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HomeMy WebLinkAbout07-3181 f LARRY C. WRIGHT v. IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA ESSIS & SONS, INC., Defendant : CIVIL ACTION - LAW DOCKET NO. a f 1 ?II NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. Bedford Street Carlisle, PA 17013 717-249-3166 or 1-800-990-9108 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una Orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. Bedford Street Carlisle, PA 17013 717-249-3166 or 1-800-990-9108 STROKOFF & COWDEN, P.C. 132 State Street, P.O. Box 11903 Harrisburg, PA 17108 (717) 233-5353 U LARRY C. WRIGHT Plaintiff V. ESSIS & SONS, INC., Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOCKET NO. D COMPLAINT The Plaintiff, Larry C. Wright, by and through counsel, Strokoff & Cowden, P.C., hereby files the following Complaint and avers as follows: 1. Plaintiff, Larry C. Wright, is an adult individual residing at 1805 Wexford Road, Palmyra, Pennsylvania 17078. 2. Defendant, Essis & Sons, Inc., is a business corporation located at 6220 Carlisle Pike, Mechanicsburg, Pennsylvania 17055. 3. Plaintiff was employed by Defendant at its Mechanicsburg store as a salesman, and was to be compensated on a commission basis. 4. Plaintiff voluntarily terminated his employment with Defendant on or about January 5, 2007. 5. Because of sales made by Plaintiff through January 5, 2007, Plaintiff had earned $8,022.32 in commissions which are still due and owing to him from Defendant. I 6. Despite repeated demands therefore made of Defendant's President, the Defendant has refused to make any payment to Plaintiff of the commissions due him. 7. The Defendant has no good faith contest to Plaintiff's claim for $8,022.32 in commissions. 8. Under Pennsylvania's Wage Payment and Collection Law, the definition of wages: Includes all earnings of an employe, regardless of whether determined on time, task, piece, commission or other method of calculation. . . 43 P.S. § 260.2a (emphasis added). 9. Pennsylvania's Wage Payment and Collection Law, states in relevant part: Every employer shall pay all wages, other than fringe benefits and wage supplements, due to his employes on regular paydays designated in advance by the employer. 43 P.S. § 260.3. 10. Defendant's refusal to pay to Plaintiff the $8,022.32 of his outstanding commissions, constitutes a violation of section 260.3 of Pennsylvania's Wage Payment and Collection Law. 11. This Court may award liquidated damages equal to 250 of the total amount of wages due, or $500.00, whichever is greater, against any employer who has no good faith contests to paying wages. 43 P.S. § 260.10. - 2 - s 12. According to 43 P.S. §260.10, this Court must award costs for reasonable attorneys' fees against any employer who does not pay wages when due and has no good faith contest to such wages. WHEREFORE, Plaintiff demands judgment against Defendant pursuant to the Pennsylvania Wage Payment and Collection Law in the amount of $8,022.32, plus 25% liquidated damages ($2,005.58), plus reasonable attorney fees, costs of suit and such other further relief which this Court deems just and proper. STROKOFF & COWDEN, P.C. By: Elliot A. trokoff I.D. No. 16677 Michael J. Plank I.D. No. 88446 DATE: 5/24/07 Strokoff & Cowden, PC 132 State Street PO Box 11903 Harrisburg, PA 17108-1903 (717) 233-5353 Attorney for Plaintiff - 3 - s LARRY C. WRIGHT Plaintiff V. ESSIS & SONS, INC., Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOCKET NO. VERIFICATION I, LARRY C. WRIGHT, certify that the statements made in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. cIGHT DATE : 9)-2q Jo-7 ^ r, j 0 LARRY C. WRIGHT, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW ESSIS & SONS, INC., DOCKET NO. 07-3181 - CIVIL TERM Defendant NOTICE TO PLEAD TO: Larry C. Wright and his attorney, Elliot A. Strokoff: You are hereby notified to file a written response to the within New Matter and Counterclaim within 20 days from service hereof or a judgment may be entered against you. McNEES WALLACE & NURICK LLC By Kimb ly A. Selemba I . D. No. 93535 Marcy L. McCullough I.D. No. 204358 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendant Essis & Sons, Inc. Dated: June 13, 2007 LARRY C. WRIGHT, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW ESSIS & SONS, INC., DOCKET NO. 07-3181 - CIVIL TERM Defendant ANSWER WITH NEW MATTER AND COUNTERCLAIM Defendant Essis & Sons, Inc. ("Essis & Sons"), by and through its attorneys, McNees Wallace & Nurick LLC, files the following Answer with New Matter and Counterclaim to the Complaint of Plaintiff Larry C. Wright ("Wright"). Answer 1. Admitted upon information and belief. 2. Admitted. 