HomeMy WebLinkAbout07-4272INTRIERI ~ ASS4CtATES
Philip M. Intrieri, Esq.
615 North 48"' Street
Harrisburg, PA 17111-3625
(717) 564-6969
Pa. Attorney I.D. 76117
PMILawC~verizon.net
ROBERT N. WHITE IN THE COURT OF COMMON PLEAS
CUMBERS.-kf~D CO, PENNSYLVANIA
Plaintiff
v.
CIV{L ACTION: LAW
CIBER, INC., and ANN
GRIFFITHS, and DENNIS MILLER,
individually, and in their
capacity as ag®nts and
employees of CIBER, INC.
Defendants No. 07 -~f~.~dLCIViL TERM
NOT{CE TO DEFEND
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 South Bedford Street
Carlisle, PA 17013
(717) 249-3166
INTRIERI ~ ASSOCIATES
Philip M. Intrieri, Esq.
615 North 48"' Street
Harrisburg, PA 17111-3625
(717} 564-6969
Pa. Attorney I.D. 76117
PMI Law(d,~verizon, net
ROBERT N. WHITE
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND CO, PENNSYLVANIA
v.
CIVIL ACTION: LAW
CIBER, INC., and ANN
GRIFFITHS, and DENNIS MILLER,
individually, and in their
capacity as agents and
employees of CIBER, INC.
Defendants
No. 07- 'S~~'7~ CIVIL TERM
COMPLAINT
AND NOW, comes Plaintiff Robert N. White, by and through his attorney,
Philip M. Intrieri, Esq., who files this action for Breach of Employment Contract
and related claims, and in support thereof avers as follows:
PARTIES
1. Robert N. White, Plaintiff, is an adult individual, who resides at
13508 Galena Place, Tampa, Florida, 33626, and who at all times pertinent to
this complaint was employed and contracted as a consultant for CIBER, Inc., at
650 Wilson Lane, Mechanicsburg, PA, 17055.
2. CIBER, Inc., is a corporation with a main office at 5251 DTC
Parkway, Suite 1400, Greenwood ~Ilage, Colorado, 80111, and, at all times
pertinent hereto, trades and conducts business at 650 Wilson Lane,
Mechanicsburg, PA, 17055.
3. Ann Griffiths is a vice president/area director with CIBER, Inc,
(hereafter referred to as "Giber"), at 650 Wilson Lane, Mechanicsburg, PA, and at
all times pertinent to this complaint was an employee, agent, and servant of
Giber.
4. Dennis Miller is an account executive with Giber, at 650 Wilson
Lane, Mechanicsburg, PA, and at all times pertinent hereto was an employee,
agent and servant of Giber.
5. Mike Wingert and John Marks are Giber project managers, at 650
Wilson Lane, Mechanicsburg, PA, and at all times pertinent hereto were
employees, agents and servants of Giber. They are not named defendants.
FACTS
6. Robert White was employed as a computer and technical
consultant by Giber beginning May 27, 2005. On that date, he entered into and
signed an "Employment and Confidentiality Agreemen#", (hereafter ,the
"employment contract", or "contract"), a true and correct copy of which is
attached as Exhibit 1. Ann Griffiths signed on behalf of Giber.
7. Robert White's main assignment was to work with the Pennsylvania
Turnpike Commission on computer and technical issues under a contract entered
into between Giber and the Turnpike Commission. The assignment concerned a
software implementation, or "SAP" project, (hereafter, "SAP").
8. The contract between Giber and the Turnpike Commission has an
estimated gross value of $ 58 million, and is projected to run until October, 2008.
9. Between 1999 and 2005, Robert White held a similar consulting
position for the Turnpike Commission, pursuant to a contract between the
Tumpike Commission and Dataquest, Inc. Dataquest was owned by Dennis
Miller at that time.
10. Robert White's ending salary at Dataquest was $127.50 per hour.
11. Robert White's starting salary at Giber was $125.00 per hour, with a
40 hour work week.
2.
12. Prior to Robert White's formal employment with Ciber, White
assisted Ciber in securing its contract with the Turnpike Commission by working
in excess of one hundred hours on Ciber's Request for Proposal submission to
the Turnpike Commission. This work was done on a no-fee basis.
13. In 2005 and 2006, Robert White worked excess hours for Ciber for
no pay, and was directed to report such hours to Ciber as "contributed hours".
14. Such contributed time totaled 75 hours in 2005, and 145 hours in
2006. The value of such hours is $27,500.
15. In June, 2006, Robert White received an annual performance rating
from Ciber of "OE", or "Often exceeds requirements", which is the fourth highest
of five categories.
16. Robert White's employment contract with Ciber purports, at section
2, to be an agreement for employment at will. (See: Exhibit 1).
17. The employment contract states, at section 3.1, that rates of
compensation are set by Ciber, "in accordance with the general practice of the
Company". It further states that changes in compensation "shall not effect a
change in this Agreement in any other respect."
18. The employment contract states, at section 8.3, #hat the employee
is under no obligation to attend a training course, and that the Company is under
no obligation to approve a request to attend training. However, if employment
terminates within 90 days, the employee must reimburse the company for the
entire cost of training, including all travel and living expenses. The clear meaning
of this section is that Ciber would pay for training expenses. Otherwise, it would
not contain a reimbursement provision.
19. The employment contract states, at section 8.1, that upon
termination, the employee shall be paid all compensation earned and "any
necessary and reasonable business expenses incurred by employee..."
20. On or around August 31, 2006, Mike Wingert and John Marks, in
contravention of the employment contract, directed Robert White to attend two
SAP training courses, and to pay all costs associated with that training.
21. On or around September 1, 2006, Dennis Miller also directed White
to attend two SAP training courses and pay for them himself, and threatened
consequences if he did not comply with the order, including pay reductions and
termination. Miller further stated White's salary would be reviewed at a later
date.
3.
22. Accordingly, Robert White did in September, 2006, schedule,
attend, complete and pay for two SAP training courses. His total expenses lost,
including cost, airfare, auto expenses and meals, and loss of pay for two weeks
totaled $16, 496.71.
23. The directive of Ciber and its agents for Robert White to both attend
training and fund it himself was a clear violation of his employment contract.
(See: Exhibit 1, sec 8.3).
24. The directive of Ciber for Robert White to attend and fund training
was an abrogation of his employment contract.
25. The directive of Ciber to attend training or be fired was reasonably
interpreted and accepted by White to intend that if he did in fact attend and pay
for the training, continued employment would be promised.
26. Plaintiff White was in a bargaining position superior to that of a
normal employee, in that he had some 17 years technical experience and
significant contacts and relationships with the Turnpike Commission.
27. Ciber, through its actions and course of dealing, did confirm the
new implied contract by a) Accepting the substantial benefit of Robert White
funding his own training at a cost of $16, 496.71, and b) Continuing to employ
Robert White at the same rate of pay for the remainder of 2006.
28. In December, 2006, Robert White received an a-mail from Dennis
Miller indicating his compensation would be reduced from $125 per hour to $75
per hour, a 40 percent pay cut, effective January 1, 2007.
29. As a result of working some five months for a substantial decrease
in pay, and being unable to resolve the dispute, Robert White was forced to
resign on May 31, 2007.
CAUSES OF ACT10N
COUNT ONE: WRONGFUL TERMINATION
30. The averments in paragraphs 1-29 are incorporated herein as if
they were set forth in full.
4.
31. The presumption of at will employment can be overcome when the
employee offers additional consideration in return for a contract which can not be
terminated without just cause.
32. Additional consideration is found where the employee offers
employer a substantial benefit beyond his normal services, or when employee
undergoes substantial hardship.
33. Robert White, by attending training courses that, pursuant to his
original contract he was under no obligation to attend, and by funding training
expenses which, pursuant to his original contract he was under no obligation to
pay, did afford to Ciber additional consideration for a contract that could not be
terminated without just cause.
34. Funding training expenses of $6,496.71, and suffering a loss of pay
for two weeks to attend training of $10,000, for a total consideration of
$16,496.71, is a substantial hardship.
35. Robert White, by contributing some 220 hours over and above his
normal work weeks during the course of his employment, the value of which was
$27,500, afforded Ciber additional substantial consideration for a contract which
could not be terminated without just cause.
36. Robert White received an excellent employee evaluation in June,
2006.
37. Robert White, being forced to accept a pay cut of 40 percent, or be
fired, resigned for necessitous and compelling reasons, tantamount to a
termination or constructive discharge effective May 31, 2007.
38. Ciber did not have just cause for such termination.
39. Ciber's projec# with the Turnpike Commission, to which Plaintiff was
assigned, is expected to run through October, 2008.
40. The Plaintiff's loss of pay, as a direct and proximate result of the
actions of Ciber, andlor its agents acting with actual or apparent authority, from
June 1, 2007 to October 1, 2008, is $320, 000.
41. WHEREFORE, the Plaintiff prays this Honorable Court award him
damages of $320,000 for wrongful discharge.
5.
COUNT 2: BREACH OF CONTRACT
42. The averments in paragraphs 1-41 supra are incorporated herein
as if they were set forth in full.
43. Plaintiff Robert White had an employment contract with Ciber
pursuant to which he was under no obligation to attend or pay for training. (See:
Exhibit 1, sec. 8.3).
44. Robert White had an employment contract with Ciber pursuant to
which, in the case of voluntary or involuntary termination, Ciber agreed to pay
White many reasonable and necessary business expenses incurred by employee
in connection with employee's duties..." (See: Exhibit 1, sec. 8.1).
45. On or around August 31, 2006, and September 1, 2006, Ciber
employees and agents Mike Wingert, John Marks, and Dennis Miller, acting in
actual or apparent authority on behalf of Ciber, did direct White to attend and pay
for two SAP training courses, under threat of termination, thereby breaching
Section 8.3 of White's employment contract.
46. On July 2, 2007, after White's constructive discharge, Ciber
representative Susan Keeson declined to pay for White's training, which was a
reasonable and necessary business expense, thereby breaching section 8.1 of
White's employment contract.
47. Ciber is liable for the actions of its servants, agents, and employees
who at all times pertinent hereto acted in actual or apparent authority on behalf of
Ciber.
48. As a result of Ciber's breach of contract, Plaintiff White incurred a
loss for the SAP training of $ 16, 496.71, as stated in paragraph 22, supra.
49. WHEREFORE, Plaintiff Robert White prays this Honorable Court
award him damages of $ 16, 496.71, for breach of contract.
COUNT 3: PA. WAGE PAYMENT AND COLLECTION LAW
50. Paragraphs 1-49 are incorporated herein as though set forth in full.
51. Reimbursement of expenses is a wage supplement pursuant to
Pennsylvania's Wage Payment and Collection Law, (V1/PCL). 43 P.S. Sec.
260.2(a).
6.
52. The WPCL allows for a cause of action to recover employee
expenses.
53. Ciber has failed to reimburse employee Robert White for necessary
training expenses he incurred totaling $ 16,496.71, as outlined above.
54. The WPCL allows an employee, in a cause of action for recovery of
expenses improperly withheld, to claim reasonable attorney's fees. 43 P.S. Sec.
260.9a (f).
55. WHEREFORE, Plaintiff prays this Honorable Court award him
damages for unpaid training expenses of $ 16,496.71, and attorney's fees of
$1, 500.
COUNT 4: BREACH OF IMPLIED CONTRACT
56. The averments contained in paragraphs 1-55 are incorporated
herein as though set forth in full.
