's acceptance of the position, informed Defendant of the job requirements for the Senior Vice President/Lending position, including performance goals. Defendant's career depended upon his own performance. At all times, Defendant's employment with Plaintiff was at will. Furthermore, to the extent that paragraph 77 implies any -13- promise by Plaintiff to Defendant regarding the value of stock options, such implication is specifically denied. By way of further answer, Plaintiffs President specifically informed Defendant that Defendant's stock options were contingent upon Defendant's job performance. 78. Admitted in part, denied in part. It is admitted only that Defendant accepted Plaintiffs offer of employment for the Senior Vice President/Lending position. It is specifically denied that the averments of paragraphs 33-77 of Defendant's Answer with New Matter and Counterclaim constitute or accurately represent the understandings of the parties and/or terms of the offer of employment. Instead, the understanding of the parties regarding the offer of employment to Defendant are set forth in the June 12, 1998 Letter, attached as Exhibit A to Plaintiffs Complaint. 79. Denied. The averments of paragraph 79 are conclusions of law to which no responsive pleading is required. To the extent that a response is deemed required, it is specifically denied that paragraphs 33-77 of Defendant's Answer with New Matter and Counterclaim constitute the understanding of the parties regarding Defendant's employment. Plaintiff restates by reference its reply to paragraph 78, above, as if fully set forth. Furthermore, after reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the remaining averments of paragraph 79, i.e., Defendant's reasons for accepting employment with Plaintiff are not known to Plaintiff, and therefore the remaiping averments of paragraph 79 are also specifically denied and strict proof thereof is demanded at trial. 80. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 80. Said averments, therefore, are denied and strict proof thereof is demanded at trial. -14- 81. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 81. Said averments, therefore, are denied and strict proof thereof is demanded at trial. 82. Denied. It is specifically denied that Defendant met or exceeded the job performance goals and/or the minimum requirements of the position as described and represented by the Plaintiffs President throughout the interview and selection process. To the contrary, on several occasions during the course of Defendant's employment, Plaintiffs President discussed with Defendant the Defendant's failure to meet job performance requirements, including production goals, both verbally and in writing. Defendant's poor loan production volume was specifically discussed. Additionally, Defendant was informed that his position included loan production and fee generation requirements. On Defendant's first day at the Harrisburg office, during a meeting where the Plaintiffs President introduced Defendant to other lenders at the Bank, Plaintiff s President publicly stated that as part of his job, Defendant was to obtain loans and generate greater loan volume for the Bank. These requirements were also made clear to Defendant during the interview process, as described above in Plaintiffs reply to paragraph 63, which Plaintiff restates by reference as if set forth in full. 83. Denied. It is specifically denied that Plaintiffs President abruptly changed Defendant's responsibilities to include unreasonably high goals for personal loan production generated by Defendant. By way of further answer, Plaintiff restates by reference its replies to paragraphs 63, 64, 65 and 82, above, as if fully set forth. 84. Denied. It is specifically denied that Defendant's job duties changed in or around September, 1998. Defendant's job duties, as he was informed during the interview process, were always primarily related to fee and loan production, both personally and for the department. It is specifically denied that Defendant's job duties changed at any time during the course of his employment. By way of further -15- answer, Plaintiff restates by reference its replies to paragraphs 63, 64, 65 and 82, above, as if fully set forth. 85. Denied as stated. It is unclear what is meant by the phrase "involuntarily terminated Defendant" as used in paragraph 85. Defendant's employment with Plaintiff as Senior Vice President/Lending was terminated by Plaintiff due to Defendant's failure to meet job expectations, including performance goals. 86. Denied. Plaintiff terminated Defendant due to Defendant's failure to meet specified job expectations. It is unclear what is meant by the phrase "involuntarily terminated Defendant." Defendant's employment with Plaintiff as Senior Vice President/Lending was terminated due to Defendant's failure to meet job expectations, including performance goals. COUNT I: Breach Of Express Contract 87. Paragraphs 19 through 86 of Plaintiffs Reply to New Matter and Answer, above, are incorporated herein by reference as though fully set forth. 88. The averments of paragraph 88 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that a letter from Gibson to Defendant dated June 11, 1998, if such letter exists, constitutes any sort of employment contract. To the extent that the averments of paragraph 88 of Defendant's Counterclaim refer to the June 12, 1998 Letter, it is admitted only that the terms of the June 12, 1998 letter constitute the parties' agreement regarding Defendant's employment as Senior Vice President/Lending. 89. Denied. It is specifically denied that the term of Defendant's employment with Plaintiff was 36 months. To the contrary, Defendant's employment with Plaintiff as Senior Vice President/Lending was at-will. Additionally, it is specifically denied that a letter from Gibson to Defendant dated June 11, 1998, if -16- such a letter exists, constitutes any sort of employment contract. To the extent that the averments of paragraph 89 refer to Gibson's Letter of June 12, 1998, it is specifically denied that the Letter contains any promise or provision regarding a 36- month term of employment. At all times, it was understood by all parties that Defendant's employment with Plaintiff was at will. 90. Admitted based on information and belief. By way of further answer, Defendant's employment with Plaintiff as Senior Vice President/Lending was terminated due to Defendant's failure to meet job expectations, including specified performance goals. 91. Denied. The averments of paragraph 91 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, it is specifically denied that Plaintiff breached any obligations and/or agreements and/or contracts with Defendant. Additionally, it is specifically denied that there exists a contract between the parties whereby Defendant was promised a 36-month term of employment by Plaintiff. At no time did Plaintiff offer Defendant a term of employment for 36 months, or for any other specified length of time. At all times, Defendant's employment with Plaintiff was at-will. By way of further answer, it is specifically denied that the June 12, 1998 Letter, or the alleged June 11, 1998 letter, constitutes an employment contract for 36 months. 92. Denied. The averments of paragraph 92 constitute conclusions of law to which no responsive pleading isxequired by the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, it is specifically denied that Plaintiff breached any express employment contract with Defendant, and it is specifically denied that Defendant suffered any such alleged damage. WHEREFORE, Plaintiff, Commerce Bank/Harrisburg, N.A., demands that judgment be entered in its favor as claimed in its Complaint, and that Defendant's -17- Counterclaim be dismissed with prejudice, and Plaintiff be awarded costs and such other relief this Court deems appropriate. COUNT II: Breach of Implied-In-Fact Contract 93. Paragraphs 19 through 92 of Plaintiffs Reply to New Matter and Answer, above, are incorporated herein by reference as though fully set forth. 