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HomeMy WebLinkAbout01-6913RICHARD H. KISIELEWSKI, Plaintiff Vo PHICO GROUP, INC., CAROLYN F. SCANLAN and SHERYL SIMMONS, Defendants IN THE COURT OF COMMON PLE CUMBERLAND COUNTY, PENNSYL CIVIL ACTION - LAW VANIA NOTICE YOU HAVE BEEN S~IED IN COURT. If you wish to defend against the c set forth in the following pages, you must take action within twenty (2J after this Complaint and Notice are served, by entering a written appea: personally or by attorney and filing in writing with the Court your def~ objections to the claims set forth against you. You are warned that if fail to do so the case may proceed without you and a judgment may be against you by the Court without further notice for any money claimed ix Complaint or for any other claim or relief requested by the Plaintiff. lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT LAWYER OR CANNOT AFFORD ONE, ~O TO OR TELEPHONE THE OFFICE SET FORTH FIND OUT WHERE YOU CAN GET LEGAL HELP. days ~es or may A TO CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 1-800-990-9108 NOTICIA Le hah demandado a usted en la corte. Si usted quiere defenderse estas demandas expuestas en las paginas siguientes, usted tiene viente dias de plazo al partir de la fecha de la demanda y la notificacion. debe presentar una apariencia escrita o en persona o por abogado y en la corte en forma escrita sus defensas o sus objeciones a las demandas ~ contra de su persona. Sea avisado que si usted no se defiende, la cort~ medidas y puede entrar una orden contra usted sin previo aviso o notifi¢ y por cualquier queja o alivio que es pedido en la peticion de demanda. ~s~ed puede perder dinero o sus propiedades o otros derechos importantes para/~ted. // LLE%-E ESTA DEMANDA A UN A~ODAGO INMEDIATAM~NTE. SI NO TIEHE ABOO~D~ O SI NO TIEITE EL DINERO SUFICIENTE DE PAGA~ TAL SERVICIO, VAYA EN PERSONA O ~L~ME POR TELEFONO A LA OFICINA CUYA DIRECCION SE EI~uum~TRA ESCRITA ABAJO PARA AVERIOUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLA/~-D COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 1-800-990-9108 STROKOFF & COWDEN, P.C. 132 State Street, P.O. Box 11903 Harrisburg, PA 17108 (717) 233-5353 RICHARD H. KISIELEWSKI, Plaintiff PHICO GROUP, INC., CAROLYN F. SCANLAN and SHERYL SIMMONS, Defendants : IN THE COURT OF COMMON PLE : CUMBERLAND COUNTY, PENNSYL : : : : CIVIL ACTION - LAW COMPLAINT The Plaintiff, Richard H. Kisielewski, by and th counsel, Strokoff & Cowden, P.C., hereby files the followi Complaint and avers as follows: 1. Plaintiff, Richard H. Kisielewski, is an ad individual residing at 17 Kelly Drive, Carlisle, Pennsylva 17013. 2. Defendant, PHICO Group, Inc., is a Pennsylv corporation authorized to do business in this Commonwealth its principal offices at One PHICO Drive, Mechanicsburg, Pennsylvania 17055. 3. Defendant Carolyn F. Scanlan is President, Executive Officer and Chairman of the Board of Defendant P Group, Inc. Her workplace is located at H.H.A.P., 4750 Li Road, Harrisburg, Pennsylvania 17111. 4. Defendant Sheryl M. Simmons is Senior Vice President and Treasurer of Defendant PHICO Group, Inc. He ~S VANIA )ugh t lia ~ith lief ~CO [le principal place of business is the same as Defendant PHICC Group, Inc. 5. In October of 1996, the Plaintiff commenced employment with the Defendant PHICO Group, Inc. as a Vice President of Administration. 6. On or about July 18, 2001, the Plaintiff an Defendant PHICO Group, Inc. entered into a confidential Separation Agreement and General Release (hereafter Agreem Because of this confidentiality, a true and correct copy o Agreement is not attached hereto, but Plaintiff is prepare attach same should any Defendant object on the basis of Pa R.C.P. 1019(i) . 