57. Plaintiff Robert White was employed by Ciber under a contract that
purports to be a contract of employment at-will.
58. Pursuant to White's contract, he was not obligated to attend
training, nor obligated to pay for training. (See: Exhibit 1, Sec. 8.3).
59. Robert White's main assignment for Ciber was to work on an SAP
implementation project with the Pa. Tumpike Commission.
60. On and around August 31, and September 1, 2006, Plaintiff was
approached by Ciber employees Wingert, Marks and Miller regarding a new
working relationship, under which White would attend and fund his own SAP
training, and use his enhanced talent on behalf of Ciber, to greater assist Ciber in
fulfilling its contract obligation to the Tumpike Commission.
61. Plaintiff White accepted the new arrangement, and in accordance
therewith scheduled, completed and personally funded two SAP courses. He
further continued to serve Ciber as an employee, continued to consult on the
Tumpike SAP assignment, and further, continued to receive his same pay rate.
T.
62. Ciber accepted the new arrangement through i#s actions, conduct,
and course of dealing, specifically by: a) Availing themselves of Plaintiff White's
enhanced value and SAP expertise on a critical and lucrative project with the
Tumpike Commission, b) Accepting the substantial benefit of White's $16,496
contribution to his own training, c) Continuing to employ Robert White, thereby
removing the threat of termination at-will, and d) Continuing to pay White at his
normal rate of pay, thereby removing the threat of a substantial pay reduction.
63. A reasonable analysis of the facts, course of conduct,
circumstances, and points in view of both parties, as well as the mutual
acceptances of the new arrangement, and in addition the mutual considerations
granted and received by both Plaintiff and Defendants, resulted in a new implied
contract of employment.
64. Pursuant to the new implied contract, provided that White paid for
training and used his enhanced expertise on behalf of Ciber, Ciber.would
continue to compensate him at his agreed upon rate of $125 per hour, or an
amount substantially similar, and would not terminate him without just cause.
65. On January 1, 2007, Ciber breached the implied contract by
unilaterally imposing a pay cut of 40 percent, which reduced the agreed upon
compensation of Robert White from $125 per hour to $75 per hour.
66. Robert White remained in service with Ciber from January 1, 2007,
to May 31, 2007, however being unable to resolve the dispute, he resigned on
May 31, 2007.
67. The substantial cut in pay imposed by Ciber was a breach of
implied contract, resulting in White's constructive discharge.
68. Plaintiff White's loss in compensation, as a direct result of the
defendant's breach of contract, from January 1 to May 31, 2007, totaled
$ 41,600.
69. Had Plaintiff White not been discharged, and had the Defendants
not breached the implied contract, White could have reasonably expected to
serve the Turnpike project as a consultant through October, 2008, an additional
16 months. His loss in compensation, from June 1, 2007 to October 1, 2008, is
an additional $ 320,000.
70. Plaintiff Robert White is entitled to the benefit of the bargain
entered into by the parties.
8.
71. WHEREFORE, Plaintiff prays this Honorable Court award him
damages of $ 361,600 for breach of implied contract, and such other relief as the
Court may deem just and proper.
INDIVIDUAL ACTIONS
COUNT 5: ANN GRIFFITHS
72. The averments of paragraphs 1-71 are incorporated herein as if
they were set forth in full, for all individual causes of action.
73. Ann Griffiths is liable, as signatory of the original employment
agreement individually, and as vice president and area director of Ciber, for the
actions of her servants, agents, and employees, for Counts One, Twv, Three and
Four. Such causes of action, and the facts in support thereof, and the relief
requested, are incorporated by reference as if they were set forth in full.
COUNT 6: DENNIS MILLER
74. Dennis Miller is liable individually, for acting on behalf of Ciber, or in
the alternative, for acting outside his actual or apparent authority, and as an
account executive of Ciber, for his actions and/or the actions of his servants,
agents or employees, for Counts One, Two, Three and Four. Such causes of
action, and the facts in support thereof, and the relief requested, are incorporated
by reference as if they were set forth in full.
Respectfully submitted,
DATE: 7 tl a
/~'
l
Philip M. Intrieri, Esq.
Attorney for Plaintiff
Robert N. White
9.
1NTRIERI ~ ASSOCIATES
Philip M. Intrieri, Esq.
615 North 48'" Street
Harrisburg, PA 17111-3625
(717) 564-6969
Pa. Attorney I.D. 76117
VERIFICATION
I hereby verify that the statements made in this COMPLAINT FOR
BREACH OF EMPLOYMENT CONTRACT, WRONGFUL DISCHARGE and
RELATED CLAIMS are true and correct. I understand that false statements
herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to
unsworn falsification to authorities.
Date
Mr. Robert N. White
Plaintiff
Philip M. Intrieri ~ Associates
615 North 48"' Street
Harrisburg, PA 17111-3625
(717) 564-6969
Attomey 1. D. # 76117
PMILaw~verizon. net
CERTIFICATE OF SERVICE
I, Philip M. Intrieri, Esq., do hereby certify that on July L~ ,
2007, I served a true and correct copy of the foregoing COMPlA1NT FOR
BREACH OF EMPLOYMENT CONTRACT AND RELATED CLAIMS, by causing
the documents to be deposited in the United States Mail, Certified Mail, Return
Receipt Requested, to the following:
CIBER, Inc.
Ms. Susan Keesen,
General Counsel
5251 DTC Parkway, Suite 1400
Greenwood Village, CO 80111
Ms. Ann Griffiths
Vice President/Area Director
CIBER, Inc.
650 Wilson Lane
Mechanicsburg, PA 17055
Mr. Dennis Miller,
Account Executive
CIBER, Inc.
650 Wilson Lane
Mechanicsburg, PA 17055
7 za o
~~~
Date
Philip M. Intrieri, Esq.
Attorney At Law
615 North 48"' Street
Harrisburg, PA 17111
(717) 564-6969
Atty. ID # 76117
. ~ ~ C~ ~~
EMPLOYMENT AND CONFIDENTIALITY AGREEMENT
(Employee Consultants)
This Agreement is entered into between CIBER, Inc., ("Company") and Robert N White
("Employee") as of this 27th day of May, 2005.
In consideration of the mutual covenants and conditions contained in this Agreement, the
parties agree as follows:
1. Obligations Of Employee. Company employs the Employee to serve and perform such
duties as assigned by Company, in manner, time and place Company directs. In the performance
of Employee's duties for Clients, Employee will exercise sound discretion and independent
judgment. Employee agrees (1} to work at Client locations and at premises designated by
Company, {2) to adhere to applicable Company and Client policies, procedures and requiremen#s
in performing the assigned work and (3) to exert Employee's best efforts and to perform in a
professional manner at all times while on assignment with Clients. Employee will not perform
services for others during the hours that Employee is performing services for the Company. .
Employee will not perform services for any other Company where such employment would
create a conflict of interest with the services performed under this Agreement.
2. Employment At'Will. Employee is and will remain an employee at will. Either
Employee or Company may terminate this Agreement and the employment relationship at any
time with or without cause or reason and with or without prior notice or warning. The terms and
conditions of this Agreement do not create an employment contract for a term or an employment
contract for an implied term. Any cause for discharge mentioned in this Agreement or in any
document maintained by Company (including, but not limited to, employment manuals or
recruiting materials) shall not in any way limit Company's right to discharge Employee or alter
Employee's at will status. Employee is entitled to the compensation, as defined herein, accrued
as of the date of termination but shall have no other claim against Company,
3. Compensation And Benefits. During employment with the Company, Employee shall
be entitled to the following compensation and benefits:
3.1 Company agrees to pay to the Employee at a compensation rate to be set by
Company in accordance with the general practice of Company. Any change in compensation
shall not effect a change in this Agreement in any other respect.
3.2 Employee is eligible to participate in the Company's benefit and compensation
plans generally available to employees of Company in employment categories similar to
Employee, including medical, dental and vision plans, life and disability insurance plans, and
401(k) savings plan, each according to their terms. Certain plans have delayed entry periods and
employees in certain employment categories are not eligible for some benefit programs. All
such benefit and compensation plans may be amended or discontinued from time to time in the
sole discretion of Company. ~
~ P~LA~N1't~'S
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1
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3.3 Employee is entitled to paid vacation, holidays, and personal leave (collectively
known as the Paid Time Off or PTO progra,~n) in accordance with the general practices of
Company as amended from time to time.
3.4 Company will reimburse Employee for all reasonable and necessary business
expenses incurred in carrying out Employee's duties under this Agreement, including approved
travel and entertainment expenses. Employee must present to Company, not less frequently than
monthly, an itemized account of expenses in a form required by Company.
3.5 All compensation and benefits to Employee shall be reduced by all federal, state,
local and other withholdings and similar taxes and payments required by applicable law.
Company may withhold amounts due it from amounts due under this Agreement to Employee.
4. Trade Secrets And Confideatial Information. Employee acknowledges that
confidential, proprietary and trade secret information and materials regarding Company and its
Clients maybe disclosed to Employee solely for the purpose of assisting Employee in
performing Employee's duties under this Agreement. Such information and materials are and
remain the property of Company and its Clients respectively. As used in this Agreement,
Confidential Information including without limitation all information belonging to Company or
its Clients relating to their respective services and products, customers, business methods,
strategies and practices, internal operations, pricing and billing, financial data, cost, personnel
information (including without limitation names, educational background, prior experience and
availability), customer and supplier contacts and needs, sales lists, technology, software,
computer programs, other documentation, computer systems, inventions, developments, and all
other information that might reasonably be deemed confidential. Trade Secrets means the whole
or any portion of any scientific or technical information, design, process, procedure, formula,
improvement, confidential business or financial information, listing or names, addresses, or
telephone numbers, or other information relating to any business or profession that is secret and
of value. Employee acknowledges that Employee may use such confidential information and
materials only during Employee's employment with the Company and solely for the purpose of
such employment. Employee's right to use such information expires.on Employee's discharge or
resignation. Except as specifically authorized in writing in advance by all owners of information
and materials, Employee agrees not to use Trade Secret and Confidential Information for
Employee's own benefit or for the benefit of any other person, or divulge to any person for any
reason, any such information and materials related to the business of Company, any of its
Clients, or their customers, clients and affiliates, both at any time during the term of this
Agreement and at any time after its termination. Employee agrees to take all reasonable actions,
including those requested by Company or Client, to prevent disclosure and preserve the security
of confidential information and materials. Employee further agrees not to directly or indirectly
disclose Employee's wage rate and terms to any person outside the Company, including to the
client or any competitor of the Company either during or after Employee's period of
employment.
5. Works for Hire. Employee agrees that during or after emplo}nnent Employee will
promptly inform and in writing disclose to Company and to any Client for whom Employee has
performed work all copyrighted materials or programs, programs or materials subject to being
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copyrighted, inventions, designs, improvements and discoveries (the "Works") which Employee
has or may have_rnade during Employee's employment that pertain or relate to the business of
Company or Client or to any research or experimental or developmental work carried on by
Company or Client or which result from or are suggested by any work performed by Employee
on behalf of Company or any of its Clients. A11 of such Works shall be works made for hire.
