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Home My WebLink About10-2662RED- { CIF, 20 10 APR 2 1 N-11 r"' UNI 1 tp . Johnson, Duffle, Stewart & Weidner Attorney for Plaintiff By: John R. Ninosky I.D. No. 78000 Elizabeth D. Snover I.D. No. 200997 301 Market Street - P. O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 BRUCE K. BARCLAY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. I? In lO -W, V. CIVIL ACTION - LAW BBEC, INC., DECLARATORY JUDGMENT REQUESTED Defendants JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone: 717-249-3166 Toll Free: 800-990-9106 g9'-061A &?-7 44 33"7 ett- '?? SOU9V4 "ISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan m6s adelante en las siguientes p6ginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despu6s de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin m6s aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI LISTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone: 717-249-3166 Toll Free: 800-990-9106 Johnson, Duffle, Stewart & Weidner By: John R. Ninosky I.D. No. 78000 Elizabeth D. Snover I.D. No. 200997 301 Market Street - P. O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 BRUCE K. BARCLAY, Plaintiff V. BBEC, INC., Defendants Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DECLARATORY JUDGMENT REQUESTED COMPLAINT JURY TRIAL DEMANDED AND NOW, comes the Plaintiff, by and through his counsel, Johnson, Duffie, Stewart & Weidner, P.C., who files this Complaint and respectfully states the following: PARTIES 1. The Plaintiff is Bruce K. Barclay (hereinafter "Mr. Barclay"), an adult individual who resides at 253 Brindle Road, Mechanicsburg, Cumberland County, Pennsylvania. 2. The Defendant is BBEC, Inc., a corporation organized and existing under the laws of Pennsylvania with a principal place of business located at 507 North York Street, Mechanicsburg, Cumberland County, Pennsylvania 17055. 1 VENUE 3. Venue in this action is proper in Cumberland County, Pennsylvania in that the Defendant transacts and maintains a principal place of business in Cumberland County. FACTUAL BASIS FOR CAUSES OF ACTION 4. This is, in part, an action for declaratory judgment pursuant to 42 Pa.C.S. § 7531 et seq., for the purpose of determining a question of actual controversy between the parties as hereinafter more fully appears. 5. Mr. Barclay entered into an Employment Agreement (hereinafter "Agreement") with BBEC, Inc. dated December 15, 2000. A true and correct copy of the Agreement (with irrelevant portions redacted) is attached hereto as Exhibit A. 6. Throughout the Agreement, Mr. Barclay is referred to as "Employee" and BBEC, Inc. is referred to as "Company." 7. The Agreement, at subsection 5(a), states as follows: 5. Other Benefits: (a) Health Insurance. Company agrees to provide health insurance coverage on behalf of Employee at Company cost during the Term. Further, Company agrees to provide health insurance coverage, on behalf of Employee, following the end of his employment under this Agreement at Company cost until the earlier of Employee's death or the date Employee attains age 65. 2 8. The "Term" referred to in subsection 5(a) is the "Term of Employment" enumerated in subsection 3 being "a period commencing on the date of this Agreement (December 15, 2000) and ending on December 31, 2020... unless the Employee's employment is sooner terminated in accordance with one of the provisions of this Section 3... (Exhibit A, subsection 3) 9. On April 9, 2008, Mr. Barclay voluntarily terminated his employment with BBEC, Inc. 10. Voluntary Termination is provided for in the Agreement at subsection 3(b): Voluntary Termination, Retirement, or Death. If the Employee voluntarily terminates employment, retires or dies, the Employee's employment under this Agreement will be deemed terminated as of the date of the Employee's voluntary termination, retirement or death and all rights of the Employee hereunder will cease as of the date of such termination and any benefits payable to the Employee will be determined in accordance with the pension, welfare, fringe benefit, expense reimbursement, salary deferral and insurance programs of the Company then in effect. 11. Subsection 5(a) of the Agreement requires BBEC, Inc. to continue to provide health coverage to Mr. Barclay at cost to BBEC, Inc. following the end of his employment (including voluntary termination) with BBEC, Inc. and until Mr. Barclay attains the age of 65. 12. Despite the clear terms of the Agreement,. as of April 2008, BBEC, Inc. has failed to provide health insurance coverage for Mr. Barclay. 3 13. Mr. Barclay now seeks a declaratory judgment that, under the terms of the Agreement, BBEC, Inc. is required to provide health coverage to Mr. Barclay at BBEC, Inc.'s cost as set forth in subsection 5(a) after his voluntary termination and until he attains age 65. 14. Mr. Barclay also seeks damages for breach of subsection 5(a) of the Agreement in an amount equal to the sums expended by Mr. Barclay to maintain health coverage for himself from April 2008 until such time as BBEC, Inc. resumes the provision of health insurance coverage for Mr. Barclay as set forth in the Agreement. COUNTI DECLARATORY JUDGMENT ACTION PURSUANT TO 42 Pa. C.S.A. 7531 et seg. 15. Plaintiff incorporates by reference the averments of paragraphs 1 through 14 as if the same were set forth herein at length. 16. The Agreement, specifically subsection 5(a), requires BBEC, Inc. to provide health insurance coverage for Mr. Barclay until he attains the age of 65. 17. Mr. Barclay seeks a declaratory judgment of the obligations of BBEC, Inc. under the terms of the Agreement at subsection 5(a) in order to remove any uncertainty as to those contractual obligations to provide health insurance coverage. 4 WHEREFORE, Plaintiff respectfully requests this Honorable Court to declare that, under the terms of the Employment Agreement, BBEC, Inc. is obligated to provide health coverage to Bruce K. Mr. Barclay until he attains the age of 65 and was required to do so after his voluntary termination. COUNT II BREACH OF EMPLOYMENT AGREEMENT 18. Plaintiff incorporates by reference the averments of paragraphs 1 through 17 as if the same were set forth herein at length. 19. The Agreement clearly requires BBEC, Inc. to provide health insurance coverage to Mr. Barclay after his voluntary termination of employment and until he attains the age of 65. 20. BBEC, Inc. is in breach of the terms of the Agreement in failing to provide health insurance coverage for Mr. Barclay from April 2008 to the present. 21. As a result of this breach, Mr. Barclay has obtained health insurance coverage for himself and maintains that coverage at his own cost at present and a demand is made therefore. 22. Mr. Barclay will continue to incur the cost of health insurance coverage until such time as BBEC, Inc. provides coverage as set forth in the agreement. 5 23. A demand is also made for these future costs incurred by Mr. Barclay until such time as BBEC, Inc. provides the coverage as required by the Agreement. WHEREFORE, Plaintiff seeks a judgment representing the costs he has incurred to obtain and maintain health insurance coverage after April 2008 to the present and in the future until BBEC, Inc. provides coverage as provided for in the Agreement plus any other relief that this Court deems appropriate. JOHNSON, DUFFIE, STEWART & WEIDNER By: qld4 gdkzld? ohn R. Ninosky Elizabeth D. Snover Attorneys for Plaintiff Date: April 20, 2010 393724 6 EMPLOYMENT AGREEMENT THIS AGREEMENT ("Agreement") made as of the /day of December 2000, between BBEC, INC., a Pennsylvania business corporation (the "Company"), and BRUCE K. BARCLAY, an individual (the "Employee"). WITNESSETH: WHEREAS. WHEREAS, WHEREAS, WHEREAS, WHEREAS, NOW, THEREFORE, the parties hereto, intending to be legally bound hereby, agree as follows: 1. Employment. Company hereby agrees to employ the Employee, and the Employee hereby accepts employment with the Company, on the terms and conditions set forth in this Agreement. 2. Duties of Employee. The Employee will perform and discharge well and faithfully such duties and will be employed as President and Chief Executive Officer, and will hold such other titles as may be given to him from time to time by the Board of Directors. 3. Term of Employment. The Employee's employment under this Agreement will be for a period commencing upon the date of this Agreement and ending on December 31, 2020, hereinafter defined as (the "Term"), unless the Employee's employment is sooner terminated in accordance with one of the provisions of this Section 3; provided, however, the term of this Agreement will automatically renew for a one-year period commencing on the twentieth 368483.4 PLAINTIFF'S MOM A anniversary date of the original term, unless either party gives written notice of nonrenewal to the other party no later than sixty (60) days prior to the end of the original term. The term of this Agreement shall automatically renew for additional one-year periods thereafter unless either party gives written notice of no renewal to the other party no later than sixty (60) days prior to the end of the one-year renewal term. (a) Termination for Cause. The Employee's employment under this Agreement may be terminated at any time during the Term for "Cause" (as herein defined), by action of the Board of Directors of the Company, upon giving written notice of such termination to the Employee. As used in this Agreement, "Cause" means any of the following events: (i) the Employee is convicted of or enters a plea of guilty or nolo contendere to a felony, a crime of falsehood, or a crime involving, fraud or moral turpitude, or the actual incarceration of the Employee for a period of ten (10) consecutive days; or (ii) the Employee has, in the reasonable opinion of the Board of Directors, committed an intentional act of fraud, embezzlement or theft in connection with the Employee's duties in the course of his employment or has caused intentional damage to property of the Company or has intentionally and wrongfully disclosed Confidential Information. { If the Employee's employment is terminated under the provisions of this subsection, then all rights of the Employee under Section 4 will cease as of the effective date of such termination. (b) Voluntary Termination. Retirement or Death. If the Employee voluntarily terminates employment, retires or dies, the Employee's employment under this Agreement will be deemed terminated as of the date of the Employee's voluntary termination, retirement or death, and all rights of the Employee hereunder will cease as of the date of such termination and any benefits payable to the Employee will be determined in accordance with the pension, welfare, fringe benefit, expense reimbursement, salary deferral and insurance programs of the Company then in effect. (c) Disabili . If the Employee is incapacitated by accident, sickness, or otherwise so as to render the Employee mentally or physically incapable of performing the essential duties required of the Employee under Section 2, notwithstanding reasonable accommodation, for a continuous period of eighteen (18) months, then, upon the expiration of such period or at any time thereafter, by -2- action of the Board of Directors of the Company, the Employee's employment under this Agreement may be terminated immediately upon giving the Employee notice to that effect. If the Employee's employment is terminated under the provisions of this subsection 3(b), then all rights of the Employee under Section 4 will cease as of the last business day of the week in which such termination occurs, and the Employee will thereafter be entitled to the benefits to which he is entitled under any disability plan of the Company, if any, in which he is then a participant. 