3. Admitted in part and denied as stated in part. It is admitted that Wright was employed by Defendant at its Mechanicsburg store as a salesperson. Essis and Sons denies Plaintiffs characterization that he "was to be compensated on a commission basis," as it is stated. By way of further answer, Essis and Sons compensates its salespersons based on a "commissions earned" compensation system. A commission is "earned" under Essis and Sons' policy and practice when a sale is completed and is paid in full. Therefore, merely making a sale does.not equate to earning a commission under Essis and Sons' compensation system. 4. Admitted. 5. Denied. It is denied that Wright earned $8,022.32 in commissions based upon sales made through January 5, 2007, and it is denied that any amount of money, including commissions, is due and owing to Wright. To the contrary, Essis & Sons has paid Wright all commissions which he had earned while employed at Essis & Sons. By way of further answer, Essis & Sons' policy regarding payment of commissions expressly provides that a salesperson is not entitled to commissions for any jobs that are not completed or that are not paid in full at the time of his or her employment termination. Pursuant to this policy, Essis & Sons paid Wright all commissions that he earned for each and every job that had been completed and paid in full as of January 5, 2007, the date of Wright's voluntary termination. 6. Admitted in part and denied in part. It is admitted that Wright made demands for payment of commissions. It is denied that any commissions are due and owing to Wright by Essis & Sons. To the contrary, pursuant to its express policy regarding payment of commissions, Essis & Sons paid Wright all commissions that he earned for each and every job that had been completed and paid in full as of January 5, 2007, the date of Wright's voluntary termination. No amount of commissions is due and owing to Wright. By way of further answer, the responses to paragraphs 3 & 5, above, are incorporated herein by reference. 7. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the averments of this paragraph are denied. It is denied that Essis & Sons has no good faith contest to Wright's claim for $8,022.32 in commissions. It is further denied that Wright is entitled to $8,022.32 in commissions from Essis & Sons. To the contrary, Essis & Sons does not owe any commissions to Wright. By way of further answer, pursuant to its express policy regarding payment of commissions, Essis & Sons paid Wright all commissions that he earned for each and every job that had been completed -2- and paid in full as of January 5, 2007, the date of Wright's voluntary termination. By way of further answer, the responses to paragraphs 3 & 5, above, are incorporated herein by reference. 8. Admitted in part and denied in part. It is admitted that Wright accurately quotes a portion of the definition of "wages" from the Wage Payment and Collection Law. Essis & Sons denies any characterization or implication from this definition of wages. By way of further answer, Essis & Sons paid Wright all wages, including commissions, that were due and owing to him for all sales completed and paid in full as of the date of his voluntary termination. 9. Admitted in part and denied in part. It is admitted that Wright accurately quotes a portion of the Wage Payment and Collection Law. Essis & Sons denies any characterization or implication that arises therefrom. By way of further answer, Essis & Sons paid Wright all wages, including commissions, that were due and owing to him for all sales completed and paid in full as of the date of his voluntary termination. 10. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the averments of this paragraph are denied. It is denied that Essis & Sons has violated Pennsylvania's Wage Payment and Collection Law. It is further denied that there are any outstanding commissions due and owing to Wright. To the contrary, Essis & Sons has paid Wright all commissions which he had earned while employed at Essis & Sons. By way of further answer, Essis & Sons' policy regarding payment of commissions expressly provides that a salesperson is not entitled to commissions for any jobs that are not completed or that are not paid in full at the time of his or her employment -3- termination. Pursuant to this policy, Essis & Sons has paid Wright all commissions that he earned for each and every job that had been completed and paid in full as of January 5, 2007, the date of Wright's voluntary termination. 11. Admitted in part and denied in part. It is admitted that Pennsylvania's Wage Payment and Collection Law allows the Court to award liquidated damages. It is denied that any award of liquidated damages against Essis & Sons is justified in this matter. It is also denied that no good faith contest exists in Essis & Sons' refusal to pay Wright any amount of commissions. It is further denied that Wright is entitled to any amount of commissions from Essis & Sons. To the contrary, Essis & Sons paid Wright all commissions which he had earned while employed at Essis & Sons. By way of further answer, Essis & Sons' policy regarding payment of commissions expressly provides that a salesperson is not entitled to commissions for any jobs that are not completed or that are not paid in full at the time of his or her employment termination. Pursuant to this policy, Essis & Sons paid Wright all commissions that he earned for each and every job that had been completed and paid in full as of January 5, 2007, the date of Wright's voluntary termination. 