Disclosure shall be made whether or not the Works are conceived by the Employee alone or with
others and whether or not conceived during regular working hours. All such Works are the
exclusive property of the Company or the Client unless otherwise directed by Company in
writing. At the Company's or Client's sole expense, the Employee shall assist in obtaining
patents or copyrights on all such Works deemed patentable or subject to copyright by Company
or Client and shall assign all of Employee's right, title and interest, if any, in and to such Works
and execute all documents and do all things necessary to obtain letters, patent or vest Company
or Client with full and exclusive title thereto, and protect the same against infringement by
others. Employee will not be entitled to additional compensation for any Works made during the
course of Employee's employment.
Notwithstanding the above, Employee is not required to assign to Company any invention for
which no equipment, supplies, facility, or trade secret information of Company or its Clients was
used and that was developed entirely on Employee's own time, and (a) does not relate to the
business of Company or its Clients, {b) does not relate to any actual or demonstrably anticipated
research or development Company or its Clients, or (c) does not result from any work performed
by you for Company or its Clients.
6. Protection of Company's Business.
6.1 No Solicitation of Employees. During employment with the Company and for
one year thereafter, whether the termination of employment was voluntary or involuntary,
Employee will not: {a) induce, entice, hire or attempt to hire or employ any employee of the
Company or employee of a Company subcontractor on behalf of any individual or entity who
provides the same or similar services, processes or products as the Company, (b) induce or
attempt to induce any employee employed with the Company to leave the employ or cease doing
business with the Company, (c) knowingly assist any other individual or entity in doing any of
the above-proscribed acts, or (d) employ, engage or seek to employ or engage any individual or
entity who was formerly employed or engaged by Company, on behalf of Employee or any entity
(including a client of Company), within one (1) year of the termination of the employment or
engagement of such individual or entity with Company.
6.2 No Solicitation of Clients. During employment with the Company and for a
period of one (1) year after termination of such employment, whether such termination was with
or without cause, voluntary or involuntary, Employee will not, as a principal, company, partner,
agent, consultant, independent contractor or employee, (1) call upon, cause to be called upon,
solicit or assist in the solicitation of, any current client, former client or potential client of
Company for the purpose of selling, renting or supplying any product or service competitive with
the products or services of Company; (2) provide any product or services to any current client,
former client or potential client of Company which is competitive with the products or services
of Company; or (3) enter into any business arrangement with any other person or firm who is or
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has been an employee or subcontractor of Company within the one (1) year period immediately
_ preceding Employee's termination, This paragraph does not apply to work performed on behalf
of any individual or entity that is not a present or former customer of the Company or for wham
Employee has not performed services during the one (1) year prior to Employee's termination.
For purposes of this paragraph, "potential client" means any client to whom Employee's resume
was submitted or of which Employee otherwise had knowledge by reason of Employee's
relationship with Company.
Employee specifically acknowledges and agrees that if Employee is on an assignment
with a Company client, Employee will not continue to perform that same or similar assignment
individually or on behalf of another company for a period of one (1) year after the date the
Employee ceases to perform that assignment for the Company
Employee will not request, recommend or advise any client of Company to cease or
curtail doing business with Company or solicit, recommend or advise employees of Company to
terminate their employment with Company for any reason.
7. Employee Representations. Employee warrants that all information provided by
Employee (including without limitation resume, education, interview and references) in
consideration for employment by Company or for assignment to a Client is true and accurate.
Employee further warrants that Employee is not restricted by and has no conflict of interest
derived from any employment or other agreement and has no other interest or obligation that
would interfere with Employee performing work as directed under this Agreement. Employee
shall inform Company immediately should such a restriction or conflict arise. Employee
understands that any misstatement or lack of candor by Employee concerning Employee's
qualifications or availability to any Client may result in immediate discharge by Employee and
may subject Employee to damages for any harm caused to Company. Employee authorizes
Company to verify all information provided to Company by Employee and agrees to sign a
release authorizing former employers, educational institutions and other references to provide
information to Company if requested.
8. Effect Of Termination of Employment.
8.1 Payment of Compensation. Upon the termination of Employee's employment
with the Company, whether voluntarily or involuntarily, Employee shall be paid all
compensation earned as of the effective date of termination and, and reasonable and necessary
business expenses incurred by Employee ri connection with Employee's duties to the date of
termination, so long as such business expenses are timely submitted and approved consistent
with Company policy.
8.2 Return of Materials. Upon the termination of Employee's employment with
Company, whether voluntarily or involuntarily, Employee will personally and promptly return to
a Company representative all documents, records, notebooks, magnetic tapes, disks, or other
materials, including all copies, in Employee's possession or control which contain Confidential
Information of Company or Company's clients or any other information concerning Company,
its products, services, or customers, whether prepared by the Employee or others.
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8.3 Training Commitment. While employed by Company,_Employee may attend
educational courses. Employee understands that Employee is under no obligation to take an
offered course and that Company is under no obligation to approve Employee's request to attend
a course. If Employee decides to take certain courses and obtains appropriate approval from
Employee's manager, the following terms shall apply. If employment terminates for any reason
within 90 days of attending the class, Employee agrees to reimburse Company promptly for the
entire cost of the course including all associated travel and living expenses. If the Employee
leaves Company, voluntarily or involuntarily, 90 days or more after attending or completing the
course, Employee agrees to repay Company a percentage of the cost in accordance with the
Company Reimbursement Agreement. Company may, in its sole discretion, waive this
requirement depending on the circumstances.
8.4 Right of Offset. Employee agrees that Company will have the right to set off
against Employee's final wages and other compensation due to Employee any amounts paid or
advanced by Company including without limitation training expenses, business expenses,
advances, loans and draws.
9. Remedies for Breach. Employee acknowledges that any violation of this Agreement
will cause Employee to be subject to immediate termination and dismissal and shall subject
Employee to a claim for money damages by Company for any and all losses sustained by
Company as a result of breach of any provision of this Agreement including losses resulting
from the unauthorized release of any Confidential Information. Employee recognizes that the
Company's remedies at law maybe inadequate and that Company shall have the right to seek
injunctive relief in addition to any other remedy available to it. If Employee breaches this
agreement or any of the covenants contained herein, the Company has the right to and will seek,
issuance of acourt-ordered injunction as well as any and all other remedies and damages, to
compel the enforcement of the terms stated herein. If court action is necessary to obtain
injunctive relief, Employee shall be responsible for the Company's attorneys' fees and court
costs.
10. Assignment Employee may not transfer, assign or delegate Employee's duties and
obligations under this Agreement. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, executors, administrators, legal representatives,
successors and assigns. The Company may transfer or assign or delegate its duties and
obligations under this Agreement.
1 1. Construction of Agreement. Employee acknowledges and agrees that the restrictions
on Employee's employment and the geographical restrictions hereby imposed are fair and
reasonable and are reasonably required for the protection of the Company. Employee further
acknowledges and agrees that the restrictions in Paragraphs 4 through 6 are reasonable and
necessary for the protection of the Company's confidential information and trade secrets. if any
part of this Agreement is held unenforceable or invalid, the remaining parts thereof shall
continue to be enforceable. If the provisions imposing geographic or time restrictions are
deemed unenforceable by a court of competent jurisdiction, then such provisions for the purposes
of this Agreement shall include the maximwn geographic area or time period which a court of
5 Version 1.2
02/01/04
~~~
competent jurisdiction determines to be reasonable, valid and enforceable. To the extent that the
court permits blue penciling, the parties to this Agreement intend that the court will take all
action necessary to revise this Agreement so as to create a binding and enforceable Agreement.
12. Notices.. All notices shall be sent by registered mail, courier, or hand delivered to the
addresses on the signature page.
13. Resolution of Disputes. Employee agrees that any claim, controversy or dispute that
arises directly or indirectly in connection with Employee's employment or termination of
employment with Company or any associated or related disputes involving Company and any
employee, director, officer or agent of Company, whether arising in contract, statute, tort, fraud,
misrepresentation, discrimination, common law or any other legal theory, including but not
limited to, disputes relating to the making, performance or interpretation of this Agreement, and
claims or other disputes arising under Title VII of the Civil Rights Act of 1964, as amended; the
Civil Rights Act of 1991; the Age Discrimination in Employment Act of 1967, as amended; 42
U.S.C. §1981, §1981a, §1983, §1985 or §1988; the Family and Medical Leave Act of 1993; the
Americans with Disabilities Act of 1990, as amended; the Rehabilitation Act of 1973, as
amended; the Fair Labor Standards Act of 1938, as amended; the Employee Retirement Income
Security Act of 1974, as amended ("FRIBA"); state anti-discrimination acts; or any other similar
federal, state or local law or regulation, whenever brought, shall be brought in state or federal
court of competent jurisdiction. Nothing herein excuses Employee from his/her duty to exhaust
administrative remedies, where such a duty exists, prior to filing suit. By signing this
AGREEMENT, Employee voluntarily, knowingly and intelligently waives any right
Employee may have to a jury trial. CIBER also hereby voluntarily, knowingly, and
intelligently waives any right it might otherwise have to a jury trial.
14. Choice of Law. This Agreement shall be interpreted and construed in accordance with
the laws of the state in which the Company employs the Employee without regard to its conflicts
of law provisions.
15. Amendments. No modification or. waiver of the provisions of this Agreement will be
effective against either party unless given in writing signed by an authorized representative of
Company and by Employee.
16. Waiver. No delay or failure by a party in exercising any right, power or privilege under
this Agreement or under any other instruments given in connection with or pursuant to this
Agreement shall nnpair a such right, power or privilege or be construed as a waiver of or
acquiescence in any default. No single or partial exercise' of any such right, power or privilege
shall preclude the further exercise of such right, power or privilege, or the exercise of any other
right, power or privilege.
17. Survival. The provisions of this Agreement that by their sense and context are intended
to survive performance by either or both parties shall also survive the completion, expiration,
termination or cancellation of this Agreement.
Version 1.2
02/01/04
~~ ~
18. Duty to Cooperate. Employee agrees to fully cooperate with Company in connection
with any Legal or business matter relating to the services provided by Employee under this
Agreement.
19. Headings. Headings for the paragraphs herein are for convenience only and shall not be
construed in interpreting this Agreement.
20. Entire Agreement. This Agreement is the entire agreement between the Parties. This
Agreement supersedes any and all prior agreements and cannot be modified except in writing
signed by the parties.
IN WITNESS WHEREOF, the parties hereto have set their hands on the date and year first
written above.
CIBER,
BY'
Frinted Name: Arm Gri
Title: VP/Area Director
EMPLOYEE !
BY:~Ss"-~! 1~.~C~P~
Printed Name: Robert N White
Address: 650 Wilson Lane
Mechanicsburg, PA 17055
Address: 13508 Galena Pl
Tampa, FL 33626
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Salzmann Hughes, P.C.
BY: E. Ralph Godfrey, Esquire Attorney for Plaintiff
Attorney I.D. No. 77052
354 Alexander Spring Road, Suite 1
Carlisle, PA 17013
Telephone: 717-249-6333
Fax 717-249-7334
E-mail:rgodfrey@salzmannhughes.com
HARRY F. CHRISTIE and BARBARA IN THE COURT OF COMMON PLEAS,
CHRISTIE, CUMBERLAND COUNTY,
Plaintiffs PENNSYLVANIA o N -,,
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PRAECIPE TO ENTER APPEARANCE
Please enter the appearance of SALZMANN HUGHES, P.C. as counsel of record for the
Defendants Wireless Authority, Inc., Terry Dolan, and Sherry Fluke in the above-referenced
matter.
354 Alexander Spring Road
Suite 1
Carlisle, PA 17013
717-249-6333
Dated: 8/13/07 Attorneys for Defendant Wireless Authority,
Inc., Terry Dolan, and Sherry Fluke
SALZMANN HUGHES, P.C.