7. Beginning October 31, 2001, Defendant PHICO Group, Inc. failed to make the regular, semi-monthly salar continuation payment due on the that date, and has failed make any regular, semi-monthly salary continuation payment Plaintiff since that date. 8. Defendant PHICO Group, Inc. also has failed reimburse the Plaintiff on October 31, 2001 and November 3 2001 for the monthly premiums totaling $711.48 he paid for coverage for group health and dental insurance for the mon October and November 2001, respectively. - 2 - ~t ) . this to to ~0 ~OBP~A Is of COUNT I - BREACH OF CONTRACT KISIELEWSKI V. PHICO, GROUP, INC. 9. The averments contained in paragraphs 1 thr of this Complaint are hereby incorporated as if completely forth herein. 10. By failing to pay Plaintiff semi-monthly sa continuation payments required under the Agreement, and by failing to reimburse Plaintiff appropriate sums for group and dental insurance expenses required under said Agreemen Defendant PHICO Group, Inc. is in material breach of the Agreement. 11. Paragraph 11 of the Agreement provides that part of the remedy for the Defendant PHICO Group, Inc.'s b of any provision of the Agreement, it will be responsible the Plaintiff's reasonable legal costs arising from the br WHEREFORE, Plaintiff demands damages against Def PHICO Group, Inc. in the amount of $46,976.71, (consisting $17,625 in salary continuation payments past due as of the of this Complaint, $27,928.85 salary continuation payments coming due to Plaintiff subsequent to the filing of the Complaint and $1,422.96 in reimbursement for group health dental insurance expenses), the reasonable legal costs authorized by the Agreement, costs of suit and such other further relief which this Court deems just and proper. lgh 8 ~et ~ry .~alth ~S ~:ach ),r ~ch. ~dant )f ~ate COUNT II - VIOLATION OF WAGE PAYMENT AND COLLECTION KISIELEWSKI v. PHICO GROUP, INC. and SCANLAN and 12. The averments contained in paragraphs 1 h 11 of this Complaint are hereby incorporated as if complet .y set forth herein. 13. Salary continuation payments and for group health and dental insurance expenses under the Separation Agreement and General Release constitute ~wages under the Pennsylvania Wage Payment and Collection Law. 14. Defendant PHICO Group, Inc. failed to pay Plaintiff appropriate salary continuation payments require on October 31, 2001, November 15, 2001 and November 30, 2001, the Agreement and also has failed to reimburse Plaintiff t group health and dental insurance expenses under said Agre when due on October 31, 2001 and November 30, 2001 and Pla believes, and therefore avers, that Defendant PHICO Group, inc. will not be making the semi-monthly salary continuation required to be paid to him in the future. 15. Defendants Scanlan and Simmons are both act involved in the Defendant PHICO Group Inc.'s decision makil including decisions as to what corporate obligations to ~r and pay, and Plaintiff believes, and therefore avers, that hey were both actively involved in the decision to stop making he aforementioned payments to the Plaintiff. 16. None of the Defendants have asserted any od faith reason why PHICO Group, Inc. has ceased to make the s~mi- monthly wage continuation payments or premium reimbu to the Plaintiff, and Plaintiff believes and therefore avers hat there is no good faith reason for such nonpayments. WHEREFORE, Plaintiff demands judgment against Defendants PHICO Group, In. and Scanlan and Simmons, j and severally, pursuant to the Wage Payment and Collection in the amount of $46,976.71, plus 25% liquidated damages (un, r 43 P.S. §260.10) plus reasonable attorneys fees, costs of su and such other further relief which this Court deems just proper. DATE: Respectfully submitted, By' '-~ ' ff · Elliot A- ~ko~ff, I D NO 16677 ~ Mario R. Bordogna, Es~ I.D. No. 80905 132 State Street PO Box 11903 Harrisburg, PA 17108-1903 (717) 233-5353 Attorneys for Plaintiff - 5 - RICHARD