4. Term Compensation and Related Matters. - (a) Salary. For services. performed by the Employee under this Agreement, the Company will pay the Employee a salar , in the aggregate, during the Term, at the annualized rate of 1 . payable at the same times as salaries are payable to other employees or the Company. Employee's base compensation shall be adjusted annually by percent ( %) over the Term. (b) Bonus. Employee may also be eligible to receive an annual bonus (c) Pension and Welfare Benefits. The Company will provide the Employee, during the Term, with pension and welfare benefits (within the meaning of Section 3 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) in the aggregate not less favorable than those received by other employees of the Company. (d) Supplemental Life Insurance. Company agrees to pay the premium cost of all life insurance which Employee maintains as of the effective date of this Agreement. (e) Automobile. Company agrees to provide for Employee during the Term the use of an automobile, model and make determined by the Board of Directors and to reimburse Employee for all costs associated with the vehicle, including fuel, mileage, and maintenance. -3- (f) Expense Reimbursement. The Employee will be entitled to reimbursement of all expenses incurred by him in the discharge of his duties in the furtherance of the business of the Company. (g) Technology. Company agrees to pay the costs of technology connections and equipment required by Employee in order that Employee can fulfill his responsibilities as President and Chief Executive Officer, including necessary links and equipment at Employee's office and residence locations. The Company will be responsible for updating such connections and equipment so that it is compatible with the Company's equipment. Upon the termination of this Agreement any equipment installed as of such date shall be deemed the property of the Employee. (h) Incidental Benefits. To avoid interference with Employee's significant responsibilities as President and Chief Executive Officer, Company agrees that in lieu of paying Employee an additiona 'toward his base salary, the Company will pay for the incidental expenses of Employee, as agreed between Employee and the Company, provided however, said amount to be adjusted as per base salary adjustments pursuant to Section 4(a). 5. Other Benefits. (a) Health Insurance. Company agrees to provide health insurance coverage on behalf of Employee at Company cost during the Term. Further, Company agrees to provide health insurance coverage, on behalf of Employee, following the end of his employment under this Agreement at Company cost until the earlier of Employee's death or the date Employee attains age 65. (b) Vacation. The Employee will be entitled to not less than twelve (12) weeks of vacation per calendar year or such other amount, not less than twelve (12) weeks, as may be approved from time to time by the Board of Directors. Employee may carry over any unused vacation days. Upon Employee's termination of employment, whether by expiration of this Agreement or otherwise, Employee shall be entitled to payment for any carried over and unused vacation days. 6. Confidentiality. (a) As used in this section, the term "Confidential Information" means any and all information regarding the organization, business or finances of the Company or any of its subsidiaries and affiliates, including, but not limited to, any and all business plans and strategies, financial information, proposals, reports, marketing plans and information, cost information, customer information, -4- customer lists, claims history and experience data, sales volume and other sales statistics, personnel data, pricing information, and concepts and ideas. (b) The Employee acknowledges and agrees that his employment by the Company will afford him an opportunity to acquire Confidential Information and that the misappropriation or disclosure of any Confidential Information would cause irreparable harm to the Company and its subsidiaries and affiliates. (c) During the Term and for a period of three (3) years thereafter, the Employee will not use for the benefit of anyone other than the Company and its subsidiaries and affiliates or disclose any of the Confidential Information for any reason or purpose whatsoever except to authorized representatives of such business entities or as directed or authorized by the Company. (d) Upon termination of this Agreement, the Employee will immediately surrender to the owner thereof all documents (other than documents created by him) in his possession, custody or control embodying the Confidential Information or any part thereof and will not thereafter remove the same from the premises on which it is located. (e) The provisions of this Section 5 shall survive termination of this Agreement for any reason. 7. Non-Compete Obligation. Employee agrees that during the Term of this Agreement and for a period of three (3) years after the end of the Term; or any extension thereof, Employee shall not, directly or indirectly, engage (as principal, partner, director, officer, agent, employee, or owner, with or without compensation) in any line of business that the Company is involved within one hundred (100) miles of the main office of the Company. Notwithstanding the above, the provisions of this Section 7 shall not apply to Employee's ownership interest in Infrastructure Technology Contractors, incorporated. Employee shall not entice or solicit, directly or indirectly, any other executives or key management personnel of the Company (or any subsidiary) to work with Employee or any entity with which Employee has affiliated for a period of three (3) years after the end of the Term, or any extension thereof. Employee shall also not entice or solicit, directly or indirectly, any client or customer of the Company (or any subsidiary) for any competitor or in any competitive activity for a period of three (3) years after the end of the initial Term or any extension thereof. 8. Remedies. Employee acknowledges and agrees that the remedy at law of the Company for a breach or threatened breach of any of the provisions of Sections 5 or 6 would be inadequate and, in recognition of this fact, in the event of a breach or threatened breach by the Employee of any of the provisions of Sections 5 or 6, it is agreed that, in addition to the remedy at law, the Company will be entitled to, without posting any bond, and the Employee agrees not -5- to oppose any request of the Company for, equitable relief in the form of specific performance, a temporary restraining order, a temporary or permanent injunction, or any other equitable remedy which may then be available. Nothing herein contained will be construed as prohibiting the Company from pursuing any other remedies available to them for such breach or threatened breach. 9. Indemnification. The Company will indemnify the Employee, to the fullest extent permitted under Pennsylvania and federal law, with respect to any threatened, pending or completed legal or regulatory action, suit or proceeding brought against him by reason of the fact that he is or was a director, officer, employee or agent of the Company. To the fullest extent permitted by Pennsylvania and federal law, the Company will, in advance of final disposition, pay any and all expenses incurred by the Employee in connection with any threatened, pending or completed legal or regulatory action, suit or proceeding with respect to which he may be entitled to indemnification hereunder. The Company will use their best efforts to obtain insurance coverage for the Employee under a policy covering directors and officers thereof against litigation, arbitrations and other legal and regulatory proceedings. 10. Notices. Any notice required or permitted-to be given under this Agreement will, to be effective hereunder, be given to the Company, in the case of notices given by the Employee, and will, to be effective hereunder, be given by the Company, in the case of notices given to the Employee. Any such notice will be deemed properly given if in writing and if mailed by registered or certified mail, postage prepaid with return receipt requested, to the residence of the Employee, in the case of notices to the Employee, and to the main office of the Company. 11. Waiver. No provision of this Agreement may be modified, waived, or discharged unless such waiver, modification, or discharge is agreed to in writing and signed by the parties. No waiver by any party hereto at any time or any breach by the other parry hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party will be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. 12. Assignm . This Agreement is not assignable by any party hereto, except by the Company to any successor in interest to the respective businesses of the Company. 13. Entire Agreement. This Agreement contains the entire agreement of the parties relating to the subject matter of this Agreement and supersedes any prior agreement of the parties. 14. Validi . The invalidity or unenforceability of any provisions of this Agreement will not affect the validity or enforceability of any other provision of this Agreement, which will remain in full force and effect. -6- 15. Applicable Law. Except to the extent preempted by federal law, this Agreement will be governed by and construed in accordance with the domestic internal law of the Commonwealth of Pennsylvania. 16. Headings. The headings of the sections and subsections of this Agreement are for convenience only and will not control or affect the meaning or construction or limit the scope or intent of any of the provisions of this Agreement. 17. Effective Date. This Agreement will become effective immediately upon the execution and delivery of this Agreement by the parties hereto. 18. Withholding for Taxes. All amounts and benefits paid or provided hereunder will be subject to withholding for taxes as required by law. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first BBEC, INC. By: (Vice) Preside (SEAL) EMPLOYEE By: Bruce K. Barcla -7- VERIFICATION 1, BRUCE BARLCAY, have read the foregoing Complaint, and hereby affirm that it is true and correct to the best of my personal knowledge, or information and belief. This Verification and statement is made subject to the penalties of 18 Pa. C.S. §4904 relating to unswom falsification to authorities; I verify that all the statements made in the foregoing are true and correct and that false statements may subject me to the penalties of 18 Pa. C.S. §4904. Bruce Barclay Date: 39MI ,- , FILE?-~;~r f~~~ 2010 .~Li~~ -8 ~~ I I ~ ~2 cur~,,~~ , ~~ ~:~~3n Johnson, Duffle, Stewart 8~ Weidner By: John R. Ninosky I.D. No. 78000 Elizabeth D. Snover I.D. No. 200997 301 Market Street ~ P. O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 BRUCE K. BARCLAY, Plaintiff v. BBEC, INC., Defendant Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-2662 CIVIL ACTION -LAW DECLARATORY JUDGMENT REQUESTED JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER AND NOW, comes the Plaintiff, Bruce K. Barclay, by and through his counsel, Johnson, Duffle, Stewart & Weidner, P.C., who files this Reply to New Matter by respectfully stating the following: 24. Denied. The averments contained in these paragraphs contain conclusions of law and fact to which no response is required. If a response is deemed required, the averments contained herein are denied. 25. Admitted. By way of further answer, Mr. Barclay was forced to pay for COBRA coverage due to BBEC, Inc. wrongfully terminating Mr. Barclays coverage. WHEREFORE, Plaintiff, Bruce K. Barclay, respectfully requests judgment in his favor against Defendant, BBEC, Inc. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: J n R. Ninosky, Esquire A orney I.D. No. 78000 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Plaintiff Date: June 7, 2010 Page 2 of 2 I, BRUCE BARLCAY, h~~e read the foregoing P~frttlll"'s Reply tb New AAstler, --,~~ ~~~ Bruce Barclay Date: L 7 ~`~" 6/7/2010 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Plaintiffs Reply to New Matter has been duly served upon the following counsel of record, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on June 7, 2010: George B. Faller, Jr., Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 JOHNSON, DUFFIE, STEWART & WEIDNER By: Joh R. Ninosky ~~ FILL" _~ , .r ~ i.. 1,' "'4 ~~;' Tre_ _ ~ ~,~ ~ _ I',;~W ~, ~ „, .~. 4 .. ~t .:= LL'iu ~.`~.~~' L(~J ~ ii L' .1 c~ » - - ~~~~~~ ~~~ ~, ,:: , . . JOHNSON, DUFFIE, STEWART 8~ WEIDNER By: John R. Ninosky I.D. No. 78000 Elizabeth D. Snover I.D. No. 200997 301 Market Street ~ P. O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 Attorney for Plaintiff BRUCE K. BARCLAY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 10-2662 v. : CIVIL ACTION -LAW BBEC, INC., DECLARATORY JUDGMENT REQUESTED Defendants JURY TRIAL DEMANDED MOTION FOR JUDGMENT ON THE PLEADINGS AND NOW, comes the Plaintiff, by and through his counsel, Johnson, Duffie, Stewart & Weidner, P.C., who files this Motion for Judgment on the Pleadings by respectfully stating the following: 1. The Plaintiff Bruce K. Barclay (hereinafter "Mr. Barclay") has filed a Declaratory Judgment and Breach of Contract Action against the Defendant BBEC, Inc. relating to a provision in Mr. Barclays Employment Agreement (attached to the Complaint as Exhibit A) regarding health insurance benefits. 2. The pleadings in this matter are now closed and the legal dispute over the health insurance benefits provision at Section 5(a) of the Employment Agreement (hereinafter "Agreement") is ripe for disposition pursuant to Pennsylvania Rules of Civil Procedure 1034. 