94. Denied. It is specifically denied that the averments of paragraphs 31 through 77 of Defendant's Answer With New Matter and Counterclaim constitute the terms of Plaintiffs offer of employment to Defendant. To the contrary, the agreement between the parties regarding Defendant's employment with Plaintiff is set forth in the Letter of June 12, 1998 attached to Plaintiffs Complaint as Exhibit A. 95. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 95. Said averments, therefore, are denied and strict proof thereof is demanded at trial. 96. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 96. Said averments, therefore, are denied and strict proof thereof is demanded at trial. Furthermore, the averments of paragraph 96 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. 97. Denied. The averments of paragraph 97 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, the averments of paragraph 97 are specifically denied. It is specifically denied that there exists an implied-in-fact contract of employment for 36 months. 98. Denied. After reasonable investigation, Defendant's mental state and understanding are beyond Plaintiffs knowledge and information and, as such, the -18- averments of paragraph 98 are denied and strict proof thereof is demanded at trial. It is specifically denied that Plaintiff ever informed or represented to Defendant that Defendant was being offered an employment contract for 36 months. 99. Denied. The averments of paragraph 99 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, the averments of paragraph 99 are specifically denied. By way of further answer, the existence of an implied-in- fact contract as alleged by Defendant is specifically denied, and it is specifically denied that the "at-will" empioyment presumption is defeated. 100. Admitted based on information and belief only that Defendant's employment terminated May 6, 1999. By way of further answer, Defendant's employment with Plaintiff as Senior Vice President/Lending was terminated due to Defendant's failure to meet job expectations, including specified performance goals. 101. Denied. The averments of paragraph 101 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, the averments of paragraph 101 are specifically denied. By way of further answer, the existence of an implied-in- fact contract of employment between Plaintiff and Defendant as alleged by Defendant is specifically denied, and any breach of such alleged implied-in-fact contract is also specifically denied. 102. Denied. The averments of paragraph 102 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, the averments of paragraph 102 are specifically denied. By way of further answer, the existence of an implied-in- fact contract of employment between Plaintiff and Defendant as alleged by Defendant is specifically denied, and Plaintiff also specifically denies any breach of such alleged implied-in-fact contract, and any harm allegedly suffered by Defendant. -19- WHEREFORE, Plaintiff, Commerce Bank/Harrisburg, N.A., demands that judgment be entered in its favor as claimed in its Complaint, and that Defendant's Counterclaim be dismissed with prejudice, and Plaintiff be awarded costs and such other relief this Court deems appropriate. COUNT III (second Count II): Promissory Estoppel 103. Paragraphs 19 through 102 of Plaintiffs Reply to New Matter and Answer, above, are incorporated herein by reference as though fully set forth. 104. a. Denied as stated. It is specifically denied that Plaintiff represented to Defendant that Defendant's job responsibilities would be primarily executive and managerial. By way of further answer, Plaintiff restates by reference its response to paragraph 63, above, as if fully set forth. b. Denied. The averments of paragraph 104(b) are specifically denied. By way of further answer, Plaintiff restates by reference its response to paragraph 64, above, as if fully set forth. C. Denied. The averments of paragraph 104(c) are specifically denied. Plaintiff restates by reference its responses to paragraphs 43, 45, 70, 74, 75, and 76, above, as if fully set forth. d. Denied. The averments of paragraph 104(d) are specifically denied. Plaintiff restates by reference its responses to paragraphs 66, 75, 76, 77, 89, 91, 97, 98, 99, and 101, above, as if fully set forth. e. Denied as stated. Plaintiff restates by reference its responses to paragraph 59, above, as if fully set forth. 105. Denied. The averments of paragraph 105 constitute conclusions of law to which no responsive pleading is required. By way of further answer, the reasons behind Defendant's decision to accept Plaintiffs offer of employment are unknown to Plaintiff and, after reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph -20- 105. Said averments are denied and strict proof thereof is demanded at trial. By way of further answer, Plaintiff restates its responses to paragraphs 104(a)-(e), above, as if fully set forth. 106. Denied. The averments of paragraph 106 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments of paragraph 106 are specifically denied. 107. Denied. It is specifically denied that Plaintiffs President made any false representations to Defendant. a. Admitted in part, denied in part. It is admitted only that Defendant's duties included loan and fee production, which included sales duties. To the extent that the averments of paragraph 107(a) imply that Defendant's job duties changed from being primarily executive and managerial to including sales duties, such implication is specifically denied. b. Denied. The averments of paragraph 107(b) are specifically denied. Plaintiff restates by reference its response to paragraph 64, above, as if fully set forth. C. Admitted in part, denied in part. It is admitted only that Plaintiff assets that Defendant is obligated to repay all of the sign-on bonus and reimbursement of closing costs. However, to the extent that paragraph 107(c) implies that such assertions are improper, such implication is specifically denied. Plaintiff incorporates by reference paragraphs 1-18 of its Complaint as if fully set forth. d. Admitted only that Plaintiff terminated Defendant's employment within three years. e. Denied as stated. By way of further answer, Plaintiff restates its response to paragraph 59, above, as if fully set forth. -21- 108. Denied. The averments of paragraph 108 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, it is specifically denied that Plaintiff committed any wrongful acts, and specifically denied that Defendant suffered any of the detriments or damages he has alleged in his Counterclaim. WHEREFORE, Plaintiff, Commerce Bank/Harrisburg, N.A., demands that judgment be entered in its favor as claimed in its Complaint, and that Defendant's Counterclaim be dismissed with prejudice, and Plaintiff be awarded costs and such other relief this Court deems appropriate. COUNT IV (COUNT III): Negligent Misrepresentation 109. Paragraphs 19 through 108 of Plaintiffs Reply to New Matter and Answer, above, are incorporated herein by reference as though fully set forth. 110. Denied. The averments of paragraph 110 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments of paragraph 110 are specifically denied. 111. Denied. The averments of paragraph 111 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, it is specifically denied that Plaintiffs President and CEO, James T. Gibson, misrepresented Defendant's job responsibilities, performance objectives and/or other terms and conditions of employment. 