H. KISIELEWSKI, Plaintiff PHICO GROUP, INC., CAROLYN F. : SCANLAN and SHERYL SIMMONS, : Defendants : : IN THE COURT OF COMMON PLE~ : CUMBERLAND COUNTY, PENNSYL~ : : : CIVIL ACTION - LAW VERIFICATION I, RICHARD H. KISIELEWSKI, certify that the stat~ made in the foregoing Complaint are true and correct to th~ of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties o Pa.C.S. §4904 relating to unsworn falsification to authorit DATE: T~NIA ~nt s )est 18 ~ U RICHARD H. KISIELEWSKI Plaintiff V. PHICO GROUP, INC. and CAROLYN F. SCANLAN and SHERYL SIMMONS Defendants. IN THE COURT OF COMMON PLEAS OF CLrMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 014913 pRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARy: Kindly enter our appearance on behalf of defendant, Sheryl Simmons. Dated: December 20, 2001 WOLF, BLOCK, SCHORR AND SOLIS-COHEN LLP l ~onathan D. Wetchler Identification No.: 40796 Douglas Diaz Identification No.: 84385 1650 Arch Street, 22nd Floor Philadelphia, PA 19103 (215) 977-2000 Mark S. Stewart Identification No.: 75958 212 Locust Street, Suite 300 Harrisburg, PA 17101 (717) 237-7160 DSH:30336.l CERTIFICATE OF SERVICE I hereby certify that on December 20, 2001, I caused to be served a copy of the foregoing Praecipe for Entry of Appearance on the following, ha fax and first class mail, postage pre-paid: S trokoff & Cowden, P.C. 132 State Street P.O. Box 11903 Harrisburg, PA 17108 717-233-5806 (fax) Mark S. Stewart Dated: December 20, 2001 DSH:30336.1 ~°° SHERIFF'S RETURN - REGULAR CASE NO: 2001-06913 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KISIELEWSKI RICHARD H VS PHICO GROUP INC ET AL KENNETH GOSSERT , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon PHICO GROUP INC the DEFENDANT , at 0958:00 HOURS, on the 12th day of December , 2001 at ONE PHICO DRIVE MECHANICSBURG, PA 17055 ROBERT LONG, VP LEGAL by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 5.85 Affidavit .00 Surcharge 10.00 .00 33.85 Sworn and Subscribed to before me this ~/~,_ day of ~ _3~-~ A.D. ! ' ~rothonotar~ ! ' So Answers: R. Thomas Kline 12/27/2001 STROKOFF & COWDEN SHERIFF'S RETURN - REGULAR CASE NO: 2001-06913 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KISIELEWSKI RICHARD H VS PHICO GROUP INC ET AL KENNETH GOSSERT , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon SIMMONS SHERYL M the DEFENDD2qT , at 0958:00 HOURS, at ONE PHICO DRIVE MECHANICSBURG, PA 17055 ROBERT LONG VP LEGAL on the 12th day of December , 2001 by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this 2~ day of ~ ~,~,~_ ~ .2~ A.D. ! t~rot[/onotary So Answers: R. Thomas Kline 12/27/2001 STROKOFF & COWDEN SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2001-06913 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KISIELEWSKI RICHARD H VS PHICO GROUP INC ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: SCANLAN CAROLYN F but was unable to locate Her in his bailiwick. deputized the sheriff of DAUPHIN County, serve the within COMPLAINT & NOTICE He therefore Pennsylvania, to On December 27th , 2001 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing 6.00 Out of County 9.00 Surcharge 10.00 Dep Dauphin County 29.25 .00 54.25 z2/27/2001 STROKOFF & COWDEN R. l~nomas Kline Sheriff of Cumberland County Sworn and subscribed to before me this 2z~ day ofCCp. / ;2~.Z, A.D. · · Prothonotary ' ~ Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 255-2660 fax: (717) 255-2889 Jack Lotwick Sheriff J. Daniel Basile Chief Deputy Michael W. Rinehart Assistant Chief Deputy Commonwealth of Pennsylvania County of Dauphin KISIELEWSKI RICHARD H vs : SCANLAN CAROLYN F Sheriff's Return No. 3512-T - - -2001 OTHER COUNTY NO. 01-6913 AND NOW:December 17, 2001 COMPLAINT SCANLAN CAROLYN F to KIM ROBINSON, SECRETARY of the original COMPLAINT to him/her the contents thereof at H.H.A.P. 4750 LINDLE