12. Denied as stated. It is denied that 43 P.S. § 260.10 allows the Court to award attorneys' fees. It is further denied that any award of attorneys' fees against Essis & Sons is justified in this matter or that no good faith contest exists. The responses to paragraphs 3 & 5, above, are incorporated herein by reference. WHEREFORE, Defendant Essis & Sons, Inc. requests judgment in its favor and against Plaintiff Larry C. Wright, together with costs, and such other relief as the Court deems just and equitable. -4- New Matter 13. Essis & Sons incorporates herein by reference its answers to paragraphs 1-12, above. 14. Wright has failed to state a claim upon which relief can be granted. 15. Wright's claim is barred by the doctrine of estoppel. 16. Wright's claim is barred, in whole or in part, by the doctrine of unclean hands. 17. Wright was employed as a salesperson by Essis & Sons from January 15, 1984, until January 5, 2007. 18. On March 4, 2006, Wright executed a document entitled "Nature of Employment Relationship" (hereinafter "employment document"). A true and correct copy of the employment document is attached hereto as Exhibit "A." 19. The employment document provides, in pertinent part: All policies, benefits, plans, procedures and other matters contained in this Handbook may be modified, revoked, suspended, terminated or changed, in whole or in part, at any time, with or without notice to employees. See Exhibit A. 20. Simultaneously with the execution of the employment document, Essis & Sons provided Wright with Addendum A to the employment document. A true and correct copy of Addendum A is attached hereto as Exhibit "B." 21. Addendum A provides, in pertinent part, that: There will be no commissions paid for any and all jobs not completed or not paid at the time of employment termination. See Exhibit B (emphasis added). -5- 22. Wright had the opportunity to and did, in fact, read Addendum A and agree to be bound by its terms. 23. On January 5, 2007, Wright resigned his employment with Essis & Sons. A true and correct copy of Wright's January 5, 2007 resignation is attached hereto as Exhibit "C." 24. Pursuant to the policy expressed in Addendum A, Wright is not entitled to any commissions on jobs which were not completed and that were not paid as of January 5, 2007, the date of Wright's termination of employment with Essis & Sons. See Exhibit B. 25. Pursuant to the policy expressed in Addendum A, Essis & Sons paid Wright all commissions that he earned for each and every job that had been completed and paid in full as of January 5, 2007, the date of Wright's termination of employment with Essis & Sons. 26. The commissions that Wright is claiming are due and owing have not been earned by Wright because the jobs to which those commissions are related were not completed and were not paid in full as of the date of Wright's termination on January 5, 2007. 27. Essis and Sons has a good faith basis for contesting Wright's demand for payment of allegedly due commissions and Wright is not entitled to liquidated damages under 42 P.S. § 260.10. 28. Wright is not entitled to the payment of any commissions pursuant to Pennsylvania's Wage Payment and Collections Law or under any other law or agreement with Essis & Sons. -6- WHEREFORE, Defendant Essis & Sons, Inc. requests judgment in its favor and against Plaintiff Larry C. Wright, together with costs, and such other relief as the Court deems just and equitable. COUNTERCLAIM Count I -Unjust Enrichment 29. Essis & Sons incorporates herein by reference Paragraphs 1 through 28 of its Answer with New Matter and Counterclaim to Plaintiffs Complaint. 30. Wright was employed as a salesperson by Essis & Sons from January 15, 1984, until January 5, 2007, when Wright voluntarily terminated his employment with Essis & Sons. 31. Essis and Sons compensates its salespersons, including Wright, based on a "commissions earned" compensation system. A commission is "earned" under Essis and Sons' policy and practice when a sale is complete and is paid in full. Therefore, merely making a sale does not equate to earning a commission under Essis and Sons' compensation system. 32. While employed with Essis & Sons, Wright was paid a bi-weekly draw against his commissions. 33. Commissions earned by a salesperson in excess of his or her draw from the previous month were paid to the salesperson in the first check of the subsequent month. 