112. Denied. The averments of paragraph 112 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, it is specifically denied that Plaintiff, through its President and CEO, James T. Gibson, breached any duty to -22- Defendant. By way of further answer, Plaintiff restates its answers to paragraphs 110 and 111, above, as if fully set forth. WHEREFORE, Plaintiff, Commerce Bank/Harrisburg, N.A., demands that judgment be entered in its favor as claimed in its Complaint, and that Defendant's Counterclaim be dismissed with prejudice, and Plaintiff be awarded costs and such other relief this Court deems appropriate. COUNT V (COUNT IV): Fraudulent Misrepresentation 113. Paragraphs 19 through 112 of Plaintiffs Reply to New Matter and Answer, above, are incorporated herein by reference as though fully set forth. 114. Denied. The averments of paragraph 114 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent that a response is deemed required, the averments of paragraph 114 are specifically denied. By way of further answer, it is specifically denied that Plaintiffs President, James T. Gibson, made any false and/or misleading representations to Defendant regarding job expectations and term of employment. 115. Denied. The averments of paragraph 115 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, the averments of paragraph 115 are specifically denied. By way of further answer, it is specifically denied that Plaintiffs President made any false and/or misleading representations to Defendant regarding job expectations and term of employment. 116. Denied. It is specifically denied that Plaintiffs President made representations to Defendant that were false and/or misleading. Plaintiffs President made Defendant fully aware of the job responsibilities and performance goals and "s term of employment for the position of Senior Vice President/Lending. 117. Denied. The averments of paragraph 117 constitute conclusions of law to which no responsive pleading is required. To the extent that a responsive pleading -23- is required, Plaintiff restates by reference its responses to paragraphs 114-116, above, as if fully set forth. By way of further answer, the averments of paragraph 117 are specifically denied. 118. Denied. The averments of paragraph 118 constitute conclusions of law to which no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the extent a response is deemed required, the averments of paragraph 118 are specifically denied. By way of further answer, it is specifically denied that Plaintiffs President made any misrepresentations to Defendant, and specifically denied that Defendant suffered detriments and damage as alleged by Defendant. WHEREFORE, Plaintiff , Commerce Bank/Harrisburg, N.A., demands that judgment be entered in its favor as claimed in its Complaint, and that Defendant's Counterclaim be dismissed with prejudice, and Plaintiff be awarded costs and such other relief this Court deems appropriate. NEW MATTER - Defenses 119. Paragraphs 19 through 118 of Plaintiffs Reply to New Matter and Answer, above, are incorporated herein by reference as though fully set forth. 120. The averments of paragraphs 1 through 18 of Plaintiffs Complaint are incorporated herein by reference and asserted against Defendant. 121. Defendant's Counterclaims, i.e., paragraphs 31-118 of Defendant's Second Amended Answer with New Matter, fail to state a claim upon which relief can be granted. _ 122. Defendant's Counterclaims, i.e., paragraphs 31-118 of Defendant's Second Amended Answer with New Matter, are barred by the equitable doctrine of unclean hands, in that Defendant is in breach of contract with Plaintiff regarding repayment of the sign-on bonus and reimbursement of closing costs, as set forth in Plaintiffs Complaint. -24- 123. The actions of Defendant leading up to and culminating in Defendant's termination provide justification for all of Plaintiffs actions. 124. Defendant's Counterclaims, i.e., paragraphs 31-118 of Defendant's Second Amended Answer with New Matter, are barred by the doctrine of waiver, due to Defendant's conduct and breach of obligations as set forth herein and in paragraphs 1-18 of Plaintiffs Complaint. 125. Defendant's Counterclaims, i.e., paragraphs 31-118 of Defendant's Second Amended Answer with New Matter, are barred by the doctrine of estoppel, due to Defendant's conduct and breach of obligations as set forth herein and in paragraphs 1-18 of Plaintiffs Complaint. 126. Defendant's Counterclaims, i.e., paragraphs 31-118 of Defendant's Second Amended Answer with New Matter, are barred by the Statute of Frauds. -25- WHEREFORE, Plaintiff, Commerce Bank/Harrisburg, N.A., demands that Defendant's Counterclaims be dismissed with prejudice, and that judgment be entered in favor of Plaintiff as claimed in its Complaint, and that Plaintiff be awarded his costs, including reasonable attorneys fees, and such other relief that this Court deems appropriate. Respectfully submitted, METI'E, EVANS & WOODSIDE By: Elizabeth G. Dixon, Esquire Sup. Ct. I.D. #73779 Mohammad A. Ghiasuddin, Esquire Sup. Ct. I.D. #83925 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Date: / Attorneys for Plaintiff V, 1 -2/0 p VERIFICATION I, James T. Gibson, President and Chief Executive Officer of Commerce Bank/Harrisburg, N.A., am hereby authorized to verify the Reply to New Matter and Answer With New Matter to Counterclaim on behalf of Commerce Bank and have read the foregoing document and verify that the facts stated therein are true and correct to the best of my knowledge, information and belief. To the extent that the foregoing document and/or its language is that of counsel, I have relied upon counsel in making this Verification. I understand that any false statements made herein are subject to the penalties of 18 Pa. C.S.A. §4204 relating to unsworn falsification to authorities. l DATED: -ca /1111ames T. Gibson CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Richard C. Gaffney, Esquire PO Box 627 101 Front Street Boiling Springs, PA 17007-0627 Respectfully submitted, METTE, EVANS & WOODSIDE By: Mohammad A. Ghiasuddin, Esquire Sup. Ct. I.D. #83925 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232.5000 Date: Attorneys for Plaintiff ? .??p U :220380 1 COMMERCE BANK/ HARRISBURG, N.A., Plaintiff V. STERLING SHUMAN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-4728 DEFENDANT'S REPLY TO PLAINTIFF'S NEW MATTER AND NOW, comes the Defendant, Sterling Shuman, by and through his attorney, Richard C. Gaffney, Esquire, who files this Reply to Plaintifrs New Matter and states the following: 119. Paragraphs 19 through 118 of Defendant's Second Amended Answer are incorporated herein by reference as though fully set forth. 120. The averments of paragraphs I through 18 of Defendant's Second Amended Answer with New Matter are incorporated herein by reference and asserted against Plaintiff. 121. Denied. The allegation set forth in Paragraph 121 is a conclusion of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that a responsive pleading may be required, it is specifically denied that Defendant has failed to state a claim upon which relief can be granted. 122. Denied. The allegation set forth in Paragraph 122 is a conclusion of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that a responsive pleading may be required, it is specifically denied that Paragraphs 31 - 188 of Defendant's Second Amended Answer with New Matter are barred by the equitable doctrine of unclean hands. Defendant specifically denies that lie is in breach of contract with Plaintiff regarding repayment of the sign-on bonus and reimbursement of closing costs, as alleged in Plaintiff's Complaint. 