CERTIFICATE OF SERVICE
I, E. Ralph Godfrey, Esquire, hereby certify that I served a copy of the foregoing Praecipe
to Enter Appearance upon all parties to this action, by mailing a copy thereof on this 13th day of
August, 2007, to:
William L. Adler, Esquire
Adler & Adler, P.C.
PO Box 11933
125 Locust Street
Harrisburg, PA 17108
SALZMANN HUGHES, P.C.
E. Ralph God squire
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Salzmann Hughes, P.C.
BY: E. Ralph Godfrey, Esquire
Attorney LD. No. 77052
354 Alexander Spring Road
Suite 1
Carlisle, PA 17013
Telephone: 717-249-6333
Fax 717-249-7334
E-mail:rgodfrey@salzmannhughes.com
Attorney for Plaintiff
HARRY F. CHRISTIE and BARBARA
CHRISTIE,
Plaintiffs
vs.
WIRELESS AUTHORITY, INC, and
TERRY DOLAN and SHERRY FLUKE
Defendants
IN THE COURT OF COMMON
PLEAS, CUMBERLAND COUNTY,
PENNSYLVANIA
N0.07-4214
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CIVIL ACTION ~A~ ~' r> -~,
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NOTICE TO PLEAD ' - , ~ ~ .'
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You are hereby notified to plead to the enclosed New Matter and New Matter
Counterclaims within twenty (20) days from service hereof or a default judgment maybe
entered against you.
HUGHES, P.C.
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Dated:
1/. Ralph Godfrey, e
Attorney I.D. 52
354 Alexan pring Road
Suite 1
Carlisle, PA 17013
(717) 249-6333
Attorneys for Defendant Wireless Authority,
Inc., Terry Dolan, and Sherry Fluke
HARRY F. CHRISTIE and BARBARA
CHRISTIE,
Plaintiffs
vs.
WIRELESS AUTHORITY, INC, and
TERRY DOLAN and SHERRY FLUKE
Defendants
IN THE COURT OF COMMON
PLEAS, CUMBERLAND COUNTY,
PENNSYLVANIA
N0.07-4214
CIVIL ACTION -LAW
DEFENDANTS WIRELESS AUTHORITY, INC., TERRY DOLAN, AND
SHERRY FLUKE'S ANSWER AND NEW MATTER TO PLAINTIFFS'
COMPLAINT
Defendants, Wireless Authority, Inc., Terry Dolan and Sherry Fluke, by and
through their attorneys, Salzmann Hughes, P.C., answer the corresponding numbered
paragraphs of Plaintiffs' Complaint as follows:
1. Denied. After reasonable investigation, Defendants are without sufficient
information or knowledge to either admit or deny the allegations in this paragraph and
they are therefore denied. Strict proof thereof is demanded at time of trial.
2. Admitted.
3. Admitted.
4. Admitted in part; denied in part. It is admitted only that Defendant
Wireless Authority entered into a lease agreement dated January 1, 2003. The Lease
attached to the Complaint as Exhibit "A" is not a true and correct copy as it contains hand
written notes in Section One that were not contained in the original agreement.
5. Denied. Paragraph 5 is denied as a conclusion of law that does not require a
response. To the extent that a response maybe required, the Lease is a written document
that speaks for itself. Any averments of its content asserted by Plaintiffs are of their own
interpretation of the document.
6. Denied. Paragraph 6 is denied as a conclusion of law that does not require a
response. To the extent that a response may be required, the Lease is a written document
that speaks for itself. Any averments of its content asserted by Plaintiffs are of their own
interpretation of the document.
7. Denied. Paragraph 7 is denied as a conclusion of law that does not require a
response. To the extent that a response may be required, Defendants complied with all of
the terms and conditions of the Lease during the original term as well as the holdover
period. Furthermore, Defendants did not exercise the first option period because they did
not provide the required ninety (90) day written notice as required by the Lease. Strict
proof is demanded at the time of trial.
8. Denied. Paragraph 8 is denied as a conclusion of law that does not require a
response. To the extent that a response may be required, Defendants did not sublet the
premises to MobileWave Communications.
9. Denied. After reasonable investigation, Defendants are without sufficient
information or knowledge to either admit or deny the allegations in this paragraph and
they are therefore denied. Strict proof thereof is demanded at time of trial.
10. Denied. After reasonable investigation, Defendants are without sufficient
information or knowledge to either admit or deny the allegations in this paragraph and
they are therefore denied. Strict proof thereof is demanded at time of trial.
11. Denied. Paragraph 11 is denied as a conclusion of law that does not require
a response. To the extent that a response may be required, the Lease is a written document
that speaks for itself. Any averments of its content asserted by Plaintiffs are of their own
interpretation of the document.
12. Denied. Paragraph 12 is denied as a conclusion of law that does not require
a response. To the extent that a response maybe required, the Lease is a written document
that speaks for itself. Any averments of its content asserted by Plaintiffs are of their own
interpretation of the document.
13. Denied. Paragraph 13 is denied as a conclusion of law that does not require
a response. To the extent that a response maybe required, the Lease is a written document
that speaks for itself. Any averments of its content asserted by Plaintiffs are of their own
interpretation of the document. Furthermore, it is strictly denied that Defendants owe
Plaintiffs any amount of money. Strict proof is demanded at the time of trial.
14. Denied. After reasonable investigation, Defendants are without sufficient
information or knowledge to either admit or deny the allegations in this paragraph and
they are therefore denied. Furthermore, it is strictly denied that Defendants owe
Plaintiffs any amount of money. Strict proof is demanded at the time of trial.
15. Denied. Paragraph 15 is denied as a conclusion of law that does not require
a response. To the extent that a response may be required, the Lease is a written document
that speaks for itself. Any averments of its content asserted by Plaintiffs are of their own
interpretation of the document. Furthermore, it is strictly denied that Defendants owe
Plaintiffs any attorney fees. Strict proof is demanded at the time of trial.
16. Denied. Paragraph 16 is denied as a conclusion of law that does not require
a response. To the extent that an answer maybe required, it is strictly denied that
Defendants breached the Lease.
17. Denied. Paragraph 17 is denied as a conclusion of law that does not require
a response. To the extent that an answer maybe required, it is strictly denied that
Defendants breached the Lease or subleased the Premises.
18. Denied. Paragraph 18 is denied as a conclusion of law that does not require
a response. To the extent that a response maybe required Defendants did not breach the
Lease or owe Plaintiffs any amount of money. Strict proof is demanded at the time of trial.
WHEREFORE, Defendants aver that they are not liable to Plaintiffs in any amount
whatsoever and pray that the claim against them be dismissed and that they be awarded
costs of defense, including attorney fees, and such other and further relief as may be just and
appropriate.
NEW MATTER
By way of further answer and defense, Defendants aver the following New Matter in
accordance with Pennsylvania Rule of Civil Procedure 1030:
19. Paragraphs 1 through 18 are incorporated herein by reference.
20. Plaintiffs' action is barred by the applicable statute of limitations.
21. Plaintiffs' have failed to state a cause of action upon which relief can be
granted.
22. Plaintiffs' claim is barred or limited by the doctrine of res judicata, laches,
consent, fraud and/or collateral estoppel.
23. Plaintiffs' claim is barred in whole or in part by the doctrine of waiver.
24. Plaintiffs' claim is barred in whole or in part by the doctrine of accord and
satisfaction.
25. Plaintiffs' claim is barred in whole or in part by the doctrine of release.
26. Defendants did not breach the contract.
27. Defendants incorporate all defenses identified in the Parties' Lease.
28. Plaintiffs' claim is barred by their failure to satisfy all conditions precedent
to Defendants' performance under the Lease.
29. Plaintiffs' claim isbarred bynon-performance.
30. Plaintiffs' claim against Defendants lacks a good faith legal basis and is an
abuse of process, which entitles Defendants to attorney fees, costs and sanctions.
31. The original term of the lease was from January 1, 2003 through
December 31, 2005.
32. Defendants did not provide written notice as required by Section 2 to
Plaintiffs exercising their option to extend the lease agreement.
33. Because Defendants did not exercise their right to exercise the first option,
Section 24 of the Lease provides that the term shall be month to month and can be
terminated with a thirty (30) day written notice.
34. Defendants provided a thirty (30) day written notice as required by
Section 24 thereby terminating the Lease agreement.
WHEREFORE, Defendants aver that they are not liable to Plaintiffs in any amount
whatsoever and pray that the claim against them be dismissed and that they be awarded
costs of defense, including attorney fees, and that it may have such other and further relief as
may be just and appropriate.
SALZMANN HUGHES, P.C.
~ui~e i
Carlisle, PA 17Q13
(717) 249-6333
Attorneys for Defendants Wireless
Authority, Inc., Terry Dolan, and Sherry
Fluke
Dated: 8/13/07
VERIFICATION
We, Terry Dolan, individually and as President of Wireless Authority, Inc., and
Sherry Fluke hereby certify that the following facts set forth in the foregoing document
are based upon information which we have furnished to counsel, as well as upon
information which has been gathered by counsel and/or others acting on our behalf in this
matter. The language of the document is that of counsel and not our own. We have read
the document, and to the extent that it is based upon information which we have given to
counsel, it is true and correct to the best of my knowledge, information, and belief. To
the extent that the content of the document is that of counsel, we have relied upon such
counsel in making this Verification. We hereby acknowledge that the facts set forth in
the aforesaid document are made subject to the penalties of 18 Pa. C.S.A. §4904 relating
to unsworn falsification to authorities.
Dated: ~/~/~ 7
ry Dolan, individu y and as the representative of
Wireless Autho ' ,Inc.
l
Sherry Fluke
CERTIFICATE OF SERVICE
AND NOW, this 13th day of August 2007, I, E. Ralph Godfrey, Esquire, hereby
certify that I served a copy of the within Answer and New Matter this day by depositing
the same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed
to:
William L. Adler, Esquire
Adler & Adler, P.C.
PO Box 11933
125 Locust Street
Harrisburg, PA 17108
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ROBERT N. WHITE,
Plaintiff,
vs.
CIBER, INC. and ANN GRIFFITHS, and
DENNIS MILLER, individually and in their
capacity as agents and employees of CIBER,
INC.,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
N0.07-4272
CIVIL ACTION
ENTRY OF APPEARANCE
I`O THE PROTHONOTARY:
Kindly enter our appearances on behalf of defendants CIBER, Inc., Ann Griffiths
and Dennis Miller.
Dated: August 13, 2007
Respectfully submitted,
Natalie Grill Einsig (PA 89791)
PEPPER HAMILTON LLP
100 Market Street, Suite 200
Post Office Box 1181
Harrisburg, PA 17108-1181
Telephone: (717) 255-1155
Facsimile: (717) 238-0575
Email: einsign@pepperlaw.com
and
Susan K. Lessack (PA 53170)
Amy G. McAndrew (PA 75040)
PEPPER HAMILTON LLP
400 Berwyn Park, 899 Cassatt Road
Berwyn, PA 19312-1183
Telephone: (610) 640-7800
Facsimile: (610) 640-7835
Email: lessacks@pepperlaw. com
Email: mcandrewa@pepperlaw.com
Attorneys for Defendants
~~
CERTIFICATE OF SERVICE
I, Natalie Grill Einsig, hereby certify that on August 13, 2007, I caused to be
served a true and correct copy of the foregoing Entry of Appearance via First Class U.S. Mail,
postage prepaid, upon the following:
Philip M. Intrieri, Esquire
Intrieri & Associates
615 North 48`h Street
Harrisburg, PA 17111
Attorney for Plaintiff
Natalie Grill Einsig (PA 89791)
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ROBERT N. WHITE, IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff,
vs. NO. 07-4272
GIBER, INC. and ANN GRIFFITHS, and CIVIL ACTION
DENNIS MILLER, individually and in their
capacity as agents and employees of GIBER,
INC., :
Defendants.