3. The undisputed facts are as follows: Mr. Barclay entered into the Agreement with BBEC, Inc. dated December 15, 2000. (Complaint ¶ 5, Admitted in Answer ¶ 5) A true and correct copy of the Agreement (with irrelevant portions redacted) was attached to the Complaint and, for convenience, is attached hereto as Exhibit A. 4. Throughout the Agreement, Mr. Barclay is referred to as "Employee" and BBEC, Inc. is referred to as "Company." (Complaint ¶ 6, Admitted in Answer ¶ 6) 5. The Agreement, at Section 5(a), states as follows: 5. Other Benefits: (a) Health Insurance. Company agrees to provide health insurance coverage on behalf of Employee at Company cost during the Term. Further, Company agrees to provide health insurance coverage, on behalf of Employee, following the end of his employment under this Agreement at Company cost until the earlier of Employee's death or the date Employee attains age 65. (Complaint ¶ 7, Admitted in Answer ¶ 7) See, Exhibit A, Subsection 5(a). 6. The "Term" referred to in subsection 5(a) is the "Term of Employment" enumerated in Section 3 being "a period commencing on the date of this Agreement (December 15, 2000) and ending on December 31, 2020...unless the Employee's employment is sooner terminated in accordance with one of the provisions of this Section 3... (Exhibit A, subsection 3) (Complaint ¶ 8, Admitted in Answer ¶ 8) 2 7. On April 9, 2008, Mr. Barclay voluntarily terminated his employment with BBEC, Inc. (Complaint ¶ 9, Admitted in Answer ¶ 9) 8. Voluntary Termination is provided for in the Agreement at subsection 3(b): Voluntary Termination. Retirement or Death. If the Employee voluntarily terminates employment, retires or dies, the Employee's employment under this Agreement will be deemed terminated as of the date of the Employee's voluntary termination, retirement or death and all rights of the Employee hereunder will cease as of the date of such termination and any benefits payable to the Employee will be determined in accordance with the pension, welfare, fringe benefit, expense reimbursement, salary deferral and insurance programs of the Company then in effect. (Complaint ¶ 10, Admitted in Answer ¶ 10) 9. As stated in the Complaint, it is the position of Mr. Barclay that Subsection 5(a) of the Agreement requires BBEC, Inc. to continue to provide health insurance coverage to Mr. Barclay at cost to BBEC, Inc. following the end of his employment (including voluntary termination) with BBEC, Inc. and until Mr. Barclay attains the age of 65 or dies. 10. As stated in the Answer with New Matter, it is the position of BBEC, Inc. that Mr. Barclay is not entitled to the health insurance benefits provided at subsection 5(a) due to the language at subsection 3(b) which states "all rights of the employee hereunder will cease as of the date of such [voluntary] termination..." (Answer ¶¶ -20) 11. In deciding upon a motion for judgment on the pleadings under Pennsylvania Rule of Civil Procedure 1034, a court may consider only the pleadings and any documents properly attached thereto. Bata v. Central-Penn National Bank of Philadelphia 224 A.2d 174, 179 (Pa. 1966). 3 r ~ 12. Where there are material issues of fact in dispute, judgment on the pleadings cannot be entered. Miami National Bank v. Willens, 190 A.2d 438, 439 (Pa. 1963). 13. As to the text of the Agreement, there is no issue of fact in dispute. 14. Therefore, the interpretation of the Agreement and the obligations of BBEC, Inc. under the terms of that Agreement are a question of law ripe for disposition by this Honorable Court. 15. Indeed, the interpretation of an employment agreement, like any other contract, is a question of law. See, Halpin v. LaSalle University, 639 A.2d 37, 39 (Pa. Super. 1994). 16. When interpreting a contract, the court's paramount goal is to ascertain and give effect to the intent of the parties as reasonably manifested by the language of their written agreement. Toombs NJ Inc. v. Aetna Casualty & Surety Co , 591 A.2d 304, 307 (Pa. Super. 1991). 17. When the language of a writing is clear and unequivocal, its meaning must be determined by its contents alone. Greene v. Oliver Realty, Inc., 526 A.2d 1192, 1196, (Pa. Super. 1987). 18. A written contract which is deemed unambiguous "must be held to express all of the negotiations, conversations, and agreements made prior to its execution, and neither oral 4 testimony, nor prior written agreements, or other writings are admissible to explain or vary the terms of the contract." McGuire v. Schneider. Inc., 534 A.2d 115, 117-118 (Pa. Super. 1987). 19. The fact that parties to a contract disagree upon its proper interpretation does not necessarily render the writing ambiguous. Halpin v. LaSalle University, 639 A.2d at 39. 20. When determining whether a contract is ambiguous, a court must view the contract as a whole and not in discrete units. O'Brien Energy Systems. Inc. v. American Employers' Ins. Co., 629 A.2d 957, 960 (Pa. Super. 1993). 21. The question before this Court is whether the Agreement, read as a whole, entitles Mr. Barclay to ongoing health insurance coverage after the date of his voluntary termination. 22. It is submitted that paragraph 5(a), by its plain and unambiguous language, provides "...Company agrees to provide health insurance coverage, on behalf of Employee, following the end of his employment under this Agreement at Company cost until the earlier of Employee's death or the date Employee attains age 65" and that the "discrete unit" cited by BBEC, Inc. of Section 3(b) is not intended to annul the rights to insurance coverage under Section 5(a). 23. BBEC, Inc. cites only a portion of Section 3(b) for the proposition that all rights (including benefits) given in the Agreement to Mr. Barclay terminated with his employment. 5 24. However, Section 3(b) states in full part: "[i]f the Employee voluntarily terminates employment, retires or dies... all rights of the Employee hereunder will cease as of the date of such termination and any benefits payable to the Employee will be determined in accordance with the pension, welfare, fringe benefit, expense reimbursement, salary deferral and insurance programs of the Company then in effect." 25. When read as a whole, Section 3(b) appears to contemplate that, in the instance of voluntary termination, Mr. Barclay would still be entitled to post-employment benefits as determined by the Company's benefit plans and insurance programs. 26. As such, there is no apparent conflict between the Section 3(b) and Section 5(a) which provides for: "health insurance coverage on behalf of Employee following the end of his employment under [the] Agreement." 27. Besides the post-employment benefits given by the plain language of Section 5(a) of the Agreement, Section 3(b), when read as a whole, also contemplates payment of benefits (pension, deferred compensation, fringe benefit) to Mr. Barclay after the term of his employment despite the language cited by BBEC, Inc.. 28. Additionally, Section 3(a) of the Agreement also contemplates the right to some post-employment benefits in the instance of termination for cause. 29. Section 3(a) of the Agreement states, regarding termination for cause, that: "if the Employee's employment is terminated under the provisions of this subsection, then all rights of 6 the Employee under Section 4 will cease as of the effective date of such termination." See, Exhibit A to Complaint, ¶ 3(a). 30. As such, even if Mr. Barclay was terminated for cause (which did not occur here), Mr. Barclay would still be entitled to the "Other Benefits" contained in Section 5 regarding health insurance coverage and unused vacation pay after his termination. 31. Importantly, the Agreement is clear that both in instances of voluntary termination and involuntary termination, Mr. Barclay is still entitled to receive some post-term or post employment benefits contrary to the truncated quote proffered by BBEC, Inc. for the proposition that Mr. Barclay is not entitled to the post-employment health insurance coverage provided under Section 5(a) the Agreement. 32. Post-term or post-employment benefits also appear to be contemplated in the structuring of the Agreement itself. 33. The Agreement separates the health insurance benefit provision under all "Other Benefits" in Section 5 from those listed as "Term Compensation" under Section 4. 34. Therefore, the health insurance coverage provision that Mr. Barclay seeks to enforce after his voluntary termination is not part of the "Term Compensation" but is listed as an "Other Benefit" implying that these benefits (and the right to payment for unused vacation days) are not part of the Term Compensation package. 7 35. BBEC, Inc. will ask this Honorable Court to use one small portion of Section 3(b) to render all of the other provisions in the Agreement that give Mr. Barclay rights to post-term or post-employment benefits as annulled or void. 36. However, this interpretation not only does not respect the language of Section 3(b) in its entirety, it also fails to respect the language of the whole Agreement which contemplates rights to post-term benefits at Sections 3 and 5. 37. The Agreement as a whole must be respected since the language of 5(a) would have little meaning if the provision of health insurance coverage to Mr. Barclay was to end with his employment. 38. Additionally, it is long standing Pennsylvania law that one portion of an agreement cannot be interpreted to annul another part of the same agreement. Laudig v. Laudig, 624 A.2d 651, 654 (Pa. Super. 1993). 39. Rather, a court will endeavor to interpret the parties' contract to effectuate the result reasonably intended by the parties. Id. 40. Section 5(a) clearly provides: "Other Benefits ... Company agrees to provide health insurance coverage on behalf of Employee at Company cost during the Term. Further, Company agrees to provide health insurance coverage, on behalf of Employee, following the end of his employment... until the earlier of Employee's death or the date Employee attains age 65." 8 41. When read as a whole, it is clear that the intent of the parties in Section 5(a) was to mandate that BBEC, Inc. provide health insurance benefits to Mr. Barclay during the term of his employment and after the term until he reached 65 or died. 42. To interpret the Agreement as having one portion of Section 3(b) wiping out the post-employment right to health coverage at 5(a) as suggested by BBEC, Inc. is contrary to Pennsylvania law and contrary the Agreement's intent as ascertained from the document as a whole. WHEREFORE, Plaintiff respectfully requests this Honorable Court to declare that, under the terms of the Employment Agreement, BBEC, Inc. is obligated to provide health coverage to Bruce K. Mr. Barclay until he attains the age of 65 or until his death and was required to do so after his voluntary termination. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: J n R. Ninosky, Esquire Attorney I.D. No. 78000 Elizabeth D. Snover, Esquire Attorney I.D. No. 200997 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Plaintiff Date: June 25, 2010 :403155 9 1/l~LDYl~El~Ti AGREEN~1~'I' THIS AGREEMENT ("Agreement'') made as of the ~~day of December 2000, between BBEC, INC., a Pennsylvania business corporation (the "Company"), and BRUCE K. BARCLAY, an individual (the "Employee"). WITNESSETH: WHEREAS, WHEREAS, WHEREAS, WHEREAS, WHEREAS, NOW, THEREFORE, the parties hereto, intending to be legally bound hereby, agree as follows: 1. Employment. Company hereby agrees to employ the Employee, and the Employee hereby accepts employment with the Company, on the terms and conditions set forth in this Agreement. 2. Duties of Employee. The Employee will perform and discharge well and faithfully such duties and will be employed as President and Chief Executive Officer, and will hold such other titles as may be given to him from time to time by the Board of Directors. 3. Term of Employment. The Employee's employment under this Agreement will be for a period commencing upon the date of this Agreement and ending on December 31, 2020, hereinafter defined as (the "Term"), unless the Employee's employment is sooner terminated in accordance with one of the provisions of this Section 3; provided, however, the term of this Agreement will automatically renew for aone-year period commencing on the twe 'e 368483.4 a PLAINTIFF'S ~ EXHIBIT a J~ !"'~ ~ a anniversary date of the original term, unless either party gives written notice of nonrenewal to the other party no later than sixty (b0) days prior to the end of the original term. The term of this Agreement shall automatically renew for additional one-year periods thereafter unless either party gives written notice of no renewal to the other party no later than sixty (60) days prior to the end of the one-year renewal term. (a) Termination for Cause. The Employee's employment under this Agreement may be terminated at any time during the Tenn for "Cause" (as herein defined), by action of the Board of Directors of the Company, upon giving written notice of such termination to the Employee. As used in this Agreement, "Cause" means any of the following events: (i) the Employee is convicted of or enters a plea of guilty or nolo contendere to a felony, a crime of falsehood, or a crime involving fraud or moral turpitude, or the actual incarceration of the Employee for a period of ten (10) consecutive days; or A (ii) the Employee has, in the reasonable opinion of the Board of Directors, committed an intentional act of fraud, . embezzlement or theft in connection with the Employee's duties in .