123. Denied. The allegation set forth in Paragraph 123 is a conclusion of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that a responsive pleading may be required, the Defendant specifically denies that Defendant's actions leading up to and culminating in Defendant's termination provide justification for all of Plaintiffs actions. 124. Denied. The allegation set forth in Paragraph 124 is a conclusion of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that a responsive pleading may be required, Defendant specifically denies that Paragraphs 31 -118 of Defendant's Second Amended Answer with New Matter are barred by the doctrine of waiver. Defendant specifically denies that he breached any obligation and Defendant further specifically denies that his conduct could in any way bar his counterclaims against the Plaintiff. 125. Denied. The allegation set forth in Paragraph 125 is a conclusion of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that a responsive pleading may be required, Defendant specifically denies that Paragraphs 31 - 118 of Defendant's Second x`,a Amended Answer with New Matter are barred by the doctrine of estoppel. Defendant specifically denies that he breached any obligation and Defendant further specifically denies that his conduct could in any way bar his counterclaims against the Plaintiff. 126. Denied. The allegation set forth in Paragraph 126 is a conclusion of law to which no responsive pleading is required pursuant to the Pennsylvania Rules of Civil Procedure. To the extent that a responsive pleading may be required, Defendant specifically denies that Paragraphs 31 - 118 of Defendant's Second Amended Answer with New Matter are barred by the Statute of Frauds. WHEREFORE, Defendant requests that this Honorable Court permit Defendant's Counterclaims to proceed as pleaded and grant Defendant judgment in the amount of $218,750.00, which represents twenty-five months of Defendant's salary at $8,750.00 per month, together with pre judgment interest, reasonable attorney fees and costs, and such other and firrther relief as this Honorable Court deems just and appropriate. Respectfully submitted, Richard C. Gaffney, Esquire Supreme Court I.D. No. 2854 North Second Street Harrisburg, Pennsylvania 17110 r Dated: ie .±. , 2cor?, Attorney for Defendant ., . . CERTIFICATE OF SERVICE I, the undersigned, certify that I served a copy of the Defendant's Reply to Plaintiffs New Matter on Plaintiffs counsel via First Class United States Mail, postage prepaid, at the following address: Elizabeth G. Dixon, Esquire Mohammad A. Ghiasuddin, Esquire Mette, Evans, and Woodside P.O. Box 5950 Harrisburg, Pennsylvania 17110-0950 DATED: 15 A-pr,c- 2«? SIGNI`.D _ ' i ?? . ..) .1 '? ?_ ? C? ?. COMMERCE BANK/ HARRISBURG, N.A., Plaintiff V. STERLING SHUMAN, Defendant AND NOW, this _ day of J. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 99-4728 ORDER 2004, after consideration of Plaintiff's motion and brief, and Defendant's response and argument of counsel, it is hereby ORDERED, ADJUDGED and DECREED that Plaintiff's motion is granted and judgment in the amount of $46,000 is entered against Defendant. 3347o3vl KATHRYN L. SIMPSON, ESQUIRE Supreme Ct. I.D. #28960 METTE, EVANS & WOODSIDE 3401 North Front Street P. 0. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 klsimpson@mette.com Attorneys for Defendant COMMERCE BANK/ HARRISBURG, N.A., Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. STERLING SHUMAN, Defendant : CIVIL ACTION -LAW : NO. 99-4728 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Plaintiff, by its counsel, Mette, Evans & Woodside, files the following Motion for Summary Judgment on its Complaint and avers in support thereof: 1. This is a breach of contract action brought by an employer against a former employee. A copy of Plaintiff's Complaint is attached as Exhibit "A." 2. Plaintiff extended an employment offer to Defendant, the terms and conditions of which were contained in a letter agreement dated June 12, 1998. A copy of the letter agreement is attached as Exhibit "B." 3. Defendant signed the letter agreement on June 12, 1998. See Exhibit «B " 4. Pursuant to the letter agreement, Plaintiff paid Defendant, among other sums, a $25,000.00 signing bonus and $21,000.00 in closing cost reimbursement. 5. Defendant was terminated by Plaintiff on May 12, 1999. See Exhibit "A," 9 7; Exhibit "C," Defendant's Second Amended Answer, $ 7. 6. Plaintiff demanded repayment of the $25,000 signing bonus and the $21,000 reimbursement of closing costs owed Plaintiff by Defendant pursuant to the letter agreement. 7. Defendant did not pay and Plaintiff filed suit for breach of contract and Defendant responded with a Second Amended Answer, New Matter and Counterclaim alleging breach of express contract, breach of implied-in-fact contract, promissory estoppel, negligent misrepresentation and fraudulent misrepresentation. 8. Plaintiff has answered the counterclaim and raised new matter which Defendant responded to. 9. The Defendant's only available defense to the claim of breach of contract that could produce a genuine issue of material fact - that Plaintiff's president orally advised Defendant that repayment would only be required if Defendant quit voluntarily - has been rendered incapable of proof by the parole evidence rule. 10. The applicability of the parole evidence rule is properly considered in the context of a motion for summary judgment. Rose v. Food Fair Stores, Inc., 120, 262 A.2d 851, 853 (Pa. 1970). 11. The parole evidence rule seeks to preserve the integrity of written agreements by refusing to permit thr: contracting parties to attempt to alter the import of their contract through the use of contemporaneous oral declarations. Id, at 262 A.2d at 853. 12. Because the letter agreement of June 12, 1998, is a fully integrated expression of the intent of the parties, parole evidence is inadmissible to vary the terms of the agreement. 13. Because the terms of the letter agreement are unambiguous and supported by consideration and where Defendant's employment was terminated within twelve (12) months of the date of his hire, he is liable to Plaintiff for $46,000 and summary judgment should issue. 14. Defendant was, at all times relevant, an employee at will of Plaintiff. 15. As a matter of law, courts do not review the discharge of at will employees. Rapagnani v. Judas Company, 736 A.2d 666 (Pa.Super. 1999). 16. Because all of Defendant's counterclaim relies on his being something other than an employee at will and there is no proof that he was other than an employee at will, the counterclaim should be dismissed and summary judgment granted for Plaintiff. WHEREFORE, Plaintiff respectfully requests this Honorable Court enter summary judgment on its breach of contract claim in the amount of $46,000 and enter judgment on the Defendant's counterclaim in favor of Plaintiff. Respectfully submitted, METTE, EVANS & WOODSIDE By: 4tR L SIM SO N, E UIRE ou .D.028960 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff Dated: September 21, 2004 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Richard C. Gaffney, Esquire 2857 N. 2n'Street Harrisburg, PA 17110 METTE, EVANS & WOODSIDE IL By: OKAT RYN SIMP ON,ESQ Cour I.D. #28960 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff Dated: September 21, 2004 -5- COMMERCE BANK/ HARRISBURG N A IN THE COURT OF COMMON PLEAS , . ., CUMBERLAND COUNTY Plaintiff , PENNSYLVANIA CIVIL ACTION - LAW V. n o STERLING SHUMAN NO. 99-4728 , Defendant JURY TRIAL DEMANDED NOTICE TO PLEAD - ? : TO: STERLING SHUMAN, Plaintiff and RICHARD GAFFNEY, ESQUIRE, His Attorney: You are hereby notified to plead to the within document within twenty (20) days after service hereof, or a default judgment may be entered against you. METTE, EVANS & WOODSIDE By: `.