NOTICE OF FILING OF NOTICE OF REMOVAL
TO THF, PROTHONOTARY:
Notice is hereby given that on August 13, 2007, defendants, GIBER, Inc., Ann
Griffiths and Dennis Miller, by their undersigned attorneys, filed a Notice of Removal of this
action from the Cumberland County Court of Common Pleas of the Commonwealth of
Pennsylvania to the United States District Court for the Middle District of Pennsylvania. A copy
of the Notice of Removal is attached hereto as Exhibit A.
Respectfully submitted,
~~ ~
Natalie Grill Einsig (PA 89791)
PEPPER HAMILTON LLP
100 Market Street, Suite 200
Post Office Box 1181
Harrisburg, PA 17108-1181
Telephone: (717) 255-1155
Facsimile: (717) 238-0575
Email: einsign@pepperlaw.com
and
Susan K. Lessack (PA 53170)
Amy G. McAndrew (PA 75040)
PEPPER HAMILTON LLP
400 Berwyn Park, 899 Cassatt Road
Berwyn, PA 19312-1183
Telephone: (610) 640-7800
Facsimile: (610) 640-7835
Email : lessacks@pepperlaw.com
Email: mcandrewa@pepperlaw.com
Dated: August 13, 2007 Attorneys for Defendants
-2-
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Fennsylv~.nia Middle District Version 3.0.5
Civil and Miscellaneous Initial Pleadings
3:02-at-06000 Plaintiff v. Defendant
United States District Court
Middle District of Pennsylvania
Notice of Electronic Filing
Page 1 of 2
The following transaction was entered by Einsig, Natalie on 8/13/2007 at 9:36 AM EDT and filed on
8/13/2007
Case Name: Plaintiff v. Defendant
Case Number: 3:02-at-6000
Filer:
Document Number: 79fi
Docket Text:
Notice of Removal Case Title: Robert N. White vs. Ciber, Inc. and Ann Griffiths, Dennis Miller; Court
Name: Cumberland County Court of Common Pleas. Action happened in Cumberland County. Filing
fee $ 350, receipt number 1090050.. (Attachments: # (1) Exhibit(s) A# (2) Exhibit(s) B# (3) Exhibit(s)
C)(Einsig, Natalie)
3:02-at-6000 Notice has been electronically mailed to:
3:02-at-6000 Filer will deliver notice by other means to::
The following document(s) are associated with this transaction:
Document description:Main Document
Original filename:n/a
Electronic document Stamp:
[STAMP dcecfStamp_ID=1027698419 [Date=8/13/2007] [FileNumber=1696895-0
][6ba930f7d84c36ce3b5a4e32e024d66fb5ff9c63a82710e9e5a2a6231e6d04b686d
00948344ef5cf7d7136a45b91a7ebe5535d4ea992822e00892f044d6bcdbfJ}
Document description:Exhibit(s) A
Original filename:n/a
Electronic document Stamp:
[STAMP dcecfStamp_ID=1027698419 [Date=8/13/2007] [FileNumber=1696895-1
][Sb10998b345c7c8647ef28b19509d7a82de048c86dbdb8e18d4837adb2cf8b1415c
e9504ae5dc87d86c1c6f90cbf73fd9ad49f956b49dd7f5e94ee8754289138]]
Document description:Exhibit(s) B
Original filename:n/a
Electronic document Stamp:
[STAMP dcecfStamp_ID=1027698419 [Date=8/13/2007] [FileNumber=1696895-2
[159d1'S292323006d25d422cdeb7e418b150e3c80ab724d5e49864df4d37acfdde54
7b5301ce8ca49c048268ef37406efa87df1702adeaa69ced68e5b74da4a0d]]
Document description:Exhibit(s) C
hops:!!ecf.pamd.uscourts.govJcgi-bin/Dispatch.pl`?933200504193319 8/13/2007
Pennsylvania Middle District Version 3.0.5
Original filename:r-/a
Electronic document Stamp:
(STAMP dceci'Stamp_ID=1027698419 [Date=8/13/2007] [FileNumber=1696895-3
](2d80a3a7b30b99e5d9b4b292b6b9b75c5bd42d3f8091b89f702e781ba2e890e26ae
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Page 2 of 2
https://ecf.pamd.uscourts.govicgi-bin/Dispatch.pl?933200504193319 8/13/2007
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ROBERT N. WHITE, ELECTRONICALLY FILED
Plaintiff, NO.
vs. :
CIBER, INC. and ANN GRIFFITHS,
and DENNIS MILLER, individually
and in their capacity as agents and
employees of CIBER, INC.,
Defendants. JURY TRIAL DEMANDED
.NOTICE OF REMOVAL
Defendants, CIBER, Inc. ("CIBER"), Ann Griffiths ("Griffiths") and
Dennis Miller ("Miller") (collectively "defendants") hereby remove this action
from the Cumberland County Court of Common Pleas of the Commonwealth of
Pennsylvania, pursuant to 28 U.S.C. § 1441. In support thereof, defendants aver as
follows:
1. On or about July 20, 2007, plaintiff Robert N. White
("plaintiffl' or "White") commenced this action by filing a complaint in Civil
Action in the Cumberland County Court of Common Pleas of the Commonwealth
of Pennsylvania, Docket No. 07-4273 ("the Complaint"). A true and correct copy
of the Complaint is attached hereto as Exhibit A.
2. Plaintiff served the Complaint on defendants fewer than thirty
(30) days from the date of removal.
GROUNDS FOR REMOVAL
3. This Court has original jurisdiction over this civil action
pursuant to 28 U.S.C. § 1332(a)(3), because it is between citizens of different
states, and the amount in controversy exceeds $75,000. Accordingly, defendants
may remove the action to this Court pursuant to 28 U.S.C. § 1441(a).
4. The Complaint alleges that plaintiff White is an individual who
resides in Florida. (Complaint at ¶ 1).
5. The Complaint further alleges that defendant CIBER, Inc. is a
corporation with its main office in Colorado and which conducts business in
Pennsylvania. (Complaint at ¶ 2.)
6. Additionally, the Complaint alleges that defendant Griffiths and
defendant Miller are individuals who are employees of CIBER at CIBER's
location in Mechanicsburg, Pennsylvania. (Complaint at ¶¶ 3-4.)
-2-
7. Defendant Griffiths is a resident of the Commonwealth of
Pennsylvania. See Certification of Ann Griffiths in Support of Defendants' Notice
of Removal, attached hereto as Exhibit B.
8. Defendant Miller is a resident of the Commonwealth of
Pennsylvania. See Certification of Dennis Miller in Support of Defendants' Notice
of Removal, attached hereto as Exhibit C.
9. The amount in controversy exceeds Seventy Five Thousand
Dollars ($75,000), in that plaintiff alleges in the Complaint that "The Plaintiff s
loss of pay, as a direct and proximate result of the actions of CIBER and/or its
agents acting with actual or apparent authority, from June 1, 2007 to October 1,
2008, is $320,000." (Complaint at ¶ 40.)
10. Venue is proper under 28 U.S.C. §§ 123(a)(1) and 1441(a)
because the United States Court for the Middle District of Pennsylvania is the
federal district embracing the Cumberland County Court of Common Pleas.
11. This Notice is timely, as it is being filed fewer than thirty (30)
days after service of the Complaint. See 28 U.S.C. 1446(b).
12. A copy of this Notice will be filed with the Cumberland County
Court of Common Pleas as required by 28 U.S.C. § 1446(d).
-3-
13. A copy of this Notice will be served upon plaintiff, as required
by 2$ U.S.C. § 1446(d).
WHEREFORE, defendants hereby remove this action from the
Cumberland County Court of Common Pleas of the Commonwealth of
Pennsylvania to the United States District Court for the Middle District of
Pennsylvania. That Court shall proceed no further unless and until the case is
remanded.
Respectfully submitted,
sl Natalie Grill Einsig
Natalie Grill Einsig (PA .89791)
PEPPER HAMILTON LLP
100 Market Street, Suite 200
P.O. Box 1181
Harrisburg, PA 17108-1181
Phone: (717) 255-1155
Fax: (717) 238-0575
Email: einsign@pepperlaw.com
and
Susan K. Lessack (PA 53170)
Amy G. McAndrew (PA 75040}
PEPPER HAMILTON LLP
400 Berwyn Park, 899 Cassatt Road
Berwyn, PA 19312-1183
Telephone: (610) 640-7800
Facsimile: (610) 640-7835
Email : lessacks@pepperlaw.com
Email: mcandrewa@pepperlaw.com
Dated: August 13, 2007 Attorneys for Defendants
-4-
CERTIFICATE OF SERVICE
I hereby certify that on August 13, 2007, a copy of the foregoing
Notice of Removal was filed electronically and should be served upon the
following individual via First Class U.S. Mail, postage prepaid, upon the
following:
Philip M. Intrieri, Esquire
Intrieri & Associates
615 North 48`h Street
Harrisburg, PA 17111
Attorney for Plaintiff
s/ Natalie Grill Einsi~
Natalie Grill Einsig (PA 89791)
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lNTRIERI & ASSOCIATES - c> b
Philip M. Intrieri, Esq.
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ROBERT N. WHITE IN THE COURT OF COMMON P
EA~
CUMBERLAND CO, PENNSYLVANIA
Plaintiff
v. CIVIL ACTION: LAW
CIBER, INC., and ANN
GRIFFITHS, and DENNIS MILLER,
individually, and in their
capacity as agents and
employees of CIBER, INC.
Defendants No. 07 -y~'7a- CIVIL TERM
NOTICE TO DEFEND
YOU HAVE SEEN 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 objecctions 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 maybe 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 South Bedford Street
Carlisle, PA 17013
(717) 249-3166 ~'~':~~~~'~"..~°t ~a:~~~~:j~ ~~Mr~'i`~~
,.,. .~~ot, l ~^'*n ~t~tb tl~t tfi~' h~~.
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INTRIERI & ASSOC{AYES
Philip M. Intrieri, Esq.
615 North 48~' Street
Harrisburg, PA 1 71 1 1-3625
(797) 564.6969
Pa. Attorney I.D. 76117
PMILaw~verizon.net
ROBERT N. WHITE
IN THE COURT OF COMMON PLEAS
CUMBERLAND CO, PENNSYLVANIA
Plaintiff
v.
CIVIL ACTION: LAW
CIBER, INC., and ANN
GRIFFITHS, and DENNIS MILLER,
individually, and in their
capacity as agents and
employees of CIBER, INC.