34. If a salesperson earns less commissions than his or her monthly draw for any particular month, Essis & Sons still pays the salesperson his or her draw against his or her commissions, and does not subtract the negative balance from the salesperson's -7- draw check; but, rather, Essis & Sons maintains record of the negative balance which is offset by future commissions that exceed the salesperson's monthly draw. 35. Essis & Sons documents the amount of each salesperson's commissions earned and amount in arrears on a Commissions Paid Report. 36. As of the time of Wright's voluntary termination on January 5, 2007, Wright's account with Essis & Sons had a negative balance of $574.47. A true and correct copy of the Wright's Commissions Paid Report, which reflects a negative balance of $574.47, is attached hereto as Exhibit "D." 37. The negative balance on Wright's Commissions Paid Report indicates that Essis & Sons paid Wright $574.47 in commissions for 2006 which Wright did not earn while employed by Essis & Sons. 38. Essis & Sons conferred a benefit upon Wright by paying him $574.47 worth of commissions which he did not earn while employed by Essis & Sons. 39. Wright accepted the benefit of $574.47 by retaining the $574.47, despite repeated demands by Essis & Sons to repay the amount of unearned commissions at the time of his voluntary termination. 40. To permit Wright to retain the benefit of $574.47 in unearned commissions conferred upon him by Essis & Sons would be inequitable and unjust. WHEREFORE, Essis & Sons, Inc. demands judgment in its favor and against Larry C. Wright in an amount of $574.47, together with costs and such other relief as this Court deems just. -8- Count 11- Violation of Pennsylvania Uniform Trade Secrets Act 41. Essis & Sons incorporates herein by reference Paragraphs 1 through 40 of its Answer with New Matter and Counterclaim to Plaintiffs Complaint. 42. Wright was employed as a salesperson by Essis & Sons from January 15, 1984, until January 5, 2007, when Wright voluntarily terminated his employment with Essis & Sons. 43. In the course of his employment with Essis & Sons, Wright was privy to Essis & Sons' confidential and proprietary information, including invoices and customer files of Essis & Sons, which contain the names, address, telephone numbers and credit information of individuals who have purchased products from Essis & Sons. 44. On or about January 4, 2007, just prior to Wright's resignation with Essis & Sons, representatives of Essis & Sons observed Wright taking boxes of customer files from Essis & Sons' store and placing them into the trunk of his vehicle. 45. After Fred Essis, the President of Essis & Sons, requested Wright to return all property belonging to Essis & Sons, Wright returned some, but not all, of Essis & Sons' confidential customer information. 46. Upon information and belief, Wright is now employed by M&Z Carpets, a direct competitor of Essis & Sons, and maintains contact with Essis & Sons' customers. 47. Wright has access to Essis & Sons' customers based solely on his possession of Essis & Sons' customer files, which Wright misappropriated from Essis & Sons. 48. The invoices and customer files of Essis & Sons constitute a "trade secret" under Pennsylvania's Uniform Trade Secrets Act because it is information that derives -9- independent economic value to Essis & Sons from not being generally known to, and not being readily ascertainable by, other persons who can obtain economic value from its disclosure or use. 49. Essis & Sons has invested substantial time, effort, and money in the acquisition and further development of this confidential business information. 50. Essis & Sons has taken reasonable steps to protect its trade secrets and confidential business information from disclosure. 51. Because Essis & Sons took reasonable efforts to protect the secrecy of its invoices and customer files, the invoices and customer files are not easily acquired or duplicated by others. 52. This confidential business information is unique to Essis & Sons and would be of great value to competitors such as M&Z Carpets. 53. Wright's use of trade secrets and confidential information of Essis & Sons, whether written or memorized, constitutes a violation of the Pennsylvania Uniform Trade Secrets Act. 12 Pa.C.S.A. §§ 5301-5308. 54. The use of Essis & Sons' trade secrets and confidential information by Wright has caused, and will cause substantial harm to Essis & Sons, places Essis & Sons at a competitive disadvantage, unfairly benefits Wright, and will cause Essis & Sons to lose customers through unfair and improper use of its confidential business information. 55. Essis & Sons has made repeated demands upon Wright to return its confidential business information, including its invoices and customer files, and to terminate all communication with Essis & Sons' customers. -10- 56. Despite demand, Wright has refused to return Essis & Sons' confidential business information that is still in his possession and he has refused to stop initiating contact with Essis & Sons customers. 57. Wright's misappropriation and misuse of Essis & Sons' confidential business information is willful, malicious, and continuing. 