^4?'???zg' aew ELIZ ETAS H GOLDSTEIN DIXON Supreme Court I.D. #73779 3401 North Frcmt Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717)232-5000 Attorneys for Plaintiff Commerce Bank/ Harrisburg, N.A. .1' 'JI?1 DATED: September 10, 1999 COMMERCE BANK/ IN THE COURT OF COMMON PLEAS HARRISBURG, N.A., CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA CIVIL ACTION - LAW V. STERLING SHUMAN, NO. 99 4728 Defendant JURY TRIAL DEMANDED COMPLAINT Plaintiff Commerce Bank/Harrisburg, N.A. ("Commerce") is a national banking association whose principal place of business is located at 100 Senate Avenue, Camp Hill, Pennsylvania 17011. 2. Defendant Sterling Shuman ("Shuman") is an adult individual residing at 323 W. Meadow Drive, Mechanicsburg, Cumberland County, Pennsylvania 17055. I. COMMERCE V. SHUMAN BREACH OF CONTRACT 3. The averments of paragraphs 1 and 2 above are incorporated by reference as though fully set forth herein. 4. Commerce and Shuman entered into a written contract on June 12, 1998. A true and correct copy of the written contract is attached hereto as Exhibit "A" and made a part hereof as though fully set forth herein. 5. Pursuant to the writtoa contract, Commerce paid Shuman a $25,000 sign-on bonus from which normal state and federal taxes were withheld and $21,000 reimbursement of closing costs on a net after-tax basis. 6. The contract required Shuman to repay 100% of the sign-on bonus and the reimbursement of closing expenses if employment ceased within the first 12 months of employment. Shuman was terminated on May 6, 1999 which was within the first 12 months of employment. 8. Commerce has demanded and Shuman has refused to repay Commerce the sign- on bonus and reimbursement of closing costs. 9. Shuman, thus, has breached the written contract set forth as Exhibit "A" to the Complaint. 10. As a direct and proximate result of Shuman's breach of contract, Commerce has been damaged. -2- WHEREFORE, Plaintiff Commerce Bank/Harrisburg N.A. demands judgment in its favor and against Defendant Sterling Shuman in an amount in excess of the jurisdictional limits for compulsory arbitration, together with costs, pre judgment interest and such other and further relief as the Court deems just and appropriate. II. COMMERCE V. SHUMAN UNJUST ENRICHMENT 10. The averments of paragraphs 1 through 9 above are incorporated by reference as though fully set forth herein. 11. In the alternative, if the written contract attached as Exhibit "A" to the Complaint is deemed unenforceable, Shuman will be unjustly enriched. 12. Commerce paid Shuman the sign-on bonus and closing costs pursuant to Exhibit "A." 13. Shuman accepted payment of the sign-on bonus and closing costs with the understanding that he would be required to repay 100% of these costs if his employment with Commerce ceased within 12 months. -3- 14. After Shuman's employment with Commerce ceased within 12 months, Commerce requested repayment of the sign-on bonus and closing costs. 15. Shuman has refused to repay the sign-on bonus and closing costs. 16. Shuman's retention of the sign-on bonus and closing costs is wrongful and he has been unjustly enriched thereby. 17. As a direct and proximate result of Shuman's unjust enrichment, Commerce Bank has been damaged. WHEREFORE, Plaintiff Commerce Bank/Harrisburg N.A. demands judgment in its favor and against Defendant Sterling Shuman in an amount in excess of the jurisdictional limits for compulsory arbitration, together with costs, pre judgment interest and such other and further relief as the Court deems just and appropriate. Respectfully submitted, METTE, EVANS & WOODSIDE By: l/ofo?lGr.L 1_ ELIZ ETH GOLDSTEIN DIXON Supreme Court I.D. #73779 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff Commerce Bank/ Harrisburg, N.A. DATED: September 10, 1999 00/1 ea PBI 13:40 FAX 304 20% 77aa • 8NB "M VIRGINIA Q002 June 12, 1998 Staling Shuman 11422 X"won Rd. Glenn Dale, MI) 20769 Dear Sterling: Commettre Bank is pleased to base salary of 5105,000 and a taxes will be withheld. If empl expmsw would be repaid to C Within 12 months - re; 13 - 24 months - repay 25 - 36 months - repay after 36 Months. no ra In addition, Commerce Ba business cxperue account; and the Stock Option Prog insurance to you and any ni be able to participate in the employee's contribution Comtrmewe dFlublik.- you amploymeat as Senior Vice Presidenta eiding; with a 1m boats of 525,000 from which normal state and fed" aK Oeues, the SIP-on bonus and the reimbuesanent of closing m Bank "follows: 100% d provide you with a Company car, a cellular phone, and normal s. You would be cUg&k to participate in the Bonus Program 1998 and thereafter, and Commerce Bank will provide health ing dependent. If you are employed by luly 1, 1998, you will Igtan, wuh Caaune U Y matching 25% of any Commerce Bank W" Qay for caring the househdd goods ofyour present alloate flutda for 3 months of otage, if necessary. Tam rendenee, and will $21,000 reimbur em of clo costs wiIl also be paid toy relocation =T&,M of 53600 and o afkr-tax basis. I have enjoyed our call. look forward to your response to this Oft and will await your e'r-u?()a`R8 ?amts T. CHbson PreadbyCEO P!G/daw C"Maree Sark NA P.C.Omraa99 100 8anau Maras OR= Me, Pawrift is 17001.aaaa Ind a7ti sw COMMERCE BANK/ HARRISBURG, N.A., Plaintiff V STERLING SHUMAN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, • PENNSYLVANIA • CIVIL ACTION- LAW No. 99-4728 NOTICE TO PLEAD TO: COMMERCE BANK/ HARRISBURG, N.A. and ELIZABETH GOLDSTEIN DIXON, ESQUIRE OF METTE, EVANS & WOODSIDE, its attorneys You are hereby notified to file a written response to the enclosed Second Amended Answer with New Matter within twenty (20) days from service hereof or judgment may be entered against you. Dated: C> 3 - 23 -(Do BY: Richard C. Gaffney, Esq ? Supreme Court I.D. 63313 P.O. Box 627 101 Front Street Boiling Springs, PA 17007-0627 Telephone 717.249.2525 COMMERCE BANK/ HARRISBURG, N.A., Plaintiff V STERLING SHUMAN, , Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 99-4728 SECOND AMENDED ANSWER WITH NEW MATTER AND NOW, comes the Defendant, Sterling Shuman, by and through his attorney, Richard C. Gaffney, Esquire, who files this Second Amended Answer With New Matter pursuant to the Order of Court dated March 1, 2000. ANSWER 1. Denied. Defendant denies for want of knowledge the allegations contained in paragraph 1 of the Complaint. 2. Admitted. 3. In response to paragraph 3 of the Complaint, Defendant restates, as if fully rewritten, his answers to paragraphs 1 through 2 of the Complaint. 4. Admitted in part and Denied in part. Defendant admits as much of the allegation in paragraph 4 of the Complaint as that the Plaintiff and Defendant entered into a contract for employment on June 12, 1998. Defendant denies that Plaintiffs Exhibit "A" memorialized the contract of employment. 5. Admitted in part and Denied in part. Defendant admits as much of the allegation in paragraph 5 of the Complaint as that the Plaintiff paid Defendant $25,000 as a sign-on bonus from which state and federal taxes were withheld and $21,000 as reimbursement for Defendant's closing costs on a net after-tax basis. Defendant denies that Plaintiffs payment was made to Defendant "(p)ursuant to the written contract." To the extent that Plaintiffs allegations imply or infer that Defbndant has an obligation to "repay" Plaintiff, Defendant denies the allegations. 6. Denied. Defendant denies the allegations contained in paragraph 6 of the Complaint. 7. Admitted. 