Defendants
No. 07- ~1~~ CIVIL TERM
COMPLAINT
AND NOW, comes Plaintiff Robert N. White, by and through his attorney,
Philip M. Intrieri, Esq., who files this action for Breach of Employment Contract
and related claims, and in support thereof avers as follows:
PARTIES
1. Robert N. White, Plaintiff, is an adult individual, who resides at
13508 Galena Place, Tampa, Florida, 33626, and who at all times pertinent to
this complaint was employed and contracted as a consultant for CIBER, Inc., at
650 Wilson Lane, Mechanicsburg, PA, 17055.
2. CIBER, Inc., is a corporation with a main office at 5251 DTC
Parkway, Suite 1400, Greenwood Village, Colorado, 80111, and, at all times
pertinent hereto, trades and conducts business at 650 Wilson Lane,
Mechanicsburg, PA, 17055.
3. Ann Griffiths is a vice president/area director with CIBER, tnc,
(hereafter referred to as "Giber"), at 650 Wilson Lane, Mechanicsburg, PA, .and at
ail times pertinent to this complaint was an employee, agent, and servant of
Giber.
4. Dennis Miller is an account executive with Giber, at 650 Wilson
Lane,. Mechanicsburg, PA, and at all times pertinent hereto was an employee,
agent and servant of Giber.
5. Mike Wingert and John Marks are Giber project managers, at 650
Wilson Lane, Mechanicsburg, PA, and at all times pertinent hereto were
employees, agents and servants of Giber. They are not named defendants.
FACTS
6. Robert White was employed as a computer and technical
consultant by Giber beginning May 27, 2005. On that date, he entered into and
signed an "Employment and Confidentiality Agreement", (hereafter ,the
"employment contract", or "contract"), a true and correct copy of which is
attached as Exhibit 1. Ann Griffiths signed on behalf of Giber.
7. Robert White's main assignment was to work with the Pennsylvania
Turnpike Commission on computer and technical issues under a contract entered
into between Giber and the Turnpike Commission. The assignment concerned a
software implementation, or "SAP" project, (hereafter, "SAP'S.
8. The contract between Giber and the Turnpike Commission has an
estimated gross value of $ 58 million, and is projected to run until October, 2008.
9. Between 1999 and 2005, Robert White held a similar consulting
position for the Turnpike Commission, pursuant to a contract between the
Turnpike Commission and Dataquest, Inc. Dataquest was owned by Dennis
Miller at that time.
10. Robert White's ending salary at Dataquest was $127.50 per hour.
11. Robert White's starting salary at Giber was $125.00 per hour, with a
40 hour work week.
2.
12. Prior to Robert White's formal employment with Ciber, White
assisted Ciber in securing its contract with the Turnpike Commission by working
in excess of one hundred hours on Ciber's Request for Proposal submission to
the Turnpike Commission. This work was done on a no fee basis.
13. In 2005 and 2006, Robert White worked excess hours for Ciber for
no pay, and was directed to report such hours to Ciber as "contributed hours".
14. Such contributed time totaled 75 hours in 2005, and 145 hours in
2006. The value of such hours is $27.,500.
15. In June, 2006, Robert White received an annual performance rating
from Ciber of "OE", or "Often exceeds requirements", which is the fourth highest
of five categories.
16. Robert White's employment contract with Ciber purports, at section
2, to be an agreement for employment at will. (See: Exhibit 1). .
17. The employment contract states, at section 3.1, that rates of
compensation are set by Ciber, "in accordance with the general praetlce of the
Company". It further states that changes. in compensation "shat) not effect a
change in this Agreement in any other respect."
18. The employment contract states, at section 8.3, that the employee.
is under no obligation to attend a training course, and that the Company is under
no obligation to approve a request to attend training. However, if employment
terminates within 90 days, the employee must reimburse the company for the
entire cost of training, including all travel and living expenses. The clear meaning
of this section. is that Ciber would pay for training expenses. Otherwise, it would
not contain a reimbursement provision.
19. The employment contract states, at section 8.1, that upon
termination, the employee shall be paid all compensation earned and "any
necessary and reasonable business expenses incurred by employee..."
20. On~or around August 31, 2006, Mike Wingert and John Marks, in
contravention of the employment contract, directed Robert White to attend two
SAP training courses, and to pay all costs associated with that training. I_
21. On or around September 1, 2006, Dennis Miller also directed White
to attend two SAP training courses and pay far them himself, and threatened
consequences if he did not comply with the order, including pay reductions and
termination. Miller further stated White's salary would be reviewed at a later
date.
3.
22. Accordingly, Robert White did in September, 2006, schedule, ~
attend, complete and pay for two SAP training courses. His total expenses lost,
including cost, airfare, auto expenses and meals, and loss of pay far two weeks ~
totaled $16, 496.71.
1
23. The directive of Ciber and its agents for Robert White to both attend i
training and fund it himself was a clear violation of his employment contract.
(See: Exhibit 1, sec 8.3). i
24. The directive of Ciber for Robert White to attend and fund training
was an abrogation of his employment contract.
25. The directive of Ciber to attend training yr be fired was reasonably
interpreted and accepted by Wh~e to intend that. if he did in fact attend and pay.
for the training, continued employment would be premised.
26. Plaintiff White was in a bargaining position superior to that of a
normal employee, in that he had some 17 years technical experience and
significant contacts and relationships with the Turnpike Commission.
27. Ciber, through its actions and course of dealing, did confirm the
new implied contract by a) Accepting the substantial benefit of Robert White
funding his own training at a cost of $16, 496.71, and b) Continuing to employ.
Robert White at the same rate of pay for the remainder of 2006.
28. In December, 2006, Robert White received an e-mail from Dennis
Miller indicating his compensation would be reduced from $125 per hour to $75
per hour, a 40 percent pay cut, effective January 1, 2007.
29. As a result of working some five months for a substantial decrease
in pay, and being unable to resolve the dispute, Robert White was forced to
resign on May 31, 2007.
CAUSES OF ACTION
COUNT ONE: WRONGFUL TERMtNAT1ON
30. The averments in paragraphs 1-29 are incorporated herein as if
they were set forEh in full.
4.
31. The presumption of at will employment can be overcome when the
employee offers additional consideration in return for a contract which can not be
terminated without just cause.
32. Additional consideration is found where the emp{oyes offers
employer a substantial benefit beyond his normal services, or when employee
undergoes substantial hardship.
33. ~ Robert White, by attending training courses that, pursuant to his
original contract he was under no obligation to attend, and by funding training
expenses which, pursuant to his original contract he was under no obligation to
pay, did afford to Ciber additional consideration for a contract that could not be
terminated without just cause.
34. Funding training expenses of $fi,496.71, and suffering a loss of pay
for two weeks to attend training of $10,000, for a total consideration of
$16,496.71, is a substantial hardship.
35. Robert White, by contributing some 220 hours over and above his .
normal work weeks during the course of his employment, the value of which was
$27,500, afforded Ciber additional substantial consideration fior a contract which
could not be terminated without just cause.
38. Robert White received an excellent employee evaluation in June,
2006.
37. Robert White, being forced to accept a pay cut of 40 percent, or be
fired, resigned for necessitous and compelling reasons, tantamount to a
termination or constructive discharge effective May 31, 2007.
38. Ciber did not have just cause for such termination.
39. Ciber's project with the Turnpike Commission, to which Plaintiff was
assigned, is expected to run through October, 2008.
40. The Plaintiff s loss of pay, as a direct and proximate result of the
actions of Ciber, and/or its agents acting with actual or apparent authority, from
June 1, 2007 to October 1, 2008, is $320,000.
41. WHEREFORE, the Plaintiff prays this Honorable Court award him
damages of $320,000 for wrongful discharge.
5.
COUNT 2: BREACH OF CONTRACT
42. The averments in paragraphs 1-41 supra are incorporated herein
as if they were set forth in full
43. Plaintiff Robert White had an employment contract with Ciber.
pursuant to which he was under no obligation to attend or pay for training. (See:
Exhibit 1, sec. 8.3).
44. Robert White had an employment contract with Ciber pursuant to
which, in the case of voluntary or involuntary termination, Ciber agreed to pay
White °any reasonable and necessary business expenses incurred by employee
in connection with employee's duties..." (See: Exhibit 1, sec. 8.1},
45. On or around August 31, 2006, and September 1, 2006, Ciber
employees and agents Mike Wingert, John Marks, and Dennis Miller, acting in
actual or apparent authority on behalf of Ciber, did direct White to attend and pay
for two SAP training courses, under threat of termination, thereby breaching
Section 8.3, of White's employment contract.
46. On July 2, 2007, after White's constructive discharge, Ciber
representative Susan Keeson declined to pay for White's training, which was a
reasonable and necessary business expense, thereby breaching section 8.1 of
White's employment contract. .
47. Ciber is liable for the actions of its servants, agents, and employees
who at all times pertinent hereto acted in actual or apparent authority on behaff of
Ciber.
48. As a result of Ciber's breach of contract, Plaintiff White incurred a
loss for the SAP training of $ 16, 496,71, as stated in paragraph 22, supra,
49. WHEREFORE, Plaintiff Robert White prays this Honorable Court
award him damages of $ 16, 496.71, for breach of contract.
COUNT 3: PA. WAGE PAYMENT AND COLLECTION LAW
50. Paragraphs 1-49 are incorporated herein as though set forth in full.
51. Reimbursem~n# of expenses is a wage supplement pursuant to
Pennsylvania's Wage Payment and Collection Law, (UVPCL). 43 P.S. Sec.
260.2(a).
6.
52. The WPCL allows for a cause of action to recover employee
expenses.
53. Ciber has failed to reimburse. employee Robert White for necessary
training expenses he incurred totaling $ 16,496.71, as outlined above.
54. The WPCL allows an employee, in a cause of action for recovery of
expenses improperly withheld, to claim reasonable attorney's fees. 43 P.S. Sec.
260.9a (f).
55. WHEREFORE, Plaintiff prays this Honorable Court award him
damages for unpaid training expenses of $ 16,496.71, and attorney's fees of
$1, 500.
COUNT 4; BREACH OF IMPLIED CONTRACT
56. The averments contained in paragraphs 1-55 are incorporated
herein as though set forth in full.
57. Plaintiff Robert White was employed by Ciber under a contract that
purports to be a contract of employment at-will.
58. Pursuant to White's contract, he was not obligated to attend
training, nor obligated to pay for training. (See: Exhibit 1, Sec. 8.3).
59. Robert White's main assignment for Ciber was to work on an SAP
implementation project with the Pa. Turnpike Commission.
60. On and around August 31, and September 1, 2006, Plaintiff was
approached by Ciber employees Wingert, Marks and Miller regarding a new
working relationship, under which White would attend and fund his own SAP
training, and use his enhanced talent on behalf of Ciber, to greater assist Ciber in
fulfilling its contract obligation to the Turnpike Commission.
61. Plaintiff White accepted the new arrangement, and in accordance
therewith scheduled, completed and personally funded two SAP courses. He
further continued to serve Ciber as an employee, continued to consult on the
Turnpike SAP assignment, and further, continued to receive his same pay rate,
7.
62. Ciber accepted the new arrangement through its actions, conduct,
and course of dealing, specifically by: a} Availing themselves of Plaintiff White's
enhanced value and SAP expertise on a critical and lucrative project with the
Turnpike Commission, b) Accepting the substantial benefit of White's $ 16,496
contribution to his own training, c} Continuing to employ Robert White,~thereby
removing the threat of termination at-will, and d) Continuing to pay White at-his
normal rate of pay, thereby removing the threat of a substantia( pay reduction.
63. A reasonable analysis of the facts, course of conduct,
circumstances, and points in view of both parties, as well as the mutual
acceptances of the new arrangement, and in addition the mutual considerations
granted and received by both Plaintiff and Defendants, resulted in a new implied
contract of employment.