ROAD HBG, PA 17111-0000 at I:10PM served the within upon by personally handing 1 true attested copy(ies) and making known Sworn and subscribed to efore me this 18TH day of DECEMBER, 2001 PROTHONOTARY So Answers, Sheriff of Dauphin County, Pa. Deputy Sheriff Sheriff's Costs: $29.25 PD 12/17/2001 RCPT NO 157804 STRUBHA Id Thd Court of Common Pleas of Cumberland County, Pen~nsylvania Richard H. Kisielewski VS. PHICO Group, Inc. et al SERVE: No. 01 6913 civil How, December 10, 2001 hereby deputize the Sheriff of ~auph/n deputation being made at the request and risk of the Plaintiff. , I, SHERIFF OF CUMBERLAND COUNTY, PA, do County to execute this Writ, this SheriffofCumberland County, PA NOW~ within Affidavit of Service ,20 ,at o'clock M. served the upon at by handing to and made known to copy of the original So answers, the contents thereof. Sworn and subscribed before me this day of ,20 Sheriff of County, PA COSTS SERVICE MILEAGE AFFIDAVIT RICHARD H. KISIELEWSKI, : Plaintiff : PHICO GROUP, INC., CAROLYN : F. SCANLAN and SHERYL : SIMMONS, : Defendants : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 01-6913 NOTICE TO PLEAD TO PLAINTIFF RICHARD H. KISIELEWSKI: You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days of service thereof or a default judgment may be entered against you. Mark S. Stewart, Esq. I.D. No. 75958 Counsel for Defendant Sheryl Simmons DSH:30447.1/PHI206-143346 RICHARD H. KISIELEWSKI, Plaintiff PHICO GROUP, INC., CAROLYN F. SCANLAN and SHERYL SIMMONS, Defendants You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days of service thereof or a default judgment may be entered against you. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 01-6913 ANSWER AND NEW MATTER Defendant, Sheryl Simmons, ("Simmons") answers Plaintiffs Complaint and states her New Matter as follows: 1. Admitted. 2. Admitted that Defendant, PHICO Group, Inc., is a Pennsylvania corporation authorized to do business in this Commonwealth. The remaining averments of Paragraph 2 of the Complaint are denied. To the contrary, PHICO Group's principal offices are not at One PHICO Drive, Mechanicsburg, Pennsylvania 17055 but at H.H.A.P, 4750 Lindle Road, Harrisburg, Pennsylvania 17105. 3. Admitted that Defendant Carolyn F. Scanlan's workplace is located at H.H.A.P., 4750 Lindle Road, Harrisburg, Pennsylvania. Denied that the zip code at this workplace is 17111. To the contrary, the zip code is 17105. Admitted that Defendant Scanlan is Chairman of the Board of Defendant PHICO Group, Inc. Denied that Defendant Scanlan is President and Chief Executive Officer of Defendant PHICO Group, Inc. To the contrary, Defendant Scanlan has never been President or Chief Executive Officer of Defendant PHICO Group, Inc. DSH:30447.1/PHI206-143346 4. Denied. To the contrary, Simmons is Senior Vice-President of Finance for PHICO Insurance Company (in Rehabilitation). Moreover, Simmons does not have a "principal place of business." Simmons typically works at One PHICO Drive, Mechanicsburg, Pennsylvania 17055. 5. Admitted. 6. Admitted. 7-8. After reasonable investigation, Simmons is without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraphs 7-8 of the Complaint and therefore denies same. Count I - Breach of Contract - Kisielewski v. PHICO Group~ Inc. 9. Paragraphs 1 through 8 of this Answer are hereby incorporated as if completely set forth herein. 10. The averments of Paragraph 10 of the Complaint apply only to Defendant PHICO Group, Inc. and no responsive pleading is required by Defendant Simmons. 11. The averments of Paragraph 11 of the Complaint apply only to Defendant PHICO Group, Inc. and no responsive pleading is required by Defendant Simmons. Count II - Violation of Wage Payment and Collection Law KJsielewski v. PHICO Group~ Inc. and Scanlan and Simmons 12. Paragraphs 1 through 11 of this Answer are hereby incorporated as if completely set forth herein. 