58. Essis & Sons is entitled to attorneys' fees due to Wright's willful and malicious misconduct. 12 Pa.C.S.A. § 5305. WHEREFORE, Essis & Sons, Inc. demands judgment in its favor and against Larry C. Wright in an amount in excess of the jurisdictional limits for arbitration, together with attorneys' fees, costs and such other relief as the Court deems just. McNEES WALLACE & NURICK LLC By Q Q Kimb rly A. Selemba I . D. No. 93535 Marcy L. McCullough I . D. No. 204358 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendant Essis & Sons, Inc. Dated: June 13, 2007 - 11 - 6 x b `+ 4 APR-19-2007 TH U 02:45 PM ESSIS & SONS FAX NO, 7176977797 P. 22/46 • NIT M ,NCW OYER 6o YxsRs ORIENTAL ROGS 9 CARPET - HARDWOOD • LAMINATE - CERAMIC - VINYL "NATUIIE OF EMPLOYMENT RELATIONSHIP" Nothing contained in the Employee Handbook (the "Handbook") is intended to constitute or be construed as an employment agreement between Essiss & Sons, Inc. and any employee or to provide any guarantee of a job or work. The Handbook should not be construed as giving any employee any right to continued employment for a definite period of time and any oral or written representations to the contrary are not valid. The content of the Handbook is for puposes of information only and represents guidelines and not binding obligations of Essis & Sons, Inc. All policies, benefits, plans, procedures and other matters contained in this Handbook may be modified, revoked, suspended, terminated, or changed, in whole or in part, at any time, with or without notice to employees. All disclaimers made by Essis & Sons, Inc, as to intent, interpretation or application of the material contained. in this Handbook are binding upon employees. This Handbook and its content, while providing guidelines, may not be applicable in all cases, in which event the personnel manager should be consulted. RECEIPT OF HANDBOOK ACKNOWLEDGED As an employee of Essis & Sons, Inc., I hereby represent and acknowledge that I am able to read and have read and understand the foregoing provisions concerning the nature of my employment relationship with Essis & Sons, Inc. and acknowledge my receipt of a copy of the Handbook. 4WAY AlxIG K 7- 4637 Jonestown Road 6220 Carlisle Pike 1320 Manheim Pike Harrisburg, PA 17109 Mechanicsburg, PA 17050 Lancaster, PA 17601 717-545-4248 717-697-9423 717-393-2880 /I z Employee: 96At- Address: mtc ?'f%?lrs«' /? Date: /&--A A -,d W 0-OV.. 2808 East Prospect Road 1363 Lincoln 1Wq East 3185 Carlisk Pike York, PA 17402 Qu=bersburg, PA 17201 New O*dbrd, PA 17351 717-757-0447 717-263-5772 717-624-0062 6 X?) b) APR-19-2007 THU 02;45 PM ESSIS & SONS FAX NO. 7176977797 P. 23/46 Addendum A Due to the nature of a salesperson's pay (draw against conunission) and the fact that showroom time is an essential element of success to both the salesperson and the company, Essis & Sons, Inc. !bas established guidelines for "Time Off'. Time Off will be afforded to salespersons only if it is accrued- To accrue Time Off, the following formula will apply. • one week after one y4w of employment • Two weeks after five bill years of continuous employment on the next January 15t A salesperson's pay is based-on commission A daily draw will be determined by management based on past and present performance and future VTectations. Every six months the draw will be reevaluated- If commission earnings are less than draw, then the draw could possibly be reduced. A draw will be calculated on showroom time and valid company related appointments. Also, earned Time Off will be eligible for a daily draw. No other time will be considxed for compensation. Salespersons with excess commission from the preceding month will be paid on the next pay after the I& of the month There will be no commissions paid for any and all jobs not completed or not paid at the time of employment termination. ?xwelk ? APR-19-2007 THU 02:40 PM ESSIS & SONS FAX NO, 7176977797 P. 05/46 untitled Termination of employment January 5,2007 Mr. Fred ESSis Essis and Sons, Inc. 6220 Carlisle Pike Mechanicsburg, Pa. 17050 Mr. Fred Essis, This is to give you notice that as of today, Tan. 5,2007, I am terminating my employment with Essis and Sons. Please foorward to me by mail all spiffs and commissions due me. Also, please close out my profit sharing account as soon as the contriabution for 2006 has been credited to me. send a check to Edward Jones as per attached letter, i would like the Profit sharing Plan to transfer ownership of my life insurance to me as soon as possible. I will take over all the premiums. sincerely, Larry C. Wright r ?. kc Page 1 ALL-STATO LEGAL BW-222-0510 ED11 RECYCLED ex?j? -? D APR-19-2007 THU 02:45 PM ESSIS & SONS FAX NO. 7176977797 P. 24/46 e m 1 S Q in e y L A b? N M p?NOp fd 01 W W } 4? ca N J?. .b. w 40 b -M (A , W ?C"ll I V V fA [Nd b m .1. w 10 m a° hNi $ P m $a a ti ti y ? ,fN.. = a i/l !p fA // iN M M OI N M In m a 2 C3 C3 S? Cb) H 9 i U w 46* to it 4W is 46 N i# M b M iR O '? 