8. Admitted in part and Denied in part. Defendant admits as much of the allegations in paragraph 8 of the Complaint as that Plaintiff has demanded payment from the Defendant and that Defendant has refused payment to Plaintiff. To the extent that the allegations in paragraph 8 of the Complaint infer or imply that Defendant has an obligation to "repay" Plaintiff , Defendant denies the allegations. 9. Denied. The allegations contained in paragraph 9 of the Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that a responsive pleading is required, Defendant denies the allegations contained in paragraph 9 of the Complaint. 10. Denied. The allegations contained in paragraph 10 of the Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that a responsive pleading is required, Defendant denies the allegations contained in paragraph 10 of the Complaint. 11. (Second paragraph 10). Denied. In response to second paragraph 10 of the Complaint, Defendant restates, as if fully rewritten, his answers to paragraphs I through 10 of the Complaint. 12. (Paragraph 11). Denied. The allegations contained in paragraph 11 of the Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that a responsive pleading is required, Defendant denies the allegations contained in paragraph I I of the Complaint. 13. (Paragraph 12). Admitted in part and Denied in part. Defendant admits as much of the allegation in paragraph 12 of the Complaint as that the Plaintiff paid Defendant a sign-on bonus and closing costs. Defendant denies that Plaintiffs payment was made to Defendant "pursuant to Exhibit `A'." To the extent that Plaintiffs allegations imply or infer that Defendant has an obligation to repay Plaintiff, Defendant denies the allegations. 14. (Paragraph 13). Denied. Defendant denies the allegations contained in paragraph 13 of the Complaint. By way of further pleading, Defendant avers that his obligation to repay a portion of the sign-on bonus only arose in the event that he voluntarily left his position with Plaintiff and accepted a position with a competitor of Plaintiff. 15. (Paragraph 14). Admitted in part and Denied in part. Defendant admits as much of the allegation in paragraph 14 of the Complaint as that the Plaintiff involuntarily terminated Defendant's employment within twelve months of his hire date and that Plaintiff "requested repayment of the sign-on bonus and closing costs" after the date on which Plaintiff involuntarily terminated Defendant's employment. To the extent that Plaintiffs allegations imply or infer that Defendant has any obligation to repay Plaintiff, Defendant denies the allegations. 16. (Paragraph 15). Admitted in part and Denied in part. Defendant admits as much of the allegation in paragraph 15 of the Complaint as that the Defendant has refused Plaintiffs demand for payment. To the extent that Plaintiffs allegations imply or infer that Defendant has any obligation to repay Plaintiff, Defendant denies the allegations. 17. (Paragraph 16). Denied. The allegations contained in paragraph 16 of the Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that a responsive pleading is required, Defendant denies the allegations contained in paragraph 16 of the Complaint. 18. (Paragraph 17). Denied. The allegations contained in paragraph 17 of the Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that a responsive pleading is required, Defendant denies the allegations contained in paragraph 17 of the Complaint. NEW MATTER AFFIRMATIVE DEFENSES FIRST DEFENSE 19. Defendant restates, as if fully rewritten, the answers contained in paragraphs 1 through 18 hereinabove. 20. Plaintiffs Complaint fails to state a claim upon which relief can be granted. SECOND DEFENSE 21. Defendant restates, as if fully rewritten, the answers contained in paragraphs 1 through 20 hereinabove. 22. Plaintiffs claims are barred by the doctrine of accord and satisfaction. THIRD DEFENSE 23. Defendant restates, as if fully rewritten, his answers contained in paragraphs 1 through 22 hereinabove. 24. Plaintiffs claims are barred by the doctrine of waiver. FOURTH DEFENSE 25. Defendant restates, as if fully rewritten, his answers contained in paragraphs 1 through 24 hereinabove. 26. Defendant is discharged from any obligation owed to Plaintiff by virtue of Plaintiffs breach of an implied contract of employment and failure to perform FIFTH DEFENSE 27. Defendant restates, as if fully rewritten, his answers contained in paragraphs 1 through 26 hereinabove. 28. Defendant is discharged from any obligation owed to Plaintiff by virtue of Plaintiffs fraud and misrepresentation. SIXTH DEFENSE 29. Defendant restates, as if fully rewritten, his answers contained in paragraphs 1 through 28 hereinabove. 30. Plaintiffs claims are barred by the equitable doctrine of unclean hands. WHEREFORE, Defendant demands that the PlaintifFs Complaint be dismissed with prejudice and that the Defendant be awarded his costs, including reasonable attorney fees in this action. COUNTERCLAIMS 31.On or about March 15, 1998, National Search Associates contacted the Defendant to solicit interest in a Senior Vice President/Lending position with the Plaintiff. 32. Defendant was employed at that time as President, North Central Region, by Huntington Bancshares, Inc. ("Huntington') in Morganic!vn, West Virginia Under the terms ofa Hiring/Relocation Agreement between them, Defendant was obligated to repay to Huntington, if he voluntarily terminated employment within twelve months of employment by Huntington, any relocation or cash payments made to him or on his behalf. The Defendant was in the process of moving his family to Morgantown, West Virginia where Huntington Bank maintained its Regional Headquarters. 33. Several days after the first contact, the Defendant told National Search Associates that he would be interested in exploring the Senior Vice President/Lending position with Plaintiff so long as the Plaintiff would offer the Defendant employment terms equal to or better than those that he had received from Huntington Bank. 34. At all times relevant to this action, Plaintiffs President and Chief Executive Officer was James Gibson (hereinafter "Gibson" or "Plaintiffs President'). 35. At all times relevant to this action, Plaintiff's President and CEO had apparent authority to bind the Plaintiff to a contract for employment with the Defendant. 36. At all times relevant to this action, Plaintiffs President and CEO had actual authority to bind the Plaintiff to a contract for employment with the Defendant. 37. At all times relevant to this action, Plaintiffs President and CEO had implied authority to bind the Plaintiff to a contract for employment with the Defendant. 38. In all instances referred to in this pleading, James Gibson acted within the scope of his employment as President and CEO of Plaintiff. 39. Between March 1998 and June 12, 1998, Plaintiffs President negotiated with Defendant regarding salary, job responsibilities, performance expectations, relocation reimbursement, employee benefits and starting date. 40. Defendant eamed a base annual salary of $105,000.00 with Huntington. 41. Plaintiff's President offered Defendant a base annual salary of $105,000.00. 42. Huntington had paid the Defendant a relocation allowance of $25,000.00 to cover lost equity in the sale of his Maryland home and assist with the purchase of a home in Morgantown, West Virginia. 5 43. Plaintiffs President offered to pay Defendant a "sign-on bonus" of $25,000.00 less state and federal taxes to keep Defendant whole for his repayment obligation to Huntington. 44. Huntington had agreed to reimburse the Defendant for Realtor's fee and miscellaneous inspections, appraisal and legal fees incurred in relocating from Maryland to West Virginia on a "net after-tax basis." 