13. The averments of Paragraph 13 of the Complaint allege conclusions of law to which no responsive pleading is required. To the extent that a response is required, they are denied. To the contrary, any salary continuation payments and reimbursement for group health DSH:30447.1/PHI206-143346 -2- and dental insurance expenses under the Separation Agreement and General Release do not constitute "wages" under the Pennsylvania Wage Payment and Collection Law. 14. After reasonable investigation, Simmons is without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 14 of the Complaint and therefore denies same. 15. After reasonable investigation, Simmons is without knowledge or information sufficient to form a belief as to the truth of the averment of Paragraph 15 that Defendant Scanlan is actively involved in the Defendant PHICO Group Inc.'s decision making, including decisions as to what corporate obligations to honor and pay. The remaining averments of Paragraph 15 of the Complaint are denied. To the contrary, Simmons is not actively involved in the Defendant PHICO Group, Inc.'s decision making, including decisions as to what corporate obligations to honor and pay. Moreover, Simmons was not involved in the decision to stop making payments to the Plaintiff. 16. The averments of Paragraph 16 of the Complaint allege conclusions of law to which no responsive pleading is required. To the extent a response is required, they are denied. To the contrary, Plaintiff did not request from Simmons any reason as to why PHICO Group, Inc has ceased to make the semi-monthly wage continuation payments or premium reimbursements to him. Moreover, Simmons does not have any authority to provide Plaintiff with any such reason. NEW MATTER 1. Plaintiff has failed to state a claim upon which relief may be granted against Defendant Simmons. 2. Plaintiff is unable to establish that Defendant Simmons was an "employer," as that term is defined by the Wage Payment and Collection Law, for reasons including, but not DSH:30447.1/PHI206-143346 - 3 - limited to, that Simmons was neither an agent nor officer of PHICO Group, Inc. at the time salary continuation payments and COBRA premium reimbursements to Plaintiff allegedly ceased. 3. Plaintiff is unable to establish that the money he claims is due him constitutes earned compensation for reasons including, but not limited to, that any payments provided him under his Separation Agreement and General Release were in return for a release, and were not earned for services rendered. 4. Defendant Simmons had no role or decision-making authority with respect to any decision to cease salary continuation payments and COBRA premium reimbursements to Plaintiff. 5. Plaintiffs claim against Defendant Simmons is barred by the bankruptcy filing by Defendant PHICO Group, Inc. and by the Rehabilitation Order with respect to PHICO Insurance Company (in Rehabilitation). DSH:30447.1/PI-II206-143346 - 4 - WHEREFORE, Defendant Simmons respectfully requests that Plaintiffs Complaint against her be dismissed with prejudice and that judgment be entered in her favor. Dated: January 4, 2002 Respectfully submitted, W~lol f, B~C~ohen, ffLP Jonathan D. Wetchler, Esquire I.D. No. 40796 Douglas Diaz, Esquire I.D. No. 84385 1650 Arch Street, 22nd Floor Philadelphia, PA 19103 (215) 977-2000 Mark S. Stewart, Esquire I.D. No. 75958 212 Locust Street, Suite 300 Harrisburg, PA 17101 (717) 237-7160 DSH:30447.1/PHI206-143346 - 5 - .V~,.R] I~ICATION I, Sheryl Simmons, hereby verify Ihut I have r~d [he statcmen~ orthc focc~oin~ Answer ~d ve~y that thc slalcmcn[s of ~t mad~ therein arc t~c an~ corr~c[ [~ thc h~st o ~ my knowJedgc, info~tion and ~licf. I understand Ihe penalties conmifled in i 8 Pa. C.S.A. 9 4904 r¢ladng Da~cd; Janu~y ~ , 2002 CERTIFICATE