64. Pursuant to the new implied contract, provided that White paid for
training and used his enhanced expertise on behalf of Ciber, Ciber would
continue to compensate him at his agreed upon rate of $125 per hour, or an
amount substantially similar, and would not tem~inate him without just cause.
85. On January 1, 2007, Ciber breached the implied contract by
uriifaterally imposing a pay cut of 40 percent, which reduced the agreed upon
compensation of Robert White from $125 per hour to $75 per hour.
66. Robert White remained in service with Ciber from January 1, 2007,
to May 31, 2007, however being unable to resolve the dispute, he resigned on
May 31, 2007.
67. The substantial cut in pay imposed by Ciber was a breach of
implied contract, resu{ting in White's constructive discharge.
68. Plaintiff White's loss in compensation, as a direct result of the
defendants breach of contract, from January 1 to May 31, 2007, totaled
$ 41,600.
69. Had Plaintiff White not been discharged, and had the Defendants
not breached the implied contract, White could have reasonably expected to
serve the Turnpike project as a consultant through October, 2008, an additions{
16 months. His loss in compensation, from June 1, 2007 to October 1, 2008, is
an additional $ 320,000. .
70. Plaintiff Robert White is entitled to the benefit of the bargain
entered into by the parties.
8.
71. WHEREFORE, Plaintrff prays this Honorable Court award him
damages of $ 361;600 for breach of implied contract, and such other relief as the
Court may deem just and proper.
INDIVIDUAL. ACTIONS
COUNT 3: ANN GRIFFITHS
72. The averments of paragraphs 1-71 are incorporated herein as if
they were set forth in full, far all individual causes of action.
73. Ann Griffiths is liable, as signatory of the original employment
agreement individually, and as vice president and area director of Ciber, for the
actions of her servants, agents, and employees, for Counts One, Two, Three and
Four. Such causes of action, and the facts in support thereof, and the relief
requested, are incorporated by reference as if they were set forth in full.
COUNT 6: DENNIS MILLER
74. Dennis Miller is liable individually, for acting on behalf of Ciber, or in
the alternative, for acting outside his actual or apparent authority, and as an
account executive of Ciber, for his actions and/or the actions of his servants,
agents or employees, for Counts One, Two, Three and Four. Such causes of
action, and the facts in support thereof, and the relief n~quested, are incorporated
by reference as if #hey were set forth in full.
Respectfully submitted,
DATE: 7 t -° O ~ l
Philip M. Intrjeri, Esq.
Attorney for Plaintiff
Robert N. White
9.
INTRIERI b ASSOCIATES
Philip M. Intrieri, Esq.
615 North 48th Street '
Harrisburg, PA 17111-3625
(717) 584-8969
Pa. Attorney I.D. 76117
VERIFICATION
I hereby verify that the statements made in this COMPLAINT FOR
BREACH OF EMPLOYMENT CONTRACT, WRONGFUL DISCHARGE and
RELATED CLAIMS are true and correct. I understand that false statements
herein are made subject to the pena~ies of 18 Pa.C.S. Section 4904, relating to
unsworn falsification to authorities.
~ 1`~ Y2. c3U'~ ~ V1_~
Date ~ Mr. Robert N. White
Plaintiff
Philip M. Intrieri ~ Associates
615 North 48`h Street
Harrisburg, PA 17111-3625
(717) 564-8969
Attorney I. D. # 76117
PMILaw(c~' verizon.net
CERT{FICATE OF SERVICE
!, Philip M. intrieri, Esq., do hereby certify that on July ~--~ ,
2007, I served a true and correct copy of the foregoing COMPLAINT FOR
BREACH OF EMPLOYMENT CONTRACT AND RELATED CLAIMS, by causing
the documents to be deposited in the United States Mail, Certified Mai{, Return
Receipt Requested, to the following:
CIBER, Inc.
Ms. Susan Keesen,
General Counsel
525'1 DTC Parkway, Suite 1400
Greenwood Village, CO 80111
Mr. Dennis Miller,
Account Executive
CIBER, Inc.
650 Wilson Lane
Mechanicsburg, PA 17055
7 z~ ~7
Ms. Ann Griffiths
Vice President/Area Director
CIBER, Inc.
650 Wilson Lane
Mechanicsburg, PA 17055
(~~-
Date
Philip M. Intrleri, Esq.
Attorney At Law
615 North 48th Street
Harrisburg, PA 1711
(717) 564-6969
Atty. ID # 76117
/ ~
EMPLOYMENT AND CONFIDENTIALITY AGREEMENT
(Employee Consultants) .
This Agreement is entered into between GIBER, Inc., ("Company") and Robert N White
("Employee") as of this 27th day of May" 2005.
In consideration of the mutual covenants and conditions contained in this Agreement, the
parties agree as follows:
1. Obligations Of Employee. Company employs the Employee to serve and perform such
duties as assigned by Company, in manner, time and place Company directs. In the performance
of Employee's duties £or Clients, Employee will exercise sound discretion and independent
judgment. Employee agrees (1) to work at Client locations and at premises designated by
Company, (2) to adhere to applicable Company and Client policies, procedures and requirements
in performing the assigned work and (3) to exert Employee's best efforts and to perform in a
professional manner at all times while on assignment with Clients. Employee will not perform
services for others during the hours that Employee is performing services for the Company. .
Employee will not perform services for any other Company where such employment would
create aconflict of interest with the services performed under this Agreement.
2. Emgloyment At'Will. Employee is and will remain an employee at will. Either
Employee or Company may terminate this Agreement and the employme~rt relationship at any.
time with or without cause or reason and with or without prior notice or warning. The terms and
conditions of this Agreement do not create an employment contract for a tenn or an employment
contract for an implied term. Any cause for discharge mentioned in this Agreement or in any ~~
document mairite.ined by Company (including, but not limited to, employment manuals or
recruiting materials) shall not in any way limit Company's right to discharge Employee or alter
Employee's at will status. Employee is entitled to the compensation, as defined herein, accrued
as of the date of termination but shall have no other claim against Company.
3. Compensation And Benefits. During employment with the Company, Employee shall
be entitled to the following compensation and benefits:
3.1 Company agrees to pay to the Employee at a compensation rate to be set by
Company in accordance with the general practice of Company. Any change in compensation
shall not effect a change in this Agreement in any other respect
3.2 Employee is eligible to participate in the Company's benefit and compensation
plans generally available to employees of Company in employment categories similar to
Employee, including medical, dental and vision plans, life and disability insurance plans, and
401(k) savings plan, each according to their terms. Certain plans have delayed entry periods and
employees in certain employment categories are not eligible for some bene:~t programs. A11
such benefit and compensation plans maybe amended or discontinued from time to time in the
sole discretion of Company.
~ PLAINTIFF'S
E ~ IBIT
1 ~ .
• ~ ~ ~ I
~~
3.3 Employee is entitled to paid vacation, holidays, and personal leave (collectively
known as the Paid Time Off or PTO program) in accordance with the general practices of
Company as amended from time to time.
3.4 Company will reimburse Employee for all reasonable and necessary business
expenses incurred in carrying out Employee's duties under this Agreement, including approved
travel and entertainment expenses. Employee must present to Company, not less frequently than
monthly, an itemized account of expenses in a form required by Company.
3.5 All compensation and benefits to Employee shall be reduced by all federal, state,
local and other withholdings and similar taxes and payments required by applicable law.
Company inay withhold amounts due it from amounts due under this Agreement to Employee.
4. Trade Secrets And Confidential Information. Employee acknowledges that
confidential, proprietary and trade secret information and materials regarding Company and its
Clients may. be disclosed to Employee solely for the purpose of assisting Employee in
performing Employee's duties under this Agreement. Such information and materials are and
remain the groperty of Company anc~ its Clients respectively. As used in this Agreement,
.Confidential Information including without limitation all information belonging to Company or
its Clients relating to their respective services and products, customers, business methods,
strategies and practices, internal operations, pricing and billing, financial data, cost, personnel
information (including without limitation names, .educational background, prior experience and
availability), customer and supplier contacts and needs, sales lists, technology, software,
computer programs, other documentation, computer systems, inventions, developments, and all
other information that might reasonably be deemed confidential. Trade Secrets means the whole
or any portson of any scientific or technical information, design, process, procedure, formula,
improvement, confidential business or financial information, listing or names, addresses, or
telephone numbers, or other information relating to any business or profession that is secret and
of value. Employee acknowledges that Employee may use such confidential information and
materials only during Employee's employment with the Company and solely far the purpose of
such employment. Employee's right to use such information expires.on Employee's discharge or
resignation. Except as specifically authorized in writing in advance by all owners of information
and materials, Employee agrees not to use Trade Secret and Confidential Information for
Employee's own benefit or for the benefit of any other person, or divulge to any person for any
reason, any such information and materials related to the business of Company, any of its
Clients, or their customers, clients and affiliates, both at any time during the term of this
Agreement and at any time after its termination. Employee agrees to take all reasonable actions,
including those requested by Company or Client, to prevent disclosure and preserve the security
of confidential information and materials. Employee further agrees not to directly or indirectly '
disclose Employee's wage rate and terms to any person outside the Company, including to the
client or any competitor of the Company either during or after Employee's period of
employment.
~. Works for Hire. Employee agrees that during or after employment Employee will
promptly inform and in writing disclose to Company and to any Client for whom Employee has
performed work all copyrighted materials or programs, programs or materials subject to being
2 Version 1.2
o2/Ol/04
`__ J
copyrighted, inventions, designs, improvements and discoveries (the "Works") which Employee
has or may have,made daring Employee's e~plQy~e~nt that pertain or relate to the business of
Company or Client or to any research or experimental or developmental work carried on by
Company or Client ar which result from or are suggested by any work performed by Employee
on behalf of Company or any of its Clien#s. All of such Works shall be works made for hire.
Disclosure shall be made whether or not the Works are conceived by the Employee atone or with
others and whether or not conceived during regular working hours. All such Works are the
exclusive property of the Company ar the Client unless otherwise directed by Company in
writing. At the Company's or Client's sole expense, the Employee shall assist in obtaining
patents or copyrights on all such Works deemed patentable or subject to copyright by Company
or Client and. shall assign all of Employee's right, title and interest, if any, in and to such Works
and execute all documents and do all things necessary to obtain letters, patent or vest Company
or Client with full and exclusive title thereto, and protect the same against infringement by
others. Employee Kill not be entitled to additional compensation for any Works made during the
course of Employee's employment.
Notwithstanding the above, Employee is not xequired to assign to Company any invention for
which no equipment, supplies, facility, ox trade secret information of Company or its Clients was
used and that was developed entirely on Employee's own timc, and (a) does not relate to the
business of Company or its Clients, (b) does not relate to any actual or demonstrably anticipated
research or development Company or its Clients, or (c) does not result from any work performed
by you for Company or its Clients.
6. Protection of Company's Business.
6,1 No Solicitation of Employees. During employment with the Company and for
one yeaz thereafter, whether the termination of employment was voluntary or involuntary,
Employee will not: (a) induce, entice, hire or attempt to hire or employ any employee of the
Company or employe of a Company subcontractor on behalf of any individual or entity who
provides the same or similar services, processes or products as the Company, (b) induce or
attempt to induce any employee employed with the Company to leave the employ or cease doing
business with the Company, (c) knowingly assist any other individual or entity in doing any of
the above-proscribed acts, or (d) employ, engage ar seek to employ or engage any individual or
entity who was formerly employed or cngagcd by Company, on bchatf of Employee or any entity
(including a client of Company}, within one (1) year of the termination of the employment or
engagement of such individual ar entity with Company.