45. Plaintiffs President offered to reimburse Defendant for reasonable closing costs in the amount of $21,000.00 on a "Net after-tax basis." 46. Huntington had offered to provide Defendant temporary relocation expenses, including two house hunting trips and up to sixty (60) days of temporary housing. 47. Plaintiffs President agreed to pay Defendant $3,600.00 in order to keep the Defendant whole for his repayment obligation to Huntington and to pay for Defendant's temporary relocation expenses. 48. Huntington had agreed to pay all reasonable costs involved in moving the Defendant's household goods from Maryland to the greater Morgantown, West Virginia area. 49. Plaintiffs President agreed to pay all reasonable costs involved in moving the Defendant's household goods to Harrisburg, Pennsylvania, including paying for ninety (90) days of storage. 50. Huntington had agreed to reimburse the Defendant for those reasonable and customary costs (excluding "Buy down points") incurred in obtaining mortgage financing. 51. Plaintiffs President agreed to originate a mortgage loan free of origination fees for the Defendant. 52. Huntington agreed to recommend the Defendant for participation in its Management Incentive Plan for 1998 at the "B" level. 53. Plaintiffs President offered Defendant eligibility in its Bonus Program for 1998 and thereafter. 54. Huntington agreed that, depending on job performance, the Defendant may be initially recommended for approximately 2,000 stock option shares to be awarded in August 1998. 55. Plaintiffs President offered Defendant eligibility in its Stock Option Program for 1998 and thereafter. Plaintiff's President verbally promised Defendant approximately 1,000 shares of stock options, dependent on job performance. 56. Huntington offered to provide Defendant and his non-working dependents with health insurance. 57. Plaintiffs President offered to provide Defendant and his non-working dependents with health insurance. 58. Huntington offered Defendant participation in its 401(k) program. 59. Plaintiffs President offered Defendant participation in its 401(k) program if Defendant started his employment with Plaintiff by July 1, 1998. 60. Huntington offered Defendant a cellular telephone and normal business expense account privileges. 61. Plaintiffs President offered Defendant a company car, a cellular telephone and normal business expense account privileges. 62. At Huntington, the Defendant's duties as President, North Central Region were primarily executive and managerial. 63. Throughout the interview process, from March 1998 until June 12, 1998, Plaintiffs President described Defendant's duties as Senior Vice President/Lending as being primarily executive and managerial. 64. Plaintiffs President defined satisfactory performance after one year in the job for the Defendant as follows: (a) to meet or exceed department budget; (b) to increase the credit skills of the lenders whom he would supervise; and (c) to build a cohesive teamwork environment. 65. Throughout the interview process, Plaintiffs President never stated that Defendant would have specific personal Loan production goals. 66. Plaintiffs President told Defendant that the Senior Vice President/Lending position was a' long term career opportunity.,, 67. Plaintiff's President agreed that Defendant's employment start date would be June 28, 1998. 68. On June 11, 1998, Plaintiffs President faxed Defendant a letter offering employment to Defendant as Senior Vice President/Lending. The letter was signed on behalf of Plaintiff by its President and CEO, Gibson. 69. Gibson's June I 1 letter contained a provision that stated: "If employment ceases, the sign-on bonus and the reimbursement of closing expenses would be repaid to Commerce Bank as follows: Within 12 months - repay 100% 13 - 24 months - repay 2/3 25 - 36 months - repay 1/3 after 36 months - no repayment." 70. Gibson's June I 1 fax was the first time that the issue of repayment was raised. 71. Defendant asked Gibson on June 11, 1998 for an explanation of the repayment provision and the phrase "if employment ceases." 72. Gibson explained to Defendant on June 11, 1998 that the repayment provision and the phrase "if employment ceases" means that if the Defendant were to voluntarily leave his employment by the Plaintiff to work for a competitor of the Plaintiff, then but only in that event, the Defendant would be obligated to repay to Plaintiffa portion of the sign-on bonus and closing costs, according to the schedule in the letter. 73. Defendant asked Gibson if the repayment schedule could be changed from three years to two years. 74. Gibson refused to shorten the schedule and stated that he did not want to pay to relocate the Defendant and then allow the Defendant to voluntarily leave employment within three years. 75. Gibson told Defendant that this position was a long-tens career opportunity. 76. Gibson told Defendant that the repayment schedule was a disincentive to leave the Bank within three years of employment. 77. Gibson told Defendant that the stock options would provide a strong incentive to stay with the Bank for the long-term and that the stock options would make Defendant "a wealthy man." 78. Defendant accepted Gibson's offer of employment with the Plaintiff, subject to the understandings set out in paragraphs 33 through 77, hereinabove. 79. But for the understandings set out in paragraphs 33 through 77, hereinabove, Defendant would not have accepted Plaintiffs offer of employment. 80. Defendant is 46 years of age. He is married. He has one (1) child ofschool age residing with him. 81. Following Defendant's acceptance of Plaintiffs offer of employment, Defendant resigned from Huntington on June 15, 1998 and relocated his family from Maryland to Harrisburg, Pennsylvania. 82. At all times relevant to this action, Defendant's job performance met or exceeded the minimum requirements of the position as they were described and represented by the Plaintiff's President throughout the interview and selection process. 83. In or around September 1998, Plaintiff's President abruptly changed Defendant's responsibilities to include unreasonably high goals for personal loan production generated by the Defendant. 84. In or around September 1998, Defendant's job duties changed significantly from managerial and supervisory duties to one of lead producer, requiring significant levels of "cold calling" and sales duties. 85. Plaintiff involuntarily terminated Defendant. 86. Plaintiff's involuntary termination of Defendant was for reasons other than job performance. COUNT I: BREACH OF EXPRESS CONTRACT 87. Defendant restates, as if fully rewritten, paragraphs 31 through 86 hereinabove. 88. Gibson's letter of June 11, 1998 is an express contract for employment. 89. The term of Defendant's employment is thirty-six (36) months, pursuant to Gibson's letter of June 11. 90. Plaintiff terminated the Defendant's employment after only eleven (11) months. 91. Plaintiff thereby breached the employment contract. 92. As a direct and proximate result of Plaintiffs breach of the express employment contract, Defendant has been damaged. WHEREFORE, Defendant claims of the Plaintiff and demands judgment against the Plaintiff in the amount of $218,750.00, which amount represents twenty-five months of Defendant's salary at $8,750.00 per month, plus interests, reasonable attorney fees and costs. COUNT 11: BREACH OF IMPLIED-IN-FACT CONTRACT 93. Defendant restates, as if fully rewritten, paragraphs 31 through 92 hereinabove. 94. Plaintiff offered employment to Defendant and Defendant accepted Plaintiff's offer of employment under terms and conditions set out in paragraphs 31 through 77 hereinabove. 95. By uprooting his family and relocating them to Pennsylvania, the Defendant suffered a hardship. 