OF SERVICE I hereby certify that on January 4, 2002, I caused to be served a true and correct copy of the foregoing Answer on the following, via fax and first class mail, postage prepaid: Elliot Strokoff, Esquire Strokoff & Cowden, P.C. 132 State Street P.O. Box 11903 Harrisburg, PA 17108 717-233-5806 (fax) Dated: January 4, 2002 DSH:30447.1/PHI206-143346 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION RICHARD H. KISIELEWSKI, Plaintiff PHICO GROUP INC., CAROLYN F. SCANLAN and SHERYL SIMMONS, Defendants. CIVIL ACTION - LAW 01-6913 Civil Term NOTICE OF FILING OF NOTICE OF REMOVAL FILED ON BEHALF OF DEFENDANTS PIE[CO GROUP INCORPORATED, ET AL. TO: Office of the Prothonotary Cumberland County 2 Liberty Avenue Carlisle, PA 17013 You are hereby notified, pursuant to 28 U.S.C. § 1446(d), that on January 9, 2002, Defendants PHICO Group, Inc., et al. filed a Notice of Removal of the above action from the Court of Common Pleas of Cumberland County to the United States District Court for the Middle District of Pennsylvania. A copy of the Notice of Removal is attached. Respectfully submitted, Eliz~6~th A. l~lfoyk~ - - Jill M. Lashay KLETT LIEBER ROONEY & SCHORLING 240 N. Third Street, Suite 600 Harrisburg, PA 17101-1503 (717) 231-7700 Dated: January 9, 2002 Attorneys for Defendants KRLSHAR:18638.1 PER ~ -IARRISBU , ~ ^ OEX ~ IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA RICHARD H. KISIELEWSKI, Plaintiff Vo CIVIL ACTION - LAW : 01-6913 Civil Term PHICO GROUP INC., CAROLYN F. SCANLAN: and SHERYL SIMMONS, : : Defendants. : RAMBo NOTICE OF REMOVAL Pursuant to 28 U.S.C. § 1441, Defendants PHICO Group Incorporated, Carolyn F. Scanlan, and Sheryl Simmons (collectively referred to as "Defendants"), by their undersigned attorneys, hereby remove this action from the Court of Common Pleas of Cumberland County. Removal is based on the following: KRLSIqAR: 18638.1 Certif~ofCA-l~th, l~cord 1. On or about December 4, 200 I, Plaintiff Richard H. Kisielewski ("Plaintiff") commenced an action against Defendants in the Court of Common Pleas of Cumberland County, Pennsylvania captioned "Richard H. Kisielewski v. PHICO Group Inc., Carolyn F. Scanlan and Sheryl Simmons," No. 01-6913 Civil Term. 2. Defendant PHICO Group received a copy of Plaintiff's Complaint on or about December 12, 2001. A copy of the Complaint is attached hereto as Exhibit A. As of this date, the Defendants have received no other process or pleadings in this case. 3. In this Complaint, Plaintiff Kisielewski alleges that Defendants failed to properly pay him severance pay and other employee benefits pursuant to a separation agreement. Severance pay plans, even if unfunded and paid from general assets, are employee welfare benefit plans governed by the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. See Section 3(1)(A) and 3(1)(B) of ERISA, 29 U.S.C. § 1002(1)(A) and (B); 29 C.F.R. § 2510.3-1(3); Gilbert v. Burlington Indus., Inc., 765 F.2d 320 (2d Cir. 1985), affd, 477 U.S. 901 (1986). 4. The Separation Agreement and General Release between PHICO Group Inc. and Plaintiff Kisielewski ("Agreement") qualifies as a welfare KRLSHAR: 18638.1 benefit plan under ERISA, 29 U.S.C. § 1002(1)(A) and (B). Pane v. RCA Corporation, 868 F.2d 631 (3d Cir. 1989); Darlin v. Consolidated Rail Corporation, 93 F.Supp. 2d 599 (E.D. Pa. 2000). 5. Suits by a beneficiary to recover covered employee welfare benefits fall directly under Section 502(a)(1)(B) of ERISA, which provides an exclusive federal cause of action for resolution of such disputes and thus is properly removable to a federal district court. Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 62-63 (1987). 6. Plaintiff's action is one over which the United States District Court has original jurisdiction pursuant to 28 U.S.C. § 1331. 7. 