9Ai i Qi ® ?l A 041t • O al 01 i , •R CO m V N CR ?1 - 'Co i J i + a CD O/ r ?1 ? J OO KS m t y? to C> LOb N Ob b. N co y V O N fA N b/ M h N M fs PQ Ch N U i [i J• m N N C'i ^d m 0 ?J '+ Y .+ OO N d O p p O V O •? p S ? O pO O MO O S i 1 ? V O 6 4 py f P V ?j $ m O •O V CD pr W M ? M N 410 NN MN MM NN NN M to NM pN _ sr. i i o r o N ? ?? i ONp V -? N i ..• ON, ?mma Cd i .V• i N CD V ? ?+ O ; m ? Subject to the penalties of 18 Pa.C.S. § 4%M nelating to unswom falsification to authorities, 1, Richard R. Wilson, hereby certify that I am the( of Essis & Sons, inc_ In that opacity, I am authorized to make this Verification on its behalf. I further certify that the fads set forth in the foregoing document are true and correct to the best of my knowledge or information and belief. E.ssis & Sons, Inc. By is.?a..l.lsr... Richard R. Wilson Dated: June /3 , 2007 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served via first-class mail, postage prepaid, upon the following: Elliot A. Strokoff, Esq. Strokoff & Cowden, P.C. 132 State Street P.O. Box 11903 Harrisburg, PA 17108-1903 Kimberly . Selemba Attorney for Defendant Essis & Sons, Inc. Dated: June 13, 2007 C) '` D LARRY C. WRIGHT Plaintiff V. ESSIS & SONS, INC., Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOCKET NO. 07-3181 - CIVIL TERM ANSWER TO NEW MATTER The Plaintiff, Larry C. Wright, by and through counsel, Strokoff & Cowden, P.C., hereby files the following Answer to New Matter raised by Defendant in its Answer to his Complaint, and avers as follows: New Matter 13. Plaintiff incorporates herein by reference all allegations in paragraphs 1-12 of his Complaint. 14. Denied. This is a conclusion of law to which no response is required. To the extent a response is deemed required, the averments therein are denied. 15. Denied. This is a conclusion of law to which no response is required. To the extent a response is deemed required, the averments therein are denied. 16. Denied. This is a conclusion of law to which no response is required. To the extent a response is deemed required, the averments therein are denied. 17. Admitted. 18. Admitted. 19. Denied. The document speaks for itself. 20. Denied. It is denied that Plaintiff was provided with a copy of Addendum A attached to Defendant's Answer with New Matter and Counterclaim. 21. Denied. The document speaks for itself. 22. Denied. It is denied that Plaintiff was provided with a copy of Addendum A attached to Defendant's Answer with New Matter and Counterclaim. 23. Admitted. 24. Denied. This is a conclusion of law to which no response is required. To the extent that a response is deemed required, the response to paragraph 20, above, is incorporated herein by reference. 25. Denied. It is denied that Defendant paid Plaintiff all commissions for each and every job that had been completed and paid in full as of January 5, 2007. Further, it is denied that Addendum A represents an accurate or controlling statement of Defendant's obligations to pay Plaintiff the commissions he had earned. By way of further answer, the response to paragraph 20, above, is incorporated herein by reference. - 2 - 26. Denied. This is a conclusion of law to which no response is required. To the extent that a response is deemed required, the response to paragraph 20, above, is incorporated herein by reference. 27. Denied. Essis and Sons, through its president, Fred Essis, has no good faith basis for contesting Wright's demand for payment. 28. Denied. This is a conclusion of law to which no response is required. WHEREFORE, Plaintiff demands judgment in his favor, plus reasonable attorney fees, costs of suit and such other, further relief which this Court deems just and proper. COUNTERCLAIM Count I - Unjust Enrichment 29. Plaintiff hereby incorporates by reference paragraphs 1-28 of his Complaint and this Answer to New Matter. 30. Admitted. 31. Admitted. 32. Admitted. 33. Admitted. 34. Admitted. 35. Admitted. - 3 - 36. Denied. It is denied that, as of the time of Plaintiff's voluntary termination on January 5, 2007, Plaintiff's account with Defendant had a negative balance of $574.47. By way of further answer, the response to paragraph 20, above, is incorporated herein by reference. 37. Denied. By way of further answer, the responses to paragraphs 20 and 36, above, are incorporated herein by reference. 38. Denied. This is a conclusion of law to which no response is required. To the extent that a response is deemed required, the responses to paragraphs 20, 36 and 37, above, are incorporated herein by reference. 39. Denied. It is denied that the payment of $574.47 represented a benefit to which Plaintiff was not entitled. By way of further answer, the responses to paragraphs 20, 36, 37 and 38, above, are incorporated herein by reference. 