6.2 No Solicitation of Clients. During employment with the Company and for a
period of one (1) year after termination of such employment, whether such termination was with
or without cause, voluntary or involuntary, Employee will not, as a principai, company, partner,
agent, consultant, independent contractor or employee, (1) call upon, cause to be called upon,
solicit or assist in the solicitation of, any current client, former client or potential client of
Company for the purpose of selling, renting or supplying any product or service competitive witl-~
the products or services of Company; (2) provide any product or services to any current client,
former client or potential client of Company which is competitive with the products or services
of Company; or (3) enter into any business arrangement with any other person ar firm who is or
3 ~ Version 1.2
02/01(04
has been an einpIoyee or subcontractor of Company within the one (1) year period immediately
,_ preceding Employee's termination, This paragraph dgcs riot apply to woxk performed on behalf
of any individual or entity that is not a present or former customer of the Company or for whom
Employee has not performed services during the one (1) year prior to Employee's termination.
For purposes of this paragraph, "potential client" means any client to whom Employee's resume
was submitted or of which Employee otherwise had knowledge by reason of Employee's
relationship with Company.
Employee specifically acknowledges and agrees that if Employee is on an assignment
with a Company client, Employee will not continue to perform that same or similar assignment
individually or on behalf of another company for a period of one (1) year after the date the
Employee ceases to perform that assignment for the Company
Employee will not request, recommend or advise any client of Company to cease or
curtail doing business with Company or solicit, recommend or advise employees of Company to
terminate their employment with Company for any reason.
7. Employee Representations. Employee warrants that all information provided by
Employee (including without limitation resume, education, uiterview and references) in
consideration for employment by Company or for assignment to a Client is true and accurate.
Employee further warrants that Employee is not restricted by and has no conflict of interest
derived from any employment or other agreement and has no other interest or obligation that
would interfere with Employee performing work as directed under this Agreement. Employee
shall inform Company immediately should such a restriction or oonflict arise. Employee
understands that airy misstatement or lack of candor by Employee cancerning Employee's
qualifications or availability to any Client may result in immediate discharge by Employee'and
niay subject Employee to damages for any harm caused to Company. Employee authorizes
Company to verify all information provided to Company by Employee and agrees to sign a
release authorizing former employers, educational institutions and other references to provide
information to Company if requested.
8. Effect Of Termination of Employment.
8.1 Payment of Compensation. Upon the termination of Employee's employment
with the Company, whether voluntarily or involuntarily, Em~Ioy_ee shall be paid.all
compensation earned as of the effective date of termination and any reasonable and necessary_
business expenses incurred by Employee in connection with Employee's duties to the date of
fernination, so long as such business expenses are timely submitted and approved consistent
with Company policy.
8.2 Return of Materials. Upon the termination of Employee's employment with
Company, whether voluntarily or involuntarily, Employee will personally and promptly return to
a Company representative all documents; records, notebooks, magnetic tapes, disks, or ether
materials, including all copies, in Employee's possession or control which contain Confidential
Information of Company or Company's clients or any other information concerning Company,
its products, services, or customers, whether prepared by the Employee or others.
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8.3 Training Commitment, While employed by Cotnpar~y,.Exr~.ployee may attend
educational courses. Employee understands that Employee is under no obligation to take sn
offered course and that Company is under no ohl i gation to approve Employee's request to attend
a course. If Employee decides to take certain courses and obtains appropriate approval from
Employee's manager, the following terms shall apply. If employment terminates for any reason
within 90 days of attending the class, Employee agrees to reimburse Company promptly for the
entire cost of the course including all associated travel and living expenses. If the Employee
leaves Company, voluntarily or involuntarily, 90 days or more after attending or crnnpleting the
course, Employee agrees to repay Company a percentage of the cost in accordance with the
Company Reimbursement Agreement. Company may, in its sole discretion, waive this
requirement depending on the circumstances.
8.4 Right of Offset. Employee agrees that Company will have the right to set off
against Employee's final wages and other compensation due to Employee any amounts paid or
advanced by Company including without limitation training expenses, business expenses,
advances, loans and draws.
9. Remedies for B•reaeh. Employee acknowledges that any violation of this Agreement
will cause Employee to be subject to immediate ternunation and dismissal and shall subject
Employee to a claim for money damages by Company for any and ail losses sustained by
Company as a result of breach of any provision of this Agreement including losses resulting
from the unauthorized release of any Confidential Information. Employee recognizes that the
Company's remedies at law may be inadequate and that Company shall have the right to seek
injunctive relief in addition to any other remedy available to it. If Employee breaches ibis
agreement or any of the covenants contained herein, the Company has the right to and will seek,
issuance of a court ordered injunction as well as any and all other remedies and damages, to
compel the enforcement of the terms stated herein. If court action is necessary to obtain
injunctive relief, Employee shall be responsible for the Company's attorneys' fees and court
costs.
10. Assignment. Employee may not transfer, assignor delegate Employee's duties and
obligations under this Agreement This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, executors, administrators, legal representatives,
successors and assigns. The Company may transfer or assign or delegate its duties and
obligations under this Agreement.
11. Construction of Agreement. Employee acknowledges and agrees that the restrictions
on Employee's employment and the geographical restrictions hereby imposed are fair and
reasonable and are reasonably required for the protection of the Company. Employee further
acknowledges and agrees that the restrictions in Paragraphs 4 through 6 are reasonable and
necessary for the protection of the Company's confidential information and trade secrets. If any
part of this Agreement is held unenforceable or invalid, the remaining pars thereof shall
continue to be enforceable. If the provisions imposing geographic or time restrictions are
deemed unenforceable by a court of competent jurisdiction, then such provisions for the purposes
of this Agreement shall include the ma.~cimum geographic area or tune period which a court of
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competent jurisdiction determines to be reasonable, valid and enforceable. To the extent that the
court permits blue-penciling, the parties to this Agreement intend that the court will take ail
action necessary to revise this Agreement so as to create a binding and enforceable Agreement.
12. Notices.. All notices shall be sent by registered mail, courier, or hand delivered to the
addresses on the signature page.
13. Resolution of Disputes. Employee agrees that any claim, contrgversy or dispute that
arises directly or indirectly in connection with Employee's employment or termination of
employment with Company or any associated or related disputes involving Company and any
employee, director, officer or agent of Company, whether arising in contract, statue, tort, fraud,
misrepresentation, discrimination, corninon law or any other legal theory, including but not
limited to, disputes relating to the malting, performance or interpretation of this Agreement,. and
claims or other disputes arising under Title VII of the Civil Rights Act of 1964, as amended; the
Civil Rights Act of 1991; the Age Discrimination in Employment Act of 1967, as amended; 42
U.S.C. §1981, §1981a, §1983, §1985 or §1988; the Family and Medical Leave Act of 1993; the
Americans with Disabilities Act of 199Q, as amended; the Rehabilitation Act of 1973, as
amended; the Fair Labor Standards Act of 1938, as amended; the Employee Retirement Income
Security Act of 1974, as amended {"ERISA"}; state anti-discrimination acts; or any. other similar
federal, state or Local law or regulation, whenever brought, shall be brought in state or federal
court of competent jurisdiction. Nothing herein excuses Employee from his/her duty to exhaust
administra#ive remedies, where such a duty exists, prior to filing. suit. By signing this
AGREEMENT, Employee voluntarily, knowingly and intelligently waives any right
Employee may have to a jury trial. CIBER also hereby voluntarily, knowingly, and
intelligently waives any right it might otherwise have to a jury trial.
14. Choice of Law. This Agreement shall be interpreted and construed in accordance with
the laws of the state in which the Company employs the Employee without regard to its conflicts
of law provisions.
15. Amendments. No modification or. waiver of the provisions of this Agreement will be
effective against either party unless given in writing signed by an authorized representative of
Corngany and by Employee.
16. Waiver. No delay or faillue by a party in exercising any right, power or privilege under
this Agreement or under any other instruments given in connection with or pursuant to this
Agreement shall impair a such right, power or privilege or be construed as a waiver of or
acquiescence in any default, No single or partial exercise'of any such right, power or privilege
shall preclude the further exercise of such right, power or privilege, or the exercise of any other
right, power or privilege.
17. Survival. The provisions of this Agreement that by their sense and context are intended
to survive performance by either or both parties shall also s~~rvive the completion, e:~piration,
tennination or cancellation of this Agreement.
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18. Duty to Cooperate. Employee agrees to fully cooperate with Company in connection
with any Iegal or business matter relating to the services provided by Employee under this
Agreement
19. Headings. Headings for the paragraphs herein are for convenience only and shall not be
construed in interpreting this Agreement.
20. Entire Agreement. This Agreement is the entire agreement between the Parties. This
Agreement supersedes any and all prior agreements and cannot be modified except in writing
signed by the parties.
IN WITNESS WHEREOF, the parties hereto have set their hands on the date and year first.
written above.
CIBER,
BY' ,
Printed Name: Ann Gri i
Title: VP/Area Director
Address: 650 Wilson Lane
Mechanicsburg, PA 17055
ENIl'LOYEE
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BY: 9~-~-1-L ~~~~~
Printed Name: Robert N White
Address: 13508 Galena Pl
• Tampa, FL 33626
7
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA.
ROBERT N. WHITE,
Plaintiff, NO.
vs.
GIBER, INC. and ANN GRIFFITHS,
and DENNIS MILLER, individually
and in their capacity as agents and
employees of GIBER, INC.,
Defendants. ;
CERTIFICATION OF ANN GRIFFITHS
IN SUPPORT OF DEFENDANTS' NOTICE OF REMOVAL
1. I, Ann Griffiths, am a defendant in the above captioned matter. I
make this Certification based upon personal knowledge and in support of
Defendants' Notice of Removal.
2. I am a citizen and resident of the Commonwealth of Pennsylvania.
#8775458 vl
I certify under penalty of perjury that the foregoing is true and correct.
Executed on this ~~day of August, 2007.
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Ann Griffiths
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#8775488 vl
~~~~b~~~
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ROBERT N. WHITE,
Plaintiff, NO.
vs.
CIBER, INC. and ANN GRIFFITHS,
and DENNIS MILLER, individually
and in their capacity as agents and
employees of CIBER, INC.,
Defendants.
CERTIFICATION OF DENNIS MILLER
IN SUPPORT OF DEFENDANTS' NOTICE OF REMOVAL
1. I, Dennis Miller, am a defendant in the above captioned matter. I
make this Certification based upon personal knowledge and in support of
Defendants' Notice of Removal.
2. I am a citizen and resident of the Commonwealth of Pennsylvania.
#8775518 ~~
I certify under penalty of perjury that the foregoing is true and correct.
Executed on this ~ day of August, 2007.
-2-
as~~ssis ~~
CERTIFICATE OF SERVICE
1, Natalie Grill Einsig, certify that on August 13, 2007, I caused a true and correct
copy of the foregoing Notice of Filing Notice of Removal to be served on the following person
by First Class U.S. Mail, postage prepaid:
Philip M. Intrieri, Esquire
Intrieri & Associates
615 North 48`" Street
Harrisburg, PA 17111
Attorney for Plaintiff
•\
Natalie Grill Einsig (PA 89791)
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