28 U.S.C. § 1441(a) provides that "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 8. 28 U.S.C. § 1441(b) provides that "[a]ny civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties." 9. Because this is an action over which federal district courts have original jurisdiction, and because Cumberland County is embraced by the United States District Court for the Middle District of Pennsylvania, the action is properly removed to the United States District Court for the Middle District of Pennsylvania under 28 U.S.C. § 1441(a) and (b). 10. This Notice is timely under 28 U.S.C. § 1446(b) in that it is filed within thirty (30) days after receipt by Defendants of a copy of the Complaint, the first pleading fi.om which it could be ascertained that the case is removable. WHEREFORE, Defendants hereby remove the above action now pending in the Court of Common Pleas of Cumberland County, Pennsylvania to the United States District Court for the Middle District of Pennsylvania. Respectfully submitted, Elizal~th A. ~l/a~to~ - - Jill M. Lashay KLETT ROONEY LIEBER SCHORLING A Professional Corporation 240 N. Third Street, Suite 600 Harrisburg, PA 17101-1503 (717) 231-7700 Attorneys for Defendants Dated: January 9, 2002 KRLSHAR: 18638. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Notice of Removal was served upon counsel for Plaintiff, by first class mail, postage prepaid, on January 9, 2002, at the following address: Elliot A. Strokoff, Esquire Mario R. Bordogna, Esquire Strokoff& Cow&n, P.C. 132 State Street P.O. Box 11903 Harrisburg, PA 17108-1903 Jill Iv~/ashay KRLSHAR: 18638.1 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Notice of Filing of Notice of Removal Filed on Behalf of Defendant PHICO Group Inc., et al. was served upon counsel for Plaintiff, by first class mail, postage prepaid, on January 9, 2002, at the following address: Elliot A. Strokoff, Esquire Mario R. Bordogna, Esquire Strokoff& Cowden, P.C. 132 State Street P.O. Box 11903 Harrisburg, PA 17108-1903 KRLSHAR: 18638.1 Exhibit A ]~CHA~D H. KI~I~L~Ki~ RiOD~D H. KZsT~L~WSKI, V& C"'J~ COLTN~, ;aNN~YLV/%NIA CML ACTION - I~AW counsel, ind~vi~uel resi~in~ a~ 17 F~lly Drive, is a.~ 1~015 · m~l~ ~th t~e ~e~e~ ~CO O~ou~, ~. a~ a Vice ~. ~ o~ ~ ~7 la, 2002, ~ ~l~mti~ ~t is not ~tta~e6 ~e~to, ~ ~lal&ti~= ia ~e~a~a6 atc~ sa~ s~6 ~y De~e~C ob~e~C ~ ~ basis o~ ~, ~, z~. ~le~ ~o ~ t~ re~l~, 8~'~ aala~ ~ ~y ~1~, s~-~n~Y sala~ cont~n~tl~ paints ~ei~se 't~ ~lainti~ o~ Oc~obe~ 31, 2001 ~d Mo~e~ 30, ~a~a~e ~or ~P ~alth ~ ~ ins~e for the ~nt~. of Oc~obe= ~ N~er 2001, re~e~ivel~. ,.2- 9. T~2 av~ ~on~ained in pa~g==Fas I ~hr~h 8 of ~s c~lain~ are hec~ inco~o~ed ag i~ ~le~elF ~e~ 10. ~ faiL~ =~ pay ~la~=iff ~e~-~nChly sala~ ~~, Pl~=iff ~e~ ~gmm ~= ~lain= ~ $1,422.96 in ~sm~= fo= ~=o~ heal~ ~d - 3 - :].~. The avex'menCe co~r. sined 11 o~ c~s co~lain~ a~e he~eb~ inco~ecaC~ ~s if co~le~el~ 13. Sal~ c~Cin~cion Sep~ci~ ~ao~C ~eli~s, ~ che~e~o~ avers, chac oe~end~ ~co ~p, ~. rill Got be ~ 1S. Def~ts S~ ~ $i~ns ~ Mo~ acci~ly ~cl~ decisXona ~ cc w~ co~ocaco ~li~aci~a ~o hOno~ ~ pay, ~ ~lainci~g btli~e8, a~ c~f~e avers, ~C ~hey -A - C~e ~lainci~, ~ ~lainci~ belie~s ~d t~e~ore arena, ~~, Plaintiif dm~ds ~n~ ~t n~all~, ~t to ~ ~age ~a~nt ~ ColleGtLOn ~w, in luc~ ~r ~u~= ~lie~ which =his 2c~ dee~ ~ ~ I.D, No. 80905 132 scare Scroe*: PO B~X 11903 ~L~tiS~lr~. PA 17108-19~3 (~7) 233-S3S3 plain=if~ CIVIL ACTION - LAW CERTIFICATE OF SERVICE I hereby certify that a tree and correct copy of the foregoing Notice of Filing of Notice of Removal Filed on Behalf of Defendant PHICO Group Inc., et al. was served upon counsel for Plaintiff, by first class mail, postage prepaid, on January 9, 2002, at the following address: Elliot A. Strokoff, Esquire Marlo R. Bordogna, Esquire Strokoff& Cowden, P.C. 132 State Street P.O. Box 11903 Harrisburg, PA 17108-1903 Jil~. Latshfi3k-~[ - ~ KRLSHAR:18638.1