96. By relinquishing his secure employment as President, North Central Region, at Huntington, Defendant incurred a detriment. 97. The schedules set out in Gibson's fax of June 11, 1998 and his letter of June 12, 1998 contemplate an implied-in-fact contract for employment for thirty-six (36) months. 98. Defendant accepted Plaintiffs offer of employment with the understanding that he and the Plaintiff were committing to an employment contract for thirty-six (36) months. 99. The hardships suffered and the detriments incurred by the Defendant provided additional consideration, sufficient to defeat the "at-will" employment presumption and to constitute an implied-in-fact contract, is 100. Plaintiff terminated Defendant's employment on May 6, 1999, after only eleven (11) months. s>° 101. Plaintiff thereby breached the implied-in-fact contract of employment with Defendant. 102. As a direct and proximate result of Plaintiffs breach of the implied-in-Fect contract of employment, Defendant has been damaged. 10 WHEREFORE, Defendant claims of the Plaintiff and demands judgment against the Plaintiff in the amount of $218,750.00, which amount represents twenty-five months of Defendant's salary at $8,750.00 per month, plus interests, reasonable attorney fees and costs. COUNT 11: PROMISSORY ESTOPPEL 103. Defendant restates, as if fully rewritten, paragraphs 31 through 102 hereinabove. 104. Plaintiff, through its President and CEO, James Gibson, represented the following to the Defendant: a. that Defendant's job responsibilities as Senior Vice President/Lending would consist of executive and managerial duties; b, that Defendant's job performance would be evaluated based on the goals enumerated in paragraph 64 hereinabove; c. that Defendant's obligation to repay some or all of the sign-on bonus and closing costs would arise if, but only if, the Defendant voluntarily left employment within three years; d. that the Plaintiff and Defendant were making a commitment for a long term employment arrangement whose duration was to be at least three years; e. that the Defendant could participate in Plaintiffs 401(k) program, if he was employed by June 28, 1998. 105. The representations made by Plaintiffs President were material to Defendant's decision to accept Plaintiffs offer of employment. 106. Defendant's reliance on Plaintiffs President's representations was reasonable. 107. The representations made by Plaintiffs President were false. a. Beginning in September 1998, Defendant's job responsibilities consisted of "cold calling" and sales duties instead of executive and managerial duties. b. Beginning in September 1998, Plaintiff's President evaluated Defendant's job performance on different criteria than those enumerated in paragraph 64 hereinabove; c. By the instant action, Plaintiff now asserts that Defendant's obligation to repay Plaintiff some or all of the sign-on bonus and closing costs arises even when Plaintiff involuntarily terminated Defendant; d. Plaintiff terminated Defendant's employment within three years; e. Plaintiff did not permit the Defendant to participate in the 401(k) plan for 1998. 108. As a direct and proximate result of Phaintiffs wrongful acts, the Defendant has suffered detriments and has been damaged thereby. WHEREFORE, Defendant claims of the Plaintiff and demands judgment against the Plaintiff in the amount of $218,750.00, which amount represents twenty-five months of Defendant's salary at $8,750.00 per month, plus interests, reasonable attorney fees and costs. COUNT III: NEGLIGENT MISREPRESENTATION 109. Defendant restates, as if frilly rewritten, paragraphs 31 through 108 hereinabove. 110. Plaintiff, through its President and CEO, James Gibson, has a duty to Defendant to truthfully represent the job responsibilities, performance objectives, and other terms and conditions of employment. 111. Plaintiffs President and CEO, James Gibson, misrepresented Defendant's job responsibilities, performance objectives and other terms and conditions of employment. 112. Plaintiff, through its President and CEO, James Gibson, thereby breached its duty to the Defendant. WHEREFORE, Defendant claims of the Plai:.:iffand demands judgment against the Plaintiff in the amount of $218,750.00, which amount represents twenty-five months of Defendant's salary at $8,750.00 per month, plus interests, reasonable attorney fees and costs. 12 COUNT IV: FRAUDULENT MISREPRESENTATION 113. Defendant restates, as if fully rewritten, paragraphs 31 through 112 hereinabove. 114. Plaintiffs President, James Gibson, knew or should have known that his representations to Defendant regarding job expectations and term of employment were false and misleading. 115. Plaintiffs President, James Gibson, communicated the representations to the Defendant with intent to induce the Defendant to accept Plaintiffs offer of employment. 116. Plaintiffs President, James Gibson, made representations to the Defendant that were false and misleading. 117. Defendant relied on the misrepresentations made by the Plaintiffs President, James Gibson, when he accepted Plaintiffs offer of employment. 118. As a direct and proximate result of the misrepresentations made by Plaintiff's President, James Gibson, the Defendant has suffered detriments and has been damaged thereby. WHEREFORE, Defendant claims of the Plaintiff and demands judgment against the Plaintiff in the amount of $218,750.00, which amount represents twenty-five months of Defendant's salary at $8,750.00 per month, together with pre judgment interest, reasonable attorney fees and costs, and such other and further relief as this Honorable Court deems just and appropriate. Respectfully submitted, RICHARD C. GAFFNEY, EsQ SUPREME CouRTI.D. # 63313 P.O. Box 627 101 Front Street Boiling Springs, PA 17007-0627 Telephone: 717.249.2525 Attorney for the Defendant, DATED: _ Sterling Shuman 13 COMMERCE BANK/ HARRISBURG, N.A., Plaintiff v STERLING SHUMAN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 99-4728 VERIFICATION I verify that the statements made in the foregoing Second Amended Answer with New Matter are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. Cons. Stat. Ann. § 4904, relating to unswom falsification to authorities. Date: 0/i2--/Avo BY: 14 .i4 ?4 COMMERCE BANK/ HARRISBURG, N.A., Plaintiff v STERLING SHUMAN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL AGTION- LAW No. 99-4728 CERTIFICATE OF SERVICE I, Richard C. Gaffney, Esquire, attorney for the Defendant in the above captioned matter, do hereby state and affirm that on this 23rdday of March, 2000, I served the foregoing Second Amended Answer with New Matter by United States first-class mail, postage prepaid, on the person(s) named below: ELIZABETH GOLDSTEIN DIXON METTE, EVANS & WOODSIDE 3401 North Front Street Harrisburg, PA 17110-5000 Date: 03-7-3-013 BY: Richard C. Gaffney, Es re L U._ T cy M COMMERCE BANK/ HARRISBURG, N.A., Plaintiff V. STERLING SHUMAN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 99-4728 PRAECIPE TO WITHDRAW MOTION FOR SUMMARY JUDGMENT TO THE PROTHONOTARY: Please withdraw the Motion for Summary Judgment filed on behalf of Commerce Bank in this matter. Respectfully submitted, Dated: November 4, 2004 METTE, E.VANS & , 1! Su eme Cour D. #28960 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff L ? CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Richard C. Gaffney, Esquire Smigel, Anderson & Sachs, LLP 4431 North Front Street, 3'd Floor Harrisburg, PA 17110-1709 METTE, EVANS & WOODSIDE /I By: MT YN MP N, ESf? Supr a Court I.D. #28960 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Plaintiff Dated: November 4, 2004 410322v1 s. « _Y ` • tr) r_ W N u L c u. U ° U t