~ ~ the course of his employment or has caused intentional damage to property of the Company or has intentionally and wrongfully disclosed Confidential Information. i If the Employee's employment is terminated under the provisions of this subsection, then all rights of the Employee under Section 4 will cease as of the effective date of such termination. (b) Voluntary Termination, Retirement or Death. If the Employee voluntarily terminates employment, retires or dies, the Employee's employment under this Agreement will be deemed terminated as of the date of the Employee's voluntary termination, retirement or death, and aII rights of the Employee hereunder will cease as of the date of such termination and any benefits payable to the Employee will be determined in accordance with the pension, welfare, fringe benefit, expense reimbursement, salary deferral and insurance programs of the Company then in effect. (c) Disabili If the Employee is incapacitated by accident, sickness, or otherwise so as to render the Employee mentally or physically incapable of performing the essential duties required of the Employee under Section 2, notwithstanding reasonable accommodation, for a continuous period of eighteen (1S) months, then, upon the expiration of such period or at any time thereafter, by -2- action of the Board of Directors of the Company, the Employee's employment under this Agreement may be terminated immediately upon giving the Employee notice to that effect. If the Employee's employment is terminated under the provisions of this subsection 3(b), then all rights of the Employee under Section 4 will cease as of the last business day of the week in which such termination occurs, and the Employee will thereafter be entitled to the benefits to which he is entitled under any disability plan of the Company, if any, in which he is then a participant. 4. Term Compensation and Related Matters. (a) S ar• For services .performed by the Employee under this Agreement, the Company will pay the Employee a salary, in the aggregate, during the Term, at the annualized rate of ~ payable at the same times as salaries are payable to other employees or the Company. Employee's base compensation shall be adjusted annually by percent Q %) over the Term. (b) Bonus. Employee may also be eligible to receive an annual bonus (c) Pension and Welfare Benefits. The Company will provide the Employee, during the Term, with pension and welfare benefits (within the meaning of Section 3 of the Employee Retirement Income Security Act of 1974, as amended ("FRIBA")) in the aggregate not less favorable than those received by other employees of the Company. (d) Supplemental Life Insurance. Company agrees to pay the premium cost of all life insurance which Employee maintains as of the effective date of this Agreement. (e) Automobile. Company agrees to provide for Employee during the Term the use of an automobile, model and make determined by the Board of Directors and to reimburse Employee for all costs associated with the vehicle; including fuel, mileage, and maintenance. -3- (f) Expense Reimbursement. The Employee will be entitled to reimbursement of all expenses incurred by him in the discharge of his duties in the furtherance of the business of the Company. (g) Technolo~y. Company agrees to pay the costs of technology connections and equipment required by Employee in order that Employee can fulfill his responsibilities as President and Chief Executive Officer, including necessary links and equipment at Employee's office and residence locations. The Company will be responsible for updating such connections and equipment so that it is compatible with the Company's equipment. Upon the termination of this Agreement any equipment installed as of such date shall be deemed the property of the Employee. (h) Incidental Benefits. To avoid interference with Employee's- significant responsibilities as President and Chief Executive Officer, Company agrees that in lieu of paying Employee an additions 'toward his base salary, the Company will pay for the incidental expenses of Employee, as agreed between Employee and the Company, provided however, said amount to be adjusted as per base salary adjustments pursuant to Section 4(a). 5. Other Benefits. (a) Health Insurance. Company agrees to provide health insurance coverage on behalf of Employee at Company cost during the Term. Further, Company agrees to provide health insurance coverage, on behalf of Employee, following the end of his employment under this Agreement at Company cost until the earlier of Employee's death or the date Employee attains age 65. (b) Vacation. The Employee will be entitled to not less than twelve (12) weeks of vacation per calendar year or such other amount, not less than twelve (12} weeks, as may be approved from time to time by the Board of Directors. Employee may carry over any unused vacation days. Upon Employee's termination of employment, whether by expiration of this Agreement or otherwise, Employee shall be entitled to payment for any carried over and unused vacation days. 6. Confidentiality. (a) As used in this section, the term "Confidential Information" means any and all information regarding the organization, business or fm.ances of the Company or any of its subsidiaries and affiliates, including, but not limited to, any and all business plans and strategies, financial information, proposals, reports, marketing plans and information, cost information, customer information, -4- customer lists, claims history and experience data, sales volume and other sales statistics, personnel data, pricing information, and concepts and ideas. (b) The Employee acknowledges and agrees that his employment by the Company will afford him an opportunity to acquire Confidential Information and that the misappropriation or disclosure of any Confidential Information would cause irreparable harm to the Company and its subsidiaries and affiliates. (c) During the Term and for a period of three (3) years thereafter, the Employee will not use for the benefit of anyone other than the Company and its subsidiaries and affiliates or disclose any of the Confidential Information for any reason or purpose whatsoever except to authorized representatives of such business entities or as directed or authorized by the Company. (d) Upon ternunation of this Agreement, the Employee will immediately surrender to the owner thereof all documents (other than documents created by him) in his possession, custody or control embodying the Confidential Information or any part thereof and will not thereafter remove the same from the premises on which it is located. (e) The provisions of this Section 5 shall survive termination of this Agreement for any reason. 7. Non-Compete Obligation. Employee agrees that during the Term of this Agreement and for a period of three (3) years after the end of the Term; or any extension thereof, Employee shall not, directly or indirectly, engage (as principal, partner, director, officer, agent, employee, or owner, with or without compensation) i.n any line of business that the Company is involved within one hundred (100) miles of the main office of the Company. Notwithstanding the above, the provisions of this Section 7 shall not apply to Employee's ownership interest in Infrastructure Technology Contractors, incorporated. ~ ' Employee shall not entice or solicit, directly or indirectly, any other executives or key management personnel of the Company (or any subsidiary) to work with Employee or any entity with which Employee has affiliated for a period of three (3) years after the end of the Term, or any extension thereof. Employee shall also not entice or solicit, directly or indirectly, any client or customer of the Company (or any subsidiary) for any competitor or in any competitive activity for a period of three (3) years after the end of the initial Term or any extension thereof. 8. Remedies. Employee acknowledges and agrees that the remedy at law of the Company for a breach or threatened breach of any of the provisions of Sections 5 or 6 would be inadequate and, in recognition of this fact, in the event of a breach or threatened breach by the Employee of any of the provisions of Sections 5 or 6, it is agreed that, in addition to the remedy at law, the Company will be entitled to, without posting any bond, and the Employee agrees not -5- to oppose any request of the Company for, equitable relief in the form of specific performance, a temporary restraining order, a temporary or permanent injunction, or any other equitable remedy which may then be available. Nothing herein contained will be construed as prohibiting the Company from pursuing any other remedies available to them for such breach or threatened breach. 9. Indemnification. The Company will indemnify the Employee, to the fullest extent permitted under Pennsylvania and federal law, with respect to any threatened, pending or completed legal or regulatory action, suit or proceeding brought against him by reason of the fact that he is or was a director, officer, employee or agent of the Company. To the fullest extent permitted by Pennsylvania and federal law, the Company will, in advance of final disposition, pay any and all expenses incurred by the Employee in connection with any threatened, pending or completed Iegal or regulatory action, suit or proceeding with respect to which he may be entitled to indemnification hereunder. The Company will use their best efforts to obtain insurance coverage for the Employee under a policy covering directors and officers thereof against litigation, arbitrations and other Iegal and regulatory proceedings. 10. Notices. Any notice required or permtted to be given under this Agreement will, to be effective hereunder, be given to the Company, in the case of notices given by the Employee, and will, to be effective hereunder, be given by the Company, in the case of notices ~~ given to the Employee. Any such notice will be deemed properly given if in writing and if mailed by registered or certified mail, postage prepaid with return receipt requested, to the residence of the Employee, in the case of notices to the Employee, and to the main office of the Company. 11. Waiver. No provision of this Agreement may be modified, waived, or discharged unless such waiver, modification, or dischazge is agreed to in writing and signed by the parties. No waiver by any party hereto at any time or any breach by the other party hereto of, or compliance with, .any condition or provision of this Agreement to be performed by such, other party will be deemed a waiver..of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. 12. Assignment. This Agreement is not assignable by~any party hereto, except by the Company to any successor in interest to the respective businesses of the Company. 13. Entire Agreement. This Agreement contains the entire agreement of the parties relating to the subject matter of this Agreement and supersedes any prior agreement of the parties. 14. Validi The invalidity or unenforceability of any provisions of this Agreement will not affect the validity or enforceability of any other provision of this Agreement, which will remain in full force and effect. -6- I5. Applicable Law. Except to the extent preempted by federal law, this Agreement will be governed by and construed in accordance with the domestic internal law of the Commonwealth of Pennsylvania. 16. Headings. The headings of the sections and subsections of this Agreement are for convenience only and will not control or affect the meaning or construction or limit the scope or intent of any of the provisions of this Agreement. . 17. Effective Date. This Agreement will become effective immediately upon the execution and delivery of this Agreement by the parties hereto. 1 R. Withholding for Taxes. All amounts and benefits paid or provided hereunder will be subject to withholding for taxes as required by law. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first BBEC, INC. By: (Vice) Preside (SEAL) EMPLOYEE By: Bruce K. Barcla -7- CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Motion for Judgment on the Pleadings has been duly served upon the following counsel of record, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on June 25, 2010: George B. Faller, Jr., Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 JOHNSON, DUFFIE, STEWART & WEIDNER By: ~/v J n R. Ninosky CA ~ Al. PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Court.) CAPTION OF CASE (entire caption must be stated in full) BRUCE K. BARCLAY, Plaintiff BBEC, Inc. vs. Defendant ~ u~ No. 10-2662, Civil Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Plaintiff s Motion for Judgment on the Pleadings 2. Identify counsel who will argue cases: (a) for plaintiffs: John R. Ninosky, Esquire, Johnson Duffle, P.O. Box 109, Lemoyne, PA 17403 (Name and Address) (b) for defendants: George B. Faller, Jr., Esquire, Martson Law Offices, 10 East High Street Carlisle, PA 17013 (Name and Address) 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: August 18, 2010 ::, ,~ f-i~ -~,~i -, :C~ ~~ :a i"~- Sig ature John R. Ninoskv Print your name Attorney for Plaintiff Bruce K. Barclay Date: June 25, 2010 INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. :404723 (List the within matter for the next Argument c7 a C o ._~____~_ _~__ _ v t~~ - ~- .~.. {- , ~ r~; : CX3 `~ `~, ~_ ~ ~' ~., rU .. r !~.. r Johnson, Duffie, Stewart & Weidner By: John R. Ninosky I.D. No. 78000 Elizabeth D. Snover I.D. No. 200997 301 Market Street ~ P. O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 BRUCE K. BARCLAY, Plaintiff v. BBEC, INC., Defendants 1r far 'r ~;r?+f 2~i~ J~~ 22 i' :~ ~+; t",-.`l; i;~'~~L,`,~'~~ `I`rk. Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-2662 CIVIL ACTION -LAW DECLARATORY JUDGMENT REQUESTED JURY TRIAL DEMANDED PRAECIPE TO REMOVE TO THE PROTHONOTARY: Please remove Plaintiffs Motion for Judgment on the Pleadings from the August 18, 2010 Argument Court list. This matter will be re-listed for October 6, 2010 Argument Court list at the appropriate time. Respectfully submitted, JOHNSON FFIE, STEWART & WEIDNER By: Jo n R. Nin sky, Esquire A orney I.D. No. 78000 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Date: July 21, 2010 Attorneys for Plaintiff . .~ , CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Praecipe to Remove has been duly served upon the following counsel of record, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on July 21, 2010: George °B. Fa#ler, Jr., Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 JOHNSON, DUFFIE, STEWART & WEIDNER By: Jo n R. Nmosky 2 ca f A~ PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Court.) CAPTION OF CASE (entire caption must be stated in full) BRUCE K. BARCLAY, Plaintiff VS. BBEC, Inc. Defendant (List the within matter for the next Argument cn Q t~, ~ ~:.. ~ ~:~ ~ -- i _ ~ =y cy .. ~~ ~ ~_.. ~_ No. 10-2662, Civil Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendants demurrer to complaint, etc.): Plaintiffs Motion for Judgment on the Pleadings 2. Identify counsel who will argue cases: (a) for plaintiffs: John R. Ninosky, Esquire, Johnson Duffle, P.O. Box 109, Lemoyne, PA 17403 (Name and Address) (b) for defendants: George B. Faller, Jr., Esquire, Manson Law Offices, 10 East High Street Carlisle, PA 17013 (Name and Address) 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: October 6, 2010 Date: August 2, 2010 Si ature John R. Ninoskv Print your name Attorney for Plaintiff Bruce K. Barclay INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. N argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. :404723 ._ _,.~ _~ ~,T' -~ , ', a ; ,) F.AFILESVClients\13835 BBEC1,13835.2\13835 2 Motion for Judgment on Pleadings 1&vised 9/20/10 II 12AM George B. Faller, Jr., Esquire I.D. No. 49813 R. Christopher VanLandingham I.D. No. 307424 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant i vrr s ,„ p ???\ 1?„'S t?,. cat BRUCE K. BARCLAY, Plaintiff, V. BBEC, INC.., Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-2662 CIVIL ACTION - LAW : JURY TRIAL DEMANDED DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS AND NOW, comes the Defendant, BBEC, Inc., by and through its attorneys, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and moves as follows: 1. On December 15, 2000, Plaintiff entered into an employment agreement (hereinafter "Agreement") with Defendant, whereby :Plaintiff agreed to work for Defendant for a term ending on December 31, 2020 (hereinafter "Term"). A true and correct copy of the Agreement was attached to Plaintiff's Complaint and hereto as Exhibit "A." 2. Under Subsection 5(a) of the Agreement, Defendant agreed to "provide health insurance coverage on behalf of Employee at Company cost during the Term. Further, Company agrees to provide health insurance coverage, on behalf of Employee, following the end of his employment under this Agreement at Company cost until the earlier of Employee's death or the date Employee attains age 65." 3. On April 9, 2008 Plaintiff voluntarily terminated his employment with Defendant, before expiration of the Term. 4. Under Subsection 3(b) of the Agreement, "[i]f the Employee voluntarily terminates employment-all rights of the Employee hereunder will cease as of the date of such termination..." 5. Defendant ceased providing health insurance coverage to Plaintiff following Plaintiff's voluntary termination, in conformance with Subsection 3(b) of the Agreement. 6. On April 20, 2010, Plaintiff filed a Complaint seeking a Declaration by this Court that Defendant is obligated to provide health insurance coverage to Plaintiff and a Judgment for damages representing the costs Plaintiff has allegedly incurred obtaining and maintaining his own health insurance coverage. 7. The Plaintiff's argument rests solely on a reading of Subsection 5(a) providing for health insurance coverage following the termination of his employment. 8. Plaintiff incorrectly claims that Subsection 5(a) of the Agreement requires Defendant to continue to provide health insurance coverage even following Plaintiff's voluntary termination. 9. It is well settled by the courts that the intention of the parties to an agreement must be considered by a reading of the entire agreement and not simply by reading individual sections. Alloy Manufactoring Company Employees Trust v. Minnotte, 411 Pa. 492, 496, 192 A. 2d 394, 396 (Pa. 1963). When clauses to a contract appear to be in conflict they should be construed, "if possible, as consistent with one another." Flatley by Flatley v. Penman, 429 Pa.Super. 517, 521, 632 A.2d 1342, 1344 (Pa.Super. 1993). "Moreover, where specific or exact terms seem to conflict with broader or more general terms, the [specific] terms are more likely to express the meaning of the parties with respect to the situation than the general language." PBS Coal, Inc. v. Hardhat Mining, Inc., 429 Pa.Super. 372, 378, 632 A.2d 903, 906 (Pa.Super 1993). 10. Reading the Agreement as a whole, with the clauses read as consistent with one another where possible, as the Court must, clearly demonstrates that the intent of the parties was for all rights under the Agreement, including the right to health insurance coverage, to cease upon Employee's voluntary termination, and for Defendant to be obligated to continue providing health insurance coverage to the Plaintiff only if Plaintiff is involuntarily terminated for cause under Subsection 3(a), involuntarily terminated for a disability under Subsection 3(c), or if Plaintiff continues employment until the end of the Term. 11. "A Motion for Judgment on the Pleadings will be granted only where, on the facts averred, the law says with certainty no recovery is possible." Piehl v. City ofPhiladelphia, 987 A.2d 146 (Pa. 2009). 12. On the facts averred in the present case, the law says with certainty that no recovery by Plaintiff is possible. WHEREFORE, Defendant requests this Honorable Court enter a Judgment on the Pleadings in favor of Defendant and dismiss Plaintiff's Complaint with prejudice. Respectfully Submitted, MARTSON,L^ OFF By: - Geor al r, Esquire q s I.D. No. 49813 'f R. Christopher VanLandingham I.D. No. 307424 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant Date: September 20, 2010 LA " "' EMPLOYMENT AGREEMENT THIS AGREEMENT ("Agreement") made as of the day of December 2000, between BBEC, INC., a Pennsylvania business corporation (the "Company"), and BRUCE K. BARCLAY, an individual (the "Employee"). WITNESSETH: WHEREAS, Employee founded BBEC, Inc. and has served and currently serves as President and Chief Executive Officer of BBEC and is a key employee of the Company; and WHEREAS, Employee is willing to sell his entire interest in the Company to ?n Employee Stock Ownership Plan (the "ESOP") which will inure the benefit of all eligible employees of the Company; and WHEREAS, Employee has indicated his willingness to remain employed by the Company; and WHEREAS, a condition to the ESOP's third party financing for acquiring Employee's stock is that Employee remain an employee and continue to serve as President of the Company; and WHEREAS, it is important to the continuing success of the Company that Employee's services be retained and that to protect the interests of the Company, Employee, in consideration of the benefits to be provided herein, agree to be subject to certain confidentiality and non- competition provisions. NOW, THEREFORE, the parties hereto, intending to be legally bound hereby, agree as follows: I. Employment. Company hereby agrees to employ the Employee, and the Employee hereby accepts employment with the Company, on the terms and conditions set forth in this Agreement. 2. Duties of Employee. The Employee will perform and discharge well and faithfully such duties and will be employed as President and Chief Executive Officer, and will hold such other titles as may be given to him from time to time by the Board of Directors. 3. Term of Employment. The Employee's employment under this Agreement will be for a period commencing upon the date of this Agreement and ending on December 31, 2020, hereinafter defined as (the "Term', unless the Employee's employment is sooner terminated in accordance with one of the provisions of this Section 3; provided, however, the term of this Agreement will automatically renew for a one-year period commencing on the twentieth 368463.4 anniversary date of the original term, unless either party gives written notice of nonrenewal to the other party no later than sixty (60) days prior to the end of the original term. The term of this Agreement shall automatically renew for additional one-year periods thereafter unless either party gives written notice of no renewal to the other party no later than sixty (60) days prior to the end of the one-year renewal term. (a) Termination for Cause. The Employee's employment under this Agreement may be terminated at any time during the Term for "Cause" (as herein defined), by action of the Board of Directors of the Company, upon giving written notice of such termination to the Employee. As used in this .Agreement, "Cause" means any of the following events: (i) the Employee is convicted of or enters a plea of guilty or nolo contendere to a felony, a crime of falsehood, or a crime involving fraud or moral turpitude, or the actual incarceration of the Employee for a period of ten (10) consecutive days; or (ii) the Employee has, in the reasonable opinion of the Board of Directors, committed an intentional act of fraud, embezzlement or theft in connection with the Employee's duties in the course of his employment or has caused intentional damage to property of the Company or has intentionally and wrongfully disclosed Confidential Information. If the Employee's employment is terminated under the provisions of this subsection, then all rights of the Employee under Section 4 will cease as of the effective date of such termination. (b) Voluntary Termination, Retirement or Death. If the Employee voluntarily terminates employment, retires or dies, the Employee's employment under this Agreement will be deemed terminated as of the date of the Employee's voluntary termination, retirement or death, and all rights of the Employee hereunder will cease as of the date of such termination and any benefits payable to the Employee will be determined in accordance with the pension, welfare, fringe benefit, expense reimbursement, salary deferral and insurance programs of the Company then in effect. (c) Disability. If the Employee is incapacitated by accident, sickness, or otherwise so as to render the Employee mentally or physically incapable of performing the essential duties required of the Employee under Section 2, notwithstanding reasonable accommodation, for a continuous period of eighteen (18) months, then, upon the expiration of such period or at any time thereafter, by -2- action of the Board of Directors of the Company, the Employee's employment under this Agreement may be terminated immediately upon giving the Employee notice to that effect. If the Employee's employment is terminated under the provisions of this subsection 3(b), then all rights of the Employee under Section 4 will cease as of the last business day of the week in which such termination occurs, and the Employee will thereafter be entitled to the benefits to which he is entitled under any disability plan of the Company, if any, in which he is then a participant. 