40. Denied. This is a conclusion of law to which no response is required. To the extent that a response is deemed required, the responses to paragraphs 20, 36, 37, 38 and 39 above, are incorporated herein by reference. WHEREFORE, Plaintiff demands judgment in his favor, plus reasonable attorney fees, costs of suit and such other further relief which this Court deems just and proper. - 4 - Count II - Violation of Pennsylvania Uniform Trade Secrets Act 41. Plaintiff hereby incorporates by reference paragraphs 1-40 of his Complaint and this Answer to New Matter. 42. Admitted. 43. Admitted in part, denied in part. It is admitted that during the course of his employment with Defendant, Plaintiff was generally familiar with invoices and customer files of Defendant, which contain the names, addresses, telephone numbers and credit information of individuals who have purchased products from Defendant. By way of further answer, Plaintiff avers that he had access to, and was generally familiar with, only the information for customers to whom he had personally made sales; i.e., he had no access to, and no familiarity with, information for other customers of Defendant. It is denied that any such information referred to in this averment constitutes confidential and/or proprietary information to which Plaintiff was privy. This averment represents a conclusion of law to which no response is required. 44. Plaintiff objects to this averment on the grounds that it is unreasonably vague. It is not known who the "representatives of Essis & Sons" referred to in this averment are. To the extent that a response is deemed required, Plaintiff's response is admitted in part, denied in part. It is admitted that on or about January 4, 2007, Plaintiff placed two - 5 - boxes containing files relating to customers serviced by him into the trunk of his vehicle. By way of further answer, it was a routine business practice for Plaintiff, and other salesmen employed by Defendant, to periodically remove such files from Defendant's office in the course of conducting business. After reasonable investigation, Plaintiff is without personal knowledge as to who the "representatives of Essis & Sons" referred to in this averment are, or what such persons may or may not have observed; therefore, it is denied that "representatives of Essis & Sons" observed Plaintiff "taking boxes of customer files." 45. Admitted in part, denied in part. It is admitted that Plaintiff returned all, not just some, property belonging to Defendant. It is denied that said property included "confidential customer information." 46. Admitted in part, denied in part. It is admitted that Plaintiff is employed by M&Z Carpets and that M&Z Carpets is in the carpet business. Whether M&Z Carpets is a direct competitor of Defendant is a conclusion of law to which no response is required. To the extent that a response is deemed required, it is denied that M&Z Carpets is a direct competitor of Defendant. Whether certain persons are "Essis & Sons' customers," M&Z Carpets' customers, or both, or neither, is a conclusion of law to which no response is required. To the - 6 - extent that a response is deemed required, it is denied that Plaintiff "maintains contact with Essis & Sons" customers." 47. Denied. Whether certain persons are "Essis & Sons' customers" is a conclusion of law to which no response is required. To the extent that a response is deemed required, it is denied that Plaintiff has access to any person, whether or not alleged to be "Essis & Sons' customers," based solely on his possession of Defendant's customer files. It is denied that Plaintiff misappropriated any such files from Defendant. By way of further answer, the responses to paragraphs 43, 44 and 45 are incorporated herein. 48. Denied. This is a conclusion of law to which no response is required. To the extent a response is deemed required, the averment is denied. 49. Denied. This is a conclusion of law to which no response is required. By way of further answer, after reasonable investigation, Plaintiff is without sufficient knowledge to respond to this averment and therefore it is denied. Strict proof thereof, if relevant, is demanded at trial. 50. Denied. This is a conclusion of law to which no response is required. By way of further answer, after reasonable investigation, Plaintiff is without sufficient knowledge to respond to this averment and therefore it is - 7 - denied. Strict proof thereof, if relevant, is demanded at trial. 51. Denied. This is a conclusion of law to which no response is required. By way of further answer, after reasonable investigation, Plaintiff is without sufficient knowledge to respond to this averment and therefore it is denied. Strict proof thereof, if relevant, is demanded at trial. 52. Denied. This is a conclusion of law to which no response is required. To the extent a response is deemed required, the averment is denied. 53. Denied. This is a conclusion of law to which no response is required. To the extent a response is deemed required, the averment is denied. 