4. Term Compensation and Related Matters. (a) Salary. For services , performed by the Employee under this Agreement, the Company will pay the Employee a salary, in the aggregate, during the Term, at the annualized rate of Two Hundred Forty Thousand Dollars ($240,000.00), payable at the same times as salaries are payable to other employees of the Company. Employee's base compensation shall be adjusted annually by four percent (4%) over the Term. (b) Bonus. Employee may also be eligible to receive an annual bonus as a participant under the Company's Incentive Bonus Program which the Company shall maintain for its key executive employees as selected by the Board of Directors. The incentive criteria under the Incentive Bonus Program are to be determined within the sole discretion of the Board of Directors and the Program in effect as of the effective date of this Agreement is described on Appendix "A" attached hereto. (c) Pension and Welfare Benefits. The Company will provide the Employee, during the Term., with pension and welfare benefits (within the meaning of Section 3 of the Employee Retirement Income Security Act of 1974, as amended C ERISA' )) in the aggregate not less favorable than those received by other employees of the Company. (d) Supplemental Life Insurance. Company agrees to pay the premium cost of all life insurance which Employee maintains as of the effective date of this Agreement. (e) Automobile. Company agrees to provide for Employee during the Term the use of an automobile, model and make determined by the Board of Directors and to reimburse Employee for all costs associated with the vehicle, including fuel, mileage, and maintenance. (f) Expense Reimbursement. The Employee will be entitled to reimbursement of all expenses incurred by him in the discharge of his duties in the furtherance of the business of the Company. (g) Technology. Company agrees to pay the costs of technology connections and equipment required by Employee in order that Employee can fulfill his responsibilities as President and Chief Executive Officer, including necessary links and equipment at Employee's office and residence locations. The Company will be responsible for updating such connections and equipment so that it is compatible with the Company's equipment. Upon the termination of this Agreement any equipment installed as of such date shall be deemed the property of the Employee. (h) Incidental Benefits. To avoid interference with Employee's significant responsibilities as President and Chief Executive Officer, Company agrees that in lieu of paying Employee an additional $10,000 toward his base salary, the Company will pay for the incidental expenses of Employee, as agreed between Employee and the Company, provided however, said amount to be adjusted as per base salary adjustments pursuant to Section 4(a). 5. Other Benefits. (a) Health Insurance. Company agrees to provide health insurance coverage on behalf of Employee at Company cost during the Term. Further, Company agrees to provide health insurance coverage, on behalf of Employee, following the end of his employment under this Agreement at Company cost until the earlier of Employee's death or the date Employee attains age 65. (b) Vacation. The Employee will be entitled to not less than twelve (12) weeks of vacation per calendar year or such other amount, not less than twelve (12) weeks, as may be approved from time to time by the Board of Directors. Employee may carry over any unused vacation days. Upon Employee's termination of employment, whether by expiration of this Agreement or otherwise, Employee shall be entitled to payment for any carried over and unused vacation days. 6. Confidentiality. (a) As used in this section, the term "Confidential Information" means any and all information regarding the organization, business or finances of the Company or any of its subsidiaries and affiliates, including, but not limited to, any and all business plans and strategies, financial information, proposals, reports, marketing plans and information, cost information, customer information, -4- customer lists, claims history and experience data, sales volume and other sales statistics, personnel data, pricing information, and concepts and ideas. (b) The Employee acknowledges and agrees that his employment by the Company will afford him an opportunity to acquire Confidential Information and that the misappropriation or disclosure of any Confidential Information would cause irreparable harm to the Company and its subsidiaries and affiliates. (c) During the Term and for a period of three (3) years thereafter, the Employee will not use for the benefit of anyone other than the Company and its subsidiaries and affiliates or disclose any of the Confidential Information for any reason or purpose whatsoever except to authorized representatives of such business entities or as directed or authorized by the Company. (d) Upon termination of this Agreement, the Employee will. immediately surrender to the owner thereof all documents (other than documents created by him) in his possession, custody or control embodying the Confidential Information or any part thereof and will not thereafter remove the same from the premises on which it is located. (e) The provisions of this Section 5 shall survive termination of this Agreement for any reason. 7. Non-Compete Obligation. Employee agrees that during the Term of this Agreement and for a period of three (3) years after the end of the Term, or any extension thereof, Employee shall not, directly or indirectly, engage (as principal, partner, director, officer, agent, employee, or owner, with or without compensation) in any line of business that the Company is involved within one hundred (100) miles of the main office of the Company. Notwithstanding the above, the provisions of this Section 7 shall not apply to Employee's 'ownership interest in Infrastructure Technology Contractors, Incorporated. Employee shall not entice or solicit, directly or indirectly, any other executives or key management personnel of the Company (or any subsidiary) to work with Employee or any entity with which Employee has affiliated for a period of three (3) years after the end of the Term, or any extension thereof. Employee shall also not entice or solicit, directly or indirectly, any client or customer of the Company (or any subsidiary) for any competitor or in any competitive activity for a period of three (3) years after the end of the initial Term or any extension thereof 8. Remedies. Employee acknowledges and agrees that the remedy at law of the Company for a breach or threatened breach of any of the provisions of Sections 5 or 6 would be inadequate and, in recognition of this fact, in the event of a breach or threatened breach by the Employee of any of the provisions of Sections 5 or 6, it is agreed that, in addition to the remedy at law, the Company will be entitled to, without posting any bond, and the Employee agrees not -5- to oppose any request of the Company for, equitable relief in the form of specific performance, a temporary restraining order, a temporary or permanent injunction, or any other equitable remedy which may then be available. Nothing herein contained will be construed as prohibiting the Company from pursuing any other remedies available to them for such breach or threatened breach. 9. Indemnification. The Company will indemnify the Employee, to the fullest extent permitted under Pennsylvania and federal law, with respect to any threatened, pending or completed legal or regulatory action, suit or proceeding brought against him by reason of the fact that he is or was a director, officer, employee or agent of the Company. To the fullest extent permitted by Pennsylvania and federal law, the Company will, in advance of final disposition, pay any and all expenses incurred by the Employee in connection with any threatened, pending or completed legal or regulatory action, suit or proceeding with respect to which he may be entitled to indemnification hereunder. The Company will use their best efforts to obtain insurance coverage for the Employee under a policy covering directors and officers thereof against litigation, arbitrations and other legal and regulatory proceedings. 10. Notices. Any notice required or permitted to be given under this Agreement will,- to be effective hereunder, be given to the Company, in the case of notices given by the Employee, and will, to be effective hereunder, be given by the Company, in the case of notices given to the Employee. Any such notice will be deemed properly given if in writing and if mailed by registered or certified mail, postage prepaid with return receipt requested, to the residence of the Employee, in the case of notices to the Employee, and to the main office of the Company. 11. Waiver. No provision of this Agreement may be modified, waived, or discharged unless such waiver, modification, or discharge is agreed to in writing and signed by the parties. No waiver by any party hereto at any time or any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party will be. deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. 12. Assignment. This Agreement is not assignable by any party hereto, except by the Company to any successor in interest to the respective businesses of the Company. 13. Entire Agreement. This Agreement contains the entire agreement of the parties relating to the subject matter of this Agreement and supersedes any prior agreement of the parties. 14. Validi . The invalidity or unenforceability of any provisions of this Agreement will not affect the validity or enforceability of any other provision of this Agreement, which will remain in full force and effect. -6- 1 5. Applicable Law. Except to the extent preempted by federal law, this Agreement will be governed by and construed in accordance with the domestic internal law of the Commonwealth of Pennsylvania. 16. Headines. The headings of the sections and subsections of this Agreement are for convenience only and will not control or affect the meaning or construction or limit the scope or intent of any of the provisions of this Agreement. 17. Effective Date. This Agreement will become effective immediately upon the execution and delivery of this Agreement by the parties hereto. 18. Withholding for Taxes. All amounts and benefits paid or provided hereunder will be subject to withholding for taxes as required by law. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first BBEC, INC. By: (Vice) Preside (SEAL) EMPLOYEE By: Bruce K. Barcla -7- BBEC, INC. MANAGEMENT INCENTIVE BONUS PLAN BBEC, Inc. shall maintain, as an incentive to its key management employees to increase the profitability of BBEC, Inc. and to enhance shareholder value, a management incentive bonus plan. Those employees eligible to participate in the plan shall be identified and selected by the Board of Directors on an annual basis. Participants will qualify for payment of a bonus if provided the following threshold under (1) below has been satisfied: (1) Pre-tax profits of the Corporation must be an amount which is at least equal to 15% times the ESOP valuation of the Corporation effective as of the beginning of the plan year. (2) Provided the minimum threshold has been satisfied, an amount equal to 15% but not greater than 20% of pre-tax profits in excess of the threshold amount, the exact percentage determined by the Board of Directors annually, shall be set aside to the bonus pool. (3) The Board of Directors shall determine the allocable bonus for each eligible participant out of the bonus pool. 368483.4 Appendix "A" CERTIFICATE OF SERVICE I, Nichole L. Myers, an authorized agent of Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Motion was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: John R. Ninosky, Esquire JOHNSON, DUFFIE, STEWART & WEIDNER 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0103 MARTSON LAW OFFICES Nichole L. Myers Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: September 20, 2010 F:\FILPS\Clients\13835 BBEC\13835.2\13835.2.res1 Revised: 9/20/10 10 38AM FILED-OFFICc OF THE PTi, J HIONOTAR George B. Faller, Jr., Esquire , I.D. No. 49813 2010 S E P ? 0 All 11: 0 R. Christopher VanLandingham I.D.307424 ,^ t jX 4_ 1iD CCUT 3, ^ MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER k„ 1K `tr 1 ?t `?' MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant BRUCE K. BARCLAY, Plaintiff, V. BBEC, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-2662 CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS AND NOW, comes the Defendant BBEC, Inc., and hereby responds to Plaintiff's Motion for Judgment on the Pleadings as follows: Admitted. 2. Denied as stated. To the contrary, Plaintiff's entitlement to benefits following his voluntary termination and retirement is governed by Paragraph 3(b) of the Agreement, not Section 5(a). It is admitted, however, that the matter is ripe for disposition as it is simply a legal interpretation of the contract. 3-4. Admitted. 5. It is admitted that the Motion has accurately quoted Paragraph 5(a). 6-8. Admitted. 9. It is admitted that this was Mr. Barclay's position. Mr. Barclay's position is incorrect, however, as it is contrary to Paragraph 3(b). 10-21. Admitted. 22. Denied as stated. To the contrary, Paragraph 3(b) clearly terminates all rights of employee when he voluntarily terminates or retires from employment. 23. Denied. To the contrary, Paragraph 3(b) clearly terminates all of employee's rights to health insurance. 24. It is admitted that the Motion has accurately quoted Paragraph 3 (b) of the Agreement. 25. Denied as stated. To the contrary, the Court is not being asked to determine what Section 3(b) "appears to contemplate" regarding any other type of post employment benefits other than health insurance. 26. Denied. To the contrary, Plaintiff is not entitled to continued health insurance. 27. Denied as stated. Plaintiff's health insurance benefits were clearly terminated by his voluntary resignation or retirement. 28. Denied as stated. The present motion has nothing to do with Paragraph 3(a). 29. Admitted that the Motion has accurately quoted Paragraph 3(a). 30. Denied as stated. The present motion has nothing to do with Paragraph 3(a). 31. The averments of this paragraph are denied as irrelevant. The instant motion deals only with Plaintiffs alleged entitlement to continued health insurance benefits which have been properly denied. 32. Denied as stated. To the contrary, the Court is simply asked to determine whether or not the agreement clearly provides for continued health insurance benefits after voluntary termination or retirement. 33. Denied, the Agreement is a document which speaks for itself. 34. Denied. To the contrary, Paragraph 3(b) clearly indicates that Plaintiffs right to health insurance benefits ceased upon his voluntary resignation or termination. 35. Admitted that BBEC, Inc., will ask the Court to use Section 3(b) to terminate his health insurance coverage as of the date of his voluntary termination or retirement. It is denied that BBEC, Inc., is attempting to deny Mr. Barclay any other rights afforded him under the agreement. 36-39. The averments of these paragraphs are conclusions of law to which no response is required and the averments are, therefore, deemed denied. 40. The averments of these paragraphs are conclusions of law to which no response is required and the averments are, therefore, deemed denied. By way of further response, the Agreement is a document which speaks for itself. Paragraph 3(b) of the Agreement clearly terminates Plaintiff's right to continued health insurance coverage. 41-42. Denied. To the contrary, the Agreement by its own words ceases Mr. Barclay's rights to health insurance benefits as of the date he voluntarily terminated or retired from his employment. WHEREFORE, Defendant BBEC, Inc., requests that this Court deny Plaintiff s Motion for Judgment on the Pleadings and grant Defendant's Motion for Judgment on the Pleadings. MARTSON LAW OFFICES By q,, ? ?,7 / - Ge e B. Faller, Jr., Esquir I.D. Number 49813 R. Christopher VanLandingham I.D. No. 307424 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant BBEC, Inc. Date: September 20, 2010 CERTIFICATE OF SERVICE I, Nichole L. Myers, an authorized agent of Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Response was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: John R. Ninosky, Esquire JOHNSON, DUFFIE, STEWART & WEIDNER 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0103 MARTSON LAW OFFICES By Y'016 i-;r? Nichole L. Myers Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: September 20, 2010 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) ----- - - - - - ----- - ---- - - - ------- - ---------- - -------- - -------- - ---------------- - -- - - - - - - ---------------- CAPTION OF CASE - (entire caption must be stated in full) e ' 'rt BRUCE K. BARCLAY " VS. ci?t ? rw - BBEC, INC. r C .) c') C--) ' C3 No. 10-2662 Civil Gi C' M 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to.-:,. r-O complaint, etc.): Defendant's Motion for Judgment on the Pleadings 2. Identify all counsel who will argue cases: (a) for plaintiffs: John R. Ninosky, Esquire, Johnson Duffle, P.O. Box 109, Lemoyne, PA 17403 (Name and Address) (b) for defendants: George B. Faller, Jr., Esquire, MARTSON LAW OFFICES, 10 East High Street (Name and Address) Carlisle, PA 17013 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: December 15, 2010 Print your name Defendant 9120110 Attorney for Date: INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument Is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. Lyeorge ts. ratter, jr., t;squire ~ A, F'Il.EC1-at: i" iCE GI~' T'HE PFt0~'t~DPdQT~f;`~ X010 S£P 22 P~! 3~ ~~ "UMBERI.ANC COE1i~li`° PEN~SYLI~A,~~il~ Johnson, Duffle, Stewart ~ Weidner By: John R. Ninosky I.D. No. 78000 Elizabeth D. Snover I.D. No. 200997 301 Market Street ~ P. O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 BRUCE K. BARCLAY, Plaintiff v. BBEC, INC., Defendants TO THE PROTHONOTARY: Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-2662 CIVIL ACTION -LAW DECLARATORY JUDGMENT REQUESTED JURY TRIAL DEMANDED PRAECIPE TO REMOVE Please remove PlaintifFs Motion for Judgment on the Pleadings from the October 6, 2010 Argument Court list. This matter will be re-listed for the December 15, 2010 Argument Court list at the appropriate time. Respectfully submitted, Date: September 21, 2010 JOHNSON, UFFIE, STEWART 8~ WEIDNER By: J n R. Ninosky, Esquire Attomey I.D. No. 78000 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Plaintiff CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Praecipe to Remove has been duly served upon the following counsel of record, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on September 21, 2010: George B. Faller, Jr., Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 JOHNSON, DUFFIE, STEWART & WEIDNER By: John R. Nin sky ca/aL PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) --- C o CAPTION OF CASE 3 ~ (entire caption must be stated in full) ~~ ~ ~~ BRUCE K. BARCLAY, ~ ~~ ~ ~ ~~ ~~ Plaintiff ~~ ~' ~ ca n c- ~ ~~ ~" BBEC, Inc. vs. ~~ c~ ~~ Defendant -~, ~~,, ~~ No. 10-2662, Civil Term ~ 1. State matter to be argued (i.e., plaintiffs motion for new trial , defendant's demurrer to complaint, etc.): Plaintiffs Motion for Judgment on the Pleadings 2. Identify counsel who will argue cases: (a) for plaintiffs: John R. Ninosky, Esquire, Johnson Duffie, P.O. Box 109, Lemoyne, PA 17403 (Name and Address) (b) for defendants: George B. Faller, Jr., Esquire, Martson Law Offices, 10 East High Street Carlisle, PA 17013 (Name and Address) 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: December 15, 2010 Sign ure Date: September 21, 2010 John R. Ninosky Print your name Attorney for Plaintiff Bruce K. Barclay INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. ff argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. :404723 h , JOHNSON, DUFFIE, STEWART & WEIDNER By: John R. Ninosky I.D. No. 78000 Elizabeth D. Snover I.D. No. 200997 301 Market Street - P. O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 _ FILED-OFFICE C; T14E PPP i h+ti 0TAR', 1 SPEQ 27 PM 2: COP P E S`fk VAIN! ; Attorney for Plaintiff BRUCE K. BARCLAY, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 10-2662 V. CIVIL ACTION - LAW BBEC, INC., DECLARATORY JUDGMENT REQUESTED Defendants JURY TRIAL DEMANDED RESPONSE TO BBEC INC.'S MOTION FOR JUDGMENT ON THE PLEADINGS AND NOW, comes the Plaintiff, by and through his counsel, Johnson, Duffie, Stewart & Weidner, P.C., who files this Response to BBEC, Inc.'s Motion for Judgment on the Pleadings by respectfully stating the following: 1. Admitted. By way of further response, the Agreement attached to Plaintiff's Complaint as Exhibit A is a document which speaks for itself. 2. Admitted. By way of further response, the Agreement attached to Plaintiff's Complaint as Exhibit A is a document which speaks for itself. 3. Admitted. (See, Complaint % 9, Admitted in Answer 19) 4. Admitted. By way of further answer that provision states in full: Voluntary Termination Retirement, or Death. If the Employee voluntarily terminates employment, retires or dies, the Employee's employment under this Agreement will be deemed terminated as of the date of the Employee's voluntary termination, retirement or death and all rights of the Employee hereunder will cease as of the date of such termination and any benefits payable to the Employee will be determined in accordance with the pension, welfare, fringe benefit, expense reimbursement, salary deferral and insurance programs of the Company then in effect. (Exhibit A, Plaintiffs Complaint). 5. Admitted in part, denied in part. It is admitted that, after Barclay's voluntary resignation, BBEC, Inc. ceased providing health insurance coverage. However, it is denied that this action was in conformance with the Employment Agreement. As stated in his Complaint and Motion for Judgment on the Pleadings, it is the position of Mr. Barclay that the Employment Agreement when read as a whole, and particularly Subsection 5(a), requires BBEC, Inc. to continue to provide health insurance coverage to Mr. Barclay at cost to BBEC, Inc. following the end of his employment (including voluntary termination) with BBEC, Inc. and until Mr. Barclay attains the age of 65 or dies. When read as a whole, Section 3(b) directs that, in the instance of voluntary termination, Mr. Barclay is still entitled to post-employment benefits as determined by the Company's benefit plans and insurance programs. As such, there is no apparent conflict between Section 3(b) and Section 5(a) which provides for: "health insurance coverage on behalf of Employee following the end of his employment under [the] Agreement." 6. Admitted. 2 7. Denied. Plaintiff's argument rests entirely on the Employment Agreement when read as a whole. 8. Admitted in part, denied in part. It is admitted that Plaintiff claims that health insurance benefits are due, which is the subject of his Complaint. However, it is denied that the basis for Plaintiff's claim is incorrect. By way of further answer, see response to paragraph 5 above. 9. The averments in this paragraph are citations to case law to which no response is required. 10. Denied. The averments in the paragraph are conclusions of law to which no response is required. If a response is deemed required, the same are denied as stated. By way of further answer, see response to paragraph 5 above as well as Plaintiff's Motion for Judgment on the Pleadings. 11. The averments in this paragraph are citations to case law to which no response is required. 12. Denied. The averments in the paragraph are conclusions of law to which no response is required. If a response is deemed required, the same are denied as stated. By way of further answer, see response to paragraph 5 above as well as Plaintiff's Motion for Judgment on the Pleadings. 3 WHEREFORE, Plaintiff respectfully requests this Honorable Court to declare that, under the terms of the Employment Agreement, BBEC, Inc. is obligated to provide health coverage to Bruce K. Barclay until he attains the age of 65 or until his death and was required to do so after his voluntary termination. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: 4gz //Ajj Jon R. mos y, Esquire Attorney I.D. No. 78000 Elizabeth D. Snover, Esquire Attorney I.D. No. 200997 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Plaintiff Date: September 24, 2010 :415335 4 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Response to BBEC, lnc.'s Motion for Judgment on the Pleadings has been duly served upon the following counsel of record, by depositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on September 24, 2010: George B. Faller, Jr., Esquire Martson Law Offices 10 East High Street Carlisle, PA 17013 JOHNSON, DUFFIE, STEWART & WEIDNER By: 44 GV/11/ Jo R. Ninosky BRUCE K. BARCLAY, Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. l1 '" No. 10-2662 BBEC, INC., Defendant JURY TRIAL DEMANDED' " a? IN RE: PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGSI&I DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE HESS, P.J. AND MASLAND, J. ORDER OF COURT AND NOW, this ?o day of January, 2011, upon consideration of the Plaintiff's Motion for Judgment on the Pleadings, and Defendant's response thereto, and after oral argument by the parties, the Plaintiffs Motion for Judgment on the Pleadings is GRANTED, and Defendant is directed to abide by the terms and conditions of the Employment Agreement with regards to the health insurance coverage of the Plaintiff by providing health insurance coverage in accordance with the terms of the agreement, at company cost, until Plaintiff either attains the age of 65 or dies. It is further ordered, upon consideration of the Defendant's Motion for Judgment on the Pleadings, and Plaintiffs response thereto, and after oral argument by the parties, the Defendant's Motion for Judgment on the Pleadings is DENIED. GeorcJe ?. %.ller, John R. Ninos4, E"j, BY THE COURT, ,,<,.. 