54. Denied. This is a conclusion of law to which no response is required. To the extent a response is deemed required, the averment is denied. 55. Admitted in part, denied in part. It is denied that Defendant has made repeated demands upon Plaintiff to return any information, or to refrain from communicating with certain persons Defendant claims are its customers. It is denied that Plaintiff is in possession of any of the documents sought by Defendant, or that the identified documents constitute or contain confidential business information. It is further - 8 - denied that Plaintiff is engaged in any improper communication with "Essis & Sons' customers." 56. Denied. By way of further answer, the response to paragraph 55 is incorporated herein. 57. Denied. This is a conclusion of law to which no response is required. By way of further answer, the response to paragraph 55 is incorporated herein. 58. Denied. This is a conclusion of law to which no response is required. To the extent a response is deemed required, the averment is denied. WHEREFORE, Plaintiff demands judgment in its favor, plus reasonable attorney fees, expenses and costs pursuant to 12 Pa.C.S. § 5305, and such other further relief which this Court deems just and proper. STROKOFF & COWDEN, P.C. By: Elliot A. Strokoff I.D. No. 16677 Michael J. Plank I.D. No. 88446 DATE: 7/5/07 Strokoff & Cowden, PC 132 State Street PO Box 11903 Harrisburg, PA 17108-1903 (717) 233-5353 Attorney for Plaintiff - 9 - LARRY C. WRIGHT : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW ESSIS & SONS, INC., DOCKET NO. 07-3181 - CIVIL TERM Defendant VERIFICATION I, LARRY C. WRIGHT, certify that the statements made in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. 11?aAAV C"h4- _ C. IGHT DATE : -7/5)07 LARRY C. WRIGHT Plaintiff V. ESSIS & SONS, INC., Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOCKET NO. 07-3181 - CIVIL TERM CERTIFICATE OF SERVICE I, the undersigned, certify that I have this day served a true and correct copy of the foregoing Answer to New Matter by facsimile and first-class mail, postage prepaid, on the following person(s): Kimberly A. Selemba, Esquire McNees Wallace & Nurick LLC 100 Pine Street, PO Box 1166 Harrisburg, PA 17108 by facsimile: 260-1740 Dated: 7/5/07 By: G z- Michael J. Plank - 11 - v 1 ?1 4 ? r .5 ' • Ci'1 SHERIFF'S RETURN - REGULAR CASE NO: 2007-03181 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WRIGHT LARRY C VS ESSIS & SONS INC JASON VIORAL , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon ESSIS & SONS INC the DEFENDANT , at 0955:00 HOURS, on the 31st day of May , 2007 at 6220 CARLISLE PIKE MECHANICSBURG, PA 17055 RICH WILSON, MANAGER by handing to ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 10.56 Affidavit .00 Surcharge 10.00 .00 ??la Jf? 1Ch, 3 8. 5 6 Sworn and Subscibed to before me this day of , So Answers: R. Thomas Kline 06/01/2007 STROKOFF & COWDEN By : ?. De t Sheriff A. D. Elliot A. Strokoff, Esq. Strokoff & Cowden, P.C. 132 State Street PO Box 11903 Harrisburg, PA 17108-1903 (717) 233-5353 eas@strokoffandcowden.com LARRY C. WRIGHT Plaintiff V. ESSIS & SONS, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOCKET NO. 07-3181 - CIVIL TERM PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: The Plaintiff, Larry Wright, hereby discontinues his claims with prejudice. Respectfully submitted, STROKQFf-& COWDEN-F.C. Elliot A. Strokof , Esq. I.D. No. 16677 DATE: 6/26/09 132 State Stree , PO Box 11903 Harrisburg, P 17108-1903 (717) 233-535 Attorney for Larry Wright LARRY C. WRIGHT Plaintiff V. ESSIS & SONS, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : DOCKET NO. 07-3181 - CIVIL TERM CERTIFICATE OF SERVICE I, the undersigned, certify that I have this day served a true and correct copy of the foregoing by first-class mail, postage prepaid, on the following person(s): Kimberly A. Selemba, Esq. McNees Wallace & Nurick LLC 100 Pine Street, PO Box 1166 Harrisburg, PA 17108 Dated: 6/26/09 By: OF THE i=F' t !0MOTAPY 2009 JUN 29 FM 2, U6 LARRY C. WRIGHT, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION -LAW ESSIS & SONS, INC., DOCKET NO. 07-3181 - CIVIL TERM Defendant PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Please mark the above-captioned action discontinued with prejudice, including Defendant's Counterclaim, with each party bearing its or his own costs. McNEES WALLACE & NURICK LLC By FLU JIML Kimtierly A. Selemba I.D. No. 93535 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendant Essis & Sons, Inc. Dated: June 29, 2009 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing document was served upon this date by first class mail, postage prepaid, addressed as follows: Elliot A. Strokoff, Esquire Jennifer Nachamkin, Esquire Strokoff & Cowden, P.C. 132 State Street P.O. Box 11903 Harrisburg, PA 17108-1903 - QQ AU, Kimber A. Selemba Attorney for Defendant Essis & Sons, Inc. Dated: June 29, 2009 FILED-C,j F??? CF THE O-)r, > r;k9Y 2099 JU l 30 Pzi 1: 39 CUPd? w .:d7jJ -,Y