4 Kevin/A. Hess, P.J. noies Maw' ?I?o?ll Da BRUCE K. BARCLAY, Plaintiff, V. BBEC, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 10-2662 JURY TRIAL DEMANDED IN RE: PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS and DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE HESS, P.J. OPINION AND ORDER HESS, P.J., January _, 2011 Before the court at this time are two motions. Plaintiff, Bruce K. Barclay, has filed a Motion for Judgment on the Pleadings. (Plaintiff's Motion for Judgment on the Pleadings, filed June 28, 2010). Defendant, BBEC, Inc., has also filed a Motion for Judgment on the Pleadings. (Defendant's Motion for Judgment on the Pleadings, filed September 20, 2010). Both parties filed briefs in support of, and in opposition to, the respective motions, and the case has been argued. The facts of the matter are not in dispute. On April 21, 2010, Plaintiff filed a Declaratory Judgment and Breach of Contract action against Defendant regarding health insurance benefits and coverage. (Complaint, filed April 21, 2010). On June 3, 2010, Defendant filed an Amended Answer with New Matter to Plaintiff s Complaint. (Amended Answer, filed June 3, 2010). The complaint arises out of an Employment Agreement signed by the parties, and a true and correct copy of the agreement was attached to the complaint as Exhibit A. (Complaint, Ex. A, Admitted in Amended Answer, ¶ 5). On December 15, 2000, the parties entered into an agreement whereby Plaintiff Barclay was to become an employee of Defendant BBEC. (Complaint, 15; 2 Admitted in Amended Answer, ¶ 5). On April 9, 2008, Plaintiff Barclay voluntarily terminated his employment with Defendant BBEC. (Complaint, ¶ 9; Admitted in Amended Answer, ¶ 9). Subsequently, Barclay's health insurance with BBEC was terminated. Voluntary termination of employment is addressed in Subsection 3(b) of the Employment Agreement and provides as follows: Voluntary Termination, Retirement, or Death. If the Employee voluntarily terminates employment, retires or dies, the Employee's employment under this Agreement will be deemed terminated as of the date of the Employee's voluntary termination, retirement or death and all rights of the Employee hereunder will cease as of the date of such termination and any benefits payable to the Employee will be determined in accordance with the pension, welfare, fringe benefit, expense reimbursement, salary deferral and insurance programs of the Company then in effect. (Complaint, 110; Admitted in Amended Answer, ¶ 10). Also contained in the Employment Agreement at Subsection 5(a) is a health insurance provision which provides as follows: 5. Other Benefits: (a) Health Insurance. Company agrees to provide health insurance coverage on behalf of Employee at Company cost during the Term. Further, Company agrees to provide health insurance coverage, on behalf of Employee, following the end of his employment under this Agreement at Company cost until the earlier of Employee's death or the date Employee attains age 65. (Complaint, ¶ 7; Admitted, but denying any inference or legal conclusion, in Amended Answer, ¶ 7). Plaintiffs complaint alleges that Subsection 5(a) requires Defendant to continue to provide health insurance coverage to Plaintiff following the end of his employment and until Plaintiff attains the age of 65 or dies, with no distinction made for voluntary or involuntary termination, and, therefore, the Defendant's termination of his health insurance was a violation of the terms of the Employment Agreement. (Complaint, ¶ 9). Defendant contends that 3 Subsection 3(b), the voluntary termination provision, which provides that "all rights of the employee hereunder will cease as of the date of such termination....," makes the termination of Plaintiff's health insurance coverage proper, and Plaintiff is not entitled to health insurance coverage because of his voluntary retirement. (Amended Answer, ¶ 10). A Motion for Judgment on the Pleadings under Pennsylvania Rule of Civil Procedure 1034 may properly be granted in cases so free and clear of doubt that a "trial would be a fruitless exercise." Bata v. Central-Penn Nat. Bank of Philadelphia, 423 Pa. 373, 378, 224 A.2d 174, 178 (1966). In ruling on such motions, a court must consider only the pleadings and any documents properly attached thereto. Id. at 179. Judgment on the pleadings may not be entered where material issues of fact are in dispute. Miami National Bank v. Willens, 410 Pa. 505, 507- 08, 190 A.2d 438, 439 (1963). Both parties agree that the Employment Agreement attached to the complaint is a true and correct copy of the agreement between them, and, as a result, the material facts are not in dispute. (Complaint, ¶ 5; Admitted in Amended Answer, ¶ 5). All that remains, therefore, is the interpretation of the agreement and resultant obligations of the parties. It is well-settled that the interpretation of a contract is a question of law. McMullen v. Kutz, 603 Pa. 602, 609, 985 A.2d 769, 773 (2009). Indeed, the well-established principles of contract law also guide a court's interpretation of employment agreements, just as any other contract. Ferrer v. Trustees of University of Pennsylvania, 573 Pa. 310, 338, 825 A.2d 591, 608 (2002). In Pennsylvania, certain principles of contract interpretation are well-settled. The primary task of a court in interpreting a contract is to "ascertain the intent of the parties as manifested by the language of the written instrument." Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 305, 469 A.2d 563, 566 (1983). When ascertaining the intent of 4 the parties, a court should derive that intention from "the entire writing and not from detached portions, it being necessary to consider every part thereof in order to resolve the meaning of a particular part as well as that of the whole." In re Alloy Mfg. Co. Emp. Trust, 411 Pa. 492, 496, 192 A.2d 394, 396 (1963). Furthermore, if a contract is clear and unambiguous "neither oral testimony nor prior written agreements or other writings are admissible to explain or vary the terms of that contract." Ragnar Benson, Inc. v. Hempfield Tp. Mun. Authority, 2007 Pa. Super. 28, ¶ 16, 916 A.2d 1183, 1190 (citing Lenzi v. Hahnemann Univ.; 445 Pa. Super. 187, 664 A.2d 1375, 1379 (1995)). Where the contract is clear and unambiguous, therefore, its meaning is to be determined from within the four corners of the document alone. Clairton Slag, Inc. v. Department of General Services, 2 A.3d 765, 773 (Pa. Cmwlth. 2010) (citing East Crossroads Ctr., Inc. v. Mellon-Stuart Co., 416 Pa. 229, 230, 205 A.2d 865, 866 (1965)). The question of whether a contract is ambiguous is a question of law. Id. When a contract is ambiguous, a court "may examine the surrounding circumstances to ascertain the intent of the parties." Halpin v. LaSalle University, 432 Pa. Super. 476, 481, 639 A.2d 37, 39 (1994). Simply because parties to a contract disagree on its interpretation does not unavoidably render the contract ambiguous; rather, when making the determination of whether a contract is ambiguous or not, a court "must view the contract as a whole and not in discrete units." Id. (citing O'Brien Energy Systems, Inc. v. American Employers' Ins. Co., 427 Pa. Super. 456, 461, 629 A.2d 957, 960 (1993)). Finally, as noted above, the general rules of contract interpretation are also fully applicable to employment agreements, just as any other contracts. Ferrer, 573 Pa. at 338. As a result, "[t]erms in one section of the contract should not be interpreted in a manner which nullifies other terms." Flatley by Flatley v. Penman, 429 Pa. Super. 517, 521, 632 A.2d 1342, 5 1344 (1993). Illogical interpretations, therefore, are to be rejected. Id. Furthermore, "specific provisions ordinarily will be regarded as qualifying the meaning of broad general terms in relation to a particular subject." In re Alloy Mfg. Co. Emp. Trust, 411 Pa. at 496. The Employment Agreement in the instant case, when construed as a whole, is clear and unambiguous. It is unnecessary, therefore, to refer to anything other than the agreement itself, and, as a result, judgment on the pleadings is proper. The issue is whether the Employment Agreement requires Defendant BBEC to continue to provide health insurance coverage, at company cost, to Plaintiff Barclay until he attains the age of 65 or dies, despite his voluntary termination. We hold that it does. Subsection 5(a) unambiguously provides for ongoing health insurance for the Plaintiff "following the end of his employment under this Agreement at Company cost until the earlier of Employee's death or the date Employee attains age 65." (Complaint, ¶ 7; Admitted, but denying any inference or legal conclusion, in Amended Answer, ¶ 7). Subsection 3(b) provides that in the event of a voluntary termination by the employee, "all rights of the Employee hereunder will cease as of the date of such termination and any benefits payable to the Employee will be determined in accordance with the. . . insurance programs of the Company then in effect." (Complaint, ¶ 10; Admitted in Amended Answer, 110) (emphasis added). It is clear, therefore, that Subsection 3(b), the voluntary termination provision, separates out from all rights under the contract, those rights related to insurance benefits. Those "benefits payable to the Employee" which are "determined in accordance with the...insurance programs of the Company then in effect" are separate and distinct from "all rights of the Employee hereunder," such as the right to a salary (Subsection 4(a)), or the right to a company automobile (Subsection 4(e)). Viewing the clauses together, and indeed, viewing the contract as a whole as we must, it is clear that the 6 intent of the parties at the time the Employment Agreement was signed was to provide health insurance at company cost, to Plaintiff, after his voluntary termination, and until he attains the age of 65 or dies. Defendant's interpretation would mean that a voluntary termination of employment by Plaintiff would result in fewer benefits than would an involuntary termination for cause. Indeed, Defendant argues throughout its brief that "[w]hile an employee who was involuntarily terminated either for cause or for disability, would maintain his rights to health insurance coverage as provided under Section 5 of the Agreement..." an employee who voluntarily leaves the employ of Defendant, even under good terms, is to lose his health insurance coverage.' We reject, as we must, this illogical interpretation of the contract. See Flatley by Flatley, 632 A.2d at 1344. Termination for cause is defined in Subsection 3(a) of the Employment Agreement, and provides as follows: (i) the Employee is convicted of or enters a plea of guilty or nolo contendere to a felony, a crime of falsehood, or a crime involving fraud or moral turpitude, or the actual incarceration of the Employee for a period of ten (10) consecutive days; or (ii) the Employee has, in the reasonable opinion of the Board of Directors, committed an intentional act of fraud, embezzlement or theft in connection with the Employee's duties in the course of his employment or has caused intentional damage to property of the Company or has intentionally and wrongfully disclosed Confidential Information. (Complaint, Ex. A, Admitted in Amended Answer, ¶ 5). We decline to accept an interpretation that would provide for the continuing health insurance coverage of an employee discharged for embezzlement or theft but deny the same benefit to an employee who leaves voluntarily under good terms. ' Defendant's Brief in Opposition to Plaintiff's Motion for Judgment on the Pleadings, p.4. 7 ORDER AND NOW, this 16 *day of January, 2011, upon consideration of the Plaintiff's Motion for Judgment on the Pleadings, and Defendant's response thereto, and after oral argument by the parties, the Plaintiff's Motion for Judgment on the Pleadings is GRANTED, and Defendant is directed to abide by the terms and conditions of the Employment Agreement with regards to the health insurance coverage of the Plaintiff by providing health insurance coverage in accordance with the terms of the agreement, at company cost, until Plaintiff either attains the age of 65 or dies. It is further ordered, upon consideration of the Defendant's Motion for Judgment on the Pleadings, and Plaintiff's response thereto, and after oral argument by the parties, the Defendant's Motion for Judgment on the Pleadings is DENIED. John R. Ninosky, Esquire For the Plaintiff George B. Faller, Jr., Esquire For the Defendant :rim 8 BY THE COURT,